Judgment : The order passed by the Executive and Sub Divisional Magistrate, Sivakasi, dated 25. 1995 under Sec. 133 of the Code of Criminal Procedure for removing the alleged nuisance, is being challenged in this revision, by virtue of Secs.397 and 401 of the Code of Criminal Procedure for want of its legality and propriety. 2. Nineteen members of Rajapalayam, including the revision petitioners were served with a show cause notice given by Sub Divisional Magistrate, Sivakasi for removing their alleged encroachment and occupation in a public place situate in Rajapalayam town in T.S.No. 1, as shown in the list appended to that. It is seen in this notice that learned Magistrate has stated that the above petitioners had occupied and encroached by putting houses viz., thatched houses, tiled houses and tin-sheeted houses as indicated in the list appended thereto. Having come to know that they have not removed the encroachment, he gave time to them to remove the said encroachment till 25. 1995, Petitioners were also directed to appear before him on 25. 1995 at about 10. 00 a.m. to show-cause the reasons as to why they should not be evicted. Written explanation was submitted on behalf of all the petitioners explaining the fact that they have not encroached as claimed, but, however, occupied the portion for a long period and put up constructions like thatched and tiled houses by getting electric service connection and drainage and toilet facilities provided by the Municipality along with water supply connection, and by paying all the necessary taxes to the municipality and that they are poor people and even so, they have got their accommodation legalised by the authorities concerned. It is noted that they had further attributed the motive to their neighbours in getting them evicted from the respective places. 3. However, learned Sub Divisional Magistrate on 35. 1995 invoking Sec.138 of the Code of Criminal Procedure, passed an order directing them to vacate all their residential houses within a period of seven days from the date of receipt of the order and on failure to do so, they would be punished under Sec. 188 of the Indian Penal Code. The order dated 33. 1995 passed under Sec.141(1) of the Code of Criminal Procedure is being assailed in this revision as above referred to. 4. The order dated 33. 1995 passed under Sec.141(1) of the Code of Criminal Procedure is being assailed in this revision as above referred to. 4. Mr.Narasimhan, learned counsel appearing for and on behalf of the revision petitioners would point out that the impugned order is lacking the legal ingredients to be fulfilled and so much so, it is liable to be set aside for the very reasoning that either the show-cause notice or the impugned order has not specifically identified the kind of nuisance as provided by the law. Secondly, learned counsel contended that no proper and adequate opportunity was given to revision petitioners to place materials in support of their claim, even though they had filed their written objections. Thirdly, learned counsel would contend that the impugned order passed by learned Sub Divisional Magistrate is without considering the grievances and pleas taken by and on behalf of petitioners before him and that therefore, the impugned order is vitiated. In the above context, I have perused the entire case papers and the grounds urged by the Bar on behalf of revision petitioners. It is seen that on 25. 1995 a show-cause notice alleging certain nuisance by way of occupation and encroachment was given to all revision petitioners by learned Sub Divisional Magistrate. A closer perusal of the said show cause notice and the list appended thereto do not reveal any nuisance in specific terms. It is generally stated in the tabular column the names of persons, the mode of encroachment and also the kind of residence they have put and used. Under such circumstances, I have necessarily to refer a decision held by me in Sesamma Joy alias Chakko Mathew and another v. Tahsildar, Vilavancode, Kanyakumari District, (1995)2 C.T.C. 152 , in which I had an occasion to observe the following: “A casual reading of Sec. 133(1) of the Code of Criminal Procedure would clearly show the fact that before proceeding in accordance with the provisions contained in Secs. 134 to 136 of the Code of Criminal Procedure, it is incumbent on the part of the Magistrate concerned not only to identify the type of nuisance alleged to have been committed, but also specifically deal with and spell out in the show cause notice to be given to the person perpetrated and then adequate time is expected to be given to such person to remove such nuisance as provided in clauses 1 to 6 of the Proviso to Sec. 133 of the Code of Criminal Procedure and only on the failure to comply with the directions then, for the reasons to be recorded, he will make the order absolute and proceed further as provided under sub-sections of the Code of Criminal Procedure. Or otherwise, for any reason, if the said procedure has not been followed, the order then would become totally vitiated for the violation of the procedural mandate, simply for the reason that the procedure laid down under Sec. 133 of the Code of Criminal Procedure is based on the principles of natural justice and equality. In short to say, the identification of the nuisance must be stated accurately and clearly by the learned Magistrate with specific obstruction amounting to such nuisance.” Adding the above view of with the basic ingredients spelt out in the above section to the facts of the instant case, it is noticed that the show-clause notice issued by learned Sub Divisional Magistrate on 25. 1995 does not contain any identification of nuisance in specific terms and for this reason alone, the impugned order has become vitiated. 5. It further appears that on the receipt of the said show-cause notice, a written objection was filed on behalf of revision petitioners, stating that they are poor people occupying the said portion and though it is situate within the municipal town, long before they have built several houses, viz., thatched houses, tiled houses and tin-sheeted houses and have been living therein by getting electric service connection, water connection and also by paying property tax, water tax, toilet and other drainage charges to the municipality and that therefore, they have no other alternative place to go, if they are asked to vacate. It is, thus, seen that explanation has been projected to and cause has been shown in the proceedings initiated by learned Magistrate. It is, thus, seen that explanation has been projected to and cause has been shown in the proceedings initiated by learned Magistrate. Under such circumstances, the relevant provision provided under the statue is Sec. 138 of the Code of Criminal Procedure, which runs like this: “Procedure where he appears to show cause: If the person against whom an order under Sec. 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case. (2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.” Secs. 139 and 140 of the Code are also relevant to be followed necessarily by the Magistrate. A casual reading of sub-clauses (1) to (3) to Sec. 138 of the Code would clearly demonstrate the fact that in case a person, when he is required to show cause under Sec. 133 of the Code, appears and shows cause, then it is imperative on the part of the Magistrate to take all the evidence in the matter and satisfy himself as to whether the original order is to be made absolute without any modification or not and if he is not satisfied, it is mandated that no further proceedings will be allowed. It is, thus seen that pucca enquiry by recording evidence both oral and documentary is necessarily to be done, upon which the Magistrate shall necessarily arrive at a full satisfaction about the final orders or the orders to be issued with such modification. The cumulative effect of Sec. 138 has thus envisaged and warranted a complete enquiry like an enquiry to be conducted in summons case and if such is the legal exercise mandate, then the court cannot abdicate such legal exercise while passing orders under this chapter. If the above principles is looked into along with the facts of the instant case, one cannot dispute that the learned Magistrate, while passing the impugned order has not followed the legal norms as clearly spelt out under Sec. 138 of the Code of Criminal Procedure. If the above principles is looked into along with the facts of the instant case, one cannot dispute that the learned Magistrate, while passing the impugned order has not followed the legal norms as clearly spelt out under Sec. 138 of the Code of Criminal Procedure. It is, thus seen that the impugned order lacks every legal sanctity and has become vitiated for the aforesaid reasonings. In short to say, the written objection placed by and on behalf of revision petitioners has not even been considered, nor any oral evidence has been recorded, nor any opportunity given to revision petitioners or no symptom of application of mind by learned Magistrate to arrive at satisfaction to identify the full compliance of the legal mandate above referred to has been found. For all the said reasonings, I am fully constrained to hold that the impugned order is totally vitiated and accordingly liable to be set aside. 6. However, the ends of justice would require me to send the whole back to the learned Sub Divisional Magistrate, Sivakasi, for fresh consideration, after giving full opportunity for recording oral and documentary evidence, if any, by both the parties and to dispose of the case in accordance with the procedural law, in the light of the above observations. 7. In the result, for all the foregoing reasonings, revision succeeds and accordingly it is allowed. Consequently, the order passed by learned Sub Divisional Magistrate, Sivakasi in his Ku. Va. No. A5/3812/95, dated 35. 1995 is hereby set aside and the whole matter is remitted back for compliance of the directions given above.