D. P. SENGUPTA, J. ( 1 ) IN spite of service of notice nobody appeared on behalf of the opposite party No. 1. ( 2 ) THIS revisional application is against the orders dated 31-12-1998, 21-1-1999 and 9-2-1999 passed by the Executive Magistrate, Alipore in Case No. M-48 of 1998 (arising out of M. P. No. 3358 of 1998 ). ( 3 ) IT is the case of the petitioner that by an Agreement of Tenancy dated 20-3-1984 the present petitioner and his brother were inducted as tenants by the opposite party No. 2 herein and his mother Smt. Urmimala Sinhain respect of one hall I room measuring an area of about 1,000 square feet in the premises No. ha, Braunfield Row, Calcutta-27. The said tenancy is still subsisting and the petitioner has been using the said tenanted premises as a godown for storage of machineries and other articles of which he carries on business at Burrabazar. According to the petitioner the articles, which were kept in the said room, are 1875 pieces of wick stove. 120 carton of baby toy pistol, canter strips and motor parts and the total valuation of the said goods is about Rs. 6 lakhs, it is the case of the petitioner that the opposite party No. 1 with a mala fide motive to evict the present petitioner from his tenanted portion of the said premises, filed an application under Section 133 of the Code of Criminal Procedure before the learned Executive Magistrate, Alipore making various false and frivolous allegations. It was stated in the said application under Section 133 of the Code of Criminal Procedure that the opposite party No. 1 is the owner of the said premises and the petitioner was a licencee in respect of his tenanted premises at a monthly rent of Rs. 50/ -. It was further alleged that the present petitioner left the tenanted room about a year back taking away all his articles and belongings after locking the said room. The opposite party No. 1 further alleged that for few days bad smell was coming out from the said tenanted room causing public nuisance and she prayed for a direction upon the Officer-in-Charge, Ekbalpur P. S. for clearing the tenanted portion after removing the lock there from. The opposite party No. 1 further alleged that for few days bad smell was coming out from the said tenanted room causing public nuisance and she prayed for a direction upon the Officer-in-Charge, Ekbalpur P. S. for clearing the tenanted portion after removing the lock there from. ( 4 ) IT appears that on receipt of the said application the Executive Magistrate by his order dated 24-11-1998 directed the Officer-in-Charge, Ekbalpur P. S. to enquire and report. A report was submitted by the Officer-in, Charge, Ekbalpur P. S. stating that the opposite party No. I is the owner of the premises and the present petitioner was holding a temporary licence in respect of a room at a monthly rent of Rs. 50/ -. It was further stated in the said report that some obnoxious smell was coming out from inside the said room, which was Injurious to health. ( 5 ) THE learned Advocate for the petitioner submits that the report submitted by the police was concocted one and the same was made without holding any enquiry in the locality. The learned Advocate further submits that-the opposite party No. 1 is not the owner of the property but in the report she has been described as the owner, Secondly, the petitioner was inducted as a tenant by the husband of the opposite party No. 1 at a monthly rent of Rs. 350/- but in the report it was stated by the police that the present petitioner was the holder of a licence at a monthly rent of Rs. 50/only. Lastly, it is submitted by the petitioners learned Advocate that the police report stating that a bad smell was coming out of the tenanted room is out and out a false report procured by the opposite party No. 1 in collusion with the Officer-in-Charge, Ekbalpur P. S. The learned Advocate refers to Annexure TGT of the application which is seizure list of the articles found in the said room after breaking open the lock. From the items mentioned in the said seizure list it becomes clear that all the items are made of iron and tin and no bad smell can come out from the said articles. From the items mentioned in the said seizure list it becomes clear that all the items are made of iron and tin and no bad smell can come out from the said articles. ( 6 ) IT is submitted by the petitioner's learned Advocate that the opposite party No. 1 in collusion with the Officer-in-Charge, Ekbalpur P. S. broke open the lock of the tenanted room and removed all the articles stored therein. After removing the goods the said room was locked by the opposite party No. 1 and guards were posted. ( 7 ) IT appears that on 4-2-1999 the present petitioner filed an application before the learned Executive Magistrate, Alipore, stating that he was a bona fide tenant under the opposite party No. 2 since 1984 in respect of the said tenanted room and the opposite party No. 1 by suppressing the material facts, misrepresentation and suppression of notice obtained an ex-parte order to dispossess the petitioner from lawful tenancy. The present petitioner also prayed for restoration of possession of the said tenanted godown in question. The petitioner also filed an application under Section 340 of the Code of Criminal Procedure for initiating appropriate proceeding against the opposite party No. 1 for making false statements on oath. Both the applications as aforesaid were taken up for hearing by the learned Magistrate, who by his order dated 9-2-1999 rejected both the petitions on the ground that there was no scope for reopening the case at that stage. ( 8 ) FROM a reading of Section 133 of the Code of Criminal Procedure it becomes clear that whenever a District Magistrate or a Sub-Divisional Magistrate or any Executive Magistrate, on receiving the report of a police officer or other information and on taking such evidence, considers that any unlawful obstruction or nuisance should be removed from any public place such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance within a time to be fixed in the order. Section 133 (1) also provides that if such person objects to remove such obstruction or nuisance, he will be directed to appear before the learned Executive Magistrate at a time and place to be fixed by the order and to show cause as to why the order should not be made absolute. Section 133 (1) also provides that if such person objects to remove such obstruction or nuisance, he will be directed to appear before the learned Executive Magistrate at a time and place to be fixed by the order and to show cause as to why the order should not be made absolute. ( 9 ) THE person against whom conditional order is issued will have to be called upon to comply with the order (conditional order) or to show cause as stated in Section 133 (1) of the Code. The compliance of this formality is essential in observing the principle of natural justice. Only on such compliance the Magistrate gets jurisdiction to proceed further under Sections 137 and 138 of the Code of Criminal Procedure. ( 10 ) FROM the order-sheet it appears that on receipt of the application the learned Magistrate by his order dated 24-11-1998 directed the Officer-in-Charge, Ekbalpur P. S. to enquire and report. On the next date, i. e. , on 22-12-1998, police report was received and the matter was adjourned till 31-12- 1998 for order. On 31-12-1998 the learned Magistrate on being satisfied from the police report that a nuisance has been caused in the scheduled room of the premises at the instance of the present petitioner/opposite party, drew up a proceeding under Section 133 of the Code of Criminal Procedure and directed the opposite party (present petitioner) to show cause. It is really surprising that the learned Magistrate directed the notice to be served through District Nazir, which is totally unprecedented. Section 134 of the Code of Criminal Procedure provides that an order under Section 133 (1) of the Code of Criminal Procedure shall be served on the person against whom it is made in the manner provided for service of summons. So, in case of a service of a conditional order under Section 133 (1) the provisions of Sections 62, 63, 64 and 65 of the Code are to be followed. But in the instant case such procedure has not been followed. Section 62 of the Code of Criminal Procedure provides that a summons under the Code shall have to be served by a police officer. It is really surprising why the learned Magistrate made a departure from the specific provision in the Code and directed the notice to be served through the District Nazir. Section 62 of the Code of Criminal Procedure provides that a summons under the Code shall have to be served by a police officer. It is really surprising why the learned Magistrate made a departure from the specific provision in the Code and directed the notice to be served through the District Nazir. ( 11 ) FROM the impugned order it appears that the learned Magistrate failed to pass any conditional order as required under Section 133 (1) of the Code of Criminal Procedure, which is condition precedent in assuming the Jurisdiction by the learned Magistrate under Section 133 (1) of the Code of Criminal Procedure. In absence of such conditional order the entire proceeding becomes vitiated and on this score alone the impugned orders are liable to be quashed. ( 12 ) ON 21-1-1999 the learned Magistrate passed an ex parte order thereby making the order dated 31-12-1998 absolute. The Magistrate also directed the Officer-in-Charge, Ekbalpur P. S. to see that the nuisance is removed from the scheduled room by the petitioner/opposite party No. 1 after making a list of articles which are kept inside the room in presence of the police officer. The Magistrate in this way disposed of the case. ( 13 ) I have carefully gone through the impugned orders as also other relevant documents and I am of the opinion that the entire proceeding under Section 133 of the Code of Criminal Procedure is vitiated and the impugned orders were passed in violation of the mandatory provisions of the said section. A proceeding under Section 133 of the Code of Criminal Procedure is not intended to settle private dispute nor it can be used as a substitute to settle civil dispute. In my opinion, the omission on the part of the learned Executive Magistrate to draw up a preliminary order, which is a sine qua non for initiating a proceeding under Section 133 of the Code of Criminal Procedure, has made all the subsequent orders unsustainable and vitiated. In my opinion, the omission on the part of the learned Executive Magistrate to draw up a preliminary order, which is a sine qua non for initiating a proceeding under Section 133 of the Code of Criminal Procedure, has made all the subsequent orders unsustainable and vitiated. ( 14 ) THE provision of sub-section (I) of Section 141 of the Code of Criminal Procedure provides that if the Magistrate's order is reasonable and proper the Magistrate is bound to make the order absolute under Section 138 of the Code of Criminal Procedure and he is bound under Section 141 (1) of the Code of Criminal Procedure to give notice to the person against whom the order was made and he shall require that person to carry out the order within certain time to be fixed in the said notice and shall inform him that in case of disobedience he will be liable to the penalty provided by Section 188 of the Indian Penal Code. Section 141 (1) of the Code of Criminal Procedure is mandatory and the Magistrate has no discretion in this matter. ( 15 ) FROM a careful perusal of order-sheet it appears to me that the learned Executive Magistrate failed to comply with the mandatory provisions of Code. The learned Magistrate drew up a proceeding under Section 133 of the Code of Criminal Procedure, but he failed to pass a conditional order which is sine quo non for initiating a proceeding under Section 133 of the Code of Criminal Procedure. Next, the learned Magistrate directed a notice to be served upon the opposite party in violation of the provisions of Section 134 of the Code of Criminal Procedure. There was no valid service of notice upon the present petitioner. The learned Magistrate proceeded ex parte and after recording the evidence of the 1st party he made the order dated 3 1-12-1998 absolute. Even after that the Magistrate did not care to comply with the provision of Section 141 (1) of the Code of Criminal Procedure which is also a mandatory provision. The learned Magistrate proceeded ex parte and after recording the evidence of the 1st party he made the order dated 3 1-12-1998 absolute. Even after that the Magistrate did not care to comply with the provision of Section 141 (1) of the Code of Criminal Procedure which is also a mandatory provision. ( 16 ) AFTER careful consideration of all the papers and documents as also the entire order-sheet I am of the opinion that the present petitioner, who was admittedly a tenant in respect of the tenanted god own in question, was wrongly evicted from his lawful tenancy by an order passed in a proceeding under Section 133 of the Code of Criminal Procedure. The learned Magistrate passed the impugned orders either in total ignorance of law or in utter disregard to the mandatory provisions of law. In my opinion taking advantage of an illegal order passed by the learned Magistrate in a proceeding under Section 133 of the Code of Criminal Procedure the present petitioner was evicted from his lawful tenancy. ( 17 ) THE learned Advocate Mr. Asim Kumar Roy appearing for the State in his usual fairness submitted that the impugned orders were passed in violation of the mandatory provisions of the Code and such, orders cannot be supported. ( 18 ) NOW, the question is whether the possession can be restored to the present petitioner by appropriate direction from this Court. The learned Advocate of the petitioner cited a Judgment reported In 1997 Cal. Cr. L. R. 2161. The learned Single Judge of this Court relying on a Judgment of the Apex Court reported in 1964 (2) S. C. R. 1492 held: Md. Nasim dispossessed Salman Bibi because of the order passed by the learned Magistrate under Section 144 (2), Cr. P. C. Maxim Altus Curiae Nemainem Gravabit clearly means that an act of Court shall prejudice no man. The Supreme Court in case of Jang Singh v. Brijlal has laid down that there is no higher principle for the guidance of Court than one that no act of Courts shall harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court, he should be restored to the possession, he would have occupied but for the mistake. The learned Advocate cited another judgment reported in 1989 Cal. Cr. The learned Advocate cited another judgment reported in 1989 Cal. Cr. L. R. 62, In the said judgment it was held as follows: Whenever a Court entertains a matter and passes an ex. parte order and if anything is accomplished pursuant to the said order. and the said Court at a subsequent stage finds that such an order ought not to have been made, it is the duty of the Court to see that the things are brought to proper shape and size and if anything wrong is committed the same should be undone and the parties should not take an advantage of any order which has been obtained by suppression of facts. The question is as to whether the petitioner has the right to erect the wall or he has no right to erect the wall the same must be decided by the Civil Court. I have carefully gone through the judgments referred to above and I am of the opinion that those two judgments are very much relevant and applicable in this case. ( 19 ) IN the result the revisional application succeeds and the same is allowed. The impugned orders are set aside. The learned Magistrate is directed to see that the possession of the tenanted room in question is restored and handed over to the present petitioner along with articles within a period off our weeks from the date of communication of this order and if necessary, the learned Magistrate will also provide necessary police help for such restoration of possession. ( 20 ) IF urgent xerox certified copy of this order is applied for, the department is directed to deliver the same within a week from the date of deposit of requisite stamps and folios. Petition allowed.