Order The petitioner has prayed to quash the order dated 9.9.2002 (Annexure-6) passed by the Sub-Divisional Magistrate, Rajmahal in Cr. Misc. No. 451 of 2001 whereby the petitioner was restrained from operating the lease hold mines. 2. The petitioner is the proprietor of Victor Mining Industries and the mining lease hold area had been leased by the State Government in the name of his mother late Karuna Noel Hembrom on 16th May, 1985 for a term of 20 years and on 11th August, 1981 by a lease deed executed on 16th May, 1995. The area consists of 36.5 acres at village Saidpur Buzmrug No. 21. Besides those areas there are other plots included in the lease deed after the death of his mother. Petitioner filed application dated 14th September, 1995 requesting the Government of Bihar to allow him to operate the mining works for the remaining period of lease as successor of his mother. Additional Secretary, Mines and Geology Department, Government of Bihar allowed the petitioner to succeed his mother as a lessee and granted permission to operate the mines. Prior to the expiry of the lease period petitioner applied for renewal of the lease on 17th December, 1999. As per direction he submitted document to the respondent Assistant Mining Officer, Sahebganj but the Deputy Commissioner, Sahebganj on the report of the Sub-Divisional Officer by order dated 14th December, 2001 ordered to stop the mining work and a proceeding under Section 133 of the Cr.P.C. was started and by the impugned order under challenge the Rule was made absolute under Section 136 & 138 of the Cr. P.C. against this petitioner. 3. Learned Counsel for the petitioner has submitted that admittedly the petition for renewal of mining operation is pending before the authorities. Section 22 sub-Section (c) provides that:- "If an application for the renewal of a mining lease made within the time referred to in sub-rule (1) is not disposed of by Collector before the date of expiry of the lease, the period of that lease shall be deemed to have been extended by a further period of 90 days or ending with the date of receipt of the orders of the Collector thereon, whichever is shorter." 4. In this present case the order has been passed on the application for renewal of the mining lease operation hence as per the provision referred to above it shall be deemed for mining lease is still continuing till the application is disposed of. 5. Learned Counsel for the petitioner has further submitted that the mining authorities had informed all the Deputy Commissioners including the Deputy Commissioner, Sahebganj under letter No. 273 dated 21st March, 2002 (Annexure-5) directing that the mining lease holders may be allowed for mining operation. 6. Learned J.C. to G.P.-II has submitted that the impugned order of the learned S.D.M. (Annexure-6) is itself clear that the mining lease operation is 27 yards far from the main road where old Zama Masjid is situated. Due to blasting of the mine there is every chance of danger that the zama Masjit may be damaged. Moreover the mining lease licence has not been renewed hence he found that it was nuisance to the area and made absolute stopping the mining operation against this petitioner under Section 136 and 138 of the Cr.P.C. 7. Learned J.C. to G.P.-II has also submitted that it would be better for this petitioner to move before any Civil Appellate Jurisdiction including filing of Civil Writ Petition regarding his relief. Learned S.D.M. has only concerned to maintain that no one creates nuisance on his land. 8. Admittedly, mining lease operation has not been renewed but the application is still pending before the competent court, it will be deemed that he has been given licence to operate the mining till his application is disposed of. Annexure-5 is the letter of the Director of Mines, whereby the Deputy Commissioner, Sahebganj was informed that the petitioner be directed to operate the mining within a leasehold area. Annexure-5 is the letter of Director of Mines, Jharkhand, addressed to all the Deputy Commissioners, requesting to vacate the order regarding stopping of mining operation by the petitioner. 9. Learned S.D.M. while passing the order under Section 136 Cr. P.C. and making the Rule absolute under Section 136 and 138 Cr. P.C., he should have followed by prosecuting the petitioner under Section 188 Cr.P.C. (sic-IPC ?). 9. Learned S.D.M. while passing the order under Section 136 Cr. P.C. and making the Rule absolute under Section 136 and 138 Cr. P.C., he should have followed by prosecuting the petitioner under Section 188 Cr.P.C. (sic-IPC ?). Moreover, Section 138 Cr.P.C. provides that:- "Sub-section (1) "if the person against whom the order under Section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons cases". Sub-Section (2) provides that "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 orders shall be made absolute without modification or, as the case may be, with such modification." Subsection (3) provides that "if the Magistrate is not so satisfied, no further proceedings shall be taken in the case." 10. In this present case, the learned S.D.M. has acted on his own motion on the report of the Circle Officer under Section 133 Sub-section (1) clause (a) for removal of unlawful obstruction or nuisance. 11. As the lower court has not taken any evidence in a summary way before passing the order making it absolute under Section 136 and 138 Cr.P.C. the order cannot be sustained in the eye of law. 12. In view of this fact the order is set aside and is remitted back to the learned court below to re-consider the matter after recording evidence in summary manner and disposed of in accordance with law. 13. The petitioner may raise all the points in the court below, which has been placed in this Writ Petition annexing some documents which will be considered by the court below before final disposal of this case. 14. With these observations, this Writ Petition is disposed of.