Oza, J.- 1. This is a reference made by the Additional Sessions Judge Ratlam, for quashing the order dated 23rd February 1976 passed by the Sub-Divisional Magistrate Ratlam.

2. The applicants before the Sub-Divisional Magistrate who are citizens and owners of houses in New Road Ratlam submitted an application before the Sub-Divisional Magistrate on 1-5-1972 under section 133 of the Code of Criminal Procedure for a direction against the Municipal Council Ratlam and Town Improvement Trust Ratlam for removal of nuisance. The nuisance alleged by the applicants has been categorized by the learned Sub-Divisional Magistrate after consideration of the matter in his conditional order dated 2-8-1972 :-

(1) That the Nala which flows in the middle of Ward No. 12 should be so maintained that the rain-water does not collect and does not spread into the houses of the locality. It should be so maintained that the water flows out of the town. It also should be maintained so that the alcohol-plant's dirty water which is full of nauseating smell should not be left in this Nala as it passes through inhabited locality.

(2) That in the alleged area the drains which are incomplete be made in such a manner that the dirty water flows out and does not collect.

(3) That between the college boundary and on the road-side there are big pits-kachha drains where dirty water collects and becomes a breeding centre for mosquitoes which should be stopped.

In response to this order the parties were given opportunity of hearing and to lead evidence. It is strange that in a proceeding of this nature which is for removal of nuisance it took four yeas for the Sub-Divisional Magistrate to pass the final order as the proceedings disclose that the public authorities who were expected to come forward in straight-forward manner for clearance of nuisance only raised all kinds of objections and filed replies which reflect on the authorities managing the municipal councils at that time. Ultimately the Sub-Divisional Magistrate passing the order dated 23-2-1976 and against this order two separate revision petitions were filed before the Court of Sessions by the Municipal Council as well as by tile Town Improvement Trust, Ratlam and by a common order the learned Sessions Judge has made this reference. Before passing this order, in spite of a number of opportunities given to the parties i.e. the Municipal Council and the Town Improvement Trust, no evidence was led.

3. One of the grounds made by the learned Sessions Judge for making this reference is that in the conditional order passed by the Sub-Divisional Magistrate under section 137 (3) Cr. P.C. some moditification has been made when the learned Magistrate ultimately passed the final order and according to the learned Additional Sessions Judge this is therefore an error which is sufficient to set aside the order passed by the Sub-Divisional Magistrate. The learned Additional Sessions Judge also found that the order which is passed finally in which directions have been given to the non-applicants is vague and he therefore felt that it is not possible to carry it out; and for that reason also the learned Judge felt that the order deserves to be set aside.

4. So far as the question of modification of the conditional order is concerned, the learned Additional Sessions Judge felt that Direction No.1 which was contained in the conditional order and is also contained in the final order has been substantially modified. In fact, there is hardly any modification in substance. Direction No.1 in the conditional order and the final order remains the same and it could not be contended that it was modified so as to make a new direction of which the petitioners before the Sessions Court had no notice. Direction No.1 contained in the conditional order reads:

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