1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.02.2011 CORAM: THE HONOURABLE Mr.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE Mr.JUSTICE R.SUBBIAH W.P.(MD)No.2322 of 2011 A.Gurusamy ... Petitioner Vs. 1.The District Collector, Madurai District, Madurai. 2.The Tahsildar, Madurai South Taluk, Madurai District. 3.The Executive Officer, Thiruparamkundram Municipality, Thiruparamkundram, Madurai District. 4.Santhanam ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the 1st respondent to consider the petitioner's representation dated 02.02.2011 for removal of encroachment made by the 4th respondent in the Pubic Pathway situated in S.No.141, Thirupparamkundram Village Group, Madurai South Taluk, Madurai District. For Petitioner : Mr.V.Kannan For Respondents : Mr.R.Janakiramulu, Spl.G.P. O R D E R (Order of the Court was made by N.PAUL VASANTHAKUMAR,J.) The prayer in the Writ Petition is for issuing a Writ of Mandamus, directing the 1st respondent to consider the petitioner's representation dated 02.02.2011 for removal of encroachment made by the 4th respondent in the Public Pathway situated in S.No.141, Thirupparamkundram Village Group, Madurai South Taluk, Madurai. 2.In the affidavit filed in support of the Writ Petition, the petitioner has stated that the petitioner is the owner of a land to the extent of 93 sq.mt. situated in S.No.141, Thirupparamkundram https://hcservices.ecourts.gov.in/hcservices/ 2 Village Group, Madurai South Taluk, Madurai District. According to the petitioner, the said land was assigned to him as a free house site patta by the 2nd respondent in the year 2009, which is coming under the jurisdiction of the 3rd respondent Municipality. The petitioner constructed a tiled house in the said land and paying land tax to the Government and he is using the public pathway situated on the western side of his patta land and it is the only way to reach his house from the main road. 3.It is the contention of the petitioner that the 4th respondent is obstructing the pathway by construction septic tank and also installing some pillar stones. Hence, the petitioner made a representation to the respondents 1 to 3 on 02.02.2011 to remove the encroachment made by the 4th respondent. Since no action is taken till date, he filed the present Writ petition for the relief stated supra. 4. Since the petitioner is seeking to remove the encroachment allegedly put up by the 4th respondent in the alleged public pathway in his representation dated 02.02.2011, the remedy open to the petitioner is to make a representation before the jurisdictional Executive Magistrate under Section 133 of Cr.P.C, who is vested with the power to make local enquiry and probe the local situation relating to the allegations of obstruction or encroachment on a public land and pass orders in accordance with law. 5. The same is the view taken by a Division Bench of this Court in the case of R.Munuswamy vs. The District Collector, Vellore & 8 others reported in 2008 (4) LW 295. In the said judgment, the Division Bench relied on the Judgments of the Supreme Court reported in 1980(4) SCC 162 - Municipal Council vs. Shri Vardichan, 2005(9) SCC 36 - Kachrulal Bhagirath Agrawal vs. State of Maharashtra, 2003 (7) SCC 389 - State of M.P. vs. Kedia Leather & Liquor Limited, AIR 1964 SC 1419 - Thansingh vs. Superintendent of Taxes and 1997(5) SCC 536 - Mafatlal Industries vs. Union of India and held in paragraphs 17, 23 and 24 as under: "17. Now the next question is whether in view of the provisions of Sections 133 to 143 of the Code, it is judicially prudent for this Court to exercise its jurisdiction under Article 226 of the Constitution by entertaining cases on allegation of encroachment of the public land as made in a writ petition? ... ... ... 23. In view of such consistent view of the Supreme Court, the exercise of writ jurisdiction for removal of encroachment or obstruction on public land, especially when a specific efficacious remedy for the same has been provided under Sections 133 to 143 of the Code, in our judgment, would be both inappropriate and improper. 24. For the reasons aforesaid, we dismiss this writ petition. However, we do not wish to make any https://hcservices.ecourts.gov.in/hcservices/ 3 observation on the merits of the petitioner's claim. We make it clear that if the petitioner is so advised, he is at liberty to approach the Magistrate under Section 133 of the Code since there is no limitation prescribed for invoking the jurisdiction of the Magistrate under Section 133 of the Code". 6. After holding so, the said Writ Petition was disposed of by the Division Bench of this Court by stating that if the petitioner was so advised, he was at liberty to approach the Magistrate under Section 133 of Crl.P.C, since there was no limitation prescribed for invoking the jurisdiction of the Magistrate under Section 133 of Cr.P.C. 7. Following the said decisions of the Supreme Court and the Division Bench of this Court, the present Writ Petition is dismissed granting liberty to the petitioner to move the jurisdictional Executive Magistrate for initiating proceedings under Section 133 of Cr.P.C. The petitioner shall file his representation within a period of two weeks from the date of receipt of a copy of this order and the concerned Executive Magistrate shall pass orders within a period of three months thereafter, after affording opportunity to all the persons, who are likely to be affected, if any order is passed. No costs. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.The District Collector, Madurai District, Madurai. 2.The Tahsildar, Madurai South Taluk, Madurai District. 3.The Executive Officer, Thiruparamkundram Municipality, Thiruparamkundram, Madurai District. +1cc to Mr.V.Kannan, Advocate, Sr.No.10497 +one cc to Special Government Pleader, Sr.No.10807 W.P.(MD)No.2322 of 2011 28.02.2011 nbj SMA/11.3.2011/6C/3P https://hcservices.ecourts.gov.in/hcservices/