1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.01.2011 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.(MD).No.798 of 2011 and M.P.No.1 of 2011 M.Thirupathy : Petitioner Vs. 1.The Collector, Virudhunagar District, Virudhunagar. 2.The District Revenue Officer, Virudhunagar District, Virudhunagar. 3.The Tahsildar, Virudhunagar Taluk, Virudhunagar District. 4.Subbiahgani, S/o.Shanmughasundaram, Chinnaramalingapuram, Virudhunagar Taluk, Virudhunagar District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the third respondent to consider the petition dated 26.12.2010 and in consequent thereof forbear the second respondent from giving license to the fourth respondent to start fire works in the Survey Nos.15/1, 15/4, 15/2 and 16/1 in Ramasamypuram Village of Virudhunagar Taluk, Virudhunagar District. For Petitioner : Mr.S.Ravichandran For Respondents1to3 : Mr.R.Janakiramalu Special Government Pleader 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 third respondent to consider the petition dated 26.12.2010 and in consequent thereof forbear the second respondent from giving license to the fourth respondent to start fire works in Survey Nos.15/1, 15/4, 15/2 and 16/1 in Ramasamypuram Village, Virudhunagar Taluk, Virudhunagar District. 2. In the affidavit filed in support of the Writ Petition, the petitioner has stated that the fourth respondent herein purchased land https://hcservices.ecourts.gov.in/hcservices/ 2 in Survey Nos.15/1, 15/4, 15/2 and 16/1 in Ramasamypuram Village, Virudhunagar Taluk, Virudhunagar District, which includes a cart road and a public cart track has been in existence from time immemorial for the use of public. It is the grievance of the petitioner that fourth respondent is taking steps to start Fireworks Industry in the said survey numbers. In spite of his repeated representations, no action was taken by the authorities. Hence the petitioner has filed this Writ Petition seeking a direction to the third respondent to forbear the second respondent from giving license to the fourth respondent to start Fireworks Industry in Survey Nos.15/1, 15/4, 15/2 and 16/1 in Ramasamypuram Village, Virudhunagar Taluk, Virudhunagar District. 3. Since the petitioner is seeking to remove the encroachment allegedly put up by some private individuals in the alleged public cart track in his representation dated 26.12.2010, 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. 4. 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 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". 5. 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. https://hcservices.ecourts.gov.in/hcservices/ 3 6. 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. Consequently, connected Miscellaneous Petition is closed. Sd/- Deputy Registrar /True copy/ Assistant Registrar To 1.The Collector, Virudhunagar District, Virudhunagar. 2.The District Revenue Officer, Virudhunagar District, Virudhunagar. 3.The Tahsildar, Virudhunagar Taluk, Virudhunagar District. +1cc to The Special Government Pleader, Advocate SR.2596 +1cc to Mr.S.Ravichandran, Advocate SR.2627 NB SR : 03.02.2011 : 3p/6c ORDER MADE IN W.P.(MD).No.798 of 2011 21.01.2011 https://hcservices.ecourts.gov.in/hcservices/