1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.01.2011 CORAM: THE HONOURABLE Mr.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE Mr.JUSTICE R.SUBBIAH W.P.(MD)No.212 of 2011 and M.P.(MD)No.1 of 2011 K.Sathiamoorthy : Petitioner Vs. 1.The District Collector, Sivagangai District,Sivagangai. 2.The Tashildar, Ilayankudi Taluk Office, Sivagangai District. 3.P.Jeevadass : Respondents Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus, directing the 1st and 2nd respondents to remove the unlawful encroachment made by the 3rd respondent on poramboke land, which is pathway in Survey No.250/11 at Kaaraikulam Village, Ilayankudi Taluk, Sivagangai District. For Petitioner : Mr.M.Sundhara Sekaran For R1 & R2 : Mr.R.Janakiramalu Special Government Pleader O R D E R (Order of the Court was made by N.PAUL VASANTHAKUMAR.J) The writ petition is filed for a writ of mandamus, directing the respondents 1 and 2 to remove the encroachment allegedly made by the 3rd respondent on poramboke land, which is pathway in Survey No.250/11 at Kaaraikulam Village, Ilayankudi Taluk, Sivagangai District. 2.In the affidavit filed in support of the writ petition, the petitioner claims that his house is situated in Survey No.250/10 at Kaaraikulam village, Indugulam Post, Ilayankudi Taluk, Sivagangai District where the petitioner and his family members are living for many years and adjacent to the said house, a poramboke land in Survey https://hcservices.ecourts.gov.in/hcservices/ 2 No.250/11 measuring an extent of 0.01.68 hectares is available, which is being used as a pathway to reach the petitioner's house and that is the only pathway giving access to his house from the main street. 3.According to the petitioner, the 3rd respondent has encroached the said land and obstructing the pathway. The petitioner has submitted a representation before the first respondent on 25.10.2010 and prayed for removal of the alleged encroachment. Since, the petitioner is seeking to remove the encroachment allegedly put up by the 3rd respondent in the alleged pathway, the remedy open to the petitioner is to make representation before the jurisdictional Executive Magistrate under Section 133 of the Cr.P.C, who is vested with the jurisdiction to make local enquiry and probe the local situation relating to the allegations of obstruction or encroachment in a public land and pass orders. 4.The same is the view taken in the decision reported in 2008 (4) LW 295 - R.Munuswamy vs. The District Collector, Vellore & 8 others. In the said judgment, the Division Bench of this Court 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 https://hcservices.ecourts.gov.in/hcservices/ 3 was so advised, he was at liberty to approach the Magistrate under Section 133 of Cr.P.C, since there was no limitation prescribed for invoking the jurisdiction of the Magistrate under Section 133 of the Cr.P.C. 6.Following the said decisions of the Supreme Court and the Division Bench of this Court, the writ petition is dismissed granting liberty to the petitioner to move the jurisdictional Executive Magistrate for initiating proceedings under Section 133 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 Magistrate shall pass orders within a period of three months thereafter, after affording opportunity to all the persons who are likely to be affected. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To, 1.The District Collector, Sivagangai District, Sivagangai. 2.The Tashildar, Ilayankudi Taluk Office, Sivagangai District. W.P.(MD)No.212 of 2011 06.01.2011 er SMA/24.1.2011/3C/3P https://hcservices.ecourts.gov.in/hcservices/