1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.01.2011 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.(MD).No.641 of 2011 G.Sundaram : Petitioner Vs. 1.The District Collector,Virudhunagar. 2.The Revenue Divisional Officer, Aruppukottai. 3.The Tahsildar, Aruppukottai. 4.The Block Development Officer, M.Rediapatti,Aruppukottai Taluk. 5.The President, Kulasekaranallur Panchayat, Kulasekaranallur, Aruppukottai Taluk. 6.The Junior Engineer, Tamil Nadu Electricity Board, Vellakottai, Aruppukottai Taluk. 7.Thiruvaiammal @ Eluvakkal, W/o.S.Sundaram, Kulasekaranallur, Ramasamy Nagar Post, Aruppukottai Taluk. 8.S.Sundaram, S/o.Subbiah Thevar, Kulasekaranallur, Ramasamy Nagar Post, Aruppukottai Taluk. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus directing the respondents 1 to 5 to remove the encroachment made by the respondents 7 and 8 over the cart track siutate in S.No.83/2 at Kulasekaranallur Village, Aruppukottai Taluk, Virudhunagar District and restore the same as a Cart Track for ever, based on the petitioner's representations dated 22.11.2010 and 11.12.2010. For Petitioner : Mr.S.Raja Jeya Chandra Paul For Respondents1to4 : Mr.R.Janakiramalu Special Government Pleader https://hcservices.ecourts.gov.in/hcservices/ 2 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 respondents 1 to 5 to remove the encroachment made by respondents 7 and 8 over the Cart Track siutate in S.No.83/2 at Kulasekaranallur Village, Aruppukottai Taluk, Virudhunagar District and restore the same as a Cart Track for ever, based on the petitioner's representations dated 22.11.2010 and 11.12.2010. 2. In the affidavit filed in support of the Writ Petition, the petitioner has stated that the land in Survey No.83/2 in the limits of fifth respondent Panchayat is a public cart track and the same has been indicated and classified in the revenue records as "Government Proamboke" and an public cart track has been in existence from time immemorial for the use of public. It is the grievance of the petitioner that respondents 7 and 8 had encroached the said Cart Track in Survey No.83/2 by raising crops and had also raised three asbetos thatched houses therein. 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 respondents for removal of the alleged encroachment. 3. Since the petitioner is seeking to remove the encroachment allegedly put up by some private individuals in the alleged public cart track, 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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. 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 Magistrate shall pass orders within a period of three months thereafter, after affording opportunity to all the persons, who are likely to be affected. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.The District Collector,Virudhunagar. 2.The Revenue Divisional Officer,Aruppukottai. 3.The Tahsildar, Aruppukottai. 4.The Block Development Officer, M.Rediapatti, Aruppukottai Taluk. 5.The President, Kulasekaranallur Panchayat, Kulasekaranallur, Aruppukottai Taluk. 6.The Junior Engineer, Tamil Nadu Electricity Board, Vellakottai, Aruppukottai Taluk. +1cc to Mr.S.Raja Jaya Chandra Paul, Advocate, Sr.No.2051 +one cc to Special Government Pleader, Sr.No. 2103 ORDER MADE IN W.P.(MD).No.641 of 2011 NB/SMA/25.1.2011/9C/3P 19.01.2011 https://hcservices.ecourts.gov.in/hcservices/