Madras High Court
M.Chokkalingam vs The Revenue Divisional Officer on 13 June, 2022
W.P.(MD).No.11333 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.11333 of 2022
M.Chokkalingam .. Petitioner
Vs.
1.The Revenue Divisional Officer,
Sivagangai,
Sivagangai District.
2.The Inspector of Police,
Thiruppachetti Police Station,
Sivagangai District.
3.Sethupillai ..Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, for
the issuance of Writ of Mandamus, directing the 1st respondent to remove the
unlawful obstruction/inconvenience made by the 3rd respondent, near the North
side Entrance of the Arulmigu “Sri Malaimandala Srinivasa Perumal Temple,
situated in Survey No.177/8, West side of the Thiruppachetti to Padamathur
Road, Thiruppachetti, Sivagangai District.
For Petitioner : Mr.R.Murugappan
For R1 & R2 : Mr.N.Satheesh Kumar
Additional Government Pleader
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W.P.(MD).No.11333 of 2022
ORDER
(Order of the Court was made by S.S.SUNDAR.J.,)
This writ petition is filed for issuance of a Writ of Mandamus
directing the first respondent to remove the unlawful obstruction/inconvenience
made by the third respondent, near the North side Entrance of the Arulmigu
“Sri Malaimandala Srinivasa Perumal Temple, situated in Survey No.177/8,
West side of the Thiruppachetti to Padamathur Road, Thiruppachetti,
Sivagangai District.
2.Heard Mr.R.Murugappan, learned counsel appearing for the
petitioner and Mr.N.Satheesh Kumar, learned Additional Government Pleader
appearing for the respondents 1 and 2.
3.The petitioner is a resident of Thiruppachetti and worshipper of the
Temple called “Sri Malaimandala Srinivasa Perumal Temple”situated in Survey
No.177/8.
4.It is the case of the petitioner that the entrance of the Temple near
the North Side to reach the Temple from the main road, is encroached by the
third respondent and has caused obstruction, inconvenience and nuisance to the
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W.P.(MD).No.11333 of 2022
general public and devotees. Therefore, the petitioner has sent a representation
on 12.05.2022 to the respondents 1 and 2, to initiate action against the third
respondent for removal of unlawful obstruction, by exercising power under
Section 133 Cr.P.C. Since the respondents 1 and 2 have not initiated any action
under Section 133 Cr.P.C., for removal of unlawful obstruction, the above writ
petition is filed.
5.Section 133 of the Criminal Procedure Code, reads as follows:
“133. Conditional order for removal of nuisance.-(1)Whenever a
District Magistrate or a Sub- divisional Magistrate or any other Executive
Magistrate specially empowered in this of behalf by the State Government, on
receiving the report of a police officer or other information and on taking
such evidence (if any) as he thinks fit, considers-
(a)that any unlawful obstruction or nuisance should be removed from any
public place or from any way, river or channel which is or may be lawfully
used by the public; or
(b)that the conduct of any trade or occupation, or the keeping of any goods or
merchandise, is injurious to the health or physical comfort of the community,
and that in consequence such trade or occupation should be prohibited or
regulated or such goods or merchandise should be removed or the keeping
thereof regulated; or
(c)that the construction of any building, or, the disposal of any substance, as
is likely to occasion configuration or explosion, should be prevented or
stopped; or
(d)that any building, tent or structure, or any tree is in such a condition that it
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W.P.(MD).No.11333 of 2022
is likely to fall and thereby cause injury to persons living or carrying on
business in the neighbourhood or passing by, and that in consequence the
removal, repair or support of such building, tent or structure, or the removal
or support of such tree, is necessary; or
(e)that any tank, well or excavation adjacent to any such way or public place
should be fenced in such manner as to prevent danger arising to the public;
or
(f)that any dangerous animal should be destroyed, confined or otherwise
disposed of, such Magistrate may make a conditional order requiring the
person causing such obstruction or nuisance, or carrying on such trade or
occupation, or keeping any such goods or merchandise, or owning,
possessing or controlling such building, tent, structure, substance, tank, well
or excavation, or owning or possessing such animal or tree, within a time to
be fixed in the order-
(i)to remove such obstruction or nuisance; or
(ii)to desist from carrying on, or to remove or regulate in such manner as may
be directed, such trade or occupation, or to remove such goods or
merchandise, or to regulate the keeping thereof in such manner as may be
directed; or
(iii)to prevent or stop the construction of such building, or to alter the
disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove
or support such trees; or
(v)to fence such tank, well or excavation; or
(vi)to destroy, confine or dispose of such dangerous animal in the manner
provided in the said order; or, if he objects so to do, to appear before himself
or some other Executive Magistrate subordinate to him at a time and place to
be fixed by the Order, and show cause, in the manner hereinafter provided,
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W.P.(MD).No.11333 of 2022
why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in
question in any Civil Court. Explanation- A" public place" includes also
property belonging to the State, camping grounds and grounds left
unoccupied for sanitary or recreative purposes.“
Since a public place is defined as one, which includes any property belonging
to the State, camping grounds and grounds left unoccupied for sanitary or
recreative purpose, the learned counsel appearing for the petitioner would state
that the place in front of the Temple, which is classified as Sarkar poramboke,
can be treated as a public place and action under Section 133 of Cr.P.C., is
warranted.
6.The learned Additional Government Pleader appearing for the
official respondents submitted that earlier the third respondent has filed a suit
and obtained an order of injunction as against the official respondents and
therefore, the respondents filed a petition before the Civil Court for vacating
the same. However, the learned counsel appearing for the petitioner has
produced a copy of the plaint in O.S.No.138 of 2011 before this Court as well
as the judgment and decree passed in A.S.No.2 of 2015 by the Sub-Court,
Sivagangai.
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W.P.(MD).No.11333 of 2022
7.From the documents furnished by the learned counsel appearing for
the petitioner, it appears that earlier, the third respondent has filed a civil suit
against the State and trustees of the Temple and obtained a decree of injunction
and restraining the defendants in the suit from interfering with the peaceful
possession and enjoyment of the third respondent. However, on appeal
preferred by the defendants 3 and 4, before the Sub-Court, Sivagangai, the
decree of the trial Court passed in O.S.No.138 of 2011 by the District Munsif
Court, was set aside and the injunction was modified to the effect that the
defendants shall not interfere with the possession of the third respondent
otherwise than by due process of law. It is seen that further direction was issued
by the Civil Court to the effect that the second defendant should hold an
enquiry as per the direction of this Court issued in W.P(MD)No.9344 of 2011
dated 22.08.2011.
8.The learned counsel appearing for the petitioner submitted that the
direction in the writ petition was referred to in the judgment of the lower
appellate Court and the nature of direction to the second defendant was to
remove the encroachment of the third respondent. It is seen that the third
respondent approached the civil Court only after getting the order of this Court
in the writ petition. From the judgment in A.S.No.2 of 2015 before the Sub-
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W.P.(MD).No.11333 of 2022
Court, Sivagangai, dated 14.11.2018, this Court is of the view that the Civil
Court has accepted the fact that the third respondent is an encroacher of the
Government poramboke land. Therefore, Tahsildar concerned as directed by
this Court earlier in the writ petition, has got power.
9.Since the Tahsildar/Revenue Divisional Officer is the competent to
initiate proceedings to remove the unlawful obstruction / nuisance caused by
any one in any public place in terms of Section 133 of Cr.P.C., this Court,
without expressing any opinion on the merits of the petitioner's claim, direct the
Revenue Divisional Officer or the Tahsildar concerned, to take appropriate
action either under Section 133 of Cr.P.C., or under the provision of the Land
Encroachment Act, as the case may be, to remove the encroachment made by
the third respondent, after following due process of law. It is made clear that the
third respondent shall be put on notice, before taking action under the Land
Encroachment Act or under Section 133 of Cr.P.C. The said exercise shall be
completed within a period of twelve weeks from the date of receipt of a copy of
this order.
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W.P.(MD).No.11333 of 2022
With these directions, this Writ Petition is disposed of. No costs.
(S.S.S.R.J.,) (S.S.Y.J.,)
13.06.2022
Index : Yes / No
Internet: yes / No
Ns
To
1.The Revenue Divisional Officer,
Sivagangai,
Sivagangai District.
2.The Inspector of Police,
Thiruppachetti Police Station,
Sivagangai District.
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W.P.(MD).No.11333 of 2022
S.S. SUNDAR, J.,
and
S.SRIMATHY,J.,
Ns
W.P.(MD).No.11333 of 2022
13.06.2022
https://www.mhc.tn.gov.in/judis
