Madras High Court
K.Ramesh vs The Revenue Divisional Officer on 18 October, 2022
Crl.O.P.(MD) No.15991 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.10.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.O.P (MD) No.15991 of 2022
and
Crl.M.P(MD) No.10562 of 2022
K.Ramesh ...Petitioner
-vs-
1. The Revenue Divisional Officer
Sub Divisional Magistrate,
Palani, Dindigul District
2. The Tahsildhar
Taluk Office
Oddanchathiram
Dindigul District
3. Chellamuth Gownder ...Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the records pertaining to the order made in Mu.Mu.No.
8468/2021/A6 dt.16/8/2022 on the file of first Respondent under Section
133 of Cr.PC and quash the same.
1/10
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Crl.O.P.(MD) No.15991 of 2022
For Petitioner : Mr.M.Thirunavukkarasu
For R1 and R2 : Mr. Veerakathiravan
Additional Advocate General
Assisted by
Mrs. K.Christy Theboral
Additional Government Pleader
Mr. B.Nambiselvan
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed to quash the order
made in Mu.Mu.No.8468/2021/A6 dt.16/8/2022 on the file of first
Respondent under Section 133 of Cr.PC.
2. The learned Counsel for the Petitioner would submit that the third
Respondent had preferred complaint to the second Respondent regarding
the right of pathway through the Petitioner’s agricultural land, which was
objected by the Petitioner herein. It is the further contention of the learned
Counsel for the Petitioner that on earlier occasion also the third Respondent
had preferred similar complaint to Tahsildhar and others based on which the
then Revenue Divisional Officer had passed orders on 31.07.2006, which
was agitated by the Petitioner before this Court. The then learned Single
Judge of this Court by an order dated 04.12.2009 had quashed the
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Crl.O.P.(MD) No.15991 of 2022
proceedings of the then Revenue Divisional Officer in Crl.O.P(MD) No.
9001 of 2007 by relying on the reported ruling of the Hon’ble Supreme
Court in the case of State of Madhya Pradesh -vs- Kedia Leather and
Liquor Limited reported in 2003(7)SCC 389.
3. The learned Additional Advocate General appearing for the
Respondents 1 and 2 by way of reply submitted that the grand father of the
Petitioner was assigned land by the State for the landless poor. He has also
filed typed set of papers, wherein sketch prepared by the Respondents 1 and
2 had been furnished. It is the contention as per the sketch in the additional
typed set that the lands in S.No.1047,1048 and 1049 were assigned to the
Petitioner's grand father. The grand father of the Petitioner had not
obliterated the channel carrying water to the fields through the assigned
lands to the adjoining land owners. After several years, the Petitoner had
obliterated the water source by obliterating the water channel and using it
for agricultural field by each of the adjacent land owners had been denied
their right of irrigation, which is one of the condition while assigning land.
The conduct of the Petitioner in obliterating the water course to the land is
in violation of the assignment condition.
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Crl.O.P.(MD) No.15991 of 2022
4. The learned Additional Advocate General invited the attention of
the of this Court in the case of R. Munusamy -vs- The District
Collector,Vellore, Vellore District and others reported in 2008 SCC Online
Mad 595. The relevant portion of the order is extracted hereunder:
“13. In a decision of the Supreme Court in the case of State
of M.P v. Kedia Leather & Liquor Limited reported in 2003 (7)
SCC 389, the learned Judges of the Supreme Court held that the
object and purpose of Section 133 of the Code is essentially to
prevent public obstruction and nuisance and involves a sense of
urgency in the sense that if the Magistrate fails to take recourse
immediately and before irreparable damage would be caused to
the public.
14. Now the question is whether the existence of the
provisions in Local Act under which the encroachment on a public
property can be removed can oust the jurisdiction of the Magistrate
under Section 133 of the Code?
15. This Court has already referred to Section 13 of the
Tamil Nadu Land Encroachment Act, 1905, which saves operation
of other laws and which obviously includes the entire gamut of
provisions from Sections 133 to 143 of the Code.
16. Almost a similar question came up for consideration
before a learned Single Judge of the Madras High Court in the
case of Rajagopala Chettiar v. Samdum Begum reported in AIR
(30) 1943 Madras 357. In the aforesaid case, the learned Judge
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Crl.O.P.(MD) No.15991 of 2022
held that the powers of the Magistrate under Section 133 of the
Code have not been curtailed by the powers conferred under the
local authorities to abate nuisances under Section 44 of the
Madras Public Health Act or under Section 195 of the Madras
Local Boards Act. In the instant case, Section 13 of the local Act
itself is a clear answer, apart from the principles which have been
laid down by the Madras High Court in the aforesaid case of
Rajagopala Chettiar. So it cannot be said that in view of the
provisions of Tamil Nadu Land Encroachment Act, the provisions
of Section 133 of the Code have become otiose.
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?
18. First of all, it is extremely difficult within the
circumspect nature of jurisdiction of a writ court to decide the
factual correctness of such allegations. It often happens when such
allegations are made the only evidence before this Court is the writ
petition supported by an affidavit. The writ court normally does not
take evidence nor is it possible for the writ court to assess the local
situation. But in a proceeding under Section 133 of the Code the
Magistrate is competent to take evidence, make local enquiry and
probe the local situation relating to the allegations of obstruction
or encroachment on a public land. It has been the experience of
this Court that in many cases, on the basis of such allegation of
encroachment, orders have been passed by the writ court, which
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Crl.O.P.(MD) No.15991 of 2022
are subsequently challenged by the persons who are at the
receiving end of such orders, but were not impleaded. As noted
earlier, in a proceeding under Article 226 of the Constitution
detailed factual enquiry is not possible, but a decision whether
obstruction or encroachment has been made on a public land is
essentially a decision on facts and can be reached only after some
factual enquiry. Therefore, this Court feels that this legal question
is required to be settled as many writ petitions have been filed in
this court alleging encroachment/obstruction on public and that is
why this detailed judgment is delivered. Such questions should be
decided by an authority which is entitled to go into the questions of
fact and take evidence, hear the parties and assess the local
situation, if necessary on the basis of a police report and then come
to a decision.
5. It is his further submission that based on the direction of this Court,
those who have encroached the water courses, are removed by the Executive
Magistrate under the Tamil Nadu Land Encroachment Act, 1905. The
Encroachers approach this Court seeking quashing of the proceedings of
the Executive Magistrate. Therefore, the learned Additional Advocate
General seeks this Court to dismiss the petition as having no merits. Also
the Respondent had filed counter giving out details. It is the submission of
the learned Additional Advocate General that on the complaint received
from the villagers who are Aayakaddar's of the water course through the
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Crl.O.P.(MD) No.15991 of 2022
Petitioner’s land. The Tahsildar on instructions from the Revenue
Divisional Officer engaged the service of Firka Surveyor and found
encroachments and a detailed report was submitted by the Tahsildar. Based
on the assistance of Firka Surveyor, all the encroachments were directed to
be removed. At that stage, the Petitioner had approached this Court
seeking to quash the proceedings of the Revenue Divisional Officer. The
learned Additional Advocate General also invited the attention of this Court
to the provisions under Section 133 of Cr.P.C. Therefore, he seeks to
dismiss the petition seeking quashing of the proceedings of the Revenue
Divisional Officer.
6. The submission of the learned Counsel for the Petitioner that it is
the dispute between the Petitioner and the third Respondent who are private
land owners and the Revenue Divisional Officer has no jurisdiction. Passing
orders under Section 133 of Cr.P.C is found unacceptable. In the light of
the submission of the learned Additional Advocate General, the submission
of the learned Counsel for the Petitioner that only civil Court has
jurisdiction and not the first Respondent/Revenue Divisional Officer who
has passed order under Section 133 of Cr.P.C is found unacceptable.
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Crl.O.P.(MD) No.15991 of 2022
Considering the fact that the Petitioner’s grand father was assigned land by
the State Government for the landless poor and the other land owners who
are adjacent to the Petitioner's land are also similarly assigned who are
denied the right of obtaining water from the water channel which had been
obliterted. This is one of the condition precedent while the land was
assigned to the Petitioner. When there is violation of condition, the
authorities are well within their powers to revoke the assigned land and
forefiet the same from the assigned persons. Here the Petitioner had
approached this Court invoking powers under Section 482 of Cr.P.C
seeking to quash the proceedings of the first Respondent, which cannot be
accepted.
7. In the light of the submission made by the learned Additional
Advocate General and in the light of the sketch furnished by him in the
additional typed set of papers and the light of the decision of this Hon'ble
Division Bench of this Court in R. Munusamy -vs- The District
Collector,Vellore, Vellore District and others reported in 2008 SCC Online
Mad 595 to direct the State authorities to remove the encroachment from
the water body and in the light of the provisions under Section 133 of
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Crl.O.P.(MD) No.15991 of 2022
Cr.P.C the order of the first Respondent is found reasonable and accepted.
Further while disposing the earlier Criminal Original Petition by the then
learned Single Judge of this Court, the order of the Hon'ble Division Bench
of this Court was not brought to the knowledge of the then learned Single
Judge
8.In view of the same, the submission made by the learned Counsel
for the petitioner is rejected and this Criminal Original Petition is dismissed.
Consequently connected miscellaneous petition is dismissed.
18.10.2022
Internet:Yes./No
Index:Yes/no
aav
To
1. The Revenue Divisional Officer
Sub Divisional Magistrate,
Palani, Dindigul District
2. The Tahsildhar
Taluk Office
Oddanchathiram
Dindigul District
3.The Additional Public Prosecutor,
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Crl.O.P.(MD) No.15991 of 2022
Madurai Bench of Madras High Court,
Madurai.
SATHI KUMAR SUKUMARA KURUP, J.
aav
CRL.O.P (MD) No.15991 of 2022
18.10.2022
https://www.mhc.tn.gov.in/judis
