Challenging the order passed under Section 133 of Cr.P.C, directing the petitioner to remove the encroachment made in the public pathway, the present criminal revision case has been filed.
2.The petitioners said to have encroached a public pathway in Sy.No.68/36 in Uthayachi Village, Devakottai Taluk. Hence, based on the complaints given by the general public, seeking action under
Section 133 Cr.P.C, before the Revenue Divisional Officer, Devakottai, a show-cause notice was issued to the petitioners and other encroachers, for which, the petitioners also sent a reply notice. After receipt of the reply, the Revenue Divisional Officer, Devakottai conducted an enquiry. On enquiry, it is found that the land in the above survey number has been classified as ?annatheenam land? and the petitioners have been encroaching the public pathway and thereby obstructing the other general public from using the pathway. After enquiry, the Revenue Divisional Officer, Devakottai passed a final order directing the Tahsildar, Devakottai to remove the encroachments in the above said survey number and thereby provide a common pathway in that place. Now, challenging the same, the present Criminal Revision Case has been filed.
3.I have heard Mr.Jayaprakash, learned counsel appearing for the petitioners, Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor, appearing for the respondents 1 and 12 and Mr.S.Manikandan, learned counsel appearing for the respondents 2 to 4 and 6 to 10 and perused the records carefully.
4.The learned counsel appearing for the petitioners would contend that before passing the final order under
Section 133 Cr.P.C, the respondent/ Revenue Divisional Officer, Devakottai did not draw up the preliminary order, under
Section 133(1) Cr.P.C and without following the procedure, contemplated under
Section 138 Cr.P.C, the Executive Magistrate passed the impugned order. The learned counsel also relied on a decision of the Honourable Supreme Court, in C.A.Avarachan V. C.V.Sreenivasan and another, [(1996) 7 Supreme Court Cases 71)], in support of his contention and the relevant portion of the order reads as follows:
?In our opinion, the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is sine qua non for initiating proceedings under
Section 133 of the Code of Criminal Procedure and without following the procedure provided for by
Section 138 Cr.P.C, the order made by the Sub-Divisional Magistrate on 13.01.1998 is unsustainable and is vitiated. The High Court fell in error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceedings under
Section 133 Cr.P.C. Neither the order of the High Court nor that of the Sub-Divisional Magistrate can therefore be sustained.
The appeal consequently succeeds and is allowed. The orders of the Sub-Divisional Magistrate dated 13.01.1986 and of the High Court dated 02.06.1989 are hereby set aside.
We, however, clarify that should the activity of the appellant be a cause of public nuisance, the orders made by us in this appeal, shall not stand in the way of the authorities, to take such appropriate action as is authorised by law by following the procedure prescribed by the law.?
5.Per contra, the learned counsel appearing for the respondents submitted that based on the complaints received from the general public, show-cause notice was issued to the petitioners. After receipt of the notice, they have filed their objections. After receipt of the objections, enquiry was conducted for three days and based on the enquiry, the Revenue Divisional Officer, Devakottai came to the conclusion that the petitioners have encroached the public pathway, preventing the public from using the same. Hence, there is no illegality or irregularity in the order passed by the Executive Magistrate.
6.I have considered the rival submissions and carefully gone through the records.
7.The main contention of the petitioners is that without drawing up the preliminary order under
Section 133(1) Cr.P.C and without following the procedure, contemplated under
Section 138 Cr.P.C, the impugned order has been passed by the respondent/Revenue Divisional Officer, Devakottai.
8.On perusal of the records, it is seen that before passing the order dated, 04.06.2010, the Executive Magistrate drawn up a preliminary order and issued show cause notice to the petitioner and others. Pursuant to the show- cause notice, the petitioners raised their objections and sent a reply. Thereafter, an enquiry was conducted and based on the enquiry, the Revenue Divisional Officer, Devakottai, has come to the conclusion that the land in dispute is classified as 'Annatheenam land' and it is a public pathway and the petitioners have put up a construction therein and obstructed the public from using the pathway and the Tahsildar was directed to remove the encroachments in the pathway.
9.In the above circumstances, the contention of the petitioner cannot be countenanced, as the Executive Magistrate correctly followed the procedure contemplated under
Section 133(1) and
138 of Cr.P.C. Hence, I find no illegality or irregularity in the order passed by the learned Executive Magistrate. Hence, this Criminal Revision Case is dismissed.
To
1.The Revenue Divisional Officer, Devakottai, Sivagangai District.
2.The Tahsildar, Devakottai, Sivagangai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.