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Judgment
S. Manikumar, J.—1. In the supporting affidavit to the writ petition at paragraph 2, the petitioner has stated that he is the owner of the property in Sy. No. 1367, Town Survey No. 83, Tenkasi Village, Tenkasi and he has constructed a house. On the northern side of his property, there is a public pathway comprised in T.S. No. 81 belonging to respondent No. 1. According to the petitioner, the entire residents are using this pathway. However, at para 3, petitioner has stated that respondent No. 2 has encroached upon the public pathway in Town Survey Nos. 76, 79 and 81 and constructed a house.
Though the petitioner has contended that Town Survey Nos. 76, 79 and 81, belong to Tenkasi Municipality, respondent No. 1, absolutely no materials have been placed before this Court to substantiate the said contention. More over, it is the contention of the petitioner that there is no pathway available to reach his house and the house constructed by the second respondent has caused obstruction.
In R. Munuswamy v. The District Collector, Vellore & Others reported in, 2008-4-L.W. 295, this Court observed as under:
"5. The question, which crops up before this Court, is whether a writ petition with such prayers can be filed by way of public interest litigation when there exists specific statutory provision for removal of any unlawful obstruction/encroachment from public land. It may be noted that in the State of Tamil Nadu, there is an Act called Tamil Nadu Land Encroachment Act, 1905. There is a provision for summary eviction of encroachers under Section 6 of the said Act. It has also been stated under Section 13 of the said Act that the said law will not bar the operation of other laws in force. Section 13 of the said Act is set out herein below:-
''''13. Saving of operations of other laws in force.-
Nothing in this Act contained shall be construed as exempting any person unauthorisedly occupying land from liability to be proceeded against under any other law for the time being in force:
Provided that if any penalty has been levied from any person under section 5 or section 5-A of this Act, no similar penalty shall be levied from him under any other law in respect of such occupation."
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From a perusal of Section 133 and the subsequent sections of the said Code, it is made very clear that under the said provisions, the Magistrate has been given sufficient power to deal with removal of obstruction on public road for dealing with public nuisances. The said power can be exercised either on receipt of a police report or on other information, and arises under the six circumstances enumerated in Section 133 and the Magistrate has been given power under the said Section 133 to pass a conditional order. Under the said Section, any unlawful obstruction or nuisance could be removed from any public place or from anywhere which is or may be lawfully used by the public. The said conditional order can be served on the person against whom it is made, as if it were a summon. This is provided under Section 134. On the service being effected, the person concerned may carry out the order, in which case the proceedings will come to an end under Section 135(a). But if the person against whom the order is made does not carry out the order, he has to show cause against the order or apply to the Magistrate in order to contend that the order which has been passed is not reasonable and proper. This is provided under Section 135(b). But, despite the passing of the conditional order, if the person, against whom the order is passed, does not comply with the same and he fails to appear before the Magistrate, the order is made absolute and the person may also be liable to the penalty prescribed under Section 188, IPC. This is provided in Section 136. But, if upon showing cause, the Magistrate finds that the cause shown is not satisfactory, the order is made absolute under Section 138 of the Code. In the enquiry which is to be made before the Magistrate in respect of an order under Section 133 and in a case when a person appears before him, the Magistrate may direct a local investigation or summon and examine any expert. This is provided under Sections 139 and 140. If the person concerned disputes the existence of any public right on the place or the road in question, the Magistrate will hold a preliminary enquiry and if he finds that the contention which is raised by the person has some substance, the question will be left to be determined by a Civil Court. But if there is no substance in the contention, the enquiry will proceed under Section 137. However, where the order is made absolute under Section 136 or Section 138, the person against whom the order is made shall be asked to carry out the order within a specified time. But, however, if he fails to carry it out, he can be prosecuted under section 188 IPC. This is provided under Section 141(1) of the Code. The Magistrate also can carry out the said order and recover the cost from the defaulter. This is provided under Section 141(2). In case of imminent danger or injury of a serious kind, the Magistrate has a power to forthwith issue an injunction against a person, who may commit the mischief. This is provided under Section 142.
On a perusal of the aforesaid provisions, it is clear that starting from Section 133, detailed and adequate provisions have been made right up to Section 143 under the said Code and the aforesaid gamut of proceedings constitutes a complete Code for removal of encroachment or obstruction from the public land which leads to public inconvenience or public nuisance.
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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?
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 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.
It is a well-settled principle that the power under Article 226 of the Constitution has to be exercised by observing certain self-imposed limitations. One of such well-recognized limitations is when the statute provides for an efficacious remedy, writ court should not entertain a case with a grievance which can be adequately dealt with under the relevant statute. This is specially true in this case where power has been conferred under Sections 133 to 143 of the Code in very wide terms and which, in a given case, is decided in Municipal Council, Ratlam (supra), mandate a public duty on the Magistrate to be exercised for public benefit. Therefore, the remedy under the Code is an efficacious one.
Reference in this connection may be made to the Constitution Bench judgment of the Supreme Court in the case of Thansingh v. Superintendent of Taxes reported in , AIR 1964 SC 1419. The relevant observations of Justice Shah on this point are set out herein below: - (para. 7 at page 1423 of the report)
''The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by a statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal to correct errors of fact and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art. 226 of the Constitution the machinery created under the statue to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.''
(underlined for emphasis)
The aforesaid formulation in Thansingh has been approved subsequently also by the Hon''ble Supreme Court in the case of Ghan Shyam Das Gupta v. Anant Kumar Sinha reported in , 1991(4) SCC 379 in the context of execution of a decree of a Civil Court. Reference is made to the observations of the learned Judges in paragraph 8 of the said judgment. Similar observations have been made by the Hon''ble Supreme Court in the case of State of U.P. v. Labh Chand reported in , 1993(2) SCC 495 by relying on the principles in Thansingh case (See para-9 at page 501 of the report). The observation of Justice Shah in Than Singh, set out earlier, has been expressly quoted with approval. So the principles in Than Singh constitute a settled position in our jurisprudence.
In a Nine-Judge Bench Judgment of the Supreme Court in the case of Mafatlal Industries v. Union of India reported in , 1997(5) SCC 536, Justice Jeevan Reddy, speaking for the majority, has clearly held that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to serve the ends of law and not to transgress them. (See para. 108(x) at page 635 of the report)
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.
For the reasons aforesaid, we dismiss this writ petition. However, we do not wish to make any observation on the merits of the petitioners 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. No costs. Consequently, miscellaneous petition is closed."
In view of the above decision, the Writ Petition is dismissed with liberty to approach the Magistrate under Section 133 of the Code of Criminal Procedure, 1973. No costs.