P. Kala vs The Sub Divisional Magistrate and Revenue Divisional Officer

Aruna Jagadeesan, J.—Legality of action taken and the order passed by the learned Sub Divisional Magistrate and Revenue Divisional

Officer, Salem District u/s 133 of the Code of Criminal Procedure are challenged in this Criminal Original Petition by the aggrieved party.

The background facts are as follows:

The Petitioner claims ownership of the lands in S. No. 46/1E of Pullithikottai Village having purchased the same from one Elayappan by a

registered sale deed dated 5.3.1996 and she also claims ownership to the lands situated in S. Nos. 46/1C, 46/1G, 46/1E, 48/4, 49/3A and 50/1A

and patta has been issued to the Petitioner by the Revenue Authority for the above said lands in patta No. 128, 134 and 134. The total extent of

land in S. No. 46/1E is 0.11 1/2 acres and patta for the entire extent in S. No. 46/1E has been issued in her favour. She is said to be in possession

and enjoyment of the same from the date of purchase and is paying kist and has obtained receipts from the Village Administrative Officer.

One Sekar, the adjacent land owner attempted to interfere with the Petitioner''s possession and enjoyment which necessitated her to file a suit in

OS. No. 810/2000 before the District Munsif Court, Salem for permanent injunction restraining him from interfering with her possession by laying

any road, encroaching or trespassing into the said property. The said Sekar and his family members claimed right of pathway over the said land.

As per the original revenue records, there is no pathway or road in S. No. 46/1E. The said suit was dismissed, against which the Petitioner has

preferred an appeal in AS. Nos. 128 and 130/2005 before the Sub Court, Salem. The Respondent herein is a party in the suit and in AS. No.

128/2005.

According to the Petitioner, the Respondent, at the instance of the adjacent owner P. Sekar, had issued an order dated 12.9.2005 u/s 133(1)

(b) of Code of Criminal Procedure ignoring the fact that the matter is seized of by the competent civil court. It is submitted by the Petitioner that no

general public is claiming the right of pathway over the suit property and there is no nuisance or obstruction alleged by the public against the

Petitioner.

It is contended by the learned Counsel for the Petitioner that it is totally an abuse of process of law and a clear case of interference with the

administration of justice, when there is no basis for taking proceedings u/s 133 of Code of Criminal Procedure. The said provision has been

invoked to settle the private civil disputes between the parties and the Respondent has passed the impugned order against the provisions of Section

133 of Code of Criminal Procedure.

The learned Counsel for the Petitioner placed reliance on the decision of the Honourable Supreme Court rendered in the case of Vasant Manga

Nikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by LRs and Anr. 1996 SCC Cri 27, wherein it is held that the exercise of power u/s

133 of the Code of Criminal Procedure should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts

and circumstances from evidence on record and the same is not intended to settle private disputes or a substitute to settle the civil disputes though

the proceedings u/s 133 is more in the nature of civil proceedings in a summary nature.

The condition precedent to exercise the power u/s 133 of Code of Criminal Procedure is the imminent danger to the property and consequential

nuisance to the public. Admittedly the Petitioner has filed the civil suit and the same is pending in appeal. The Petitioner has claimed ownership to

the disputed lands by a registered sale deed dated 5.3.1996 and claims to be in possession and enjoyment from the date of the purchase. The

learned Counsel for the Petitioner has strenuously urged that the Petitioner having taken civil proceedings by filing a suit and even assuming that

there is alleged nuisance by preventing the public from using it as a pathway, as she has been in possession for a long period, the circumstances and

the evidence in this case do not prove that an urgency existed warranting taking of action under this section. For this proposition, the learned

Counsel for the Petitioner relied on the decision of this Court rendered in the case of TKSM Kalyanasundaram v. Kalyani Ammal and Anr. 1975

(2) MLJ 93 wherein this Court has held that if the obstruction has been in existence for a long period, without any change in circumstances, the

removal of such obstruction cannot be said to be urgent and the remedy must be sought in a civil suit.

Even in the impugned order, a reference has been made to the complaint given by the said Sekar and others and also the civil dispute pending

between the parties, which is now pending in the appeal. The proceedings u/s 133 of Code of Criminal Procedure are not intended to settle the

private disputes between different members of the public and they are in fact intended to protect the public as a whole against inconvenience. In

order to exercise the power under this section, it must be shown that the interference with public comfort was considerable and a large sector of

the public was affected injuriously. The word ''public'' in Section 133(1)(a) cannot be taken to mean as residents of a particular locality. It means

something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with ""public

nuisance"" is indicative of this aspect and unless there is such imminent danger and damage to the public, an order u/s 133 cannot be passed.

As the alleged obstruction is an old one and the matter being agitated before the civil court, Section 133 of Code of Criminal Procedure cannot

be invoked. Further the existence of a long standing obstruction cannot, without proof of something having recently happened, be considered to be

a nuisance. The question that is required to be decided is as to whether the alleged encroachment has been made upon a public place. In view of

the fact that the Petitioner claims ownership to the land in question, she cannot be ordered to remove the alleged encroachment by a proceedings

u/s 133 of Code of Criminal Procedure, unless the dispute between the parties is decided finally.

In the back ground of legal principles set out above, the impugned order passed by the learned Sub