Madras High Court
V.Muthusamy vs The District Collector Cum on 4 December, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/12/2012
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
CRL.R.C.(MD)No.575 of 2012
V.Muthusamy ... Petitioner
Vs
1.The District Collector cum
District Magistrate,
Tirunelveli
2.The Revenue Divisional Officer cum
Sub Divisional Magistrate,
Tenkasi,
Tirunelveli District.
3.The Tahsildar cum Executive Magistrate,
Sivagiri Tauk,
Tirunelveli District.
4.The Inspector of Police,
Vasudevanallur Police Station,
Sivagiri Taluk,
Tirunelveli District. ... Respondents
PRAYER
Criminal Revision Petition filed under Sections 397 and 401 of
Cr.P.C., to call for the records and set aside the order passed by the 2nd
respondent in C.C.No.238 of 2012 dated 30.10.2012 on the file of the 2nd
respondent.
!For Petitioner ... Mr.P.Muthudurai
^For Respondents... Mr.P.Kandasamy
Govt Advocate
(Crl.Side)
:ORDER
The Petitioner has focussed the instant Criminal Revision Petition as against the order dated 30.10.2012 in C.C.No.238 of 2012 passed by the Second Respondent.
2.The Second Respondent/Revenue Divisional Officer/Sub Divisional Magistrate, Tenkasi, Tirunelveli District, while passing the impugned conditional order dated 30.12.2012, under Section 133 for removal of nuisance had interalia opined that on enquiry, it came to be known that Kurukkankulam tank belongs to Panchayat Union measuring an extent of 5.46.5 Hectare and for this tank, the rain water comes from the Nambiayan Parambu mountain place and from the adjoining lands belonging to the Petitioner in S.Nos.541, 542, 543/1 and also belonging to Boomithan Board land in S.No.543/2 Punja Lands and to an extent of 7 Hectares of lands were getting irrigated from this water and there is a channel and sewage for the tank irrigation and for irrigation of lands, the saving of water is essential and that the Complainant has closed the way of the water passing through and also diverted the passage of the water and consequently, his act will cause harm to other Agriculturists and hence, it has been treated as a public nuisance and since that nuisance is still there, it has to be removed as one of the necessity and directed the Revision Petitioner/Complainant to remove the said nuisance within seven days and also he has been further directed not to create obstacles once again in this regard.
3.Being dissatisfied with the order passed by the Second Respondent in C.C.No.238 of 2012 dated30.10.2012, in regard to the removal of public nuisance in issue, the Learned counsel for the Petitioner/Complainant urges before this Court that the Second Respondent has not conducted the mandatory enquiry envisaged under Section 134 to 137 of Cr.P.C.
4.Yet another contention put forward on the side of the Revision Petitioner is that the impugned conditional order passed by the Second Respondent dated 30.10.2012 is not valid in law because of that a conditional order cannot be passed in a proceeding under Section 133 of Cr.P.C. in a private land and that section is applicable only to public place or channel way etc.
5.That apart, the Learned counsel for the Petitioner submits that the Petitioner is an Agriculturist indulging in agricultural operation in his own land, which is situated at Vasudevanallur Village, Sivagiri Taluk in S.No.541/1, 541/2, 541/3, 541, 542 and 543 to an extent of 8 Acres and now he is cultivating paddy crops in the said land.
6.The strenuous plea of the petitioner is that after the visit of the Respondents to the place and without conducting any survey and without verifying the revenue records, they have come to an unilateral conclusion that in the mid of the petitioner's own land in S.Nos.541, 542, 543/1, they want to create a new channel and at that time, the Petitioner informed the First Respondent/District Collector, Tirunelveli and the Second Respondent/Revenue Divisional Officer cum Sub Divisional Magistrate, Tenkasi that he has patta land and that there is no channel for water as per revenue records and if a new channel is created, then it is against law. But, the same has not been heeded to by the Respondents without hearing the Petitioner.
7.Also, that, the Learned counsel for the Petitioner contends that on 22.11.2012 at about 8.00 a.m. Third and Fourth Respondents Viz., the Tahsildar cum Executive Magistrate, Sivagiri and the Inspector of Police, Vasudevanallur Police Station, Sivagiri Taluk served the impugned order dated 30.10.2012, passed by the Second Respondent and on the same day, the Third and Fourth Respondents have gone to the Petitioner's patta land and by using JCB machine, a new channel has been created in the middle of the petitioner's land lead to the said Kurukkankulam tank. Moreover, the Second and Third Respondents destroyed the bund formed by the Petitioner within his land to protect water entering into his land and the Second and third Respondents have also caused damage to the Petitioner's crop.
8.The Learned counsel for the Petitioner/Complainant submits that the Second Respondent, before passing the impugned order dated 30.10.2012 has not issued any notice to the Petitioner/Complainant, which is a mandatory requirement as per Section 138 of Cr.P.C.
9.Another contention put forward on the side of the Petitioner is that in the counter filed by the Third Respondent/Tahsildar, Sivagir Taluki, the date on which the impugned order dated 30.10.2012 has been served on the Petitioner has not been stated and in view of the fact that principles of natural justice have not been adhered to pay the Second Respondent in regard to the non issuance of notice to the petitioner, prior to the passing of the impugned order dated 30.10.2012, the said order in the eye of law cannot stand a moment scrutiny.
10.At this juncture, the Learned counsel for the Petitioner cites the decision of the Hon'ble Supreme Court in V.A.Avarachan V. C.V.Sreenivasan and another reported in 1996 (7) SCC 71 at 72, wherein in paragraph No.4, it is laid down as follows:
"In our opinion the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is a 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 13.1.1988 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."
11.Repelling the contentions advanced on behalf of the Petitioner, the Learned Government Advocate (Criminal Side) submits that the Petitioner is not the owner of the land viz., in S.No.543/2 and as per Village Accounts/Revenue Records submitted by the Village Administrative Officer, 11 Vasudevanallur Village, Sivagiri Taluk, the Government is the owner of the land and even in the Village Accounts, it is mentioned as Boomithan Board Gift leased out to one Sorimuthu Nadar and the impugned order passed by the Second Respondent dated 30.10.2012 is only a conditional order for removal of nuisance created by the Petitioner and also that an enquiry has been conducted with the Complainant Muthusamy and the same has been made mention to paragraph No.3 of the impugned order passed by the Second Respondent.
12.Continuing further, it is the plea of the Learned Government Advocate (Criminal Side) that the impugned order passed by the Second Respondent dated 30.10.2012 is only a conditional order for removal of nuisance. Further, the Petitioner will be provided with an ample and adequate opportunity at the time of passing of the order by the concerned authority as per Section 138 of Cr.P.C. As such, the Petitioner cannot be construed to be an aggrieved person, so as to enable him to approach this Court by filing the instant Revision Petition.
13.It is to be noted that the term 'channel' is meant to cover such a flow of water as can be used for positive use such as irrigation or navigation. Also, the channel is not meant to cover the flow of rain water across roads, streets or lanes. Where neither the period for removal of the impugned obstruction from irrigation is stated, nor show-cause notice is issued, the provisions of Section 133 Cr.P.C are not complied with. then only, the order passed by the competent authority is an illegal one and liable to be set aside in law. The ingredients of Section 133 enjoin that Section 133 of Cr.P.C. can be resorted to in case of exigency or any imminent danger to the health or physical comfort of the community as the case may be, depending upon the given circumstances covering a particular case. It is true that the Magistrate's jurisdiction is not ousted because of a bonafide claim of title being raised by a person. A conditional order as per Section 133 of Cr.P.C for removal of nuisance is a mandatory requirement. Without passing a conditional order, no final order under Section 138 of Cr.P.C. can be passed in the eye of law. If no preliminary order is passed for removing the nuisance, then that can be set aside. But, in the instant case on hand, an enquiry has been conducted with the petitioner as stated in the order dated 30.10.2012 which fact has been repudiated by the Learned counsel for the Petitioner before this Court.
14.If there is denial of the obstacle caused and if the order of removal of nuisance without recording a finding has been passed, then the said order is not valid in law. There is admittedly a vast difference between an enquiry to be made under Section 137 of Cr.P.C. and Section 138 of Cr.P.C. It cannot be gainsaid that without recording a finding on the question as to the existence of the public rights under Section 137(1) Cr.P.C., it is not proper and legal also to mix up the enquiries under Section 137(1) Cr.P.C. and Section 138 of Cr.P.C.
15.If a person denies the existence of a particular right, then the competent authority is unjustified in directing the removal of said nuisance for recording a finding. In the instant case, the Second Respondent/Revenue Divisional Officer, according to the Respondents, has conducted enquiry with the petitioner (both the same has been denied by the petitioner).
16.It is true that at the time of conducting a preliminary enquiry, the Second Respondent is not to weigh the evidence and decide the matter on which side pendulum swings. He must leave the matter for a decision by the Civil Court, if there is any genuine need. Even under Section 138 of Cr.P.C., when the petitioner denies the public nuisance, an enquiry under Section 138 of Cr.P.C is mandatory. It is true that a conditional order under Section 133 Cr.P.C., for removal of nuisance is a mandatory requirement. There is no second opinion on that. Therefore, there can be no conditional order being passed as per Section 133 of Cr.P.C., when no final order under Section 138 of Cr.P.C. can be passed.
17.In Law, a final order for removal of public nuisance can be challenged in Civil Court as per decision Budh Singh V. Hapuram reported in 1996 Cri.L.J. 1576 (Raj.). The Learned Magistrate is to ascertain whether a person denying the existence of a public right has reliable evidence in support of such denial. He must satisfy himself that such reliable evidence exists in support of denial. Furthermore, the remedy of public nuisance is also available in 'Law of Torts'. In the decision in Gobind Singh V. Shanti Group reported in 1979 SCC (Crl.) 444, the Construction of Chimney and Oven by a Bakery owner, report of the Learned Magistrate showing Chimney has made encroachment of G.T.Road and emitting smoke affecting the health of public, the order for removal of demolition has been made. Also, if no immediate action is taken and if irreparable damage is likely to be caused by way of obstruction or obstacle caused, then in the interest of public or for removal of public nuisance can be issued by the competent authority based on the facts of a given case.
18.The object of Section 133 of Cr.P.C. is not intended to settle private disputes between two members of the public, which is intended to protect the public as a whole against the alleged inconvenience. Also,where health safety and convenience of public at large are involved, the safer course would be to accept the view of the Magistrate, who himself has seen the hazard. In all proceedings initiated under Section 133 of Cr.P.C., the Magistrate must bear in mind that he is supposed to be acting purely in the interests of public and should be on his guard against any tendency to use this Section as a substitute for litigation in the Civil Court for settlement of a private dispute. In case of exigency and imminent danger to health and physical comfort of the community, an order can be passed under Section 133 of Cr.P.C. To take action under Section 133 of Cr.P.C., it is not necessary that the members of the public shall make the complaint.
19.In the instant case on hand, the Second Respondent/Revenue Divisional Officer inspected the spot and finally has passed a conditional speaking order. Apart from the above, in view of the fact that the Petitioner has admittedly known the owner of Punja land in S.No.543/2 and since the said land is Boomithan Board gift one given in lease to Sorimuthu Nadar and from the impugned order passed by the Second Respondent, it transpires that the lands measuring an extent of around 7 Hectares are getting irrigated from the water of the tank in issue and inasmuch as the Petitioner has obstructed the passage or flow of the water coming to the other irrigation lands and since his act has been viewed to be a one that will cause harm/hardship to the other agriculturists, it has been construed as a public nuisance and therefore, the impugned order has been passed by the Second Respondent requiring the Petitioner to remove the said nuisance within a period of 7 days and also further directed him not to obstruct once again.
20.Be that as it may, on overall assessment of the facts and circumstances of the case, in an attendant fashion and also in the light of upshot of discussion mentioned supra, this Court comes to an inevitable conclusion that the order passed by the Second Respondent dated 30.10.2012 for removal of nuisance is only a conditional order (although the bund has been removed subsequently and the Second Respondent's order dated 30.12.2012 is only a final order) and still, it is open to the petitioner as aggrieved person to put forward his point of view/case before the Second Respondent or other Respondents as the case may be and to seek appropriate remedy in the manner known to Law. In this connection, this Court points out that the conditional order passed by the Second Respondent dated 30.10.2012 has not been passed in any private land and that the Kurukkankulam tank and the channel are public properties and the same have not been situated in petitioner's patta land.
21.Also till date, it appears that the Petitioner has not approached the Civil Court for an appropriate remedy in regard to the subject mater in issue. Inasmuch as the removal of nuisance viz., the bund laid by the petitioner has been removed by the authorities concerned, if the Petitioner is aggrieved, it is open to him to establish his right before the competent Civil Court and for an appropriate remedy in the manner known to law and in accordance with law.
Arul To
1.The District Collector cum District Magistrate, Tirunelveli
2.The Revenue Divisional Officer cum Sub Divisional Magistrate, Tenkasi, Tirunelveli District.
3.The Tahsildar cum Executive Magistrate, Sivagiri Tauk, Tirunelveli District.
4.The Inspector of Police, Vasudevanallur Police Station, Sivagiri Taluk, Tirunelveli District.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.