Madras High Court
R.Ramamoorthy vs The Commissioner on 2 July, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.07.2012 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN Criminal Revision No.995 of 2003 1.R.Ramamoorthy 2.S.Bavasa ... Petitioners Vs. 1.The Commissioner Karaikkal Municipality Karaikkal 2.R.Ramachandran ... Respondents PRAYER: Revision is filed under Section 397 and 401 of the Code of Criminal Procedure, against the order of the Sub-Divisional Magistrate, Karaikkal, made in No.1945/SDM/KKL/Misc./B3/2002, dated 19.03.2003. For Petitioners : No appearance For Respondents : Mr.J.Kumaran Govt., Advocate for R1 Mr.T.Susindran for R2 - - - O R D E R
The revision petitioners have preferred the present revision petition against the order dated 19.03.2003, passed by the Sub-Divisional Magistrate, Karaikkal, in No.1945/SDM/KKL/Misc./B3/2002, dated 19.03.2003.
2. The short facts of the case are as follows:-
The petitioners herein have filed a case No.1945/SDM/KKL/Misc./B3/2002, before the Sub-Divisional Magistrate, Karaikkal, stating that the road opposite to their house, where they are residing, is a municipal road and it has been notified in the Gazette of Pondicherry No.47, dated 25.11.1986, as such. It is used as public road. The second respondent namely Ramachandran is an occupant of the house next to the petitioners house. There is an encroachment of the public road to a length of 70 feet and breadth of 8 feet. The encroached area is fully fenced. Within the fence, there are fruit bearing coconut trees and one dead coconut tree. The trunk of the dead coconut tree has fully dried and it is standing precariously without any support. There is danger of the tree falling at any moment and causing grave injury to the road users. He is living nearby. The encroached portion in Municipal road is under the control, possession and enjoyment of second respondent. The general public who are exposed to the danger of falling coconut trunk, has requested the second respondent to remove this source of danger. The matter has also been reported to the Karaikal Municipality. But, no action has been taken. Therefore, they approached the Sub-Divisional Magistrate court, Karaikal, to direct for removal of the dangerous tree.
3. The first respondent has filed a counter statement stating that the petitioners do not claim any relief under Section 133(1)(a) Cr.P.C., in relation to the obstruction or encroachment of any alleged public way. Therefore, the question of finding whether the said property is a public place or not, is not necessary. However, there is dispute gone upto the Additional District Court, Karaikal, whether that was a public place or not, has to be found out by measuring the property and identifying the same. The prayer by the petitioner is for the relief in relation to the Section 133(1)(d) Cr.P.C., only. There are only five coconut trees well within the boundaries and fencing which are the property of one Kaliyaperumal, now in the permissive occupation of the second respondent. Therefore, there cannot be any complaint that the tree in the private property belonging to Kaliyaperumal is in a condition that it is likely to fall and thereby causing injury to the person living nearby or to persons passing by. The private property purchased by Kaliyaperumal and in the occupation of respondent cannot be a subject matter in the said proceedings.
4. The first respondent, who is the Commissioner of Karaikal Municipality, in his counter, contends that the disputed property belongs to one Kaliyaperumal. The private property cannot be construed as public pathway. As the dispute is in respect of private property, it cannot be stated that the provision of 397 Cr.P.C., could be invoked in the matter. It is only a civil dispute with reference to properties of an individual and therefore no order will be passed in this case as the petition filed by the first petitioner is not maintainable.
5. In the said case, the Sub-Divisional Magistrate, Karaikal, had framed four issues namely:
i. Whether a complaint under the Cr.P.C., 1973 will lie in the present case? Is it necessary to find out if the property is public property?
ii. Is there encroachment in the public property?
iii. Whether the alleged encroachment causes public nuisance which necessiates interference of this Court? and iv. To what order or relief the petitioners are entitled?
6. On the side of the petitioners, three witnesses were examined and one document was marked as Ex.A1 namely gazette of Pondicherry No.47, dated 25.11.1986. On the side of the respondents four witnesses were examined as R.Ws.1 to 4 and two documents were marked as Exs.B1 and B2 namely title deed and sketch showing disputed property. Further, two Court witnesses were examined as C.W.1 and C.W.2 and two documents were marked as Exs.C1 and C2 namely report and sketch.
7. On considering the evidence of the witnesses i.e., petitioners' side evidence, respondents' side evidence and Court witnesses, the learned Sub-Divisional Magistrate, Karaikal, had observed that no relief or order can be passed in respect of the alleged encroachment, since the same is determined as private property and also that the same is causing no obstructions. Likewise, no order can be passed to remove the live coconut trees for the reason discussed above. The dead coconut tree is liable to be removed and therefore order can be passed to remove the same. Since the dead coconut tree is no more, no order could be passed for removal of the same. Therefore, the petition was dismissed by the learned Sub-Divisional Magistrate, Karaikal, on 19.03.2003.
8. Aggrieved by the said dismissal order, the petitioners have preferred the above revision. At the time of final hearing, the learned counsel for the revision petitioners was absent. Since the case is pending from the year 2003, this Court is constrained to pass the final order on the basis of available records.
9. The learned counsel for the revision petitioners has raised grounds that the second respondent had encroached the property, which is not a private property, but the learned Sub-divisional Magistrate had observed that the property is the public property of the second respondent herein, without any substantial evidence. The highly competent counsel pointed out that the petitioners had marked a document as Ex.A1 namely Gazette Notification No.43, dated 25.11.1986. It clearly reveals that the said property is a public road to an extent of 70 feet in length and 8 feet in breadth and this is a vital document of the Government. But, the same was not considered by the learned Magistrate. The second respondent had encroached the municipality property, wherein coconut trees are standing, which are obstructing public pathway. Once the Municipality, after scrutinizing the entire records and gave publication in the Government Gazette of Pondicherry, stating that the property has been declared as public road, therefore the property purchased by one Kaliaperumal is not sustainable under law and the property could not be termed as private property.
10. The learned counsel further raised a ground that the encroachment has caused grave danger to the public and traffic flow. The Tahsildar had admitted that the second respondent had encroached the said property and also filed a sketch which reveals that there is an encroachment. Hence, the learned counsel has challenged the impugned order. Supporting his revision, he had marked 13 documents especially Government Gazette of Pondicherry, sale deed, sketch, Tahsildar's report, another sale deed etc.
11. The learned counsel appearing for the first respondent has submitted that well grown coconut trees are standing over the property and maintained by the second respondent herein. The property belongs to one Kaliaperumal, who is a private individual. The publication in the Government Gazette has not been based on any valid documents. Further, the six Member Committee submitted a report, along with a sketch, which clearly shows that the property is a private property owned by one Kaliaperumal. The standing coconut trees are also in the private property. The second respondent's occupation does form part of the said Kaliaperumal's property.
12. The learned counsel for the second respondent has submitted that the second respondent is occupying the property, which is a private property and that it does not give any obstruction or nuisance to the public. Further, several vehicles are passing every day on the said road and as such there is no complaint from the public. The learned counsel further submits that actually there was no encroachment of municipality property. Further, the coconut trees have been standing for long years. If any encroachment is there over the said property, the petitioners' remedy is before the Civil forum after producing relevant title deeds. The coconut trees have been standing for over 30 years and the second respondent herein is enjoying the fruits. Therefore, the case is not maintainable under Section 133(1)(d) Cr.P.C.,
13. On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the learned Sub-Divisional Magistrate, Karaikal, this Court does not find any discrepancy in the impugned order. This Court is of the further view that the petitioners' allegation is that the second respondent herein has encroached the Karaikal Municipality property and causing nuisance to the public and hindrance to traffic flow. But, the said allegation has been denied by the Municipality and it has been stated that the property belongs to one Kaliaperumal. It is also seen that the Tahsildar, Karaikal and the Surveyor, Karaikal Municipality have also conducted physical verification and drawn rough sketch, which were submitted before the learned Sub-Divisional Magistrate and it was found from the report that the property does not belong to the Municipality. Therefore, this Court is not inclined to entertain the above revision. However, the revision petitioners are at liberty to approach the civil forum for their remedy.
14. In the result, the above criminal revision petition is dismissed and the order of the Sub-Divisional Magistrate, Karaikkal, made in No.1945/SDM/KKL/Misc./B3/2002, dated 19.03.2003, is confirmed.
02.07.2012
Index : Yes/No
Internet : Yes/No
krk
To
1.The Sub-Divisional Magistrate
Karaikal
2.The Commissioner
Karaikkal Municipality
Karaikkal
C.S.KARNAN, J.
krk
Crl.R.C. No.995 of 2003
02.07.2012