The exercise of power under Section 133 of the Code of Criminal Procedure should be judiciously and objectively exercised, and is not intended to settle private disputes. The condition precedent to exercise the power under Section 133 is the imminent danger to the property and consequential nuisance to the public.

Legality of action taken and the order passed by the learned Sub Divisional Magistrate and Revenue Divisional Officer, Salem District under Section 133 of the Code of Criminal Procedure are challenged in this Criminal Original Petition by the aggrieved party.

2. 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 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.

3. One Sekar, the adjacent land owner attempted to interfere with the Petitioners 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.

4. According to the Petitioner, the Respondent, at the instance of the adjacent owner P.Sekar, had issued an order dated 19. 2005 under Section 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.

5. 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 under Section 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.

6. 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 others Vs. Baburao Bhikanna Naidu (deceased) by LRs and another [1996-SCC-Cri-27], wherein it is held that the exercise of power under Section 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 under Section 133 is more in the nature of civil proceedings in a summary nature.

7. The condition precedent to exercise the power under Section 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 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 t