The provisions under Sections 133 to 143 of the Code of Criminal Procedure provide a complete code for the removal of encroachment or obstruction from public land causing public inconvenience or nuisance, and the exercise of writ jurisdiction for the same would be inappropriate and improper.

R. Banumathi, J.

The petitioner seeks writ of mandamus directing respondents 1 to 3 to remove the encroachment made by respondents 4 to 6 in the common pathway comprised in S.No.436/11 of the Mettupalayam Village and Post, Veppanthattai Taluk, Perambalur District.

2. The grievance of the petitioner is that respondents 4 to 6 had encroached the common pathway in the year 2005 by putting cattle hut and some other constructions in the above said common pathway situated at S.No.436/11, Mettupalayam Village. By fabricating original extent of land i.e., 17 x 41 feet to 21 x 65 feet, totally 697 feet and thereby encroached upon the common pathway causing nuisance and disturbance to the petitioner. Further grievance of the petitioner is that by such encroachment both petitioner as well as other public have hardship to free access in common pathway situated in S.No.436/11, Mettupalayam Village.

3. We have heard learned counsel for the petitioner and the learned Special Government Pleader for respondents 1 to 3.

4. Admittedly, the petitioner and other public have preferred petition before the District Collector, Perambalur, under Sections 133, 144 and 145 of Code of Criminal Procedure for removing encroachment and to restore the common pathway. In this regard, learned Special Government Pleader has submitted that when proceedings under Sections 133, 144 and 145 Code of Criminal Procedure is pending before the competent authority, the entire matter could be gone into by the competent authority and the petitioner could be directed to approach the competent authority where the proceedings under Sections 133, 144 and 145 of Code of Criminal Procedure is pending.

5. Learned Government Pleader has also drawn our attention to the decision reported in 2008-4 L.W. 295 (R.Munuswamy ..vs.. The District Collector, Vellore and others). Observing that when specific efficacious alternative remedy is available under Section 133 of the Code, the Writ Court normally would not entertain the Writ Petition, First Bench of this Court has held as under:-

8. 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 exa