The court established that matters involving easement rights on private property must be resolved by civil courts prior to any enforcement of public nuisance orders under Section 133.

JUDGMENT

Manjula Chellur, Ag. C. J.

Heard the learned counsel for the appellant, learned counsel for the party respondents as well as the Special Government Pleader Smt. Girija Gopal.

2. The writ appeal was filed aggrieved by the judgment of the learned single Judge dated 01.12.2011. It is necessary to narrate certain facts in order to understand the scope of the writ petition before the single Judge. Before the learned single Judge, the party respondents herein sought for implementation of Ext.P9 order passed by the Sub Divisional Magistrate in 133 proceedings under the Code of Criminal Procedure. The learned single Judge, as the appellant herein did not appear before the court proceeded to pass the following judgment.

“The prayer sought in this writ petition is for the implementation of Ext.P9, an order passed by the 2nd respondent in 133 proceedings under the Code of Criminal Procedure. Although O.S. 605/2010 filed by the 4th respondent is pending before the Munsiff Court, Chittur, it is seen that an interlocutory order of injunction passed by the Munsiff Court was stayed by the District Court by Ext.P12 order passed in C.M.A. 60/11. Therefore there is no impediment in implementing Ext.P9. In that view of the matter I dispose of the writ petition directing that on production of a copy of this judgment, the 2nd respondent will ensure that Ext.P9 order is implemented forthwith.

The writ petition is disposed of accordingly.”

3. Prior to this writ petition in the year 2010 an application under 133 Cr.P.C. came to be filed by the writ petitioner before the Sub Divisional Magistrate. A conditional order as per Ext.P9 came to be passed on 16.03.2011 which reads as under:

“Where as I am satisfied from the report No. 152/2010 dated 27.08.2010 of Village Officer, Thiruvazhiad that the opposite party caused an obstruction to pathway and tractor way and also obstructed the flow of canal water by which the paddy cultivation is disturbed.

I, P. Manikandan, Sub Divisional Magistrate, Palakkad do hereby direct and require the opposite party to cut and remove the obstruction of pathway and tractor way and also to restore the flow path of canal water within one month from the date of receipt of this order.

If you have any objection in doing so, you are requested appear before Tahsildar and Executive Magistrate, chittur at 11 a.m. on 20.04.2011 to show cause why this order should not be made absolute and enforced.”

Subsequently on 02.06.2011, Ext.P10 is passed as follows:

“On enquiry made on your complaint, concerned village officer informed me that Sri. Swaminathan has filed O.S. 605/2010 (I.A. No. 2959/2011) before the Munsiff's Court, Chittoor. It is informed you that action will be taken by the RDO on the basis of the final decision in the above suit.”

Section 133 Cr.P.C. with reference to public nuisances reads as under:

“Conditional order for removal of nuisance - (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c) that the construction of any building, or, the disposal of the any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or