The absence of proper procedural adherence under Sections 133 and 138 of the CrPC invalidates the removal order.

ORDER

This Writ Petition has been filed challenging the impugned order in Na.Ka.No.1816/2024/A4, dated 16.03.2024 passed by the 1^st Respondent states that the petitioner was directed to remove the encroached area comprised in Survey Nos. 116/5 measuring a total extent of 0.41.50 ares in respect of 360 squre meters situated at Athivaraghapuram Village, R.K.Pet Taluk, Thiruvallur District.

2. The case of the petitioner is that the petitioner owned property comprised in S.F.No.116/6 measuring to an extent 0.16 cents under Patta No. 547 situated at Athivaragapuram Village, R.K.Pet, Thiruvallur District. Apart from, that the petitioner has also purchased comprised in SF.Nos. 115/4, 115/5, 116/5 and 116/6 situated at Athivaragapuram Village, R.K.Pet, Thiruvallur District. The petitioner is in possession and enjoyment of the suit property and cultivating the same by several agricultural lands. While so, the second respondent under initiated proceedings before the 1^st respondent under Section 133 of the Code of Criminal Procedure, as if the petitioner obstructed the public pathway in the said lands.

3. On receipt of the representations submitted by the petitioner, the 1^st respondent issued show cause notice to the petitioner and passed an order stating that the petitioner was directed to remove whatevere the obstructions in the public pathway used by the petitioner. It is relevant to extract the provision under Sections 133 and 138 of the Code of Criminal Procedure are hereunder:-

“133. 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 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 carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order—

(i) to remove such obstruction or nuisance; or (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop the construction of such building, or