IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.08.2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.29574 of 2007 and M.P.No.1 of 2008 1.C.A.Abdul Azeez 2.J.Sivaraj 3.M.Antony ... Petitioner vs. 1.The Tahsildar, Yercaud, Salem District. 2.K.G.Gopala Krishnan ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari, calling for the records relating to the proceedings of the first respondent dated 17.08.2007 made in Na.Ka.No.1894/07 D, quash the same. For Petitioners: Mr.K.Rajasekaran For Respondents: Mr.V.Arun, A.G.P. for R1 No Appearance for R2 O R D E R
The second respondent is the owner of the building bearing Old No.30/44 A1, New No.806 situated at Main Road, Yercaud, Salem District. The petitioners are tenants under the second respondent. Since an attempt was made by the second respondent to evict the petitioners by force, they filed civil suits in O.S.Nos.269 of 2002, O.S.No.296 of 2002 and O.S.No.122 of 2000 for permanent injunction to restrain the second respondent from dis-possessing them. All the three suits were decreed in favour of the petitioners. The second respondent filed a petition under the Tamil Nadu Buildings Lease and Rent Control Act for eviction of the third petitioner. The said petition was allowed. Challenging the same, the third petitioner has filed R.C.A.No.17 of 2006 on the file of the Rent Control Appellate Authority, Salem and the same is pending.
2. Whileso, there was a news item in a daily on 4th April 2007, stating that the building in question is likely to cause danger to the people who use the main road which is situated adjoining the building. Based on the said news item, the first respondent, Tahsildar claims to have visited the suit property and initiated proceedings under Section 133 of the Code of Criminal Procedure and finally by his proceedings in Na.Ka.No.1894/07 D, dated 17.08.2007 directed the petitioners to vacate the buildings with a further direction to the second respondent to demolish the building within one week, thereafter. Challenging the said order, the petitioners have come forward with the present writ petition.
3. Heard the learned counsel for the petitioners and the learned Additional Government Pleader appearing for the first respondent. There is no representation for the second respondent.
4. The main contention of the petitioners is that the first respondent has got no jurisdiction under Section 133 of Cr.P.C and so the impugned order is without jurisdiction, thereby liable to be set aside.
5. The learned Additional Government Pleader would, however, submit that as per the proceedings of the Principal Commissioner and Commissioner of Revenue Administration in Lr.Roc.Ser.I(I)88453/98 dated 09.04.1999, all the Tahsildars in the State of Tamil Nadu have been appointed as Executive Magistrate and thus, the first respondent has got jurisdiction to pass an order under Section 133 Cr.P.C.
6. I have considered the rival submissions.
7. In my considered opinion, the first respondent Tahsildar has got no power to issue any order under Section 133 of Cr.P.C. The letter relied on by the Additional Government Pleader, which is produced before this Court, would go to show that the Government has appointed Tahsildar of each taluk as Executive Magistrate in terms of Section 20 of Cr.P.C. Therefore, there can be no doubt that the first respondent is an Executive Magistrate having jurisdiction over the Taluk which he heads. But that is not suffice. A close reading of Section 133 of Cr.P.C. would make it abundantly clear that the District Magistrate and the Sub-Divisional Magistrate have been empowered under the statute to exercise the power under Section 133 of Cr.P.C. Any other Magistrate who is specially empowered also can exercise such power under Section 133 of Cr.P.C. It is not as though all Executive Magistrates other than a District Magistrate or the Sub-Divisional Magistrate have got power under Section 133 of Cr.P.C. to pass an order. It is only an Executive Magistrate who has been specially empowered by the Government under Section 133 of Cr.P.C. has got jurisdiction to pass an order under the said provision. The learned Additional Government Pleader would fairly concede that there is no such order issued by the Government under Section 133 of Cr.P.C., whereby empowering the Tahsildar, namely, the taluk Executive Magistrate to exercise the power to pass an order under Section 133 of Cr.P.C. Therefore, since there is no special empowerment under Section 133 of Cr.P.C., I have no hesitation to hold that the first respondent has no jurisdiction at all to pass any order under Section 133 of Cr.P.C and thus, the impugned order is without jurisdiction and therefore, the same is liable to be quashed.
8. The next contention of the learned counsel for the petitioner is that having failed to evict the petitioners either by force or through Court, the second respondent has adopted an ingenious way to approach the first respondent, thereby offering to demolish the building in the event of the petitioners being evicted from the properties by an order under Section 133 of Cr.P.C. A perusal of the records of the first respondent would go to show that the second respondent has made a statement to the first respondent, thereby offering to demolish the building in the event of petitioners being evicted. This shows that the first respondent has acted at the instance of the second respondent, though he does not have any jurisdiction.
9. In view of the above legal and factual positions, the writ petition is allowed and the impugned order is quashed. No costs. Consequently, connected miscellaneous petition is closed.
svki
To
The Tahsildar,
Yercaud,
Salem District