N M SWAMY Vs. STATE

JUDGEMENT

(1.) THE petitioner is the owner of the patta lands in Survey Nos. 481, 482, 483 and 477 in Sengundram village. Survey No. 401 alone is a grazing ground poromboke. The grievance of the State is that the petitioner obstructed the public cart-track which goes from Malrozapuram to Karunilam by the petitioner's causing public nuisance in that he placed 'velikathan thorns' and dug a well in the said public cart-track. The said cart track is reported to pass through Survey Nos. 481, 482, 483, 477, 476, 475, 474, 473, 472, 471, 470. 469, 468, 467, 466 and 401 of Sengundram village.

(2.) ON 10-3-1969 the petitioner appeared before the court of the Executive First Class Magistrate, Chingleput in response to a conditional order, issued Under Section 133 (1), Criminal P. C. When the petitioner was required to desist from causing such obstruction to the general public on the road which is lawfully used by the public, the petitioner denied the existence of any public right in respect of the road. It transpires from the records that the case was thereafter adjourned for the purpose ol taking evidence and examination of witnesses. The learned Magistrate examined five witnesses as P. Ws. in support of the stand taken by the State. The petitioner was questioned about the depositions given by the prosecution witnesses, P. Ws. 1 to 5. The petitioner examined D. Ws. 1 and 2.

(3.) THE First Class Magistrate, after noticing that the place where the well is sunk is the private patta land of the petitioner, finds on the strength of Exhibits that the prosecution has established that there is a road from Malrozapuram to Karunilam and that it is maintained by the Village Panchayai and that it has been repaired and levelled etc, by the use of grader belonging to the Highways department and that the necessary estimates have been sanctioned by the Panchayat authority for the formation of the road, construction of culverts etc. This aspect of the evidence has not been seriously challenged by the petitioner either. During the trial, the Magistrate gave a finding in favour of the State about the existence of the said road and about its proper maintenance. But the trial Magistrate notices that no sanction was obtained from the counter petitioner for forming the road, as in the case of Ex. P. 5, when written consent was obtained from Mr. Koman I. C. S. The First Class Magistrate went to the extent of observing as follows: "the mere fact that no written consent was obtained from the counter petitioner before the road was formed through his lands does not take away the right of the public at this juncture, to use the road which is now vested in the Panchayat and is maintained by it. " He has also taken into consideration from the evidence on xe cord, the fact that the petitioner has not objected to the formation of the road originally, that funds were sanctioned by the Collector and the works were executed through Block Agency like construction of culverts, etc. about ten years ago. The trial Magistrate ultimately found that the long user by the public both as public road or way, as established by the prosecution, raised the presumption of relinquishment by the. petitioner of the right over it. The trial Magistrate made a conditional order requiring the petitioner to desist from causing such obstruction to the general public on the said road which is lawfully used by the public by law, Under Section 137 (3) of the Criminal Procedure Code.