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1968 DIGILAW 316 (MAD)

Executive Officer, Kavilumpara Panchayat v. Ammad

1968-09-18

T.C.RAGHAVAN

body1968
JUDGMENT The respondent has been acquitted of an offence under section 84(a) read with section 132(2) of the Kerala Panchayats Act; and the Executive Officer of the Panchayat has filed this appeal. The charge against the respondent was that he caused obstruction, by putting up a fence, to a road of the Malabar District Board running across the Panchayat. The Sub-Magistrate acquitted him on the ground that the road of the Malabar District Board did not vest in the Panchayat, so that the panchayat had no locus standi to prosecute the respondent. The obstruction was not disputed. I may also add that the respondent was once convicted under section 132(1) on his admission that the panchayat had power to prosecute him. The question for consideration is whether for causing obstruction to a road like the one in hand a Panchayat can institute a prosecution. “Public road” is defined under section 2(28) of the Panchayats Act as any street, road, square, Court, alley, passage, cart-tract, footpath or riding path, over which the public have a right of way, whether a thoroughfare or not. The inclusive portion of the definition is not material for the case. section 62(1) dealing with the vesting of public roads in panchayats enacts that all public roads in any panchayat area other than roads classified as National Highways, State Highways and roads of the Malabar District Board shall vest in the panchayat. And this is the ground for the acquittal. Some other sections of the Act may now be noted. section 57(1) dealing with the duties and functions of panchayats provides that subject to the provisions of the Act and the Rules made thereunder, it shall be the duty of a panchayat, within the limits of its funds, to make reasonable provision for carrying out the requirements of the panchayat area in respect of, inter alia, the construction, repair and maintenance of all public roads in the panchayat area other than roads classified as National Highways, State Highways and roads of the Malabar District Board. The same sub- section provides in another clause that the panchayat should make reasonable provision for the lighting of public roads and public places. The other clauses are not relevant. The same sub- section provides in another clause that the panchayat should make reasonable provision for the lighting of public roads and public places. The other clauses are not relevant. section 64 relating to vesting of communal property or income thereof states that any property or income which by custom belongs to, or has been administered for the benefit of the villagers in common, etc., shall vest in the panchayat to be administered by it for the benefit of the villagers, etc. Incidentally, section 63 may also be noted, which provides that all rubbish, sewage, filth, etc. collected by a panchayat shall belong to it. section 89 of the Act authorises the Executive Authority to prohibit or licence or regulate the sale or exposure for sale of any animals or articles in or upon any public road. Lastly, we come to section 84, on which the present prosecution is based. Clause (a) of the section prohibits obstructions, projections or encroachments in or over public roads. Clause (b) provides that no person shall make any hole or deposit any matter in or upon any public road. Now we come to clauses (c) and (e) of the section. The former prohibits the working of a quarry in or the removal of stone, earth, etc., from any place within twenty yards of a public road or of other immovable property “vesting in or belonging to a panchayat”. The latter similarly prohibits the planting of trees on any public road or other property vesting in or belonging to a panchayat. The other clauses are not relevant. The definition of “public road” in section 2(28) is quite wide to include anyroad, street or cart-track, etc., over which the public have a right of way, even if it is not a thoroughfare. This will include National Highways, State Highways and roads of the Malabar District Board. But, National Highways, State Highways and roads of the Malabar District Board are excluded from vesting in the panchayat under section 62 of the Act. The entire reasoning of the Sub-Magistrate is based on this exclusion: since these three types of roads do not vest in the panchayat under the Panchayats Act, the panchayat has no control over them, nor can it prosecute a person who causes obstruction to them. The entire reasoning of the Sub-Magistrate is based on this exclusion: since these three types of roads do not vest in the panchayat under the Panchayats Act, the panchayat has no control over them, nor can it prosecute a person who causes obstruction to them. No provision in the Act is brought to my notice to persuade me to think that the power of the panchayat is confined to roads vesting in them. section 84 (a), under which the present prosecution has been launched, does not make any exclusion of a National Highway, a State Highway or a road of the Malabar District Board. That clause applies to all public roads irrespective of their vesting or otherwise on the panchayat. Similarly, clause (b) also does not speak anything about the vesting of the public roads. In clauses (c) and (e) reference is made to vesting; and that relates to other immovable property in clause (c) and other property is clause (e) and not public roads mentioned therein. These clauses also appear to make a distinction between vesting and the term ‘belonging to’. section 63, to which reference has already been made, may be recalled in this connection. This may mean that the vesting contemplated by section 62 may not even be the vesting of ownership. It may be instructive to refer, at this stage, to the decision of the Supreme Court in The Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust (1957) S.C.J. 167: (1957) S.C.R. 1: A.I.R. 1957 S.C. 344., where their Lordships have pointed out that the word “vest” has not a fixed connotation meaning in all cases that the property is owned by the person or authority in whom it vests. Their Lordships have observed that the property may vest in title, in possession or in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. Their Lordships have also pointed out the varying imports of the word as shown by the provisions of some Indian statutes. In the Panchayats Act also this distinction appears, because, when it speaks of the vesting of communal properties in section 64, it says that the vesting is for the purpose of the administration of the properties. section 57(a) casts a duty on the panchayat to provide funds for the construction, repair and maintenance of public roads. In the Panchayats Act also this distinction appears, because, when it speaks of the vesting of communal properties in section 64, it says that the vesting is for the purpose of the administration of the properties. section 57(a) casts a duty on the panchayat to provide funds for the construction, repair and maintenance of public roads. Here, the Legislature is careful to exclude National Highways, State Highways and roads of the Malabar District Board. But, when the Legislature provides for the lighting of public roads under clause (b) of the same section, no such exclusion is mentioned. This obviously means that the panchayat has a duty to light all public roads within it including a National Highway, a State Highway or a road of the Malabar District Board. It is also meaningless to think that the duty of the panchayat is only to light smaller roads but not parts of major roads like the National Highway, the State Highway or the road of the Malabar District Board within its limits. When the Legislature prohibits obstruction to public roads in section 84 also, there is no exclusion of National Highways, State Highways and roads of the Malabar District Board. This again means that the panchayat has the right to prosecute a person causing obstruction to a National Highway, a State Highway or a road of the Malabar District Board, though they do not vest in the Panchayat. In this connection, the decision of Narasimham, C.J., of the Orissa High Court in Lachaman alias Lakshminarayan Agarwala v. Executive Officer, Bargarh Municipality A.I.R. 1956 Orissa 218. may be referred to with advantage. The learned Chief Justice was considering a provision of the Orissa Municipal Act, which was similar in terms to section 84 of the Kerala Panchayats Act. Thus, the respondent has been wrongly acquitted; and I convict him. He has already been convicted once under section 132(1) and awarded punishment under Schedule III; and the present prosecution is under sub- section (2) of section 132 and under Schedule IV, which provides that a fine upto Rs. 20 per day may be imposed as a continuing offence. Since the legal position was not quite certain, I impose only a fine of Rs. 20 on him treating this as a prosecution under section 132(1) and under Schedule III. Ordered accordingly.