Judgment :- The Order of the Court was as follows : When the miscellaneous petition came up for hearing, by consent of both parties, the main writ petition is taken up for final disposal. 2. The petitioner has come up to this Court praying to issue a writ of mandamus directing respondents 1 and 2 not to put up any bore well in S. No. 275/1 of Konnur village, Srivilliputhur taluk Kamarajar district which is a public pathway. 3. The petitioner is an agriculturist and he owns nearly 15 acres of land, as alleged by him at Konnur village, Srivilliputhur taluk. The petitioner alleges that survey number 275/1 is a road intended for movement of vehicles, carts etc., that the said road runs for about 4-1/2 kilometers and that on both sides of the road there are agricultural lands cultivating paddy, sugarcane and chilly etc. The petitioner also alleges that the said road connecting the said Konnur village with Watrap used for transporting fertilisers, seeds, seeds, paddy and sugarcane, that it is in existence for more than 60 years and that it is about 13 feet in width. The petitioner also alleges that near his land on the public road, according to the petitioner, which bears S. No. 275/1, the respondents are attempting to lay a bore well for supply of drinking water to villagers numbering about 2500. The petitioner's grievance is that if such a bore well is put up in the public road and such consequent construction of structures for installing motor pump set, which board etc. will block free movement in the public road. The petitioner also alleges that it will affect the agriculturists in respect of transport of fertilisers, agricultural produce etc. The petitioner further alleges that if a bore well is laid in the public road, it will obstruct the ingress and egress to the agriculturists who are having lands on both sides of the road and that it will clearly show the non-application of mind of the respondents by selecting the site for installing a bore well for supply of water to the villagers. It is also alleges that nobody from Ground Water Department, a wing of Public Works Department or geologist visited the village and conducted any test to ascertain existence of sufficient ground water before attempting to put up a bore well. It is also alleges that nobody from Ground Water Department, a wing of Public Works Department or geologist visited the village and conducted any test to ascertain existence of sufficient ground water before attempting to put up a bore well. The petitioner also alleges in the affidavit that in the event of laying the bore well and consequent construction of pump set room in the public path way, there will be only 2 feet left for villagers for the use of the said road to the villagers. It is also alleged that no Panchayat Board is in existence, that the matter of installation of bore-well in the public path way used by villagers of Konnur village was not at all placed before the District Development Council, that the action of the respondents in making a hole and putting up a pump room in the public street is in violation of the provisions of Section 186 of the District Municipalities Act. It is further stated in the affidavit that a bore well is in existence about 2 miles east of Konnur village that if the same is depended it will solve the drinking water problem of the village and that instead of depending on the said bore well the respondents are making attempts to put up a bore well in a public road which is against public interest. It is also stated in the affidavit filed in support of the writ petition that at Annadhinam-poromboke land bearing No. 601/1 at Konnur village, after scientific examination it was revealed that there is sufficient water supply to villagers for drinking purpose and that the said land is available for putting up a bore well for water for drinking purposes. It seems that the petitioner made a representation on 10-8-1992 before the first respondent herein and that the respondents are proceeding with the work of installation of bore well instead of taking action on the representation of the petitioner herein. With these allegations, the petitioner has come up before this Court with the prayer as stated supra. 3.1 W. M. P. No. 20083 of 1992 has been filed by third parties who represent themselves as they are representing the interest of the general public (i.e.) villagers of Kunnur, Watrap Srivilliputhur taluk. The said petition was ordered by this Court on 22-9-1992, and they are impleaded as respondents 3 to 5 in this writ petition. 3.1 W. M. P. No. 20083 of 1992 has been filed by third parties who represent themselves as they are representing the interest of the general public (i.e.) villagers of Kunnur, Watrap Srivilliputhur taluk. The said petition was ordered by this Court on 22-9-1992, and they are impleaded as respondents 3 to 5 in this writ petition. The impleaded respondents 3 to 5 have filed a counter affidavit stating that they along with other villagers collectively and in public interest gave a representation to the Chief Minister of Tamil Nadu requesting for provision of drinking water since for the past eight months they are suffering from acute drinking water scarcity. It is also stated in the counter affidavit that since the well in the Panchayat Union which supplied drinking water to the village dried, the villagers approached the second respondent in person on 14-4-1992 and that the second respondent assured the villagers that steps will be taken provide facilities to provide drinking water. It is also claimed in the counter affidavit that the second respondent inspected the village on 14-7-1992, that the entire villagers en masse represented about their drinking water problem that the second respondent assured them that he would take immediate steps to redress their grievance and that again on 19-7-1992 the villagers sent a representation to the respondents 2 and 3 informing that the entire village would be conducting a dharna in case of failure to take immediate steps for providing drinking water to the village. It is also stated in the counter affidavit that the Rural Welfare Officer of Kunnur group by later dated 22-7-1992 informed about the decision of the villagers to hold agitation to the Commissioner, Panchayat Union, Watrap and that the Commissioner, in turn, brought to the notice of the second respondent herein about the situation by letter dated 24-7-1992. Pursuant to the respondentations of the villagers, it is claimed in the counter affidavit that the second respondent passed an order dated 14-8-1992 sanctioning to dig up a bore well. It is also stated in the counter affidavit that the Geologists who had inspected, selected two sites in Survey Nos. Pursuant to the respondentations of the villagers, it is claimed in the counter affidavit that the second respondent passed an order dated 14-8-1992 sanctioning to dig up a bore well. It is also stated in the counter affidavit that the Geologists who had inspected, selected two sites in Survey Nos. 275/1 and 275/5 for digging bore wells in which there was availability of under ground water that S. No. 275/5 being a patta land, S. No. 275/1 was approved for digging the bore well, that the said land is a Government poromobke even though it is used as a cart track by the adjoining land owners, that the width of the cart track is 13 feet, that on the southern extreme side for cart track 6 inches bore well was dug up on 18-8-1992 by the Watrap Agro Engineering Service Co-operative Center Limited and that they also submitted a report on 19-8-1992 for completion of bore well. In the meantime the petitioner has come up. before this Court and obtained an order of interim injunction. It is also stated in the counter affidavit that the allegation made in the affidavit by the petitioner that the pumpset and motor room would be a hindrance to the movement of carts on the track is not correct since the motor room is proposed to be constructed only on the patta land in S. No. 284 belonging to one late Ramasundaram, that his legal heirs have given consent for putting up the motor pumpset room and that in any case the 6 inches bore on the extreme southern side of the track would not be of any obstruction as apprehended by the petitioner when the motor pumpset room is proposed to be constructed on the patta land without any hindrance to the passage of the carts on the cart track. It is also claimed in the counter affidavit that the land in S.No. 275/1 is a Government poromboke which is not vested with the Panchayat as alleged by the petitioner, that the Collector is the competent authority to do any execution work in the said cart track poromboke and as such as the provisions of Sections 82 and 84 of Tamil Nadu Panchayat Act, 1958 will not apply to the facts of the case. It is also stated that the welfare measure taken to provide basic facilities such as provision of drinking water facilities cannot be questioned by such persons who try to project their selfish interest above the welfare of 4000 inhabitants of the villagers. It is also stated that there is a pucca road connecting the village with Watrap town through Krishnan koil and that is maintained by P.W.D. and Panchayat Union. It is also stated that the disputed cart track is not the access to the Watrap town as alleged by the petitioner, and that on the other hand it is only a small cart track used by handful persons owning the adjoining lands. It is also stated in the counter affidavit that the petitioner cannot dictate the respondents 2 and 3 to dig the bore well in a place of his choice, that in the instant case, the site was inspected, tested and recommended by the Geologist from the Government considering the availability of ground water and other relevant factors, that the bore well was dug on 18-8-1992 in pursuance of the sanction of the second respondent by order dated 14-8-1992 and that the alleged representation dated 10-8-1992 purported to have been given by the general village public is not the one sent by the villagers belonging to Kunnur village but by the villagers belonging to adjacent village at the instigation of the petitioner. 4. The second respondent herein has filed a counter affidavit. It is stated in the counter affidavit that the land comprised in S.No. 275/1 of Kunnur village to an extent of 0.07.0 hectares is a part of cart track poromboke land, that it is only for the movement of small vehicles like carts and tractor and that is not for the heavy vehicles like buses as alleged by the petitioner. It is also claimed in the counter affidavit that the width of the road is only 13 feet, that it is intended for movement of bullock carts and not for heavy vehicles, that bullock carts along are plying on the cart track and that there is one pucca tar road via Krishnan kovil to Kunnur village and that heavy vehicles are plying on the said road. It is also claimed in the counter affidavit that the Assistant Hydro Geologist TWAD. It is also claimed in the counter affidavit that the Assistant Hydro Geologist TWAD. RWS Division, Virudhunagar has inspected the Kunnur Village on 3-8-1992 and selected the land situated in S. No. 275/1 cart-track poromboke and that only after proper survey only the said point was selected and a bore well was dug out on 18-8-1992 through Watrap Agro Engineering Service Co-operative Center Limited. It is also claimed in the counter affidavit that the entire population of Kunnur village, numbering about 6000, is benefited by digging of this bore well, that as per the representations of the villagers so many times, for providing bore well for the supply of water, the Collector inspected the village on 14-7-1992 and issued instructions to take action to provide one deep bore well immediately and as such the allegation of the petitioner that no permission has been accorded for providing bore well is not correct. It is also stated in the counter affidavit that since the land in question is a Government poramboke land and classified as a cart-track, the first respondent has got power to accord permission for digging bore well without hindrance from the usage of the said land for the transport of bullock cart etc. It is also claimed in the counter affidavit that no hindrance will cause either to the public or to the petitioner due to this bore well, that the size of bore well is only 6 inches diameter and situated only at the southern end of the said cart tack and that it will not be a hindrance to the public. It is also stated that the remaining 12-1/2 feet out of 13 feet would more than sufficient for the easy and free movement of the carts, tractors, etc. which would hardly require 6 feet and 9 feet respectively. It is also claimed in the counter affidavit that the present owner of the land on the northern side of Government poramboke land situated in S. No. 284 one Sivaguruthanapillai is also willing to donate a portion of the land for the construction of pump room etc. and as such there is no room for apprehension for the free flow of carts on the cart track. The allegation that the said public cart track is used for the movement of lorry and tractors etc. is denied. and as such there is no room for apprehension for the free flow of carts on the cart track. The allegation that the said public cart track is used for the movement of lorry and tractors etc. is denied. It is stated that the cart-track is being used for movement of bullock carts only and that the said cart-track is slowly being encroached by the writ petitioner and other land owners abutting the cart track. It is also claimed in the counter affidavit that the bore well which was already laid on the particular point is based on the geologist survey report and as such the contention of the petitioner that proper application of mind has not been given before selecting the site is not at all correct. The allegation that nobody from Ground water wing had inspected the site before putting up the bore well is denied. It is claimed that the Assistant Hydro Geologist, TWAD, RWS Division, Virudhunagar inspected the site on 3-8-1992 and recommended the availability of underground water and that only on considering the said report S. No. 275/5 was excluded as it is a patta land and S.No. 275/1 being selected a sit is a Government poramboke. It is claimed in the counter affidavit that the pump room is proposed to be constructed at the land which belongs to one M. Sivaguranatha Pillai, that the legal heirs of the said owners of the land have given consent and as such there are no possibilities for the obstruction of the carg-track as alleged by the petitioner. It is also claimed in the counter affidavit since the said land is already vested with Panchayat and that the second respondent has now delegated with powers of Special Officer of the Panchayat to perform the duties and functions of the President of the Panchayat the Collector who is also the Chairman of DDC has accorded permission to provide bore well to Kunnur Panchayat. It is also claimed in the counter affidavit that the entire right on the vested pormabokes regarding usage maintenance etc. fully vests with the Panchayat concerned, according to Section 72 of the Tamil Nadu Panchayat Act, 1958 and the rules and orders issued therein. It is also claimed in the counter affidavit that the entire right on the vested pormabokes regarding usage maintenance etc. fully vests with the Panchayat concerned, according to Section 72 of the Tamil Nadu Panchayat Act, 1958 and the rules and orders issued therein. It is also claimed in the counter affidavit that it is one of the primary functions of the Panchayat to provide drinking water supply to the villagers of the Panchayat, that the Commissioner of the Panchayat Union has been empowered with the powers to act and take all efforts to provide bore well, that the provisions of the District Municipalities Act is not at all applicable to Panchayats and Village Panchayats are being administered under the provisions of Tamil Nadu Panchayat Act, 1958. It is stated that the distance between the petitioner's open well and deep bore well dug is approximately more than 50 feet and that the petitioner's grievance will not be a bar in the execution of works involving public interest. It is categorically stated that there is no obstruction for the uninterrupted usage of cart track even after digging 6 inches bore well at the southern edge of the existing track having a width of 13 feet cart track and providing pump room in the patta land nearer to the northern side of the land. It is also claimed in the counter affidavit that the use of public path way is no way affected and the rights of the public are also not affected as alleged by the petitioner. It is also claimed that the representations of the petitioner dated 10-8-1992 were considered in addition to long felt representations of the villages of Kunnur for drinking water and decided to dig bore well in S. No. 275/1. 5. A reply affidavit has been filed by the petitioner. The said affidavit is a counter to the affidavit filed by the impleaded respondents. It is stated in the reply affidavit that the petitioners, who want to get themselves impleaded in the writ petition, cannot be impleaded at all. It is also stated in the reply affidavit that it has been uniformly held by all the High Courts that a Government poramboke used as a pubic road vests with Municipality or Panchayat Board though ownership does not vest with them. It is also stated in the reply affidavit that it has been uniformly held by all the High Courts that a Government poramboke used as a pubic road vests with Municipality or Panchayat Board though ownership does not vest with them. It is also stated that if a road running in a Government poramboke is used only a pathway, it could not be put to any other use. If is also stated that since it has been admitted that a bore well has put in the said road, it is not legally permissible. The petitioner refers to a decision of this Court in Veeriah Asari alias Veerachari v. Salem Municipality 1992 (2) MLW 124 wherein it has been held that when a land intended to be used only as a street has been classified as Government poromboke then no part of it can be leased out or permitted to be sued for any other purpose. It is also stated that once a poramboke land is used as a street under no circumstances even a part of it could be put to any other use. With regard to the allegation that legal biers of Ramasundaram Pillai had given consent to construct a pump room in S. No. 284, it is stated in the reply affidavit that the said survey number has been leased out to the petitioner, that he is in possession of the said land as a cultivating tenant and that there is no question of giving consent either by the owners of the said land or the petitioner, the cultivating tenant. It is also stated that the version put forward by the Block Development Officer regarding S. No. 284 of Kunnur village is contrary to the version of the impleaded respondents. It is also stated in the affidavit that the width of the track being 13 feet 3 inches, that a bore well cannot be laid and that some other place may be chosen for putting bore well. It is also stated in the affidavit that the width of the track being 13 feet 3 inches, that a bore well cannot be laid and that some other place may be chosen for putting bore well. The petitioner refers to the decision in the Municipal Board Mangolur v. Mahadeooji Maharaj, in Rajah Saheb Meharban Dostan Sri Rajah Row Venkata Kumara Mahipathi Surya Rao Bahadur Garu, Sardar Rajahkundry Sarcar v. The Chairman Municipal Council Cocanada 1936 (71) MadLJ 749 : 1936 AIR(Mad) 919 ) in S. Sundaram Ayyar v. The Municipal Council of Madurai and The Secretary of State for India in Council 1902 (25) ILR(Mad) 635 : 12 MadLJ 37 in Modhu Sudan Kundu v. Promoda Nath Roy 1893 (20) ILR(Cal) 732 for the proposition that it is not open to the Municipalities to claim any right in the sub soil and that the same will be applicable to Panchayai Board also. 6. Mr. S. K. Sundaram, learned counsel for the petitioner contends that the public pathway or cart track in this case cannot be used for any other purpose and that the petitioner being a cultivating tenant, no other person can give a sanction to construct a pump set room as alleged in the counter affidavits of the respondents. It is also contended by the learned counsel for the petitioner that adjacent owner has not given any consent for construction of pumpset room, that the width of the cart track is not 25 feet that the width is only 13-1/2 feet and that it is not fit for digging up a bore well there. Learned counsel also relies upon the decisions in the Municipal Board, Mangalur v. Mahadeooji Maharaj, in Rajah Saheb Meharban-I-Dostan Sri Rajah Raw Venkata Kumara Mahipathi Surya Rao Bahadur Guru, Sardar Rajamundry Sarcar v. The Chairman, Municipal, Cocanada 1936 (71) MadLJ 749 : 1936 AIR(Mad) 919 ), in G. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council 1902 (25) ILR(Mad) 635 and in Modhu Sundan Kundu v. Promoda Mathu Roy 1893 (20) ILR(Cal) 732 and contends that the Municipality cannot claim any right in the sub soil and that the same principle will be applicable to Panchayat Board also. 7. Per contra, Mr. 7. Per contra, Mr. K. Alagirisami, learned Senior Counsel appearing for the respondents 3 to 5, since impleaded, after referring to Sections 2(27), 2(28) of the Tamil Nadu Panchayats Act, contends that there is no obstruction for the use of the public road in this case, if it is looked at the backdrop of Section 82(b) of the Panchayats Act. The learned senior counsel also contends that assuming that there is inconvenience for some persons, since there is no drinking water facility in the said village, public interest should weigh against the interest of a private person. 7.1 Learned Government Advocate, appearing for the respondents 1 and 2 contends that the provisions under the District Municipality Act, 1920 will not be relevant to the village in this case, since it is governed by Tamil Nadu Panchayat Act and that the Tamil Nadu Panchayats Act alone has to be looked into. 8. I have considered the arguments of Mr. S. K. Sundaram, the learned counsel for the petitioner, Mr. K. Alagiriswami, the learned Senior Counsel appearing for the respondents 3 to 5 and of the learned Government Advocate appearing for the respondents 1 and 2. The short point that arises for consideration is whether the cart-track used by the petitioner and other villagers is a public road as per the provisions of the Panchayats Act, and on the facts of this case. It is an admitted fact that the cart track in S. No. 275/1 of Kunnur village is poromboke land and its width is 13-1/2 feet, and a bore well of 6 inches width had been dug up. 9. When considering the question regarding the right of Zamindar to trees of spontaneous growth, Varadachariar, J. in Rajah Saheb Meharban-I-Dostan Sri Rajah Raw Venkata Kumara Mahipathi Surya Rao Bahadur Guru, Sardar Rajahmundry Sarcar and Maharaja of Pithapuram v. The Chairman, Municipal Council, Cocanada 1936 (71) MadLJ 749 : 1936 AIR(Mad) 919 ), it has been held that the Zamindar as owner of the adjoining land will also be the owner of the soil of the puntha and of trees spontaneously growing upon it subject to the right of the public to use it as highway. In Modhu Sudan Kundu v. Promoda Nathw Roy 1893 (20) ILR(Cal) 732 it has been held by a Division Bench of Calcutta High Court that when considering Section 10 of Bengal Act III of 1864 does not deprive a person of any right of private property that he may have in land used as a public Road, nor does it vest the sub soil of such land in a municipality. A Division Bench of this court in S. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council 1902 (25) ILR(Mad) 635 : 12 MadLJ 37 has held that while considering the provisions of Section 3(27) of the Madras Municipalities Act, Act IV of 1884, when a street is vested in a Municipal Council, such vesting does not transfer to the Municipal Authority the rights of the owner in the site of soil over which the street exists. In Sree Rajah Uppalapti Suryanarayanaswara Jogi Jagannadaraju Guru v. The Taluk Board, Rajahmundry by its President 1935 (69) MadLJ 269 : 1935 AIR(Mad) 810 ), it has been held that 'Puntas and or village tracks are public roads within the meaning of Section 60 of the Madras Local Boards Act and they are therefore vested in the Taluk Board under the provisions of that Section and that the vesting confers on the Board such property only as is necessary for the control, protection and maintenance of the road as a highway for public use and not the absolute right of ownership over the land. In Veeriah Asari @ Veerachari v. Salem Municipality 1992 (2) MLW 124 Srinivasan, J. had an occasion to consider the provisions of the Tamil Nadu Municipalities Act, while considering Sections 162, 180-A, 182 and 183 of the Tamil Nadu District Municipalities Act the learned Judge has held that once it is admitted that the land is intended to be used only as a street and has been classified as 'Street Poramboke' then no part of it can be leased out or be permitted by the Municipality to be used by any person for any other purpose. It has also been held that such user will undoubtedly interfere materially with the use of the property as a road. It has also been held that such user will undoubtedly interfere materially with the use of the property as a road. The learned Judge in that case followed the earlier decision in Zahara Bi v. Sheik Dawood, 1966 (1) ILR(Mad) 550 , wherein the law has been very clearly elucidated by the learned Judge and it is pointed out that a street has to be used only as a street and the Municipality cannot put it to a different use. That was a case where admittedly it was a street and it is not open to the Municipality to lease out the same to the third parties, for having super structure. In Mangalur Municipality v. Mahadeoji, it has been held that a Municipality could not put up a structure on a Municipality road on passing through plot of land owner. In that case, it has been further observed as follows: (at p. 1149) "........... The law on the subject may be briefly stated thus: Inference of dedication of highway to the Public way may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent land marks and the manner and mode of its maintenance usually indicate the extent of the user ..................." 10. Section 2(28) of the Tamil Nadu Panchayats Act, 1958 defines public road. A cart-track is included within the definition of public road. Section 82 of the Tamil Nadu Panchayats Act, (hereinafter referred to as the 'Act') prohibits obstructions in or over public roads. Sub-Section (1)(b) of Section 80 of the Act reads as follows: " No person shall, except as permitted by rules made under this Act and except in accordance with the condition imposed by a licencee made under this Act and except in accordance with the condition imposed by a licencee made requisite by such rule- ... ... ... ... ... ... (b) make any hole or deposit any matter in or upon any public road ........ Section 76 of the Act speaks of vesting of Public roads in pachayats. ... ... ... ... ... (b) make any hole or deposit any matter in or upon any public road ........ Section 76 of the Act speaks of vesting of Public roads in pachayats. Under S. 76 of the Act all public roads in any village or town shall vest in the panchayat together with all pavements etc. It is clear from the facts of this case that the width of the cart-track is only 13-1/2 feet and it has been used as a public pathway under the provisions of the Panchayat Act. Whether a bore well can be dug in the road i.e. in the cart track remain to be decided. It is also seen from the averments made in the counter affidavit by the respondents that the adjoining land where the bore well has been dug and where the pump room is proposed to be dug up is in possession of the petitioner herein as he is a cultivating tenant. When he is in possession of the land as cultivating tenant I am of the view no permission can be granted by anybody to construct a pumpset and motor room. So the statements made by the respondents that consent obtained from the owners of the land for the construction of pumpset and motor room cannot be countenanced. If that conclusion is arrived at, the contentions of the learned counsel appearing for the respondents and the averments made in the counter-affidavit that there will not be any hindrance for the traffic in the cart track cannot be accepted. As rightly pointed out by Mr. S. K. Sundaram, the learned counsel for the petitioner if a pumpset is constructed in the cart-track of 13-1/2 ft. naturally there will be no obstruction. The alleged consent obtained from the owners of the land also will not be treated as a valid one, as I have already stated, the petitioner herein is the cultivating tenant and he is objecting to it. On the principles of the decided cases mentioned above. I am of the view that the public road (i.e. a cart-track in this case, cannot be put in use for any other purpose. It is not an answer to say that there is a pucca road leading to main roads and factories etc. It is admitted more or less that the said cart-track is being used as a road for so many years. It is not an answer to say that there is a pucca road leading to main roads and factories etc. It is admitted more or less that the said cart-track is being used as a road for so many years. As such, on the simple ground that the public road i.e. cart-track in this case, cannot be put in any other use, the contention of the learned counsel for the petitioner has to be upheld.The principle laid down by the Supreme Court in Mangalur Municipality v. Mahadeoji, squarely applies to the facts of this case that the Sections of Panchayat Act, in so far as this petition is concerned is in pari materia to S. 116(g) of the U.P. Municipalities Act, which was interpreted in that case. As it has been held that the municipality cannot have any right to put up structures on vacant site which are not necessary for maintenance or user of it as a pathway. The same principle will have to be applied in these facts of this case also and as such, I am of the view that a writ of mandamus as asked for has to be issued. In the result, the writ petition is allowed. It is open to the respondents to select any other site and dig up a bore-well in accordance with the law. As the bore-well has been dug, it cannot be put to use will be the direction in this case. In the circumstances of the case, there will be no order as to costs. Petition allowed.