AKBAR J.—Chairman, District Road Committee v. Silva.
1932Present: Akbar J.
CHAIRMAN, DISTRICT ROAD COMMITTEE v. SILVA.
962—P. C., Balapitiya, 17,533.
Road Ordinance—Prosecution under section 86—Road under control of VillageCommittee—Powers of District Road Committee—Ordinance No. 10of 1861, s. 86.
A District Road Committee has power to institute a prosecutionunder section 86 of the Road Ordinance, No. 10 of 1861, in respect ofa road, which is under the control of a Village Committee.
A. PPEAL from a conviction of the Police Magistrate of Balapitiya.Peter de Silva, for accused-appellant.
Wendt, C.C., for the Crown.
February 15, 1932. Akbar J.—
I issued notice on the Attorney-General for argument on the questionwhether a prosecution under section 86 of Ordinance No. 10 of 1861could be brought by a District Road Committee in respect of a roadwhich was under the control of a Village Committee. In spite of the
AKBAR. J.—Chairman, District Road Committee v. Silva.
section vesting all roads, &c., within an area administered by the VillageCommittee in the Village Committee, I am of opinion that the DistrictRoad Committee has power to enter a prosecution under section 86 of theRoad Ordinance, No. 10 of 1861, in respect of such roads. Unlikethe Local Government Ordinance, No. 11 of 1920, which expressly divertedthe authority of the District Road Committee over roads within the areaof a local authority created under that Ordinance and transferred itto the Urban District Council, there is no section in the Village CommunitiesOrdinance transferring the authority of a District Road Committee overroads within the area administered by a Village Committee to the VillageCommittee. Apart from this point, however, I think there is no evidencein this case of the kind required to prove that this road was a publicroad within the meaning of the Road Ordinance. It has been laiddown repeatedly in several cases by this Court, especially in the cases ofHodson v. MohammedSaravanamuttu v. Sathasivams, Allis Hamy v.Arnolis Hamy3 and Sandarasekera v. Sinnathamby *, that there must beeither proof that the road was constructed by a public authority or thatit has been used as a public road by people inhabiting the neighbour-hood from time immemorial. There is no such evidence in this case.The Mudaliyar, Wellaboda pattu, stated that he had known this road forthe last 10 years and that it had been used occasionally as a cart road andmaintained by the Village Committee for the last 12 years. The VidaneArachchi says that the road was used as a public road for over 20 yearsand that it was maintained by the Village Committee. The maintenancefor a few years by the Village Committee is not the kind of evidencerequired according to our law as stated in the cases quoted by me above,which will make the road a public thoroughfare. There must beeither evidence of user from time immemorial or it must have beenconstructed by a public authority. In this case the evidence is notsufficient to prove that the road was a public ' thoroughfare withinthe meaning of the Road Ordinance. Further, the mere statementby the Mudaliyar or the Vidane Arachchi that this road had been main-tained by a Village Committee for a few years appears to be hearsayevidence. According to the accused there was a footway in front of herhouse which was used occasionally by the public, but she denied thatit was a public footway. Then she went on to state that the VillageCommittee tried to enlarge this pathway into a cart road for the firsttime after she built the house, and that this prosecution was an attemptto take a portion of her land for the erection of the cart road withoutpayment of any compensation for the portion of the land which was to beabsorbed into the cart road. There is some evidence to support thisdefence in the record. As I have stated, there is no evidence to provethat this road along which the accused is said to have built a house is apublic road within the meaning of the Road Ordinance, No. 10 of 1861,according to the rules laid down by the authorities cited by me. Theconviction is set aside and the accused acquitted.
3 1 Tambiah’s Reports 26.
*25 N. L. R. 139.
> 23 N. L. R. 348.
3 Tambiahr's Reports, 9G.
CHAIRMAN,DISTRICT ROAD COMMITTEE v. SILVA