1. Petitioners seek to review the order of the Subdivisional Magistrate, Ramnad in regard to rights of thoroughfare claimed by the Nadars of Aruppukottai and denied by the Chettis of that place. The rights claimed are set forth in sub-paras, (a) to (f) of para. 3 of the lower Court judgment. About (b) and (e) there is no longer any dispute; the lower Court order stands.
2. As regards (a) and (c) as sot forth in para. 12 of the lower Court order the Nadars were restrained from exercising these rights by magisterial order in 1928 and 1929, and therefore cannot be said to have exercised them during the last occasions before the institution of the inquiry in January 1931. This brings them within the mischief of the proviso to Sub-clause 2, Section 147, Criminal P.C. The learned Magistrate has sought to get over the difficulty by importing into the proviso a gloss, and adding to 'unless the right has been exercised on the last of such occasions,' or its exercise on such occasions has been prevented by circumstances beyond the control' of the parties seeking to exercise the right. There is nothing in this section to warrant the gloss, and its only authority is an unreported case from Bombay In Re: Basapppa Rachappa A.I.R.1925Bom.536. The learned Judges observe that by a strict interpretation of the statute, if those who assert the right have refrained from its exercise, on the last possible occasion they cannot claim relief under Section 147; but proceed to apply a looser interpretation. With all respect there appears to be no justification for any such judicial procedure. The proviso is perfectly plain, and the conception of circumstances beyond the parties control opens up a wide field of inquiry which was obviously never intended by the legislature. In these matters there is no room for judicial refinement. The statute arbitrarily lays down the circumstances in which a Magistrate can take summary action. Possibly the ambit of those circumstances may be advantageously enlarged but that is a matter for the law maker and not for the Judge. The Judge's duty is to interpret, not to make the law. And here it may be added that the Magistrate has acted improperly in merely citing an unauthoritative ruling without himself examining the question when it was brought to his notice. If he had brought his mind to bear upon the point and had come to the same conclusion as that of the ruling, there would be no necessity to cite it and if his conclusion differed, the ruling was in no way binding upon him. Most of the errors of Subordinate Courts are traceable to the practice of reading the commentary instead of the statute.
3. When the Nadars were originally restrained from exercising the right it was open to them to plead that they had exercised it upon the previous occasion and to demand an inquiry; for presumably it was only upon apprehension of a breach of the peace that they were restrained. But if they preferred to desist from the exercise of their right, they cannot come a year or two afterwards and demand the same inquiry, for they are barred by this proviso. It must be found therefore as regards (a) and (c) that the lower Court acted without jurisdiction. Its order in regard to (a) and (c) is sat aside.
4. It may be added that 'to exercise' means much less than 'successfully and completely to assert.' The root meaning of 'to exercise a right', is to take it out of its box, and a very small gesture on the part of the people obstructed might be counted as 'exercise.' Possibly this view of the fact was a better solution of the Bombay dilemma.
5. As regards (d) there is the evidence of the priest, P. W. 2, that for the last eleven years a procession has gone to the garden east of the Siva temple, and has returned by the same route.' ' Same route' clearly refers to the sentence just above:
The procession then comes back to the temple along the Virudunagar road, and after going through the four streets round the temple.
6. There is no reason to interfere with the order as regards (d).
7. As regards (f) it cannot be said that the finding at the end of the order is ill founded. If parties have a right of user of a thoroughfare it is a fair presumption, in the absence of clear evidence to the contrary, that they have used it. The order in regard to (f) stands.