1. This is a defendants' appeal in a suit in which the plaintiff sought for the demolition of a certain construction, injunction and damages. The plaintiff, His Highness the Maharaja of Jaipur, is the proprietor of certain lands known as Katra Jai Singh Sewai within the Municipal boundaries of Allahabad. Through this plot of land there runs a public street. Defendants 2 and 8 are owners or occupiers of shops and houses which abut on the said street. The street is a public street within the meaning of the Municipalities Act, 1916, and under Section 116 thereof the said public street vests in and belongs to the Municipal Board of Allahabad. Projecting out from the buildings which they occupy, and over a part of the said public street, defendants 2 and 3 with the permission of the Municipal Board, defendant 1, erected a portico to afford shelter to their shops and to the members of the public visiting these shops for the purpose of purchasing goods sold therein.
2. It is not disputed that the plaintiff was the owner of the land upon which the public street was constructed. As owner thereof the plaintiff claims proprietary rights a caelo usque ad centrum, that is, he claims as owner of the land everything pertinent or belonging thereto whether above or below the ground, and to prevent any other person encroaching upon the said land above or below the surface. It is not certain when and how the Municipal Board took over the said public street, but that it does now vest in and belong to the Board is not disputed. Defendants 2 and 3 maintained that they erected the construction which the plaintiff now asks to be demolished after having obtained the sanction of the Municipal Board. Under Section 209, Municipalities Act, the Board is empowered to give sanction for the erection of projections over streets and drains. It appears that the portico built by defendants 2 and 3 projected over a drain. The sanction to erect the portico therefore was given under Section 209(1)(b).
3. Learned Counsel for the respondent maintains that Section 209, refers to 'streets' and not to 'public streets' and that therefore the Municipal Board was not empowered to grant permission for the erection of the structure about which the plaintiff complains. He argued that in the Municipalities Act, a clear distinction is drawn between a street' and a public street' and in support of this argument ho referred to Section 2, the definition section. There can be no doubt however that the term 'street' as used in the Municipalities Act includes a 'public street.' It is the wider term and the term 'public street' is used in the Act only when it is intended to distinguish a street declared to be a public street by the Board under the provisions of Section 221 of the Act, from other roads and streets. Where the term 'street' is used in the Act, it clearly includes a public street. In any event, in our opinion, the Municipal Board was empowered to grant permission for the erection of the portico under Section 180 of the Act. It was further maintained however for the respondent that the Municipality's permission to erect the portico could not in law entitle the defendants to disregard the rights of the plaintiff as proprietor of the land on which the street, was constructed. Even though counsel argued, as representing the public the Municipality had certain rights in connexion with the construction and control of the public street, the plaintiff's rights to everything below the street and to the air space above the street were left unimpaired and he contended that the erection of the portico constituted an in fringement of his right to the air space above the public street. The learned Munsif in the Court of first instance dismissed the suit on various grounds; the learned Subordinate Judge in the lower appellate Court however reversed the decision of the learned Munsif and decreed the plaintiff's claim for injunction and demolition. He dismissed however the plaintiff's claim for damages.
4. Learned Counsel for the appellants maintained that inasmuch as the street in question vested in and belonged to the Municipality, the Municipality became the owner not only of the street itself, but also of all rights to everything below the street and to the air space above it. We are of opinion that this claim is not well-founded. The authorities to which we were referred clearly established that the owner of the land over which the public street runs is not completely deprived of all his rights though the street vests in and belongs to the public authority. It is unnecessary for us in the present suit to decide what are the exact limits of the right which vests in the public authority or to determine what is the nature of the right which is left with the owner when the street is taken over. That the owner's right is limited when a street is taken over and vests in and belongs to public authority is beyond question. The owner, for example, is not entitled to interfere with the Municipality in the discharge of its duties in maintaining and keeping open a street. It is equally certain that neither the Municipality nor the owners or occupiers of houses abutting a public street are entitled to appropriate any minerals which may be beneath the street the ownership of which we do not doubt remains with the proprietor. It may be also that there are certain rights to the air space above the street to which the proprietor of the land is entitled and with which the Municipality and the owners or occupiers of house abutting the street might be prohibited from interfering though it is not so easy to imagine what kind of interference with his rights in the air space above the street the proprietor could invoke the law to prohibit. In our view, as already observed, it is not necessary for the decision of the present appeal to define the exact limits of the rights of the Municipality and the public on the one hand and of the proprietor of the solum on the other. It appears to us that the question of what constituted an infringement by a Municipality or by members of the public of the rights of the proprietors to the air space above a street is a question of degree. It may be difficult to envisage a case of a clear infringement by a Municipality or the members of the public of the proprietary right to the air space above a street, but in our view the question whether the erection on the portico by the defendants constitutes an infringement of those rights presents no difficulty. The act of the defendants in the present suit is not a 'borderline' act; it is in our opinion well within the limits of noninfringement.
5. The Municipality are clearly in their capacity as custodians of the public interest entitled to take reasonable steps for the convenience and comfort of the public who use the public street. The owners and occupiers of houses or shops which abut upon the public street are entitled to take reasonable steps for their own convenience and comfort and for the convenience and comfort of the members of the public visiting their houses and their shops. We have no hesitation in holding that the erection of a shelter at a reasonable height from the ground to protect the shops and houses and to afford shelter to the members of the public frequenting these shops and houses is a reasonable step which the owners and occupiers are entitled to take. If the argument of learned Counsel for the respondent be accepted, namely, that the respondent is entitled to prohibit any user at all of the air space above the public street, it would follow that he could obtain an injunction against an occupier who hung a flag out of his window or whose window shutter opened on to the street in as much as the shutter or the flag would occupy a certain portion of the air space which he claims as his. Such a proposition is manifestly absurd.
6. We are of opinion that defendants 2 ,and 3 were entitled to erect the portico in dispute over the public street for the protection of their shops and houses for the convenience and comfort of the public and that the Municipal Board were empowered under the Municipalities Act, to grant permission to the defendants to make the erection. Learned Counsel for the respondent was unable to show that the respondent suffered any damages or prejudice by the erection of the portico. He did urge that the respondent had all along drawn certain revenue from hawkers using the public street and he suggested that the erection of the portico might interfere with his right to collect dues from these hawkers. There is no substance in this contention. At one stage in the proceedings in the lower Courts counsel for the defendants filed a statement under Order 10, Rule 1, Civil P.C. in these terms:
I had neither any objection before this, nor have I any now as to the hawkers sitting on the land in dispute or as to any shopkeeper sitting thereon and selling his goods or as to the public or the purchasers using the land as a passage provided that there may not be any hindrance to my customers in coming to my shop on account of their sitting at that place.
7. We fail to see how there is any infringement at all of the rights of the respondent by the erection of a portico of which he seeks demolition or that he suffers any prejudice thereby. His present rights as owner of the land over which a public street has been constructed are clearly not interfered with by the portico; his utimate rights as owner of the land which he would be entitled to vindicate after the street has been given up and has ceased to be a passage for the public are not in any way affected by the decision that the defendants are now entitled to erect a portico with the permission of the Municipal Board over a portion of a public street. In the result the appeal is allowed and the suit is dismissed with costs.