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Chairman, District Board and ors. Vs. C.H. Achaya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberA.F.A.D. Nos. 179 and 180 of 1948
Judge
Reported inAIR1951Ori124
ActsBihar and Orissa Local Self-Government Act, 1885 - Sections 73 to 76 and 139; Bihar and Orissa Local Self-Government Rules - Rules 94 and 97
AppellantChairman, District Board and ors.
RespondentC.H. Achaya
Appellant AdvocateS.N. Sengupta and ;S. Misra, Advs.
Respondent AdvocateH. Sen, Adv.
Cases ReferredDwarka Prasad v. Patna City Municipality A. I. R.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....jagannadha das, j.1. the defendants are the appellants in these two second appeals. they arise out of two suits o.s. 11/46 and o.s. 82/46 on the file of the district munsif of puri tried analogously (simultaneously?). the plaintiff and the defendants are the same in both the suits and they relate substantially to the same matter. there was a common judgment in both the suits and the appeals therefrom to the lover appellate court were also heard analogously (simultaneously?) and dealt with by a common judgment. the suits had been decreed by the trial court and the said decrees were confirmed in appeal. defendant 1 in both the suits who is appellant in these appeals is the chairman, district board of puri, defendants 2 and 3 in both the suits who are appellants 2 and 3 before as are lessees.....
Judgment:

Jagannadha Das, J.

1. The defendants are the appellants in these two second appeals. They arise out of two suits O.S. 11/46 and O.S. 82/46 on the file of the District Munsif of Puri tried analogously (simultaneously?). The plaintiff and the defendants are the same in both the suits and they relate substantially to the same matter. There was a common judgment in both the suits and the appeals therefrom to the lover appellate Court were also heard analogously (simultaneously?) and dealt with by a common judgment. The suits had been decreed by the trial Court and the said decrees were confirmed in appeal. Defendant 1 in both the suits who is appellant in these appeals is the Chairman, District Board of Puri, Defendants 2 and 3 in both the suits who are appellants 2 and 3 before as are lessees from the District Board of a portion of plot No. 736 in Mouza Kudiarai. Defendant 2 is a minor represented by his mother and guardian, defendant 3. That plot is a road side land abutting on the District Board road running from Pipli to Khuria. The plantiff (respondent In both the appeals) is the present owner as has been found by the Courts below-of plot no. 787. He has started constructing a house on his plot which he was entitled to do. His case is that defendants 2 and 3 have some time ago pat up another structure on the portion of plot NO. 736 leased to them and that this interferes with his right of access from alt points of his plot to all points of the Khurda Pipli road through every part of the road side plot No. 737. He accordingly brought the suits for a declaration, (1) that the action of defendant 1 in leasing out the road-side land to defendants 2 and 3 is without jurisdiction and ultra vires; (2) that the lease is void; (3) that the plaintiff has got right of access and view to the District Board road to every part of the road side which abuts his land; (4) for the requisite mandatory and permanent injunctions against defendants 2 and 3 in respect of the structure already put up and contemplated to be put. up. It may be mentioned that O.S. 11/46 related only to the fresh structure intended to be put up by defendants 2 and 3 and that O.S. 32/46, which was filed later, relates to the pre-existing structure already put up by defendants 2 and 3. Both the suits, however, raise the same questions. The defence of the defendants in both the suits are, (l) that the plaintiff has no such right as claimed of access to the toad from all points of the road side land; (2) that the District Board had the right to lease out the road-side land and the said leasing is not ultra vires; and (3) that as a fact the plaintiff and his predecessors were all along having access to the road from plot No. 787 only through a portion of plot No. 736 and that in any case the right of access has not been substantially interfered with. The Courts below have concurrently held that the plaintiff is entitled to the same right of access in respect of road-side lands as to the road and to right of access to the road through road-side land and that the leasing by defendant l of plot No. 736 to defendants 2 and 3 is invalid and than certain by-laws framed by the District Board with the sanction of the Government authorising such leases are ultra vires, inasmuch as the leasing and the by-laws are in derogation to the right of access of the abutting owners. Hence these two second appeals by defendant 3 which have been heard analogously (simultaneously.?)

2. The main contention of learned counsel for the appellants is that road-side lands are not part of the road and that the plaintiff whose plot does not abut' the road has not got any such private right of access either to the road or to the road-side land which he claims and that in any case the leasing of the roadside land was authorised by by-laws which have a statutory force and that the view taken by the Courts below that the said by-laws are ultra vires and that the leasing by the District Board in pursuance thereof is invalid is erroneous.

3. The questions, therefore, that arise in the case are (l) whether road-side lands form part of the road for purposes of the Local Self Government Act and are subject to the same tights and incidents as regards members of public and abutting private owners and if so, whether the roadside lands can be put to any use in derogation of such rights. It may be mentioned at the outset that there is no allegation of plaintiff in this case that the particular road-side land in question is owned and possessed by the District Board as ordinary private property distinct from the road. For instance, if the road-side land in question had been purchased by the District Board from private owners, or acquired for the District Board at its cost by the Government or obtained in some other way as ordinary private property, which it might well do Under Section 29, Bihar and Orissa Local Self-Government Act, the considerations and legal implications applicable to roads as such may not be applicable to the road. side. But the plaint and the written statement do not give any indication that the road-side land in the present case is owned as such private land or indeed in a manner different from the road. D. W. I. says: 'The road and the roadside land belong to the District Board' giving no indication that they are owned in different ways and implying in fact the contrary. The word 'road' is not denned in the Act, nor is there any reference therein to 'road side lands'. In order, therefore, to determine whether there is any difference between 'road' and 'road-side land' as regards the rights and incidents to which they are subject to, it is neceassary to consider what the nature of the property of the District Board in a road is and whether a road-side land is held in any different manner.

4. It is well settled that so far as a road is concerned, the District Board is not in any sense the owner of the soil of the road, to enable it to treat it as its own private property and to put it to any use it likes. The ownership of the road by the District Board arises under Sections 73, 74, 75 and 76, Bihar and Orissa Local Self Government Act. Under Sections 75 and 76, Local Self Government. Act, roads constructed by the District Board from the District Board Funds or roads belonging to private parties and transferred to District Board are vested in the District Board. Under' Sections 73 and 74, roads vested in the Government or roads previously under the control and administration of the District Road Committee or Branch Committee may be placed under the control and administration of the District Board. Both in English as well as in Indian law, which, in this respect follows the English law, it is now settled by a series of decisions of the highest authority that the vesting of a road in a local authority vests no property beyond a special property in the surface of the road and such portion above and below the surface as may be necessarily incidental to the use of the surface as a road and for its proper upkeep and management. It has been held that it does not vest the soil or the land in the local body as its owner. (See Sydney Municipal Council v. Young, 1898 A. C. 4.57 at p. 459: (67 L. J. P. C. 40) and Man Singh v. Arjunlal, A. I. R. (24) 1937 P. C. 299: (I.L.R. (1937) ALL 901)) In respect of roads which are not vested in the District Board, but which are merely under the administration and control of the District Board, the nature of the property is obviously much more limited.

5. This leads us to a consideration as to what, in a road-side land, (not being the private property of the District Board) is the nature of the property of the District Board and whether it is in any way higher than that in the roads. There are no specific provisions in the Act indicating an answer to this in terms. The only provisions, if at all they may be applicable, are Sections 73 and 74; but that would be so, only it road-side lands are part of the road. On this question, a consideration of some of the English cases is instructive. The English law shows that prima facie the lands on either side of the road, which are not the private property of the abutting owners, are held by the local authority as part of the road itself. The question has arisen with reference to the determination of what are the limits of a road and whether the road is confined to the portion actually and normally used as highway for the passing and repassing of the public, or extends also to the waste lands on either side. In King v. Wright, (1832) 118 E. R. 248 : (3 B. & AD. 681), it was laid down that:

'When a road rung through a space of fifty or sixty feet between enclosures set out by an Act of Parliament, it is public though it may not all be used or kept in repair as a road. (Bee headnote).'

In Elwood v. Bullock (1844) 115 E. R. 147 at p. 166: (6 Q. B. 383) it is stated that:

'Where a highway passes through an inclosed countryit is not the formed road merely, but the whole space from fence to lence is the highway. The extent of a highway where it passes over a common, is frequently still more indefinite to the right and left of what may be the ordinary passage.'

In Turner v. Ringwood Highway Board, (1879) 9 E. Q. 418 at p. 422; (21 L. T. 745), it is stated as follows:

'The right of the public is to have the whole width of the road, preserved free from obstructions and is not confined to that part which was used as the via. trita.'

In Harvey v. Truro Rural Council, (1903) 2 Oh. 638 at p. 643: (72 L. 3. Ch. 705), dealing with the question of the right of the public over the road-side waste, it was laid down as follows:

'In the case of an ordinary highway running between fenoes, although it may be of varying and unequal width, the right of passage or way prima. facie, and unless there be evidence to the contrary, extends to the whole space between the fences and the public are entitled to the entire of it as the highway, and are not consned to the pirt which may be metalled or kept in order for the more convenient use of carriages and foot-passangers.'

This position is also affirmed in Office v. Rock ford Rural Gounod, (1906) 1 Ch. 342: (75 L. J. Ch. 318) and Rowley v. Tottanham Urban District Council, (1914) A. C. 95: (83 L. 3. Oh. 411). Thus,, it appears to be wall settled in English law that prima facie and in the absence of any specific evidence to the contrary, road side waste land is part of the road and is vested in the local authority in the same way. The limit of the road, as so extended by the abutting waste, is the entire width between the fences or the enclosures, which in terms of the corresponding conditions in this country, may be taken to mean the boundaries of the next adjoining private land or property on either side. So far as it has been. brought to my notice, there is no specific case in the Indian Counts deciding what exactly are the limits of a road, apart from any statutory definition of that word in certain enactments, But the position as above indicated from the English law is assumed in Nihal Chand v. Azmat Ali Khan, 7 ALL. 362: 1885 A. V. N. 56), Municipal Board, Agra v. Sudarshan Das, A. I. R. (1) 1914 all. 341: (37 ALL. 9), District Board of Manbhum v. B. N. Rly. Co., A. I. R. (32) 1945 Pat. 200 (23 Pat. 931) and in Peacock on 'Law of Easements' 3rd Edn. p. 240. Since the Indian law follows the English law in respect of roads, it is reasonable to hope that 'road' even in Indian law is not confined to that portion of it which is the frequented solum of the highway, used for passing and repassing of the public, but includes also the waste lands on either side of the road belonging to the local authority, (otherwise than as absolute private property), and extending to the boundary limits of the properties of private owners on either side. This is the view that has been adopted for the definition of the word 'road' in the Bihar and Orissa Municipal Act of 1922, and in other Municipal Acts of various provinces and also in some Local Self-Government Acts of other provinces. (See Madras Local Boards Act).

6. That the property in a road-side land follows the property in the road and is therefore of the same nature, also appears from the English cases. The question in English Courts has arisen in a form rather different from what we ace concerned with in the present cage, but the principle thereof is instructive and strengthens the above conclusion. It is well-settled in English law that, subject to the limited kind of property in the local authority in respect of the road connoted by the word 'vesting', the soil of the road usque ad medium filum viae is in the abutting owners on the two sides. With reference to this principle, the question has arisen as to who is the owner of any adjoining waste land in between the formed road and the boundary of the adjoining owner, that is to say, whether the soil belongs to the Lord of the Manor in which the road and the adjoining wasteland are situated or to the private owner of the abutting property. It has been held that since the soil in the road up to the middle belongs to the abutting owners and to the Lord of the Manor, the intermediate waste land also belongs to the same private owner. This has been laid down in Doe v. Pearsey, (1S27) 108 E. R. 737: (7 B. &. C. 304) as follows: (See head note)

'The presumption is that waste land which adjoins the load, belongs to the owner of the adjoining enclosed land, whether ho be a free-holder, or lease-holder or copy-holder, and not to the Lord of the Manor,'

Similarly it has been held in Steel v. Pricket, (1819) 171 E. R. 706: (2 Stark 463), that the presumption is that the waste lands which adjoin load belong to the owner of the adjoining freehold and not to the Lord of the Manor. These propositions must be understood in the sense, not that the surface belongs to them, but only the sub-soil. This position, which is well-established, in English law, therefore, implies clearly that the surface, both in respect of the road and the road-side waste, is vested in the Local authority in exactly the same manner. This is another reason for saying that the road-side land forms part of the road. It is unnecessary to discuss here, for the purpose of the present case, whether in Indian law as in English law, the soil of the road or the road, side land belong to the abutting owners usque ad medium filum viae. The position may conceivably be different in view of the fact that lands abutting roads are generally held only by tenants or raiyats under the Government or a proprietor and it may well be that the sub-soil of the roads and road-side lands may be vested either in the Government or the proprietor and not in the abutting tenant. See Nihalchand v. Azmat Ali Khan, 7 ALL. 362: (1885 A.W N. 56); 30 Cal. 17(?): 26 Cal. 732 (?) Sundaram Aiyar v. Municipal Council, Madurat 25 Mad. 635 at p. 648: (12 M. L. J. 37) and Munisami, Chetty v. Rajah of Karwetnagar, 30 Mad. 193 at p. 199: which all assume that the. soil is vested either in the Government or in the Zamindar, though the question of the right of the tenant has not been in terms raised.

7. The above considerations establish that road side lands are prima facie part of the road, and are vested in the local authority in the same way as the roads and subject to the same kind of use thereof and subject to the same rights and incidents as the road, except in so far as any specific statutory provision provides to the contrary expressly or by necessary implication. The only statutory provisions having a bearing that have been brought to my notice are the statutory rules, relating to the power of the local authority to transfer property belonging to it, framed by Government under B. 138, Bihar and Orissa Local Self-Government Act. (See Bihar and Orissa Local Self-Government Reference Book, by Rohini Kumar Roy Chowdhury, and Edn., p. 242). These rales have statutory force by virtue of the express terms of 8, 138. Rules 91 to 97 have a bearing on the matter. Rule 91 shows that for the purpose of transfer of property the property is divided into two categories, namely, (l) that which is vested in the Board, and (2) that which is under the control and administration of the Board. Amongst other matters, the Board is given the power to lease both kinds of properties subject to certain conditions. Rules 94 and 97 show that in respect of the latter category of properties, the lease is normally not beyond one year, while in respect of the former for a term not exceeding five years. But it is obvious that the lease-making power is intended to be exercised in a manner which will not in any way hamper the primary purpose for which the property in question is intended under the Act. The word 'property' in the rules may be wide enough to include roads and road side lands see Patna City Municipality v. Dwarha Prasad, A. I.R. (26) 1939 pat. 683 at p. 685, Col. 1: (18 Pat. 735), as regards the similar word 'land' in a. 62 of the Municipal Act. These rules, however, in their application to roads or road-side must be so construed as not to substantially interfere with the rights, either of the public or of private abutting owners, with reference to roads or road-side lands which on the above view, form part of the road. It has also to be mentioned that defendant 1, the District Board of Puri has framed certain by-laws relating to these matters with the sanction of the Local Government under the powers vested in the Board by virtue of Schedule 39, Local Self-Government Act, and such by laws have also statutory force. These by-laws which have been published at p. 224, Part III of the Orissa Gazette, dated 8 9 1944, under Not in. No 8438 S. G. (8)/34, dated 29-8-1944, in specific terms, authorise the leasing of road-side lands. It is obvious that these by-laws also if they are to be valid, must be such as not to interfere substantially with the rights of the public or of the abutting private owners in respect of the road or road-side lands. This leads us to a consideration of what such rights are.

8. A road is a highway for the passing of all the members of the public. The public have a night of passing and re passing therein and can exercise that right in a reasonable way without transgressing the usual mode in which such right is normally exercised, (See Smith's Leading Cases, vol. II, 13th Edn., p. 166). A road is also meant to provide access to and from the tenements which abut on it on either side. For the purposes of this case, it is this latter right that has to be considered. That right has been generally laid down in the following terms: 'An owner of lands adjoining a highway is entitled to access to the highway at all points where his land adjoins the highway, whether or not the soil of the highway be his.' (See Smith's Leading Cases, Vol. II, 13th Edn. 172.)

This right of immediate access from private property to a public highway is a private right distinct from the right of the owner of that property to use the highway as one of the public, as has been pointed out in William Lyon v. The Wardens & Co., of the Ftsh Monger's Co., eta. (1875-76) A. C. P. 662 (?), acase relating to the rights of an owner of a wharf on the bank of a navigable river which in this respect are the same as those of an owner of land abutting a public highway, Such a light of access belongs to the proprietor of 'the adjoining land as a natural incident to the right to the soil itself of such adjoining lands and he is entitled to the benefit of it as he is to all the other natural advantages belonging to the land of which he is the owner, (See p. 74 of the report of the above, mentioned case) In Marshall v. Blackpool Corporation, 1935 4. C. 16 at p. (22 103 L. J. K. b. 566), the House of Lords has explained that right in the following terms:

'The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access just as the right of access is subject to the rights of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a parson using the highway. Apart from any statutory provision, there is no obligation upon an adjoining owner to fence his property from the highway.'

This right of access has also been recognised in the Indian law as appears from the following decisions: Dwarha, Prasad v. Patna City Municipality, A. I. R. (25) 1938 Pat 423: 117 I. C. 315), Municipal Committee Delhi v. Mahomed Ibrahim, A. I R. (22) 1935 Lab.. 196: (16 Lab. 517) and Patna City Municipality v. Dwarka Prasad, A. I. R. (26) 1939 Pat. 683; (18 Pat. 735) this has been referred to as a right of road frontage and it has been said that

'the right of road frontage no less than right of access, is implicit in the position of the land.'

It is unnecessary to discuss for the purpose of this case whether the right of frontage is or is not wider than the eight of access and whether such right also arises with reference to the position of the land. There can, however, be no doubt that the owner of the abutting land has an actionable right if his right of access to the frontage is infringed. But as has been laid down by their Lordship3 of the Privy Council in Bell v. Quebec Corporation, (1879) 5 A. C. 84 at p. 100: (49 L. 3. P. C. 1.)

'whether an obstruction amounts to an interference with the access to frontage would be a question of fact to be determined by the circumstances of each particular case.'

It is also well settled that while the abutting owner has the right of access it is not in the case of every interference with such a right that is actionable or that he is entitled to obtain a remedy by way of injunction, In Sellors v. Local Board of Health for Mattock Bath, ,(1885) 14 Q. B. 928 at p. 934: (52 L. I, 762) the plaintiff who was an abutting owner, claimed injunction in respect of two matters (l) the erection and continuance of a public urinal adjacent to his property and alleged to be a nuisance; (2) the placing and continuing of kerb stones in front of plaintiff's property so as to prevent her access by carriages to that property An injunction was granted in respect of the first, but was refused with reference to the second with the following observations-

'As to the rest of the plaintifi'a claim, I think it is much less substantial. Besides the triangular piece of land, she has some land and buildings abutting upon file same high road consisting of an inn and some stables. These stand back from the road and in front of them is a space which has been left open to, and on a level with, the road until recently, when the defendants made a foot-path on the road outside the plaintiff's land with raised kerb Btones, but left openings so that carriages can still go in from, and out into the road, but not at a very part of the boundary as heretofore. The plaintiff contended that this was interference with. her right to have aeoess for all purposes to every portion of the highway adjoining her property.

** ** **I think it cannot be contended that wherever any person has land adjoining the road which baa remained undistinguished from the road, .... be can as a matter of course restrain the local authorities from making raised foot-path for the accommodation of the public on a part of the road, which is vested in them merely because by so doing they may render it impossible, for the time, for the owner of the land to draw up a carriage close to the exact boundary of his land or to enter his land, at every inch of the boundary. ** ** **

I am of opinion that this is a case in which the land owner's remedy at all events in the absence of any unreasonable conduct on the part of the local authority is, to claim compsnsation.'

In 1901 A. C. 329 (?) the owner of an abutting premises, brought an action for injunction to restrain a local authority from putting certain lamp-posts in the road near their premises on the ground that it interfered with and obstructed the business, they were carrying on these premises. The Court in dismissing the action said :

'The plaintiffs set up a right to have a particular portion of the highway so kept that they shall be in a position to exercise an alleged right of using it to the maximum of their own convenience. It does not seem to (me ?) that they have any such right.'

It would therefore seem to follow from these oases that an abutting owner of a road, including therein the road-side lands which form part of the road, has the undoubted right of access to the road from all points of his property but the 'right cannot be construed as entitling him to insist upon leaving the road absolutely free from any other kind of use than for mere passing and repassing of the members of the public. If such a use is otherwise reasonable and is within the scope of the purposes of the Local Self-Government Act, an abutting owner has an actionable right (unless such right is taken away by the Statute) only when his right of access has been substantially interfered with and whether that is so or not is a question of fact to be determined having regard to all the circumstances of the case. It appears to me also that on a question whether any particular use of the road-side land amounts to a substantial interference with the right of access of an abutting private owner, the fact that it is a road-side land and not the regular road carrying the traffic may conceivably make a difference on a consideration of the question as one' of fact, and on the question whether there has been any unreasonable conduct on the part of the local authority and whether, in any case, the abutting owner is entitled to an injunction for the removal of the interference or obstruction.

9. It is in the light of these principles, that the claim of the plaintiff in the present case has to be considered, and that the legality of the action of the defendants as well as of the validity of the by-laws under which they purport to have acted has to be judged.

10. Both the Courts below have come to a conclusion that the by-laws above referred to are ultra vires and invalid. Their reason for saying so is that the by-laws authorise leasing which is an interference with the right of access. As has already been noticed, these by-laws were framed by virtue of the powers vested in the District Board under Schedule 39, Bihar and Orissa Local Self-Government Act, with the sanction of the Local Government. The by-laws only purport to regulate the conditions on which leases of land vested in or under the control and administration of the District Board, are to be granted. The power of leasing itself as already pointed out is derived from the statutory Rules 94 and 97 made by the Government under Schedule 38 of the Act. The by-laws define the phrase 'roadside lands' as including 'all lands attached to a road as vested in or under the control and administration of the District Board'. A by-law framed under statutory power has, by the very terms of that power in Schedule 79, the force of law. But such by-laws, must be consistent with, and be framed for the purposes of the Act and can be pronounced to be ultra vires only if they transgress these limits or if they unreasonably interfere with the recognised rights of the members of the public or private owners which the Statute itself does not take away expressly or by necessary implication. In a consideration as to the validity of such by-laws, it is well to remember the principle laid down in Kruse v. Johnson, (1898) 2 Q. B. 91 : (67 L. J. Q. B. 782) that where the power to make by-laws is vested in public representative bodies 'they ought to be supported if possible and benevolently interpreted.' (See p. 99 of the report) The lease authorised under the rules and by-laws referred to above, cannot be said to be necessarily inconsistent with the rights of private persona as above indicated. Rules 94 and 97, Statutory Government Rules, authorise only leasing for short periods. The by-laws relating to leasing in specifics terms provide, that the lease shall not be for more than a year, that no permission for erection of permanent structures will be granted under the leases, and that ii the land be required for the use of the District Board before the expiry of the term on the lease, the lessee should, on one month's notice, surrender the land without any claim for compensation. These clearly show that the leasing contemplated is only for very temporary and short-living non permanent purposes. The rules and by-laws themselves are of general application to all lands to be vested in the District; Board and cannot be declared to be ultra vires merely because in their application to roads or road-side lands any particular lease granted there under might affect the rights of a private individual. All that can be said is that in their application to road-side lands the actual leasing under the by-laws must be subject to the limitations arising from the nature and use of the property leased. Any lease which constitutes a substantial interference with such rights is invalid and will constitute an actionable wrong. This would imply that the leasing power under the rules and the by-laws cannot be used for putting up any permanent or substantial structures, nor for patting the land to any use which would have the affect of materially altering the nature of the land as one intended for use as a road, or substantially affecting the natural advantages of access and frontage which the abutting owner has got. But I am not prepared to agree with the view expressed in the judgments of the Courts below that the by-laws in themselves are ultra vires. What has to be considered is whether the actual use that the property, is pat to or is likely to be put to by virtue of a lease granted in exercise of the power under the by. laws is an infringement of the private or public rights. The facts of the present case now remain to be considered. The plaintiff's land is plot No 787 in Khata No. 726 and the disputed road side land is plot No. 736 in Khata No. 1129, both in Mouza Kudiari. The roadside plot No. 736 abuts the Pipli-Ehurda road which runs at this place from east to west, Plot no. 736 abuts just to the north of it and plot No. 737 abuts plot No. 736 to its north. It is in the evidence of the District Board clerk, D. W. 1, that both the plots Nos. 736 and 737, are 130 feet in length running side by Bide. A sketch indicating the positions of the road and the two plots have been filed as part of the plaint, and its correctness has note been disputed. The sketch shows that plots Nos. 736 and 787 virtually form a rectangle abutting north of the road, the southern portion of which is plot No. 736 and the northern portion is plot no. 737. It is in the evidence of D. W. 1, that plot No. 736 has a width of 25 feet. As appears from the sketch plot No. 737 has a much larger width, but the exact measurement is not in evidence. It further appears from the evidence of D. W. 1 that what has been leased out to defendants 2 and 3 is the eastern portion of plot No. 736 covering a length of 60 feet, from the extreme extremity of that plot and that the western portion of the plot of the length of, 70 feet is not the subject-matter of any lease and is vacant. The defendant appears to have held under two lessee. The first is the lease deed, Ex. B, dated 24-6-42, for a period of five years and covering an extent of two decimals out of plot No. 736. The second is stated to be of the date 8-1.46 as appears from the allegations in the plaint. The tease itself is not in evidence and has not been filed by the defendant. The lease Ex. B has already expired and there is no clear evidence whether the defendants 2 and 3 hold under a renewal thereof. The fact, however, that defendants 2 and 3 continue to hold the disputed portion of plot No. 737 from the District Board as its lessees, is the common case of defendants 2 and 8 as well as of the District Board. It must, therefore, be taken that they are lessees under the District. Board of the eastern portion of plot No. 736, 60 feet (sic) 25 feet under a lease whose duration and terms are not in evidence. The admitted ease is that on the portion of plot no. 736 covered by Ex. B, defendant 8 had constructed a house during the currency of that lease and sometime prior to the institution of the suits. That house is admittedly still Standing on the plot. In the rest of the plot under the occupation of defendant 3 as the lessee, she recently dug foundations for the construction of a building according to the allegations of the plaintiff. Defendant 3, however, denies this. In view of the principles of law indicated above, the question for consideration is whether the leasing of the portion of plot no. 736 by defendant 1 to defendants 2 and 3 and the actual use to which defendants 2 and S have pot it and are contemplating to put it, is an actionable infringement of the plaintiff's right of access from his plot No. 73'? to plot No. 736 and to the road.

11. So far as the lease is concerned since, as above stated, there is no evidence of the duration of the terms of the lease under which. defendants are at present in occupation, it is not possible to say whether the lease itself is invalid or not and no declaration to that effect can be given. As regards the actual use to which the defendants have put the lands or are proposing to put it, the Courts below have, not given any definite finding on the matter. [After considering the evidence his Lordship continued.] It is clear, therefore, on the evidence, that the existing structure as well as the contemplated structure on plot No. 736 must be taken to interfere with the light of access of the plaintiff and that the whole of plot no. 736 could remain water-logged at least for some time on account of these constructions. This undoubtedly amounts to substantial interference with the plaintiff's right I of access.

12. In the trial Court, the plaintiff asserted that there was previously a house on his plot No. 737, which he had demolished for constructing a new house and that he was accustomed to use whole of plot No. 736 for access to and from that house. The defendants denied it and gave evidence that plot No. 737 was only a paddy field with a temporary hut thereon, for some time, for watching of crops. It was also the case of the defendants that there was a thorny fence all along between plots Nos. 737 and 736 and that the owner of plot no. 737 used to pass by a Tati gate on the southern side, at the south-western corner of plot No. 787, and also that they were passing through the western plot No. 736 which is just to the south of the Tati gate, in coming from and going to the District Board road. The trial Court has accepted the case of the defendants on this part of the case. It is accordingly urged that, in view of the fact that even at present as much as 70 feet length of plot No 736 is still available to the plaintiff for passing on to the District Board road, the plaintiff can have no grievance and therefore has no actionable right. This contention cannot be accepted. The right of access does not depend upon, whether there has been previously on plot no. 737 any a structure at all. The plaintiff is entitled to the beneficial enjoyment of his plot in any manner he pleases and to access therefrom. Neither the fact that there may have been a fence between the two plots Nos. 736 an 737, nor the fact that the previous owner of plot No. 787 was actually using only a restricted portion of plot no. 736 for his access, can take away the plaintiff's right of access in its full measure in Dwarka Prasad v. Patna City Municipality A. I. R. (26) 1938 Pat. 423 : (177 I.C. 315) the fact of the existence of a compound wall was held insufficient to restrict the right of access. The only question in such a case is whether-the right of access has been substantially interfered with. Though no doubt in the present case, as much as half of plot No. 736 is open, still in view of the evidence, that even that portion would at least for some time in the year get water-logged on account of the defendant's construction, and that the structures actually put up, or to be put up, would completely block access to plaintiff's house property to be constructed, and in view of the claim of the defendants by way of having a fence in between the two plots, it is quite clear that there has been a substantial interference with the plaintiff's right of access. The plaintiff is accordingly entitled to a mandatory injunction as regards the existing structure and a permanent injunction restraining defendants 2 and 3 from putting up a substantial building on the plot in his occupation as a lessee of the Board.

13. The Court below have in addition to these two above injunctions, also granted declarations that the action of defendant 1, the District Board, in leasing out to defendants 2 and 3 is invalid and that the plaintiff has got the right of access to the Ehurda Pipli road through, plot No. 736 from every point of his plot No. 737 and that the defendants are restrained from interfering with that right of the plaintiff. It appears to me that in the circumstances of this case no declaration regarding the lease which is not in evidence before the Court can be given, nor can it be generally declared that the District Board has no right to lease the land for any purposes. It is also unnecessary to make any declaration about the right of access to the road in the terms in which the Courts below have done since it' is too vague to be enforceable. The plaintiff can always vindicate his right of access, if he proves at any time that the same has been substantially interfered with and infringed and no declaration is required for that purpose. It is also unnecessary to say whether the defendants as lessees can use the land under their occupation in any way other than by putting up a substantial structure thereon so as not to interfere with the right of access of the plaintiff.

14. In the result therefore, in substitution for the decrees passed by the trial Court and confirmed by the lower appellate Court, fresh decrees will be passed on the following terms.

15. In 0. S. No. 11 of 1946

'That the suit be decreed on contest with costs and pleader's fee at 5 per cent. The defendants are hereby restrained from interfering with the right of access of the plaintiff to plot No. 736 and to the Khurda-Pipli road by putting up or allowing the putting up of any permanent substantial structure on plot No. 736'

16. In O. S. No. 32 of 1946:

'That the suit be decreed on contest against the defendants with costs and pleader's fee at 6 per cent. Defendants 2 and 3 are hereby ordered to remove the structure raised by them on the disputed land, before l5-1-51. In default the plaintiff shall get the structures removed by application through Court, and realise the costs thereof from defendants 2 and 3 in execution.'

17. Subject to the above modification regarding the terms of the decrees, the appeals are dismissed with costs throughout.

18. It may be mentioned that before bearing the appeals we gave notice to the Advocate-General, on behalf of Government, with a view to get his assistance in the shape of any other rules, by-laws, or notifications that may be relevant and may have a bearing on the consideration of the questions involved. But nothing beyond what is mentioned above has been brought to our notice.

Panigrahi, J.

19. I agree.


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