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Municipal Board, Manglaur Vs. Sri Mahadeoji Maharaj - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1965SC1147; [1965]2SCR242
ActsUttar Pradesh Municipalities Act, 1916 - Sections 116; Limitation Act - Schedule - Article 146-A; Madras District Municipalities Act, 1884
AppellantMunicipal Board, Manglaur
RespondentSri Mahadeoji Maharaj
Cases ReferredS. Sundaram Ayyar v. The MunicipalCouncil of Madura and The
Books referred"Pratt and Mackenzies Law of High-ways", 20th Edn.; Halsbury's Laws of England, 3rd Edn., Vol. 19
Excerpt:
.....1884 - appellant proposed certain structure to constructed on land along side road - respondent (owner of land ) sought injunction - road under management of appellant - proposed construction not for maintenance of road - injunction to be granted. - indian evidence act, 1872.sections 45 & 59: [dr. arijit pasayat & a.k. ganguly, jj] discrepancy between medical evidence and ocular evidence held, where the medical evidence is not at total variance with the ocular evidence, ocular evidence cannot be discarded. indian penal code, 1890.section 304, part ii: conviction under - discrepancy between testimony of eyewitnesses and medical evidence according to eyewitnesses, accused persons inflicted injuries to deceased with swords and axes as a result of which he died on the way to hospital ..........and its maintenance by themunicipality. we, therefore, hold that the suit site is part of the publicpathway. 7. at this stage it is necessary to notice briefly the relevant aspect ofthe law of highways. in 'pratt and mackenzies law of high-ways', 20thedn., at p. 4, it is stated : 'subject to the right of the public to pass andrepass on the highway, the owner of the soil in general remains the occupier ofit, and as such may maintain trespass against any member of the public who actsin excess of his right.' 8. in halsbury's laws of england, 3rd edn., vol. 19, at p. 49, rules ofpresumption and proof of dedication are stated thus : 'the fact that a way has been used by the public solong and in such a manner that the owner of the land, whoever he was, must havebeen aware that the public.....
Judgment:

Subba Rao, J.

1. This appeal by special leave raises the question of the right of aMunicipality to a vacant piece of land adjacent to a metalled public road.

2. The plaintiff is the owner of plot No. 3211 in abadi No. 1416 in khewatNo. 216 in the town of Manglaur. Through the said plot runs a public road andtwo nalis on the north and south of the said road. There is also a water piperunning through the said plot which belongs to the defendant Municipality.There is a vacant site lying in between the nalis and the road. TheMunicipality was seeking to erect a structure on the vacant site wherein itintended to install a statue of Mahatma Gandhi and also to put up two rooms oneither side for piyo and library. The plaintiff, who is the owner of plot No.3211, filed Suit No. 138 of 1948 in the Court of the Munsif, Deoband, for apermanent injunction to restrain the Municipal Board, Manglaur, from putting upthe said structures on the suit site and for delivery of possession of the sameto the plaintiff. The defendant, inter alia, pleaded that the said site waspart of the road which vested in it.

3. The Munsif found that the plaintiff has title to the said site anddecreed the suit for possession as well as for permanent injunction. On appeal,the 2nd Civil Judge, Saharanpur, held that a road includes the'patris' on either side of it, and that the said road along with thepatris has been under the management of the Municipal Board for several decadesand that the plaintiff has lost title to the same. He further held that thoughthe defendant has no right to restrict the use of the public road by putting upthe alleged constructions, the plaintiff has also no right to object to thesame. One second appeal, the High Court of Allahabad held that the plaintiffhas title to plot No. 3211 and the Municipality has not shown how the plaintiffhas lost his title to the 'kacha' strips of land forming part of thesaid plot. On that finding, it set aside the decree of the learned 2nd CivilJudge, Saharanpur, and restored that of the Trial Court. Hence the presentappeal.

4. Learned counsel for the appellant contended that the entire pathwaybetween the two drains was dedicated to the public; and that the fact that onlya part of the pathway was metalled would not detract from the totality of thededication.

5. Learned counsel for the respondent argued that the disputed site is partof plot No. 3211 which admittedly belongs to the plaintiff and that it has notbeen established how the Municipal Board has become the owner of the said sitethough the metalled road passing though the said plot vests in it.

6. The facts are not in dispute. There is a metalled road running throughplot No. 3211. On either side of the metalled road there is open space and oneither side of the open space there is a drain. Admittedly, public have beanusing the road for decades. The Municipal Board has been maintaining the roadand the drains. It is, therefore, reasonable to hold that the entire pathwaybetween the two drains was dedicated to the public. It is a common feature ofmetalled roads in towns that open spaces are left on either side of them. Thefact that the entire pathway is not metalled cannot possibly detract from thetotality of the dedication. The circumstance that the vacant spaces are oneither side of the metalled road and between the two drains maintained by theMunicipal Board leads to an irresistible inference that the strips of vacantspaces form part of the public pathway. The fact that only a part of thepathway is metalled does not necessarily limit the width of the pathway, but itis evidence of the user of the pathway by the public and its maintenance by theMunicipality. We, therefore, hold that the suit site is part of the publicpathway.

7. At this stage it is necessary to notice briefly the relevant aspect ofthe law of highways. In 'Pratt and Mackenzies Law of High-ways', 20thEdn., at p. 4, it is stated :

'Subject to the right of the public to pass andrepass on the highway, the owner of the soil in general remains the occupier ofit, and as such may maintain trespass against any member of the public who actsin excess of his right.'

8. In Halsbury's Laws of England, 3rd Edn., Vol. 19, at p. 49, rules ofpresumption and proof of dedication are stated thus :

'The fact that a way has been used by the public solong and in such a manner that the owner of the land, whoever he was, must havebeen aware that the public believed that the way had been dedicated, and hastaken no steps to disabuse them of that belief, is evidence (but not conclusiveevidence) from which a court or jury may infer a dedication by the owner.'

9. The learned author proceeds to observe, at p. 55 :

'A dedication may also be inferred when a highwayauthority has used a strip of land adjoining an admitted highway for thedeposit of stones or by cutting grips, or has, as of right and withoutpermission, piped in an levelled the site of a roadside ditch.'

10. In Harvey v. Truro Rural District Council [1903] L.R. 2 Ch. 638, Joyce, J., makes the following interesting observations which arerelevant to the present enquiry :

' In the case of an ordinary highway runningbetween fences, although it may be of a varying and unequal width, the right ofpassage 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 tothe entire of it as the highway, and are not confined to the part which may bemetalled or kept in order for the more convenient use of carriages andfoot-passengers.'

11. Adverting to the open strips of land on the sides of the road, thelearned Judge observed :

'.......as Lord Tenterden observed in Rex v. Wright[1832] 3 B. &; Ad. 681; 37 R.R. 520., 'The space at the sides' (thatis of the hard road) is also necessary to afford the benefit of air and sun. Iftrees and hedges might be brought close up to the part actually used as road itcould not be kept sound.'

12. These observations indicate that the fact that a part of the highway isused as the actual road does not exclude from it the space at the sides of theroad. Suhrawardy J., in Anukul Chandra v. Dacca Dt. Board : AIR1928Cal485 , after considering the relevant English decisions on thesubject, summarized the English view thus :

'The expression 'road' or 'highway' hasbeen considered in many cases in England and it seems that the interpretationput there is not confined to the portion actually used by the public but itextends also the side lands.'

13. The learned Judge applied the English view to the construction of thewords 'public street or road' in Art. 146-A of the Limitation Act,and stated :

'I am of opinion that 'road' in thatarticle includes the portion which is used as road as also the lands kept ontwo sides as parts of the road for the purposes of the road.'

14. So too, a Division Bench of the Allahabad High Court in Municipal Boardof Agra, v. Sudarshan Das Shastri [1915] I.L.R. All. 9 defined'road' so as to include the side lands. Therein it was observed :

'..........in our opinion all the ground, whethermetalled or not, over which the public had a right of way, is just as much thepublic road as the metalled part. The court would be entitled to draw theinference that any land over which the public from time immemorial had beenaccustomed to travel was a public street or road, and the mere fact that aspecial part of it was metalled for the greater convenience of the trafficwould not render the unmetalled portion on each side any the less a public roador street.'

15. That a public street vests in a Municipality admits of no doubt. Undersection 116(g) of the U.P. Municipalities Act, 1916 (U.P. Act II of 1916),'all public streets and the pavements, stones and other materials thereof,and also all trees, erections, materials, implements and things existing on orappertaining to such streets' vest in and belong to the Municipal Board. ADivision Bench the Madras High Court in S. Sundaram Ayyar v. The MunicipalCouncil of Madura and The secretary of State for India in Council [1902] I.L.R. 25 Mad. 635. dealt with the scope of such vesting under the MadrasDistrict Municipalities Act, 1884. The head-note therein brings out the gist ofthe decision, and it reads :

'When a street is vested in a Municipal Council,such vesting does not transfer to the Municipal authority the rights of theowner in the site or soil over which the street exists. It does not own thesoil from the center of the earth usque ad caelum, but it has the exclusiveright to manage and control the surface of the soil and so much of the soilbelow and of the space above the surface as is necessary to enable it toadequately maintain the street as a street. It has also a certain property inthe soil of the street which would enable it as owner to bring a possessoryaction against trespassers.'

16. The law on the subject may be briefly stated thus : Inference ofdedication of a highway to the public may be drawn from a long user of thehighway by the public. The width of the highway so dedicated depends upon theextent of the user. The sidelands are ordinarily included in the road, for theyare necessary for the proper maintenance of the road. In the case of a pathwayused for a long time by the public, its topographical and permanent landmarksand the manner and mode of its maintenance usually indicate the extent of theuser.

17. In the present case it is not disputed that the metalled road wasdedicated to the public. As we have indicated earlier, the inference that theside lands are also included in the public way is drawn easily as the saidlands are between the metal road and the drains admittedly maintained by themunicipal Board. Such a public pathway vests in the Municipality, but theMunicipality does not own the soil. It has the exclusive right to manage andcontrol the surface of the soil and 'so much of the soil below and of thespace above the surface as is necessary to enable it to adequately maintain thestreet as a street'. It has also a certain property in the soil of thestreet which would enable it as owner to bring a possessory action againsttrespassers. Subject to the rights of the Municipality and the public to passand repass on the highway, the owner of the soil in general remains theoccupier of it and, therefore, he can maintain an action for trespass againstany member of the public who acts in excess of his rights.

18. If that is the legal position, two results flow from it, namely, (1) theMunicipality cannot put up any structures on the public pathway which are notnecessary for the maintenance or user of it as a pathway, (2) it cannot be saidthat the putting up of the structures for installing the statue of MahatmaGandhi or for piyo or library are necessary for the maintenance or the user ofthe road as a public highway. The said acts are unauthorized acts of theMunicipality. The plaintiff, who is the owner of the soil, would certainly beentitled to ask for an injunction restraining the Municipality from acting inexcess of its rights. But the plaintiff cannot ask for possession of any partof the public pathway, as it continues to vest in the Municipality.

19. In the result, we hold that the plaintiff would be entitled to a decreefor permanent injunction restraining the Municipality from putting up the saidstructures on a part of the said public pathway, and the suit in so far as itasked for a decree for possession would be liable to be dismissed. We allow theappeal in part. As both the parties have succeeded and failed in part, theywill bear their respective costs throughout.

20. Appeal partly allowed.


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