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Nirode Chandra Mukherjee and ors. Vs. Chairman of Commissioners of Kamarhati Municipality - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1936Cal506
AppellantNirode Chandra Mukherjee and ors.
RespondentChairman of Commissioners of Kamarhati Municipality
Cases ReferredHowrah Municipality v. Hari Das Dutt
Excerpt:
- m.n. mukerji, j.1. the suit in connection with which this reference has been made was in respect of a strip of land, said to be about 616 sq. ft. in area. the strip is in continuation of a public road known as the pithuri ghat road, and is bounded on the east by an admittedly public road and on the west, by a pucca bathing ghat. in the plaint it is stated that there is a burning ghat adjoining the bathing ghat. on the north and south of the strip of land are admittedly lands belonging to the plaintiffs. it is also stated in the plaint that the said strip of land and the two ghats are private properties of the plaintiffs, belonging solely to them in rent-free right. the cause of action for the suit was described in the plaint as follows:'...... the defendant municipality has of late been.....
Judgment:

M.N. Mukerji, J.

1. The suit in connection with which this reference has been made was in respect of a strip of land, said to be about 616 sq. ft. in area. The strip is in continuation of a public road known as the Pithuri Ghat Road, and is bounded on the east by an admittedly public road and on the west, by a pucca bathing ghat. In the plaint it is stated that there is a burning ghat adjoining the bathing ghat. On the north and south of the strip of land are admittedly lands belonging to the plaintiffs. It is also stated in the plaint that the said strip of land and the two ghats are private properties of the plaintiffs, belonging solely to them in rent-free right. The cause of action for the suit was described in the plaint as follows:

'...... The defendant Municipality has of late been trying to convert the plaintiffs' land into a Municipal road, and with that fraudulent object in view, is about to open up the disputed land so that 'solings' (i.e., bricks) and khoa (i.e., brick-bats) may be spread for making the same into a part of Pithuri Ghat Road.'

2. The substantial prayers in the plaint were: that the plaintiffs' title to the strip of land be declared and that it be also declared that the defendant Municipality has no right, title or interest in the same or to open any road through the same, and also that an injunction might issue restraining the defendant Municipality from interfering with or disturbing the plaintiffs' possession of the said strip of land and from opening any road or passage through the same. The defendant Municipality in their written statement, besides taking other defences, denied the plaintiffs' title to and possession in the said strip of land and alleged in substance, that the same was a part and parcel of the Pithuri Ghat Road which belongs to the Municipality. It was further alleged that the ghats were public ghats and that the said strip of land is a road and is the only access to the bathing ghat and has all along been maintained by the Municipality.

3. The Munsif dismissed the suit, holding that the plaintiffs had failed to establish their title to the suit land and that the same was a part of the public road named the Pithuri Ghat Road and as such had vested in the defendant Municipality. The Additional District Judge, on appeal by the plaintiffs, held that the plaintiffs' title was made out. He held however that the strip of land was a public road or a public street, the evidence making it clear that:

The public in general and not the residents of the neighbourhood only have a right of way over the strip of land in question, and there is no instance of any member of the public having been disallowed the use of the strip of land as road.

4. On this finding he held that under Section 95, Bengal Municipal Act of 1932, which came into force on 1st December 1932, the strip of land, being admittedly a 'public street' as defined in the Act, had become the property of the Municipality under Section 95 of the Act. He observed that even if it be held that the land, being private property, had not vested in the Municipality under Section 30, Bengal Municipal Act of 1894, and a declaration to that effect be made in favour of the plaintiffs the Municipality would be able to get rid of the declaration by instituting a separate suit for that purpose and relying on Section 95, Bengal Municipal Act of 1932. On this view of the matter the learned Judge affirmed the decision of the trial Court, dismissing the suit. The plaintiffs then preferred a second appeal to this Court. The Division Bench which heard the appeal has referred it to the Full Bench with the following order:

As we dissent from the decision pronounced by a Division Bench in Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, under Rule 2, Ch. 5 of the Appellate Side Rules we refer the appeal for the decision of the Full Bench and frame the following questions for decision: (1) Do roads over which the public have a right of way in a Municipal area vest in the Municipal Commissioners? (2) Was 43 Cal 130 Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629 correctly decided?

5. The learned referring Judges in the order of reference have observed thus:

Our view is that under Section 30, Act 3 of 1884, as amended in 1894 a road including the subsoil vests in the Municipal Commissioners if the pathway is one over which the public have a right to pass. The phrase 'not being private property' in that section, in our opinion, qualifies the words 'bridges, tanks,' etc., only. In our judgment, this is the grammatical interpretation of the section as amended, and if any other interpretation were given we should find it impossible to attach any meaning to the words 'and all.' This was pointed out by Coxe, J. in Kumud Bandhu Das Gupta v. Kishori Lal Goswami (1911) 9 I C 562, which decision was followed by Nasim Ali, J. in Beer Bikram Kishore Manikya v. Chairman Comilla Municipality, (1935) 62 Cal 692. We are however pressed by the decision of a Division Bench in Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, where Fletcher and Richardson, JJ. following an obiterdictum made in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290, have held otherwise. We are of opinion, for the reasons stated above, that the said case has been wrongly decided and consider that Clause (a), Section 95, Act 15 of 1932, has made no change in the law but it is of a declaratory nature, and that the decision of the Courts below is correct.

6. To deal with this reference I propose first of all to examine some of the provisions of the Bengal Municipal Act 3 of 1884. Section 6, Clause (13) of the Act, in defining the word 'road,' says:

In this Act, unless there be something repugnant in the subject or context, 'road' means any road, street, square, court, alley or passage, whether a thoroughfare or not, over which the public have a right of way.

7. Paragraph 1, Section 30 of the Act, prior to its amendment by Act 4 of 1894, ran thus:

All roads, bridges, tanks, ghats, wells, channels and drains in any Municipality (not being private property and not being maintained by Government or at the public expense), now existing or which shall hereafter be made, and the pavements, stones and other materials thereof, and all the erections, materials, implements and other things provided therefor, shall vest in, and belong to, the Commissioners.

8. And Section 31 of the Act was in these words:

The Commissioners at a meeting may agree with the person in whom the property in any road, bridge, tank, ghat, well, channel or drain is vested to take over the property therein or' the control thereof, and after such agreement may declare by notice in writing put up thereon or near thereto that such road, bridge, tank, ghat, well, channel or drain has been transferred to the Commissioners. Thereupon the property therein or the control thereof (as the case may be) shall vest in the Commissioners, and such road, bridge, tank, ghat, well, channel or drain shall thereforth be repaired and maintained out of the Municipal fund.

9. On a plain reading of the three provisions just quoted it seems to me clear that `roads' as defined in the Act, that is to say, roads over which the public have a right of way [Section 6, Clause (13)], prior to Act 4 of 1894, could be either not private property (Section 30) or property vested in some person (Section 31). The words not being private property and not being maintained by Government or at the public expense have been explained by this Court, and in my opinion rightly, in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290 thus:

The phrases connected by the conjunction 'and' must be taken distributively.

10. Giving this meaning to the words, there can be no question that Section 30, as it stood before Act 4 of 1894, meant that all roads over which the public have a right of way shall vest in the Commissioners, but roads being private property shall not so vest and roads maintained by Government or at the public expense shall also not vest. It is also clear that under Section 31 roads over which the public have a right of way but the property in which is vested in some person, or, in other words, which are private property, may be dealt with by agreement between such person and the Commissioners with the result that the property therein or the control thereof, as the case may be, may be taken over by the Commissioners. It is quite true that the Legislature was not particularly careful in drafting some of the sections of the Act, e.g. Section 217 in Clause (1) of which the expression `public road' issued, as the word 'public' therein would be redundant if the definition of `road' as given in the Act is remembered, while in Clause (5) thereof the word `road' only is used. But it seems fairly clear that the legislature, while enacting Sub-section 30 and 31, was dealing with two classes of roads in the Act, in both of which the public had a right of way, and one of which was private property and the other not private property. If that was so, the only meaning that can reasonably be attributed to the word 'public' in the definition of `road' in Section 6 (13) is that the word must have been used by the legislature not in its strict sense as meaning the public in general, but only in a loose sense, including in its category sections of the general public or strangers or outsiders, that is to say, persons other than the owner of the land on which the road runs. The Act, in my opinion, purported to deal with roads over which any of such bodies had a right of way, and left untouched such roads which were private pathways over which the owners thereof and none else had any right of way.

11. In such roads as the Act brought within its purview, the owner of the land itself might have his rights of ownership subject to the right of the land itself, might have lost his rights of ownership therein to the extent that it was a road, in which case it was not a private property. In the latter case the road vested in the Commissioners under Section 30 of the Act; and in the former case the Commissioners could, by way of agreement, take over the property in the road qua road or its control under Section 31 of the Act. That the Act does deal with roads over which the public have aright of way but to which Section 30 does not apply and which accordingly do not vest in the Commissioners cannot be disputed, Ram Chandra Ghose v. Bally Municipality (1890) 17 Cal 680 at p. 684. The general law relating to the rights of the owner of the land vis a vis the persons who use the land as road, apart from the provisions of the Act, is the same in India as in England. There may be acquisition of a right of way by prescription by individuals as well as groups of individuals. Or it may be that there has been a dedication to the public, express or implied. As observed in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290:

Where the owner sets apart land for the use of the public and formally declares that such is his intention or he conveys lands to a Municipality or to trustees to hold for the use of the public, an implied dedication arises by operation of law from the acts of the owner and is really founded upon the principle of estoppel; it proceeds not upon the principle that a grant has actually been made, but rather on the principle that the owner having allowed the public to enjoy the user for any particular purpose is estopped from denying the right of the public to this enjoyment of such user ... In cases, however, where the dedication is not express but merely implied, and consequently there is no deed defining the extent of the rights created by the dedication, a question may arise as to whether the dedication is of the entire ownership in the land or merely of the right of user, because .... dedication is a devotion to public uses, either of the land itself or of an easement in it by any unequivocal act of the owner of the fee manifesting such clear intention. An owner may appropriate land to public use and yet retain in himself all such rights in the soil as are compatiable with the full exercise and enjoyment of the public use to which the property has been devoted. It is not essential to constitute a valid dedication that the legal title should pass from the owner; nor is it inconsistent with an effectual dedication that the owner should continue to make any and all uses of the land which do not interfere with the uses for which it is dedicated.

12. To constitute a dedication of a way to the public by an owner of the soil there must be an intention so to dedicate, and user by the public is evidence of such intention; there may be dedication of a way to the public for a limited purpose, as for a footway, but there cannot be a dedication to a limited part of the public: Poole v. Huskinson (1843) 11 M & W 827. And in order to establish that a road is a public road it is sufficient, if acts of user by the public are shown to have been acquiesced in by the owner of the land over which the road passes and these acts are of such a character as to warrant the inference that the owner intended to make over to the public the right to use the land as a public highway: Anderson v. Jagadamba Debi (1880) 6 C L R 282, referring to Dovaston v. Payne (1795) 2 Sm L C 10th Edn. p. 157. Such being the law, there may be roads over which the public have a right of way and yet the road qua road may still be private property. But upon the finding at which the Court of appeal below has arrived and to which I have already referred, namely that the public in general and not the residents of the neighbourhood only have a right of way over the strip of land in question and that there has been no instance of any member of the public having been ever disallowed the use of the strip of land as road, there can be no room for the contention that the road qua road is still the private property of the plaintiffs. If the case had to be dealt with under Act 3 of 1884 prior to the amendment introduced by Act 4 of 1894, there could be no question whatever that Section 30 of the Act would have applied to the road in question. The question, however, is whether the latter Act introduced any change in the law. In the District Municipal Improvement Act (3 of 1864), there was in Section 2 the following definition of 'Highway':

The word 'Highway' shall mean any road, street, square court, alley or passage, whether a thoroughfare or not, over which the public have a right of way; and also the road way over any public bridge or causeway.

13. And in Section 10 of the Act it was said that all public highways `not being private property' shall vest in and belong to the Municipal Commissioners, while under Section 11 the Commissioners could by agreement with the person in whom the property in any highway was vested, take it over so as to vest it in themselves. In the next Act, the Bengal Municipal Consolidation Act (5 of 1876), `road' was defined in precisely the same words in which it was defined in the later Act, the Bengal Municipal Act (3 of 1884), the word `Highway' being abolished. The reason for such abolition probably was that the technical meaning attributed to the word by the English Highway Act of 1835 was not considered suitable to this country. Sub-section 32 and 33 of the Act made similar provisions, except for the inclusion of other things, namely, bridges, embankments, tanks, ghats, wharves, jetties, wells, channels and drains, as there were in Sub-section 10 and 11 of the previous Act. These provisions were produced in Sub-section 30 and 31 of Act 3 of 1884. It seems noteworthy that in all the three Acts of 1864, 1876 and 1884, the same distinctive feature has all along remained present, namely that notwithstanding that each of these Acts brought within its purview all roads, over which the `public' had a right of way, a distinction was made and kept up all through as between roads which were not private property and roads the property in which remained vested in the owners of the land itself.

14. Two cases came up before the High Court, one under the Act of 1876 and the other under the Act of 1864. In the former of these cases, 13 Cal 171 Chairman, Naihati Muncipality v. Kishori Lal Goswami (1886) 13 Cal 171, the Municipality claimed compensation money awarded under the Land Acquisition Act for the whole of the soil of what was found to be a public road, on the ground that they had a title to the property under Section 32 of the Act of 1876, while the Zemindar claimed it on the ground that not withstanding that the road was a public road the soil was his. Following the decision in The Vestry of St. Mary, Newington v. Jacobs (1870) 7 Q B 47, it was held that 'road' in Section 32 of the Act did not mean everything above and below the road and that the sub-soil, therefore, did not belong to the Municipality. In the second case it was held similarly that Section 10, Act 3 of 1864 did not deprive a person of any right of private property that he may have in land used as a public road, nor did that section vest the sub-soil of such land in a Municipality, and that when such land was no longer required as a public road the owner was entitled to recover possession. In this last mentioned decision reliance was placed on the earlier decision in Chairman, Naihati Muncipality v. Kishori Lal Goswami (1886) 13 Cal 171 and reference also was made to the decision in Nihal Chand v. Azmat Ali Khan (1885) 7 All 362, in which it was held that the word 'road' used in the N. W. P. and Oudh Municipal Act (15 of 1873) did not include the sub-soil. It was at this stage that Act 4 of 1894 was passed, Section 22 of which introduced the words 'including the soil and all' between the words 'roads and bridges' in the opening sentence of Section 30, Act 3 of 1884.

15. The question is whether by inserting these words the Legislature intended to disjoin the clause 'not being private property', etc., by which the words 'all roads' had been governed all along since 1864. It should be noted that the effect of such disjunction would be to obliterate the distinction which I have pointed out above as between the two classes of roads of which the Acts had all along taken congnizance, over both of which the public' had a right of way, giving the word 'public' not the strict but the loose meaning in which I understand the word as used in the Acts. I am not prepared to hold that such was the intention of the Legislature. I am inclined to the view that all that the Legislature intended to do by the enactment aforesaid was to include the vesting of the soil along with the surface of the road under Section 30 of the Act. In England although the surface only of a highway vests in a Local Authorities a limited right to the stratum of the subsoil immediately below the surface: See Coverdale v. Charlton (1878) 4 Q B D 104, Rolls v. Vestry of St. George Southwark (1880) 14 Ch D 785 and Mayor of Tunbridgewells v. Baird (1896) A C 434. These decision laid it down that not merely the street surface but something more passes; so much of the depth below the surface, as was essential for the use of the public being included in the vesting.

16. The law in England as it stands today, as the result to judicial decisions and statutory vesting, is that the freehold is not transferred to the Authorities, but the effect is to vest in the Authorities the property in the surface of the street or road and in so much of the actual soil below and the air above as may reasonably be required for its control, protection and maintenance as a highway for the use of the public, and to this extent the former owner is divested of the property (Halsbury's Laws of England, Hailsham Edition, Vol. 16, p. 300, where some of the above-mentioned cases, as also a number of other cases, are cited). Amongst these, reference may be made to (1903) 1 Ch 437 Finchley Electric Light Co. v. Finchley Urban Council (1903) 1 Ch 437, in which Collins, M. R., said: 'That which is vested is the area of the user.' To what extent, if any, the Indian Legislature has gone beyond these decisions, by using such words as 'and belong to' in Section 30 or 'to take over the property therein' in Section 31 of Act III of 1884 or similar expressions respectively, in Sub-section 95 and 96 of Act 15 of 1932, is a.matter into which I do not desire to enter here. But the point that I am now on is that the Legislature by (sic) the amending the Act of 1894 included the soil along with the road in the vesting that takes place under Section 30.

17. In Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290, in which a ghat was concerned, Mookerjee, J., (Rampini, J., agreeing) in construing Section 30 as it ran after the amendment aforesaid took it that the expression 'not being private property', etc., still governed the words 'all roads.' This, it is true, was obiter. In Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, the facts were the following: the plaintiffs alleged that a pathway was private and not a public pathway and asked for a perpetual injunction restraining the Municipality from interfering with its exclusive user by the plaintiffs. Their case was that the Municipality had been trying to make the pathway a public pathway by causing false reports to be submitted by the Municipal Officers and getting entries made to the effect in the existing maps and records. The Municipality pleaded inter alia that the pathway was not a private pathway but was a `road' within the definition of the Act and was vested in the Municipality, and that, in the alternative, it was a road under the control of the Municipality. The Munsif granted the injunction, holding that the pathway was a private one. The Judge, on appeal by the Municipality, held that though the pathway was a `road' over which the public might have a right of way, it did not necessarily vest in the Municipality under Section 30 of the Act, and made a declaration to that effect, withdrawing the injunction which the Munsif had granted. He thought that it was not necessary for him to decide the question whether the pathway was one over which the public had, as a matter of fact, a right of way and whether, in that event, the pathway was under the control of the Municipality. The case was taken on appeal to this Court by the Municipality and in that appeal it was held that the construction of Section 30, which the Judge had adopted, was correct, but it was necessary to determine the second question which the Judge had left undetermined; and in that view of the matter the case was remanded for further hearing and fresh decision. Fletcher, J. (Richardson, J., agreeing) observed thus in his judgment:

'The first question is--Is the pathway vested in the Municipality under Section 30, Bengal Municipal Act? That depends upon the construction of the section. The section has been amended by recent legislation and it is argued that by reason of that amendment the statute operates to vest all roads whether private or not within the limits of the Municipality. That view is supported by two unreported decisions of this Court, both by a single Judge of this Court. On the other hand in a considered judgment of Mookerjee, J. in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290, the learned Judge has put what to my mind is the only possible construction of Section 30. I agree with the learned Judge in the view he has expressed there as to the meaning of the section. Any other view, I think, is outside the range of argument.

18. Of the two unreported decisions referred to in the above passage one was the decision in Kumud Bandhu Das Gupta v. Kishori Lal Goswami (1911) 9 I C 562. In that case Coxe, J. held that upon the findings of fact arrived at by both the Courts below the pathway in question which the plaintiff in that suit claimed as his private property was not a `road' within the meaning of Section 6 (13) of the Act, a finding which was enough to support the decree which was being challenged before him. But the learned Judge went on to construe Section 30 of the Act and observed thus:

It appears to me that if the words in parenthesis apply to `roads' as well as to 'bridges, tanks' etc., the words `and all' in the first line of the section are superfluous. Moreover, as is pointed out by Mr. Collier, a commentator on this Act, whose view on this point appears to me to be correct, before the amendment of the Act in 1894 the words in parenthesis could hardly have applied to roads', because before the amendment the word `road' did not include the soil, but related merely to the surface, and having regard to the definition of road in the Act it was not possible that the surface of any road, as defined in the Act could be private property. In 1894 the words 'including the soil' were added and it then became necessary to decide whether the subsoil of roads, which had not up till then been included in the scope of the Act, should in the case of private property vest in the Commissioners or not. The express insertion of the words 'and all' is an indication that the legislature intended that the subsoil should follow the surface, and should cease to be private property as the surface had already ceased under the original Act before the amendment. In any case, as the words at present run, they must grammatically be construed in the sense contended for by the appellant. It is true that it is difficult, if not impossible, to reconcile this construction with Section 31. But this difficulty may be due to a slip in drafting and need not compel me to construe Section 30 otherwise than in the ordinary grammatical way. If, therefore, the lands in suit are a road as defined in the Act they must, I think, vest in the Municipality under Section 30.

19. The observations quoted above are obiter. Nextly they have for their foundation an erroneous assumption that before the amendment of 1894 the words in parenthesis did not govern the word `roads'--an assumption which is clearly untenable and has not been sought to be justified before us. Thirdly, they proceed on the basis of another assumption that having regard to the definition of the word `road' in the Act it was not possible that the surface of any `road' could be private property. And this assumption entirely overlooks the distinction to which I have referred and which, as I have already stated, has been consistently maintained in the Acts of 1864, 1876 and 1884. Lastly as has been noticed by the learned Judge himself, the construction which found favour with him would not fit in with the very next section; and the difficulty can only be removed by making another assumption, equally unwarranted, that there was a slip in drafting that section. If there was a slip, it is clear that that slip was not corrected ever since 1864. A grammatical construction, which is open to so many objections and produces results which are so unsatisfactory, can hardly be 'preferred to a construction, which, though not strictly grammatical, applies more consistently to the act in all its parts: see Easter Counties & Companies v. Marriage (1860) 9 H L C 32. The other unreported decision referred to in the judgment of Fletcher, J. gives no reasons, and need not be discussed. There is a recent decision of this case, Beer Bikram Kishore Manikya v. Chairman Comilla Municipality, (1935) 62 Cal 692, in which my learned brother Nasim Ali, J. has adopted the aforesaid grammatical construction.

20. The learned Judge has not gone so far as Coxe, J. did, and has not suggested that prior to the amendment of 1894 the words in parenthesis did not govern the word `roads'.

21. I am firmly of opinion that to give a reasonable and consistent meaning to the provisions of the Act the grammatical construction based on the principle of proximity should not be adopted, and that Section 30 of the Act should be construed in the manner in which it was construed by Mookerjee, J. (Rampini, J. agreeing) in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290, and by Fletcher, J. (Richardson, J. agreeing) in Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629. In that view of the matter, there can be no question that upon the findings of the Court of appeal below as regards the character of the road in the present case, the road, qua road, including the subsoil, was vested in and does belong to the Commissioners under Section 30 of Act 3 of 1884 as amended by Section 22 of Act 3 of 1894. I am also of opinion that Section 95, Bengal Municipal Act (15 of 1932), has not, beyond doing away with the definition of `road' as contained in the Act of 1884 which led to some confusion and difference of opinion and introducing two definitions of 'private street' and 'public street' [Section 3, Clause (43) and Section 3 Clause (44)], which more precisely define the rights of the owner of the land concerned, has not made any substantial change in the rights of the Municipality in such pathways as the Act purports to deal with.

22. In any case, the words of Section 95 of the Act are, in my opinion, so plain that I can see no escape from the conclusion that the land in the present suit, coming as it admittedly does within the definition of a `public street,' has on the Act coming into force, vested in and came to belong to the Commissioners even if it be assumed that the repealed Act had not already produced any such effect. The Court of appeal below appears to have been of the same opinion. We have been asked on behalf of the plaintiffs to determine to what extent their proprietary rights, as owners of the land, have been lost to them, by the operation of the Acts or any of them. We do not see any necessity to go into a question which has not yet arisen and will have to be decided when, if ever it will arise. Here the only cause of action upon which the suit was founded was one which arose in connection with the surface of the road and its soil meaning by that word so much of the depth below the surface as was essential for the making, maintenance, occupation and exclusive possession of the road qua road for the use of the public. It was on that cause of action that the reliefs were asked for in the suit. It is true that the Municipality denied the title of the plaintiffs to the land itself, but this they did only as a plea to repel the prayer for such reliefs as were asked for and as were pertinent to the cause of action. That plea has been overruled by the learned Judge and so no controversy on that question can ever arise again. But to avoid any difficulty arising in future I think we should make it clear in our order that the plaintiffs' prayer for declaration of their title to the plaint land qua road including its soil and for a declaration that the defendant Municipality has no right, title or interest in the same, and also their prayer for the injunction as made in the plaint are dismissed, and that no other question is now decided. The result, in my judgment, is that the questions formulated for our decision should be answered in the manner following: 1. Roads over which the public have a right of way, if they are not private property, vest in the Municipality under Section 30 of Act 3 of 1884 as amended by Act 4 of 1894. 2. Yes, in so far as it is a decision on the question of construction of the aforesaid section. And the appeal should be dismissed with costs, fee being allowed for the hearing before the Division Bench according to scale, and for the hearing before this Bench at five gold mohurs.

Jack, J.

23. This Reference has arisen out of an appeal in which the plaintiff appellants pray for a declaration of their title to a strip of road in Kamarhati Municipality connecting their private ghat with the Pithuri Ghat Municipal road. In the suit which was instituted on 3rd November 1930, they also prayed for an injunction on the municipal commissioners restraining the latter from interfering with their possession. The defendant Municipality deny the plaintiff's title and maintain that the disputed land is part of the Pithuri ghat road belonging to the Municipality which has all along been maintaining it. It has been found that the disputed piece of road way is on land belonging to the plaintiffs but that the public have a right of way over the land as shown by their free and uninterrupted use of it for a very long time. On these findings of fact the suit was dismissed. In second appeal the plaintiffs maintain that their title should have been declared (even if they were given no other relief) on the ground that under the provisions of the Bengal Municipal Act 6 of 1884 (which was the Act in force when that suit was instituted), the land being private property has not vested in the Municipality and that Bengal Municipal Act 15 of 1932 has no retrospective effect.

24. The appeal has been referred to this Bench on account of the decision of the 43 Cal 130 Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, by which the learned referring Judges state that they are pressed. In connection with the reference two questions are framed for our decision, viz. (1) Do roads over which the public have (sic) a right of way in a Municipality vest in Municipal Commissioners? (2) Was the case, 43 Cal 130 Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, correctly decided? Under Section 95, Bengal Municipal Act 15 of 1932, all public streets including the soil, the pavements, stones and other materials within the Municipality shall vest in and belong to the Commissioners. Public street (as defined in Section 3, Clause 30) means any street, road, lane, gully, alley, passage, pathway, square or court, whether a thoroughfare or not over which the public have a right of way.

25. The first question for decision must therefore be answered in the affirmative. But obviously the learned Judges really want our decision whether under Section 30 of Act 3 of 1884 as amended in 1894 a road including the sub-soil vests in the Municipal Commissioners if the roadway is one over which the public have a right to pass. This is their view and they are of opinion that the case, 43 Cal 130 Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, in which the contrary view has been expressed, was wrongly decided. In that suit the plaintiffs sued the Howrah Municipality for a perpetual injunction restraining them from interfering with the exclusive use of a certain pathway by the plaintiffs, and claiming that it was private pathway. It was held that the pathway was a private pathway and therefore did not vest in the Municipal Commissioners under Section 30 of the Act of 1884 as amended by the Act of 1894 as that section did not operate to vest all roads, whether private or not, within the Municipality in the Municipal Commissioners. That decision I think was right. The learned Judges in that case however also held that if the public had a right of way over the pathway then the Municipality would have a right of control under later sections of the Act, inferring that in that case the path would not vest in the Municipal Commissioners. In this, with all due respect, I think they were wrong for, if the public had a right of way, the owner would have ceased to have any separate right if the path was a pathway for, as a pathway, it would have ceased to be private property, and under Section 30 of the Act would have vested in the Municipality. The learned Judges who have referred these questions reached the same conclusion as to the application of Section 30 of the Act of 1884, but by a different route. 'Road' is defined in the Act of 1884, as

a road, street, square, court, alley or passage, whether a thoroughfare or not, over which the public have a right of way,

and Section 30 of the Act runs as follows:

All roads (including the soil and all) bridges, ghats, wells, channels and drains in any Municipality ( not being private property and not being maintained by Government or at the public expense) now existing, or which shall hereafter be made and the pavements, stones and other materials thereof and all the erections, materials, implements and other things provided therefor shall vest in and belong to the Commissioners.

26. The learned Judges say that the words in parenthesis 'not being private property and not being maintained by Government or at public expense' do not apply to the roads but only to the bridges, tanks, etc., because of the words 'and all' inserted after roads and before bridges etc.; the context however shows that the words 'not being private property' must have been intended to apply to roads notwithstanding the separating words 'and all' for otherwise the words in any Municipality' would also be divorced from the words 'all roads', and further the words 'not being maintained by the Government or at the public expense' would be disconnected from the words 'all roads', though in each case it is evident that they were used in connection with the roads as well as bridges, etc. I am not impressed with the interpretation favoured by the learned referring Judges based on the grammatic construction of the sentence following the decision of two single sitting Judges in Kumud Bandhu Das Gupta v. Kishori Lal Goswami (1911) 9 I C 562 and Beer Bikram Kishore Manikya v. Chairman Comilla Municipality, (1935) 62 Cal 692, but rejected by their Lordships Rampini and Mookerjee, JJ. in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290. My impression is that the words 'and all' were possibly introduced merely to make the sentence more euphonious. If it had read 'all roads (including the soil) bridges, tanks, etc ,' it would not have been so euphonious as the sentence 'all roads (including the soil) and all bridges, tanks, etc.' and the additional words were added when the clause 'including the soil' was introduced by the amending Act of 1894. The use of the word 'private' as applying to roads is explained I think because roads in this section as in Section 31 and in Section 217, Clause (1) (where public roads are referred to) meant roads in the ordinary sense including private roads and not exclusively roads over which the public had a right of way the definition of roads in the Act not applying as repugnant to the context. Long continuous user by the public with the owner's knowledge and acquiescence raises a presumption of dedication to the public for use as a road including such portions of the subsoil as were necessary for the maintenance of the road and it is these non-private rights in the land that vest in the Municipality. This was the view taken in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290. Accordingly such roads as roads cannot be regarded as private property and vest in the Municipality. Since therefore the plaintiffs' claim was really for declaration to their title to the land in suit as a roadway the suit was rightly dismissed though both the Courts have found that the plaintiffs have a good title to the land over which the road was made.

27. The discussion raised in this appeal is somewhat academic for Section 30 of the Act of 1894 is no longer of any practical importance whatever since there can be no question that under Section 95, Municipal Act of 1932, all roads in a Municipality over which the public have a right of way now vest in the Commissioners; and, if Section 30 of the amended Act of 1894 had been construed against the Municipality, the Municipality could immediately bring a suit under the existing law and get a declaration that the land had vested in the Municipality. There is ample authority for the view that in such cases the law as it now is can be applied to lessen litigation. For example, the cases Rai Charan Mandal v. Biswa Nath Mondal 1915 Cal 103 and Suresh Chandra v. Kanti Chandra 1928 Cal. 436 may be referred to. I agree therefore with my learned brother Mukerji, J. that the appeal should be dismissed, the first question answered in the affirmative and the second question partly in the affirmative and partly in the negative as I have indicated

D.N. Mitter, J.

28. I have had the pleasure and the advantage of reading before hand the judgment just delivered by my learned brother Mukerji, J. I agree entirely that the question referred to the Full Bench should be answered in the way he has answered them I so entirely agree with the conclusions reached by him and generally with the reasons on which the said conclusions are based that I have nothing further to add.

S.K. Ghose, J.

29. The questions of law referred to the Full Bench are:

(1) Do roads over which the public have a right of way in a Municipality vest in the Municipal Commissioners?

(2) Was the case, 43 Cal 130 Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, correctly decided?

30. The matter arises out of a second appeal preferred by the plaintiffs whose case is that the land in suit is their private property and that the Kamarhaty Municipality has no title to it. This land is a continuation of a public street which is on the east side; on the west there is a private ghat of the plaintiffs. The suit was instituted on 3rd November 1930 when the Bengal Municipal Act 3 of 1884 was in force, but during its pendency that Act was replaced by the Bengal Municipal Act 15 of 1932. The Courts below have concurred in finding that the land in question is included in the rent-free property of the plaintiffs and that the public have a right of way over it so that it is a 'road' as defined in Section 5 (13) of the Act of 1884. The contention of the plaintiffsappellants is that in accordance with Section 30 of the Act of 1884 the property in the road remains with them and does not vest in the Municipality. The lower appellate Court pointed out that under Section 95 of the Act of 1932

all public streets, without reservation of private property in such streets, have become vested in the Municipality,

and it hold that the declaration which is sought for under the old Act would be infructuous because the Municipality could by another suit obtain a declaration in its favour under Section 95 of the new Act. Thereupon a question arose as to whether the new Act would have retrospective effect, and the contention for the Municipality was that Section 95 of the new Act has made no change in the law but is of a declaratory nature. This contention has found favour with the learned referring Judges. The question is whether under Section 30, Act 3 of 1884, as amended in 1894 a road, including its soil, vests in the Municipal Commissioners if the public have a right of way over that road. The learned referring Judges take the view that the phrase 'not being private property' in Section 30 does not refer to 'all roads, including the soil, that it only refers to the succeeding words 'and all bridges, tanks, etc.' This they consider to be the grammatical meaning of the section as amended. In this they have the support of two decisions of this Court. In Kumud Bandhu Das Gupta v. Kishori Lal Goswami (1911) 9 I C 562 Coxe, J. thought that if the words in parenthesis apply to roads as well as to bridges, tanks, etc., the words 'and all' in the first line of the section would be superfluous and that the express insertion of the words 'and all' was an indication that the legislature intended that the subsoil should follow the surface and should cease to be private property, as the surface had already ceased under the original Act before the amendment of 1894. In taking this view Coxe, J. was following the commentary of Mr. Collier. The difficulty in the way of this view, as Coxe, J. himself says, is that

it is difficult, if not impossible, to reconcile this construction with Section 31. But this difficulty may be due to a slip in drafting and need not compel me to construe Section 30 otherwise than in the ordinary grammatical way.

31. It does not appear that Coxe, J. had before him the earlier case in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290 which was decided by Rampini and Mookerjee, JJ. in 1906. There the question was with regard to a ghat and Section 30 of the Act of 1884 was construed from that point of view. Mookerjee, J. mentioned that under Section 30, as it stood before the amendment by Act 4 of 1894, the term 'road' comprised only the surface of the road and not the subsoil underneath it as was held in Chairman, Naihati Muncipality v. Kishori Lal Goswami (1886) 13 Cal 171 and Modhu Sudan Kundu v. Promoda Nath Roy (1893) 20 Cal 732. In 1894 the legislature amended the section so as to make all roads, including the soil, vest in the commissioners. A question was raised before us as to the true effect of the words

not being private property and not being maintained by Government at .... public expense

which find place in Section 30. In my opinion the phrases connected by the conjunction 'and' must be taken distributively and not collectively. The section clearly means that all roads, etc., shall vest in the commissioners, but roads, etc., being private property shall not so vest and roads, etc., maintained by Government or at public expense shall also not vest. The intention of the legislature appears to have been not to vest in the commissioners such roads, etc., as are either private property or are maintained by Government or at the public expense. But here also a little difficulty was felt.

So far as ghats are concerned however it may be observed that Sub-section 30 and 32 overlap and there is an apparent inconsistency.

32. It was held in that case that the word ghat in Section 30 was not intended to include the burning ground that the title to the burning ground did not vest in the Municipality, but that the ghat itself belonged to the Municipality. The next case, 43 Cal 130 Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, was decided in 1915 by Fletcher and Richardson, JJ. There the subject-matter was a pathway which was held to be private, and the question was whether it vested in the municipality under Section 30. Fletcher, J. discarded the view of Coxe, J. in Kumud Bandhu Das Gupta v. Kishori Lal Goswami (1911) 9 I C 562 which was quoted in argument and followed that of Mookerjee, J. in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290 declaring ' any other view I think is altogether outside the range of argument.' Then he proceeded to say:

Then comes the other question. The learned Judge has not found whether the public have or have not a right to go over the pathway in question. If the public have a right to go over the private pathway then the Municipality, under certain later sections of the Act, have been given the power of control, the difference being that, in the case of roads vested in the Municipality, they are the body responsible for the lighting, watering, sewering and clearing the roads and, in the other case, where the road is not so vested in the Municipality, they have only the power of control to prevent the road from becoming a nuisance or the rights of the public from being interfered with. The learned Judge has failed to consider that case altogether and he has made a declaration that this is a private pathway.

33. Ultimately the case was remanded for the determination of this question. Therefore the view taken was that private pathways do not vest in the municipality under Section 30, but that if the public have a right of way over such a pathway the municipality have 'a right of control as conferred by the later sections of the Act'. These and other cases were before Nasim Ali, J. in Beer Bikram Kishore Manikya v. Chairman Comilla Municipality, (1935) 62 Cal 692 which was decided in 1935. He favoured the view that 'private property' would not refer to 'roads'. But he proceeded to remark:

If however the words 'private property' be taken to refer to roads as well, only private roads or pathways would be exempted ... Section 31 evidently contemplates private roads, the surface of which did not vest in the Municipality under Section 30 of the Act before the amendment of 1894.

34. Mr. Panchanan Ghose for the appellants before us has strenuously contended that the parenthetical clause 'not being private property etc.' must refer back to 'all roads', finding support from Coxe, J., and Nasim Ali, J., and further that 'private property' includes land belonging to a private individual but over which the public have a right of way, such as the land in dispute in this case. His contention is that the public right is a right of passage only and the owner retains his property in the soil and that therefore such a 'road' would be 'private property' and would not 'vest in and belong to the commissioners.' Dr. Mukherji for the other side has contended that the parenthetical clause does not apply to 'all roads' and that even if it does the word 'roads' has been losely used and not strictly in accordance with its definition in the Act. According to the latter argument, only such roads are excepted as are private roads qua roads i.e., over which the public have no right of way. In this connexion Dr. Mukherji has contended that it is a well established canon that a grammatical construction should not be followed if it leads to inconsistency if not absurdity. As to this it is just as well as to recognize that opinion is by no means uniform as to what the grammatical construction of the particular passage in Section 30 is. What Coxe, J. took to be the grammatical construction did not find favour with Fletcher, J. who took it to be 'altogether outside the range of argument. A reference to the older Acts will now be useful. In the District Municipal Improvement Act, Act 3 of 1864 the relevant Section 10 runs as follows:

All public highways in any place to which this Act shall be extended (not being the property of and repaired by and kept under the control of the Government, and not being private property) existing at the time this Act comes into operation, or which shall afterwards be made, and the pavements, stones and other materials thereof, and also all erections, materials, implements, and other things provided for such highways, shall vest in, and belong to the Municipal Commissioners.

35. Here there is no question that the parenthetical clause, which is practically the same as in Section 30 of the Act of 1884, refers to 'all public highways.' 'Highway' is defined thus:

Highway shall mean any Road, Street, Square, Court, Alley, or Passage, whether a thoroughfare or not, over which the public have a right of way; and also the roadway over any public bridge or causeway.

36. With the exception of the last clause the definition is the same as that of a 'road,' in the subsequent Acts. But in Section 10 the words 'all public' before 'highways' is noteworthy. The next Section 11 runs thus:

It shall be lawful for the Municipal Commissioners to agree with the person or persons in whom the property in any highway is vested, to take over the property therein, and after such agreement to declare by notice in writing put up in any part of such highway that the same has become a public highway. Thereupon such highway shall vest in the Municipal Commissioners, and shall thereforth be repaired and kept out of the Municipal Fund.

37. The next Act was the Bengal Municipal Act, 1876, (Act 5 of 1876), in which the corresponding sections are Sub-section 32 and 33. The first paragraph of Section 32 runs thus:

All roads, bridges, embankments, tanks, ghats, wharves, jetties, wells, channels and drains in any Municipality (not being private property) and not being maintained by Government or at the public expense, now existing or which shall hereafter be made, and the pavements, stones and other materials thereof, and all erections, materials, implements and other things provided therefor, shall vest in and belong to the Commissioners.

38. It will be noted that the term 'roads' is substituted for 'public highways,' an expression which has a technical meaning in English law, and between roads' and the parenthetical clause some new items 'bridges, etc.,' are introduced. It is a reasonable inference that the parenthetical clause does not cease to govern 'roads' and that it governs all the items 'roads, bridges etc.' Section 6 (16) gives a definition of 'road' which is practically the same as that of 'highways' in the previous Act and is identical with the definition in the subsequent Act. Section 33 also mentions 'road.' In the succeeding Act 3 of 1884, Sub-section 30 and 31 maintain the identical language and provisions. Thereafter occurred decisions to the effect that the word 'roads' comprised only the surface of the roads, but did not include the subsoil which belonged to the Zemindar within whose estate the road was situated: Chairman, Naihati Muncipality v. Kishori Lal Goswami (1886) 13 Cal 171 and Modhu Sudan Kundu v. Promoda Nath Roy (1893) 20 Cal 732. Hence the amendment by Act 4 of 1894 by which the words 'including the soil and all' were introduced between the words 'roads' and 'bridges.' Obviously this amendment was not intended to disturb the force of the parenthetical clause which remained where it was and must govern 'roads' as also the other items 'bridges,' etc. This is consistent with the interpretation put upon the section by Mookerjee, J. in Chairman, Howrah Municipality v. Kshetra Krishna Mitter (1906) 33 Cal 1290. But Fletcher, J. in Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629 sought to go further and exclude from the scope of Section 30 roads over which the public have a right of way by referring them to a later section, meaning possibly Section 31. The contention of Mr. Ghose for the appellants that roads over which the public have a right of way are still private property is based upon authorities which were not concerned with the amendment of 1894.

39. The decision in Chairman, Naihati Muncipality v. Kishori Lal Goswami (1886) 13 Cal 171 follows the English case Vestry of St. Mary, Navington v. Jacobs (1872) 7 Q B 47. In Sundaram Aiyar v. Municipal Council Madura (1902) 25 Mad 635 the matter in issue was the meaning of the phrase 'vesting streets in a Municipal Council' with particular reference to the Madras District Municipalities Act. The current of authorities in England and India, including Chairman, Naihati Muncipality v. Kishori Lal Goswami (1886) 13 Cal 171 and Modhu Sudan Kundu v. Promoda Nath Roy (1893) 20 Cal 732, was considered and it was held that such vesting does not transfer to the municipal authority the rights of the owner in the site or soil over which the street exists, that it does not own the soil from the centre of the earth usque ad coelum, but that it has only the right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to maintain the street as a street. This view was adopted by Mookerjee and Cuming, JJ. in Khetra Mohan Ghose v. Corporation of Calcutta 1917 Cal 95. That was a case in which the vesting of a street was considered with reference to the Calcutta Municipal Act, and Chairman, Naihati Muncipality v. Kishori Lal Goswami (1886) 13 Cal 171 was also cited. The amendment of 1894 was not under discussion. It has been said that the effect of the amendment is that by the addition of the words 'including the soil' in 1894, the Commissioners have been constituted the owners of the roads and all the soil beneath and therefore the amendment overrules the law as formerly laid down. It is however another question whether the ownership of the soil will continue in the Municipality where the road has been definitely abandoned or has ceased to exist. For our present purpose it may be said that the effect of the addition of the words 'including the soil' is only this: that where the road vests in the Municipality the soil vests also, but this does not touch the provision that a road which is private property does not vest.

40. In the present Bengal Municipal Act 15 of 1932 the corresponding sections are Sub-section 95 and 96. The language is completely changed though the purport of the enactment appears to be the same. The Act defines public street, Section 3 (44), the relevant words being the same as in the case of 'highways' in the Act of 1864 and of 'roads' in the succeeding Acts; but goes further and defines 'private street' in a negative way (Clause 43), but subject to a minimum requirement as to dimensions or size, to that extent introducing a new provision in the law. 'Street' is defined as meaning a public or private street (Clause 51). In Section 95 (1) (a) the term used is 'all public streets.' The parenthetical clause of the previous Acts finds place in Sub-section (1) but the clause referring to private property is omitted. Section 96 on the other hand refers to 'any street,' etc. Thus all through the various enactments we find two sections which embrace, among other things, all roads with which a Municipality has to deal: (1) roads, not being private property, which vest in the Municipal Commissioners, and (2) roads, property in which vests with private parties who may arrange with the Commissioners as regards control. This gives support to Dr. Mukherji's contention that the word 'roads' (or highways or streets) has been loosely used in the two sections and that Section 30 in particular excludes only such roads which are private property qua 'roads' and not roads over which the public have a right of way Private property qua roads are referred to in the succeeding section. It is further pointed out that public roads comprise two classes: (1) where the site has been acquired from the Municipality, (2) where the site is private but the public have the right of way. If the second class were excluded Section 30 would be confined to the first class only, which is absurd, because roads of that class already vest in the Municipality apart from Section 30.

41. Therefore the second class of roads must be included in the scope of Section 30 and only private roads over which the public have right of way are excluded, there being a matter of arrangement under Section 31. Technically, it may be said, this is not inconsistent with the Act because the definition of 'roads' is subject to the usual condition 'unless there be something repugnant in the subject or context.' Moreover a glance at some other sections will show that the term 'roads'; has been loosely used: Section 217 (1), for instance mentions 'public road,' etc.; Sub-section (5) mentions 'any road.' It has been held that the latter term is not limited to roads vested in the Municipal Commissioners: Ram Chandra Ghose v. Bally Municipality (1890) 17 Cal 680. Section 245 refers to 'roads' to be constructed by bustee owners, failing which the Municipality may construct them and recover the cost under Section 247. In the present case it seems to me the inconsistency disappears if we accept the contention, as we must, that the word 'roads' has been used in Sub-section 30 and 31 of Act 3 of 1894 loosely and not in accordance with the definition in Section 6 (13); Clause (a) of Section 95 of Act 15 of 1932 has made no change in the law. In my judgment, the answers to the questions of law referred must be as follows:

(1) Roads over which the public have a right of way in a Municipality vest in the Municipal Commissioners; (2) the case, 43 Cal 130 Chairman, Howrah Municipality v. Hari Das Dutt 1917 Cal 629, was rightly decided in so far as it held that under Section 30, Bengal Municipal Act, 1884, as amended by Act 4 of 1894 private pathways do not vest in the Municipality. But it was wrongly decided in so far as it held (p. 135) that 'a road within the meaning of Section 6, Clause (13) of the Act, that is, a road over which the public have a right to go,' does not vest in the Municipality under Section 30 of that Act.

Patterson, J.

42. My learned brother Mukerji, J. has dealt with the matter before the Court exhaustively and in all its aspects. I find myself in entire agreement both with the conclusions and with the reasons he has given for arriving at those conclusions. I concur in his judgment and have nothing to add.


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