SIR GEORGE RANKIN:
This appeal is brought by the plaintiff, His Highness the Maharaja of Jaipur, against a decree dated 21st December 1933, of the High Court at Allahabad whereby his suit was dismissed with costs. The suit was brought on 2nd December 1930, in the Court of the Munsif at Allahabad against the Municipal Board of Allahabad (defendant 1) and four persons (defendants 2 to 5) who own and occupy a shop situated near to the junction of City Road and the road leading from the Collector's Cutcherry to Colonelganj within the Municipality of Allahabad. The appellant is the owner of revenue-free land measuring 0.35 acres in Mohalla Katra Jai Singh Sewai, and the shop in question, as also the street in front thereof, are within the limits of the appellant's land. His complaint is that defendants 2 to 5 have, with the sanction of the Municipal Board, but without permission from him, erected a portico along the front of their premises and upon the margin or footpath (patri) of the street. The roof of the portico is a masonry structure supported by iron pillars which rest on the street and the floor of the portico is raised (by stone slabs or concrete) about one foot above the level of the street. The top of the portico is at the same level as the floor of the second storey of the shop building, i.e. the portico is only one storey high. The appellant by his suit claimed a mandatory injunction for the demolition of the portico together with damages and other relief. The Munsif (19th June 1931) dismissed the suit, but on first appeal the Subordinate Judge, though he refused to award damages, granted the claims "for injunction and demolition" (14th November 1932).
The appellant before the Board, as in the Courts in India, has contended that in his character as proprietor of the land over which the street runs, he is entitled to object to the erection of the portico. Not as a member of the public complaining of the portico as an obstruction to traffic, or as the owner of a house or land adjacent complaining of it as a nuisance, but as the owner of the soil upon which defendants 2 to 5 have built a structure without his permission, he claims to be entitled to object to it. That the solum of the street was originally vested in him is plain, and the authorities have even recognized a right in him to levy a tax on itinerant trader who squat on the footpath in this locality at certain times. But it is equally clear that his rights as proprietor have been modified, not merely by the circumstance that he has or must be deemed to have dedicated the land as a highway, but also by the fact that it has become a public street within the meaning of S.2, Cl.19, United Provinces Municipalities Act (2 of 1916). Ss.110, 209 and 210 of this Act are of importance for the decision of this appeal :
116. Subject to any special reservation made by the Local Government, all property of the nature hereinafter in this section specified and situated within the municipality shall vest in and belong to the board, and, shall, with all other property which may become vested in the board, be under its direction, management and control, that is to say :
* * *
(g) all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and things existing on or appertaining to such streets.
* * *
209.-(1) Subject to any rules made by the Local Government prescribing the conditions for the sanction by a board of projections over streets or drains, a board may give written permission, where provision is made by a bye-law for the giving of such permission :
(a) to the owners or occupiers of buildings in or on streets to erect or re-erect open verandahs, balconies, or rooms, to project over the street from any upper storey thereof, at such height from the surface of the street, and to such an extent beyond the line of the plinth or basement wall as are prescribed in such bye-laws, and
(b) to the owner or occupier of any building or land to erect or re-erect any projection or structure so as to overhang, project into, or encroach on or over a drain in a street to such an extent, and in accordance with such conditions, as are in like manner prescribed
(2) In giving permission under Cl. (a) of sub-s. (1), a board may prescribe the extent to which, and the conditions under which, any roofs, eaves, weather-boards, shop boards and the like may be allowed to project over such streets.
210. Any person erecting or re-erecting any such projection or structure as is referred to in S.209 without the permission thereby required or in contravention of any permission given thereunder shall be liable on conviction to a fine which may extend to two hundred and fifty rupees.
The contention of the appellant is that the effect of S.116 is to give the Municipal Board-not the full title to the solum of the street-but only a special property therein sufficient to enable the board to control it as a street; that this right is not inconsistent with and does not oust the right of the appellant as the owner of the land to object to the erection of a building thereon without his permission. The respondents on the other hand contend that the section is intended to make the Municipal Board owners of the surface of the street and of so much above and below as is necessary for the discharge of their duties and the exercise of their powers under the Act. Both sides appeal to the decisions of the Courts in England upon the effect of similar language in Acts of Parliament-in particular, S.149, Public Health Act, 1875 (38 and 39 Vict. c. 55). In (1898) AC 457 (1) at p. 459, Lord Morris delivered the judgment of the Board upon a case arising under a provision that "all public ways in the city of Sydney now or hereafter formed shall be vested in the Council," etc., etc. It was held that upon a portion of the street being taken over and converted into a tramway, the Council had no claim for compensation. Lord Morris said :
Now it has been settled by repeated authorities that the vesting of a street or public way vests no property in the Municipal authority beyond the surface of the street, and such portion as may be absolutely necessarily incidental to the repairing and proper management of the street, but that it does not vest the soil or the land in them as the owners. If that be so, the only claim that they could make would be for the surface of the street as being merely property vested in them qua street, and not as general property.
This passage puts forcibly the restricted sense to be attributed to the word 'vest' in enactments such as S.116, United Provinces Act, now in question. It is equally true, on the other hand, as Collins, M. B. stated in (1903) 1 Ch 437 (2) at p. 440 :
It has been decided by a long series of cases that the word 'vest' means that the local authority do actually become the owners of the street to this extent : they become the owners of so much of the air above and of the soil below as is necessary to the ordinary user of the street as a street and of no more.
In the present case the dispute is not with reference to something sufficiently below or above the surface of the street to be beyond the range of its ordinary user as a street. The erection complained of undoubtedly required sanction from the Municipal Board under Cl. (b) of sub.s. (1) of S. 209, if only by reason that it encroached on or over a drain. Apart from any right of the appellant to complain of it as an obstruction or nuisance, or to complain that sanction was not duly granted, their Lordships have upon a full consideration of the Act to see whether it intends that structures affecting the surface and the space immediately above the surface are to be erected only by permission of the proprietor of the solum of the street as well as by leave of the Municipal Board. Their Lordships think not. They consider that it would put too narrow a meaning upon the words "shall vest in and belong to the board" If it were to be held that the Municipal Board was not competent of itself in the due course and exercise of its powers to authorize such an erection as is here complained of. To that extent the
Municipal Board has property in the street: it is part of the purpose of S. 116 that the Board should not lack the owner, ship necessary to support an effective control of such matters, and that the general property of the original landowner in the solum of the street should be modified and abridged in that behalf. Without in any way holding that S. 116 operates to convey title in the full and proper sense [cf. the observations of Romer, L.J. in (1903) 1 Ch 4372at pp. 443.44], their Lordships think it at least certain that the original owner of the soil cannot maintain trespass for an erection of the character now in question, and they do not think that he can otherwise complain of it as an infringement of his rights as owner.
They express no opinion upon the question whether a permanent structure with pillars resting upon the highway is or is not an obstruction or is an inappreciable obstruction to the highway or is such as could be complained of by the Advocate. General or by others with his consent (S.91, Civil P.C.) on behalf of the public or by a member of the public showing damage special to himself. No such case is raised by the appellant before the Board and their Lordships are not to be under, stood to countenance any suggestion that the vesting in the Municipal authority of a street and the control over it can enable the authority by licensing other persons to interfere with the street, to protect those persons from the consequences of any nuisance to the public or danger to individuals which may be caused by such interference. They will humbly advise His Majesty that this appeal should be dismissed with costs.