Full Judgment Text
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PETITIONER:
MUNICIPAL BOARD, MANGLAUR
Vs.
RESPONDENT:
SRI MAHADEOJI MAHARAJ
DATE OF JUDGMENT:
24/11/1964
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
DAYAL, RAGHUBAR
AYYANGAR, N. RAJAGOPALA
CITATION:
1965 AIR 1147 1965 SCR (2) 242
CITATOR INFO :
MV 1973 SC 87 (67)
D 1974 SC1940 (46)
R 1980 SC1785 (9)
ACT:
Pathway dedicated to the public--Inference of
dedication--How to be drawn-Municipality whether has right
to build structures on such dedicated land--Owner whether
can claim possession of such land.
HEADNOTE:
A public road and two drains on the north and south of that
road ran through the respondent’s land. The middle portion
of the road was metalled. In the space between the metalled
portion and the drains the local Municipality wanted to
instal a statue and two rooms for a piyo and library. The
respondent filed a suit for a permanent injunction to
restrain the Municipality from putting up the said
structures and for delivery of possession. The Municipality
pleaded that the site was part of the road which vested in
it. The Trial court decreed the respondent’s suit. The
first appellate court held that since the road along with
the patris had been under the management of the Municipal
Board for several decades the respondent had lost title to
the same, and that while the Municipality had no right to
put up structures on the land the respondent had no right to
object. The High Court in second appeal held that it had
not been shown how the respondent had lost his title to the
Kacha strips of land or patris. On that finding it set
aside the decree of the first appellate court and restored
that of the Trial court. The Municipality appealed to the
Supreme Court by special leave.
It was contended for the appellant Municipality that the
entire pathway between the two drains stood dedicated to the
public; and the fact that only a part of the pathway was
metalled would not detract from the totality of the
dedication.
HELD : (i) Inference of dedication of a highway to the
public may be drawn from a long use of the highway by the
public. The width of the highway depended upon the extent
of the use. The side lands are usually included in the road
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for they are necessary for the proper maintenance of the
road. [247 C-D]
Halsbury’s Laws of England, 3rd Edn. Vol. 19, p. 49,
referred to.
Harvey v. Truro Rural District Council,, (1903) L.R. 2 Ch.
638, Rex v. Wright (1832) 2 B. & Ad, 681 : 37 R.R. 520 and
Anukul Chandra v. Dacca Dt. Board A.I.R. 1928 Cal. 485,
referred to.
In the present case it was not disputed that the metalled
road was dedicated to the public. The inference that the
side lands were also included in the public way was drawn
easily as the said lands were between the metalled road and
the drains admittedly maintained by the Municipal Board.
[247 E-F]
(ii) When a pathway vests in the Municipality in the above
manner the Municipality does not own the soil. It has the
exclusive 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 adequately
maintain the street as a street. It has also a certain
property in the soil of the street which would enable it as
owner to bring a possessory action against trespassers. So
far as the owner of the land is concerned
243
the position is that subject to the right of public to pass
and repass on the highway the owner of the soil in general
remains the occupier of it and as such may maintain action
for trespass against any member of the public who acts in
excess of his rights. [247 F-G]
Partt and Mackenzies Law of Highways, 20th Edn. at p. 4, and
S. Sundaram Ayyar v. Municipal Council of Madura and the
Secretary of State for India in Council, (1902) I.L.R. 25
Mad. 635, referred to.
(iii)The appellant Municipality had no right to put up any
statue or structures on the public pathway which were not
necessary for the maintenance and user of it as a pathway.
The respondent on the other hand could not ask for
possession of any part of the public pathway as it continued
to vest in the Municipality. (247 H-248 B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 841 of
1962.
Appeal by special leave from the judgment and decree dated
January 1, 1960, of the Allahabad High Court in Second
Appeal No. 445 of 1952.
Mohan Behari Lal, for the appellant. S. P. Sinha and Dharam
Bhushan, for the respondent.
The Judgment of the Court was delivered by
Subba Rao, J. This appeal by special leave raises the ques-
tion of the right of a Municipality to a vacant piece of
land adjacent to a metalled public road.
The plaintiff is the owner of plot No. 3211 in abadi No.
1416 in khewat No. 216 in the town of Manglaur. Through the
said plot runs a public road and two nalis on the north and
south of the said road. There is also a water pipe running
through the said plot which belongs to the defendant
Municipality. There is a vacant site lying in between the
nalis and the road. The Municipality was seeking to erect a
structure on the vacant site wherein it intended to instal a
statue of Mahatma Gandhi and also to put up two rooms on
either side for piyo and library. The plaintiff, who is the
owner of plot No. 3211, filed Suit No. 138 of 1948 in the
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Court of the Munsif, Deoband., for a permanent injunction to
restrain the Municipal Board, Manglaur, from putting up the
said structures on the suit site and for delivery of
possession of the same to the plaintiff. The defendant,
inter alia, pleaded that the said site was part of the road
which vested in it.
The Munsif found that the plaintiff has title to the said
site and decreed 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 the patris has
been under the management of
244
the Municipal Board for several decades and that the
plaintiff has lost title to the same. He further held that
though the defendant has no right to restrict the use of the
public road by putting up the alleged constructions, the
plaintiff has also no right to object to the same. One
second appeal, the High Court of Allahabad held that the
plaintiff has title to plot No. 3211 and the Municipality
has not shown how the plaintiff has lost his title to the
"kacha" strips of land forming part of the said plot. On
that finding, it set aside the decree of the learned 2nd
Civil Judge, Saharanpur, and restored that of the Trial
Court. Hence the present appeal.
Learned counsel for the appellant contended that the entire
pathway between the two drains was dedicated to the public;
and that the fact that only a part of the pathway was
metalled would not detract from the totality of the
dedication.
Learned counsel for the respondent argued that the disputed
site is part of Plot No. 3211 which admittedly belongs to
the plaintiff and that it has not been established how the
Municipal Board has become the owner of the said site though
the metalled road passing through the said plot vests in it.
The facts are not in dispute. There is a metalled road
running through plot No. 321 1. On either side of the
metalled road there is open space and on either side of the
open space there is a drain. Admittedly, public have been
using the road for decades. The Municipal Board has been
maintaining the road and the drains. It is, therefore,
reasonable to hold that the entire pathway between the two
drains was dedicated to the public. It is a common feature
of metalled roads in towns that open spaces are left on
either side of them. The fact that the entire pathway is
not metalled cannot possibly detract from the totality of
the dedication. The circumstance that the vacant spaces are
on either side of the metalled road and between the two
drains maintained by the Municipal Board leads to an
irresistible inference that the strips of vacant spaces form
part of the public pathway. The fact that only a part of
the pathway is metalled does not necessarily limit the width
of the pathway, but it is evidence of the user of the
pathway by the public and its maintenance by the
Municipality. We, therefore, hold that the suit site is
part of the public pathway.
At this stage it is necessary to notice briefly the relevant
aspect of the law of highways. In "Pratt and Mackenzies Law
of Highways", 20th Edn., at p. 4, it is stated :
"Subject to the right of the public to pass
and repass on the highway, the owner of the
soil in general remains
245
the occupier of it, and as such may maintain
trespass against any member of the public who
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acts in excess of his right."
In Halsbury’s Laws of England, 3rd Edn., Vol. 19, at p. 49,
rules of presumption and proof of dedication are stated thus
"The fact that a way has been used by the
public so long and in such a manner that the
owner of the land, whoever he was, must have
been aware that the public believed that the
way had been dedicated, and has taken no steps
to disabuse them of that belief, is evidence
(but not conclusive evidence) from which a
court or jury may infer a dedication by the
owner."
The learned author proceeds to observe, at p. 55
"A dedication may also be inferred when a
highway authority has used a strip of land
adjoining an admitted highway for the deposit
of stones or by cutting grips, or has, as of
right and without permission, piped in and
levelled the site of a roadside ditch."
In Harvey v. Truro Rural District Council(1), Joyce, J.,
makes the following interesting observations which are
relevant to the present enquiry
"In the case of an ordinary highway running
between fences, although it may be of a
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 confined to the part
which may be metalled or kept in order for the
more convenient use of carriages and foot
passengers."
Adverting to the open strips of land on the sides of the
road, the learned Judge observed :
"........ as Lord Tenterden observed in Rex v.
Wright(2), ’The space at the sides’ (that is
of the hard road) is also necessary to afford
the benefit of air and sun. If trees and
hedges might be brought close up to the part
actually used as road it could not be kept
sound."
(1) [1903] L.R. 2 Ch. 638, 643, 643-644.
(2) [1832] 3 B. & Ad. 681, 683; 37 R.R. 520.
246
These observations indicate that the fact that a part of the
highway is used as the actual road does not exclude from it
the space at the sides of the road. Suhrawardy J., in
Anukul Chandra v. Dacca Dt. Board(1), after considering
the relevant English decisions on the subject, summarized
the English view thus :
"The expression "road" or "highway" has been
considered in many cases in England and it
seems that the interpretation put there is not
confined to the portion actually used by the
public but it extends also the side lands."
The learned Judge applied the English view to the
construction of the words "public street or road" in Art.
146-A of the Limitation Act, and stated :
"I am of opinion that "road" in that article
includes the portion which is used as road as
also the lands kept on two sides as parts of
the road for the purposes of the road."
So too, a Division Bench of the Allahabad High Court in
Municipal Board of Agra, v. Sudarshan Das Shastri(2) defined
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"road" so as to include the side lands. Therein it was
observed :
it............ in our opinion all the ground,
whether metalled or not, over which the public
had a right of way, is just as much the public
road as the metalled part. The court would be
entitled to draw the inference that any land
over which the public from time immemorial had
been accustomed to travel was a public street
or road, and the mere fact that a special part
of it was metalled for the greater convenience
of the traffic would not render the unmetalled
portion on each side any the less a public
road or street."
That a public street vests in a Municipality admits of no
doubt Under s. 116(g) of the U.P. Municipalities Act, 1916
(U.P. Act 11 of 1916), "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’ vest in and belong to
the Municipal Board. A Division Bench of the Madras High
Court in S. Sundaram Ayyar v. The Municipal Council of
Madura and The Secretary of State for- India in Council(3)
dealt with the scope of such vesting under the Madras Dis-
trict Municipalities Act, 1884. The head-note therein
brings out the gist of the decision, and it reads
(1) A.I.R 1928 Cal. 485, 486, 487.
(3) [1902] I.L.R
(2) [1915] 1. L. R. 37 All. 9, 1 1.
247
"When a street is vested in a Municipal
Council, such vesting does not transfer to the
Municipal authority the rights of the owner in
the site or soil over which the street exists.
It does not own the soil from the centre of
the earth usque ad caelum, but it has the
exclusive 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 adequately maintain
the street as a street. It has also a certain
property in the soil of the street which would
enable it as owner to bring a possessory
action against trespassers."
The, law on the subject may be briefly stated thus :
Inference of dedication of a highway to the public may be
drawn from a long user of the highway by the public. The
width of the highway so dedicated depends upon the extent of
the user. The side lands are ordinarily included in the
road, for they are necessary for the proper maintenance of
the road. In the case of a pathway used for a long time by
the public, its topographical and permanent landmarks and
the manner and mode of its maintenance usually indicate the
extent of the user.
In the present case it is not disputed that the metalled
road was dedicated to the public. As we have indicated
earlier, the inference that the side lands are also included
in the public way is drawn easily as the said lands are
between the metal road and the drains admittedly maintained
by the Municipal Board. Such a public pathway vests in the
Municipality, but the Municipality does not own the soil.
It has the exclusive 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 adequately
maintain the street as a street". It has also a certain
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property in the soil of the street which would enable it as
owner to bring a possessory action against trespassers.
Subject to the rights of the Municipality and the public to
pass and repass on the highway, the owner of the soil in
general remains the occupier of it and, therefore, he can
maintain an action for trespass against any member of the
public who acts in excess of his rights.
If that is the legal position, two results flow from it,
namely, (1) the Municipality cannot put up any structures on
the public .pathway which are not necessary for the
maintenance or user of it as a pathway, (2) it cannot be
said that the putting up of the structures for installing
the statue of Mahatma Gandhi or for piyo
248
or library are necessary for the maintenance or the user of
the road as a public highway. The said acts are
unauthorized acts of the Municipality. The plaintiff, who
is the owner of the soil, would certainly be entitled to ask
for an injunction restraining the Municipality from acting
in excess of its rights. But the plaintiff cannot ask for
possession of any part of the public pathway, as it
continues to vest in the Municipality.
In the result, we hold that the plaintiff would be entitled
to a .decree for permanent injunction restraining the
Municipality from putting up the said structures on a part
of the said public pathway, and the suit in so far as it
asked for a decree for possession would be liable to be
dismissed. We allow the appeal in part. As both the
parties have succeeded and failed in part, they will bear
their respective costs throughout.
Appeal partly allowed.
249