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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