Municipal Board, Manglaur Vs. Sri
Mahadeoji Maharaj  INSC 270 (24 November 1964)
24/11/1964 SUBBARAO, K.
DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA
CITATION: 1965 AIR 1147 1965 SCR (2) 242
MV 1973 SC 87 (67) D 1974 SC1940 (46) R 1980
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.
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 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,
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
[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]
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 question 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 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 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 rite 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)  L.R. 2 Ch. 638, 643, 643-644.
(2)  3 B. & Ad. 681, 683; 37 R.R.
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 "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 forIndia in
Council(3) dealt with the scope of such vesting under the Madras District
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)  I.L.R (2)  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 property in the soil of the
street which would enable it as owner to bring a possessory action against
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
Appeal partly allowed.