Municipal Board, Manglaur vs Sri Mahadeoji Maharaj

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 841 of 1962

Decision Date: 24 November 1964

Coram: Raghubar Dayal, N. Rajagopala Ayyangar, Subba Rao

In this matter the Municipal Board of Manglaur filed a petition against Sri Mahadeoji Maharaj. The judgment was delivered on 24 November 1964 by a Bench consisting of Justices Subbarao K., Raghubar Dayal, and N. Rajagopala Ayyangar. The official citation of the decision is reported in the 1965 All India Reporter at page 1147 and in the 1965 Supreme Court Reports (Second Series) at page 242, with subsequent citations in later law reports. The dispute concerned a public roadway that passed through land owned by the respondent. The roadway had a metalled central portion, with a drainage channel on each side, the north and south drains. The Municipality intended to erect a statue and construct two rooms to be used as a piyo and a library in the area lying between the metalled strip of the road and the two drainage channels. The respondent instituted a suit seeking a permanent injunction to prevent the Municipality from placing those structures on the land and also demanded delivery of possession of the land. The trial court granted the respondent’s relief and decreed in his favour. On appeal, the first appellate court observed that the road and its adjoining patris had been under the management of the Municipal Board for many decades, and consequently inferred that the respondent had lost title to that portion of land; however, the appellate court held that while the Municipality lacked a right to erect structures on the land, the respondent could not successfully object to the Municipality’s actions. The High Court, hearing a second appeal, found that the respondent had not demonstrated how he had lost title to the uncultivated strips of land or the patris, and therefore set aside the decree of the first appellate court and restored the trial court’s original judgment. The Municipality then obtained special leave to appeal to the Supreme Court, contending that the entire pathway between the two drains was dedicated to public use and that the existence of a metalled portion did not diminish the overall dedication of the whole pathway.

The Supreme Court held that dedication of a highway to the public may be inferred from long‑term public use, and that the width of a highway is determined by the extent of that use. The Court explained that side lands are ordinarily considered part of the road because they are required for proper maintenance. In support of this principle the Court referred to Halsbury’s Laws of England, third edition, volume 19, page 49, as well as to the cases Harvey v. Truro Rural District Council (1903) L.R. 2 Ch. 638, Rex v. Wright (1832) 2 B.& Ad 681, and Anukul Chandra v. Dacca District Board, A.I.R. 1928 Cal. 485. Applying these authorities, the Court observed that it was not contested that the metalled road itself was dedicated to the public, and that it was a logical inference that the side lands adjoining the metalled portion and situated between the road and the drains, both of which were maintained by the Municipal Board, were also included in the public way. The Court further explained that when a pathway vests in a municipality in this manner, the municipality does not acquire ownership of the soil itself; rather, it obtains the exclusive right to manage and control the surface of the soil, together with such portion of the subsurface and the space above the surface as is necessary to maintain the street as a functional roadway. The municipality also possesses a limited property interest in the soil of the street that enables it, as an owner, to bring a possessory action against trespassers. Regarding the private landowner, the Court clarified that, subject to the public’s right of passage, the owner of the soil remains the occupier and may maintain an action for trespass against any member of the public who exceeds the rights granted by the public’s easement.

The Court observed that the inference that a public way existed was readily drawn because the lands in question lay between the metalled road and the drains, both of which were openly acknowledged as being maintained by the Municipal Board. This location of the lands, sandwiched between a road that was clearly for public use and drainage works that the municipal authority tended, led the Court to conclude that the pathway formed an integral part of the public thoroughfare. The citation for this observation was recorded as paragraph 247 E‑F in the judgment.

The Court further explained that when a pathway becomes vested in a municipality in the manner described, the municipal authority does not acquire full ownership of the soil beneath the pathway. Rather, the municipality is granted an exclusive right to manage and control the surface of the soil, as well as such portions of the soil below the surface and the space immediately above the surface as are necessary for the proper upkeep of the street in its capacity as a street. In addition, the municipality possesses a limited property interest in the street soil that enables it, in its role as owner of that interest, to bring possessory actions against individuals who trespass. The Court noted that, concerning the private landowner, the prevailing position is that, subject to the public’s right to pass and repass on the highway, the landowner remains the occupier of the soil and may maintain an action for trespass against any member of the public who exceeds the permitted rights. This reasoning was supported by citations to Partt and Mackenzie’s Law of Highways, twentieth edition, page 4, and to S. Sundaram Ayyar v. Municipal Council of Madura and the Secretary of State for India in Council, reported in I.L.R. 25 Mad. 635 (1902), as noted in paragraph 247 F‑G.

In addition, the Court stressed that the municipal authority’s rights over the public pathway are limited to those functions that are necessary for the maintenance and use of the pathway as a public thoroughfare. Accordingly, the appellant municipality was not entitled to erect any statue or construct any structures on the public pathway unless such works were essential for the upkeep or proper use of the pathway. The Court further held that the respondent, being the private landowner, could not claim possession of any portion of the public pathway because the pathway continued to vest in the municipal authority. This limitation on the municipality’s power and the respondent’s lack of claim to possession were recorded in the judgment at paragraphs 247 H‑248 B.

The judgment then set out the procedural posture of the appeal. The appeal, numbered Civil Appeal No. 841 of 1962, was filed by special leave against a decree dated 1 January 1960 issued by the Allahabad High Court in Second Appeal No. 445 of 1952. Counsel for the appellant municipality was identified, as were counsel for the respondent private landowner. The judgment was delivered by Justice Subba Rao. The appeal raised the question of whether a municipality possessed the right to use a vacant piece of land that lay adjacent to a metalled public road, a matter that required examination of the nature of municipal rights over such land and the rights of the private landowner.

The factual background disclosed that the plaintiff owned plot number 3211 situated in abadi number 1416 within khewat number 216 in the town of Manglaur. Through this plot passed a public road accompanied by two drainage channels, known as nalis, on the north and south sides of the road. In addition, a water pipe belonging to the municipal authority ran through the same plot. Between the road and the two nalis a vacant site existed. The municipal board sought to erect a structure on this vacant site, intending to install a statue of Mahatma Gandhi and to construct two rooms on either side of the statue to serve as a library and a reading room. The plaintiff, as the owner of plot number 3211, filed Suit No. 138 of 1948 in the Court of the Munsif at Deoband, seeking a permanent injunction to restrain the Municipal Board of Manglaur from placing the contemplated structures on the vacant site and also seeking delivery of possession of the site to the plaintiff.

In this case, the plaintiff sought an injunction to restrain the Municipal Board from erecting certain structures on the suit site and also sought delivery of possession of that site. The defendant, among other arguments, asserted that the disputed site formed part of the road which vested in the municipality. The Munsif Court held that the plaintiff possessed title to the site and decreed both possession and a permanent injunction in favor of the plaintiff. On appeal, the second Civil Judge at Saharanpur pronounced that a road includes the “patris” on either side, and that the road together with those patris had been under municipal management for many decades, consequently concluding that the plaintiff had lost title to those areas. That judge further observed that although the municipality lacked authority to restrict public use of the road by constructing the alleged edifices, the plaintiff likewise lacked any right to oppose such constructions. On a second appeal, the Allahabad High Court found that the plaintiff retained title to plot number 3211 and that the municipality had failed to demonstrate how the plaintiff had lost title to the “kacha” strips of land comprising part of that plot. Accordingly, the High Court set aside the decree of the second Civil Judge, Saharanpur, and restored the decree of the trial court. The present appeal therefore arose. Counsel for the appellant argued that the whole pathway lying between the two drains had been dedicated to the public, and that the fact that only a portion of the pathway was metalled did not diminish the overall dedication. Counsel for the respondent contended that the disputed strip was part of plot number 3211, which unequivocally belonged to the plaintiff, and that no evidence had been offered showing how the municipal board had become owner of the strip despite the metalled road passing through the plot vesting in the board. The factual background was not contested. A metalled road traversed plot number 3211. On each side of that road lay an open space, and beyond each open space lay a drain. It was admitted that the public had used the road for many decades and that the municipal board had undertaken maintenance of both the road and the drains. Consequently, it was reasonable to conclude that the entire pathway between the two drains had been dedicated to public use. It is a usual characteristic of metalled town roads that open spaces are left on either side. The lack of metalling across the whole width of the pathway could not be said to undermine the total dedication. The circumstance that vacant strips existed on both sides of the metalled road and between the two drains, which the municipality maintained, led to a compelling inference that those vacant strips formed part of the public pathway. Moreover, the fact that only part of the pathway was metalled did not necessarily restrict the pathway’s width, but served as evidence of public use of the pathway by

In this matter, the Court observed that the public had been using the road for many years and that the Municipality had been responsible for maintaining both the road and the drains on either side. From those facts the Court concluded that the whole area situated between the two drains constituted a public pathway. Accordingly, the Court held that the land which is the subject of the present suit formed part of that public pathway.

Having reached that conclusion, the Court proceeded to set out briefly the relevant principles of the law of highways. The Court referred to the twentieth edition of Pratt and Mackenzie’s Law of Highways, page 4, which states that, subject to the public’s right to pass and repass on a highway, the owner of the soil remains the occupier and may sue for trespass against any member of the public who exceeds his lawful right. The Court also quoted the third edition of Halsbury’s Laws of England, volume 19, page 49, which explains the presumption of dedication. It says that when a way has been used by the public for a long time in a manner that would make the landowner aware that the public believed the way to be dedicated, and when the owner has done nothing to dispel that belief, such circumstances constitute evidence—though not conclusive evidence—from which a court or jury may infer a dedication by the owner. The author further noted, on page 55 of the same source, that a dedication may also be inferred where a highway authority has used a strip of land adjoining an admitted highway for activities such as depositing stones, cutting grips, or, without permission, installing pipes and leveling a roadside ditch.

The Court then turned to English case law for further guidance. In Harvey v. Truro Rural District Council (1903 L.R. 2 Ch. 638 at 643‑644), Justice Joyce observed that on an ordinary highway bounded by fences, the right of way extends prima facie to the entire space between the fences, unless evidence to the contrary is presented, and that the public is entitled to the whole of that space, not merely the portion that is metalled or kept in order for the convenience of carriages and pedestrians. Addressing the open strips of land on either side of the road, the Judge quoted Lord Tenterden’s observation in Rex v. Wright (1832 3 B.& Ad. 681 at 683; 37 R.R. 520), noting that the space at the sides of a hard road is necessary to provide air and sunlight, and that planting trees or hedges too close to the road would prevent the road from being kept sound. Those observations, the Court explained, demonstrate that the use of a portion of a highway as the actual road does not exclude the adjoining side space from being part of the highway. Finally, the Court cited the judgment of Suhrawardy J. in Anukul Chandra v. Dacca District Board, where, after reviewing the relevant English authorities, the judge summarized the English view that the term “road” includes not only the part used as the road but also the lands kept on both sides of it for the purposes of the road.

In the judgment the Court observed that the words “road” or “highway” had been examined in many English cases and that the interpretation adopted in those cases was not limited only to the part of the way that the public actually travelled upon, but also embraced the lands that lay at the sides of the way. The learned Judge applied that English viewpoint to the meaning of the expression “public street or road” as it appeared in Article 146‑A of the Limitation Act. He expressed his view that, for the purposes of that article, the term “road” covered not only the portion that was used as a road but also the lands that were kept on either side of it and formed part of the road. The Court then referred to a decision of a Division Bench of the Allahabad High Court in Municipal Board of Agra v. Sudarshan Das Shastri(2). In that decision the Court defined “road” to include the side lands as well. It was observed that, in the Court’s opinion, every piece of ground, whether it was metalled or not, over which the public enjoyed a right of way, was as much a part of the public road as the metalled portion. The Court further held that any land over which the public, from time immemorial, had been accustomed to travel could be inferred to be a public street or road, and that the fact that a particular part of that land had been metalled for the convenience of traffic did not diminish the status of the adjoining unmetalled side lands as elements of a public road or street.

The Court then turned to the statutory provision that confirmed the vesting of a public street in a municipal authority. Under section 116(g) of the Uttar Pradesh Municipalities Act, 1916 (U.P. Act 11 of 1916), all public streets together with their pavements, stones and other materials, as well as all trees, erections, implements and things existing on or belonging to such streets, vested in and belonged to the Municipal Board. The Court also referred to a decision of 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), which examined the scope of that vesting under the Madras District Municipalities Act, 1884. The head‑note of that decision was quoted as follows: “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 Court then summarized the law on the subject by stating that an inference of dedication of a highway may be drawn from long usage by the public, and that the width of the dedicated highway ordinarily includes the side lands because they are necessary for proper maintenance of the way.

In this case the Court explained that dedication of a highway to the public may be inferred from long‑standing use by the public, and that the width of the dedicated highway depends on how far the public uses it. The lands on either side of the road are ordinarily treated as part of the road because they are necessary for its proper maintenance. When a pathway has been used for a long time, its topographical features, permanent landmarks and the manner in which it is maintained usually indicate the extent of the public’s use. In the present matter there was no dispute that the metalled road had been dedicated to the public. The Court observed that it was easy to infer that the side lands were also included in the public way because those lands lie between the metal road and the drains that the Municipal Board maintains. The Court then clarified that while such a public pathway vests in the Municipality, the Municipality does not acquire ownership of the soil beneath it. The Municipality has the exclusive right to manage and control the surface of the soil and such portion of the soil below and the space above the surface as is necessary to keep the street in adequate condition. The Municipality also possesses a certain interest in the soil that enables it, as an 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 general owner of the soil remains the occupier and may maintain an action for trespass against any member of the public who exceeds his rights. From this legal position the Court derived two consequences. First, the Municipality may not erect any structures on the public pathway unless those structures are necessary for the maintenance or use of the pathway as a road. Second, the installation of a statue of Mahatma Gandhi, a piyo or a library cannot be said to be necessary for the maintenance or use of the road as a public highway. Accordingly, those acts constitute unauthorized actions by the Municipality. The Court observed that the plaintiff, being the owner of the soil, is entitled to seek an injunction restraining the Municipality from exceeding its statutory rights, but the plaintiff is not entitled to possession of any portion of the public pathway because that portion continues to belong to the Municipality. Consequently the Court held that the plaintiff is entitled to a decree of permanent injunction preventing the Municipality from installing the aforesaid structures on the public pathway, and that the part of the suit seeking a decree of possession must be dismissed. The appeal was allowed in part, and each party was directed to bear its own costs throughout the proceedings.