Case Note & Summary
The dispute concerned vacant strips of land lying between a metalled public road and two drains on either side, running through Plot No. 3211 owned by the respondent in the town of Manglaur. The appellant Municipal Board intended to install a statue of Mahatma Gandhi and construct two rooms for a piyo and library on the vacant site. The respondent filed Suit No. 138 of 1948 in the Court of Munsif, Deoband, seeking a permanent injunction to restrain the Municipality from erecting those structures and also sought delivery of possession of the site. The trial court found that the plaintiff had title to the disputed site and decreed the suit for possession and permanent injunction. On first appeal, the 2nd Civil Judge, Saharanpur, held that a road includes the patris on either side, that the road along with patris had been under Municipal management for decades, and that the plaintiff had lost title to the same; however, he also held that the defendant had no right to restrict the use of the public road by putting up constructions and that the plaintiff had no right to object. In second appeal, the Allahabad High Court held that the plaintiff had title to Plot No. 3211 and that the Municipality had not shown how the plaintiff lost title to the kacha strips; it set aside the first appellate decree and restored the trial court's decree. The Municipal Board appealed to the Supreme Court by special leave. The core legal issues before the Supreme Court were whether the vacant side lands formed part of the public pathway dedicated to the public, what rights vested in the Municipality over the public street, whether the Municipality could erect structures on the pathway, and whether the original owner could reclaim possession. The appellant Municipality argued that the entire pathway between the two drains was dedicated to the public and that the fact only a part was metalled did not detract from the totality of dedication. The respondent landowner contended that the disputed site was part of Plot No. 3211 which admittedly belonged to him and that the Municipality had not established how it became owner of the site, though the metalled road vests in it. The Supreme Court, after examining English and Indian authorities, held that an inference of dedication of a highway to the public may be drawn from long public user. It observed that the width of a highway depends on the extent of user and that side lands are ordinarily included in the road because they are necessary for proper maintenance. In the present case, since there was a metalled road with open spaces on either side and drains maintained by the Municipality, the Court drew an irresistible inference that the vacant strips formed part of the public pathway. It rejected the argument that only the metalled portion constituted the road. On the question of vesting, the Court held that under Section 116(g) of the U.P. Municipalities Act, 1916, all public streets vest in the Municipal Board, but such vesting does not transfer ownership of the soil. The Municipality has the exclusive right to manage and control the surface of the soil and so much of the soil below and space above as is necessary to maintain the street as a street. It also has a limited property interest to bring possessory actions against trespassers. The original owner remains the occupier of the soil subject to the public right of passage. Applying these principles, the Court concluded that the Municipality had no right to put up a statue or structures on the public pathway that were not necessary for its maintenance and user as a pathway. At the same time, the respondent could not ask for possession of any part of the public pathway because it continued to vest in the Municipality. Accordingly, the appeal was partly allowed, the suit site was declared part of the public pathway, the plaintiff's claim for delivery of possession was dismissed, and the Municipality was restrained from erecting the proposed structures.
Headnote
A) Property Law - Dedication of Highway - Public User and Side Lands - U.P. Municipalities Act, 1916, Section 116(g) - The suit site was vacant land between a metalled public road and two drains maintained by the Municipality. The Supreme Court held that inference of dedication of a highway to the public may be drawn from long public user, and the width includes side lands necessary for maintenance. Since the entire space between the two drains was maintained by the Municipality and only part metalled, the vacant strips formed part of the public pathway (Paras 247 C-D, 247 E-F). B) Municipal Law - Vesting of Public Streets - Rights of Municipality - U.P. Municipalities Act, 1916, Section 116(g) - Vesting of a public street in a Municipal Board does not transfer ownership of the soil but gives exclusive right to manage and control the surface and necessary subsoil and airspace. The Municipality has a limited property interest enabling possessory action against trespassers; the original owner remains occupier subject to public right of passage (Paras 247 F-G). C) Municipal Law - Powers of Municipality - Construction on Public Pathway - U.P. Municipalities Act, 1916, Section 116(g) - The Municipality lacked authority to erect a statue, rooms for piyo and library on the public pathway because such structures were not necessary for maintenance or user of the pathway as a street. The Court held the appellant had no right to put up such structures (Paras 247 H-248 B). D) Property Law - Rights of Original Owner - Recovery of Possession - U.P. Municipalities Act, 1916, Section 116(g) - Although the original owner retained ownership of the soil subject to public right of passage, he could not claim delivery of possession of the public pathway because it continued to vest in the Municipality. The Court held the respondent could not ask for possession (Paras 247 H-248 B).
Issue of Consideration
Whether vacant side lands between metalled road and drains formed part of public pathway dedicated to public; what rights vest in municipality over public street under Section 116(g) of U.P. Municipalities Act, 1916; whether municipality can erect statue and structures on public pathway; whether original owner can claim possession of such land
Final Decision
Appeal partly allowed. The suit site was declared part of the public pathway. The plaintiff's claim for delivery of possession was dismissed, as the public pathway vested in the Municipality. The Municipality was restrained from putting up any statue or structures on the public pathway which were not necessary for the maintenance and user of it as a pathway.
Law Points
- Dedication of public highway inferred from long public user
- width of highway includes side lands necessary for maintenance
- vesting of public street in municipality does not transfer ownership of soil
- municipality has exclusive right to manage and control surface and necessary subsoil and airspace
- municipality cannot erect structures not necessary for street
- original owner retains soil subject to public right of passage but cannot claim possession of vested public street
