# ' MUNICIPAL BOARD, MANGLAUR v. SRI MAHADEOR. MAHARAJ

- **Citation:** [1965] 2 S.C.R. 242
- **Court:** Supreme Court of India
- **Decided:** 1964-11-24
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-board-manglaur-v-sri-mahadeor-maharaj-3401
- **Pages:** 7

## Headnote

'
MUNICIPAL BOARD, MANGLAUR
v.
SRI MAHADEOR. MAHARAJ
November 24, 1964
[K. SuBBA RAo, RAGHUBAR DAYAL AND N. RAJAGOPALA
AYYANGAR 11.)
Pathway dedicated to the public-Inference of dedicatlo1t-How to be
.draw-Municipality whether has right to build structures on .<uch dedi-
·caled 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 plyo and
library. The respondent filed a suit for a permanent injunction to restrain
A
B
c
the Municipality from putting up the said structures and-for delivery of
possession.
Tue 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 bad
been under the management of the Municipal Board for several decades D
the respondent had lost title to the same, errd that while the Municipality
bad no right to put up structures on the land the respondent bad no right
to object.
The High Court in second appeal held that it bad not been
shown how the ~pondent 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 E
between the two drains stood dedicated to the public; and the fact that
only a part of tlie 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 mainF
tenance of the road.' [247 CD]
Halsbury's Law• of England, 3rd Edn, Vol. 19, p. 49, referred to.
Harvey v. Truro Rural Disrrict'Counci/, (1903) L.R. 2 Cb. 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 tbe 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 doos 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
G
H
!
MUNICIPAL BOARD v. MAHADEOJI (Subba Rao, /.)
2 43
A
the poeition is that subject lo tho right of public to pass and repa11 OD
tho highway the owner of the soil in general remains the occupier of it
and u such may maintain action for trespass against any member of the
public who acts in excess of his rights. [247 F-0]
B
c
Partt and Mackenzies Law of Highways, 20th &In. at p. 4, and S. Sundaram Ayyar v. Municipal Council of Madura and the Secretary of Stale
/or India in Council, (1902) l.L.R. 25 Mad. 635, referred to.
(iii) The appellant Municipality had no right to put up any statue or
ltruCtUreo on the public pathway which were not necessary for the maintance and user of it as a pathway. The respondent on the other hand could
not aslr. for possession of any part of the public pathway as it continued lo
YClt in the Municipality. [247 H-248 BJ
CML APPE

## Text

'
MUNICIPAL BOARD, MANGLAUR
v.
SRI MAHADEOR. MAHARAJ
November 24, 1964
[K. SuBBA RAo, RAGHUBAR DAYAL AND N. RAJAGOPALA
AYYANGAR 11.)
Pathway dedicated to the public-Inference of dedicatlo1t-How to be
.draw-Municipality whether has right to build structures on .<uch dedi-
·caled 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 plyo and
library. The respondent filed a suit for a permanent injunction to restrain
A
B
c
the Municipality from putting up the said structures and-for delivery of
possession.
Tue 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 bad
been under the management of the Municipal Board for several decades D
the respondent had lost title to the same, errd that while the Municipality
bad no right to put up structures on the land the respondent bad no right
to object.
The High Court in second appeal held that it bad not been
shown how the ~pondent 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 E
between the two drains stood dedicated to the public; and the fact that
only a part of tlie 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 mainF
tenance of the road.' [247 CD]
Halsbury's Law• of England, 3rd Edn, Vol. 19, p. 49, referred to.
Harvey v. Truro Rural Disrrict'Counci/, (1903) L.R. 2 Cb. 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 tbe 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 doos 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
G
H
!
MUNICIPAL BOARD v. MAHADEOJI (Subba Rao, /.)
2 43
A
the poeition is that subject lo tho right of public to pass and repa11 OD
tho highway the owner of the soil in general remains the occupier of it
and u such may maintain action for trespass against any member of the
public who acts in excess of his rights. [247 F-0]
B
c
Partt and Mackenzies Law of Highways, 20th &In. at p. 4, and S. Sundaram Ayyar v. Municipal Council of Madura and the Secretary of Stale
/or India in Council, (1902) l.L.R. 25 Mad. 635, referred to.
(iii) The appellant Municipality had no right to put up any statue or
ltruCtUreo on the public pathway which were not necessary for the maintance and user of it as a pathway. The respondent on the other hand could
not aslr. for possession of any part of the public pathway as it continued lo
YClt in the Municipality. [247 H-248 BJ
CML APPELLATE JURISDICTION: Civil Appeal No. 841 of
1962.
Appeal by special leave from the judgment and decree dated
January l, 1960, of the Allahabad High Court in Second Appeal
No. 445 of 1952.
Mohan Behari Lal, for the appellant. S. P. Sinha and Dharam
D B hushan, for the respondent.
The Judgment of the Court was delivered by
Sobba 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 tlie
said plot which belongs to the defendant Municipality. There is
F 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, Dwband, for a permanent injunction to
G restrain the Municipal Board, Manglaur, from putting up the said
structures on the suit site and for delivery of possession of the
1arne to the plaintiff. The defendant, inter alia, pleaded that the
aaid site was part of the road which vested in it.
H
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 patrls has been under the management of
'
244
SUPllBMB OOUllT llBPOllTS
(1965) 2 S.C.R.
the Municipal Board for several decades and that the plaintiff has
A
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"
B
strips of land forming part of the said plot. On that finding, it
set aside the decree of tl1e 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
C
that the fact that only a part of tile 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 D
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. 3211. 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
E
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 (eature
of metalled roads in towns that open spaces are ·left on either
side of them.
TI1e 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 lead~ to an irresistible inference that the strips
F
of vacant spaces form part of the public pathway. The fact that
only a part of the pathway is metalled does not necessarily limit
G
the width of the pathway, but it is evidence of the user of the
pathway by thl: public and its maintenance by the Municipality.
We, therefore, hold that the suit site is part of the public patl!way.
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 tile soil in general remains
r
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MUNICIPAL BOARD v. MAHADEOJI (Subba Rao, !.)
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 Ha/sbury'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 thelll 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."
Jn Harvey v. Truro Rural District Council('), Joyce, J., makes the
following interesting observations which are relevant to the present
E enquiry:
F
"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 footpassengers."
Adverting to the open strips of land on the sides of the road,
G the learned Judge observed :
H
" ........ as Lord Tenterden observed in Rex v.
Wright('), '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."
(I) (1903] L.R. 2 Ch. 638, 643, 643·644.
(2) (1832] 3 B. & Ad. 681, 683; 37 R.R 52~.
246
SUP:tEIO COtmT UPOll.Tll
(1965) 2 S.C.R.
These observations indicate that the fact that a part of the highway
A
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('), 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 c
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 MuniD
cipal Board of Agra, v. Sudarshan Das Shastri( 2 ) defined "road"
so as to include the side lands. TI1erein it was observed :
" ............ 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 -
I:
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
F
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
II 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" G
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(') dealt with the iCOpe of such vesting under the Madras District Municipalities Act, 1884. The head-note therein brings out H
the gist of ilie decision, and it reads :
(I) A.I.R. 1928 Cal. 485, 486, 487.
(2) [1915] I.L.R. 37 All. 9, II.
(3) [1902} I.L.R. 25 Mad. 63$.
I
c
MUNICIPAL BOARD v. MAHADEO.JI (Subba Rao, /.)
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
D 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
1:
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
F 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. Subject to the rights of the
Municipality and the public to pass and repass on the highway,
G 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
H pathway which ~~ 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
SUPUME COUllT UPOl.TI
(1965] 2 S.C.R..
or library are necessary for the maintenance or the user of the
A
fOad as a public highway. The said acts are unauthorized acts
of the Municipality. The plaintiff, who is the owner of tlie 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.
B
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 tlj,e said public pathway,
and the suit in so far as it asked for a decree for possessio11 would
be liable to be dismissed. We allow the appeal in part. As both C
the parties have succeeded and failed in part, they will bear their
respective costs throughout.
Appeal partly allowed.