The Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it is a pathway.

Headnote:
HIGHWAY - PUBLIC ROAD - OWNERSHIP AND CONTROL - MUNICIPALITY'S RIGHT TO ERECT STRUCTURES ON PUBLIC PATHWAY - EXTENT OF DEDICATION - INFERENCE OF DEDICATION - WIDTH OF HIGHWAY - SIDE LANDS - VESTING OF PUBLIC ROAD IN MUNICIPALITY - MUNICIPALITY'S RIGHTS AND DUTIES - OWNER'S RIGHTS - INJUNCTION AGAINST MUNICIPALITY - POSSESSION OF PUBLIC PATHWAY.
Fact of the Case:

The plaintiff, the owner of a plot of land through which runs a public road, filed a suit for a permanent injunction to restrain the Municipal Board from putting up structures on a vacant site adjacent to the road and for delivery of possession of the same to the plaintiff. The Municipality contended that the said site was part of the road which vested in it.
Finding of the Court:

The Court held that the entire pathway between the two drains was dedicated to the public and that the suit site was part of the public pathway. It further held that the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it is a pathway and that the putting up of the structures for installing the Statue of Mahatma Gandhi or for piyo or library are not necessary for the maintenance or the user of the road as a public highway.
Issues: 1. Whether the entire pathway between the two drains was dedicated to the public? 2. Whether the suit site was part of the public pathway? 3. Whether the Municipality can put up any structures on the public pathway which are not necessary for the maintenance or user of it is a pathway? 4. Whether the putting up of the structures for installing the Statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway?
Ratio Decidendi: 1. The Court held that the entire pathway between the two drains was dedicated to the public based on the following factors: - The fact that the pathway has been used by the public for decades. - The fact that the Municipal Board has been maintaining the road and the drains. - The fact that the strips of vacant spaces form part of the public pathway. 2. The Court held that the suit site was part of the public pathway based on the following factors: - The fact that the vacant site is located between the metalled road and the drains maintained by the Municipal Board. - The fact that the pathway is used for a long time by the public. 3. The Court held that the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it is a pathway based on the following legal principles: - 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. - The Municipality 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". 4. The Court held that the putting up of the structures for installing the Statue of Mahatma Gandhi or for piyo or library are not necessary for the maintenance or the user of the road as a public highway based on the following factors: - The said structures are not necessary for the maintenance or the user of the road as a public highway. - The said structures are unauthorised acts of the Municipality.
Final Decision: The Court allowed the appeal in part. It held 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.

Judgment

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.

2. 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, Managlaur, 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.

3. 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 "parties" on either side of it, and that the said road along with the parties has been under the management of 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 the same. On 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.

4. 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.

5. Learned counsel to 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.

6. 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 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 circumstances 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.

7. 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 o

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