Judgement

Appeal (No. 64 of 1935) from a decree of the High Court (December 21, 1933) reversing in second appeal a decree of the Second Additional Subordinate Judge at Allahabad (November 14, 1932) which had reversed a decree of the Court of the Munsif at Allahabad (June 19, 1931).

The question for determination in this appeal was whether the appellant, as the hereditary owner of land upon which ran a public street vested in and controlled by the Municipal Board of Allahabad, was entitled to require the demolition of a portico or covered-in shelter running the length of a shop belonging to the respondents other than the Municipal Board and abutting on the street, and which had been erected by them with the sanction of the Board acting in pursuance of the powers in that behalf contained in the United Provinces Municipalities Act (II. of 1916). In the action the appellant claimed a mandatory injunction for the demolition of the portico, and damages and other relief.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

The Munsif dismissed the suit.

The Subordinate Judge held that no claim for damages had been made out, but that the appellant was entitled to an order for demolition of the structure.

The High Court (Thorn and Kisch JJ.) held in effect that though an owner was not deprived of all his rights in the soil when a street vested in and belonged to a public authority, those rights did become limited to the extent of the duties and powers imposed on the public authority properly exercised, and they held that the action of the Municipal Board in sanctioning, and of the shop owners in erecting the portico in question were reasonable and proper, and constituted no infringement of the appellants proprietary rights. They accordingly restored the decree of the Munsif dismissing the appellants suit. The appeal is reported at ( 1934) I. L. R. 56 A. 784.

1937- June 28. Dunne K.C. and J. M. Parikh for the appellant. All the Courts below have held that the title to the land still remains in the appellant, and that the Local Authority have only such rights as entitle them to maintain and keep it as a street. The whole point is whether allowing the shop owners to put up the erection, with a floor a foot high above the pathway, comes within the purview of the acts which the municipality are entitled to do in regard to this land. It has been held in the Courts in India and in England that where there is a vesting in a Municipal Board under such an Act as the present the soil remains in the owner, and that what is vested in the local authority is a special property which entitles them to direct and control it as a street. [Reference was made to the United Provinces Municipalities Act (II. of 1916), s. 2, cl. 19 ; ss. 116,178, 180. and 209.] The projection in this case, a raised platform with pillars, practically added the veranda to the shop. S. Sundaram Ayyar v. Municipal Council of Madura and Secretary of State for India in Council (( 1901)

I. L. R. 25 M. 635.) gives the most complete exposition of the law applicable. The Municipal Board have no power so to deal with the surface as to allow the erection of what, it is submitted, is a building attached to the shop upon that portion of the street that is not maintaining the surface as a street. It is a question of principle. Gunendra Mohan Ghosh v. Corporation of Calcutta (( 1916) I. L. R. 44 C. 689.) also limits the statutory right to one which is necessary for the maintenance and use of the street as a street. It is the appellants land, subject to the statutory rights of the municipality, and the latter cannot give some one else a right which might result in that person in future acquiring by prescription rights against the appellants rights.

Law. Rep. 64 Ind. App. 354 ( 1936- 1937) His Highness Maharaja Man Singh of Sewai Jaipur V. Arjun Lal 164

J. E. Godfrey for the respondents other than the Municipal Board, Allahabad. The whole question