Right of Way in Indian Law

Definition and Scope

• Right of Way: Defined as the legal right to pass along a specific route through property belonging to another. It is distinct from a road, which is narrower. The New Oxford American Dictionary emphasizes that it can be established by grant or long usage Navyauga Machilipatnam Port Limited VS State of Andhra Pradesh - Andhra Pradesh (2022).
• Easements: The right of way can include various forms of passage, not limited to foot traffic but also extending to carts and other vehicles, depending on the circumstances Hastimal VS Bachhraj - Rajasthan (2052).

Legal Framework

• Easements Act, 1882:
• Section 22 specifies that a right of way must be definite and cannot be arbitrary or fluctuating. The dominant owner must exercise their right in a manner that is least burdensome to the servient owner Gendalal VS Kalulal - Madhya Pradesh (1988).
• A right of way cannot be substituted by the servient owner without the consent of the dominant owner Bandaru Venkayya VS Lakshmi Narasayya alias Lakshmayya (died) - Andhra Pradesh (2056).

Judicial Precedents

• Public Right of Way: Courts have upheld the right of citizens to use public ways for ingress and egress, emphasizing that this right cannot be obstructed by private encroachments Poosa Ram VS Ghasi Ram - Rajasthan (1984).
• Long Usage: A right of way can be established through long and consistent use without permission, which can create a presumption of right Mahadevamma VS M. Nanjappa Setty - Karnataka (1972)Sabhusingh VS Sabalsingh - Madhya Pradesh (1977).
• Customary Rights: The courts recognize customary rights of way based on local usage, which may not necessarily be formalized as easements but are respected by law Narayani VS Govindan - Kerala (2068).

Key Considerations

• Definite Pathway: For a right of way to be recognized, there must be a clear and defined pathway. Courts have ruled that vague or undefined routes do not establish a right of way Sabhusingh VS Sabalsingh - Madhya Pradesh (1977).
• Obstruction and Injunctions: If a right of way is obstructed, the affected party may seek an injunction to remove the obstruction, provided they can demonstrate their established right Somu Nagireddy VS Gourugari Lingareddy - Andhra Pradesh (2056).

Limitations and Exceptions

• Nature of Use: The right of way granted may be limited to specific types of use (e.g., foot traffic vs. vehicular access) unless otherwise specified in the grant K. Thangavel VS A. Manickam - Madras (2021).
• Alternative Routes: If an alternative route is available, it may affect the claim for a right of way, as courts may consider whether the dominant owner has other means of access Ambalal Somabhai Patel VS Shahibaug Ayodhyanagar Co. Op. HSG Society Ltd. - Gujarat (2022).

Conclusion

The right of way in Indian law is a well-established legal principle that allows individuals to pass through another''s property under certain conditions. It is governed by the Easements Act, 1882, and reinforced by judicial precedents emphasizing the importance of long usage and clear definitions of pathways. Legal practitioners should ensure that claims for right of way are supported by evidence of consistent use and that any obstructions are addressed through appropriate legal channels.

Recommendations

• Gather evidence of long-term use to support claims of right of way.
• Ensure that any pathways claimed are clearly defined and documented.
• Be prepared to address potential counterarguments regarding alternative routes or limitations on the type of access granted..