T.S. Doabia, J.
1. This is plaintiff's second appeal. He lost before both the Courts below. His case is that he has been carrying on his business in a wooden cabin. A pan shop is being run by him. He came to the Court with a plea that there is relationship of landlord and tenant between him and Municipal Council. Morena and as such he cannot be evicted from the site in question. The plaintiff placed reliance on receipts which mentions the word 'ground rent'. It was on these premises the contention was raised that there exists a relationship of landlord and tenant and the Municipal Council cannot evict him.
2. The case of the Municipal Council, Morena was that the plaintiff was carrying on his business on a vacant space which falls within the term public street. It was further the case of the Municipal Council that no relationship of landlord and tenant exists; the plaintiff being merely a licensee sitting on the land on daily licence fee. The trial Court came to the conclusion that merely because some amount has been accepted by the Municipal Council towards the use and occupation would not confer on the plaintiff the status of a tenant. It further came to the conclusion that the Municipal Council has a right to get the encroachment removed from the space which is accessible to public by resorting to Section 223 of the M. P. Municipalities Act, 1961 (hereinafter referred to as the Act').
3. The first appellate Court maintained the decree of the trial Court. The plaintiff in this appeal reiterates the arguments which failed to impress the Courts below. It is contended that relationship of landlord and tenant does exist as Municipal Council in the receipts issued in favour of the plaintiff/appellant has indicated the payment as 'rent'. It is further submitted that place where the cabin exists is not covered by the term public street. According to him Section 223 of the Act is not attracted to the facts and circumstances of the case. He has also argued that the construction does not fall within the term building and in any case before evicting the plaintiff alternate accommodation should be provided to the plaintiff.
4. The question as to whether the mention of the word 'rent' in the receipt would bring the relationship of landlord and tenant may be examined. The law is settled that unless and until there is a valid transfer and a contract in terms of the statutory provisions no relationship of landlord and tenant would come into existence. It is further a settled law that streets and public streets are meant to be used by the public at large and the Municipal Council is under an obligation to keep these streets and public streets free from encroachment.
5. The provisions which deal with transfer of property under the Act may be noticed. These are contained in Section 109 of the Act. This section reads as under :-
'Section 109. Other transfers of Municipal Properly.- Subject to such exceptions as the Slate Government may, by general or special order, direct, no Council shall transfer any immovable property except in pursuance of a resolution passed at a meeting by a majority of not less than two thirds of its members and in accordance with rules made under this Act, and no Council shall transfer any property which has been vested in it by the State Government except with the sanction of the State Government :
Provided that nothing in this section shall apply to leases of immovable property for a term not exceeding three years.'
6. A reading of the above provision indicates that certain formalities are required to be observed before a contract may be said to have come into existence. The precise question was considered by the Supreme Court in the case of H.S. Raikhey v. New Delhi Municipality, AIR 1962 SC 554. The argument advanced was that the use of the word 'rent' in the receipts issued by the committee would create a relationship of landlord and tenant. Their Lordships of the Supreme Court negatived this argument. Dealing with this aspect of the matter the Supreme Court observed as under :-
'The use of the word rent is not conclusive of the mater, it may be used in the legal sense of recompense paid by the tenant to the landlord for the exclusive possession of the premises occupied by him. It may also be used in the generic sense without importing the legal significance aforesaid of the compensation for use and occupation. Rent in the legal sense can only be reserved on a demise of immovable property .......... Hence the use of the term rent cannot preclude the landlord from pleading that there was no relationship of landlord and tenant.'
The Supreme Court accordingly held that the issuance of the receipt indicating the payment of rent did not create the relationship of landlord and tenant. The Supreme Court further came to the conclusion that there has to be a contract in terms of the Act and in case there is no valid resolution passed in terms of the Act. no binding contract would come into existence. The Supreme Court was construing the provisions of the Punjab Municipal Act, 1911. The observations made by the Court are pertinent and may be noticed as under :-
'The answer to the argument is that where a statute makes a specific provision that a body corporate has to act in a particular manner and in no other that provision of law being mandatory and not directory has to be strictly followed. It was accordingly concluded that there was no relationship of landlord and tenant.'
7. In view of the above proposition of law laid down by the Supreme Court of India, the contention of the Counsel that relationship of landlord and tenant had come into existence merely because the Municipal Council was issuing receipts indicating the word 'rent' would confer the status of landlord and tenant cannot be accepted.
8. Coming to the next submission that the plaintiff can carry on business on a place which abuts on a public street. Suffice to say that this contention is totally misconceived. It is an admitted case that the plaintiff is carrying on his business in a wooden cabin on a place which abuts on a public street. The plaintiff in his statement has stated before the trial Court that this wooden cabin has been installed on a footpath. This place would certainly fall within the term public street. The terms public street and street have been defined in Sections 2(28) and 2(36) of the Act. These sections read as under :
'Section 2(28) 'public street' means any street-
(a) over which the public have a right of way; or
(b) which has been heretofore levelled, paved, metalled, asphalted, channelled, sewered or repaired out of municipal or other public funds: or
(c) which under the provisions of this Act becomes a public street; and includes -
(i) the roadway over any public bridge or causeway;
(ii) the footway attached to any such street;
(iii) public bridge or causeway, and the drains attached to any such street, public bridge or causeway.
Section 2(28) 'Street' means any road, footway, square court, alley or passage, accessible, whether permanently or temporarily to the public, whether a thoroughfare or not;'
9. Both English and Indian decisions are consistent that a place accessible to public would vest in the local authorities. In the present case, the place in question would certainly fall within the definition of the term 'public street' because every member of the public hits a right of access and to use this public street. The Municipal authorities are under an obligation to see that public streets are used for the purpose for which they are meant. It would be useful to take notice of what was said in Attorney General v. Corporation of Sunder Land, 1875-76(2) Ch.D. 634. It was observed that the position of the Municipal Authorities in regard to public parks, gardens, squares and streets under the Act was that of a trustee and the Municipal Authorities would be guilty of breach of trust in employing any part thereof for purposes other than those contemplated by the Act.
10. The law with regard to public streets and highways in India is the same as in England and elsewhere. This may be noticed.
11. 'In Pratt and Machenzies Law of Highways' 20th Edn. at page 4, it is stated :
'Subject to the right of the public to pass re pass in the highway, the owner of the soil in general remains the occupier of it and as such may maintain trespass against any member of the public who acts in excess of his right.'
12. In Halsbury's Laws of England, 3rd Edn. Vol 19 at page 43 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 them 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 page 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 road side-ditch.'
13. Some English decisions dealing with the right of the public to pass as fully and freely and as safely as they desire may be noticed.-
14. In Orr Eving v. Colqufoun, LR 2 AC 839, Lord Hatherley speaking of the Leven, a navigable but non-tidal river says at page 846 :
'There are two totally distinct and different things - the one is the right of property, and the other is the right of navigation; the right of navigation is simply a right of way.' and Lord Blackburn at page 854 states that :
'The public, who have acquired by user, a right of way on land, or a right of navigation on an inland water, have no right of property. They have a right to pass as fully and freely, and as safely as they have been want to do.'
15. In the case of Galbraiath v. Ammour, (1), 4 Bell's App. 374 in the House of Lords. Lord Campbell said :-
'I must express my clear opinion that by the law of Scotland as well as by the law of England the soil of public highways is presumed to be in the conterminous proprietors and that, if a public highway is established by usage, over the land of author, the soil is still his, with all his former rights, subject to the public servitude which he has suffered to be established.'
It will thus be seen that the right of the public to use the land as highway is not regarded as in the nature of property or property rights. See Rolls v. Vestery of St. George, LR 14 Ch.D. 801.
16. In Coverdale v. Charlton, LR (4) QBD 104, it was held that by force of the statute in question which vested all streets in the local Board and its control on the properly in the soil of the street so far vested in the local Board that they could demise the same right thereon. Bramwell, LJ at pages 116-118 observed :-
'I am disposed to hold that this 'street' vests without any property in the freehold or the soil. The word 'vest' may have two meanings. It may mean that a man acquires the property 'usque ad coelum' and to the centre of the earth but I do not think that to be its meaning here. One construction of the word 'vest' here is that it gives the property in the soil, the freehold, the surface and all above and below it, but that would be such a monstrous thing to say to be necessary for the proper control of the streets by the local Board, that I cannot suppose it to mean such a thing. Suppose the soil of the freehold passes, and consequently it carries the right to the land to an indefinite extent upwards and to the centre of the earth below the surface; I cannot make up my mind to say that is the meaning of the word 'vest' in Section 149.......What then is the meaning of the word 'vest' in this section. The legislature might have used the expression 'transferred' or 'conveyed', but they have used the word 'vest'. The meaning I should like to put upon it is that the street vests in the local Board qua street, not that any soil or any right to the soil or surface vests, but that it vests qua street........The meaning put on the word 'vest' is the space and the street itself, so far as it is ordinarily used in the way that streets are used, shall vest in the local Board.........That would show that 'street' comprehends what we may call the surface that is to say, not a surface hit of no reasonable thickness as the local Board may require for the purpose of doing to the street that which is necessary to it as a street and also of doing those things, which commonly are done, in or under the streets; and to that extent they had a property in it.'
Brett, L.J. observed at page 121 :
''Street' means more than the surface, it means the whole surface and so much of the depth, as is or can be used not unfairly, for the ordinary purposes of a street. It comprises a depth which enables the urban authority to do that which is done in every street, namely, to raise the street, and to lay down sewers, for at the present day there can be no street in a town without sewers and also for the purpose of laying down gas and water pipes.........If the enactment gives the local Board that property in so much of the land, it gives them the absolute property in every thing growing on the surface of the land. The Legislature have because the right of the owners to the soil in a 'street' is of so little value, intentionally taken away that right and have given it to the extent I have mentioned to the local Board.'
At page No. 126 Cotton, L.J., in concurrence with his brothers observed :-
'Therefore, on the true construction of this Act of Parliament, the meaning to be given to the words, 'vest in' must be 'passed to and vested in' the local Board; it is sufficient in the present case to say that the street and the surface vested in the local Board some property in the soil for purpose for which it was to be used and in my opinion I must hold that the 'street' is a material thing, and that under this clause, it vests in the local Board.'
17. James, L. J., in Rolls v. Vestary of St. George, LR 14 Ch.D. 795 explained the above decision in the following words :-
'What that case decided, and all that was necessary to decide in that case, was that something more than an easement passed to the local Board, and that they had some right of property in and on and in respect of the soil which would enable them as owners to bring a possessory action against trespassers. Now, what was that something more It is impossible to read any of these judgments delivered on that occasion without seeing that in the view of the learned Judges, the soil and freehold in the ordinary sense of the words 'soil and freehold' that is to say, the soil from the centre of the earth upto an unlimited extent into space, did not pass and that no status or portion of the soil, defined or ascertainable like a vein of coal or strabun or iron stone, or anything of that kind passed, but that the Board had only the surface, and with the surface, such right below the surface as was essential to the maintenance and occupation, and exclusive possession of the street and the making and maintaining the street for the use of the public.'
18. In The Mayor of Tunbridge Wells v. Baird, LR 1896 AC 434, the House of Lords speaking through Lord Halsbury was of the opinion :
'That the street should be vested in them as well as under their control may be, I suppose, explained by the idea that, as James LJ, points out, it was necessary to give, in a certain sense, a right of property in order to give efficient control over the street. It was thought convenient, I presume that there should be something more than a mere easement conferred upon the local authority, so that the complete vindication of the rights of the public should be preserved by the local authority and therefore, there was given to them an actual property in the street and the materials thereof...........It is intelligible enough that Parliament should have vested the street qua street and indeed, so much of the actual soil of the street as might be necessary for the purpose of preserving and maintaining and using it as a street.'
19. Referring to the case of Coverdale v. Charlton LR 4 QBD 104, at page 439 Lord Bramwell observed :-
'It would be a reasonable construction of the statute to suppose, not that the soil of the freehold had been given in the sense which I have described, but only so much that the street should be used as a street; and then His Lordship is also credited with the observation that the local authority would have authority to do such things as are commonly done in or under a street.'
This decision was followed and applied by the Court of Appeal in a case arising under Section 96 of the Metropolis Local Management Act, 1855. This is reported as Battersea Vestry v. County of London etc. Electric Lighting Co., (1899) 1 Ch. 474, In this case, an electric lighting company had illegally broken up the surface of a street within the district of a vestry in the metropolis and passed their pipes and wires at a depth of about 2 feet below the surface. It was held that the vestry were not by virtue of Section 96, the owners of the soil of the street at that depth and that although the defendant company had acted illegally in breaking up the street the vestry could not maintain an action for a mandatory injunction to compel the company to remove their pipes and wires there being no continuing trespass upon, or interference with any rights of the vestry.
20. In the case of Municipal Council of Sydney v. Young, LR (1898) AC 457, which came on appeal before the Privy Council from the Supreme Court of New South Wales, Lord Morris in delivering the judgment of Their Lordships of the Privy Council observed at page 459 :
'Now it has been settled by repeated authorities which were referred to by the learned Chief Justice that the vesting of a street or public way vests no property in the municipality, beyond the surface of the street and such portion as may be absolutely necessarily incidental to the repairing and proper management of the street, but it does vest the soil or the land in them as owners. If that be so, the only claim they could make would be for the surface of the street as being merely property vested in them qua street and not as general property.'
The conclusion to be drawn from the English case law is that what is vested in urban authorities is not the land over which the street is formed but the street qua street and that the property in the street thus vested in a Municipal Council is not general property or a species of property known to the common law, but a special property created by statute and vested in a corporate body for public purposes, that such property as it has in the street continues only so long as the street is a highway.
21. In two cases, namely, Wodsworth Board of Works v. United Telephones Co., LR 13 QBD 904 and Lord Provost of Glasgow v. Glasgow and S. E. Railway Co., LR (1886) AC 376, which bear upon the extent to which the urban authority has a right in the air space over the surface of a street, and below and beside a bridge over which the street was carried. In regard to the drain which is also vested in the municipality the extent of air space above the drain to which the Municipal Council may be entitled will not be the same as in the case of the street. See also Mayor of Birhenland v. L. and N. W. Railway Co., LR 15 QBD 572.
22. Before noticing Indian cases on this subject, reference may also be made to another English case in Garvet v. Truno Rural District Council, (1908) 2 Ch. 838, page 641-44, Joyce, J., observed as under :
'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 is 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 are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot passengers.'
Adverting to the open strip of land on the sides of the road, the learned Judge observed :
'..............as Lord Tenterden observed in Rex v. Wright, (1832) 3 B and Ad. 681 (688) 37 RR 520. 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 upto the part actually used it could not be kept sound.'
23. The cases originating in this country may now be noticed. In the case of Chairman of Naihati Municipality v. Kishorilal Goswami, ILR 13 Cal. 171, it was held :
'That the vesting of roads in a municipal corporation by Bengal Act V of 1876 Section 32, did not pass to the municipality the soil beneath the roads.'
24. In Madhu Sudan Kundu v. Pramode Nath Roy, ILR 20 Cal. 732, the same view was taken and it was held that statute in question did not deprive any person of any right of private property that he may have in land used as a public road and that it does not vest the subsoil of the land in a municipality.
The decision of the Allahabad High Court in Nihal Chand v. Azmat Ali Khan, ILR 7 All. 362 proceeds on the same view.
25. A Division Bench of the Allahabad High Court in Municipal Board of Agra v. Sudarshan Das Shastri, AIR 1914 All. 341, page 342, observed as under :-
'..........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 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 less a public road or street.'
26. In Municipal Committee, Multan v. Tahila, AIR 1923 Ldh. 272, it was held :-
'The Municipality cannot permit any person to deposit goods for sale on any public street and cannot lease any portion of public street.'
27. Subrawardy, J. in Anukul Chandra v. Dacca Dt. Board, AIR 1928 Cal. 485, at pages 486-487 held :
'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 to the side lands.'
28. Reference may also be made to the decision of the Patna High Court in Dwarka Prasad v. Patna M.C., AIR 1938 Pat. 423, wherein it was held that the owner of the land abutting on a roadway is entitled to access to that roadway. This decision was affirmed by a Division Bench and is reported as Patna Municipality v. Dwarka Prasad, AIR 1939 Pat. 683. Other decisions dealing with the subject and holding that highways cannot be obstructed or fenced and that these must remain accessible to the adjoining owners are R. District Board Manbhuom v. EN Railways Co., AIR 1945 Pat. 200; Pehlad Maharaj v. Gaudi Dutt, AIR 1937 Pat. 620; Das truth Mehto v. Narain Mehto, AIR 1941 Pat. 249; Firm Kastoori Lal Sant Lal v. M. C. Jagraon, AIR 1939 Lah. 199; and M C. Delhi v. Mohd. Ibrahim, AIR 1935 Lah. 196.
29. In Nagar Palika, Bina v. Sh. Nand Lal, 1960 MPLJ 1058 = AIR 1961 M. P. 212, the law relating to creation of a highway by way of dedication and proof as to dedication was considered. Paras 7, 8 and 9 are relevant and may be noticed as under :-
'(7) Highway rights are either created by statute or they arise out of dedication by the owner of the soil to the public. 'Dedication' is defined in 26 Corpus Juris Secundun 398 (1956 Edition) as follows :-
'A dedication is the devotion of land to a public use, by an unequivocal act on the owner of the fee, manifesting the intention that it shall be accepted and used presently or in the future for such public purpose.'And it is further stated :
'Common law dedication is the setting apart of lands for public use. The doctrine rests on public convenience and is based on public policy and good faith and it is analogous to the doctrine of estoppel although it has been stated that it is a distinctive to estoppel.'Such dedication may be made by an express grant or it may be presumed from a long, continued and uninterrupted user by the public. Dedication can be shown by proof of acts and declarations by the owner, as held in Spedding v. Fitzpatrick, (1888) 38 Ch.D. 410, or by the owner permitting the public, for a substantial period of time, to have the free and uninterrupted use of the way, without any impediment whatever (see 19 Halsbury Simonds Edition 49). However, it is only an evidence but not conclusive evidence.
(8) User must be open and unconcealed so that the extent of land-owner's acquiescence may be determined. And user must be as of right, that is to say, the public must enjoy a way as of right where they use it believing themselves to be exercising a right. See Hue v. Whiteley, 1929-1 Ch. 440 at p. 445 and Jones v. Bates, 1938-2 All ER 237 at p. 245. User by permission or by force cannot justify an inference of dedication. Long and continued user raises a presumption of dedication but the presumption is rebuttable. It was held in Muhammed Rustam Ali v. Municipal Committee, Karnal, AIR 1920 PC 43:
'In order to constitute a valid dedication to the public of a highway by the owner of the soil there must be an intention to dedicate there must be an animus dedicandi of which the user by the public is evidence, and no more, and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyments.'(9) But it must be remembered that user is not dedication; it is only evidence to prove animus dedicandi. In every, case there must be a clear intention to dedicate. It was held in Simpson v. Attorney General, (1904) AC 476, per Lord Macnaghten at pp. 493, 494 :'It is clear law that a dedication must be made with intention to dedicate, and that the mere acting so as to lead persons into the supposition that a way is dedicated to the public does not of itself amount to dedication.'
30. The principle that a Municipality cannot use a public street otherwise than as a public street and it has no right to interfere with the enjoyment of the right of way by public by letting out a portion of it to a particular individual for private use was recognized in Municipal Committee Multan v. Abdul Gafoor and others, AIR 1934 Lah. 900.
31. In Tallak Chand v. Dhoraji Municipality, AIR 1955 Sau. 63 a Division Bench observed that the Municipality is not entitled to put up a pucca structure on a footpath merely on the strength of a fact that the street vests in it and belongs to the Municipality. In this case, it was further observed that an owner of the adjoining property has a right of access to the Highway on all points on his boundary and the access is not to be restricted to any particular point. It was further observed that if there is obstruction to the access at any point the owner has a right to have the obstruction removed. The owner of land adjoining a highway has a right of access to the Highway from any part of his premises. The right of the public to pass along with this highway is subject to this right of access just as the right of access is subject to the rights of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the Highway. Reference was made to the observations made by Lord Atkin in Marshall v. Black Pool Corporation, 1935 App. Cases 16.
32. Right of a hawker to carry on a business on the public street and footpath was considered by the Calcutta High Court in the case of Vishwa Nath v. Sudhir Kumar Banerjee, AIR 1961 Cal 389 and it was observed :-
'That neither the commissioner of police nor the police authorities nor commissioner of the Calcutta nor the Corporation of Calcutta and not even the government has any right whatsoever under the law to declare any part of a public street to be a footpath to be a hawker's corner. Such a declaration that hawker would be entitled to occupy a part of public street or footpath and evict unauthorised construction thereon'.
33. The fact that the public streets are to be kept free from encroachment was considered in Pyarelal v. Santlal, AIR 1972 Raj. 103, and it was observed :-
'10. When the Act did not give any power to the Municipality to let out portions of a public highway for putting up stalls for carrying on business this could not be done by framing any bye-laws. Section 129 of the Act which provides for framing bye-laws does not contain any clause specifically empowering the Municipality to frame bye-laws about letting out parts of public highways on Tchbazari. Clause (i) is a general clause enabling the Municipality to frame bye-laws for carrying out the purposes of the Act. As has been shown above the Act does not empower the letting out of portions of a highway for carrying on business and so no bye-laws could be framed authorising the Municipality to do so.'
34. In R. Vardharajan v. Salem Municipal Council, AIR 1973 Mad. 55, it was held that the municipal council cannot permit erection of a statute in violation of the Municipal Act on a public street and even an island is covered for that matter. It was further observed that if the Municipal Authorities act to the contrary to the provisions of statute then they can be directed to act in accordance with law.
35. In Mst. Bhagwanti v. Mst. Joiti, AIR 1975 All. 341, it was observed that if an obstruction is made by any person or authority on a public way which affects the ingress and egress then a suit can be maintained for the removal and demolition of the construction in question. See also Prabhu Das Kalyan Ji v. Haji Yusuf Makalal, AIR 1983 Guj. 119, wherein it was observed that mandatory injunction can be granted directing the Municipality to take action against the person who has been permitted to put a cabin on the footpath. Reliance was placed on an earlier decision given in Paras Ram Manji Mal v. Kalol M.C., AIR 1972 Guj. 54 and Emperor v. Vishwa Nath, AIR 1926 Bom. 535.
36. In B. Govinda Rao v. Distt. Collector, Ernakulam, AIR 1983 Ker. 11 under government scheme to aid the disabled persons an institution was authorised to construct a bunk on the side of a road within the Corporation limits. This action was challenged. It was held that the land in which the bunk was built was a public street and neither the Government nor the Corporation had any right to allow any construction or to use it in a fashion other than the public street.
37. In Corporation of Cochin v. N. Janardan, AIR 1983 Ker. 148, a construction was made on footpath. It was held that the Municipal authorities could demolish the construction since it was constructed on property which vested in the Corporation. In this case, the permission was granted to construct a milk booth over a gutter. The booth was however constructed over the gutter and the footpath. It was held that the construction on the footpath could be demolished.
38. In Government of Tamil Nadu v. Chingleput Drawaiar Kazhagam, AIR 1986 Mad. 264, it was held that the Municipal Council cannot permit the user of the street for a purpose other than that indicated in the statute.
39. In Duli Chand v. Bhairon Dass, AIR 1973 Raj. 96, it was observed that the Municipal authorities can construct a soak pit below the surface of a public street and in doing so the rights of the public or of adjoining neighbour or owners are not affected. It was observed that in case of a public street the plaintiff, the adjoining owner have only the right to pass and to use the public street subject to all reasonable restrictions. After recognising this right, it was observed that the plaintiff has no right on the sub soil or the soil below the surface of the street. The existence of soak pit does not cause any obstruction in his right under the public street.
40. Now coming to the decisions given by the Supreme Court of India. It may be seen that the view is consistent that the streets and public streets should be kept free from encroachment. In Manglore Municipality v. Mahadeoji, AIR 1965 SC 1147, it was observed that :-
'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 used for a long time by the public, its topographical and permanent landmark and the manner and mode of its maintenance usually indicate the extent of the user.'
41. Again in State of U. P. v. Ata Mohd., AIR 1980 SC 1785, it was held that street would vest in the Corporation only qua the street and not as absolute property. What is vested in the Municipality is not general property or a species of property known to the common law but a special property created by a statute and vested in a corporate body for public purposes. Such vesting enables the Corporation to use the street as a street and not for any other purpose.
42. In a still later decision, the Supreme Court in M/s. Gobind Prasad v. New Delhi Municipality, (1994) 14 Legal Reports and Statutes (Pb) 296, the Court observed that even the verandahs in the Canaught Circle in New Delhi - which once belonged to the owners - would be covered by the term street and the power to declare such a street as public street was upheld.
43. Thus not only pavements, verandahs, drains, but all open spaces in front of shops which are accessible to public vest in the municipal council. This vesting is for the purposes of seeing that the streets are used as streets and are accessible to public without any obstruction. The term 'vest' was considered by the Supreme Court in Fruit and Vegetables Merchants' Union v. Delhi Improvement Trust, AIR 1957 SC 344. It was held that the word Vest' has not got a fixed connotation meaning in all cases that the property owned by the persons or the authority in whom it vests it may vest in title or it may vest in possession or it may vest in a limited sense as indicated in the context in which it may have been used in a particular piece of legislation. The Court took note of certain English decisions. Paras 16 and 18 deal with them and are being reproduced below :-
'(16) In the case of Coverdale v. Charlton, (1878) 4 QBD 104, the Court of Appeal on a consideration of the provisions of the Public Health Act, 1875 (38 and 39 Vict. C. 55) with particular reference to Section 149, has made the following observations at p. 116 :
'What then is the meaning of the word 'vest' in this section? The legislature might have used the expression 'transferred' or 'conveyed', but they have used the word 'vest'. The meaning I should like to put upon it is, that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, qua street.'(18) In the case of Finchley Electric Light Co. v. Finchley Urban District Council, (1903) 1 Ch. 437, adverting to the provisions of Section 149 of the Public Health Act, 1875 (supra) Romer, LJ. has made the following observations at pp. 443 and 444 :'Now that section has received by this time an authoritative interpretation by a long series of cases. It was not by that section intended to vest in the urban authority what I may call the full rights in fee over the street, as if that street was owned by an ordinary owner in fee having the fullest rights both as to the soil below and as to the air above. It is settled that the section in question was only intended to vest in the urban authority so much of the actual soil of the street as might be necessary for the control, protection, and maintenance of the street as a highway for public use. For that proposition it is sufficient to refer to what was said by Lord Halsbury L. C. and by Lord Herschell in Tunbridge Wells Corporation v. Baird, (1896) AC 434 .............. That section has nothing to do with title; it is not considering a question of title. No matter what the title is of the person who owns the street, the section is only considering how much of the street shall vest in the urban authority.....' '
44. The above decision given by the Supreme Court was followed by this Court in Municipal Committee, Raigarh v. Ram Ratan, 1958 MPLJ 585 = AIR 1958 M. P. 355. In para 25 of the judgment it was observed that so far as public Townhalls Gates, Public streets, springs, public sewers, lanes, public streets and roads within the municipality are concerned the vesting section must be so construed as to give to the municipality the lease concern with the property that is compatible with the proper exercise on the power in relation to these things given in the municipality under the Act. In Om Prakash v. M. C,. Bhatinda, 1986 (1) Legal Reports and Statutes (Pb) 415, it was held that the provisions dealing with the vesting of streets only enable the Municipal authorities to take responsibility on itself to improve the street and the transfer of the land to the committee is for this limited purpose only.
45. In view of the aforementioned decisions the conclusion is inexplicable that the place which is accessible to the public and which abuts on the public street would also be a part of the street and these are to be kept clear.
46. The plaintiff having built a cabin on the public street, has to remove it. There is no doubt that this cabin would fall within the definition of term building and having been placed in contravention of the provisions of the Municipal Act, it has to be removed.
47. Building has been the subject matter of several decisions. Some decisions which deal with the term 'building' may be noticed.
48. In Moir v. Williams, (1892) 1 QB 264 at page 270 Lord Esher MR observed as follows :-
'If the words 'new building' are taken by themselves without reference to the other part of the Act they would be taken to apply to what is ordinarily called a building. Such an ordinary building is an enclosure of brick or stone work covered in by a roof.'
49. In Wa's Executors v. Commissioner of Indian Revenue, (1914) 3 KB 196, an embankment was held not to be a building or structure within the meaning of the Act of Parliament which was there in dispute. No doubt in this case Swinfen Eady LJ did say that the construction placed upon the meaning of the word 'building' in Moir v. Williams, (1892) 1 QB 264 was too narrow, but the learned Lord Justice was there referring to the observations of Collian MR in Long Eaton Recreation Grounds Co. v. Midland Ry. Co., (1882) 2 KB 574 at p. 581 and he observed :-
'Cottages built of wood certainly be included as building so also would the barn and stables of a farm though built of wood and thatched with straw. But wherever the line defining building is to draw I am of the opinion that embankment must be outside it.'
50. Coming now to cases in India. In Baladin v. Lakhan Singh, AIR 1927 All. 214, Iqubal Ahmed J. accepted the observation of Lord Esher MR in Moir v. Williams, (1892) 1 QB 264.
51. In Thakurlal v. Secretary, Municipal Committee, Khandwa, 64 IC 274 (Nag), the Nagpur Judicial Commissioner defined the word building as meaning structure with a roof. The learned Judicial Commissioner followed the definition as given by Lord Esher MR in the case of Moir v. Williams, (1892) 1 QB 264.
52. Any super structure which is intended for the use and occupation for purposes of trade, manufacture or of commerce or some other structure constituting a fabric or edifice will be deemed to be a building. See Chandramani v. Collector, AIR 1957 AP 867.
53. A railway carriage or a brake van is not a building. 10 PR 187.
An unroofed vehra with a small gate locked adjoining the occupied room is a building, Ismail v. Queen, AIR 1926 Lah. 28.
Walls of a room erected on roof of a single storeyed building upto lintel is a building. 1965 BLR 520.
54. A wall is included in the term building because the definition does not say that the wall should necessarily be detached from the building or should stand by itself. A wall will therefore, fall within the definition of building whether it forms part of the house or not. See Municipal Committee v. Sham Dei, AIR 1947 Lah. 256.
55. A wooden shed of the dimension 10' x 18' and which is roofed by tin sheets would fall within the definition of building, though it is mounted on wheels and it is permitted to move from one part of the site on which it stood to another. Such a place when used for sleeping purposes at night would fall within the term building. See Nandu Mal v. M.C., AIR 1925 Lah. 252.
56. The last submission made by the counsel for the plaintiff is that his client cannot be dispossessed until and unless an alternate accommodation is made available to him. He has placed reliance on a decision of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 106, and has contended that in the event of removal of the cabin the rights guaranteed under Article 21 of the Constitution of India would be violated. It may be seen that this decision was noticed by the Supreme Court in a later decision reported as Sodan Singh v. New Delhi Municipality, (1990) 8 Legal Reports and Statutes (Pb) 82.
57. The Supreme Court in the above case clearly laid down certain guidelines in the matter of street hawking. Mr. Justice L. M. Sharma (as His Lordship then was) observed :-
'the right to carry on trade or business mentioned in Article 19(1)(g) of the Constitution on the street pavements if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or repassing and for no other use. Proper regulation is however a necessary condition as otherwise the very object of laying out roads to facilitate traffic may be defeated.'
Mr. Justice Kuldip Singh agreeing with Mr. Justice L. M. Sharma took note of the street trading licences as found in England and directed the Municipal authorities to frame a scheme for regulating street trading.
58. The above decision strictly speaking would not apply to the facts of this case because it deals with the right of hawkers to carry on street trading without raising a temporary or semi-permanent structure. The wooden cabin on a public street cannot be permitted. An encroachment has been made on public street, the Municipal Council would be well within its rights to get the same removed.
59. The Municipal authorities are under an obligation to keep the streets and public streets accessible to public free from encroachment. Even earlier in Pyare Lal v. New Delhi Municipal Committee, AIR 1968 SC 133, the Supreme Court observed that the Municipal authorities have a right to stop sale of goods (cooked food) and plea of discrimination is not available if alternate accommodation is not made available. As a matter of fact in the case of K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Municipal Council permitted a cinema building to be erected in a residential locality. The Supreme Court recognised the rights of the citizens to approach the Court and to seek a writ of mandamus to see that the illegal construction is removed. The Court observed as under :-
'If under pretence of any authority which the law gives to the Municipality it goes beyond the line of its authority and infringes or violates the rights of others, it becomes like other individuals amenable to the jurisdiction of the Court.'
In the above case directions were given by the Court to demolish an illegal construction of a cinema building which was built in residential area. It was observed as under at page 2181 :
'If sanction is given to build by contravening a bye-law the jurisdiction of the Court will be invoked on the ground that the approval by any authority of building plans which contravenes the bye-laws made by that authority is illegal and inoperative, see Yabbicov v. King, (1899) 1 QB 444.'
It was further observed :-
'30............. An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. Lord Selborne in Maddison v. Alderson, (1883) 8 App Cas 467 said that Courts of equity would not permit the statute to be made an instrument of fraud.'
60. In this case the Municipal Council has of its own taken steps to remove the illegal encroachment on a public street as such no interference is called for. This appeal is without merit and is dismissed as such with no order as to costs. The Municipal Council would be within its right to remove the encroachment by following due procedure prescribed under the Act.