Authored By : Mookerjee, A.H. Cuming

Mookerjee and A.H. Cuming, JJ.

1. This is an appeal by the Plaintiffs in a suit fordeclaration of title to land and for a perpetual injunction to restrain theDefendant Corporation from interference with them in the exercise of their rightsas proprietors. The case for the Plaintiffs is that the disputed landappertains to their premises 13-3, Circular Garden Reach Road, that theirpredecessor constructed a drain thereon for the outlet of water from thepremises and that on the 29th May 1906, two of the officers of the Corporationhad caused the land to be included within the boundaries of the adjoiningstreet. The Plaintiffs assert that such unlawful action on the part of theCorporation had rendered it necessary for them to obtain a declaration of theirtitle and an injunction so as to secure them from future interference. TheDefendant Corporation resisted the claim on the ground that the land was notthe property of the Plaintiffs, that the drain was a part and parcel of thepublic street and that it was in any event a public street within the meaningof Section 336 of Beng. Act III of 1899 and had become vested in theCorporation and was their property. The Court of first instance found in favourof the Plaintiffs on the question of title and granted them a perpetualinjunction. On appeal, the Subordinate Judge reversed this decision anddismissed the suit. On second appeal to this Court, the case was remanded forre-consideration with special reference to an amalnama produced by the Plaintiffsin proof of their alleged title to the land in controversy. The SubordinateJudge, after remand, has declared the title of the Plaintiffs to the site ofthe drain, but has refused the injunction on the ground that as the drain hadvested in the Corporation, the right of the Plaintiffs had been extinguished.The decree as drawn up is possibly not in exact conformity with the judgment.The Plaintiffs have now appealed to this Court and have pressed their claim foran injunction there is no cross-appeal by the Corporation upon the question oftitle. Consequently, we must proceed upon the assumption that the land in suitcovered by the drain appertains to the premises owned by the Plaintiffs.

2. Section 286 of the Calcutta Municipal Act. 1899 providesthat all public drains and all drains in, alongside or under any public street,whether made at the charge of municipal funds or otherwise and all works,materials and things appertaining thereto, shall vest in the Corporation. Thedrain which passes over the land in suit is not a public drain within themeaning of this section, but is a drain alongside a public street. Section 3,Clause (16), shows that the term drain includes a house drain consequently thefact that the drain is a house drain, made by the owner of the adjoiningpremises for the outlet of water therefrom, does not exclude it from theoperation of Section 286. What then is the precise effect when, under Section286, a drain vests in the Corporation; does the Corporation thereby become theproprietor of the soil The question is by no means of first impression. It hasbeen ruled in a long series of decisions that when a road or a drain vests inthe Municipality, the effect is not to confer the full proprietary right in thesoil itself covered by the road or the drain on the Commissioners : Chairman ofthe Naihati Municipality v. Kishori Lal I.L.R. (1886) Cal. 171, Modhu Sudan v.Promoda Nath I.L.R. (1893) Cal. 732, Chairman of the Howrah Municipality v.Khetra Krishna I.L.R. (1906) Cal. 1290, 1303, Nihal Chand v. Azmat Ali I.L.R.(1885) All. 362, Nagar v. Municipality of Dhandhuka I.L.R. (1887) Bom. 490,though possibly a different view was taken in Municipal Commissioners of Madrasv. Sarangapani I.L.R. (1895) Mad. 154. The principle applicable to cases ofthis character was elaborately examined by Sir V. Bhashyam Ayyangar J. inSundaram v. Municipal Council of Madura I.L.R. (1901) Mad. 635 which wasfollowed in Madathapu v. Secretary of State I.L.R. (1903) Mad. 386. It waspointed out that the legal effect of the statutory vesting of a street in aMunicipality is not to transfer to the Municipality the ownership in the siteor soil over which the street exists; the street, qua street, vests in theMunicipality, that is, the surface and so much of the air space above and somuch of the soil below the surface as is reasonably necessary to enable theMunicipality adequately to maintain and manage the street as a street, wasvested in and belonged to the Municipality. This conclusion is in conformitywith what has been recognised as settled law in England and America. InEngland, the effect of a statutory provision whereby a road or drain is made tovest in a County Council or County Borough, is not to transfer the free-hold tothe authority concerned, but merely to vest in them the property on the surfaceof the street, road or drain and in so much of the actual soil below and airabove as may reasonably be required for its control, protection and maintenanceas a highway or drain for the use of the public; to this extent only, the owneris divested of his property. The Courts will not presume that the intention ofthe Legislature was to confiscate private property and vest it in a publiccorporation without compensation granted to the proprietor. The reasonableinference, on the other hand, is that the right of the owner was intended to beabridged, only to the extent necessary for the discharge of the statutoryduties imposed on the corporation for the benefit of the public. Reference mayusefully be made to the decision of the House of Lords in Tunbridge Corporationv. Baird (1896) A.C. 434 and of the Judicial Committee in Municipal Council ofSydney v. Young (1898) A.C. 457. In the former case, Lord Halsbury held thatthe street, qua-street and so much of the actual soil of the street as might benecessary for the purpose of preserving, maintaining and using it as a street,had vested in the Corporation. Lord Herschell added that the vesting of thestreet vested in the urban authority such property and such property only aswas necessary for the control, protection and maintenance of the street as ahighway for public use. In the latter case, Lord Morris observed that thevesting of a street vested no property in the Municipality, beyond the surfaceof the street and such portion as might be absolutely necessarily incidental tothe repairing and proper management of the street; it did not vest the soil orthe land in them as owners, that is, the street vested in them qua-street andnot as general property. The doctrine thus formulated has been recognised andapplied in a variety of cases : Bagshaw v. Buxton Local Board (1875) 1 Ch. D.220, Rolls v. Saint George Vestry (1880) 14 Ch. D. 785, Wandsworth Board v.London and S.W. Railway Co. (1862) 31 L.J. Ch. 854, Finchley Electric Light Co.v. Finchley Urban Council (1903) 1 Ch. 437, Coverdale v. Charlton (1878) 4Q.B.D. 104, Poplar Corporation v. Millwall Dock Co. (1964) 68 J.P. 339, HydeCorporation v. Oldham (1900) 64 J.P. 596, Foley v. Dudley Corporation (1910) 1K.B. 317, London and N.W. Railway Co. v. Westminster Corporation (1905) A.C.426, Lodge H.C. Co. v. Wednesbury Corporation (1908) A.C. 323, Wandsworth v.United Telephone Co. (1884) 13 Q.B.D. 904, Battersea Vestry v. County of London(1899) 1 Ch. 474, Mayor of Birkenhead v. L.N.W. Railway Co. (1885) 15 Q.B.D.572, Lord Provost of Glasgow v. Glasgow S.W. Railway Co. (1895) A.C. 376. Nouseful purpose would be served by a minute analysis of the varyingcircumstances of these decisions; but the general principle deducible may besummarised to be that the property of the local authority concerned does notextend further than is necessary for the maintenance and use of the highway asa highway, that, subject to this qualification, the original owners rights andproperty remain and that if the highway ceases to be a highway, the ownerbecomes entitled to full and unabridged rights of ownership in the property. Asimilar view has been adopted in the Courts of the United States, where thequestion of the precise interest taken by the Municipal Corporation hassometimes arisen in relation to title to underground minerals or alluvialaccretions. The doctrine has been adopted that the property or estate vested inthe Municipality is such only as is necessary for street purposes and is intrust for public uses and not for purposes of profit and emolument : Dillon onMunicipal Corporations (1911), 3, 1691, Banks v. Ogden (1867) 2 Wallace 57,Thomas v. Hunt (1896) 134 Mo. 392; 32 L.R.A. 857, Donovan v. Allert (1902) 11N.D. 289; 58 L.R.A. 775, City of Leadville v. Bohu Mining Co. (1906) 37 Colo.248; 8 L.R.A.N.S. 422. In some of these cases, reference was made with approvalto the decisions in Tunbridge Wells v, Baird (1896) A.C. 434, Coverdale v.Charleton (1878) 4 Q.B.D. 104, Wednesbury v. Lodge Holes Colliery Co. (1907) 1K.B. 78; (1908) A.C. 328 in support of the view that the intent and purpose ofa Municipal Statute is to clothe the city, in its governmental capacity, withthe entire title to the streets, as such, for public use and not for the profitor emolument of the city, in other words, the interest or estate thus conferredupon the Corporation is limited and not absolute, limited by the purposes whichthe Legislature had in view when the Corporation was created.

3. In the light of these principles, it is obvious thatthere was no foundation for the claim of the Corporation to include thedisputed land within the boundaries of municipal land. The Plaintiffs areaccordingly entitled not merely to a declaration of their title, which has beenunsuccessfully contested by the Corporation, but also to a perpetualinjunction. The injunction will restrain the Corporation, its officers andservants, from interfering with the exercise by the Plaintiffs of their rightof ownership in the disputed land, except in so far as such interference mayreasonably be required for the control, protection and maintenance of the drainthereon for the use of the public.

4. The result is that this appeal is allowed and the decreeof the Subordinate Judge set aside in so far as it dismisses the claim for aperpetual injunction. In supersession of the decree of the Subordinate Judge, adecree will be made to the following effect : The title of the Plaintiffs isdeclared to the disputed land; it is further declared that the drain thereonhas vested in the Municipality as a drain. The Defendant Corporation, itsofficers and servants, are hereby perpetually restrained from interfering withthe Plaintiffs in the exercise of their rights as proprietors of the disputedland, except where such interference may reasonably be required for thecontrol, protection and maintenance of the drain for the use of thepublic."

5. As the Plaintiffs have substantial succeeded, they areentitled to their costs in all the Courts.

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Gunendra Mohan Ghoshvs. Corporation of Calcutta(11.07.1916 - CALHC)