Decided on October 10,1950

C.H. ACHAYA Respondents


Jagannadha Das, J. - (1.) The defendants are the appellants in these two second appeals. They arise out of two suits O.S. 11/46 and O.S. 82/46 on the file of the District Munsif of Puri tried analogously (simultaneously?). The plaintiff and the defendants are the same in both the suits and they relate substantially to the same matter. There was a common judgment in both the suits and the appeals therefrom to the lover appellate Court were also heard analogously (simultaneously?) and dealt with by a common judgment. The suits had been decreed by the trial Court and the said decrees were confirmed in appeal. Defendant 1 in both the suits who is appellant in these appeals is the Chairman, District Board of Puri, Defendants 2 and 3 in both the suits who are appellants 2 and 3 before as are lessees from the District Board of a portion of plot No. 736 in Mouza Kudiarai. Defendant 2 is a minor represented by his mother and guardian, defendant 3. That plot is a road side land abutting on the District Board road running from Pipli to Khuria. The plantiff (respondent In both the appeals) is the present owner as has been found by the Courts below-of plot no. 787. He has started constructing a house on his plot which he was entitled to do. His case is that defendants 2 and 3 have some time ago pat up another structure on the portion of plot NO. 736 leased to them and that this interferes with his right of access from alt points of his plot to all points of the Khurda Pipli road through every part of the road side plot No. 737. He accordingly brought the suits for a declaration, (1) that the action of defendant 1 in leasing out the road-side land to defendants 2 and 3 is without jurisdiction and ultra vires (2) that the lease is void; (3) that the plaintiff has got right of access and view to the District Board road to every part of the road side which abuts his land; (4) for the requisite mandatory and permanent injunctions against defendants 2 and 3 in respect of the structure already put up and contemplated to be put. up. It may be mentioned that O.S. 11/46 related only to the fresh structure intended to be put up by defendants 2 and 3 and that O.S. 32/46, which was filed later, relates to the pre-existing structure already put up by defendants 2 and 3. Both the suits, however, raise the same questions. The defence of the defendants in both the suits are, (l) that the plaintiff has no such right as claimed of access to the toad from all points of the road side land; (2) that the District Board had the right to lease out the road-side land and the said leasing is not ultra vires; and (3) that as a fact the plaintiff and his predecessors were all along having access to the road from plot No. 787 only through a portion of plot No. 736 and that in any case the right of access has not been substantially interfered with. The Courts below have concurrently held that the plaintiff is entitled to the same right of access in respect of road-side lands as to the road and to right of access to the road through road-side land and that the leasing by defendant l of plot No. 736 to defendants 2 and 3 is invalid and than certain by-laws framed by the District Board with the sanction of the Government authorising such leases are ultra vires, inasmuch as the leasing and the by-laws are in derogation to the right of access of the abutting owners. Hence these two second appeals by defendant 3 which have been heard analogously (simultaneously.?)
(2.) The main contention of learned counsel for the appellants is that road-side lands are not part of the road and that the plaintiff whose plot does not abut' the road has not got any such private right of access either to the road or to the road-side land which he claims and that in any case the leasing of the roadside land was authorised by by-laws which have a statutory force and that the view taken by the Courts below that the said by-laws are ultra vires and that the leasing by the District Board in pursuance thereof is invalid is erroneous.
(3.) The questions, therefore, that arise in the case are (l) whether road-side lands form part of the road for purposes of the Local Self Government Act and are subject to the same tights and incidents as regards members of public and abutting private owners and if so, whether the roadside lands can be put to any use in derogation of such rights. It may be mentioned at the outset that there is no allegation of plaintiff in this case that the particular road-side land in question is owned and possessed by the District Board as ordinary private property distinct from the road. For instance, if the road-side land in question had been purchased by the District Board from private owners, or acquired for the District Board at its cost by the Government or obtained in some other way as ordinary private property, which it might well do Under Section 29, Bihar and Orissa Local Self-Government Act, the considerations and legal implications applicable to roads as such may not be applicable to the road. side. But the plaint and the written statement do not give any indication that the road-side land in the present case is owned as such private land or indeed in a manner different from the road. D. W. I. says: "The road and the roadside land belong to the District Board" giving no indication that they are owned in different ways and implying in fact the contrary. The word "road" is not denned in the Act, nor is there any reference therein to "road side lands". In order, therefore, to determine whether there is any difference between "road" and "road-side land" as regards the rights and incidents to which they are subject to, it is neceassary to consider what the nature of the property of the District Board in a road is and whether a road-side land is held in any different manner.;

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