ARJUN Vs. MAN SINGH OF SEWAI

JUDGEMENT

(1.) This is a defendants appeal in a suit in which the plaintiff sought for the demolition of a certain construction, injunction and damages. The plaintiff, His Highness the Maharaja of Jaipur, is the proprietor of certain lands known as Katra Jai Singh Sewai within the Municipal boundaries of Allahabad. Through this plot of land there runs a public street. Defendants 2 and 8 are owners or occupiers of shops and houses which abut on the said street. The street is a public street within the meaning of the Municipalities Act, 1916, and under Section 116 thereof the said public street vests in and belongs to the Municipal Board of Allahabad. Projecting out from the buildings which they occupy, and over a part of the said public street, defendants 2 and 3 with the permission of the Municipal Board, defendant 1, erected a portico to afford shelter to their shops and to the members of the public visiting these shops for the purpose of purchasing goods sold therein.

(2.) It is not disputed that the plaintiff was the owner of the land upon which the public street was constructed. As owner thereof the plaintiff claims proprietary rights a caelo usque ad centrum, that is, he claims as owner of the land everything pertinent or belonging thereto whether above or below the ground, and to prevent any other person encroaching upon the said land above or below the surface. It is not certain when and how the Municipal Board took over the said public street, but that it does now vest in and belong to the Board is not disputed. Defendants 2 and 3 maintained that they erected the construction which the plaintiff now asks to be demolished after having obtained the sanction of the Municipal Board. Under Section 209, Municipalities Act, the Board is empowered to give sanction for the erection of projections over streets and drains. It appears that the portico built by defendants 2 and 3 projected over a drain. The sanction to erect the portico therefore was given under Section 209(1)(b).

(3.) Learned Counsel for the respondent maintains that Section 209, refers to "streets" and not to "public streets" and that therefore the Municipal Board was not empowered to grant permission for the erection of the structure about which the plaintiff complains. He argued that in the Municipalities Act, a clear distinction is drawn between a street" and a public street" and in support of this argument ho referred to Section 2, the definition section. There can be no doubt however that the term "street" as used in the Municipalities Act includes a "public street." It is the wider term and the term "public street" is used in the Act only when it is intended to distinguish a street declared to be a public street by the Board under the provisions of Section 221 of the Act, from other roads and streets. Where the term "street" is used in the Act, it clearly includes a public street. In any event, in our opinion, the Municipal Board was empowered to grant permission for the erection of the portico under Section 180 of the Act. It was further maintained however for the respondent that the Municipality's permission to erect the portico could not in law entitle the defendants to disregard the rights of the plaintiff as proprietor of the land on which the street, was constructed. Even though counsel argued, as representing the public the Municipality had certain rights in connexion with the construction and control of the public street, the plaintiff's rights to everything below the street and to the air space above the street were left unimpaired and he contended that the erection of the portico constituted an in fringement of his right to the air space above the public street. The learned Munsif in the Court of first instance dismissed the suit on various grounds; the learned Subordinate Judge in the lower appellate Court however reversed the decision of the learned Munsif and decreed the plaintiff's claim for injunction and demolition. He dismissed however the plaintiff's claim for damages.