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Municipal Board v. Khalil-Ul-Rahman

Allahabad High Court

Feb 25, 1929

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff-respondent brought a suit seeking an injunction to restrain the defendant-appellant, the Municipal Board of Pilibhit, from allowing traders (hawkers) to use the margin/side of a public road for vending merchandise. The plaintiff owns a shop and an open space immediately in front of that shop which borders the public road; the presence of hawkers on the road margin allegedly prevented the public from having free access from the road to the plaintiff's shop booths on that strip of land.

The Municipal Board had, by bye-law dated 27 June 1917, signified its intention to let out spaces at the sides of roads to hawkers and had allowed hawkers to stand or sit and sell goods on the relevant road side.

At trial the Court found the plaintiff failed to prove 20 years' enjoyment of free access from the road to the plaintiff's land and also held the suit barred by limitation (not brought within two years of the Board beginning to let out the side of the road). On first appeal the Subordinate Judge reversed on both points, finding evidence of more than 20 years' use by the plaintiff and no evidence that the side of the road had been used by licensees or lessees of the Board more than two years before the suit. The Municipal Board then appealed to the court giving rise to this second appeal.

Legal Issues Presented

Whether an easement (right of access) in favour of the plaintiff could be established by 20 years' user under Section 15 of the Easements Act, given that the land belonged to the Municipal Board at the date of suit.
Whether, on limitation grounds, the plaintiff's claim was barred because the Board had allegedly obstructed the plaintiff's enjoyment for a period extending over one year such that Explanation 2 to Section 15 would prevent proof of 20 years' enjoyment without interruption.
Whether the Municipal Board's bye-law (of 27 June 1917) or Government sanction of that bye-law could vest rights in the Board or otherwise defeat private easements or rights of access (raised as a potential contention, though not argued in detail).

Arguments of the Parties

Plaintiff's Arguments

The plaintiff asserted ownership of a shop and the open space abutting the public road and that hawkers allowed by the Board to use the road side prevented the public from freely accessing the plaintiff's shop booths on that strip.
Implicitly, the plaintiff relied on long enjoyment (over 20 years) to establish a private easement/right of access enabling injunctive relief against the Board's letting of the road side to hawkers.

Defendant (Municipal Board)'s Arguments

The memorandum of appeal contained two pleaded points: (a) since the side-of-road land belongs to the Board, it can use it as it wishes; and (b) the plaintiff has no right to interfere with the use of the defendant's land.
When argued, the Board advanced contentions that the lower appellate Court's findings on the easement and on limitation were wrong.
Counsel for the Board argued that if the land were government land an easement could only be established by 60 years' enjoyment (invoking the last paragraph of Section 15 of the Easements Act). Relatedly, it was argued that because the bye-law dated 27 June 1917 signified the Board's intention to let out sites in streets, the side of the road became the Board's property only from that date.
On limitation, it was argued that at the date the suit was brought the plaintiff had been obstructed for over one year, such that Explanation 2 to Section 15 would prevent proof of uninterrupted enjoyment for 20 years.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded through a sequence of legal analyses, addressing ownership, the law applicable to establishing easements, and the limitation/contention based on Explanation 2 to Section 15:

Ownership and applicability of Section 15: The court rejected the contention that the land was "Government land" for the purpose of invoking the 60-year requirement in the last paragraph of Section 15 of the Easements Act. The court observed that the road belonged to the Municipal Board at the date of suit by virtue of Section 116(g) of the Municipalities Act (U.P. Act 2 of 1916) and the definition of "street" in Section 223 (which includes land on either side of a road up to the boundary of abutting property). The court therefore treated the land as belonging to the Board rather than the Crown at the material date.
Temporal reference in Section 15: The court emphasized that the requirement in the last paragraph of Section 15 (the 60-year rule where land belongs to Government) refers to the date when the easement is claimed; therefore antecedent periods of government ownership could not be relied on to change the applicable period for establishing an easement without evidence as to dates of vesting. No evidence as to earlier vesting dates was before the court.
Effect of the bye-law of 27 June 1917: The court explained that the mere passing and sanctioning of a bye-law did not operate to vest the road in the Board for the first time; rather, the road had been vested in the Board under Section 116 of the Municipalities Act of 1916 or an earlier municipal act containing a similar provision. From the date the road became vested in the Board it was the Board's property, but the Board's power of dealing with the road was restricted by its nature as a public street; it could not, by mere ownership, use the land for non-road purposes. The bye-law, with Government sanction, extended or altered the Board's power of user by permitting letting to hawkers.
Conclusion on easement period: Because the land was Municipal Board land when the easement was claimed, and not Government land subject to the special 60-year paragraph, the statutory position was that an easement could be established by 20 years' user (i.e., the ordinary 20-year period in Section 15 applied).
Limitation / Explanation 2 to Section 15: The Board's contention that the plaintiff had been obstructed for over one year so that Explanation 2 would preclude proof of 20 years' uninterrupted enjoyment was rejected. The court found no evidence or allegation that the plaintiff had acquiesced in the Board's letting out of the road side to hawkers; in the absence of such acquiescence, Explanation 2 did not apply.
Pleading/grounds of appeal: The court noted that the grounds of appeal as pleaded in the memorandum did not mirror the specific contentions later argued (for example, asserting a broad owner-right to deal with land irrespective of easements). While the court observed that some arguments (such as the contention that Government sanction of the bye-law would override private rights) might have been intended when drafting the memorandum, these contentions were not specifically pleaded or argued and the court declined to consider them further.

Holding and Implications

DISPOSED OF: The appeal is dismissed.

Direct effect on the parties:

The dismissal upholds the conclusions reached by the lower appellate court that the plaintiff had established the relevant rights (i.e., evidence of long enjoyment sufficient to found an easement under the 20-year rule) and that limitation did not bar the suit.
The Municipal Board's alternative contentions—based on a supposed requirement of 60 years' enjoyment because of prior government ownership, or on Explanation 2 to Section 15—were not accepted by the court given the facts and evidence before it.

Broader legal implications: The opinion does not purport to create new precedent beyond applying statutory provisions (Easements Act, Municipalities Act) to the facts; the court explicitly declined to consider certain broader contentions that were not specifically pleaded or argued. No case law precedents were cited in the text of this opinion.

Show all summary ...

1. This second appeal arises out of a suit brought by the plaintiff-respondent against the defendant-appellant for an injunction, restraining the defendant from allowing the margin of a public road to be used by traders for the vend of merchandise. The plaintiff owns a shop and also an open space in front of that shop. This open space borders a public road. The defendant is the Municipal Board of Pilibhit. By a bye-law, passed on 27th June 1917, the Municipal Board signified its intention to let out the spaces at the sides of roads to hawkers, and it has allowed hawkers to stand or sit and sell their goods on the aide of the road in question. This prevents the public having free access to the shop booths allowed by the plaintiff on his vacant strip of land, and hence this suit.

2. The trial Court found that the plaintiff had failed to prove that the public had enjoyed for 20 years free access from the road to this piece of land.

3. It also found that the suit was barred by limitation as not brought within two years when the Municipal Board began to let out the side of the road to hawkers.

4. In first appeal the Subordinate Judge found that the plaintiff's witnesses did prove use of the land by the plaintiff for stalls for over 20 years. It also found that there was no evidence to show that the side of the road had been used by licensees or lessees of the Board at a date more than two years before the filing of the suit.

5. The memorandum of appeal by the Municipal Board contains two clauses. The first plea is that as the land at the side of the road belongs to the Board, it can use it in any way it likes, and the second plea is that the plaintiff has no right to interfere with the use of the defendant's land. When, however, the case came to be argued, the point taken up was that the findings of the lower appellate Court both as to the establishment of a right of casement and as to the limitation were wrong. By no stretch of construction can these pleas be found to be included in the two pleas taken in the memorandum of appeal. Those two pleas' entirely ignore the findings of the lower appellate Court as to an easement or as to limitation. They assert the right of the owner of land to deal with his land as he wishes, which right was never denied by the lower appellate Court. The pleas in the memorandum of appeal appear to mean that no owner's right can be destroyed by any easement, which I do not understand to be maintained by the appellant's counsel.

6. At the same time, as I hold that the pleas now argued are equally untenable, it appears more satisfactory to dismiss this appeal on all the merits rather than on the remark that the pleas taken in the memorandum of appeal are not sustainable.

7. As regards the question of easement, it is argued that where land belongs to Government, an easement can only be established by 60 years enjoyment of the right claimed: see the last paragraph of Section 15 of the Easements Act 5 of 1882. But this land was not Government land. It was land belonging to the Municipal Board. Section 116(g) of the Municipalities Act (U.P Act 2 of 1916) vests in the Board all public streets and the expression “street” is defined in S. 223 to include the land on either side of a road up to the defined boundary of any abutting property. So at the date of suit the land belonged to the Board. The provision in S. 15 requiring 60 years use to establish an easement refers to the date when the easement is claimed. It would not therefore be open to the appellant to plead that at some period antecedent to the bringing of the suit the road belonged to Government. Even if this might be argued, it has not been argued, and there is no evidence to show the date when under any Municipal Act for the time being in force streets vested in the Board, or when this particular street came into existence. What is argued by counsel for the appellant is that it was only on 27th June 1917 that a bye-law was made by the Board and approved by Government declaring the Board's intention to let out the sites in the streets. He urges that it was only from this date that the side of the road became the property of the Board. Even if this were so, it does not appear to me that the last paragraph in Section 15 of the Easements Act would assist the appellant, but the view that the bye-law vested this road in this Municipal Board is not correct. The road was vested in the Board by Section 116 of the Municipalities Act of 1916, or by any previous Municipal Act, containing a provision similar to S. 116 of the present Act. Prom the date that the road became vested in the Board the Board was owner, but its power of dealing with the road was restricted. It could not merely by right of ownership be entitled to use the land for purposes other than that of a road. It was by the bye-law that its power of user became extended or rather by the fact of Government sanctioning the bye-law. Consequently the road was properly vested in the Board, and under S. 15 an easement could be established by 20 years user.

8. As to limitation the plea now argued is that at the date when the suit was brought the plaintiff had been obstructed in his enjoyment of the right of access from the road for a period extending over one year. It was, therefore, argued that under Expl. 2 the plaintiff could not prove 20 years enjoyment without interruption. This plea ignores the fact that there is no evidence or even allegation that the plaintiff acquiesced in the Board's action in letting out the side of road. Expln. 2, S. 15, will not therefore apply.

9. It appears to me possible to have raised the contention, and indeed, when the memorandum of appeal was drafted, this may have been what it was intended to mean that the power acquired by the Board by reason of the sanction by Government of the bye-law for letting out this street for the use of hawkers was a power that would override any private right of property or of easement. It will be observed that in the bye-laws a reservation is made in favour of certain private owners probably because those private owners had long exercised a certain right. If this contention had been raised it would have been argued. But as it was not specifically raised in the memorandum of appeal and has not been argued at all, I do not think it proper now to consider it. For the above reasons, this appeal is dismissed.

S.N/R.K

10. Appeal dismissed.