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Sree Rajah Uppalapat... v. The Taluq Board, Raj...
Factual and Procedural Background
The plaintiff was a Zamindar who owned the villages of Bellampudi and Pedapudi in the East Godavari District. Certain "puntas" (village tracts) in those villages contained trees. In 1923 the Taluk Board of Rajahmundry sold certain trees growing on those puntas and also sold the usufruct of certain other trees for Rs. 146-14-0. In 1926 the Zamindar, claiming title to the trees, brought this suit to recover that sum and for a declaration and a perpetual injunction. Both courts below dismissed his suit.
It is common ground on appeal that the puntas are "public roads" within the meaning of S. 60 of the Local Boards Act and that those puntas vested in the Taluk Board under that section. The central dispute for the court was whether the vesting under S. 60 conferred ownership of the trees growing on those public roads on the Taluk Board.
Legal Issues Presented
- Whether the vesting of the "puntas" as public roads in the Taluk Board under S. 60 of the Local Boards Act conferred ownership of the trees growing on those roads on the Taluk Board.
- How S. 163-A(2) of the Local Boards Act (an additional section enacted in 1930) bears upon the ownership question, given its prohibition on damaging "any tree vesting in or belonging to a Local Board" without permission.
- Whether the Zamindar's claimed right in the trees is barred by limitation (this was the subject-matter of the third issue and was expressly left unconsidered by the lower appellate court).
Arguments of the Parties
Appellant's (Zamindar's) Arguments
- The Zamindar claimed title to the trees growing on the puntas and sought recovery of the sum realised by the Taluk Board's sale, together with a declaration and perpetual injunction. (The opinion records that he originally contested the vesting of the puntas as public roads but on appeal this point was common ground.)
Respondent's (Taluk Board's) Arguments
- The Taluk Board relied on the legal effect of the vesting of the puntas in the Board under S. 60 and argued that this vesting carried with it a proprietary right extending at least to the surface of the road and therefore to everything growing upon it, including the trees.
- The respondent invoked English authority, principally Coverdale v. Charlton, to show a local authority's proprietary interest could include rights such as lease of the right of pasturage (grass) on a vested lane, and argued there is no logical distinction between grass and spontaneously grown trees.
- The respondent also relied on Stillwell v. New Windsor Corporation to suggest that trees forming part of a highway may be subject to the authority's control or removal and made incidental references to the proposition that property in trees might vest in the local authority.
- The existence of S. 163-A(2), which forbids damaging "any tree vesting in or belonging to a Local Board" without permission, was cited as supporting the Board's proprietary claim over trees on vested roads.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Coverdale v. Charlton | Held that a local authority had a proprietary interest in a lane under S.149 of the Public Health Act sufficient to lease grazing rights for grass growing in the lane. | The respondent relied on this case to argue by analogy that trees growing spontaneously on a vested road should be treated like grass and thus within the Board's proprietary rights. The court acknowledged the decision has not been dissented from on pasturage but did not accept it as decisive for full ownership of trees. |
| The Board of Works for the Wandsworth District v. The United Telephone Co. Ltd. | Held that vesting of a street in a local authority did not give it the right to prevent stretching a telephone wire across the street at a considerable height. | Used to illustrate limits on the proprietary rights conferred by vesting; cited as authority that vesting does not grant unrestricted rights over all uses of the space. |
| The Mayor of Tunbridge Wells v. Baird | Held that an urban authority in which a street vested under S.149 was not thereby empowered to construct an underground lavatory beneath the street; Lord Herschell stated vesting gives "such property and such property only as is necessary for the control, protection and maintenance of the street". | The court cited Lord Herschell's formulation as stating the true principle governing the extent of property vested in local authorities and adopted it as the correct guiding rule. |
| Municipal Council of Sydney v. Young (Privy Council) | Held that where part of a public street vested in the council was taken for a tramway, the council had no proprietary interest entitling it to compensation. | Relied upon to show that vesting does not create full proprietary rights and that claims to ownership beyond the needs of control and maintenance are not sustained. |
| Vestry of St. Mary Baiter sea v. County of London and Brush Provincial Electric Lighting Co. Ltd. | Held that although a company illegally laid electric mains under streets vested in the vestry, the vestry had no property in the soil at the depth where the mains were laid and therefore its rights were not permanently infringed. | Used to demonstrate that vesting is limited in depth and does not confer absolute ownership of soil at all levels beneath a street. |
| Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council | Stated that vesting of a street in a municipal council does not transfer full owner-like rights (Usque Ad Coelum). The municipal authority has exclusive rights to manage and control the surface and so much below and above as necessary for maintenance, and certain possessory rights. | The court accepted this view as correct and authoritative for applying the English authorities to Indian statutes; it was treated as the leading exposition of principle relevant to the case. |
| Basaweswaraswami v. The Bellary Municipal Council | Judicial comment expressing regret at introduction of English law distinctions but observing it was too late to depart from them. | Cited to show that Indian courts have accepted the Sundaram Ayyar distinctions and will not revisit them; supported the conclusion that full proprietary rights did not vest in the Taluk Board. |
| Stillwell v. New Windsor Corporation | Held that a person claiming ownership of trees on a public highway could not resist an order for their removal if they constituted a danger or obstruction; contained incidental remarks suggesting trees might be part of the highway. | The court found this case of limited assistance; the judgment did not commit to full ownership by the authority and the court declined to treat it as directly supporting the respondent's full-ownership contention. |
Court's Reasoning and Analysis
The court proceeded by first accepting the parties' common ground that the puntas were public roads vested in the Taluk Board under S. 60 of the Local Boards Act. The narrow legal question was whether that vesting carried with it full ownership of trees growing on the roads.
The court observed that S. 163-A(2) (added in 1930) prohibits damage to "any tree vesting in or belonging to a Local Board" without permission, but found that such a provision was not conclusive proof that vesting necessarily confers full proprietary ownership of every tree. The court therefore turned to general principles and the decided cases—principally English authorities—to determine the nature and extent of property rights conferred by statutory vesting of streets or roads.
After reviewing the English decisions (including Coverdale, Wandsworth Board of Works, Tunbridge Wells, Sydney, and Vestry of St. Mary Baiter sea) and the exposition of those authorities in Sundaram Ayyar, the court adopted the following principle (as expressed by Lord Herschell and accepted in Sundaram Ayyar): vesting of a street in a local/municipal authority vests "such property and such property only as is necessary for the control, protection and maintenance of the street as a highway for public use." This does not amount to transfer of the full rights of an owner up to Usque Ad Coelum nor an unlimited proprietary interest in the soil or everything growing on it.
The court considered the respondent's reliance on Coverdale (right to pasturage) and the argument that there is no logical distinction between grass and spontaneously grown trees. It acknowledged that Coverdale's rule on pasturage has not been dissented from, but concluded that the right to control and maintain the road does not equate to full ownership of all trees and their usufruct. The court accepted that the Taluk Board could cut down trees that obstructed or endangered use of the puntas, but rejected the proposition that preservation of the puntas required full ownership of all trees and their produce.
The court criticized the lower courts for equating the Board's right of control with plenary ownership and found that the right to the trees lay in the Zamindar. However, the court noted that the question whether the Zamindar's right was barred by limitation (the third issue) had not been decided by the lower appellate court; accordingly the matter could not be finally disposed of without addressing that issue.
Procedurally, the court directed that the suit be remanded to the lower appellate court for fresh disposal after a finding on the limitation issue. It also ordered the refund of the court-fee on the memorandum of second appeal and that the costs of the second appeal should abide the result.
Holding and Implications
Holding: The Taluk Board was not vested with full ownership of the trees growing on the vested "puntas"; the right to those trees lay in the Zamindar.
Direct consequences and orders made by the court:
- The suit is remanded to the lower appellate court for fresh disposal in accordance with law after a finding is given on the limitation issue (the third issue).
- The court-fee on the Memorandum of Second Appeal is to be refunded.
- The costs of the Second Appeal will abide the result of the remand proceedings.
Broader implications: The court reaffirmed and applied the existing principle (as stated in Sundaram Ayyar and by Lord Herschell) limiting the proprietary rights conferred by statutory vesting of roads to what is necessary for control, protection and maintenance of the highway. The opinion does not state that it is creating a new precedent; rather it accepts and applies established authorities to resolve the issue before it.
The plaintiff in this suit was a Zamindar who owned the villages of Bellampudi and Pedapudi in the East Godavari District. In those villages are certain “puntas” or village tracts, and in 1923 the Taluk Board of Rajahmundry sold certain trees growing on those puntas and sold the usufruct of certain other trees so growing for a sum of Rs. 146-14-0. In 1926, the Zamindar claiming title in the trees in himself, brought this suit to recover that sum from the Taluk Board, and for a declaration and perpetual injunction. Both the courts below have dismissed his suit.
Though this was contested originally by the Zamindar, it is common ground in this appeal that the “puntas” in question are “public roads” within the meaning of S. 60 of the Local Boards Act, and that they therefore vested in the Taluk Board under the provisions of that section. But the trees growing upon a public road are nowhere specifically vested in the Board, and what we have to decide is whether the effect of the vesting under S. 60 is to confer ownership of such trees upon the Board.
The only section of the Local Boards Act itself which is of assistance in this matter would seem to be S. 163-A, an additional section enacted in 1930. Sub-section (2) of that section runs as follows:—
“No person shall fell, remove, destroy, lop or strip bark or leaves from or otherwise damage any tree vesting in or belonging to a Local Board and growing on any such public road or property except with the previous permission of the President of the Local Board and on such conditions as the President may impose”.
It might be argued that if the mere existence of a tree upon a public road or other property vested in a Local Board renders that tree in every sense, the property of the Board this provision would have been differently drafted but such an argument would not be conclusive, and we must proceed to discuss the matter on general principles and with reference to decided cases. And in doing so we must take it for granted in the absence of anything in the pleadings or evidence to the contrary that the trees in question were planted by neither party but were of spontaneous growth. The earliest cases to which reference has been made in discussing the general question of the nature and extent of the property in streets or roads created by statute in local authorities are from England. The first is Coverdale v. Charlton . It was there held that the local authority had such proprietary interest in a lane under S. 149 of the Public Health Act that it would lease the right of grazing the grass growing in that lane. In The Board of Works for the Wandsworth Dt. v. The United Telephone Co. Ltd., (2), it was held that the vesting of a street in a local authority did not give that authority any right to prevent a Telephone Co., from stretching a telephone wire across that street at a considerable height above its level. In The Mayor of Tunbridge Wells v. Baird (3) it was held that an urban authority in which a street vested by virtue of S. 149 of the Public Health Act was not thereby empowered to construct an underground lavatory beneath the street. In Municipal Council of Sydney v. Young (4), it was held by the Privy Council that where a certain portion of a public street vested in the council was taken for the purpose of the construction of a tramway the council had no such proprietary interest in the street as would entitle it to receive compensation. In Vestry of St. Mary Baiter sea v. County of London and Brush Provincial Electric Lighting Co. Ltd. (5) it was held that though the Company had acted illegally in laying down its electric mains under streets vested in the vestry the rights of the vestry were not thereby permanently infringed, as it had no property in the soil of the street at the depth which happened to be only 2’ at which the mains were laid.
What then are the principles underlying these decisions? The decisions have all been very carefully considered by Bhashyam Ayyangar J. in Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council , and his view of them is very fairly represented by the head-note which runs as follows:—
“When a street is vested in a Municipal Council, such vesting does not transfer to the Municipal authority the rights of the owner in the site or soil over which the street exists. It does not own the soil from the centre of the earth (and the air above it) Usque Ad Coelum. but it has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers.”
We can see no reason not to accept this view, and in our own examination of the English authorities think that the true principle has been very clearly and very cogently laid down by Lord Herschell in The Mayor of Tunbridge Wells v. Baird in the following words,
“My lords, it seems to me that the vesting of the street vests in the urban authority such property and such property only as is necessary for the control, protection and maintenance of the street as a highway for public use.”
Now the validity of these principles and their applicability to Indian Statutes have not been attacked in any authority since Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council . In Basaweswaraswami v. The Bellary Municipal Council , Sadasiva Iyer J. expressed his regret that the complications of English Law had been introduced into this Presidency through the judgment of Bhashyam Ayyangar, J., but he also says that it is now too late to go back on these distinctions. There can be no question therefore that in this case the Taluk Board was not vested with full proprietary rights over the soil of the “puntas”.
It is however argued for the respondent that the decision in Coverdale v. Charlton is directly applicable to this case, and that whatever may have been said in cases dealing with lavatories or telephone wires or encroachments by means of pials (as in the Madras cases) there is some proprietary right in a local body which must at least extend to the surface of a road and therefore to everything growing upon it. On the question of the right to pasturage, Coverdale v. Charlton has never been dissented from, and there is no logical distinction between grass and trees when both spring up spontaneously upon a road.
The case in Stillwell v. New Windsor Corporation is relied upon in this connection. There the question was whether certain trees standing upon a public highway should be removed by order of the public authority, and it was held that Mr. Stillwell who claimed to be the owner of the trees could not resist an order for their removal, as they amounted to a danger and an obstruction in the use of the highway. Certain incidental remarks in the judgment suggest that as the trees were part of the highway the property in the trees vested in the local authority, but the learned Judge is careful not to commit himself to saying that the local authority owns the trees for all purposes, and says he is not called upon to decide to whom the timber would belong when the trees were removed. The case is therefore of no direct assistance to the respondent in his present contention.
It seems to us that the respondent here does not take the true view of the nature of the ownership of property in a road by a local authority. He is inclined to agree that the local authority possesses no absolute rights of ownership to the sky above the road or to the minerals beneath it, but he contends that there still remains some absolute right to a limited cubic content of material represented by the surface and a reasonable thickness beneath it. No doubt this is true in the sense that no possible claim to exercise any complete right of property over such surface or material could ever be recognised in any other person so long as the road remains a road, but that the right of the local authority is not an absolute right of ownership is, we think, made quite clear by the Sydney decision where its claim to compensation as soon as the road ceases to be a road is negatived. We must repeat, therefore, that the true principle is that enunciated by Lord Herschell. It is no mere question of the topographical limitations of height and depth. The limitations are those set by the scope of the functions and duties of the local authority in maintaining the road in proper condition. The property vested is ‘such property and such property only as is necessary for the control, protection and maintenance of the street as a highway for public use.’
Applying then this principle to the present facts we can conceive of circumstances in which it might be necessary for the Taluk Board to cut down trees which obstructed the use of the ‘puntas’ or interfered with the safety of those using them, but we can conceive of no principle which requires that in order to preserve the “puntas” as “puntas” it is necessary for the Board to have full ownership of all trees and their usufruct. Both the Courts below leap lightly over the gap which separates right of control from full ownership. We cannot follow them in this, and must hold that the right to these trees lay in the Zamindar. There still, however, remains the question whether the Zamindar's right is now barred by limitation. This is the subject-matter of third issue, and has been expressly left unconsidered by the lower appellate Court.
We must accordingly remand the suit to the lower appellate Court for fresh disposal according to law after a finding has been duly given on this issue. Court-fee on the Memorandum of Second Appeal to be refunded. Costs of Second Appeal to abide the result.
N. R. R.Case remanded.
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