Judgement Appeal (No. 64 of 1935) from a decree of the High Court (December 21, 1933) reversing in second appeal a decree of the Second Additional Subordinate Judge at Allahabad (November 14, 1932) which had reversed a decree of the Court of the Munsif at Allahabad (June 19, 1931). The question for determination in this appeal was whether the appellant, as the hereditary owner of land upon which ran a public street vested in and controlled by the Municipal Board of Allahabad, was entitled to require the demolition of a portico or covered-in shelter running the length of a shop belonging to the respondents other than the Municipal Board and abutting on the street, and which had been erected by them with the sanction of the Board acting in pursuance of the powers in that behalf contained in the United Provinces Municipalities Act (II. of 1916). In the action the appellant claimed a mandatory injunction for the demolition of the portico, and damages and other relief. The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee. The Munsif dismissed the suit. The Subordinate Judge held that no claim for damages had been made out, but that the appellant was entitled to an order for demolition of the structure. The High Court (Thorn and Kisch JJ.) held in effect that though an owner was not deprived of all his rights in the soil when a street vested in and belonged to a public authority, those rights did become limited to the extent of the duties and powers imposed on the public authority properly exercised, and they held that the action of the Municipal Board in sanctioning, and of the shop owners in erecting the portico in question were reasonable and proper, and constituted no infringement of the appellants proprietary rights. They accordingly restored the decree of the Munsif dismissing the appellants suit. The appeal is reported at ( 1934) I. L. R. 56 A. 784. 1937- June 28. Dunne K.C. and J. M. Parikh for the appellant. All the Courts below have held that the title to the land still remains in the appellant, and that the Local Authority have only such rights as entitle them to maintain and keep it as a street. 1937- June 28. Dunne K.C. and J. M. Parikh for the appellant. All the Courts below have held that the title to the land still remains in the appellant, and that the Local Authority have only such rights as entitle them to maintain and keep it as a street. The whole point is whether allowing the shop owners to put up the erection, with a floor a foot high above the pathway, comes within the purview of the acts which the municipality are entitled to do in regard to this land. It has been held in the Courts in India and in England that where there is a vesting in a Municipal Board under such an Act as the present the soil remains in the owner, and that what is vested in the local authority is a special property which entitles them to direct and control it as a street. [Reference was made to the United Provinces Municipalities Act (II. of 1916), s. 2, cl. 19 ; ss. 116,178, 180. and 209.] The projection in this case, a raised platform with pillars, practically added the veranda to the shop. S. Sundaram Ayyar v. Municipal Council of Madura and Secretary of State for India in Council (( 1901) I. L. R. 25 M. 635.) gives the most complete exposition of the law applicable. The Municipal Board have no power so to deal with the surface as to allow the erection of what, it is submitted, is a building attached to the shop upon that portion of the street that is not maintaining the surface as a street. It is a question of principle. Gunendra Mohan Ghosh v. Corporation of Calcutta (( 1916) I. L. R. 44 C. 689.) also limits the statutory right to one which is necessary for the maintenance and use of the street as a street. It is the appellants land, subject to the statutory rights of the municipality, and the latter cannot give some one else a right which might result in that person in future acquiring by prescription rights against the appellants rights. Law. Rep. 64 Ind. App. 354 ( 1936- 1937) His Highness Maharaja Man Singh of Sewai Jaipur V. Arjun Lal 164 J. E. Godfrey for the respondents other than the Municipal Board, Allahabad. Law. Rep. 64 Ind. App. 354 ( 1936- 1937) His Highness Maharaja Man Singh of Sewai Jaipur V. Arjun Lal 164 J. E. Godfrey for the respondents other than the Municipal Board, Allahabad. The whole question turns upon the meaning to be applied to " street " and " vest." It is submitted that the word " vest " gives to the Municipal Board the surface of the street and so much above and below as is necessary for the discharge of their duties and powers under the Act of 1916. It relates to what has been called the area of user, and the extent of that area is indicated by the duties and powers of the Board as contained in the Act. As to the meaning of " vest " and " street " see Finchley Electric Light Co. v. Finchley Urban Council ([ 1903] 1 Ch. 437, 439.); Wandsworth Board of Works v. United Telephone Co. (( 1884) 13 Q. B. D. 904.) [SIR LANCELOT SANDERSON referred to Finchley Electric Light Co. v. Finchley Urban Council. ([ 1903] 1 Ch. at p. 443.)] There is no evidence, and it has never been suggested before, that this portico really made an addition to the shop. The advantages of the portico are perfectly obvious—it affords shelter and does improve the amenities of the street—and it rests on the portion of the pathway which undoubtedly is vested in the Municipal Board. It can be removed at any time (s. 211), and the power of the Board to require its removal prevents a prescriptive right being acquired by the tenant. Dunne K.C. replied. Sect. 209 of the Act of 1916 is confined to cases where it is sought to erect an open veranda to project over the street from any upper storey. Such a veranda would not touch the ground, and therefore the present case does not come under either (a) or (b) of s. 209. [Reference was made to Finchley Electric Light Co. v. Finchley Urban Council. ([ 1903] 1 Ch. 437.)] July 26. The judgment of their Lordships was delivered by Sir George Rankin. This appeal is brought by the plaintiff, His Highness the Maharaja of Jaipur, against a decree dated December 21, 1933, of the High Court at Allahabad, whereby his suit was dismissed with costs. v. Finchley Urban Council. ([ 1903] 1 Ch. 437.)] July 26. The judgment of their Lordships was delivered by Sir George Rankin. This appeal is brought by the plaintiff, His Highness the Maharaja of Jaipur, against a decree dated December 21, 1933, of the High Court at Allahabad, whereby his suit was dismissed with costs. The suit was brought on December 2, 1930, in the Court of the Munsif at Allahabad against the Municipal Board of Allahabad (defendant No. 1)and four persons (defendants 2 to 5) who own and occupy a shop situated near to the junction of City Road and the road leading from the Collectors cutcherry to Colonelganj within the municipality of Allahabad. The appellant is the owner of revenue-free land measuring 0-35 acres in Mohalla Katra Jai Singh Sewai, and the shop in question, as also the street in front thereof, are within the limits of the appellants land. His complaint is that defendants 2 to 5 have, with the sanction of the Municipal Board, but without permission from him, erected a portico along the front of their premises and upon the margin or footpath (patri) of the street. The roof of the portico is a masonry structure, supported by iron pillars which rest on the street, and the floor of the portico is raised (by stone slabs or concrete) about one foot above the level of the street. The top of the portico is at the same level as the floor of the second storey of the shop building, i.e., the portico is only one storey high. The appellant by his suit claimed a mandatory injunction for the demolition of the portico, together with damages and other relief. The Munsif (June 19, 1931) dismissed the suit, but on first appeal the Subordinate Judge, though he refused to award damages, granted the claims " for injunction and demolition " (November 14, 1932). The appellant by his suit claimed a mandatory injunction for the demolition of the portico, together with damages and other relief. The Munsif (June 19, 1931) dismissed the suit, but on first appeal the Subordinate Judge, though he refused to award damages, granted the claims " for injunction and demolition " (November 14, 1932). The appellant, before the Board as in the Courts in India, has contended that in his character as proprietor of the land over which the street runs he is entitled to object to the erection of the portico ; not as a member of the public complaining of the portico as an obstruction to traffic, or as the owner of a house or land adjacent complaining of it as a nuisance, but as the owner of the soil upon which defendants 2 to 5 have built a structure without his permission, he claims to be entitled to object to it. That the solum of the street was originally vested in him is plain, and the authorities have even recognized a right in him to levy a tax on itinerant traders who squat on the footpath in this locality at Law. Rep. 64 Ind. App. 354 ( 1936- 1937) His Highness Maharaja Man Singh of Sewai Jaipur V. Arjun Lal 165 certain times. But it is equally clear that his rights as proprietor have been modified, not merely by the circumstance that he has, or must be deemed to have, dedicated the land as a highway, but also by the fact that it has become a public street within the meaning of s. 2, cl 19, of the United Provinces Municipalities Act (II. of 1916). Sects. 116, 209 and 210 of this Act are of importance for the decision of this appeal— " 116. Subject to any special reservation made by the Local Government, all property of the nature hereinafter in this section specified and situated within the municipality shall vest in and belong to the board, and shall, with all other property which may become vested in the board, be under its direction, management, and control, that is to say — * * * * " (g) all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements, and things existing on or appertaining to such streets. * * * * " 209.—(1) Subject to any rules made by the Local Government prescribing the conditions for the sanction by a board of projections over streets or drains, a board may give written permission, where provision is made by a bye-law for the giving of such permission— " (a) to the owners or occupiers of buildings in or on streets to erect or re-erect open verandahs, balconies, or rooms, to project over the street from any upper storey thereof, at such height from the surface of the street, and to such an extent beyond the line of the plinth or basement wall as are prescribed in such bye-laws, and " (b) to the owner or occupier of any building or land to erect or re-erect any projection or structure so as to overhang, project into, or encroach on or over a drain in a street to such an extent, and in accordance with such conditions, as are in like manner prescribed. " (2) In giving permission, under clause (a) of sub-section (1), a board may prescribe the extent to which, and the conditions under which, any roofs, eaves, weather-boards, shop boards and-the like may be allowed to project over such streets. " 210. Any person erecting or re-erecting any such projection or structure as is referred to in section 209 without the permission thereby required or in contravention of any permission given thereunder shall be liable on conviction to a fine which may extend to two hundred and fifty rupees. The contention of the appellant is that the effect of s. 116 is to give to the Municipal Board, not the full title to the solum of the street, but only a special property therein sufficient to enable the board to control it as a street; that this right is not inconsistent with, and does not oust, the right of the appellant as the owner of the land to object to the erection of a building thereon without his permission. The respondents, on the other hand, contend that the section is intended to make the Municipal Board owners of the surface of the street and of so much above and below as is necessary for the discharge of their duties and the exercise of their powers under the Act. The respondents, on the other hand, contend that the section is intended to make the Municipal Board owners of the surface of the street and of so much above and below as is necessary for the discharge of their duties and the exercise of their powers under the Act. Both sides appeal to the decisions of the courts in England upon the effect of similar language in Acts of Parliament—in particular, s. 149 of the Public Health Act, 1875 (38 & 39 Viet. c. 55). In Municipal Council of Sydney v. Young ([ 1898] A. C. 457.) Lord Morris delivered the judgment of the Board upon a case arising under a provision that "All public ways in the city of Sydney now or hereafter formed shall be vested Law. Rep. 64 Ind. App. 354 ( 1936- 1937) His Highness Maharaja Man Singh of Sewai Jaipur V. Arjun Lal 166 in the council," etc., etc. It was held that upon a portion of the street being taken over and converted into a tramway the council had no claim for compensation. Lord Morris said (Ibid. 459.)— “Now it has been settled by repeated authorities, . . . that the vesting of a street or public way vests no property in the municipal authority beyond the surface of the street, and such portion as may be absolutely necessarily incidental to the repairing and proper management of the street, but that it does not vest the soil or the land in them as the owners. If that be so, the only claim that they could make would be for the surface of the street as being merely property vested in them qua street, and not as general property." This passage puts forcibly the restricted sense to be attributed to the word " vest " in enactments such as s. 116 of the United Provinces Act now in question. It is equally true, on the other hand, as Collins M.R. stated in Finchley Electric Light Co. v. Finchley Urban Council ([ 1903] 1 Ch. It is equally true, on the other hand, as Collins M.R. stated in Finchley Electric Light Co. v. Finchley Urban Council ([ 1903] 1 Ch. 437, 440.)— " It has been decided by a long series of cases that the word 1 vest means that the local authority do actually become the owners of the street to this extent they become the owners of so much of the air above and of the soil below as is necessary to the ordinary user of the street as a street, and of no more.” In the present case the dispute is not with reference to something sufficiently below or above the surface of the street to be beyond the range of its ordinary user as a street. The erection complained of undoubtedly required sanction from the Municipal Board under cl. (b) of sub-s. I of s. 209 if only by reason that it encroached on or over a drain. Apart from any right of the appellant to complain of it as an obstruction or nuisance, or to complain that sanction was not duly granted, their Lordships have upon a full consideration of the Act to see whether it intends that structures affecting the surface and the space immediately above the surface are to be erected only by permission of the proprietor of the solum of the street as well as by leave of the Municipal Board. Their Lordships think not. They consider that it would put too narrow a meaning upon the words " shall vest in and belong to the board " if it were to be held that the Municipal Board was not competent of itself in the due course and exercise of its powers to authorize such an erection as is here complained of. To that extent the Municipal Board has property in the street it is part of the purpose of s. 116 that the board should not lack the ownership necessary to support an effective control of such matters, and that the general property of the original landowner in the solum of the street should be modified and abridged in that behalf. Without in any way holding that s. 116 operates to convey title in the full and proper sense [cf. the observations of Romer L.J. in the Finchley case ([ 1903] 1 Ch. Without in any way holding that s. 116 operates to convey title in the full and proper sense [cf. the observations of Romer L.J. in the Finchley case ([ 1903] 1 Ch. 443-4.)], their Lordships think it at least certain that the original owner of the soil cannot maintain trespass for an erection of the character now in question, and they do not think that he can otherwise complain of it as an infringement of his rights as owner. They express no opinion upon the question whether a permanent structure with pillars resting upon the highway is or is not an obstruction, or is an inappreciable obstruction to the highway, or is such as could be complained of by the Advocate-General or by others with his consent (s. 91 C.P.C.) on behalf of the public, or by a member of the public showing damage special to himself. No such case is raised by the appellant before the Board, and their Lordships are not to be understood to countenance any suggestion that the vesting in the municipal authority of a street and the control over it can enable the authority by licensing other persons to interfere with the street, to protect those persons from the con sequences of any nuisance to the public or danger to individuals which may be caused by such interference. They will humbly advise His Majesty that this appeal should be dismissed with costs.