Streets, Roads, Drains, Public Places

The provisions on streets, roads, drains and public places are the working heart of the UP Municipalities Act, 1916. They convert the abstract idea of municipal control into concrete power over the physical city — the carriageway, the footpath, the gutter and the open square. Two questions recur in the case law and in the examination hall: what exactly vests in the Municipality when a street becomes public, and how far may the Board go in laying out, regulating, and clearing those streets. The answers turn on Section 116, on Chapter VII (Sections 178–236), and on a line of Supreme Court authority — led by Municipal Board, Manglaur v. Mahadeoji Maharaj — that reads ‘vesting’ in a deliberately limited sense.

The Statutory Scheme and Key Definitions

The Act’s treatment of streets begins with its definitions in Section 2. A ‘street’ (s.2(23)) means “any road, bridge, footway, lane, square, court, alley or passage which the public or any portion of the public has a right to pass along” — and it expressly includes, on either side, the drain or gutters and the land up to the defined boundary of any abutting property, notwithstanding the projection of any verandah or superstructure over that land. A ‘public street’ (s.2(19)) is a street either declared to be public by the Municipality under Section 22, or one which, with the owner’s express or implied consent, has been levelled, paved, metalled, channelled, sewered or repaired out of municipal or public funds. A ‘public place’ (s.2(18)) is any space — not being private property — open to the use or enjoyment of the public, whether or not it is vested in the Municipality. A ‘drain’ (s.2(6)) includes a sewer, pipe, ditch, channel or any device for carrying sullage, sewage, polluted water, rain water or sub-soil water, together with traps, sinks and fittings appertaining to it. These definitions matter: the inclusion of footpaths, gutters and abutting land within ‘street’, and the express decoupling of ‘public place’ from vesting, decide many disputes before any operative section is reached. The substantive powers then sit in the chapter on powers, functions and duties, in the property provisions of Sections 116–120, and in Chapter VII (ss.178–236).

Vesting of Streets, Sewers and Drains: Section 116

Section 116 is the pivot. “Subject to any special reservation made by the State Government,” all property of the nature it specifies, situated within the municipal area, “shall vest in and belong to the Municipality” and be under its direction, management and control. Clause (c) vests “all public sewers, drains, culverts and water-courses, and all works, materials and things appertaining thereto”; clause (g) vests “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.” Read literally, the words “vest in and belong to” suggest full ownership. The Supreme Court has firmly rejected that reading. This vesting provision is the bridge between the abstract property and funds regime and the day-to-day control of the city’s surface.

The Limited-Vesting Doctrine: Manglaur and Fruit & Vegetable Merchants

The leading authority is Municipal Board, Manglaur v. Sri Mahadeoji Maharaj, AIR 1965 SC 1147, decided squarely under the UP Municipalities Act, 1916. The dispute concerned the kachcha patris (strips) flanking a metalled public road; the Municipality claimed them as part of the ‘street’ that vested in it. The Supreme Court held that when a public street vests in a Municipality under Section 116, the Municipality does not become absolute owner of the soil. It acquires “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.” The original owner’s title to the sub-soil is not extinguished; the public acquires only a right of passage, and the Municipality holds the street as a trustee for that public purpose, with possessory rights against trespassers but nothing more. The Court built this on Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, AIR 1957 SC 344, where it had laid down that the word ‘vest’ “has not got a fixed connotation” — property may vest in title, in possession, or “in a limited sense.” The lesson for the judiciary aspirant: the statutory phrase “vest in and belong to” in Section 116 is read down to a functional vesting, sufficient for the street’s maintenance and public use, not a transfer of fee-simple.

Laying Out and Making New Streets: Sections 203-208

Chapter VII regulates how new streets come into being. Section 203 provides that, except where a site already abuts a public or private street, an owner who intends to use, sell, lease or transfer hitherto-unbuilt land as a building site must first lay out and make a street connecting that site to an existing public or private street. Section 204 requires every person, before laying out or making a new private street, to apply in writing to the Municipality with plans showing the proposed level, direction and width, the street alignment and building line, and the arrangements for levelling, paving, metalling, channelling, sewering, draining, conserving and lighting. The Municipality must, within sixty days, sanction (on conditions), disallow, or call for further information; sanction may be refused where the street would conflict with a general street-improvement scheme, fails to conform to the Act, rules or bye-laws, or is not designed to connect at one end with a street already linked to a public street (s.204(4)). Section 205 supplies a deeming provision: prolonged inaction by the Municipality is treated as sanction, though it cannot authorise anything otherwise unlawful. A sanction lasts one year (s.206). Where a street is laid out without or contrary to sanction, Section 207 makes the illegal making of a street punishable with fine up to five hundred rupees, and Section 208 empowers the Municipality, after notice and an opportunity to show cause, to order the unsanctioned street altered or, if alteration is impracticable, demolished.

Municipal Powers over Public Streets: Sections 219-223

For streets that are already public and vested, Section 219 confers wide construction powers: to lay out and make a new public street with subsidiary tunnels and works; to widen, lengthen, extend, enlarge or otherwise improve any existing public street vested in it; to turn, divert, discontinue or close any such street; and to provide, acquire (subject to the rule-based acquisition conditions) and dispose of building sites abutting improved streets. Section 220 declares that, notwithstanding any pre-existing right, no itinerant vendor or other person may use or occupy a public street or place for selling articles, plying a calling, or setting up a booth or stall, except with the Municipality’s permission given under the relevant bye-laws — the statutory hook on which the hawking jurisprudence hangs. Section 221 lets the Municipality adopt a street that is not public as a public street, by posting and publishing notice of its intention and, after the objection period, declaring it public. Section 222 empowers regulation of the building line on either side of an existing or proposed public street, and Section 223 imposes a duty on the Municipality, during construction or repair of any public street, drain or water-work, to take proper precautions for public safety — fencing, lighting and the like. These powers complement, and are an instance of, the broader functions and duties the Act casts on the Board.

Public Drains and Drainage: Sections 189-194

The drainage provisions form a self-contained block. Section 189 empowers the Municipality to construct, within or (subject to s.120(2)) outside the municipal area, such drains as it thinks necessary for keeping the area properly cleansed and drained, and to carry them through, across or under any street or place after reasonable written notice; no drain may be constructed within a cantonment without the prescribed consent. Section 190 lets the Municipality enlarge, lessen, alter the course of, cover in, improve, discontinue, close up or remove a public drain, provided it supplies an equally effective drain where one is closed. Section 191 entitles a private owner or occupier to connect his drains into the Municipality’s drains, subject to the prescribed conditions, and penalises unauthorised connection or alteration of a connection with a vested drain. Section 192 confers power to enforce drainage connection with public drains; Section 193 allows a private person, on terms, to carry a drain through another’s land; and Section 194 preserves an owner’s right to divert a drain on his own land. Because the s.2(23) definition of ‘street’ sweeps in the flanking drain and gutter, control over drainage is inseparable from control over the street itself.

Projections and Overhanging Structures: Sections 209-211

The Act distinguishes a permitted projection from an encroachment. Section 209 lets a Municipality, where a bye-law so provides and subject to State rules, grant written permission for open verandahs, balconies or rooms to project over a street from an upper storey at the prescribed height and extent, and for projections to overhang or encroach over a drain in a street on prescribed conditions; it may also fix the extent of roofs, eaves, weather-boards and shop-boards. Section 210 penalises erecting or re-erecting such a projection without permission or in breach of its conditions with a fine up to one thousand rupees, and in the absence of special and adequate reasons, not less than two hundred and fifty rupees. Section 211 is the removal power: the Municipality may, by notice, require an owner or occupier to remove or alter any projection or structure overhanging, projecting into or encroaching on a street or any drain, sewer or aqueduct in it — with the narrow saving that, for structures lawfully in existence on or before 10 March 1900, compensation (capped at ten times the cost of erection and demolition) is payable. The architecture is unmistakable: vertical intrusion over the street is tolerated only on terms, and the Municipality keeps a standing power to clear what was never sanctioned.

Obstructions, Encroachments and Street Upkeep: Sections 212-216

A cluster of sections protects the usable width and safety of streets. Section 212 lets the Municipality require owners or occupiers fronting a private street to level, pave, metal, flag, channel, sewer, drain, conserve or light it; on default the Municipality may do the work and recover the cost frontage-wise under Chapter VI, and once a private street is so improved it may, on the requisition of not less than three-fourths of the owners, be declared a public street — a second route to public-street status alongside s.221. Section 213 forbids felling trees, erecting, re-erecting or demolishing buildings, or altering the outside of a building where this risks obstruction, danger or annoyance to street users without prior written permission, and allows the Municipality to require protective hoardings or screens lit from sunset to sunrise. Section 214 enables notice to trim hedges and overhanging branches that obstruct a street or cause danger; Section 215 empowers removal of accidental obstructions — a fallen wall, erection or tree encumbering a street or blocking a public drain — at the owner’s expense; and Section 216 regulates troughs and rain-water pipes so that discharge does not inconvenience passers-by. Naming of streets and numbering of buildings is dealt with separately in Section 217, which requires the Prescribed Authority’s prior approval before a street is named or renamed.

Encroachment, Hawking and the Right to Livelihood

Because a public street is held for the public’s right of passage, no one may treat it as private property. In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, the Supreme Court squarely held that “no person has any legal right to encroach upon or to construct any structure on a footpath, public street or on any place over which the public has a right of way” — yet it tempered the municipal eviction power by reading in fair procedure, holding that the right to life under Article 21 includes the right to livelihood and that pavement dwellers could not be summarily evicted without a just and reasonable opportunity. The hawkers’ line of cases refines this. In Bombay Hawkers’ Union v. Bombay Municipal Corporation, AIR 1985 SC 1206, the Court upheld a scheme of hawking and non-hawking zones, recognising that uncontrolled squatting on streets is a serious obstruction. In Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155, a Constitution Bench held that street trading is a fundamental right under Article 19(1)(g), but one subject to reasonable restriction under Article 19(6) and to the Municipality’s regulatory permission. Under the UP Act, this jurisprudence is channelled through Section 220 (permission to use a public street for vending) and the removal powers in Section 211. The constitutional underpinning of municipal authority is traced in the introduction and constitutional background.

Municipal Liability for Streets and Structures

Vesting of streets and structures carries a correlative duty of care. In Municipal Corporation of Delhi v. Subhagwanti, AIR 1966 SC 1750, the Clock Tower in Chandni Chowk — eighty years old, owned and controlled by the Corporation — collapsed on a public highway, killing several persons. The Supreme Court held the Corporation liable, applying res ipsa loquitur: where a structure abutting or standing on a highway is exclusively within the owner’s control and falls in circumstances not occurring without negligence, the burden shifts to the owner to disprove negligence. The Court emphasised the special obligation of an owner of premises beside a highway to keep them in repair so as not to endanger passers-by. The principle reads directly into the UP Act: because s.116(g) vests public streets and the “erections, materials, implements and things” appurtenant to them, a Municipality that fails to maintain a street, a vested tree, a culvert or a drain in safe condition may be liable in tort to a person injured thereby. The street powers, in short, are powers coupled with a duty of reasonable upkeep.

Unauthorised Construction over Drains and Water-works: Section 236

Closing the chapter, Section 236 deals with unauthorised construction of a street, building or other work over a drain or water-work vested in or maintained by the Municipality. It safeguards municipal infrastructure that lies beneath the surface — sewers, drains, mains and pipes laid along, over or under a public street (cf. s.224, on water-works) — from being built over without sanction, and preserves the Municipality’s access for repair and maintenance. Together with Section 211 (removal of encroachments over drains) and Section 218 (power to attach brackets, supports and ventilation shafts or pipes for drains and water-works to buildings and trees), Section 236 completes a regime in which the visible street and the invisible network beneath it are treated as a single, integrated public asset. The taxing counterpart — the drainage and water taxes that fund this infrastructure — is examined under tax levies.