Dedication of the highway to the public:
The Supreme Court held that inference regarding dedication can be arrived at on the basis of long user by public. The dedication is only for the purpose of the public to pass and re-pass on the road, and the owner of the soil in general remains with the occupier of it.
“Subject to the right of the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it; and as such may maintain trespass, against any member of the public who acts in excess of his right.” (Pratt and Mckenzie Law of Highways, 20th Edn. at p.4)
Presumption: “The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps to disabuse them of that belief, is evidence (but not conclusive evidence) from which a Court or Jury may infer a dedication by the owner.” (Halsbury’s Laws of England, 3rd Edn, Vol.19, at p.49, rules of presumption and proof of dedication).
The Division Bench of the Madras High Court in Sri Kalugachalamurthi Swami v. Panchayat Board, 1962 (II) MLJ 372 – held that –
“The owner of the property can create a highway enabling the general public to pass and repass over the property by a gift or dedication to that effect. A valid dedication can however be established only by proof of a clear intention on the part of the owner to dedicate the land. In the absence of any proof of “animus dedicandi” on the part of the owner or proof of dedication will fail. The law does not require a express dedication by way of a grant and it is open to presume and intention of the owner to dedicate by long open user of rights of way by public. It is a probable inference from facts proved and in a particular case it is for the Judge of fact to determine whether on the evidence adduced it can be reasonably drawn.”
“Public Road” is defined under Sec.2(28) of the Tamil Nadu Panchayat Act, 1958 which reads as –
“Public road means any street, road, square, Court, alley, passage, cart-track, foot-path, or riding-path, over which the public have a right of way, whether a thoroughfare or not, and includes—
- The roadway over any public bridge or causeway;
- The footway attached to any such road, public bridge or causeway;
- The drains attached to any such land, public bridge or causeway, and the land, whether covered or not by any pavement, veranda, or other structure, which lies on either side of the roadway up to the boundaries of the adjacent property whether that property is private property or property belonging to the State or Central Govt.
If the public have right to use the road, even though it is a private property, it should be construed as a public road under the Tamil Nadu Panchayat Act, 1953.