“14. Before considering the preliminary objections raised by Mr. Kesava Iyengar with regard to the maintainability of the writ petitions, it is necessary to consider the common law right of highway and also the right of the petitioners to use Ranganathan Street and Rattan Bazaar Road and N.S.C. Bose Road to pass and repass. The highway is a passage over which members of the public are entitled to pass and repass. The essential characteristic of a highway is that every person should have the right to use it for the appropriate kind of traffic. The road or part over which only a particular class of people or a few individuals are allowed to pass and repass cannot be a highway. In Halsbury's Laws of England, Third Edition, Vol. 19, at page 12, highway is defined thus: “A highway is a way over which all members of the public are entitled to pass and repass; and conversely, every piece of land which is subject to that public right of passage is a highway or part of a highway…… It is, however, an essential characteristic of a highway that every person should have a right to use it for the appropriate kind of traffic, subject only to any restrictions affecting all passengers alike. It follows that a road or path over which only individuals, or a limited class of the public (for example, the inhabitants or occupiers of a particular house, field, or village) have a right of passage, is not a highway.”
