SARAFALLI TAYABALLI Vs. MUNI CORPN AHMEDABAD

JUDGEMENT

(1.) This second appeal raises a short but interesting question of law relating to the construction of sec. 224 of the Bombay Provincial Municipal Corporations Act 1949 (hereinafter referred to as the Act ). The facts giving rise to the litigation are few and may be briefly stated as follows.

(2.) The plaintiff is the owner of certain land bearing survey No. 978 and situate in Raikhad Ward Ahmedabad. The land consists of a strip between two opposite rows of houses and connects at its ends two Mohallas known as Vahorwad and Khatriwad. The land is used for the purpose of passage by the occupants of the houses abutting on the land for the last over 25 years. The land is a private street within the meaning of sec. 2(47) of the Act. At one time the plaintiff contended that the land is not a private street but this contention was negatived by both the lower Courts and the plaintiff has now argued this Second Appeal before me on the footing that the land is a private street subject to all the incidents and liabilities of a private street It has also been found by both the lower Courts and the arguments before me have proceeded on the basis-that the land is levelled and drained but not metalledpaved channelled or lighted. The position therefore is that the land is a private street which is levelled and drained but not metalled pavedchannelled or lighted.

(3.) On 29th April 1952 the Municipal Commissioner purporting to act under section 224 of the Act put up a notice on the main gate of the private street declaring the private street to be a public street. The plaintiffs case is that he did not know about the notice until 5th October 1952 when an employee of the Municipal Corporation met him casually in a vegetable market and told him about it. The lower appellate Court has however disbelieved this part of the plaintiffs evidence and found as a matter of fact that the plaintiff was aware of the notice when it was affixed on the main gate of the private street on 29th April 1952. This is a finding of fact which must be accepted as correct for the purpose of this Second Appeal and I must proceed on the basis that the plaintiff knew about the notice on 29th April 1952. The plaintiff did not object to the notice within one month as provided under the proviso to sec. 224 but addressed a notice to the Municipal Commissioner on 6th October 1952 pointing out to the Municipal Commissioner that the declaration of the private street as public street by the Municipal Commissioner was null and void. The Estate and City Improvement Officer replied to the notice on 24th October 1952 stating that the private street had been declared as public street on 29th April 1952 under section 224 by putting up the requisite notice. The plaintiff thereupon gave the statutory notice to the Municipal Corporation on 30th October 1952 and called upon the Municipal Corporation to desist from putting up water mains gutter pipes or drainage lines in the private street or from carrying out any paving work on the same which the Municipal Corporation threatened to do. Since there was no favourable response to the statutory notice and the plaintiff felt that the threat of the Municipal Corporation was imminent the plaintiff filed the present suit for a permanent injunction to restrain the Municipal Corporation from putting up water mains gutter pipes and drainage lines in the private street or from carrying out any paving work on the same.