MUNICIPAL COMMISSIONER Vs. MANCHERJI PESTONJI CHOKSEY

JUDGEMENT

(1.) The plaintiff is the owner of a house and compound abutting on Elphinstone Road near the point where it is intersected by two lines of Railway. In 1902 it was decided that an over-bridge should be built carrying the Elphinstone Road over the railways. On the 4th of March 1903 the then Municipal Commissioner Mr. Harvey in order to provide for the changed conditions which would result from the building of the over bridge prescribed on the northern side of the Elphinstone Road a line as the regular line of the street, purporting to act under the power conferred by Section 297 of the City of Bombay Municipal Act, 1888, which ran as follows: "The Commissioner shall prescribe a line on each side of any public street within which except under the provisions of Section 310 no portion of any building abutting on the said street shall after such line has been prescribed be constructed."

(2.) The line so prescribed was not recorded on the usual plan in the Municipal office and was not generally known.

(3.) In 1909 the Railway Companies proposed alterations in the position of the over bridge which even then had not been commenced. In consequence of those proposals the then Municipal Commissioner Mr. Sheppard prescribed a line on each side of the road. The northern line so prescribed lay to the south of that prescribed by Mr. Harvey. Some time later in the year it was discovered that Mr. Harvey had prescribed a regular line and accordingly steps were taken in conformity with Section 297 as amended by Bombay Act V of 1905 to legalize the substitution of the new line by following the procedure specified in Section 297 (b). When every thing was in order formal possession of such part of the plaintiff s compound as lay within the new line was taken under Section 299.