EMPEROR Vs. PROVIDENT INVESTMENT CO LTD

JUDGEMENT

(1.) This is an application in revision against the petitioner's conviction under Section 471 of the City of Bombay Municipal Act, 1888, for failure to comply with a requisition made under Section 308(2) by the Municipal Commissioner for the removal of an encroachment, and the short question which arises for decision is whether the passage alleged to have been encroached upon by the construction of a compound wall by the petitioner is a "street" within the meaning of the Act. The question, though simple, is of considerable importance to the civic administration. The petitioner purchased three residential buildings and some open plots in the year 1939. To the west of those buildings there are two buildings of different owners separated from the petitioner's buildings by a passage thirty feet in width. It is this passage which is said to have been encroached upon by the petitioner. The Municipal Commissioner gave him a notice to remove the encroachment and, on his failure to do so, he was prosecuted and has been convicted and sentenced to a fine of Rs. 10.

(2.) The defence of the petitioner is that the said passage, being of his private ownership, is not a "street" within the meaning of the definition of that word in Section 3(w) of the Act. That section defines "street" as including : any highway and any causeway, bridge, viaduct, arch, road, lane, footway, square, court, alley or passage, whether a thoroughfare or not, over which the public have a right of passage or access or have passed and had access uninterruptedly for a period of twenty years.

(3.) As it was not clear from the record whether the passage in question is one over which the public have a right of passage or access or have passed and had access uninterruptedly for a period of twenty years, the case was referred back for a definite finding on that point, A finding has now been received that at the date of the notice the public had not acquired any right of passage or access over the obstructed passage, either by dedication, express or implied, or by passing or having access uninterruptedly for a period of twenty years, It has, however, been found that it is a well laid out passage "running between two rows of buildings and used by the tenants and occupants of those buildings and by the public generally for access to the buildings from the main public road."