MUNICIPAL COMMISSIONER Vs. MATHOORABAI

JUDGEMENT

(1.) This is a special case stated by the Acting Fourth Presidency Magistrate, Bombay, but inasmuch as the question as put by him did not exactly meet the case, the following question was formulated by the Court with the consent of the parties, viz.- Whether the vacant space infront of Mathoorabai's house when, and if, laid out as a means of passage with houses on both sides and when, and if, used as such by the occupiers of such house, and not by the public generally, will constitute a street within the meaning of the Bombay Municipal Act." (Bombay Act III of 1888).

(2.) The facts stated shortly are as follows:- The Municipal Commissioner for Bombay laid a complaint against defendant Mathoorabai for an offence punishable under the Building bye laws No. 42, she being the purchaser of a plot No. 15, from one Tribhovandas Mangaldas. It appears that this Tribhovandas owned a large plot of ground abutting on the south side of the Girgaum Back Road and about two years ago he divided this plot into 19 small plots and sold them to different purchasers. Each purchaser entered into a covenant in similar terms, mutatis mutandis, as Mathoorabai. She was the purchaser of plot No. 15, and covenanted with the vendor as follows:- And the purchaser doth hereby for the benefit of the owners and occupiers of all the other plots specified on the said plan hereto annexed, covenant with the said vendor that she the purchaser shall not build upon or block in any way whatever and leave open to the sky such portion of the said piece of land as is marked as the proposed road on the said plan hereto annexed, and which contains by admeasurement 54 square yards and 66 hundredths of a square yard but shall use the same as a road only and shall at her own expense prepare and pave and metal and otherwise keep the same in proper repair and order and shall allow the owners and occupiers for the time being of the other plots specified on the said plan and their agents and servants and all and every other persons or person for the benefit and advantage of such owners and occupiers full and free right and liberty from time to time and at all times hereafter at his and their will and pleasure by night and by day and for all purposes to go, return, pass and repass with or without horses, carts, wagons and other carriages laden or unladen and also to drive cattle and other beasts in, through, along and over the said road to and from the said plot No. 15." The words above set out " and all and every other persons or person for the benefit and advantage of such owners and occupiers" give at all events a limited right of access to the public over the road marked, although we are told that the " proposed road " is to be, it appears a cut de sac.

(3.) Mathoorabai being desirous of building a house on her plot No. 15, submitted plans and specifications to the Municipal Commissioner in April 1905. The Municipal Commissioner while disposing of the plans and specifications took amongst others the following objection:- That the building will be more than one and a half-times the width of the street it abuts on