Norman Macleod, C.J.
1. We think this rule must be made absolute. The accused was sentenced to pay a fine of Rs. 50 for contravening the bye-law No. 132 of the Kurla Municipality, read with Section 96 or the Bombay District Municipal Act. It was for the prosecution to prove that the building contravened the bye-law. The accused had given notice of what he intended to build, and the Municipality did not answer the request within a month, so the accused was entitled to build, provided he did not contravene the provisions of the Act or any bye-law then in force. The complainant contended that bye-law 132 had not been complied with, and if the open space between block A on the plan and the block opposite it is a street, then it must be admitted that the bye-law had been contravened. But it was for the prosecution to show that that space was a street. The Magistrate says 'the defence has not shown that the occupier of the building has a right at all hours to prevent all other persona from using it or part of it as aforesaid.'
2. We must assume that the buildings had not been completed at the time that the charge was laid, and so the owner of the premises would still be considered as the occupier of the building which was being erected, and it would be in his power to prevent all persons from using the space between the buildings until they were let out to tenants. The result must be that while the owner of a large area of building land is erecting building's thereon, the open spaces between the buildings cannot possibly be considered as streets until the buildings are finished, as clearly the owner has a right to prevent all other persons from using his private land. It was therefore open for the Municipality to refuse permission under Section 96 of the Act within the time allowed. Otherwise the owner was entitled to go on with the building, and it cannot be said that any of the open spaces on his private property which were not built upon were streets within the meaning of the definition of street in Section 8(1, 2) of the Bombay District Municipal Act. That being the state of the evidence in this case, it seems there is no evidence that this vacant space was a, street, and, therefore, no bye-law has been contravened.
3. We may also mention that we do not think that the construction placed by the Magistrate on bye-law 132 is correct. It clearly means that no point of the building must be at a greater height from the ground than the distance from the farther edge of the street on which the building abuts to the end of the vertical lino drawn from that point at the top of the building. The rule is made absolute, the conviction and sentence set aside and the tine, if paid, to be refunded.