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The Municipal Commissioner Vs. Mathoorabai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 7 of 1906
Judge
Reported in(1906)8BOMLR457
AppellantThe Municipal Commissioner
RespondentMathoorabai
Excerpt:
.....to different persons. these sites were ranged on either side of two proposed roads, which ran through the land and which touched a high road at the one end and a dead wall on the other. bach of the purchasers entered into a covenant with the owner whereby he agreed to prepare and keep free for passage so much of the road as lay in front of his site. under these circumstances, the question arose whether the proposed road fell within the meaning of the term ' street' as used in the city of bombay municipal act, 1888.; that the proposed road would constitute a ''street ' within the meaning of the city of bombay municipal act, 1888. - - and when there is a foot-way as well as a carriage way in any street, the said term includes both. it is in these places that the poor live, the very..........as above set forth.7. mr. lowndes for the municipality contended on the other hand that the word 'street' was not defined by clause (w) but 'included (as was shown by the use of the word 'includes')any highway and any cause-way' etc. etc. the act moreover had defined 'public street' and 'private street' in clauses (a;) and (y) by using the word 'means,' for these clauses say 'public street means * * * * and 'private street' means. * * *8. now, firstly it is to be observed that 'includes' is a phrase of extension, and not of restrictive definition. it is not equivalent to 'means', the queen v. kershaw (1856) 6. e. & b. 999 ; the queen v. hermann (1879) 48 l.j.m.c. 106 : 4. q. b.d. 284. but as said by lord watson :- 'include' is very generally used in interpretation clauses in order.....
Judgment:

Russell, J.

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

4. The proposed street or road was to run in front of Mathoorabai's house and was to have houses on either side of it. But the public were to have no right of access over the said street or road. Notwithstanding the intimation of disapproval by the Municipal Commissioner, Mathoorabai continued her house and erected it to the height of 32 feet 9 inches; the width of the proposed road being 16 feet, this height was obviously more than one and half times the width of the street.

5. Section 3,[clauses (w), (x) and (y)] of Bombay Act III of 1888 provides as follows:-

(w) ' 'Street' includes any high-way and any cause-way, bridge, viaduct, arch, road, lane, foot-way, 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 20 years; and when there is a foot-way as well as a carriage way in any street, the said term includes both.'

(x)Public street'means any street heretofore levelled, paved, metalled, channelled, sewered or repaired by the Corporation, and any street which becomes a public street under any of the provisions of this Act.

(y)' 'Private street' means a street which is not a 'public street.

6. The main question argued by Mr. Raikes was that inasmuch as the public had and were to have no right of access over the 'proposed road or street', it did not fall within the definition ; of 'street' as above set forth.

7. Mr. Lowndes for the Municipality contended on the other hand that the word 'street' was not defined by Clause (w) but 'included (as was shown by the use of the word 'includes')any highway and any cause-way' etc. etc. The Act moreover had defined 'public street' and 'private street' in Clauses (a;) and (y) by using the word 'means,' for these clauses say 'Public street means * * * * and 'Private street' means. * * *

8. Now, firstly it is to be observed that 'includes' is a phrase of extension, and not of restrictive definition. It is not equivalent to 'means', The Queen v. Kershaw (1856) 6. E. & B. 999 ; The Queen v. Hermann (1879) 48 L.J.M.C. 106 : 4. Q. B.D. 284. But as said by Lord Watson :- 'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.' Dilworth v. Commissioner of Stamps [1899] A.C. 105, 106. The draftsman of the Bombay Municipal Act was fully aware of the difference between 'include' and 'mean', and we are of opinion that he used the word 'include' in the above Clause (w) in order to enlarge the meaning of the word 'street' which, having before him the example of various Judges in England, he was careful not to define. Prom this it follows that the word 'street' must receive the ordinary common-sense interpretation which (if we may use a colloquial expression) would be put upon it by 'the man in the street'.

9. Before however dealing with the numerous cases which were cited to us as to the meaning to be put on the word, we would point out that if the argument of the Advocate General were to prevail, the definition of 'private street' would appear to be a contradiction in terms. For if 'street' must in this Act always be associated with 'publicity' then no street could be private.

10. That this is the right construction to be put upon the word 'street' by itself, appears from the following cases:- In Robinson v. Local Board of Barton-Eccles (1883) 8 App. Cas. 798, the Earl['of Selborne L.C. at page 801 in dealing with the words in the statute 'includes' and 'shall apply to and include', says as follows:- ' An interpretation clause of this kind is not meant to preventthe word receiving its ordinary, popular and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary, to be applied to some things to which it would not ordinarily be applicable.' Again he says (page 801) 'In the natural and popular sense of the word 'street' I should certainly understand a road-way with buildings on each side (it is not necessary to say how far they must, or may be, continuous or discontinuous)'. Again Jessell M. R. in Taylor v. Corporation of Oldham (1876) 4 Ch. D.395 says:- 'The definition of a 'street' is thus laid down in the Imperial Dictionary : 'A street is properly a paved way or road; but in usage, any way or road in a city, having houses on one or both sides. Now tried by that test, is this a street: it has houses on both sides of it, and therefore, in common parlance, it is a street. It is really a street. Supposing that were wrong, I find 'street' is to include 'road' 'and this certainly is a road '. Again in Robinson v. Local Board of Barton-Eccles, cited supra, Lord Blackburn says, page 809, that 'street' in, the ordinary and popular sense of the word, was a high-way with houses on each side. But in the case of The Corporation of Portsmouth v. Smith, (1883) 13 Q.B.D. 184 it was held by Brett M. R. that the word 'street' when popularly used meant a thoroughfare bounded on one or both sides by houses. That case was affirmed in the Mayor, etc. of Portsmouth v. Smith (1885) 10 App. Cas. 364, in which Lord Blackburn delivered the first opinion. He did not take objection to the definition above given by Brett M. R. With regard to the remark of Brett M. R. above quoted it may be said that road-way ought to have been the word he should have used instead of ' thoroughfare, 'for a cul-de-sac is a 'street' and may be a 'public street'. See Souch v. East London Railway Company (1878) L.R. 16 Eq. 104 and Davis v. Board of Works for Greenwich District [1895] 2 Q.B. 219.

11. With regard to the Bombay cases which were cited viz. Kalidas v. The Municipality of Dhandhuka ILR (1882) 6 Bom 686, it need only be remarked (1) that the court there in question was not used as a thoroughfare but only as a means of access to the houses which surrounded it by persons who had business with the householders, (2) no reference was made to the definition of 'street' in the Bombay District Municipal Act VI of 1873 which 'shall include... any court, . . . whether a thoroughfare or not'. Similar remarks apply to In re Gulabdas Bhaidas ILR (1894) 20 Bom 83, while in the case of Ahmedabad Municipality v. Manilal Udenath ILR (1894) 20 Bom. 408, in the issue sent down involved the question what constitutes a ' public street' within the contemplation of Bombay Act VI of 1873; and 'public street' had not been defined in that Act as it has been in the Bombay Municipal Act 1888.

12. That being so, we have come to the conclusion that the question we have to decide as formulated by us, must be answered in the affirmative. We would moreover wish to cite the very apposite passage in Taylor v. Corporation of Oldham (1876) 4 Ch. D. 395. Jessel M. R. says as follows:- 'The owners of these private courts and alleys are, of all people in the world, the most averse to laying out money in sanitary works. It is in these places that the poor live, the very people who suffer most from the want of sewerage and drainage which are so requisite for public health. Is it to be imagined that the Legislature intended to except such places as these from the operation of the Act? I should say if the Act were passed for anybody it must have been meant to include those owners, who, for the sake of gain and acquiring high rents in proportion to the annual value of the wretched tenements they allow the poor to occupy, neglect ordinary and necessary sanitary precautions. If I were to interpret it by what I might think to be the mind of the Legislature, I should suppose that the first people to be included would be the owners of these crowded courts and alleys, over which the public have no strict rights whatever, but which are intended to be used for the dwellings of the poor, and are unprovided with what, according to modern science, is known to be absolutely necessary for their well-being.'

13. We have no evidence before us of the class of persons who are to occupy Mathooarbai's house, but whether they be poor or well-to-do, they are equally entitled to what in Bombay is 'absolutely necessary for their well-being' namely, light and air, as for many purposes the Bombay City Municipal Act is a Public Health Act.

14. The case accordingly will be remanded to the Magistrate to be dealt with by him according to the law in the light of the above judgment.

Batty, J.

15. I have nothing to add.


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