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E.C.K. Ollivant Vs. Rahimtula Nur Mahomed and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom474
AppellantE.C.K. Ollivant
RespondentRahimtula Nur Mahomed and anr.
Excerpt:
.....and while i was there no one was in any way obstructed or incommoded by the projection of the plaintiffs' eaves, nor do i think it is likely that any one could be in the present state of the road and condition of the traffic. we do not, however, think that is the question which arises on the proper construction of section 195. if however, it was material to consider this point we should think it hardly safe for a judge to attach much value to what he may himself observe during a short visit to the locality. a good deal of evidence was given upon this matter, and it is upon the recorded evidence that the court's decision must rest. 4. it is no doubt a well-recognised general rule, that where powers are given by the legislature to interfere with private property these powers are to be..........the width of the road in front of these buildings is about forty feet, and the height of the eaves in question varies, from seven feet to nine feet two inches above the road way. at, the time this suit was filed there was an open drain or gutter, one foot three inches wide, running along by the side of the plaintiffs' buildings and between them and the road. this gutter, however, has since been covered over, and so much additional width has thereby been added to the road.2. the learned judge in the court below seems to have based his judgment mainly on the observations which he made himself when visiting the locality. in his judgment he discusses the case with reference to the state of things existing at the date of the hearing at which time the gutter had been covered over. as to.....
Judgment:

Charles Sargent, C.J.

1. In this case the plaintiffs sue to restrain the Municipal Commissioner from putting in force against them the powers vested in the Commissioner by Section 195 of Bombay Act III of 1872, by which he is empowered to remove any prosecution or encroachment which forms an obstruction to the safe and convenient passage along any public street. It appears that the eaves of certain buildings belonging to the plaintiffs project over the public road to the extent of one foot eight inches and form the alleged obstruction which the Commissioner desires to, have removed. The width of the road in front of these buildings is about forty feet, and the height of the eaves in question varies, from seven feet to nine feet two inches above the road way. At, the time this suit was filed there was an open drain or gutter, one foot three inches wide, running along by the side of the plaintiffs' buildings and between them and the road. This gutter, however, has since been covered over, and so much additional width has thereby been added to the road.

2. The learned Judge in the Court below seems to have based his judgment mainly on the observations which he made himself when visiting the locality. In his judgment he discusses the case with reference to the state of things existing at the date of the hearing at which time the gutter had been covered over. As to this point he says: 'I should, I think, be assured that the, addition, under such circumstances, of a foot or two to the with of a forty-feet road at its extreme edge, where it is abutted on by a row of open shop fronts, made such a difference in the ordinary existing traffic that the projection of the plaintiffs eaves, at a, height admittedly too great to incommode any ordinary foot passenger, became a source of danger or inconvenience to others. As to this, there was a remarkable dearth of positive evidence on both sides. Not a single witness was called to prove that, as a fact, anyone had been or had not been incommoded by the projection. I was simply invited to draw inferences, either way from evidence of measurements and the state of the traffic on the road.' Then he goes on to speak of the traffic in the street, and says: 'Such a traffic seemed to me not likely to suffer any appreciable obstruction on a forty-feet road from a twenty-inches projection at one edge of it seven feet from the ground;' and he concludes by saying: 'In regard to the traffic at this point, as I have already stated, it was distinctly sparse, and while I was there no one was in any way obstructed or incommoded by the projection of the plaintiffs' eaves, nor do I think it is likely that any one could be in the present state of the road and condition of the traffic.'

3. It is plain, from these remarks, that the learned Judge was of opinion that the question in the case was whether the eaves of the plaintiffs' house constituted a real practical inconvenience to the public traffic in the street. We do not, however, think that is the question which arises on the proper construction of Section 195. If however, it was material to consider this point we should think it hardly safe for a Judge to attach much value to what he may himself observe during a short visit to the locality. The amount of traffic may vary greatly from time to time. A good deal of evidence was given upon this matter, and it is upon the recorded evidence that the Court's decision must rest.

4. It is no doubt a well-recognised general rule, that where powers are given by the Legislature to interfere with private property these powers are to be exercised strictly and exclusively for the purposes and objects for which they were given; and unless it can be shown that such interference is necessary for the furtherance-of those objects it will not be permitted. That is the general rule which is applied, in the case of railway and other companies authorised to take compulsorily the lands of others But in applying this rule, the powers conferred on municipalities and corporations for the purpose of making improvements in large towns or doing other similar acts for the public benefit have always been liberally construed-Galloway v. The Mayor and Commonalty of London L.R. 1 Eng.&Ir.; Ap. 34 . and Quinton v. Corporation of BristoI L.R. 17 Eq. 524 .

5. What, then, are the provisions of Section 195? They empower the Commissioner to effect the removal of 'any projection, encroachment, or obstruction...if the same overhangs or juts into, or in any way projects or encroaches upon any public street as to be an obstruction to the safe and convenient passage along such street.' The learned Judge in the Court below read those words as intended to apply only to such an obstruction as would interfere with the traffic along such street. But the words in their plain and obvious meaning, import 'passage along the whole of the street'; and if the intention of the Legislature had been as contended for the plaintiffs; we should have expected to find it clearly expressed. The question, however, is not clear of authority.

6. In the case of Bagshaw v. Buxton-Local Board of Health L.R. 1 Ch Div., 220 and 224 a question was raised upon precisely similar words in an English statute. In that case the defendants objected to a small enclosed garden in front of the plaintiff's house in which plants and shrubs were growing as 'an obstruction to the safe and convenient passage' along the street. The plaintiff sued to restrain the defendants from removing the alleged obstruction or interfering with the plaintiff's enjoyment of his garden. The street was thirty-six feet wide. Jessel, M.R., said: 'I have no doubt that the wall and shrubs have obstructed, and that they are obstructions; so that the only question remaining is whether they are obstructions to the safe and convenient passage along any street.' The words along a street mean along the whole of the street; and if you take and enclose a portion of the street itself, how can it be said that is not an obstruction to the safe and convenient passage along the street? It appears to me that I should be cutting down this Act of Parliament and making it almost meaningless if I so held, and I am of opinion, therefore that the defendants are entitled, under the section in question, to remove this, being, as it is, in front of the house.'

7. We think, therefore, that upon the proper construction of Section 195, the question to be considered is merely whether the eaves were an obstruction; and as to this it is not denied they are an obstruction to the convenient passage along that part of the street. We do not consider that the fact of the gutter having been covered over after the filing of the suit affects this question. It is the eaves which constitute the obstruction. They, of course, prevent loaded carts from passing as near to the wall of the plaintiffs house as it would be possible for them to do if the eaves were not there, so that the result is the same whether we have regard to the state of things at the date of the filing of the suit or the date of hearing.

8. We must hold that the Commissioner was entitled to have the eaves of the plaintiffs buildings removed, and we reverse the decree with costs.


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