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Emperor Vs. the Provident Investment Co., Ltd. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 140 of 1943
Judge
Reported in(1943)45BOMLR965
AppellantEmperor
RespondentThe Provident Investment Co., Ltd.
Excerpt:
.....public have access to them. 9. in practice the literal application of the natural meaning of the word 'street' is bound to cause a good deal of difficulty. on the other hand, it is necessary in the interests of public health that the municipality should have powers to deal with roads which are lined with houses and are intended to give access to the occupants of those houses, especially in the case of congested localities where chawls are built on private lands with narrow roadways between them, for the use of the poor tenants occupying those chawls. nor can it be stated precisely how long a road should be or how many houses it should have on its sides before it can be a street. the photographs produced in the case show that it looks like a street and is admittedly used as a passage..........this shows that the inclusive definition is not intended to exclude the ordinary meaning of the word 'street.' the dictionary meaning of ' street' is a road in a town or village lined with houses. according to halsbury's laws of england (hailsham edition), vol. xvi, p. 192 :'street' in its ordinary popular sense means a roadway, not necessarily a highway, which has on one side or both sides a more or less continuous and regular row of houses. it is a question of fact whether the houses are sufficiently regular and continuous to constitute the roadway a street.5. a road, without any houses on either side, would not be a street, according to the ordinary conception of that word. but in a vast city like a presidency town there are bound to be several such roads within municipal limits,.....
Judgment:

Lokur, J.

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.'

4. It is, therefore, obvious that the passage is not a 'street' according to the extended meaning given to that word in the inclusive definition in Section 3(w) of the Act, But, as observed by Fry L.J. in Vestry of St. Giles, Camberwell v. Crystal Palace Co. [1892] 2 Q.B. 33, such inclusive definitions are not meant to prevent the word from receiving its ordinary popular sense, but to enable the word to be applied to some things to which it would not, according to the ordinary use of language, apply. In Section 3 itself, which contains numerous interpretation clauses, the Legislature has advisedly used the word 'includes' in some clauses and 'means' in others, and in one clause both 'means' and 'includes' are used. This shows that the inclusive definition is not intended to exclude the ordinary meaning of the word 'street.' The dictionary meaning of ' street' is a road in a town or village lined with houses. According to Halsbury's Laws of England (Hailsham edition), Vol. XVI, p. 192 :

'Street' in its ordinary popular sense means a roadway, not necessarily a highway, which has on one side or both sides a more or less continuous and regular row of houses. It is a question of fact whether the houses are sufficiently regular and continuous to constitute the roadway a street.

5. A road, without any houses on either side, would not be a street, according to the ordinary conception of that word. But in a vast city like a Presidency town there are bound to be several such roads within Municipal limits, and the Legislature thought that they too should be regarded as 'streets' for the purpose of Municipal administration if the public have access to them. This is the purpose which Section 3(w) is intended to serve. Such an inclusive definition in a statute is not intended to exclude the ordinary popular and natural sense of the word 'street', where that would be properly applicable, but to enlarge its meaning so as to make the word, qua that statute, embrace ways and spaces which would not otherwise come within it.

6. The question is whether, tried by this test, the passage in question, which is admittedly a roadway lined with houses on both sides, is a street. It is not necessary that before a road lined with houses can be a street the public must have possessed a right of passage or access over it or must have passed and had access over it uninterruptedly for a period of twenty years. This is clear from Section 302(1)(d) which says :

Every person who intends-

(d) to make or lay out a private street, whether it is intended to allow the public a right of passage or access over such street or not, shall give written notice of his intention to the Commissioner.

This shows that a road can be a 'street', though it is not intended that the public should be allowed a right of passage or access over it. In considering the inclusive definition of 'streets' and 'new streets' in the Public Health Act, 1875 (38 & 39 Vic. c. 55) Lord Selborne L.C. observed in Robinson v. Local Board of Barton-Eccles (1883) 8 App. Cas. 798 (p. 801) :.in the natural and popular sense of the word 'street', or the words 'new street', I should certainly understand a roadway with buildings on each side (it is not necessary to say how far they must, or may be continuous on discontinuous); and by 'new street', a place which before had not that character, but which, by the construction of buildings on each side, or possibly on one side, has acquired it.

7. The same view was taken in Municipal Commissioner of Bombay v. Mathurabai I.L.R. (1906) 30 Bom. 558 . In that case the owner of a large plot of ground abutting on a highway divided the plot into nineteen small plots and sold them to different purchasers. These plots were mapped out as abutting on the sides of parallel roads which were marked as proposed roads. Each of the purchasers of the plots entered into a covenant with the owner to keep open that portion of the proposed road which stood in front of his plot and to prepare so much of the road. One such purchaser, Mathurabai, constructed a building which was in height more than one and a half times the width of the open space on which it abutted, and the question raised was 'whether the vacant space in front of the 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, would constitute a street within the meaning of the Bombay Municipal Act', and it was held that it would. In doing so, Russell J. referred to the observation of Jessel M.R. in Taylor v. Corporation of Oldham (1876) 4 Ch. D. 395, where the word 'street' had to be interpreted in accordance with the interpretation clause contained in the Public Health Act of 1875 in England. Although that clause gives a much wider meaning to the word 'street' than Section 3(w) of the Bombay Act, effect was given to the natural meaning of that word. It is true that the form in which the question was framed makes the answer somewhat misleading, since it reads as if the space in front of Mathurabai's house was held to be a street by itself. Had there not been other spaces in continuation of it on both sides, and lined with houses on their two sides, it would not have been a street, merely because Mathurabai's house abutted on it. The gist of the finding in that case is that the space on which the building abutted being a part of the street, its height could not be allowed to exceed one and a half times the width of that space. However the general principle governing the interpretation of Section 3(w) is correctly laid down there.

8. The case of Kalidas v. The Municipality of Dhandhuka I.L.R. (1882) 6 Bom. 686 does not in any way conflict with this view. There the question really was whether a private 'court,' which was surrounded by houses but to which the public had access, had thereby ceased to be private property and was converted into a 'street' within the meaning of Sections 3 and 17 of the Bombay District Municipal Act (VI of 1873). In that Act there was no definition of a public street and no powers were conferred upon the Municipality to deal with private streets. The Municipality had, therefore, to contend that the passage in question was a public street which, according to Section 17(f), had vested in it. As there was no evidence that the public had a right to use that passage, it was held not to be a public street, as claimed by the Municipality.

9. In practice the literal application of the natural meaning of the word 'street' is bound to cause a good deal of difficulty. It cannot be said that every open space or road which has buildings on one or both of its sides must be regarded as a street within the meaning of the Act. In that case the Municipality will have power to interfere with rights of private ownership, and thereby the owners will be discouraged in leaving open spaces between their buildings for the use and benefit of their tenants. On the other hand, it is necessary in the interests of public health that the municipality should have powers to deal with roads which are lined with houses and are intended to give access to the occupants of those houses, especially in the case of congested localities where chawls are built on private lands with narrow roadways between them, for the use of the poor tenants occupying those chawls. This necessity is vividly depicted by Jessel M.R. in Taylor v. Corporation of Oldham (1876) 4 Ch. D. 395. The pertinent passage is quoted fully in Municipal Commissioner of Bombay v. Mathurabai, and need not be repeated here.

10. In the Bombay District Municipal Act of 1901 and the Bombay Municipal Boroughs Act of 1925, 'street' is defined to mean 'any road, footway, square, court, alley, or passage, accessible whether permanently or temporarily to the public, whether a thoroughfare or not,' and also to include every vacant space specified therein. This is sufficiently definite to enable one to know whether a particular open space is or is not a street. But with regard to Presidency towns, Legislature has deliberately given a wider scope for the interpretation of the word 'street,' but in the absence of a precise statutory definition, it is difficult to lay down a hard and fast rule as to the significant characteristics of a street, so as to be applicable to all cases. Each case must be decided on its own facts, and the fact that an open space has a few houses on its sides is not always sufficient to make it a street for the purposes of the Act. Nor can it be stated precisely how long a road should be or how many houses it should have on its sides before it can be a street.

11. But there is no such difficulty in the present case. The map shows that the road between the two rows of buildings is more than 200 feet in length and 30 feet in width. The photographs produced in the case show that it looks like a street and is admittedly used as a passage for access to the buildings on both the sides. The public, who have to go to those buildings, make use of that passage and the owners themselves have treated it as a street. In 1922 the two owners of the buildings on both the sides had made a joint application to the Municipality that they were making a private street to join the Gowalia Tank Road and the Forjett Street. The Municipality gave its sanction on certain conditions, and although the road was not completely constructed so as to join the Forjett Street, the Municipality has been exercising its powers in respect of that road, treating it as a private street. In 1924 when the predecessors in title of the petitioner asked for permission to construct a balcony, sunshade, weatherframe, etc, the permission was granted under Section 499 of the Act and a fee of Rs. 80 in respect of the projections on the Gowalia Tank Road and Rs. 19-4-10 in respect of those on the private street in question were levied. The Municipality having thus treated the passage as a private street and levied fees, it must be presumed to have been cleaning its surface every day and removing all the sweepings therefrom, as required by Section 365. In view of all these circumstances the passage in question must be held to be a street.

12. It is argued that a passage of private ownership can be a private street only when an intimation to that effect is given to the Municipal Commissioner under Section 302. Normally, whoever intends to make or lay out a new private street ought to give written notice of his intention to the Commissioner. But he cannot be allowed to take advantage of his omission to fulfil that statutory obligation, and claim exemption from the operation of the Act in respect of his road, if it is really a 'street' in the true sense of that term. According to the definition in Section 3(y), every street, which is not a public street, is a private street, whether notice of its construction is given to the Commissioner or not.

13. It is further contended that although the passage in question may be a street, yet Section 308(1)(a) would not in terms apply to it, since that section refers to an obstruction 'caused to the safe or convenient passage of the public along it,' indicating thereby that the street referred to must be one over which the public have a right of way. But although the obstruction required must be in respect of such a street, the other acts referred to in that clause, viz. overhanging, jutting or projecting into, or in any way encroaching upon, any street, are applicable even to streets over which the public have no right of way. The petitioner is said to have made an encroachment upon the street and, therefore, the Commissioner was justified in giving him a notice under Section 308(2). The petitioner, having failed to comply with the requisition in the notice, is rightly convicted.

14. The rule must therefore be discharged.

John Beaumont, Kt., C.J.

15. I agree with the judgment of my learned brother, but in view of the practical importance of this question to the inhabitants of Bombay, I will add a few words of my own.

16. It has been argued that the definition in Section 3(w) of the Bombay Municipal Act is an exhaustive definition, and reliance was placed on a decision of the Privy Council in Dilworth v. Commissioner of Stamps : Dilworth v. Commissioner for Land and Income Tax [1899] A.C. 99, in which it was pointed out that a definition introduced by the word 'includes' may be exhaustive, since the word 'includes' in the context in which it appears may be equivalent to 'means and includes.' But, in my opinion, it is impossible to take that view in this case. In the first place, the next two Sub-sections (x) and (y) are introduced by the word 'means,' and the following Sub-section (yy) is introduced by the words 'means and includes.' It seems to me impossible to suppose that the draftsman, when he used only the word 'includes' in Sub-section (w), intended his definition to be exhaustive. The definition is, I think, merely an enlarging definition, and includes in the term 'street' many places which would not ordinarily be regarded as streets. It is to be noticed that that enlarged definition is much narrower than the inclusive definition in the Public Health Act of 1875 in England, because under the Bombay Act the wider definition is qualified by the words 'over which the public have a right of passage or access...,' but that qualification is absent from the English Act. A second reason against treating the definition in Section 3(w) as exhaustive is the reference in Section 302 to a 'private street over which the public have no right of access.' In my opinion, therefore, we are bound to hold that the definition in Section 3(w) does not exclude the ordinary meaning of ' street,' and that ordinary meaning, to put it loosely, is a roadway with houses on both sides or one side; but a roadway may be a street in the popular sense although the public have no rights over it. It is obvious that a definition of that sort is liable to lead to disputes. Questions may arise as to the nature of the roadway, and of the locality in which it is situated, how far a roadway must be made up in order to constitute a street, how many houses are necessary, and the degree of regularity in the line of houses, and so forth. But in my opinion, all such questions must be dealt with as questions of fact on the evidence adduced in the particular case. That may suggest that we are leaving the way open to future litigation and refusing to give a lead to Courts which have to decide these questions. But I would recall an observation of a distinguished English Judge who said that, whilst he would be hard put to it to define an elephant, he would have no difficulty in recognising an elephant when he saw one. I think a similar observation may be applied to 'street.' However difficult it may be to define a 'street,' there will generally be little difficulty in saying whether a particular place is a street within the ordinary acceptation of the term.

17. I would observe further that in answering this question Courts must consider two aspects of public interest. Where a site or roadway in Bombay is a street in the popular sense of the term, it is certainly very desirable that the Municipality should have all the extensive powers which it possesses under the Municipal Act in relation to streets, But, on the other hand, it is very undesirable that an owner laying out an estate for building should suppose that, if he provides more open space than the minimum required by the law, he is running a risk of that open space being held to be a street, and of his thereby losing a right to deal with his property in the future as he chooses; that he will be losing the right to develop his land on fresh lines if part of it is held to be a street. And my criticisms on Municipal Commissioner of Bombay v. Mathurabai I.L.R. (1906) 30 Bom. 558 first, that the Court did not notice that aspect of the matter and secondly, that the question framed was unduly narrow, and the answer to it is, therefore, misleading. The question, which the Court framed, amending the question actually submitted, was : 'Whether the vacant space in front of Mathurabai's house when, and if, laid out as a means of passage with houses on both sides and when, and it 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.' The Court indicated that that question should be answered in the affirmative. The vacant space in front of Mathurabai's house, which is the only site referred to in the question, could not possibly by itself be a street. What the Court really held was that that piece of open land, connected with other similar pieces in front of other houses, would constitute a street. I think it is misleading to suggest that a piece of land, merely because it is in front of a house, and may have another house on the other side, is a street. I think also that it was unfortunate that the Court referred to the observations of Sir George Jessel in Taylor v. Corporation of Oldham (1876) 4 Ch. D. 395. The Master of the Rolls was there dealing with the wider definition contained in the Public Health Act, and, speaking in 1876, he did not recognise the importance which is attached at the present time to leaving open spaces in urban development.

18. In the present case I feel no difficulty in answering the question. This alleged street was originally laid out as part of an intended thoroughfare, though the extension of the street was subsequently abandoned, and it became a blind alley. But for twenty years it has been used as a passage way between houses on both sides, and is made up as a street. The photographs, which are put in, show that it is used as a parking place for motor cars, and I have no doubt that in the popular sense it is a street. I do not rely on the admissions of past owners, particularly the mortgagee, who was more concerned with the security of his money than with considering the position of the owner of the street; and, moreover, as a mortgagee he would have no power to dedicate the street to the public. In my opinion, however, regarding this question, whether the site in question is a street, as one of fact, as I think it is, the Magistrate arrived at the right conclusion in holding that it is a street.

19. The rule, therefore, will be discharged.

Rajadhyaksha, J.

20. I agree with the judgments just delivered by His Lordship the Chief Justice and Mr. Justice Lokur, and wish to add only a few words.

21. The short point for our consideration is whether the locality in which a compound wall has been partially constructed is a street to which Section 308 of the City of Bombay Municipal Act applies. If it is, then the disobedience by the accused of the notice of the Municipal Commissioner to remove the structure, would constitute an offence under Section 471 of the Act.

22. The word 'street' has been defined in Section 3(w) of the Act. It is an inclusive definition and is intended to bring within the statutory meaning of the word not only a street as ordinarily understood but also other localities which, but for such extended meaning, would not be included in the ordinary meaning of that word. It is, therefore, not necessary in every case that it should be a place over which the public have a right of passage or access or have passed and had access uninterruptedly for a period of twenty years. Those qualifications would be necessary only in those cases where the term 'street' could not ordinarily be applied. This is also clear from Section 302(i)(d) in which it is stated that there may be a private street 'whether it is intended to allow the public a right of passage or access over such a street or not.' In so far therefore as the case of Municipal Commissioner of Bombay v. Mathurabai I.L.R. (1906) 30 Bom. 558 lays down that 'the word 'street' must receive the ordinary common sense interpretation,' it is, if I may say so with respect, correctly decided. In the present case we have a finding of the learned Magistrates that at the date of the notice the public had not acquired any right of passage or access over the obstructed passage. The locality in question would, therefore, be a street if it can be so described within the ordinary meaning of the word. Whether a particular locality comes within the ordinary meaning of the word must depend on the facts of each case, It has been stated in Halsbury's Laws of England (Vol. XVI, p. 192) 'that a street in the popular sense of the word means a roadway which has on one side or both sides more or less continuous and regular row of houses,' There are English cases which have been referred to in the judgment of Mr. Justice Lokur which give support to this definition. Following those cases, the principle was applied in Mathurabai's case to a hypothetical situation contemplated in the question submitted for the opinion of the Court. Whether a particular case would fall within the ordinary conception of the word 'street' must depend on the facts of that case, Merely because an open space happens to have on two sides a few houses would not necessarily make that space a street, without having regard to the purpose for which such space was set apart, and the use to which it has actually been put. In the present case having regard to the circumstances under which the space was originally set apart, the use to which it has been since put, and the fact that there is a long regular passage of about 200 feet, having houses on both sides, the locality in question must, in my opinion, be regarded a 'street' as ordinarily understood, Section 308 does, it is true, refer to 'obstruction to the safe and convenient passage of the public.' But, in my opinion, this does not impose an additional qualification on the word 'street' so far as this section is concerned. The sections from Section 308 onwards refer to both public and private streets and the clause 'obstruct the safe passage or convenient passage of the public' refers only to those streets where such rights exist. I, therefore, agree that the accused was rightly convicted, and that the rule must, therefore, be discharged.


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