1. The learned Additional Sessions Judge at Muzaffarnagar has made a reference that a sentence of fine passed under the Municipalities Act for breach of a bye-law should be set aside. The bye-law is to the following effect:
No person shall build, keep a stall or other wise interfere with or encroach upon any land which is the property of His Majesty or of the board, or which is under the control of the board, unless permission to this effect has been duly granted by order on behalf of His Majesty or the Board, and no person shall continue to do so after such permission has ceased to be in force or has been withdrawn.
2. The fact is that the accused person Sohan Lal had constructed certain projections (chhajjas and todas) over some land which was claimed by the Municipal Board as being part of a public street. It is admitted that this land was the property of a private owner Bishambhar Das. At one time the Municipality made an attempt to buy this land and afterwards to acquire it under the Land Acquisition Act, but they did not succeed in entering into a private treaty with the owner and they withdrew the proceedings under the Land Acquisition Act. The Municipality however proceeded to make a paved road with drains on each side of it which encroached upon part of the land of Bishambhar Das and over which Sohan Lal has made the projections to which I have referred. The Magistrate fined Sohan Lal a sum of Rs. 25. The learned Judge has pointed out that the road or that part of it which is on the land of Bishambhar Das cannot properly be described as a public street or as lawfully under the control of the board. As he very rightly says, you cannot have a public street unless you have a street. The definition of a public street is a street to which certain further conditions apply. A street means a road, bridge, etc., over which the public or any portion of the public has a right to pass. It is evident that there can be no public street over any land over which there is no public right of way.
3. It is not denied that the land in question is the private property of Bishambhar Das and it is not contended that it was ever dedicated by Bishambhar Das to public purposes. It is also clear that this land has not been used by the public for more than three or four years and user over that period certainly could not create a public right of way. The principles underlying these matters are set forth in Sajjad Ali v. Municipal Committee of Kurnal City 1920 18 ALJ 466. I agree with the learned Sessions Judge that the land over which Sohan Lal built his projections was not part of a public street. The bye-law certainly refers to land under the control of the Board and it might perhaps be suggested that although this land is not public property, it is still in fact under the control of the Board. I think however that the control of the board means lawful control under the provisions of Section 116, Municipalities Act. It could never have been the intention that the Board could commit a trespass and then create a bye-law which would prevent the person trespassed upon from exercising his rights. I agree that the conviction was illegal and I therefore acquit Sohan Lal and set aside the sentence of fine passed upon him. If the money or any part of it has been paid it shall be refunded.