1. The question in this Second Appeal is with regard to S. 148 of the Gujarat Municipalities Act and what is meant by 'permanently accessible to the public' and whether the requirements of that section have been fully complied with so as to declare t e private street a public street.
2. The respondents 1 and 2 original plaintiffs had filed Regular Civil Suit No. 279/83 for a declaration that the resolution passed by the defendant-Municipality regarding the declaration of a public street was illegal and without jurisdiction. The land in question bears city survey No. 4-12/B which is situated at Dahod on Jalod Road near S.T.bus-stand.
3. The plaintiffs contended that the suit land exclusively belongs to plaintiffs and defendants 2 to 8 and there was no public right of way and there is no easement right of any person and that the land was not permanently accessible to the public and yet by resolution No. 507 dt. 13-12-191/2, it was proposed to declare the suit land as a public street and thereafter ultimately by resolution No. 28 dt. 274-1973, the municipality had declared it to be a public street.
4. Public street, private street and street are defined in S. 2(22)(23)(25), and they read as under:-
'Public street' means any street-
(a) over which the public have a right of way; or
(b) heretofore levelled, paved, metalled, chanelled, sewered or repaired out of municipal or other public funds; or
(c) which under the provisions of S. 147 or 148 is declared by the municipality to be, or under any other provisions of this Act becomes, a public street;
'private street' means a street which is not a public street.
Section 2(25) :
'street' means any road, footway, square, Court alley or passage, accessible whether permanently or temporarily to the pubic, whether a thoroughfare or not; and includes every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut thereon and if it is used by any persons as a means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not; but does not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid;'
5. Thus, it is clear that any footpath, passage or vacant space is a street and if it is not a public street, it is private street. It is an admitted position that prior to the declaration under S. 148, this land was not a public street. That means that over this land, public had no right of way. It was not maintained out of municipal funds and it was not declared under the provisions of the Municipalities Act to be a public street. Thus, this land was only a street or a private street, but the crucial question which arises in this matter is whether this private street was permanently accessible to the public. The learned Counsel for the respondents have submitted that unless the public have a right to pass and re-pass, it cannot be said that it is permanently accessible to the public. In the alternative, they have submitted that in fact it is not accessible to the public. It is not possible to accept the first submission of the respondents. If the public have a right of way, it is automatically a public street, as defined in S. 2(22), which provides that public street means any street over which the public have a right of way. Therefore, in respect of such a street no declaration under S. 148 is necessary, and no objection by any owner would be of any consequence because by the definition itself, it is a public street. It is only when the public have an access to the land not amounting to a legal right that the question arises under S. 148 of declaring such private street to be a public street.
6. The next question would be whether the suit land has been permanently accessible to the public. It is essentially a question of fact. The learned Counsel for the respondents have submitted that the lower appellate Court has given a finding in their favour and, therefore, in Second Appeal, that finding cannot be disturbed. In part 11 of the judgment, the learned Assistant Judge has discussed this question and it is clear that he has completely gone wrong. First of all, he has proceeded on the basis that what is required to be proved is right of way. As pointed out earlier, there is no question of the public having right of way. If there had been any such right of way, it would have been a public street by its very definition and no declaration under S. 148 would have been necessary. After having gone on wrong line, he has proceeded on the question of burden of proof and has observed that the plaintiffs were not required to prove the allegation which was negative in character. Here, both the sides have led the evidence and tried to prove whether or not, the suit land was permanently accessible to the public. The learned Assistant Judge has discarded the evidence of four material witnesses on utterly untenable grounds. The two municipal officers namely the Chief Officer and the Encroachment Officer who have been examined at Exs. 52 and 64 have been discarded on the ground that they are not the residents of that locality. This ground is utterly untenable. Chief Officer and Encroachment Officer are the persons who would ordinarily know the situation in such cases because it is their ordinary duty. The other two witnesses examined at Exs. 69 and 7t are the residents of that area. However, their evidence is discarded on the ground that they were the panch witnesses to the panchnama Ex. 70. This is equally untenable ground for rejecting their evidence. The teamed' Assistant Judge has further rejected their evidence on the improper ground that proof of easement was required and their evidence was lacking the elements which would constitute an easement or a right of way. Thus, the entire approach of the learned Assistant Judge is erroneous and illegal. He has further observed that merely because the people might use it, it might be by way of permission and licence rather than as of right. It is to be noted that permanent accessibility need not be as of right. In fact, if it is as of rights no declaration is necessary for declaring it to be a public street. The learned Assistant Judge has further observed that it is also to be remembered that it is difficult for the owners to prevent the people from passing through the vast tracks of open land. These findings are illegal because they are neither based on correct legal position nor the evidence of witnesses is properly appreciated.
7. The evidence of the plaintiff is to the effect that the public have no right of way over the suit land and there is a public road on the west to the plot of the plaintiffs. He has further stated that Marwadi colony is on the northern side. He has also deposed that there are two chawls in the said colony and there are 10 families in one chawl and 8 in the other. On the other side of these chawls, there are 10 kacha huts and cabins. The huts on west side are facing east and north side huts are facing on south. There is an open space in between and persons are using this way for coming and going out. There is Vijay Cinema on the north of this plot. There is also S.T.stand and Jhalod Road. Railway station is also near the suit way. He has also denied that this way is a very short way and convenient to the persons of Railway Colony, Marwadi Colony etc. But he has admitted that if one has to go from Railway Station or to S.T.Stand to Freeland ganj i.e. Railway Colony, then it is a longer route then if one may pass through the suit way or from the land nearby.
8. Chief Officer, Mr. Dani has deposed that the suit land was a private street and the persons used to pass through it because it is being used as a street.
9. Another witness Mr. Patel, is Encroachment Officer of the municipality. He has seen the disputed place and has stated that there are chawls and huts in the land of the plaintiffs and chawls and huts are facing each other and there is a distance of about 25 feet between the chawls and huts. He has also stated that there is a Marwadi colony and houses of other persons nearby. There are 400 to 500 persons staying in the Marwadi colony. All these persons are using the suit way for going to S.T.Stand, Railway Station and Vijay Talkies and to go on Jhalod Road. The witness, Ex. 69, Khuman Bachu is a resident of Marwadi Chawl and he has stated that he has been using the suit way since his childhood and there are about 100 to 150 houses in Marwadi Chawl and all these persons have been using this way. The panchanama to this effect has been made by Chandulal P. Patel, the Encroachment Officer and he has signed the same. This panchanama is at Ex. 70. He has also stated that persons of Marwadi Colony have been using this way, From all this evidence, it is clear that the suit land has been used by the public since long and, therefore, it has been accessible to the public since long and this shows that the land is permanently accessible to the public. The learned trial Judge has also given a finding that the people have been using the said land since long.
10. Next, the learned counsel for the respondents have submitted that the requirements of S. 148 have not been complied with. No notice was given to the owners of the suit land as required by that section. No hearing was given and the plaintiffs had in fact objected within one month to the municipality and, therefore, the municipality could not make declaration under S. 148.
11. Section 148 does not require an individual notice to each owner. It merely requires notice to be affixed in the private, street, which is permanently accessible to the public, giving intimation of its intention to declare the same as a public street. Such a notice was in fact affixed accordingly and the plaintiffs also objected to the same within one month. Therefore, these requirements have been duly complied with.
12. Now, the question is whether the objection of the plaintiffs can be said to be the objection of the owner of such a street or P greater part thereof.
13. To the public notice dt. 28-12-1972 regarding intention to declare a public street along with a plan showing the actual and exact location of the proposed public street, the plaintiff had filed an objection dt.27th Jan. 1973, Ex.38, within one month. In that objection he had stated that there were other owners of the land and individual notices should have been served to each one of them and since they were not so served, the Municipality cannot take action under S. 148. They cannot be treated as objections on behalf of all the owners. Ex. 38 is specifically against the public notice dt. 28-12-1972. In another letter Ex. 63 also it has been reiterated by the plaintiff that there are other owners and persons interested in the land and without notice to them the roceedings would be one null and void. In the statutory notice (Ex. 37) also it has been stated that though the notice was being given by the plaintiffs only if the other owners Kalidas Nanalal and Manmohan Nanalal become available, they might become plaintiff. However, the fact remains that the other owners did not file any objection within one month or at any time they did not join in the statutory notice they did not join as plaintiffs; they did not appear in the suit even though they were made defendants and they remained ex parte though served. In the light of these facts, it is clear that the objections were by Navinchandra Nanalal only and the other brothers Kalidas, Manmohan and Maheshchandra, sons of Nanalal Tribhovandas and Kamlaben wd/o. Nanalal Tribhovandas and three daughters oil Nanatal Tribhovandas have not objected to the public notice of the intention to declare the public street. It is the case of the plaintiff that the suit property had come to the share of his father Nanalal and on the death of his father the plaintiff and defendants 2 to 8 had become owners thereof. The father of the plaintiff Nanalal Tribhovandas has expired on 4th November 1960 leaving the plaintiff and defendants 2 to 8 as his hers and since then the plaintiff and defendants 2 to 8 have become owners of the suit property. The plaintiff has never claimed to represent all of them. He is not the eldest brother; he is not claiming to be the Karta of the H.U.F.; in fact, no H.U.F. is alleged and naturally he could not be the Karta of such family there being elder brothers in the family, The two plaintiffs would represent the two shares as against at least four shares of three brothers and mother apart from the shares of three daughters. Thus the objection of the plaintiff cannot be said to be the objection of the owners of the greater part of the street. Thus owners of the greater part of the street not having objected at all, much less within one month, there was no legal impediment in the way of the municipality in proceeding to pass the impugned resolution Ex. 36 dt. 27th April 1973 declaring the streel to be a public street. Therefore, the contention of the plaintiffs that in view of their objections within one month the municipality could not have proceeded to declare the public street, has to be rejected.
14. The learned counsel for the respondents plaintiffs and also other respondents supporting them have also submitted that in view of S. S3 of t()e Bombay Town Planning Act, 1954 all rights in the original plots which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by the Town Planning Officer, on the day on which the final scheme comes into force. This is entirely a new point raised for the first time in the Second Appeal. It has not been shown that a final scheme has come into force, but it was sought to be argued on the basis of a town planning map produced in the proceedings at Ex. 40. The learned counsel for the municipality however has submitted that the final scheme has come into force by a gazetted notification in 1978 only and therefore, in 19713 there was no question of this section being attracted. Therefore, this argument of the plaintiff does not, survive. Even otherwise that argument does not help them because on coming into force of the final scheme all rights in the original plots would be extinguished. That pre-supposes the existence of rights. In the present case, the public had no right of way and, therefore, there was no question of the town planning officer settling such right or s4ch right being extinguished by operation of law. The public had mere access and user over a long, period of time but it was a short of public right of way. If it was a public right of way as pointed' out, it would be automatically a public street and it is precisely because of absence of such right that resort had to be taken to S. 148.
15. In view of aforesaid discussion, none of the contentions of the plaintiff succeeds. The learned Judge of the lower appellate Court was clearly in error in allowing the appeal and decreeing the suit. That judgment and decree have to be reversed arid the judgment and decree of the trial Court dismissing the suit of the plaintiff are restored.
16. In the result, the Second Appeal is allowed and the suit of the plaintiff is dismissed. However, the parties shall bear their own costs all throughout.
17. Appeal allowed.