1. This was a rule to set aside an order under Section 364 (1), Calcutta Municipal Act, directing the Corporation of Calcutta to demolish a certain masonry platform at the expense of the petitioners.
2. The proceedings were started on 3rd October 1929, for failing to comply with a notice under Section 299 (1), which was served on 26th February 1927, to remove a platform forming part of a building situate at No. 76, Hari Ghose Street and alleged to be causing an obstruction in a public passage.
3. It was admitted that the platform was in existence in January 1924, and the first contention of the petitioners is that the order is invalid, because the work had been done more than five years before the institution of proceedings. This contention is based upon the argument that Section 364 (2) provides that the provisions of Section 363, Sub-section (2), shall apply, mutatis mutandis, and that this subsection provides that no proceedings shall be instituted in respect of any work which has been done more than rive years before the institution of proceedings.
4. In our opinion this contention is unsound; clearly it cannot be applied to cases falling under Section 364, Sub-sections (1), (3), (5) and other sub-sections.
5. Chapter 23 of the Act deals with the demolition, alteration . and stopping of unlawful work. Under the provisions of Section 363 the work is unlawful from the] beginning, and proceedings must be taken within five years of erection. But under Section 364 the illegality begins only upon the expiry of the notices mentioned therein, and proceedings must be taken within five years of such expiry. Section 363 (2) therefore is applied to Section 364, mutatis mutandis, namely, by substituting for 'any work which has been done,' the words ' any non-compliance with a. notice which expired.'
6. The word ' proceedings ' mean's proceedings before a Magistrate, and does not contemplate proceedings before a committee of the Corporation, which precede the application to a Magistrate.
7. Secondly the petitioners contend that there was no evidence before the Magistrate that the passage in question was a public street within the meaning of Section 299(1).
8. Section 3 (57) provides that ' public street ' means any street, road, lane, gulley, alley, passage, pathway, square or Court, whether a thoroughfare or not, over which the public have a right of way.
9. The petitioners tendered certain documents. Ex. I, dated 1861, is a deed of amicable partition in the Bengali language. The parties agreed that for a beneficial use of the plots divided, they would leave a passage 6 feet by 115 feet which they referred to as 'sadharaner rasta.'
Exhibit N (1863) is a deed of conveyance. The passage is called sadharaner rasta ' in the recital, but ' ejmali rasta ' or common passage in the operative part of the deed. The plot conveyed was sold along with rights in the said common passage.
Exhibit 26 (1867) is a deed of conveyance in which the rights to the entire passage are mentioned as being sold with the plot conveyed.
Exhibit H (1894) and Ex. Q (1909) are conveyances of houses built on the plots and mention the common passage.
Exhibit K (1915) is a compromise decree in which the passage is referred to as ' sadharaner rasta of Borat Babus.'
Exhibit G (1915) and Ex. R (1928) are conveyances in which the passage is mentioned as a common passage.
Exhibit E (1917) and Ex. O (1921) are conveyances in which it is mentioned as a private lane.
10. There seems to have been a subsequent partition of land in 1887 whereby a further strip of land two feet wide was added to the existing passage.
11. Under the passage are drains and water-pipes belonging to the adjoining houses and a covered sewer drain runs down the middle, which none of the adjoining owners are anxious to claim or to maintain.
12. The Corporation rely, upon the meaning of the term ' sadharaner ' as being equivalent to ' public,' on certain Government survey maps, on the presence of kerb-stones at the mouth of the passage, and on the alleged fact that they conserve it, to establish their claim that it is a public passage.
13. The Government survey maps are wholly inconclusive on the point. They prove nothing definite. The fact of conservancy is denied and evidence was called by the petitioners to show that small payments were made by residents to the Corporation coolies for cleaning the passage. In any case the fact is inconclusive because the Corporation admit that as a matter of law and practice all streets both private and public including bustee streets are conserved and swept by them. The passage is not lighted or paved or drained by the Corporation,
14. It is a blind alley leading to nowhere except the houses abutting upon it and there is no evidence that anyone uses it except persons having business thereat. Omitting for a moment the word 'sadharaner' 'all the documents support the claim that this is a private passage common to the premises abutting thereon.
15. The word 'sadharaner' is used in the documents as having the same moaning as and being interchangeable with the words 'ejmali' and 'common.' It is admitted that 'ejmali' is equivalent to 'common.' It is admitted that rights in the passage were conveyed with the adjoining plots, but it is contended that these were only 'rights of way' such a conveyance is inconsistent with the passage being public because rights in a public passage cannot be the subject of a private conveyance. In one document the term 'sadharaner rasta of Borat Babus' is used which is a contradiction in terms if 'sadharaner' is to be translated as meaning 'public.'
16. In fact I am at a loss to understand from what source the Corporation derives its interpretation of the word. In Wilson's Glossary of Judicial and Revenue terms 'sadharaner' is stated to mean 'that which is common as a common property, possessions in common.' This was published in 1855 six years before the deed of 1861 and there is no suggestion in that definition that the word means 'public' or anything approximating to it. This interpretation is in agreement with the contention of the petitioners.
17. But apart from words and terms the origin of the passage is not and cannot be disputed. The dead of 1861 describes how it was created by three cosharers in a partition for the beneficial use of the plots to be allotted.
18. Before private land can become a public street or passage it must be made so by statute or be dedicated specifically by the owner to the use of the public or there must be circumstances from which such dedication can be presumed. There is no suggestion of dedication in any of the documents; on the contrary these documents are in terms inconsistent with such dedication.
19. Dedication may be inferred from user by the public but it is difficult if not impossible to establish a public right of way over a cul de sac by evidence of user alone without proof that public money has been spent upon it: Bourke v. Davis  44 Ch. D. 110 at p. 122.
20. A public highway must prima facie lead from one public place to another. A cul de sac may be a public highway but its dedication will not be presumed from mere public user without evidence of expenditure on the place in dispute for repairs, lighting or other matters by the public authority. Attorney-General v. Antrobus  2 Ch. D. 188, Whitehouse v. Hugh  1 Ch. D. 253 affirmed 2 Ch. D 283.
21. In Kingston-upon-Hull Corporation v. North-Eastern Railway Company  1 Ch. D. 31 there had been nearly 50 years unrestricted liberty of user by the public of a 20 feet road which was a cul de sac. The owners had put a drain down the middle into which the drain of the adjoining houses ran and which drained into the public sewer at the end of the road. Gullies and pipes were constructed which conveyed the surface water into the public sewer. Yet it was held that dedication could not be inferred from such user in the absence of evidence of repair at the public expense.
22. In Vine v. Wenham  1 Ch. D. 31 a cul de sac gave access to the rear of some houses. Though scavenged by the local authority it was held that there was not sufficient evidence of public user.
23. In the case of a private or occupation road or passage which individuals are already entitled to use very strong evidence of public user is necessary; in fact evidence alone of user by other persons is usually of little value: R. v. Bradfield  9 Q. B. 552 Mildred v. Weaver  3 F & F 30.
24. In the present case there is no evidence of public user of this blind alley and it is difficult to imagine that there could be. The evidence of public expenditure in conserving it is of the flimsiest kind and even so is inconclusive as I have pointed out already. The evidence about the kerb-stones across the opening seems more to confirm the private character of the passage than the reverse.
25. In such circumstances and in the light of the decided cases it must be obvious that dedication cannot be inferred and specific dedication has not been suggested seriously.
26. For these reasons the rule must be made absolute and the order must be set aside.
S.K. Ghose, J.
27. I agree.