P L D 1970 Lahore 664 (PLP)

In Vine v. Wenham (1915) 84 L J Ch. 913 a cul de sac gave across to the rear of some houses. Though scavenged by the local authority it was held that there was no sufficient evidence of public user. 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 (1874) 9 Q B 552, Mildred v. Weaver (1862) 3 F & F 30=4 L T

225. 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 flimisiest kind and even so is inconclusive as I have pointed out already." The following passage in Rana Ganpat Singh v. Kangra Valley Slate Company (62 P R 1898) is also instructive on the subject:‑ "By the law of England public rights over a highway rest upon a dedication express or presumed from user by the public. The whole is pithily summarized in the following passage in Dart on Vendors and Purchasers, 6th Edition, Volume I, page 411. `A road may be a common highway even, though it is only occasionally used by the public, or is circuitous or does not terminate in a town or in some other public road, and a very, short continuous user of it by the public openly, and as if right is sufficient to raise a presumption of its dedica tion to their use, but the presumption may be rebutted by .evidence of the owner's intention that the public should only ,have a permissive user as, e.g. by his arbitrarily closing the way for one day in each year or by showing that the state of the title was much that a binding dedication was impossible, .but mere non‑user for any number of years will not destroy or ,prevent the public from resuming the right to a public way, though it may be evidence that no such right ever existed. The soil of a road, whether public or private, usque ad medium filum via, is presumed to belong to the adjoining owners . . . . " In Smith's Leading Cases,. Volume II, 9th Edition, page 165, the mode of creation of public highways is thus stated: `Except where this is done by the express enactment of the Legislature, .it derives its existence from a dedication to the public by the owner of the land over which the highway extends of a right of passage over it, and this dedication, though it be not made in express terms as it indeed seldom is, may and will be presumed from an uninterrupted use by the public of the right of way claimed.' In Rugby Charity v. Merry Weather (II Ea., 37 bn), a period of six years' user was held sufficient proof of dedica tion. In Queen v. Pettric, &c., 24 L J R Q B 167 and Powers v. Bathurst, 49 L J Rep. Ch. 294, it was laid down that .an open user as of right by the public raises a presumptive inference of dedication requiring to be rebutted and that the onus of displacing the presumption lies on the person seeking to deny the inference from the public user. In Woodyer v. Hadden :(5 Taunt 12) Chamber, J., said: `No particular time is necessary for evidence of a dedication. If the act of dedication is unequivocal it may take place immediately. For instance, if a man. builds a double row of houses opining into an ancient street at each end making a street and sells or lets the houses that is instantly highway'. The above principles have been held to apply to India, being founded on reason and commonsense and conducive to public convenience. In J. Anderson v. Juggodumba Debi 6 C L R 282, the presumption in regard to dedication from user were held to govern a case from the mofussil in Bengal. In Nihal Chand v. Azmat Ali Khan I L R 7 All. 362 the rule about ownership of land of disused highways was followed. So also .in regard to obstructions of public roads the remedial provision of English law have been held to regulate this right of suit."

8. Coming now to the facts of this case, there is no evidence of any express dedication by anybody. We have, therefore, to see as to whether any implied dedication to public having a sight of way over this lane can be inferred from any long user. I must say that no evidence of any long user has been brought on record and the most that defendant obtained in cross‑ examination from one of the plaintiffs' witnesses Muhammad Hussain (P. W. 1) was that there was no gate or Chowkidar at the entrance point of the lane, and that there was no restriction over entry. This to my mind hardly proves any long user. All it means is that the lane is accessible to public, but whether the: public have been exercising any right of way over this street anal for how long a time and for which purpose have not been established. The burden of proving this matter which formed issue No. 2 in the case was on the defendant, but he has not led any evidence on this point, and it is obvious that factual matter of this nature cannot be left to mere conjectures and surmises. In Vine v. Wenham, a similar situation cropped up and Sargant, J., held as follows:‑ "Coming to the main question‑the right of user of the passage claimed by the defendant

his Lordship stated the history of the passage, and continued: Now, as regards this, claim, it is a remarkable thing that no single witness was called by the defendant to prove any user of the road by any member of the public as such. This is a most unusual circumstance in a case where a public right has been pleaded. It is perhaps almost unique. Further, the difficulties in the way of showing that a cul de sac has been dedicated to the public have often been pointed out, and though in the recent case of Hull Corporation v. North‑Eastern Railway (1914) ente, 329;. (1915) 1 Ch. 456; affirmed, ente, p. 905, I did come to the conclusion that a cul de sac had become a public highway, the case there differed in almost every particular from the present case. Here it seems to me that it would be contrary to plain commonsense to draw the conclusion that the plaintiff Walis-was going beyond the provision of a work required by the: Corporation, and endeavouring to turn this accommodation passage into a general highway. And I may add that in a comparatively recent case, of White v. Grand Hotel, Eastbourne, Lim (1912) (reported) on other points, 82 L J Ch. 57; (1913) 1 Ch. 113, Mr. Justice Joyce declined to find a right of public highway over a back passage much broader and much more generally used than the present passage. In my opinion the claim of the defendant to establish a public right of way over, the passage entirely fails." Relying on the above principle and finding no evidence of public having a right of way over this lane and no instance having been brought on the record in this respect, I am constrained to hold that the defendant has not been able to prove that the lane in question is a public street. Learned counsel for the defendant- respondent cited White v. Cubit ((1930) 1 K B 443), Manuda Mudali and another v. Nallaya Gounden and others (I L R 32 Mad. 527), Rana Ganpat Singh v. Kangra Valley State Company, J. Anderson v. Juggodumba Debi, Kumman and another v. Sujan Sirgh (A I R 1938 Lah. 619) and Mst. Resham and another v. Matu Ram and another (A I R 1934 Lah. 936.), on the point of public streets but apart from the fact that the facts and circumstances of those cases were different, a marked point of difference is that in all those cases, on factual plain, abundant evidence of long user had come on the record which is not present here. At this stage, learned counsel for the defendant referred to Naba and others v. Piara Mal and another (44 P R 1912), where a cul de sac shooting off from a main road was held not to be a common entrance of the owners of the houses in that lane. That case is a decision on what is a "common entrance" from a street. No doubt in that case reference is made to the definition of "street" but that is considered in contradistinction to a common entrance and passage. Moreover, there is no discussion of the kind involved in this case, namely, the point of difference between a place accessible to public on the one hand, and a place over which public have a right of way on the other hand. Again in that case, it was found as a fact that the public have been using the cul de sac, as of right, as a way, for a long time‑a feature which has not been established here. To give detail of the matter, the defendant produced six witnesses in the case and himself made a statement as D. W.

7. D. W. I was Muhammad Sharif. Even though it is a common‑ground that the lane in dispute is a katcha gall, he deposed that in his opinion the gall was a paved one, wbich is nobody's case. He made no state ment that he had seen the public going into or coming out of this street or exercising any right of way over it or using it as a way. D. W. 2 is Nazir Ali, a line‑man of WAPDA. While giving boundaries of the lane in question, he deposed that towards its east was a graveyard, which is not correct because this is not shown in any of the plans brought on the record. He was produced to depose that he was once deputed to set right the electric bulb of the street, but he could not say as to whether the gall was a paved or not. He also made no statement regarding any member of the public having been seen by him using or passing over or exercising any right of way over this gali. D. W. 3 was Ch. Muhammad Akhtar, Light Inspector of Municipal Committee, Gujrat. He also made no statement of any public user. D. W. 4 is Syed Gulzar Hussain, Overseer, who appeared also as D. W.

5. His position is also the same except that he stated that on the application (Exh. D. I), nalis were constructed by the Municipal Committee. He made no statement of any public man having ever been seen by him using this gali as a way. D. W. 6 was Ata Muhammad, a previous tenant of the defendant. He too made no such statement and, lastly, the position of the defendant himself as D. W. 7 is also the same. He uttered not a single word to the effect that he had seen any public man ever using this gall as a "way". In the face of this total vacuum of evidence of public user, it is not justified to give a verdict in favour of the defendant so as to hold that the gali has become a public street by long user.

9. As against the above learned counsel for the defendant referred to Basic Democracies Order 18 of 1959 (hereinafter called the B. D. O.) and stated that the following words have been defined therein as follows :‑ "(a) `Street' is defined in section 3(42) as follows:‑ `Street' includes a street which is not a thoroughfare; (b) `Public street' is defined in section 3(33) as follows:‑ `Public street' means a street maintained by the Government, or by a local council or other local authority;" (c) `way' is define) in section 3(56) as follows:‑ `way' includes a footway, square, Court, alley or passage accessible to public, whether a thoroughfare or not. (d) `Public way' is defined in section 3 (34) as follows:‑ "public way' means a way maintained by the Government, or by a local council or other local authority;" After referring to the above definitions, he then referred to section 3 (2) of the Municipal Administration Ordinance X of 1960, where it is written that, "words and expressions used but not defined in this Ordinance shall, unless the context otherwise requires, have the meaning assigned to them in the Order," (i.e. the B. D. O.). With these premises, learned counsel for the defendant‑respondent submitted that a "street" which is maintained by Government, by a local council or other local authority, is a "public street". He further submits with reference to the above law, that since in this case there is affixed a municipal bulb at the entrance point of the gall and because on each side of the gall there are pakka nalis, which are sewered by the Municipal Committee, and the gali is cleaned by the Municipal sweeper, therefore, the gal! is a public street. I may here refer to certain extracts from Manual of Municipal Administration Law and Practice, Part I (1967 Edition) by Masud‑ul‑Hasan. At pages 436‑37, the learned author, while giving commentary on sections 80 to 82 of the Municipal Administration Ordinance and dealing generally with the subject of streets and public streets, writes under the head, "Object and Scope" at page 436 as follows:‑ "Sections 80, 81 and 82 deal with the important subject of streets. The Municipal Administration Ordinance envisages two types of streets, namely, public streets and streets. Public streets are the streets maintained by the Municipal Committee or any other public authority. Streets not thus maintained are just streets. The provision of public streets is a compulsory function of Municipal Committees. It does not mean that every street in a Municipality should be a public street; the implication is that major streets are to be provided by the Municipal Committee. The Ordinance lays emphasis on the proper maintenance and development of roads. It is envisaged that every municipality should have an over‑all development plan for the development of roads and within the context of such plan there should be an annual road maintenance programme. Such a programme is to form part of the budget. The necessary particulars about such plan are provided for in the Budget Rules." In paragraph 1 at page 437, it is written:‑ "Section 81 provides for streets. No new street is to be laid out except with the sanction of Municipal Committee. While sanctioning the lay‑out of streets, the Municipal Committee can lay down terms and conditions subject to which the streets shall be laid out. Where a street is laid out, but it is not paved, metalled, drained, channelled or lighted, the Municipal Committee may require the owners of property adjoining or abutting on such street to execute the requisite works within the period specified in the: notice. If the requisition is not complied with, the Municipal Committee can have the necessary works executed through its own agency, and recover the cost from the persons concerned as an arrear of tax. The provisions of this section are somewhat controversial. There is a school of thought which considers that as the Municipal Committee receives taxes, all streets should be paved, metalled, drained or otherwise improved at municipal expense. The other side of the case is that most of the streets came into existence when the owners of the sites sold plots at heavy price and reaped considerable profit, and that the persons who have earned such profits should divert a part of them for meeting the cost of development works as a betterment charge. In some cases the persons who have earned the profits and those who are now called upon to pay may be different and in such cases the justification for meeting all the expense may be wanting. The provisions in the law have been kept elastic, so that each case may be considered on merit. The Government of West Pakistan have laid down the policy that ordinarily one‑half of the cost involved should be paid by the municipality as a grant, and one‑half should be realised from the persons to be benefited. The policy of Government is that such works should be executed through Union Committees." In another paragraph at page 437, the learned authority says:‑ "It does not mean that once a street always a street. The law provides for the conversion of a street into a public street. The manner for such conversion has been laid down in the West Pakistan Municipal Committee (Street) Rules, 1962. The basic policy is that when once a street has been paved, drained, etc., at the cost of the persons concerned, the further maintenance of the street is taken over by the Municipal Committee so that the persons concerned are not kept burdened with the upkeep of such street for all times. When the responsibility for the maintenance of a street is taken over by the Committee the street becomes a public street. As the municipalities develop more and more streets will be converted into public streets. This will be a continuous process."

10. Reference may also be made to Rules 7, 8 and 10 of the West Pakistan Municipal Committee (Street) Rules, 1962. These Rules read as follows:‑ Rule

7. Regulation of the payment of street and the execution of other works.--‑(1) If a street, other than a public street is not paved, metalled, drained, channelled or lighted to the satisfaction of the Municipal Committee, the Committee may by a written notice require the person owning buildings and lands abutting on or adjoining such street to execute such works and within may also specify the grant, if any, that will be paid out of the Municipal Committees fund towards the execution of such works and the manner in which such grant shall be paid. (2) The Municipal Committee may with the approval of the Controlling Authority determine the basis and the manner for the payment of grants under sub‑rule (1). (3) If the works are not executed within the period specified in the notice, or if the works executed are not to the satisfaction of the Municipal Committee, the Committee may frame a draft scheme which may among other things specify‑ (a) the works to be executed, along with their estimated cost; (b) the proportion of the cost which shall be met out of the Municipal fund; (c) the proportion of the cost which shall be paid by the persons owning buildings and lands abutting on or adjoining such streets; (d) the names of persons owning buildings and lands abutting on or adjoining such streets, the amount payable by each such person and the manner in which including the instalments, if any, by which such amount is to be paid. (4) Copies of the drafts scheme prepared under sub‑rule (3) shall be served on every person specified in the scheme and the final scheme shall be prepared after taking into consider ation objections and suggestions, if any, presented by such persons within a period of thirty days of such service, or within such further period as the Municipal Committee may specify. (5) When a final scheme has been prepared under sub‑rule (4), the Chairman of the Municipal Committee shall take such, steps as may be necessary to implement the scheme." "Rule

8. Road Maintenance and Development Pro gramme.‑--(1) At the time of the preparation of the budget, the Municipal Committee shall prepare a Road Maintenance and Development Programme for the year to which the budget relates. (2) The Road Maintenance and Development Programme shall specify,‑ (a) the maintenance and development works to be executed with regard to various public streets; (b) the estimated cost of each work; (c) the priorities in which the works shall be executed; (d) the works to be executed under rule 7 with regard to streets other than public streets along with their estimated cost and the amounts likely to be recovered from the persons concerned; (e) such other matters as the Municipal Committee may consider necessary or the Controlling Authority may require." "Rule

10. Conversion of Streets into Public Streets.‑--(1) Where any works for a street other than a public street have been executed, under rule 7, the Municipal Committee, may, and if so required by the majority of the owners of buildings and lands abutting on or adjoining such streets shall, declare such street to be a public street. (2) Where any works for a street other than a public street have been executed under rule 7, but the Municipal Committee considers it expedient that the street be converted into a public street, the Municipal Committee may, with the sanction of the Controlling Authority and with the concurrence of the majority of the owners of buildings and lands abutting or adjoining such street, declare such street to be a public street. (3) When any street is declared as a public street, such street, from the date of such declaration shall vest in the Municipal Committee and the Committee shall be responsible for its maintenance. (4) When any street is declared as a public street, the declaration shall be published in the street concerned in such manner as the Municipal Committee may consider necessary." A perusal of the above literature and rules shows that when a Municipal Committee desires to convert a street into a public street, the procedure laid down in the relevant rules, herein before indicated is to be followed. There has to be published a declaration in the street concerned to the effect that it is declared as a public street. There is no evidence worth the name on the subject nor any light has been thrown as to whether the procedure and formalities indicated in the above rules were over followed. In the absence of any such material, it is not possible to hold that the street had become or been converted into a public street. Learned counsel for the defendant argued that since at the entrance of the lane, a bulb had been affixed by the Municipal Committee, therefore, it was a public street. The contention has no force. As held by the Privy Council in Muhammad Rustam Ali Khan and another v. Municipal Committee of Karnal City, that, "the Municipality have under the Act, the ordinary power of drainage, cleaning and light." Moreover, it is in evidence that there is a private bulb of one owners also in the lane (as per P. W. 6), and the lane, as such, is not wholly lighted by the Municipal Committee. Similarly, the contention that on each side of the lane, there were two nalis, initially constructed by the owners of the houses, but later on constructed by the Municipal Committee on application (Exh. D/1) filed by one Muhammad Din (not produced), is not sufficient to hold the C street in question as a public street. Under various provisions of the Municipal Administration Ordinance, lighting of streets as also providing of sanitary conditions and outlet for the filthy matters and sweeping of the same are the general duties of a Municipal Committee and the performance of the one or the other duty of this kind by itself cannot convert a lane into a public street. In the instant case, we are not concerned with the nature of the two nalis but with the lane itself and in the absence of a positive proof of the kind contemplated in sections 80 to 82 of the Municipal Administration Ordinance, and Rules 7, 8 and 10 of the West Pakistan Municipal Committee (Street) Rules, 1962, it is not safe to hold that the lane in question is a public street or to hold that this street belongs to the Municipal Com mittee, or its property or was pleaded by the defendant in his written‑statement.

11. The sum total of the discussion hereinbefore made is that the lane in question is a blind alley, known in legal terminology as a cul de sac. A cul de sac can become a public street in two ways, namely, (a) either by proving that public have a right of way in it or; (b) by showing that it is being maintained by the Municipal Committee. None of these two things has been established as a fact in the instant case. In this state of affairs, it has obviously to be held that from its very nature and location, it is meant for use of those whose properties exist on both sides of this lane, as also for their visitors etc., in the ordinary course of life.

12. The next point to be seen is as to what relief the plaintiffs in this case are entitled to. It is laid down in rules 7, 8 and 10 ibid that if a Municipal Committee wished to convert a street into a public street; it has to follow a certain procedure and has inter alia to paste an advertisement or a notice in the lane, which shows that the owners of the houses located on the sides of the lane, have a right to represent against the same. If' this right exists against a Municipal Committee, it should exist against a private individual also who wants to use it as such or asserts any other claim or threatens doing of any other acts on or in such lanes. The defendant in this case exactly falls under the category of such a person and an injunction cat justifiably be issued against him to restrain him from doing so. Another thing to be noticed is that at place WW in the site plat (Exh. P. 1), the plaintiffs have constructed their pacca khurlis by erecting walls. This was so asserted in the plaint and the fact that these khurlis were made by the plaintiffs by erecting a small wall, was not denied in the corresponding paragraph of the written statement and all that was pleaded in the reply was that these khurlis etc., were made only recently during the pendency of the; present litigation. This plea was held as not proved and the Courts below gave a concurrent finding of fact that these khurlis were of old duration. The defendant has not shown as to what right he possessed, and under which law, to demolish the said walls and khurlis. The sole stand of the defendant in the case was that the street in question was a public street and belonged to the Municipal Committee. Both these points of fact have not been established; nothing has been brought on record to show that the municipal Committee ever acquired the land of the lane in question for converting it into a public street or otherwise so converted it under the law and Rules hereinbefore quoted. In this set of circumstances, it is not safe to hold that the street was owned by or belonged to the Municipal Committee. In that view of the matter, the defendant has not been able to show as to how is he justified in claiming a right of way in the street or a right to demolish the construction raised by the plaintiffs. So far as the defendant is concerned, even the pleas taken by him would not in law entitle him to take the lane into his own bands and demolish the constructions of the plaintiffs. He can therefore, from all points of view, be restrained by means of an injunction from doing so and I order accordingly. The upshot is that the appeal is accepted. The judgment and decree of the lower appellate Court are set aside and the suit of the plaintiffs is decreed as prayed with costs throughout. A. E./S. A. H. Appeal accepted.