P (PLP)

Muhammad Amin Khan, for Respondent No. 1. JUDGMENT.‑

The plaintiff, Khwaja Haji Ahmad, filed a suit against the Municipal Committee of Jhelum and Chaudari Haji Ahmad, for a declaration that the committee had exceeded its power in allowing Chaudhri Haji Ahmad, defendant, to erect a wooden shop on a certain part of the Railway Road, so as to obstruct the view of a building called "Khwaja Market," belonging to the plaintiff, and causing inconvenience to persons seeking access to the aforesaid building. The two lower Courts held that the structure in question did not cause any obstruction to the plaintiff's building and dismissed the suit. The structure in question is shown in plan Exhibit P. A. in pink colour as ABCD. To its west is a street 20 feet in width, separating it from the gate of Khwaja Market. On the north and the east is the Railway Road. To the south is a block of platforms in front of what has been described in the plan as a " block of shops," triangular in shape, the northern angle of the triangle meeting the south‑western corner of ABCD. The contention of the plaintiff in the lower Appellate Court appears to have been (1) that enough room was not left for carts to turn in and turn out as they had to pass over several drains and (2) that the view of Khwaja Market was obstructed. As regards the first point, the learned District judge found the objection devoid of force, and rightly, it seems to me, for. a cart would have to pass over two or three drains before it passes into the market, whether the wooden structure in question exists or ‑not. It is true, that vehicles coming from the south would have to do another 10 feet before they turn to the left, but this cannot be regarded as a very formidable obstruction. As regards the obstruction to the view, tire learned District Judge came to the following conclusion :‑

"The fact appears to be that the plaintiff is aggrieved by the construction in dispute because is, shuts the view of the road across the lane in front of his 'market from its main gate and perhaps also from one or two shops that adjoin the gate towards its south. Obstruction of the view according to A. I. R. 1934 Lab. 986 (1) was not considered to con stitute any nuisance which could be made the basis of a suit like the present one. Obstruction of the view in A. I. R. 1939 Lab. 44 by 'stalls like that in dispute was not held to entitle the plaintiff to prevent a committee from leasing out the site under them, specially when the same was at, some distance from the plaintiff's building." The question here appears to be mainly one of the inter pretation of clause (g) of section 169 of the Municipal Act. Clause (g), it should be stated here, was added by the amending Act of 1933 and has not, therefore, been considered in the rulings which dealt with the section before its amendment. It is to the following‑effect :‑ "The committee, subject to the provisions of any rule prescribing the conditions on which property vesting in the committee may be transferred, may lease, sell or otherwise dispose of any land vesting in and used by the committee for a public street and no longer required therefore

" Public streets vest in the committee by section 56 of the Act, and, as the position in the Courts below was that the structure in dispute was regarded as a part of the Railway Road, it is to be seen what powers the committee possesses in respect of the site in dispute. According to clause (g) of section 169, the committee may lease a site which was used for a public street but which is no longer required for public street. A prerequisite of the power to lease, therefore, is that it should no longer be required for a street, and it is clear that a decision as to this matter, namely, whether the site in question is or is not required for use as public street, cannot be taken by the committee in an arbitrary manner ; see Joint Hindu Family Firm known as Lala Kasturi Lal‑Sant Lal v. Municipal Committee, Jagraon (A. I. R. 1939 Lab. 199). It is not denied that before this structure carne into being, the site in question was used by carts and men, and. considering that it lies right in front of the entrance to Khwaja Market, it was the shortest means of access to that market from the Railway Road. It cannot therefore, be argued with any reason that a particular site is not longer required for a public street, merely because the public or any member of the public will not be put to any particular inconvenience by effecting a slight detour. In Municipal Committee, Hafizabad v. Bhola Path (A. I. R. 1939 Lah. 44), upon which the learned District judge has relied, the plaintiff's grievance appeared to be not that the committee had obstructed the approach to his building but that, while previously he had a very big square measuring 33 marlas in front of his building, it was reduced, as a result of a lease by the committee, to 16 marlas. It was observed by the learned judge in that case, relying on a remark in Municipal Committee, Delhi v. Muhammad Ibrahim (16 Lah. 517), that "so long as a suitable road is provided by the Municipal Committee, it can close any public street permanently. If the site in dispute was a part of a public street, the Municipal Committee is entitled to close it provided it gives the public a suitable road. In the present case the committee has provided a road for the public 22 feet in width which is almost con tiguous to the building of the plaintiff on one side and to the site in dispute on the other." It is evident that the learned judge was not deciding the case with reference to clause (g) of section 169, but that he had in mind clause (d) which rives power to the committee to close any public street and which was, also the clause with which the learned Judges were dealing in Municipal Committee, Delhi v. Muhammad, Ibrahim. Further, it appears from the reasoning of the learned edge that, although the site in question was at one time recorded in the revenue records as part of a public street, it was no longer regarded as such. In Chander Bhan v. Municipal Committee, Rewari (A. I. R. 1934 Lab 986 (1) ), another case on which the learned District judge relied, the suit was by certain shop‑keepers of Rewari to restrain the Municipal Committee from leasing portions of the public street to hawkers for selling their goods. The contention of the plaintiffs `were that the view from their shops had been obstructed. The learned judge hearing that case, held that this did not appear to hire to constitute any nuisance which could .be made the basis for claiming relief in the circumstances of the case. It is clear that this is a case which deals merely with only a part of the contention raised in the present case and not an important part of that contention. It also seems to me that the learned judge in that case did not devote his attention particularly to the language of clause (g), with a view to considering whether the site that the committee was leasing, was no longer required for a public street. It was held in Municipal Committee, Delhi v. Muhammad Ibrahim (16 Lah 517) that in the case of a highway the public are entitled to the use of the entire width of it. This view was expressed in relation to a case which was decided by the trial Court before the amendment' of section 169, and it should, therefore, be held that the view in question is subject only to the consideration that the committee may lease or sell a part of the land belonging to a public street if it is no longer required for that purpose. In the present case, it is clear to me that persons going to the Khwaja Market were using it as a direct approach to the entrance, and for that reason I would hold that the committee has exceeded its powers given to it tinder clause (g) of section

169. I would accept the appeal but leave the parties to bear their own costs throughout. K. M. A. Appeal accepted.