M/S. GOBIND PERSHAD JAGDISH PERSHADversusNEW DELHI MUNICIPAL COMMITTEE

                M/S. GOBIND PERSHAD JAGDISH PERSHAD                                    A
                                  v.
                   NEW DELHI MUNICIPAL COMMITTEE

                                   JULY 14, 1993

      [KULDIP SINGH, V. RAMASWAMI AND K. RAMASWAMY, JJ.]                               B

          Punjab Municipal Act, 1911-Section 3(13)(a) and 17(4)-''Street'L
    Municipal Committee declaring verandahs in front of shops as 'public
    streets'-Validity of

           Words & Phrases-"Streets" and ''Public Streets''-c-Meaning in the con-
                                                                                       c
    text of Punjab Municipal Act, 1911, Sections 3(13)(a) and 17(4).

          The appellant-plaintiff omied a shop premises with a verandah in
    front adjoining the verandahs of other shops in row. This made a con-
    tinuous passage for the convenience of customers, and was used for                 D
    passing and repassing by tbe members of the public. The Respondent•
    Committee by its resolntions decided, in the public interest and public
    safety, to declare all the. Verandahs in front of the shops in that area as
    'pnblic streets' under s.17(4) of the Punjab Municipal Act.

          The appellant challenged the action of the Respondent-Committee              E
    by way of a civil suit. Since the. suit was dismissed, he preferred an appeal
    before the Senior Subordinate Judge, but was not snccessful. His second
    appeal was dismissed by a Single Judge of High Court and the Letters
    Patent appeal before the Division Bench of the High Court also came to
    be dismissed, against which the appellant preferred the present appeal.            F
    The appellant contended that the Verandah, being his private property,
    could not be declared a 'public streets' and in any case he could not be
    deprived of his property witho11t payment of compensation.

-         Dismissing the appeal, this Court
                                                                                       G
           HELD: 1.1. The verandah in dispute is a "street". It has been declared
    as a 'public street" for the better enjoyment of the public-right in the said
    street. When a 'street" is declared as 'public street' the omier of the property
    comprising the said "street'1, has no right to claim compensation. [244-A]

          1.2. There is no ground to differ with the concurrent findings of the        H
                                        237
    238                    SUPREME COURT REPORTS (1993] SUPP. l S.C.R.

A courts below and take a view that the appellant has dedicated the Veran·
  dah in dispute to the public use. It is being used for passing and repassing
  by the public at large and as such is a "street" in terms of section 3(13)(a)
  of the Punjab Municipal Act, 1911. The appellant has, thus, surrendered
  his rights in the property for the benefit of the public. The user of the
B property is and always shall be with the public. Any space, passage,
  verandah, alley, road or footway dedicated to public by the owner for
  passing and repassing, partakes the character of a "street" and no longer
  remains under the control of the owner. The owner has no right at all times
  to prevent the pnblic from using the same. When the owner of the property
  has, by his own volition permitted his property to he converted into a
C "street", then he has no right to claim any compensation when the same
  property is made a "public street" under section 17(4) of the Act. The
  "streets" are meant for public use. It is necessary that "streets" which are
  being used by the public are frequently repaired and are also saved from
  public abuse. It is common knowledge that in the absence of any regulatory
D control, the hawkers and squatters are likely to occu1iy the "streets" thereby
  creating nuisance for the public. In a situation like this it is necessary for
  the Committee to step in and exercise its powers under section 17 (4) of the
  Act. The Committee exercises regulatory control and is responsible for the
  repair and upkeep of the "public streets". (243-E-H; 244-A)

E         1.3. No interference is called for in respect of the concurrent finding
    of fact that notices prescribed nnder section 17(4) of the Act were pnt up
    in the verandahs. (244-B]

            Halsbury's laws of England, 3rd Edition, Vol. 19 p.49, referred to.

F           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4135 of
    1984.

         From the Judgment and Order dated 12.3.1982 of the Delhi High
    Court in L.P.A. No. 4 of 1976.

G           H.K. Puri for the Appellant.

            R.K. Maheshwari and Vineet Maheswari for the Respondent.

            The Judgment of the Court was delivered by

H           KULDIP SINGH, J. The short question for consideration is whether
    GOBIND PERSHAD JAGDISH PERSHAD v. N.D.M.C. (KULDIP SINGH, J.J          239

the New Delhi Municipal Committee (the Committee) was justified in A
declaring the verandah in front of the shop, owned by the appellant, in the
Connaught Circus, New Delhi, as "public street" Qnder section 171(4) of
the Punjab Municipal Act, 1911 (the Act). The trial court .answered the
question in the affirmative and dismissed the suit filed by the appellant-
plaintiff. The appeal against the said order was dismissed by the Senior B
Subordinate Judge on February 13, 1967. The second appeal was also
dismissed by a learned single Judge 9f the Delhi High Court. Finally, the
letters patent appeal preferred by the appellant was dismissed by the
Division Bench of the High Court on March 12, 1992. This appeal by way
of special leave is against the judgment of the Division Bench of the High
Court.                                                                      C
      The appellant-plaintiff obtained a perpetual lease, dated February
20, 1940, from the Governor-General in Council, in respect of plot no.2, in
block 'H', Connaught Circus, New Delhi. The appellant constructed the
building in accordance with the sanctioned plan. The building has a veran-        D
dah in front of it measuring 95.33xl 7 feet. The verandah adjoins t_he
verandahs of other shops in the Connaught Circus thereby making a
continuous passage for the convenience of the customers, These verandahs
have always been used for passing and repassing by th6 members of the
public. The appellant claims that the verandah, being, jts private property,
could not be declared a "public street" under the Pict. In any case the           E
appellant cannot be deprived of its property without payment of compen-
sation.

       Section 171 of the Act was extended to the New Delhi area by the
notification dated July 31, 1958. The Committee by a Resolution dated July        F
18, 1959, decided, in the public interest and public safety, to declare all the
verandahs in front of the shops in Connaught Place and Conn~ughl Circus
as "public streets" under the Act. ;I'hereafter, by another Resolutidii dated
September 30, 1958, the Committee resolved to follow the procedure under
section 171(4) of the Act and that the verandahs be declared as "public
streets". The appellant challenged the action of the Committee by way of          G
civil suit. As mentioned above, the appellant has lost from all the courts
below.

     Th.e action of the Committee was challenged before the Division
Bench of the High Court on the following grounds:-                                H
    240                    SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A                1. Section 171(4) of the Act was confiscatory and, as such,
             violative of Article 31 of the Constitution of India as it stood before
             the Constitution (Forty-Fourth Amendment) Act, 1978.

               2. That the verandah in dispute was not a "street" as defined
            under Section 3(13)(a) of the Act. According to the appellant only
B           a "street" can be declared a "public street" under the Act. The
            verandah being a private property of the appellant it could neither
                              11     11
            be treated as a stre~t nor declared as 11 public street" under the
            Act.

C                3. That the mandatory notice as required under section 171(4)
             of the Act was not affJXed in the "street" and, as such, the impugned
             resolution was passed without following the procedure laid down
             under the law.

          While dealing with the first point, the High Court proceeded on the
D   assumption that the appellant was deprived of its property and also that
    the appellant could invoke the protection of Article 31 of the Constitution
    of India as the said article was in Part III of the Constitution at the relevant
    time. The High Court, however, came to the conclusion that the Act was
    an "existing law" under Article 31(5)(a) of the Constitution and as such was
E   immune from the attack on the ground of Article 31(2) of the Constitution.
    The High Court, therefore, rejected the argument on the following reason-
    ing:

                 "We, therefore, hold that Section 171(4) even if it amounts to
             a deprivation of property of the plaintiffs is an 'existing· law' and
F            is, therefore, saved from the attack of unconstitutionality. The
             declaration of the plaintiffs' verandah in Connaught Circus as
             'Public Sqeet'-is not void on this ground. We uphold the validity
             of Sec. 17l(4) and the Notification dt. June 3, 1958."

           We are of the view that the High Court judgment on the first point
G is only of academic interest. The point does not arise on the facts of this
    case and as such we do not wish to go into the merits of the controversy
    arising from the first point.

          The-crucial question for determination is whether the verandah in
H   dispute was a "street" in terms of section 3(13)(a) of the Act. Once it is
    GOBIND PERSHAD JAGDISH PERSHAD '· N.D.M.C. [KULDIP SINGH, J.)           241


held to be a "street", then the right of public to use the same is irreversible.   A
      Sections 3(13)(a) and 171(4) of the Act are reproduced hereunder: -

             "3(13)(a) "street", shall mean any road, footway, square court,
         alley, or passage, accessible, whether permanently or temporarily
         to the public, and whether a thoroughfare or not; and shall include       B
         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 but thereon, and if it is
         used by any person as a means of access to or from any public
         place or thoroughfare, whether such persons be occupiers of such
         buildings or not, but shall not include any part of such space which
                                                                                   c
         the occupier of any such building has a right at all hours to prevent
         all other persons, from using as aforesaid;

             and shall include .also the drains or gutters therein, or on either
         side, and the land, whether covered or not\ by any pavement, D
         verandah or other erection, up to the boundary of any abutting
         property not accessible to the public."

            "171(4). A committee may at any time, by notice fixed up in
        any street or part thereof not maintainable by the committee give
        intimation of their intention to declare the same a public street,         E
        and unless within one month next after such notice has been so
        put up, the owner or any one of several ovwners of such street or
        part of a street lodge objection thereto at the Municipal office, the
        Municipal Committee may, by notice in writing, put up in such
        street, or such par~, declare the same to be public street vested in       F
        the committee. 11

      We agree with the learned counsel for the appellant that before a
space can be held to be a "street" under the Act, there must be a dedication
by the owner to the public. It is contended that there is no evidence on the
record to prove animus dedicandi.                                                  G
     It would be useful to refer to the following paragraph from
Halsbury's Laws of England, 3rd Edition, vol.19 at page 49: -

            "The fact that a way has been used by the public so long and
         in such a manner that the owner of the land, whoever he l},'as, must      H
                                 /
    242                       SUPREME COURT REPORTS 11993] SUPP. 1 S.C.R.

A           have been aware that the public believed that the way had been
            dedicated, and has taken no steps to disabuse them of that belief,
            is evidence (but no conclusive evidence) from which a Court or
            Jury may infer a dedication by the owner."

          The trial court and the lower appellate court on appreciation of the
B evidence came to the conclusion that the verandah was a passage accessible
    to the public. The courts below found as a fact that the verandah was being
    used for about two decades by the public for passing and repassing . It was
    held that the verandah was a "street" in terms of section 3(13)(a) of the
    Act. The Division Bench of the High Court upheld the findings of the
C   courts below on the following reasoning : -

                "It has been held in this case by all the three courts that the
                                            11    1
            plaintiffs' verandah was a street' and it had been so used since
            the very beginning. On evidence all the courts have come to the
            conclusion that the verandahs were a passage accessible to the
D
            public. These were used by members of the public as a means of
            access and the owners had no "riglit at all hours to prevent other
            persons from using" this space. The plaintiff J agdish Pershad
            appeared in the witness box. He deposed that there was no
            dedication of verandahs to the public use and the owners could
E           always stop any passerby from using the same. In cross-examination
            he admitted that the owners never stopped any body from passing
            and repassing through these space. This course of conduct on the
            part of the owner is inconsistent with any other theory then that.
            he intended a dedication. This is a reasonable inference of intent
            that may be drawn from evidence. On evidence the courts have
F
            found that the public used these verandahs without any let or
            hindrance ...... .

                     In our opinion the question whether a particular place Lo:. a
             11
                  street" or not is essentially a question of fact. Long user can be
G            evidence of dedication. Dedication can be inferred from public
             uninterrupted user for a substantial period of time. A way shall be
             presumed to have been dedicated as a slreet where it has been
             used by the public for twenty years as in this case. The public have
             availed themselves of this dedication and have used verandahs as
H            streets because these were thrown open to the public use tacitly,
    GO BIND PERSHAD JAGDISH PERSHAD '· N.D.M.C. [KULDIP SINGH, J.]       243

        if not expressly. From user of long duation an inference of dedica-     A
        tion to the public would naturally arise. It is true that "single act
        of interruption by the owner is of much more weight upon a
        question of intention, than many acts of enjoyment" Pools v. Hus-
        kinson, (1843) 11 M & W 827 - 152 L.R. 1039 per Baron Parke).
        But in this case there is not a single instance where there was an
        interruption by the owner which can be said to be a negation of
                                                                                B
        the idea of dedication ... That the land was devoted to the public
        use is the finding of all the courts. The presumption arising from
        long uninterrupted user of a way by the public is so strong as to
        dispense with all inquiry into the actual intention of the owner of
        the soil, and it is not even material to inquire who the owner of       c
        the soil was ... On evidence the courts have uniformly come to the
        conclusion that the public has a right to pass and repass in the
        verandahs in question and the same are 11 streets11 within the mean-
        ing of the term as defined in section 3(13)(a). The plaintiffs cannot
        be allowed to contest this finding of fact in this fourth court."
                                                                                D
       We see no ground to differ with the concurrent findings of the courts
 below and hold that the appellant has dedicated the Verandah in dispute
to the public-use. It is being used for passing and repassing by the public
at large and as such is a "street" in terms of section 3(13)(a) of the Act.
The appellant has, thus, surrendered his rights in the property for the E
benefit of the public. The user of the property is and always shall be with
the public. Any space, passage, verandah, alley, road or footway dedicated
to public by the owner for passing and repassing, partakes the character
of a "street" and no longer remains under the control of the owner. The
owner has no right at all times to prevent the public from using the same. F
When the ow11cer of the property has, by his own volition permitted his
property to be converted into a "street", then he has no right to claim any
compen~ation when the same property is made a "public strr.et11 under
section 171( 4) of the Act. The "streets" are meant for public use. It is
necessary that the "streets" which are being used by the public are frequent-
ly repaired and are also save.ti from public abuse. It is common kn~wledge G
that in the absence of any regulatory control, the hawkers and squatters
are likely ·to occupy the ''streets" thereby creating nuisance for the public.
In a situation like this it is necessary for the Committee to step in and
exercise its powers nnder section 171(4) of the Act. The Committee
exercises regulatory control and is responsible for the repair and upkeep Ii
     244                   SUPREME COURT REPORTS [1993] SUPP.,J S.C.R .

. A ,bf the "public streets". The verandah in dispnte is a "street". ft has been
     declared as a "public street" for the better enjoyment of the publtc-right in
     the said street. We hold that when a "street" is declared as 'public street'
     the owner, of the property comprising the said "street", has not right to
     claim compensation.

 B         So far as third point is concerned, the courts below have found as a
     fact that notices prescribed under section 171(4) of the Act were put up
     in the verandahs. We see no force in this contention and reject the same.

           We, therefore, dismiss the appeal with costs. We quantify the costs
     as Rs.l l,000.

     G.N.                                                      Appeal dismissed.