- (1.) Leave granted.
(2.) An area admeasuring 4 ft.x 6 1/2 ft. situated in Chaura Bazar near Rai Saheb Jogiwara, Karnal is claimed to belong to the respondent. The appellant asserted it to be part of public street. They found that the respondent had constructed a shop on the said portion of public street. Consequently, they issued a notice, after inspection, for demolition of the shop. Since the respondent did not demolish the shop, the appellant got the construction demolished necessitating the respondent to file the suit for damages. The trial Court dismissed the suit by decree dated November 15, 1990. On appeal, the Additional District Judge by judgment and decree October 29 , 1993 reversed the decree of the trial Court and granted damages for a sum of Rs. 20,000/-. The High Court in Second Appeal No. 173/94 by order dated January 24, 1994 dismissed the appeal as usual in limine, which in recent past is getting changed by giving reasons which one hopes shall become a rule. Thus this appeal by special leave.
(3.) The only question is whether the aforestated disputed area is a public street. Section 2(23) of the Haryana Municipalities Act, 1973 (for short, 'the Act') , defines "street" thus: "(23) "street" shall mean any order, footwear, square, Court, public park, alley or passage, accessible whether permanently or temporarily to the public, and whether a thoroughfare or not, and shall include 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 about 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 shall not include any part of such space which the occupier of any such buildings 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 payment, verandah or other erection, up to the boundary of any abutting property not accessible to the public: Section 2(21)defines "public street "thus: "(21)"public street" shall mean any street - (i) heretofore levelled, paved, mettaled, channelled, sweered or repaired out of municipal or other public funds; unless before such work was carried out, there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor, or (ii) which, under the provisions of Section 180, is declared by the committee to be, or under any other provisions of this Act becomes a public street. ;