K.T.DESAI - (1.) This is a Reference under sec. 113 of the Civil Procedure Code. The learned District Judge Jhalawad Division has referred to us the question about the constitutional validity of sec. 90 sub-sec. (5) of the Bombay District Municipal Act 1901 as adapted. The learned District judge was of the opinion that sec. 90 sub-sec. (5) of the Act was void inasmuch as it violated the fundamental rights guaranteed under Article 19 of the Constitution. He found that the determination of that question was necessary for the disposal of the appeal that was pending before him and that the said sub-section had not been declared invalid or inoperative by any High Court or the Supreme Court so far.
(2.) The appellant in Civil Appeal No. 207 of 1957 which was being heard by the learned District Judge was the owner of three shops situate at Surendranagar which were abutting on the northern side of a street. That street was declared by the Surendranagar Joint Municipality to be a public street under the provisions contained in the aforesaid sec. 90 sub-sec. (5). A question arose in that appeal whether such declaration was invalid and it was urged that sec. 90 sub-sec. (5) was violative of the constitutional rights guaranteed under Article 19(1)(f) and Article 31 of the Constitution and no action could be taken thereunder. Sec. 90 sub sec. (5) provides as under : A Municipality may at any time by notice fixed up in any street or part of a street not maintainable by the Municipality give intimation of their intention to declare the same a public street and unless within one month next after such notice has been so put up the owner or the majority of several owners of such street or such part of a street lodges or lodge objections thereto at the municipal office. the Municipality may by notice in writing put up in such street or such part declare the same to be a public street.
(3.) The expression street has been defined in sec. 3 sub-sec. (12) of the Act. That sub-section provides as follows: 3 (12)-Street shall mean any road footway square court alley or passage accessible whether permanently or temporarily to the public whether a thoroughfare or not; and stall 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 abut 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 nor but shall not include any part of such space which the occur pier of any such building has a right at all hours to prevent all other persons from using as aforesaid. ;