Fawcett, J.@mdashThis is a reference by the Sessions Judge of Poona, regarding the conviction of three persons of an offence u/s 61, Clause (f),
of the Bombay District Police Act, The offence in question is that of having kept logs of timber on a public street and causing obstruction thereby,
though warned to remove the logs. This would fall under the words of the clause, "" causes obstruction in any street by leaving any box, bale,
package or other thing whatsoever in or upon a street for an unreasonable length of time. "" And, in so far as these logs of timber were admittedly
put out for sale, that would also fall within the words, "" by exposing anything for sale or setting out anything for sale in any way whatsoever that
causes obstruction. "" The defence raised is that the Municipality had authorised timber dealers to use a strip of the street for the purpose of
exposing timber for sale, and we are assured by the learned Counsel for the accused that this has been done for forty years
2. The question, however, that has to be decided is, whether the Municipality had any proper statutory authority to divert a portion of a public
street for the purpose of exposing timber for sale in the way that has been done. The learned Government Pleader supports the order of the
Magistrate, and contends that the Municipality has no power to pass any such order. This point was considered by the Magistrate in his judgment,
and he has given reasons in paras, 4 and 5 of his judgment for holding that the Municipality had no proper grounds for allowing an obstruction of
this kind.
3. The contention that has been put before us, as also before the Magistrate and the Sessions Judge, is that, u/s 90 of the Bombay District
Municipal Act, the Municipality has authority to discontinue or stop up any public street, and, therefore, they have power to discontinue or stop up
a part of such street; accordingly, it is contended that there is no objection to their allowing a strip of a street to be used as a market for the sale of
timber. I think that, in considering this argument, it is important, to remember that public streets are vested in the Municipality for the purpose of
being maintained as public streets, u/s 50 of the Bombay District Municipal Act, and that section expressly declares that public streets so vested in
them shall be applied by them as trustees, subject to the provisions and for the purposes of the Act. Therefore, it rests upon any one who supports
the action of the Municipality to show that it had statutory authority to divert a portion of a public street in the manner that has been done. I also
think that the Act contains clear provisions, which show that ordinarily a Municipality should not allow a permanent obstruction upon any public
street vested in the Municipality, Section 122 of the Bombay District Municipal Act is a very plain enactment to that effect, Sub-section (4) of that
section refers to the piling of fuel in by-streets, but says that the Municipality only has authority to allow such piling of fuel for not more than four
days, and in such manner as not to inconvenience the public or any individual. Therefore, a strong presumption arises that the legislature did not
intend, by the general power it gives to the Municipality to discontinue or stop up public streets, that they should use that power for a purpose
which contravenes the intention shown by s.122 of the Bombay District Municipal Act.
4. So far as the question of licensing markets is concerned, there are the provisions of Sections 139 and 140 of the Bombay District Municipal
Act, which contemplate the Municipality constructing or opening markets. But those provisions would ordinarily apply to the erection or other
provision of some place as a market, not in a public street, but in a proper locality. And it would entail a contravention of the intention shown by
Section 122 of the Bombay District Municipal Act to hold that those sections are meant to cover the licensing of a market in a public street.
5. Then, coming to Section 90 of the Bombay District Municipal Act, it obviously is dealing with the question of providing proper highways and
thoroughfares in the Municipal area, and since power is given to widen, open or enlarge or otherwise improve streets, a corresponding power is
given to turn, divert, discontinue or stop up streets. That power would ordinarily be meant to enable the Municipality to provide a substituted street
which would be an improvement on an old street, and then to stop or discontinue that old street, It seems to me that it is perverting the proper
meaning of the section to say that it contemplates a case of stopping up a portion of a street, so as to provide a market, as has been done in this
case. I am quite aware that it is a common practice in this country to use portions of the public streets as temporary markets, and no doubt it is
very difficult to stop that practice. But, at the same time, when we are considering whether there is authority for the Municipality to allow a portion
of a street to be kept for the use of a market, that practice does not discharge the onus I have mentioned. In my opinion, the Act contains
provisions which go against any such supposition. Therefore, it seems to me that the Magistrate is quite correct in his reasoning in paras, 4, 5, and
6 of his judgment, and I can see no sufficient reason for our interfering with the convictions. I would, therefore, order the record and proceedings
to be returned.
6. As regards the question of sentence, Mr. Binning for the accused asks us to reduce the sentence of fine of Rs. 50 in each case, as this was a test
case. Certainly, it does appear that they did not wilfully obstruct in the sense of doing something that had not been done before, and they had the
authority of the Municipality for placing the timber in the way they did. Therefore, we reduce the fines to one of Re. 10 in each case, without
prejudice to enhanced punishment in the event of the obstructions continuing and there being further convictions of the same kind. The amounts in
excess to be refunded,
Madgavkar, J.
7. I agree.