ORDER

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 a public street. They found that the respondent had constructed a shop on the said portion of a 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 15-11-1990. On appeal, the Additional District Judge by judgment and decree dated 29-10-1993 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 of 1994 by order dated 24-1-1994 dismissed the appeal as usual in limine, which in the 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 public street. Section 2(23) of the Haryana Municipalities Act, 1973 (for short, the Act), defines street thus :

"(23) street shall mean any road, footway, 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 abut 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 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, 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, metalled, channelled, sewered 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 provision of this Act becomes, a public street;..."

4. Under Section 61(1)(g) of the Act, all public streets vested in the Municipal Committee which records thus :

"61. Property vested in Committee. - (1) Subject to any special reservation made or to any special conditions imposed by the State Government, all property of the nature hereinafter in this section specified and situated within the municipality shall vest in and be under the control of the Committee, and with all other property which has already vested or may hereafter vest in the Committee, shall be held and applied by it for the purposes of this Act, that is to say,

(g) all public streets, not being land owned by the State Government, and the pavements, stones and other materials thereof, and also trees growing on, and erections, materials, implements, and things provided for, such streets."

5. Section 181 of the Act gives power to lay prosecution for encroachment on any street etc. Sub-section (2) of Section 181 gives power to demolish the unauthorised construction thus :

"(2) Without prejudice to the provision of sub-section (1), the Committee may, by notice, call upon any person who has committed a breach of the provisions contained in the said sub-section, to stop the unauthorised construction forthwith and to remove or