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Colonial Cases

R. v. Shaporjee, 1861

[encroaching on highway]

R. v. Shaporjee

Supreme Court, India
Arnould J., July 1861
Source: The Times of India, 11 July 1861





Fifth day, Wednesday, 10th July.



   Nowrojee Shaporjee was charged upon an indictment found against him at the last Criminal Sessions for common nuisance, by encroaching upon and obstructing the Queen's highway.

   Mr. Anstey, instructed by Dr. Dallas, appeared for the prosecution.

   Mr. Dunbar, with Mr. Scoble, instructed by Mr. Cleveland, conducted the defence.

   This was a private indictment brought against the defendant by the residents of Jamboolwady lane. Near the premises of the Tract and Book Society, for his having built two walls, twelve and twenty-eight feet long respectively, thereby encroaching upon and obstructing the public passage to the Jamboolwady lane.  The prosecutors had sought justice against the defendant both from the magistrate and at the Small Case Court, and had ultimately brought him up to the Sessions on an indictment at Common Law. 

   Several witnesses, chiefly residents of the lane, were examined at great length by Mr. Anstey, to show that the ground built upon by defendant formed part of the public highway for many years past.  The evidence adduced is of no general interest.

   There being a great number of witnesses to be examined, the Court rose at 5.45 p.m.  The jury were discharged; and the enquiry will be resumed before them at ten o'clock this (Thursday) morning.


Source: The Times of India, 12 July 1861.

Sixth Day, Thursday 11 July.



   The enquiry in this case against Nowrojee Shaporjee, was resumed before the same jury at ten o'clock, when several witnesses were examined for the prosecution, after which Mr. Dunbar, for the defendant, addressed the jury at great length upon the facts elicited in the evidence.

   His Lordship, in summing up the case to the jury, remarked that the only question for their consideration was whether or not the defendant had encroached upon or interfered with the public right of passage into the Jamboolwady lane.  A certificate was produced, in which the Municipal Commissioners granted the defendant permission to build on the old foundations, but not to build on the vacant ground, that being, as the Commissioners thought, the right of private passage into the lane.  It was stated that one Antone, from whom defendant purchased the house, used the vacant ground for placing timber and carriages and had erected a shed thereon. The defendant had, however, encroached upon a much greater length of space, and had raised a permanent building.  The shed or carriages might be removed at any time, but a permanent building could not be so removed.  The whole question was whether Antone had a proprietary or merely permissive right to occupy the ground in question, or whether, in the jury's opinion, there were circumstances in the evidence to imply a dedication to the public by the owners of the soil.

   The jury retired to deliberate a little after 4 o'clock, and returned in about half an hour with a verdict of guilty.

   Mr. Anstey. - We don't press, my Lord, for a heavy fine; a nominal fine would answer our purpose, if the obstruction is removed as soon as possible.

   Mr. Dunbar. - I wish to ask the jury if they were of opinion, that the ground is the Queen's highway.

   Mr. Anstey. - The jury having once given their verdict, you can't ask them to give a verdict again.

   Sir Joseph Arnould. - Defendant was charged with obstructing a public passage, and the jury have given a general verdict of guilty.

   Mr. Dunbar. - He is charged with obstructing the Queen's highway, twelve feet in one way and twenty-eight feet in another way, and I am entitled to ask your Lordship, how much of that ground is he found guilty of obstructing?

   Mr. Anstey. - When a jury finds a verdict of guilty, that is conclusive, for the matter ends with that word.

   Mr. Dunbar. - That's in a criminal charge - not so in this!

   Mr. Anstey was about to cite an authority, when Sir Joseph Arnould said, - You know the great object is to have the obstructions removed.

   Mr. Anstey. - Yes, my Lord; and to make defendant bear the costs.

   His Lordship ordered that the obstruction should be removed within a fortnight; and the defendant should be brought up for judgment on Saturday the 27th instant.  The question as to costs remains to be decided hereafter.

   As this was the last case, His Lordship thanked the jury, telling them their services would be no more required.



Source: The Times of India, 17 July 1861.


The sessions were then adjourned until Saturday the 27th instant, on which day Nowrojee Shaporjee, found guilty of obstructing the Queen's High way, will be brought up for judgment.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School