S.C. Mital, J.
1. The appellant is defendant No. 1 in Civil Suit No. 78/98 instituted by the plaintiff respondent No. 1 M/s Sunmoon Printers Pvt. Ltd., Jodhpur for the reliefs of mandatory and perpetual injunction for ordering the defendant No. 1 appellant to make construction on the lines of construction already existing on his industrial plot A-11 described in para 2 situated in Industrial Estate, Jodhpur and if permission is granted by the defendant No. 2 to raise construction according to new rules, then to raise the construction leaving proper set backs as per rules and at a height by maintaining an angle of 22 degree of his shed. The defendant No. 1 may be further restrained from obstructing the passage of light, air and sun shine to the plaintiff s industrial plot No. A-12. The defendant No. 2 Rajasthan Industrial Development & Investment Corporation, Jodhpur is respondent No. 2 in this appeal. The respondent No. 1 also moved an application under order 39, Rules 1 & 2 read with Section 151, CPC for temporary injunction. The learned Additional District Judge No. 3, Jodhpur allowed the application by order dated 17-8-98 whereby the appellant was restrained from making any infringement in the right of the plaintiff to receive light, air and sun shine from the north side of his plot; to raise construction with permission and in accordance with the rules and regulations framed by respondent No. 2. The appellant was also ordered to submit the map of the proposed construction to respondent No. 2, the respondent No. 2 was directed to accord sanction for construction in accordance with its rules and regulations after keeping in view the plaintiffs right to receive light, air and sun shine from the north side of his plot. Aggrieved by the aforesaid order, the appellant has preferred this appeal.
2. The plaintiff has stated the facts in his application that State Government introduced the scheme for industrial development in the year 1960 for allotment of industrial plots with constructed sheds at the angle of 22 degree. The defendant purchased in auction industrial plot No. A-11 in the north of the plaintiff's industrial plot No. A-12 from respondent No. 2. The industrial Plot No. 12 is owned by the respondent No. 1 in which he has installed printing press and he is doing his printing works. The construction of the shed in the plaintiff's industrial plot is maintaining 22 degree angle. It receives light and air from northern side. Before purchasing industrial plot by the appellant, the shed existed there with set backs. Now, after purchasing industrial plot No. A-11, the appellant demolished the shed and started construction of the basement illegally because basement is not allowed according to the lease conditions. The appellant is bent upon to construct a multi storey building unauthorisedly on the industrial plot which will obstruct the light, air and sun shine to his shed from the north side required to run his printing press and offset printing. The plaintiff is getting light and sun shine from the north side for the last 35 years. He has acquired a right of easement. The defendant also does not have any right to raise construction without leaving set back 10 ft. wide in three sides. The respondent No. 1, therefore, prayed for the reliefs accordingly in his suit and temporary injunction as stated above.
3. The appellant stated in his reply that the sheds were constructed by the State Government for keeping the cost of construction as low as possible and it has no nexus with the provision of light from the north side to the adjacent shed. The shed of the defendant's plot A-11 and the shed of the respondent No. 1 on A-12 are separated by a common wall in which there are no ventilation or window for light and air. The appellant admitted that he started construction of the under-ground because it is not prohibited by any of the lease conditions. He is constructing according to the rules and the directions by the respondent No. 2. He is not bound to leave set back in three sides because the plaintiff has also not left any set back on his plot. The construction of his shed is on the common wall. The construction by the defendant will not obstruct the passage of light and air. No light and air is required by the plaintiff for his offset printing work. Plaintiff has not acquired any easement of light and air as claimed by him. In the end, it has been stated that the appellant has a legal right to raise construction on his plot and the suit has been filed merely to harass and cause loss to him.
4. The plaintiff further filed counter reply controverting the above facts with the allegation that the appellant is doing construction in violation of the rules and regulations and without sanction of the site plan by respondent No. 2. The respondent No. 2 replied that a letter dated 8-7-98 was addressed to the appellant directing him to construct after taking care of the rights of the neighbours to receive sufficient light and air from the north side. The appellant should not also construct multi-storey building. However there is no restriction in lease conditions for construction of an under-ground because only quarring work is prohibited. The appellant has not taken permission from respondent No. 2, but such permission is not necessary for construction if the size of the plot is 40,000 sq. Mtrs. or less. The appellant is bound to leave set backs as shown in the site plan enclosed with the lease deed. The learned Additional District Judge No. 3, Jodhpur after hearing the learned counsel for the parties and considering the documents and the affidavits submitted by them, passed the impugned order.
5. The learned Additional District Judge found prima facie case in favour of the plaintiff. The learned Additional District Judge took the view on the basis of the letter dated 8-7-1998 written by respondent No. 2 that the sheds were constructed in the year 1960 also keeping in view the facility of light and air to the sheds and a particular pattern was adopted for this purpose. The glasses were fitted at a certain height on the sheds towards north side in 60 ft. length and the applicant has been receiving the light in his shed which is evident from the photographs. The contention on behalf of the appellant was not accepted that the construction of the shed had no relevancy with the arrangement of light and air. The learned Judge prima facie held that plaintiff has acquired a right to receive light in his shed from north side. The learned counsel for the appellant argued that this finding is erroneous and based on wrong assumption that the Unit of the appellant is towards the south of the Unit of respondent No. 1. Moreover, it has not beenconsidered that the respondent No. 1 is getting sufficient light from sourthern, eastern and western sides. The Sun rising in the East sets in the West via southern side. Therefore, there is no question of receiving or obstruction of light from the north side. In my view this argument is not tenable because it cannot be said that if the sun sets in the West with inclination towards south then there cannot be any right to passage of light from the north because light is all pervading, sun being throughout vertical on the Earth; it does provide light to the north side also all the time throughout the day, may be more or less light for some hours in a particular direction. I have perused the impugned order wherein it has been mentioned that appellant's unit is towards the south of the respondent's Unit but the learned Judge has clearly held that from the inception of the sheds in the industrial plots as shown by the photographs and also by virtue of its construction pattern, light is being received from the north side. Therefore, mentioning of the wrong direction of the situation of the Units has no material bearing on the question of right to light and air. 6. It is also not acceptable that the respondent No-1 do not need any natural light and air for his printing work and offset press. My attention was drawn towards the affidavit of one Manish Vyas, Proprietor, Dynamic offset Printers, Sardarpura, Jodhpur, who has sworn that he is doing printing work in the under-ground. The offset press of Rajasthan Patrika is also on the under-ground floor. No light and sun shine is required for this work and it can be conveniently done in the under-ground. The argument on behalf of the learned counsel for the respondent No. 1 is plausible that the respondent is doing other printing work and running his office also besides offset printing press. It cannot be laid down that offset printing cannot be done on the ground floor and light is not required for it. Dhirendra Kumbhat respondent No. 1 has filed counter-affidavit that Manish Vyas does not need light and air for his offset printing because he does black and white printing for his newspaper. Lodha Printers and Rajasthan Patrika do not run the printing works in the under-ground. 1 agree with the view of the learned Judge that the respondent No. 1 needs light for his printing work and business. There is no site map on record to show at this stage whether the respondent No. 1 is getting the required quantity of light from other sides and he does not need protection from the disturbance of light from the north side. Therefore, the case A. V. Kuppuswamy Iyer v. S.K. Subramanian, AIR 1998 Madras 268 do not render assistance to the appellant.
7. I do not find any force in the contention that since construction has been made by the respondent also on the land of set back, it does not lie in the mouth of respondent No. 1 to object against the appellant about the alleged encroachment of the set backs. The unauthorised or illegal act by the opposite party does not vest any authority or justification to commit the same violation. It is open to the appellant to seek appropriate legal remedy against the respondent No. 1. Therefore, the respondent No. I is not estopped from pleading his grievance against the appellant about the alleged construction in the set backs. The learned counsel for the appellant vehemently argued that the respondent No. 1 is making construction leaving 5 ft. wide space from the common wall which will provide virtually 6 ft. wide space in between the construction of the appellant and the shed of the respondent No. 1 on the common wall. It will provide passage for light and air. The easement right for light and air is only for vertical light and not for any lateral light. The right does not extend to compel the neighbour to leave a particular piece of land or space. He strenuously argued that the respondent No. 2 has categorically replied that permission for construction is not required by the appellant. Therefore, the direction to the appellant to seek permission from respondent No. 2, is without any basis. The temporary injunction issued by the learned Court is vague and entire construction has been stayed over the plot. It is contended that the learned Court has erred in not considering the correct legal position regarding the right of easement to light and air. The respondent No. 1 has to show that he is going to suffer an irreparable injury or substantial damages as envisaged in S. 33 of the Indian Easements Act, 1882. The respondent No. 1 has failed to prima facie establish the same. In support of his arguments, the learned counsel for the appellant relied upon 1988 Raj LW 655 (Prem Devi v. Sohanlal), AIR 1963 Raj 184 (Anopchand v. Misrilal) 1984 WLN 195 (Suzan Mal v. Bhanwar Lal and AIR 1990 Karnataka 236 (Dr. K. Panduranga Nayak v. Smt. Jayshree).
8. The learned counsel for the respondent No.I has vehemently contended that the respondent's case is squarely covered within the provisions of S. 33 of the Easements Act, 1882. The construction by the appellant will cause substantial damage to him. Explanation I provides that if there is material diminution of the value of the dominant heritage, it will be deemed to be a substantial damage. The diminution of the light will prevent [he respondent No. 1 from carrying on his business as beneficial as he was doing previously. It will also materially affect his physi-cal comfort. It is further contended that the appellant is bound to construct the building according to the RIICO Disposal of Land Rules, 1979 and circulars. He should also maintain the north side light system provided at the lime of construction of the sheds. He has to obtain a permission of the local authorities including the Urban Improvement Trust. The appellant is not authorised to raise multy-storey commercial complex. It is also argued that the plaintiff on!y wants to enjoy his right of easement to light from north side. The construction by appellant must be according to the rules and regulations and with proper set backs. According to the learned counsel for the respondent No. 1, the impugned order does not suffer from any ambiguity.
9. I have given my earnest consideration to the rival contentions. I have also perused the documents and affidavits filed by the parties. I will first consider the question relating ,to the permission for construction and compliance of rules and regulations by the appellant. The respondent No. 2 has framed 'RIICO Disposal of Land Rules, 1979' and the Building Regulations Form E. Regulation I restrains the plot holder for using the land for any purpose except as a factory and other related purposes as allowed by the Corporation. Regulation 2 lays down that the buildings shall be constructed in accordance with the RIICO/Municipal bye-laws and regulations in force from time to time and also other law, rules and regulations in force and the plans and elevations approved by the officer authorised by the corporation. Rule 2(a) prescribes that no construction work shall be commenced unless plans, elevations and sections have been approved by the corporation. However, the lessee of the plot up to the size of 40,000 sq. mtrs. is authorised to start construction work in accordance with the site plan leaving the prescribed setbacks. The set backs for various size of plots have been given in Table 1 and for the plots in the transferred industrial areas andestates in Table 4. Table 4 shows set backs front 25' sides 10' and rear 10' for the plot size above 9.000 sq. ft. up to 1/4 Acre. It may also be noted that Regulation 7(a) mandates that no construction shall be undertaken in any of the set backs in the industrial area which may however be considered for regu-larisation on payment of prescribed compounding fees. Compounding of the construction in set backs is not allowed where construction is for commercial, residential or other use. The regulations also provide the height of the structures. It, therefore, shows that the appellant is bound to raise construction according to the building regulations of the respondent No. 2 as well as the oilier local authorities.
10. The respondent No. 1 made representation against alleged violation of the rules and construction in the set backs. The respondent No. 2 addressed a letter to the appellant on 8-7-98 that construction is not being made with proper set backs. The appellant submitted site plan for multistorey building and the respondent No. 2 has categorically cautioned that construction of multy-storey building will obstruct the passage of light to the adjacent sheds. The respondent No. 2 directed the appellant to construct by leaving set backs shown in the site plan with the lease deed and keeping in view the north light sheds which were constructed with a view to provide lights. The learned lower Court has not committed any error in directing the appellant to comply with the Building Rules and Regulations of the respondent No. 2 and to submit the site plan to the respondent No. 2 ensuring the compliance of such rules and regulations. The respondent No. 2 has also asked the appellant to submit the same in letter dated 8-7-98 because the respondent No. 2 has a right to ensure that Building Rules and Regulations are not violated by any lessee. I agree with the learned counsel for the respondent that nothing can be said at this stage whether the appellant is complying with the rules and regulations or not and whether he is leaving the set backs as shown in the lease deed or 5 ft. space in the north as argued for him because no site plan has been submitted by the appellant in the Court. In these circumstances, I am not inclined to interfere with this part of the impugned orderwherein the appellant has been directed to submit the site plan and, to take permission from respondent No. 2 for construction in order to ensure the compliance of Building Rules and Regulations.
11. I also agree with the learned lower court that the respondent No. 1 has prima facie shown his prescriptive right for the passage of light towards the north of his shed. It remains to be considered as to what extent this right can be exercised by the plaintiff in the facts and circumstances of this case.
12. In Anopchand v. Misrilal (AIR 1963 Raj 184) (supra), it has been held that owner of a house or plot has exclusive right to enjoy it with all natural advantages and to construct over it. The owner of the immovable property has a right to open as many windows as he likes on his land and to receive any amount of lateral light but subject to the right of the owner of adjoining land to shut out the light by making any erection on his own land because the right of a owner to enjoy it by raising any building cannot be curtailed. In this case the plaintiff had not acquired any prescriptive right of light and air and the question of enjoyment of light and air by easement was not in question. The facts of the case Suzan Mal v. Bhanwar Lal (1984 WLN 195) (supra) were that there was a space of 2'2' in between the house of the plaintiff and the defendants. The flow of air and light was not totally stopped but the flow of light and air diminished. It was held that plaintiff must prove a substantial damage. In Prem Devi v. Sohanlal (1988 Raj LW 655) (supra), the plaintiff could not prove by his evidence that he would suffer substantial damage by closing of the window. Therefore, the plaintiff was not entitled for the relief of perpetual injunction. It is held in Dr. K. Panduranga Nayak v. Smt. Jayshree (AIR 1990 Karnataka 236) (supra) that law recognises right to vertical light and air. A person cannot complain the obstruction to lateral light and air to his property. In the case of 1998 (2) Raj LW 1204 (Indian Oil Corporation Ltd. v. Municipal Board, Chaksu), the well recognised principles which apply for grant of temporary injunction have been reiterated.
13. All the above decisions are based on die evidence produced by the parties and facts and circumstances of each case. There is no undeniable position that the plaintiff has to prove substantial damage to him due to obstruction of thepassage of light and air. The light lateral or vertical or air enjoyed by way of right of easement cannot be obstructed materially diminishing the value of the plaintiff's immovable property or interferring materially with the physical comfort, or preventing the plaintiff from carrying on his business as beneficially as he was doing previous to the instituting the suit.
14. In the instant case, it has been established prima facie that the plaintiff is getting vertical and lateral light from north side in exercise of his right of easement for the last 35 years. It has also been prima facie shown that he likely to suffer substantial damage by the construction raised by the appellant in deviation from the pattern of the sheds existing prior to the demolition by the appellant and without leaving the set backs. In view of the above discussion, I am inclined to agree with the learned lower Court that the plaintiff has a prima facie case in his favour. In these; circumstances the necessary ingredients of bal-ance of convenience and irreparable loss are also in favour of the respondent No. 1. The respondent No. 1 being the neighbour whose right of easement to light is being disturbed, is competent to file the suit and also raise objection about construction without sanction and against the rules as held in 1996 (2) WLC 457 : (1996 AIHC 3064) (Tejkaran v. Sushil Kumar). The appellant has not been restrained altogether from making construction on his industrial plot. The cases relied upon by the appellant based on their own facts do not render assistance to him. However, I am of me view that the temporary injunction issued under the impugned order needs a little more certainty in respect of the construction to be made without infringement of the prima facie right of the respondent No. 1 to light and sun shine.
15. In the result, the impugned order is hereby maintained and it is however made clear that the appellant shall not make construction towards the south of his plot A-11 i.e. in the north of respondent No. l's plot A-12 in deviation from the pre-existing pattern of the sheds and the space left for light and air as given by the State Government and the respondent No. 2 in order to ensure access of light and air.
16. The appeal is hereby dismissed with cost.