S. Sundar Raj Vs. Vijayendra Kumar and Others - Court Judgment

1. This appeal is filed challenging the order dated 25-11-2000 passed in I.A. IV in O.S. No. 4736 of 2000 on the following facts.

2. The defendant is the appellant and respondents are the plaintiffs and they would be referred as per their ranking before the Trial Court. The plaintiffs filed a suit for declaration and injunction. According to the plaint averment, the plaintiffs are entitled for free flow of air and light from 'B' Schedule property and any attempt on the part of the defendant in putting up the construction required to be injuncted. The Trial Court granted the injunction on the ground that the proposed construction conies in the way of enjoyment of the property belonging to plaintiff. An application was filed seeking to vacate the said order, The Trial Judge heard the matter and after hearing he rejected the I.A. The said order of rejection is challenged before me.

3. I have heard Sri G.S. Vishweshwara, learned Senior Counsel appearing for the defendant and Sri B.L. Jagadish, learned Counsel appearing for the plaintiff. Sri G.S. Vishweshwara contended that the Trial Court has failed to consider that at the instance of a neighbour no injunction can be granted. It is also contended by him that as a matter of fact even on facts, there exists only a vacant site adjacent to the suit schedule property and therefore the question of obstruction to free flow of air and light to the plaintiff is not made out in the case on hand.

4. Per contra the plaintiffs/respondents contended that the present construction is in violation of the license granted to the defendant.

5. In the light of the rival submissions, I have gone through the impugned order and on a careful consideration of the material placed before me I pass the following order.

6. It is an admitted fact that the suit has been filed by the plaintiff on the ground that there is a violation of setback area in terms of the Building Bye-laws. According to the plaintiff the construction is in violation of the sanctioned plan. Though the Corporation was a party to the proceedings it did not choose to file any objection. The Trial Judge noticed in the various circumstances ruled that a case is made out for grant of an injunction. This finding, is, as mentioned earlier, challenged before me.

7. This Court in the case of Mathew Phillips v P.O. Koshy, has categorically ruled in para 4 reading as under:

'The party, seeking the aid of the Court for an injunction must show that the act complained of is in violation of his right or is at least an act which, if carried into effect, will necessarily result in a violation of the right.

The provision in the bye-law framed by Municipality requiring a clear space of 4 feet between the two adjoining premises does not create a right in a neighbouring owner to institute a suit for injunction. It is for the appropriate authority under the Municipal Act to determine whether the terms and conditions of the licence have been contravened by the licensee of the building. No temporary injunction can be granted in favour of the neighbouring owner in such a case'.

8. This Court ruled that a temporary injunction cannot be granted in the absence of a creation of right in the neighbouring owner to institute a suit for injunction for violation of clear space of four feet between the two adjoining premises in terms of municipal licence. The said judgment was subsequently followed in Dr. K. Panduranga Nayak v Smt. Jayashree and Others. The Single Judge after noticing the earlier judgment of this Court in Mathew Phillip's case, supra, ruled in paras 6 and 9 reading as under:

'As far as natural right to the flow of light and air is concerned every owner or occupier of a land has a natural right to receive and enjoy so much light and air as come vertically thereto and to open doors and windows in his own wall which adjoins another's land, unless he is under a legal obligation not to do so. Every man is free, in the lawful enjoyment of his own property, to take and use so much light and air as come thereto. And his neighbour's right is the same as his own, but these rights of enjoyment are naturally qualified, for neither can prevent the other from making such lawful use of his land as he pleases. A man who is deprived of light and air by an act of his neighbours, as by the erection of a building, has still the right to so much light and air as come to him and he cannot complain of the obstruction however serious, unless he can establish his title to an easement of light and air.

When there is an infringement of the bye-law, the proper course would be for the Corporation Commissioner to take action either suo motu or on a complaint made to him in this behalf. Section 321 of the Act provides for elaborate procedure to be followed by the Commissioner in such an event and under Section 444 appeal lies to the Standing Committee against any notice or action taken by the Commissioner under Section 321 of the Act. Thus the Act itself has provided for a machinery to inquire into such grievance and if the Commissioner does not decide to compound then he may take action as he deems fit and proper.

The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching the Commissioner complaining of such a deviation'.

9. In the light of these 2 rulings it is clear to me that no injunction can be granted at the instance of a neighboring owner unless the violation/deviation of license results in injury or a right as held by this Court in these two judgments. Admittedly in the case on hand the plain-tiff/owner has failed to prove prima facie an injury or violation of a right in his favour and this aspect has not been considered by the Appellate Court. Therefore in my view the Trial Judge committed a serious error. I make it clear that not in all circumstances a neighbouring owner cannot approach the Civil Court for injunction. A neighbouring owner can seek an injunction against his neighbour for violation of a building plan or a licence or loss subject to the condition that such violation resulted in violation of his right or causing an injury to him on account of such deviation / violation.

(emphasis supplied)

10. The learned Counsel appearing for the respondent has relied on a judgment of this Court in Fakirappa v Basalingappa, to contend that an injunction can be granted at the instance of the neighbour. That was a case clearly distinguishable on facts. In that case the Court found on evidence that there was factually violation by the party in the matter of construction. It further found that the permission granted by the Corporation was quashed by the High Court. It was in those set of facts the Court ruled that an injunction can be granted. That was not a case like the present one. Therefore, the said judgment cannot be relied upon by the defendant to seek an injunction. In the circumstances, I am of the view that no temporary injunction can be granted at the instance of the neighbour on the sole ground of violation of the sanctioned plan or the Building Bye-laws. As rightly held by this Court in Dr. K. PandurangaNayak's case, supra, that when there is a violation of bye-law the appropriate Court can direct the Commissioner to take action or on complaint to him in this behalf. The Act itself has provided a machinery to enquire into such grievances. At the same time I clarify that in the event of any inaction on a complaint by the neighbour of violation on the part of the Municipal Commissioner the party is at liberty to seek a remedy to take action against an erring party. Merely on a complaint to the Commissioner or merely on the ground of violation of bye-laws as rightly held by this Court in Dr. K. Panduranga Nayak's case, supra, no injunction can be granted since a comprehensive machinery is available under the Municipal laws for an action against an erring party. The judgment of the Supreme Court in M/s. Rajatha Enterprises v S.K. Sharma, relied on by the respondents of no use since that was a case dealing with the breach of statutory duty. Similarly, on the other hand the Supreme Court has itself noticed in that judgment that if any such duty is cast on the Municipality to take action against the erring party. Similarly, decision in Onkar Nath v Ram Nath Gupta, is also not available to the respondents since that was a case where an unauthorised construction was put up without obtaining sanction from the authority. A construction without sanctioned plan and a construction in contravention of sanctioned plan stands on two different footings and therefore Onkar Nath's case, supra, is not available to the respondents. No doubt judgment of Calcutta High Court in Krishna Kali Mallik v Babulal Shaw and Others, provide for an injunction in the event of construction in violation of statutory rules but that relief has to be given as I mentioned earlier in the earlier paragraph only in the event of violation of a plan or a licence resulting in an injury or a violation of right in favour of neighbouring owner. Therefore, the Counsel for the appellant is right in his submission with regard to a right of the party in the matter of injunction in the light of these two judgments of this Court.

11. Moreover in the case on hand, the Trial Judge in my opinion has committed a patent error in granting an injunction even on merits. It is the case of the plaintiff that the free air and light is affected on account of the said construction. The learned Judge himself in para 10 notices that no construction is put up in the sites owned by the plaintiff. There is no record to show that flow of air and light is prevented. Having come to this conclusion the Trial Court ought not to have granted an injunction. An interim order is granted to arrest an imminent danger or injury to the contesting party. Any interim order has to be an aid to the main relief but when there is no imminent danger or injury, no temporary injunction can be granted by the Court. Therefore the Court even on merits has committed a legal error which require my interference in this order.

12. Before concluding, I must also observe that the Corporation is also bound to consider any objection raised by a neighbour in the matterof violation of Municipal Laws. The Corporation cannot sleep over the matters causing inconvenience to the neighbours. Any delay in not considering the objection would render the very provision ineffective. Therefore, it is hoped that Corporation would dispose of these objections as early as possible in the interest of maintaining better interests of the parties.

13. In the result this appeal is allowed. The impugned 'order is setaside. It is made clear that any observations made by me is only for thepurpose of this case. I further make it clear that if as a matter of fact ifthere is any violation by the defendants the Corporation is at liberty toproceed against the appellant in accordance with laws. Ordered accordingly. No costs.