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B. Raghunandan Saran Vs. Smt. Kanta Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3268 of 1965
Judge
Reported inAIR1975All130
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 9; Specific Relief Act, 1963 - Sections 38
AppellantB. Raghunandan Saran
RespondentSmt. Kanta Devi and anr.
Appellant AdvocateGyan Prakash, Adv.
Respondent AdvocateK.C. Agrawal, Adv.
DispositionAppeal allowed
Excerpt:
.....of mis joinder - held, construction in narrow streets will be violation of by laws of municipal board - suit cannot be dismissed only on the ground of mis joinder of party. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under..........which could not be challenged in this appeal. his contention is that no person can be permitted to make constructions in violation of a bye-law and if he attempts to do so it is open to the citizen to move the court to prohibit him from violating the bye-law. in support of his submission he has relied on the decision of the calcutta high court in krishna kali v. babu lal shaw, air 1965 cal 148. in that case there was a bye-law which required a person making constructions to leave certain open space. the defendant wanted to make constructions without leaving such space. the suit had been filed by a neighbour. the court held that such a suit was maintainable for an injunction to require the defendant not to violate the bye-law. 5. learned counsel for the respondent, besides supporting the.....
Judgment:

Hari Swarup, J.

1. This is a plaintiff's appeal arising out of a suit for a perpetual injunction to prohibit the defendant from constructing the projection (Ghajja) from his house over the lane in accordance with the sanction alleged to have been obtained by him from the Municipal Board. Sambhal. The plaintiff came to the Court on the ground that his easementary right to get light and air into his house, would be curtailed by the proposed construction. The second ground on which he sought the injunction wag that the street over which the defendants intended to make the construction was only about five feet wide and the bye-laws of the Municipal Board prohibited the making of any projection over such a lane. The lane runs between the houses of the plaintiff and the defendants.

2. The defendants contested, the suit on the ground that the construction of the protection was not likely to affect the plaintiff's right to set light and air, and that the sanction obtained from the Municipal Board was valid and legal.

3. The trial Court held that the plaintiff's house had an open Chabutraand the construction of the Chhajja was not likely to affect the plaintiffs right of getting sufficient light and air. So far as the question about validity of the sanction is concerned, the trial Court held that it was violative of the bye-law dealing with projections over narrow streets. However, on the ground that the plaintiff was not likely to suffer any special damage because of the construction of the Chajja, the trial Court dismissed the suit. The plaintiff went up in appeal. The lower appellate Court endorsed the find-ins of the trial Court that the plaintiff was not likely to suffer any substantial damage by the construction of the projection so far as his easementary right to get light and air was concerned. As regards the question about violation of the bye-law was concerned, the lower appellate Court expressed the view that it was not necessary to go into the question, but later on held that as the bye-law was not made for the purposes of giving any benefit to citizens living in the locality, the plaintiff could not maintain the suit or claim injunction, even if the proposed construction was to be made in violation of the bye-law. On these findings the appellate Court dismissed the suit. Plaintiff has now come UP in appeal to this Court, challenging the decree of the appellate Court.

4. Learned counsel for the appellant conceded that the finding that the easementary right of the plaintiff about getting light and air was not affected was a finding of fact based on evidence which could not be challenged in this appeal. His contention is that no person can be permitted to make constructions in violation of a bye-law and if he attempts to do so it is open to the citizen to move the Court to prohibit him from violating the bye-law. In support of his submission he has relied on the decision of the Calcutta High Court in Krishna Kali v. Babu Lal Shaw, AIR 1965 Cal 148. In that case there was a bye-law which required a person making constructions to leave certain open space. The defendant wanted to make constructions without leaving such space. The suit had been filed by a neighbour. The Court held that such a suit was maintainable for an injunction to require the defendant not to violate the bye-law.

5. Learned counsel for the respondent, besides supporting the judgment on merits, contended that the present suit was not maintainable as the Municipal Board which had granted the sanction was not made a party to the suit. There is no merit in this contention as Order 1. Rule 9 of the Code of Civil Procedure provides that 'no suit shall be defeated by reason of the misjoinder or non-joinder ofparties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.' In the present case it was the defendant who was going to make the offending construction and the relief was sought against him. No relief could be sought against the Municipal Board. It was only in defence that the defendants had pleaded the right to make the construction on the basis of the sanction from the Municipal Board. If the sanction was valid, it could have been shown to be so by the defendant themselves; they could also produce any evidence they liked to prove that the making of the proposed construction could not violate any bye-law. In these circumstances it cannot be held that the' suit of the plaintiff for the relief claimed is not maintainable simply because the Municipal Board has not been impleaded as a party.

6. Learned counsel for the respondents also contended that as the bye-law in question spoke about 'street' and the finding of the Court below is that the projection was to be made on the 'lane', the bye-law was inapplicable. There is no merit in this contention as well. In the plaint it was alleged that it was Rasta Sarkari. This was admitted to be correct in the written statement. The judgment of the lower appellate Court shows that it was admitted to be a public lane. 'Street' has been defined in Section 23 of the the U. P. Municipalities Act to mean, 'any road, bridge, footway, lane, square, court, alley or passage which the public or any portion of the public, has right to pass along and includes, on either side, the drains or gutters, and the land upto the defined boundary of any abutting property, notwithstanding the projection over such land of any verandah or other superstructure.' The lane in dispute must therefore be held to be included in the term street used in the bye-law.

7. The bye-law Ex. 4 prohibits the making of any projection over the street if the width of street is less than 15 feet at any point in front of the building. The bye-law will thus be violated if the defendant constructs the 'Chhajja' he intends to make.

8. The next contention of the learned counsel for the respondent is that the plaintiff is not entitled to set the relief because by the construction of the Chhajja no special damage will be suffered by him and no specific right of his will be affected. Injunctions are, however, issued not only when a particular right of the plaintiff in the enjoyment of some property is affected, but also when the defendant commits a breach of some 'obligation'. Section 54 of the SpecificRelief Act, 1877 provides for the grant of perpetual injunctions. It is reproduced as Section 3, 8 in the Specific Relief Act, 1963 with slight change which is notmaterial. Section 38(1) runs as under:--

'Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.'

8-A. 'Obligation' is defined in the Specific Relief Act as follows: 'Obligation includes every duty enforceable by law.' Thus when the Legislature makes a law or the subordinate Legislature like a Municipal Board, frames a bye-law it casts an obligation on every citizen who is affected by that law or bye-law to obey it and not to violate it, and this obligation, at least by implication, exists for the benefit of every citizen who may, even remotely, be likely to have an adverse impact by the violation of the law or the bye-law.

9. The purpose for which a bye-law can be framed by the Municipal Board is given in Section 298 of the U. P. Municipalities Act which runs as under :--

'298 (1). A Board by special resolution may, and where required by the State Government shall, make bye-laws applicable to the whole or any part of the Municipality, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the Municipality and for the furtherance of the Municipal administration under this Act.'

Under Sub-section (2) of Section 298 different heads have, without prejudice to the generality of the power conferred by Sub-section (1), been mentioned indicating the purpose for which the bye-laws may be framed. When a Municipal Board makes bye-laws of the present nature, it does so for the purpose of promotine and maintaining health, safety and convenience of the inhabitants of the Municipality. Their violation will naturally affect adversely the health, safety and convenience of the citizens; it must therefore, be held that the bye-law casts an obligation on citizens not to act in violation thereof, and every citizen can claim an injunction to prevent the breach of the bye-law, A similar view was taken by the Calcutta High Court in AIR 1965 Cal 148 (suora) where, dealing with the rights of a resident in the locality to check the constructions which were going to be made without leaving adequate space as required under the bye-law, it was observed by A. N. Roy, J. that 'it was impossible to say that the petitioner would not be affected by any breach of theexisting rules, and in my view he has a right to insist that these rules should be strictly observed in reference to any plan.'

10. Further, the defendant in the present case was living in the house adjoining the lane and could be expected to use the lane and would thus have sufficient interest to approach the Court for compelling the defendant to make no projection over the lane which might violate the bye-law. The Municipal Board, of course, as the custodian of the rights of the people has been given by law the right to enforce its bye-laws by refusing sanction, preventing, constructions and demolishing buildings that may violate any bye-law. But if the Municipal Board fails to perform its duty, it will not mean that the right of the citizen is lost to get the law enforced through Court. It is the duty of Courts in India to see that the law is obeyed and not violated.

11. In the result the appeal is allowed. The decree of the Court below is set aside and the plaintiff's suit is decreed. Let an injunction issue prohibiting the defendant from making the intended constructions in violation of the bye-law of the Municipal Board. Sambhal contained in Ex. 4 in the suit. In the circumstances of the case the parties are directed to bear their own costs.


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