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Shanker Dayal Agarwala Vs. the State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 407 of 1970
Judge
Reported inAIR1973All310
ActsCode of Civil Procedure (CPC) , 1908 - Sections 91
AppellantShanker Dayal Agarwala
RespondentThe State of U.P. and anr.
Appellant AdvocateJ.N. Agarwal and ;Yogesh Agarwal, Advs.
Respondent AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
DispositionAppeal allowed
Excerpt:
..... - the trial court recorded a finding that the plaintiff had failed to establish that there was a lane to the east of his house. on the other hand, he placed reliance on the categorical finding recorded by the trial court that the plaintiff had failed to prove the existence of the lane to the east of his house. of course, the lower appellate court held that the plaintiff had failed to prove that he had any doors or windows towards the east of his house meaning thereby that prior to the year 1964, in which year the plaintiff purchased the house and built it afresh, there were no doors or windows opening to the east. the plaintiff in these circumstances complained that his access to the road or lane had been obstructed and this was an encroachment on his legitimate rights and the action..........mohalla aliganj in the city of banda, abutting the land in suit which according to plaintiff is a lane or public thoroughfare. the defendant no. 2, namely, the municipal board, banda made constructions adjoining the eastern wall of the plaintiff's house. hence, the appellant prayed for the removal of the wall made by the municipal board and also for a prohibitory injunction restraining the board, for making constructions on the 10 feet land towards the last of the plaintiff's house. the suit was dismissed by both courts. the trial court recorded a finding that the plaintiff had failed to establish that there was a lane to the east of his house. this finding was reversed by the lower appellate court which came to the conclusion that the plaintiff had proved the existence of a lane to the.....
Judgment:

M.N. Shukla, J.

1. This is a plaintiff's second appeal arising out of a suit for injunction.

2. The plaintiff has his house in Mohalla Aliganj in the city of Banda, abutting the land in suit which according to plaintiff is a lane or public thoroughfare. The defendant No. 2, namely, the Municipal Board, Banda made constructions adjoining the eastern wall of the plaintiff's house. Hence, the appellant prayed for the removal of the wall made by the Municipal Board and also for a prohibitory injunction restraining the Board, for making constructions on the 10 feet land towards the last of the plaintiff's house. The suit was dismissed by both courts. The trial court recorded a finding that the plaintiff had failed to establish that there was a lane to the east of his house. This finding was reversed by the lower appellate court which came to the conclusion that the plaintiff had proved the existence of a lane to the east of his house but it agreed with the court of first instance on the point that the plaintiff had not been able to prove any special damage and hence the suit was barred under Section 91 of the Civil Procedure Code. Aggrieved by that decree the plaintiff has come in Second appeal to this Court.

3. The contention of the appellant was that on the facts of this case special damage should have been presumed. The learned counsel for the respondents submitted that the rights claimed by the plaintiff were wholly unfounded inasmuch as the land in question had not been proved to be a lane or a public thoroughfare. He referred to the concluding portion of the judgment of the lower appellate Court and said that on an erroneous impression that the trial Court had recorded a finding that the existence of the lane had been proved the lower appellate Court made an observation that the said land was a lane. According to his submission this was merely an ipse dixit of the appellate Court and was not based on an appraisal of evidence. It was, therefore, not binding on this Court in second appeal. On the other hand, he placed reliance on the categorical finding recorded by the trial Court that the plaintiff had failed to prove the existence of the lane to the east of his house. It was further argued on behalf of the respondents that since the plaintiff was unable to prove that his house abutted lane or apublic thoroughfare, no right accrued to him of complaining against the proposed construction of structures already made by the Municipal Board.

4. The first question, therefore, which arises is as to whether the plaintiff had succeeded in proving the existence of a lane or public thoroughfare to the east of his house which was admittedly constructed afresh in the year 1964. I am unable to accede to the submission of the learned counsel for the respondents that the lower appellate Court omitted to record a finding after evaluating the evidence on the question of existence of a lane. The observation contained in the concluding part of the judgment of the lower appellate Court was made in connection with the finding of the trial Court with regard to the suit being barred by Section 91 C. P. C. Since the trial Court had held that the suit was barred by Section 91, C. P. C. it necessarily implied that the land in question had been held to be a public thoroughfare and the plaintiff's case be treated as one of public nuisance. It was in connection with this aspect of the case that the lower appellate Court made the observation that according to the trial Court the land had been proved to be a lane. I find that the lower appellate Court applied its mind to this question and after evaluating the evidence of the parties came to a definite conclusion that there was a lane towards the east of the plaintiff's house. Of course, the lower appellate Court held that the plaintiff had failed to prove that he had any doors or windows towards the east of his house meaning thereby that prior to the year 1964, in which year the plaintiff purchased the house and built it afresh, there were no doors or windows opening to the east. On that point both the Courts below recorded a concurrent finding that there were no doors or windows to the east of the plaintiff's house. Thus, the position which emerges is that the plaintiff has succeeded in proving the existence of a lane to the east of his house. Now, the question which has to be considered is as to whether when he constructed the house in the year 1964 and made doors and windows to the east opening towards this lane, he acquired any right which was infringed by the action of the Municipal Board and whether the plaintiff was entitled to prevent the defendant Board from making constructions and could the plaintiff ask for demolition of the construction already made.

5. There are certain admitted facts of this case which must be borne in mind before this question of law can be answered. The Municipal Board admitted in its written statement that the plaintiff was the owner of the house in suit and that the Municipal Board had constructed a new wall towards the east of the plaintiff's house. The plaintiff in these circumstances complained that his access to the road or lane had been obstructed and this was an encroachment on his legitimate rights and the action of the Municipal Board in making these constructions or making the proposed constructions in future was illegal. The undisputed facts of the case are that the plaintiff is the owner of the house in question which abuts a lane on which a wall had been built by the Municipal Board just opposite his house within a distance of 10 feet and further constructions were proposed to be made in future.

6. I am inclined to accept the appellant's submission that special damage must be presumed in the circumstances of the present case. There is force in the contention that if special damage is proved or presumed in the present case, then notwithstanding the fact that this was a case of public nuisance relief can be granted to the plaintiff and compliance of the condition of Section 91, Civil Procedure Code, namely, the consent in writing of the Advocate-General would not be necessary. I am slow to accept the proposition that a public or a local body or other authority can with impunity raise a structure right in front of a person's house which abuts on a public thoroughfare and thereby completely or partially curtail the enjoyment of his basic amenities. This may result in either deprivation of the right of air or light or may even prevent his access to the road, his ingress and agrees. In such circumstances by virtue of the very fact that he is the owner of the property which adjoins or abuts a public highway, he does enjoy certain primary rights and amenities which cannot be eroded by any person or authority. In case of invasion of such right law must afford him protection. It cannot be doubted for a moment on the facts of the present case that the construction of a wall by the Municipal Board within 10 feet of the plaintiffs house abutting the lane would adversely affect the enjoyment of his rights as owner and would in fact deprive him of his very access to this road. There is judicial authority in support of the proposition that deprivation of such right of access to the road adjoining the house is itself proof of special damage which an owner of property suffers. In Hanuman Prasad v. Raghunath Prasad, AIR 1924 All 715 (at p. 716) it was observed by Mears, C. J., as follows:--

'............ it is clear that a private rightof this kind has been recognised as being particular damage in the case of individual members who had enjoyed access to the highway from adjoining property. .........'

Reliance was placed in that case on an English decision in Lyon v. Wardens of Fishmongers. C. H. L. (1877) 46 LJ Ch Div. 69 wherein Lord Selborne after referring to several authorities laid down the dictum:

'These authorities recognised such a right of immediate access from private property to public highway as a private right distinct from the rights of the owner of thatproperty to use the highway itself as one of the public.'

7. In my opinion by the very circumstances of the plaintiff being the owner of the house which adjoined the public highway certain rights accrued to him and it there was any action which resulted in the deprivation of those rights, law could not countenance it. Authorities have gone to the extent of holding that even where actual exercise of that right at the time of the suit has not been proved, if other circumstances fulfilling the above-mentioned conditions are established, a special damage to the plaintiff in such situation will be presumed and he will have a right of redress. In Manbhum Dist. Board v. B. N. Rly. Co., AIR 1945 Pal 200 this principle was emphasised and it was also made clear that it was immaterial that at that particular time the plaintiff was actually exercising that right or not. It was held:

'The right of access to the highway at all points where a land adjoins the highway belongs not only to the owner of the land but also to the occupier and the occupier can sue for removal of an obstruction interrupting his right of access to the highway. The fact that the owner or occupier of adjacent land has fenced it off or raised a wall for his convenience or opened a gateway on the other side cannot affect his right of access to the highway as aforesaid.'

The facts of the present case are nearly parallel to those of the case reported in AIR 1945 Pat 200.

8. Thus, the circumstances that in the instant case the plaintiff constructed a new house in the year 1964 and opened doors and windows towards the lane is of no consequence. The plaintiff's right is not one which is founded on long user but a right which flows intrinsically from the very fact of his being an owner or occupier of the property adjoining or abutting the public highway. In Khirsingh v. Brijlal the facts were that the plaintiffs owned houses which abutted on the plot in suit which was also used by them as a means of ingress and egress to their house and which connected those houses to the public road. The defendant No. 1 had obtained from Municipal Committee a sale-deed and also permission to build a house on the disputed plot of land. The plaintiffs complained that the said defendant was threatening to infringe their rights. The main relief claimed was a perpetual injunction restraining the defendant from dealing with the land in such a manner as to infringe the right which they had on that land both as private individuals and as members of the public. The contention on behalf of the defendant was that this was not a case of special damage to the plaintiffs and at any event no such special damage had been pleaded in the case and the plaintiffs could not therefore escape the special restrictions imposed by Section 91,Civil Procedure Code; This contention was repelled and reference was made to the averments made in the plaint that the plaintiffs had their houses abutting on the land in dispute and they received air and light to their houses through the doors and windows opening on that very site of the land and that they would be deprived of the same if defendant No. 1 constructed a building on that plot as was sanctioned by the Municipal Committee. It was also averred that that plot connected their houses to the public way and they would be seriously inconvenienced if that plot was built upon. It was held:

'This in my opinion constitutes a pleading of Special damage to the plaintiffs. A special damage is that damage which by reason of a nuisance would be suffered by some individual beyond what is suffered by him in common with other persons affected by that nuisance. The plaintiffs, in the present case, have pleaded that they would on account of proximity of their houses to the land in dispute suffer in respect of light and air, a damage and inconvenience beyond what is suffered by them in common with other persons of the locality. ..... In my opinion the plaintiffs' suit cannot be thrown out in limine on the ground that it is not maintainable for want of a plea of special damage within the meaning of Section 91, Civil Procedure Code.'

9. The plaintiff appellant before me claimed in the plaint that his house abutted on the road and that his right to light and air through the doors and windows of the house opening towards the eastern lane was adversely affected and his access to the road was also being obstructed. Since on the admitted facts of the case it cannot be denied that the plaintiff did suffer the inconvenience referred to above, in my opinion special damage must be presumed. It is thus amply established that by means of this public nuisance a special damage was caused to the plaintiff and he was entitled to the relief of injunction. A person having a house or property abutting a public highway is entitled to some basic rights and amenities, such as access to the road, ingress or egress and no person or authority can be permitted to diminish or destroy such rights. Moreover, it is a right which does not depend on prescription or long user but stems from the very fact that a property abuts a public highway. In short, the owner of a property abutting a highway has a right of access to it, and in the event of public nuisance on such highway obstructing his ingress and egress special damage to the owner of the property is so self-evident that it must in law be presumed. For instituting such suit, therefore, the consent in writing of the Advocate General is not necessary. I am, therefore, satisfied that the plaintiff rightly made a grievance of the fact that the Municipal Board defendant No. 2 by raising a wall or making or proposing to make other constructions within 10 feet of the boundary of the plaintiff's house adjoining the road were depriving him of the amenities which he was entitled to enjoy as the owner. In the circumstances the court should have granted the injunction prayed for.

10. I, therefore, allow this appeal, set aside the decree of the court below and decree the plaintiff's suit for a permanent injunction restraining the Municipal Board defendant No. 2 from making constructions on the 10 feet wide lane towards the east of the plaintiff's house. The Municipal Board is also directed to remove such constructions within the said area of the lane within a period of three months from today failing which the said constructions will be demolished through the agency of the court. The appellant shall be entitled to his costs.


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