G.K. Misra, C.J.
1. Plaintiffs and the defendant are adjacent neighbours. By two separate sale deeds, plaintiffs purchased 0.170 acre of land from one Sidheswar Sahu out of C.S. Plot No. 2283 in C.S. Khata No. 59 on 11-2-45. In the very year, plaintiffs constructed their residential houses on the land and continued to reside therein. Defendant purchased 0.170 acre of land from one Atul Ghose by a registered sale deed dated 12-4-45 from the very plot 2283. He, for the first time, started construction on his land in 1960. He did not leave a space of 15 feet as required under the Orissa Municipal Rules, 1953 (hereinafter to be referred to as the Rules) towards the plaintiff's side; he made construction by leaving a space of 1 to 2 feet and by the date of the suit he was proceeding with the construction of his kitchen and latrine in close proximity to the plaintiff's houses. By the aforesaid illegal act, light and air to the houses of the plaintiffs were obstructed and their privacy was affected. Despite repeated requests from the plaintiffs the defendant did not desist in prosecution of the illegal act Plaintiffs made the last request on 20th of February, 1961. As it was not heeded to, the suit was filed on 24th of February, 1961. Plaintiffs prayed for a mandatory injunction to dismantle illegal constructions within a distance of 15 feet from the boundary of the plaintiff's land and for a permanent injunction to restrain the defendant from making further constructions contrary to the Rules.
The defendant filed a written statement alleging that the construction of his house was completed by the first hall of 1960 and he resided therein with family from July, 1960. By the date of the suit, he was not proceeding with any construction of kitchen or latrine. The construction of his pucca residential building, store-room, kitchen, and a Barpali type of latrine was completed long before the institution of the suit. It was, however, admitted in the written statement that these constructions of the defendant are standing almost in a line about two feet apart from the row on line of the plaintiffs' houses and none of the plaintiffs ever objected to the same at any time. Defendant's further case is that the plaintiffs have not acquired any right to light and air by easement and right of privacy by custom.
All the courts have concurrently found that the plaintiffs have not acquired any right to light and air by easement. It was wholly unnecessary to re-cord such a finding as the plaintiffs them-selves never presented such a case. Equally redundant was the attempt to examine a case that the plaintiffs had not acquired a right of privacy by custom. The position may, therefore, be made clear that the plaintiffs never set up a case of acquisition or a right to light and air by easement or right to privacy by custom.
2. The only substantial case pleaded in the plaint is that the defendant made construction on his land in violation of the Rules and thereby caused injury to the plaintiffs by obstructing light and air to their houses and by affecting their privacy. None of the courts below, including the learned single Judge, have addressed themselves to this aspect of the matter and recorded no finding of fact whether by the defendant's illegal construction there was injury or likelihood of injury to the plaintiffs independent of acquisition of right to light and air by easement and of right of privacy by custom.
3. The trial court has recorded a clear finding that the defendant should have left an open space of 15 feet from the boundary of the house of plaintiff No. 2 and though in fact in the municipal plan (Ext. 4/a) a space of 16 feet was indicated to be left out, the defendant made the construction in violation of the plan by leaving a space of 2 feet between the two houses. The lower appellate court, and the learned Single Judge in second appeal, did not take a different view.
The trial court dismissed the suit on the conclusion that mere violation of the Rules does not entail a cause of action in favour of the plaintiffs and the remedy is under the Orissa Municipal Act (Act 23 of 1950) (hereinafter to be referred to as the Act). The lower appellate court on the basis of (1963) 5 OJD 97 (B. Modi & N. Modi v. Revenue Divisional Commr. Central Division, Cuttack) decreed the suit holding that the plaintiffs' suit for mandatory and permanent injunction was maintainable. The matter came up before A, Misra, J., who referred the case to a Division Bench. The passage in (1963) 5 OJD 97 on which reliance has been placed by the lower appellate court was considered by him to have been laid down in very wide terms. He was of opinion that the law so laid down has created some amount of uncertainty and requires re-examination. He referred to the observation of R.N. Misra, J. in (1971) 37 Cut LT 367 (Ghanashyam Das Agarwalla v. Binoy Krushna Roy) on (1963) 5 OJD 97 to the following effect:--
'I, therefore, do not think that their Lordships of this Court in the Division Bench decision clearly laid down that even in the absence of specific injury to an individual he was entitled to sue on the basis of violation of a Municipal Rule.' (para 12).
The impugned observation made by Barman and J.K. Misra, JJ. in (1963) 5 OJD 97, is
'The broad principle underlying the accepted view is that a citizen residing within the Municipality has a right to see that the building rules, made for the welfare and benefit of the public are strictly observed. It is an individual right of each member of the resident public, within the municipality to insist ' on compliance with municipal rules, conducive to the general good of the community of which each such individual is a component member.' (para 10).
The case initially came up before a Division Bench consisting of Patra, J. and myself which referred it to a larger Bench. This is how the matter has come before us.
4. The following questions arise for consideration:
(i) Is the plan (Ext. 4/a) sanctioned in favour of the defendant in violation of the Rules?
(ii) Has the defendant constructed his house in contravention of the municipal plan and rules?
(iii) Do the Act and Rules create any obligation in favour of the plaintiffs against the defendant in the matter of compliance with Rules?
(iv) Is such obligation, if any, enforceable otherwise or only under the provisions of the Act?
(v) Does (1963) 5 OJD 97 lay down the law correctly ?
(vi) Is there any injury or likelihood of injury to the plaintiffs by the defendant's construction in contravention of the Rules?
(vii) Are the plaintiffs entitled to mandatory and permanent injunction as prayed for?
5. Point No. (i): The learned Advocates for both the parties rightly accept the position that Rule 534-E (1) (d) (ii) is applicable to this case as the area of the defendant's site exceeds 500 sq, yards and does not exceed 1,400 sq. yards and the building for which the defendant submitted the plan (Ext 4/a) is a semidetached building. The case has also proceeded on this footing in the courts below:
The rule runs thus:
'534-E. Notwithstanding anything contained in Rule 534-B, the following minimum spaces (setbacks) shall be left open along the entire side boundary of a site except in the case of a row or continuous type of buildings.
(1) In a residential area--
x x x(d) for a site exceeding 500 sq. yards but not exceeding 1,400 sq. yards in area--
(ii) for a semi-detached building, 15 feet from the side boundary of the site on the side opposite the party wall;
x x xA semi-detached building has been defined in Rule 525 (3) as follows:--
'525.--In this chapter, unless the context otherwise requires--
x x x(3) 'semi-detached building' means a building having a party wall on the side but having open spaces on all three remaining sides as hereinafter prescribed;x x x'
6. Both these rules have been inartistically drafted. The expression 'a party wall' has been used in Rule 525 (3). Usually a 'party wall' in legal phraseology means a common wall dividing the houses of two persons in which both have ownership. In the context of the aforesaid rules the expression would mean a wall belonging to a person in the neighbourhood.
Similarly the word 'the' used in the expression 'on the side' means one. Otherwise the rule carries no meaning.
It was contended by Mr. Dasgupta that the defendant is required under Rule 534-E (1) (d) (ii) to leave a space of 15 feet not on the side of the houses of the plaintiffs but on the side opposite to the plaintiffs houses. The inartistic drafting of the rule gives some scope for such an argument. On a careful scrutiny of the language of the rule, its subject-matter and the policy behind it, we are, however, satisfied that the rule enjoins that the defendant is to leave an open space of 15 feet from the plaintiff's wall. The object of the rule is that in between the two houses some space would be left for the general convenience of the neighbours. By the tune the defendant submitted his plan for a semi-detached building there was an open space on three sides and houses of the plaintiffs on one side. The defendant is to leave an open space of 15 feet on the side boundary adjoining the plaintiff's site. The expression 'on the side opposite the party wall' means on the side of the defendant adjoining the party wall.
The plan (Ext. 4/a) shows that a space of 15 feet was indicated to be left out towards the side of the plaintiff's houses. Plaintiffs do not complain in the plaint that the plan (Ext. 4/a) sanctioned in favour of the defendant is not in accordance with the rules.
7. Point No. (ii):-- As has been already stated, the defendant constructed his house in contravention of the municipal plan.
8. Point No. (iii):-- It may be clarified that if the plaintiffs have a right of action under the general law, the same is unaffected even if the defendant makes construction in accordance with the municipal rules and plan. For instance, a plan sanctioned in favour of the defendant in conformity with municipal rules would not justify defendant's trespass on plaintiff's land or his interference with plaintiff's right of easement or customary right. Plaintiffs can equally challenge any public nuisance committed by the defendant.
In this case, however, we are concerned with an enquiry as to whether the plaintiffs have a right of action in case of mere violation of the municipal rules by the defendant which does not result in an injury or apprehended injury to them.
9. It would be appropriate at this stage to notice the relevant provisions of the Act enjoining upon a person to construct a house according to municipal plan.
Section 263 lays down that no piece of land shall be used as a site for the construction of a building and no building shall be constructed or re-constructed otherwise than in accordance with the provisions of Chapter XVII and of any rules or bye-laws made under the Act relating to the use of building sites or the construction or re-construction of buildings.
Under Section 264 an application for permission to construct or re-construct buildings shall have to be filed for approval of the site, together with a site plan of the land and also for permission to execute the work together with a ground plan, elevations and sections of the building and specification of the work.
Section 265 prescribes that the Executive Officer shall not grant permission to construct or re-construct a building unless and until he has approved the site on an application made under Section 264.
Section 266 enjoins that the construction or re-construction of a building shall not be begun unless and until the Executive Officer has granted permission for the execution of the work.
Section 273-A confers power on the Executive Officer to demolish constructions unlawfully commenced, carried on or completed. If the executive officer is satisfied that the construction of any building is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based, he may make a provisional order requiring the owner or the builder to demolish the work done. (273-A (1) (i) (b)).
Section 385-A prescribes penalty for unlawful building. Sub-clause (B) is to the effect that if the construction of any building is carried on or completed otherwise than in accordance with the particulars on which such permission was based, the owner of the building shall be liable on conviction to a, fine which may extend in the case of a building to five hundred rupees and to a further fine which may extend in the case of a building to one hundred rupees for each day during which the offence is proved to have continued after the first day.
Rule 534-E (1) (d) (ii) has already been extracted.
10. The question for consideration is whether the aforesaid provisions of the Act and the Rules have been designed for the protection of rights and interests of adjoining owners.
11. The following two passages from Halsbury's Laws of England, Third Edition, Volume 36, throw light on the question in issue and may profitably be extracted:--
'687. Matters to be considered. Whether or not an individual can bring a common law action in respect of a breach of a duty imposed by a statute depends upon whether the intention of the statute, considered as a whole and in the circumstances in which it was made and to which it relates, was to impose a duty which is a public duty only or to impose in addition a duty enforceable by an aggrieved individual. No universal rule can be formulated which will answer the question whether in any given case an individual can sue. In answering the question, it is, however, relevant to consider whether the statute was intended to protect a limited class of persons or the public as a whole, whether the damage suffered by the person seeking to sue was of the kind which the statute was intended to prevent, whether a special statutory remedy by way of penalty or otherwise is prescribed for breach of the statute, the nature of the obligation imposed, and the general purview and intendment of the statute.
688. Class of persons protected. An individual can sue for a breach of statutory duty only if the statute imposes a duty enforceable by a party aggrieved as well as a public duty. The answer to the question whether the statute imposes a duty so enforceable does not necessarily depend upon whether the statute was intended to protect a limited class of persons or the public as a whole. Nevertheless it is of importance to determine what was the intention of the statute in this respect, because, if the statute on its true construction is intended to protect a particular class, it is some indication that members of that class are intended to have a right of action, as for example in the case of statutes for the protection of factory workers, mine workers, building workers, merchants, seamen, dock labourers, shipyard workers and other employees, or intended for the protection of the public when exposed to certain dangers. On the other hand, if the statute is intended to protect the public as a whole, it will not usually be construed as giving a right of action to individual members of a particular class. In any case in which a class of individuals has a common law right of action in respect of the breach of a duty imposed by a statute, a plaintiff to succeed must show that he is within the class of persons which is intended to be protected and to which the duty is therefore owed.'
The underlined expressions are significant. From the aforesaid passages, broadly two important principles emerge (i) though a statute may impose a public duty it may at the same tune impose a duty enforceable by an aggrieved individual in addition to the public duty; (ii) the plaintiff to succeed must show that he is within the class of persons which is intended to be protected by the statute.
12. There can be no controversy that the Act and the Rules impose a public duty. The question for consideration is whether they also impose in addition a duty enforceable by adjoining owners who are aggrieved by the construction of a neighbour in violation of the rules and the plan.
13. We would now proceed to examine the various authorities cited at the Bar under different Municipal Acts.
In AIR 1941 Cal 386 (Hirendra Nath Datta v. Corpn. of Calcutta) Edgley. J., made the following observation:--
'..... It must be assumed that in framing the statutory rules relating to the space to be left between buildings and their height, the Legislature had in view the general convenience of all residents in the municipal area in order to ensure proper ventilation and sanitation for the rate-payers, and possibly adequate means of preventing the spread of fires from one building to another. In this view of the matter, it is impossible to say that the petitioner would not be affected by any breach of the existing rules, and, in my view, he has a clear right to insist that these rules should be strictly observed by the Corporation in reference to any plans for the extension of the Tagore building.....'
The case was under the provisions of the Calcutta Municipal Act (3 of 1923) and the rules framed thereunder. The provisions of this Act and the Rules are in pari materia with the provisions of the Act and the Rules. Doubtless, the case was decided under Section 45 of the Specific Relief Act in the exercise of the ordinary original civil jurisdiction of the Calcutta High Court. The proposition enunciated was, however, in relation to the object of the substantive law on the point. The construction of the statutory provision would not in any way differ whether the relief is sought in a suit or in asking for a writ of mandamus in exercise of the original jurisdiction.
Similar view was taken by Ameer Ali, J. in AIR 1941 Cal 391 (In re Sm. Lakshmimoni Dassi). His Lordship observed thus:--
'..... The question is whether, where the provision is primarily in favour of the general public but in the nature of things the breach of it must injure the specific individual to quite a different degree, such a right can be assumed in the specified individual. In my opinion, though again depending on the facts of each case, yes. x x It is the duty of the Corporation to see that Nos. 21 and 13 do not steal a march on each other. It is their duty, to the extent of the bye-laws, to see that one does not interfere with the health or amenities of the other.
x x I have no hesitation in holding that, as regards Rule 32, the case rests not merely upon the fact that general duties have caused a special injury, but that provisions and restrictions especially designed for the benefit of the adjacent owner, have been disregarded as to cause the adjacent owner that damage which it was intended to prevent.....'
Doubtless, in both the aforesaid cases the Calcutta Corporation was a party; but it hardly makes any differene to the pronouncement on the question of substantive law dealing with the object for which the statute was framed and the policy behind it.
In AIR 1952 Cal 74 (Nandlal Ladia v. Provudayal) a Division Bench consisting of Harries C.J. and Das J. did not take any different view. Considerable stress was laid by Mr. Dasgupta on paragraph 6 wherein their Lordships observed thus:--
'Under Sections 54 and 55, Specific Relief Act, the plaintiffs may pray for a perpetual or mandatory injunction to prevent the breach of an obligation existing in favour of the plaintiffs. In the present case there was no obligation contractual or otherwise, on the part of the plaintiffs towards the defendant, which required that the defendant should construct on his own land in accordance with the Municipal rules and regulations. The plaintiffs therefore have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that the proposed construction on the defendant's land may be in breach of Municipal Rules and Bylaws.'
On a superficial reading, this passage is likely to lend countenance to the view that no obligation has been created in favour of a neighbour when the other neighbour makes construction in violation of the rules. The word 'merely' used in the last sentence is, however, significant. It connotes that mere violation of rules will not give a cause of action. Only if injury to the plaintiff , is established on account of the violation of the rules, then he would have a cause of action. In that particular case, their Lordships came to the conclusion in paragraph 10 that by the defendant's construction the sanitation of the plaintiff's building was not likely to be affected. They made reference to AIR 1941 Cal 391 and did not say that it laid down bad law. In our view, this Bench decision is in line with the two earlier cases.
Similar view was also expressed by another Bench consisting of R. C. Mitter and Roxburgh JJ. in AIR 1952 Cal 364 (Parul Roy v. Srinibas). Their Lordships in unequivocal terms said that if the plaintiffs can bring their case within the ambit of para. 3 of Section 54 of the Specific Relief Act, then they would be en-titled to ask for an injunction.
In AIR 1965 Cal 148 (Krishna Kali Mallik v. Babulal Shaw) A.N. Ray, J. took also a similar view.
Mr. Dasgupta placed strong reliance on a Division Bench decision of Niyogi and Clarke JJ. in AIR 1941 Nag 364 (Cawashah Bomanji v. Prafulla Nath) which according to us, is in line with the aforesaid decisions and does not support his contention. Their Lordships observed:--
'As the appellants asked for an in-junction restraining the building of the house it was incumbent on them under Section 56 (k), Specific Relief Act, to show that they had some personal interest in the matter. The mere fact that the Civil Station Sub-Committee acted beyond its powers in granting the sanction to the building would not by itself be sufficient to entitle the plaintiffs to sue. xx xx It is obvious therefore that the appellant's case could succeed only on proof of some special damage or injury occasioned to them by reason of the permission granted by the Civil Station Sub-Committee, assuming that it was contrary to the bye-laws and therefore ultra vires xx xxx'.
Reliance was also placed by Mr. Dasgupta on a Bench decision rendered by Patel and Thakkar JJ. in AIR 1968 Bom 280 (Narayandas v. Sarasvatibai). This case placed reliance on AIR 1952 Cal 74 and AIR 1941 Nag 364 which we have already discussed. Their Lordships observed:--
'..... Assuming without admitting that the case lays down the correct principle, it cannot apply in the present case where there can be no question of any rights of the appellants being affected. The appellants are mere licensees as alleged by the owner and at best tenants as alleged by them......'
In principle, therefore, the Bombay decision did not take a different view. Plaintiff's case in that case was not accepted because as licensees or tenants they were considered as not having any right to be affected by the defendant's construction.
14. Law is thus well settled that mere violation of municipal rules or plan is not actionable per se unless an injury, real or apprehended, is established by the persons in whose interest and for whose protection the rules are framed. The Act and the Rules create an obligation in favour of the plaintiffs if they prove such injuries which would be determined according to the facts and circumstances of each case.
15. Point No. (v):-- On the aforesaid analysis, the impugned passage in (1963) 5 OJD 97, as extracted in paragraph 3 of this judgment, has doubtless been expressed in very wide terms. The passage enunciates that a citizen residing within the municipality has a right to see that the building rules made for the welfare and benefit of the public are strictly observed. This view is not correct. Any citizen of the municipality has no such right. It is only that person, who can prove real or apprehended injury, is entitled to take action and not any and every resident of the Municipality.
16. Point No. (iv): The next question for consideration is that assuming that the plaintiffs succeed in proving real or apprehended injury as contemplated in law, whether they can enforce their rights through Civil Court.
It is contended by Mr. Dasgupta that the remedy must be worked out under the provisions of the Act and no action lies in Civil Court. Reliance was placed on 1972-38 Cut LT 915 (P. Penteya v. Executive Officer, N.A.C., Bhubaneswar) and 1973-39 Cut LT 530 (Sashibushan Rath v. State of Orissa). Both the cases were in between the Executive Officers and the persons having unauthorised constructions. A third person complaining of injury was not a party to the proceeding. The order of the Executive Officer directing dismantling of the unauthorised constructions was questioned under Article 226 of the Constitution on the ground that Section 344 of the Act authorising such demolition is hit by Article 14 of the Constitution and that a suit lies in the Civil Court for such relief.
The correctness of the judgment of R.N. Misra and K.B. Panda, JJ. in 1972-38 Cut LT 915 was canvassed in 1973-39 Cut LT 530. Acharya, J. and myself held in the latter case that the earlier case had been correctly decided. The scope of Sections 273-A, 274 and 344 of the Act was examined. On discussion of the relevant law it was held in the subsequent case that Civil Court's jurisdiction was impliedly ousted to decide matters embodied in the aforesaid sections. It is not necessary to repeat the reasons given in 1973-39 Cut LT 530. It would be sufficient to extract the conclusion which runs thus:--
'13. xx xx xx On an examination of the scheme ofthe Act we are satisfied that all questions about the liability for dismantlingan unauthorised structure shall be determined by the Executive Officer of theN. A. C. and the remedies normally associated with actions in Civil Courts havebeen prescribed in the statute in Sections 273-A, 274 and 344.
14. It is not contended that any provision of the Act has not been complied with or that the Executive Officer did not act in conformity with the fundamental principles of judicial procedure in which case action in Civil Court would lie. In respect of remedies provided under the Act, the jurisdiction of the Civil Court has been impliedly barred.'
These decisions have no application to cases where the relief sought is by aggrieved individuals against unauthorised construction either sanctioned by the municipality contrary to rules or done by a person in contravention of the municipal plan. In the Act there is no provision for such an aggrieved person to move the municipal authorities for redress of grievances. The Act does not oust, either expressly or impliedly, jurisdiction of the Civil Court to take cognizance of suits in which relief sought is against the injury caused by such unauthorised construction. The municipal authorities may be privy to the illegal construction or might not take steps to remove the unauthorised construction as is the case here. In either case, a third party suffering injury is not without remedy. A suit lies and Civil Court's jurisdiction is not ousted.
'Obligation' has been defined in Section 3 of the Specific Relief Act, 1877 as including every duty enforceable by law. The obligation of the defendant to individuals like the plaintiffs complaining of injury is not enforceable through the provisions of the Act. A suit lies and Civil Court's jurisdiction is not ousted. We agree with the similar view expressed in AIR 1965 Cal 148. No decision to the contrary has been brought to our notice.
17. Point No. (vii):-- Even if plaintiffs establish real or apprehended injury to light, air and privacy as pleaded in the plaint, the question for consideration is whether they are entitled to perpetual and mandatory injunctions as prayed for in the suit.
Section 54 of the Specific Relief Act 1877 prescribes as to when perpetual injunctions are to be granted. So far as relevant, the section runs thus:--
'54. Perpetual injunctions when granted.-- Subject to the other provisions contained in, or referred to, by this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly, or by implication.
x x x xWhen the defendant invades, or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, (namely)--
x x x x(c) Where the invasion is such that pecuniary compensation would not afford adequate relief;x x x x
Section 55 enacts that when to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court, may, in its discretion, grant an injunction, to prevent the breach complained of, and also to compel performance of the requisite acts.
Section 56 prescribes as to when an injunction is to be refused. An injunction cannot be granted--
x x x x
(k) where the applicant has no personal interest in the matter.
If injury or apprehended injury is established plaintiffs would have personal interest in the matter and injunction cannot be refused. Before granting perpetual injunction under Section 54 (c) the Court has to keep in view whether pecuniary compensation would not afford adequate relief in respect of the invasion. That is a point which has not at all been examined in this case. The ultimate conclusion is not a pure question of law but a mixed question of law and fact and cannot be finally decided by this Court.
18. Plaintiffs complained of invasion of their rights to light, air and privacy. Even in cases where a plaintiff complains of invasion of the right to light acquired by easement, Sections 28, 33 and 35 of the Indian Easements Act, 1882 shall be kept in view before granting relief. Those sections, so far as relevant, may be extracted.
'28. Extent of easement.-- With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:--
x x x xOther easements.-- The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired.
In the absence of evidence as to such intention and purpose:--
x x x x(c) Prescriptive right to light or air. -- The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used.
x x x x33. Suit for disturbance of easement. -- The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto; provided that the disturbance has actually caused substantial damage to the plaintiff.
Explanation I.-- The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and Section 34.
Explanation II.-- Where the easement disturbed is a right to the free passage of light passing to the openings in a house, no damage is substantial within the meaning of this section, unless it falls within the first Explanation or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.
Explanation III.-- Where the easement disturbed is a right to the free passage of air to the openings in a house damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.
35. Injunction to restrain disturbance.-- Subject to the provisions of the Specific Relief Act, 1877, Sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement--
(a) If the easement is actually disturbed--when compensation for such disturbance might be recovered under this Chapter.
(b) If the disturbance' is only threatened or intended--when the act threatened or intended must necessarily, if performed, disturb the easement.'
Authorities are consistent that these three sections must be read together. When so read, interference with light and air which is not substantial does not give a cause of action to a person entitled to the right.
19. In AIR 1914 PC 45 (P.C.E. Paul v. W. Robson) which is the leading decision on the point, plaintiffs had brought an action for infringement of certain rights of light. It was conceded therein that they had acquired rights of light for the windows on the east side of their premises. The question for consideration was whether plaintiffs were entitled to relief unless the obstruction complained of is a nuisance. Their Lordships noticed two conflicting views on the field. One stream of authorities gave countenance to the view that by the enjoyment of light for a period of 20 years, there could be acquired an indefeasible right to the enjoyment of a like amount of light in the future. The conflicting stream of authorities supported the other view that nothing constituted an infringement of rights of light which did not amount to an actionable nuisance, and that the amplitude of previous enjoyment was no measure of the rights acquired thereby . The opinion of Lord Sarvey in Collss case, 1904 AC 179 (Colls v. Home and Colonial Stores) was accepted by the Judicial Committee as laying down the correct law. The opinion was to the effect:--
'The owner ...... of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind..... The single question in these cases is still what it was in the days of Lord Hardwicke and Lord Eldown--Whether the obstruction complained of is a nuisance?'
Their Lordships also referred to the opinion of Lord Atkinson in Colls's case which said:--
'It would appear to me that that case established the principle that there must be an invasion of the legal right of the owner of the dominant tenement sufficient to amount to a nuisance in order to give him a right of action and that so long as he receives through the windows of his dwelling-house, or in the case of a particular room in his dwelling-house, through the windows of that room, an amount of light which, to use the words of James. L.J., in Kelk v. Pearson. (1871) 6 Ch 809 is 'sufficient' according to the ordinary notions of mankind for the comfortable use and enjoyment of his dwelling-house, or of the room in it, as the case may be no nuisance has as regards him been created, and no legal wrong has been inflicted upon him.'
In' AIR 1933 All 492 (Mt. Panna v. Ram Saran) a Bench of that Court held that Sections 28, 33 and 35 of the Easements Act have to be read together. Damages may only be recovered if there has been substantial interference as described in Explanation II to Section 33 and that an injunction can only be granted when compensation might be allowed under that section. In either case, whether the relief is for damages or for injunction, it is necessary for the plaintiff to show conclusively that there has been substantial interference with the physical comfort.
In AIR 1936 Mad 905 (Sk. Ismail Sahib v. Norchinda Venkatanarasimhulu Iyah) a passage was quoted from (1930) 1 Ch 138 (Vanderpant v. Mayfair) where the law on the subject was stated, thus a
'Apart from any right which may have been acquired against him by contract, grant or prescription, every person is entitled as against his neighbour to the comfortable and healthful enjoyment of the premises occupied by him, and in deciding whether, in any particular case, his right has been interfered with and a nuisance thereby caused, it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions obtaining among English people.'
This is the law also applicable in India.
All these cases were considered in AIR 1941 Nag 364 and their Lordships expressed the following conclusions:
'To determine whether an act which is complained of as being of nuisance is strictly so or not is to be judged by the ordinary standards of persons residing in the neighbourhood and the criterion would be the ordinary physical comfort of human existence according to plain sober and simple notions obtaining amongst people and not according to the elegant and dainty modes and habits of living as pointed out in (1930) Ch 138 at p. 165; see also AIR 1936 Mad 905. It is not the standard of a petulant, cynical, hypersensitive or fastidious person that would furnish a guide but of a person who expects to enjoy the ordinary comforts of decent and healthy life in the local area where he resides. It is possible that some inconvenience or discomfort may be caused but it must be of a substantial character to warrant legal interference.''
20. It would thus be seen on a resume of the aforesaid authorities that even in a case where a person has acquired a right of easement to light and air, an action for damages or injunction is not maintainable unless the injury complained of is material.
The position would be no better in the case of the plaintiffs who have acquired no right of easement but complained of injury on account of the violation of the municipal plan and the rules. Plaintiffs are, therefore, to establish not merely injury to their right to light, air and privacy but material injury.
21. We would sum up our conclusions on the analysis already made
(i) Defendant has constructed his house in contravention of the municipal plan and the rules.
(ii) Mere violation of the municipal plan or rules would not furnish the plaintiff with a cause of action.
(iii) Plaintiffs must prove that defendant's construction in violation of the plan and the rules resulted in an invasion of their right to light, air and privacy causing material injury to them.
(iv) If the plaintiffs establish such a case, defendant has an obligation in favour of the plaintiffs and plaintiffs can enforce their right through Civil Court and not under the provisions of the Act.
(V) Plaintiffs to get a perpetual and mandatory injunction must also prove that pecuniary compensation would not afford adequate relief.
22. Point No. (vi):-- In the Courts below the law as laid down above had not been clearly appreciated and material evidence had not been adduced. Unless parties are given further opportunity to lead evidence injustice would occur as some of the material issues have not yet been framed and decided. Our conclusion that defendants construction was in violation of the municipal plan and rules is final and would not be allowed to be further agitated.
23 The only issues on which trial would proceed now are indicated here-under.
(i) Has the defendant's construction caused an injury to plaintiffs' right to light, air and privacy?
(ii) Is the injury, if any material?
(iii) Would pecuniary compensation afford adequate relief in respect of the injury ?
(iv) Are the plaintiffs entitled to perpetual and mandatory injunctions?
24. In the result, the second appeal is allowed and the case is remanded to the trial Court The learned trial Court would now proceed to try the issues mentioned in para. 23 after giving full opportunities to parties to lead evidence besides the evidence already on record and dispose of the case in accordance with law as indicated by us aS the suit is of the year 1961, the case would be disposed of within three months from today with intimation to this Court. In the circumstances parties to bear their own costs throughout up to this stage. Records of this case be sent back at once.