J.P. Jain, J.
1. This second appeal arises out of a suit instituted by Meghraj on 26-2-1960 in the Court of Munsif, Bikaner. for a perpetual injunction and for recovery of damages. During the pendency of the suit, Meghrai plaintiff died and his son Dulichand came on record to continue the suit. His two daughters Mst. Bhanwari and Mst, Chanwari were impleaded as defendants Nos. 6 and 7. The plaintiff has a house in Mothalla Surana in the city of Bikaner. Towards the east of the plaintiff's house, the house of the defendant Bhairondan and his three brothers is situated. All the four brothers are defendants Nos. 1 to 4. Municipal Council. Bikaner is defendant No. 5. Towards the north of the house of the plaintiff and that of the defendants is a 'gali' and is admittedly a public lane.
2. The allegations of the plaintiff in the suit are that the defendants have constructed a projection at the height of 9 feet 10 inches towards the 'gali' extending to 3 feet. The projection is in the form of a balcony and is 9 feet in length on the first floor of the defendants' house. This has been shown as 'A' in the map Ex. 3 filed with the plaint The plain-tiff's averment in this regard is that on account of the construction of the balcony, the beauty of his house has been substantially marred and anyone in his house is not able to see the 'rasta'. It has not been clarified which 'rasta' the [plaintiff refers to. Even in the map Ex. 3, the 'rasta' referred to has not been shown. Another averment of the plaintiff is that the defendants got constructed a flush latrine in the north-west corner of their house on the first floor. This has been shown as 'B' in the map Ex. 3. The plaintiff also made a grievance for (the pipe C to D put up by the defendants to carry the urine and dirty water (from the second floor. Yet another grievance made by the plaintiff is about the construction of a soak pit in the lane and which has been shown as 'E' in the map Ex. 3. It was alleged by him that on account of the soak pit the lane has been narrowed down. The plaintiff also alleged that constructions 'F'. 'G' and 'H' were also made by the defendants in their house after having damaged Ms wall and In respect of that he claimed damages inthe amount of Rs. 100/-. The plaintiff proceeded to say that all these constructions were made by the defendants without the permission of the Municipal Council. Bikaner. He apprehended that they are likely to compose the matter with the Municipal Council. He accordingly prayed for the demolition of the projection 'A', the closure and removal of the pipe line CD and the constructions'B', 'E' and 'F' and further prayed for a perpetual injunction restraining the defendants from making such further construction. Against the Municipal Council it was prayed that it be restrained from making any compromise with the defendants with regard to these constructions.
3. Defendants Nos. 1 to 4 contested the suit. By their joint written statement dated 8-4-1960 it was admitted that a balcony was constructed by them at a height of about 10 ft. from the ground in the first floor of the house, but it was averred that it did not impair the beauty of the plaintiff's house, nor did it infringe any of the plaintiff's rights. As regards the flush latrine, it was alleged that it was constructed in their house and the soak pit was under the staircase outside the, house but in their Patta Sud land. The soak pit did not narrow the lane. As regards the urinal and the two pipes C to D it was stated that they did not construct any urinal and the two pipes C to D put up by them in second floor of the house were only meant to carry the rain water. Asregards the constructions F. G. and H, it was alleged that they were made in their house and no damage was caused to the plaintiff's property. These constructions according to the defendants, were made at a distance of 8 inches from the plaintiff's house and as such, they were not entitled to any damages.
4. The Municipal Council, Bikaner also resisted the suit. It was, however, admitted by the Municipal Council that certain constructions were made by the defendants without prior permission. The projection was made in an unauthorised manner and similarly, as regards the soak pit, it was stated that it was made on a public lane and proceedings had already been started against the defendants under the provisions of the Raiasthan Municipalities Act. 1959. The matter completely falls within the purview of the Municipal Council and it can deal with the same under the provisions of the Act. It was also contended that the answering defendant has been given powers to compound certain offences under Section 226 of the Municipalities Act and those rights cannot be taken away by the Civil Court and as such the present suit is not maintainable so far the Municipal Council is concerned.
5. The trial Judge framed necessary issues in the case and after having recorded the evidence, dismissed the plaintiff's suit on 26-10-1962. On appeal against the decree, the learned Civil Judge. Bikaner by his judgment dated 24-11-1963 framed an additional issue and sent the case back for a fresh decision. The Munsif Bikaner then by his judgment dated 14-9-1964 decreed the plaintiff's suit in part. He held that the projection constructed by the defendants obstructed the view of the road and the defendants as strangers to the property about the public lane had no right to construct that balcony and the plaintiff could claim, its removal. He also inspected the spot and according to him while standing in the house of the plaintiff, one could not fully observe the road. Accordingly, he ordered the demolition of the projection 'A' and also restrained defendants Nos. 1 to 4 from making such projection in future which may have the effect of obstructing the view of the road from the plaintiff's house. Rest of the plaintiff's claim was dismissed. Being aggrieved of this judgment and decree, the respondents Nos. 1 to 4 preferred an appeal in the court of District Judge. Bikaner. Plaintiff Dulichand also filed a cross-objection. The learned Judge in appeal, while dismissing the cross-objection, accepted the defendants' appeal and dismissed the plaintiff's suit in toto. It is against this judgment and decree thatthe plaintiff Dulichand assails in this second appeal.
6. It may also be noticed here that on enquiry, the Municipal Council Bikaner found that the constructions in question were in excess of the permission granted to them. The Municipal Council then ordered demolition of the constructions which were found to be without prior permission. Bhairon Das defendant filed an appeal in the Municipal Council. While the appeal was pending, he compromised the matter with the Council on 15-9-1961. As a result of the compromise, he paid a sum of Rs. 200/- as fine. The constructions were then regularised and his appeal was ordered to be dismissed as having become infructuous. One Pannalal another neighbour of the defendants took up the matter to the Revenue Appellate Authority, but he met with no success. He again preferred a revision before the Board of Revenue. The Chairman of the Board of Revenue who heard the case allowed the revision, set aside the order of the Municipal Council dated 15-9-1961 by which the matter was compounded. This order of the Board of Revenue Is on record. Bhairondas defendant challenged that order of the Board of Revenue In D. B. Writ Petition No. 917/64 under Article 226 of the Constitution of India in this Court. On April 15. 1966, the order of the Board of Revenue dated 9th March, 1964 was set aside. This decision is reported as Bhairondas v. Chairman, Board of Revenue ILR (1966) 16 Raj 856.
7. Mr. Bhargava on behalf of the appellant has confined his case only with regard to the projection 'A' and the soak pit 'E'. Learned counsel contends that the lane in front of the plaintiff and the defendants* house, though a blind lane, is admittedly a public lane. The width of the lane is not uniformly the same. Towards the west its width Is 9i ft. In front of the plaintiff's house it is 8 feet, whereas in front of the defendants' house towards the west, it is 111 ft. and towards the east it is only 51 ft. and a little farther it is 71/2 ft. According to his submission, the main road lies towards the east and it runs north to south and the lane which runs from the west later on intersects it towards the east. The defendants have no proprietary right in the lane and, as such, the construction of a projection 3 ft. wide towards the north is definitely unauthorised and this is responsible for impairing substantially the beauty of the plaintiff's house. It is also urged that if one stands on the first floor of the plaintiff's house, he will not be able to observe the road towards the east. The basis of these submissions is that the plaintiff is entitled to all the natural rights appurtenant to his house and the defendant has no right to cause any obstruction into his rights. He has placed reliance on a decision of this Court in Anopchand v. Misrilal, 1963 Raj LW 268.
Another line of argument that has been advanced by Mr. Bhargava is that the lane in front of the plaintiff and the defendants' houses is a public street over which public has a right of way and this right cannot be encroached upon even by the Municipal Council who is supposed to be the proprietor of the public street. He placed reliance on the proposition that the soil under the public lane and the air space above it up to the sky belongs to the Municipality. It was not open even to the Municipality to raise any construction as to infringe the natural rights of the plaintiff and if an encroachment is found to have been done by the Municipality, the plaintiff Is entitled to get it removed. Reliance has been placed on Campbell v. Mayor. Aldermen, and Councillors of the Metropolitan Borough of Paddington, (1911) 1 KB 869. He has also referred to a judgment of this Court in Ladhuram v. Municipal Board,. Ganganagar, 1967 Raj LW 255 and a D. B. judgment confirming the same in Pyarelal Satpal v. Sentlal. 1972 Raj LW 51 = (AIR 1972 Rai 103). On the other hand. Mr. Bhandari has argued that the law does not recognise a view or prospect from the house as a right in the nature of an easement which can belong to anybody es of right.
It is also submitted by him that Anopchand's case, 1963 Raj LW 268 is not an authority for the proposition advanced by Mr. Bhargava. Similarly, he distinguished the other cases referred to by Mr. Bhargava. That apart. It has been submitted on behalf of the respondents that to make a projection on the public street is not per se wrong, as it Is permissible under the provisions of the Municipal Act. But In case a projection has been constructed without the permission of the Municipal Board, it is an offence under the Municipal Act and It can be dealt with under the provisions of that Act. Reliance has been placed on Sections 194 and 266 of the Raiasthan Municipalities Act, 1959. As regards the soak pit. It has been urged by Mr. Bhandari that it has been constructed underneath the surface of the lane. The plaintiff as a member of the public has only a right to pass and re-pass and use the surface in a reasonable manner. The plaintiff cannot make any claim either on the soil under the surface or in the space above the surface so long his right of passing end repassing is not interfered with.
8. In the Rajasthan Municipalities Act. 1959 (Act No. 38 of 1959), 'public street' and 'street' have been defined in Sections 3 (26) and 3 (32) and it reads as under:--
'(26) 'public street' means any street-
(a) over which the public have a right of way or
(b) which has heretofore been levelled, payed, metalled, channelled, sewered or repaired out of Municipal or other public funds, or
fc) which, under any provision of this Act becomes a public street;
(32) 'Street' means any road, bridge, foot-way, lane, square, court, alley or passage accessible, whether permanently to the public or any portion of the public, whether a thoroughfare or not and includes on either side-
(i) the drains or gutters and the land up to the defined boundary, notwithstanding the projection over such land of any verandah or other superstructure.
(ii) every apace notwithstanding that it may be private property or Partly or wholly obstructed by any gate, post chain or other barrier, if It is used by any person whether or not occupying any abutting property, as a means of access to or from any public place or thoroughfare;'
According to Section 92 (2) (t), all public streets and the payments, stones and other materials thereof, and also all trees, erections, materials, implements and things provided for such streets vest in the Municipality and the Municipality holds the same as a trustee. There is no dispute between the parties that the 'gali' in front of the house of the plaintiff and that of defendants Nos. 1 to 4 is a public street and it belongs to the Municipality. That being so all the members of the public have a right of way in that public street. The right extends to everyone for the general purpose of passing and repassing. It is settled law that that right of the public to pass and to repass over a public street is subject to all those reasonable restrictions which may from time to time be recognised as necessary to its exercise in accordance with the the larged notions of the people in the country, This right however, does not extend to the subsoil, that is the soil underneath the surface of the public street, nor does it extend above it in the air space. It is admitted that the defendants' balcony extends to 3 feet in width on the public street at a height of about 10 feet in the air space. Therefore, the defendant had no right to construct that balcony without, the permission of the Municipal Council, Bikaner the latter being theproprietor of the space. Section 194 of the Municipalities Act, 1959 empowers the Municipal Board to give written permission to the owners or occupiers of buildings in public streets to put up open verandahs, balconies or rooms to project from any upper storey thereof, at such height from the surface of the street as the Board may fix from time to time. Sub-section (2) further makes the putting up of such projection without permission of the Municipal Board or in contravention of the orders punishable. A reading of Section 194, therefore, makes it clear that the owners and occupiers of building abutting on the public streets can make balconies with the permission of the Municipal Board and if the balcony has been constructed without prior permission of the Municipal Board, it is punishable under Subsection (2) of Section 194. By another provision, the Board has power to compound offences in some matters.
Section 266 of the Act deals with such cases. It reads as under:--
'Section 266, Power to compound offences -- A Board may-
(a) compromise with any person who in the opinion of the Board has committed an offence punishable under this Act or any bye-law thereunder and on such compromise no proceeding shall be taken against such person in respect of such offence;
(b) withdraw from prosecutions instituted under this Act or under any bye-law made thereunder;
(c) compound any offence against this Act or against any bye-law made thereunder which may, by rules made by the State Government, be declared compoundable,'
9. Thus. It is abundantly clear that making of a balcony and constructing projections in a building abutting the public street is permissible with prior permission and construction without permission can be compounded by the Municipal Board. In this view of the matter, it can safely be deduced that making of a protection in a building abutting on the public street is not per se illegal.
10. Reliance has been placed on 1963 Raj LW 268. On the basis of this authority, Mr. Bhargava has argued that on account of unauthorised construction of the balcony, the plaintiffs right to observe the road from his house is obstructed and it can be ordered to be demolished. I am unable to accept this contention. In the case referred to above, the facts are clearly distinguishable. In that case, plaintiff opened two windows in his shop towards the south. The defendants who were neither the owners nor the occupiers of the adjoining land or of the neighbourhood constructed a wall adjacent to the southern wall of the plaintiff's shop and thereby closed the two windows. The plaintiff filed suit for demolition of the wall by the defendants and for a permanent injunction restraining the defendants from closing the windows. It was alleged by the plaintiff that the land on which the wall was erected by the defendants was a public lane and the defendants had no right to erect the wall and close the windows, thus obstructing the passage of light to his shop. The defendants pleaded that the wall in question was an old wall of the 'pol' at the spot and it belonged to them. Both the lower Courts dismissed the plaintiff's suit holding that the plaintiff had not acquired any right of easement for the passage of light and air through the windows. It was also held that the defendants had no right of ownership or occupation of the land where they had erected the wall, it being the State land serving as a public lane. The question that arose in the second appeal was whether the plaintiff could maintain the suit for demolishing the construction raised by the defendants, the plaintiff having acquired no right of easement by prescription and the defendants being neither the owners nor the occupiers of the land over which they had erected the wall. Bhandari, J. (as he then was) held that the plaintiff being the owner of the shop had certain advantage of enjoying lateral light arising out of the situation of the land.
He quoted with approval the observation of Bramwell L. J. in Bryant v. Lefever, ( (1879) 4 C. P. D. 172) :--
'What, then Is the right of land and Its owner or occupier It is to have all natural incidents and advantages as nature would produce them; there is a right to all the light and heat that would come, to all the rain that would fall, to all the wind that would blow; a right that the rain which would pass over the land would not be stopped and made to fall on it; a right that the heat from the sun should not be stopped and reflected, but should be able to escape freely; as if it were possible that these rights be interefered with by one having no right, no doubt an action would lie. But these natural rights are subject to the rights of adjoining owners, who, for the benefit of the community, have and must have rights in relation to the use and enjoyment of their property that qualify and interfere with those of their neighbours' rights to use their property in various ways in which property is lawfully andcommonly used.'
He was also of the opinion that the natural advantages of receiving lateral light are liable to be disturbed by the owner or the occupier of the land in the neighbourhood if he makes any construction over his land. But all that does not mean that the natural advantages arising out of the situation can be disturbed by any person who has no right in himself to cause such disturbance. It would be very curious state of affairs if a right is given to a passer-by to close a window in a building without showing that he has suffered any injury by the window remaining open. As a result of this he concluded that as against a stranger who has no right on the neighbouring land, the owner of a plot of land may insist that there should not be any disturbance in the enjoyment of natural light In that case the finding of the courts below was that the defendants were strangers. He accordingly decreed the plaintiff's suit In the present case, the defendants are not strangers. They have their house abutting on the public street and as already noticed above, they have a right to make a projection or construct balcony with the Prior permission of the Municipal Board subject to the conditions laid down by it and that apart, the constructions were not made by the defendants on the surface of the soil. In this view, the case of Anopchand decided by Bhandari, J. does not lend any support to the plaintiff's case.
11. Mr. Bhargava also Invited my attention to the case of the Municipal Board, Mangalaur v. Mahadeoji Maharaj, AIR 1965 SC 1147. After having read this decision, I am of opinion that it does not advance the case of the plaintiff any further. In the Supreme Court case there was metalled road running through a plot of land belonging to the plaintiffs and on either side of the metalled road there was open space end on either side of the open space there was a municipal drain. The public had been using the road for decades and the Municipality had been maintaining the road and the drains. The Municipality was seeking to erect a structure on the vacant site lying between the road and the drain where it intended to instal a statue of Mahatma Gandhi and also to put up two rooms on either side for a water booth and a library. The plaintiff brought a suit for permanent Injunction restraining the defendant Municipality from putting up the structure on the suit site and also for delivery of possession of the same to the plaintiff. The plaintiff's suit was decreed by the trial Court. It was reversed by the first appellate Court But the High Court of Allahabad set aside the appellate order and restored the decree of the trial Court The case went before the Supreme Court. It was held by their Lordships of the Supreme Court that thesuit site was a part of the public pathway and it vested in the Municipality as a trustee. The Municipality had exclusive right to manage and control the surface of the soil and 'so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street'. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.
It was further held that the Municipality could not put up the structures which it intended to erect on the vacant site as it could not be said that they were necessary for the maintenance or user of the road as a public highway. The Supreme' Court maintained the decree of permanent injunction, but dismissed the suit for possession as no possession could be restored on the public pathway. This is obviously a case in which an obstruction was contemplated by installing a statue and by erectins a 'piyao' and a library on a part of the road. That was obviously on the surface of the soil. In the present case, the position is different. The obstruction has not been created on the surface of the soil so far the balcony constructed by the defendants is concerned.
12. Much stress has been placed on Campbell v. Paddington Corporation, 1911-1 KB 869. In that case the plaintiff was in possession of a house in London from the windows of which there was an uninterrupted view of part of a certain main thoroughfare along which it was announced that a public procession was to pass. The plaintiff rented out certain seats on the first and second floors of the house in order to see the procession. The defendants, a Metropolitan Borough in pursuance of a resolution of their Council to that effect caused a stand to be erected as regards a certain highway in which the plaintiff's house was situated to enable the members of the Council and their friends to view the procession. On account of this obstruction, the prospective lessees refused to come to observe the procession from the plaintiff's house. The plaintiff filed a suit for recovery of damages. It was held in that case that the Metropolitan Borough was not entitled to erect a stand as it was not compatible for the purpose for which it was meant. The stand erected by the borough was held to be a nuisance and the plaintiff was found to be entitled to recover the profit which but for the defendants' act she might have made by letting seats as damages. On the basis of thisauthority. Mr. Bhargava argued that even the Municipal Council. Bikaner could not have put up a balcony as to cause obstruction to the view which the plaintiff was entitled to from his house. It was also urged by him that the plaintiff had a right while standing on the first floor of his house to view the road and this having been obstructed by the balcony erected by the defendants he is entitled to its removal. According to him the plaintiff had an enforceable right. After having read this authority, I am unable to accept this contention.
Avory, J. in his judgment observed as follows:--
'I agree that the law does not recognize a view or prospect from a house as a right in the nature of an easement which can belong to anybody as of right, and that no period of enjoyment will give a person a right of action against another who on his own land erects a structure or plants trees which obstruct the view or prospect.'
13. The relevant observation of Lush. J. can also be aptly reproduced below :--
'The main point taken on behalf of the defendants was that a right to have a view or prospect from the windows of a house is not a right recognized by the law. No doubt that is true; but the meaning of the proposition is that if a person by an act not otherwise unlawful interferes with the view or prospect from a house the owner or occupier of the house has no right of action. In the same way, where a person without having acquired a right of light enjoys in fact the uninterrupted access of light to his windows he has no legal right to complain of the conduct of another who by an innocent act obstruct that light In short, in the one case as in the other the person affected has no right In the sense that he has no easement. But in the present case the act of the defendants, apart from depriving the plaintiff of the view or prospect from her windows, was a wrongful act on independent grounds, end not merely in that it deprived the plaintiff of the view or prospect from her house. The defendants begin with an act wrongful in itself: if such an act is the source and origin of loss to the plaintiff, then, provided the loss is sufficiently closely connected with the wrongful act, it is a loss for which the plaintiff is entitled to redress. There are many cases of wrongful acts causing the loss of the enjoyment of a benefit which could not be enforced, where nevertheless it has been held that damages are recoverable.'
The learned Judge further observed:--
'The plaintiff was in the enioyment of a benefit which no doubt she couldnot enforce; but the moment the defendants by their wrongful act of obstruct tion deprived the plaintiff of that benefit, they caused her particular damage which was the direct result of their wrongful act.'
Their Lordships clearly held that a right to have a view from the windows of a house is not a right which is recognised by law end it cannot be enforced. Plaintiff's suit in that case was decreed on the ground that the act done by the Metropolitan Borough was wrongful and it resulted into a pecuniary loss to her. This authority does not support the proposition that has been contended by learned counsel for the appellant.
14. Reliance has been placed on 1967 Raj LW 255 (supra). The decision was confirmed in Special Appeal in 1972 Raj LW 51 - (AIR 1972 Raj 103) (supra). There was a bunch of cases arising from Ganganagefr and they were decided by these judgments. In the Dhan Mandi area of Shri Ganganagar town there Is a road leading from the Kotwali to the Lakhar Mandi known as Kotwali road. At right angles to it towards its western end is the Dharamshala road. Both these are public roads. Some of the plaintiffs had their buildings abutting on the Kotwali road or on the Dharamshala road. The Municipality of Ganganagar let out substantial portions of these public roads to various persons on 'tehbazari' basis for putting up temporary wooden stalls for the purpose of using them as shops. In pursuance of that, stalls were put up by the persons who were joined as defendants in the suit. In between the stalls and the properties of the plaintiffs there was left some narrow strip of land between two to three feet wide. As a result, a considerable part of the two public roads was substantially reduced. The plaintiffs filed a suit for mandatory and perpetual injunction. This Court held that the plaintiffs could maintain the suits without proof of special damage, though It was also found that special damage in these cases was established.
It was further held that the Municipal Board. Ganganagar was not empowered to let out the public road to the other defendants for building their stalls as It was not compatible to the use for which the road was constructed. The plaintiffs' suits were ultimately decreed. On the analogy of these decisions Mr. Bhargava urged that the defendants cannot be allowed to maintain the balcony which caused obstruction to his light and air and his right of view from his house to the road. I am unable to accept this contention. The facts of the Ganganagar case, as noticed above, are dearly distinguishable. The obstructionin those cases was on the surface of the soil, that is on the public highway itself, whereas the obstruction in this case is in the air space at a height of 10 feet and with regard to which he has not been able to say as how it interfered with his right to pass and repass on the public street That apart, the plaintiff did not set up the case that there was any diminution of air and light on account of the balcony constructed by the defendant. The decisions in the Ganganagar cases do not support him.
15. As a result of the foregoing discussion, I am clearly of the opinion that the mere obstruction to the view of the road from one's building or place of business does not per se give rise to a cause of action unless the obstruction affects his right of access or if it otherwise, causes damage to his building. In short, the obstruction must cause a pecuniary loss to him. Accordingly. I agree with the conclusions arrived at by the lower appellate Court and I affirm the same.
16. Another contention raised on behalf of the appellant is that a soak pit has been constructed by the defendants in the public street. It is admitted that the soak pit is beneath the surface of the public street and half of it is under the staircase in front of the defendants' house. As already held above, the street being a public street, the plaintiff only had a right to pass and repass and to use the public street subject to all those reasonable restrictions. The plaintiff had no right on the sub-soil or the soil below the surface of the public street. The existence of a soak pit, therefore, does not cause any obstruction in his rights on the public street. His contention that the construction of a soak pit is a trespass is untenable. I am also unable to find that the soak pit has in any way narrowed the width of the street. The width of the lane is not uniform, as stated above. I am, therefore, clearly of the opinion that no rights of the plaintiff have been infringe ed on account of the soak pit
17. No other point was argued.
18. I find no force in this appeal and it is hereby dismissed with costs.
19. Learned counsel for the appellant prays for leave to appeal to a Division Bench. I do not think it to be a fit case for grant of leave. The prayer is rejected.