Ila Pal Chowdhury vs K.C. Dutt

P.N. Mookerjee, J.—This is the Plaintiff''s appeal against the dismissal of her suit on the preliminary ground that it is not maintainable in law. The suit was one for mandatory injunction or for damages in the alternative, for inter alia alleged violation of certain building rules of the Calcutta Corporation in the matter of construction of a certain structure by the Defendant No. 1 K. C. Dutta in his premises No. 83 Chowringhee Road. In the plaint there were allegations of collusion, culpable negligence and gross dereliction of duty against the Corporation of Calcutta which was made Defendant No. 2 in the suit. The Plaintiff also complained of obstruction of light and air of her premises No. 13, Chowringhee Terrace, adjoining the Defendant''s premises No. 83, Chowringhee Road, by reason of the offending unauthorised construction and its adverse effect on the sanitation thereof and made general allegations of inconvenience, disadvantage, loss and damage, and damages were claimed against both the Defendants jointly and severally as alternative to the Plaintiff''s prayer for demolition of the offending structure which affected or purported to affect only the owner Defendant No. 1.

There were several issues, framed in the suit, including an issue as to maintainability of the action in law which appears to have been urged as a preliminary objection at the hearing and the learned Subordinate Judge, having agreed with the Defendants on this point, dismissed the Plaintiff''s suit upon the view that, for the alleged breaches of the Municipal law, the Plaintiff can have, in the circumstances of the present case, no remedy in the Civil Court against the offending owner, Defendant No. 1, or the Municipal Corporation, Defendant No. 2. The propriety of this view is challenged by the Plaintiff in her present appeal.

The learned Subordinate Judge dealt with the case upon the footing that the sole question before him was whether the violation of the building rules was actionable per se or, as he put it in one place in his judgment, whether, "apart from nuisance or trespass, a neighbouring owner can bring a suit for the violation of building rules of the Corporation." In so doing, the learned Judge assumed that the Plaintiff''s claim of relief was not founded upon any complaint of trespass or nuisance. It will be necessary to consider whether this assumption is correct.

The learned Subordinate Judge held that, apart from trespass or nuisance, a neighbouring owner cannot bring a suit for violation of building rules and such violation was not actionable per se and, simply upon that finding, he dismissed the Plaintiff''s suit. We do not think that, in the facts of this case, this dismissal can be supported, although we have no doubt in our mind that the learned Judge''s view on the legal question raised by him, is correct.

To explain ourselves it is necessary to state a few facts:

The Defendant No. 1 is the owner of premises No. 83, Chowringhee Road and the Plaintiff is a neighbouring owner, her premises being the adjoining premises No. 13, Chowringhee Terrace.

The offending two-storeyed structure was built by the owner Defendant No. 1 in his premises No. 83, Chowringhee Road, without submitting any plan to the Municipal authorities and without obtaining their sanction.

The said offending structure extended up to the boundary line between the Plaintiff''s and Defendant No. l''s above premises and left no side space as required by the Municipal building rules, nor did it leave any sufficient back space under the said rules.

Upon the Plaintiff''s complaint, a demolition case was started by the Building Department of the Calcutta Corporation before the Building Standing Committee which was eventually dropped, thus compelling the Plaintiff to institute the present suit. Later on, however, during the tendency of the suit a demolition case was started by the Municipal authorities before the Municipal Magistrate in respect of a portion only, namely, the second storey of the offending structure, culminating in an order for partial demolition of the same.

The Plaintiff questioned the bona fides of the Corporation (Defendant No. 2) and alleged inter alia that it was guilty of collusion, culpable negligence and gross dereliction of duty and claimed damages against this Defendant as well as part of her alternative claim (vide paragraph 10 and prayer (c) of the plaint). The plaint also alleged inter alia obstruction of light and air to the Plaintiff''s premises to the prejudice of its sanitation (vide Paragraphs 8, 9 and 11).

We have carefully read the plaint and noted its contents. We do not think that in the face of Paragraphs 8, 9 and 11, the learned Subordinate Judge was justified in assuming that the Plaintiff was making no case of actionable nuisance. There was certainly no averment of trespass, but, in our opinion, the plaint contained sufficient allegation to make out a case of actionable nuisance. In this context, the allegations against the Corporation may also require investigation. We do not think, therefore, that the learned Subordinate Judge was justified in dismissing the suit on the preliminary ground and in disposing of it on the bare preliminary point of law without entering into evidence at all. In this view a remand is inevitable, but, before we make any order in that behalf, we deem it necessary and proper to express our views on the propriety or otherwise of the learned Subordinate Judge''s decision on the point of law which was eventually answered by him against the Plaintiff Appellant leading to the dismissal of her suit. On this point we shall immediately advert to the rival contentions.

The Appellant contended that violation of building rules was per se actionable and it was unnecessary to allege and/or prove trespass or nuisance to sustain or support the action. The Respondents, on the other hand, contended that such violation was not per se actionable and, apart from nuisance or trespass, there was no cause of action for suit. The learned Subordinate Judge has accepted the Respondents'' contention and, in our view, he is entirely right in so doing. We do not, of course, agree with him in his method of approach, nor do we endorse some of his observations, made in the course of discussion on this point, but we entirely agree with this ultimate conclusion on this point of law, though, as we have sufficiently indicated above, he was not justified in dismissing the present suit simply because he found in favour of the defence on the said question of law.

The Calcutta Municipal Act, 1923, which admittedly applies to the disputed construction, enacts in Section 319 that "no piece of land shall be used as a site for the erection of a new building, and no new building shall be erected, otherwise than in accordance with (a) the provisions of this Chapter and of Schedule XVII, and (b) any orders, rules or by laws made under this Act, relating to the use of building-sites or the erection of new buildings, as the case may be." The relevant rules in Schedule XVII are Rules 30 and 32 regulating back space and side space and they provide as follows:

(1) There shall be, at the back of every domestic building, an open space extending along the entire width of the building and forming part of the site thereof.

(2) The said space shall be of such width that any of a series of imaginary lines drawn across such space at an angle of sixty-three and a half degrees with the horizontal, from points on a level with the plinth of the building and situated on that side of the said space which is furthest from the building, shall not intersect any portion (other than open or balustrade parapets not more than four feet in height) of the building:

Provided as follows:

(i)The minimum width of such space shall be ten feet;

(ii)In the case of three-strayed buildings the angle referred to in this rule shall be increased from sixty-three and a half degrees to sixty-eight degrees; and

(iii)In the case of any building in which there are both an outer and an inner courtyard a minimum distance of six feet shall be permitted.

(3) If it is proposed to erect one or more buildings on the site of an existing building or if two or more buildings are proposed to be erected on any one site (whether or not such buildings are connected by means of verandahs or gangways or in any similar manner), the open space referred to in Sub-rule (1) shall be provided at the back of each such building.

(4)This rule shall not apply in the case of

(a) building the back of which abuts on a public square or street or a place dedicated to public use and not likely to be built upon not less than sixteen feet in width;

(b) a building the back of which abuts on a public street less than sixteen feet in width, if the owner makes a free gift to the Corporation of all land comprised within the site of the building, which falls within eight feet of the centre line of such street as prescribed by the Corporation under Rule 3, Sub-rule (6); and

(c) A building to which Rule 24 applies:

Provided that, in cases (a) and (b) the height of the building shall, in accordance with the provisions of Rule 3, be regulated by the width of the public square or street on which it abuts.

(5) For the purposes of this rule, the back of a building shall be deemed to be that face of the building which is furthest from any street at the side of which the building is situated:

Provided that, where a building is situated at the side of more than one street, the back of the building shall, unless the Corporation otherwise direct, be deemed to be that face of the building which is furthest from the widest of such streets.

(1) Except in the case of buildings to which Rule 24 applies, if either side of a domestic building is not attached to the adjacent building, and if such side does not abut on a public square or street which is not less than six feet in width, or on a private street or partition passage which, in the opinion of the Corporation, is likely always to be kept open to the sky and which is not less than eight feet in width, there shall be between the buildings an open space extending along the entire length of such side and forming part of the side of the said domestic building:

Provided that attachment of any building to the adjacent building shall not be allowed (except with the permission of the Corporation) in areas declared for the purpose if either of the buildings is a dwelling house.

(2) The minimum distance across such space from every part of the said domestic building to the boundary line of the land or building immediately opposite such part shall be

(a) six feet, if there is a building next to such boundary line, or within two feet of it, or

(b) four feet if there is an open space of two feet or more on the other side of such boundary line:

Provided that where there is a public street by the side of the site which is less than six feet wide, the owner may, by giving to the Corporation free of charge such land as will make the street six feet wide, be exempted from leaving further side space under this rule.

(3) Notwithstanding anything contained in this rule, where a site adjacent to the side of a proposed building is not occupied by a masonry building situated within ten feet of the boundary line between the two sites and within twenty four feet from the frontage of the street on which the two sites abut, the proposed building may, with the sanction of the Corporation, be erected along the said boundary line up to a depth of twenty-four feet from such street frontage, unless, in the opinion of the Corporation, there is any objection to any building which may be subsequently erected on the adjacent site being attached to the building so erected.

"New Building" is defined in Section 3(46) which, read with Section 3(7), apparently leaves no room for doubt that the offending structure is a new building within the meaning of the statute. Prima facie, therefore, on the admitted facts, the disputed construction appears to have been made in violation, of the statute. This has not been disputed at least for purposes of the present proceedings and the defence has agreed to the decision of the point of law, with which we are now concerned, upon the footing that the offending structure has been erected in violation of the statutory Rules 30 and 32 of Schedule XVII of the Calcutta Municipal Act, 1923. The infringement of Rule 52 of the said schedule, which requires Corporation sanction for the erection of every new building, cannot obviously form the foundation of a private action, or cause of action for the same and cannot certainly assist the Plaintiff more than the other rules referred to above. No further reference, therefore, need be made to Rule 52.

Rules 30 and 32 are controlled by Rule 94, read with Section 331, which two provisions empower the Corporation to relax the said two rules in certain cases, but subject to Proviso (2) of the said section which runs as follows:

such relaxations are not likely prejudicially to affect the sanitation or ventilation of the building or other buildings in its vicinity.

To complete our reference to the relevant provisions of the Act, it is necessary to mention two other sections, namely, Section 363 and Section 493 which are penal sections, providing for certain penal consequences in cases of breaches of the building regulations.

Where a statute creates a particular right or imposes a particular duty and provides penalties or consequences for its breach or infringement to be enforced in a particular manner, the remedy so provided is usually the exclusive remedy. That, indeed, is the general rule. It is, however, subject to exceptions and a question often arises whether a particular case falls within the general rule or the exceptions. The nature of the obligation, namely, whether it is owed to the public generally or to a particular class of persons or to individuals, or, in other words, whether the corresponding right is only a public right or a private right as well, though often helpful, is not always decisive or conclusive. The decision really depends upon the scope and language of the statute which creates the obligation and on considerations of policy and convenience. The authorities on this point are too numerous and reference need be made only to Pasmore v. The Oswaldtwistle Urban District Council (1898) A. C. 387, Philips v. Britannia Hygienic Laundry Company Ltd. (1923) 2 K.B. 75, Monk v. Warbey and Ors. (1947) K.B. 497, Clarke and his wife v. Brims (1935) 1 K.B. 75.

Where again a public body, entrusted with the performance of a statutory duty, acts mala fide or with gross negligence in the matter of such performance and causes damage to a private individual, if there be nothing to the contrary, either express-or implied, in the particular enactment, that body may be answerable in damage to the party injured, notwithstanding specific provision in the statute as to the mode or manner of enforcement of such performance.

A fortiori where there is no such specific provision, the remedies under the general law are open to the aggrieved party and there again he is not necessarily restricted to mandamus or mandatory injunction which may not always be adequate or appropriate.

We have quoted the relevant statutory provisions and stated the relevant principles. Reading the statute in the light of those principles it seems to us that, in the matter of construction of new buildings, the Calcutta Municipal Act created a right in favour of at least the adjoining or the neighbouring owner to insist on the keeping of proper side space and back space as provided in Rules 30 and 32 subject, of course, to the provisions of Rule 94 and Section 331. Such right, however, in cases not coming within the mischief of Proviso (2) to Section 331, was to be enforced only in the manner provided in the statute itself, that is, through the agency of the Corporation under Sections 363 and 493 of the Act. Where, however, Proviso (2) would not protect the particular infringement so far as the neighbouring owner is concerned, the latter is not confined to remedies under the special statute and need not seek relief through the Corporation but he can avail himself of the remedies under the general law, applicable to cases of actionable nuisance. To be so actionable, the particular infringement must be affecting the sanitation or ventilation of the neighbouring owner''s premises, which means that it would amount to a nuisance resulting in damage and so actionable at law. There can be no question also that trespass is per se actionable and, where the particular infringement amounts to trespass in law, the ordinary remedy of suit in the Civil Court is open to the aggrieved party, there being nothing either express or implied, in the Municipal enactment excluding such a course. We agree, therefore, with the learned Subordinate Judge in holding that violation of the building rules would not be per se actionable and that, apart from nuisance or trespass, such violation would not entitle the neighbouring owner to sue an owner of the offending construction in the Civil Court. As against the Corporation, the objector may proceed by way of mandamus if there be breaches of the building regulations and the Corporation acts mala fide in the matter and neglects or refuses to take appropriate steps under the law against the same, the more so where the breaches have resulted in an actionable nuisance but, in the latter case, mandamus will not be only remedy open to the aggrieved party and he may sue both the offending owner and the Corporation in the Civil Court for injunction, damage or other appropriate relief.

In the light of what we have stated above, and in the view which we have taken of the plaint in the present case, the learned Subordinate Judge''s dismissal of the suit on the preliminary point cannot be supported, as clearly enough it may be necessary to investigate whether the offending structure, as it stands after the partial demolition, ordered by the Municipal Magistrate, amounts to a nuisance in the sense of endangering the health and sanitation of the Plaintiff''s premises and rendering it insanitary. If the answer to that question be in the negative, the Plaintiff''s suit would no doubt fail, but, in case of an affirmative answer, the Plaintiff will be entitled to appropriate relief or reliefs against the offending owner (Defendant No. 2) if the latter''s other defences be overruled, and also against the Corporation (Defendant No. 1) if it be found to have acted mala fide or with gross negligence in the matter of performance of its statutory duty and its other defences fail. For the above purpose, the case must go back to the court below which will decide it finally in the light of the observations, made in this judgment.

Before concluding it is necessary to refer to the three decisions of this Court, reported In Re : Lakshmi Moni Dassi (1940) 45 C.W.N. 401 ; Arayilagath Chandroth Mohamed and Anr. v. Corporation of Calcutta (1940) 45 C.W.N. 408; Hirendra Nath Dutt v. Corporation of Calcutta (1940) 45 C.W.N. 413. Both parties relied upon these decisions though for different purposes. The Plaintiff Appellant cited them to support her contention that violation of the side space and back space rules constitutes an infringement of a legal right of the neighbouring owner and so actionable per se in the Civil Court against the offending owner. The Respondents, on the other hand, placed strong reliance on those three decisions for the purpose of showing hat in cases of infringement of building rules, mandamus against the Corporation is the only remedy open to the aggrieved party. We do not think that either of these extreme contentions correct and the decisions cited do not support either of them, In all the said three cases there were clear findings that the cr�ches complained of were prejudicial to the sanitation or ventilation of the neighbouring buildings and the relief or remedy under consideration there was only the issue of mandamus and, although some of the observations of Edgley J. are very wide they do not think that even his decision can support the Plaintiff''s extreme contention. Nor would it be correct to hold, on the authority of any of those three cases, that, in case of breach of building rules, the aggrieved party can have no relief except by way of mandamus. In the facts of those three cases, their Lordships found that mandamus was an appropriate and adequate remedy and they had no occasion or necessity to consider anything more. In the above context, it is perfectly clear that the view we have taken in the present case would not be affected by any of the said three decisions.

In the result then this appeal is allowed, the decree of the learned Subordinate Judge is set aside and the case is sent back to the court below to be dealt with in accordance with law in the light of the directions given and the observations, made in this judgment. Costs of this appeal will abide the final result.

Renwpada Mukeherjee, J.

I agree.