K. Raman Menon vs Karnataka Nair Service Society

Anand Byrareddy, J.—Heard the learned counsel for the appellant. The learned counsel for the respondent remained absent. It is noticed that he has remained absent on the last occasion as well. Hence, the appeal is considered for disposal on merits.

The appellant was the plaintiff before the Trial Court and had filed a suit for declaration that the defendant had violated building bye-laws and put up construction of the building, which is on the southern side of the plaintiffs property in such a manner that it has interfered with the free flow of light and air. The defendant had entered appearance, but had not filed any pleadings. The court below had framed the following points for consideration:

"(1) Whether the plaintiff has established the easementary right of entry of light and air to his property on the southern side?

(2) Whether the plaintiff proves that the construction put up by the defendant over the suit schedule property is illegal and unauthorized?

(3) Whether the plaintiff is entitled for the relief of perpetual injunction as prayed in the suit plaint?

(4) Whether the plaintiff is entitled for the relief of mandatory injunction directing the defendant to demolish the wall and structure constructed on the first floor of its building facing the plaintiffs house and shops on the ground floor?

(5) What order or decree?"

Upholding the points in the ''Negative'', dismissed the suit, which is under challenge in the present appeal.

Though the learned counsel for the appellant has argued at length and has taken this court through the record to demonstrate that though the defendant had constructed the ground floor as early as in the year 1987, since the area was in a revenue pocket and was not under the control of any local authority, the building byelaws as are presently applicable were not capable of being enforced and therefore, the defendant had taken advantage of the same and with impugning constructed a building which is almost abutting the plaintiffs building, without leaving any space as required under the building byelaws which presently applicable.

The plaintiffs further case was that just prior to the filing of the suit, the defendant started putting up the first floor of the premises and in the process, has further intruded into the space between the plaintiffs property and the defendant''s property by way of constructing chajjas and pillars to support the first floor, which left no space absolutely between the property of the plaintiff and the defendant.

It is on this primary contention, that the suit was urged and documents were produced in support of the contention. The court below however has found that admittedly, the plaintiff had permitted the defendant to put up construction on the ground floor without any demur and it is only after construction of the first floor, which was almost complete, that the suit has been filed.

Apart from this, the Court has also taken note of the decision of this Court reported in S. Sundar Raj Vs. Vijayendra Kumar and Others, , in a similar situation where this Court has declined to grant any injunction in so far as alleged violation of building byelaws are concerned and that even if the same interfered with light and air of the plaintiff, the remedy was elsewhere and it was held that Civil Court had no jurisdiction and accordingly, dismissed the suit.

While the learned counsel for the appellant would canvass that the court below has not viewed the matter in the proper perspective when admittedly there is violation of building byelaws which directly interferes with the property of the plaintiff in as much as pillars have been put up almost on the compound wall of the plaintiff and the construction of the first floor has completely cut off light to the rooms of the plaintiff on the southern side, apart from restricting the flow of air and ventilation. It is unjust and a mis-carriage of justice to deny relief to the appellant.

However, the court below having found that any grievance ought to have been raised at the earliest point of time and before the competent authority, as the law does provide a remedy in such cases and therefore, the suit having been dismissed cannot be faulted. But that would not preclude the plaintiff from seeking appropriate remedy if there is any violation of building byelaws. Therefore, liberty is granted to the plaintiff to approach the competent authority to complain of the alleged violation, in respect of which action could be taken by the competent authority in accordance with law.

With these observations, the appeal stands dismissed without prejudice to the rights of the plaintiff to pursue his remedies.