Narayandas S. Kanuga vs Sarasvatibai D. Joshi

Palekar, J.—[After stating facts, the judgment proceeds-] The real question, which the learned Judge had to consider, was, whether the plaints disclosed such cause of action that it was necessary in the interest of maintaining status quo that the construction proposed by the appellant should not be permitted. It should be remembered that all these shops are very small structures on the road side. The plot is a big plot, and, unless these small ''shed'' owners have a right to contend that the owner of the plot should not build in her own plot, and that such a building is bound to cause irreparable injury to them, I do not see how a temporary injunction restraining the owner from constructing the building can be given. If the plaintiff''s case as made out in the plaint is to be accepted that the appellant shall not build within 50 feet of the two roads or 30 feet of any of the construction of the shop-keepers, that would, perhaps, make it almost impossible for the appellant to build any substantial building in her plot. In other words, the whole plot is rendered useless for construction. We are, therefore, to see, in the first instance, whether the plaintiffs have a sufficient cause of action against the appellant. If there is such a cause of action, then we have to see whether an injunction should be given to avert substantial injury.

The suits as already indicated are based on the same allegation that the proposed construction is illegal being volatile of the building construction rules of the Municipality, inasmuch as, a 50 feet open space is not left between the construction and the two roads, and 30 feet open space is not left between the sheds and the proposed building. It is not alleged that there has been any particular infringement of the plaintiffs'' right to property. It is not also alleged that the right to air and light is in jeopardy. The whole cause of action is based upon the alleged violation of the construction rules by omitting to provide for necessary open space. It is true that in the context of the claim made out for injunction, the plaint refers to "irreparable loss and injury which cannot be compensated adequately by monetary compensation." But, what that loss or injury is, is not stated. Against the background of the case made out in the plaint, the plaintiffs seem to allege that irreparable loss and injury would be caused to the plaintiffs because of the construction in violation of the municipal construction rules. Mr. Tijoriwalla, appearing for the appellant, submits that this does not constitute any cause of action against his client, the appellant. In this connection, he relies on two Division Bench decisions, one of the Calcutta High Court and the other of Nagpur High Court, the first being Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, , and, the other being AIR 1941 364 (Nagpur) . It was held in the first case that (p. 75):

Under sections 64 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 [but where] there is 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, 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 Bye-laws.

Similarly, in the Nagpur case, it has been held that,

In a suit for injunction restraining the building of a house, it is incumbent on the plaintiff u/s 56 (k) [the Specific Relief Act] to show some special damage or injury. The mere fact that the Municipal Committee acted beyond its power in granting the sanction for construction of the house is not by itself sufficient to entitle the plaintiff, to sue.

These decisions, undoubtedly, support the contention of Mr. Tijoriwalla.

Mr. Advani, for the respondents-plaintiffs, however, contended that the decision of the Calcutta High Court import an obligation enforceable at the instance of a neighbouring owner if the construction is in violation of the rules with regard to the provision of open spaces. In this connection, Mr. Advani referred to some cases which are both prior and subsequent to the decision of the Calcutta High Court referred to above. Chronologically, the first case is Tolaram Champalal Vs. Jewanram Gangaram, . It was held in that case that,

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 specific individual. Hence, where building plans are passed and permission to build is given contrary to building restrictions contained in bye-laws whereby the premises of adjacent owner is injured as to light, air, health and amenities, the Corporation owes such a duty to adjacent owner, and there is in the adjacent owner such a legal right, as to found an application for mandamus.

This decision of Ameer Ali J. has been referred to in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, and has been distinguished. Even if it is assumed for the purposes of this decision that the right of mandamus is also based upon a cause of action to sue, it is clear from the decision itself that there was an injury to the adjacent owner. That case, therefore, does not support Mr. Advani. The second case is reported in Kanahyalal Ruia v. Corporation of Calcutta 88 CLJ 78. That was also a case for a writ of mandamus u/s 45 of the Specific Relief Act and no question whether a suit lies at the instance of an adjoining or neighbouring owner had arisen in that case. The third case is K. L. Paul v. Corporation of Calcutta (1964) 68 CWN 1049, where it was held by a single Judge of the Court that "where there is a violation of the Building Rules, the adjoining owner is primarily affected". The case arose out of a proceeding for a writ, and, observations have been made to the effect that if a plan submitted for sanction violates the rule regarding the permissible area which can be built upon, or if it has not the requisite open spaces, it necessarily affects the adjoining owner. It does not appear from the report of that decision that the attention of the learned Judge was invited to the Division Bench decision in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, , referred to above. Lastly, the case on which Mr. Advani primarily relied before me is Krishna Kali Mallik Vs. Babulal Shaw and Others, , in which, it has been held that:

....the defendant owes a duty and an obligation under the Statute not only to the Corporation as custodian of the owners of buildings but also to the plaintiff. This duty arises by implication under the Statute." Hence, it was held that, "If the defendant constructs a building according to a plan which is illegal, the adjoining owner has the right to ask for an injunction because there is an invasion of right to and enjoyment of property by the illegal construction and the defendant owes an obligation to the plaintiff to obey the law.

This again is a decision of a single Judge, and the proposition which is enunciated therein is, with respect, contrary to the Division Bench decision. The learned Judge has examined Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, at some length, but, it is not clear from the judgment how he distinguishes that case from the case with which the learned Judge was dealing. Nothing turned upon the fact that the violation was in respect of the provision with regard to the leaving of open spaces. The Division Bench in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, was also concerned with open spaces. The suit in that case was brought on alternative grounds. The first ground was interference with the plaintiff''s right to light and air by reason of the construction, and, the second ground was the breach of the municipal rules. The first ground itself postulates that the breach must have been with regard to open space. In Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, , the learned Judges were careful to point out that there should be an obligation, contractual or otherwise, and, they held that a proposed construction in breach of the municipal rules did not create any kind of obligation. Even so, the learned Judge in Krishna Kali Mallik Vs. Babulal Shaw and Others, , on whom the decision in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, was binding, came to the conclusion that an obligation had been created towards the adjacent owner, and, this obligation has been spelt out by the learned Judge at para. 23 of Krishna Kali Mallik Vs. Babulal Shaw and Others, . The learned Judge observes as follows (p. 152):

...The functional approach in the interpretation of statutes is adopted in questions whether an individual is entitled to compensation for harm sustained as the result of the breach of a statutory duty. The rule is that he is so entitled if the mischief which the Statute was designed to eradicate contemplated damage to him or the class to which he was a member. A municipal authority subserves the needs of an ascertained class of persons, namely, owners of buildings or residents of building in regard to the enjoyment of the property or the building.

It is on this basis that the learned Judge came to the conclusion that an adjoining owner has a right to ask for an injunction, because, the defendant who constructs in breach of the rules owes a duty to the adjacent owner. With respect, it will be difficult to accept this view of the law. Indeed, as observed by Lord Simonds in Cutler v. Wandsworth Stadium Ltd. (1949) A C 398, it is often a difficult question whether, where a statutory obligation is placed on A, B who conceives himself to be damnified by A''s breach of it has a right of action against him. But, certain working rules are mentioned in the decided cases. It was observed by Lord Kinnear in Butler (or Black) v. Fife Coal Company, Limited (1912) A C 149 (p. 165):

If the duty be established, I do not think there is any serious question as to the civil liability. There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Alkinson v. Newcastle Waterworks Go. (1877) 2 Ex. D. 441, 448 and by Lord Herschell in Cowley v. Newmarket Local Board (1892) A C 346, 352 solves the question. We are to consider the scope and purpose of the statute and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention.

The second rule which may be deduced from Saunders v. Holborn District Board of Works (1895) 1 QB 64, is that (p. 68):

...in order to establish that a public body is liable to an action for default in performing a duty imposed by statute, it must be shown that the Legislature has used language indicating an intention that this liability shall be imposed, and unless such an intention on the part of the Legislature is clearly disclosed, no action will lie.

Thirdly, it is pointed out in Cutler v. Wandsworth Stadium Ltd, (1949) A C 398, referred to above, that where a statute is enacted in the interest of the general public, the mere fact that by reason of the regulations, a person or a class of persons derives an advantage there from will not invest him with a cause of action if the same does not spring from the primary purpose and intention of the Act.

Reference was made to a number of sections of the Bombay Municipal Corporation Act with a view to show the great care with which provision has been made for building regulations. It is necessary only to make mention of sections 337, 346, 361, 352, 353 and 471, the last of which, inter alia, provides for prosecution for breach of certain regulations. All these provisions are, undoubtedly, in the public interest for making better provision for proper planning and development. The Construction Rules or Development Rules, which have been made to give effect to these statutory provisions, are also in the public interest, and, the mere fact that a neighbouring owner gets an advantage out of these provisions will not give him a right to sue. It appears to me that it will be wrong to hold that these Building Regulations have been enacted specifically in the interest of owners of property, or, for their protection and benefit. It is true that they do derive some advantage from these regulations, but, those regulations are essentially in the public interest and for the better provision of planned development. Since, the neighbouring owners are not the primary beneficiaries under the Building Regulations, no duty is owed to them, and, therefore, there is no obligation that the neighbours should construct in such a way that there is no breach of the Construction Rules. In my opinion, the decisions on which Mr. Advani relied cannot be regarded as contesting seriously the proposition laid down in Nandalal''s case AIR 1962 Cal. 74. Narayandas appealed under the Letters Patent.

Patel, J.—There is a rectangular plot of land abutted on two sides by roads-on the south by B. J. Road and on the east Gram Panchayat Road. It measures 1895 sq. yards. Small plots of land, thirteen in number, were given to various persons by the owner who have built small shops about nine feet high and they have been running the shops. The owner says they are licensees while the occupants say they are tenants. The Municipal Corporation and the owner say that the constructions are unauthorised and the former has issued notice for demolition. The owner wants to develop the plot and wants to build a multistorey building. She offered the occupants accommodation in the new building but they were not satisfied with what was offered and she had to file suits in the Small Cause Court for eviction which are pending.

In the meantime she got the plans sanctioned on June 19, 1965. She had collected funds and materials ready. But as the occupants of the shops refused to vacate, to save time, she approached the Corporation for permission to build a part of proposed building to which the Corporation gave sanction on June 11, 1966.

The two appellants filed suits against her and the Corporation for injunction restraining the building on the ground that the construction violates the building bye-laws. The bye-laws alleged to be violated are: (1) that there should be distance of not less than 30 ft. between the two buildings and (2) on an average there should be a distance of about 50 ft. between the proposed construction and a public road. It may be stated that the property is situated at Goregaon. The plaintiffs do not allege that the construction affects them personally.

They applied for temporary injunction which the trial Court granted. The defendants appealed and Mr. Justice Falekar in an elaborate judgment allowed the appeal and discharged the Notice of Motion.

The first question is whether an appeal is competent. The word "judgment" in clause 15 of the Letters Patent has by now acquired a definite meaning and it has been held that refusal of a Judge to grant interim injunction is not judgment as it does not decide any of the rights of the parties finally and therefore no appeal lies. See Vanichand Rajpal Vs. Lakhmichand Maneckchand, , Salemahomed Haji Haroon Kably Vs. Mahomed Taher Jaffrani, and Gyangirji v. Dhanrajgirji (1969) 68 Bom. L R 207. Mr. Advani relying upon Mansata Films Distributors v. Sorab Modi (1954) 57 Bom. L R 228 at p. 234 contended that an appeal will not lie where the order is made by a single Judge only in connection with a step-in-aid in the suit, but where the interlocutory order determines the right of a party pro tarda, the party affected has a right of appeal. In our view, the right affected must however be determined finally between the parties. When the question involved however is at large in the suit, it cannot be said that pro tanto the right is decided. In the present case, view expressed by the Court is merely to find out if the plaintiffs have a prima facie case and does not affect the merits of the suit.

Even on merits, the plaintiffs have no prima facie case. Similar question was considered by our High Court in Khan Sahib Abdul Isa Bhagat v. Sultanalli Sulemanji (1942) Second Appeal No. 859 of 1941 decided by Broomfield and Macklin JJ., on November 26,1942 (Unrep.), where Mr. Broomfield cited with approval the following observations of Mr. Justice Farwell in Mullis v. Hubbard (1903) 2 Ch. 431 at p. 437:

I have also heard arguments as to the general intent and meaning of the Public Health Acts, and it is said that I ought to find some intention to protect the individual next-door neighbour as distinct from the whole body of corporators of the borough or the whole of the inhabitants of the particular district. In my opinion that is not the true view. If the next-door neighbour has any common law rights, they are left untouched and he can assert them. If he has no common law rights, the Legislature under the Public Health Acts intended, not to create rights in individuals, but general rights for the benefit of the inhabitants of a particular borough or district. The very words of this section appear to me to exclude any notion of individual right, because the sole arbiter whether the house shall or shall not be brought forward is the urban authority. They may give their written consent and, if they do, the next door neighbour has no ground of complaint... Certainly it would be an unfortunate construction that would allow the numerous individuals in a street to bring their private actions against a man who had built a few feet in front of the line allowed when, as in this case, the urban authority decline to complain or interfere in any way.

In the above case the Court held that the plaintiff had no cause of action. Similar view has been taken in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, and AIR 1941 364 (Nagpur) .

In Saunders v. Holborn District Board of Works (1895) 1 Q. B. 64 the Court observed that:

Section 29 of the Public Health (London) Act, 1891, which imposes on the sanitary authorities of London the duty of removing street refuse from the street within their respective districts does not give any right of action to a person suffering special damage from a breach of such duty.

Very often statutes are enacted for the special benefit of persons for whose benefit certain obligations are placed upon others. In such a case a right of action may be inferred in those for whose benefit the statute is enacted as was done in Butler (or Black) v. Fife Coal Company, Limited (1912) A C 149, where it was said: "We are to consider the scope and the purpose of the statutes and in particular for whose benefit it is intended".

In this connection, sections 54 and 56 of the Specific Relief Act are also very relevant. Section 54 enables the Court to grant perpetual injunction to prevent the breach of an obligation existing in favour of the applicant- whether express or implied. This is again subject to exceptions. The query, therefore, has to be "whether there exists an obligation in favour of the applicant". Even where an obligation is made out, if the case falls within section 56, injunction cannot be granted. The plaintiffs cannot and do not allege any recognizable right or obligation in them, nor the breach of the same. If they could not get a perpetual injunction, they could not get temporary injunction.

Mr. Advani relied upon In Re: Sm. Lakshmimoni Dassi, and Kanahyalal Ruia v. Corporation of Calcutta 88 Cal. L J 78. In the first case, the petition was u/s 45 of the Specific Relief Act on the Original Side of the High Court. The proposed building 13 was so near the building 21, that the learned Judge recognising that the existence of the element of "legal right" depends upon the facts of each case said on the facts of the case (p. 395):

...propose to hold that the Corporation owned such a duty to the adjacent owner, and that there was in the adjacent owner such a legal right within the meaning of the cases, as to found an application for mandamus. No. 21, as I have found, was injured as to light, air, health and amenities by the breach of restrictions, by reason of its particular situation.

The subsequent case in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, distinguishes this case. 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 applicants being affected The appellants are mere licensees as alleged by the owner and at best tenants as alleged by them. Even as ordinary tenants if they are, they have no right to stick to the property except as provided by the Rent Act and suits in eviction are pending. Their constructions themselves are petty and hardly 9 or 10 ft. high with no opening in the rear. Moreover, they are alleged to be unauthorised. The Corporation has issued notices for their demolition. It is with these kinds of constructions that the great right of vicinity is claimed by them. The second case is rightly distinguished by Mr. Justice Palekar.

The trial Judge has very lightly granted the injunction. Principles of granting temporary injunctions are well settled. Order XXXIX, rules 1 and 2 provide for such injunctions. Rule 1 does not apply. Rule 2 requires that some injury must be threatened. Injury must be a legal injury and not any fancied injury. In all cases where injury is alleged the Court is put on an enquiry as to what are the contents of the rights claimed by the appellants. Assuming that some such right is shown, the second element to be considered is whether irreparable injury or inconvenience may result to the plaintiffs if the same is refused. The appellants want to prevent the owner from developing the property merely by relying upon the Rules of the Corporation. Their shops exist as they are and they could carry on the business without any hindrance until the Small Causes Court decides the eviction suit. By this injunction, the appellants are only holding the owners to ransom. The trial Court did not even pause to consider the loss to the owner. We have dealt with the question in somewhat details, for in recent days cases after cases come to our notice where we find injunctions are granted without due care and circumspection and without thought to the consequences of the same to other side, particularly by the Small Causes Court and the City Civil Court, in Bombay. No attempt is even made to safeguard the other side by imposing terms such as security or otherwise. The duty of being careful even in the case of ex parte applications cannot but be emphasised. It is the duty of the Judge to be careful in the exercise of this power and must by careful questioning of the applicant ascertain whether a real case exists for the grant of the same. He must be satisfied that the law permits it and the emergency demands it. It should not be granted lightly or in advisedly .Even if granted, the absent party ought to be sufficiently protected. (Canon of Judicial Ethics of American Bar Association). We only hope that care will hereafter be shown by subordinate Courts in granting injunctions.

We direct the City Civil Court expedite the hearing of the suit filed by the appellants against the Municipal Corporation against demolition notices and the suits in this case.