Smt. Ang Lhamu vs Smt. Ladenla and Others

Man Mohan Singh Gujral, C.J.—This revision petition by the plaintiff is directed against the order of the learned Additional District Judge, Gangtok dated 4th of May, 1981, whereby the order passed by the Civil Judge on 31st of Jan., 1981 granting an ad interim injunction was vacated.

The facts necessary for the decision of this petition fall in a narrow compass. The plaintiff-appellant filed this suit for a decree for permanent injunction restraining the defendant from raising construction on a strip of land within 5 ft. from the municipal drain, which separates the plots of the plaintiff and the defendant. The plaintiff''s contention in this regard is that the defendant is required to leave a 5 ft. set back under the Gangtok Municipal Corporation Building Bye-laws, but she was raising the construction ignoring this bye-law with the result that the plaintiff''s enjoyment of air and light would be affected and she would suffer an irreparable loss. The Civil Judge vide his order of 31st of Jan., 1981 had granted ad interim injunction by an ex-parte order restraining the defendant from raising further construction on the contested part of the building. This order having been vacated by the learned Additional District Judge, the plaintiff has come up in revision.

Before proceeding to deal with the merits of the points raised, it would be pertinent to mention that the learned Additional District Judge ought to have permitted the learned trial Court to finally decide the application for the grant of interim injunction. No irreparable loss would have been caused if the construction had been held up for a few days or even for a month or so. A multi-storeyed building is under construction and a short delay in the progress of its construction would not have caused any loss to the defendant.

coming to the merits, the learned Additional. District Judge has first observed that he was not in a position to come to the conclusion whether the area of 5 ft. which was to be kept as a set back was to start from the gully or footpath or the drain. The defendant''s case was that even though she had not left 5 ft from the drain, there was a distance of more than 5 ft. between the two buildings because of the width of the drain and the location of the plaintiffs house. To appreciate the point, reference may be made to the Bye-Law, the interpretation of which is in dispute. This is contained in the Building Bye-Laws of the Gangtok Municipal Corporation and is Bye-Law No. 2 in the chapter relating to Residential Zone, The bye-law is in the following words:

All new buildings shall have a set back as given in the following table:

Plot Area

Built up area

Minimum set open back from be the road

Minimum area to left on the side and rear.

Up to 300 sq. yds.

75%

10 ft.

5 ft.

300 to 600 sq. yds.

60%

10 ft.

5 ft.

600 to 1200 sq. yds.

50%

10 ft.

5 ft.

Above 1200 sq. yds.

40%

10 ft.

5 ft.

Now, the question which has caused some difficulty to the learned Additional District Judge is as to what would be the starting point of the measurement to leave a set back of 5 ft. on the side and real. The answer to this question is simple and needs no serious thought the measurement has to start from the boundary of the land on which construction is to be made and from that boundary on the side and the rear an area of 5 ft. has to be left and from the main road a 10 ft. set back has to be given. In this regard, no other view is possible except that the boundary line of the plot on the various sides is the starting point of the measurement for determining the area to be left out. In this view of the matter, it would be of no consequence as to what is the distance between the defendant''s building and the plaintiff''s building, as the defendant is required to leave 5 ft. from her boundary line on that side of the plot. This reason for vacating the ad interim injunction, therefore, fails. In fact by ignoring to decide this question the learned Additional District Judge has failed to exercise jurisdiction vested in him.

The learned Additional District Judge then proceeded to consider whether by withholding the relief of temporary injunction, the plaintiff would suffer an irreparable injury and came to the conclusion that the plaintiff did not have a right of easement of air and light, as she had occupied the building recently. In this connection, the learned Additional District Judge has failed to consider whether she could tack the period during which her predecessor had enjoyed the facility of air and light.

Moreover, there is another aspect of the matter. It is not disputed that the building plan, which the defendant had got sanctioned from the Municipality, had failed to comply with the rule regarding set back and had been sanctioned under some mistaken impression. The learned Counsel, who appeared for the Municipality, accepted this omission. In such a situation, the illegal construction would materially affect the enjoyment of their property by persons residing in that premises or area. This view was taken by the Supreme Court in Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others, in the following words (Para 27, 28):

The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative.

An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipality authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The rights of the residents in the area are invaded by an illegal construction of a cinema building. If the scheme is nullified by arbitrary acts in excess and in derogation of the powers of the Municipality the Courts will quash such orders.

It may further be added that it could be only brought out during the trial as, to what extent the enjoyment of her own property by the plaintiff would be affected by the illegal construction, which the defendant wanted to raise. At the present stage, it would suffice to say that the balance of convenience lies in favour of the plaintiff. The construction being against the Municipal Bye-Laws, the plaintiff has a right at this stage to restrain the defendant from further raising this illegal construction, as, if once the construction is allowed to be completed, the whole purpose of the suit would fail.

The learned Additional District Judge has also found fault with the wording the order passed by the lower Court as in this order, a direction was to stop further construction in the area of 5 ft. from G.M.C. Gulli. An incorrect description of the boundary would hardly be a reason to set aside the order. As observed earlier, 5 ft. is to be left from the boundary of the defendant''s land on the side of the plaintiff''s house. It is stated that the municipal drain is the boundary between the two plots and if that is so, 5 ft. has to be measured from the side of the drain, which is adjacent to the plot of the defendant. If there was any ambiguity in the order of the Civil Judge, the learned Additional District Judge could have clarified that.

While considering the question of the plaintiff''s rights at this stage, reference may also be made to the decision of the Calcutta High Court in Krishna Kali Mallik Vs. Babulal Shaw and Others, and the following observations may be read with advantage:

No doubt the Municipal Corporation has the right to proceed against the offending building because of the benefit and the interest of the public safeguarded by the Calcutta Municipal Act, 1951 that building shall not be constructed in violation of the Statute including the above statutory rules. At the same time as an illegal construction by the defendant neighbour materially affects the right to or enjoyment of the plaintiffs property, 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. 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

In view of the above observations and material facts mentioned earlier. I find that the Additional District Judge was in error in vacating the ad interim injunction, as this would only complicate the matters, if ultimately it is found that the defendant had no right to construct the building within 5 ft. of her boundary on the side of the plaintiff''s plot. The balance of convenience clearly lies in favour of the plaintiff, and thus she has succeeded in establishing that she is entitled to ad interim injunction at this stage.

For the reasons indicated above, we find that the learned Additional District Judge has failed to exercise jurisdiction vested in him by law and has also taken patently erroneous view of law. For this reason we allow this revision petition and set aside the order of the Additional District Judge, granting the plaintiff ad interim injunction restraining the defendant to construct the disputed portion till the final decision of the suit. The defendant would pay the cost of the plaintiff in this petition. Counsel fee is assessed at Rs. 200/-.

A.M. Bhattacharjee, J.

I agree