Calcutta High Court
Sanat Kumar Chatterjee vs Dwijendra Chandra Bhattacharjee And ... on 28 February, 2001
Equivalent citations: AIR2002CAL16, AIR 2002 CALCUTTA 16
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This second appeal is at the instance of a plaintiff in a suit for declaration and injunction and is directed against the judgment and decree dated May 30, 1990 passed by the learned Assistant District Judge, 1st Court, Howrah in Title Appeal No. 178 of 1989 thereby reversing those dated June 29, 1989 passed by the learned Munsif, 4th Court, Howrah in Title Suit No. 78 of 1985.
2. The appellant herein filed a suit in the 3rd Court of learned Munsif, Howrah being Title Suit No. 11 of 1985 which was transferred to the 4th Court of Munsif, Howrah and was re-numbered as Title Suit No. 78 of 1985.
3. In the suit, the appellant prayed for a decree for declaration that B schedule property was a separate unit and holding and the respondent Nos. 1 and l(a) were liable to make construction on C schedule property by leaving side and rare space as per rule of Howrah Municipal Corporation and for permanent injunction restraining the respondent No. 1 series from making any construction on the C schedule properly and restraining the respondent No. 2 from giving any final sanction to the building plan in respect of the said property. In the said suit the appellant also prayed for decree for mandatory injunction directing the respondent No. 1 series to restore the property to its previous position.
4. There is no dispute that the C schedule suit property which is a vacant piece of land measuring 5/25 as shown in the sketch map annexed to the plaint was originally a portion of holding No. 24/1, Kailash Bose Lane, Howrah. The said property was owned by one Shanti Bala Devi, the mother of the present appellant. Appellant had two other brothers viz. Sudhindra Kumar and Saroj Kumar. The mother executed a deed of family settlement by virtue of which all three brothers became owners of the respective portion and a provisional mutation and sub-division, were made in the Howrah Municipal Corporation. While the appellant was in possession of such allotment, he transferred his demarcated portion to his brother Saroj in 1966 together with the then existing structure. However, after the death of Saroj, the appellant purchased back his portion from the heirs of the said be other in the year 1978 excepting 7 chittaks of land. Therefore, the appellant although sold 1 'kattah 10 chittaks 2'1 sq. ft. of land with structure, after such purchase appellant became owner of 1 kattah 3 chittaks 4 sq. ft. of land with old structure thereon.
5. The appellant subsequently applied for mutation and also submitted a plan for construction of the building. The original holding No. 24/1 was sub-divided into different holdings i.e. holding No. 24/1, 24/ 1/1 and 24/1/2. The appellant's holding number was 24/1/1 and that of his vendor was 24/1/2.
6. The respondent No. 1 purchased 24/ 1/2 and the balance 7 chittaks of land from the heirs of the brother of appellant in the year 1984 and thereafter submitted a plan to Howrah Municipal Corporation for making some new addition of staircase, wall and bath and privy in the vacant portion of the land. The Municipal authority sanctioned the plan provisionally and on the basis of such plan the respondent No. 1 started making construction.
7. At this stage the appellant came with the instant suit on the allegation that the Municipal authority had sanctioned plan to respondent No. 1 in violation of the statutory rules and by virtue of such sanction the right of air and light of the appellant will be diminished. The appellant thus contended that he has prescriptive right of light and air which was interfered with by respondents.
8. The said suit was contested by the respondents by filing separate written statements thereby opposing the prayer of the appellant.
9. The case of the respondent No. 1 series was that as per original deed of settlement executed by the mother of the appellant, parties were permitted to construct staircase and privy in their respective portion and the vendor of the respondent No. 1 series gave consent to the appellant's construction in his portion without keeping the required space and on the basis of such consent the respondent No. 2 sanctioned the plan of the appellant. The respondent No. 1 series thus contended that the appellant having obtained relaxation on the consent of the vendor of the respondent No. 1 series, he also cannot oppose the relaxation given by the Municipality to the respondent No. 1 series.
10. The Municipal authority in their written statement justified the grant of relaxation.
The learned trial Judge on contested hearing decreed the suit with a finding that for the proposed construction by the defendant No. 1 the building of the plaintiff may subside. Moreover, if air and light of the plaintiffs building are blocked, it will result in dampness causing deterioration of the building and because of privy, foul smell will inevitably cause a health hazard. The plaintiff was thus entitled to an order of injunction as prayed for.
11. Being dissatisfied, the defendant No. 1 series preferred an appeal before the learned first appellate Court below and by the judgment and decree impugned herein the said Court has set aside those (orders) passed by the learned trial Judge and has dismissed the suit.
12. Being dissatisfied, the plaintiff has preferred the instant second appeal.
13. It appears from the record that at the time of admission of the instant second appeal the Division Bench admitting such appeal did not formulate any substantial questions of law as required under Section 100 of the Code of Civil Procedure. However, after hearing Mr. Dasgupta appearing on behalf of the appellant and Mr. Basu on behalf of the respondent I have formulated the following questions of law for determination in this appeal :--
(a) Whether in the absence of proof of actual damage the plaintiff can sue for injunction restraining a defendant from erecting a building in accordance with the sanctioned plan given by the Municipality after relaxation of the building rules by virtue of the power of relaxation conferred upon the Municipal authority by law?
(b) If the plaintiff in such a case himself has earlier made any construction on the basis of a sanctioned plan granted on such relaxation in deviation of the aforesaid building Rule by, not keeping the required vacant space, whether such plaintiff can pray for injunction restraining the municipality from relaxing the Rule or the neighbour from making construction on the basis of a plan granted on similar relaxation?
(c) Whether in setting aside the judgment and decree passed by the learned trial Judge the learned first appellate Court below erred in law in overlooking any material piece of evidence while arriving at a conclusion that there has been no chance of actual damage for the proposed construction of the building by the defendant?
14. In this case there is no dispute that the plaintiff after purchase from his brother in 1978 himself applied for sanction of a plan before the respondent No. 2 and such sanctioned plan was granted in 1980 on relaxation of the building rules since the respondent No. 1's vendor did not oppose as per terms of settlement deed executed by their mother. Subsequently, in the year 1984, after purchasing the property from plaintiffs vendor, the defendant No. 1 approached the Municipality for sanction after similar relaxation. In spite of objection by plaintiff, the respondent No. 2 approved such plan after granting relaxation. Therefore, the proposed construction is within the premises of defendant No. 2 but instead of 4' space, the same is going to be constructed by leaving 2' space. Under such circumstances, in my view, plaintiff can challenge the grant of sanction only if the Municipal authority has granted such sanction with mala fide intention or if the law does not authorise the Municipality to relax the rule.
15. There is no dispute that law authorises relaxation of the building rule in appropriate cases. The appellant could not produce any material before the Courts below showing that law prohibits relaxation in the case of the respondent No. 1 series or that the relaxation was given by a person having no authority.
16. In the instant case, the Municipal authority in the past relaxed the building Rules in favour of plaintiff and the plaintiff was permitted to make construction without leaving any space since the vendor of the plaintiff did not oppose.
17. Subsequently, after the lapse of four years when the defendant applied for construction of staircase, privy and bath in the vacant space, the Municipal authority has relaxed the Rule by directing the respondent No. 1 series to construct the same by leaving 2 space. Therefore, in the fact of the present case no mala fide can be inferred from the Act of the Municipality. Even in the suit, the plaintiff has not made any prayer for cancellation of sanctioned plan granted in favour of defendant No. 1 alleging any mala fide on the part of the Municipal authority. Therefore, 1 do not find any substance in the contention of Mr. Dasgupta that the relaxation granted in favour of the respondent No. 1 should be set aside by a Civil Court in the fact of the present case.
18. The next question that arises for consideration is whether in the absence of actual actionable nuisance the plaintiff can get a decree as prayed for. In my view, since the defendant No. 1 series proposed to make construction in accordance with sanctioned plan granted by Municipality within their land, unless the plaintiff can prove actionable nuisance he is not entitled to get any order of injunction. (See Lalit Mohan Mitra v. Samirendra Kumar Ghosh. ).
19. The next question is whether in the instant case any actionable nuisance has been proved. The sole grievance of the plaintiff is, if the proposed building is constructed by defendant without keeping the required space, the distance between plaintiffs house and the defendants' construction will be so near that the same will cause diminution of air and light causing Interference with plaintiffs prescriptive right to the passage of light and air.
20. I have already pointed out that the plaintiff made construction pursuant to the plan sanctioned in 1980 and at that point of time relaxation to the building Rules was given. Moreover, the plaintiff himself has admitted that he has made deviation from such sanctioned plan, for instance, a part of kitchen and dining space were not shown in the sanctioned plan. In my view, the plaintiff himself having claimed relaxation and having been granted the same and thereafter according to his own admission, even violated that sanctioned plan cannot now complain that for the relaxation granted by the Municipal authority in favour of defendant No. 1, his right to sufficient light and air will be interfered with.
21. The plaintiff having constructed on the adjoining portion after 1980 and the suit having filed in the year 1985, no question of acquisition of any easement right of light and air arises. In my view, the learned first appellate Court below rightly held that the plaintiff has failed to prove any actionable nuisance so as to obtain an order of permanent injunction.
22. I, therefore, find that the learned first appellate Court below on consideration of the entire materials on record rightly held that the plaintiff is not entitled to get an order of permanent injunction as no actionable nuisance has been proved. Such finding is based on appreciation of the entire evidence on record and Mr. Dasgupta appearing on behalf of the appellant could not place before this Court any material which escaped the notice of the learned first appellate Court below in arriving at such conclusion. I thus find no reason to interfere with the judgment and decree passed by the learned first appellate Court below.
23. This second appeal is thus devoid of any substance and is dismissed.
24. In the facts and circumstances there will be, however, no order as to costs.