Karnataka High Court
Dr. K. Panduranga Nayak vs Smt. Jayashree And Others on 22 September, 1989
Equivalent citations: AIR1990KANT236, ILR1989KAR3104, 1989(3)KARLJ497, AIR 1990 KARNATAKA 236, ILR 1989 KANT 3104
JUDGMENT
1. Appellant was the plaintiff in the original suit before the trial Court and being aggrieved by the Judgment and Decree of that Court dismissing his suit for the reliefs claimed therein he has approached this Court. Respondents 1 and 2 are wife and husband respectively who were defendants 1 and 2 in the Court below. The 3rd respondent-defendant 3 is the Bangalore City Corporation. Parties would be referred to in this appeal as described in the original suit. Plaintiff and defendant 2 are owners in possession of the respective properties which are situated side by side. In fact it is the 1st defendant who is the owner of their property having inherited the same from her father Krishna Rao. The plaintiff was residing for some years prior to the suit at Nigeria on an assignment from the Government of India.
His nephew living in his house property was managing it. When the 1st defendant succeeded to the estate of her father the property by the side of the plaintiff's property was only a groundfloor house with a staircase attached to it on the westernside, i.e. to the east of the plaintiff's property. Having obtained sanction from the 3rd defendant the 1st defendant added a first floor to their residential house and while doing so they also put up a staircase leading to the terrace of the first floor. In the eastern wall of the plaintiff's house there are windows to his bed room on the first floor. Thus the plaintiff had already a first floor for his residence. He received information that while putting up this first floor and a staircase therefrom the defendants 1 and 2 had encroached over his property to an extent of one inch and that the newly put up staircase was directly opposite to the first floor bed room of his house.
2. The plaintiff came to Bangalore and noticed that the first floor construction of the defendants was completed and the staircase put up by them had destroyed his privacy completely in the bed room. Due to this invasion over his privacy he was compelled to keep the window of his bed room closed resulting in lack of air and light. On enquiry in the office of the 3rd defendant he came to know that the construction put up by the defendants 1 and 2 was in complete violation of the bye-laws framed by the 3rd defendant in the matter of construction of buildings. The staircase from the first floor to the terrace was built up unauthorisedly. His complaint to the Commissioner of the 3rd defendant was of no avail. By this construction of the staircase he is deprived of privacy, safety, light and air to his bed room on the first floor. There are so many deviations even in the construction of the ground floor. In the suit he prayed for a permanent injunction restraining the 3rd defendant from regularising the unauthorised construction made by these two defendants and for a direction to defendants 1 and 2 to demolish or remove unauthorised construction of the staircase referred to above.
3. Defendants 1 and 2 by their written statement denying these allegations inter alia contended that their construction is not in any way in violation of Building bye-laws framed by the 3rd defendant and that the construction of the staircase has in no way caused obstruction for the free passage of light and air to the plaintiff's property. There is no right of privacy which the appellant could claim. The allegation that they constructed even the ground-floor in violation of the sanctioned plan is also denied. Even the encroachment alleged is denied. The 3rd defendant admits to have received complaint from the plaintiff on 5-2-1982. The staircase constructed on the first-floor leading to the terrace was found to have been constructed against the sanctioned plan. There was an extension oil the roof of the rear portion of 2'x6" in average width on either side. Thus the defendants have constructed the building deviating in some respects and having verified the same it wanted to take action in accordance with law, but in the meanwhile the plaintiff rushed to the Court. Therefore, it would not regularise the unauthorised construction and it wouid abide by the decision of the Court. The following issues were framed :
(1) Whether the plaintiff establishes that his right of privacy is infringed as alleged in the suit?
(2) Whether he further establishes that the construction on the part of the defendants is unauthorised as contended?
(3) Whether the plaintiff is entitled for mandatory injunction as well as permanent injunction?
The trial Court found all these issues in the negative and against the plaintiff and dismissed the suit.
4. In this appeal the learned counsel for the appellant did not find himself on a firm footing as far as the right of privacy claimed by the appellant is concerned. In this country right of privacy is not recognised and hence that part of the claim made in the plaint was not pressed. It is urged that though no easementary right of light and air is claimed by the appellant-plaintiff he has right to natural light and air and by construction of the staircase in the manner alleged the defendants have obstructed this free passage of light and air to his bed room. Secondly as far as the staircase is concerned that was not in the plan and it is built without obtaining necessary sanction from the 3rd defendant. Therefore even if there is no such obstruction for the light and air due to the presence of the staircase the construction of the same in violation of the Building Regulations is illegal and hence a direction for demolition is necessary. The respondents have however countered this argument by contending that the report of the Commissioner appointed in the suit as well as the evidence of the Corporation employee clearly establish that there was sanction given for construction of the staircase and if at all there is any deviation from the sanction plan it is the Commissioner who can take action against the defendants for constructing the building in deviation of the sanction plan and he has also in certain cases power to condone such deviations. Unless that remedy is exhausted the suit cannot be filed. In fact when the appellant could plead the Commissioner in the event of any deviation having been found for exercising his discretion that right cannot be defeated by straightway filing a civil suit, The points that arise for determination in this appeal are :
(1) Whether respondents 1 and 2 put up the first-floor over their existing ground-floor in violation or deviation of their plan sanctioned by the 3rd defendant-Corporation and in fact particularly when there was no sanction for constructing a staircase from the first-floor to its terrace?
(2) Whether the plaintiff-appellant has proved that his right to natural light and air is infringed y the construction of the said staircase?
(3) Whether the suit could be brought without affording an opportunity to defendants-respondents 1 and 2 to seek exercise of the discretion vested in the Corporation Commissioner in the matter of such deviation?
5. In addition to the oral and documentary evidence there are also produced some photographs by the plaintiff to show the present condition of the two buildings. They are at Exts. P-4 to P-7. Ex. P-4 shows the staircase leading to the terrace of the first floor and facing the bed room of the plaintiff on the first floor. It appears the staircase from the ground floor led previously to its terrace and the first floor came to be added over that terrace. From the side of the landing for the first floor the staricase has been constructed and it leads to the first floor terrace. Ex. P-6 shows that this staircase touches the original staircase but is not just above it. It is by its side projecting from landing. Ex. P-7 is the window of the plaintiffs bed room. Ex. D-2 is the sanctioned plan for the construction of the first floor and on the western side is shown a staircase leading to the terrace. Side by side it also shows the existing ground-floor with staircase by its side on the western side. The proposed first floor is shown with red pencil shading. It appears the same accommodation in the ground floor is sought to be added on the first floor as well. The plaintiff in his evidence when questioned if this staricase has been put up in accordance with the Building Rules, his reply was in negative but he does not state that this does not find place in the sanctioned plan at all. He had approached the Corporation with a plan and an official of the Corporation came to the spot, prepared a plan on inspecting the same and nothing happened thereafter. It is only in the cross-examination he states that he was told by the Corporation officials that D-1 had not obtained any plan sanctioned for putting up this staircase. However he had not taken any steps to find out whether the licence and sanctioned plan were obtained by defendant-1. He was also not present when the Corporation officials visited the spot. DW-1, a Junior Engineer of the Corporation visited the spot on 24-1-1983 in pursuance of a plan given by the plaintiff. In this behalf referring to the; evidence of DW-1 the Court below at para-13 of its judgment observed as follows :
"The construction is claimed to have been made by defendant No. 1 according to the sanctioned plan which is produced at Ex. D2. In this sanctioned plan, which is for construction of the 1st floor, terrace and staircase have been shown. The staircase has been shown in red colour. According to statement of DW-1 the portion which has been shown in red colour is the portion for which permission has been granted by the Corporation. If any portion of the construction which is disallowed that will be shown by the Corporation as disallowed or by green colour. As per Ex. D2 there was a permission granted to defendant No. 1 to put up a staircase from the 1st floor to the ground floor. Therefore, it can be said that the permission or licence has been granted by the Corporation to the 1st defendant to put up staircase from 1st floor to the terrace and therefore, the contention of the plaintiff that the staircase constructed is an unauthorised one, cannot be accepted. At most it can be said that the staircase so put up is having a deviation of the sanctioned plan."
Referring to Ex. D-1 the plan prepared by DW-1 on visiting the spot the trial Court observed in para-14 that according to the report the staircase has been constructed by the side of the existing staircase from the first floor to the terrace towards the property of the plaintiff, whereas in the sanctioned plan it is shown from first floor to open terrace only 2'-6" width by the side of the building. From his evidence and Ex. D-1 it becomes evident that the construction of the staircase by defendant-1 is not in accordance with the sanctioned plan. It has only been constructed in deviation and therefore it cannot be said that the construction thereof is illegal, unauthorised, or without obtaining any permission. A perusal of Exs. D-1, D-2 and evidence of DW-1 only confirms what the trial Court has observed. Even the learned Counsel for the 3rd respondent-Corporation submitted during arguments that the plan Ex. D-2 dearly makes mention of the staircase and therefore the argument of the appeilant's counsel that there was no sanction for constructing the staircase is unfounded. DW-1 also found construction of some rooms and projections in deviation of the plan and deposed that deviations are liable to be demolished. It thus becomes apparent from Ex. D-2 the sanctioned plan that the staircase has been shown touching the wall of the first floor but it has not been constructed along the wall as the photographs now show. Hence there appears to be a deviation but not that it was without there being any sanction. There is sufficient force in the argument of the learned Counsel for the respondents that Exs.D-1 and D-2 clearly make mention of the staircase having been shown while obtaining sanction of the plan and I do not find that the Court below committed any error in finding that the construction of the staircase was neither illegal nor unauthorised. Even the appellant does not state that it was put up without there being any sanction for it.
6. The evidence of DW-1 also shows that there was no encroachment at all over the property of the plaintiff by the construction of this staircase or the first floor. The plaint says that there was encroachment of one inch and there is no evidence of any encroachment over his property. As far as natural right to the flow of light and air is concerned every owner or occupier of a land has a natural right to receive and enjoy so much light and air as come vertically thereto and to open doors and windows in his own wall which adjoins another's land, unless he is under a legal obligation not to do so. Every man is free, in the lawful enjoyment of his own property, to take and use so much light and air as come thereto. And his neighbour's right is the same as his own, but these rights of enjoyment are mutually qualified, for neither can prevent the other from making such lawful use of his land as he pleases. A man who is deprived of light and air by an act of his neighbours, as by the erection of a building, has still the right to, so much light and air as come to him and he cannot complain of the obstruction however serious, unless he can establish his title to an easement of light and air. The natural rights of property, as defined by the maxim "cujus est solum ejus est usque ad coelum" enable a man to build as he pleases on his own land. Thus right to vertical light and air is recognised but as far as light and air coming laterally is concerned the decision of the Madras High Court is relied upon by the respondents' counsel. In the case of Moidin Kunhi v. Gopalakrishna, , Ramaswami, J. in the matter of natural right and easementary right of light and air observed that the right to light and air may be either a natural right forming one of the incidents of property or it may be an easement. They are acquired under different circumstances though very similar. Both of them constitute an adjunct to and are inherent in land "ex jure naturae" and exist "prima facie" in all cases as between the landowner and his neighbour and secondly they can be acquired as an easementary right. The natural corollary of these natural rights is that they are subject to the rights of adjoining owners who for the benefit of the opportunity have and must have rights in relation to the use and enjoyment of their property that qualify and interfere with those of their neighbours' rights to use their property in the various ways in which property is commonly and unlawfully used. The learned Judge further observed as follows :
"There is, however, a fundamental feature in regard to the exercise of natural right to lateral flow of air and light. If the owner of a property who is entitled to ancient light the lateral passage of adequate light and unpolluted free air, finds himself obstructed to an appreciable and sensible extent by an adjoining trespasser then he can come forward and seek abatement of this private nuisance. If the person who is obstructing the light and air happens to be the owner of the property then there can be no cause of action, the simple distinction being that that owner would also be entitled to build right up to the edge of his own property and exercise the same right as the complaining owner 'cojus est solum ejusest usage ad coelum.
But if a owner of the property acquires an easementary right in regard to air and light laterally coming to him (every owner of land or building has a natural right to light and air vertically coming to his property and this need not be acquired as an easementary right) and makes the adjoining tenement a servient one on which the burden is cast of not doing anything which would prevent the exercise of that easementary right he can come forward with a suit claiming his right to easement whenever that right is sought to be interfered with. But if a owner of a property happens to sleep over his rights for a period of 20 years and allows the adjoining owner or even the trespasser acquiring an easementary right to obstruct lateral light and air coming to him he would have been held to have acquiesced in it and he cannot turn round at the end of the period of 20 years and ask for his rights which have become extinguished by the acquisition of easementary rights by the other party to be protected by Court. Such rights may also arise under contract express or implied.
In other words in the case of an easementary right there is no distinction in case of interference with light and air about the adjoining occupier being either a trespasser or an owner. In either case if the complaining person had allowed the other person to obstruct for over a period of 20 years his right to relief becomes extinguished. On the other hand, in the case of the natural right to light and air if even within the period of 20 years an owner finds himself cut off from light and air by an adjoining occupier who is a owner he is not entitled to any relief. On the other hand, if the adjoining owner is a wrong doer and is shutting light and air and causing a private nuisance interfering materially with the physical comfort of the plaintiff, it is certainly open to this owner of the property suffering from that private nuisance to come forward and ask for proper relief which may be granted in the case of easementary right, namely injunction or damages for actual injury sustained."
Sections 32 and 33 of the Easements Act refer to right to enjoyment without disturbance of easement and the right of the owner of any interest in the dominant heritage or the occupier of such heritage to institute a suit for compensation for the disturbance of the easement or of any right accessory thereto. Explanations II and III to S. 33 are governed by Explanation I which states that doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage. Even in case of disturbance of easement the material interference with the physical comfort of the plaintiff has to be established.
7. This being the established position in law the allegations in the plaint require scrutiny in order to see what right the plaintiff claimed in respect of light and air. In para-4 the plaint says as follows :
"In fact the staircase has destroyed the privacy completely. Any person who uses the staircase can look and reach directly into the bed room. The plaintiff is compelled to keep the window completely closed, resulting in lack of air and light; he has to use electric light even during day time."
There is no averment of infringement of his easementary right of light and air and only during the course of arguments a case of natural right to light and air was attempted to be asserted, During evidence PW-1 plaintiff stated as follows :
"On being informed that some additions were being put up to house No. 7 touching my property, I returned, to Bangalore in October 1982. Then I found that a staircase has been put up on the eastern side of my building encroaching upon a portion of my property by the 1st defendant. This staircase has blocked free flow of air and light to my bed room which is on the eastern side of the building. Any person from the staircase can peep inside the bed room. He can also insert his hand through the window inside my bed room from the staircase.....
After the construction of the staircase, I was compelled to close the window of my bed room on the eastern side, throughout day and night."
A reading of the plaint averments referred to above manifestly makes it clear that the principal grievance of the appellant has been that because privacy in his bed room was affected he was compelled to close the shutters of the only window to this bed room which resulted in obstruction to free passage of light and air. It would therefore appear that the plaintiff neither pleaded obstruction of free passage to natural light and air nor obstruction to any easementary right of light and air which obviously is not his case that he has acquired. Therefore there is no question of the plaintiff being put to proof of diminution of so much of light and air which caused him discomfort. Even the photographs produced tend to show that the staircase only passes in front of this window and there is ample space between the plaintiff's window and the' staircase. It is a well recognised principle that unless easementary rights to light and air are obstructed the adjacent owner has a right to put up his own wall at the boundary of his property and the owner of the other adjacent property can have no grievance against the same. At any rate there is no question of the plaintiff having a right of light and air coming to his property laterally and it is no part of his case that the light and air corning vertically has been obstructed. Therefore the Court below was justified in finding that in the first instance the plaintiff has not claimed any right of easement of light and air, there is no declaration claimed for existence of such a right and therefore the plaintiff has failed to prove that this staircase has" in any way obstructed his right to light and air.
8. The next point for consideration is whether the appellant has a right to get the staircase removed or reason that it is constructed in deviation of the sanctioned plan. It is already held above that there may be a deviation but it is not totally ail unauthorised or illegal construction. The Corporation of the City of Bangalore Have framed Building Bye-laws called City of Municipal Corporation Building Bye-laws of 1983. Bye-law 5.6.1 reads as follows :
"Wherever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violation/deviations are minor, viz., only when the deviations/ violations is within 5% of (1) the minimum setback to be left around the building. (2) the maximum plot coverage, (3) permissible floor area ration and maximum height of the building and that the demolition under Chapter XV of the Act is not feasible without affecting the structural stability then he may regularise such violations/deviations by sanctioning of a modified plan with a levy of a suitable fee to be prescribed. The Commissioner shall come to the such conclusion only after recording detailed reasons for the same. Violations/ deviations under the provision shall not include the buildings which are constructed without obtaining any sanctioned plan whatsoever and also the violations/deviations which are made in spite of the same being specifically deleted or rejected in the sanctioned plan."
These bye-laws are framed under the powers given to the Corporation under Sec. 295 of the Karnataka Municipal Corporations Act, 5976. Section 32! of the Act gives power to the Commissioner for demolition or alteration of buildings unlawfully commenced, carried on or completed. Under Section 321(1)(i)(b) if the Commissioner is satisfied that the construction or reconstruction of any building is being carried on, or has been completed otherwise than in accordance with the plans or particulars on which such permission or order was based; or under sub-clause (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act, he may make a provisional order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, rules, bye-laws, directions or requisitions as aforesaid, or with the plans or particulars on which such permission or order was based and may direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building. Under sub-section (2) a copy of the provisional order made under sub-section (1) is required to be served on the owner or builder of the building or hut etc. It is thus argued for the respondents that when these provisions are made under the Act for safeguarding the interest of owner of the building the appellant could not have approached the Civil Court without waiting for the Commissioner to take action in accordance with the law, on the complaint made by the appellant to him complaining all these deviations. The trial Court has observed in para-21 of its Judgment that without waiting for the result of such complaint, the plaintiff approached the Court and the 3rd defendant had contended that the Corporation Commissioner could not take any action as the suit came to be filed in the meanwhile. Referring to the provisions cited above the learned trial Judge in para-22 of his judgment says :
"When a statute or bye-law gives discretionary power to a competent authority, that authority has to exercise that discretion judicially having regard to the facts and circumstances of the case. The Court cannot compel any authority who had been conferred with the discretionary powers to exercise its discretion in any particular way. The statute and bye-laws confer such discretionary powers over defendant No. 3 in making regularisation of the construction. Therefore, no injunction can be granted by the Court against defendant No. 3 restraining it from exercising any such discretion. If the plaintiff has any grievance, he has to appear before the Commissioner and to put forth his grievance against such use of discretionary powers in any way."
According to the appellant's counsel the plaintiff-appellant need not have waited for the Commissioner to take any action as the plaintiff has an independent right to complain of such unauthorised and illegal construction. In the case of K. R. Shenoy v. Udipi Municipality, , under Art. 226 of the Constitution of India permission for construction of a cinema house in pursuance of exercise of the powers conferred by the Act on the Municipality was in question. On the facts of the case at paragraph 28 of the Report Their Lordships of the Supreme Court observed as follows :--
"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 Municipal 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 Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned order lines in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by Municipalities in such cases."
It was also further observed that the Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme therein was for the benefit of the public. There was special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area was injured by the illegal construction. The High Court in that case had refused to quash the order passed by the Municipality on the ground that, substantial money had been spent by that time though plan for conversion of building into a cinema was in violation of the Town Planning Scheme. Whether a resident of the locality has a right to complain of deviations and therefore asked for their removal eyen though by himself he does not sustain any injury is a matter requiring scrutiny. In this behalf some of the decisions in writ proceedings have been referred to. In the case of M/s. Rajatha Enterprises v. S. K. Sharma, of the Karnataka Municipal Corporation Act referred to above was for consideration before the Supreme Court in a writ petition. In that case demolition of the sixth floor built by the appellant in excess of the permissible limits was for consideration. In conclusion the Supreme Court said :
"The permissible limit of compounding being 5 per cent of the permissible FAR, which works out to 1490 sq. ft., the actual area of deviation outside the permissible compounding limit seems to be not larger than 742 sq. ft. In the circumstances, in the light of what the Commissioner says about the practice of the Corporation in regard to the commencement certificate and in the absence of any evidence of public safety being in any manner endangered or the public or a section of the public being in any manner inconvenienced by reason of the construction of the building, whatever may be the personal grievance of the 1st respondent, the High Court was not justified, at the instance of the 1st respondent claiming himself to be a champion of the public cause, in ordering the demolition of any part of the building, particularly when there is no evidence whatsoever or dishonesty or fraud or negligence on the part of the builder."
This Court in the case of Dr. M. Srinivas v. B.C.C., ILR (1989) Kant 1166, considering the effect of deviation which did not exceed 5 per cent of the permissible limit recognised the right of the owner of the building for compounding. Referring to the case of M/s. Rajatha Enterprises (supra) the, learned sjngle Judge in this case found that there is no dispute about the fact that if deviation did not exceed 5 per cent of the permissible limit, the respondent-corporation therein would not object to such a deviation provided the deviation was compounded in accordance with the Regulations of the Corporation. Compounding beyond 5 per cent limit is beyond the scope of compounding under the Regulations and in that case deviation of 155.75 sq. mtrs. beyond the compounding limit was for consideration and whether this extent of deviation would be inconsistent with the requirements of reasonableness for the purpose of being compounded if the petitioner is willing to have it compounded and the respondent is agreeable to the extent of compounding was the point. The only reason given by the respondent leading to the impugned action for demolition was that the deviation exceeded 5 per cent which meant that if it had not exceeded 5 per cent the Corporation would not have issued order which was impugned in the writ petition. In fact in para-10 of the Report the learned Judge further observed that if this Court were to reach the conclusion that the alleged excess area is not so significant as to be regarded as unreasonably excessive, there should be no hesitation in granting relief to the petitioner. Ultimately it was found that it would be both unfair and unreasonable if the respondent Corporation was allowed to go ahead with implementation of the threatened action of demolition of the building for the deviation noticed. A direction was given to the Corporation Commissioner to apply the principle's of compounding to the alleged excess area of 155.75 sq. mtrs. and permit the petitioner to complete the construction in accordance with the licence and approved plan. This decision is relied upon to show that in the first instance if no injury is caused to the appellant he cannot make any grievance of the deviation perse. In any event it is in the discretion of the Corporation Commissioner to permit these deviations if they are not in excess of 5 per cent referred to above.
9. An earlier decision of this Court in the case of Mathew Philips v. P. O. Koshy, AIR 1966 Mys 74. considered more precisely the point involved in this suit. His Lordship G. K. Govinda Bhat, J. (as he then was) referring to the bye-law framed by the Municipality requiring a clear space of 4 feet between two adjoining premises held that it does not create a right in a neighbouring owner to institute a suit for injunction. It is for the appropriate authority under the Municipal Act to determine, whether the terms and conditions of the licence have been contravened by the licensee of the building. With this observation the temporary injunction sought for was refused in that case. At para-3 of the Report it was pointed out that under the Bye-laws of the Corporation of the City of Bangalore, framed under the City of Bangalore Municipal Corporation Act, 1949, a licence had to be obtained for construction of any building within the Corporation area and apian of the building had also to be approved and the-building had to be constructed in accordance with the approved plan. If the licensee does not conform to the terms and conditions Of the licence, the remedy was provided by S. 264 of the Act of 1949, which vested the powers in the Commissioner to take action in the manner provided therein. As in the present case in that case as well the plaintiff had made a complaint to the Corporation and the Corporation issued a show cause notice to the defendants and that show cause notice was withdrawn subsequently on the appropriate authority being satisfied that there had been contravention of the licence granted by the Corporation to the defendants. This bye-law is analogous to the bye-law now under consideration and also Sec. 321 of the Act of 1976. I am in respectful agreement with the observations of His Lordship that when there is an infringement of the bye-law the proper course would be for the Corporation Commissioner to take action either suo motu or on a complaint made to him in this behalf. Section 321 of the Act provides for elaborate procedure to be followed by the Commissioner in such an event and under S. 444 appeal lies to the Standing Committee against any notice or action taken by the Commissioner under Sec. 321 of the Act. Thus the Act itself has provided for a machinery to inquire into such grievance and if the Commissioner does not decide to compound then he may take such action as he deems fit and proper. In the case of K. R. Shenoy (supra) decided by the Supreme Court and referred to above, there was no question of deviation in the matter of construction but the cinema building was constructed in violation of the scheme prepared by the Municipal Authorities. The injunction sought for in the instant suit is that the Corporation Commissioner should be restrained from regularising these deviations. Such a relief is wholly unthinkable as rightly observed by the trial Court. Certain amount of discretion vests in the Commissioner and it is for him to take appropriate action as he deems fit. If the plaintiff does not sustain injury by such deviation then the Civil Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching the Commissioner complaining of such a deviation. In my view therefore the Court below was justified in dismissing the suit and I do not find any reasons to interfere with the Judgment and Decree of the Court below. The appeal therefore fails and is dismissed with costs of the respondents.
10. Appeal dismissed.