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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 :

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."

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.