Document Fragment View

Matching Fragments

14 The words "not opening towards other's property" in rule 6.4.1 of Bye­laws are significant. Does this phrase means that nobody can open a door, window and ventilators towards the public street or public road or in his own plot, where there is a reasonable open space between the two adjoining plots? It is a matter of common knowledge that in urban residential areas, there is a scarecity of land. For better town planning, Building Bye­Laws has been legislated. Keeping in view the respective rights of the adjoining owners of residential plots, certain building bye laws has been made, so that the respective rights may be determined. In my opinion, the phrase "not opening towards other's property" is applicable only in those situations, where there are adjoining properties having a common wall/boundaries. In other words no one is permitted to open a window or ventilators, if there is a common wall between the two properties. The bar is not applicable, if the door, ventilators or windows is being opened towards the public street or road or in its own plot by providing a open space between the window/door/ventilator and the property of other persons. 15 Trial court record depicts that it was shown in the site plan filed by plaintiff that the five ventilators in the toilet complex are just adjacent to his plots. In site plan no passage, street or gap has been shown between the toilet complex and appellant's plot. On this aspect, the plaintiff was not controverted during cross examination. Careful perusal of written statement also reveals that no where it has been stated that there is any gap between the five ventilators of toilet complex and the appellant's plot. It is nobodies case that ventilators are being opened in public street, road or in open space. DW1 in his cross examination stated that he had no knowledge whether the lavatory block is adjacent to the property of plaintiff/appellant. Therefore, neither in written statement nor in testimony of DWS, it has been asserted that ventilators are being opened in public street or open space which supports the case of the appellant that ventilators are just adjacent to his plot. Therefore, appellant is correct in saying that in accordance with rule 6.4.1 of Delhi Building Bye­Laws, ventilators, could not have been opened towards his plot. 16 No doubt that Civil Authority like MCD is under a duty to provide public facilities. But at the same time, public facilities can not be provided at the cost comfort and legal rights of other citizens in a manner which is injurious and detrimental to the life and liberty of others. After careful consideration, I failed to agree with the findings of Ld.Civil Judge that public utility has to be created which will be in residential area and adjacent to residential property of one or other. Everybody including the public authorities are bound to act in accordance with law. Ld.Trial court was not correct in concluding that as appellant and his family members are not residing in the premises and they can not allege any nuisance. Everybody has a right to enjoy his property in accordance with the law. The owner of a vacant plot can not be denied his legal right. Legal reasoning has to satisfy the essential elements of reasonableness, fairness and the legal requirements. The reasoning given by Ld.Trial Judge is not sustainable. I am of the considered view that plaintiff is entitled for the mandatory injunction as prayed for.