Decided on November 28,1973



- (1.) PLAINTIFFS and the defendant are adjacent neighbours. By two separate sale deeds, plaintiffs purchased 0. 170 acre of land from one Sidheswar Sahu out of c. S. Plot No. 2283 in C. S. Khata No. 59 on 11-2-45. In the very year, plaintiffs constructed their residential houses on the land and continued to reside therein. Defendant purchased 0. 170 acre of land from one Atul Ghose by a registered sale deed dated 12-4-45 from the very plot 2283. He, for the first time, started construction on his land in 1960. He did not leave a space of 15 feet as required under the Orissa Municipal Rules, 1953 (hereinafter to be referred to as the Rules)towards the plaintiff's side he made construction by leaving a space of 1 to 2 feet and by the date of the suit he was proceeding with the construction of his kitchen and latrine in close proximity to the plaintiff's houses. By the aforesaid illegal act, light and air to the houses of the plaintiffs were obstructed and their privacy was affected. Despite repeated requests from the plaintiffs the defendant did not desist in prosecution of the illegal act Plaintiffs made the last request on 20th of february, 1961. As it was not heeded to, the suit was filed on 24th of February, 1961. Plaintiffs prayed for a mandatory injunction to dismantle illegal constructions within a distance of 15 feet from the boundary of the plaintiff's land and for a permanent injunction to restrain the defendant from making further constructions contrary to the Rules. The defendant filed a written statement alleging that the construction of his house was completed by the first hall of 1960 and he resided therein with family from july, 1960. By the date of the suit, he was not proceeding with any construction of kitchen or latrine. The construction of his pucca residential building, store-room, kitchen, and a Barpali type of latrine was completed long before the institution of the suit. It was, however, admitted in the written statement that these constructions of the defendant are standing almost in a line about two feet apart from the row on line of the plaintiffs' houses and none of the plaintiffs ever objected to the same at any time. Defendant's further case is that the plaintiffs have not acquired any right to light and air by easement and right of privacy by custom. All the courts have concurrently found that the plaintiffs have not acquired any right to light and air by easement. It was wholly unnecessary to re-cord such a finding as the plaintiffs them-selves never presented such a case. Equally redundant was the attempt to examine a case that the plaintiffs had not acquired a right of privacy by custom. The position may, therefore, be made clear that the plaintiffs never set up a case of acquisition or a right to light and air by easement or right to privacy by custom.
(2.) THE only substantial case pleaded in the plaint is that the defendant made construction on his land in violation of the Rules and thereby caused injury to the plaintiffs by obstructing light and air to their houses and by affecting their privacy. None of the courts below, including the learned single Judge, have addressed themselves to this aspect of the matter and recorded no finding of fact whether by the defendant's illegal construction there was injury or likelihood of injury to the plaintiffs independent of acquisition of right to light and air by easement and of right of privacy by custom.
(3.) THE trial court has recorded a clear finding that the defendant should have left an open space of 15 feet from the boundary of the house of plaintiff No. 2 and though in fact in the municipal plan (Ext. 4/a) a space of 16 feet was indicated to be left out, the defendant made the construction in violation of the plan by leaving a space of 2 feet between the two houses. The lower appellate court, and the learned Single Judge in second appeal, did not take a different view. The trial court dismissed the suit on the conclusion that mere violation of the Rules does not entail a cause of action in favour of the plaintiffs and the remedy is under the Orissa Municipal Act (Act 23 of 1950) (hereinafter to be referred to as the Act ). The lower appellate court on the basis of (1963) 5 OJD 97 (B. Modi and N. Modi v. Revenue Divisional Commr. Central Division, Cuttack) decreed the suit holding that the plaintiffs' suit for mandatory and permanent injunction was maintainable. The matter came up before A, Misra, J. , who referred the case to a Division Bench. The passage in (1963) 5 OJD 97 on which reliance has been placed by the lower appellate court was considered by him to have been laid down in very wide terms. He was of opinion that the law so laid down has created some amount of uncertainty and requires re-examination. He referred to the observation of R. N. Misra, J. in (1971) 37 Cut LT 367 (Ghanashyam Das Agarwalla v. Binoy Krushna roy) on (1963) 5 OJD 97 to the following effect:-"i, therefore, do not think that their Lordships of this Court in the division Bench decision clearly laid down that even in the absence of specific injury to an individual he was entitled to sue on the basis of violation of a Municipal Rule. " (para 12 ). The impugned observation made by Barman and J. K. Misra, JJ. in (1963) 5 OJD 97, is "the broad principle underlying the accepted view is that a citizen residing within the Municipality has a right to see that the building rules, made for the welfare and benefit of the public are strictly observed. It is an individual right of each member of the resident public, within the municipality to insist ' on compliance with municipal rules, conducive to the general good of the community of which each such individual is a component member. " (para 10 ). The case initially came up before a Division Bench consisting of Patra, J. and myself which referred it to a larger Bench. This is how the matter has come before us.;

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