In Wheeler and another V. J J Saunders Ltd. and Ors. reported in 1995 (2) All
England Reported 697 also cited by Mr. Chowdhury it was stated by the Court of
Appeal that where a statute directly authorised construction and use of a building it
took away common law rights. But there was a difference between direct statutory
authority and obtaining planning permission. Obtaining planning permission did not
take way such rights. An Indian authority in Kamalakanta De and Ors. Vs.
Radhaballav Kundu and Ors. reported in 84 CWN 624 was cited to show that a
sanctioned plan was no defence in a case alleging infringement of easement rights.
Common law rights were not generally affected by a sanctioned plan.
G.A. NO. 2698 of 2013
C.S. NO. 285 OF 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
In the Matter of :
ITC Limited V Chowringhee Residency Private Limited.
Judgement On: - 03.09.2014
I.P. MUKERJI, J.
The Court: - In our country, this is a most unusual suit. Not that suits of this
kind have not been instituted earlier. They have been few and far between.
The plaintiff is a company, ITC Limited. They are the owner of a building
called “Fountain Court” at 7/1, Little Russell Street (also known as Nandalal Bose
Sarani) in Kolkata-700071. This building has several flats which are occupied for
residential purposes by the officers of this company. It is about 67ft. 6 inches tall
and has five stories. It has 43 windows, 30 of them on the western side.
In the present action, the suit, the plaintiff seeks a declaration that it has an
absolute and indefeasible right to the access and use of light and air through and
over the premises No. 42B, Chowringhee Road ( also known as Jawaharlal Nehru
Road ), Kolkata – 700 071 which predominantly lies on its western side. It also
claims the related order of injunction restraining the defendant from interfering with
such enjoyment of air and light. The plaint was verified on 14th August, 2013.
This application has been taken out by the defendant. They want the suit to be
dismissed at the threshold. The application is under Order VII Rule 11 of the Code
of Civil Procedure.
The case made out in the application is that on a perusal of the plaint the court
should be able to form an opinion that it does not disclose a cause of action.
Furthermore, the suit is barred by law.
Upto 1956 there was a premises numbered as 3/1, Middleton Street which
included the premises of Fountain Court. It was owned by the trustees of a trust. By
a conveyance dated 13th November, 1956, the eastern portion of the said premises
covering an area of 2 bighas, 1 cottah, 3 chittaks and 13 Sq.ft. of land together with
a five storied building thereon was conveyed in favour of the plaintiff by the
trustees. This was numbered as 7/1, Little Russel Street on which now stands
Fountain Court. A portion of 3/1, Middleton Street was retained by the trustees. It
also had a five storied building. Now, this five storied building was also 67ft. 6
inches tall. According to the plaintiff these two buildings were positioned in such a
way that Fountain Court and the other building received unrestricted light and air.
To the further west, lay premises numbers 42B, 42A and 42/1 Chowringhee
Road which was an open space having only a damaged building on Chowringhee
Road.
The western portion of 3/1 Middleton Street retained by the trustees was sold
by them in 1957. There were subsequent transfers. 42/B, Chowringhee Road, the
property bought by the defendant is an amalgamated plot consisting of plots which
were formerly 42A, 42B and 42/1 Chowringhee Road, western portion of 3/1
Middleton Street and 7, Little Russel Street.
In 2013, the plaintiff received information that the defendant was proposing
to erect a very tall building on the premises. On 5th March, 2013 they wrote to the
defendant enquiring as to the work they proposed to do on it. From the defendant’s
reply dated 12th March, 2013 the plaintiff learnt that they were proposing to erect a
tower 240 meters tall consisting of 60 stories for residential flats. Piling work had
commenced from the beginning of 2013. The work of excavation was continuing.
The proposed tower would be separated by a distance of 67 ft. from Fountain Court,
as submitted.
The suit is a quia timet action. A quia timet action seeks reliefs from the
Court for reliefs against an anticipated injury. The plaintiff wants this Court to pass
an order of injunction restraining the defendant from proceeding with the
construction, of the tower. They are certain that if the tower is allowed to come up it
would result in diminution of such a quantity of light so as to make residence in
Fountain Court most uncomfortable. The action of the defendant would amount to
actionable nuisance.
Mr. Sudipto Sarkar, learned Senior Advocate for the plaintiff submits that on
an examination of the plaint it would be plain that the plaintiff has no cause of
action at all against the defendant. The law does not permit such a suit to be filed.
Hence, it is liable to be dismissed at the threshold.
He brought in the concept of the dominant tenement and the servient
tenement. According to him the plaintiff acquired the property in 1956. He argued
that the owner of a dominant tenement had easement rights with regard to a servient
tenement. In this case at the material point of time there was only one tenement,
that of the plaintiff. Therefore, the plaintiff could not have any right of a dominant
tenement owner or occupier. He went to the extent of arguing that there could not be
easement rights over one’s own property.
The plaintiff engaged M/s Gordon Ingram Associates, a firm of London
which estimates the quantity of light in premises, to survey the site and to report on
the light conditions if the proposed building of the defendant was erected. Based on
their report the plaintiff has alleged in the plaint that the proposed construction “will
create substantial loss of light enjoyed through the windows and opening on the
western side of the building at Fountain Court and there would be significantly
lower limits of sky visibility and such lower light would be insufficient for ordinary
habitancy, thus amounting to actionable nuisance.”
Mr. Sarkar, cited the case of Colls Vs. Home and Colonial Stores, a House
of Lords decision reported
in (1904) A.C. 179. The lessees of a building in
Worship Street Shoreditch had filed an action. They were carrying on business in a
leased portion of the premises. The appellant had proposed to build on a land which
lay on the opposite side of the street. The street was 41 ft. wide. The proposed
building would be 42 ft. height. According to the lessees there would be serious
obstruction of light and hence they filed the action. It was an accepted position that
the construction would not lessen the value of the lessee’s premises. The evidence
showed that it would still be sufficiently lighted for all ordinary purposes of
occupancy as a place of business. In that case Lord Earl of Halsbury L.C relied on a
1752 case Fishmonger’s Co. Vs. East India Company reported in (1759) 1 dick
163. He stated that it was not sufficient that an obstruction to light would alter the
plaintiff’s lights. The objectionable construction must be so near as to be a nuisance.
The test according to his lordship was whether the obstruction complained of was a
nuisance. The amount of right and the proximity of the premises had to be taken
into account. It was a question of degree. A town dweller could not expect the same
nature of right as a village dweller. Lord Macnaghten remarked:
“In later times, when an action for the protection of ancient
lights came to be regarded rather as an action for disturbance
of an easement than an action grounded on nuisance----as an
action to prevent the infringement of a right rather than an
action to redress a wrong--- the necessity of shewing the
gravity of the injury complained of was not so obviously
apparent. Still the principle was the same, and it must always
be the same. “It is not sufficient,” as Lord Hardwicke observed
in Fishmongers’ Co. V. East India Co. to say it will alter the
plaintiffs’ lights....The law says it must be so near as to be a
nuisance.”
Lord Davey added:
“ in order to give a right of action, and sustain the issue, there
must be a substantial privation of light, sufficient to render the
occupation of the house uncomfortable, and to prevent the
plaintiff from carrying on his accustomed business ( that of a
grocer) on the premises as beneficially as he had formerly
done. His Lordship added that it might be difficult to draw the
line, but the jury must distinguish between a partial
inconvenience and a real injury to the plaintiff in the
enjoyment of the premises.”
My Lords, I must apologise for the length at which I have
trespassed on your attention. According to both principle and
authority, I am of opinion that the owner or occupier of the
dominant tenement is entitled to the uninterrupted access
through his ancient windows of a quantity of light, the
measure of which is what is required for the ordinary purposes
of inhabitancy or business of the tenement according to the
ordinary notions of mankind, and that the question for what
purpose he has thought fit to use that light, or the mode in
which he finds it convenient to arrange the internal structure
of his tenement, does not affect the question. The actual user
will neither increase nor diminish the right. The single
question in these cases is still what it was in the days of Lord
Hardwicke and Lord Eldon----whether the obstruction
complained of is a nuisance. I do not myself think that this rule
is difficult of application in practice. In the majority of cases
no such questions as those which have been raised in Warren
V. Brown and the present case occur. The experience of
surveyors who are practically conversant with this matter is
entitled to great respect. As Mr. Vigers states in his evidence,
they have adopted a working rule for the purpose of advising
those who consult them and settling differences by negotiation.
The rule of 45 degrees is not, of course, a rule of law, and is
not applicable to every case. But I agree with Lord Selborne
(City of London Brewery Co. V. Tennant) that it may properly
be used as prima facie evidence.
Thereafter, he cited Paul Vs. Robson reported in AIR 1914 PC 45. It was
an appeal from a Calcutta decision to the Privy Council. Lord Moulton applied the
ratio in Colls Vs. Home and Colonial Stores reported in (1904) A.C. 179. His
lordship noted that the infringement of easement must result in actionable nuisance.
He approved a passage of the speech of Lord Davey in the 1904 decision which
opined that the owner of the dominant tenement was entitled to the uninterrupted
access to ancient light which is required for the ordinary purposes of inhabitancy or
business of the tenement according to the ordinary notion of mankind. It also
approved another passage in the 1904 judgment that the light must be sufficient
according to the views of the ordinary people for the comfortable use and
enjoyment of the dwelling house or of a room in it. He next cited Chapsibhai
Dhanjibhai Danad Vs. Purushottam
reported in
AIR 1971 SC 1878. Mr.
Justice Shelat delivering the judgment of the Hon’ble Supreme Court adopted a
passage from Colls Vs. Home and Colonial Stores, that to constitute an actionable
obstruction of free passage of light there must be substantial privation of light,
enough to render the occupation of the house uncomfortable according to the
ordinary notions of mankind. In Re: Reba Samanta Reported in 1993 ILR 1 Cal
317 cited by Mr. Sarkar reiterated the principles of Colls that the result of the
construction should be actionable nuisance against the complainant. The judgment
of a Division Bench of this Court was delivered by S.K. Mukherjee, J. His lordship
opined that to constitute an actionable nuisance the plaintiff had to establish
interference with the enjoyment of air and light substantially depriving him of
comfortable use of the premises.
Mr. Sarkar further submitted that according to the report of M/s. Gordon
Ingram Associates if the proposed construction came up, it would result in
substantial diminution of light and that the light remaining in the habitable place
would be substantially affected. The retained light would so low that it would be
insufficient for ordinary inhabitancy. The report has been annexed to the plaint.
Mr. Sarkar submitted that on the basis of the report, on which the case of the
plaintiff rested, no cause of action was disclosed. The law as submitted by Mr.
Sarkar expressly refused to take cognizance of the case sought to be made out by
the plaintiff. On that analogy the suit was barred by law.
He also referred to some cases on Order 7 Rule 11 of the Code of Civil
Procedure. He cited T. Arivandandam Vs. V. Satyapal & Anr. reported in AIR
1977 Supreme Court 2421 in which Mr. Justice Krishna Iyer opined that the
plaint must be read “ meaningfully”. If it was found that an “ illusion” of a cause of
action was created by “ clever drafting”, the suit should be “ nipped in the bud”.
The same principle was again reiterated by the Supreme Court in I.T.C. Limited
Vs. Debts Recovery Appellate Tribunal And Others reported in (1998) 2SCC70
where the Supreme Court through Mr. Justice M. Jagannadha Rao remarked that “ a
clear right to sue should shown in the plaint”. I was also referred to India Carbon
Limited Vs. Ganesh Prasad Singh reported in 2012 (1) CHN 152.
Mr. Ahin Chowdhury, learned senior advocate for the plaintiff began his
submissions by placing Section 25 of the Limitation Act. He submitted that when
access and use of light have been enjoyed without interruption for 20 years the right
became absolute and indefeasible. The plaintiff had brought the premises in 1956
and till now were enjoying the right to light uninterruptedly and peacefully. Hence,
they had become absolute. He referred to Section 15 of the Indian Easement Act,
1882 and referred to Sections 15 and 35 (B) thereof. I insert both these sections for
convenience.
“15. Acquisition by Prescription.------ Where the access
and use of light or air to and for any building have been
peaceably enjoyed therewith, as an easement, without
interruption, and for twenty years.
and where support from one person’s land or things
affixed thereto, has been peaceably received by another
person’s land subjected to artificial pressure is or by
things affixed thereto, as an easement, without
interruption, and for twenty years,
and where a right of way or any other easement has been
peaceably and openly enjoyed by any person claiming
title thereto, as an easement and as of right, without
interruption , and for twenty years,
the right, to such access and use of light or air, support,
or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to
be a period ending within two years next before the
institution of the suit wherein the claim to which such
period relates is contested.
35B if the disturbance is only threatened or intended----
when the act threatened or intended must necessarily, if
performed, disturb the easement.”
Citing Bhupati Bhusan Mondal Vs. Jadunath Ghosal reported in AIR
1955 Calcutta 70 Para 9 and 41 and my judgment in Prabir Guha Vs. Uttam
Chand Surana reported in 2011 (2) CHN 665, he submitted that although the
Indian Easement Act, 1882 did not apply to Bengal, these decisions held that the
principles of the Act were applicable here.
Mr. Chowdhury tried to argue that in all cases a right of easement did not
arise out of dominant and servient tenements. When a person has been openly and
independently exercising a certain easement right for a statutory period, though not
consciously, he become entitled to such rights. He cited Jotindra Mohan Mitter
Vs. Probodh Kumar Dutt reported in AIR 1932 CAL 2 49. He also relied upon
Rau Rama Atkile Vs. Tukaram Nana Atkile reported in AIR 1939 BOM 149.
That decision laid down another important proposition of law. When rights
were acquired by prescription, like right of light, the same could not be taken away
by sanction of another building plan by the municipal corporation in exercise of its
statutory power.
Mr. Chowdhury placed the definition of ancient laws from Advanced Law
Lexicon Third Edition 2005 by P.Ramanatha Aiyar and Stroud’s Judicial Dictionary
5th Edition 1986.
He placed the report of Mr. Gordon Ingram dated 19th July, 2013 in
considerable detail. He argued that the report stated that the case law in India with
regard to light, referred to the case of Colls Vs. Home and Colonial Stores
reported in (1904) A.C. 179. One of the principles of that case which was being
relied upon was that the retained light should be “comfortable and sufficient for the
ordinary purposes of inhabitancy”. This was called the 50/50 rule.
The report stated that it had taken into account the fact that Kolkata was at a
different latitude which was 22.5 degrees north compared to London which was at
51.5 degree north.
The report referred to the 50/50 rule as follows:-
“As a general guide currently if after construction
of a proposed development more than half of a
room in the existing building has a sky factor of
less than 0.2% and a right of light exists then this
right is likely to be infringed. It is generally
appreciated that the risk of an injunction being
granted
in
this
situation
is
considerable,
particularly if complaints from adjoining owners
are ignored”.
It came to the following conclusions in 6.1.2, 6.1.3 and 6.1.4 set out
hereunder:
0.2% Sky Factor Contour
6.1.2 The attached results illustrate that the light
remaining within all of the habitable spaces facing
towards the development site would not only be
substantially affected but the retained light would
generally be low. The rooms labeled R6 at each
floor level will not experience a substantial
reduction by comparison with those at R2-R3 at
each level. Those rooms in each situation will have
significantly lower levels of sky visibility and thus
significantly
lower levels of available light to
these key habitable spaces. Against the Colls test,
it is likely that some of these retained levels of
light would be insufficient for ordinary habitancy.
0.1% Sky Factor Contour
6.1.3 The attached results illustrate that the light
remaining within all of the habitable spaces facing
towards the development site would not only be
substantially affected but the retained light would
generally be low. The rooms labeled R6 at each
floor level will not experience a substantial
reduction by comparison with those at R2-R3 at
each level. Those rooms in each situation will have
significantly lower levels of sky visibility and thus
available light to these key habitable spaces.
Again, I would consider that this would not meet
the standard of adequacy suggested within the
Colls case.
0.05% Sky Factor Contour
6.1.4 The attached results illustrate that the light
remaining within all of the habitable spaces facing
towards the development site would not only be
substantially affected but the retained light would
generally be low. The rooms levelled R6 at each
floor level will not experience a substantial
reduction by comparison with those at R2-R3 at
each level. Those rooms in each situation will have
significantly lower levels of sky visibility and thus
available light to these key habitable spaces.
Again, I would consider that this would not meet
the standard of adequacy suggested within the
Colls case.
Mr. Ingram remarked
“Based on the assumptions that we have
explicitly referred to above there is no doubt
whatsoever that the proposed tower. “The 42
degree will create a substantial loss of light to the
residential amenity within Fountain Court.
We understand that Fountain Court was
constructed prior to 1956 and therefore can
demonstrate a right of light.
By reference to the law of easements as applicable
in Kolkata it would appear that when a substantial loss
of light occurs, the potential of an injunction is available
to the dominant tenement. This is demonstrated not only
in terms of the overall loss of light but also by reference
to the fact that the retained levels of light are very low.
In addition to the Rights of Light method applied by
courts in the U.K I have provided the additional evidence
from the BRE Guidelines because they are adopted by
nearly every English Local Authority and are heavily
relied upon when considering impacts to neighbouring
residential properties.
By reference to the most recent judgement in
English law, namely the Heaney case as referred to
above there would be no doubt that by adopting the same
principles the judge would in my view come to the same
conclusions. That is to say that this would be a scheme
that the developer would be at very high risk of receiving
an injunction as a result of the nuisance that his
proposal would cause on the amenity enjoyed by his
neighbour.
I trust that this clarifies the position for you in
terms of offering a preliminary report on the light
enjoyed by Fountain Court”.
Mr. Chowdhury cited Liverpol & London S.P. & I Association Ltd. Vs.
M.V. Sea Success I and Another reported in (2004) 9 SCC 512, which stated that
it was to be seen when the averments in the plaint are taken to be correct, whether a
decree could be passed.
Exphar And Another Vs. Eupharma Laboratories Ltd. and Another,
reported in (2004) 3 SCC 688 para 9 also cited by Mr. Chowdhury also pronounced
a dictum on the same line. Thereafter, Ramesh B. Desai And Others Vs. Bipin
Vadilal Mehta and Others reported in (2006) 5 SCC 638 Paras 14, 15 & 16 was
relied upon by learned counsel which stated the same principle: on a reading of the
plaint a suit should be shown to be barred by law. Similar was the dictum of the
Supreme Court in Bhau Ram Vs. Janak Singh and Others reported in (2012) 8
SCC 701, cited by him.
Then Mr. Chowdhury cited William Cory & Son Limited Vs. City of
London Real Property Company Limited decided on 10th May, 1954 by Mr.
Justice Upjohn. On facts it was proved that there would be substantial diminution of
light in the plaintiff’s premises which led his lordship to hold that the diminution of
light would amount to an actionable nuisance. It was held in Ough Vs King
reported in 1967 (3) AER 859 also cited by the same learned counsel that in
determining whether there was an infringement of the plaintiff’s right to light, the
court was entitled to have regard to the locality and to the higher standard of light
required in the present day and not be confined to a rule that so long as half of a
room was adequately, lighted there was no infringement. The leading judgement of
the Court of the Appeal was delivered by Lord Denning, M.R.
Learned Counsel also cited Litchfield-Speer & Another vs. Queen Anne’s
Gate Syndicate (No-2) Ltd. (1918-1919 All ER Rep 1075) following Coll’s case.
In Wheeler and another V. J J Saunders Ltd. and Ors. reported in 1995 (2) All
England Reported 697 also cited by Mr. Chowdhury it was stated by the Court of
Appeal that where a statute directly authorised construction and use of a building it
took away common law rights. But there was a difference between direct statutory
authority and obtaining planning permission. Obtaining planning permission did not
take way such rights. An Indian authority in Kamalakanta De and Ors. Vs.
Radhaballav Kundu and Ors. reported in 84 CWN 624 was cited to show that a
sanctioned plan was no defence in a case alleging infringement of easement rights.
Common law rights were not generally affected by a sanctioned plan. On this basis
Mr. Chowdhury argued that sanction of a building plan by the Kolkata Municipal
Corporation in favour of the defendant did not affect the rights of the plaintiff.
Dhannalal and Anr. Vs. Thakur Chittarsingh Mehtapsingh reported in
AIR 1959 MP 240 and
Balasaria Construction (P) Ltd. Vs. Hanuman Seva
Trust and Others reported in (2006) 5 SCC 658 Para 8 were cited by learned
counsel to emphasise that in a quia timet action no question of limitation was
involved.
Discussion and Conclusions
Although I have discussed many issues in the foregoing paragraphs, my
findings below are exclusively based on a reading of the plaint without the
annexures.
Whether in the United Kingdom or in our country Colls Vs. Home and
Colonial Stores reported in (1904) A.C. 179 is regarded as the leading authority on
the subject. Each of the law lords has not expressed the same view. Lord Earl of
Halsbury L.C delivering the first judgment referred to a case decided by Lord
Hardwicke in 1752, Fishmonger’s Co. Vs. East India Company
(1752) 1 Dick 163.
reported in
In that case it was spelt out that to found an action on
diminution of light, actionable nuisance had to be established. His lordship opined
that a town dweller could not expect to receive as much light as a village dweller.
The test was nuisance. Lord Macnaghten
delivering the second judgment relied
upon two earlier cases decided about 75 years or so earlier than Colls, Back Vs.
Stacey reported in (1826) 2 C&P 465 and Parker Vs. Smith reported in (1832)
5 C & P 438 and approved the judgements in those cases. The ratio laid down was
that to give a right of action there must be substantial privation of light, sufficient to
render the occupation of the house uncomfortable and to prevent the plaintiff from
residing there or carrying on his accustomed business therein. This notion of
comfortable use and enjoyment of a house or business place was reiterated by Lord
Davey in the next judgment approving a decision by Lord Justice James in Kelk Vs.
Pearson reported in ( L.R. 6 Ch. 809).
The lack of uniformity in the judgements was stated by Lord Lindlay thus:
“My Lords, the result of the foregoing review of the authorities
is not altogether satisfactory. The general principle deducible
from them appears to be that the right to light is in truth no
more than a right to be protected against a particular form of
nuisance, and that an action for the obstruction of light which
has in fact been used and enjoyed for twenty years without
interruption or written consent cannot be sustained unless the
obstruction amounts to an actionable nuisance; and this often
depends upon considerations wider than the facts applicable to
the complainant himself. There are elements of uncertainty
which render it impossible to lay down any definite rule
applicable to all cases. First, there is the uncertainty as to what
amount of obstruction constitutes an actionable nuisance; and,
secondly, there is the uncertainty as to whether the proper
remedy is an injunction or damages. But, notwithstanding
these elements of uncertainty, the good sense of judges and
juries may be relied upon for adequately protecting rights to
light on the one hand and freedom from unnecessary burdens
on the other. There must be consideration for both sides in all
these controversies”.
The dictum in Colls that the retained light should be “comfortable and
sufficient for the ordinary purposes of inhabitancy” was applied in Litchfield-Speer
& Another vs. Queen Anne’s Gate Syndicate (No-2) Ltd. (1918-1919 All ER
Rep 1075) In the unreported case of William Cory & Sons Limited Vs. City of
London Real Property Company Limited
decided on 10th May, 1954 the
standard which was applied was whether the diminution of light was such as to be
insufficient for
“the ordinary purposes of human habitancy or business of
tenement” and amounted to an actionable nuisance. The above evidence on this
issue was admitted. In Ough Vs King
Denning, M.R. opined
that the right
reported in 1967 (3) AER 859 Lord
to a minimum amount of ancient light
depended on the locality and that a higher standard of light was required in modern
times. This factor had to be considered in considering whether there was any
diminution of light.
If one reads the cases cited by both learned counsel, one would find that the
thread running through the English authorities have also run through the Indian
authorities. In Paul Vs. Robson
reported in AIR 1914 PC 45, Chapsibhai
Dhanjibhai Danad Vs. Purushottam reported in AIR 1971 SC 1878 and In Re:
Reba Samanta reported in 1993 ILR 1 Cal 317, the Courts approved the ratio of
the all the opinions taken together in Colls Vs. Home and Colonial Stores.
Infringement of easement rights through diminution of light must result in
actionable nuisance. In all the three cases it was held that a person had a right to
enjoyment of ancient lights. Diminution of this light so as to affect the ordinary
purposes of inhabitancy or business of the tenement would confer a right of action
on a person. The occupation must become uncomfortable.
Jotindra Mohan Mitter Vs. Probodh Kumar Dutt reported in AIR 1932
Cal 249 held that an easement right exercised openly though not consciously
conferred those rights upon a person.
Rau Rama Atkile Vs. Tukaram Nana Atkile reported in AIR 1939 Bom
149 held that rights acquired by prescription like right of light could not be taken
away by the sanction of a building plan in favour of another. The common law,
unless expressly taken away by statute continues to be applicable. This was stated in
Wheeler and another V. J J Saunders Ltd. and Ors. reported in 1995 (2) All
England Reports 697 . If a statute directly authorised the construction then the
words of the statute prevailed over the common law. But when the planning
permission was granted or sanction to a building plan made, the common law still
applied with full force. This was laid down with emphasis in Kamalakanta De and
Ors. Vs. Radhaballav Kundu and Ors. reported in 84 CWN 624.
The authorities on demurer cited by both the parties enumerated above
warned the Court not to be befooled by clever drafting. They tell the Court to
carefully and meaningfully read the averments and only the averments and nothing
else to convince itself that there is disclosure of a cause of action. The assertions of
facts made in the plaint have to be taken as true. If the cumulative effect of all the
assertions is that the plaintiff will get a decree, then he has disclosed a cause of
action. Conversely, if on scrutiny of the averments one immediately comes to the
conclusion that, no case is disclosed and no relief can be granted to the plaintiff the
point of demurer succeeds.
The plaint specifically avers that Fountain Court is enjoying uninterrupted
access to air and light, on its western side, since 1956. Therefore, such uninterrupted
user has been for a period of much more than twenty years.
The defendant was proposing to construct a 240 m tall tower to the west of
Fountain Court, leaving a distance of only 67 feet.
There are specific pleadings that if construction of the defendant’s proposed
building is not stopped by this Court, it would result in substantial diminution of
light to the plaintiff’s building Fountain Court. Such would be the diminution that
residing there would cease to be comfortable. It could no longer be used for
“ordinary purposes of inhabitancy.”
The acts of the defendant commencing and continuing with the proposed
construction constitute actionable nuisance, according to the pleading. A special
reference may be made to the averments in paragraphs 10, 11, 12 and 13 of the
plaint. A reference was made to the report of Gordon Ingram Associates in
paragraph 11 thereof. A copy of the opinion of this expert is annexed to the plaint.
The relief portion of the plaint claims a declaration of such right and an order of
injunction restraining the defendant from obstructing, disturbing or interfering with
the plaintiff’s access to and use of light.
The facts as disclosed in the plaint, if proved, would invite application of the
above, English and Indian authorities. The suit, in that event, is likely to succeed.
Hence, the plaint discloses a substantial cause of action, in my opinion.
This application for summary rejection of the plaint and dismissal of the suit
fails. It is hereby dismissed.
No order as to costs.
Urgent certified photocopy of this Judgment and order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(I. P. MUKERJI, J.)
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