Easements of Light and Air in Indian Law

The Easement of Light and Air in Indian Law: Acquisition, Nature, and Enforcement

Introduction

The right to light and air is a significant proprietary right, essential for the comfortable enjoyment of immovable property. In Indian law, this right can manifest either as a natural right incident to property ownership or as an easement acquired through specific legal processes. Easements of light and air, governed primarily by the Indian Easements Act, 1882 (hereinafter "Easements Act"), allow a dominant owner to restrict the adjoining servient owner from constructing or altering their property in a manner that unlawfully diminishes the quantum of light or air received by the dominant heritage. This article provides a comprehensive analysis of the legal framework surrounding easements of light and air in India, examining their nature, modes of acquisition, the threshold for actionable disturbance, and available remedies, drawing upon statutory provisions and judicial pronouncements.

Nature of the Right to Light and Air

Natural Rights versus Easementary Rights

It is crucial to distinguish between the natural right to light and air and an easementary right. Every owner of land or a building possesses a natural right to receive light and air vertically acceding to their property; this right is an inherent incident of property ownership and does not need to be acquired as an easement (Dr. K. Panduranga Nayak v. Jayashree, Karnataka High Court, 1989; Moidin Kunhi Beavy And Another v. K. Gopalakrishna Mallya, Madras High Court, 1953). As the maxim cujus est solum ejus est usque ad coelum et ad inferos suggests, an owner has rights to the space above their land.

However, the right to receive light and air laterally, across a neighbour's land, is not a natural right. Such a right must be acquired as an easement (Dr. K. Panduranga Nayak v. Jayashree; Moidin Kunhi Beavy And Another v. K. Gopalakrishna Mallya). The acquisition of this easementary right casts a burden upon the adjoining servient tenement, restricting its owner's natural right to build as they please on their own land (Moidin Kunhi Beavy And Another v. K. Gopalakrishna Mallya).

The Scope and Extent of the Easement

An easement of light and air does not entitle the dominant owner to an unlimited quantity of light and air. The owner of the dominant tenement is entitled to the un-interfered access, through ancient windows or apertures, of a quantity of light and air that is "required for the ordinary purposes and adequacy or absence of the tenement according to the ordinary notion of mankind" (Jamna Das v. Gulraj, Rajasthan High Court, 1951). Section 28(c) of the Easements Act specifies that the extent of a prescriptive right to the passage of light or air to a certain window, door, or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespective of the purposes for which it has been used.

A mere diminution in light and air is not actionable. The obstruction must be such that it amounts to a nuisance, materially affecting the physical comfort of the plaintiff or preventing them from carrying on their accustomed business as beneficially as before (Smt. Laxmibai v. Smt. Kashibai Pandurang Salagaonkar, Karnataka High Court, 1982; Kasturi Lal And Another v. Krishan Chand And Others, Jammu and Kashmir High Court, 1970). The test is whether the obstruction is such as to prevent the owner of the dominant heritage from getting through his ancient windows sufficient light and air according to the ordinary notions of mankind (Smt. Laxmibai v. Smt. Kashibai Pandurang Salagaonkar, citing Licory Minezes (Dead) v. J.C Lobo, A.I.R 1970 Mysore—76).

Acquisition of Easements of Light and Air

Easements of light and air can be acquired through several modes recognized under the Easements Act.

By Prescription (Section 15, Indian Easements Act, 1882)

The most common method of acquiring an easement of light and air is by prescription, as detailed in Section 15 of the Easements Act. This section stipulates that where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air shall be absolute. The expression "as an easement" is critical, implying that the enjoyment must be in the character of an easement, distinct from a natural right or a right enjoyed under a license or agreement not amounting to an easement (Purani Dhirajlal Amritlal v. Mehta Sankleshwar Aditram And Anr., Gujarat High Court, 1975).

Explanation I to Section 15 clarifies that enjoyment had in pursuance of an agreement with the owner or occupier of the servient heritage is not enjoyment "as an easement" if the agreement indicates that such right has not been granted as an easement or, if granted, was for a limited period or conditional (D. Ramanatha Gupta By His Power Of Attorney Holder G.R Krishna Murthy v. S. Razaack, Karnataka High Court, 1982). The enjoyment must be open, peaceable, continuous, and as of right (Suresh Chand v. Hindu Mal And Others, Himachal Pradesh High Court, 1993, discussing easement of way but principles are analogous). "Interruption" under Section 15 refers to an obstruction by the act of some person other than the claimant, and must be submitted to or acquiesced in for one year after the claimant has notice thereof (Explanation II, Section 15; Ratanlal Bholaram v. Gulam Husen Abdulalli, Bombay High Court, 1921, where rebuilding after a fire was not deemed an interruption by another person).

The period of twenty years is to be taken as a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested (Section 15, Easements Act; M. Nageswara Rao v. S. Ramachandra Rao, Andhra Pradesh High Court, 1972).

By Grant (Express or Implied)

An easement of light and air can also be acquired by an express grant, where the servient owner explicitly confers this right upon the dominant owner through a deed or agreement. Such easements, arising from a contractual agreement, are generally permanent and not subject to extinguishment under Section 41 of the Easements Act (which deals with extinction of easements of necessity when the necessity ceases) unless the contract stipulates conditions for termination (Hero Vinoth (Minor) v. Seshammal, Supreme Court Of India, 2006).

An implied grant may arise in certain circumstances, for instance, upon the severance of tenements. If a person sells a part of their land with a house that enjoys light and air over the retained part, an implied grant of easement for light and air for the existing apertures may be presumed in favour of the buyer, if such right is necessary for the reasonable enjoyment of the property sold.

By Necessity (Section 13, Indian Easements Act, 1882)

Section 13 of the Easements Act provides for easements of necessity. An easement of necessity arises when one property cannot be used at all without the right of easement over an adjoining property. While easements of way are common examples of easements of necessity, the applicability to light and air is more limited. An easement of necessity for light and air might be claimed if, upon severance of tenements, a portion becomes absolutely unusable without such light and air from the other portion (Channabasappa Mallappa Pattanashetti v. Ningawwa, Karnataka High Court, 1962, where such a claim was considered). However, easements of necessity are distinct from prescriptive rights and are extinguished if the necessity ceases (Section 41, Easements Act; Hero Vinoth (Minor) v. Seshammal).

Special Considerations: Joint Walls

The question of acquiring an easement of light and air through windows in a joint or party wall has been a subject of judicial consideration. Some older decisions suggested difficulties in acquiring such easements, potentially because both parties have rights in the wall (Narayan Balwant Jade v. Shankar Waman Govaikar, Bombay High Court, 1937, referencing Rajubhai v. Lalbhai). However, later views, such as in M. Nageswara Rao v. S. Ramachandra Rao, have upheld claims for easementary rights to light and air through windows in a joint wall if the conditions for prescription are met.

Disturbance of Easements of Light and Air and Remedies

What Constitutes Actionable Disturbance?

Not every obstruction to light and air is actionable. Section 33 of the Easements Act provides that the owner of any interest in the dominant heritage may institute a suit for compensation for the disturbance of the easement, provided that the disturbance has actually caused "substantial damage" to the plaintiff.

Explanation I to Section 33 states that in the case of an easement of light, substantial damage is caused if the act complained of is likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, or by materially interfering with the physical comfort of the plaintiff, or by preventing him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit. Explanation II clarifies that for an easement of air, substantial damage is caused if the act complained of interferes materially with the physical comfort of the plaintiff, though it may not be injurious to his health.

Thus, the disturbance must amount to an actionable nuisance (Kasturi Lal And Another v. Krishan Chand And Others; M/S. Veer Prabhu Marketing… v. M/S. Sunmoon Printers Pvt. Ltd. And Another…, Rajasthan High Court, 1998). A mere sentimental grievance or a slight reduction in light or air is insufficient. The court must be satisfied that the obstruction will render the premises substantially less comfortable or useful than before (Smt. Laxmibai v. Smt. Kashibai Pandurang Salagaonkar).

Remedies

The primary remedy for an actionable disturbance of an easement of light and air is an injunction. Section 35 of the Easements Act allows the dominant owner to sue for an injunction to restrain the disturbance if the easement is actually disturbed when the disturbance has actually caused substantial damage (Section 35(a)), or if the disturbance is only threatened or intended, when the act threatened or intended must necessarily, if performed, disturb the easement (Section 35(b)).

Therefore, if a proposed construction will inevitably lead to a substantial diminution of light and air amounting to a nuisance, a prohibitory injunction can be sought (Bimariam Another v. Abdul Majeeth, Madras High Court, 1976; Kasturi Lal And Another v. Krishan Chand And Others). In cases where the obstruction has already occurred, a mandatory injunction for its removal may be granted, alongside or in lieu of damages for the injury sustained. The grant of an injunction is, however, a discretionary relief.

Extinction of Easements of Light and Air

Easements of light and air, like other easements, can be extinguished in various ways as provided under Sections 37 to 48 of the Easements Act. These include:

  • By dissolution of the right of the servient owner (Section 37).
  • By release, express or implied, by the dominant owner (Section 38).
  • By revocation by the servient owner in certain cases (Section 39).
  • On expiration of a limited period or happening of a dissolving condition (Section 40).
  • When the necessity ceases, in case of an easement of necessity (Section 41).
  • By becoming useless (Section 42).
  • By permanent change in the dominant heritage increasing the burden (Section 43).
  • By permanent alteration of the servient heritage by superior force (Section 44).
  • By extinction of either the dominant or servient heritage (Section 45).
  • By unity of ownership (Section 46).
  • By non-enjoyment for a continuous period of twenty years (Section 47). This implies that if an owner having an easement of light and air allows the servient owner to obstruct it, or otherwise ceases to enjoy it for twenty years, the right may be extinguished. As observed in Dr. K. Panduranga Nayak v. Jayashree, if an owner sleeps over their rights for 20 years and allows the adjoining owner to obstruct lateral light and air, they may be held to have acquiesced, and their right may become extinguished.

Conclusion

Easements of light and air play a vital role in ensuring the habitable and comfortable enjoyment of property in increasingly urbanized environments. Indian law, through the Easements Act, 1882, and a rich body of case law, provides a structured framework for the acquisition, definition, and protection of these rights. The distinction between natural rights and acquired easements, the stringent requirements for prescriptive acquisition, and the "substantial damage" threshold for actionable nuisance are key tenets of this framework. While property owners have the right to develop their land, this right is balanced against the acquired easementary rights of neighbours to receive a reasonable quantum of light and air necessary for ordinary comfort and use. The judiciary continues to interpret and apply these principles to ensure fairness and prevent undue hardship, thereby contributing to the orderly development and use of land.