Citation Codes

Equivalent Citations

citation codes

Case Number

Second Appeal No. 3268 of 1965

Attorney(S)

Gyan Prakash
K.C. Agrawal

Judges

Hari Swarup, J.

Acts

Section 23 of the the U.P Municipalities Act
Section 54 of the Specific Relief Act. 1877
SECTION 38 SPECIFIC RELIEF ACT 1963
Section 298 of the U.P Municipalities Act
sub-section (2) of Section 298
SPECIFIC RELIEF ACT

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff filed a suit for a perpetual injunction to restrain the defendant from constructing a projection (Chhajja) from the defendant's house over a lane that runs between the plaintiff's and defendant's houses. The plaintiff alleged that the proposed construction would curtail his easementary right to receive adequate light and air, and that the lane was only about five feet wide whereas the bye-laws of the Municipal Board, Sambhal, prohibited any projection over such a narrow lane. The defendant had obtained a sanction from the Municipal Board for the proposed construction.

The defendants contested the suit on the grounds that (1) the proposed projection would not affect the plaintiff's right to light and air, and (2) the sanction granted by the Municipal Board was valid. The trial Court found that the plaintiff's house had an open Chabutra and that the proposed Chhajja was not likely to affect the plaintiff's right to sufficient light and air. The trial Court also found that the sanction violated the relevant bye-law but dismissed the suit on the ground that the plaintiff would not suffer any special damage from the construction.

The lower appellate Court agreed with the trial Court's factual finding that the plaintiff would not suffer substantial damage to his easementary rights. On the question of bye-law violation, the appellate Court initially stated it was unnecessary to decide the point, but later held that because the bye-law was not framed for the purpose of conferring a private benefit on inhabitants of the locality, the plaintiff could not maintain the suit even if the proposed construction violated the bye-law. The appellate Court therefore dismissed the suit. The plaintiff appealed to this Court.

Legal Issues Presented

Whether the finding of fact that the plaintiff's easementary right to light and air was not affected could be challenged in this appeal.
Whether a citizen (neighbour) can maintain a suit for injunction to prevent another person from making constructions in violation of municipal bye-laws.
Whether the suit was maintainable when the Municipal Board that granted sanction was not impleaded as a party.
Whether the term "street" in the relevant bye-law includes a "lane" so as to make the bye-law applicable to the lane in question.
Whether the breach of a bye-law that is intended to promote public health, safety and convenience gives rise to an "obligation" enforceable by a perpetual injunction under the Specific Relief Act.

Arguments of the Parties

Appellant's Arguments

The appellant conceded that the factual finding that his easementary right to light and air was not affected was a finding of fact based on evidence and could not be challenged in this appeal.
The appellant contended that no person may be permitted to make constructions in violation of a bye-law and that a citizen may move the Court to prohibit such violation; he relied on Krishna Kali v. Babu Lal Shaw, AIR 1965 Cal 148 to support maintainability of such a suit by a neighbour.

Respondent's Arguments

The respondents argued that the suit was not maintainable because the Municipal Board, which had granted the sanction, was not made a party to the suit.
The respondents contended that the bye-law referred to a "street" and that the projection was to be made on a "lane", so the bye-law was inapplicable.
They also maintained that the plaintiff would not suffer any special damage and no specific right of his would be affected by the proposed construction, arguing against grant of an injunction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Krishna Kali v. Babu Lal Shaw, AIR 1965 Cal 148	Establishes that a neighbour may maintain a suit for injunction to prevent constructions that violate bye-laws requiring open space; recognizes that a resident may be affected by breach of rules and can insist they be observed.	The Court relied on this authority to support the proposition that where a bye-law is made for public health, safety and convenience, its breach casts an obligation enforceable by injunction in favour of citizens likely to be adversely affected; it reinforced the conclusion that the plaintiff could sue to prevent violation of the bye-law.

Court's Reasoning and Analysis

The Court proceeded by addressing the issues raised in the appeal in the following sequence, relying strictly on statutory definitions and the principles articulated in the cited precedent:

On the factual finding about the easementary right: The appellant's counsel conceded that the trial and appellate Courts' finding that the plaintiff's easementary right to light and air was not affected was a fact-based conclusion supported by evidence; the Court treated this as a binding finding of fact not open to challenge on this appeal.
On maintainability when the Municipal Board was not impleaded: The Court relied on Order 1 Rule 9, Civil Procedure Code (CPC), observing that non-joinder or misjoinder of parties does not defeat a suit and that the Court may adjudicate the controversy between parties actually before it. The relief was sought against the defendant who proposed to make the offending construction; the Municipal Board's sanction was a matter in the defendant's pleadings and could be proved by the defendant. Therefore, non-joinder of the Municipal Board did not render the suit non-maintainable.
On whether "street" includes "lane": The Court examined Section 23 of the U.P. Municipalities Act, which defines "street" to include "any road, bridge, footway, lane, square, court, alley or passage" used by the public and including the land up to the boundary of abutting property notwithstanding projections. Because the lane was admitted to be a public lane, it fell within the definition of "street" for the purposes of the bye-law; hence the bye-law applied to the lane in dispute.
On whether the bye-law was violated: The relevant bye-law (Ex. 4) prohibited making any projection over a street if the width of the street is less than 15 feet at any point in front of the building. The lane in question was about five feet wide; therefore construction of the Chhajja as proposed would violate the bye-law.
On entitlement to injunction despite absence of "special damage": The Court explained that injunctions may be granted not only when a specific proprietary right is violated but also to prevent breach of an "obligation". It referred to Section 54 of the Specific Relief Act, 1877 (reproduced as Section 38(1) of the Specific Relief Act, 1963) which permits a perpetual injunction to prevent the breach of an obligation existing in the plaintiff's favour. The Court further noted that "obligation" in the Specific Relief Act includes "every duty enforceable by law."
On the nature and beneficiaries of municipal bye-laws: The Court examined Section 298 of the U.P. Municipalities Act, which authorizes a Municipal Board to make bye-laws for promoting and maintaining the health, safety and convenience of inhabitants. The Court reasoned that bye-laws of the nature involved are framed to protect public health, safety, and convenience; their violation adversely affects these public interests and therefore casts enforceable obligations on citizens. Consequently, any citizen likely to suffer adverse impact can claim an injunction to prevent breach of such bye-laws.
On enforcement where the Municipal Board fails to act: The Court acknowledged the Municipal Board's statutory powers to refuse sanction, prevent constructions and demolish buildings violating bye-laws, but held that failure or omission by the Board to enforce bye-laws does not extinguish the citizen's right to seek judicial enforcement. It emphasized the duty of courts to ensure laws and bye-laws are obeyed.
Synthesis and conclusion: In light of the statutory definitions, the bye-law's plain terms, the Specific Relief Act's provisions concerning breach of obligations, and the precedent cited, the Court concluded that the plaintiff, as an adjacent resident likely to be affected by the violation, had sufficient interest and locus to obtain an injunction preventing the defendant from making the proposed projection in violation of the bye-law.

Holding and Implications

Holding: The Court allowed the appeal. The decree of the Court below was set aside and the plaintiff's suit was decreed. The Court issued an injunction prohibiting the defendant from making the intended construction in violation of the Municipal Board, Sambhal bye-law (Ex. 4).

Direct consequences for the parties: The defendant is restrained from constructing the Chhajja in a manner that would breach the bye-law applicable to the lane; the parties were directed to bear their own costs.

Broader implications: The opinion reasons that a municipal bye-law framed to promote health, safety and convenience creates obligations enforceable by individual citizens in appropriate cases by way of injunction. The Court relied on statutory provisions and an existing High Court precedent to reach this conclusion. The opinion does not contain an extended discussion purporting to lay down a novel general rule beyond these conclusions.

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B. Raghunandan Saran v. Smt. Kanta Devi And Another

1. This is a plaintiff' appeal arising out of a suit for a perpetual injunction to prohibit the defendant from constructing the projection (Chajja) from his house over the lane in accordance with the sanction alleged to have been obtained by him from the Municipal Board, Sambhal. The plaintiff came to the Court on the ground that his easementary right to get light and air into his house, would be curtailed by the proposed construction. The second ground on which he sought the injunction was that the street over which the defendants intended to make the construction was only about five feet wide and the bye-laws of the Municipal Board prohibited the making of any projection over such a lane. The lane runs between the houses of the plaintiff and the defendants.

2. The defendants contested the suit on the ground that the construction of the projection was not likely to affect the plaintiff' right to set light and air, and that the sanction obtained from the Municipal Board was valid and legal. The trial Court held that the plaintiff' house had an open Chabutra and the construction of the Chhajja was not likely to affect the plaintiff' right of getting sufficient light and air. So far as the question about validity of the sanction is concerned, the trial Court held that it was violative of the bye-law dealing with projections over narrow streets. However, on the ground that the plaintiff was not likely to suffer any special damage because of the construction of the Chajja, the trial Court dismissed the suit. The plaintiff went up in appeal. The lower appellate Court endorsed the finding of the trial Court that the plaintiff was not likely to suffer any substantial damage by the construction of the projection so far as his easementary right to get light and air was concerned. As regards the question about violation of the bye-law was concerned, the lower appellate Court expressed the view that it was not necessary to go into the question, but later on held that as the bye-law was not made for the purposes of giving any benefit to citizens living in the locality, the plaintiff could not maintain the suit or claim injunction, even if the proposed construction was to be made in violation of the bye-law. On these findings the appellate Court dismissed the suit. Plaintiff has now come up in appeal to this Court, challenging the decree of the appellate Court.

3. Learned counsel for the appellant conceded that the finding that the easementary right of the plaintiff about getting light and air was not affected was a finding of fact based on evidence which could not be challenged in this appeal. His contention is that no person can be permitted to make constructions in violation of a bye-law and if he attempts to do so it is open to the citizen to move the Court to prohibit him from violating the bye-law. In support of his submission he has relied on the decision of the Calcutta High Court in Krishna Kali v. Babu Lal Shaw, AIR 1965 Cal 148. In that case there was a bye-law which required a person making constructions to leave certain open space. The defendant wanted to make constructions without leaving such space. The suit had been filed by a neighbour. The Court held that such a suit was maintainable for an injunction to require the defendant not to violate the bye-law.

4. Learned counsel for the respondent, besides supporting the judgment on merits, contended that the present suit was not maintainable as the Municipal Board which had granted the sanction was not made a party to the suit. There is no merit in this contention as O. 1. R. 9 of the CPC provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” In the present case it was the defendant who was going to make the offending construction and the relief was sought against him. No relief could be sought against the Municipal Board. It was only in defence that the defendants had pleaded the right to make the construction on the basis of the sanction from the Municipal Board. If the sanction was valid, it could have been shown to be so by the defendants themselves; they could also produce any evidence they liked to prove that the making of the proposed construction could not violate any bye-law. In these circumstances it cannot be held that the suit of the plaintiff for the relief claimed is not maintainable simply because the Municipal Board has not been impleaded as a party.

5. Learned counsel for the respondents also contended that as the bye-law in question spoke about ‘treet’ and the finding of the Court below is that the projection was to be made on the ‘lane’, the bye-law was inapplicable. There is no merit in this contention as well. In the plaint it was alleged that it was Rasta Sarkari. This was admitted to be correct in the written statement. The judgment of the lower appellate Court shows that it was admitted to be a public lane. ‘treet’ has been defined in Section 23 of the the U.P Municipalities Act to mean, “any road, bridge, footway, lane, square, court, alley or passage which the public or any portion of the public, has right to pass along and includes, on either side, the drains or gutters, and the land upto the defined boundary of any abutting property, notwithstanding the projection over such land of any verandah or other superstructure.” The lane in dispute must therefore be held to be included in the term street used in the bye-law.

6. The bye-law Ex. 4 prohibits the making of any projection over the street if the width of street is less than 15 feet at any Point in front of the building. The bye-law will thus be violated if the defendant constructs the ‘Chhajja’ he intends to make.

7. The next contention of the learned counsel for the, respondent is that the plaintiff is not entitled to get the relief because by the construction of the Chhajja no special damage will be suffered by him and no specific right of his will be affected. Injunctions are however, issued not only when a particular right of the plaintiff in the enjoyment of some property is affected, but also when the defendant commits a breach of some “obligation”. Section 54 of the Specific Relief Act. 1877 provides for the grant of perpetual injunctions. It is reproduced as Section 38 in the Specific Relief Act, 1963 with slight change which is not material. Section 38(1) runs as under:—

“Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.”

8. “Obligation” is defined in the Specific Relief Act as follows: “Obligation includes every duty enforceable by law.” Thus when the Legislature makes a law or the subordinate Legislature like a Municipal Board, frames a bye-law it casts an obligation on every citizen who is affected by that law or bye-law to obey it and not to violate it, and this obligation, at least by implication, exists for the benefit of every citizen who may even remotely be likely to have an adverse impact by the violation of the law or the bye-law.

9. The purpose for which a bye-law can be framed by the Municipal Board is given in Section 298 of the U.P Municipalities Act which runs as under:—

“298 (1). A Board by special resolution may, and where required by the State Government shall, make bye-laws applicable to the whole or any part of the Municipality, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the Municipality and for the furtherance of the Municipal administration under this Act.”

10. Under sub-section (2) of Section 298 different heads have, without prejudice to the generality of the power conferred by sub-section (1), been mentioned indicating the purpose for which the bye-laws may be framed. When a Municipal Board makes bye-laws of the present nature it does so for the purpose of promoting and maintaining health, safety and convenience of the inhabitants of the Municipality. Their violation will naturally affect adversely the health, safety and convenience of the citizens; it must therefore, be held that the bye-law casts an obligation on citizens not to act in violation thereof, and every citizen can claim an injunction to prevent the breach of the bye-law. A similar view was taken by the Calcutta High Court in AIR 1965 Cal 148 (supra) where, dealing with the rights of a resident in the locality to check the constructions which were going to be made without leaving adequate space as required under the bye-law, it was observed by A.N Roy, J. that “it was impossible to say that the petitioner would not be affected by any breach of the existing rules and in my view he has right to insist that these rules should be strictly observed in reference to any plan.”

11. Further, the defendant in the present case was living in the house adjoining the lane and could be expected to use the lane and would thus have sufficient interest to approach the Court for compelling the defendant to make no projection over the lane which might violate the bye-law.

12. The Municipal Board, of course, as the custodian of the rights of the people has been given by law the right to enforce its bye-laws by refusing sanction, preventing constructions and demolishing buildings that may violate any bye-law. But if the Municipal Board fails to perform its duty, it will not mean that the right of the citizen is lost to get the law enforced through Court. It is the duty of Courts in India to see that the law is obeyed and not violated.

13. In the result the appeal is allowed. The decree of the Court below is set aside and the plaintiff' suit is decreed. Let an injunction issue prohibiting the defendant from making the intended constructions in violation of the bye-law of the Municipal Board, Sambhal contained in Ex. 4 in the suit. In the circumstances of the case the parties are directed to bear their own costs.

14. Appeal allowed.

B. Raghunandan Saran v. Smt. Kanta Devi And Another

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

B. Raghunandan Saran v. Smt. Kanta Devi And Another

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