The judgment of the Court was as follows:—
In 1938, the appellant, Parul Bala Ray Chaudhuri, purchased from the Calcutta Improvement Trust a plot of land, No. 381 of Scheme No. 33, covering an area of 5 cottâs 12 chatâks and 25 square feet. While she was the owner of the whole of the plot, she submitted a building plan for sanction by the Calcutta Corporation. The plan was sanctioned by the Corporation on May 15, 1939. This plot, viz., 381, is a corner plot abutting on two 40-feet wide streets made by the Calcutta Improvement Trust. The greater length of the plot is north to south. One face of the plot, namely, the northern one, abuts on one 40-feet road and the west face of the plot on the other 40-feet road. The plan, which was submitted for sanction and which was sanctioned by the Corporation, showed for the purpose of the building the frontage of the plot to be on the northern road and an open space was left at the farthest end opposite to this road and at the back of the proposed building, that is to say, the open land was shown to be the southern part of plot No. 381. This open space was 37 feet and odd wide from north to south.
After obtaining this sanction, the appellant sold the southern portion of plot No. 381 to the respondents. The area so sold was 2 cottâs 2 chatâks and 8 square feet and it was 33 feet north to south, with the result that the open back space, which was retained by the vendor at the back of her proposed building on her own site, was 4 feet wide. We are using these figures for the purpose of convenience, for, in fact, the open space so retained by the vendor was 4 feet wide at some places and 4 feet 5 inches in others, and the plot sold to the respondents was 33 feet wide at some places and 33 feet 5 inches at other places. But that is not very material. We only mention those details in order to be more accurate.
After the sale, the respondents submitted a plan for building upon the site so purchased by them. The Corporation refused to sanction that plan, one of the grounds being that the building proposed by the respondents had utilised a portion of the open ground, a portion of which had been shown in the plan sanctioned in favour of the appellant on May 15, 1939, to be the hack space of her proposed building.
Far the purpose of understanding the position, we will have to notice some of the rules mentioned in Sch. XVII of the Calcutta Municipal Act, III of 1923. Section 319 of the said Act enacts that no piece of land shall be used as a site for the erection of a new building, and no new building shall be erected, otherwise than in accordance with the provisions of that chapter and of Sch. XVII and any orders, rules or by-laws made under the Act, relating to the use of building sites or the erection of new buildings, as the case may be. Schedule XVII is a part of the Act itself. The relevant rules for regulating “domestic houses” as defined in s. 3 of the Act are rules Nos. 30, 32 and 36. We may say that both the building plans, the plan of the appellant, which had already been sanctioned, and the plan submitted by the respondents, the sanction of which has been refused by the Corporation, are for raising dwelling houses, that is to say, a species of domestic houses.
Rule 32 relates to open side spaces. It says that certain amount of open space must be kept at the sides of buildings. Ordinarily, it ought to be 6 feet wide for each building, but if there is an open space within the site of the neighbouring building 2 or more feet in width, adjoining the relevant side of the proposed building, then the open space can be reduced to 4 feet wide. According to this rule, if there had not been anything else in this case, the respondents would have had to keep, on the facts of this case, an open side space of only 4 feet wide on the northern part of their site.
Rule 30 deals with the open back space. First of all, a back space is defined to be the space within the site of the proposed building opposite to the street on which the site abuts. If the site abuts on two streets, that is to say, a corner plot, the front of the building would be taken to be on that street which is wider of the two, but if the two streets are of equal width, the owner would have the option of treating any one of these streets to be on the frontage of his building. From the building plan submitted by the appellant and sanctioned by the Municipality on May 15, 1939, it is quite clear that she, the appellant, treated the northern street to be the street forming frontage of her building. According to the rule, the back space would be opposite that street, that is to say, the open space immediately to the south of her proposed building, and the plan, which the appellant submitted to the Municipality and which had been sanctioned, in fact shows that to be the back space of her proposed building. By reason of the sale, only 4 feet open space immediately to the south of the building proposed to be raised by the appellant is retained by her and the rest of the open space, namely, the southern portion of plot No. 381 covering an area of 2 cottâs 2 chattâks and 8 square feet and which has a road frontage of 33 feet only to the western side, has been sold to the respondents. The back space is calculated on the basis of angular measurement. The height of the building proposed by the appellant and as sanctioned by the Corporation is 36 feet. It is to be a three-storied one on back portion, that is to say, on the southern side. According to the angular measurement, a back space of about 14 feet 5 inches has to be kept open according to r. 30 and that back space must be included within the site of the building which is proposed to be raised. At the time when the building plan was sanctioned, the back space left was more than 14 feet 5 inches wide, within the building site because at that time the appellant was the owner of the whole of the plot No. 381, and the open space at the back of her proposed building was much more than 14 feet 5 inches, in fact it was something like 37 feet. By the sale to the respondents, the appellant remains the owner of only strip of land 4 feet wide at the back of her proposed building. By reason of the provisions of r. 36, a further 10 feet or so of the land, which has been included in the conveyance in favour of the respondents, cannot be utilised for building by the respondents. That is the effect of r. 36 and apparently, proceeding upon this rule, the Municipality refused the sanction of the plan submitted by the respondents, although they had kept a side space of 4 feet open to the northern side of their proposed building and within their building site.
After the refusal of their building plan by the Corporation of Calcutta, the respondents instituted this suit for a permanent injunction to restrain the defendant appellant from constructing any structures upon an additional space of 10 feet wide on the southern portion of the land retained by her, so to leave a strip of 14 feet 5 inches open as the back space for her building within her own site, that is to say, within the plot, of which she is the owner, after she had sold the southern part of plot No. 381 to the plaintiffs respondents by the conveyance dated August 31, 1940. In the alternative, their case was that, if they are not entitled in law to get a permanent injunction, they may be awarded compensation, and they assessed the compensation at the figure of Rs. 1,900.
The learned Munsif dismissed the suit. On appeal the learned Additional District Judge reversed that decision and held that the plaintiffs respondents were entitled to perpetual injunction. He held that damages would not afford adequate compensation and the plaintiffs respondents were entitled to perpetual injunction, as, in his opinion, the case came within s. 54 of the Specific Relief Act. He gave the injunction in this form, namely, that the defendant be restrained permanently from utilising any portion of the land sold by her to the plaintiffs for the purpose of open space under the Corporation Building Rules and from building on her land in such a way as would necessitate the utilisation of any portion of the land sold for the purpose of the “Corporation Building Rules”. The Building Rules, to which he apparently refers here, are the building rules in respect of domestic houses.
Against this judgment and decree of the learned District Judge the defendant preferred a Second Appeal, which was heard by our learned brother Sharpe, J., sitting singly. He affirmed the decree of the learned District Judge, but at the same time gave leave to appeal under cl. 15 of the Letters Patent. The defendant appellant has, accordingly, preferred this appeal before us.
Before we deal with the question as to whether the case comes under s. 54 of the Specific Relief Act, it is necessary to notice some findings of fact which were binding on our learned brother Sharpe, J. in Second Appeal and which are binding on us. Those findings are as follows:—
(i) That the respondents had no notice of the fact that the defendant had, utilised a portion of the land which she subsequently sold to them as back space for the purpose of her own building.
(ii) That they, the plaintiffs, did not know any fact which would lead them to make enquiries in the matter and, therefore, they could not be fixed with constructive notice of the fact that a portion included in their conveyance by the defendant had been utilised by her as the back space of her proposed building.
(iii) That the sale by the appellant to the respondents was made after the defendant had raised the foundation in the southern part of her building according to the sanctioned plan. But the learned District Judge observed that did not enable the plaintiffs to know, or could not have led them to believe, that a portion of the land sold to them by the appellant had in fact been utilised as back space in, the plan submitted by the appellant and which had been sanctioned by the Corporation.
Before we deal with the question of law, it is necessary that we should notice some of the terms of the conveyance. The purchasers were put under some restriction. There is a specific covenant in the conveyance that the purchasers, the plaintiffs, would not he able to cover that place, a strip of land 4 feet wide, immediately to the south of and abutting on the southern portion of the plot retained by the vendor. The conveyance also contained the usual terms about title and stated that the purchasers would peacefully and quietly enjoy the premises sold to them.
The Judicial Committee of the Privy Council in the case of Tituram Mukherji v. Cohen laid down the proposition in the concluding portion of the judgment that the law of perpetual injunction is codified in India. That passage in the judgment of the Judicial Committee has been taken to mean that, for the purposes of seeing whether any perpetual injunction can be granted or not, it is not legitimate in India to go outside the provisions of Chap. IX and Chap. X of the Specific Relief Act. In the case of Ram Kissen Joydoyal v. Pooran Mull(2) a Division Bench of this Court considered the provisions of Chap. IX and X in detail. They pointed out that permanent injunction can be granted at the discretion of the court; that is s. 52, the first section in Chap. IX. Dealing with s. 53, they pointed out that the second paragraph did not deal with the question, under what circumstances injunction is to be given. That paragraph only defines the form of the injunction. The circumstance in which a perpetual injunction can be given, they pointed out, are contained in s. 54 and s. 57 of the Specific Relief Act and the cases in which no injunction can be granted are mentioned in s. 56 of the Act.
Section 54, first paragraph, says that, subject to the provisions contained in or referred to by that chapter, that is to say, Chap. X, perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication. This paragraph shows that the cases of breach of an obligation are contemplated by this section. Section 3 of the Specific Relief Act gives a wide import to the word “obligation”. It means any duty enforceable by law. It is not confined to contractual obligations only. An injunction founded on torts, or breach of trust, or on the breach of any other legal duty can be granted, provided the other circumstances are present. Such being the scope of paragraph one of s. 54, we are now to consider the other two paragraphs.
The second paragraph defines the condition under which an injunction can be granted where the obligation, the breach of which is made the foundation for a prayer for injunction, is a contractual obligation. In those cases, in granting injunction, the court has to be guided by the rules and provisions contained in Chap. II of the Act, which deals with specific performance of contracts.
The third paragraph deals with the breach of obligations other than obligations arising under a contract. In order to entitle the plaintiff to obtain an injunction, there must be an invasion or threatened invasion of the plaintiff's right to or enjoyment of property. The word “invade” indicates the breach of an obligation on the part of the defendant, that is to say, of a duty on the part of the defendant, which is recognised by law, not merely a moral or religious duty. Where the breach or the threatened breach of an obligation, other than a contractual obligation to the plaintiff, is made, the subject matter for a suit for perpetual injunction, the plaintiff can only get an injunction not merely by proving the legal duty on the part of the defendant towards the plaintiff, which has been broken or threatened with breach, but also by proving any one of the conditions mentioned in cl. (a) to (c) to exist. In this case, therefore, the first question, which will have to be considered, is what is the nature of the legal duty which the appellant owed to the plaintiffs.
Having regard to the terms of the conveyance, it is very difficult to say that the case is a case of breach of an obligation arising from contract. The contract puts a restriction upon the purchasers not to build on a certain area and if the purchasers attempted to build on that area, the case would have come under para. 2 of that section. But here there was no express contract on the part of the vendor that she would not interfere, by her act or otherwise, with the plaintiffs, that is to say, the purchasers' raising a building on any portion of their lands beyond the 4 feet open space, that they were to keep open for the benefit of the vendor, or to keep the requisite open back space on the site she retained. From the restrictive covenant placed on the purchasers not to build on that area, it would be difficult to raise by implication a covenant of the nature we have spoken to above. In order, therefore, that the plaintiffs might be entitled to ask for an injunction, the case must be brought within the third paragraph of s. 54.
No doubt, the enjoyment of the land which has been purchased by the plaintiffs is curtailed by reason of the Corporation Building Rules, namely, Rule No. 36 of Sch. XVII, by the fact that the defendant appellant has utilised a portion of the land sold to the plaintiffs as the back space of her building. But simply because the enjoyment of the plaintiffs is less beneficial, that would not entitle them to obtain an injunction unless they can show that there was a legal duty on the part of the defendant towards them and that, by non-performance of that legal duty, the enjoyment of their property is materially affected. We have already stated that it would be difficult to bring the case within the second paragraph of s. 54 that there was breach or a threatened breach of an obligation on the part of the appellant towards the respondents arising from contract. But we think that the plaintiffs have brought their case within the third paragraph, that is to say, the defendant is threatening to invade the plaintiffs' enjoyment of the property by reason of a breach of her obligation towards them, an obligation resting not on contract, but on other factors. We have already stated that, by reason of the defendant showing the back space as she did in her plan, the enjoyment of their property by the plaintiffs are materially affected, for, by reason of r. 36, they cannot build up to 4 feet of the southern boundary line of the site retained by the appellant after her sale. But something more is required.
It is quite apparent that the appellant knew that the plaintiffs were making the purchase for the purpose of building a house there. That fact is patent, because the land which was purchased had been developed by the Improvement Trust for the purpose of providing building sites. The area so purchased was small, 2 cottâs and odd. In fact, it has been admitted before us by the learned advocate appearing for the appellant that there cannot be any question that the plaintiffs made the purchase from the defendant for the purpose of having a dwelling house there and that purpose was known to the defendant at the date of the sale. Secondly, having regard to the fact that the appellant had made her plan in that manner and got it sanctioned, she had a legal duty to disclose to the plaintiffs, at the time when she offered the property to sale, that she had shown and utilised a portion of the property proposed to be sold by her as the back space of her proposed building. It was thus a case where the vendor knew that there was a latent defect in the property to be sold which was known to the vendor but not known to the purchasers, and the finding is that the purchasers could not with due diligence discover the defect. That being the position, as we have said, there was a legal duty on the part of the appellant to disclose to the purchasers, the respondents, the fact that she had shown portion of the land, which she proposed to sell, as the back space of her proposed building in the plan which had been sanctioned. Coupled with this fact, the covenant in the conveyance given by the vendor, that the purchasers were to enjoy the land conveyed to them, except with the restriction specifically imposed upon them, would lead to the inference that a representation was made, though not in express terms, but by implication, that the purchasers would be free to build upon their land in such manner as the other Municipal Building Regulations might allow them to do otherwise, and that she had not done any act which would put them under an extraordinary burden, or special disability in respect of the building.
That being the position, in law there was a duty on the part of the appellant to make good that representation to the plaintiffs and a failure to do so on her part, or actings contrary to that representation, would, in our opinion, be the breach of a legal duty which the appellant owed to the plaintiffs and which can, therefore, be made the foundation for a prayer for injunction. The injunction can be granted provided that the case comes within any of the cls. (a) to (c) mentioned in s. 54 of the Specific Relief Act. This is the principle on which the case of Pigott v. Stratton proceeds, a case which has been referred to in the judgment of the learned Additional District Judge. Although Knight Bruce L.J went on another ground in supporting the perpetual injunction given in that case, Lord Campbell L.C put the case clearly on the principle that a representation made by a vendor or a lessor creates a legal duty on his part to make good that representation and that, if he acts or threatens to act contrary to that representation, he breaks an obligation, that is to say, a legal duty towards the purchaser to whom he had made that representation, and a perpetual injunction can be granted.
The next question, therefore, is whether the case comes within any of the clauses which we have noticed. In our opinion, it comes under cl. (c) and it is apparently on that clause that our learned brother Sharpe, J.'s judgment proceeds. There he pointed out that the area sold by the defendant to the plaintiffs had a road frontage of 33 feet from north to south and that, under the terms of the covenant, they, the plaintiffs, had to keep a space of 4 feet wide at the northern extremity of their site. By reason of the act of the appellant in getting her building plan sanctioned in the manner she had done, an additional space of 6 or 7 feet on this side had to be left vacant, in addition to what they would have to keep as open space for their building on other sides, for the purpose of complying with other building rules given in Sch. XVII. In these circumstances, the plaintiffs would not have a decent, or a comfortable building within the plot, which they had purchased for the purpose of making a house. Under these circumstances, pecuniary compensation would not afford adequate relief to the plaintiffs.
We have stated the form in which the injunction has been given by the learned Additional District Judge. The object of the injunction, as has been expressed in the ordering portion of the judgment of the Additional District Judge, is to put a restraint upon the defendant, so that she may not utilise any portion of the land sold by her to the plaintiffs for the purpose of open space under the Corporation Building Rules and from building on her land, that is to say, the land retained by her, in such a way as would necessitate that utilisation of any portion of the land sold to the plaintiffs for the purpose of the Corporation Building Rules. In order to carry out the object, we think that the defendant should be altogether restrained from building on the basis of her plan of which she had got sanction from the Corporation on May 15, 1939, so that she may if she likes to raise a building, be compelled to submit a revised plan for sanction, treating the site retained by her, which we understand has been numbered now as 51-A, Lake Place, and nothing beyond it, to be her building site. Therefore the injunction would be in this form:—
That the defendant is restrained from making or continuing any structures in accordance with the plan already sanctioned in her favour by the Corporation of Calcutta on May, 15, 1939. Although it is not necessary to reiterate, we make it quite clear that it is open to the defendant to submit a revised plan to the Corporation of Calcutta in respect of the building which she may propose to raise upon the site which is her property now.
The result is, that this appeal, subject to the modification of the form, of the injunction, is dismissed with costs.
S.K.D
Decree modified.
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