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2004 DIGILAW 455 (KAR)

Rohini Bai v. B. L. Rajashri

2004-07-16

K.SREEDHAR RAO

body2004
JUDGMENT K. Sreedhar Rao, J.--The appellant is the defendant. The respondent-plaintiff filed a suit for permanent injunction against the defendant not to put up any construction on the southern compound wall, and for mandatory injunction for demolishing the height of the compound wall built in excess of 4 feet, further seek a direction that a set back space of 5' should be left betwthe southern compound wall and the building and also to direct the defendant not to open any windows or ventilators to the southern compound wall. 2. The defendant resisted the suit contending that the constructions are valid and duly licensed by the Corporation. It is the case of the plaintiff that the illegal construction would affect the easementary rights of enjoyment of light and air to his property. 3. The Trial Court has decreed the suit directing demolition of the southern compound wall built in excess of 4' height and also directed for leaving set back space of 3' between the southern compound wall and the building. Hence, this appeal. 4. The plaintiff's property is a vacant site. The plaintiff was minor at the time of filing of the suit. During the pendency of the suit, the plaintiff attained majority, the guardian was discharged and plaintiff continued the suit. It appears that the cause title is not properly amended reflecting this fact. During the pendency of the appeal the plaintiff has sold the property to second defendant. 5. The Counsel for the appellant relied on the ruling of this Court in D. Ramanatha Gupta Vs. S. Razaack, AIR 1982 Kant 314 to contend that without a prayer for declaration the plaintiff is not entitled to seek prescriptive right of easement. The ratio in the decision does not apply to the facts of the case. The plaintiff in the present case does not claim right by way of prescription but based the suit on the natural right of enjoyment of light and air to his property. In Rajatha Enterprises Vs. S.K. Sharma and Others, AIR 1989 SC 860 it is held that mere fact there is infraction of building bye-laws or constructions made in deviation of the sanctioned plan is not by itself a ground for directing demolition unless the said deviation affects the public safety and public interest. 6. The Bangalore City Corporation is a necessary and proper party but the plaintiff has not impleaded the Corporation. 6. The Bangalore City Corporation is a necessary and proper party but the plaintiff has not impleaded the Corporation. The allegation made by the plaintiff show that the constructions made in violation of the building bye-laws, therefore, they have to be demolished. 7. The Corporation is the sole agency for granting licence for constructions within the Corporation area. If there is any deviations in the constructions from the sanctioned plan, the Corporation is entitled to condone and compound the lapses under the building bye-laws. Therefore, it is for the Corporation to determine whether there is violation of the building bye-laws and deviation from the sanctioned plan. Further, the Corporation has to decide whether the deviations could be condoned with composition in accordance with the building regulations. The aggrieved party can also report to the Corporation about the violation of the building bye-laws, if the Corporation does not respond legally, the party can invoke jurisdiction of Civil Court for appropriate reliefs against the violator and the Corporation as well. In such suit the Corporation is a necessary and a proper party. Without an opportunity the Corporation in the matter and without considering the stand of the Corporation, it is not proper for the Civil Court to adjudicate the matter. 8. In that view the relief granted in the judgment and decree of the Trial Court is bad in law and the same is set aside. Accordingly, the appeal is allowed with costs and the suit is dismissed.