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2006 DIGILAW 389 (CAL)

NILADRI MONDAL v. ARINDAM BAKSL

2006-07-04

PRANAB KUMAR DEB

body2006
Pranab Kumar Deb, J. ( 1 ) THIS revisional application has been directed against the order dated 27th January, 2006 passed by the learned Civil Judge (Senior Division) at durgapur, District Burdwan in Misc. Appeal No. 18 of 2005, whereby the order no. 15 dated 2nd September, 2005 passed by the learned Judge, (Junior division), 1st Court, at Durgapur, District Burdwan in Title Suit No. 75 of 2005 was affirmed. ( 2 ) ALLEGING that the opposite party No. 1 had started making construction on the boundary line of 'a' and 'b' scheduled suit properties, causing interference in and obstruction to the light and air to the suit premises, the petitioners filed the suit for declaration and injunction with a prayer for an order restraining the opposite party No. 1 from making any construction therein. The petitioner also filed a separate application under Order 39 Rules 1 and 2 read with Section 151 of the C. P. C. for temporary injunction. Acting on the report of the commissioner and having regard to the balance of inconvenience, the learned Civil Judge (Junior Division), 1st Court, Durgapur was pleased to reject the application for temporary injunction. The order was challenged in appeal. In disposing of the Misc. Appeal being 18 of 2005, the learned Civil judge (Senior Division), Durgapur was pleased to confirm the order passed by the Court below in Title Suit No. 75 of 2005. The present writ application has been filed, challenging the order passed by the trial Court and the appellate court. ( 3 ) APPEARING on behalf of the petitioners, Mr. R. N. Mahato has submitted that the opposite party No. 1 sought to capitalize on the building plan which was issued in gross violation of the provision of the Durgapur building Plan Regulation (Bye Law) of Durgapur. Referring to the Rules 44 (ii), mr. Mahato has submitted that every building is required to have the rear set back of 3. 05 meters at all points and as per Sub-Rule 1, there must be set back of 1. 22 meters on the front. The Municipal Authority, it is argued, had no authority to allow sanction of construction of the building on the boundary line, ignoring its own Rules. ( 4 ) DRAWING the attention of the Court to the sketch map of Durgapur notified area, Mr. 22 meters on the front. The Municipal Authority, it is argued, had no authority to allow sanction of construction of the building on the boundary line, ignoring its own Rules. ( 4 ) DRAWING the attention of the Court to the sketch map of Durgapur notified area, Mr. Mahato has submitted that in view of the earlier strict compliance of the Bye Laws, the inhabitants in their residential houses had sufficient light and air. The right to air and light acquired through prescription over more than 20 years should not be allowed to be disturbed by the arbitrary act of the opposite party No. 1. ( 5 ) APPEARING on behalf of the opposite party No. I, Mr. A. Chatterjee has submitted that since the Easement Act is not applicable in West Bengal, the petitioner cannot claim non-extinct right of easement Furthermore, the construction having been made in terms of the sanctioned plan, the trial Court and the appellate Court rightly declined to grant any order of injunction in favour of the petitioner. ( 6 ) THE learned Advocate representing Durgapur Municipal corporation has contended that the building plan was sanctioned in terms of the Building Plan Regulation (Bye Law ). In view of allegation of violation of provisions being made, an enquiry was conducted to ascertain the fact. The enquiry confirmed that there had been no violation in granting sanction of the building plan. ( 7 ) AS per Bye Laws, construction boundary wall upto certain height is permissible. There is no indication in the report of the commissioner that the construction was made beyond that permissible height The construction of garage was contemplated. Applying the provisions of the Bye Laws, the municipal Authority sanctioned the proposed construction of the garage. No construction was going in at the time of inspection. Nothing has been done beyond the sanctioned plan. Whether there has been any infringement of the building laws cannot be decided at this stage. It may be noted that the petitioners approached the Hon'ble Court by filing a writ petition under Article 226 of the constitution of India, challenging the sanction of the building plan. That writ petition, however, was withdrawn by the petitioners. Right now, there is nothing to show that the Building Plan Regulation would be infringed and violated if such construction is allowed to continue. That writ petition, however, was withdrawn by the petitioners. Right now, there is nothing to show that the Building Plan Regulation would be infringed and violated if such construction is allowed to continue. Applying the theory of balance of inconvenience, the trial Court as well as appellate Court refused to grant injunction as sought for by the petitioners. ( 8 ) THE petitioners have claimed their right of easement. What can be claimed by way of right to air and light through prescription is only that amount required for comfortable habitation in a dwelling house. With factories and highrise buildings coming up, the landscape of sprawling towns and cities is fast changing. One cannot expect enjoyment of same amount of light and air as available earlier. The construction of a garage with little height from the ground level cannot diminish substantial flow of light and air into the scheduled 'a' property. Viewed from that aspect also, rejection of application for injunction cannot be called unjustified. ( 9 ) IN the result, the Revisional application fails. In the facts and circumstances of the case, the parties are hereby directed to bear their own respective costs.