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2011 DIGILAW 822 (CAL)

Rabindra Kumar Das v. Usha Choudhury

2011-06-22

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. Challenge is to the order dated May 19, 2009 passed by the learned District Judge, Malda in Misc. Appeal No.4 of 2009 thereby setting aside the order dated March 5, 2009 passed by the learned Civil Judge (Junior Division), 1st Court, Malda in Title Suit No.16 of 2009. The plaintiff / opposite party herein instituted a suit being Title Suit No.16 of 2009 for declaration of title, permanent injunction and other reliefs against the petitioner before the learned Civil Judge (Junior Division), 1st Court, Malda. The plaintiff also prayed for mandatory injunction directing the petitioner to demolish the construction already made on his land. At the time of filing of the said suit, the plaintiff prayed for temporary injunction. The defendant entered an appearance and he contested the application for temporary injunction. Upon hearing both the sides, the learned Trial Judge rejected the application for temporary injunction filed by the opposite party. Being aggrieved, the plaintiff filed a misc. appeal being Misc. Appeal No.4 of 2009 and that misc. appeal was allowed by the impugned order restraining the petitioner from raising any construction on ‘Kha’ schedule property appended to the plaint. Being aggrieved by such order, the defendant has come up with this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff /opposite party is the owner of the ‘Ka’ schedule property as described in the schedule of the plaint. The defendant / petitioner herein is the owner of the ‘Kha’ schedule property which is adjacent to the ‘Ka’ schedule property. The defendant has been raising construction on his own land, that is, on the ‘Kha’ schedule property after obtaining sanctioned plan from the concerned Municipality and the said sanctioned plan clearly indicates to leave 3 feet side spaces so that the air and light of the opposite party are not resisted because of such construction accordingly as per photograph as shown to the Court by the petitioner. As per photograph shown to the Court, the defendant / petitioner herein had already raised construction up to the 1st Floor. Now, the plaintiff has contended that the defendant did not leave side space as per provisions of the West Bengal Municipal Building Rules, 2007. As per photograph shown to the Court, the defendant / petitioner herein had already raised construction up to the 1st Floor. Now, the plaintiff has contended that the defendant did not leave side space as per provisions of the West Bengal Municipal Building Rules, 2007. So, the suit has been filed for the reliefs already stated. Mr. Bidyut Kr. Banerjee, learned Senior Advocate appearing on behalf of the defendant / petitioner has contended that the learned Trial Judge has disposed of the application for temporary injunction rightly. But the Lower Appellate Court has failed to appreciate the situation. On the basis of the materials on record, he has contended that the infraction of air and light as alleged by the adjacent land owner is not tenable at all. He has contended that his client is making construction upon obtaining the plan duly sanctioned from the concerned English Bazar Municipality. There is no dispute about it. The sanctioned plan clearly lays down for leaving side space towards the sides of the land of the plaintiff and one Commissioner was appointed and it was found on inspection that the petitioner has left clearly 3 feet side space for making the construction. Even, the safety tank constructed by his client is also made underground within his premises and there is a clear space of 2 feet 11 inches at that side from the end of the construction. Mr. Banerjee has also contended that the land of the plaintiff is clearly demarcated and it is surrounded by a wall. The land of the plaintiff is vacant and the construction by his client is being made as per sanctioned plan. Under the circumstances, as per decision of Nandalal Ladia & anr. v. Provudayal Tikriwalla & anr. reported in AIR 1952 Calcutta 74, where the aprties are adjoining owners, the defendant has no obligation at all to the plaintiff on the ground that certain construction on the defendant’s land may be in breach of Municipal Rules and by-laws. The mere injury, if any, in less enjoyment of air and light will not permit the plaintiff to get an order of injunction on the ground that certain construction on the defendant’s land may be in breach of Municipal Rules an Bylaws. There is no obligation contractual or otherwise, which requires that the defendant should construct on his own land in accordance with the Municipal Rules and Regulations. There is no obligation contractual or otherwise, which requires that the defendant should construct on his own land in accordance with the Municipal Rules and Regulations. The plaintiff has, therefore, no right to pray for injunction against construction on the defendant’s land. He has also referred to the decision of Purusottam Lalji & ors. v. Ratan Lal Agarwalla & ors. reported in AIR 1972 Calcutta 459 and thus, submits that when the sanction of the plan has been granted and it is found that there has been infraction of the rule which cannot be relaxed or which has not been relaxed the parties show sufficient cause to the Commissioner, for example, that the infraction is minor nature or has not in any way affected the sanitation or ventilation and the amenities of the building in question and the other adjoining premises, then the Commissioner has the discretion not to order of demolition. By referring this decision, Mr. Banerjee has submitted that since the land of the plaintiff remains vacant and it is duly surrounded by the wall of the plaintiff the question of infraction of air and light does not arise at all and the Commissioner has a certain discretionary power to deal with the situation. And thus, he submits that since the new two-storied construction did not materially affect the amenities of the plaintiff, the Commissioner has discretionary power, not to demolish, although, the rule could not be relaxed in the circumstances of the case. Mr. Banerjee has also submitted before this Bench the decision of Lalit Mohan Mitra & ors. v. Samirendra Kumar Ghosh & ors. reported in 81 CWN 870 particularly the paragraph nos.6, 8 and 9 and thus, he refers the decision of Nandalal Ladia case (AIR 1952 Calcutta 74): “Where the plaintiffs and the defendants are adjoining owners, the plaintiffs have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that certain proposed construction on the defendants land may be in breach of Municipal Rules and by6 laws. There is no obligation contractual or otherwise, on the part of the plaintiffs towards the defendants which required that the defendant should construct on his own land in accordance with the Municipal Rules and Regulations.” He has also referred to the decision of Sm. Parul Bala Roy v. Srinibash Chowmal & ors. reported in AIR 1952 Calcutta 364. There is no obligation contractual or otherwise, on the part of the plaintiffs towards the defendants which required that the defendant should construct on his own land in accordance with the Municipal Rules and Regulations.” He has also referred to the decision of Sm. Parul Bala Roy v. Srinibash Chowmal & ors. reported in AIR 1952 Calcutta 364. “In order to entitle the plaintiffs to obtain an injunction, there must be an invasion or threatened invasion of the plaintiff’s right to or enjoyment of property. Simply because the enjoyment of the plaintiff is rendered less beneficial that would not entitle him to obtain an injunction unless he can show that there is a legal duty on the part of the defendant towards him and that by non-performance of that legal duty the enjoyment of his property is materially affected.” Thus, he submits that if the plaintiff is rendered the less beneficial of enjoyment that would not entitle him to obtain an injunction. Unless, she can show that there is a legal duty on the part of the defendant towards her and that by non-performance of that legal duty, the enjoyment of her property is materially affected. Mr. Amal Saha appearing on behalf of the Municipality submits about the conduct of the plaintiff and thus, he submits that while she was the Commissioner of the Municipality, in her capacity as Commissioner, she sanctioned many plans granting leaving of side space to the extent of 3 feet only. Now, she cannot raise objection against the sanction in favour of the plaintiff. Thus, he supports Mr. Banerjee. On the other hand, Mr. P.S. Bhattacharyya appearing on behalf of the plaintiff submits that the decision of Nandalal Ladia case (supra) and Purusottam Lalji case (supra) will not be applicable in the instant situation and the Commissioner has no power to relax the Municipal Rules. He refers to Rule 50 of the West Bengal Municipal Building Rules, 2007 and submits that in consideration of the height of the building of the defendant, he should leave open space to the extent of 1.2 metres. Mr. P.S. Bhattacharyya has also referred to the decision of Niladri Mondal & anr. v. Arindam Baksi & anr. He refers to Rule 50 of the West Bengal Municipal Building Rules, 2007 and submits that in consideration of the height of the building of the defendant, he should leave open space to the extent of 1.2 metres. Mr. P.S. Bhattacharyya has also referred to the decision of Niladri Mondal & anr. v. Arindam Baksi & anr. reported in (2007)3 WBLR (Cal) 87 and submits that since the plan was sanctioned in violation of Rule 50 of the West Bengal Municipal Building Rules, 2007, the prayer for injunction has been rightly refused. Mr. Bhattacharyya has also referred to the decision of Krishna Kali Mallik v. Babulal Shaw & ors. reported in AIR 1965 Calcutta 148 particularly the paragraph no.8 and thus, he submits that since the Rule 50 of the Municipal Building Rules, 2007 has been violated, the impugned order passed by the Lower Appellate Court should be supported. This decision, I hold, is not applicable in the instant case. The Hon’ble Single Bench has observed to take a liberal approach as the landscape is fast changing. He has also relied on the decision of Sanjit Kr. Sardar & anr. v. State of West Bengal & ors. reported in AIR 1996 Calcutta 135 and thus, he submits that the action of the Commissioner in granting sanction to others although for such purpose, such action for temporary purpose may be granted. This decision does not appear to me to be applicable in the instant case. In that view of the matter, the plaintiff, I am of the view, cannot take suo moto action without raising any complaint before the concerned Municipality. So, there is every doubt whether the plaintiff has any prima facie case or not. It may be pointed out that the plaintiff has not made the concerned Municipality as a party to the suit at all. Since the concerned Municipality has no objection, I am of the view that there should be any order of injunction under such circumstances. However, the concerned Municipality has been made a party on consent of the parties to know the real position with regard to the matter in dispute. The plaintiff has filed the suit in her independent capacity as an adjacent owner. But her substantial right has not been infringed in any way. The defendant has no obligation to the plaintiff under a contract or otherwise. The plaintiff has filed the suit in her independent capacity as an adjacent owner. But her substantial right has not been infringed in any way. The defendant has no obligation to the plaintiff under a contract or otherwise. The report of the Commissioner shows that the defendant had left 3 feet space from the wall of the plaintiff for raising his construction of two-storied building. If the prayer for injunction is granted at such stage, the defendant has expended huge money to raise such construction up to the 1st Floor, but he would not be able to get the benefit of the same inasmuch as the structure has not been completed as yet. So, it cannot be stated that the balance of convenience or inconvenience goes in favour of the plaintiff. The price of the building materials is going up day-by-day and who will compensate if the suit is dismissed ultimately after lapse of some years from today. The plaintiff herself sanctioned many plans granting leaving space of 3 feet towards adjacent land owners. There is no question of saving the property of the plaintiff from any danger or damage during the pendency of the suit as observed by the learned Trial Judge. The learned Trial Judge has rightly observed that there is no chance of encroachment as the defendant had already raised his construction up to the 1st floor. The learned Trial Judge has also observed that this Forum is not the appropriate one to adjudge the issue whether the sanction of the plan was proper or not. And he has rightly observed the balance of convenience or inconvenience does not go in favour of the plaintiff as noted for the above reasons. The learned Trial Judge has also rightly observed that there is nothing to show that the plaintiff would suffer irreparable loss if the restraint order is not passed against the defendant. Under the circumstances, the impugned order passed by the Lower Appellate Court cannot be supported. The revisional application succeeds. It is, therefore, allowed. The impugned order passed by the Lower Appellate Court is hereby set aside and the order of the learned Trial Judge dated March 5, 2009 is hereby affirmed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.