Hon’ble Mr. Justice T.S. Doabia, Judge

Makhan Singh Petitioner
versus
Smt. Jan and another Respondents

CSA No. 12 / 1998, decided on 11.9.2000.

J&K Municipal Act, Svt. 2008 (1951 A.D.) - Duty of Municipal Authorities - Municipal Authorities are to act in a manner which is for public benefit - Acquiescence on the part of the Municipal Authorities in not taking action would not take away the right of an individual aggrieved person - Excess of statutory power cannot be validated by acquiescence in or by operation of principles of estoppel.

The defendant was within his right to raise the construction on his own land. Whatever steps he had taken to protect the property from the rainy water, should have been taken within his own proprietory land. He had no right to project his lintel by 6 inch towards the land of the plaintiff. An owner of land is also the owner of the air space above the land. He has a natural right to built upwards and cannot project the projection on land not owned by him. Whenever an encroachment begins, it begins with inches only. When it is not checked, it is converted into feet. The plaintiff rightly came to the Court within a view to check this tendency. He was able to establish that the lintel in question stand raised towards his land. This has been done without permission of the Municipality. It is unfortunate that the Municipality was a silent spectator to the whole episode. Instead of directing the defendant to raise the construction within the limits of his proprietory land, they proceeded to compound the offence. This could not be done. The Municipal Committee could sanction the plan for the construction of the building only on that land on which person seeking to raise the construction is the owner. The Municipal committee had no jurisdiction to let a person raise a building on the proprietory land of another person. If this be the position then it could not compound the breach. An illegal act can not be legalised in the manner which has been done by the Municipal Committee. This is precisely what the defendant did. He cannot do so. He has to be restrained. [Para 10]

Advocates who appeared in this case :
Mr. Romeshwar Sharma, Advocate for petitioner
Mr. W.S. Nargal, Advocate for respondents

Case referred :
AIR 1974 SC 2174

The plaintiff-appellant filed a suit in which a decree of mandatory injunction seeking a direction to compel the defendants-respondents to dismantle the wall raised by him on the lintel of their house and also to dismantle the lintel projecting towards the Municipal lane was filed. A mandatory injunction was also sought calling upon the defendants to clear the debris from the Municipal lane and also the drain so that there is free flow of water.

It was pleaded in the suit that the plaintiff is the exclusive owner of one kanal five marlas of land in survey No.1556 and 1563 within the Municipal limits of Poonch. It was pleaded that a plot situate in between two lanes forms the site of defendant’s house which he had purchased from one Shanti Saroop. It was pleaded that the defendants renovated the house and replaced its Kacha roof by a concrete lintel. This lintel has been projected towards the plaintiff’s land on Northern side of his house by 6 inches and four feet high wall has been raised. It was pleaded that this construction was raised without obtaining the permission from the Municipal Committee. It was further pleaded that debris have been dumped in the Municipal lane. This had obstructed the free flow of water from the plaintiff’s house. As per the plaintiff he has an easementary right to discharge the water from his land through the drain and this could not be obstructed. As per the plaintiff he was exercising the easementary right for over 40 years. The defendant/respondent filed the written statement. His plea was simple. He stated that a projection of 6" has been raised, but this is not towards the plaintiff’s land, but this projects towards the Municipal lane. The defendants accordingly pleaded that the projection, if any, is on the Municipal lane.

The pleadings of the parties led to the framing of the following issues :

1. Whether the defendant has raised construction on his house and projection of the lintel of the roof of his room on the Northern side by 6" hanging over the land of plaintiff, OPP

2. Whether the defendant has closed the course of drain water by putting debris etc. flowing from the land of the plaintiff on the Southern side in question ? OPP

3. To what relief the plaintiff is entitled ? OPP

The findings recorded by the trial court in respect of issue No.1 are to the effect that "evidence on record also established that the defendant made the projection of 6" on his wall to protect thesame from see page of rain water and also raised the wall on the said projection to prevent the flow of water towards the plaintiff’s land."

It was also observed that

"On a close scrutiny of the evidence led by parties it is found that the defendant has made the projection of lintel of the roof on his house to protect his wall and also to protect the flow of water escaping towards plaintiff’s land." Before recording this finding the stand of the defendant that he had raised the reconstruction was noticed. His plea that he had done so to protect his wall was also noticed. The fact that at that time plaintiff had raised no objection was also noticed. At this stage it would be apt to notice the statement of one Saintary Inspector namely PW Younis. This witness had inspected the site and had found that defendant had raised a projection which projected six inches towards plaintiff’s land.

Under Issue No.3, it had been held that "the defendant laid the lintel on his existing house by projecting it around 6" towards the plaintiff’s land for the protection of his wall and also raised 3/4" wall thereon to prevent discharge of water towards plaintiff’s land."

After recording the aforementioned findings the suit of the plaintiff was dismissed on the ground that there was a delay of six months and 17 days. The fact that no sanction was obtained from the Municipality was found to be a factor which stood compounded by the Municipal Authorities. In these premises, the suit came to be dismissed. The appeal preferred also stands dismissed. Now this second appeal has been preferred.

The substantial questions of law which have been formulated by this Court are as under :

1. Whether respondents could project 6" lintel towards the appellant’s land and raise wall of the width of 9" on his land for his building in question?

2. Whether the appellant’s suit for perpetual and prohibitory injunction could not be filed after a period of six months from the date when such encroachments were committed ?

It be seen that the plaintiff-appellant has been mainly non-suited on the ground that he had approached the court after lapse of six months and seventeen days. I am of the opinion that this is not a valid ground for rejection of the plaint. It has come on the record that the plaintiff at the first instance moved the Municipal authorities. A complaint was lodged on 20-11-1990. On this the Executive Officer of Municipality and other staff visited the site on 24 / 25th Feb 1990. Instead of looking into the complaint from the point of view of the plaintiff they proceeded to compound the breach of the Municipal laws. It was only after the plaintiff failed to get justice from the Municipal Authorities he filed a civil suit.

The evidence in the shape of the report of Mohd. Younus, which is EXPW-Y is dated 02-12-1989. For facility of reference, this is being reproduced below :

"I inspected the site in Mohalla W.No.8 Poonch and noted the following points at site :

1. One non-applicant Sh.Mukand Lal has reconstructed his residential house without permission of the Municipality.

2. He was directed to produce any permission or sanctioned plan but he has no any permission :

3. Moreover Sh. Mukand Lal has raised his wall, first floor on 6 inches wide projection towards applicant’s side (which was only for the protection of water fall) and he may not be allowed to raise any structure on it.

Hence the report is submitted for further order ."

As indicated above, instead of looking into the complaint from the point of view of the plaintiff the Municipality choose to impose the fine. Therefore, to say that the plaintiff approached the court with delay, is a plea which cannot be accepted. If the day on which the report/complaint was made and the date on which the inspection of the premises was made i.e. 24/25 Feb 1990 are taken in view, then by no stretch of imagination it can be said that the suit was filed belatedly. The plaintiff has all along been active and agitated before the Municipal Authorities. He having failed to get any relief from them, approached the civil court. Therefore, the substantial question No.2 which is framed by this court, is answered in favour of the appellant/plaintiff. It is worth-while to mention here that none of the issues framed by the court below dealt with the issue of dalay and latches on the part of the plaintiff. In any case the question of law framed at question No.2 is answered in favour of the appellant.

So far as question of law at S.No.1 is concerned, it has again to be answered in favour of the appellant. The defendant was within his right to raise the construction on his own land. Whatever steps he had to take to protect the property from the rainy water, should have been taken within his own proprietory land. He had no right to project his lintel by 6" towards the land of the plaintiff. He again had no right to raise a wall on the projection. Which protruded towards the land of the plaintiff. An owner of land is also the owner of the air space above the land. He has a natural right to built upwards and cannot project the projection on land not owned by him. Whenever an encroachment begins, it begins with inches only. When it is not checked, it is converted into feet. The plaintiff rightly came to the Court with a view to check this tendency. He was able to establish that teh lintel in question stand raised towards his land. This has been done without permission of the Municipality. It is unfortunate that the Municipality was a silent spectator to the whole episode. Instead of directing the defendant to raise the construction within the limits of his proprietory land, they proceeded to compound the offence. This could not be done. The Municipal committee could sanction the plan for the construction of the building only on that land on which person seeking to raise the construction is the owner. The Municipal Committee had no jurisdiction to let a person raise a building on the proprietory land of another person. If this be the position then it could not compound the breach. An illegal act cannot be legalised in the manner which has been done by the Municipal Committee. This is precisely what the defendant did. He cannot do so . He has to be restrained.

In this regard, it would be apt to refer to what was said by the Supreme Court in AIR 1974 SC 2174 at page 2181. The pertinent observation are being quoted :

"The Municipality acts for the public benefit in enforcing the Scheme, where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye laws made by that authority is illegal and inoperative (See Yabbicom V. King (1899) I QB 444)."

It would be again be apt to refer to paragraph 30 of the aforementioned judgement.

"an excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision Lord Selborne in Maddison V. Alderson (1883) 8 APP Case 467 said that courts of equity would not permit the statute to be made an instrument of fraud."