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High Court of Andhra Pradesh, Hyderabad
OBUL REDDI AND VENKATARAMA SASTRY, JJ.
Smt. Kamalamma and another - Appellant
Versus
Srirangam Subba Rao and another - Respondent
L.P.A. Nos. 117 and 147 of 1969
Decided on : 27-06-1972
The Hyderabad Municipal Corporations Act, 1956, does not confer any rights, express or implied, against neighbours who propose to construct buildings or construct buildings in breach of the building rules.
Headnote:
HYDERABAD MUNICIPAL CORPORATIONS ACT - BUILDING REGULATIONS - INJUNCTION - MANDATORY INJUNCTION - PERPETUAL INJUNCTION - ADJACENT OWNER - LEGAL RIGHT - IMPLIED RIGHT - PUBLIC DUTY - PUBLIC BENEFIT - PUBLIC GOOD - STATUTORY DUTY - ENFORCEABLE BY INDIVIDUAL - CONDITIONS - INTERFERENCE WITH DECISION OF MUNICIPAL COUNCIL - COMPOUNDING OF OFFENCE.
Fact of the Case:
The plaintiff and defendants 1 and 2 purchased two adjacent sites in the year 1960 from one C. Venkat Rao and another. The plaintiff immediately after obtaining sanction from the Municipal Corporation for the building, which he proposed to construct, commenced the construction of the ground floor in 1960. Defendants I and 2 also submitted their plan (Ex. A-5) for sanction, on 4-3-1960, but it would appear from the findings recorded by the trail Court and the learned single Judge that no construction was commenced by the two defendants before the middle of October, 1961, though they claim to have commenced construction immediately after obtaining sanction for their plan, Ex. A-5. The Municipal law requires that the neighbouring owner should leave 3' space from the edge of the compound wall, but the original plan, Ex. A-5, showed that no such margin was left by defendants 1 and 2. But nevertheless sanction was accorded for construction though it was not strictly in accordance with the Municipal Laws. Construction should be commenced after obtaining sanction for construction of any building within one year thereafter and in this case as construction was not started within that period, as found by the learned single Judge and the trail Court, and construction was taken up there after, the plaintiff who happens to be the immediate adjacent neighbour reported to the Corporation by his letter, Ex. A-6. dated 20-10-1961 that the construction commenced by defendants 1 and 2 is in violation of the Municipal Rules which require leaving a margin of 3' from the compound wall and if the defendants were to proceed with the construction that would obstruct the free flow of light and air to his building and impair the health of its inmates.
Finding of the Court:
The Court held that the Hyderabad Municipal Corporations Act, 1956, does not confer any rights, express or implied, against neighbours who propose to construct buildings or construct buildings in breach of the building rules. The action against defendants 1 and 2 is, therefore, misconceived.
Issues: 1. Whether the plaintiff has a legal and enforceable right against not only defendants 1 and 2 but also against defendant 3? 2. Whether the facts and circumstances of the case justify granting of the reliefs sought for by the plaintiff?
Ratio Decidendi: 1. The Hyderabad Municipal Corporations Act, 1956, does not confer any rights, express or implied, against neighbours who propose to construct buildings or construct buildings in breach of the building rules. 2. The action against defendants 1 and 2 is, therefore, misconceived.
Final Decision: The suit of the plaintiff shall stand dismissed. L.P.A. No. 117 of 1959 is allowed and L.P.A. No. 147 of 1959 is dismissed. Having regard to the facts of the case, there will be no order as to costs throughout in both the appeals.
JUDGMENT :
OBUL REDDI, J.
1. These two appeals, I.P.A. 117/19 preferred by the defendants and L.P.A. 147/71 preferred by the plaintiff, arise out of the judgment of our learned brother, A.D.V. Reddy, J., in G.G.C.A. 23/65 confirming the judgment and decree of the trial court in O.S. 30/63 only to the extent of the mandatory injunction against defendants 1 and 2 declining to grant the said injunction against the 3rd defendant, the Municipal Corporation of Hyderabad. It is for the reason that perpetual and mandatory injunctions are granted against defendants 1 and 2 that they have referred the former appeal and for the reason that mandatory injunction was not granted against the 3rd defendant, the plaintiff has chosen to prefer the other appeal.
2. The learned Advocate-General appearing for the defendants (the parties will be referred to in the inner they were arrayed in the plaint) mainly contended that the Hyderabad Municipal Corporations Act, Act II of 1956 (Hereinafter referred to as the Act) does not confer any legal right on the owner of a neighbouring or adjacent building and when the Act does not confer any such right, he cannot lay action in a civil court for a mandatory injunction for pulling down the construction put by his neighbour on the ground that the building constructed by his neighbour is not in accordance with the sanctioned plan. The legal obligation, if any, of the defendants, according to the learned Advocate General, is to the Municipal Corporation and not to any particular individual as such as the Act does not create any private rights in individuals or adjacent owners and therefore when the Municipality compromised or compounded the violation, if any, in not constructing the building in accordance with the sanctioned plan, a neighbour or any other member of the public has no right to move the Court either for a mandatory injunction or for a permanent injunction. It is also his case that the plaintiff has not laid action on the ground of infraction of his easementary right and when there is no invasion into his easementary rights, he cannot question the construction of the building by the defendants, which, though it may not be in accordance with the sanctioned plan, was ultimately approved by the Municipality. Another ground urged by the learned Advocate General is that it is about nine year since the building has been constructed and even assuming without cancelling that the plaintiff has a legal right to seek the injunctions he sought in the Court on equitable grounds the Court shall not grant a mandatory injunction for pulling down the constructions put at a heavy cost after a lapse of nearly nine years. Mr. Sankara Sastry appearing for the plaintiff strenuously contended relying upon the findings recorded by the trial Court as also the single Judge that to the extent the learned single Judge agreed with the trial Court there is absolutely no reason to disturb those findings recorded by the two Courts and that when the discretion in granting the mandatory injunction has been properly exercised by Two Courts, it is not ordinarily open to the appellate Court to set at naught the relief granted merely for the reason that the construction was completed about nine years ago without regard to the fact that the defendants had obtained a stay of the execution of the decree, both when they preferred the first appeal and later after preferring the L.P.A. It is also contended by Mr. Sastry that though the Act does not expressly entitle a neighbouring owner of a building to lay action in a civil Court for the reliefs that are now sought in the case, there is an implied right conferred upon him under the Municipal law and as such he is entitled to not only ask for reliefs against defendants 1 and 2 but also against the 3rd defendant so as to obtain a mandate from this Court that it shall perform the statutory functions by obeying the decree of this Court.
3. Mr. Pulla Reddy appearing for the Corporation, the 3rd
