1964 Supreme(Cal) 47

HIGH COURT OF CALCUTTA
A. N. Ray
KRISHNA KALI MALLIK - Appellant
Versus
BABULAL SHAW - Respondent
Suit 1119  Of  1963
Decided On : MARCH 02, 1964

An adjoining owner has the right to sue a neighbouring owner for the illegal construction of a building in violation of the Calcutta Municipal Act and is entitled to the reliefs claimed.

Headnote:

CALCUTTA MUNICIPAL ACT - BUILDING RULES - INFRINGEMENT - ILLEGALITY - MANDATORY INJUNCTION - RELIEF - RIGHT TO SUE - OBLIGATION - DUTY - STATUTORY VIOLATION - DAMAGES - REMEDIES - RES JUDICATA - INTERPRETATION OF STATUTES - CONSTRUCTION OF BUILDING - PLANS - SANCTION - RELAXATION - ATTACHMENT - DEMOLITION - RECONSTRUCTION - ENCROACHMENT - EASEMENT - LIGHT AND AIR - SPECIFIC RELIEF ACT - SECTION 54 - SPECIFIC PERFORMANCE - INJUNCTION - DAMAGES - COSTS.

Fact of the Case:

The plaintiff, owner of premises No. 177 Cornwallis Street, instituted a suit for a mandatory injunction commanding the defendants, owners of premises No. 178 Cornwallis Street, to demolish or pull down the constructions indicated by the hatched portions in the plan annexed to the plaint and coloured red and a declaration, if necessary, that the constructions indicated by the hatched portions in the plan coloured red, are illegal, a perpetual injunction restraining the defendants or their agents and servants from constructing the third storey or any portion thereof without complying with the side space and back space rules, being rules Nos. 32 and 30 of Schedule XVI of the Calcutta Municipal Act of 1951 and further reliefs. The defendants denied the allegations made in the plaint and further contended that the alleged non-compliance with Rules 30, 32, 23 of Schedule XVI, if any, would be a mere irregularity and would not make the constructions illegal or un-authorised. Their further contention is that compliance with the rules can be relaxed on certain facts and the facts are applicable to the constructions made by the defendants and that the Corporation of Calcutta relaxed compliance with Rules.

Finding of the Court:

The court held that the constructions were illegal as they were in violation of the Calcutta Municipal Act and the sanctioned plans were bad and not in conformity with law. The court further held that the plaintiff had a right to sue the defendants for the illegal construction and that the plaintiff was entitled to the reliefs claimed.

Issues: 1. Has there been any infringement of the Calcutta Municipal Act as alleged in Para. 6 of the plaint? If so, are such infringements illegal? 2. In view of the order of His Lordship Mr. Justice Banerjee and the order of the Commissioner of the Corporation of Calcutta is the plaintiff entitled to file the suit? 3. Is the construction of the building being premises No. 178 Cornwallis Street covered by the sanctioned plan? If so, what is the effect? 4. Is the suit maintainable under the provisions of the Calcutta Municipal Act? 5. Is the suit bad for non-joinder of the Corporation of Calcut'a? 6. To what relief, if any, is the plaintiff entitled?

Ratio Decidendi: The court held that the plaintiff had a right to sue the defendants for the illegal construction and that the plaintiff was entitled to the reliefs claimed. The court relied on the following principles: * A person aggrieved by a breach of a statutory duty has a right to sue for damages, although the statute also imposes penalties for such breaches. * The duty imposed by the Calcutta Municipal Act to construct buildings in accordance with the rules is a duty owed to the adjoining owners as well as to the Corporation. * The plaintiff, as an adjoining owner, has the right to insist that the defendant construct the building in accordance with the rules and not to violate the same. * The plaintiff's right to or enjoyment of the property is materially affected by the defendant's illegal construction. * The defendant owes a duty and obligation under the Statute not only to the Corporation but also to the plaintiff.

Final Decision: The court granted a mandatory injunction commanding the defendants to demolish or pull down the constructions indicated by the hatched portions in the plan annexed to the plaint and coloured red, a declaration that the constructions indicated by the hatched portions in the plan coloured red, are illegal, a perpetual injunction restraining the defendants or their agents and servants from constructing the third storey or any portion thereof without complying with the side space and back space rules, being rules Nos. 32 and 30 of Schedule XVI of the Calcutta Municipal Act of 1951 and further reliefs. The court also awarded costs to the plaintiff.