Sunday, 13 September 2015

Whether a person can be restrained from constructing building on the ground that it will injures plaintiff by obstructing the view of his place of business?

  My view that such a right is not claimable is fortified

by an observation in Halsbury's Laws of England. In the

treatise, on the discussion of the topic "Nuisance" (Volume 78

paragraph 128), the following observations are made :

               "128. Interference with prospect, view or

               television reception. Where there is no

               infringement of a right to light, and where the

               act complained of is otherwise lawful, no

               action lies for the invasion of privacy by the

               opening of windows, or for the obstruction of

               a view or prospect, even though the value of

               a house or premises may be diminished

               thereby."

So, there is no legal reason for recognizing the right to prospect
as a natural right or as an easement. What is claimable as a

natural right under Section 7 of the Act is a right to light or air

passing vertically to the property. Even light or air received


horizontally is not a natural right. In Re Penny and South

Eastern Rly Co (1857) 7 E & B 660, it has been held that no

easement can exist in relation to the enjoyment by a land owner

of the prospect or view from his property or in relation to the

privacy of the property. Learned Author N.D.Basu on a Law of

Injunctions (Fifth Edition), based on certain English authorities

has stated that erection of a building will not be restrained

because it injures the plaintiff by obstructing the view of his
place of business.
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                          THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                   FRIDAY,THE 26TH DAY OF JUNE 2015/

                                             RSA.No. 786 of 2011 ( )
                                                 ------------------------




            THAMBI CHERIYAN,S/O.CHIRIYAKKUNNY,
            KOLLANNUR HOUSE, MANGAD DESOM VILLAGE,
           Vs

            BABU,S/O.THOMAS, PUTHUKKARA VEEDU,
         

Citation; AIR 2015 Kerala 231


     This regular second appeal raises important questions of

law. Does the law permit a person to claim unhindered or

unobstructed prospect or view to any building (here a

commercial building) as a matter of right ? Can a person claim a

decree for permanent prohibitory injunction based on the

alleged violation of such a right ?

     2.    Heard Sri.K.Ramachandran, learned counsel for the

appellant   and   Sri.T.N.Manoj,        learned     counsel  for the

respondent.

     3.     The defendant in a suit for such a relief is the

appellant and the plaintiff, the respondent. Parties are

hereinafter referred to as the plaintiff and defendant. Decree

passed by the trial court, which was confirmed in appeal, reads

thus :

               " That the defendant and his men are

               restrained    by    permanent    prohibitory

               injunction from installing any new fixtures

               or stair case infront of the plaintiff's plaint

               schedule shop room causing any hindrance

               or obstructions to the view, vicinity or

               access to the plaint schedule shop room."

        4.     Even though in the plaint a right to have an

unhindered or unobstructed vicinity is also claimed and the same

was allowed by the courts below, the learned counsel for the

plaintiff fairly conceded that there is no legal foundation for that

claim. Further, the claim for a permanent prohibitory injunction

based on a right called unhindered vicinity is not legally

recognizable one and too vague to be granted by a court of law

either under the provisions of the Specific Relief Act, 1963 or

otherwise. Therefore, what is remaining as a bone of contention


is the legality and propriety of a legal right called the right to

prospect (view) to the plaintiff's building.

       5.      Relevant pleadings, in nutshell, are as follows :

       Plaint schedule shop room was purchased by father of the

plaintiff from the defendant as per Ext.A1 assignment deed in

the year 1996. Plaintiff's father died and the property devolved

on his legal heirs, including the plaintiff. He is conducting

jewellery business in the plaint schedule shop room. The

defendant is the owner of a building complex in which the plaint

schedule shop room is also a part. From the descriptions in the

schedule to the plaint, it can        be seen that on the western

boundary of the plaint schedule shop room, a main road and an

open space are situated. On the southern boundary, an open

space and a way through the building exist. It is an admitted

case that a staircase is in existence on the north-western corner

of the building for facilitating access to the upper stairs. The


plaintiff alleged that the PWD authorities had taken steps to

widen the road on the west. It is the contention of the plaintiff

that on taking measurements, the authorities found that the

staircase built by the defendant on the north-western side of the

room was projecting into the government puramboke. Plaintiff

reliably learnt that the authorities had issued notice to the

defendant directing him to demolish the staircase encroaching

onto the puramboke. Plaintiff's jewellery is facing a main

thoroughfare. His father purchased the room considering various

factors like the road frontage, unhindered view from the road,

easy access from the road etc. Plaintiff contended that the

defendant was taking hectic steps to install some fixtures and a

staircase infront of the shop room of the plaintiff causing

obstruction to the view to his jewellery from the main road. Acts

intended by the defendant may even adversely affect the access

to jewellery.


       6.      The defendant filed a written statement stating that he

did not receive any notice from the PWD authorities demanding

demolition of the staircase. Defendant further contended that he

has not trespassed into the government puramboke. The

staircase is well within the limits of his property. Defendant also

disputed the claim of the plaintiff based on a right to prospect.

According to the defendant there is no cause of action for the

suit.

       7.      The trial court, after considering the oral and

documentary evidence produced by parties and also the

Commissioner's report and sketch,          decreed the suit. In the

appeal by the defendant, lower appellate court confirmed the

decree passed by the trial court.

        8.     Sri.K.Ramachandran contended that the decree

passed by the court below is legally unsustainable. According to

him, the suit itself is a preposterous action. He vehemently

contended that the court below should not have granted a decree

for injunction as claimed.

       9.      Per contra, the learned counsel for the plaintiff

contended that the defendant is bound to respect the rights

derived by the former as per Ext.A1 assignment deed. Ext.A1 is

an admitted document. Terms in Ext.A1 would show that one

room described in the plaint schedule was assigned by the

defendant to father of the plaintiff for valuable consideration. It

further shows that the plaintiff's father was conducting a

jewellery in the premises as a tenant prior to the assignment.

Preponderance of probabilities would certainly indicate that the

predecessor-in-title of the plaintiff, at the time of Ext.A1

assignment deed, was having enough reasons for purchasing the

shop room. On a reading of Ext.A1 assignment deed, it can be

seen that sufficient safeguards had been taken by the parties to

protect the rights of the assignor and assignee. In Ext.A1, it is

specifically mentioned that the buyer (plaintiff's father) was

entitled to have right of access through the open space on the

western and southern sides of the building.          Ext.A1 further

shows that the defendant could not claim any right blocking the

access to the shop room of the plaintiff through the areas

mentioned therein. The defendant in his written statement has

stated clearly that there was no attempt on his part to invade or

obstruct the plaintiff's right of access to the building. However,

there can be no doubt that the plaintiff will be entitled to restrain

the defendant by a decree of permanent prohibitory injunction, if

it is established that his right under Ext.A1 is in jeopardy.

       10. The core issue is about the legality of the claim of

plaintiff for a permanent prohibitory injunction on the basis of a

right of view or prospect, as it legally understood. Let me

initially examine the nature of such a right. As mentioned earlier,

the claim to have an unhindered vicinity is not pressed at the

hearing.

       11. For obtaining a decree for permanent prohibitory

injunction, the plaintiff should establish a threat to or the

possibility of infringement of his legal right. Of course,the

Specific Relief Act, 1963 contains no list or catalogue of legal

rights on the breach of which a decree for permanent prohibitory

injunction can be granted. In Part III of the said Act, one can

find the rules regarding grant of injunction decrees, both in

mandatory and prohibitory forms. Decree for permanent

prohibitory injunction can be granted only on establishment of

an attempt to invade any statutory right or other rights based on

common law principles. That too, being an equitable relief, only

if it is not prohibited by the provisions in Section 41 of the Act.

Now, let me examine whether the plaintiff has any legal right to

maintain such a claim.

       12. Section 7 of the Easements Act, 1882 deals with

natural rights. It says that easements are restrictions on one or

other of the two rights mentioned therein. Section 7 (a) of the

Act recognizes the exclusive right of every owner of immovable

property to enjoy and dispose of the same and all products

thereof and accessions thereto. Section 7(b) of the Act deals with

the right of every owner of immovable property to enjoy without

disturbance by another the natural advantages arising from its

situation. The illustrations added to the Section clarifies the

nature and extend of the natural rights. Natural rights are those

incidents and advantages, which are provided by nature for the

use and enjoyment of a man's property. It is to be distinguished

from an act of man or some artificial cause. So, the only

deduction possible is that the rights enumerated in Section 7 of

the Easements Act are claimable only in respect of immovable

properties in its natural situation. All these rights cannot be

extended to man made constructions. It is well settled that

natural rights are rights in rem and are inherent in land ex jure

naturae and they are not to be acquired by immemorial user.

Their continuous enjoyment is not essential for their continued

existence, though they are capable of being lost by adverse

enjoyment. (See, Subbarayudu v. Secretary of State (AIR 1927

Mad. 988) and Secretary of State v. Subbarayudu (AIR 1932

P.C 46).)

         13.        If the right to prospect or view is not a natural

right, then the next question probable is whether it can be

acquired as an easement ? It can never be acquired as an

easement for the primary reason that such a right does not fit in

the definition of easement in Section 4 of the Act. The

requirement in the Section for having dominant and survient

heritages may not be fulfilled in such a claim.

       14.      Learned counsel for the defendant placed reliance on

a decision of the King's Bench Division in Campbell v. Mayor


(1911(1) K.B 869). In that case, the plaintiff sued the municipal

authorities alleging that certain constructions made by them

caused an invasion on his legal right to have an uninterrupted

view to Edgware Road, a main thoroughfare, through which a

public procession was expected to pass. On facts, it was found

that when the stand intended to be constructed by the authorities

if allowed to be completed, it would have caused obstruction to

the plaintiff's view to the road. After considering the legal

authorities on the point and the principles threadbare, it was laid

down that a view or prospect from the windows of a house is not

an easement or right in the nature of an easement. It was further

held that the law does not recognize a view or prospect from a

house as a right in the nature of an easement, which can belong

to anybody as of right, and that no period of enjoyment will give

a person a right of action against another, who on his own land

erects a structure or plants trees which obstruct the view or

prospect.

       15.      My view that such a right is not claimable is fortified

by an observation in Halsbury's Laws of England. In the

treatise, on the discussion of the topic "Nuisance" (Volume 78

paragraph 128), the following observations are made :

               "128. Interference with prospect, view or

               television reception. Where there is no

               infringement of a right to light, and where the

               act complained of is otherwise lawful, no

               action lies for the invasion of privacy by the

               opening of windows, or for the obstruction of

               a view or prospect, even though the value of

               a house or premises may be diminished

               thereby."

So, there is no legal reason for recognizing the right to prospect

as a natural right or as an easement. What is claimable as a

natural right under Section 7 of the Act is a right to light or air

passing vertically to the property. Even light or air received


horizontally is not a natural right. In Re Penny and South

Eastern Rly Co (1857) 7 E & B 660, it has been held that no

easement can exist in relation to the enjoyment by a land owner

of the prospect or view from his property or in relation to the

privacy of the property. Learned Author N.D.Basu on a Law of

Injunctions (Fifth Edition), based on certain English authorities

has stated that erection of a building will not be restrained

because it injures the plaintiff by obstructing the view of his

place of business.

       16.      Upshot of the discussion is that the claim of a right

to view or prospect to one's building cannot be recognized as a

legal right enforceable by a court of law. Therefore, that part of

the decree is legally unsustainable.

       17. Insofar as the apprehension of the plaintiff regarding

interference of his rights conferred by Ext.A1 is concerned, it

has to be found that there is sufficient cause of action for


maintaining an action. Commissioner's report and oral evidence

show that there was an attempt to interfere with the plaintiff's

use of the open space on the western side of the building, which

was used for entry to the shop room. Learned counsel harping

on Section 38(3)(c) of the Specific Relief Act contended that the

evidence collectively probablize the case pleaded by the

plaintiff. It is true that there is a challenge raised by the

defendant against the rights conferred on the plaintiff as per

Ext.A1. Therefore, I am of the view that the decree can be

limited to the rights conferred by Ext.A1 on the plaintiff.

               The appeal is partly allowed. The decree passed by

the trial court and confirmed by the appellate court is modified

as follows :

               The appellant (defendant) is restrained by a

permanent prohibitory injunction from causing any obstruction

to the respondent's (plaintiff's) enjoyment of the plaint schedule


property in terms of the recitals in Ext.A1 assignment deed.

No costs.

      All pending interlocutory applications will stand dismissed.

                                                 Sd/-
                                         A.HARIPRASAD,
                                    JUDGE.
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