ivil Appeal No 2659 of 1986
From the Judgment and Order dated 1461985 of the Appellate Authority Delhi in Appeal No 2 of 1985
Anil Kumar Gupta and BN Singhvi for the Appellant
Raja Ram Agarwal Parveen Kumar and Vivek Gambhir for the Respondents
The Judgment of the Court was delivered by RANGANATH MISRA J
The short question in this appeal by special leave is whether the appellant workman was entitled to interest on the gratuity due to him under the provisions of the 39 of 1972
Appellant joined service under Respondent No 1 in April 1944 and was relieved from service on his resignation witheffect from 2452983
The employer did not determine the amount of gratuity payable to the appellant as required under Section 72 of the Act
On 76
1983 the appellant furnished an application in Form l for payment of gratuity but no action was taken by the employer then appellant approached the statutory controlling authority for determination of the amount of gratuity and requested that on the sum due interest may be paid
The employer contested the claim both in regard to gratuity as also interest
On 3 12
 the controlling authority determined the amount of gratuity at Rs 16380 and directed the Respondent No 1 to pay along with compound interest of 9 per cent
Thereupon PG NO 744 Respondent No 1 challenged the order before he appellate Authority
The appellate Authority affirmed the determination of gratuity but set aside the order for payment of interest
We have beard learned counsel for both parties in regard to payability of interest
Relevant portions of section 7 of the Act as it stood in 1983 when the cause of action arose may now be extracted 7 Determination of the amount of gratuity 1 A person who is eligible for payment of gratuity under this Act or any person authorised in writing to act on his behalf shall send a written application to the employer within such time and in such form as may be prescribed for payment of such gratuity
2 As soon as gratuity becomes payable the employer shall whether an application referred to in sub section 1 has been made or not determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined  3The employer shall arrange to pay the amount of gratuity within such time as may be prescribed to the person to whom the gratuity is payable  4 a If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of in relation to an employee for payment of gratuity or as to the person entitled to receive the gratuity the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity
Explanation  Where there is a dispute with regard to any matter specified in this clause the employee may make an application to the controlling authority for taking such action as is specified in clause b
b           c          
PG NO 745 5           6         7         Sec 8 Recovery of gratuity If the amount of gratuity payable under this Act is not paid by the employer within the prescribed time to the person entitled thereto the controlling authority shall on an application made to it in this behalf by the aggrieved person issue a certificate for that amount to the Collector who shall recover the same together with compound interest thereon at the rate of nine per cent per annum from the date of expiry of the prescribed time as arrears of land revenue and pay the same to the person entitled thereto
 The provisions of Section 7 have been amended twice first by Act 25 of 1984 with effect from 171984 and again by Act 22 of 1987
The 1987 Amendment has substituted sub section 3 and added sub section 3A in Section 7 to the following effect 3 The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable
If the amount of gratuity payable under sub section 3 is not paid by the employer within the period specified in sub section 3 the employer shall pay from the date on which the gratuity becomes payable to the date on which it is paid simple interest at such rate not exceeding the rate notified by the Central Government from time to time repayment of long term deposits as that Government mayby notification specify  
 The controlling authority had directed interest as provided in Section 8 to be paid which the Appellate Authority had vacated
From facts of the case it is clear that the stage for action under section 8 had not been reached inasmuch the appellant had not applied for recovery of gratuity to the Collector
It is only when the Collector issues a certificate for recovery of the dues as a public demand that interest as provided under Section 8 is admissible
PG NO 746 There was no provision in the Act for payment of interest when the same was quantified by the controlling authority and before the Collector was approached for its realisation
In fact it is on the acceptance of the position that there was a lacuna in the law that Act 22 of 1987 brought about the incorporation of sub section 3A in Section 7
That provision has prospective application
Learned counsel for the appellant tried to rely upon the provisions of the Interest Act and the provisions of Section 34 of the Code of Civil Procedure
We do not find any support for the appellant s stand from either of the provisions
Admittedly no notice was given demanding interest and the controlling authority is not a court for falling back on Section 34 of the Code
We are satisfied in the facts of the case that the appellant was not entitled to interest on the amount of gratuity found due to him
Since that was the only matter agitated in the appeal with the conclusion indicated this appeal has to fail and is dismissed
There would be no order for costs
GN Appeal dismissed


Summary:
The respondents are the owners of two houses adjacent to each other and also to the property of the appellants
From the roof of the appellants structure three morries narrow outlets opened towards the property of the respondents
Subsequently the appellants raised the height of their existing structure and constructed two additional storeys on it
At the same time the appellants after blocking the three original morries opened nine new morries three on each floor
The appellants also opened new windows
The respondents however blocked these windows by raising the height of their walls
The respondents filed suits praying for a permanent injunction restraining the appellants from using the new morries and from removing the obstruction to the windows
The Sub Judge granted the injunction
The appellants  appeals before the District Judge and the High Court failed
Before this Court the appellants contended that 1 that the owner of an easement was entitled to alter the mode and place of enjoying the easement and 2 no customary right of privacy had been pleaded or proved by the respondents
Dismissing the appeal it was HELD 1 Section 23 of the Indian Easement Act 1882 provides that the dominant owner may from time to time alter the mode and place of enjoying the easement provided that he does not thereby impose any additional burden on the servient heritage
In this case the burden of easement had been increased by the action of the appellants
739E G Harvey vs Walters  distinguished PG NO 736 PG NO 737 2 The conduct of the defendants in opening nine morries in the place of three morries and thereby damaging the properties of the respondents is such that no discretion need be exercised in their favour by allowing them to raise the issue for the first time that the three morries on the first storey merely constitute a change in the mode or place of enjoyment of the easement
740B C 739G H 3 The appellants cannot be restrained from opening new windows as no customary right of privacy appears to have been pleaded or proved
At the same time the respondents are fully entitled to block the same and the appellants are not entitled to remove the obstruction
740G H