1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.849 OF 2008 ALONGWITH CIVIL APPLICATION NO.1020 OF 2008 Mr. Reggie Peter Dias & Anr. .... Appellants Vs. Mr. Ralph Miranda & Anr. .... Respondents Mr. Uday Warunjikar Advocate for Appellants. Ms. E.A. Gonsalves, Advocate for respondent No.1. Mrs. Geeta Joglekar, Advocate for M.M.C. Coram : SMT. R.P. SONDURBALDOTA,J Date : 24th September, 2008 P.C. 1. This Appeal from order is to challenge the correctness and legality of the order dated 5th August, 2008 rejecting Notice of Motion taken out by the Appellants for an interim mandatory order directing respondent No. 2, Municipal Corporation to revoke the repairs permission granted to respondent no.1. The Appellants had also sought an interim injunction to restrain respondent No. 1 from carrying out the work of construction undertaken by him. 2. The appellants are the owners and occupants of the premises on the first floor of house No.31, Kalina Village, Santacruz (East). House No.31 is the ancestral property of the appellants. Respondent No.1 is the neighbour residing in 2 house No. 32. The appellants filed the instant suit for a declaration of their easementary right of free passage of natural air and light and privacy through the three windows on the eastern side of their premises and permanent injunction to restrain respondent No. 1 from putting up any construction above the earlier height of his house No.32 so as to obstruct the easementary rights. As regards respondent No. 2, the appellants seek a mandatory order directing respondent No. 2 to revoke the permission if any, granted to respondent No. 1 for any construction / repairs /renovation / additions / alterations in respect of house No.32. 3. The facts alleged in the plaint in support of above reliefs are as that House No. 32 was made up of mud and sand walls with a tiled roof having height of about 16' at the centre with slope of about 4' to 5'. It consisted of ground floor plus loft. The appellants have annexed to the plaint, photographs of house no. 32 as it existed earlier. Each of the three rooms in the occupation of the appellants on the first floor of house No. 31 has one window facing the East side through which they have been enjoying ventilation and light. The windows have been in existence since the very beginning. Appellant No. 1 has been residing in the premises since his birth in the year 1948 and appellant No. 2, his wife has been residing there since her marriage in the year 1977. They have enjoyed easementary rights with regard to 3 light, air and privacy through the three windows without interruption since the respective dates. In December,2007, respondent No. 1 planned to reconstruct house No.32 by demolishing the same. He shifted himself and his family members to another place in the same locality. Since the appellants apprehended that respondent No.1 may build his house in such a way as to obstruct their easementary rights, appellant No. 1 complained to respondent No.2 vide his letter dated 29th November,2007 expressing his apprehension and requesting that respondent No.1 may be asked to reconstruct house No. 32 in such a manner that enjoyment of easementary rights through the three windows is not affected. 4. In the third week of January, 2008, respondent No.1 started demolition of part of house NO. 32, therefore, the appellants once again complained to respondent no. 2. In response the appellants received letter dated 14th February, 2008 from respondent No. 2 stating that no unauthorised construction was found in progress at site. Thereafter the construction activity was stopped for about three months, only to be revived in first week of May 2008. Therefore, the appellants once again complained to respondent no. 2 and received the same response. Thereafter the appellants filed the instant suit for enforcement of their easementary rights and took out Notice of Motion for the interim reliefs mentioned at para 1 above. 4 5. Respondent NO. 1 in his Affidavit in reply to the Notice of Motion disputes the easementary rights claimed by the appellants. He also complains that the first floor of house No. 31 is an unauthorised structure having been constructed without due sanction from respondent NO. 2. As regards his own house No. 32, respondent No.1 denies that its walls were made up of stones and mud with a sloping tiled roof. He further denies that in January 2008, he started demolishing house No. 32 with intention to reconstruct the same. According to him, the work undertaken by him is of repairs as per the permission granted by respondent No. 2 vide repairs permission No.ACHE/12508/AEBF dated 19th April, 2008. Respondent No. 1 denies that the work of repairs carried out by him affects the easementary rights of the appellants. 6. It is thus seen that the appellants claim of easementary rights is disputed by respondent no. 1. Similarly their allegation that the construction commenced by respondent No. 1 is unauthorised is denied. The learned Judge rejected both the contentions of the appellants. The reasons for the rejection are contained at paras 8 and 9 respectively of the impugned order. Perusal of the order shows that the same has been passed in a casual and cavalier manner. It does not disclose any application of mind. The learned Judge 5 has observed that unless the right of easement is proved, the same cannot be taken into consideration at the ad-interim state. According to him, the right of easement is not proved because the appellants have not produced sufficient material to show that except eastern side windows, there are no other windows to their house. This is a strange reasoning. The learned Judge has failed to appreciate the concept of easementary right. There is no discussion in the order of the nature of the right claimed, and application of law to it. Similar is the treatment to the allegation that the work of construction by respondent no.1 is unauthorised. While deciding the rights of the parties, the Courts are expected to be more thoughtful and careful. It is necessary that a litigant should be left with an experience that he was given a hearing in the matter which gets reflected in the reasons given for either allowing or rejecting the application made before the Court. 7. The reasons in the order or rather the lack of reasons actually deserve remand of the matter. However, apparently that would involve substantial time. Respondent No. 1 is keen for early decision in the matter since his work of construction has been halted. Therefore, this Court is not inclined to remand the matter. 8. The appellants case is that appellant No.1 who is 59 6 years old has been residing in house No.31 since his birth and appellant NO. 2 has been residing there since her marriage in the year 1977. Both claim that since the respective date, they have been enjoying the easementary right of flow of light and air and privacy. The right of easement claimed by the appellants is by prescription. They need to establish that the access and use of light, air and privacy to their premises have been peaceably enjoyed without interruption for 20 years as required by Section 15 of the Indian Easement Act. The appellants rely upon the photographs taken during the family gathering and family functions in the year 1979, 1980, 1986 and 1989. Xerox copies of these photographs are annexed to the plaint. These photographs do prima facie establish the claim of the appellants as regards access and use of light and air to their premises through the windows facing at the East side at first floor. The photographs also show sloping roof made up of tiled shed of house No.32. Mr. Warunjikar, learned counsel for the appellants submits that respondent No. 1 has completely demolished his existing structure and started reconstruction of the same in such a manner as it would completely block the three windows through which the appellants have been enjoying the easementary rights. He has produced photographs taken by the appellants on 13th December, 2007 i.e. prior to demolition of house NO.32. These photographs show the sight of sloping roof of house No.32 7 seen through the windows. Also the portion of house No. 32 that is visible through the windows is only small part of the upper portion of walls of house No. 32 and the roof. Consequently there was right of privacy also enjoyed. The appellants have produced photographs taken by them in the month of May 2008 i.e. after the work of construction commenced. These photographs show that there is construction at the first floor level of house No. 32 which completely blocks view from the three windows. The construction is at a close distance. There is one window opened into the construction which is directly in front of one of the three windows. 9. Ms. Gonsalves, learned counsel for respondent No. 1 submits firstly that the appellants ought to have produced building plans of house no. 31 which alone can establish enjoyment of easementary rights. There is no dispute that both the buildings i.e. houses No. 31 and 32 are very old buildings. The appellant No. 1 claims to have been born in the very premises in the year 1948. The appellants do not have the building plans for production. Respondent No.2,Mumbai Municipal Corporation has surprisingly taken a very neutral stand in the matter and not filed any affidavit- in-reply. Therefore, there is no assistance to the Court from respondent No.2. Since the issue involved in the matter concerns construction of building of which respondent No. 2 8 is the regulating authority, a more active role was expected from it. In any case the Public Information Officer of respondent no. 2 has informed respondent No. 1 that the plan of house No. 31 are not available with it. 10. Ms. Gonsalves next submits that the work carried out by respondent No.1 is authorised since the same is pursuant to the permission granted by respondent No. 2 dated 19th April,2008 bearing No.ACHE/12508/AEBF. The said permission is for repairs to “the dilapidated structure situate at house No.32”. It is made subject to 20 conditions. At the directions of the Court, respondent no.2 has produced the entire file concerning grant of permission to respondent No.1. The file shows that on 27th August, 2007, respondent no.1 made an application for repairs permission in the prescribed format. The same indicates details of type of structure and mode of construction of structure, both, existing and proposed. As per the application, the then existing structure was a load bearing structure with its walls made up of brick and roof of Manglore tiles with wooden framework. The volume of the existing structure shown is at ground floor as 15 mtrs. x 8.545 mtrs. x 3 mtrs. and first floor as 10 mtrs. x 8.602 mtrs. x 3 mtrs. The proposed structure is also described as load bearing structure. It does not specify the mode of construction of walls, however, the mode of construction of roof is described as AC Sheet 9 roof with framework of mild steel. The volume as regards the first and ground floor, is shown same as the existing structure. The application for repairs permission on the basis of the description of mode of construction of existing structure creates an impression that its walls are made up of bricks. The appellants allege that the structure as it was existing prior to its demolition was of stone and mud which has been denied by respondent No. 1 in his reply. However, the Return filed by respondent No.1 under Section 155 of Mumbai Municipal Corporation Act, a xerox copy of which is in the file produced by respondent No. 2 shows that the walls of house No.32 were of mud and stone. It consisted of ground floor and “mala 100 years old not in use”. There are words added to it by hand “first floor”, “house-height 21'”. Thus the denial in the reply of respondent no. 1 as regards the mode of construction of house No.32 is prima facie false. This would further mean that the description of walls in the application for repairs permission as made up of walls is also false. 11. Perusal of the application for repairs permission indicates that the repairs proposed thereunder by respondent No.1 was only to the roof in order to change it from Mangalore tiles with wooden framework to AC Sheet roof with mild steel framework. Surprisingly when this application was processed by the Officers of respondent No.2, they have 10 granted permission for repairs to existing brick masonary walls wherever necessary and to re-do the plaster of the existing walls though the same was not contained in the application for repairs permission. Respondent No.1 is also permitted to repair / change the existing flooring, to repair existing roof, existing drainage pipes, water pipes, electrical fittings with wirings etc. Respondent No.1 was required to give an Indemnity Bond on a stamp paper of Rs.200/- indemnifying the Mumbai Municipal Corporation against any disputes arising in future between him and any other person / institution. The bond apparently was given by respondent No.1 on 24th April,2008. The first recital to the indemnity bond states that the Municipal Corporation has granted permission to “re-construct the structure” at house No.32. In the next recitals and clauses of indemnity bond, the permission described is “repair/ reconstruction permission”. The application for repairs coupled with the permission for repairs and the indemnity bond prima facie establishes that respondent No.1 had plans since beginning of carrying out work of reconstruction of house No.32 and not merely repair the existing structure. This is also borne out by the photographs produced by the appellants. Apparently some officer of respondent No.2 is also involved in the entire strategy. This is because when the appellants complained to respondent No. 2 about demolition of house No.32 and the work of reconstruction, the Assistant 11 Commissioner, H East Ward of respondent No.2 informed him that no unauthorised construction was found in progress at the address. Either no officer from respondent No.2 had visited the site before sending the letter to the appellants or the work carried out by respondent No. 1 were intentionally protected. In its reply filed in the appeal proceedings, respondent No.2 states that it has issued Notice bearing No.ACHE/354(A)/14072 dated 31st May,2008 under Section 354(A) of Mumbai Municipal Corporation Act to respondent No.1, which is replied by him vide letter dated 2nd June, 2008. The affidavit further states that respondent No.1 has carried out construction to the height of 7' to 8' above the ground floor level. The affidavit however, does not make any comment either on the nature of the repairs permission granted and its violation by carrying out the work of reconstruction instead of repairs to the existing structure. 12. Ms. Gonsalves next submits that the appellants are not entitled to equitable relief of injunction as they have suppressed the material facts and not approached the Court with clean hands. They are guilty of having carried out unauthorised construction by raising two upper floors i.e. first floor and mezzanine floor above the first floor of house No.31. According to her, they have unauthorisedly constructed windows on the East side of the first floor and have put up RCC grill windows on the mezzanine floor. The 12 reply does not indicate when the work of construction was carried out by the appellants. In any case, the photographs produced by the appellants, prima facie indicate existence of the windows since the year 1977 atleast. Therefore, the appellants would be entitled to the reliefs of interim injunction, so that there is no obstruction of enjoyment of their easementary rights of light, air and privacy enjoyed through three windows on the first floor premises. Respondent no.1 cannot be allowed to carry out any construction which would obstruct the same. Ms. Gonsalves relies upon the judgment of Apex court in the case of Muni Suvrat Swami Jain S.M.P . Sangh V. Arun Nathuram Gaikwad & Ors ., reported in AIR 2007 SUPREME COURT page 38 and submits that in case of an unauthorised construction, directions regarding its demolition can be given by the Municipal Commissioner alone. The High Court cannot direct or issue mandamus for demolition. She further draws attention of the Court to the observations in the judgment that “The mere departure from the authorised plan or putting up of a construction without sanction does not ipso facto and without more necessarily and inevitably justify demolition of the structure. There are cases and cases of such unauthorised construction and some are amenable to compounding and some may not be”. In the instant case, the appellants have not sought any direction of demolition of the construction in the Notice of Motion. Therefore, the same is not for consideration of this Court. 13 As regards the violation of repairs permission by carrying out the work of reconstruction in the place of repairs to the existing structure, respondent No.2 may take such action as it desires in respect of the same. 13. In view of the disposal of the Civil Revision Application, the Civil Application does not survive. The same is accordingly disposed off. O R D E R (i) The Appeal from Order is allowed. (ii) The impugned order dated 5th August, 2008 is set aside. iii) The Notice of Motion No.1009 of 2008 is disposed off with an order that pending the hearing and final disposal of the suit, defendant No.1, his servant/s, agent/s, workman/s, family member/s, contractor/s, and/ or any other person/s acting on his behalf is restained from carrying out any further construction at the level of the first floor that would obstruct the easementary rights of the plaintiffs. Defendant No.1 however is at liberty to complete the work of construction as per the dimensions of the original structure of house No. 32 as it had stood prior to its demolition, for the purpose of reconstruction. If defendant No. 1 proposes 14 to complete the construction in exercise of the liberty granted,, respondent No. 2 is directed to ensure that the same is as per the original structure. (iv) Costs to be cost in cause. (SMT. R.P.SONDURBALDOTA,J)