Case Note & Summary
The case involves a second appeal by the original defendant No.1, Sau. Smita Mohod, against concurrent judgments and decrees passed by the Trial Court and the First Appellate Court in favor of the plaintiff, Sau. Rajani Kalane. The plaintiff had filed Regular Civil Suit No.775/1993 before the Civil Judge, Junior Division, Amravati, seeking mandatory and prohibitory injunction against the defendant No.1 and the Amravati Housing and Area Development Board (defendant No.2). The plaintiff alleged that the defendant No.1, who was allotted Block No.4/2 on the ground floor of a building in Tope Nagar, Amravati, had illegally and unauthorizedly constructed a structure on an open site meant for common use, without permission from the Housing Board. This construction allegedly affected the plaintiff's right to light and air in her first-floor block (Block No.4/6). The defendant No.1 resisted the suit, claiming the construction was permissible and that the civil court lacked jurisdiction due to Section 71 of the Maharashtra Housing and Area Development Act, 1976. The Trial Court decreed the suit, directing removal of the construction, and the First Appellate Court confirmed the decree. In the second appeal, the High Court framed two substantial questions of law: (1) whether construction without prior permission ipso facto constitutes nuisance or violation of privacy, and (2) whether the civil court had jurisdiction in view of Section 71 of the MHADA Act. The High Court held that the bar under Section 71 does not oust civil court jurisdiction when the suit is for enforcement of private rights, and that mere lack of permission does not automatically make construction a nuisance. However, the Court found no perversity in the concurrent findings of fact that the construction obstructed light and air, and thus dismissed the appeal, upholding the decrees.
Headnote
A) Civil Procedure - Jurisdiction of Civil Court - Section 71 Maharashtra Housing and Area Development Act, 1976 - Bar of jurisdiction - The suit was for mandatory and prohibitory injunction regarding unauthorized construction affecting right to light and air - The Court held that the bar under Section 71 does not oust jurisdiction of civil court when the suit is for enforcement of private rights and not for challenging any action of the Board - The civil court has jurisdiction to entertain the suit (Paras 4, 8-10). B) Property Law - Nuisance and Right to Privacy - Unauthorized Construction - The question was whether construction without prior permission ipso facto constitutes nuisance or violation of privacy - The Court held that mere lack of permission does not automatically make construction a nuisance; the plaintiff must prove actual interference with rights - However, in this case, the concurrent findings of fact that the construction obstructed light and air were not interfered with (Paras 3, 11-12).
Issue of Consideration
Whether any construction which is otherwise permissible but carried out without prior permission ipso facto constitutes nuisance or violation of right of privacy; and whether the Civil Court had jurisdiction to entertain the suit in view of Section 71 of the Maharashtra Housing and Area Development Act, 1976.
Final Decision
The second appeal is dismissed. The concurrent judgments and decrees of the courts below are confirmed. No order as to costs.
Law Points
- unauthorized construction not ipso facto nuisance
- right to light and air
- civil court jurisdiction
- Section 71 MHADA bar
- substantial question of law
