(Querist) 23 April 2010
This query is : Resolved
I purchased 9.8 Cents of land in Athimarapatti Panchayat in Thoothukudi District, Tamilnadu in the year 1989 and constructed a house in 1989-90 at the eastern end of the plot with Government loan and with Plan and Plot approval from Town Panchayat. There was an open space of about 4.5 Cents left vacant between my house and a neighbour on the western side of my land. I started construction of building from 22.08.2008 connecting the old building after due plan approval on 17.7.2008 from Athimarapatti Panchayat. My neighbour out of jealous and hatred sent a Lawyer Notice which was received by me on 27.12.2008, objecting my construction. The suit was filed against me (1), Athimarapatti Panchayat (2) and Member Secretary, Thoothukudi Local Planning Authority.(3) as Defendants. With the following points: 1. My construction stops air and light to his house. 2. The construction is dangerous for his family due to possible fall of construction materials into his plot. 3. Only 2’3” space is left vacant on western side of the new construction. His prayers are: “ i. To pass an order of mandatory injunction directing Panchayat and LPA authorities to remove construction. ii. To pass a permanent injunction restraining from putting up any construction on the property in such a manner that it causes nuisance to the plaintiff by falling of cement, plaster, bricks and sand in the plaintiff’s property. “ My lawyer sent a reply stating that a. The construction is done within defendant’s own premises and there is no encroachment. b. There is no nuisance to the plaintiff. c. Construction is done after the approval from Panchayat d. The case is raised by the plaintiff due to jealousy and hatred. e. The construction was started well before the date specified by the plaintiff. f. The plaintiff has not got approval for his additions from Local Planning Authority g. The plaintiff has constructed and raised the common wall in between them without defendant’s agreement illegally. h. The defendant has completed the construction without causing any nuisance to his neighbour. Whereas the plaintiff caused a lot of troubles during the construction and the defendant had completed the house bearing all the troubles and disturbances from the plaintiff. i. The intention of the plaintiff is to stop the construction at any cost. Court has not issued any injunction as the building is within the owner’s premises.
One inspector from Local Planning Authority inspected the site on 9.1.2009 and found the construction was almost complete and hence they would issue formal notice to stop the work and to produce approved drawing to their office, He also observed that the neighbour had constructed additional height on the common wall for his car shed, that is the construction is without any gap on his side for almost half of the length of the common wall to a height of about 12 feet He also opined that I should have filed a suit on the neighbour. The inspector also stated orally that the intention of the rules are that one has to leave space around his house for ventilation and light for himself, One cannot expect that the next plot owner would leave space for his house ventilation and light. From LPA I received a notice on 2.2.2009 to submit the approved drawing and to stop the construction. I appeared before LPA submitted a copy of the Panchayat approved drawing and confirmed in writing that the construction was complete. Subsequently construction completion was conveyed to the Panchayat Office. They assessed for tax and the tax and development fees were paid to the Panchayat and they had issued Property Tax Receipts. With the receipts I applied for electrical connection and got. Now the lawyer I have engaged is not experienced in building construction related disputes. But he is sincere and straight forward. I want to get the experts opinion on this case on the following issues: 1. Whether my new construction is illegal?
2. Is it correct on the part of my neighbour to say that my construction stopped light and air to his house when he himself had left no space and constructed to half the length of the common wall without my agreement.? (Unfortunately no agreement deed was made on common wall built earlier)
We both (Plaintiff and defendant) served in the same Central Govt, Department. (I was a Senior Scientific Officer and the neighbour was a Scientific Assistant) and retired. It was clear that he had filed the suit out of jealousy and hatred only. He had told his close friend that he would go unto Supreme Court and is ready to spend any amount. He uses all the abusive words when seen face to face. These things upset me and I lost peace of mind and got sick. During construction period he created more troubles which delayed the work and increased the cost of construction. And under such circumstances: 3. What is your advice to me to follow? 4. Since I have never faced this kind of humiliation is it possible to file a Defamation Suit against my neighbour? Kindly advice.
Raj Kumar Makkad
(Expert) 23 April 2010
In the light of given facts, it is a fit case for filing a defamation case against your neighbour. First serve a notice to him and then file case.
(Expert) 23 April 2010
In such issues pertaining to easementary rights, unless the party(plaintiff) claiming easmentary right to light and air establishes that he had received light and air through the windows overlooking the land of the defendant for the prescriptive period (20 years) his right based on easement cannot be upheld.
AIR 1965 Mys. 292 (at 294)
(Expert) 23 April 2010
I do agree with Mr. Raj Kumar Makkad and Mr. R.R. Krishna