Anonymous
Asked July 05, 2016

Right to Stop construction that blocks my light and air

  • 1 Answer
  • 372 Views

Easement right over light and air My residential site (housing board plot) dimension : south facing – land extent 16’ (FEET) (south and north side) x 60’ (FEET) (east and west side). Building : Ground + First Floor, leaving 4’ (feet) as passage for our exclusive use on the entire eastern side of the ground floor. In the first floor the building stretched by 3’ (feet) over open passage on the ground floor. We have placed two entrance doors and four windows for ground floor portions in order to get good ventilation (bright sun light and fresh air). We have placed 3 window building constructed in the year 2005, from 01.05.2006 we are continually enjoying sun light and fresh air without any hindrance. The problem is getting bright sun light and fresh air for the first floor portion. Now the building adjacent to my house (extent 16’ x 60’) in the eastern side, which was hither to ground floor only, now just started constructing first floor. They reached lintal stage. As the gap (open space) between our building and the proposed building will be one feet and in some places it will be less than one feet (shortage due to improper construction of the other property), which will restrict flow of natural light an air thereby it restricts my free enjoyment of natural light and air , which I am enjoying over 10 years. Please guide me whether I have any right to stop construction in order to continue to enjoy natural right over light and air. Please guide me. If I have a right, How should I proceed.

City: Chennai

Answer 1

You have been enjoying natural light and air over ten years now which makes it a continuous easement according to S. 5 of The Indian Easement Act, 1882[1] (referred as The Act herein). This section clearly includes an illustration under the meaning of continuous easement as a right to receive light by the window without obstruction by neighbour. Also, S. 7(b) of The Act [2]provides the right to every owner of immovable property, your house in this case, to enjoy without disturbance by another the natural advantages arising from its situation. In this case, the situation of your land and the following construction of the building provided you with the natural enjoyment of sufficient air and light. Hence, you have the right to continuous enjoyment of such air and light without any disturbance caused by the adjacent building.

 

You can initiate a suit for disturbance of easement under S. 33 of The Act[3], provided that the disturbance has actually caused substantial damage to you, by satisfying three explanations or conditions included on the section:

  • The doing of any act likely to injure the plaintiff by affecting the evidence of the easement is substantial damage. The construction upto the lintel level by your adjacent building is likely to injure you by affecting your evident easement over sufficient light and air.
  • Where the easement disturbed is a right to the fee passage of light passing to the openings in a house, no damage is substantial within the meaning of this section unless it falls within the first Explanation (also includes certain alternative conditions, not applicable in this situation). Since it is already clear that your case satisfies the first explanation or condition, the damage caused can be said to be a substantial one.
  • Where the easement disturbed is a right to the free passage of light to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health. As stated by you, the natural passage of air and light has been enjoyed by you for the past 10 years and the adjacent construction will hinder this enjoyment causing physical discomfort to you, hence, it can clearly be established that the adjacent building is causing substantial damage to you.
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    Hence, you can plead for an injunction order under S. 35 of The Act[4], to restrain disturbance likely to be caused by the said adjacent construction.

     

     

     

     

     

     

     

    [1] Available at: https://indiankanoon.org/doc/101176900/

    [2] Available at: https://indiankanoon.org/doc/8784234/

    [3] Available at: https://indiankanoon.org/doc/18794690/

    [4]Available at: https://indiankanoon.org/doc/148608510/

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