ITC Limited vs Chowringhee Residency Private Limited.asp

G.A. NO. 2698 of 2013 C.S. NO. 285 OF 2013

IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction ORIGINAL SIDE

In the Matter of :

ITC Limited

….Plaintiff/Respondent

-Versus-

Chowringhee Residency Private Limited.

…Defendant/Petitioner

Appearance:

Mr. Ahin Chowdhury,Sr.Adv Mr. Samit Talukdar, Mr.Sakya Sen, Mr. Hasnuhana Chakraborty, Mrs. Sudeshna Bagchi, Ms. Debasri Dutta

…for the plaintiffs

Mr. Sudipto Sarkar. Sr. Adv., Mr. Arindam Banerjee, Adv., Mr. Shatadeep Bhattacharyya, Adv., Mr. Biswajit Kumar, Adv., Mr. Somdatta Bhattacharyya, Adv.

…for the defendants/ petitioners Judgement On: - 03.09.2014 I.P. MUKERJI, J. The Court: - In our country, this is a most unusual suit. Not that suits of this

kind have not been instituted earlier. They have been few and far between.

The plaintiff is a company, ITC Limited. They are the owner of a building

called “Fountain Court” at 7/1, Little Russell Street (also known as Nandalal Bose

Sarani) in Kolkata-700071. This building has several flats which are occupied for

residential purposes by the officers of this company. It is about 67ft. 6 inches tall

and has five stories. It has 43 windows, 30 of them on the western side.

In the present action, the suit, the plaintiff seeks a declaration that it has an

absolute and indefeasible right to the access and use of light and air through and

over the premises No. 42B, Chowringhee Road ( also known as Jawaharlal Nehru

Road ), Kolkata – 700 071 which predominantly lies on its western side. It also

claims the related order of injunction restraining the defendant from interfering with

such enjoyment of air and light. The plaint was verified on 14th August, 2013.

This application has been taken out by the defendant. They want the suit to be

dismissed at the threshold. The application is under Order VII Rule 11 of the Code

of Civil Procedure.

The case made out in the application is that on a perusal of the plaint the court

should be able to form an opinion that it does not disclose a cause of action.

Furthermore, the suit is barred by law.

Upto 1956 there was a premises numbered as 3/1, Middleton Street which

included the premises of Fountain Court. It was owned by the trustees of a trust. By

a conveyance dated 13th November, 1956, the eastern portion of the said premises

covering an area of 2 bighas, 1 cottah, 3 chittaks and 13 Sq.ft. of land together with

a five storied building thereon was conveyed in favour of the plaintiff by the

trustees. This was numbered as 7/1, Little Russel Street on which now stands

Fountain Court. A portion of 3/1, Middleton Street was retained by the trustees. It

also had a five storied building. Now, this five storied building was also 67ft. 6

inches tall. According to the plaintiff these two buildings were positioned in such a

way that Fountain Court and the other building received unrestricted light and air.

To the further west, lay premises numbers 42B, 42A and 42/1 Chowringhee

Road which was an open space having only a damaged building on Chowringhee

Road.

The western portion of 3/1 Middleton Street retained by the trustees was sold

by them in 1957. There were subsequent transfers. 42/B, Chowringhee Road, the

property bought by the defendant is an amalgamated plot consisting of plots which

were formerly 42A, 42B and 42/1 Chowringhee Road, western portion of 3/1

Middleton Street and 7, Little Russel Street.

In 2013, the plaintiff received information that the defendant was proposing

to erect a very tall building on the premises. On 5th March, 2013 they wrote to the

defendant enquiring as to the work they proposed to do on it. From the defendant’s

reply dated 12th March, 2013 the plaintiff learnt that they were proposing to erect a

tower 240 meters tall consisting of 60 stories for residential flats. Piling work had

commenced from the beginning of 2013. The work of excavation was continuing.

The proposed tower would be separated by a distance of 67 ft. from Fountain Court,

as submitted.

The suit is a quia timet action. A quia timet action seeks reliefs from the

Court for reliefs against an anticipated injury. The plaintiff wants this Court to pass

an order of injunction restraining the defendant from proceeding with the

construction, of the tower. They are certain that if the tower is allowed to come up it

would result in diminution of such a quantity of light so as to make residence in

Fountain Court most uncomfortable. The action of the defendant would amount to

actionable nuisance.

Mr. Sudipto Sarkar, learned Senior Advocate for the plaintiff submits that on

an examination of the plaint it would be plain that the plaintiff has no cause of

action at all against the defendant. The law does not permit such a suit to be filed.

Hence, it is liable to be dismissed at the threshold.

He brought in the concept of the dominant tenement and the servient

tenement. According to him the plaintiff acquired the property in 1956. He argued

that the owner of a dominant tenement had easement rights with regard to a servient

tenement. In this case at the material point of time there was only one tenement,

that of the plaintiff. Therefore, the plaintiff could not have any right of a dominant

tenement owner or occupier. He went to the extent of arguing that there could not be

easement rights over one’s own property.

The plaintiff engaged M/s Gordon Ingram Associates, a firm of London

which estimates the quantity of light in premises, to survey the site and to report on

the light conditions if the proposed building of the defendant was erected. Based on

their report the plaintiff has alleged in the plaint that the proposed construction “will

create substantial loss of light enjoyed through the windows and opening on the

western side of the building at Fountain Court and there would be significantly

lower limits of sky visibility and such lower light would be insufficient for ordinary

habitancy, thus amounting to actionable nuisance.”

Mr. Sarkar, cited the case of Colls Vs. Home and Colonial Stores, a House

of Lords decision reported in (1904) A.C. 179. The lessees of a building in

Worship Street Shoreditch had filed an action. They were carrying on business in a

leased portion of the premises. The appellant had proposed to build on a land which

lay on the opposite side of the street. The street was 41 ft. wide. The proposed

building would be 42 ft. height. According to the lessees there would be serious

obstruction of light and hence they filed the action. It was an accepted position that

the construction would not lessen the value of the lessee’s premises. The evidence

showed that it would still be sufficiently lighted for all ordinary purposes of

occupancy as a place of business. In that case Lord Earl of Halsbury L.C relied on a

1752 case Fishmonger’s Co. Vs. East India Company reported in (1759) 1 dick

163. He stated that it was not sufficient that an obstruction to light would alter the

plaintiff’s lights. The objectionable construction must be so near as to be a nuisance.

The test according to his lordship was whether the obstruction complained of was a

nuisance. The amount of right and the proximity of the premises had to be taken

into account. It was a question of degree. A town dweller could not expect the same

nature of right as a village dweller. Lord Macnaghten remarked:

“In later times, when an action for the protection of ancient

lights came to be regarded rather as an action for disturbance

of an easement than an action grounded on nuisance----as an

action to prevent the infringement of a right rather than an

action to redress a wrong--- the necessity of shewing the

gravity of the injury complained of was not so obviously

apparent. Still the principle was the same, and it must always

be the same. “It is not sufficient,” as Lord Hardwicke observed

in Fishmongers’ Co. V. East India Co. to say it will alter the

plaintiffs’ lights….The law says it must be so near as to be a

nuisance.”

Lord Davey added:

“ in order to give a right of action, and sustain the issue, there

must be a substantial privation of light, sufficient to render the

occupation of the house uncomfortable, and to prevent the

plaintiff from carrying on his accustomed business ( that of a

grocer) on the premises as beneficially as he had formerly

done. His Lordship added that it might be difficult to draw the

line, but the jury must distinguish between a partial

inconvenience and a real injury to the plaintiff in the

enjoyment of the premises.”

My Lords, I must apologise for the length at which I have

trespassed on your attention. According to both principle and

authority, I am of opinion that the owner or occupier of the

dominant tenement is entitled to the uninterrupted access

through his ancient windows of a quantity of light, the

measure of which is what is required for the ordinary purposes

of inhabitancy or business of the tenement according to the

ordinary notions of mankind, and that the question for what

purpose he has thought fit to use that light, or the mode in

which he finds it convenient to arrange the internal structure

of his tenement, does not affect the question. The actual user

will neither increase nor diminish the right. The single

question in these cases is still what it was in the days of Lord

Hardwicke and Lord Eldon----whether the obstruction

complained of is a nuisance. I do not myself think that this rule

is difficult of application in practice. In the majority of cases

no such questions as those which have been raised in Warren

V. Brown and the present case occur. The experience of

surveyors who are practically conversant with this matter is

entitled to great respect. As Mr. Vigers states in his evidence,

they have adopted a working rule for the purpose of advising

those who consult them and settling differences by negotiation.

The rule of 45 degrees is not, of course, a rule of law, and is

not applicable to every case. But I agree with Lord Selborne

(City of London Brewery Co. V. Tennant) that it may properly

be used as prima facie evidence.

Thereafter, he cited Paul Vs. Robson reported in AIR 1914 PC 45. It was

an appeal from a Calcutta decision to the Privy Council. Lord Moulton applied the

ratio in Colls Vs. Home and Colonial Stores reported in (1904) A.C. 179. His

lordship noted that the infringement of easement must result in actionable nuisance.

He approved a passage of the speech of Lord Davey in the 1904 decision which

opined that the owner of the dominant tenement was entitled to the uninterrupted

access to ancient light which is required for the ordinary purposes of inhabitancy or

business of the tenement according to the ordinary notion of mankind. It also

approved another passage in the 1904 judgment that the light must be sufficient

according to the views of the ordinary people for the comfortable use and

enjoyment of the dwelling house or of a room in it. He next cited Chapsibhai

Dhanjibhai Danad Vs. Purushottam reported in AIR 1971 SC 1878. Mr.

Justice Shelat delivering the judgment of the Hon’ble Supreme Court adopted a

passage from Colls Vs. Home and Colonial Stores, that to constitute an actionable

obstruction of free passage of light there must be substantial privation of light,

enough to render the occupation of the house uncomfortable according to the

ordinary notions of mankind. In Re: Reba Samanta Reported in 1993 ILR 1 Cal

317 cited by Mr. Sarkar reiterated the principles of Colls that the result of the

construction should be actionable nuisance against the complainant. The judgment

of a Division Bench of this Court was delivered by S.K. Mukherjee, J. His lordship

opined that to constitute an actionable nuisance the plaintiff had to establish

interference with the enjoyment of air and light substantially depriving him of

comfortable use of the premises.

Mr. Sarkar further submitted that according to the report of M/s. Gordon

Ingram Associates if the proposed construction came up, it would result in

substantial diminution of light and that the light remaining in the habitable place

would be substantially affected. The retained light would so low that it would be

insufficient for ordinary inhabitancy. The report has been annexed to the plaint.

Mr. Sarkar submitted that on the basis of the report, on which the case of the

plaintiff rested, no cause of action was disclosed. The law as submitted by Mr.

Sarkar expressly refused to take cognizance of the case sought to be made out by

the plaintiff. On that analogy the suit was barred by law.

He also referred to some cases on Order 7 Rule 11 of the Code of Civil

Procedure. He cited T. Arivandandam Vs. V. Satyapal & Anr. reported in AIR

1977 Supreme Court 2421 in which Mr. Justice Krishna Iyer opined that the

plaint must be read “ meaningfully”. If it was found that an “ illusion” of a cause of

action was created by “ clever drafting”, the suit should be “ nipped in the bud”.

The same principle was again reiterated by the Supreme Court in I.T.C. Limited

Vs. Debts Recovery Appellate Tribunal And Others reported in (1998) 2SCC70

where the Supreme Court through Mr. Justice M. Jagannadha Rao remarked that “ a

clear right to sue should shown in the plaint”. I was also referred to India Carbon

Limited Vs. Ganesh Prasad Singh reported in 2012 (1) CHN 152.

Mr. Ahin Chowdhury, learned senior advocate for the plaintiff began his

submissions by placing Section 25 of the Limitation Act. He submitted that when

access and use of light have been enjoyed without interruption for 20 years the right

became absolute and indefeasible. The plaintiff had brought the premises in 1956

and till now were enjoying the right to light uninterruptedly and peacefully. Hence,

they had become absolute. He referred to Section 15 of the Indian Easement Act,

1882 and referred to Sections 15 and 35 (B) thereof. I insert both these sections for

convenience.

“15. Acquisition by Prescription.------ Where the access

and use of light or air to and for any building have been

peaceably enjoyed therewith, as an easement, without

interruption, and for twenty years.

and where support from one person’s land or things

affixed thereto, has been peaceably received by another

person’s land subjected to artificial pressure is or by

things affixed thereto, as an easement, without

interruption, and for twenty years,

and where a right of way or any other easement has been

peaceably and openly enjoyed by any person claiming

title thereto, as an easement and as of right, without

interruption , and for twenty years,

the right, to such access and use of light or air, support,

or other easement shall be absolute.

Each of the said periods of twenty years shall be taken to

be a period ending within two years next before the

institution of the suit wherein the claim to which such

period relates is contested.

35B if the disturbance is only threatened or intended----

when the act threatened or intended must necessarily, if

performed, disturb the easement.”

Citing Bhupati Bhusan Mondal Vs. Jadunath Ghosal reported in AIR

1955 Calcutta 70 Para 9 and 41 and my judgment in Prabir Guha Vs. Uttam

Chand Surana reported in 2011 (2) CHN 665, he submitted that although the

Indian Easement Act, 1882 did not apply to Bengal, these decisions held that the

principles of the Act were applicable here.

Mr. Chowdhury tried to argue that in all cases a right of easement did not

arise out of dominant and servient tenements. When a person has been openly and

independently exercising a certain easement right for a statutory period, though not

consciously, he become entitled to such rights. He cited Jotindra Mohan Mitter

Vs. Probodh Kumar Dutt reported in AIR 1932 CAL 2 49. He also relied upon

Rau Rama Atkile Vs. Tukaram Nana Atkile reported in AIR 1939 BOM 149.

That decision laid down another important proposition of law. When rights

were acquired by prescription, like right of light, the same could not be taken away

by sanction of another building plan by the municipal corporation in exercise of its

statutory power.

Mr. Chowdhury placed the definition of ancient laws from Advanced Law

Lexicon Third Edition 2005 by P.Ramanatha Aiyar and Stroud’s Judicial Dictionary

5th Edition 1986.

He placed the report of Mr. Gordon Ingram dated 19th July, 2013 in

considerable detail. He argued that the report stated that the case law in India with

regard to light, referred to the case of Colls Vs. Home and Colonial Stores

reported in (1904) A.C. 179. One of the principles of that case which was being

relied upon was that the retained light should be “comfortable and sufficient for the

ordinary purposes of inhabitancy”. This was called the 50/50 rule.

The report stated that it had taken into account the fact that Kolkata was at a

different latitude which was 22.5 degrees north compared to London which was at

51.5 degree north.

The report referred to the 50/50 rule as follows:-

“As a general guide currently if after construction

of a proposed development more than half of a

room in the existing building has a sky factor of

less than 0.2% and a right of light exists then this

right is likely to be infringed. It is generally

appreciated that the risk of an injunction being

granted in this situation is considerable,

particularly if complaints from adjoining owners

are ignored”.

It came to the following conclusions in 6.1.2, 6.1.3 and 6.1.4 set out

hereunder:

0.2% Sky Factor Contour

6.1.2 The attached results illustrate that the light

remaining within all of the habitable spaces facing

towards the development site would not only be

substantially affected but the retained light would

generally be low. The rooms labeled R6 at each

floor level will not experience a substantial

reduction by comparison with those at R2-R3 at

each level. Those rooms in each situation will have

significantly lower levels of sky visibility and thus

significantly lower levels of available light to

these key habitable spaces. Against the Colls test,

it is likely that some of these retained levels of

light would be insufficient for ordinary habitancy.






generally be low. The rooms labeled R6 at each





available light to these key habitable spaces.

Again, I would consider that this would not meet

the standard of adequacy suggested within the

Colls case.






generally be low. The rooms levelled R6 at each





available light to these key habitable spaces.

Again, I would consider that this would not meet

the standard of adequacy suggested within the

Colls case.

Mr. Ingram remarked

“Based on the assumptions that we have

explicitly referred to above there is no doubt

whatsoever that the proposed tower. “The 42

degree will create a substantial loss of light to the

residential amenity within Fountain Court.

We understand that Fountain Court was

constructed prior to 1956 and therefore can

demonstrate a right of light.

By reference to the law of easements as applicable

in Kolkata it would appear that when a substantial loss

of light occurs, the potential of an injunction is available

to the dominant tenement. This is demonstrated not only

in terms of the overall loss of light but also by reference

to the fact that the retained levels of light are very low.

In addition to the Rights of Light method applied by

courts in the U.K I have provided the additional evidence

from the BRE Guidelines because they are adopted by

nearly every English Local Authority and are heavily

relied upon when considering impacts to neighbouring

residential properties.

By reference to the most recent judgement in

English law, namely the Heaney case as referred to

above there would be no doubt that by adopting the same

principles the judge would in my view come to the same

conclusions. That is to say that this would be a scheme

that the developer would be at very high risk of receiving

an injunction as a result of the nuisance that his

proposal would cause on the amenity enjoyed by his

neighbour.

I trust that this clarifies the position for you in

terms of offering a preliminary report on the light

enjoyed by Fountain Court”.

Mr. Chowdhury cited Liverpol & London S.P. & I Association Ltd. Vs.

M.V. Sea Success I and Another reported in (2004) 9 SCC 512, which stated that

it was to be seen when the averments in the plaint are taken to be correct, whether a

decree could be passed.

Exphar And Another Vs. Eupharma Laboratories Ltd. and Another,

reported in (2004) 3 SCC 688 para 9 also cited by Mr. Chowdhury also pronounced

a dictum on the same line. Thereafter, Ramesh B. Desai And Others Vs. Bipin

Vadilal Mehta and Others reported in (2006) 5 SCC 638 Paras 14, 15 & 16 was

relied upon by learned counsel which stated the same principle: on a reading of the

plaint a suit should be shown to be barred by law. Similar was the dictum of the

Supreme Court in Bhau Ram Vs. Janak Singh and Others reported in (2012) 8

SCC 701, cited by him.

Then Mr. Chowdhury cited William Cory & Son Limited Vs. City of

London Real Property Company Limited decided on 10th May, 1954 by Mr.

Justice Upjohn. On facts it was proved that there would be substantial diminution of

light in the plaintiff’s premises which led his lordship to hold that the diminution of

light would amount to an actionable nuisance. It was held in Ough Vs King

reported in 1967 (3) AER 859 also cited by the same learned counsel that in

determining whether there was an infringement of the plaintiff’s right to light, the

court was entitled to have regard to the locality and to the higher standard of light

required in the present day and not be confined to a rule that so long as half of a

room was adequately, lighted there was no infringement. The leading judgement of

the Court of the Appeal was delivered by Lord Denning, M.R.

Learned Counsel also cited Litchfield-Speer & Another vs. Queen Anne’s

Gate Syndicate (No-2) Ltd. (1918-1919 All ER Rep 1075) following Coll’s case.

In Wheeler and another V. J J Saunders Ltd. and Ors. reported in 1995 (2) All

England Reported 697 also cited by Mr. Chowdhury it was stated by the Court of

Appeal that where a statute directly authorised construction and use of a building it

took away common law rights. But there was a difference between direct statutory

authority and obtaining planning permission. Obtaining planning permission did not

take way such rights. An Indian authority in Kamalakanta De and Ors. Vs.

Radhaballav Kundu and Ors. reported in 84 CWN 624 was cited to show that a

sanctioned plan was no defence in a case alleging infringement of easement rights.

Common law rights were not generally affected by a sanctioned plan. On this basis

Mr. Chowdhury argued that sanction of a building plan by the Kolkata Municipal

Corporation in favour of the defendant did not affect the rights of the plaintiff.

Dhannalal and Anr. Vs. Thakur Chittarsingh Mehtapsingh reported in

AIR 1959 MP 240 and Balasaria Construction (P) Ltd. Vs. Hanuman Seva

Trust and Others reported in (2006) 5 SCC 658 Para 8 were cited by learned

counsel to emphasise that in a quia timet action no question of limitation was

involved.

Discussion and Conclusions

Although I have discussed many issues in the foregoing paragraphs, my

findings below are exclusively based on a reading of the plaint without the

annexures.

Whether in the United Kingdom or in our country Colls Vs. Home and

Colonial Stores reported in (1904) A.C. 179 is regarded as the leading authority on

the subject. Each of the law lords has not expressed the same view. Lord Earl of

Halsbury L.C delivering the first judgment referred to a case decided by Lord

Hardwicke in 1752, Fishmonger’s Co. Vs. East India Company reported in

(1752) 1 Dick 163. In that case it was spelt out that to found an action on

diminution of light, actionable nuisance had to be established. His lordship opined

that a town dweller could not expect to receive as much light as a village dweller.

The test was nuisance. Lord Macnaghten delivering the second judgment relied

upon two earlier cases decided about 75 years or so earlier than Colls, Back Vs.

Stacey reported in (1826) 2 C&P 465 and Parker Vs. Smith reported in (1832)

5 C & P 438 and approved the judgements in those cases. The ratio laid down was

that to give a right of action there must be substantial privation of light, sufficient to

render the occupation of the house uncomfortable and to prevent the plaintiff from

residing there or carrying on his accustomed business therein. This notion of

comfortable use and enjoyment of a house or business place was reiterated by Lord

Davey in the next judgment approving a decision by Lord Justice James in Kelk Vs.

Pearson reported in ( L.R. 6 Ch. 809).

The lack of uniformity in the judgements was stated by Lord Lindlay thus:

“My Lords, the result of the foregoing review of the authorities

is not altogether satisfactory. The general principle deducible

from them appears to be that the right to light is in truth no

more than a right to be protected against a particular form of

nuisance, and that an action for the obstruction of light which

has in fact been used and enjoyed for twenty years without

interruption or written consent cannot be sustained unless the

obstruction amounts to an actionable nuisance; and this often

depends upon considerations wider than the facts applicable to

the complainant himself. There are elements of uncertainty

which render it impossible to lay down any definite rule

applicable to all cases. First, there is the uncertainty as to what

amount of obstruction constitutes an actionable nuisance; and,

secondly, there is the uncertainty as to whether the proper

remedy is an injunction or damages. But, notwithstanding

these elements of uncertainty, the good sense of judges and

juries may be relied upon for adequately protecting rights to

light on the one hand and freedom from unnecessary burdens

on the other. There must be consideration for both sides in all

these controversies”.

The dictum in Colls that the retained light should be “comfortable and

sufficient for the ordinary purposes of inhabitancy” was applied in Litchfield-Speer

& Another vs. Queen Anne’s Gate Syndicate (No-2) Ltd. (1918-1919 All ER

Rep 1075) In the unreported case of William Cory & Sons Limited Vs. City of

London Real Property Company Limited decided on 10th May, 1954 the

standard which was applied was whether the diminution of light was such as to be

insufficient for “the ordinary purposes of human habitancy or business of

tenement” and amounted to an actionable nuisance. The above evidence on this

issue was admitted. In Ough Vs King reported in 1967 (3) AER 859 Lord

Denning, M.R. opined that the right to a minimum amount of ancient light

depended on the locality and that a higher standard of light was required in modern

times. This factor had to be considered in considering whether there was any

diminution of light.

If one reads the cases cited by both learned counsel, one would find that the

thread running through the English authorities have also run through the Indian

authorities. In Paul Vs. Robson reported in AIR 1914 PC 45, Chapsibhai

Dhanjibhai Danad Vs. Purushottam reported in AIR 1971 SC 1878 and In Re:

Reba Samanta reported in 1993 ILR 1 Cal 317, the Courts approved the ratio of

the all the opinions taken together in Colls Vs. Home and Colonial Stores.

Infringement of easement rights through diminution of light must result in

actionable nuisance. In all the three cases it was held that a person had a right to

enjoyment of ancient lights. Diminution of this light so as to affect the ordinary

purposes of inhabitancy or business of the tenement would confer a right of action

on a person. The occupation must become uncomfortable.

Jotindra Mohan Mitter Vs. Probodh Kumar Dutt reported in AIR 1932

Cal 249 held that an easement right exercised openly though not consciously

conferred those rights upon a person.

Rau Rama Atkile Vs. Tukaram Nana Atkile reported in AIR 1939 Bom

149 held that rights acquired by prescription like right of light could not be taken

away by the sanction of a building plan in favour of another. The common law,

unless expressly taken away by statute continues to be applicable. This was stated in

Wheeler and another V. J J Saunders Ltd. and Ors. reported in 1995 (2) All

England Reports 697 . If a statute directly authorised the construction then the

words of the statute prevailed over the common law. But when the planning

permission was granted or sanction to a building plan made, the common law still

applied with full force. This was laid down with emphasis in Kamalakanta De and

Ors. Vs. Radhaballav Kundu and Ors. reported in 84 CWN 624.

The authorities on demurer cited by both the parties enumerated above

warned the Court not to be befooled by clever drafting. They tell the Court to

carefully and meaningfully read the averments and only the averments and nothing

else to convince itself that there is disclosure of a cause of action. The assertions of

facts made in the plaint have to be taken as true. If the cumulative effect of all the

assertions is that the plaintiff will get a decree, then he has disclosed a cause of

action. Conversely, if on scrutiny of the averments one immediately comes to the

conclusion that, no case is disclosed and no relief can be granted to the plaintiff the

point of demurer succeeds.

The plaint specifically avers that Fountain Court is enjoying uninterrupted

access to air and light, on its western side, since 1956. Therefore, such uninterrupted

user has been for a period of much more than twenty years.

The defendant was proposing to construct a 240 m tall tower to the west of

Fountain Court, leaving a distance of only 67 feet.

There are specific pleadings that if construction of the defendant’s proposed

building is not stopped by this Court, it would result in substantial diminution of

light to the plaintiff’s building Fountain Court. Such would be the diminution that

residing there would cease to be comfortable. It could no longer be used for

“ordinary purposes of inhabitancy.”

The acts of the defendant commencing and continuing with the proposed

construction constitute actionable nuisance, according to the pleading. A special

reference may be made to the averments in paragraphs 10, 11, 12 and 13 of the

plaint. A reference was made to the report of Gordon Ingram Associates in

paragraph 11 thereof. A copy of the opinion of this expert is annexed to the plaint.

The relief portion of the plaint claims a declaration of such right and an order of

injunction restraining the defendant from obstructing, disturbing or interfering with

the plaintiff’s access to and use of light.

The facts as disclosed in the plaint, if proved, would invite application of the

above, English and Indian authorities. The suit, in that event, is likely to succeed.

Hence, the plaint discloses a substantial cause of action, in my opinion.

This application for summary rejection of the plaint and dismissal of the suit

fails. It is hereby dismissed.

No order as to costs.

Urgent certified photocopy of this Judgment and order, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(I. P. MUKERJI, J.)

ITC Limited vs Chowringhee Residency Private Limited.asp

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