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The Right To Light And Air Should Not Be Compromised In A Housing Society – In The High Court Of Judicature At Bombay

The plaintiff claimed that the respondent was building houses that hindered the air and light circulation, which is a fundamental and essential factor to anyone living in the house. Plaintiffs have filed this Appeal under Order 43 Rule 1 (r) read with Section 104 of the Code of Civil Procedure, 1908, challenging the order dated April 29, 2021, by which the learned Judge, City Civil Court, Mumbai. The Learned Judge SANDEEP K. SHINDE J pronounced this Judgement on 28.01.2022 in ANAND APARTMENT CO-OP HSG SOC. L.T.D. T.H.R. TREASURER V. AIKYA PVT. L.T.D. T.H.R. DIRECTOR.

Facts of the case – A Co-operative Housing Society is the plaintiff. It owns a building in Byculla, Mumbai, at Plot No. C.S. No. 392, Motisha Cross Lane. The Developer/Owner of neighboring plot no.391 is the first defendant. Plaintiffs claimed that defendant No. 1 began constructing a ground plus 15-story structure on Plot No. 391 in conjunction with the Planning Authority, according to avoid development authorization dated April 15, 2020, which was given in violation of construction standards. Plaintiffs claim that the Planning Authority issued the development license in violation of the Development Control and Promotion Regulations for Greater Mumbai, 2034 (“D.C.P.R.” for short) by jeopardizing urban safety requirements. Plaintiffs would claim that the building on Plot No.391 was demolished by defendant No. 1 and that the distance between the old building and the plaintiff’s building before demolition was approximately 9 feet/meters; however, according to the approved plan, the open space between their construction and the proposed building is 1.5 meters. In other words, the plaintiff claims that the Planning Authority gave development clearance and authorized plans under Section 45 of the Maharashtra Regional and Town Planning Act while jeopardizing the health and safety of residents in the area. Plaintiffs would further argue that the proposed building on Plot No.391 would infringe on its members’ access to light and air.

Plaintiffs’ requested an injunction to prevent defendant no.1 from constructing on Plot No.391, based on the basis that the development authorization issued under Section 45 of the M.R.T.P. Act was illegal since it was obtained in violation of D.C.P.R. The plaintiffs’ reliefs were denied by the learned trial court because, because development permission is a final order, its legality or correctness cannot be questioned in a civil suit, in light of Section 149 of the M.R.T.P. Act, which expressly prohibits dealing with the matters specified thereunder unless the order complained of is null.

Mr. Aggarwal would argue that, because the proposed building’s height is 54.13 meters, keeping 6 meters of open space between the southern side of the plaintiffs’ building, i.e., Plot no.392, and the proposed building was mandatory, but that, according to the approved plan, the open space between the two buildings is only 1.5 meters. Mr. Aggarwal based his arguments on the Supreme Court’s decision in Supertech Limited v. Emerald Court Owner Resident Welfare Association and Ors. Furthermore, Mr. Aggarwal would claim that the plaintiffs’ building’s residents’ fundamental Right to air and light has been harmed by failing to leave the requisite space between two buildings.

Mr. Dhakephalkar, learned Counsel for Respondent No. 1, and Mr. Godbole learned Senior Counsel for the Corporation, both refuted Mr. Agarwal’s arguments, arguing that the Development Permit in question is valid and was granted following D.C.P.R. and that it does not jeopardize fire safety or other urban safety requirements contemplated in the Regulations.

Mr. Aggarwal, learned Counsel for the plaintiffs, relied heavily on the Supreme Court’s decision in the matter of Supertech (above) to argue that the open space between the plaintiffs’ building and the proposed structure could not have been less than 6 meters. However, the observations and conclusions in paragraphs 68, 69, and 70 of Supertech (supra) were made in the context of Regulations governing the distance between two adjacent building blocks; whereas, in the case at hand, neither N.B.R. nor N.B.C. applies because D.C.P.R. is framed in the exercise of powers under Section 159 of the M.R.T.P. Act, and would govern and regulate the development of buildings.

The Learned Judge contends that Plaintiffs have not contested the Municipal Commissioner’s discretionary powers to reduce the regulations’ dimensions, nor have they appealed the decision reducing the space on the northern side of the Plot from 6 meters to 1.50 meters. There, a challenge to a development permit was not a side issue. No significant petitions have been made regarding the Right to air and light in the plaint. For all of the reasons, the decision granting development approval under Section 45 of the M.R.T.P. Act, in the opinion of the Learned Judge, complied with the Regulations. As a result of the express bar included in Section 149 of the M.R.T.P. Act, plaintiffs could not have questioned its legitimacy and validity in the complaint. As a result, the appeal is dismissed.

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Reviewed by Rangasree

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