November 21, 2024

Have you ever thought how a building comes up right beside yours, blocking your light and air? This is because in India, as in most other countries in the world, we do not have a specific right to light and air law. These matters are governed by the Indian Easements Act and British and Indian jurisprudence. Since it is very difficult to prove in court the exact quantum of light or air that will diminish as a result of the new construction â€" and also that this diminished light and air will make living in the old building uncomfortable â€" it is very difficult to stop such constructions in India.

The Kolkata High Court recently refused to grant an injunction to stop the construction of a high-rise coming up close to an old building. The petitioner had prayed for an injunction on the grounds that since it was enjoying unobstructed light and air for more than 20 years, as per the Indian Easements Act, it was entitled to continued enjoyment of the same without obstruction, which the new construction would restrict. The Court refused the injunction stating that the benefit accruing to the petitioner would be much less than the loss accruing to the defendant if the construction was stopped at this stage.

In taking this decision, the court was mainly guided by the fact that the petitioner was unable to prove decisively how and by what quantum the light would diminish. The report of the expert it submitted was found deficient by the Court since the expert did not conduct field experiments or tests. The Court considered it an expert opinion that should be subject to cross examination. The Court also found that only one side of the old building would get diminished light and it was not proved that such diminished light would make living uncomfortable. The Court also found that the petitioner had unnecessarily delayed filing for injunction and had allowed the construction of the new building to advance to a stage where granting injunction now would be unfair.

The Court left these matters for the trial court to judge, while citing that it was left to judicial discretion whether to grant injunction or not. The case has all the ingredients to make a path breaking and it is hoped that it reaches the highest court of the land for some clarity on the issue. The issue is still being debated all over the world. In the UK, from where our law has devolved, the Law Commission is studying the need to have a separate right to light act. In the US a Florida judge had categorically said that “there is no legal right to air and sunlight”, while in Denmark the law clearly specifies the amount of light that should always be available to apartments in buildings. While it is too early to say whether this case will also make Indian lawmakers to think of having such a law, it seems that it will definitely raise a debate on the issue.