Can’t book neighbours for mischief in ‘obstructing fresh air and light’: Bombay High Court

Mumbai: The Nagpur bench of the Bombay High Court recently turned down a plea of a couple seeking right to fresh air and light. The couple had dragged their neighbours to the HC after they constructed a house on the adjacent plot. A bench of Justice Mangesh Patil was moved by a Latur-based couple seeking injunction against their neighbours, who had constructed a house on the plot adjacent to their house.

According to the couple, the newly constructed house obstructed their access to fresh air and light. The couple accordingly sought action against their neighbours under the provisions of the Indian Penal Code (IPC) which punish offences of mischief.

Subsequently, a Magistrate court had issued process against the neighbours and the said process was challenged by the neighbours before a sessions court. The Sessions court had quashed the orders of the Magistrate. Accordingly, the couple petitioned the bench of Justice Patil challenging orders of the Sessions court.

Before the HC, the couple argued that their right to air and light and also to their property has been materially affected by the construction carried out by the neighbours over the adjoining plot and their such act constitutes mischief since it materially affects and diminishes value of their property. Having heard the contentions, Justice Patil said, “As can be seen from the definition, the act of mischief as alleged must be invoked if the value of the property diminishes.

Accepting the allegations as it is, the neighbours have carried out construction over their own property albeit it is being alleged that it is illegal.”“There is no question of any encroachment. The only grievance being made by the couple is that by virtue of such construction his right to have fresh air and light from that side of his property has been obstructed,” Justice Patil said.

The bench further said that one cannot comprehend as to how this act (of neighbours) would constitute mischief. “The neighbours have not caused any destruction or change in the property of the couple so as to destroy or diminish its value or utility.

In view of such state of affairs, the so called right of the couple, which has not yet crystalised cannot be said to have been mischievously destroyed or obstructed by the neighbours by carrying out construction over their own plot,” Justice Patil held.

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