ADVOCATE-GENERAL OF BOMBAY Vs. HAJI ISMAIL HASHAM

JUDGEMENT

(1.) The defendant in this suit, one Haji Esmail, has put up a large building at the corner of Hornby-road and Church-gate Street. The plans were submitted to the Municipal authorities in 1907, and on the 23 November 1907 the Engineering Department informed the defendant that there was no objection to the proposed extension as shown on the amended plans, provided the work was carried out in accordance with the provisions of the Municipal Act and Building Bye-laws. The plans which were then submitted to the Municipal authorities give an all round height of 70 ft. But the permission granted by the Engineering Department is qualified and the defendant is warned that he must conform with the provisions of the Municipal Act and Building Bye-laws. Apparently at that time it had not occurred to the Municipal authorities that the proposed extension, meaning I suppose down Churchgate Street, would infringe any of those provisions or Bye- laws. The work progressed up to April 1909, when the defendant wrote to the Commissioner through his attorneys Payne & Co., requesting permission to raise his building for architectural purposes above the prescribed limit of 70 ft.. Mr. Shepherd endorsed his permission on Payne & Co.'s letter and subsequently on the 1 May 1909 wrote to the defendant granting him the required permission. Taking Payne's and the Commissioner's letters together, I think it is clear that whether on a misunderstanding or not, the Commissioner sanctioned the height of the building at 70 ft. all the way round with ornamental pillars at the south-west and south-east corners exceeding that height. The plans of the building show that it was then incontemplation to give it an all round height as well in Churhgate Street as Hornby Road of 70 ft. Dubash, one of the relators, in this suit owns a house to the east of the defendant's house and for a very long time he had been taking exception to the proposed elevation of the building. It is clear that his grievance was that his windows on the west-face of his house would be obstructed by the eastern wall of the defendant's house, should it be raised to the height of 70 ft. It is also clear that this is a purely personal matter between Dubash and Haji Esmail. For the east and west-faces of their houses respectively do not abut upon any public street, but are divided by narrow gulley in which the public have no interest. The evidence shows that Dubash contemplated suing the defendant for the protection of his ancient lights. He abandoned the idea probably because those lights were not ancient. He then associated himself with Sir Cowasji Jehangir, the other relator on the record, and put the Advocate-General in motion. The Advocate-General has brought this suit at the instance of his relators under Section 91 of the new Civil Procedure Code. He asked the Court to grant a mandatory injunction against the defendant ordering him to pull down so much of his building in Churchgate Street as exceeds the height of 49 ft., roughly for a length of 24 ft., on the ground that it is a public nuisance. The building has been virtually completed to the height of 70 ft. over the disputed portion. The corner towers which were to be carried to a greater height have not yet been erected. It is first to be noted that the suit is restricted to the extreme eastern portion of the building in Churchgate Street for a length of 24 ft. In respect of the remainder of the building, it is not alleged that any public nuisance has been committed. The foregoing facts are, I believe, undisputed.

(2.) The case raises somewhat novel and important questions and in disposing of it I will take up the various points upon which the dispute centres in much the same order they were dealt with by counsel in their concluding addresses. And I take .this opportunity of acknowledging my indebtedness to learned counsel for the parties concerned, particularly to Mr. Raikes for his deep, thoughtful and thorough argument. I will consider first the true construction of Secs.349A and 3498 of the Bombay City Municipal Act.

(3.) The plaintiff's contention is that Section 3496 is in all its terms imperative and that the Commissioner has in no circumstances the power to sanction the elevation of a building in height beyond the corresponding width of the street facing it.