My neighbor is constructing a house adjoining to my compound wall without leaving even an inch as setback in a 30’x40′ site facing towards south. He has fixed iron grills for the ground and first floors at his property end in the east. For the second and third floors he is constructing a mesh wall. The width of this wall is 40′ and height is 25′ which is creating a problem to me as the ventilation has become less. The rain water also has no other way to flow out and invariably flows into my property. Many a times I requested him to remove the wall built for the second and third floors which is on the west side of my property. He is arrogant and has continued the construction work. What should I do?
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It appears that the type of construction in question is illegal. The neighbor cannot cover the entire area in a manner that prevents light, air or ventilation for adjoining properties. A twenty-five-foot-high mesh wall also poses a danger to your property, as it has been constructed without proper support and in violation of the sanctioned plan (if your area falls under the territorial jurisdiction of a development authority).
First and foremost, you should immediately file a civil suit seeking an injunction to prevent the defendant (your neighbor) from continuing the construction of the mesh wall. This wall not only obstructs light and air but also diminishes the value of your property. Blocking air and light constitutes illegal interference with the servient property.
In Rand H Spaces (P) Ltd. v. State of Goa, 2023 SCC OnLine Bom 2361, the Bombay High Court ruled that the complainant’s right of way/access and right to air/ventilation must not be obstructed by the respondent.
In addition to seeking an injunction, you can also claim compensation from the defendant (your neighbor) for obstructing light, air, and ventilation. Under Section 33 of the Easement Act, any disturbance of an easement grants the right to seek compensation.
Explanation III of Section 33 further clarifies that obstruction of free air is considered substantial damage if it significantly interferes with the plaintiff’s physical comfort, even if it does not harm their health. Explanation III reads as:
Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health
In the prevailing situations, you should immediately file a civil suit and also lodge a complaint with the relevant development authority or local authority against the illegal construction. Additionally, seek a temporary injunction to stop the construction during the pendency of civil suit. For more legal help please visit Kanoon India.
