1980 PLP 686 (SCMR)

After recording their evidence, which the parties wished to adduce before him, the learned trial Judge, vide his judgment, dated 9th May, 1974, partially decreed the suit of the respondent to the following effect: ‑ "As stated earlier, the plaintiff has not been able to prove his case for the recovery of damages and for the removal of the petrol pump. However, I am of the view that the decrease of the height of the back wall of the petrol pump to 3 feet, which is at present 8 feet, will render the property of the plaintiff visible, without any damage to the petrol pump. 1, therefore order that the defendant should curtail the back of the petrol pump from 8 feet to 3 feet. The remaining claim of the plaintiff is dismissed. The parties are left to bear their own costs." On issue no. 3, which was evidently the central issue in the case, he expressed his agreement with the principle of law to the effect that "every person, occupies the land immediately adjoining a Highway has a private right of excess to the Highway and vice versa, and any act done without lawful justification whereby the exercise of this private right is infringed, an action is competent. This right of access to Highway by the occupier of land is distinguishable from the right of passing along the Highway. The former is a private, the latter is a public right and for the infringement of the former, action will lie". However, as to the application of the said principle of law, in so far as the facts of the case before him were concerned, he took the view that since the appellants had constructed the petrol pump in accordance with the permission granted to them by the competent authority, they cannot be said to have committed any illegality. The learned Judge also disagreed with the contention urged before him on behalf of the respondent that by the construction of the said petrol‑pump the right of frontage of his property had been blocked with the result that his property had diminished in value, holding "The right of frontage of the property does not mean that a man, who, has constructed a house earlier has been vested with a right to check all the construction which is raised in front of his property. The right of frontage is a right to have some place vacant in front of the property in order to have access to the main road. I may further clarify that no person has got a right to claim that he should be allowed to reach the main road by a way, which should be straight in (90) angle from his property to the main road. The plaintiff can reach the G. T. Road after passing through the street which exists in front of the house of the plaintiff and is about 23 feet wide". The learned District Judge, before whom the respondent went in appeal, however, disagreed with the said view taken by the learned trial Judge, and in that behalf recorded the following finding: ‑‑ "I agree with the appreciation of the legal position. The learned Senior Civil Judge, however raised two arguments, namely, that the defendants had raised construction legally and the same had not affected the right of the plaintiff‑appellant. In his discussion under Issue No. 5, the learned Senior Civil Judge had in so many words observed that the construction of the petrol‑pump had provided a sort of cover to the appellant's premises and so these now could not be properly rented out and the appellant had been deprived of the due benefits thereof. The criticism in this respect is correct and this is contradictory to the criticism made by the learned Senior Civil Judge with reference to the superstructure being not affecting the frontage rights of the appellant. The mere fact that a passage of 23 feet width has been left in between the premises of the appellant and the petrol‑pump would not amount to full frontage right which the appellant's premises have to the G. T. Road. Contradictory and contrary criticism made by the learned Senior Civil Judge in this respect on Issue No. 3 is not approved." Having recorded the said finding, the learned Judge analysed the evidence on record with care, and by taking into consideration a large number of judgments cited before him held "that the owner of a premises or even an occupier of premises adjoining the highway has the unlimited right of the enjoyment of the road from his premises, which can only be defeated by legislation. I, therefore, conclude that the appellant's right of frontage is available to him, the same has been infringed by setting up of the petrol‑pump and that the mere fact that a passage of 23 feet width has been left in‑between his premises and the petrol‑pump would not compensate him for or amount to the full enjoyment of the said right". As to the finding recorded by the learned trial Judge to the effect that the respondents had constructed the petrol pump legally, the learned District Judge, in view of the oral as well as documentary evidence consisting of a letter issued from the Office of the Deputy Commissioner, Jhelum (Exh. P. 4) written to the Secretary, Divisional Petrol Pumps Committee, Commissioner's Office, Rawalpindi, as well as another letter (Exh. P. 6) of the Superintending Engineer Highway Circle, Rawalpindi, written to the Executive Engineer, upset the said finding holding. "So what seems to have happened is that the Oil Company got a site sanctioned on the south of the road, Telephone Department raised objection to it, location was changed to the north side of the road, no proper enquiries were made, distortion of facts was made showing that there was no construction on the back side of the petrol‑pump and the Deputy Commissioner had to recommend the removal of the petrol‑pump and even the Highway Authorities had objection to it. In such circumstances the hasty con struction of the petrol‑pump would not be called legal and in such circum stances the equity is also against the respondents". The learned District Judge in the end accepted the appeal of the respondent and directed the appellants to demolish the petrol‑pump illegally constructed by them within a period of two months failing which the respondent would be entitled to get it removed at their expense. Leave to appeal in this case was granted on 5th December, 1975; as Mr. Shahzad Jahangir, the learned counsel appearing on behalf of the appellants had raised a legal question of general public importance to the effect that "the finding of the learned Single Judge that the owner of a building has a right of frontage to link his building with the main road is vague and requires consideration as to the extent of this right even if it be assumed that such aright does exist". Mr. Shahzad Jahangir in the very opening part of his address frankly conceded that the findings of fact recorded against his clients by the learned District Judge, as well as the High Court are unexceptionable. He, therefore, confined his arguments only to the legal question and in that behalf urged the following contentions :‑ (1) that in the plaint filed by him, the respondent had setup no claim to the effect that in respect of the access from his property to the main Highway he had acquired any easement right ; (2) that he had similarly failed to allege that by the construction of the petrol pump his said right of access, if any, had been rendered less beneficial ; and (3) that there was no evidence to show that by the construction of the said petrol‑pump either the passage to the house of the respondent had been blocked or the house bad in any way been impaired in its utility. We are afraid that ail these contentions, in so far as the facts of this case are concerned, are not only misconceived but even factually incorrect, as the main burden of the case set up by the respondent in the plaint was that in consequence of the illegal construction of the said petrol pump right in front of his property has not only rendered the enjoyment of his property less beneficial but also that his suffered financial loss because the tenants occupying his shops suffered in business and consequently vacated the shops in their possession. In proof of this part of this case the respondent not only appeared as his own witness but also produced two previous tenants of his shop namely Muhammad Ali (P.W.4) and Muhammad Sadiq (P.W. 5) who fully supported him. In point of fact, it was on the basis of the said evidence that the learned judge in the High Court also decreed the suit of the respondent for damages. But to this aspect of the case, we would advert a little later. The legal position, in so far as this case is concerned, has been fully discussed in Ltd.‑Col. Nawab Sir Muhammad Akbar Khan v. Provincial Government, N.‑W. F. P. A I R 1942 Pesh. I. The grievance of the plaintiff Sir Muhammad Akbar Khan in that case was that the petrol pump constructed on a portion of the Nowshera‑Mardan Road by the Burmah Shell Oil Company, who had obtained a lease of it from the Government, abutted his land situated on the road side and consequently his access to the road therefrom had been rendered less beneficial. A large number of objections were taken in the written statement by the plaintiff. But after taking into consideration a large number of decided cases, the suit of the plaintiff for mandatory injunction was decreed and the demolition of the said petrol pump was accordingly directed. The view taken by the Judicial Commis sioner's Court was that the plaintiff before it had the right to approach the road from all the points on the common boundary between his land and the Highway, and further that apart from the existence of the public nuisance arising from the petrol pump be had also a personal cause of action as a road side owner. Now this principle of law has consistently been followed by all the High Courts in Indian Sub‑Continent, and in. this behalf reference may be made to the following judgments: ‑ (1) A I R 1937 Pat. 620 ; (2) A I R 1924 All. 715 ; (3) A I R 1929 Bom. 94 ; (4) A I R 1945 Pat. 200 ; (5) AIR 1969 Andh. Pra. 136 ; and (6) A I R 1972 Mad.

386. In all these judgments, the principle of law laid down no doubt is that an owner of land/property adjoining a public Highway has a right to approach the Highway from all the points on the common boundary between his property and the road. But in view of the special features of this case, we are not called upon to decide the said wider question, as the case in hand can be disposed of on a short ground. The admitted position is that whereas the appellants had been granted permission to construct the petrol pump at Mile Stone No. 11315 on the right side of Rawalpindi‑Lahore Road, they actually constructed the same on the left side of the road at Mile Stone No. 113/6, with the result that in the process they blocked the frontage of the property belonging to the respondent as a direct consequence of which the tenants of his shops suffered in their business and so they vacated the shops. Upon these facts, and quite apart from the fa6t whether the construction of the said petrol pump amounted to a public nuisance, the respondent had indeed an independent cause of action to seek the removal of the said illegally constructed petrol pump as laid down in the aforesaid various judgments. The fact that he had pleaded to have suffered special damages in the sense that the tenants of his shops had to vacate, which in the result deprived him of the monthly rent of Rs. 300, would bring his case within the four corners of Campbell v. Mayor, Paddington Corporation (1911) 1 K B 869, in which the facts were more or less identical. In the case that plaintiff was in posses sion of a house in London from the windows of which there was an uninterrupted view of part of a certain main thoroughfare along which it was announced that a public procession was to pass. One agreed to take and pay for seats on the first and second floors of the house in order to see the procession. The defendants, a metropolitan borough, in pursuance of a resolution of their council to that effect, caused a stand to be erected across a certain highway (in which the plaintiff's house was situate) to enable the members of the council and their friends to view the procession. This stand was a public nuisance, and it obstructed the view of the main thoroughfare from the windows on the first floor of the plaintiff's house. G, when he saw the stand in process of erection, asked to be released from his contract as to the seats on the first floor, and the plaintiff, thinking it would be unfair to hold him bound, released him. Several other persons came to the house to apply for seats, but when they saw the obstruction refrained from taking seats. In an action by the plaintiff to recover damages for the wrongful interference with the use and enjoyment of her house as well as the special loss she had sus tained by the wrongful act of the defendants, the view taken by the learned Judges was "that a right to have a view or prospect from the windows of a house is not a right recognized by the law ........................ But in the present case the act of the defendants, apart from depriving the plaintiff of the view or prospect from her windows, was a wrongful act on independent grounds, and not merely in that it deprived the plaintiff of the view or prospect from her house. The defendants begin with an act wrongful in itself ; if such an act is the source and origin of loss to the plaintiff, then, provided the loss is sufficiently closely connected with the Wrongful act, it is a loss for which the plaintiff is entitled to redress". It would thus be seen that this judgment being on all fours with the facts of‑the case in hand must clinch the issue in favour of the respondent. In fact, the learned counsel for the appellants frankly conceded that he was unable to distinguish the said judgment, in these circumstances, there fore, no exception could be taken to the judgment of the learned District Judge, as well as of the High Court. Adverting now to the judgment of the High Court by which the decree for damages has been awarded to the respondent, Maulvi Sirajul Haq, the learned counsel for the respondent frankly conceded that the same cannot be sustained firstly, because neither the learned trial Judge nor the learned District Judge had decreed his suit in that behalf ; and secondly, because the High Court seems to have misconceived the factual position by erroneously observing as if the appellants had not denied the quantum of damages in their written statement. In this view of the matter, Maulvi Sirajul Haq further conceded that to this extent the judgment of, the High Court will have to be set aside. The result, therefore, is that this appeal fails and is dismissed: But as to the extent of damages awarded to the respondent by the High Court, it succeeds and consequently that part of the judgment of the high Court is set aside. In view of the partial success of the parties herein, however there would be no order as to costs, but three months' time is allowed to the appellants to demolish the petrol pump failing which the respondent would be at liberty to do so at the cost of the appellants. Appeal dismissed,