P L D 1979 Quetta 90 (PLP)

"About 35 feet long portion of the house of the plaintiff adjoins the disputed construction. Due to the disputed construction, the plaintiff cannot go on the land underneath the disputed construction and cannot open a door or window in the 35 feet long wall of her house which adjoins the disputed construction ; The disputed construction is not a hinderance in the flow of water in the existing drain of the house of the plaintiff, but due to the disputed construction the plaintiff is not able to drain out the water of 35 feet long portion of her house which adjoins the disputed construc tion, except that the plaintiff may construct a drain inside her house and connect it with the existing drain situated in the lane ; and The existing windows of the house of the plaintiff are not affected by the disputed construction, but a door fixed in the 35 feet long wall of the house of the plaintiff is blocked by the disputed construction." I may observe that this report of the local Commissioner was simply ignored by the lower Court. Had it been considered perhaps situation would have been otherwise. As to the observation of the trial Court that encroachment of building was completed by respondent on 22nd February, 1964, and the suit was filed on 21‑2‑1964 therefore the plaintiff had failed to prove any encroachment of her right within time. I am afraid it is also factually not correct because Chairman Municipal Committee Quetta on an application of appellant dated 21‑1‑1964 issued a show‑cause notice to respondent for unauthorise construction (Exh. P/1 page 37) of Paper Book wherein it has been stated that :‑ "You have started unauthorised construction on unnamed lane shooting from Patel Road, Quetta. You are hereby required to demolish the newly constructed portion on the said lane within seven days from the date of receipt of this notice, falling which legal action will be taken against you at your risk and cost." It goes to show that Municipal Committee was satisfied that the encroachment was not complete. The matters do not end here. Exh. P/2 dated 13th July, 1967 is another letter by Chairman Municipal Committee Quetta to Commissioner, Quetta Division wherein he complained of illegal construction and blocking of public lane, this was in reply to appellant's application, the letter reproduced below :‑‑ "As far as the construction of the building belonging to Mr. Abdul Razzaq on Patel Road, is concerned, it is constructed with the permission of Quetta Municipality vide resolution No. 13 dated the 31st August, 1963. The construction is not unauthorised as stated by the complainant, but from the inspection of the site it is quite clear that illegal encroachment has been made by Mr. Abdul Razzaq on the lane which is used by the inhabitants of the same lane with the result that the gate of house belonging to Miss S. Mall has been closed. It is not understood how Mr. Abdul Razzaq had managed to construct a room by closing the main lane from which the complainant had very right to use it. But however Mr. Abdul Razzaq being an influencial person had managed to get the permission of the Municipal Committee to construct a room in the lane for which he had no right to do so. Now there is no alternative except to lodge a complaint in the Civil Court which the complainant has already done and the case is pending there. The Municipal Committee cannot demolish the construction for which it has already given its approval once before in 1963. The result of Civil Suit which she has lodged in the Civil Court may be awaited." Over and above Exh. P/4 dated 1‑4‑1964, Exh. P/5 dated lit April, 1964 and Exh. P/6 dated 12th May, 1964 are letters by Deputy Settlement and Rehabilitation Commissioner, Quetta Kalat Region, Quetta and an applica tion by one Muhammad Shaft Gilani wherein he issued show‑cause notice to respondent Abdul Razzaq on ground that there is some new construction made by him which has blocked the passage of premises No. 5‑11/18 which has not yet been disposed of and he is in unauthorised occupation and evaluation price has not been paid and he was directed to show cause that why the property No. 5‑11/‑:8 has been amalgamated into house No. 5‑11/12. already transferred to him. Exh. P/6 is an order .for enquiry by Deputy Settlement Commissioner, as to how respondent managed to mutate the property which was not transferred to him, that means the property in dispute to this case. All these important facts which go to the very root of this case have been ignored by the learned Court below and his observation that appellant has no cause of action to move a Court .of equity holds no water. No doubt, section 54 of Specific Relief Act provides that :‑‑ "Injunction may be granted, where there exist no standard for ascertaining the actual damage caused, or likely to be caused by invasion, where the invasion is such that pecuniary compensation would not afford adequate relief." But the trial Court was wrong in my opinion to hold that the appellant has failed to establish her legal right being encroached to entitle her to grant of injunction or that she has to show an actual or threatened invasion of such right. Mr. Yusuf Chaudhry Assistant Advocate‑General appearing for Municipal Committee argued that the impugned judgment is not based on evidence on record and is not correct. Mr. I. H. B. Hanafi Counsel for the appellant relied on Abdul Haflz and another v. Muzaffar Karim (1), a Single Bench decision wherein it was held:‑‑ "Nuisance is incapable of exact definition but for the purpose of law of tort, it may be described as unlawful interference with a person's use or enjoyment of land or of some right over or in connection with it. The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land." He next relied upon Jalal Din and another v. Ch. Abdul Qayyun and others (1977 S C M R 245) and section 55 of Specific Relief Act, 1877; wherein it was held :‑ "Appellant encroaching upon adjoining public path and raising structure thereon thereby blocking passage of light and air to adjoining property of respondent and blocking its entrance door, windows, ventilators and water‑spout‑case, held not one of interference with easement right of respondent but one of removal of nuisance resulting in injury to respondent's property and respondent entitled to ask for relief of mandatory injunction." The same judgment was relied by Assistant Advocate‑General appearing for Municipal Committee in support of his argument and submitted that encroach ment may be removed on lane belonging to Municipal Committee having a public lane for benefit of general public. Mr. Munawar Ahmed Mirza relied on Parundaung Bazar Co. Ltd. v. Ellerman's Arraccan Rice & Trading Co. Ltd. (A I R 1934 Rang. 144) wherein it was held that :‑‑ "Where the plaintiff has given notice before the defendant's building has been completed that the defendant thereby will obstruct his easement of light or air, the plaintiff is not disentitled to claim an injunction in a suit that he has brought after the building has been completed, merely because he had not filed a suit or sought an interim injunction at an earlier stage." But facts of above case are materially different than the present case, hence is of no help to counsel. Appellant filed various applications to the Chairman Municipal Committee and Commissioner, Quetta and finally filed suit for injunction and during this period the controversial was not complete. Counsel of respondent Mr. Munawar Ahmed Mirza during course of argument offered compensation to the appellant for encroachment but this submission was not only opposed by the counsel for appellant but also counsel for Municipal Committee, Quetta on the grounds that the compen sation is not adequate remedy in the present circumstances of the case because main affected part of lane belongs to the public and the residents of the area and appellant has been deprived of many amenities which she has been enjoying such early. These objections are weighty in the circumstances of this case otherwise I would have allowed appellant to be compensated. Chairman of Municipal Committee and its Engineer along with their counsel appeared in person in Court on the date of hearing. They submitted that it is necessary that illegal encroachment be removed. Seeing the position Mr. Munawar Ahmed Mirza, learned counsel for respondent stated that he be given two months time to remove the encroachment, to which counsel for other side raised no objection: For the reasons stated above I accept this appeal, set aside the impugned judgment and decree of the District Judge dated 3Q‑7‑1973 with costs throughout and direct the respondents to remove encroachment within the period of two months from the date of this judgment. S. A. H, Appeal accepted.