"LEGAL OPINION & RELEVANT CASE PRECEDENTS"

 By: -        Natasha Rocha is a 4th year BBA LLB Law student, studying at  ISBR Law College affiliated to Karnataka State Law University.

CASE SCENARIO

A client approaches with the following issue:

"My neighbour has constructed a balcony that extends into my property's airspace. It blocks sunlight from my garden. I want to know what legal remedies I have under Indian law."

You are required to:

-Draft Legal opinion (800-1000 words) & Research relevant case precedents.

(i) Introduction (facts as understood)

(ii) Issues for determination

(iii) Applicable Law & Analysis

(iv) Advice/ Remedies

(v) Conclusion

A.    

LEGAL OPINION

Subject: Encroachment of Airspace and Obstruction of Sunlight due to Neighbor's Balcony Construction

I. Introduction (Facts as Understood)

You have approached us with a grievance regarding an alleged encroachment by your neighbour. As per your account:

• You are the owner of a residential property with a garden area.

• Your neighbour has recently constructed a balcony which projects beyond their plot boundary and extends into the vertical airspace above your property.

• This balcony obstructs direct sunlight from reaching your garden, affecting its use and enjoyment.

• You wish to ascertain your legal rights and possible remedies under Indian law to protect your property interests and prevent further encroachment.

The facts indicate two main aspects:

(a) physical encroachment into your airspace, and

(b) deprivation of sunlight to your property.

II. Issues for Determination

Based on the facts, the following legal questions arise:

1. Whether your neighbour’s construction of a balcony extending into your property’s airspace constitutes an actionable encroachment under Indian law.

2. Whether obstruction of sunlight to your garden can give rise to a legal claim, and under what circumstances.

3. What remedies—civil, statutory, or other—are available to you for preventing or removing such encroachment and obstruction.

III. Applicable Law & Analysis

1. Right to Enjoyment of Property and Airspace

• Under Section 7 of the Transfer of Property Act, 1882, the owner of property has rights over the property, including the column of airspace above it, subject to reasonable limitations (such as aircraft overflight in navigable airspace).

• The common law maxim "Cuius est solum eius est usque ad coelum et ad inferos"—he who owns the land owns everything up to the sky and down to the centre of the earth—has influenced Indian jurisprudence (see K.K. Dewan v. District Judge, Chandigarh, AIR 1988 P&H 34).

• Any unauthorized projection of a structure into another’s airspace constitutes trespass and may be restrained.

2. Law of Nuisance

• Private nuisance occurs when there is substantial and unreasonable interference with a person’s use and enjoyment of land (Gaunt v. Fynney, (1872) LR 8 QB 8).

• In India, the principle is recognized under tort law. If a balcony projects into your airspace or blocks sunlight in a substantial and unreasonable manner, it can constitute a nuisance.

• The Supreme Court in Rajinder Singh v. State of Punjab, AIR 2001 SC 2486 recognized the right to prevent unlawful encroachment and interference.

3. Easement Rights Relating to Light and Air

• Section 33, Indian Easements Act, 1882 provides that an easementary right to light or air can be protected if it is acquired (generally by prescription for 20 years under Section 15).

• If you have enjoyed the free passage of light to your garden for over 20 years without substantial obstruction, you may claim an easementary right to light.

• However, in the absence of such an acquired right, courts may still protect against unreasonable obstruction if it amounts to nuisance.

4. Municipal Building Regulations

• Most municipal laws (such as the Karnataka Municipal Corporations Act, 1976 or local building bye-laws) prohibit construction projecting beyond plot boundaries without sanction.

• Unauthorized balconies or projections can be subject to demolition orders by municipal authorities.

• For example, Bruhat Bengaluru Mahanagara Palike (BBMP) Building Bye-Laws require setbacks and prohibit encroachment into neighbouring plots’ airspace without consent.

5. Judicial Precedents

• Chhedi Lal v. Chhotey Lal, AIR 1951 All 199 – Court held that projecting structures into neighbour’s property is actionable trespass.

• B.K. Sharma v. Union of India, 2003 (66) DRJ 149 – Recognized that obstruction of light and air in contravention of building bye-laws is a valid ground for removal of offending structure.

• K.K. Dewan (supra) – Upheld injunction against a balcony projecting into airspace above another’s property.

IV. Advice / Remedies

Based on the above legal position, you have the following possible remedies:

1. Civil Remedies

(a) Permanent Injunction (Section 38, Specific Relief Act, 1963)

• You may file a suit for a permanent injunction before the competent civil court to restrain your neighbour from continuing the encroachment.

• If the balcony is already constructed, you can seek a mandatory injunction (Section 39) for its removal.

(b) Damages for Nuisance

• You may claim compensation for the inconvenience and loss of enjoyment caused by the obstruction of sunlight and encroachment.

(c) Suit for Declaration

• Seek a declaration that you are the lawful owner of the airspace above your property and that the projection is illegal.

2. Statutory / Administrative Remedies

(a) Municipal Complaint

• File a written complaint with the local municipal corporation (e.g., BBMP if in Bengaluru) reporting the illegal projection.

• The municipal authority can inspect the site, and if found in violation of bye-laws, issue a demolition or removal notice.

(b) Police Complaint for Criminal Trespass (Section 441, IPC)

• Although generally treated as a civil matter, in cases of willful and unauthorized intrusion, a complaint may be lodged for criminal trespass.

3. Easementary Right to Light

• If you have enjoyed uninterrupted sunlight for over 20 years, you may claim a prescriptive easement and seek injunction against substantial interference under Section 33, Easements Act.

• If 20 years have not passed, the claim will rely more on nuisance and building law violations.

4. Interim Protection

• You can apply for a temporary injunction (Order XXXIX Rules 1 & 2, CPC) to stop further construction or extension while the suit is pending.

V. Conclusion

In conclusion, your neighbour’s balcony projection into your property’s airspace constitutes actionable trespass under Indian law. It may also amount to private nuisance by obstructing the use and enjoyment of your garden, particularly if it blocks sunlight in a substantial and unreasonable way. You have legal remedies under the Specific Relief Act, Indian Easements Act, municipal building bye-laws, and common law principles.

Recommended immediate steps:

1. Document the encroachment – take dated photographs, measure the projection, collect property boundary records, and obtain a site plan.

2. Send a legal notice to your neighbour demanding removal of the encroachment within a specified period.

3. Simultaneously lodge a complaint with the municipal authority for violation of building bye-laws.

4. If no compliance, file a civil suit seeking permanent and mandatory injunction along with interim relief.

By pursuing these remedies, you can both protect your proprietary rights in the airspace above your land and ensure continued enjoyment of sunlight to your garden.

B.    

STATUTES & PRIMARY AUTHORITY

Indian Easements Act, 1882 (Sections 14–16, esp. Section 15 on prescription / 20 years) — sets out how an easement (including light and air) may be acquired by prescription and the effect of 20 years’ enjoyment.

C.    

LEADING CASES / PRECEDENTS

1.    K.K. Dewan v. District Judge, Chandigarh, AIR 1988 P&H 34

In this case, the Punjab & Haryana High Court held that the owner of land has rights over the airspace above it to the extent necessary for its ordinary use and enjoyment.

The court restrained the defendant from maintaining a balcony projecting into the petitioner’s airspace, terming it an encroachment. It emphasized that such projections, without the neighbour’s consent, amount to actionable trespass and can be removed through mandatory injunction.

 The decision reinforced that airspace rights are not unlimited but do protect against overhanging structures that substantially interfere with lawful enjoyment of one’s property.

2. Lakshmanan v. G. Ayyasamy (Madras High Court — reported 2011 on IndianKanoon)

o   Point: Reiterates the classic rule that a landowner’s rights in the airspace are limited to the height necessary for the ordinary use and enjoyment of the land; overhanging structures that affect reasonable use can found a remedy (trespass/nuisance).

o   Relevance: Supports the position that a balcony projecting into your client’s airspace (and blocking sunlight) can be actionable if it interferes with ordinary enjoyment.

3. Vaniyankandi Thazha Kuniparambil ... vs Thayithottathi Kuttiammoo (Kerala High Court / Indian Kanoon)

o   Point: Confirms acquisition of easementary rights (e.g., right to light/air) by continuous, open, and uninterrupted enjoyment for 20 years under Section 15 of the Easements Act.

o   Relevance: If your client has enjoyed sunlight to the garden openly for 20 years, this case supports a prescriptive easement claim to prevent obstruction.

4. Bernstein of Leigh v. Skyviews & General Ltd. [1978] QB 479 (English High Court)

o   Point: English authority often cited by Indian courts — holds that ownership of airspace is limited to that height which is necessary for ordinary use/enjoyment; landowner cannot claim rights to the sky at all altitudes.

o   Relevance: Useful to explain limits of air-rights claims (i.e., rights exist only up to heights relevant for ordinary use — balconies and overhangs are within that zone and so can be trespass). Indian courts refer to the same principle when balancing air-space rights.

5. Building Operation vs. Jyoti Singh & Anr. (Delhi court matter / building bye-laws enforcement)

o   Point: Courts have upheld municipal power to remove unauthorized overhangs/projections that violate building norms; overhanging balconies have been found illegal where bye-laws/setbacks are contravened.

o   Relevance: Reinforces the practical remedy of approaching municipal authorities for demolition/removal where local building bye-laws are breached.

6. Representative High Court & municipal decisions on obstruction to light & nuisance (various benches; see CaseMine/Indian-Kanoon searches)

o   Point: A running body of High Court decisions treats significant obstruction of light/air by adjoining constructions as private nuisance (remediable by injunction or removal) where there is substantial interference with enjoyment. Relief is often civil (injunction, mandatory removal, damages) and sometimes administrative (municipal demolition).

o   Relevance: These reinforce two routes: (a) civil suit (injunction/mandatory removal/damages); and (b) municipal enforcement if bye-laws violated. (Representative searches / collections: CaseMine & IndianKanoon searches on “obstruction of light and air” and “airspace/trespass”).

Short synthesis — how these authorities apply to your client

1. If the balcony physically projects into the vertical column above your client’s garden (i.e., encroachment into usable airspace) — Lakshmanan and related authorities support a claim in trespass and/or private nuisance, and courts will often grant injunctions or orders for removal where the encroachment interferes with ordinary enjoyment.

2. If the garden has enjoyed unobstructed sunlight for 20+ years — the client may have a prescriptive easement to light under Section 15 of the Easements Act; authorities like Vaniyankandi show courts enforcing such rights. Easement status strengthens entitlement to mandatory removal.

3. If the balcony violates local building bye-laws / setback requirements — municipal authorities can be asked to act (and courts have supported such administrative remedies); Building Operation v. Jyoti Singh is indicative. Pursuing both municipal complaint and civil suit is a common, pragmatic approach.

4. Limits: The ad coelum rule is not absolute — rights stop where ordinary enjoyment is not affected (Bernstein principle). That limits frivolous claims against high-altitude activity (not relevant to a low, projecting balcony).

Date: 12th August 2025.

  If you wish to use this content, proper credit must be given to both the author and this website, Please read the Disclaimer on the previous page.