Ease­ment: A le­gal right to en­joy prop­erty

This right which is recog­nised by law and is de­fined un­der the In­dian Ease­ment Act, 1882, con­fers limited re­stric­tive rights to prop­erty owners

HT Estates - - HTESTATES - Su­nil Tyagi

An owner of im­move­able prop­erty is en­ti­tled to en­joy the ben­e­fits and rights aris­ing out of his prop­erty. More­over, he/she can en­joy a few priv­i­leges from ad­join­ing land and prop­erty if his/ her own prop­erty is lack­ing in some fun­da­men­tal ways. This right is known as right of ease­ment. For ex­am­ple, A owns a cer­tain house which is sur­rounded by B’s land who is in­ci­den­tally A’s neigh­bour. A be­ing the owner of the house ad­ja­cent to B’s land has right of way over B’s land to and from his house for the ben­e­fi­cial en­joy­ment of his house.

Such right is also recog­nised by law and is de­fined un­der the In­dian Ease­ment Act, 1882 (“Act”). The right of ease­ment does not en­ti­tle the owner/ user with the pos­ses­sion and ti­tle over the other’s prop­erty but only con­fers limited/re­stric­tive right such as right of way/ pas­sage, ac­cess, light, air, sup­port etc.

The ease­ment aris­ing out of want of ba­sic ameni­ties or fun­da­men­tally re­quired for en­joy­ment of a prop­erty such as need for pas­sage, elec­tric­ity, air, wa­ter is es­sen­tially recog­nised as ease­ment aris­ing out of ne­ces­sity. While ease­men­tary rights recog­nised may vary from ju­ris­dic­tion to ju­ris­dic­tion, the fun­da­men­tal form of ease­men­tary rights recog­nised across the world and which are en­force­able are mostly ease­ments of ne­ces­sity. In­dian courts have also rou­tinely up­held the prop­erty owners right to ease­ment out of ne­ces­sity.

Re­cently in Sri Sailen­dra Nath Pal & An­other vs Neelachal Hous­ing Co-Op­er­a­tive & Ors., the Hon­ourable High Court of Cal­cutta up­held the right of ease­ment of ne­ces­sity. In the said case, the house of the ap­pel­lants was sur­rounded by the land owned by Neelachal Hous­ing Co­op­er­a­tive So­ci­ety (So­ci­ety). The ap­pel­lants had filed an ap­pli­ca­tion be­fore the com­pe­tent au­thor­ity for get- ting an elec­tric con­nec­tion to their premises. The so­ci­ety how­ever raised ob­jec­tions for lay­ing down ca­bles un­der­neath its land for sup­ply of elec­tric­ity to the house of the ap­pel­lant. The so­ci­ety fur­ther con­tended that the land sur­round­ing the land of the ap­pel­lant be­longs to the so­ci­ety and the ap­pel­lants have no right to use any por­tion of the afore­men­tioned land with­out the so­ci­ety’s con­sent. This reser­va­tion is ap­pli­ca­ble even for the pur­pose of get­ting an elec­tric con­nec­tion.

The High Court con­sid­ered the fact that the premises of the ap­pel­lants is sur­rounded by the land of the so­ci­ety from all sides and the ap­pel­lants have the right to en­joy the elec­tric­ity in their premises for ef­fec­tive use and en­joy­ment of the said premises. The Court ob­served that in order to get elec­tric­ity to the premises, the ap­pel­lants were in dire need of tak­ing ca­bles un­der neath or over sur­round­ing land of the so­ci­ety. There­fore, such a right of tak­ing ca­bles un­der­neath or over sur­round­ing land is a right of ease­ment of ne­ces­sity. The premises of the ap­pel­lants can- not be ef­fec­tively/ben­e­fi­cially used with­out such right of ease­ment. The right of ease­ment be­ing a le­gal right, the so­ci­ety can­not in­ter­fere with it and raise any ob­jec­tions re­gard­ing the same. The High Court there­fore al­lowed the lay­ing of the elec­tric ca­bles un­der­neath the land owned by the so­ci­ety for sup­ply of elec­tric­ity to the ap­pel­lant con­sid­er­ing it a right of ease­ment of ne­ces­sity.

Ev­ery owner is en­ti­tled to en­joy his right to ease­ment with­out any dis­tur­bance from any per­son. The Act pro­vides that the court of law may also grant in­junc­tion re­strain­ing the dis­tur­bance of the ease­ment. In case the hin­drance or dis­tur­bance has caused sub­stan­tial dam­age to the owner/plain­tiff, the owner hav­ing ease­men­tary right can also sue such a per­son for com­pen­sa­tion . For ex­am­ple A, as the owner of a house has a right of way over B’s land. C un­law­fully en­ters on B’s land and ob­structs A in his right of way. A may sue C for com­pen­sa­tion for the ob­struc­tion. In an­other case, if B ob­structs A in his way, A can en­force its ease­men­tary right against B as well.

In mod­ern and de­vel­oped cities hav­ing well con­cep­tu­alised mas­ter plans and colonies and re­quir­ing prior ap­proved build­ing plans the rel­e­vance of ease­men­tary rights by cus­toms, pre­scrip­tion/us­age are di­min­ish­ing. How­ever, ease­men­tary rights still con­tinue to be recog­nised and prop­erty owners should be aware of th­ese en­ti­tle­ments as they are fun­da­men­tal to en­joy­ing their prop­er­ties.

Home owners of­ten need ‘limited’ rights over other prop­er­ties to fully en­joy their own prop­er­ties

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