Jammu and Kashmir and Ladakh High Court: In the instant dispute, the respondent had raised the following objection to the petitioner constructing his house —
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the windows sought to be opened by the petitioner towards the property of the respondent would infringe on their privacy.
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sloping roof of the petitioner's house has the direction towards the respondents' house would result in the snow cascading down into the property of the respondents.
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Position of drainpipes in a manner that the water would flow on to the property of the respondents and thereby weaken the soil.
The Bench of Atul Sreedharan, J.*, while considering the afore-stated objections raised by the respondents, allowed the petition, and held that petitioner has a right of opening of windows on his property even if they are facing towards the house of the respondent.
The petitioner had begun constructing a house on a portion of his land measuring 19 marlas, when the respondents raised the afore-stated objections.
The matter reached the Trial Court wherein the application was allowed and an order favouring the respondents was issued. The Trial Court in 2018 had permitted the petitioner to continue with the construction keeping in mind the objections raised by the respondents but restrained the petitioner from opening the windows of his house towards the property of respondents.
Aggrieved by the impugned order, the petitioner's counsel qua opening of the windows of his house facing the property of the respondents, submitted that it is unquestionable right of the petitioner as long as it does not affect any easement right of the respondent.
Perusing the contentions and impugned order, the Court stated that the impugned order restraining the petitioner from opening the windows fails to explain as to what right of the respondent is being violated.
The Court further opined that contention of the respondents that it would infringe upon the privacy, does not hold water as that is an issue for the respondent to take necessary steps to ensure their own privacy. It may be by placing curtains on their windows or by raising a wall on their property which would make their house invisible from the property of the petitioner.
With the afore-stated assessment, the Court thus modified the impugned order of the Trial Court to the extent allowing the petitioner to open the windows.
[Ghulam Nabi Shah v. Abdul Gani Sheikh, 2023 SCC OnLine J&K 1070, decided on 04-12-2023]
*Order by Justice Atul Sreedharan
Advocates who appeared in this case :
Petitioner- M.M. Iqbal, Advocate
Respondent- None
