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Wrongs to easement : Right of privacy

A right to undisturbed privacy is not recognized by the English law. On this point Kindersley, V. C, said : With regard to the question of privacy, no doubt the owner of a house would prefer that a neighbour should not have the right of looking into his windows or yard, but neither this Court, nor a Court of law, will interfere on the mere ground of invasion of privacy; and a party has a right even to open new windows, although he is thereby enabled to overlook his neighbour's premises, and so interfering perhaps with his comfort.1) And Blackburn, J., has remarked : It is quite true that the opening of a new window looking into the grounds of another may not only annoy, that neighbour, but may often affect the value of the property. But the law of England considers that no injury.2)

Indian law

Under the Indian Easements Act (s. 18, ill. (b) ) a right to privacy may be acquired in virtue of a local custom. Such an easement founded as it is on the oriental custom of secluding females is of much importance in India. It is recognised generally by the countries whose system is founded on the Civil law, and the Law Commissioners who framed the Easements Act have also recognised it.

In Anguri and Others v. Jiwan Dass and Another3) the Hon'ble Supreme Court of India held that: “As far as the question of opening of new windows is concerned, it is open to the defendants to use their property in any manner permitted by law; and hence they cannot be restrained from opening new windows, as no customary right of privacy appears to have been pleaded or proved. This position is not disputed by the plaintiffs. It is, however, equally clear that, if the defendants open any new windows, the plaintiffs are fully entitled to block the same by raising the height of their walls and the defendants are not entitled to break or damage the said walls or any portion thereof so as to remove the obstruction to their new windows.”

The Bombay High Court has held that in accordance with the usage of Gujarat, an invasion of privacy is an actionable wrong, and that a man may not open new doors or windows in his house, or make any new apertures, or enlarge old ones, in a way which will enable him to overlook those portions of his neighbour's premises which are ordinarily secluded from observation, and so intrude upon his privacy.4) This right of action is not altered by the fact that a public road runs between the dominant and the servient tenements.5) But, where a window opened by the defendant commanded a view, not of the plaintiff's private apartments, but of an open courtyard outside his house, it was held that there had been no invasion of the plaintiff's privacy which would entitle him to have the window closed.6) And in a case from Dharwar the High Court has ruled that to establish such an exceptional privilege, as is customary in this respect in the towns of Gujarat, evidence of the most satisfactory character is necessary. In this case the plaintiff opened a new window in his house, which rendered the defendant's house less private than before; it was held that the plaintiff was not guilty of any tortious act, and should not be debarred from improving his own house, though the effect might be, to some extent, prejudicial to his neighbour.7) The right of privacy does not arise from prescription but is a creation of custom which has been recognised as such in Gujrat by judicial decisions. It is limited to particular apartments secluded from general observation.8)

The Calcutta High Court has laid down that to hold that privacy is a right, and the invasion of it an injury, would lead to the most alarming consequences to the owners of house property in towns. This right cannot exist at any rate independently of prescription or grant or express local usage.9) See also Ramlal v. Mohesh. Privacy is not an inherent right of property to ancient lights and air.10)

The Madras High Court has decided that the invasion of privacy by opening windows is not treated by the law as a wrong for which any remedy is given.11) The person whose privacy is so invaded has it in his power to build on his own ground so as to shut out the view from the offending window.12) The Allahabad High Court has held that a customary right of privacy, under certain conditions, exists in India and in the North-Western Provinces, and is not unreasonable, but merely an application of the maxim sic titere tuo ut alienum non laedas and aedificare in tuo proprio solo non licet quod alteri noccat. A substantial interference with such a right, where it exists, if without the consent or acquiescence of the owner of the dominant tenement, affords such owner a good cause of action. Every case must depend on its own facts. The primary question must in all cases be : Does the privacy in fact and substantially exist, and has it been and is it in fact enjoyed ? If it were found that no privacy substantially exists or is enjoyed, there would be no further question in an ordinary case to decide. If, on the other hand, it were found that privacy did substantially exist and was enjoyed, the next question would be : Was that privacy substantially or materially interfered with by acts of the defendant alone without the consent or acquiescence of the person seeking relief against those acts?13) It has further decided that the right of privacy is a right which attaches to property and is not dependent on the religion of the owner thereof.14)

The Chief Court of Punjab has decided that a right of privacy exists in the Province of Punjab, and if opening of new windows invades such right an action may be brought.15)

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