In a recent ruling, the Jammu & Kashmir and Ladakh High Court granted relief to a resident of Budgam district, allowing him to open the windows of his house more than five years after a civil court had restrained him from doing so. The case, Ghulam Nabi Shah v. Abdul Gani Sheikh & Ors, presented three key issues before the court, including concerns about the sloping roof, drain pipes, and the alleged infringement upon the neighbour’s privacy.
Justice Atul Sreedharan, while overturning the civil court’s order, emphasized that the order failed to adequately articulate how the petitioner’s actions were violating the rights of his neighbour. The High Court asserted that the petitioner has the right to open windows on his property, even if they face towards the neighbour’s house.
Background of the Case:
The dispute originated from a civil suit filed by a resident of Budgam district against his neighbour. The three main issues presented in the civil court were:
The petitioner’s sloping roof, under construction at the time, allegedly posed a threat to the neighbour’s property as snow would cascade down.
The placement of drain pipes by the petitioner was claimed to result in water flowing onto the neighbour’s property, potentially weakening the soil.
The opening of windows toward the neighbour’s property was contested on the grounds of infringing upon privacy.
In 2018, the trial court partly allowed an application for interim orders. While permitting the petitioner to continue construction, it restrained him from opening windows facing the neighbour’s house. The court also directed precautions regarding the roof construction to prevent snowfall onto the neighbour’s property and instructed the petitioner to place drain pipes to avoid water flowing onto the neighbour’s land.
High Court Ruling:
Before the High Court, the petitioner argued that there was no violation of any law due to the construction, and compliance had been achieved regarding the roof and drain pipe directions. The neighbour did not enter an appearance, leading the Court to proceed ex-parte.
The High Court, after examining the case, recorded that the construction adhered to legal standards, and the trial court’s directives on the roof and drain pipes had been followed. Importantly, the High Court found the direction restraining the opening of windows to be violative of the petitioner’s rights.
Key Observations by the High Court:
Right to Open Windows: The High Court unequivocally stated that the petitioner has the right to open windows on his property, even if they face the neighbour’s house.
Privacy Concerns: Addressing the neighbour’s contention that the opening of windows would infringe upon privacy, the Court held that this was a matter for the neighbour to address by taking steps such as using curtains or raising a wall on their property.
Protection of Privacy: The Court emphasized that it is the responsibility of the neighbour to protect their privacy and suggested measures like using curtains or constructing a wall that would make their house invisible from the petitioner’s property.
Conclusion:
The Jammu & Kashmir and Ladakh High Court’s decision in the Ghulam Nabi Shah case is significant as it reaffirms the principle that property owners have the right to open windows on their premises. The ruling strikes a balance between property rights and privacy concerns, placing the onus on the neighbour to take measures to safeguard their privacy. As the legal landscape evolves, this case serves as a precedent highlighting the importance of clear articulation of rights and responsibilities in property disputes, especially in the context of construction-related issues.
