judgement:
ition (Civil) Nos.1003 1005 of 1984.
(Under Article 32 of the Constitution of India ).
PG NO 626 R.K. Garg, Pankaj Kalra and P.K. Jain for the Petitioners.
V.C. Mahajan, Ms. A. Subhashini, C.V. Subba Rao, Grish Chander, S.K. Mehta, Dhruv Mehta, Aman Vachher, S.M. Sarin and Jagannath Goulay (N.f.) for the Respondents.
The Judgments of the Court was delivered by VENKATARAMIAH, J. People belonging to the Scheduled Castes and the Scheduled Tribes and to other weaker sections of society in India are the zealously protected children of the Indian Constitution.
Article 46 of the Constitution provides that the State shall promote with special care the educational and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
While clause (1) of Article 15 of the Constitution provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste.
sex, place of birth or any of them, clause (4) of that Article provides that nothing in the said Article or in clause (2) of Article 29 of the Constitution shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes and the Scheduled Tribes.
Simlarly, while clause (4) of Article 16 of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and clause (2) of the said Article provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State, clause (4) of the said Article provides that nothing in that Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
Article 330 and Article 332 of the Constitution provide for reservation of seats for the Scheduled Castes and the Scheduled Tribes in the Lok Sabha and in the Legislative Assemblies of the States till such period as is provided in Article 334 of the Constitution.
Article 335 of the Constitution, which is relevant for purposes of this case, provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
PG NO 627 The present case is, however, one in which a concession which had been extended to the employees belonging to the Scheduled Castes and the Scheduled Tribes by way of reservation of vacancies at the stage of promotion has been withdrawn in a rather concealed way.
Petitioners 1 and 2 in this Writ Petition are the P & T Scheduled Caste/Tribe Employees ' Welfare Assocation (Regd.) Delhi and the Federation of all India Scheduled Castes & Scheduled Tribes Employees P & T Department, New Delhi and Petitioner 3 is an employee in the Posts & Telegraphs Department.
By the letter bearing No. 27/2/71 Estt.
(SCT) dated 27.11.1972 issued by the Department of Personnel, the Government communicated its policy regarding the reservations for the Scheduled Castes and the Scheduled Tribes in posts filled by promotion/promotions on the basis of seniority subject to fitness.
The said policy was adopted by the Government in supersession of the orders contained in an earlier Government Order dated 11.7.1968.
Under the said policy a reservation of 15 per cent of vacancies was made for the Scheduled Castes and 7 1/2 percent for the Scheduled Tribes wherever promotions were to be made on the basis of seniority subject to fitness, in appointments to all Class I, Class II, Class III and Class IV posts in grades or services in which the element of direct recruitment, if any, did not exceed 50 per cent.
In order to implement the above reservation the Government directed the appointing authorities to maintain a separate 40 point roster to determine the number of reserved vacancies in a year in which points 1,8, 14, 22, 28 & 36 had to be reserved for the Scheduled Castes and points 4, 17 and 31 had to be reserved for the Scheduled Tribes.
Detailed instructions were issued to the appointing authorities to make promotions in accordance with the directions contained therein so that members belonging to the Scheduled Castes and the Scheduled Tribes could have an advantage of getting promotion to a higher cadre much earlier than the employees who did not belong to the Scheduled Castes and the Scheduled Tribes.
By the letter of the Department of Personnel & Administrative Reforms bearing O.M. No. 8/11/73 Estt.
(SCT) dated 12.9.
1974 addressed to all the Ministries further instructions were issued with regard to the reservation of the Scheduled Castes and the Scheduled Tribes in posts filled by promotions/appointments to Selection Grade posts directing reservation of 15 per cent of vacancies for Scheduled Castes and 7 1/2 per cent for Scheduled Tribes.
As regards the Posts & Telegraphs employees working under the P & T Board, the Ministry of Communications by it letter No. 31 19/74 PE I dated 15.6.
1974 gave certain further directions with regard to the filling up of posts by promotion conferring certain other advantages on persons belonging to the Scheduled Castes and the Scheduled Tribes.
The policy PG NO 628 of reservation contained in the above three Government letters was continued till the year 1983 in the Post & Telegraphs Department.
It would appear that in the year 1983 an agreement was arrived at between the Ministry of Communications and certain associations of employees working in the Posts & Telegraphs Department and as a consequence of the said agreement a fresh order relating to the policy of promotion to be adopted in the Posts & Telegraphs Department was issued in supersession of the scheme of reservation, which was being followed till then.
The said New policy, the validity of which is challenged before us, is contained in the letter bearing No. 31 26/83 PE l dated 17.
1983 addressed to all heads of circles.
Under this new policy it was decided that with effect from 30.11.1983 all officials belonging to basic grades in Group C and Group D to which there was direct recruitment either from outside and/or by means of limited competitive examination from lower cadres, and who had completed 16 years of service in that grade would be placed in the next higher grade.
This policy, it is alleged, was introduced in order to remove the effects of stagnation of employees in a particular grade for nearly 20 to 23 years without being promoted to higher grade.
It would appear that under the scheme which was prevailing prior to 30.11.1983 it was possible for members belonging to the Scheduled Castes and the Scheduled Tribes to secure promotion to the higher cadre within a period of 10 to 12 years while the other employees had to wait for nearly 20 to 23 years.
Thus an advantage had been conferred on the employees belonging to the Scheduled Castes and the Scheduled Tribes since they could secure promotion Within a shorter period.
Under the new policy irrespective of the fact whether an employee belonged to the general category or to the category of the Scheduled Castes and the Scheduled Tribes he would gory of the Scheduled Castes and the Scheduled Tribes he would be able to get promotion to the higher cadre on the completion of 16 years.
Thereby the comparative advantage which the members belonging to the Scheduled Castes and the Scheduled Tribes were enjoying was taken away and all the employees, namely, the employees belonging to the Scheduled Castes, the Scheduled Tribes and to the other categories were placed at par.
However, clause 6 of the said letter dated 17.12.1983 which contained the new policy reads thus: "6.
For promotions under the time bound one promotion scheme the normal orders relating to reservation for SC/ST communities will not apply unless any specific order in this regard is subsequently issued.
" PG NO 629 It is admitted that no specific order has been issued by the Government pursuant to clause 6 so far.
But the earlier orders providing for reservation in favour of the Scheduled Castes and the Scheduled Tribes were made inapplicable.
Aggrieved by the action taken by the Government in implementing the policy contained in letter dated 23.
l983, which had the effect of depriving the members belonging to the Scheduled Castes and the Scheduled Tribes of the advantage which they were enjoying, the petitioners have filed this petition questioning the said action.
The petition is resisted by the respondents.
It is urged on behalf of the Government that the 'time bound one promotion scheme ' contained in the letter dated 23.12.83 was advantageous to all the employees since all of them would get automatically promoted to a higher cadre on completing 16 years of service in a cadre and that it had been issued with the consent of the Federations of Employees of the Posts & Telegraphs Department.
It is not disputed that in many of the other departments of the Union Government the scheme of reservation of posts for the Scheduled Castes and the Scheduled Tribes is in vogue in cases of promotions from the lower grades to the higher grades when they are done on the basis of seniority subject to fitness and under the said policy the persons belonging to the Scheduled Castes and the Scheduled Tribes working in the other departments have been conferred an extra advantage which was not available to the Candidates belonging to other categories and that in the Posts & Telegraphs Department also the employees belonging to the Scheduled Castes and the Scheduled Tribes were enjoying a similar advantage before 30.11.1983 on which date the policy contained in the letter dated 23.12.1983 come into force.
Even the letter dated 23.212.1983 while it sets at naught the normal orders relating to reservation for the Scheduled Casts and the Scheduled Tribes in the Posts Telegraphs Department in force in the other department provides for the issue of specific orders by the Government under which the members belonging to the Scheduled Castes & the Scheduled Tribes could gain some extra advantage.
Admittedly no such order has been issued till today.
The petitioners have prayed that a direction should be issued to the Government to issue specific order conferring on them such an extra advantage.
We feel that the claim made by the petitioners is fully justified in view of the fact that similar advantage is being enjoyed by persons belonging to the Scheduled Castes and the Scheduled Tribes in other Departments and only they have been deprived of it.
Such deprivation violates the equality clause of the Constitution.
While it may be true that no writ can be issued ordinarily competing the Government to make reservation under Article 16(4) which PG NO 630 is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of Government discriminatory and invite intervention by this Court.
One of the methods by which the Government can confer some extra advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in cases of this nature where promotion to higher cadre is a time bound one is to direct that the employees belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on completion of a shorter period of service than what is prescribed for others.
In this particular case it is open to the Government to direct that while all others would be entitled to be promoted to the higher cadre on completion of 16 years of service, the members belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on completion of, say, 12 or 13 years of service.
There may be other methods of achieving the same result.
The claim for conferment of some extra advantage on the Scheduled Castes and the Scheduled Tribes employees working in the Posts & Telegraphs Department which may be commensurate with the extra advantage which members belonging to the Scheduled Castes and the Scheduled Tribes are enjoying in the other departments of the Government of the maintenance of efficiency in the service appear to be a reasonable one.
In what way it should be done is a matter left to the discretion of the Government.
This should be decided by the Government taking into consideration all aspects of the case.
We therefore, issue a direction to the Government of India to issue an order under clause 6 of the letter dated some additional advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in the Post & Telegraphs Department commensurate with similar advantages which are being enjoyed by the employees belonging to the Scheduled Castes and the Scheduled Tribes in the other departments of th Government of India.
The Government shall issue such an order accordingly within four months from today.
Any order that may be issued by the Government shall operate prospectively.
All promotions that have been made so far pursuant to the policy contained in the letter dated 23.12.1983 and that may be made hereafter till the date on PG NO 631 which the direction to be issued by the Government under clause 6 comes into operation,shall however remain undisturbed.
This petition is accordingly allowed.
No costs.
G.N. Petition allowed.

summary/full:
In supersession of its earlier order issued in I968, the Union Government communicated in I971 its policy regarding reservation for the Scheduled Castes and the Scheduled Tribes in post filled by promotion on the basis of seniority subject to fitness.
Whenever such promotion were to be made in appointments to Class I, Class II, Class III and Class IV posts in grades or services in which the element of direct recruitment, if any, did not exceed 50 per cent, 15 per cent and 7/1 per cent of the vacancies were to be reserved for SCs and STs respectively.
Detailed instructions were issued to the appointing authorities to make promotions accordingly so that the SCs and STs could have an advantage of getting promotion to a higher grade much earlier than the others.
In 1974, further instructions were issued with regard to reservation of Scheduled Castes and Scheduled Tribes in posts filled by promotionts/appointments to Selection Grade Posts directing reservation of 15 per cent/7 1/2 percent of the vacancies for SCs/STs.
PG NO 623 PG NO 624 In the Posts and Telegraphs Department, the aforesaid policy continued till 1983 when an agreement was arrived at between the Ministry of Communications and certain associations of Post and Telegraphs employees, and a fresh order relating to the policy of promotion to be adopted in the P & T Department was issued in supersession of the scheme of reservation followed till then.
Under the policy, all official belonging to basic grades in Group C and Group D to which there was direct recruitment either from outside and/or by means of limited competitive examination from lower cadres and who had completed 16 years of service in that grade would be placed in the next higher grade.
Whether an employee belonged to general category or to the category of SCs and STs, he would get his promotion on the completion of 16 years ' service.
Under the previous scheme it was possible for the SC and ST employees to secure promotion within a period of 1() to 12 years, while the other employees had to wait for nearly 20 to 23 years.
Thus, the comparative advantage enjoyed by employees belonging to SCs and STs was taken away.
No specific order was issued by the Government regarding reservation for SCs and STs, though clause 6 of the new scheme provided for it.
But the earlier orders providing for reservation for SCs and STs were made inapplicable.
Aggrieved by the new policy, which deprived the SC and ST employees of the advantage which they were enjoying, the petitioners approached this Court by way of the present writ petition.
Petitioners prayed for a direction to the Govt.
of India for issuing an order under clause 6 of the new scheme conferring such additional advantage to them as are enjoyed by SC and ST employees in other departments.
The Respondent contended that the new scheme was advantageous to all the employees since all of them would get automatic promotion after completing 16 years of service in a cadre and that it was done with the consent of the Federations of Employees of the P & T Department.
Allowing the writ petition, HELD:1.The advantage of promotion within a shorted period is being enjoyed by persons 'belonging to the Departments and only the petitioners have been deprived of it.
Such deprivation violates the equality clause of the PG NO 625 Constitution.
While it may be true that no writ can be issued ordinarily compelling the Government to make reservation under Article 16(4) which is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and Scheduled Tribes in the Posts and Telegraphs Department are deprived of indirectly, the advantage of such reservation which they were enjoying earlier, while others who are similarly situated in the other departments are allowed to enjoy it, make the action of Government discriminatory and invite intervention by this Court.
[629G H; 630A B] 2.
One of the methods by which the Government can confer some extra advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in cases of this nature where promotion to higher cadre is a time bound one is to direct that the employees belonging to the Scheduled Castes and the Scheduled Tribes may be promoted to the higher cadre on completion of a shorter period of service than what is prescribed for others.
In this particular case it is open to the Government to direct that while all others would be entitled to be promoted to the higher cadre on completion of 16 years of service, the members belonging to the Scheduled Castes and the Scheduled Tribes may nay be promoted to the higher cadre on completion ot, say 12 or 13 years of service.
There may be other methods of achieving the same result.
In what way it should be done is a matter left to the discretion of the Government.
This should be decided by the Government taking into consideration al aspects of the case.[630B F] 3.
The Government of India shall within four months issue an order under clause 6 of the letter dated 23.11.1983 conferring some additional advantage on the employees belonging to the Scheduled Castes and the Scheduled Tribes in the Posts & Telegraphs Department commensurate with similar advantages which are being enjoyed by the employees belonging to the Scheduled Castes and the Scheduled Tribes in the other departments.
Any order that may be issued by the Government shall operate prospectively.
All promotion that have been made so far pursuant to the policy contained in the letter dated 23.11.1983 and that may be made hereafter till the date on which the direction to the issued by the Government under claus 6 comes into operation, shall however, remain undisturbed.
[630 F H;631A]


judgement:
Civil Appeal No. 532 of 1986.
From the Judgment and Order dated 6.9.
1985 of the Punjab and Haryana High Court in R.S.A. No. 1786 of 1985.
B.R. Iyengar and N.K. Agarwala for the Appellants.
Ms. Lilfy Thomas for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
The Appellants before us were the defendants and the two Respondents were the plaintiffs in the Civil Suits Nos. 294 of 1979 and 421 of 1979 respectively, in the court of the learned Sub Judge, Palwal.
Both these suits raised common questions of fact and law and were decided by a common judgment.
We shall refer to the parties by their original descriptions in the suit.
There is no controversy about most of the facts relevant for the disposal of this Appeal.
The plaintiffs are the owners of two houses adjacent to each other and also to the property of the defendants.
The defendants had a structure on their own property.
On the roof of that structure they had made three morries (narrow outlets for the outflow of dirty water).
These morries opened towards the property of the plaintiffs.
In an earlier suit, the defendants had obtained an injunction directing the plaintiffs not to block the flow of dirty water from the said three morries.
The defendants were, however, permitted to fix up pipe lines of a suitable size at their PG NO 738 own costs to receive the said water and carry it to a nali (drain) towards the East of their houses.
The plaintiffs complied with the terms of the decree granting the said injunction.
The defendants then raised the height of the first floor of their structure by three feet and on a part of the terrace over the first floor they constructed two additional storeys.
In raising the height of the roof over the first floor, the defendants blocked the three original morries and opened three new morries on the roof over the first floor and opened six more morries on the respective terraces over the second and third floor in the new construction.
They opened all the morries in such a way that the outflow of water from all the said morries was directed towards the properties of the plaintiffs.
The defendants also constructed new windows which opened towards the houses of the plaintiffs.
The plaintiffs blocked these new windows by raising the height of their respective walls and the defendants claimed the right to break these walls which obstructed the view from their new windows.
On these facts, the plaintiffs filed the said suits in the court of the learned Sub judge praying for a permanent injunction restraining the defendants from using the said new morries and from opening the said windows.
The plaintiffs claimed that the outflow of water from the said morries damaged their properties.
During the course of hearing the suits, there was a spot inspection by a learned Sub Judge in the end of May 1979.
In that inspection, it was noted that there were no signs of the of morries and that six now morries were opened by the defendants on the upper storeys newly constructed by the defendants and that six new windows were also constructed by the defendants on their upper storeys.
The plaintiffs claimed that by closing the old morries, the defendants had lost their right of easement to discharge water through their old morries and, in any event, as six more morries in all were constructed in their building by the defendants they had increased the burden of easement on the properties of the plaintiffs.
The defendants had no right to do this.
The plaintiffs further contended that they were entitled to block the new windows opened by the defendants by raising the height of their walls and that the newly constructed windows had affected their right of privacy.
The learned Sub Judge granted the injunction as prayed for by the plaintiffs.
The defendants filed an appeal which was disposed of by the learned Additional District Judge II, Faridabad.
The learned District Judge in the course of his judgment has pointed out that there is no street or narrow gali between the properties of the plaintiffs and the defendants as appears to have been in existence at the time when the earlier suits where the defendants had secured an injunction as stated earlier, was decided.
He has further pointed out that the nine new PG NO 739 morries opened by the defendants are causing heavy damage and loss to the respective houses of the plaintiffs.
The Second Appeal preferred by the defendants to the High Court of Punjab and Haryana was dismissed in limine.
The present Appeal has been preferred by the defendants against the judgment of the High Court by Special Leave granted under Article 136 of the Constitution.
Mr. Iyenger, learned Counsel for the Appellants, has made two submissions before us.
His first contention was that the owner of an easement was entitled to after the mode and place of enjoying the easement as laid down in Section 23 of the .
The second contention was that the right of privacy cannot be established except by pleading and proof of a customary right which has not been done by the plaintiffs in the present case.
Coming to the first submission, we propose to proceed on the assumption that the defendants had acquired the easement to discharge water from the original roof of his house through the three morries which were previously in existence.
The defendants have, however, not merely altered the position of the said three morries by raising the height of his first storey and the roof thereon but have opened six new morries so that in the place of three old morries, there are at present nine morries in existence.
Now, it is a matter of commonsense that the outflow of water from the nine morries would be larger than the outflow of water from the three old morries and hence, it must be held that the burden of the easement has been increased by the action of the defendants.
Section 23 of the on which reliance was placed by Mr. Iyenger, in terms, provides that the dominant owner may, from time to time, alter the mode and place of enjoying the easement provided that he does not thereby impose any additional burden on the servant heritage.
In the present Appeal before us, as additional burden on the property of the plaintiffs has been imposed by the action of the defendants, the provisions of the said section cannot come to the aid of the defendants.
It was then contended by learned Counsel that, in any event, three of these morries, namely, on the roof of the first floor, which has been raised by three feet should be directed to be unobstructed because the burden of the easement could not be said to be increased by the same.
There is no basis for granting such relief.
The original three morries are no longer in existence and out of nine morries opened by the defendants, it is not possible to earmark any three morries as exactly corresponding to the old morries, It was for the dafendants, if so advised, to have taken the plea that the three ,on the roof of the first storey merely constitute a change in the or place of enjoyment of the easement which the defendants PG NO 740 had.
The defendants have, however, not done any such thing and hence we find that the question, as to whether the three morries on the roof of the first floor would not add to the burden of easement and could be said to be only corresponding to the three old morries, has not been considered by the courts below.
It is not open to the defendants to raise such an issue at this stage.
Moreover, permitting the defendants to take up such a plea would involve remanding the case for further evidence.
In the present case, the conduct of the defendants in opening nine morries in the place of three morries and there by damaging the properties of the plaintiffs is such that no discretion need be exercised in their favour.
In fact, in our view, the conduct of the defendants is such that no interference is called for at their instance in an Appeal by Special Leave granted under Article 136 of the Constitution.
Apart from what we have stated earlier, as pointed out by the learned Additional District Judge in his judgment, when the defendants raised the height of the first floor and put up additional construction on a part of the terrace of the first floor, it was quite possible for them to make arrangements to take the water from their morries by pipe lines towards the East of their house so that it could be discharged in the drain or a nali on that side.
Instead of doing this, the defendants have opened nine morries as stated aforesaid towards the houses of the plaintiffs and caused damage to those houses.
There is, therefore, no reason why the discretionary jurisdiction under Article 136, should be exercised to help such parties Mr. Iyenger drew our attention to the decision in Harve vs Walters and two other decisions.
The ratio of these decisions are of no application to the present case before us because in these cases, it was found that by the alteration of the mode or place of enjoyment of easement, the burden on the servient heritage was not increased whereas, as pointed out earlier, that is not the situation in the case before us.
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 the walls and the defendants are not entitled to break or damage the said walls or any PG NO 741 portion thereof so as to remove the obstruction to their new windows.
In the result, the Appeal is dismissed, save and except, that the injuction against the defendants restraining them from opening new windows is vacated and is substituted by an injunction restraining the defendants from breaking or in any manner damaging or interfering with any of the walls put up by the plaintiffs or which may be put up here after by the plaintiffs on their respective properties to block the new windows opened by the defendants.
As far as the miscellaneous Petitions are concerned, there will be no order on the Contempt Petition.
The interim stay granted by this Court shall stand vacated.
There will be no order as to costs in these petitions.
The Appellants (defendants) shall Pay to the Respondents (plaintiffs) the costs of the Appeal.
R.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The respondents are the owners of two houses adjacent to each other and also to the property of the appellants.
From the roof of the appellants 'structure three morries (narrow outlets) opened towards the property of the respondents.
Subsequently, the appellants raised the height of their existing structure and constructed two additional storeys on it.
At the same time, the appellants after blocking the three original morries opened nine new morries, three on each floor.
The appellants also opened new windows.
The respondents however blocked these windows by raising the height of their walls.
The respondents filed suits praying for a permanent injunction restraining the appellants from using the new morries and from removing the obstruction to the windows.
The Sub Judge granted the injunction.
The appellants ' appeals before the District Judge and the High Court failed.
Before this Court the appellants contended that (1) that the owner of an easement was entitled to alter the mode and place of enjoying the easement and (2) no customary right of privacy had been pleaded or proved by the respondents.
Dismissing the appeal, it was, HELD: (1) Section 23 of the Indian Easement Act, 1882 provides that the dominant owner may, from time to time, alter the mode and place of enjoying the easement provided that he does not thereby impose any additional burden on the servient heritage.
In this case the burden of easement had been increased by the action of the appellants.
[739E G] [Harvey vs Walters, , distinguished.] PG NO 736 PG NO 737 (2) The conduct of the defendants in opening nine morries in the place of three morries and thereby damaging the properties of the respondents is such that no discretion need be exercised in their favour by allowing them to raise the issue for the first time that the three morries on the first storey merely constitute a change in the mode or place of enjoyment of the easement.
[740B C; 739G H] (3) The appellants cannot be restrained from opening new windows, as no customary right of privacy appears to have been pleaded or proved.
At the same time, the respondents are fully entitled to block the same and the appellants are not entitled to remove the obstruction.
[740G H]


judgement:
ivil Appeal No. 2659 of 1986.
From the Judgment and Order dated 14.6.1985 of the Appellate Authority Delhi in Appeal No. 2 of 1985.
Anil Kumar Gupta and B.N. Singhvi for the Appellant.
Raja Ram Agarwal, Parveen Kumar and Vivek Gambhir for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The short question in this appeal by special leave is whether the appellant workman was entitled to interest on the gratuity due to him under the provisions of the (39 of 1972).
Appellant joined service under Respondent No. 1 in April 1944 and was relieved from service on his resignation with,effect from 24.5.2983.
The employer did not determine the amount ,of gratuity payable to the appellant as required under Section 7(2) of the Act.
On 7.6.
1983, the appellant furnished an application in Form l for payment of gratuity but no action was taken by the employer; then appellant approached the statutory controlling authority for determination of the amount of gratuity and requested that on the sum due interest may be paid.
The employer contested the claim both in regard to gratuity as also interest.
On 3. 12.
, the controlling authority determined the amount of gratuity at Rs. 16,380 and directed the Respondent No. 1 to pay along with compound interest of 9 per cent.
Thereupon PG NO 744 Respondent No., 1 challenged the order before he appellate Authority.
The appellate Authority affirmed the determination of gratuity but set aside the order for payment of interest.
We have beard learned counsel for both parties in regard to payability of interest.
Relevant portions of section 7 of the Act, as it stood in 1983, when the cause of action arose, may now be extracted: "7: Determination of the amount of gratuity: (1) A person who is eligible for payment of gratuity under this Act or any person authorised, in writing, to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined ; (3)The employer shall arrange to pay the amount of gratuity, within such time as may be prescribed, to the person to whom the gratuity is payable ; (4) (a) If there is any dispute as to the amount of gratuity payable to an employee under this Act or as to the admissibility of any claim of, in relation to, an employee for payment of gratuity, or as to the person entitled to receive the gratuity, the employer shall deposit with the controlling authority such amount as he admits to be payable by him as gratuity.
Explanation ' Where there is a dispute with regard to any matter specified in this clause the employee may make an application to the controlling authority for taking such action as is specified in clause (b).
(b) . . . . . . . . . . (c) . . . . . . . . . .
PG NO 745 (5) . . . . . . . . . ,, (6) . . . . . . . . (7) . . . . . . . . Sec. 8: Recovery of gratuity: If the amount of gratuity payable under this Act is not paid by the employer, within the prescribed time, to the person entitled thereto, the controlling authority shall, on an application made to it in this behalf by the aggrieved person, issue a certificate for that amount to the Collector, who shall recover the same, together with compound interest thereon at the rate of nine per cent per annum, from the date of expiry of the prescribed time, as arrears of land revenue and pay the same to the person entitled thereto.
" The provisions of Section 7 have been amended twice, first by Act 25 of 1984 with effect from 1.7.1984 and again by Act 22 of 1987.
The 1987 Amendment has substituted sub section (3) and added sub section (3A) in Section 7 to the following effect: "(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
If the amount of gratuity payable under sub section (3) is not paid by the employer within the period specified in sub section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time, repayment of long term deposits, as that Government may,by notification specify . .
" The controlling authority had directed interest as provided in Section 8 to be paid which the Appellate Authority had vacated.
From facts of the case, it is clear that the stage for action under section 8 had not been reached inasmuch the appellant had not applied for recovery of gratuity to the Collector.
It is only when the Collector issues a certificate for recovery of the dues as a public demand that interest as provided under Section 8 is admissible.
PG NO 746 There was no provision in the Act for payment of interest when the same was quantified by the controlling authority and before the Collector was approached for its realisation.
In fact, it is on the acceptance of the position that there was a lacuna in the law that Act 22 of 1987 brought about the incorporation of sub section (3A) in Section 7.
That provision has prospective application.
Learned counsel for the appellant tried to rely upon the provisions of the Interest Act and the provisions of Section 34 of the Code of Civil Procedure.
We do not find any support for the appellant 's stand from either of the provisions.
Admittedly, no notice was given demanding interest and the controlling authority is not a court for falling back on Section 34 of the Code.
We are satisfied in the facts of the case that the appellant was not entitled to interest on the amount of gratuity found due to him.
Since that was the only matter agitated in the appeal with the conclusion indicated, this appeal has to fail and is dismissed.
There would be no order for costs.
G.N. Appeal dismissed.

summary/full:
The appellant was in the service of Respondent firm from April,1944 till he resigned on 24.5.83.
The employer did not determine the amount of gratuity payable to the appellant.
Appellant furnished the necessary application for payment of gratuity and since no action was taken by the employer, the appellant approached the statutory controlling authority for gratuity and interest thereon.
The employer contested.
The controlling authority determined the amount of gratuity at Rs.16,380 and directed the employer to pay the same along with compound interest at 9%.
On appeal by the employer, the appellate authority confirmed the determination of gratuity but set aside the order for payment of interest.
This appeal by special leave is in regard to payability of interest on gratuity.
The appellant relied on the provisions of the Interest Act and section 34 of the Code of Civil Procedure, also.
Dismissing the appeal, HELD: If It is only when the Collector issue a certificate for recovery of the dues as a public demand that interest as provided under Section 8 is admissible.
[745Hl 1.2 In the instant case the appellant is not entitled to interest on the amount of gratuity found due to him.
The controlling authority had directed interest as provided in Section 8 to be paid, which the Appellate Authority had vacated.
From the facts of this case, it is clear that the stage for action under section 8 had not been reached in as much the appellant had not applied for recovery of gratuity to the Collector.
[745G H] PG NO 742 PG NO 743 2.
There was no provision in the Act for payment of interest when the same was quantified by the controlling authority and before the Collector was approached for its realisation.
In fact, it is on the acceptance of the lacuna in the law that Act 22 of 1987 brought about the incorporation of sub section (3A) in Section 7.
But that provision has prospective, and not retrospective application.
[746A B] 3.
The provisions of the Interest Act and the provisions of Section 34 of the Code of Civil Procedure would be of no avail to the appellant since no notice was given demanding interest and the controlling authority is not a court for falling back on section 34 of the Code.
[746C]