An open and shut case? Jammu & Kashmir High Court allows man to open windows of his home after five years

The Jammu & Kashmir and Ladakh High Court recently allowed a Kashmir resident to open the windows of his house more than five years after a civil court restrained him from doing so while upholding his neighbour’s claim [Ghulam Nabi Shah v. Abdul Gani Sheikh & Ors].Justice Atul Sreedharan held that the civil court's order failed to reflect how and what right of the petitioner’s neighbour was being violated.“Undoubtedly, the petitioner has a right of opening of windows on his property even if they are facing towards the house of the plaintiff/respondent,” the Court said. On the claim that the petitioner would infringe upon his neighbour’s privacy if he opens the windows of his own house, the Court said,“The contention of the respondents that it would infringe upon the privacy, does not hold water as that is an issue for the defendant/respondent to take necessary steps to ensure their own privacy.”The Court added the neighbour can protect his privacy “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.".The case originates from a civil suit filed by a resident of Budgam district against his neighbour. There had been three issues before the civil court:As per the neighbour, the sloping roof of the petitioner’s then under construction house would fall toward his house and snow would come cascading down into his property.The neighbour was also aggrieved that drain pipes were positioned by the petitioner in such a manner that the water would flow on their property and weaken the soil.The third issue was that opening of windows towards the property of the neighbour would infringe upon his privacy.The trial court in 2018 had partly allowed an application filed for interim orders. While it permitted the petitioner from continuing with the construction, he was restrained from opening the windows facing the neighbour’s house. He was also directed to ensure that the roof is constructed in such a manner that snow does not fall on the property of the neighbour. The trial court had also ordered the petitioner to place the pipes in such a manner that water does not fall into the property of the neighbour. .Before the High Court, the petitioner argued there was no allegation of violation of any law as a result of the construction. It was also submitted that directions pertaining to the roof and drains have been complied with. Despite notice, the neighbour did not enter an appearance in this case. The Court thus proceeded ex-parte in the matter.After hearing the counsel for the petitioner, the Court recorded that the construction was carried out in accordance with law and that the trial court directions regarding the roof and the drain pipes have been complied with.Finding the direction against opening of windows violative of the petitioner’s rights, the Court allowed the petition. Advocate MM Iqbal represented the petitioner..[Read Judgment]