Review of literature:

• Ronligoger, Violation of Easementary Rights, Legalservicesindia.com (2021),

http://www.legalservicesindia.com/article/1444/Violation-of-Easementary-Rights.html
(last visited Feb 26, 2021).

This article basically covered areas of the violation of easementary rights and the different
redressal methoda for it. From this article, the researcher could extract the practical
manner in which easementary rights are violated.

• Shikhar Shrivatsava, Law of Easement – Law Times Journal Law Times Journal (2021),
http://lawtimesjournal.in/law-of-easement/ (last visited Feb 26, 2021).

This article dealt with the different ypes of easement such as continuous, non-continuous,
apparent and on-apparent easement. Also, the article elaborates the impositions of
easement and how it is often being infringed. Thus the reasearcher could get a multi
dimensional view on the violation of easementary rights.

• Pooja Kumar, An Overview: Law of Easements in India – iPleaders (2021),

https://blog.ipleaders.in/an-overview-law-of-easements-in-india/amp/ (last visited Feb
26, 2021).

This article written by Pooja Kumar covers the essential elements of easementary rights and
the types in it such as the right to way, right to light etc. From the article, the researcher
obtained the basic concepts that are quintessential for this research project.

• Definition of License and Granting of License By Yamini Rajora, National Law University,
Jodhpur

The usage of license to signify a transaction is widely used by laymen, who rarely think in
terms of jural relations. In the following study, the author has made an attempt to explain
the meaning of license and how a license is granted in India. Moreover, it is important to
have an understanding of the difference between a lease (that is a tenancy), easement and
 a license under general law so that one knows what one is dealing with in any particular
case. Therefore, the author has also sought to draw a line between these concepts.

• Licence under Section 52 of the Indian Easement Act, 1882

Parul Chaturvedi of Dr R.M.L Law College in Bangalore contributed to this article. To

understand the definition and grant of license in India, the author discusses the Indian
Easement Act 1882, Section 52, and the related provisions in this article. Through a fitting
example, this article attempts to distinguish between leases and licenses, as well as license

and easement, in order to explain how it deals with specific circumstances and cases .

Introduction:

The existence of property-related disputes is a far fetched concept since the origin of
private property or ownership or the very concept of property around the 17 th and 18th century in
England. Especially, when it comes to property issues, it has much significance with the law guiding the
same. Every time one thinks about a property, one single idea that comes to mind is ‘rights’. As we live
in civil society by way of mutual co-existence, it is inevitable that the rights of one shall be shared with
others at some point of time as per convenience. In such a manner, the concept of easementary rights is
very much prevalent in property-related functions, which simply allows an owner of one property to
share or enjoy (i.e) that is to give or gain some sort of right from or to the owner of another property.
Easementary right has often been termed as a privilege- deprivation relationship while the owner of one
property who gives the right has to undergo suffering or abstention in order to benefit the owner of
another property. In this scenario, if the person who enjoys the right from another makes some
modification to the right offered to him or if he uses the right in a way contrary to what the giver of the
right intended to, then it shall essentially be termed as a violation of the easementary right offered to
him. There shall be several grounds on which the right shall be deemed to be violated and several
reasons and remedies for the same. In this article, the researcher has explored the fundamental
elements of easementary rights, how it is violated in today’s property-related disputes and what
possible remedies does the law provide for the same. Section 52 of Indian Easement Act, 1882 defines
licence as something in which a person grants another, or a certain number of other persons, the right
to do or continue to do in or on the grantor’s immovable property. And in this article we are also tries to
understand about license, it’s difference with easement and also the essentials of license.
Elements of Easementary Rights:

According to Jurist John Salmond, the right of easement  is that legal
servient which can be exercised on some other piece of land for the benefit of a piece of land. In the
words of Peacock, “Easement is such a privilege without profit which an owner of dominant heritage
receives from the owner of the land due to which owner of that property cannot exercise his complete
rights or does nothing for the advantage of the earlier occupiers.” In an even more proximate context,
the Indian law defines easementary right in section 4 of the Indian Easement Act, 1882 as “a right which
the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do
and continue to do something, or to prevent and continue to prevent something being done, in or upon,
or in respect of, certain another land not his own. Dominant and servient heritages and owners. -The
land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the
owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the
servient heritage, and the owner or occupier thereof the servient owner.” As this research paper
extends mainly towards the aspects of violations in easementary rights, in order to understand it, one
first needs to have a basic idea of how this concept could have evolved, the necessity for such practice
and the basic elements of this principle of the easement. It is believed that this concept traces its origin
to the period when mankind started the establishment of living in groups, clans, villages etc (i.e) right
from the beginning of human civilization. Later when private property ownership originated, the theory
evolved that everyone should use their property so that it doesn’t affect others’ rights over their
property. This idea evolved and got to a structure that one person’s right over his property should not
intersect or intervene in another person’s exercise of right over his property like not passing through the
other person’s land, not pouring water on other person’s land. The aforesaid restrictions in the right and
offering that right to someone is technically the concept of easement or easementary rights 1. In India,
laws relating to easementary right began since the Limitation Act of 1871 which was then superseded by
the Indian Easement Act, 1882.

For a right to be termed as a right of easement, there are several elements that the right
should satisfy (i.e) the essential elements of easementary rights. The first and foremost quintessential
for easement is that there should be an existence of at least two different parties enjoying ownership

1
Shubisahu, Easement by Prescription, Medium.com (2021), https://medium.com/@shubhisahu1996/detail-of-
easement-ec4c0fae84bd (last visited Mar 22, 2021).
over two distinct properties. These two properties are known as dominant heritage and servient
wherein the former is the property that offers the right and the latter is the one who enjoys the right
and entitled to liabilities. The significance of two distinct owners of two properties is upheld in the case
of Swamiyar Devsthanam vs Kanak Laxmi it was held that a person cannot enjoy a right of easement
over his own property2. This element is also mentioned in section 4 of the Easement Act as “certain
another land and not his own”. The same principle was also upheld in the Delhi High Court case of
Radhika Narayan VS. Chandra Devi3. Another important element in case of easementary rights is that the
owner of the property should hold the ownership as a status of power and if it was not for his ownership
over the land, the easement cannot be exercised. In the concept of easement, one thing that is
unchanged is that there must be a beneficial enjoyment of the owner of the dominant heritage and by
exercising it he prevents or allows the owner of another property over his own property. In the case of
C. Mohammed vs Ananthachari, the court held that for an easement to be valid, there must be a
creation of beneficial enjoyment of the dominant servient by the easement and the entitlement of the
dominant owner to perform and continue to perform or to prohibit and continue to prohibit something
relating to the servient tenement. 4This can also be termed as a doctrine named ‘profit e pendre’ but it
is slightly different from that of easementary rights. The court in the case of Chundee Churn Roy v. Shib
Chunder Mundul held that profit- a- prendre implies to the right to remove and take into use any
fragment of the soil that belongs to some other person or some other thing that is attached to the soil
or that is growing on the soil with an objective of gaining all the profits from the land 5. The next
important element in the easementary rights is that easement is merely a ‘right’ and the subject matter
of the right must be very specific definite and unambiguous. Furthermore, this right does not include the
possession. In the case of Mumtaj Ali v. Mohd. Sarif, the Allahabad High Court stated that the use of
land for some purpose like staying for a while, sleeping or sitting there by the plaintiff will amount to a
right of easement entitled to be protected by law 6. These are the basic essential elements for easement
and this has been highlighted by the Kerala High Court in the case of Mohammed vs Anantehari that the
essential elements of easement include, Dominant and servitude property is compulsory.

2
Swamiyar Devsthanam vs Kanak Laxmi, 1975 Andhra L.T. 483
3
Radhika Narayan VS. Chandra Devi, AIR 1981 Delhi 118
4
C. Mohammed vs Ananthachari, AIR 1988 Ker 298

5
Chundee Churn Roy v. Shib Chunder Mundul, (1880) ILR 5 Cal 945

6
Mumtaj Ali v. Mohd. Sarif, AIR 1973 All 98
It must be used for the beneficial consumption of the dominant property.

Separate personalities of the owner of the dominant and servitude owner.

Right of the owner of the dominant property to do or not to do any act.

Clarity and definite of easement.

Accommodation of easement with the dominant property.

Easements have several types in them including a positive, negative, public, private easement,
easement of necessity, continuous and non-continuous easement etc. Firstly, positive easement is
something which allows the dominant heritage owner to commit certain act as a part of his
easementary right whereas a negative easement restricts or imposes limitations on the right granted to
the servient owner from doing an act. The right of continuous easement can be referred as something
which has no obstruction and a perfect example is the right to light and when it is discontinuous, it can
be exercised only on the conduct of an act done to exercise this right such as right to way. One of the
most important area in the easementary is the right of easement out of necessity. This specific area of
easement of necessity has been interpreted by the judiciary in several cases some of which we will see
now. This easement of necessity is something without the enjoyment of which reaching or accessing his
own property is impossible. For instance, if a property adjacent to his won property is situated in such a
manner that he cannot enjoy his own property without enjoying an easementary right over other
property which is segregated, then such easement is provided and is called easement of necessity. This
concept is backed with the support of legislative backing by section 13 of the Indian Easements Act
which says that if an easement in other immovable property of the transferor or testator is necessary for
enjoying the subject of the transferor bequest, the transferee or legatee shall be entitled to such
easement. Several other conditions satisfying the easement of necessity is given in the same section.
Gujarat High Court in the case of The State Of Gujarat vs Hiralal Motilal Luhar held that “for easement of
necessity it is essential that first, it should fall within the definition of “easement” under Section 4 of the
Act. Unless it does not come within this definition and does not fulfil the requirements of easements, it
would not be proper to consider whether it is an easement of necessity or not and when falls within the
definition of easement only, then it would be good to consider that it is related to what kind of
easement and whether it is an easement of necessity or not 7.” The court’s view, in this case, has gone to
the fundamental questioning of whether or not it is easement before checking on the type of easement

7
The State Of Gujarat vs Hiralal Motilal Luhar, (1980) 0 GLR 728
it comes under (i.e) the easement of necessity in this case. When it comes to the easement of necessity,
the criteria for the necessity or the essentiality that the Indian judiciary has set has been very keen and
clear through several judicial interpretations and landmark judgements. The Allahabad High Court in the
case of Sukhdev vs Kedarnath held that “easement of necessity is such an easement without which
property cannot be used at all. Hence, it is an easement which is necessary only for the use of the
property.” This was also similarly upheld in the case of Govind Bhatt v. Marumala Rama Bhatt, wherein
the court held that “the criteria of easement of necessity are “highly essential” and it can be claimed
only when it is highly essential. Although it is a question of fact whether an easement is an easement of
necessity or not.” Besides this, the Indian Courts have set a test for easement of necessity to quantify
the essentiality for the necessity. The test is that a mere convenience or inconvenience in the property
cannot necessitate easement rather it must arise out of cessation from joint ownership that the
dominant and the servient previously shared. The test here is that if the easement is not provided, the
owner of the property cannot reasonably enjoy his property and it then becomes an absolute necessity.
Also, if there is an alternative way for the reasonable enjoyment of the property, then too the right of
easement of necessity loses its value .

Another way of acquiring easement is by prescription as said under section 15

of the Indian Easement Act. The simplification of what section 15 says is that if a person enjoys some
right unruffled for a considerable period and if after sometime, some construction or some alteration in
the property interrupts the right enjoyed, then the person may get his right of easement for that specific
right by prescription. The considerable period as mentioned in section 15 in 20 years. This doctrine of
easement by prescription evolved as a concept to provide legal recognition to people’s rights and titles
that have been enjoyed for a very long period of time 8. Judicial Interpretations at various levels and in
different cases brings clarity to the doctrine. In the Kerala High Court case of Smt. Manikkam vs Smt.
Kamala, the court held that if branches of a tree overhang the neighbouring land, no right can accrue
over the land over which they hand. The owner of such a tree acquires no right whatsoever over the
land of the neighbour, only because the branches of the tree extended over the neighbouring soil for a
continuous length of time. No right can arise by prescription to continue a nuisance. 9 Similarly in the
case of Puri Municipality vs Sradhamani Devi, it was held by the Orissa High Court that even if a land is
used for sweepers passage by the municipality to clean public latrine and if there is no express order or

8
Dhruvi Dharia, Easement by Prescription - Law Times Journal Law Times Journal (2021),
http://lawtimesjournal.in/easement-by-prescription/ (last visited Mar 22, 2021).
9
Smt. Manikkam vs Smt. Kamala, AIR 1987 Ker 72
consent from the owner of the private property, then the municipality cannot claim an easement by
prescription over the suit land. Thus in various judicial interpretations, this concept has also evolved and
this is the essentials and types of easementary rights.

Violation of The Right of Easement:

Every right which is bestowed by the law comes to the court of law only
when it gets violated like the fundamental rights and human rights violation. Similarly, the right of
easement is also been violated it multiple means. The right to way being violated is the most common
one. The right of way can be two types, one is public way which is the public roads that everyone use
and the other is the private way which is vested in an individual or an owner of a tenement by
prescription or grant. Right to way can be grant, prescription, necessity or by private dedication. When it
comes to the violation of easementary rights, sections 32 to 36 of the Easement Act. Section 32 says that
the dominant heritage occupier has the right to enjoy his easmentary right without interference and
section 33 says that a suit can be initiated on the violation of the right. Generally, the right to way under
easement is violated by disturbance made in the way or any kind of obstruction which also constitutes a
nuisance. However, a right of the way never entitles the grantee or the dominant owner, or those
lawfully using the way under the grant, to use the land in an exclusive manner over which the way
exists. Thus if there is the exclusive use of that land, then not every obstruction if the way amounts to
unlawful interference, and no action will lie unless there is a substantial interference with the easement
granted.10 Thus in this regard, the effect of the right of the grant of the way completely differs from that
of the grant of the soil of the way and if it is under the latter way, the interference in a very slight
manner can be considered only as a trespass. But this relation between trespass and interference
cannot be generalized because it differs on a case to case basis. The question of law whether or not a
specific interruption subject to violation of the easementary right depends upon the nature of the right
of way granted and also upon the circumstances of the specific case. The interference or the disturbance
in the right to way becomes unlawful only when it is in such a manner that it obstructs the happening of
the purpose for which it was granted and only then it will be considered as an injury to the person

10
Ronilgoger, Violation of Easementary Rights, Legalservicesindia.com (2021),
http://www.legalservicesindia.com/article/1444/Violation-of-Easementary-Rights.html (last visited Mar 22, 2021).
Violation of Easementary Rights, Legalservicesindia.com (2021),
http://www.legalservicesindia.com/article/1444/Violation-of-Easementary-Rights.html (last visited Mar 22, 2021).
holding the right of easement or the violation of easementary rights. For instance, if the way is
obstructed so much so that it cannot pass on a vehicle or it is being constructed to obstruct the usage,
or the land is ploughed so it cannot be used, then it amounts to violation of easementary right. Judicial
interpretations have been specific to each case and not on the basis of general doctrines. In the case of
M.P.Ramachandran vs Madathil Radha, the respondent hadn’t used said pathway in dispute from he
bought a property nearby. The court wanted to if he had used the way for a period of 20 years. He first
appellate court reappreciated the evidence and held that respondents have established that they and
their predecessors have been using the plaint B schedule way for more than 20 years continuously and
peaceably and without interruption as of right and as an easement and upheld the plea of the right of
way. If 20 year period is to be calculated from 1985, the period of 20 years would not have completed
on the date of institution of the suit. There was no discontinuation of the use of the way as alleged by
the appellants.It is to be taken as proved. If respondents have been using the way which runs towards
the west from their house which reaches the western road, continuously, peaceably and without
interruption as of right and as an easement, respondents are entitled to the right of way. Though
respondents are entitled to a right of easement by prescription, they are bound to exercise the right in
the mode which is least onerous to the appellant, the servient owner. The trial court shall appoint a
Commission at the expenses of the plaintiffs to fix the said way to a determinate part of the servient
heritage, which is least onerous to the appellant and without detriment to the defendant. 11

The right to light is another important element under easement. It simply refers to the
unobstructed flow of light and this right prevents the owner of the adjoining property to make a
construction or place anything in his own party so as to obstruct the light to the dominant heritage. The
right to light is an example of negative easement as it prevents the owner from doing an act.

In the Madras High Court case of Moidin Kunhi Beavy And Anr. Vs K. Gopalakrishna Mallya, the fact
was that the defendants built up a building to make a coffee hotel. This construction interfered in the
plaintiff’s wall and also obstructed the light and free air to the plaintiff’s house. The contention by the
defendant was that the plaintiff has not acquired any right of easement over the light and air. So, the
major question of law before the court was whether or not the plaintiff had the right of easement over
light and air. The court viewed the difference between natural right and prescriptive rights as stated by
Peacock. Also, the court felt that the defendant had build in a Porambokke Land and has no right over
the property and has resulted in the obstruction of the light and air. Thus the court upheld the lower
11
M.P.Ramachandran vs Madathil Radha ,R.P.(C) No. 2487/2019
court’s decision of providing injunction to the plaintiff for the violation of easementary rights. 12 R. G.
Nicholson Combe’s idea about law of light clearly distinguishes between easement to air and light.
Combe’s idea shows nothing more than that as between two owners, a landowner has no natural right
to the continuance of the flow of air unobstructed by his neighbour’s building and he cannot acquire a
general right but only acquire a right to the continuance of the passage of air through a strictly defined
channel as otherwise legal easement would be too burdensome or indefinite to admit of its recognition
in a Court of law.13 When the right to air is viewed exclusively, the violation of the right to air cannot be
deemed to be actionable unless the interference takes place materially such that the purity of air is
damaged causing threat or danger to health. The Calcutta High Court has held that obstruction in cases
not governed by Easement Act must be such as to cause what is technically called a nuisance to the
house, in other words, to render the house unfit for ordinary purposes of habitation or business.
Common examples can be an industry polluting the air near the household shall be liable to give
injunction.14

Redressal for the violation of Easementary Rights:

Every right when violated has the legal mechanism to be redressed according to
the law of the land. In such a manner, the Indian Easement Act has the appropriate legal provisions for
the relief for the violation of Rights of Easement. Section 33 of the Indian Easements Act, 1883 enables
the owner of the interest over a dominant heritage to initiate a suit to claim his injunction if his right of
easement is disturbed materially in such a manner that such disturbance obstructed him from enjoying
the Easementary right offered to him. The general redressal mechanism for the violation of Easementary
right is that to provide injunction for the same and it is backed by section 35 of the Easements Act which
says that an injunction may be granted to restrain the disturbance of an easement with respect to
sections 52 to 57 of the Specific Relief Act. Let’s now analyse this redressal method with the help of an
English case law named Ashdale Land and Property Company Limited v Maioriello. 15 In this case, the
claimant initially gave a right to way over a part of his whole land which he sold to another person. But

12
Moidin Kunhi Beavy And Anr. Vs K. Gopalakrishna Mallya, AIR 1953 Mad 849

13
2, R G Nicholson Combe, The Law of Light, 2nd edition, 1913

14
Bansidhar And Anr. vs Matru Mal And Ors. , AIR 1959 Pat 517
15
Ashdale Land and Property Company Limited v Maioriello, [2011] EWCA Civ 1618
what is very significant in the case is that the right of way was given only for agricultural purpose. Later
the part of land was bought by gipsies and they brought heavy vehicles, lorries for some construction
purpose. So, this act was in breach of the easement right given and as a consequence, the claimant
obtained several injunctions including one for restricting the passage of vehicles but all of them were
rejected. Offended by this, the claimant built a large concrete wall blocking the passage.  This
constituted a breach of the easement since the right granted was to pass along the road, not to stop on
it. He claimant sought a declaration that it was entitled to obstruct all access to the field from the road.
It argued that the usual remedy of injunctive relief had been tried and found to be seriously wanting
because the court’s orders had been repeatedly ignored, and it was not practicable to enforce the
orders through the initiation of criminal proceedings.

The gipsies submitted that it would be wholly disproportionate for the claimant to be permitted to
obstruct all access to their land. This would prevent them from using the field for agricultural purposes,
and would seriously depreciate its value. 16 The court held that the nature of easement is very important
here and it is for the right to way for agricultural purpose which is contrary to what the gipsies had
done. The gipsies had purchase the land for caravan and they did not have any genuine intention of
using it for any agricultural purposes. Thus, the court ordered in favour of the claimant and decreed the
sought declaration. The important concepts that we can infer from this case law is that there is a clear
distinction between proper use and excessive use of the right of easement. When the right to way is
used for agricultural purpose as offered by the claimant, it would be fair to deem it a proper use but
when it used for something else as in this case, it is excessive use. When the excessive use is done, the
first thing the court can resort to is the grant of the injunction but when injunction is not a proper
remedy as to the specific circumstances of the case, then the court may allow or grant a declaration
sanctioning steps to prevent any use of the right. In the Gujarat High Court case of Vaghela Vakhatsinh
Agarsinh vs Parmar Lalji Khodidas, the fact was that the plaintiff had a window from which light and air
was coming to his house for years. When the defendant constructed a wall, the plaintiff contended
before the court that it disturbed his right to air and light. The lower court ordered a mandatory
injunction for the same for which the defendant appealed to the Gujarat High Court. The major question
before the High Court was whether there was substantial damage of the property according to
explanation 1 of section 33 of the Easements Act. Thus, the court ordered the lower court to reconsider

16
Sarah Dawe, Easements – what remedies are available if an easement is abused? | Lexology Lexology.com
(2021), https://www.lexology.com/library/detail.aspx?g=3bf8e2bb-2a6c-4e26-8749-9ec4a95f3abe (last visited Mar
22, 2021).
it, the court also set aside mandatory injunction but upheld compensation to be given for the plaintiffs
for their right to air and light being disturbed. Thus, the significant portion, in this case, as if there was
substantial damage. Thus, the redressal method for the violation of easementary rights and the
injunction given to the injury bearer can be subject specific and on the basis of the circumstances of the
case when judicial interpretations are observed. The right to way, right to light and the right to air are
the very common ones of it which can be seen in every household, industries and other settlements.
However, as they are very subjective and individual to the facts of then case, there cannot be single
redressal hard and fast rule of blatant relief for all cases but the judiciary through its valid interpretation
can bring justice to it.

LICENSE:

As per Section 52, if a person gives or proceeds to do in or on the grantor’s immovable property
anything that may be unlawful, or the rights are not easement or interest in the land, to another person
or a certain number of certain people, in the absence of such right is called a license.

The license, in a popular sense, means three things:

 Authorization to do it,
 Certificate or document embodying the authorization in question, and
 License fee which is the price granted for the privilege.

Essentials of a license:

 Two different persons.

 There has to be a grant.
 License is always useful.
 License is granted to do something in or upon the grantor’s immovable property.
 The license does not relate to ownership of any land but only creates a personal right or
obligation.

Difference between License and Easement

License Easement
Right in personam Right attached with property
 Non transferable Transferable
Revocable on the will Non revocable on the will
Continuous use not necessary Continuous use necessary

Case laws:

Errington vs Errington
If we look at the facts of this case, in 1930, a father bought a house with his son and daughter-in-
law (Wood) and assured her that the downpayment was a gift from him and that “after his
retirement, the house would be transferred to them when the mortgage is paid.” Wood paid the
mortgage instalments on time, but Errington died and left the property in his wife’s name. Both
Wood and Errington’s son later split. The property was taken from Errington and he was sued for
ownership. As a consequence, the question of whether a unilateral contract can be terminated
after the offeror’s death arose. The Court, however, rejected the appeal

The Court determined that the son and daughter-in-law did not have an express duty to pay the
instalments and that the terms could not be inferred. He describes the father's promise as a
unilateral contract; it is the performative act that pays the mortgage, and it will only be revocable
if the couple fails to make payments. If the bid has started to succeed, the offeror cannot cancel
it. If the mortgage was paid off, the father's tacit goal was to keep the house in his family's
possession. The couple was on a lease, not a tenancy, but a contractual or at the very least
equitable right to live that would turn into a good equal title until the mortgage was paid off.17

Conclusion:

As mentioned in the beginning, the researcher’s view implies that the concept of
easement in itself is very much entrenched in the mutual coexistence mechanism where one’s
rights interfere with others and where one share his right for the benefit and convenience of
others. Right to way can be very commonly seen in every family property if they interact and
study it from their parents from its implication in the properties they own. Easement by the
necessity which says that a person must grant the right to way to someone if there is no other
way to enjoy the right over his land is one of the best part of Easementary Rights I felt because
17
Errington vs Errington [1951] EWCA Civ 2
this is the essence of human co-existence where one shares his convenience with others for the
benefit of the other person’s convenience and this is mandated by section 13 of the Indian
Easements Act, 1882. When it comes to relief, the researcher feels that the court should look
whether the claim is out of the urge to use merely the legal principle and get injunction or if
there is a real and tangible damage(as mentioned in section 33(a)) to the right enjoyed that the
order of the court will be really needful in the case. This can be found with much relevance
under the context of right to air in the contemporary times as pollution from vehicles and
Industries exploit the human habitat and the threat of climate change in recent times. The right
to clean air is not just an easementary right but also a constitutional mandate. The Supreme
Court held that the right to life under Article 21 of the Constitution is a fundamental right and
includes the rights to free water and free air from pollution for the full enjoyment of life in the
case of Subhash Kumar v. State of Bihar. So, the researcher feels that the judiciary should keep
in mind this constitutional mandate while dealing cases related to right to air and be very
vigorous in granting injunctions to the same times where laws like the Environmental Impact
Assessment, 2020 are being made. Finally, the researcher would conclude by a point of fact
that it is the collective duty of the lawmakers, judiciary and the people of the country to make
sure that easementary rights are not being violated, neither misused but used in an appropriate
manner in which the legislation in itself was intended to.

Bibiliography:

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http://lawtimesjournal.in/easement-by-prescription/ (last visited Mar 22, 2021).
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http://www.legalservicesindia.com/article/1444/Violation-of-Easementary-Rights.html
(last visited Mar 22, 2021). Violation of Easementary Rights, Legalservicesindia.com
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