JUDGMENT : R.N. Misra, J. - Defendant No. 1 is the Appellant in this Second Appeal against a confirming decision of the learned Additional Subordinate Judge, Cuttack, in a suit for permanent and mandatory injunction. 2. In the original suit there were nine Defendants. Defendant No. 1 was shown as the principal Defendant while others were described as proforma Defendants. Defendant No. 9 was the Municipal Council of Cuttack. From the records of the trial Court it appears that as per order dated 19-2-1964 the suit ceased to proceed against Defendants 2 to 8. Defendant No. 9 did not contest and was set exparte. 3. I will now advert to the pleadings of the parties in the litigation. The Plaintiff and the proforma Defendants 2 to 8 are owners of the A schedule property while Defendant No. 1 was the owner of the B schedule property. These are admittedly adjacent plots. During the absence of the Plaintiff,-Defendant No. 1 collected materials and started construction adjoining to the north of the Plaintiff's house without leaving a gap of 3 feet between the two as required under the Municipal rules. The Plaintiff came to learn about the illegal act of Defendant No. 1 and moved the Executive Officer of Defendant No. 9. Defendant No. 9 gave a direction which Defendant No. 1 did not follow and proceeded to completed the construction upto the window level of the first floor. As a result of such illegal construction, the Plaintiff alleges that he has been completely deprived of having access to his northern wall for its repairing and whitewashing etc. Doors and windows of Defendant No. 1 have been so opened towards the Plaintiff side that the Plaintiff's courtyard has become directly visible and the privacy of the women folk who normally use it for bathing and other purposes has been completely lost. Thus the Plaintiff seems to have been aggrieved by loss of privacy and the construction in violation of the Municipal Rules. 4. Defendant No. 1 pleaded that his house has not been constructed adjoining any part of the Plaintiff's building. According to him, the "B" schedule property consisted of some old pucca structures with windows and doors facing towards the "A" schedule property. As these were already in a dilapidated condition Defendant No. 1 got them demolished and started a new construction over the self same site. According to him, the "B" schedule property consisted of some old pucca structures with windows and doors facing towards the "A" schedule property. As these were already in a dilapidated condition Defendant No. 1 got them demolished and started a new construction over the self same site. The Plaintiff was interested in buying out the "B" schedule property from Defendant No. 1's vendor. But as Defendant No. 1 offered a higher prior and purchased it the Plaintiff out of ill will has brought the suit to harass him. 5. Several issues were struck and the learned Munsif ultimately found that the suit was not bad for defect of parties, the construction was contrary to the Municipal rules and the Plaintiffs privacy was lost on account of these openings. He accordingly decreed the suit and called upon Defendant No. 1 by a mandatory injunction to pull down the construction made on the "B" schedule property within 3 feet on its south and within 3 feet of the "A" schedule property on its north as shown in the sketch map in Schedule "C" of the plaint. He also directed Defendant No. 1 to close up all windows and apertures, on the first floor opening towards the Plaintiff's courtyard. 6. Defendant No. 1 appealed and his appeal was disposed of by the learned Additional Subordinate Judge of Cuttack. Before the lower appellate Court it was contended, inter-alia, that the suit was bad for defect of parties and the trial Court went wrong in placing reliance on Ext. 5, the commissioner's report. It should be brushed aside and a fresh commissioner should be appointed to investigate into the respective claims. There was also challenge offered against the finding on the question of violation of the municipal rules. 7. The lower appellate Court negatived the plea of defect of parties. Coming to the question of the commissioner's report (Ext. 5), the learned appellate judge held that the commissioner's report was not liable to be set aside 808 inadmissible, merely because the commissioner had been appointed before the appearance of Defendant No. 1 and without notice to him. He relied upon a decision of the Bombay High Court in Totaram Ichharam Wani and Ors. v. Dathu Manguram Wani and Anr. AIR 1943 Bombay 143 for the aforesaid conclusion of his. Thereafter he proceeded to consider the third ground of attack, namely, violation of the Municipal Rules. He relied upon a decision of the Bombay High Court in Totaram Ichharam Wani and Ors. v. Dathu Manguram Wani and Anr. AIR 1943 Bombay 143 for the aforesaid conclusion of his. Thereafter he proceeded to consider the third ground of attack, namely, violation of the Municipal Rules. He extracted sumptuously from a Bench decision of this Court in B. Modi v. R.D.C.C. Division, Cuttack 1963 O.J.D. 97, and came to hold that the Plaintiff had locus stand to bring the suit, because there was violation of Rule 534-C of the Municipal rules. On these conclusions of his, he dismissed the appeal. It is against this confirming decision of the lower appellate Court that the second appeal has been brought before this Court. 8. Mr. Ray fairly conceded at the commencement of the argument that he would not challenge the decrees of the, Courts below so far as the direction to close, the openings and apertures overlooking the Plaintiff's courtyard. He however, seriously disputed the other part of the decree regarding pulling down the structures raised for the alleged violation of the Municipal Rules on the ground that a gap of 3 feet had not been left between the two constructions. Rule 534-E of the Municipal rules, as far as relevant provides: Not withstanding anything contained in Rule 534-B, the following minimum spaces (set-backs) shall be left open along the entire side boundary of a site except in the case of row or continuous type of buildings. (I) In a residential area: (a) for a site not exceeding 250 sq. yards in area. (b) for a detached building, 3 feet from the side boundary on both sides of the buildings; x x x x The Plaintiff alleged that Defendant No. 1's construction was in violation of the aforesaid rule. The learned : Munsif found: Defendant No. 1's evidence does not show that be acted in pursuance of these rules. In fact, he does not appear to know as to what had happened regarding the granting of permission by the Municipality and in the absence of permission he started construction hurriedly to be ultimately injuncted by this Court and to be prosecuted before a Magistrate, First Class, Defendant No. 1 has not shown any bonafide in the matter and has not followed the Municipal law in leaving a set-back of 3 feet from the wall of the adjoining neighbour. The learned appellate judge & also held, The learned Munsif was correct, on a consideration of all the evidence and the surrounding circumstances, when he held that the Defendant No. 1 violated all the concerned provisions of the Municipal Act and Municipal By-laws when he constructed the disputed building. Mr. Ray fairly does not seek to dispute the finding that Defendant No. 1's construction is in violation of Rule 534-E of the Municipal Rules as the structure has been raised without leaving a gap of 3 feet. He however, raises an interesting question, namely whether without the Plaintiff having suffered any personal damage, on account of the Municipal rules having not been followed he would,be entitled to have any cause of action for the suit. In the Courts below there has been no finding that the Plaintiff has actually suffered any damage on account of non-observance of the Municipal Rules. Mr. Ray relies upon a (D.B.) decision of the Calcutta High Court in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, The Division Bench held: Under Sections 54 and 55, Specific Relief Act, the Plaintiffs may pray for a perpetual or mandatory injunction to prevent the breach of an obligation existing in favour of the Plaintiffs. In the present case there was no obligation contractual or otherwise, on the part of the Plaintiffs towards the Defendant which required that the Defendant should construct on his own land in accordance with the Municipal rules and regulations. The Plaintiffs therefore have no right to pray either for a mandatory injunction or a perpetual injunction merely on the ground that the proposed construction on the Defendant's land may be in breach of Municipal roles and By-law. Referring to an earlier decision of their own Court in Nandalal Ladia and Another Vs. Provudayal Tikriwalla and Another, further stated: That was, however, a case where an application for a writ of mandamus, was made in this Court. Such an application may be directed only against the holder of a public office and not against a private individual. The question whether a suit lies 'against' an adjoining or neighbouring owner did not directly arise. The question which was debated was whether an adjoining or neighbouring owner was a person whose property franchise or personal right would be infringed. Such an application may be directed only against the holder of a public office and not against a private individual. The question whether a suit lies 'against' an adjoining or neighbouring owner did not directly arise. The question which was debated was whether an adjoining or neighbouring owner was a person whose property franchise or personal right would be infringed. The above case was cited with approval by Panckridge, J. A.C. Mahammad v. Corporation of Calcutta 45 C.W.N. 402 where however, the sanitation and amenities of the Applicant's premises was substantially prejudiced. In the present case, the sanitation of the Plaintiff's building was not likely to be affected. The Plaintiffs might well have a cause of action against the Defendant in case the proposed constructions or the constructions already made amounted to an actionable nuisance. 9. Referring to a Bench decision of this Court in B. Modi v. R.D.C.C. Division, Cuttack 1963 O.J.D. 97, which seems to have been the real plank of the decree of the lower appellate Court, Mr. Ray says that Barman, J. as the then was, delivering the judgment of the Divisional Bench never stated that unless the Plaintiff really suffered a damage he was entitled to bring a suit. The following paragraph from the Division Bench judgment may be extracted: It is now when settled law that a neighbouring owner of a proposed new building, in respect of which provisions of the Municipal rules are violated, has a right although he does not happen to be the adjoining owner in respect of the portion affected thereby, to insist on a strict compliance of the rules, even where the person who is immediately affected does not object, he is entitled to apply for a mandamus to prevent plans being sanctioned contrary to the relevant Municipal Act and the rules thereunder. It Is also well settled that in the matter of building plans, there is a specific legal right in favour of the adjacent owner to prevent plans being passed, contrary to the provisions of the relevant Municipal Act and the rules thereunder; accordingly if a plan is sanctioned by a Buildings Committee of a Municipality contrary to the relevant Municipal Act and the Statutory rules and regulations, an adjacent owner who, by reason of the particular situation of his property, is likely to be injured as to light, air, health and other amenities, suffers an infringement of his right, has undoubtedly a right to seek relief, as in the present case. The granting of permission to build in contravention of the building rules of the Municipality may amount to such an invasion of legal rights in respect of the adjoining owner as will warrant the exercise of the special jurisdiction, Although a provision may be primarily framed for the benefit of the general public yet in appropriate oases if the breach is of such a nature as in the nature of things must injure a specific individual to quite a different decree, such a right will also he assumed in favour of such specific individual. Whether the rules infringed amount to an injury to a specific individual depends on the facts of each Case. Mr. Ray relying upon this passage from the Division Bench decision contends that their Lordships of this Court In the aforesaid case were required to find out whether the Petitioner before them was entitled to maintain the action. A writ of certiorari had been asked for and whether the Petitioner had some interest to entitle him to ask for the writ was being agitated. As a matter of fact their Lordships found that an interest of the Petitioner before them was to fact being affected. Relying upon the extracted portion of the judgment of the Division Bench Mr. Ray contends that an injury to a specific individual is the sine qua non and unless the Plaintiff is in a position to show that there has been an Injury to him he would not be entitled to maintain the action. 10. On the other hand, Mr. Dey for the Respondent relies upon two devision one of the Allahabad High Court in Kishore Chand v. Budaun Electric Supply Co. A.I.R 1952 Cal. 10. On the other hand, Mr. Dey for the Respondent relies upon two devision one of the Allahabad High Court in Kishore Chand v. Budaun Electric Supply Co. A.I.R 1952 Cal. 74, and the other of the Caluutta High Court in Krishna Lal v. Bubulal Shaw 45 C.W.N. 401. In the Allahabad case it has been said: The larger contention of the Defendants that there is no remedy In India for the breach of statutory obligation where the statute itself has not provided for the remedy is clearly untenable. The definition of 'Obligation' in Section 3, Specific Relief Act, and the language of Section 5 specific relief act which defines and explains the specific reliefs which are available in this Country as also the language of Sections 42 and 53, Specific Relief Act is sufficiently wide to cover obligations which arise under a statute. If after an order of sale of an undertaking u/s 5 of the Act and determination of the sale price u/s 5 read with Section 52 of the Act and its tender by the purchaser, the licensee wrongfully refuse to complete the sale and to execute a conveyance or to give possession of the undertaking, an action for declaration of title, for possession of the undertaking and for injunction restraining the Defendant from interference will certainly lie. The facts of the case before the Allahabad High Court were very different and in a completely different background they were considering whether an action lay. The Plaintiff in the said I action had certainly a direct cause of action. 11. Adverting to his next decision in the Calcutta High, Court this very question seems to have been directly raised. In paragraph 24 of the judgment, the learned judge stated: Counsel, on behalf of the Defendants contended first, that the Plaintiff was not entitled to any relief because there was no obligation cast in favour of the Defendant to erect a building in accordance with plan or not to erect a building in violation of a plan and that such obligations were pre-requisite u/s 54 of the Specific Relief Act. It was secondly contended that the Plaintiff would have no right of action and the rights, if any, were governed by the Calcutta Municipal Act which was a self-contained Code as to legality and illegality of plans and remedies in that behalf. It was secondly contended that the Plaintiff would have no right of action and the rights, if any, were governed by the Calcutta Municipal Act which was a self-contained Code as to legality and illegality of plans and remedies in that behalf. Defendant's contentions were that u/s 6 of the Calcutta Municipal Act the Corporation, various Committees, and the Commissioner were invested with authority to carry out the provisions of the Act. Reliance was placed on Sections 43 to 47 of the Act to show that the State Government was given right under the statute to call upon the Corporation to take action and apart from those sections no right was conferred on any person and therefore the Plaintiff could not have any right. It was conceded that the Plaintiff would have the right to apply for mandamus directing the Corporation to do an act but that there could not be any right to sue. I am unable to accept that contention. A right to sue is not barred by the provisions of the Calcutta Municipal Act and the right to sue by a litigant is open unless there are express provisions to the contrary in any statute. The wrong alleged by the Plaintiff is that there is breach of statute and statutory obligation. True, that the Corporation has the power to proceed against the Defendant. Suppose that the Corporation has sanctioned a plan illegally as in the present case, is the Plaintiff, the adjoining owner bereft of any remedy? On behalf of the Defendants it is conceded he has remedy only if he proceeds against the Corporation in the presence of the Defendants and not otherwise and secondly, it can only be by way of mandamus. The absence of the Corporation does not, in my opinion deprive the Plaintiff of the right to sue. As to whether he would be entitled to relief is a different aspect. The Plaintiff complains of infraction of law in relation to the building and as the adjoining owner he has the right to see that the building is constructed in conformity with the provisions,of the statute. The functional approach in the interpretation of statutes is adopted in questions whether an individual is entitled to compensation for harm sustained as the result of the breach of statutory duty. The functional approach in the interpretation of statutes is adopted in questions whether an individual is entitled to compensation for harm sustained as the result of the breach of statutory duty. The rule is that he is so entitled if the mischief which the statute was designed to irradiate contemplated damage to him or the class to which he was a member. A municipal authority sub-serves the needs of an ascertained class of persons, namely, owners of buildings or residents of building in regard to the enjoyment of the property or the building. The reasoning adopted by his Lordship was that 'Obligation having been defined in the specific Relief Act and for a breach of obligation relief of injunction being available a breach of the Municipal Rule was justiciable and the Plaintiff bad a cause of action for the said purpose. His Lordship, therefore, stated, In the present case the Defendants have an obligation under the statute to build in accordance with Rules. That statutory obligation, it is contended by the Defendants, is enforceable by the Corporation only under some sections of the Act. The Corporation has the right to proceed against the offending building because of the benefit and the interest of the public safeguarded by the Act, that buildings shall not be constructed in violation of the statute. An illegal construction by the Defendants materially affects the right to or enjoyment of the Plaintiffs property. The Defendants owe duty and obligation under the statute Dot only to the Corporation as custodian of the owners of buildings but also to the Plaintiff. This duty arises by implication under the Statute. If the Defendant constructs a building according to a plan which is illegal, the adjoining owner has the right to ask for an injunction because there is an invasion of right to and enjoyment of property by the illegal construction and the Defendant owes an obligation to the Plaintiff to obey the law. It is conceded by the learned Counsel for the Respondent that he has not been able to show that he is directly effected by the non-compliance of the Municipal Rules. The Courts below have also not recorded finding in that behalf. On the conceded position that the Plaintiff has not suffered from any damage on account of the violation of Rule 534-E of the Orissa Municipal Rules, the question has to be examined. The Courts below have also not recorded finding in that behalf. On the conceded position that the Plaintiff has not suffered from any damage on account of the violation of Rule 534-E of the Orissa Municipal Rules, the question has to be examined. The Division Bench of the Calcutta High Court in 1952 had clearly indicated. That merely for such a violation in the absence of evidence of special damage or an infringement of his right the Plaintiff was not entitled to sue. In view of such a decision holding the held in the Calcutta High Court it was not open to a learned Single Judge to take a contrary view. It has been authoritatively laid down by their Lordships of the Supreme Court that in such circumstances the Single Judge's decision must be taken to be no authority. 12. In the Division Bench decision of this Court, as I have already indicated, their Lordships were examining the relief in respect of & writ for certiorari. The action of the Municipal Council in sanctioning a plan contrary to the rules was the point for examination. It was not a case of this type where the Defendant was carrying on construction contrary to law and there was no statutory violation of duty of a public authority. From the portion I have extracted above from the Division Bench judgment it also clearly appears that their Lordships intended to say that there must be an injury to a specific individual. It is there is some observation subsequetntly on the basis of two Calcutta decisions which run slightly differently. As a matter of fact one of these Calcutta decisions A.C. Mohammad v. Corporation of Calcutta 45 C.W.N. 402, was noticed by the Division Bench of the Calcutta High Court in 1952. I, therefore, do not think that their Lordships of this Court in the Division Bench decision clearly laid down that even in the absence of specific injury to an individual he was entitled to sue on the basis of violation of a Municipal Rule. 13. Mr. Dey wanted to contend that there were pleadings and evidence in respect of the Plaintiffs claim of acquisition of a right of easement over the 3 feet space and Defendant No. 1 has constructed in violation of such easementary right. In the Courts below there does not appear to have been any investigation. 13. Mr. Dey wanted to contend that there were pleadings and evidence in respect of the Plaintiffs claim of acquisition of a right of easement over the 3 feet space and Defendant No. 1 has constructed in violation of such easementary right. In the Courts below there does not appear to have been any investigation. This issue seems to has been struck. In such circumstances I do not think I would be Justified to entertain that aspect in Second Appeal. 14. Defendant No. 1 has accepted the decree so far as the mandatory direction to close down the openings and the apertures from the first floor over looking the Plaintiffs courtyard is concerned. That part of the decree shall be sustained. Coming however, to the question of the other part of the decree by which Defendant No. 1 has been caned upon to demolish the construction over the 3 feet space in violation of Rule 534-E of the Orissa Municipal Rules, the decree has to be vacated on the footing that the Plaintiff has no cause of action to challenge the construction over that portion. The appeal is partly allowed. Since success has been divided, I think it proper to direct both the parties to bear their own costs throughout. Final Result : Allowed