A. K. SEN, M. N. RAY ( 1 ) THIS appeal, at the instance of Respondent No. 6 in the Rule (hereinafter referred to as the appellant), who is the owner of premises No. 1/172a, Gariahat Road, South, Jodhpur Park, Calcutta-31, is directed against the judgment and order dated July 9, 1974, whereby Civil Rule No. 2359 (W) of 1959, obtained by the Respondent No. 1 (hereinafter referred to as the Respondent) in this appeal was made absolute by P. K. Banerjee J. ( 2 ) THE Respondent is admittedly the owner of premises No. 1/171, Gariahat Road, South, Jodhpur Park, Calcutta-31 which is contiguous to that of the appellant. In or about June 1973 the appellant started construction of masonry work on the southern portion of her premises and more particularly in the back space which was alleged to be not wider than 10 ft. at any point. Since the Respondent found that there was no scope for taking average for the purpose of determining the width of the open space as contemplated in proviso (a) to sub-Rule (2) of Rule 33 of Schedule XVI of the Calcutta Municipal Act (hereinafter referred to as the said Act), which is to the following effect: r. 33 (1 ). . . . . (2)every such courtyard and open space shall form part of the site of the building, shall be open to the sky throughout its entire area, and shall be kept accessible for the purpose of cleansing; and no structure shall be erected within or above, or so as to project over, the same : provided that - (c)a one-seated or two-seated connected privy or a connected privy with a bathroom attached thereto or two connected privies, not exceeding forty square feet in floor area in the aggregate, exclusive of walls may be erected in the open space left under rule 30, sub-rule (2) or rule 31, if the average width of the open space is ten feet or more; (d ). . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . and in view of the said Rule, no structure whatsoever could be constructed in such back space and in fact such construction was being undertaken in violation of the same, so on or about June 28, 1973, he drew the attention of the City Architect, Corporation of Calcutta and requested him to pass necessary orders for stopping such unauthorized and illegal construction. It is an admitted fact that in reply thereto, the Respondent received a letter dated July 17, 1973 from the District Building Surveyor concerned intimating that the construction would be checked when the sanctioned plan would be available. The Respondent contended the said reply to be vague, illusory and purposeful and furthermore the same was intended to help the appellant to continue with and complete the construction. It also appears from the records that several representations were made thereafter, requesting the authorities concerned to take necessary steps for stopping the said construction and ultimately on or about August 24, 1973, he was informed that constructions were done in deviation from the sanctioned plan for which action under S. 416 of the said Act has already been taken. The Respondent was further informed that the appellant had already submitted a plan for regularizing the deviation. ( 3 ) THE Respondent has alleged that for some time the appellant had kept the construction works suspended. But thereafter and as soon as he started the work of construction, he made further representations to the authorities concerned and on that he was informed that the party having filed a fresh plan removing the deviations, necessary sanction to the construction has been accorded subject to payment of necessary fees of the Corporation of Calcutta. The said communication at Annexure "d" to the petition was dated September 20, 1973. Thereafter, the Respondent after making some futile representations moved this Court on October 1, 1973 and obtained the connected Rule impeaching the said order in Annexure "d". It may be mentioned that the validity of the sanction in question was not challenged. The said communication at Annexure "d" to the petition was dated September 20, 1973. Thereafter, the Respondent after making some futile representations moved this Court on October 1, 1973 and obtained the connected Rule impeaching the said order in Annexure "d". It may be mentioned that the validity of the sanction in question was not challenged. In the petition it was also alleged that the Municipal authorities did not take any steps in respect of the construction of the W. C. in the back space made in violation of Rule 33 (2) (a) of Schedule XVI as aforesaid. ( 4 ) THE Municipal authorities in their return to the Rule denied any violation of the said Rules and contended that the Commissioner has not only approved the plan as sanctioned but he has also given necessary sanction to the revised plan which was filed after duly removing or remedying the deviations. Thus it was contended by them that the construction was made in accordance with law and there was or has been no infringement of the Rules. Such defence was also taken by the appellant. ( 5 ) THE point which came up for consideration before the learned Judge in the trial Court, was whether the plan as sanctioned infringed Rule 33 (2) (a) of Schedule XVI of the said Act in granting sanction for the W. C. in the 10 feet back space. ( 6 ) AT the time of the hearing of the Rule the Municipal authorities produced the sanctioned plan and it was also admitted by the parties that after the completion of the construction in question the remaining back space would not be 10 feet perpetual and the distance between the boundary wall of the Respondent and that of the impugned construction of the appellant would only be 2 feet or about that. ( 7 ) AT the time of the hearing of the Rule it was contended on behalf of the appellant that the construction in question was violative of Rule 33 (2) (a) of Schedule XVI of the said Act and made in contravention of Rule 30 which is to the following effect:rule 30 (1): there shall be, at the back of every domestic building, an open space extending along the entire width of the building and forming part of the site thereof. (2)the said space shall be of such width that any of a series of imaginary lines drawn across such space at an angle of sixty-eight degrees with the horizontal, from points on a level with the plinth of the building and situated on that side of the said space which is farthest from the building, shall not intersect any portion of the building up to a height of eighty feet (excluding open and balustraded parapets not more than four feet in height) : provided that the minimum width of such space shall be - (i)in the case of a building in which there are both inner and outer courtyards, six feet, and (ii)in the case of any other building, ten feet. (3)if it is proposed to erect one or more buildings on the site of an existing building or if two or more buildings are proposed to be erected on any one site (whether or not such buildings are connected by means of verandahs or gangways or in any similar manner), the open space referred to in sub-rule (1) shall be provided at the back of each such building. (4)this rule shall not apply in the case of - (a)a building the back of which abuts on a public square or street or a place dedicated to public use and not likely to be built upon not less than sixteen feet in width. (b)a building the back of which abuts on a public street less than sixteen feet in width, if the owner makes a free gift to the Corporation of all land comprised within the site of the building which falls within eight feet of the center line of such street as prescribed by the Commissioner under rule 3, sub-rule (6): provided that in cases (a) and (b), the height of the building shall, in accordance with the provisions of rule 3, be regulated by the width of the public square or street on which it abuts. (5)for the purposes of this rule, the back of a building shall be deemed to be that face of the building which is farthest from any street at the side of which the building is situated:provided that, where a building is situated at the side of more than one street, the back of the building shall, unless the Standing Buildings Committee otherwise directs be deemed to be that face of the building which is farthest from the widest of such streets: provided further that in the case of a tandem site, the back of a building shall be deemed to be that face of the building, which is along the lesser dimension of the site and the furthest removed from the street from which the site has access. Explanation - the expression "tandem site" means a site access to which is by a passage from a street, whether such passage forms part of the site or not". and the more so when back space of 10 feet or 3 metres was not left. Before the learned Judge in the trial Court it was submitted on behalf of the Municipal authorities that in terms of Rule 30 as quoted above, the Commissioner had power to relax the provisions of the said Rules under Rule 91 of the Schedule XVI, which is to the following effect:rule - 91 : (1)notwithstanding anything contained in this schedule, but subject to the provisions of S. 388, the Corporation may at any time, in dealing with any application to erect a new building as defined in sub-clauses (b), (c) or (d) of clause (49) of S. 5 or to add to, alter, or do any other work referred to in S. 387, to, any building erected before the first day of April, 1900, relax, for special reasons to be recorded in writing, the following rules in this schedule, in the manner and circumstances specified hereunder, namely: - (a) rules 30 and 32 may be relaxed so as to prevent the demolition of any material part of any masonry building existing on the space required to be kept open under the said rules: provided that - (i)the new building conforms to the other rules of this schedule; and (ii)in no case shall the height or extent of the building on the said space be increased or added to, unless this is otherwise permissible under the said rules. (b)rule 29 may be relaxed, provided that the building conforms to the provisions of either rule 23 or rule 30. (2)notwithstanding anything contained in this schedule, but subject to the provision of S. 338, the Corporation may at any time, in dealing with an application to add to, alter, or do any work referred to in S. 387 to any building erected before the first day of April, 1900 relax, for special reasons to be recorded in writing, rule 23, provided that some substantial increase in nevertheless made in the area of the open space belonging to the premises and already forming a part of the site". He further contended that Rule 33 only requires that the average width of the open space must be 10 feet or 3 metres and as such there was or has been no violation of the said Rule even though the impugned construction is within the 10 feet back space. The arguments of the Municipal authorities were followed and adopted on behalf of the appellant in addition to the further submissions with reference to Rule 23 of the Schedule XVI which is in the following terms:rule - 23: the total area covered by all the buildings on any site used for a dwelling-house shall not exceed two-thirds, or, in localities where the erection of only detached buildings is allowed, one-half, of the total area of the site, and the area not so covered shall form part of the site: provided that the Commissioner with the approval of the Standing Committee may permit - (a)an area not exceeding 75 per cent of the total area of the building site, to be covered, in case the site is situated in a locality other than localities where erection of only detached building is allowed and abuts at the junction of two streets each of which is not less than 12 feet in width throughout the length of the site abutting on it, or (b)an excess area not exceeding 5 per cent of the total area of the site, to be covered, in case the site is situated in a locality in which the erection of detached building is allowed". to the effect that there was no violation of any of the Building Rules to the effect that there was no violation of any of the Building Rules including Rule 33 as quoted hereinbefore. to the effect that there was no violation of any of the Building Rules to the effect that there was no violation of any of the Building Rules including Rule 33 as quoted hereinbefore. That apart, reference was also made to Rule 31 which is to the following effect:rule - 31 : if any person desires to erect a domestic building upon a site which is irregular or of such a nature that it is impracticable to provide an open space in the rear of the building of the dimensions prescribed by Rule 30,the Commissioner with the approval of the Standing Committee may relax the provisions of that rule: provided that the open space left in the rear of the building shall not be less than four feet in width at its narrowest part and the average width of such open space shall not be les than the width as would be required under rule 30 if the site were not of an irregular nature: provided further that in the case of a building situated on the edge of a street which has open spaces on its sides as required under rule 32, the average width of the open space to be left in the rear of the building may be six feet or more - (a)if such building does not exceed twenty-five feet in height (excluding any stair-cover in the thire storey, not higher than eight feet); and (b)in the case of any such building not coming within clause (a), if the provisions in sub-rule (2) of the rule 30 are complied with, so however that the angle referred to therein is drawn from points on an imaginary line drawn at a distance of ten feet from the back of the building. " ( 8 ) THE learned Judge in the trial Court in the judgment under appeal, on consideration of the arguments as advanced and the provisions of the relevant Rules as quoted hereinbefore, came to the conclusion that Rule 31 was not applicable in the instant case since the same has application in respect of a site which is irregular or of such nature that it is impracticable to provide an open space in the rear of the building of the dimension prescribed in Rule 30. It has also been observed by the learned Judge in the trial Court that it was not the case of the parties before him that the site in question is irregular or of such a nature that it would be impracticable to keep the necessary space in the rear of the building. It has further been held that it cannot be said that Rule 31 applies in respect of a plot which is not irregular or a site on which it is not impracticable to provide an open space in the rear of the building of the prescribed dimension. On the question of Rule 33 (2) (a) of the Rules and more particularly on the question of the interpretation of the word "average" occurring therein it has been held by the learned Judge in the trial court that the provisions of the said Rule make it clear that after the construction of W. C. s. there must be such average width of open space throughout the rear portion of the building, so that the same comes to 10 feet or 3 metres or more. In other words, after the proposed construction there should be a perpetual back space of 10 feet or 3 metres or more and it would not be compliance with the Rules if such construction is made within the said space. The learned Judge in the trial Court further negatived the arguments put forward on the question of relaxation under Rule 91 as quoted hereinbefore and ultimately observed that the sanction of the Corporation of Calcutta in respect of two W. C. and gangway within the open back space on the rear of the building in question was not in accordance with law and as such directed them to cancel the sanction in question in respect of the portion which violated Rule 33 (2) (a) of Schedule XVI of the said Act and also restrained the appellant from making further construction in the back space of her building. ( 9 ) IN support of the appeal Mr. ( 9 ) IN support of the appeal Mr. B. C. Dutt contended that the learned Judge in the trial Court was wrong in his construction of the connected Rules in so far as he held that the word "average" in proviso (a) to Rule 33 (2) should mean that after the construction in question there should be the perpetual average of 10 feet or 3 metres vacant space in the back portion of the alleged offending premises. Mr. Dutt further supplemented his arguments with reference to Rule 30 of the Schedule and stated that if the Rules as aforesaid are read together and which should be done the determination as made, is bound to be held to be invalid and irregular. He submitted that on a construction of the said Rules and more particularly in view of the provisions in Rule 30 it must be held that such construction as was done in the instant case, was wholly authorized and permissible in the average 10 feet or 3 metres back space of the premises of the appellant and as such the Municipal authorities duly and authorisedly granted sanction for the same. It was further submitted that the ultimate sanction not having been challenged, the Rule itself was not maintainable and competent. ( 10 ) MR. N. C. Chakravartti opposing the appeal, first took us through the order as made in the Rule and submitted that since the writ has been directed to be issued against the Statutory authorities viz. , the Municipal authorities and they have not preferred any appeal, the appeal at the instance of a private individual, in the facts of the case, would not be maintainable. In short, he submitted that the Respondent being a private individual has no right of appeal in the facts of this case. After considering the arguments, we find that there is little or no substance in such submissions of Mr. Chakravartti. We are of the opinion that in case where an order issuing a writ has prejudicially affected the right of a third party, even though such third party is neither the State nor a Corporation or a Statutory authority, the said third party can prefer an appeal against the impugned determination. Chakravartti. We are of the opinion that in case where an order issuing a writ has prejudicially affected the right of a third party, even though such third party is neither the State nor a Corporation or a Statutory authority, the said third party can prefer an appeal against the impugned determination. Thus we hold that the present appeal, at the instance of the Respondent and not at the instance of the Municipal authorities, would be maintainable as her right has ultimately been prejudicially affected by the determination. ( 11 ) MR. Chakrabartti further referred to Rules 30, 31 and 33 of Schedule XVI of the said Act, in addition to Rules 30 and 31 of the Calcutta Municipal Act, 1923 and comparing the languages of those provisions, submitted that the word "average" as has been found by the learned Judge in the trial Court, should be so construed that after the construction in question there should be an average vacant back space of 10 feet or 3 metres throughout the length of the premises of the appellant and which is attached to the corresponding boundary wall of the Respondent. On a consideration and construction of the terms of the connected Rules we feel that there is also no substance in the submissions of Mr. Chakravartti. Rule 30 contemplates the keeping of an open space according to the Schedule and specification extending along the entire width of a domestic building at the back and Rule 31 given power of relaxation of the said Rule 30 in certain cases. Rule 32 would not be relevant for our consideration in this case since the same deals with side space. Rule 3e deals with courtyards and outward open spaces to be raised and kept open and proviso (a) to sub-rule (2) of the same provides for the owner of the said space, in the instant case, the back space of the appellant's house, to have certain constructions within the specifications as mentioned therein. The provisions of Rule 33 grants or provides exceptions in certain specified cases for having certain specific constructions in the open space as provided for in Rule 30 and affords corresponding authority to the Municipal authorities to grant sanction for such construction in case of necessary compliance. The provisions of Rule 33 grants or provides exceptions in certain specified cases for having certain specific constructions in the open space as provided for in Rule 30 and affords corresponding authority to the Municipal authorities to grant sanction for such construction in case of necessary compliance. As mentioned hereinbefore, Rule 30 will be no bar to accord necessary sanction for construction in terms of proviso (a) to sub-rule (2) of Rule 33 in case of compliance with the other formalities. Such construction may be made within the back space of 10 feet or 3 metres on due compliance with the other provisions of the Rules and would not mean that after the construction there should be a perpetual back space of 10 feet or 3 meters as has been found by the learned Judge in the trial Court. The construction in terms of the said proviso (a) to Rule 33 (2) may be made or sanctioned even within the 10 feet or 3 metres back space available in a premise. ( 12 ) THE word "average" as has been found in the case of Kidson v. Empire Marvine Insurance, L. R. 1 C. P. 535 is far from being a term of act - (except in so far as, according to the evidence, usage may have limited its meaning to loss or damage to the goods themselves) - or a word with a rigid or unchanging signification, necessarily including expenses in the defence or safeguard of the subject matter insured, is a word used in a great variety of phrases, as applicable to different subject matters, and not with any fixed or settled application. The dictionary meaning of the average (Oxford dictionary) amongst others is, degree, arithmetical mean, reckoning of, similarly the word "on an average" would mean ordinary standard or of the usual standard when the term used is estimated by average. The word "average" according to Websters' - a ratio (as a rate per thousand) of successful tries to total tries or an estimation of or approximation to an arithmetic mean. The same also means equaling an arithmetic mean, approximating or resembling such mean in being about midway between extremes. Thus connected Rule should mean that the width of such space calculated on arithmetical mean must be 10 feet or 3 metres all throughout. The same also means equaling an arithmetic mean, approximating or resembling such mean in being about midway between extremes. Thus connected Rule should mean that the width of such space calculated on arithmetical mean must be 10 feet or 3 metres all throughout. The clause "if the average width of the open space is 10 feet or more" qualifies the term "open space" where the W. C. contemplated by Rule 33 (2) (a) can be permitted to be constructed so that if for any reason the average width of the back space falls short of 10 feet no such construction can be permitted. But this clause does not mean that such a space is to be left vacant even after construction of the W. C. For such a construction no special provision as under Rule 33 (2) (a) would have been necessary at all. Therefore, the Municipal authorities would have the power and authority to sanction appropriate constructions within the said area and when such construction is made, that would not mean that the vacant space should be counted or to be found out after excluding the said construction and the area covered by the same. The average width of the open space, according to us would mean average of the width on the vacant space all throughout and as stated hereinbefore, constructions on compliance with the Rules might be sanctioned within that area or space. ( 13 ) IN view of the above, the arguments advanced by Mr. Chakravartti fail and those of Mr. Dutt should succeed. The appeal is allowed accordingly. The judgment and order of the learned Judge in the trial Court is set aside. ( 14 ) THERE will, however, be no order as to costs. ( 15 ) THE prayer for stay of operation of the order is refused. Anil Kr. Sen, J: I agree appeal allowed.