JUDGMENT : J.K. Mohanty, J. - Plaintiff is the Appellant in both these appeal. The Plaintiff had filed a suit claiming right of easement for removal of encroachment made by the Defendant, for permanent injunction restraining the Defendant from constructing any structure over the schedule 'A' land within 5' from his southern wall in holding No. 109 and also for restraining the Defendant not to obstruct his windows, ventilators and exhaust fans so as to interfere with his right to light and air. The Plaintiff has a four-storied building at Marwari Pada in Sambalpur town bearing holding No. 109 by the side of the Defendant 'E' land described in schedule 'A' to the plaint. The Plaintiff has 14 windows, ventilators and exhaust fans facing the schedule 'A' land of the Defendant and through these the Plaintiff is enjoying light and air since long and has acquired the right of easement. The Defendant had a temporary shed of 15' dimension in the western corner of the schedule 'A' land. The rest of the land was vacant. The Defendant started constructing a residential building covering the entire area in violation of the provisions of Orissa Municipal Act and Rules without leaving a set back of 5' from the Plaintiff's wall with a view to deprive him from enjoying the natural light and air through his windows, ventilators, etc.. The Defendant had also (sic) upon a strip of 5" of his plinth. He had also' attributed fraud and suppression of material particulars to get the sanction of the plan approved by the Executive Officer of the Municipality. As the Defendant turned a deaf ear to the protests of the Plaintiff and proceeded ahead with the construction, the Plaintiff had filed the suit. 2. The Defendant filed written statement and contended that he had a forty year old Kachcha house on a portion of his land in holding No. 109. He started construction of a new building in place of the old one after obtaining permission and sanction of the plan from the Municipal and Town Planning Authorities. He had not violated any provision of the Municipal Act or Rules in constructing his building. Earlier, the Plaintiff had constructed his house adjoining the north of the Defendant's house without leaving the set back of 5' at the border between them in clear violation of the Municipal Act and Rules. He had not violated any provision of the Municipal Act or Rules in constructing his building. Earlier, the Plaintiff had constructed his house adjoining the north of the Defendant's house without leaving the set back of 5' at the border between them in clear violation of the Municipal Act and Rules. He had also constructed the house without obtaining a permission from the authorities concerned. In doing so, the Plaintiff had encroached upon a strip 1 in width from the Defendants land in spite of his protest. The Defendant denied the allegation of encroachment of 5 of land and also denied any right of easement of the Plaintiff to light and air. 3. The learned Munsif, Sambalpur, who heard the suit, held that none of the parties have encroached upon the land of the other in constructing their respective buildings. The Plaintiff has not acquired any right of easement to light and air as stated by him. He, however, held that the Defendant has violated the provisions of the Municipal Act and Rules while constructing a new building by not leaving a set back of 3' from the Plaintiff's southern wall. Against the aforesaid judgment had decree, the Defendant preferred an appeal. The Plaintiff also preferred an appeal on the ground that the learned Munsif should have found that there was encroachment of his land by the Defendant and that he had right of easement which entitled him to an order of injunction as prayed for by him. The appellate court allowed the appeal preferred by the Defendant and dismissed the appeal filed by the Plaintiff. Both the appeals were disposed of by a common judgment. The Plaintiff has now preferred these appeals against the aforesaid judgment and decree of the lower appellate court. 4. Both the courts below have concurrently held that the Plaintiff has no easementary right as claimed. The parties have not encroached upon each other's land. This position is also not disputed here. The controversy now centres round the question, whether the Defendant has constructed his building in violation of the provisions of Orissa Municipal Act and Rules by not leaving a set back of 3 from the Plaintiffs southern wall while constructing his house and if so whether the Plaintiff is entitled to a decree for permanent injunction restraining the Defendant from constructing his building. 5. 5. It is contended by the learned Counsel for the Appellant that the Defendant has violated the provisions of Orissa Municipal Act and Rules by not leaving a set back of 3 from the southern wall of the Appellant. He also contended that Rule 530(b)(i) of the Orissa Municipal Rules has been violated. Rule 530(b)(i) is as follows: 530. (a) xx xx xx (b) No land shall be used as site for the erection or re-erection of the masonary building (i) if such site is less than 0.04 acre or 1.742 square feet in area or is less than 25 feet in width on the road side; Both the courts' below have found that though the area of the Defendant's land is less than 0.04 acre, its width is more than 25 feet on the road side. 6. Admittedly, the Defendant has not left a set back of minimum open space on the road side. But the Plaintiff has also not left any such set back. Learned Counsel for the Appellant submitted that when there is a violation of the Municipal Laws, the court should not hesitate to interfere. In support of his contention he relied on a decision reported in K. Ramadas Shenay v. The Chief Officer, Town Municipal Council, Udipi and Ors. 1974 S.C.D. 813. In the above case licence was granted by the municipality for the construction of Kalyan Mandap-cum-Lecture Hall. The main conditions of the licence were that the building to be put up was to be a Kalyan Mandap and construction was subject to the provisions of Madras Public Health Act, 1939 and the scheme framed under the Madras Town Planning Act, 1920. Subsequently, application was filed to grant licence for use of the building as a cinema hall for public entertainment and to instal generators with oil engines. Necessary permissions were granted. The revised plan for conversion of the Kalyan Mandap cum-Lecture Hall into a cinema hall was allowed. The resolutions of the 'municipal authorities were challenged in the High Court. The High Court granted relief regarding all other resolutions except the resolution regarding the conversion of the Kalyan Mandap-cum-Lecture Ball into a cinema hall. The Supreme Court held: The contention is that a mere grant of licence to construct a cinema causes no injury and the Appellant would have no cause of action until the building would be actually used as a cinema. The Supreme Court held: The contention is that a mere grant of licence to construct a cinema causes no injury and the Appellant would have no cause of action until the building would be actually used as a cinema. The Appellant can challenge at the threshold when the scheme which is framed for the benefit of the residents in that area is violated by the Municipality. The High Court was wrong in not quashing the resolution on the surmise that money might have been spent. Illegality is incurable. For the foregoing reasons, the appeal is accepted. The order of the High Court leaving resolution dated 19th June, 1970 being Annexure' D' to the petition undisturbed is set aside. The resolution dated 19th June, 1970 being Annexure 'D' to the petition before the High Court is quashed: It was further held: An illegal construction of a cinema building materially affects the right or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The fights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the Courts will quash orders passed by the Municipality in such cases. The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction. The High Court was not correct in holding that though the impeached resolution sanctioning plan for conversion of building into a cinema was in violation of the Town Planning Scheme yet it could not be disturbed because the third Respondent is likely to have spent money. An excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel The Court declines to interfere for the assistance of persons who seek its aid to relieve them against express statutory provision. Lord Salborne in Maddison v. Alderson, said that Courts of equity would not permit the statute to be made an instrument of fraud. The impeached resolution of the Municipality has no legal foundation. The High Court was wrong in not quashing the resolution on the surmise that money might have been spent. Illegality is incurable. The above case has no application to the facts and circumstances of the present case. In the above case, the Municipality had granted licence for construction of Kalyan Mandap-cum-Lecture Hall subject to certain conditions. But subsequently it was permitted to be converted into a cinema hall, in violation of the provisions of the Municipal Laws. In this case the Defendant bas constellated the house after getting the plan sanctioned by the municipal authorities, but he has not left the set back of 3'. The Plaintiff has also not left the set back. Learned Counsel for Defendant submitted that mere violation of the municipal plan and rules would not furnish the Plaintiff with a cause of action. He must prove that the violation resulted in an invasion of his right to light and air. In support of his contention he relied on a Full Bench. decision of this Court reported in Krushna Kishore Bal Vs. Sankarsan Samal and Others, wherein it has been held: Mere violation of the municipal plan or rules would not furnish the Plaintiffs with a cause of action. In support of his contention he relied on a Full Bench. decision of this Court reported in Krushna Kishore Bal Vs. Sankarsan Samal and Others, wherein it has been held: Mere violation of the municipal plan or rules would not furnish the Plaintiffs with a cause of action. Plaintiffs must prove that Defendant's construction in violation of the plan and the rules resulted in an invasion of their right to light, air and privacy causing material injury to them. If the Plaintiffs establish such a case, Defendant has an obligation in favour of the Plaintiff and Plaintiffs can enforce their right through Civil Court and not under the provisions of the Act Plaintiffs to get a perpetual and mandatory injunction must also prove that pecuniary compensation would not afford adequate relief. As already mentioned, the Plaintiff has constructed his house without leaving any set back in violation of the sanctioned plan and the provisions of the Municipal Laws. It has been held by the courts below that in the plan submitted before the Municipality, the Plaintiff had not given any proposal to open windows or ventilators in the southern wall so as to derive light and air from the side of the Defendant's land. The Plaintiff has opened windows and ventilators which is not in consonance with the approved plan. In the above background, mere contention of the Plaintiff that he has suffered injury due to the violation of the Municipal Laws by the Defendant is not enough to give him any relief. 7. As already held, the Plaintiff has not acquired any right to light and air by easement. He has also failed to prove that he has any cause of action. Considering the facts and circumstances of the case, I am of the view that the appeals have no merit and the same are dismissed. In the circumstances, there shall be no order as to costs. Final Result : Dismissed