Writ Petition No.394 of 1994

21st July, 2000

Petitioner Counsel: Shri. S.D. LOTLIKAR
Respondent Counsel: Shri. J.E. COELHO PEREIRA Shri. J. GODINHO

Cases Cited:
Pandurang Rogunath Shirodkar & anr. vs. Ladu Rogunath Shirodkar & anr., (First Civil Appeal No. 98/79 dt. 11.10.1983) [Para 10]
Smt. Margarida Fernandes vs. Shri. Antonio Joaquim Fernandes, 1991 (2) G.L.T. 222 [Para 11]
M/s. Vora Automotives Pvt. Ltd. vs. Gopalrao Namdeorao Pohre & ors., AIR 1993 Bombay 151 [Para 12]
Rashid Ahmed vs. The Municipal Board, Kairana, AIR 1950 SC 163 [Para 21]
B. Raghunandan Saran vs. Smt. Kanta Devi, AIR 1975 All. 130 [Para 23]
P. Saina vs. Konderi, AIR 1984 Kerala 170 [Para 25]
K.Ramdas Shenoy vs. The Chief Officer, Town Municipal Council, Udipi & ors., AIR 1974 SC 2177 [Para 26]
Sarada Bai & ors. vs. Shakuntala Bai & ors., AIR 1993 A.P. 20 [Para 28]
Bhagwan Das vs. Harish Chetwal, (C.R.P. No.4600 of 1982 dt. 25.2.83) [Para 28]
Pratibha Co-operative Housing Society vs. State of Maharashtra, 1991(3) SCC 341 [Para 29]
AIR 1941 Cal. 391 [Para 30]
Nandalal vs. Provudayal, AIR 1952 Cal 74 [Para 31]
Porul Roy vs. Srinibash Chowmal, AIR 1952 Cal 364 [Para 31]
Purushottam Lalji vs. Ratan Lal, AIR 1973 Cal 459(FB) [Para 31]
Krushna Kishore Bal vs. Sankarsan Samal, AIR 1974 Orissa 89 (FB) [Para 31]
Lalit Mohan vs. Samirendra Kumar, AIR 1977 Cal 174 [Para 31]
Gobind Singh vs. Shanti Sarup, AIR 1979 SC 143 [Para 32]
Ratlam Municipality Municipal Council vs. Vardhichand, AIR 1980 SC 1622 [Para 32]
Narayandas Kunugo vs. Saraswatibai D. Joshi, (69) 1967 BLR 622 [Para 32]
Bangalore Medical Trust vs. B.S. Muddappa & ors., AIR 1991 SC 1902 [Para 36]
Agins vs. City of Tiburon, (1980) 447 US 255 [Para 36]

JUDGMENT

DAGA, J. :- This writ petition under Article 226 of the Constitution of India is the culmination of feud between two neighbours. Much of the ills of life is the result of the people not learning how to live and let live.

Brief narration of history to appreciate rival contentions may be stated as under :

2. The petitioner claims to be the co-owner of the property popularly known as "Buttem Bhat" surveyed under No.134/4 of Murda Village, Merces, Ilhas, Goa. The said property is a residential house with adjoining open space. The petitioner claims to have acquired right and interest in the said property by virtue of her marriage, that is through her husband who is employed in Middle East.

3. The respondent No.2 is residing in the property surveyed under No.135/3, situated on the western side of the petitioner's property, part of which he claims to have purchased. In short, respondent No.2 owns and possesses the adjoining plots. The petitioner's plot is eastern one and the respondent No.2's western one.

According to the petitioner, the main entrance of her residential house faces towards the property of respondent No.2. In order to separate these two properties, there is a compound wall of the petitioner on the western boundary of her plot in which there is gate of about 2 metres in width.

4. The petitioner claims that she and her predecessor-in-title have always been using the open space of the property bearing Survey No.135/3, 135/2 and 135/1 for access to public road leading from Merces to Panaji. The petitioner, in short claims to have acquired easementary right of way through the property surveyed under No.135/1, 135/2 and 135/3 by prescription. According to the petitioner, the said traditional access had a uniform width of about 1.5 metres right from its inception.

5. The petitioner alleges that in the month of November, 1992, respondent No.2 demolished a portion of his house situated in the property surveyed under No.135/3 and constructed thereon a new house without obtaining any licence from the Village Panchayat or any clearance for such construction from the Planning and Development Authority which he was bound to obtain before proceeding with the construction activity. According to the petitioner, the old premises occupied by the respondent No.2 was a part of bigger house, the new construction started by respondent No.2 was an independent construction occupying much larger area than that of the area occupied by the old structure. Initial, additional area occupied was towards the eastern side; that is, towards the side of the petitioner's property. The petitioner further went on to allege that respondent No.2 not being satisfied with the illegal construction initially started by him, undertook further construction activity on the southern side of the property surveyed under No.135/3. He dug up pits in the said property in such a way that it was clear that respondent No.2 intended to undertake construction activity, so as to cover up and obstruct the right of access in the form of traditional way which the petitioner was enjoying without any obstruction.

6. The petitioner further states that she through her husband lodged a complaint to the Chairman of the Panaji Planning and Development Authority on 4.12.1992 about the said illegal construction commenced by respondent No.2 and a copy of the said complaint was forwarded to the Collector of North Goa, at Panaji. The Deputy Collector (Development), from the Office of the Collector of North Goa, Panaji, Goa upon receipt of the said complaint forwarded the same to the Block Development officer under letter dated 9.12.1992 with instruction to conduct inquiry into the complaint made by the petitioner's husband and to instruct the Sarpanch of the Village Panchayat of Merces to take necessary action under Section 83 of the Village Panchayat Regulations, 1962 if the construction started by respondent No.2 in the property surveyed under No.135/3 was found to be illegal.

7. It further appears from the petition that upon receipt of the said letter from the Dy. Collector, the Block Development Officer, Panaji, in turn, forwarded the said letter to Sarpanch of Village Panchayat Merces along with his letter dated 17.12.1992 and requested the Panchayat to inquire into the matter and submit a detailed report within 7 days from the date of receipt of the said letter and also directed to initiate action to remove the said structure, if the same was found to be illegal.

8. The petitioner states that respondent No.1 failed to take any action to remove the illegal construction though assurances were given by the Sarpanch of respondent No.1 that action to remove the illegal construction would be taken by the Village Panchayat.

9. The petitioner has further brought on record that since the illegal construction affected her traditional right of way, constituted an act of encroachment on her easementary rights and, therefore, she was also forced to institute a suit in the Court of Civil Judge, Jr. Division, Panaji being Regular Civil Suit No.15/93/B for permanent injunction to restrain respondent No.2 from doing any construction activity so as to obstruct or interfere with the traditional access of the petitioner. Her application for temporary injunction met with rejection. However, the said rejection was reversed by the Addl. District Judge, Panaji in Misc. Civil Appeal No.36/93 vide order dated 30.6.1993 and the said interim litigation is now pending for final adjudication in the High Court, being Civil Revision Application No.162/93.

10. The petitioner has also brought on record the circumstances for invoking writ jurisdiction of this Court. The petitioner apprehended ultimate dismissal of suit in view of several decisions of the Panaji Bench of this Court holding that non-compliance of Municipal Bye-laws or violation of Rules or Regulations of the Village Panchayat, or construction done in breach of sanctioned plan do not furnish cause of action for filing suit. In other words, adjoining owner has no locus standi to file suit for the purpose of enforcing the Municipal Bye-laws. He has also brought to our notice unreported Judgment of this Bench, in the matter of Pandurang Rogunath Shirodkar and another v. Ladu Rogunath Shirodkar and another in First Civil Appeal No.98/79 delivered on 11.10.1983 (Per G.F. Couto, J.); wherein the suit for mandatory injunction; complaining violation of Municipal Bye-laws in relation to the construction impugned therein. The suit was resisted and the maintainability of the suit was questioned for want of cause of action. The locus standi of the plaintiff who was an adjoining owner, to maintain the suit, was also a subject matter of challenge. A contention was raised therein that the adjoining owner does not get right to enforce the Municipal Bye-laws as they are not meant for the benefit of the owners of adjoining land. As a sequitur of this submission, it was contended that if the adjoining owner has no locus standi, then no civil right accrues to the owner of the adjoining building to enforce compliance of the Municipal Bye-laws. Consequently, it was also contended that no civil liability accrues to the owner of building in order to comply with the aforesaid Bye-laws. The Learned Single Judge of this Court was pleased to uphold the said contentions and held that the suit at the instance of adjoining owner to complain breach of Municipal Bye-laws, requiring developer to keep side set back of three metres was not tenable as the Municipal Bye-laws are not for the benefit of adjoining owners. Breach thereof does not furnish cause of action to maintain suit at the instance of a neighbour.

11. The other Judgment of this Court in the matter of Smt. Margarida Fernandes v. Shri. Antonio joaquim Fernandes (1991 (2) G.L.T. 222) (Per G.D. Kamat, J.) was also brought to our notice wherein it was held that a suit complaining breach of the Municipal Bye-Laws was not maintainable and while dealing with one of the Bye-laws in relation to the set back, the learned Judge concurred with the earlier view of the learned Single Judge in the matter of Pandurang Rogunath Shirodkar and another v. Ladu Rogunath Shirodkar and another (supra) that keeping of the set backs is mainly for the benefit of the owner of the building and not for the benefit of the owner of the adjoining land.

12. One more Judgment of this Court in the matter of M/s. Vora Automotives Pvt. Ltd., v. Gopalrao Namdeorao Pohre and others. (AIR 1993 Bombay 151), was brought to our notice wherein the plaintiff was the owner of a double-storyed building located on the suit plot. The defendants were the owners of adjoining plot situated on the western side of the suit plot. To construct a commercial complex, they had obtained sanction to construct under Section 189 of the Maharashtra Municipalities Act, 1965. According to the plaintiff the sanction as accorded was contrary to the standardized bye-laws and development control rules. The Municipal Council while granting sanction ignored the objections raised by the plaintiff. The Collector, therefore, in exercise of powers under Section 308 of the Maharashtra Municipalities Act, 1965 had directed the Municipal Council to consider the objections. However, the Municipal Council did not give any heed.

13. The plaintiff, therefore, had to file a suit claiming decree for injunction to prevent construction as per the approved plan particularly within 10 feet space adjoining the western side of the suit property. Further the plaintiff had claimed a mandatory injunction against planning authority, directing them to perform their mandatory duty to consider the question of permission only in accordance with law and sought direction against the defendants (adjoining developer) not to make any construction within 10 feet open space touching the boundary of the plaintiff's property. The said litigation marched into the revisional jurisdiction of the High Court and the question was raised as to whether the Civil Court possesses jurisdiction to try the suit for the relief as claimed. The Learned Single Judge finding no express bar ousting the jurisdiction of the Civil Court read ouster to the jurisdiction of the Civil Court by necessary implication, and held as under :

"Civil P.C. (5 of 1908), S.9 - Jurisdiction of Civil Court - Suit for injunction restraining a person to construct building as per plan - Adequate remedy provided to any person interested under Scheme of Act - Jurisdiction of Civil Court ousted by necessary implication

Maharashtra Municipalities Act (40 of 1965) Ss.189, 308, 304.

...The building construction or development is highly technical and specialised branch. The Municipal Council being a Planning Authority is adequately invested with power to take drastic and coercive measures to enforce the compliance of the provisions of the Acts, rules and bye-laws.....

.... Chapter XII of the Act of 1965 as regards building construction, no doubt creates a statutory obligation on the Municipal Council to see enforcement and compliance of the provisions of the Act and bye-laws. The statutory obligation is for the public good. However, every individual wrong could not be enforceable. To redress the grievance in case of breach of statutory duty, the remedy as provided by the Act which creates a duty or obligation, can alone be availed. As a settled principle, Civil Court being a forum of general jurisdiction cannot be permitted to be approached. Under the scheme of Acts of 1965 and 1966, it is ordained to enforce the statutory duty in the manner specified therein, as discussed above. Under the scheme of the Acts, there is thus ouster to the jurisdiction of the Civil Court by necessary implication. The suit is, therefore, untenable and liable to be dismissed."

14. Learned Counsel appearing for the petitioner faced with the aforesaid views of this Court invoked the writ jurisdiction under Article 226 of the Constitution.

15. On being noticed, Sarpanch of respondent No.1 had appeared in person and brought to out notice that respondent No.1 has already regularised the renovation of the house undertaken by respondent No.2. The petitioner, was permitted to amend the petition, so as to enable him to challenge the regularisation of respondent No.2 by respondent No.1 Village Panchayat. Accordingly, the petitioner has amended the petition and prayed for additional suitable relief. The reliefs claimed by the petitioner are :

a) For a writ of mandamus or any other writ, order or direction in the nature of mandamus, directing the respondent No.1 to demolish the illegal construction by the respondent No.2 in the property surveyed under No.135/3 of Murda village, Tiswady Taluka.

b) Any other writ, order or direction in the nature and circumstances of the case and as this Hon'ble Court deems fit and proper.

c) For a declaration, that the purported regularisation of the illegal construction carried out by the respondent no.2 in the property surveyed under no.136-3 of Murda Village, Tiswadi Taluka, vide Resolution purportedly passed in its monthly meeting held on 7.6.2000, is null and void.

16. Respondent No.2 appeared through Counsel and filed counter affidavit. The respondent contends that the claim of the petitioner for access through his property is mala fide. The respondent No.2 states that in the year 1992, he renovated his house within the existing plinth area as some of the walls required urgent repairs. According to him, by doing so he did not violate nay rule relating to set back. He further contends that the owner of the property bearing survey No.135/2 has renovated his house in the year 1998 and aligned the same through the space where the petitioner claims access in line with the house of respondent no.2. He further submits that the owner of the property bearing survey no.135/2 has constructed a "Tulsi" well beyond the place where he has constructed staircase at a distance of even less than half metre from the compound wall meant for separating his property bearing survey no.135/1 and the property bearing survey no.135/3. According to the respondent No.2, the petitioner ought to have taken objection to the construction done by the owner of the property bearing survey no.135/2. Since, she failed to raise any objection, according to him, she should not be permitted to raise the said objection at this stage.

17. The Learned Senior Counsel for respondent No.2 has also brought to our notice, the pendency of the aforesaid suit filed at the instance of the plaintiff and requested that this Court should not exercise the writ jurisdiction as it involves disputed questions of facts. He further submits that the parties are already before the Civil Court and, therefore, this Court should not exercise writ jurisdiction in favour of the petitioner and consequently, prays for dismissal of the petition.

18. Learned Counsel for the petitioner in rejoinder submits that this Court in the case of M/s. Vora Automotives Pvt. Ltd. v. Gopalrao Namdeorao Pohre and others (supra) since has already taken a view that the suit is not maintainable, it would be a proper exercise of discretion to grant the relief sought for in exercise of powers under Article 226 of the Constitution as no appeal has been provided by statute to challenge the regularisation of illegal construction by the planning authority. In the alternative, he submits that the earlier views, taken by the learned Single Judges of this Curt holding that the breach of bye-law does not furnish the cause of action for filing suit to the adjoining neighbour needs reconsideration, otherwise the adjoining owner will be left with no remedy as the cases of such nature are bound to involve some element of disputed question of facts.

19. Learned Counsel appearing for both the parties assisted this Court to find out as to whether the suit, in the circumstances, is maintainable or not as the question involved is of great public importance. The constructions done in violation of plan and rules result in an invasion of right to light, air and privacy causing material injury to the day today life of the adjoining owners.

20. At the very outset, after having heard the Learned Counsel for parties, we are of the considered view that a writ under Article 226 of the Constitution is not the appropriate proceeding for adjudication of the dispute like the present one. We are constrained to observe that the writ petition is misconceived in so far as it asks for in effect a declaration that the regularisation of the alleged illegal construction carried out by respondent No.2 is illegal, null and void, and further prays for a writ of mandamus directing the respondent No.1 to demolish the alleged illegal construction done by respondent No.2 in the property in question. It is evident from the facts stated in details that the nature of the construction alleged to have been carried out by respondent No.2 and regularised by respondent No.1 is very much in dispute. The disputed questions involved, and sought to be raised cannot be satisfactorily gone into or adjudicated by this Curt in exercise of its jurisdiction under Article 226 of the Constitution of India. We feel that this Court must exercise judicial restraint as much as judicial interference in the cases of this nature are concerned. It is now well settled that this Court while exercising its jurisdiction under Article 226 of the Constitution may refuse to exercise its discretion in the given case.

21. It is also well settled that when an alternate equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke writ jurisdiction to seek a prerogative writ. It is true that the existence of an adequate legal remedy does not affect jurisdiction to issue writ, but as observed by the Apex Court in Rashid Ahmed v. The Municipal Board, Kairana (AIR 1950 SC 163) that the existence of an adequate legal remedy is to be taken into consideration in the mater of granting prerogative writs; and wherever such remedy exists, it will be a sound exercise of discretion to refuse the relief in exercise of discretion under Article 226, unless there are good grounds therefor. None of such good grounds exist in the present case. On the other hand, the point for determination whether respondent No.1 was justified in regularising the alleged construction and/or regularisation thereof has affected the easementary rights of the petitioner turns on the interest of the respective parties in the property and recognition thereof. These are the questions on which there are serious disputes between the parties which cannot be satisfactorily answered without taking evidence. It is not the practice. Since all these questions of that character are raised in the writ petition, in our opinion, it would be a proper exercise of discretion in the present case, if the parties are directed to adopt the civil remedy.

22. We, while taking the above view, are conscious of the approach adopted in the Judgments referred to hereinabove, operating in the field holding that breach of bye-law does not furnish cause of action to the adjoining owner. However, in our opinion, the views expressed in the aforesaid cases are misplaced.

We are clearly of the view that a neighbour could seek remedy from the Court of law when he can satisfactorily establish infraction of the law or the Municipal Law invading his right, unless by express implication he is debarred from doing so. In our view, development of liberal view is thus discernible as the time marches on. We feel that building regulations do provide right in favour adjacent owner. A duty to conform to the Municipal Rules is the duty not only of the Corporation or the Municipality, but also of fellow citizens.

23. Having said so, we propose to deal with the cases placed for our consideration. At the outset, we may point out that the Allahabad High Court in the matter of B. Raghunandan Saran v. Smt. Kanta Devi (AIR 1975 All. 130) had an occasion to consider the question relating to breach of bye-laws and the rights of a citizen. The Allahabad High Court while considering the said question reached to the following conclusion :

" The Municipal Board, of course, as the custodian of the rights of the people has been given by law the right to enforce its bye-laws by refusing sanction, preventing constructions and demolishing buildings that may violate any bye-law. But if the Municipal Board fails to perform its duty, it will not mean that the right of the citizen is lost to get the law enforced through Court. It is the duty of Courts in India to see that the law is obeyed and not violated."

24. Urbanisation is, no doubt, a global phenomenon. Growth of major cities, however, is now a distinct reality in India. Other advanced and developed countries witnesse that phenomenon earlier. They too had their problems. In these countries, local authorities were held rigorously to the performance of their statutory obligations in the matter of supply of potable water, garbage collection, drains, conservancy and maintenance of streets, lighting, and even in providing parks and other amenities. The fiduciary duty which local authorities owe to rate payers had been acknowledged.

25. The Kerala High Court has, in P. Saina v. Konderi (AIR 1984 Kerala 170) rightly observed that over the years, the cities have grown many times in size and population. The roads with gutter everywhere are now crowded with vehicles racing against each other and the pavements with pits and holes in the ground and advertisement boards hung dangerously low from the branches of trees, have become far too dangerous for the weary pedestrians to walk upon. Many of the roads are poorly lit, if lit at all, and it is a common sight to see rubble, sand, bricks, drainage pipes, and the like left for months together on the sides of the roads all over the city. With buses, lorries and cars driven recklessly at maddening speed, unmindful of the pedestrians, the public streets.

26. The aforesaid consideration compelled the Apex Court to recognize a citizen's right in the matter of K.Ramdas Shenoy v. The Chief Officer, Town Municipal Council, Udipi and others. (AIR 1974 SC 2177). The Apex Court held as follows :

" An illegal construction of a cinema building materially affects the right to 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 rights 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 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 Municipalities in such cases."

27. In that case, the appellant's contention was that the Udipi Municipality had illegally sanctioned the plan for conversion of Kalyan Mandap cum Lecture Hall into cinema theatre and the Apex Court held that the appellant as the resident in the area has the right to compel the Municipality to perform duty imposed by the statute where the plan for conversion had been granted. The Apex Court further held that an illegal construction materially affects the right to or enjoyment of the property by persons residing in the residential area and that the Municipality owe a duty and obligation under the statute to see that that the residential area is not spoilt by unauthorised construction.

28. It appears from the reported Judgment in the matter of Sarada Bai and others v. Shakuntala Bai and others (AIR 1993 A.P. 20) that another Division Bench of Andhra Pradesh High Court in the unreported Judgment in the case of Bhagwan Das v. Harish Chetwal Judgment dated 25.2.83 in C.R.P. No. 4600 of 1982, relying on K.R. Shenoy v. Udipi Municipality (supra), held as follows :

" The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a civil court not only to enforce the obligations and duties on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.

If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Art. 226 of the Constitution. The answer is quite apparent and it is in the affirmative."

29. In Pratibha Co-operative Housing Society v. State of Maharashtra (1991 (3) SCC 341), the Supreme Court observed as follows :

" We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the society of occupiers and residents of multistoryed buildings."

30. At this juncture, it will not be out of place to mention that as can be seen from the reported Judgment of the Allahabad High Court in A.I.R. 1941 Cal. 391, a legal right of the adjoining owner was recognized. The learned Single Judge expressed his views about the conduct of that Corporation by observing:

" Bye-laws have, we might say, gone with the wind which the Corporation is supposed to allow us to enjoy. They have gone down the drain that the Corporation is supposed to clean. With poetical finality they have drowned their book : with divine omnipotence thy have disregarded time and space, especially the latter. Rules are made for slaves, and with royal prerogative they have determined to disregard them."

31. A narrower view appears to have been taken in some of the decisions reported in Nandalal v. Provudayal (AIR 1952 Cal 74); Purul Roy v. Srinibash Chowmal, (AIR 1952 Cal 364); Purushottam Lalji V. Ratan Lal (AIR 1973 Cal 459)(FB), Krushna Kishore Bal v. Sankarsan Samal (AIR 1974 Orissa 89)(FB),; and Lalit Mohan V. Samirendra Kumar (AIR 1977 Cal 174), which are in line with the view taken by three learned Single Judges of this Court in their independent Judgments. It would thus appear that both the principles have their own friends.

32. The Apex Court, after K.R. Shenoy's Judgment, also had an occasion to consider the rights of the citizens in Gobind Singh v. Shanti Sarup (AIR 1979 SC 143) and now well known case of Ratlam Municipal Council v. Vardhichand (AIR 1980 SC 1622) would justify the adoption of a liberal view. The recent trend in Public Interest Litigation also justifies taking a liberal view in these matters. It, therefore appears to us that having regard to the peculiar conditions relating to the enforcement of well conceived measures, it is a liberal view that has to be preferred and not the restricted view. Lastly we may observe that the Judgment of Division Bench in the matter of Narayandas Kunugo v. Saraswatibai D. Joshi (69) 1967 BLR 622, is no longer a good law in view of the Apex Court's Judgment in K.R. Shenoy v. Chief Officer, Town Municipal Council, Udipi & ors (supra). Thus, we have no hesitation in holding that the suit at the instance of a neighbour for violation of Municipal plans or rules or bye-laws resulting in an invasion of their right to light, air, privacy or causing pollution, causing material injury, would furnish the plaintiff a cause of action and it would be open for him to file a civil suit to challenge the invasion of his rights causing material injury.

33. Independently of the discussion, is it possible to hold that the Civil Court would have jurisdiction. Under Section 9, jurisdiction of the Civil Court to entertain all civil disputes, can be taken away by excluding its civil jurisdiction. Goa Panchayat Raj Act, 1993 has no provision excluding the jurisdiction of the Civil Court. Earlier it has been discussed that there is also no implied ouster. Under Section 38 of the Specific Relief Act, a perpetual injunction can be granted to prevent the breach of an obligation existing in favour of a party whether expressly or by implication. "Obligation" has been defined to mean every duty enforceable by law. What therefore, is the duty which is enforceable against a neighbour who violates the provisions of the Goa Panchayat Raj Act, 1993. Will putting up a construction without taking a licence or by taking a licence and constructing contrary to the licence, give to the neighbour a right. Does the person constructing owe a duty to the neighbour not to construct without a licence or contrary to the licence ? Can this be said to be a right enforceable in a civil Court ? Easements, in so far as light and air, are concerned in areas falling within the jurisdiction of local bodies are subject to the Act, Rules and Regulations of such bodies. This is pursuant to the powers conferred on local bodies by various statutes to regulate construction activities within their jurisdiction. Therefore, does this duty cast by the statute on the neighbour, create an obligation which would be enforceable in a Civil Court. If it can be spelt out from the act itself, then the Civil Court would have jurisdiction. In respect of construction contrary to licence, extra-ordinary jurisdiction of this Court can be invoked to direct the local body to enforce the provisions of the acts, rules and regulations. If, therefore, the extra-ordinary jurisdiction available, a civil suit would be maintainable to direct by way of mandatory injunction, the local authority to discharge its duties under the Act. Where therefore, a local body is a party, there is no difficulty whatsoever.

34. The only question is whether in absence of the local body being made a party, would the Court have jurisdiction. In tracing a legal right in the neighbour, as we have noted earlier, there are difference of opinions between the High Courts. The Calcutta and Andhra Pradesh High Court, as also the Allahabad High Court have taken the views that a civil suit is maintainable. The Division Bench of our High Court, however, as noted earlier in the case of Narayandas V. Sarasvatibai (supra), has held it would not be available.

To our mind, K.R. Shenoy's (supra) case makes all the difference. The Apex Court noted as under :

" The breach of a statutory duty created for the benefit of an individual or a class is a tortuous Act. Anyone who suffers special damage therefrom is entitled to recover damages."

The Apex Court has further held that injury may be caused either by the fulfilment of the duty cast by the statute or by failure to carry it out or by negligence in its performance.

35. Any scheme framed under the Act, is for the benefit of the residents of the locality. The local authority acts in the aid of the scheme. The rights of the residents in an area are invaded by illegal construction. A scheme for the residents must be planned in accordance with the requirements of the residents. It is, therefore, clear that making of a scheme, or bye-laws or building regulations is for the planned development of the area. It is for the benefit of the citizens residing in the area. A neighbour who is affected, therefore, by an illegal construction, has an obligation in his favour based on which he can maintain as suit for perpetual injunction. We, therefore, find no difficulty in holding that a neighbour would have the right to maintain a suit.

36. From K.R. Shenoy (supra), the law has proceeded further in the case of Bangalore Medical Trust v. B. S. Muddappa and others (AIR 1991 SC 1902). In that case, a place reserved for a public park was sought to be diverted for construction of a hospital. In that context, Dr. T.K. Thommen, J. has observed as under :

"Reservation of open spaces for parks and play grounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation"

The public interest in reservation and preservation of open spaces for parks and play grounds cannot be sacrificed and a constitutional mandate is cast on the State that its actions are inspired by the basic values of individual freedom and dignity and addressed to the attainment of quality of life which makes the guaranteed rights a reality for all the citizens. Referring to Agins v. City of Tiburon, (1980) 447 US 255, it was noted that the zoning ordinance benefits in that case the appellant as well as the public by serving the city's interest in assuring careful and orderly development of the residential property with provision for open spaces. The residents o the locality are the persons intimately, vitally and adversely affected by any action of the Government which is destructive of the environment and which deprives them of the facilities reserved for the enjoyment and protection of the health of the public at large. It is, therefore, clear that the building regulations are enacted for the ordinary development of the area. They are to enable citizens' healthy environment. The right to healthy environment forms a part of the right to live. This has been recognized in Bangalore Medical Trust (supra). Once this right is recognized, it is traceable to Article 21 itself. The right to live therefore would be enforceable at the instance of a citizen aggrieved by construction contrary to the provisions of the Goa Panchayat Raj Act, 1993. In our opinion, therefore, the Judgment of this Court in Narayandas Kunugo (supra) which had taken the view that building bye-laws and rules are not enforceable as also the Single Judge's Judgments of this Court, which have been referred to earlier, will no longer be good law on both these counts, firstly because an obligation is created in favour of the neighbour and secondly because the construction contrary to the building bye-laws would be in violation of a neighbour's right to life. We, therefore, have no difficulty in upholding the jurisdiction of the Civil Court to maintain a suit which power is conferred on it under Section 9. This power has neither been expressly nor impliedly excluded.

37. Having held that the suit is maintainable, it would be open for the plaintiff to challenge the action of the respondent in a pending suit and canvass his grievance by effecting appropriate amendment in the plaint. In that event, the Civil Court would be free to consider such an application as and when made by the petitioner/(plaintiff) on its own merits.

38. In view of the above, we discharge the Rule with no order as to costs.

Order accordingly.