A.N. Ray, J.
1. The plaintiff instituted this suit for a mandatory injunction commanding the defendants to demolish or pull down the constructions indicated by the hatched portions in the plan annexed to the plaint and coloured red and a declaration, if necessary, that the constructions indicated by the hatched portions in the plan coloured red, are illegal, a perpetual injunction restraining the defendants or their agents and servants from constructing the third storey or any portion thereof without complying with the side space and back space rules, being rules Nos. 32 and 30 of Schedule XVI of the Calcutta Municipal Act of 1951 and further reliefs.
2. The plaintiff is the owner of premises. No. 177 Cornwallis Street. The defendants are owners of premises No. 178, Cornwallis Street. The premises No. 178 Cornwallis Street stands to the immediate south of premises No. 177 Cornwallis Street. The plaintiff's premises is partly five storied and partly six storied. The defendant's house is a two storied building. Prior to 1958, it is alleged that, there existed at 178 Cornwallis Street a two storied building of low height and that in the year 1958 the said two storied building was completely demolished by the defendants and the new two storied building now existing was constructed by the defendants in place of the old one' right from the very foundation.
The plaintiff alleges that the building of the defendants is constructed in violation of Rule 23 of Schedule XVI; Rule 32 of Schedule XVI and Rule 29 of Schedule XVI of the Calcutta Municipal Act. Rule 23 is in relation to open space to be kept at a building. Rule 30 relates to back space to be kept open at a building. Rule 32 relates to the side space to be kept open and Rule 29 relates to the height of the building.
3. The plaintiff alleges that the defendants started in or about November 1962 construction of the third storey of the said building in further violation of tho said rules. The defendants, it is alleged, actually constructed a staircase and rooms on the side space, required to be kept open under the provisions of the Calcutta Municipal Act, and committed further breach of Rules 23, 29, 30 and 32 of Schedule XVI of the Calcutta Municipal Act, 1951. The further allegations are that there exists in favour of the plaintiff an obligation on the part of the defendants, expressly under the provisions of the Calcutta Municipal Act of 1951 or be implication, not to make any construction in breach of the building rules of the Calcutta Municipal Act of 1954 and that the defendants invaded and are further invading the plaintiff's right or enjoyment of the property.
4. The defendants denied allegations made in the plaint and further contended that the alleged non-compliance with Rules 30, 32, 23 of Schedule XVI, if any, would be a mere irregularity and would not make the constructions illegal or un-authorised. Their further contention is that compliance with the rules can be relaxed on certain facts and the facts are applicable to the constructions made by the defendants and that the Corporation of Calcutta relaxed compliance with Rules.
5. The substantial defence will appear from the issues raised at the trial:
'1 Has there been any infringement of the Calcutta Municipal Act as alleged in Para. 6 of the plaint? If so, are such infringements illegal?
2. In view of the order of His Lordship Mr.Justice Banerjee and the order of the Commissionerof the Corporation of Calcutta is the plaintiff entitled to file the suit?
3. Is the construction of the building being premises No. 178 Cornwallis Street covered by the sanctioned plan? If so, what is the effect?
4. Is the suit maintainable under the provisions of the Calcutta Municipal Act?
5. Is the suit bad for non-joinder of the Corporation of Calcut'a?
6. To what relief, if any, is the plaintiff entitled?'
6-13. On behalf of the plaintiff there is the verbal evidence of Girija Prasad Pal, Kanai Lal Tebriwal and Dinesh Chandra Banerjee. On behalf of the defendant there is the verbal evidence of Santosh Kumar De, Sunil Baran Roy and Priya Guha. (After considering the evidence of these witnesses his Lordship proceeded.)
14. There ore two Issues on the question of construction of the building, viz., Issues Nos. 1 and 3, whether there has been any infringement of the, Calcutta Municipal Act and whether the construction is covered by the sanctioned plan, and if so, what is the effect thereof. Counsel on behalf of the defendants contended that it was a case of reconstruction and not of a new building, and therefore the rule as to back space would not be applicable, and if it was applicable the Corporation had the power to relax it and the sanctioned plan impliedly indicated relaxation. As to side space it was contended on behalf of the defendants that it was not a new building and it was a relaxable rule, and there was implied relaxation. It was also contended that in order to find out whether side space had been kept it would have to be ascertained whether there was attachment adjoining the building, and that in the present case there was an admission^ by Girija Prosad Pal, witness on behalf of the plaintiff, that there was a projected verandah beyond 24 feet, and Dinesh Chandra Banerjee in QQ 97 to 99, and 112 to 120 said that the plan showed that there was attachment and therefore it was contend-ed on behalf of the defendants that there need not be any side space.
15. As to open space it was contended on behalf of the defendants that the evidence on behalf of the defendant is that there was one court-yard and one ventilation shaft, and that was enough open space. Reliance was placed on Rule 29(8) of Schedule XVI as well as Sub-rule (4).
16. Counsel on behalf of the defendants contended that Kanaiyalal Tebriwal said in qq 65 and 66 that there was no reduction of rent, and therefore it was contended that enjoyment of property had not suffered. Reliance was placed on the decree in Suit No. 1906 of 1951 being Ex. 6C in support of the contention that there would not be easement of light and air by reason of the consent decree in that suit.
17. As to Rules 30 and 32 of Schedule XVI of the Calcutta. Municipal Act it will appear in Rule 91 of the same schedule that 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 and there are certain provisos to Rule 91(1)a() regulating such relaxation. But Rule 91 also categorically states that notwithstanding anything contained in the Schedule, the Corporation may relax for special reasons to be recorded in writing Kales, inter alia, Rules 30 and 32. It was contended on behalf of the defendants that there was implied Relaxation of the Rules because of the sanctioned plans. As to the first plan all that the sanction said was as follows;
'Resolved that the plans regarding 178, Corn-wallis St. be sanctioned, reconstruction being allowed without changing dimensions subject to the part complying with departmental requisitions.'
Exs. C and D are the other sanctioned plans. Rule 91 of Schedule XVI to which I have already referred states that Rules 30 and 32 may be relaxed so as to prevent the demolition of any material part of any mansomy building existing on the space required to the kept open under the said Rules. In other words, relaxation under Rules 30 and 32 would be operate for the purpose of preventing demolition of any material part of the building or if there is building in the back space and side space and if there is no demolition of the offending structure, a question of demolition or relaxation would arise. It was contended by counsel for the plaintiff that in the present case everything was demolished in the vide and back space and therefore there could not be any question of relaxation. It was secondly contended that under Section 6 of the Calcutta Municipal Act read with Sections 30 and 34 of the Act, the authorities under the Statute would be the Corporation 'Standing Committees and the Commissioner, and under Sections 30 and 34 the Corporation or a Standing Committee or the Commissioner might exercise the powers under the Statute, and those are the three authorities, and in the present case there in no evidence that the Corporation or a Standing Committee or the Commissioner had relaxed any of the Rules. As to delegation of the powers exercisable by the Commissioner it was contended that the order of relaxation could only he by the Corporation and not by a Committee, and far less by the department. 'Thirdly, it was contended that there were no special reasons recorded in writing. In my opinion all the three contentions on behalf of the plaintiff are sound and correct. I am therefore of opinion that there is no relaxation as far as Rules 30 and 32 are concerned and the plans are bad, and not in conformity with law.
18. As to attachment it was contended that the Schedule to the decree in Suit No. 4906 of 1951 would show that Babulal Shaw and others were the plaintiffs and Krishna Kali Mullick was the defendant in that suit. Paragraph 5 of the terms of settlement in that suit would show that the defendant (namely Mullick) undertook that the defendant would not object to the plaintiff's (namely Shaw's) having attachment of the northern wall of the plaintiff's premises with the southern wall of the defendant's premises up to a depth of 24 feet, and therefore there was a clear recognition of the plaintiff's attachment and the length and description of the attachment was set out in the decree itself. It was contended on behalf of the plaintiff that Ex. B on which the plaintiff, relied would support that. In this connexion Girija Prosad Paul said in QQ. 24, 77 to 87, 203, 327 to 329 and 351 that he put the letter 'S' showing the position from Cornwallis St. right up to the end of No. 178, Cornwallis Street on the northern side and that on the northern side there was attachment up to 24 feet with the wall of premises No. 177, Cornwallis Street. In Q. 87 Girija Prasad Paul said that on the northern side of premises No. 178 after the attachment from the roadside upto premises No. 177 it was entirely covered up to the third storey. It was suggested in Q. 351 to Girija Prosad Paul that there was attachment to the entire length of premises 177 Cornwallis Street on fourth and fifth floors. But the witness said that there was no attachment beyond 24 ft. in 177 Cornwallis Street and that there could not be attachment of premises No. 178 against the open space of premises No. 177. The oral evidence of Girija Prosad Paul is supported by the decree arid I am of opinion that the attachment as spoken of by Girija Prosad Paul is correct and the defendant's suggestion to the contrary is unacceptable.
19-22. The next question is whether there was demolition of the building and there is a new building or it was a case of mere reconstruction. On the consideration of the evidence on this 'question his Lordship hold (1) that it was a case of demolition and construction of a new building. It was not a case of alteration at all; (2) that there was no relaxation of Rules 30 and 32; and (3) that the second and the third plans were bad and illegal.
23. The other question is whether the plaintiff is entitled to any relief.
24. 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 under Section 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. Defendant's contentions were that under Section 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.
25. Reliance was placed on Sections 376 to 388, 414, 416, 527, 542, 551 and 575 of the Calcutta Municipal Act to show first that if there was any obligation of the defendants it was only to the Corporation and they were the only authorities who could ask for compliance or non-compliance with the Rules. It was contended that the Statute created duties and the persons who carry out those duties would be Corporation, the Commissioner and the Standing Committee and there could not be implied right in any other person. It was secondly contended that the Commissioner under the Act was to decide and under Section 416 of the Calcutta Municipal Act the Commissioner had power to stop work. Under Section 557 the Commissioner had power of entry and under Section 542 there could be imposition of fine for unlawful construction and that the Commissioner under the Act was to decide and determine and if he acted illegally then the remedy lay in having the order quashed. Reliance was placed on the decision in Prosad Chander De v. Corporation of Calcutta, 17 Cal WN 929 in support of the proposition that if the plan was rejected there was no right to sue and the Corporation could be proceeded against by way of Section 45 of the Specific Relief Act. Reliance was placed also on the decision of the Judicial Committee in Bank of Bombay v. Suleman Somji, reported in 12 Cal WN 825 (PC) in support of the proposition that if the Statute did not confer any right on the plaintiff, the plaintiff had no right of suit. The Bank of Bombay case, 12 Cal 'WN 825 (PC) related to right to inspect documents. Reliance was also placed on Craies, Statute Law, 6th Edn. at page 237 in support of the proposition that the breach of statutory duty created for the benefit of an individual or a class is a tortious act, entitling any one who suffered special damage therefrom to recover damages against the tortfeasor. In Wolverhampton New Water Works Co. v. Hawkesford, (1859) 6 C B N S 336 it was held that first there may be a liability existing at Common Law which is only remedied by the Statute with a special form of remedy and unless the Statute contains words expressly excluding the Common Law remedy the plaintiff would have his election of proceeding either under the statute or at Common Law. The second class would consist of cases where statute has created liability but has given no special remedy for it. The remedy which by law is properly applicable to the right or the obligation flows as an incident. The third class would be where a statute created a liability not existing at Common Law and would give a particular remedy for enforcing it and with respect to that class the party must adopt the remedy given by the statute reliance was placed on sections 414, 542 and other sections and it was contended on behalf of the defendants that the remedy was contemplated in the Act and the plaintiff would have no right to sue.
26. Counsel for the defendants also relied on the decisions in Cutler v. Wandsworth Stadium, 1049 AC 398 and Phillips v. Britannia Hygienic Laundry Co. Ltd., (1923) 2 KB 832 in support of the same proposition.
27. In view of my conclusion that the construction is illegal because first the plans are not lawfully sanctioned and secondly the plans are in deviation of express provisions of the statute, there is breach of statutory obligation. The right to build in accordance with the statute is a right belonging to the owner of the building. The question is whether the adjoining owner has right to insist that the building should be in accordance with the law. In the decision of Hirendra Nath Dutt v. Corporation of Calcutta, reported in : AIR1941Cal386 it was held in construing Rules 30 and 32 of Schedule 17 of the Calcutta Municipal Act that it must be assumed that in framing the statutory Rules relating to the space to be left between buildings and their height, the Legislature had in view the general convenience of all the residents in municipal area in order to ensure proper ventilation and sanitation for the rate-payers, and possibly adequate means of preventing the spread of fire from one building to another. In this view of the matter it is impossible to say that the petitioner would not be affected by any breach of the existing rules, and, in my view he has a right to insist that these rules should be strictly observed in reference to any plan. As far as requiring the Corporation to do its duty there is no dispute that the plaintiff has a right but counsel on behalf of the defendants contends that the plaintiff has no right to complain if his adjoining owner violates rules and constructs an illegal building. In construing statutes like the Calcutta Municipal Act which is an Act to consolidate the law relating to the municipal affairs of Calcutta and the building rules whereof are to be found in Chapter 22 to the effect that no piece of land shall be used as a site for the erection of any building and no building shall be erected otherwise than in accordance with the provisions of Chapter 23 and Schedule 16; the statement of law in Halsbury's Laws of England, 3rd Edn. Vol. 36 paragraph 687 p. 451 is of help:
'Whether or not an individual can bring the Common Law action in respect of a breach of duty imposed by a statute depends upon whether the intention of the Statute considered as a whole and in the circumstances in which it was made and to which it relates, was to impose a duty which is a public duty only or to impose in addition a duty enforceable by an aggrieved individual. No 'universal rule can be formulated which will answer the question whether in any given case an individual can sue. In answering the question it is however relevant to consider whether the statute was intended to protect a limited class of persons or the public as a whole, whether the damage suffered by the persons seeking to sue was of the kind which the statute was intended to prevent, whether a special statutory remedy by way of penalty or otherwise is prescribed by breach of the statute, the nature of the obligation imposed, and the general purview and intendment of the statute.'
28. 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 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 a statutory duty. The rule is that he is so entitled if the mischief which the Statute was designed to eradicate contemplated damage to him or the class to which he was a member. A municipal authority subserves 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.
29. Counsel for the plaintiff relied on the decision in Solomons v. K. Gertzenstein Ltd, reported in (1954) 2 QB 243. That was a case where a house in Soho was sublet to a number of tenants who carried on a variety of occupations. The London County Council had required the owners of the building to comply with Section 12 of the London Building Act, 1905, which required that a trap-door with a fixed hinged ladder, or other means of access to the roof be provided. There was an action for damages' for personal injuries and the plaintiff alleged breach of statutory duty. It was held that as the duties imposed by the London Buildings Acts were imposed primarily for the protection of a particular ascertainable class, viz., the persons in a building, those persons would have a right to an action for damages for a breach of statutory duty notwithstanding that the statute also imposed penalties for such breaches. In the present case the relief asked for is injunction. That is on the basis of an obligation. The contention on behalf of the defendants, was there was no express obligation and there could not be any implied obligation. Counsel for the plaintiff rightly contended that the duty was in respect of an ascertainable class and breach, of such a duty was actionable by a member of such class for whose benefit the statute was created arid in any event, the defendant's illegal construction could be prevented by an injunction by reason of the fact that the illegality was by reason of statutory violation of statutory obligation. Somervell L.J. in Solomons case, (1954) 2 QB 243 said:
'There have been Acts which expressly confer a right of action for a penalty or damages on a person aggrieved by its breach. There have been Acts which impose a duty without any sanction. We are concerned with neither of them but with Acts which (i) contain provisions which protect members of the public or some members in certain circumstances, (ii) contain their own sanction, by penalties or otherwise for the enforcement of these provisions. The Courts have held that, under the, common law, a person aggrieved by a breach of certain of such Acts has a right to sue for damages, although the Act itself provides only for a criminal sanction.'
Birkett L.J. in the same case said;
'I agree with the Lord Chief Justice that the duty imposed in the present case was imposed for the benefit of a particular ascertainable class, namely, the persons in the building, and those persons have a right of action for a breach of statutory duty, notwithstanding that penalties are also provided for breaches',
30. In other words, it has to be established that there is first a breach of a statutory duty or breach of a statutory obligation before there can be right to sue. It has next to be established that there is an injury or damage of a kind against which the statute is designed to give protection and finally it has to be established that the breach or statutory obligation caused or materially contributed to his injury or damage.
31. Counsel on behalf of the defendants relied on the decision reported in Nandalaf Ladia v. Pro-vudayal Tikriwalla, : AIR1952Cal74 in support of the contention that under Section 54 of the Specific Relief Act an obligation--contractual or otherwise--was essential to the maintenance of an action and that construction of a building in violation of Building Rules under the statute, would not confer any right on the plaintiff to ask for a mandatory in-junction or a perpetual injunction , on the ground, that the proposed construction was in breach of municipal laws. The plaintiffs there instituted a suit for a permanent injunction restraining the defendant No. 1 from proceeding with the construction by the said defendant on his land and for a mandatory injunction requiring the said defendant to pull down certain construction already made. The defendants there were Provudayal Tikriwalla and Municipal Commissioners of Howrah. The ground on which the plaintiffs claimed a perpetual and mandatory injunction was that there had been interference with the plaintiff's right to light and air by reason of the constructions made by the said defendant. It was also alleged that there was a breach of the Municipal rules and bye-laws which entitled the plaintiffs to require the said defendant not to proceed with the construction of the building. The plaintiffs and the said defendant were adjoining owners. The trial court gave the plaintiffs a modified decree. Against the decree of the trial court both parties appealed. The lower appellate court maintained the decree of the trial court. The plaintiffs thereafter preferred an appeal to this Court. The defendant filed a cross-objection in so far as the decree of the courts below directed that defendant No. 1, be restrained from extending towards the north the room on the western side. The decree of the trial court in that case was as follows:
'That the suit be decreed in part only after contest against the defendant No. 1 ...... But the defendant No. 1 is hereby perpetually restrained from making any new constructions in violation of Rules 30 and 32 of Schedule XVII of C. M. Act as extended to Howrah. The defendant No. 1 may however complete the structures which have already been begun and which are in unfinished state. The staircase and septic privies and the room on the first floor at the north western corner of his house and the verandah adjoining this room may be completed. But the defendant No. 1 is restrained from extending towards the north the room on the eastern side although he has obtained sanction for extending them towards north up to the northern boundary limit of his land nor shall he make any other new construction in violation of Rules 30 and 32 of Schedule XVII of C. M. Act save and except those specifically permitted by this order.'
That decree granted by the trial court was upheld by the Bench decision of this Court by holding that the decree passed would stand subject to certain modifications. There are observations in that decision that there was no obligation, contractual or otherwise, which required that the defendant should construct on his own land in accordance with the Municipal rules and regulations and that therefore the plaintiffs 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 rules and by-laws. Council for the plaintiff relied on this decision in support of the contention that an injunction could be granted. It is true that the municipality was a party to that suit but injunction was granted against the defendant and, as counsel for the plaintiff in the present case rightly contended, that injunction could be granted only against the defendant.
32. Counsel for the plaintiff relied on the decision in Monk v. Warbey, reported in (1935) 1 KB 75 in support of the contention that the third party could have the right to sue where there was breach of statute and damage caused thereby. In my opinion this decision does not render much assistance to the present case. I must say that the decision cited above appears on the question of breach of statutory obligation and compliance with statutory obligations and remedies thereof and rights of action have all centered on the question of damages suffered by a particular person in breach of a statutory obligation. The breach of a duty created by statute, if it results in damage to an individual, is prima facie a tort, for which an action for damages will He at his suit. See Salmond on Torts, 11th Edn., 604. It is also stated in Salmond that,
'one of the means of determining what the intention of the statute is to ascertain whether the duty is owed primarily to the State or community, and only incidentally to the individual, or primarily to the individual or class of individuals, and only incidentally to the State or community. If the statute imposes a duty for the protection of particular citizens or a particular class of citizens it prima facie creates at the same time a correlative right vested in those citizens and prima facie, therefore, they will have the ordinary civil remedy for the enforcement of that right--namely, an action for damages in respect of any loss occasioned by the violation of it.'
Then it is stated that this test is not conclusive and the remarks of Atkin LJ in (1923) 2 KB'. 832 at p. 841 are significant;
'The duty may be of such paramount importance that it is owed to all the public. It would be strange if a less important duty, which is owed-to a section of the public, may be enforced by an action, while a more important duty owed to the public at large cannot.'
33. The decision in Groves v. Wimborne reported in (1898) 2 QB 402 illustrates one rule of construction and the decision in (1923) 2 KB 832 illustrates a different rule of construction. The true distinction between the (1898) 2 QB 402 rule and 1923-2 KB 832 rule is ascertainment of all circumstances and a consideration of the entire Act and the circumstances including the pre-existing law in which it was enacted. The (1898) 2 QB 402 rule means that where an Act creates an obligation in favour of a class of persons like workers in factories and workshop such obligations are enforced for the protection and benefit of individuals in that class. The 1923-2 KB 832 rule is based on Lord Tenterdan's statement in Doe v. Bridges, (1831) 1 B & Ad 847 that where an Act creates an obligation and enforces the performance in a specified manner that performance cannot be enforced in any other manner. In the decision in 1949 AC 398, on which counsel for the defendants relied, a book-maker, on a dog racing track brought an action alleging that he had suffered damage in that the occupier had failed to make 'available for book-makers the space on the track where they can conveniently carry on book-making in connection with dog races run on the track under the Betting and Lotteries Act, 1934. The Court of Appeal held that the question whether an individual who had suffered damage through the breach of statutory duty is entitled to maintain the action must in the last resort depend on the true construction of the statute. Where the statute does not in terms confer such a right, the question can arise whether a right ought to be implied, which is not expressed and it must be answered by a consideration of the whole statute and other matters as may be legitimately considered in relation to the interpretation.
34. Of the various aids in the construction of statutes the conventional approach seems to be adopted in answering questions whether an individual is entitled to compensation for harm sustained as the result of the breach of statutory duty. The result is that he is so entitled if the mischief which the statute is designed to eradicate contemplated damage to him or the class of which he was a member. It was stated almost a century ago in the decision, of Couch v. Steel, (1853-54) 3 E1 and B1 402 that wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty can bring an action for damages against the person oh whom the duty is imposed. That principle was doubted in the case of Atkinson v. New Castle Water Works Co., reported in (1877) 2 Ex. D. 441. In Atkinson's case; (1877) 2 Ex. D. 441 the defendants by their private act gave undertaking to keep the pipes to which fire plugs were fixed charged with water at certain constant pressure. In consequence of their neglect to do this, a fire Which had broken out could not be extinguished and the premises were burnt down. On a construction of the Act Lord Cairns said that the statute did not create any duty which had become the subject of any action of any individual.
35. It will appear from these decisions that in the ultimate analysis the entire statute has to be considered whether there is any right on the part of the plaintiff and there is any obligation or duty on the part of the defendant. Counsel on behalf of the defendants contended relying on Sections 416, 527 and 542 of the Calcutta Municipal Act that if the erection of a building had been commenced or carried on unlawfully, the statute contemplated power on the Commissioner to stop the work under Section 416 and to inflict fine under Section 542 of the Act in case of erection of a building without obtaining permission or erection of a building otherwise in accordance with the permission or erection of a building in breach of any provision. In support of that contention counsel for the defendant relied on the observation of Bankes L.J. in (1923) 2 KB 832 at p. 838:
'In the ease we are considering the statute creates an obligation and provides a remedy for its non-observance and the question is whether the scope and the language of the statute indicate that the general rule is to prevail so that the remedy provided is the only remedy or whether an exception to that general rule is to be admitted.'
36. 'Obligation' is defined in the Specific Relief Act as follows:
'Obligation includes every duty enforceable by law.' '
37. Counsel for the defendants contended that if the plaintiff had any right it was by way of a mandamus against the Corporation and no other right existed. If the Corporation had been impleaded as a defendant, could the plaintiff have asked the carrying out of the obligations by the land-owner in regard to the building in the presence of the Corporation? A suit of that description would obviously lie. It would depend on the frame of the suit as to what reliefs were possible. Counsel for the defendants contended that there was no obligation of the defendants to the plaintiff. A duty is always to do or not to do something but it is necessary when dealing with any given situation to enquire whether the duty in question is related to a particular mode of behaviour, a particular kind of result, a particular class of persons or any combination of them. It is only by knowing the law that one can know whether a duty exists, in a given case 'or not and it is for this reason that the question of duty is always said to be one of law. A question often arises as to whether sanction is to be included within the concept of duty. Two questions arise; first, why has the idea of sanction been associated with that of duty and second, how far are sanctions in fact associated with duties. People obey duties for many reasons of which fear of sanction is only one but it is the only one that is traceable to the law. It is said that the question or how far sanctions in fact are associated with duties can be understood by applying the terras first, to the consequences that ensue after the machinery of law has run its course and secondly, to the consequence that ought to ensue and thirdly, to the consequence that ensue upon person who does not do duty. Finally, it should be stated that a duty also implies a correlative right because the clue to the conception of right lies in that of duty.
38. The statute in the present case undoubtedly shows that there is a duty to construct buildings in accordance with the terms of the statute and a duty not to construct buildings in violation of the statute, Such a duty raises, according to the defendants a right only of the Corporation to see that the performance is enjoined by the Corporation and infraction of the rules can be remedied only by the Corporation. Counsel for the plaintiff on the other hand contends that the purpose of the statute as also the terms of the statute will show that building rules have been designed for the protection of rights and interests of persons who are the adjoining owners. It is indisputable that infraction of light and air or any other kind of actionable nuisance will give rise to a right of action against the infringing land owner or owner of the building. Counsel for the plaintiff posed the question that if the Corporation were not a party, would the adjoining neighbouring owner be powerless and without any remedy where an illegal plan has been sanctioned by the Corporation and no remedy had been afforded by the Corporation in regard to such a plan? If the Calcutta Municipal Act had taken away the jurisdiction of Courts in regard to such grievances it would have been a different matter. But a right of suit is not, in my opinion, taken away. The word right in relation to a right of suit is a claim that the plaintiff asserts against the defendant. To support the claim first there is in existence a legal system; and secondly, under the rules of the system the other person, viz., the proposed defendant is obliged to do or abstain from some action. Thirdly, that obligation is made by law dependent on the choice of some person who is proposed as the plaintiff or some other person is authorised to act on his behalf so that the proposed defendant is bound to do or abstain from doing some action.
39. In In re, Sm. Lakshmimoni Dassi reported in : AIR1941Cal391 Ameer Ali, J., in dealing with the contention whether the adjoining owner had any right to complain of unlawful sanctioning of plans by the Corporation answered in the affirmative by holding that the adjacent owner had the right to apply for mandamus. Counsel for the defendants relied on this decision and contended that the adjoining owner had no right against the owner of the offending construction.
40. Counsel for the plaintiff referred to the decision in Kanahyalal Ruia v. Corporation of Calcutta, 88 Cal LJ 78. That was a case of an application under Section 45 of the Specific Relief Act. A question arose in that case as to whether certain Rules of the Calcutta Municipal Act had been followed or not, and in that connexion the definition of 'domestic building' was resorted to in order to find out whether the building in that particular ease was one for office or business purposes or a dwelling house or a domestic building. Dealing with that contention at p. 84 of the Report it was said,
'It is not, however, open to the Corporationto sanction a building, which is within the definition of a dwelling house, as a domestic building withobject or result of disregarding the statutory provisions of Rule 23. It is for the Court to be satisfied as to whether the building sanctioned is adwelling house or a domestic building.'
Extracting this observation counsel for the plaintiff rightly contended that the plaintiff had the right to come to this Court and ask for a decision as to whether the plan was valid or not. At p. 88 of the Report appears a consideration of the question as to whether any injunction could be granted. The injunction asked there was a mandatory injunction to pull down or demolish the construction already made. In an application under Section 45 of the Specific Relief Act it was held that such an order could not be made. The reason given was that the person affected by the act was taking part in the proceedings under Section 45 only for the purpose, of showing cause against an order being made on the public officer or the Corporation, and no adjudication of legal rights was intended or could be made as between the applicant and such a person in proceeding under Section 45. Counsel for the plaintiff therefore contended that the decision clearly indicated the presence of legal right in a person who happened to be a neighbouring owner of a building or land to insist on an adjoining owner to conform to the rules and not to violate the same. At p. 87 of the Report 88 Cal LJ 78 there are observations that it is the duty of the Corporation to exercise the power vested in it to stop unlawful erection and further that power is conferred on the Corporation for the benefit and in the interest of the public.
41. In the decision in Sm. Parul Bala Roy v. Srinibash Chowmal, : AIR1952Cal364 the scope of Section'54 of the Specific Relief Act as also the meaning of the word 'obligation' was considered. Counsel for the defendants relied in particular on the observations appearing at p. 367 in paragraphs 16 and 17 thereof. In that case the enjoyment of land which had been purchased by the plaintiff was curtailed by reason of the Corporation Building Rules by the fact that the defendant had utilised a portion of the land sold to the plaintiffs as the back space. It was held that simply because the enjoyment of the plaintiffs was less beneficial that would not entitle them to obtain an injunction unless they could show that there was a legal duty on the part of the defendant towards them, and that by non-performance of that legal duty the enjoyment of their property was materially affected. Coupled with this fact the covenant in the conveyance given by the vendor that the purchasers were to enjoy the land conveyed to them, except with, the restrictions specifically imposed upon them, would lead to the inference that a representation was made, though not in express terms, but by implication, that the purchasers would be free to build upon their land in such manner as the other Municipal Building Regulations might allow them to do otherwise, and that she had not done any act which would put them under an extraordinary burden or special disability in respect of the land. Parul Bala's case, : AIR1952Cal364 depends on the construction of a covenant and a contract between the parties. Counsel for the plaintiff in my view rightly contended that there was no decision as to the question of violation of Building Rules and the right of the adjoining owner affected thereby. Further in Parul Bala's case, : AIR1952Cal364 it was held that non-compliance with or violation of Building Rules would materially affect the adjoining owners property and it would be an invasion of the plaintiff's right to or enjoyment of the property. The ratio in Parul Bala's case, : AIR1952Cal364 was that legal duty was founded on the covenant.
42. 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 plaintiff's property. The defendants owe duty and obligation under the Statute not 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 invastion of right to and enjoyment of property by the illegal construction and the defendant owes an obligation to the plaintiff to obey the law.
43. On a review of these decisions I am of opinion on a construction of the entire statute and the facts and circumstances of the present case that the plaintiff has a right to proceed against the defendants in regard to the illegality of the plans and to ask for necessary relief in that behalf.
44. The other question which remains for consideration is whether by reason of the proceedings taken by the plaintiff against the defendant and the Corporation in an application under Article 226 and a consent order therein there is any question of res judicata. Counsel for the defendants contended that the consent order dated May 2, 1963 was that the Commissioner should decide the matter, and therefore there was a finality. I am unable to accept that contention. The petitioner in that application asked for a rule to show cause why the respondents should not be commanded to enquire into the allegations made in the letters dated December 20, 1960 and January 14, 1963 written to the respondents Nos. 1 and 2 viz., the Commissioner of the Corporation of Calcutta and the Corporation of Calcutta to take such steps as were required under the provisions of the Calcutta Municipal Act, 1951 in relation to the constructions of the building or the third storey thereof. The order that was made by consent of parties in that application was, inter alia, as follows:
'The respondent the Commissioner of the Corporation of Calcutta shall decide the said objections within three, weeks from the date hereof on notice to the said petitioner and the said respondent Babulal Shaw.'
The Commissioner of the Calcutta Corporation gave verbal evidence in this suit as a witness on behalf of the defendants. Counsel for the plaintiff put to the Commissioner in Q. 67 that there was no side and back space. The answer was in the affirmative. It was put to the Commissioner that the building on the third storey was constructed without keeping any side and back space. His answer was that the third storey was built in accordance with the plan sanctioned by the Standing 'Building Committee, and there was no deviation from the sanctioned plan. It was again put to the Commissioner in Q. 71 that the third storey was entirely a new building, and his answer was 'new construction'. In Q. 76 it was put to the Commissioner as to whether he could give any answer why back and side space for the third storey was not kept open to the sky. His answer was that this was sanctioned by the Standing Building Committee. It is apparent that all that the Commissioner could say was that there was a plan sanctioned by the Standing Building Committee and in Q. 77 that became very clear. Counsel for the plaintiff put to the Commissioner, 'You did not apply your mind at all to this question?' His answer was as follows:
'This question was not before me whether the Building Committee was competent to relax or not.'
Hearing the Commissioner I had the impression that if he had the power he would have nullified the decision of the Standing Building Committee because in Q. 79 the Commissioner said on being asked as to whether he considered that the third storey required back and side spaces to be kept open, that it was for the Standing Building Committee and that he merely considered whether there was any deviation from that. Then again it was put to the Commissioner in Q. 96 following that there was no relaxation of Rule 91. His evidence was that he relied on the resolution passed by the Standing Committee and in that resolution it was stated that the plan was approved for sanction and the implication was that the rule was relaxed. I have already held that I am unable to accept that interpretation. In Q. 102 it was put to the Commissioner,
'You also had relied on the departmental note and were misled in coming to the conclusion to which you did.'
His answer was that he relied on the departmental r report in arriving at certain decision while he considered this case. The decision of the Commissioner is not impressed with that sanction of finality of a Court of law. This decision was impeached by the plaintiff and the plaintiff had justified reasons for that. Counsel for the defendants relied on the decision in Manahem S. Yeshoova v. Union of India, AIR 1960 Bom 196 in support of the contention that the principles enunciated in Section 11 of the Code of Civil Procedure are applicable to a petition under Article 226. It was held there that where the contentions raised in a writ petition under Article 226 had been finally decided the same contention would be res judicata in a suit. In the present case the Court did not finally decide any question. All that the Court did on the application under Article 226 was to ask the Commissioner to consider the representations made by the plaintiff. The Commissioner heard the matter. I am of opinion that there is no application of the principles of res judicata in this case. The right to sue could not be and was not taken away by any order or application. For all these reasons I am of opinion that the plaintiff is entitled to succeed. I therefore answer the Issues as follows:
Issue No. 1: Yes.
Issue No. 2: Yes.
Issue No. 3: The plans sanctioned are illegal.
Issue No. 4: Yes.
Issue No. 5; No.
45. As to reliefs there was an undertaking given, by the defendants at the time of an interlocutory application that in the event of the defendants losing the suit the defendants would pull down the premises or construction indicated by the hatched portion in the plan annexed to the plaint in colour red. There will be an injunction in terms of prayer (a). There will be declaration in terms of prayer (b). There will be injunction in terms of prayer (c). There will be an order for costs to be paid by the defendants to the plaintiff. Certified for two Counsel.
46. The decree will not be executed for a fortnight.