1. - The appellant has filed this appeal seeking to challenge the order of the learned Single Judge dated 18.12.2000, disposing of the writ petition while making substantial observations having the effect of keeping virtual remedy open to the petitioner.

2. The grievance of the appellant is, that the learned Single Judge has himself observed that though the question raised by the appellant requires consideration, notwithstanding this, the learned Judge has not entertained the writ petition, and has left the appellant to the remedy of already pending civil suit. It was submitted that from the documents, Annex.4, Annex.13 and other documents annexed with the writ petition, coupled with the provisions of Section 73, 75 and 90 of the Urban Improvement Trust Act and the rules framed under the said Act being The Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvements of Plots) Rules, 1975, more specially Rule 5 and 8 etc., also if read in the background of the established principles laid down by Hon'ble the Supreme Court, that illegal constructions made on set back portions, or by reducing set backs etc. should be demolished, since in the present case, the factual side of all the aspects is not in dispute between the parties, there was no justification for relegating the appellant to the remedy of pending suit, and the writ petition was required to be considered on merits by this Court itself, and was required to be allowed.

3. It was submitted that the provisions of Act are mandatory, which require that before raising construction, permission has to be obtained, and the things required to be disclosed for obtaining permission are also mandatory, while in the present case, admittedly the construction was raised by the private respondent in violation of permission, therefore, notice, Annex.4 was given, but then, without hearing the appellant, and despite the fact that the appellant had raised objection before the Urban Improvement Trust, the Urban Improvement Trust has proceeded to compound the construction, while there are no rules or legislation in force, authorising the Urban Improvement Trust to compound the matter. In such circumstances, the appellant should not have been relegated to the suit.

4. Learned counsel for the respondent supported the impugned order.

5. We have considered the submissions and have gone through the record.

6. As transpires from the record, that the suit was filed before filing of the present writ petition, and was filed on 2.5.2000, and as alleged in the writ petition, a temporary injunction was also granted in favour of the plaintiff, according to the plaintiff construction was raised in defiance thereof, therefore, proceedings for disobedience have also been initiated, which are pending. Then from a look at the copy of the plaint, which has been filed in this appeal, shows that the suit is not only for declaratory decree and demolition of unauthorised construction, it is for perpetual injunction, and abatement of nuisance. Various pleadings had been taken in the suit, about the plaintiff having behaved like a good neighbour, but the defendant raised construction without obtaining previous permission from the Trust, and has obstructed the natural light and air of the plaintiff, and that has constructed 8 latrines and bathrooms illegally, which emit foul odor, which is directly adversely affecting the life of plaintiff and his family members, appropriate sewerage connection has not been done, with the result, that there is always risk of overflow, discharge of foul air by exhaust fan towards the side of plaintiff. It is also alleged, that the premises are being used for commercial purposes, and a hospital and maternity home is running therein, with the result, that the organic and inorganic effluent also emits foul smell, the crowd of patients and their attendants coming to hospital also create obstruction in the passage of the plaintiff's husband, who happens to be an advocate. Then no