The Building Rules 2014, as a complete code, did not provide for compounding beyond the specified tolerance limit, and therefore, the earlier Regulations 2000 did not apply for compounding in this case.

JUDGMENT :

A.S. Bopanna, J.

The appellants who were the respondent Nos.6 to 11 in WP(C) 418/2018 are before this Court in this intra-Court appeal assailing the order dated 22.5.2018 passed by the learned Single Judge in the said writ petition. The respondent Nos.1 and 2 herein were the writ petitioners. The respondent Nos.1 and 2 herein in the said writ petition had called in question the building construction permission dated 12.5.2014 and renewal permission dated 5.2.2016 issued by the Tinsukia Municipal Board in favour of the appellants herein on the ground that the same was issued in violation of the provisions of Assam Notified Urban Areas (Other Than Guwahati) Building Rules, 2014 (Building Rules, 2014 for short). The case put forth by the petitioners was that the construction was put up without maintaining the side setback for the building as required under Rule 67 (3) of the Building Rules, 2014. In that regard, nature of construction put up was referred to in detail with reference to the extent of permissibility. In that background, it was contended that in respect of the building which was above the height of 11.5 metres, upto 15 metres height, the minimum side setback required to be left is 1.5 metres. In the instant case, it was contended that the construction put up by the appellants herein was to the height of 12.94 metres and in that circumstances instead of leaving the side setback of 1.5 metres, the side setback left was 1 metre. Hence, the height of the building is to be restricted to 11.5 metres.

2. On this factual aspect, the learned Single Judge having taken note that the height of the construction put up by the appellants herein is upto 12.94 metres which is more than 11.5 metres, was of the opinion that in the circumstance where the minimum side setback left is 1 metre, the permissible height being 11.5 metres of the building, has directed that the construction made over and above 11.5 metres be demolished by brining it within the statutory frame work/dimension of Rule 67(3) of the Building Rules, 2014. In terms thereof, the writ petition was allowed. The appellants therefore claiming to be aggrieved by the said order are before this Court in this appeal.

3. The learned senior counsel for the appellants while assailing the order passed by the learned Single Judge would contend that the direction issued by the learned Single Judge by merely relying on Rule 67 of the Building Rules, 2014 is not justified. It is contended that prior to the Building Rules, 2014 coming into force, the construction was regulated by the Uniform Zoning Regulations 2000 (Regulations 2000 for short). In that regard, it is contended that paragraph 9 of the Regulations 2000 provides for penalties and indicates the extent for which the compounding of the deviation from the plan is permissible. In that regard, it is contended that even though the Building Rules, 2014 was framed, the Regulations 2000 was not expressly repealed. In that circumstance, it is contended that the compounding as provided under Regulations 2000 would be available for consideration in respect of the building constructed by the appellants. In that background, it is the case of the appellants that the demolition as ordered by the learned Single Judge would not be justified and the case of the appellants would arise for consideration for compounding, on the competent authority deciding as to whether the construction is within the compoundable limit.

4. Learned counsel for respondent Nos.1 and 2 would, however, seek to sustain the order passed by the learned Single Judge. It is contended that on the Building Rules, 2014 being framed, the subsistence of the Regulations 2000 does not arise. It is his contention that the Building Rules, 2014 through Rule 32 provides for action with regard to the unauthorized construction and it provides that either the same is to be sealed or demolished. In such circumstance, when the construction is in violation of the permissible paramet