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2019 DIGILAW 489 (GAU)

Dayal Constructions v. Ranju Agarwal

2019-04-22

A.K.GOSWAMI, A.S.BOPANNA

body2019
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. 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 parameters as contained in Rule 67 of the Building Rules, 2014, the question of compounding the same does not arise. Hence, it is contended that the learned Single Judge keeping in view these aspects of the matter, has arrived at the conclusion which does not call for interference. 5. Hence, it is contended that the learned Single Judge keeping in view these aspects of the matter, has arrived at the conclusion which does not call for interference. 5. In the backdrop of the rival contentions and in the circumstance where the appellants seek to rely on the Regulations 2000 to take the benefit of compounding as provided under paragraph 9 on payment of penalty, the position is clear that the construction as put up has not provided the minimum side setback and it is in that light contended that deviation of such nature would not call for demolition but, on the other hand, it can be compounded on imposing the penalty. In that view, what would arise for consideration herein is as to whether the benefit of compounding which was provided for and existed under the Regulations 2000 would still be available when the construction of buildings are presently regulated under the Building Rules, 2014 which does not provide for compounding. 6. It is no doubt true that the Building Rules, 2014 does not contain any provision expressly stating that the Regulations 2000 is repealed. In that light, the learned Senior counsel for the appellants has referred to the text relating to the statutory interpretation and it is contended that there is presumption against the repeal by implication. Hence, it is contended that there can be no implied repeal and when the legislature does not provide repealing provision, it gives an intention not to repeal the existing legislation. The meaning as contained in the Blacks Law Dictionary for the word "Implied repeal" is pointed out, wherein it is stated that repeal affected by irreconcilable conflict between an old law and new law. In that view, it is contended that when under the Building Rules, 2014 no specific provision is made with regard to compounding and neither there is a bar in that regard, the Regulations 2000 which has not been expressly repealed will have to be taken note and the compounding as provided therein is to be extended. 7. In that background a perusal of the Building Rules, 2014 indicates that the specifications relating to the buildings of different types, keeping in view the varied land use is provided in Chapter IV of the Building Rules, 2014. In the instant facts, keeping in view that the building under construction is a commercial building, Rule 67 would apply. 7. In that background a perusal of the Building Rules, 2014 indicates that the specifications relating to the buildings of different types, keeping in view the varied land use is provided in Chapter IV of the Building Rules, 2014. In the instant facts, keeping in view that the building under construction is a commercial building, Rule 67 would apply. The specifications in respect of such building is provided therein and the same reads as hereunder: "The regulations for commercial buildings shall be as specified below- (1) Minimum plot size should be 167.4 sq. m. while minimum width of plot should be 7.5 m. (2) When setback is up to the height of 11.5m,- (a) minimum front set back of 3.0 m with 1.5 m cantilever in upper floor; (b) minimum side set back - a minimum of 1m has to be maintained in each side which can be relaxed to only one side if the adjoining plot owner agrees to have a common wall with his building; (c) minimum Rear Setback - Up to plot depth of 18 m. should be 1.5 m. while above plot depth of 18 m. should be 3.0 m. with maximum 1.5 m. projection on the upper floors; (d) if any part of the ground floor or any other upper floor is used for residential purpose or for human habitation, the side set back of the building shall be as per the high density residential zones; (e) a plot abutting in a street with a width of above 15 m, the front set back shall be calculated according to the width of the abutting street. (3) Additional rear and side setback for a building when height is above 11.5 m shall be as follows :- (a) if the height is from 11.5 m up to 15 m., the rear setback shall be 3 m and side setback shall be 1.5 m; (b) side and rear set back should be increased by 0.3 m for every 1.5 m of additional height of the building in addition to the set backs already prescribed for a building of 15 m height up to a maximum of 1.5 m of additional set backs on both rear and sides. 8. 8. In a circumstance where the specifications are provided, any plan approved contrary to the same or construction put up in deviation of the same would render such construction to be termed as an unauthorized construction. In order to deal with such unauthorized construction, the provision is contained in Rule 32 of the Building Rules, 2014 which reads as hereunder: "32. Un-authorised Construction.-(1) In case of unauthorized construction, the Authority shall take suitable action, which may include demolition of unauthorized works and sealing of premises. (i) It shall be lawful for the Authority to demolish the construction carried out in excess of the approval plan or not in conformity with the provisions of these rules. The Authority shall make an order of such demolition; (ii) It shall be lawful for the Authority to proceed for sealing of the building that has been constructed without a sanction plan or the construction undertaken is in deviation of the approved plan. The Authority shall make an order of such sealing. (2) When any erection of work or building has been sealed, the Authority for the purpose of rectification of the deviation or for the purpose of demolishing, may order the seal to be removed. No person shall be allowed to remove the seal, except under an order by the authority. (3) Any deviation from approved plan shall be corrected by demolition of the unauthorized part of the construction except that if a building or part thereof has been constructed without obtaining the required building permit from the Authority but in conformity with Building Byelaws. Tolerance in case of dimensional errors shall be permitted up to 0.15m.". 9. From a perusal of the Building Rules, 2014 extracted supra from Rule 32(3), it is seen that any deviation from the approved plan shall be corrected by demolition but the tolerance for dimensional errors permitted is only upto 0.15 metres. The contention on behalf of the private respondents is that the said Rule provides for tolerance upto 0.15 m in respect of which no action whatsoever is required but beyond the same if there is any deviation, the only answer is to demolish as the compounding beyond that extent is not provided under the Rules. The contention on behalf of the private respondents is that the said Rule provides for tolerance upto 0.15 m in respect of which no action whatsoever is required but beyond the same if there is any deviation, the only answer is to demolish as the compounding beyond that extent is not provided under the Rules. This is provided to protect the interest of the adjoining plot owner as provided under Rule 67 (2) (b) of Building Rules, 2014 and there cannot be compounding by the officials detrimental to the interest of adjoining plot owner without his/her consent when the easmentary right would get affected. 10. The learned senior counsel for the petitioners would, however, contend that tolerance is not the same as compounding. In that regard, reliance is placed on the meaning of the word tolerance as contained in the Oxford English Dictionary which indicates that it means the ability to endure specified conditions or treatment. In that regard, it is contended that to the extent as indicated as the tolerable limit, there is no action to be taken by the authorities if the deviation is upto the extent of 0.15m. Hence, the learned senior counsel for the appellants contends that it only means, to the extent as stated in Rule 32 of Building Rules, 2014, no penalty would be imposed but if there is deviation beyond that extent, imposition of penalty and compounding would arise. In that regard, the decision in the case of Licensee - vs- The District Collector, Dindigul District, 2010-0-Supreme (Mad) 4997, is relied wherein it is stated that the expression "composition" or "compounding of offence or irregularity" means accepting the acquiescence of irregularity committed or the violation of the statutory provision. Hence, it is contended that when the issue of deviation of more than 0.15 m is to be considered, the same would be in terms of Para-9 of the Uniform Zoning Regulations, 2000. In order to contend that demolition is not the only solution but what is to be explored is also to compound by imposing penalty, the learned senior counsel seeks to rely on the decisions in the case of Syed Muzaffar Ali & Ors. -vs- Municipal Corporation of Delhi, 1995 Supp (4) SCC 426 and in the case of Muni Suvrat-Swami Jain S.M.P. Sangh -vs- Arun Nathuram Gaikwad & Ors., (2006) 8 SCC 590 . 11. -vs- Municipal Corporation of Delhi, 1995 Supp (4) SCC 426 and in the case of Muni Suvrat-Swami Jain S.M.P. Sangh -vs- Arun Nathuram Gaikwad & Ors., (2006) 8 SCC 590 . 11. Learned counsel for the private respondents, on the other hand, has placed reliance on the decision in the case of Dharangadhra Chemical Works -vs- Dharangadhra Municipality & Anr., (1985) 4 SCC 92 , to contend that it is held therein that when the subject matter is dealt under two enactments and if there is repugnancy between the two pieces of legislation to such an extent, both cannot stand together and operate simultaneously. The latter will have the effect of impliedly repealing the former. The decision in the case of Commissioner of Income Tax, Bangalore -vs- Venkateswara Hatcheries (P) Ltd., (1999) 3 SCC 632 , is relied to contend that it is held therein that it is a settled principle of interpretation that the meaning of the words occurring in the provisions of the Act must take their colour from the context in which they are so used. When the word read in the context conveys a meaning, there is no need to rely upon the dictionary meaning of that word. In such event, re- enactment is regarded as having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of the re- enacted provision. Further, the decision in the case of East India Hotels Ltd. & Anr. -vs- Union of India & Anr., (2001) 1 SCC 284 , is also relied to contend that an Act has to be read as a whole and the different provisions have to be harmonised and the effect has to be given to all of them reading the provisions together. 12. In the above background, though the learned senior counsel for the appellants and the learned counsel for the private respondents have referred to the extent of construction put up presently and the deviation thereto and in that light, though the learned counsel for the appellants contends that the deviation is within the compoundable limit, the said contention is not necessary to be dealt with herein. What is necessary to be determined herein is as to whether the compounding as provided under the Regulation, 2000 would be applicable. What is necessary to be determined herein is as to whether the compounding as provided under the Regulation, 2000 would be applicable. If the conclusion is in the affirmative, then the issue as to whether the deviation is within the compoundable limit is a matter to be considered and determined by the Competent Authority. On the other hand, if the conclusion is that the compounding as provided under the Regulation, 2000 is not applicable, even then the determination of the extent of deviation herein would not arise as the same is to be taken note by the competent authority to bring the building in conformity with Building Rules, 2014. In that backdrop, though the contentions are urged with regard to the implied appeal, without adverting to further details if the provision as referred to by the learned senior counsel for the appellants as contained in Rule 76 (11) of the Building Rules, 2014 is taken note, the fact that the Rule making authority has left the Regulation, 2000 to be made applicable in appropriate circumstance, is evident. Notwithstanding the same, the question that would arise is as to whether the Regulation, 2000 providing for compounding is to be made applicable despite the provision contained in Rule 32 of Building Rules, 2014. 13. In that regard, at the outset a perusal of Rule 76 of the Building Rules, 2014 referred to by the learned senior counsel for the appellants if taken note would indicate that the same relates to the additional requirement for Multi-storied and Special Buildings which is regulated thereunder. Sub-rule (11) no doubt indicates that all other Regulations not specifically mentioned therein shall be applicable as per the provision of Zonal Regulation. Further, subrule (12) of Rule 76 indicates that the Authority may ask for any information considering special nature of building and location of the plot. Sub-rule (11) no doubt indicates that all other Regulations not specifically mentioned therein shall be applicable as per the provision of Zonal Regulation. Further, subrule (12) of Rule 76 indicates that the Authority may ask for any information considering special nature of building and location of the plot. In a circumstance where Regulation, 2000 also provides with regard to additional requirement for multi-storied and special type of building as contained in E11 and since the same is made applicable only to Section 76 which is also a Rule providing for multi-storied and special building and not as a general application to Building Rules, 2014, the intention of the Rule making authority is clear that the application of Regulation, 2000 is only in so far as the matters relating to the provision as contained in Rule 76 of the Building Rules, 2014, to the limited extent. 14. On a clear understanding of this aspect, a perusal of Rule 67 of Building Rules, 2014 would indicate that it provides the details relating to the nature of construction and the requirement of adherence to the height, set back etc. Similar provision is made in the various Sections contained in Chapter-IV in respect of regulating the construction relating to other types of buildings, namely, residential use, multi-storied apartments, building to be used for whole sale, industrial buildings, specially used buildings and buildings for educational institutions. The requirement in respect of each of the categories is provided under the very Section wherein the Regulation is made. 15. In that background, a consideration of Rule 32 of Building Rules, 2014 taken note above is a provision to deal with the unauthorized construction in respect of the buildings of all categories which does not comply with the requirement of the provision made under each category. What is relevant to be taken note is that no provision is made for compounding under Rule 32 or elsewhere in Building Rules, 2014. It is no doubt true that the tolerance limit is provided under Rule 32 of the Building Rules, 2014. In that backdrop, if a reference is made to Para-9 indicated as Penalties under the Regulation, 2000, it is seen that the compoundable items and the non-compoundable items are mentioned therein. While providing for compounding, even under the said provision it is indicated that up to 0.15 metres there is no penalty. In that backdrop, if a reference is made to Para-9 indicated as Penalties under the Regulation, 2000, it is seen that the compoundable items and the non-compoundable items are mentioned therein. While providing for compounding, even under the said provision it is indicated that up to 0.15 metres there is no penalty. It is no doubt possible to accept the contention of the learned senior counsel for the appellants that it is same extent as the tolerance limit which is indicated in the Building Rules, 2014. For deviation above 0.15 metres upto 0.75 metres, the rate per square metre as the compounding penalty is indicated. In our view, the very fact that under Rule 32 of the Building Rules, 2014, the extent indicated as compoundable without penalty under Relegation, 2000 is the extent of tolerance indicated in Rule 32 of the Building Rules, 2014. That is the only deviation permissible. Since the remaining part relating to compounding is not provided for under the Building Rules, 2014, the intention of the rule making authority is clear that the compounding as was provided under the Regulation, 2000 is not to be made applicable to the Building Rules, 2014 as only the tolerance limit has been incorporated therein. That being the intention and the Building Rules, 2014 is framed in such a manner which is a complete code to regulate all types of buildings, the application of the earlier Regulation so as to violate the intended Rule which requires adherence, would not be justified. Hence, the contentions as put forth by the learned senior counsel for the appellants that even if the violation as taken note by the learned Single Judge if kept in view, an opportunity to seek for compounding should be made available cannot be accepted. 16. In view of the above consideration, the decisions on which reliance has been placed by the learned senior counsel for the appellants would not be of assistance to the appellants in the instant case. 16. In view of the above consideration, the decisions on which reliance has been placed by the learned senior counsel for the appellants would not be of assistance to the appellants in the instant case. In the case of Syed Muzaffar Ali and others (supra), a consideration of the relevant provision is not made but in a circumstance where no notice had been served before issue of demolition order and when it was contended on behalf of the petitioners that the structural changes brought about by the petitioners do not amount to construction, it was held that these are aspects are to be considered by the competent authority and, in that circumstance, it was directed to consider whether the violation could be compounded or regularized and to resort to demolition only in serious and grave breaches of building regulations. In the case of Muni Suvrat-Swami Jain S.M.P. Sangh (supra), the consideration made was in the background of the provisions contained in the Bombay Municipal Corporation Act and the requirements contained therein. In that circumstance, since under the provisions the power was exercisable by the Municipal Commissioner to exercise the discretion to order or not to order demolition after examining the cause shown, it was held that such discretion exercised by the competent authority is not to be interfered in a judicial proceeding. On the other hand, in the instant facts, as already noticed above, the Building Rules, 2014 provides for the manner in which a construction is to be put up and, insofar as the side set back, the interest of the adjoining owner is also to be kept in view. In such circumstance, when the Rule provides that the side set back in respect of the buildings measuring more than 11.5 metres in height should be 1.5 metres, the sanctioning authority, in such event, cannot approve a plan providing less than the required side set back for a building which is more than the height prescribed. In such circumstance, when there is basic violation of the building rules and the approval granted is contrary to law, such action of the authorities would call for interference in a judicial proceeding. 17. In such circumstance, when there is basic violation of the building rules and the approval granted is contrary to law, such action of the authorities would call for interference in a judicial proceeding. 17. In that background, a perusal of the order dated 22.05.2018 passed by the learned Single Judge would indicate that the learned Singe Judge keeping in view the provision as contained in Rule 67 and Rule 32 of the Building Rules, 2014 and on the admitted position with regard to the extent of the construction made being beyond 11.5 metres in height has arrived at the conclusion that the offending portion is liable to be demolished. In that view, we do not find any error committed by the learned Single Judge so as to call for interference. 18. Accordingly, the writ appeal being devoid of merit is dismissed with no order as to costs.