JUDGMENT : SUDHANSHU DHULIA, J. 1. Heard Ms. S.B. Choudhury, learned counsel for the petitioner. Also heard Mr. P. Sarma, learned Additional Senior Government Advocate, Assam, appearing for respondent Nos.1 and 4, Mr. Sishir Dutta, learned senior Standing Counsel, Silchar Municipal Board, appearing for respondent Nos. 2 and 3 and Mr. K.N. Choudhury, learned senior counsel assisted by Mr. D.J. Das, learned counsel appearing for respondent No. 5. 2. This writ petition has been filed by the petitioner challenging the order dated 20.08.2021 (Annexure-VIII to the writ petition) passed by the Additional Deputy Commissioner, who is the appellate authority under the Assam Municipal Act, 1956 [in appeal, being M.A. Case No. 07/2020, Sri. Biswajit Roy vs. The Executive Officer, Silchar Municipal Board]. By the said order, the earlier order dated 12.11.2020 passed by the Executive Officer of Silchar Municipal Board (hereinafter to be referred as ‘the Board’) for demolition of unauthorised building has been set aside. But before we come to the merits of the case and examine the relevant Building Laws and the legality of the impugned order, we must note down some relevant facts which are absolutely material for the adjudication of the present case. 3. A public interest litigation, being PIL No. 21/2020 was filed before this Court by a group of petitioners who were nine in number, and are residents of Silchar, which is a town in the district of Cachar in Barak Valley of Assam. The case of the petitioners was that an unauthorised construction of a commercial building was being made in Silchar, which is against the Building Laws and is causing disturbance in the neighbourhood and the petitioners being the residents of Silchar were aggrieved by this construction. They thus prayed for an interference and appropriate order of this Court in this PIL. 4. This Court vide its order dated 06.03.2020 took cognizance of the matter and passed the following order: “1. Nine petitioners claiming to be residents of Silchar, District Cachar, have preferred this petition in public interest with the plea that illegal construction of commercial nature is going on, unchecked, and is against the existing rules and regulation, viz. Assam Notified Urban Areas (other than Guwahati) Building Rules, 1914 and Assam Municipal Act, 1956. It has further been pleaded that the gap between buildings is supposed to be 10 feet, however the same has not been maintained. Assam Notified Urban Areas (other than Guwahati) Building Rules, 1914 and Assam Municipal Act, 1956. It has further been pleaded that the gap between buildings is supposed to be 10 feet, however the same has not been maintained. Extra floors are being constructed on commercial buildings which is also in violation of the regulations. Under the Municipal laws, construction can cover 40% of the total land area, however 80% of the land area has been covered as is depicted from photographs placed on record from Page Nos.16 to 18. It has been pleaded that such construction other than being in violation of relevant laws, is likely to cause loss of life, in case of fire, earthquake etc. 2. Considering the nature of the issue, we hereby direct the Deputy Commissioner, Cachar, Silchar and Chairman, Silchar Municipal Board, Cachar to forthwith conduct a survey in Shyama Prasad Road, Shillong Patti, Silchar and file their individual separate affidavits clearly indicating whether compliances of the relevant rules and regulations have been made or not. In case, the buildings have been constructed in violation of the rules and regulations, the names and designations of the officers who are responsible for ensuring construction in accordance with rules and regulations be specified so that responsibility can be fixed. 3. We further direct that in case the construction is against the municipal and other laws, appropriate action, in accordance with law be taken. 4. Notice be issued to respondent No. 4. 5. List on 30.03.2020, high up on the list. 6. Respondent No. 1 appears to have been wrongly defined. Respondent No. 1 would read as “State of Assam, Commissioner and Secretary, Urban Development Department, Guwahati.” Necessary corrections be made in the name of parties. Mr. D. Saikia, learned Senior Advocate would appear for respondent No. 1 and 3. We further request Mr. Saikia to ensue service on Chairman, Silchar Municipal Board, Cachar. 7. Let a copy of this order be given under signature of the Court Master.” 5. Mr. D. Saikia, learned Senior Advocate would appear for respondent No. 1 and 3. We further request Mr. Saikia to ensue service on Chairman, Silchar Municipal Board, Cachar. 7. Let a copy of this order be given under signature of the Court Master.” 5. Thereafter, the matter was adjourned on different dates, time was being sought by the respondents to file counter affidavit and ultimately, an affidavit was filed on behalf of the Municipal Board, Silchar, wherein in paragraph 11 it was stated that not only an extra floor, i.e. the fifth floor has been constructed which was not sanctioned but what is more important is that under the municipal laws construction can cover only 40% of the total land area whereas in the present case, 71.38% of the land area has been covered by the construction. Paragraph 11 of the affidavit filed by the Board which was quoted by this Court in its order dated 14.09.2021 reads as under: “11. The detailed report of the Assistant Engineer dated 24.03.2020 shows that - The permitted space by the Silchar Municipal Board to the respondents on the front set back (East) of the building was 8 meters, however the respondent left about 7.03 meters. The space permitted for Cantilever projecti on was up to 1.50 meter, however the respondent left about 2 meter of space. The space permitted for the rear set back (west) of the building was 11.21 meter but the respondent left only 2.67 meter of space and raised the construction on 9.71 meter of space. The space permitted for Cantilever projection of rear set back was 1.5 meter, but only 1.22 meter was left out. Space permitted for side set back (North) was 3.10 meter, however only 1.20 meter was left out. The building permission was meant for only commercial (General/Retail) purpose. However it was used for commercial/Hotel/Restaurant purpose by the private respondent. The permitted number of floors by the Board was only B+G+IV, however the constructed number of floors was B+G+V (one extra i.e. 5th R.C.C. floor) by violating the building permit. Under the Municipal Laws, Construction can cover 40% of the total land area, however 71.38% of the land area has been covered by the construction in violation of relevant laws.” 6. Under the Municipal Laws, Construction can cover 40% of the total land area, however 71.38% of the land area has been covered by the construction in violation of relevant laws.” 6. The matter was again listed before the Division Bench of this Court on 05.10.2020 and on that day, this Court referring to the earlier order dated 14.09.2020 passed order. Paragraphs 4, 5, 6 and 7 of the order dated 05.10.2020 reads as under: “4. Mr. S. Dutta, learned Senior Counsel appearing for the respondent no. 2, submits that because of certain technical problem on that day on 14.09.2020, he could not clearly comprehend what was dictated through the virtual Court and as such, could not inform the Silchar Municipal Board Authorities about the specific direction issued by this Court for furnishing the explanation, failing which the personal presence of the officer of the Board in the Court would be required. It has been submitted that because of non-communication of the order passed by this Court on 14.09.2020 to the concerned official i.e. the respondent no. 2, the aforesaid direction issued by this Court could not be implemented and therefore, prays before this Court to grant some more time to the respondent no. 2 to do so. 5. Mr. D. Saikia, learned Senior Government Advocate, Assam, also submits that there was some audio issues on the date of passing of the order on that day. 6. In view of above submission made, we are inclined to grant some more time, specifically to the respondent no. 2, to undertake exercise as directed by this Court on 14.09.2020 and furnish the explanation by 19.10.2020, failing which the respondent no. 2, Sumit Sattawan, IAS, Executive Officer of the Silchar Municipal Board will appear before this Court in person on the next date. 7. List the matter on 19.10.2020.” 7. On 19.10.2020, this Court passed the following order: “Heard Ms. S.B. Choudhury, learned counsel for the petitioners; Mr. S. Dutta, learned Senior counsel for the respondent no. 2; Mr. D. Saikia, learned Senior Government Advocate for State of Assam and Mr. M. Nath, learned counsel for the respondent no. 4. The matter relates to alleged violation of Municipal Laws by the respondent no. 4 in connection with which this Court had passed certain directions on earlier occasions on 06.03.2020 and 14.09.2020. 2; Mr. D. Saikia, learned Senior Government Advocate for State of Assam and Mr. M. Nath, learned counsel for the respondent no. 4. The matter relates to alleged violation of Municipal Laws by the respondent no. 4 in connection with which this Court had passed certain directions on earlier occasions on 06.03.2020 and 14.09.2020. We expect the concerned official respondents to implement this Court’s orders for which they shall submit a report as directed by this Court earlier by next date on 16.11.2020. The Deputy Commissioner, Cachar District as well as the Executive Officer of the Municipal Board shall supervise effective implementation of the Court’s orders passed on the earlier occasions. The Deputy Commissioner, Cachar District will make the necessary survey about the implementation of the Court’s order and will also submit a report by the next date. List on 16.11.2020.” 8. Meanwhile, an order was passed by the Executive Officer of the Silchar Municipal Board on 12.11.2020 which gave precise details of the building, the permission granted and the violations made by the builder and the order then concluded that the structure in question is in violation of the law and beyond the sanction granted as far as coverage percentage, set back, height of building, use of building, number of floors etc. are concerned and therefore, it has to be demolished and directed to demolish the unauthorised portion of the building. The order dated 12.11.2020 passed by the Executive Officer of the Silchar Municipal Board reads as under: “ ORDER 12.11.2020 C.R. Put up today. Sri Biswajit Roy present personally. Heard submissions of Sri Biswajit Roy. Perused the field report of alleged site dated 07.11.2020, and issued building construction permission of the alleged building Vide No. MP/BP/05/2017-18/2545, dated 03.07.2017 and comparing the both violations in construction of the alleged building is detected, which are listed as below: As per Permission drawing As per Construction condition Front set back (East) Cantilever projection 8.00 Mtr. 1.50 Mtr. in upper floors from 1st floor level to top floor 6.97 Mtr. Cantilever projection 1.80 Mtr. with ACP projection of 0.50 mtr. from 1st floor level to top floor Rear set back (West) Cantilever projection 11.21 Mtr. 1.50 Mtr. in upper floors from 1st floor level to top floor 2.53 Mtr./1.95 Mtr. With Cantilever projection 1.22 Mtr. from Avg. Ground level to top floor Side set back (North) 3.00 Mtr./3.10 Mtr. 1.44 Mtr./1.15 Mtr. with ACP projection of 0.50 mtr. from 1st floor level to top floor Rear set back (West) Cantilever projection 11.21 Mtr. 1.50 Mtr. in upper floors from 1st floor level to top floor 2.53 Mtr./1.95 Mtr. With Cantilever projection 1.22 Mtr. from Avg. Ground level to top floor Side set back (North) 3.00 Mtr./3.10 Mtr. 1.44 Mtr./1.15 Mtr. Cantilever projection 0.80 Mtr. from Ground Floor level to top floor Side set back (South) 3.00 Mtr./3.10 Mtr. 0.80 Mtr./0.53 Mtr./0.75 Mtr./1.50 Mtr. Cantilever projection 0.86 Mtr. and 1.22 Mtr. from Ground Floor level to top floor Coverage Percentage 39.99% 70% (approx) Height of the building 18.00 Mtr. 20.88 Mtr. No. of floors B+G+IV B+G+V (One extra floor) Use of the building Commercial Commercial/Hotel/Restaurant As per above alleged structure is in violation with report to Coverage Percentage, Set-back, Height of building, Use of building, No. of floors. Also, Parking area and FAR have already been deviated from permission condition. So, as per provision of Assam Notified Urban Areas (other than Guwahati) Building Rule 2014, Rule 32(1)(i), Sri. Biswajit Roy is hereby directed to demolish the unauthorized portions of the alleged structure within 15(fifteen) days from the date of issue of this order i.e. on or before 27.11.2020 and report compliance accordingly to the office of the undersigned. Failing to comply with this order, this Authority will take necessary action as per relevant Acts and Rules. The matter is disposed of accordingly. Inform all concern. Sd/- illegible Executive Officer Silchar Municipal Board.” 9. When the matter was listed before this Court on 02.12.2020, the aforesaid order dated 12.11.2020 was brought to the notice of the Court and it was submitted before this Court by the counsel for the Silchar Municipal Board, Mr. S. Dutta, learned senior Advocate that though fifteen days’ time had been given to the owner of the building, i.e. respondent No. 5 in the present writ petition to demolish the unauthorised portion of the building, but this has not been done. This Court granted further ten days’ time to the respondent No. 5 to demolish the unauthorised portion and the matter was fixed on 21.12.2020. 10. This Court granted further ten days’ time to the respondent No. 5 to demolish the unauthorised portion and the matter was fixed on 21.12.2020. 10. When the matter was listed again before this Court on 21.12.2020, the counsel for the respondent No. 5 said that the respondent No. 5 preferred statutory appeal against the order of the Executive Officer of the Board dated 12.11.2020 and prayed for adjournment of the matter. In view thereof, this Court had adjourned the matter which was to be fixed on 18.01.2021. 11. On 19.01.2021, it was brought to the notice of the Court that order dated 12.11.2020 was taken on appeal and the appellate authority, i.e. the Additional Deputy Commissioner, Cachar, Silchar vide its order dated 03.12.2020 had stayed the order dated 12.11.2020. The order of the appellate authority reads as under: “ORDER CR put up today. Seen the Appeal Petition filed by Sri. Biswajit Roy S/o Lt. Rakesh Chandra Roy, resident of Sonai Road, Silchar, against order passed by the Executive Officer, SMB on 12.11.2020 and communicated Vide Memo No. MP/BP/V/06/2020-21/3163 dated 12.11.2020. Appeal petition is admitted for hearing. Call for records from SMB. Call both parties to be present on 11.01.2021. Issue notice accordingly. Till further order, impugned order passed by the Executive Officer, SMB is kept in abeyance. Inform all concerned.” While the Court asked the respondent No. 5 that under which provision the appeal had been filed, this Court was informed by the respondent No. 5 that under Section 296 of the Assam Municipal Act, 1956 (for short ‘the Act of 1956’) the appeal had been filed. Section 296 of the Act of 1956 reads as under: “296. Section 296 of the Act of 1956 reads as under: “296. Power to suspend action under Act - The State Government, the Commissioner of Division, the Deputy Commissioner, the Director of Municipal Administration, the Additional Deputy Commissioner or the Sub-Divisional Officer-in-charge of a Sub-Division may, by order in writing, suspend the execution of any resolution or order of the Board or prohibit the doing of any act which is about to be done or is being done, in pursuance of, or under cover of, this Act, or in pursuance of any sanction or permission granted by the Board in the exercise of their powers under this Act, if in its or his opinion, the resolution, order or act militates against the fundamental rights conferred by Part III of the Constitution of India and the State Policy on the Directive Principles laid down in Part IV of the Constitution of India, is in excess of the powers conferred by law, or the execution of the resolution or order, or the doing of the act, is likely to lead to a serious breach of the peace, or to cause serious injury or annoyance to the public, or to any class or body or persons.” This Court then observed that Section 296 of the Act of 1956 is only applicable in exceptional circumstances and such circumstances have not been reflected in the order of the appellate authority. No reasons has been assigned as to why the order of the Executive Officer dated 12.11.2020 has been stayed. Moreover, this Court also noticed that the owner of the building, i.e. the respondent No. 5 herein had not apprised the appellate authority about the pendency of the PIL and the orders passed in the PIL by this Court. This Court, therefore, stayed the operation of the order dated 03.12.2020 and took suo motu cognizance and issued notice to the respondent No. 5, Sri Biswajit Roy, Sri. Sumit Sattawan, IAS, Executive Officer, Silchar Municipal Board and Dr. K.S. Ahmed, Additional Deputy Commissioner, Silchar as to why they should not be punished for having committed contempt of Court. 12. When the matter was again listed before this Court on 18.02.2021, this Court directed the matter to be listed as contempt case since notices had been issued to the parties. By now the matter has been listed as a contempt case, being Cont. 12. When the matter was again listed before this Court on 18.02.2021, this Court directed the matter to be listed as contempt case since notices had been issued to the parties. By now the matter has been listed as a contempt case, being Cont. Case (Crl) (Suo Moto) No. 1 of 2021. After issuing notice to the parties in the contempt petition and having gone through their reply, this Court vide its order dated 25.03.2021 fixed the matter on 30.03.2021 for framing of charges. 13. On 30.03.2021, after hearing the parties, the charges were framed against the above-named three persons and an opportunity was given again to all of them to file a detail reply in their defence and their response to the charges framed against them. 14. Meanwhile, the respondent No. 5, i.e. the owner of the building has approached the Hon’ble Apex Court by filing a special leave petition whereupon the following order was passed: “ORDER: We have heard learned senior counsel for the petitioner and brought to his notice that the stage of the contempt proceedings is of framing of charge and thus, we would not like to interfere at this stage in exercise of jurisdiction under Article 136 of the Constitution of India. Learned senior counsel submits that as per his instructions, an extra floor was constructed but that has been demolished and the remaining additional construction is compoundable. If that be the position, in our view, it is for the petitioner to point this out to the Court as there can be no quibble with the proposition that compoundable deviation may be compounded according to norms on payment of charges. Learned counsel also points out that his appeal before the appellate authority has been dismissed merely on account of that fact that the matter is pending before the High Court. If that be the position, the High Court would be required to examine the contention of the petitioner whether he has actually removed the unauthorised construction and the remaining construction is compoundable or not. It is always open to the petitioner to challenge the appeal order before the High Court which can then be tagged and heard along with the contempt. The Special Leave Petitions are dismissed in the aforesaid terms. Pending applications stand disposed of.” 15. It is always open to the petitioner to challenge the appeal order before the High Court which can then be tagged and heard along with the contempt. The Special Leave Petitions are dismissed in the aforesaid terms. Pending applications stand disposed of.” 15. From the order dated 29.06.2021 passed by the Hon’ble Apex Court, it appears that entire facts were perhaps not placed before the Hon’ble Apex Court inasmuch as, by the time the respondent No. 5 approached the Apex Court, the charges had already been framed. Therefore, that stage was over. Moreover, it is not a case where only an extra floor was constructed by the respondent No. 5/petitioner before the Hon’ble Apex Court, as perhaps it was presented before the Hon’ble Apex Court. The fact is that apart from constructing an extra floor, the owner had deviated much further inasmuch as, instead of covering 40% of the total land area which was permissible, he had constructed more than 70% of the land area, where the stand of the Municipal Board was that the unauthorised construction is not compoundable. Perhaps this fact was not placed before the Hon’ble Apex Court as it was observed by the Apex Court that his appeal against the order of demolition dated 12.11.2020 passed by the Executive Officer of the Silchar Municipal Board was not considered as the matter was pending before this Court. When the matter came up before this Court again on 26.07.2021 and the order of the Hon’ble Apex Court dated 29.06.2021 was brought to the notice of this Court and this Court observing that the appellate authority had not decided the appeal on its merit, permitted the respondent No. 5 yet again to file an appeal before the appellate authority and the PIL as well as the contempt proceedings were adjourned. 16. The appellate authority in its order dated 20.08.2021, impugned herein, has now come to the conclusion that there has been violation of Building Laws and the violation is in two ways; first is that an extra floor, i.e. the fifth floor has been constructed, but this has already been demolished. 16. The appellate authority in its order dated 20.08.2021, impugned herein, has now come to the conclusion that there has been violation of Building Laws and the violation is in two ways; first is that an extra floor, i.e. the fifth floor has been constructed, but this has already been demolished. Regarding the second violation, which is set back, cantilever etc., the appellate authority observed that it is risky and not possible to demolish as per report of the Assistant Executive Engineer, Silchar Municipal Board dated 08.01.2021 and therefore, the earlier order of the demolition dated 12.11.2020 was set aside. There is also a reference that the order dated 12.11.2020 merges with the subsequent order dated 27.01.2021. The fact remains that the appeal has been allowed and the order for demolition has been set aside. This order of the appellate authority dated 20.08.2021 has been challenged before this Court in the present writ petition. 17. Mr. K.N. Choudhury, learned senior counsel appearing for the respondent No. 5, i.e. the owner of the building has relied upon the two provisions of the Assam Municipal Act, 1956. The second proviso to Section 177 and Section 296 of the Act, which has already been quoted above: Section 177 of the Act reads as under: “177. Power of Board in case of disobedience: (1) Should a building be begun, materially altered or erected: (a) without sanction as required by Section 171(1). (b) without notice as required by Section 171(2) or clause (iii) of Section 302. (c) when sanction has been refused. (d) in contravention of the terms of any sanction granted. (e) when the sanction has lapsed. (f) in contravention of any bye-laws made under Section 302, clause (v). The Board may, by notice to be delivered within a reasonable time, require the building to the altered or demolished as it may deem necessary, within the space of thirty days from the date of the service of such notice: Provided that no such notice shall issue in respect of the contravention of any rules the observance of which has been dispensed with under Section 173: Provided also that the Board at a meeting may instead of requiring alteration or demolition of any such building accept by way of composition such sum as it may deem reasonable. (2) Any person who fails to comply with a requisition issued by the Board under the provisions of sub-section (1) shall be liable to a fine not exceeding fifty rupees and to a further fine not exceeding ten rupees for every day during which the person continues to make such default after service on him of such requisition.” 18. A bare reading of the aforesaid two provisions would show that instead of requiring the demolition of a building, compounding can be done in appropriate cases. Section 296 of the Act gives an extra-ordinary power to the State Government, the Commissioner of Division, the Deputy Commissioner, the Director of Municipal Administration, the Additional Deputy Commissioner or even the Sub-Divisional Officer to interfere with the resolution of the board where the resolution militates against the fundamental rights conferred by Part III of the Constitution of India or is in violation of Part IV of the Constitution of India or such resolution is in excess of the power conferred by the law or whether the resolution of the board is likely to lead to serious breach of peace, or to cause serious injury or annoyance to the public, or to any class or body or persons. The emphasis laid by Mr. K.N. Choudhury, learned senior counsel appearing for the respondent No. 5 is that although it has been held by the appellate authority that the construction is in violation of the law, yet it has also been observed that demolition would be risky and therefore, he has exercised power under Section 296 of the Municipal Act, 1956 in order to prevent breach of peace or to cause serious injury or annoyance to the public as contemplated under Section 296 of the Act. 19. Before we come down to these aspects on which apprehension of risk has been raised by Mr. K.N. Choudhury, learned senior counsel for the respondent No. 5, we must examine as to what violation of the Building Laws has been caused by the respondent No. 5. 20. Mr. S. Dutta, learned Senior Counsel appearing for the Silchar Municipal Board has relied upon the Assam Town and Country Planning Act, 1959 (from hereinafter referred to as “Act No. II of 1960”) which was amended from time to time, and the rules framed thereunder, regarding construction of building and violation of the Building Laws, etc. 20. Mr. S. Dutta, learned Senior Counsel appearing for the Silchar Municipal Board has relied upon the Assam Town and Country Planning Act, 1959 (from hereinafter referred to as “Act No. II of 1960”) which was amended from time to time, and the rules framed thereunder, regarding construction of building and violation of the Building Laws, etc. The preamble of the Act reads as under: “ Preamble - Whereas it is expedient to provide for the development of the towns and the country sides of the State of Assam on sound planning principles with the object of securing proper sanitary conditions to conserve and promote the public health, safety and general welfare of the people living therein; It is hereby enacted in the Tenth Year of the Republic of India as follows.....” The Act is extended to the entire State of Assam excluding the Autonomous Councils/Districts. For records, we must state that the district of Cachar, where Silchar town is situated, is not an Autonomous District in Assam and therefore the Act is applicable in the present case. Under the said Act the Master Plans, Zoning Plan etc. are prepared by the Town and Country Planning Department of the State of Assam under section 9, 10 and 11 of the Act. After preparation of the master plan, it is now to the authorities concerned for implementation of the same. This provision, as contained in section 12 reads as under: “12. Implementation of the Plan - After adoption of the plan and zoning Regulation they shall be sent by the State Government for implementation to the Authority constituted under Section 8A.” (Emphasis provided) 21. In other words, in the present case, the Silchar Municipal Board is the authority which has been mandated under the law to implement the master plan. A notification dated 12.06.2000 was issued by the Town and Country Planning Department, Assam, under sub-section (2) of section 10 of the Notification, which lays down as to what construction can be compoundable and what is not compoundable. The compoundable as well as the non-compoundable items are given in Paragraphs 9.2.1 which are as under: “9.2.1. All provision of zoning regulations/bye-laws except items given below shall not be compounded/regularised and shall have to be rectified by alternation/demolition at the risk and cost of owner: Compoundable Item: 1. Coverage Maximum of 15% 2. FAR Maximum of 10% 3. The compoundable as well as the non-compoundable items are given in Paragraphs 9.2.1 which are as under: “9.2.1. All provision of zoning regulations/bye-laws except items given below shall not be compounded/regularised and shall have to be rectified by alternation/demolition at the risk and cost of owner: Compoundable Item: 1. Coverage Maximum of 15% 2. FAR Maximum of 10% 3. Set back Up to 2 feet 6 inches 4. Open Space Maximum 10% reduction 5. Total height of building 1.5% Non-Compoundable Item: 1. Use of building 2. Addition of extra floor 3. Parking norms 4. Projection/encroachment of public land.” 22. In the present case, as far as the extra floor constructed is concerned, it is clearly non-compoundable as permission was given for construction up to 4th Floor of the building but, admittedly, 5th Floor has been constructed. As has been informed to the Court, the 5th Floor has already been demolished. However, whether the remaining structure can be compounded is now the question before this court. The most important aspect is that the percentage of coverage, which was permitted to the respondent no. 5, i.e. the owner of the building, was 40% of the front area, but his construction has covered approximately 71% of the area. As per the notification dated 12.06.2000, the compoundable area of the excess construction is 15% of the total area permitted. In the present case, he has constructed 71.38% of the area which means more than 30% of his additional construction is illegal and non-compoundable. Secondly, as far as set back is concerned, the maximum benefit which can be given to him is of 10% of the floor area. He was to give a set back of 8 Metres, whereas he has left 6.97 Meters as set back which is beyond the permissible limit and is, therefore, non-compoundable. As far as rear set back is concerned, he was supposed to give 11.21 Metres as rear set back, whereas he has left the set back only of 2.53/1.95 Metres. As far as the side set back (North) is concerned, he has left the set back of 1.44 Metres, whereas the permissible limit of side set back was 3.10 Metres. Again, As far as the side set back (South) is concerned, he has left the set back of 0.80 Metre, whereas the permissible limit of side set back was 3.10 Metres. Therefore, this construction is clearly non-compoundable. 23. Again, As far as the side set back (South) is concerned, he has left the set back of 0.80 Metre, whereas the permissible limit of side set back was 3.10 Metres. Therefore, this construction is clearly non-compoundable. 23. At this juncture, we must also add that there is already an affidavit of the Executive Officer, Silchar Municipal Board dated 25.10.2021 where in paragraphs 6, 7, 8 and 9 it has been stated as under: “6. That very unpleasant circumstances has emerged in this case is that by virtue of the Order dated 20.08.2021 passed by the Appellate Authority, Your Lordship’s Order dated 02.12.2020 has been interfered with quite illegally despite of the finding arrived at by the Appellate Authority that the violation is clear. When Appellate Authority found the violation, it could not be understood under what provisions of law he could set aside the Order dated 12.11.2020 passed by the Respondent No. 2 (Silchar Municipal Board). The reason given for setting aside Order dated 12.11.2020 passed by the Board defines all logic and gives an impression that the Order has been passed for some extraneous reason. 7. That it is respectfully stated that the impugned construction is in violation with regard to coverage percentage, setback, height of the building, use of the building, number of floors, parking area and FAR (Floor Area Ratio) have been deviated from permission condition. Your Deponent by filing its affidavit in paragraph 11 very clearly depicted the violation committed by Biswajit Roy which are non-compoundable in nature. 8. That it is reiterated that entire construction was deviated from sanctioned plan. In terms of Zoning Regulation, more specifically Clause 9 & 9.1, the major deviation committed by the private Respondent are non-compoundable deviations. In the instant case violations are not either marginal or accidental qualifying the room for regularisation. Violators are deliberate in as much as total coverage percentage permitted 40% whereas Biswajit Roy covered total coverage percentage of 71.38% (Land Area). 9. That your deponent states that Section 177 of the Assam Municipal Act 1956 is not applicable in the instant case in as much as major deliberate deviations committed by the private Respondent are non-compoundable deviations. If Municipal Authority encourage violation of sanctioned plan in that event the object of Zoning Regulation will be rendered otiose. 9. That your deponent states that Section 177 of the Assam Municipal Act 1956 is not applicable in the instant case in as much as major deliberate deviations committed by the private Respondent are non-compoundable deviations. If Municipal Authority encourage violation of sanctioned plan in that event the object of Zoning Regulation will be rendered otiose. Entire approach of the Appellate Authority in setting aside the Order dated 12.11.2020 is perverse and without any application of mind which warrant interference by this Hon’ble Court for upholding the interest of justice. If this type of illegal activity is to be stopped, some stringent action are required to be taken by ruthlessly demolishing the illegal construction and non-compoundable deviations.” 24. Now, the question is whether the construction made by the respondent No. 5 being non-compoundable can still be compounded for the reason given by the appellate authority that the demolition of the building would be risky? Although the only reason assigned by the appellate authority for stay of the demolition was that the demolition would be risky, yet no reason has been assigned as to how it would be risky. In our order dated 03.12.2021, we tried to find out as to what are the risks: “We have gone through the order of the appellate authority as well as of the Assistant Engineer on which heavy reliance has been placed by the appellate authority, wherein it has been stated that though the building in question is in violation of the building laws, but demolition of the building may not be practical as it is risky. However, he has not elaborated as to how the demolition would be risky, or on what basis he is making such statement. Before we come to a conclusion and dispose of the case, we would like the concerned Assistant Engineer to file an affidavit elaborating as to how the demolition of the building is risky and on what basis he is making this assertion. Let the affidavit be filed within a week. List again on 10.12.2021.” 25. Subsequently an affidavit was filed by Sri. Omkar Dutta, Assistant Executive Engineer, Silchar Municipal Board on 08.12.2021 stating as under: “1. That I am the Assistant Executive Engineer, Silchar Municipal Board. Let the affidavit be filed within a week. List again on 10.12.2021.” 25. Subsequently an affidavit was filed by Sri. Omkar Dutta, Assistant Executive Engineer, Silchar Municipal Board on 08.12.2021 stating as under: “1. That I am the Assistant Executive Engineer, Silchar Municipal Board. I had submitted a report contending that ‘It is quite risky to demolish/remove all the boundary line or end or peripheral columns as the structure will stand as an unstable one and thus become a vulnerable one for the vicinity as well as for the occupier of the structure. Also, as these columns are fixed or permanent, so it is quite impossible to shift these columns.” Copy of the report dated 08.01.2021 is annexed hereto & marked as Annexure-A. 2. That as per report dated 08.01.2021 to demolish the alleged structure with the means available in Silchar Municipal Board i.e. by manual hammering is risky, it should be executed in expertise manner by trained/experienced persons with diamond saw cutting machine, other necessary modernized tools/machines as reflected in Notice Inviting Quotations.” 26. Having come to the conclusion that the building in question has been constructed in violation of the Building Laws and that there is a finding of the Executive Officer based on the reports of the Assistant Engineer and the survey done that the construction is unauthorised and not compoundable. Having reached the conclusion, therefore, the only solution is the demolition of the unauthorised construction in a scientific manner so that it is reduced to minimum risk. Whether the demolition of the construction is the only alteration left for us, is still a question, which is before us. 27. We must place on record here the objections of the learned senior counsel for the respondent No. 5, Mr. K.N. Choudhury. He would submit that the petitioner has no locus of filing this petition. He would even say that such a person does not exist. Ms. S.B. Choudhury, learned counsel for the petitioner though states that the petitioner is one of the petitioners who had filed the PIL (PIL No. 21/2020) and this writ petition is closely related to the PIL. All the same, the petitioner now feels threatened and may not come forward. Under these circumstances, and having given our conscious thought to the matter before us, we are of the considered view that these objections should not detain us in proceeding with the matter. All the same, the petitioner now feels threatened and may not come forward. Under these circumstances, and having given our conscious thought to the matter before us, we are of the considered view that these objections should not detain us in proceeding with the matter. In any case we can also take a sua sponte notice of the matter in the interest of justice and fair play. 28. We must also place on record that the learned senior counsel for the Silchar Municipal Board Mr. S. Dutta in his usual fairness has been consistent in his plea that the construction is in violation of the Building Laws and is not compoundable under the law and the building needs to be demolished. Supporting the case of the petitioners, Mr. Dutta has placed before us various judgments of the Hon’ble Apex Court on this aspect and has submitted that under the facts and circumstances of the case, there is no other option but to order demolition of the building. In a large body of decisions, the Hon’ble Apex Court had made strict observations in cases of violation of Building Laws. In Friends Colony Development Committee vs. State of Orissa and Others, (2004) 8 SCC 733 , the Hon’ble Apex Court had this to say about violation of sanctioned map and as to compounding of the unauthorised structure: “24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building.... 25. Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. 25. Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum. The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions.” The Hon’ble Apex Court then in Esha Ekta Apartments Cooperative Housing Society Limited and Others vs. Municipal Corporation of Mumbai and Others, (2013) 5 SCC 357 , relying upon the earlier decisions said in no uncertain terms that where the land use is changed or the development is done without permission of the authority, the land has to be restored to its original condition. In paragraph 46 it held as under: “46. An analysis of the above reproduced provisions makes it clear that any person who undertakes or carries out development or changes the use of land without permission of the Planning Authority is liable to be punished with imprisonment. At the same time, the Planning Authority is empowered to require the owner to restore the land to its original condition as it existed before the development work was undertaken. At the same time, the Planning Authority is empowered to require the owner to restore the land to its original condition as it existed before the development work was undertaken. The scheme of these provisions does not mandate regularization of construction made without obtaining the required permission or in violation thereof.” In paragraph 56 again while dismissing the case of the builder, the Hon’ble Apex Court observed as under: “56. In view of the above discussion, we hold that the petitioners in the transferred case have failed to make out a case for directing the respondents to regularize the construction made in violation of the sanctioned plan. Rather, the ratio of the abovenoted judgments and, in particular, Royal Paradise Hotel (P) Ltd. vs. State of Haryana and Others, (2006) 7 SCC 597 is clearly attracted in the present case. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.” 29. In view of the above, we have, therefore, no other option but to quash the order of the appellate authority and direct the Silchar Municipal Board to demolish the building by applying necessary scientific methods, such as use of Diamond Saw Cutting machine, etc. to remove/minimise any risk. 30. In view of the discussions above, the impugned order dated 20.08.2021 passed by the appellate authority is hereby quashed and set aside. Consequently, the order dated 12.11.2020, passed by the Executive Officer, Silchar Municipal Board, stands restored. 31. In fact, it has been placed before this Court that in earlier occasion the Silchar Municipal Board had issued notice directing the respondent No. 5/owner concerned, who has the expertise in demolishing buildings, to demolish the building but the owner did not comply with the said notice. 32. At this juncture, Mr. S. Dutta, learned Senior Counsel for the Silchar Municipal Board has apprised this Court that the Municipal Board has already issued notice calling for tenders from eligible parties for carrying out the said demolition in scientific manner. 33. 32. At this juncture, Mr. S. Dutta, learned Senior Counsel for the Silchar Municipal Board has apprised this Court that the Municipal Board has already issued notice calling for tenders from eligible parties for carrying out the said demolition in scientific manner. 33. Let the demolition be carried out by the Silchar Municipal Board in accordance with law, within three months from today. Learned Senior counsel for the Silchar Municipal Board has apprised this Court that the demolition of the building shall be carried out as expeditiously as possible by adopting all necessary scientific measures to ensure safety and peace. It is also made clear that the cost of the demolition shall be recovered from the respondent No. 5/owner of the building. 34. The writ petition stands disposed in terms of the above observations and directions.