Shiw Nath Singh Vs the State of Assam and 4 Ors.

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Page No. 1/14

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GAHC010160262023

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2025:GAU-AS:6284

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/4107/2023

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SHIW NATH SINGH S/O LATE BANARASI SINGH, R/O SBI COLONY, MANAV KALYAN ROAD, P.O., P.S. AND DIST- TINSUKIA, ASSAM, PIN-786125

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VERSUS THE STATE OF ASSAM AND 4 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, TOWN AND COUNTRY PLANNING DEPARTMENT, DISPUR, GUWAHATI-781006 2:THE TINSUKIA MUNICIPAL BOARD REPRESENTED BY ITS CHAIRMAN GNB ROAD P.O P.S. AND DIST-TINSUKIA ASSAM PIN-786125 3:THE EXECUTIVE OFFICER TINSUKIA MUNICIPAL BOARD P.O P.S. AND DIST-TINSUKIA ASSAM PIN-786125 4:THE CIRCLE OFFICER TINSUKIA REVENUE CIRCLE TINSUKIA PIN-786125 5:RISHU KALANTRI S/O SRI RAJESH KALANTRI R/O SBI COLONY MANAV KALYAN ROAD P.O.

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Page No. 2/14

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P.S. AND DIST- TINSUKIA ASSAM

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PIN-78612

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Advocate for the Petitioner : MR. BHASKAR DUTTA, SENIOR ADVOCATE, MR JITENDRA DAS,MR. SAILENDRA DEKA

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Advocate for the Respondent : GA, ASSAM, MR M SAHEWALLA, MR. S.S. ROY, MS. M BARMAN, MR G N SAHEWALLA (R-5), MD ASLAM (R-5), MR N ANIX SINGH (R-5), MR M SAHEWALLA (R-5), MR H K SARMA (R-5)

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BEFORE

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HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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JUDGMENT & ORDER

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Date : 08.05.2025

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Invoking the extra-ordinary and discretionary jurisdiction of this Court under the Article 226 of the Constitution, the petitioner has instituted the instant writ petition seeking inter alia setting aside and quashing of a demolition notice dated 16.06.2023 [Annexure – 6] and also, for a direction in the nature of mandamus to the authorities in the respondent Tinsukia Municipal Board not to give effect to the impugned demolition notice dated 16.06.2023. Further directions in the nature of mandamus have been sought to direct the respondent no. 2 to comply with the direction made in a common Judgment & Order dated 23.03.2023 passed in two writ appeals, Writ Appeal no. 41/2023 and Writ Appeal no. 63/2023; and to compound the deviation of the construction of the building under reference.

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The background facts leading to the issuance of the impugned demolition notice dated 16.06.2023 can be narrated, in brief, at first, as the impugned demolition notice is an outcome of a previous round of litigation between the parties which culminated in the common Judgment & Order dated 23.03.2023, referred above.

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The petitioner herein is the owner of a plot of land, covered by Dag no. 716 & Periodic Patta no. 525, situate at Tinsukia Township No. 26,

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Page No. 3/14

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Chirapatty City College Road, Tinsukia [‘the subject-plot’, for short] and in the western side of the subject-plot, the respondent no. 5 has his own plot of land.

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The petitioner in order to construct a building on the subject-plot applied before the erstwhile Tinsukia Development Authority in the year 2011 for permission to construct a residential ‘G+1’ RCC building. The Tinsukia Development Authority granted permission to the petitioner to construct a ‘G+1’ RCC building on the subject-plot specifying that the area of the ground floor should be 840.25 square feet. The building permission granted on 29.09.2011, was valid up-to 29.09.2013.

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The petitioner did not complete the construction within the period of validity of the original building permission granted up-to 29.09.2013. Subsequently, when the petitioner resumed construction of the ‘G+1’ RCC building, the respondent no. 5 on 14.12.2020 submitted a complaint before the respondent no. 3 seeking stoppage of construction of the petitioner’s ‘G+1’ RCC building stating that the petitioner had flouted the laid down norms. On the basis of the complaint dated 14.12.2020 of the respondent no. 5, the petitioner was served a notice on 15.12.2020 by the respondent Municipal Board asking him to submit the construction permission and to stop further construction work. In response to the notice dated 15.12.2020 the petitioner submitted an application before the respondent no. 3 on 05.02.2021 seeking renewal of his building construction permission. While seeking renewal of his building construction permission, the petitioner in his Letter dated 05.02.2021 had clearly admitted that the validity of his earlier building construction permission had already lapsed.

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The alleged resumption of building construction by the petitioner led the respondent no. 5 to file a writ petition, W.P.[C.] no. 227/2022 as the writ petitioner before this Court, wherein it was inter alia stated

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Page No. 4/14

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that the petitioner had been constructing his building in gross violation of the Assam Notified Urban Areas [Other than Guwahati] Building Rules, 2014 [‘the Building Rules, 2014’, for short]. The petitioner herein who was arrayed as party-respondent no. 5 in W.P.[C.] no. 227/2022, though participated in the initial part of the writ proceedings after entering appearance, he did not participate during the subsequent parts of the writ proceedings by making defaults to make appearances. The writ petition, W.P.[C.] no. 227/2022 was finally disposed of by an Order dated 31.10.2022 with a direction to the respondent no. 2 herein to take appropriate steps and action in accordance with law by noting the deviations found and recorded in a Field Verification Report dated 29.03.2022 submitted earlier in connection with the ‘G+1’ RCC building constructed by the present petitioner. It was observed that the petitioner herein did not challenge the Field Verification Report dated 29.03.2022.

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Pursuant to the direction made in the Order dated 31.10.2022 in W.P.[C.] no. 227/2022, the respondent no. 2 issued a Notice dated 01.12.2022 to the petitioner asking the petitioner to demolish the deviated portion of the construction. Assailing the Notice dated 01.12.2022, the present petitioner preferred a writ petition, W.P.[C.] no. 8085/2022. In the meantime, the petitioner also preferred a review petition, Review Petition no. 11/2022 seeking review of the Order dated 31.10.2022 passed in W.P.[C.] no. 227/2022. However, the said review petition came to be dismissed on 23.01.2023 finding no merit therein. The writ petition, W.P.[C.] no. 8085/2022 was also disposed of by an Order dated 23.01.2023 by holding that since the basis of the demolition notice was an order of this Court, which was in force, the writ petition did not have legs to stand. The petitioner was, however, granted liberty to prefer an appeal against the Order dated 31.10.2022.

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It was in such backdrop, the petitioner preferred the two writ appeals, Writ Appeal no. 41/2023 and Writ Appeal no. 63/2023. The Writ Appeal no. 41/2023 was preferred against the Order dated 23.01.2023 passed

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Page No. 5/14

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in W.P.[C.] no. 8085/2022. The other writ appeal, Writ Appeal no. 63/2023 was preferred against the Order dated 31.10.2022 passed in the writ petition, W.P.[C.] no. 227/2022.

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Both the writ appeals, Writ Appeal no. 41/2023 and Writ Appeal no. 63/2023 came to be disposed by the Hon’ble Division Bench after hearing the learned counsel for the parties vide the common Judgment & Order dated 23.03.2023. As an earlier Field Verification Report dated 29.03.2022 was also subject-matter of the lis and the petitioner as the appellant therein seemed have raised substantial grounds questioning the validity and sanctity of the Field Verification Report dated 29.03.2022, the Division Bench had observed that due to infirmities projected, the Field Verification Report dated 29.03.2022 could not have been acted upon by the respondent Tinsukia Municipal Board authorities. The writ appellate court reversed the Order dated 31.10.2022, whereby, the writ petition, W.P.[C.] no. 227/2022 was accepted. Furthermore, the Order dated 23.01.2023 passed in the writ petition, W.P.[C.] no. 8085/2022 was also reversed as a consequence of the setting aside of the Order passed in the writ petition, W.P.[C.] no. 227/2022. After ordering so, the Hon’ble Division Bench had disposed of the two writ appeals by the common Judgment & Order dated 23.03.2023 with the following observations :-

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8. However, the authorities of Tinsukia Municipal Board would be at liberty to get a fresh Field Verification Report prepared by following due process of law and by allowing opportunity of participation to all concerned. After verification as per procedure, if any deviation is noticed in the construction raised by the appellant, the same shall be dealt with as per law, which would include an opportunity of compounding the deviation, if any as per law.

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Subsequent to the common Judgment & Order dated 23.03.2023, the respondent Municipal Board Authorities by an Order dated 02.05.2023

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Page No. 6/14

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had constituted a new team for fresh verification of the building constructed by the petitioner, with the approval of the jurisdictional District Commissioner. The team, constituted by the Order dated 02.05.2023, made a field verification of the ‘G+1’ RCC building being constructed by the petitioner, on the strength of the original building construction permission, on 09.05.2023. Upon verification, the team found a number of violations in the ‘G+1’ RCC building constructed on the subject-plot. On submission of the Field Verification Report dated 09.05.2023, by the team, the respondent no. 2 has issued the impugned demolition notice to the petitioner on 16.06.2023.

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For ready reference, the contents of the impugned demolition notice dated 16.06.2023 are extracted herein :-

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To: Sri Shivnath Singh Date: 16.06.2023

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City College Road, S.B.I. Colony, Ward No-6, Tinsukia

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Sub : Demolition Notice

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Ref : Our Fresh Field Verification Order NoTMB(Tech)/Permission/ 2012/197 dated 2.5.2023

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It is to inform you that in pursuance of Hon’ble Gauhati High Court order dated 23.3.2023, a fresh field verification of the building was done on 09.5.2023 by the Team constituted vide TMB/(Tech)/Permission/2012/197 dated 02.05.2023. Upon verification the Team found the following violating in your building, situated at City College Road, S.B.I. Colony, Under Dag No-716, P.P No-525, Town Sheet No-26, Ward No-6.

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Setback As per approved Found During Site Remarks by TDA Verification

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Page No. 7/14

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NORTH	10’–0”, 10’-0”, 13’-0”	8’-0”, 6’-0”, 10’-6”	Constructed in violation of
SOUTH	8’-0”,11’-0”	9’-8”,1’-2”	the approved
EAST	5’-0”	6’-9”, 4’-7”	plan
WEST	5’-0”	2’-7”, 2’-10”
PLINTH AREA	840.25 SQFT	1163.93 SQFT	Excess area/area constructed unauthorizedly 323.68 SQFT

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Hence, you are directed to vacate and demolish the unauthorized construction within 7 (seven) days from the date of receipt of this notice, failing which Tinsukia Municipal Board will be constrained to demolish the same at any time without any correspondence to you.

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I have heard Mr. B. Dutta, learned Senior Counsel assisted by Mr. S. Deka, learned counsel for the petitioner; Ms. M. Barman, learned Junior Government Advocate, Assam for the respondent nos. 1 & 4; Mr. A. Deka, learned counsel for the respondent no. 2 & 3; and Mr. G.N. Sahewalla, learned Senior counsel assisted by Mr. H.K. Sharma, learned counsel for the respondent no. 5.

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Mr. Dutta, learned Senior Counsel appearing for the petitioner has made submissions on three points. Firstly, the respondent Municipal Board has failed to take into consideration the direction made by the Division Bench in the proper perspective inasmuch as if there is a deviation, the same shall be dealt with as per law which would include an opportunity of compounding the deviation. He has submitted that the Zoning Regulations of 2000 made under the Assam Town and Country Planning Act, 1959 would have to be considered. Clause 9.2.1 of the Zoning Regulations of 2000 permits compounding of certain items, apart from delineating certain other items as non-compoundable items. He has further submitted that the renewal granted by the respondent Municipal Board on 07.08.2021 is to be read with the original ‘G+1’ RCC building construction permission dated 29.09.2011

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Page No. 8/14

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and the same would be subject to the conditions laid down in the original ‘G+1’ RCC building construction permission dated 29.09.2011. He has further submitted that the representations submitted by the petitioner subsequent to the demolition notice dated 16.06.2023, on 26.06.2023 and 11.07.2023, have not been given due consideration by the respondent Municipal Board authorities till date and prior to any act of demolition, the same should be considered by the respondent Municipal Board authorities in accordance with law, having regard to the extant Building Rules, 2014.

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Mr. A. Deka, learned counsel appearing for the respondent Municipal Board authorities and Mr. Sahewalla, learned Senior Counsel appearing for the respondent no. 5 have contended that the Zoning Regulations, 2000 have made way to the Assam Notified Urban Areas [Other than Guwahati] Building Rules, 2014 [‘the Building Rules, 2014’] and the Building Rules, 2014 do not permit compounding of deviations to the extent found in the demolition notice dated 16.06.2023. They have submitted that the issue has already been settled by two Division Bench Judgments, which would be adverted to in the later part of the Order.

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They have further submitted that the renewal of any earlier building permission can only be made during the period of validity of the original permission and a renewal cannot be made after lapse of the original permission. It has been submitted that the subsequent renewal of building construction permission, granted on 07.08.2021, has to conform to the Building Rules, 2014.

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The issue whether after coming into force of the Building Rules, 2014, the provisions to Zoning Regulations, 2000 would still be in vogue has been decided by two Division Benches of this Court in Writ Appeal no. 188/2018 [ Dayal Constructions and 5 others vs. Ranju Agarwal and 6 others ] and in Dilip Kumar Borah and another vs. State of Assam and others, [2024] 7 GLR 173 .

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Page No. 9/14

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The issue which arose for determination in Dayal Constructions [supra] was whether the compounding as provided under the Zoning Regulations, 2000 would be applicable after coming into force of the Building Rules, 2014, which do not provide for compounding. It was contended that when under the Building Rules, 2014 no specific provision was made to compounding and neither there was a bar in that regard, the Zoning Regulations, 2000 which had not been expressly repealed would have to be taken note of and the compounding as provided therein was to be extended. The Division Bench has proceeded to hold that the intention of the rule making authority is clearly that the compounding as was provided under the Zonal Regulations, 2000 is not to be made applicable to the Building Rules, 2014 as the only tolerance limit has been incorporated therein. It has been further held that being the intention and the Building Rules, 2014 is framed in such a manner which is a complete code to regulate all the types of building, the application of the earlier Zonal Regulations, 2000 so as to violate the intended rule which requires adherence, would not be justified. The Division Bench has further negated the proposition that there should be an opportunity to seek compounding. The Building Rules, 2014 have provided for the manner in which a construction is to be put up and, in so far as the side set back, the interest of the adjoining owner is also to be kept in view. The proposition which has emerged is that when the Building Rules, 2014 provide a particular dimensions for set backs the sanctioning authority, in such event, cannot approve a plan providing less than the required set back for that particular building.

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In Dilip Kumar Borah [supra] the provisions contained in Clause 9.2.1 in the Zonal Regulations, 2000 was considered along with Rule 32 of the Building Rules, 2014, dealing with unauthorized construction. The Division Bench has further held as under :-

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After carefully going through the Building Rules, 2014, it can be gathered that there is no provision for regularising any

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Page No. 10/14

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unauthorised construction except regularisation of unauthorised constructions which are being carried out up to tolerance in case of dimensional errors. As per definition of ‘unauthorised construction’, as provided in Rule 2[122] of the Building Rules, 2014, it means erection or re-erection, addition or alterations which is not approved or sanctioned. There is no provision under the Building Rules, 2014, which authorises the Municipal Board to regularise any constructions raised in violation of the construction permission, such as construction of a commercial building in place of residential building.

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To our understanding, the expression ‘unauthorised construction’ used in point No. [vi] is in reference to only those unauthorised constructions which are being carried out up to the tolerance in case of dimensional errors as per sub-rule [3] of Rule 32 of the Building Rules of 2014. The learned Single Judge has gainfully taken into consideration the provisions of Rule 32 of the Building Rules of 2014 while coming to the conclusion that the Municipal Board cannot compound the violations pertaining to the use of the building as well as the constructions of the additional floors beyond the permission granted and can only regularise those constructions which are in conformity with the Building Bye laws. Hence, we do not find any merit in the above contention of the learned counsel for the appellants/petitioners.

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The issue of applicability of the Building Rules, 2014 is, thus, no longer res integra.

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The original building permission was granted to the petitioner on 29.09.2011 when the Zonal Regulations, 2000 were in force. The validity of the original building permission was up-to 29.09.2013. It is the respondent Municipal Board, who had recorded renewal of the original building permission dated 29.09.2011 on 07.08.2021. It is settled that if renewal of any permission is to be granted, the same is

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to be granted within the validity of the original permission. Thus, even if it is accepted, for the sake of argument, that the petitioner had been granted a building construction permission on 07.08.2021 then the same has to be treated as a fresh one under the Building Rules, 2014 as in the meantime the Zoning Regulations, 2000 have been replaced by the Building Rules, 2014. In the purported renewal building construction permission dated 07.08.2021, the respondent Municipal Board had recorded that renewal permission was granted subject to the conditions already imposed in the original building construction permission. A perusal of the original ‘R+1’ RCC building construction permission dated 29.09.2011 would go to show that the petitioner was permitted to construct the ground floor within a dimension of 840.25 square feet, which fact is reflected in the impugned demolition notice dated 16.06.2023. As per the definition provided in Rule 2 [94] of the Building Rules, 2014, ‘plinth area’ means the built up covered area measured at the floor level of the basement or of any story. The Field Verification Team, during its verification, found the plinth area of the petitioner’s building at 1163.93 square feet, that is, 323.68 square feet beyond the permitted plinth area of 840.25 square feet.

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In respect of the set backs, mentioned in the impugned demolition notice dated 16.06.2023, the same must be in conformity with the Building Rules, 2014. Any compounding with regard to the set backs can be only in terms of the Building Rules, 2014, more particularly, Rule 32 thereof, which permits tolerance upto 0.15 m in case of dimensional errors.

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A submission has been made on behalf of the writ petitioner by referring to Rule 33 of the Building Rules, 2014, to submit that where any building permit which has been issued by the Authority before the commencement of the Building Rules, 2014 and where the construction is in progress and has not been completed within the specified period from the date of such permit, the said permission shall be deemed to be sanctioned under the building rules and shall only be eligible for

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revalidation. It is submitted that since the original building construction permission was granted on 29.09.2011, the subsequent renewal is to be considered in terms of Rule 33. Rule 33 does not mention anything about the Zoning Regulations. Revalidation is the process of officially making a thing e.g. a license, a permission, etc. valid again, or confirming that it remains valid. Therefore, any such submission based on Rule 33 does not deserve acceptance because even if the permission is revalidated, it is revalidated only under the Building Rules, 2014. Then again, Rule 32 of the Building Rules, 2014 comes to the fore which permits tolerance only upto 0.15 meters.

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There is no challenge to the constitution and composition of the Team constituted on 02.05.2023. No submission has been advanced regarding the measurements made by the Team and recorded in the impugned demolition notice dated 16.06.2023. As such, this Court is not required to dwell on those aspects.

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None of the above prayers made in this writ petition is found tenable as the impugned demolition notice has been found to be issued in deference to the direction made by the Division Bench in the common Judgment & Order dated 23.03.2023.

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In this Connection, the following observations made by the Hon’ble Supreme Court in the case titled Kaniz Ahmed Vs Sabuddin and others, [2025] INSC 610, can be appropriately referred as the same are of import and reference in the case in hand.

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…. A person who has no regards for the law cannot be permitted to pray for regularisation after putting up unauthorised construction of two floors. This has something to do with the rule of law. Unauthorised construction has to be demolished. There is no way out. Judicial discretion would be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. We

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are at pains to observe that the aforesaid aspect has not been kept in mind by many State Governments while enacting Regularisation of Unauthorized Development Act based on payment of impact fees.

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Thus, the Courts must adopt a strict approach while dealing with cases of illegal construction and should not readily engage themselves in judicial regularisation of buildings erected without requisite permissions of the competent authority. The need for maintaining such a firm stance emanates not only from inviolable duty cast upon the Courts to uphold the rule of law, rather such judicial restraint gains more force in order to facilitate the well-being of all concerned. The law ought not to come to rescue of those who flout its rigours as allowing the same might result in flourishing the culture of impunity. Put otherwise, if the law were to protect the ones who endeavour to disregard it, the same would lead to undermine the deterrent effect of laws, which is the cornerstone of a just and orderly society.

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In view of the discussion made and the reasons assigned above, this writ petition laying challenge to the demolition notice dated 16.06.2023 on the above-discussed two counts fails. This Court does not find any infirmity as regards the steps taken by the respondent Municipal Board authorities subsequent to the direction given in the common Judgment & Order dated 23.03.2023.

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There is also a submission that the representations, submitted on 22.06.2023 and 11.07.2023, have not given consideration till date. Apparently, there is a finding in the Field Verification Report dated 29.03.2022 that there are deviations in respect of setbacks and plinth area in the building that has been constructed by the petitioner on the subject-plot. It has been observed in Rajendra Kumar Barjatya and another vs. U.P. Avas Evam Vikas Parishad and others, 2024 INSC

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990, that in the event of any application / appeal / revision being filed by the owner for regularization of unauthorized construction or rectification of deviation etc, the same shall be disposed of by the authority concerned as expeditiously as possible. The respondent Municipal Board Authorities before proceeding further in terms of the demolition notice dated 16.06.2023, shall give due consideration to the projections made in those representations vis-à-vis the provisions regarding tolerance limit contained in the Building Rules, 2014. The respondent Municipal Board authorities shall dispose of the representations as expeditiously as possible, but not beyond an outer limit of one month from this date, before proceeding to act further on and/or in terms of the demolition notice dated 16.06.2023. The interim order passed earlier shall remain in operation for the period of the month from the date of this order.

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With the observations made and the directions given above, the writ petition is disposed of. There shall, however, be no order as to cost.

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JUDGE

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Comparing Assistant

Shiw Nath Singh v. the State of Assam and 4 Ors.

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Shiw Nath Singh v. the State of Assam and 4 Ors.

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