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CASE NO.: Appeal (civil) 15581  of  1996

PETITIONER: V.M. KURIAN

       Vs.

RESPONDENT: STATE OF KERALA AND OTHERS

DATE OF JUDGMENT:       27/03/2001

BENCH: V.N. Khare & K.G. Balakrishnan

JUDGMENT:

V.N. KHARE, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   This  is  an appeal against the judgment of Kerala  High Court dismissing the appellants writ petition filed against the  grant  of exemptions from the provisions of the  Kerala Building  Rules (hereinafter referred to as the Rules) for construction  of an eight storied high rise building in  the city of Cochin to the 5th respondent.

   The 5th respondent herein, owns a plot of land measuring 9.5  cents (384.46 sq.  mtrs) in survey No.  312/1, situated at  I.S.   Press Road in the city of Cochin.  On  1.10.1982, the  5th respondent submitted an application directly to the Government  of  Kerala seeking exemptions from operation  of certain  provisions of the Kerala Municipal Building  Rules, 1968  for  the  proposed  construction of  a  three  storied godowncum-office on the said plot of land.  The government, by  a special order dated 12.10.1983, granted exemption from the  operation  of  the  Rules 30(1),  30(5)(b),  31(f)  and 38(4)(c) of the Rules, subject to the following conditions:

   (i) The front open space will be 6 metre.

   (ii)  The  front bays in the ground floor will  also  be kept opened for car parking

   (iii) Rear open space will be minimum 1.8 M.

   (iv) Side open space on the northern side will be 1.5 M.

   (v)  Side open space on the southern side will be 1.5 M.

   On  15.5.1984,  the Kerala Building Rules,  1964  framed under   Section  344  read  with   Section  222  of   Kerala Municipalities  Act, 1960 and Section 367 read with  Section 238  of  Kerala  Municipal Corporation Act, 1961  came  into force.

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   After  the  new  Rules came into force,  5th  respondent submitted  an another application to the Government  seeking further  exemption from operation of the Rules.  In the said application,  the 5th respondent pointed out that front  set back of 4.5 mtr.  may be accepted and the conditions imposed in  the exemption order to increase the front set back to  6 mtr.  may be relaxed.  The 5th respondent in his application further  pointed out that since there was ample space on the existing  road for car parking, therefore the conditions for providing  space for car parking may be deleted.  The  State Government  by an order dated 13.3.1986 modified the earlier G.O.  with the following modified conditions:

     (i)  Front open space shall be 6 M.  for  the  ground floor.   Upper  floors may project by 3 M.  into  this  open space.

   (ii) Rear open space shall be 1.5 M.

   (iii) Northern side space shall be 1 M.

   (iv) Southern side space shall be 1.5 M.

   After  the  exemption  was granted, the  5th  respondent started  construction over the said plot of land.  It is  at this  stage  the appellant who is residing adjacent  to  the said  plot  of land raised objections to the Corporation  as well  as  to  the  Authority,  and also  filed  a  suit  for injunction.    It  appears  that   immediately   after   the completion of the three storied building, the 5th respondent on 19.3.1990 sent another application seeking exemption from operation  of provisions of the Rules to construct an  eight storied  building  by adding five more floors to  the  three storied  building already constructed.  This application was sent  directly to the State Government and was not processed through,  as required under proviso to rule 5 of the  Rules. It   further  appears  that  after   receipt  of  the   said application  the Government asked for the comments from  the Greater  Cochin  Development  Authority (in  short  GCDA), Cochin Municipal Corporation, and the Town Planning Board to the  application of 5th respondent.  The GCDA as well as the Chief  Town  Planner,  strongly  objected to  the  grant  of exemption from operation of the rules for construction of an 8 storied building by the 5th respondent.  On 16.8.1990, the Minister  for  Local  Administration held a meeting  in  his chamber  for  consideration  of the application of  the  5th respondent.   In  the  said   meeting,  the  appellant,  5th respondent,  and  the Chief Town Planner were also  present. It  appears  that  the  question  as  to  whether  the   5th respondent  be granted exemption from operation of the rules for  construction of an eight storied high rise building was discussed.   Subsequently, the State Government by an  order dated  13.11.1990  permitted  the construction of  an  eight storied  high  rise  building  by  granting  exemption  from operation  of the Rules 15(5), 15(3)(a), 15(3)(b), 15(3)(c), 15(7), 17(1)(2), 18(1)(a), 18(2), 29(2), 21(11)(b) and 32(a) with the following conditions:

   (i)  The front open space should be minimum of 5.7 m for ground floor and 2.7 m for the remaining floors.

   (ii)  Rear  open space should be minimum of 2 M for  all floors.

   (iii)  Side open space on the north should be minimum of

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1 M for all floors.

   (iv) Side open space on the south should be a minimum of 0.8 M to 1.4 M for all floors.

   (v) No further addition should be made in future.

   Not  content  with  that, the 5th  respondent  again  on 21.11.1990,  applied for further exemption from operation of Rules  by  way of modification of the conditions imposed  in the  Government Order dated 13.11.1990.  The Government,  on the  very  next day, by an order dated 22.11.1990,  modified the conditions of exemption earlier granted in the following terms:

   1.   Government  are pleased to modify condition No.   2 specified in G.O.  1st read above.

   2.   Rear  open  space should be minimum of 2  M  ground floor and 0.75 M for the remaining floors.

   Under the aforesaid circumstances, the appellant herein, by means of a petition under Article 226 of the Constitution challenged the orders dated 13.11.1990 and 22.11.1990 passed by  the  State Government.  The High Court was of  the  view that  since  the Chief Town Planner who was present  in  the meeting  had  consented to the grant of exemption  from  the operation of the Rules and as such there was no infirmity in the  order  of the State Government in dispensing  with  the Rules  for  construction  of  an  eight  storied   building. Consequently,  the  writ petition was dismissed.  It  is  in this way, the appellant is before us.

   Learned  counsel appearing for the appellant urged, that the  application submitted by the 5th respondent having  not processed  in  conformity  with  Rule 5 of  the  Rules  and, therefore,   the  said  application   could  not  have  been entertained  by  the State Government.  It was  also  argued that  in  absence of any recommendation by the GCDA and  the Chief  Town  Planner,  the State Government could  not  have granted   exemptions  from  operation  of  the   Rules   for construction  of  an  eight  storied  building  by  the  5th respondent.  Whereas, learned counsel for the 5th respondent contended  that  the  meaning of the  word  recommendation necessarily  does  not mean a no objection certificate  by the  GCDA  and the Chief Town Planner, but  it  contemplates only  their view point.  He further argued that even if  the GCDA and the Chief Town Planner had objected to grant of the application,  the  State  Government,  in  exercise  of  its overriding  power  can  permit  dispensation  of  Rules  for construction  of high rise building.  In order to appreciate the  argument  of the parties, it is necessary to quote  the relevant portion of Rule 5, which runs thus:

   5.   Power  of  Government  to  exempt  building:   The Government  may in consultation with the Chief Town  Planner exempt  (any  building) from the operation of all or any  of the  provisions of these rules subject to conditions if may, to be stipulated in the order, granting such exemptions;

   Provided  that  such  exemption shall be  considered  on individual  application forwarded to the government  through the authority and the Chief Town Planner with their specific recommendations;

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   Provided further that such exemption shall be considered only  if  the  individual  application  for  exemption  from building  Rules  is  forwarded to Government  along  with  a challan  receipt  remitting  the   application  fee  in  the Government Treasury as detailed below .

   A  perusal  of  Rule  5 shows that  an  application  for exemption  from  the provisions of Rules is required  to  be processed  through the GCDA and the Chief Town Planner.  The Rule  further  requires  that  the   application  is  to  be forwarded  to  the State Government along with the  specific recommendations of the GCDA and the Chief Town Planner.  The question,  therefore,  that  arises   for  consideration  is whether in absence of any recommendation by the GCDA and the Chief  Town  Planner the State Government was  competent  to grant  exemption  from  the  operation   of  the  Rules  for construction  of  a  high  rise  building.   The  dictionary meaning  of the word recommend is to advise, to  praise or  commend.   In  Law  Lexicon, the meaning  of  the  word recommendation  is a statement expressing commendation or a  message of this nature or suggests fit.  It is true  that the  word recommendation is not defined in the Rules.   If we do not go by the meaning of the word recommendation, as suggested  by  learned counsel for the 5th  respondent,  and found  that  there  is  no conclusive meaning  of  the  word recommendation we are of the view that in such a situation the  meaning of the word has to be understood in the context of  the  provisions of the Rules and the object behind  such Rules.   The Rules with which we are concerned here  provide for  regulation  and  construction of building in  an  urban area.   The object behind the Rule is maintenance of  public safety  and  convenience.  The Municipal Corporation,  GCDA, and  the Chief Town Planner are entrusted with the functions and  duties  for carrying out development and regulation  of building  in  the urban area.  These are the authorities  on the  spot who have special and technical knowledge to advise the  Government  whether  public   safety  and   convenience requires  dispensing  with  the provisions  of  Rules  while permitting construction of an eight storied building.  Thus, the  meaning  of  the  word recommend, when  read  in  the context  of Rules show that it means giving of a favourable report  opposed  to an unfavourable one.  We,  therefore, find  that  recommendations by the GCDA and the  Chief  Town Planner  is  sine  qua  non   for  granting  exemption  from operation  of  the  Rules by the State Government.   In  the absence  of  such recommendations, the State Government  was not  legally justified in granting exemption from  operation of  the  Rules  for  construction  of  high  rise  building. However,  the position would be different where the GCDA and the  Chief  Town  Planner  give an  unfavourable  report  on irrelevant  or  extraneous  ground  and in  that  case,  the Government  can  call  for a fresh report  for  meeting  the viewpoint  of  the GCDA and the Chief Town  Planner.   Here, what  we find is that there were neither recommendations  by the  GCDA  and  the  Chief   Town  Planner,  nor  the  State Government  obtained any fresh report to contradict the view point  of the GCDA and the Chief town Planner while granting exemption  from operation of the Rules for constructing high rise  building.   We  are, therefore, of the view  that  the impugned orders suffer from serious legal infirmity.

   It  was then urged on behalf of learned counsel for  the respondent  that in the present case, the Chief Town Planner was  present  in  the  meeting  held  on  16.8.1990  and  he consented  to the grant of exemption from operation of Rules

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for  according  permission  to construct  an  eight  storied building  and, therefore, in pith and substance, there was a recommendation  of  the  Chief Town Planner.   On  the  said argument  we  adjourned  the  case and  directed  the  State Government  to  produce the minutes of the meeting  held  on 16.8.1990.   Shri Harish N Salve, learned Solicitor General, appearing  for  the  State of Kerala placed  before  us  the entire  record of the case.  We have perused the minutes  of the meeting held on 16.8.1990 but do not find any consent or recommendation  having  made  by   the  Chief  Town  Planner recommending  the  State Government to grant exemption  from operation  of the Rules for construction of an eight storied building.   Where the Rules require specific  recommendation of  the Chief Town Planner in writing, his mere presence  in the meeting would not constitute recommendation for grant of exemption  from the Rules.  Therefore, in the absence of any such  recommendation,  we find that the order passed by  the State  Government permitting the 5th respondent to construct an  eight  storied  building after granting  exemption  from operation of the Rules was erroneous.

   We  have  also looked into the merits of the case.   The GCDA  objected to the proposal for construction of an  eight storied  building  as  being contrary to the  town  planning scheme.   The GCDA pointed out that the maximum floor  ratio area  applicable  to the case is 1.50, whereas the  proposal was  for  6.72.  It was also stated that the  parking  space provided  is  totally inadequate.  The Town  Planning  Board objected to the proposal for exemption from operation of the Rules.   It  was pointed out by the Board that  F.S.I.   and coverage  were beyond tolerable limit and that there was  no scope  for a building exceeding three floors in 9.5 cents of land.   The  Corporation  of  Cochin also  objected  to  the proposal  and pointed out various violations already made by the  5th  respondent  while constructing the  three  storied building.  The Corporation was of the view that the proposal to  add five more floors is contrary to the mandatory Rules. The  Chief  Town Planner in his report inter  alia,  stated, that the proposal is in gross violation of Rules inasmuch as built-up  area  envisages  86% of the land area  as  against maximum   permissible   limit  of   50%,  that  the   F.A.R. permissible  under  law is 1.50, whereas, according  to  the proposal  the  F.A.R.   is 6.72, that, the parking  slot  is required  to be 9 as against proposed 1, that the open space is  grossly  insufficient.  He, therefore,  recommended  the application  to be rejected, but the three storied  building already constructed may be condoned.

   As  stated  above,  the area of land owned  by  the  5th respondent  was  only 9.5 cents (384.4 sq.  mtrs.).  As  per the  impugned  order,  the  5th respondent  was  allowed  to construct  an  eight  storied building with  floor  area  of 27306.55  sq.  ft.  and 83.15 ft.  height to accommodate  28 residential  apartments, office and godowns etc.  etc.   The exemption  granted  by the State Government has enabled  the 5th  respondent  to construct the building in  violation  of Rules  regarding  - (1) minimum open spaces required  to  be kept  in the front, rear and sides, (2) front, rear and side yards,  (3)  projections  into  and  constructions  on  open spaces, (4) floor area ratio, (5) maximum prescribed height, (6)  aerodrome  vicinity  height restrictions,  (7)  parking spaces,  (8)  minimum  width  of stair cases  and  (9)  fire protection.

   Under the Rules, there is restriction with regard to the

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maximum  height of the building.  The building should not be constructed exceeding 1.5 times width of the street abutting plus  1.5 times the front yard.  Before the High Court,  the 5th  respondent gave an affidavit that he would convert  the ground  floor  of the building for purposes of car  parking. The  said  affidavit could not have been entertained as  the ground floor had already been constructed and let out.  Most surprising  is  that  the requirement  of  having  provision towards  protection  from  fire hazards was  also  dispensed with.   The minimum width of the staircase as required under Rule  21(11)(b),  also got dispensed with.  This shows  that the Rules, which are mandatory in nature and are required to be  complied with for construction of a high rise  building, were   allowed  to  be   dispensed  with.   Observance   and compliance  of  Rules is for public safety and  convenience. There  cannot be relaxation of Rules, which are mandatory in nature  and cannot be dispensed with especially in the  case of high rise building.  The position may be different in the case  of  one or two storied building where there are  minor deviations  from  the Rules, which do not effect the  public safety  and convenience.  In the present case, we find  that the  deviations are of high magnitude, which are contrary to the  public  safety and convenience.  We are, therefore,  of the  view  that  the order passed by  the  State  Government exempting  the  provisions of the Rules for constructing  an eight  storied  building  was   contrary  to  the  mandatory provisions of the Rules and therefore, is not sustainable in law.

   For  the aforesaid reasons, we are of the view that  the appeal  deserves to be allowed.  Consequently, the  judgment and  order of the High Court as well as the order passed  by the  State Government are set aside.  The appeal is allowed. There shall be no order as to costs.

A perusal of Rule 5 extracted above shows that the application for exemption has to be processed through the GCDA and the Chief Town Planner.  The application for exemption, if so filed before the GCDA, is required to be forwarded to the State Government along with a specific recommendation of the GCDA and the Chief Town Planner.  And it is only then the State Government is required to consider such an application with the consultation of the Chief Town Planner.  According to learned counsel for the appellant, the recommendations of the GCDA and the Chief Town Planner are sine qua non for grant of exemption from operation of the Rules for

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construction of an eight storied building by the State Government. And in absence of such a recommendation, the State Government has no power to allow the application of the 5th respondent.