9911796707
TMI Blog2001 (3) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... posed construction of a three storied godown-cum-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. 3. 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. 4. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 6. 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. 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 11. 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 point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 or 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. 14. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
