PLEASANT STAY HOTEL AND ANR.versusPALANI HILLS CONSERVATION COUNCIL AND ORS.

A                 PLEASANT STAY HOTEL AND ANR.
                               v.
           PALANI HILLS CONSERVATION COUNCIL AND ORS.

                            . SEPTEMBER 13, 1995

B            (B.P. JEEVAN REDDY AND M.K. MUKHERJEE, JJ.)

           Tamil Nadu District Municipalities Act, 1920:

           Sections 217-C, 217-K and 217-Q(As amended by Act 52 of 1994).
c         Tamil Nadu Dist1ict Municipalities (Hill Station) Building Rules, 1993:
    Rule 26.

          Building Plan-Exemption from Rules-Hotel-Construction at hill sta-
   tion-Sanction of Plan for two storeys-Revised plan for additional construc-
D tion-Rejection by Municipal Committee-Construction notwithstanding
   rejection of revised plan-Minister and Chief Minister granting exemp-
   tion-Exemption orders-Quashing of by High Court-Findings of High Court
 ~ based on mate1ial on record-lnterference with by Supreme Court held not
   justified-Matter remitted to High Court for clarification of its order regarding
   demolition--Observations against Minister and Chief Ministe1'-lfeld factual-
E ly correct and necessary for disposal of cases.

        The Kodaikanal Township Committee sanctioned a plan submitted
  by the appellant for construction of a hotel building comprising of two
  floors at Kodaikanal. A revised plan submitted for additional construction
F on the ground of structural necessity was rejected by the Committee
  because the proposal to construct more than two floors was against clause
  8.6.1 of the Master Plan Rules. Aggrieved by the said rejection the hotel
  preferred appeal to the Government of Tamil Nadu. However, not·
  withstanding such rejection additional floors of hotel building were con-
  structed in violation of the sanctioned plan and provisions of the Tamil
G Nadu District Municipalities Act, 1920. Palani Hills Conservation Council,          .
  respondent herein, a society formed with the objert of preserving and
  protecting hills in and around Kodaikanal, filed a writ petition in the High
  Court seeking directions of the State Government and the Municipal
  Committee to ensure that no illegal construction was put up by the hotel
H and the illegal construction already made be demolished. The High Court
                                          588
         STAY HOTEL v. PALA.NI HILLS CONSERVATION COUNCIL             589

passed an interim order restraining the respondents from making con- A
struction in violation of the sanctioned plan with liberty to move the
competent authority for appropriate permission. Meanwhile pursuant to
the amendments introduced in the 1920 Act the appeal preferred by the
Hotel against the order of Committee rejecting revised plan was con-
sidered by the Architectural and Aesthetic Aspects Committee which B
recommended to the Government that the application for revised plan
shall be rejected in view of large scale violation of Building Rules. Conse-
quently the file was sent to Minister for Local Administration with endor-
sement of Secretary made thereon to reject the plan for construction of
extra floors. While the file was awaiting disposal by the Minister the High
Court, on an application moved by the Respondent-Council, held the C
appellant guilty of contempt for disobeying the High Court's order by
proceeding with construction in violation of the sanctioned plan. However,
overruling the recommendation of the Architectural and Aesthetic Aspects
Committee and that of the Secretary, the Minister for Local Administra-
tion passed an order stating that the request of the Hotel may be con- D
sidered and necessary exemption from the violated rules may be granted
subject to certain conditions. On the same day the Chief Minister endorsed
the note of the Minister and consequently Government Order No. 126
dated May 13, 1994 was issued in accordance with the recommendations
of the Minister. The Palani Council filed a second writ petition for quash-
ing the order and for issuing of directions for demolition of the structures E
put up by the Hotel beyond ground and first floors. The State Government
contested this petition contending that it was not bound by the recommen-
dations of Architectural and Aesthetic Aspects Committee and that being
Licensing Authority it was entitled to arrive at its own conclusions.
                                                                            F
      During the pendency of this writ petition, Tamil Nadu District
Municipalities (Second Amendment and Validation) Act, 1994 was passed
whereunder Government was empowered to grant exemption to private
buildings; orders issued earlier by the State Government exempting such
buildings from the provisions of the 1920 Act were validated. Accordingly, G
Government order No. 317 dated December 6, 1994 was issued exempting
the building in question from the provisions of the Development Control
Rules. Further this order was given retrospective effect from may 13, 1994.
Immediately thereafter the Council filed a third writ petition for quashing
this order. Keeping in view the attending facts and circumstances as
appearing on the records and the relevant provisions of the Act and the H
    590                  SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A   Rules the High Court allowed the writ petition and quashed both the
    impugned Government orders. The reasons which, inter alia, weighed with
    the High Court were : (i) when a High level Expert Committee had rejected
    the revised plan the Minister and the State Government were not that
    justified in granting the exemption; (ii) the requirement of Master Pla_n
    and Rules have been completely ignored; (iii) the Minister totally over·
B   looked the environmental and ecological aspect of the matter and
    proceeded simply on the basis that the use of basement floor did not .
    interfere with the landscape of the site and vicinity; and (iv) the power to
    pass orders with retrospective effect has to be conferred by the legislature.
    Consequently, the High Court directed that the building constructed to the
c   extent it was contrary to the Plan sanctioned be demolished. It also
    observed that the Minister has not at all applied his mind to the relevant
    materials before signing the order. But, on the other hand, he has taken
    note of irrelevant matters. The Chief Minister too has simply signed the
    file without entering any minute or remark. There was nothing to show
D   that there was application of mind to the matters on record by the Chief
    Minister. Hence there was total lack of application of mind on the part of
    the Government.

         The State Government as well as Hotel preferred appeals before this
    Court.
E
          Disposing the appeals, this Court

           HELD : 1. Considered in the light of the materials on record and in
    the light of the relevant Acts and the Rules applicable to the construction
    in question, the reasons which weighed with the High Court in quashing
F   the two impugned Government Orders are legally sustainable. The find-
    ings of the High Court in this regard are unexceptionable. As these
    findings of fact are based on a proper appraisal of the entire materials
    available there is no reason to disturb the same under Article 136 of the
    Constitution. [604-E, 605-E]
G         2. The observations made by the High Court against the Minister
    and Chief Minister are not only factually correct but are absolutely neces-
    sary for proper disposal of the writ petitions. [606-H, 607-C]

          State of M.P. v. Tikamdas, AIR (1975) SC 1429 and Bakul Cashew
H   Co. v. Sales Tax Officer, Quilon, AIR (1987) SC 2239; referred to.
   STAY HOTEL v. PAiANI HILLS CONSERVATION COUNCIL (M.K. MUKHERJEE, J.)   591

      3. From the order of the High Court it is not clear as to whether it      A
intended that the construction of the two floors above the road level has
to be kept intact and the rest demolished, or the stepped structure of two
floors arising from the natural ground level has to be kept intact and the
rest demolished brespective of what the sanctioned plan indicates. This is
a matter which the High Court should clarify now. Accordingly the matter
                                                                                B
is remitted to the High Court for the limited purpose of issuing fresh
directions in this regard. (606-F-G]

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8223 of
1995 Etc. Etc.

     From the Judgment and Order dated 10.4.95 of the Madras High
                                                                                c
Court in W.P. No. 13231of1992.

      G. Ramaswamy, Dr. Rajeev Dhawan, Sanjay Hegde, E.R. Kumar, for
P.H. Parekh, Ms. Subhashini, A. Ranganadhan, Sriram Pancho, Dayan
Krishanan, Gopal Singh, Nikhil Nayyar and P.P. Tripathi, for the appearing D
parties.

      The Judgment of the Court was delivered by

     M.K.MUKHERJEE, J. Special leave granted. Heard the learned
counsel appearing for the parties.                                              E
      These six appeals have been heard together as they stem from a
common judgment rendered by a Division Bench of the Madras High
Court disposing of three writ petitions. Facts leading to these appeals and
relevant for their disposal are as under :
                                                                                F
      In April, 1981 Pleasant Stay (Kodai) Hotels Pvt. Ltd. (hereinafter
referred to as the Hotel') applied to the Kodaikanal Township Committee
(hereinafter referred to as the Committee') for permission to construct a
hotel building in the town of Kodaikanal. Along with the application it
submitted the plan and other necessary documents. According to the plan G
the building was to comprise a ground floor and a first floor. The plan was
sanctioned by the Committee on November 1, 1991 subject to the following,
amongst others, conditions :

     (i) the construction should be completed by October 31, 1992 and
should not be continued thereafter without renewal :                            H
    592                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A         (ii) if the construction was to be different from the sanctioned plan
    a new plan must be drawn and fresh permission obtained, in default,
    construction. in breach of the plan should be removed : and

          (iii) nothing should be done in variation of the sanctioned plan.
B
           On January 29, 1992, the Hotel sent a revised plan to the Committee
    for its approval with a forwarding letter addressed to its Executive Officer,
    wherein it stated, inter alia, "the revised plan has been necessitated as the
    natural earth level of our site leaves us with 20 to 50 feet beam and column
    structure below the approved plan at different levels". In reply thereto the
c   Committee informed the Hotel, by its letter dated February 7, 1992, that
    the application for sanction of the revised plan was rejected as the proposal
    to construct more than two floors was against clause 8.6.1 of the Master
    Plan Rules. The Hotel was also informed that no construction work should
    be commenced or proceeded with without obtaining licence or permission,
D   otherwise action would be taken under the Tamil Nadu District
    Municipalities Act, 1920 (Act for short). Aggrieved by such rejection the
    Hotel preferred an appeal on February 11, 1992 to the Secretary to the
    Government of Tamil Nadu, Housing and Urban Development, through
    the Executive officer of the Committee and the Director of town and
    Country Planning. In the appeal the Hotel took the stand that the Contour
E   Plan (attached therewith) of the land was such that while constructing the
    ground floor and first floor of the proposed building it had to leave open
    column and beam structure of 20 feet to 50 feet at different levels and that
    through the revised plan it wanted permission to fill up the open space
    under the already approved plan with rooms and other facilities of tourist
F   interest for otherwise the open space would have to be filled up with stone
    and sand which, necessarily, would be a national waste. It was also stated
    therein that leaving the space under the building open as per the approved
    plan would project it only as a big water tank.

          As inspite of rejection of the revised plan, the Hotel continued with
G the construction work the Committee issued another notice on April 22,
    1992 asking it to remove the offending constructions with a warning that
    action would be taken under Section 317 of the Act. In reply thereto the
    Hotel alleged that the Committee was acting with ulterior motive and
    denied to have made any construction against the Rules and regulations.
H   The Committee then filed a suit against the Hotel in the Court of the
   STAY HOTEL v. PALANIHILLS CONSERVATION COUNCIL [M.K MUKHERJEE,J.)   593

District Munsif, Kodaikanal, for a mandatory injunction directing the         A
demolition of the building unlawfully constructed in the suit property over
and above the ground and the first floor and for a permanent injunction
restraining the Hotel from raising any construction without prior approval
and permission of the Committee.

       Immediately after the suit was filed Palani Hills Conservation Coun- B
cil Conservation Council ('Council' for short), a Society formed with the
object, amongst others, of preserving and protecting hills in and around
Kodaikanal and registered under the Tamil Nadu Societies Registration
Act, 1975, filed a writ petition (W.P. No. 13231of1992) - one of the three
out of which the instant appeals arise - seeking a writ of mandamus           c
directing the State Government and the Committee to ensure that no illegal
construction is put up by the Hotel and to demolished the illegal construc-
tion, if already made. Consequential directions that no electricity and water
supply are given or occupancy permitted in the Hotel building or any
portion thereof, if illegally constructed,were also sought for. ln contesting D
the writ petition and praying for vacating the interim order of status-quo
granted thereon, the Hotel contended, inter alia, that the reasons given by
the Committee for rejection of the revised plan was not correct and that
the Hotel had already filed an appeal to the Government. The grounds
raised in support of the revised plan and the appeal were also reagitated.
After hearing the parties the High Court passed an order on October 21, E
1992 which reads, inter alia, as under :

        "Under such circumstances, pending disposal of the Writ Petition
        Respondents 3 and 4 cannot be permitted to make any construc-
        tion beyond the sanctioned plan as per the sanction of the Second     F
        Respondent Township granted on 01.11.1991. If the Respondents
        are able to get any favourable orders in the appeal it is open to
        move them for appropriate permission."

      In December, 1992 the Act was amended and Chapter X A was
incorporated therein making the State Government as the authority to G
grant licence for construction, and reconstruction of buildings and use of
land in hill stations and laying down the procedure for such grant. Accord-
ing to the procedure so laid down every application is to be vetted by a
Committee called Architectural and Aesthetic Aspects for hill station in
the State ('AAA Committee' for short), constituted in terms of the Rules H
    594                   SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A   framed under the Act. as amended.

           As the Amendment Act made the amendments applicable also to
    applications for grant of licence pending before the Committee the appeal        ..
    preferred by the Hotel against the order of the Committee rejecting their
    revised plan was treated as an application filed under Chapter XA. Resul-
B   tantly, it came to be considered by the AAA Committee and, in the meeting
    held on July 29, 1993, it passed a resolution recommending to the Govern-
    ment to reject the application in view of large scale violations of Building
    Rules pointed out therein. On receipt of the above recommendations the
    concerned department of the State Government decided to circulate the
c   file to the Minister for Local Administration. Accordingly the file was sent
    to the Minister, after the Secretary made an endorsement thereon on
    August 24, 1993 to the effect that in view of the gross violations the request
    (obviously meaning that of the Hotel for construction of extra floors) might
    be rejected.

D         While the file was awaiting disposal by the Minister a contempt
    application which the Council had earlier filed against the Hotel in April,
    1993 for wilfully disobeying the order of the High Court by continuing with
    the construction of additional floors illegally was heard and disposed of on
    March 31, 1994 with a finding that the Hotel was guilty of contempt. of
E   Court. On such finding a fine of Rs. 2,000 was imposed and the following
    consequential order passed :

            "(a) Respondents 3 and 4 shall not make any further construction
            in any party of the building above the ground and first floor be it
            construction work, maintenance work or any other type of finishing
F           work.

            (b) Respondnets 3 and 4 shall not use the building except ground
            and first floor (which according to the respondents 3 and 4 is the
            first basement floor at the ground level and second basement floor
            above the same) for any purpose. Unless and until they got the
G
            approval from the Second Respondent or the higher authorities.

            (c) If respondents 3 and 4 are able to get sanction for the entire
            construction, it is open to them to complete the building and use
            it in a manner prescribed by law. Contempt application is ordered
H           in the above terms."
   STAY HOTEL v. PALANI HILLS CONSERVATION COUNCIL [M.K MUKHERTEE.J_)   595

      Thereafter on May 5, 1994, the Minister for Local Administration A
made an order on the file that the request of the Hotel might be considered
and necessary exemption from the violated Rules might be granted, subject
to certain conditions as mentioned therein. On the same day the Chief
Minister endorsed the note of the Minister. After the file was sent back to
the Department a Joint Secretary put up a note on May 12, 1994 that the B
Minister desired that orders should be issued immediately. Pursuant there-
to GOM No. 126 dated May 13, 1994 was issued in accordance with the
recommendation of the Minister.

       Having learnt about issuance of such an Order, the Council wrote to
the State Government on May 30, 1~94 asking for a copy thereof and also c
issued a legal notice for its production. As there was no response Council
filed the second writ petition (Writ Petition No. 13104 of 1994) for quash-
ing the Order and for issuing directions for demolition of the structures
put up by the Hotel beyond the ground floor and the first floor. As no copy
of the Order was available, the Council applied for dispensing with its D
production. However, under the direction of the High Court, the Council
succeeded in getting a copy of the Order and after it was filed, an interim
order was passed on July 29, 1994 on the second writ petition restraining
the Hotel from making any further construction. In contesting this writ
petition the State Government asserted that it had the power to grant
exemption to any builder, that it was not bound by the recommendations E
made by AAA Committee and that being the licensing authority it was
entitled to arrive at its own conclusions. It further contended that in
granting exemption by relaxing the Rules the Government took note of the
fact that Kodaikanal is a tourist station which requires development includ-
 ing establishment of good hotels with all facilities which will cater to the F
 need of various types of tourists, the type of hotel that was being put up in
 the premises in question and also the fact that there would be no deteriora-
 tion of scenic beauty or destruction of environment and ecology.

      When the above two writ petitions came up for hearing on October
18, 1994 the Council pointed out that the Government had no power to G
pass an Order of exemption under Section 217-Q of Chapter XA, incor-
porated by the Amending Act in respect of a private building. Before,
however, the hearing of the writ petitions could be concluded and disposed
of a Bill was moved in the Tamil Nadu Legislative Assembly on November
9, 1994 to amend Section 217 Q so as to provide a power of exemption to H
    596                  SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.

A the Government with regard to private buildings also. That Bill was passed
    and the Tamil Nadu District Municipalities (Second Amendment and
    Validation) Act (No. 52 of 1994) was brought on the statute book on
    November 28, 1994. Section 3 thereof, which contains the validation clause,·
    reads as under :
B           "Notwithstanding anything contained in any law for the time being
            in force or in any Judgement decree or order of any court or other
            authority, all acts done, proceedings taken or orders issued by the
            State Government exempting any building or class of buildings
            from any of the provisions of the principal Act or relaxing any of
c           the rules made under Chapter X or Chapter X A of the principal
            Act in respect of any building or class of buildings, during the
            period commencing on the 9th day of December, 1992 and ending
            with the date of publication of this Act in the Tamil Nadu Govern-
            ment Gazette shall for all purposes, be deemed to be and to have
            always been validly done, taken or issued in accordance with law,
D           as if section 217-Q of the principal Act, as amended by this Act,
            had been in force at all material times when such acts, proceedings
            or orders were done, taken or issued."

          The above enactment was followed by another Government Order,
E   being GOM No. 317 dated December 6, 1994, which was published in the
    Official Gazette on the same day, to say that the building in question was
    exempted from the provisions of the Development Control Rules relating
    to commercial use zone side set back and Floor Space Index and that it
    (the Order) shall be deemed to have come into force with effect from May
    13, 1994. Immediately after issuance of the above Order the Council filed
F   the third writ petition (Writ Petition No. 20375 of 1994) seeking a writ of
    certiorari for quashing the. same. This writ petition was admitted by the
    High Court on December 12, 1994 and an interim stay was granted.

          All the writ petitions were thereafter heard together and allowed by
G the High Court by quashing the impugned Government Orders and issuing
    certain directions to which we will refer to at the appropriate stage. Hence
    these appeals, three of which been filed by the State Government and the
    other three by the Hotel.

          The facts as detailed above - and discussed at length by the High
H    Court ineluctably prove that (1) the plan as sanctioned by the Committee
       ~IAY HOTEL v. PALANIHILLSCONSERVATIONCOUNCIL[M.K MUKHERJEE,J.)    597


-   permitted the Hotel to construct a building comprising two floors only; A
    (ii)) the request of the Hotel for sanctioning their revised plan for some
    additional constructions which, according to it were structurally necessary,
    was turned down by the Committee and (iii) notwithstanding such rejection
    the Hotel constructed some additional floors in breach of the sanctioned
    plan. In the context of the above mentioned facts that the questions as to
                                                                                 B
    whether the two impugned Government Orders, were lawfully and validly
    made and, if so, whether they could regularise the unauthorised construc-
    tions came up for consideration by the High Court.

          To appreciate the reasons which weighed with the High Court in
    answering the above questions in the negative it will be profitable at this c
    stage to refer to the fascicule of sections appearing in Chapter X-A of the
    Act which was introduced by the Amendment Act 58 of 1992 to regulate
    the constructions in hill stations. Section 271 B thereof prohibits construc-
    tion and reconstruction of building without licence and Section 217 0, lays
    down the procedure to be followed for grant of such licence. Sub-section D
    (1) of Section 217 Q prescribes that every application for licence shall be
    submitted to the Executive Authority in the {1rescribed form containing the
    prescribed particulars. Sub-section (2) thereof obligates the Executive
    Authority to examine those applications with reference to such building
    rules as may be prescribed for the purposes of the above Chapter and
    forward the ·same to a committee called the Committee for Architectural E
    and Aesthetic Aspects for all the hill stations in the State which, the
    Government is required to constitute under sub-section (3) with such
    number of officials and non- officials and having such qualifications as may
    be prescribed. The function of the AAA Committee is to examine every
    application received from the Executive Authority in all aspects and for- F
    ward the same to the State Government with its remarks. The composition
    of the AAA Committee is prescribed by Rule 26 of the Tamil Nadu District
    Municipalities (Hill Stations) Building Rules, 1993 (Rules for short)
    framed under Section 217 Q. According to that rule the Chairman of the
    AAA Committee shall be the Chief Secretary to the Government and there
    shall be fourteen Official members and six non-official members consisting G
    of the Director of School of Architecture and Planning, Anna University,
    Madras, Chairman, Institute of Architects, Tamil Nadu Chapter, Head of
    the Department of Structural Engineering Division, Anna University,
    Madras and three members representing local authorities in the hill sta-
    tions to be nominated by the Government. According to the above Rule, H
    598                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   the recommenda.tions of the AAA Committee shah cover all or any matter
    specified under Sub-section (5) of Section 217-Q as may be applicable to
    each application for licence and it may also consider any other matter
    required for the preservation of hill ecology and environment. Sub-Section
    (5) of Section 217-Q lists the matters which have to be considered by that
    Committee while examining the applications, one of them being the pos-
B   sibility of the construction of the building resulting in concentration of
    population in and around the hill station. Section 217-D which relates to
    the power of the State Government to grant the licence reads as under :

                 "On receipt of an application from the Committee with its
c            remarks, the State Government if satisfied that the grant of a
             licence will not result in the deterioration of scenic beauty or
             destruction of the environment and ecosystem of the hill station,
             may, grant a licence subject to such terms and conditions as they
             may think fit to impose, or refuse to grant a licence :

D               Provided that a licence shall i'iot be refused unless the applicant
             has been given an opportunity of making his representation."

          Section 217-K empowers the State Government to review any order,
    decision or direction made by them including the grant or refusal of a
    licence, if it appears to them that any such order, decision or direction or
E
    the terms and conditions of the licence should be modified, annulled or
    reversed. Section 217-Q lays down, inter alia, that the provisions of Chapter
    XA shall have effect notwithstanding anything inconsistent therewith con-
    tained in the Act or. any other law, custom, usage or contract. Section
    217-Q empowers the State Government to grant exemption, subject to
F   conditions specified, to the State or Central Government from all or any
    of the provisions of the Chapter. Rule 27 of the Rules framed in exercise
    of powers conferred by Section 217-C of the Act reads as under:

            "(1) The Government on receipt of the recommendations of the
            Architectural and Aesthetic Aspects Committee may either ap-
G
            prove the proposal with or without such modifications as it deems
            fit or reject the proposal.

             (2) Any approval accorded by the Government will be valid for a
             period of one year from the date of issue of approval which may
H            be extended for a further period of one year if the constructions
   STAY HOTEL v. PALANIHILLS CONSERVATION COUNCIL (M.K MUKHERJEE, J.J   599

        have been commenced and there are no deviations from the A
        approved plan".

       It appears from the impugned Judgment that to ascertain what
prompted the Minister for Local Administration to ignore and overrule the
recommendations of the AAA Committee and the secretary of his Depart-
ment that the application for revised plan be rejected and make his order      B
dated May 5, 1994, the High Court called for and looked into the relevant
file. The order of the Minister as recorded in the file and quoted by the
High Court, reads as under :

           "It is a proposal for a Hotel Building at Kodaikanal Township.      C
        The petitioner now seeks necessary exemption of rules for use of
        basement area, below the permitted building.

           On the perusal of the plan, the site have the contour and
        configuration of the terrain is such that rear portion of the site is
        50 - O" below the access road level. It is proposed to use these D
        basement area for optimum use without increasing t4e height of
        the building above road level.

          The site is reported to be lying in the permissible zone of
        Master Plan, where the hotel use is permitted.
                                                                               E
            Perusal of the plan, also indicates that there are large extent
        of size is left for Car Parking. Further on pollution. control point
        of view, necessary clearances had been obtained.

            On the writ petition by Palani Hills Conservation Council the
        Madras High Court observed and permitted the petitioner to move        F
        for the appropriate permission on appeal for construction of build-
        ing.

            The question now is to use the area below the building in
        basement area in view of Contour conditions of the site, for
        optimum utility. The height of the building proposed is less than G
        10 meters from road level to keep the site in conformity with ·
        surrounding landscape. It is considered that the use of basement
        floor does not interfere with landscape of the site or its vicinity.
        In view of the very high cost of land, the use of site to its optimum
        level is also need to be considered and acc;epted.                    H
    600                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A              In the above circumstances the request of the petitioner may           '
            be considered and necessary exemption from the violated rules
            may be granted subject to the condition;

                  (i) Roof of the top should be slope roof to be in conformity
                  with vicinity landscape.
B
                  (ii) Necessary arrangements be made of the site for disposal
                  of sewerage and sullage.

                  (iii) Height of building should be restricted to 10 metres from
                  the access road level.
c
                  (iv) The car parking open should not be reduced in future."

          To conclude that the order of the Minister was patently bad, the
    High Court dealt with the same at length keeping in view the attending
                                                                                      -
D   facts and circumstances as appearing on the records and the relevant
    provisions of the Act and the Rules, referred to earlier. The reasons which
    weighed with the High Court in drawing the above conclusion as can be
    culled from its judgment are as follows :

            (i) The Minister proceeded to deal with the matter as if it was an
E   application for exemption under Sedion 217-Q of the Act even though no
    such representation was made by the Hotel for such exemption. On the
    contrary, prayer made in the appeal (which was treated as an application
    under Section 217-C of the Act) was only for grant of necessary approval
    for filling up the open space under the building .

F         (ii) Through the AAA Committee found large scale violations ex-
    tending to 182% in the matter of Floor Space Index (F.S.I.) and 304 % in
    the matter of height of the building, the order of the Minister commences
    with an observation that the Hotel seeks necessary exemption of the Rules
    for use of basement area below the permitted buiiding;
G
           (iii) The observation of the Minister that in view of the very high cost
    of the land, the use of its site to its optimum level needs also to be
    considered and accepted was uncalled for as the cost of site was a wholly
    irrelevant consideration under Chapter XA of the Act :

H         (iv) The observation of the Minister that the contour and configura-
   STAY HOTEL v. PALANI HILLSCONSERVATIONCOUNCIL[M.K MUKHERJEE,J.)       601

tion of the terrain are such that the rear portion and the site is 50 feet A
below the access road level and that the Hotel proposed to use that
basement area for optimum use without increasing the height of the
building above :-oad level clearly proved total non application of mind to
the records made available to him. If he had seen the plans his would have
found that the proposed building will be within a length of 40 metres and
the building has nothing to do with the rear portion of the site which is B
beyond that and which is intended to be left as open space even according
to the revised plan;

      (v) The observation that the use of basement floor does not interfere
with the landscape of the site or its vicinity is without any meaning;
                                                                                c
      (vi) The fact that two of the seven floors at the proposed building
will be admittedly above road level with the consequence of affecting the
scenic beauty in the vicinity and the landscape has .been totally overlooked;

      (vii) The requirement and the sanctity of the 'Master Plan' of
Kodaikanal, which had not been - nor could legally be - superseded by the       D
Act and the Rules framed thereunder have not at all been considered and
breaches thereof in the revised plan have been completely ignored (detail~
of such breaches have been recorded in the Judgment) :

      (viii) When a high level expert committee like the AAA Committee,         E
had after due deliberations and taking into consideration all matters
relevant for sanctioning a plan under the Act rejected the revised plan, the
Minister and, for that matter, the Government were not justified in granting
the exemption, more so, when the files did not disclose any material, apart
from what was available to and considered by the AAA Committee:
                                                                                F
       (ix) Though the Amendment Act of 1992 was brought on the Statute
book to preserve the scenic beauty and environment of hill stations by
preventing unplanned and mushroom growth of buildings and improve the
architectural planning of the buildings and structures in the hill stations so
as to harmonize them with the environment and ecosystem, the Minister G
totally overlooked the environmental and ecological aspect of the matter
and proceeded simply on the basis that the use of basement floor did not
interfere with the landscape of the site or its vicinity; and

      (x) There was no ground whatsoever for. relaxing the provisions in
.the Master Plan, particularly with reference to F.S.I. as the purpose for H
    602                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   preparing and publishing such a plan, particularly for a hill station is to
    protect and maintain an environmental balance.

          On the above findings the High Court held the Government Order
    No. 126 dated May 13, 1994 to be illegal, invalid and arbitrary and quashed
    the same.
B
          An ancilliary submission that in view of the validation- clause of
    Section 3 of the Tamil Nadu Act 52 of 1994 the above Government Order
    was not open to any challenge was repelled by the High Court with the
    observation that the effect Section 3, is only that the power of exemption
    under Section 217-Q must be deemed to have been in existence from
C   December 9, 1992. When Chapter X-A of the Act (containing Section
    217-Q) was introduced, but it cannot prevent any person from contending,
    in a given case, that the order of exemption was vitiated by irrelevant
    considerations and non-application of mind.

D          As regards the other GO No. 317 dated December 6, 1994 the High
    Court held, in view of the judgments of this Court in (1) State ofM.P. v.
    Tikamdas, AIR {1975) SC 1429 and (2) Baku/ Cashew Co. v. Sales Tax
    Officer, Qui/on, AIR (1987) SC 2239 and the concession made by the
    learned counsel appearing for the ·Hotel and the State, that it was not
    legally unsustainable as the power to pass Orders with retrospective effect
E   has to be conferred by the Legislature.

          After quashing the above two Government Orders the High Court
    issued certain directions, of which we· are concerned, in these appeals, with
    the following one :

F           "A Writ of Mandamus shall issued directing respondents 1 and 2
            in W.P. No. 13231of1992 to demolish the building constrncted by
            the Hotel to the extent to which it is contra1y to the plan sanctioned
            by the second respondent on 1.11.1991. Respondents I and 2 shall
            see to it that there are only two floors viz., ground-floor and
            first-floor above natural ground level of the site as per the original
G
            plan submitted by the Hotel for sanction in April, 1991. 17ie
            remaining part of the building shall be demolished."

                                                            (emphasis supplied)

H         To ascertain whether the reasons which weighed with the High Court
   STAY HOTEL v. PALANI HILLS CONSERVATION COUNCIL (M.K MUKHERJEE, J.)   603

in quashing the above two Government Orders are legally sustainable or A
not we have carefully considered the materials on record in the light of the
relevant Acts and the Rules applicable to the construction in question. Our
such exercise persuades us to unhesitatingly hold that the findings of the
High-Court in this regard are unexceptionable. Indeed, at the very outset
of the hearing of the appeals it was made clear to the learned counsel for B
the appellants that in view of the well considered judgment of the High
Court they would not be permitted to argue on merits and that their
arguments should be confined to the alleged inconsistency in the direction
as quoted above.

       In assailing the above direction it was submitted on behalf of the c
Hotel that the case of the Council had all along been that it (Hotel) should
not be allowed to make any illegal construction and the Government
Orders purporting to regularise the same should be quashed. According
to the learned counsel as the original sanctioned plan was never challenged
by the Council, the Hotel might, at best, be directed, consequent upon the D
quashing of those Or.ders, to demolish the illegal construction, if any, made
beyond the sanctioned plan. In expanding this contention it was submitted
that when the Hotel started constructing the building in terms of the
sanctioned plan, which was for a building with two floors above the road
level, and for that purpose foundation was dug, it was found that there was
a hollow space of a depth ranging from 6 to 18 matters below the ground. E
Since the cost of filling that hollow space was prohibitive, the Hotel was
advised to erect very strong columns with adequate deep foundation below
the actual floor level to bear the weight of the construction. The foundation
pillars were, therefore, necessary to be put up for the approved plan
construction. It is in the context of the above facts, which, the Hotel was
                                                                              F
not a ware of earlier, that the revised plan was submitted for sanction. It
was further submitted that under the Master Plan a building could be put
upto a height of 10 metres from the road level and as the proposed building
was to be only 6 metres high there could not be any violation in respect
thereof.
                                                                               G
      In repudiating the above contentions the Council submitted that the
Hotel was trying to create a confusion regarding the level from which it
was to construct its building. The learned counsel for the Council pointed
out that in the original plan the Hotel had shown the road level as the
ground level along the entire length of the proposed building even though H
    604                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   the contour plan of the area clearly showed that the plot in question was
    gradient and the ground level and the road level was not one and the same.
    It was next contended that under the relevant Rules the height of a building
    was to be reckoned from the general ground level of the site and measure
    accordingly with reference to every point on the ground level. According
B   to the council, being fully aware of the above facts the Hotel first persuaded
    the authorities to sanction the plan giving an impression that the two
    storeys were to be constructed on the ground level, and having obtained
    the sanction raised the bogey of instability of the proposed building in view
    of the hollow space thereunder and necessity of construction of the
    columns. The learned counsel submitted that such design of the Hotel
c   would be evident from the fact that it not only illegally raised those columns
    but also constructed five more additional floors for residential accommoda-
    tion. In view of the above facts the High Court was fully justified in
    directing demolition of all structures beyond t:he two floors constructed
    above the ground level in accordance with the sanctioned plan, argued the
D   learned counsel.

           In the context of the respective stands of the parties the question that
    fell for consideration before the High Court was whether the two storeyed
    building constructed by the Hotel above the road level was in accordance
E   with the sanctioned plan or not. In dealing with the above question the
    High Court discussed the factual aspect of the matter at length, keeping in
    view the contour plan and other materials placed before it and recorded
    the following findings :


F            (i) The contention of the Hotel that necessity for erecting strong
             columns with deep foundation was realised only after digging the
             foundation and that the idea of constructing basement floors below
             the ground-floor was generated thereafter was clearly false, as such
             a case was put forward for the first time in the counter-affidavit·
             filed in the Court (High Court) in the writ petition. In fact, in the
G            letter accompanying the application for sanction of revised plan,
             which was submitted on January 29, 1992, it was only stated that
             the revised plan had been necessitated as the natural earth level
             of the site left the Hotel with 20 ft. to 50ft. of beam and columns
             structure below the approved plan at different levels but there is
H            no reference whatsoever to the discovery of so called hollow space
   STAY HOTEL v. PALANI HILLS CONSERVATION COUNCIL [M.K MUKHERJEE, J.)     605

        after digging of the foundation.                                          A
        (ii) The story that there was such a hollow space and the natural
        earth level necessitated erection of 20 ft. to 50 ft .. column and beam
        structure was falsified by the contour plan filed by the Hotel along
        with its appeal to the Government.
                                                                                  B
        (iii) The sequence of events gives rise to the natural inference that
        the Hotel had even in the beginning planned to deceive the
        authorities and escape the rigour of the Rnles by getting sanction
        for construction of a building in accordance with the rules, but
        proceeding to construct a different building in utter violation of        C
        the Rules, so that it could put forward a plea of fait accompli and
        avoid demolition. and

        (iv) All along the contention of the Hotel had been that it was
        constructing only the ground floor and first floor above road level
        for which it had obtained approval but the Note File of the               D
        Township Committee indicated that on inspection of the premises
        on 31.10.1992, it was found that seven floors had been constructed
        and four of them were above road level.

       Since the above findings of fact are based on a proper appraisal of
the entire materials available to the High Court we do not find any reason E
to disturb the same sitting in our jurisdiction under Article 136 of the
Constitution. It was, however, contended on behalf of the Hotel that the
High Court committed three basic errors. in reading the contour plan,
namely, (i) a wrong assumption about the starting point of height/slash
depth measurement, (ii) non provision of 10 metres set back from the front f
of the side and (iii) assuming the length of the building to be 40 metres
when in reality it was at least 10 metres longer. It was further contended
that if those three errors were set at right it would be seen that the Hotel's
version was correct more so when it was corroborated by an affidavit filed
by the Committee which admitted that the plan was passed after the site
inspection. We are not prepared to accept the above contentions for the G
High Court took great pains to consider the contour plan in its proper
perspective. This apart, the High Court's findings as noticed above are not
solely based on the contour plan but other factors also. In our considered
opinion the most eloquent and patent fact that must tilt the scale in this
dispute in favour of the Council is that the Hotel has admittedly made a H
    606                  SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A residential construction of seven floors even though their sanctioned plan
  was only for two floors. That necessarily means that five floors of the
  building have been constructed illegally and unauthorisedly. It is not
  surprising therefore that the entire endeavour of the Hotel now is to
  protect the two floors constructed above the road level and to yield to any
  workable formula. It is in that context that the Hotel, without prejudice to
B its rights and contentions, had suggested that the entire structure of seven
  floors might be allowed to remain and, for that purpose it was prepared to
  give an undertaking that they would not use the five floors below the road
  level for any residential purpose but utilise it only for keeping air-con-
  ditioning plant and other attendant purposes for running the Hotel on the
c two floors above the road level. The Council, however, vehementally op-
  posed to the above suggestion on the ground that acceptance thereof would
  mean giving judicial imprimatur to utter and flagrant breach of statutory
  provisions to which the Hotel resorted to in spite of repeated opportunities
  given and reminders issued to retrace their steps and any sympathy shown
D to the Hotel would be wholly misplaced. We n~d not, however, dilate on
  this aspect of the matter as it appears to us that there is some confusion
  as to the nature of the above quoted direction, given by the High Court
  and it requires to be clarified. According to the first part of the direction
  the respondent Nos. 1 and 2 are to demolish the building constructed by
  the Hotel to the extent to which it is contrary to the plan sanctioned by the
E second respondent on November 1, 1991. If this direction is to be complied
  with then in that case the demolition has to be of the five floors below the
  road level for the plan was sanctioned showing the road level as the ground
  level, while the other part of the direction seems to indicate, that besides
  two floors above the natural ground level of the site the rest of the
F construction has to be demolished. In other words, from the order it is not
  clear as to whether the High Court intended that the construction of the
  two floors above the road level has to be kept intact and the rest
  demolished, or the stepped structure of two floors arising from the natural
  ground level has to be kept intact and the rest demolished i1Tespective of
  what the sanctioned plan indicates. This is a matter which the High Court
G should clarify now.

          Before we complete our discussion, we would like to mention that
    the State of Tamil Nadu has in their appeals raised a plea that the following
    observations made by the High Court against the Minister and the .Chief
H   Minister were wholly uncalled for :
   STAY HOTEL i·. PALANIHILLS CONSERVATION COUNCIL [M.K MUKHERJEE, J.]   607

        "Nothing more need be said to prove that the Minister has not at A
        all applied his mind to the relevant materials before signing the
        order. But, on the other hand, he has taken note of irrelevant
        matters. The Chief Minister has simply signed the file without
        entering any minute or remark. There is nothing to show that there
        was application of mind to the matters on record by the Chief
        Minister. Hence, we hold that there is total lack of application of
                                                                            B
        mind on the part of the Government."

We do not find any substance in the above plea for not only the above
quoted observations are factually correct but were absolutely necessary for
proper disposal of the writ petitions.                                         C
      In the result, while upholding the judgment of the High Court, we
remand the matter to it for the limited purpose of issuing fresh directions
in the light of the observations made hereinbefore. The appeals are thus
disposed of. There will be however, no order as to costs.

T.N.A                                                 Appeals disposed of. D