Holding

Exemption orders are invalid because specific written recommendations from the GCDA and the Chief Town Planner are indispensable under Rule 5, and their absence renders the State Government's orders legally infirm.

Summary

The appellant, a resident adjoining a plot owned by the 5th respondent, challenged the Kerala State Government's orders granting exemption from the Kerala Municipal Building Rules, 1968 for the construction of an eight‑storeyed building. The exemption was issued despite the application not being processed through the Greater Cochin Development Authority (GCDA) and the Chief Town Planner as mandated by Rule 5, and without any written recommendation from those authorities. The High Court had dismissed the petition, holding that the Chief Town Planner’s presence in a meeting amounted to a recommendation. The Supreme Court examined the meaning of "recommendation" under Rule 5, emphasizing that a specific favourable report in writing from both the GCDA and the Chief Town Planner is a sine qua non for any exemption. Finding no such recommendations and noting the mandatory nature of the building rules for high‑rise structures, the Court held the exemption orders legally infirm. Consequently, the appeal was allowed and the High Court judgment and the State Government’s exemption orders were set aside.

Issues considered

Whether the State Government can grant exemption from the Kerala Municipal Building Rules without a specific written recommendation from the GCDA and the Chief Town Planner as required by Rule 5.
Whether the mere presence or verbal consent of the Chief Town Planner in a meeting constitutes a "recommendation" under the Rules.
Whether an application not processed through the prescribed authority can be entertained by the State Government.
Whether mandatory provisions of the building rules can be relaxed for a high‑rise building.

Subjects

building lawexemptionmunicipal building ruleshigh‑rise buildingrecommendationpublic safetyplanning authorityKerala

Judgment

A V.M.KURIAN
v. \.
STATE OF KERALA AND ORS.

MARCH 27, 2001

B [V.N. KHARE AND K.G. BALAKRISHNAN, JJ.]

Building Laws :

Kera/a Municipalties Act, 1960-Sec. 344 rlw 222-Kerala Municipal
Corporation Act, 1961-Sec. 367 rlw 238-Kerala Municipal Building Rules,
c 1968-Rules 5-Exemption from requirement-Grant of-Requirement of spe-
cific recommendation by GCDA and Chief Town Planner-Held, is a sine qua
non-State Government is not competent to grant exemption in the absence of
specific recommendation by them.

Kerala Municipal Building Rules, 1968--Grant of exemption in high rise
D
buildings-No specific recommendation by Chief Town Planner-Mere pres-
ence in the meeting for considering grant of exemption-Held, would not
constitute specific recommendation.

Word< and Phrases-"recommendation"-Meaning of Rule 5-Kerala
E Municipal Building Rules, 1968.

The 5th Respondent submitted an application directly to the Gov-
ernment of Kerala seeking exemption from operation of certain provisions
of the Kerala Municipal Building Rules, 1968 for the proposed construc-
tion of a three storeyed godown-cum-office in bis plo~ of land The govern-
F ment by a special order, granted exemption from the operation of Rules
30(1), 30(5)(b), 31(0 and 38(4)(c) of the Rules, 1968 subject to certain
conditions.

In 1984, the Kerala Building Rules, 1964 framed under Section 344
read with Section 222 of Kerala Municipalties Act, 1960 and Section 367
G
read with Section 238 of Kerala Municipal Corporation Act, 1961 came
into force.
•
The 5th respondent then submitted another application to the Gov- ,f
ernment seeking further exemption from the operation of the Rules, point-
H ing out the conditions imposed in the exemption order and modification
818
V.M. KURIAN v. STATE 819
thereof. The State Government modified the earlier G.O. with the modi- A
4 lied conditions.

<i When the 5th respondent started construction over the said plot of
~
land the appellant, a resident of adjacent plot of land, raised objections to
the Corporation as well as to the Authority, and also filed a suit for
injunction. The 5th respondent sent another application seeking exemp- B
tion from operation of provisions of the Rules to construct an eight
storeyed building by adding five more floors to the three storeyed building
already constructed. This application was sent directly to the State Gov-
ernment and was not processed, as required under proviso to Rule 5 of the
Rules. After receipt of the said application the Government asked for the c
comments from the Greater Cochin Development Authority, Cochin Mu-
nicipal Corporation, and the Town Planning Board. Subsequently in a
meeting held by the Minister, the appellant, 5th respondent and the Chief
Town Planner the matter regarding grant of exemption from operation of
the rules for construction of an eight storeyed high rise building was
discussed. The State Government permitted the construction of an eight
D
storeyed high rise building by granting exemption from operation of the
Rules with certain conditions.

The 5th respondent again applied for further exemrtion from opera-
tion of Rules by way of modification of the conditions imposed in the E
)"
Government Order. The Government, on the very next day, modified the
conditions of exemption earlier granted.

The appellant herein cliallenged the orders of exemption passed by
the State Government in the High Court. The Higb Court dismissed the
Writ Petition and held that since the Chief Town Planner who was present F
in the meeting with the Minister 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 construe-
!ion of an eight storeyed building.

The appellant contended that the application submitted by the 5th
G
respondent having been not processed in conformity with Rule 5 of the
Rules, the said application could not have been entertained by the State
~
Government, and that in absence of any recommendation by the GCDA
and the Chief Town Planner, the State Government could not have granted
exemption from operation of the Rules for construction of an eight stotried H
r

820 SUPREME COURT REPORTS [2001] 2 S.C.R.
A building by the 5th respondent.

The 5th respondent contended that the meaning of the word 'recom-
mendation' necessarily does not mean "a no objection certificate" by the
GCDA and the Chief Town Planner, but it contemplates only their view
point, that even if the GCDA and the Chief Town Planner had objected to
B grant of the application, the State Government, in exercise of its overrid-
ing power can permit dispensation of Rules for construction of high rise
building, that the Chief Town Planner was present in the meaning held on
16.8.1990 and he consented to the grant of exemption from operation of
Rules for according permission to construct an eight storeyed building
c and, therefore, in pith and substance, there was a recommendation of the
Chief Town Planner.

Allowing the Appeal, the Court

HELD: 1. Itis true that the word 'recommendation' is not defined in
D the Rules. The Rules here provide for regulation and construction of build-
ing 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 arc entrusted with the functions and duties for carrying out
development and regulation of building in the urban area. These are the
E 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 permitting construction of an eight storeyed
building. Thus, the meaning of the word 'recommend', when read in the
context of the Rules show that it means "giving of a favourable report"
"opposed to an unfavourable one". The recommendations by the GCDA
F
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 grant- '
ing exemption from operation of the Rules for construction of high rise
building. The position would be different where GCDA and the Chief Town
G 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. 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
H GCDA and the Chief Town Planner while granting exemption from opera-
V.M. KURIAN v. STATE [V.N. KHARE,!.] 821
tion of the Rules for constructing high rise building. The impugned orders A
suffer from serious legal infirmity. (825-G-H; 826-A-E]

2:0n a perusal of the minutes of the meeting held on 16.8.1990 the
court does not find any consent or recommendation having made by the
Chief Town Planner recommending the State Government to grantexemp-
tion from operation of the Rules for construction of an eight storeyed B
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. There-
fore, in the absence of any such recommendation, the order P.asscd by the
State Government permitting the 5th respondent to construct an eight C
storcyed building after granting exemption from operation of the Rules
was erroneous. [826-H; 827-A]

3. 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 D
building. The position may be different in the case of one or two storeyed
building where there are minor deviations from the Rules, which do not
affect the public safety and convenience. In the present case, the deviations
are of high magnitude, which arc contrary to the public safety and conven-
ience. The order passed by the State Government exempting the provision E
of the Rules for constructing an eight storeyed building was contrary to
the mandatory provisions of the Rules and therefore, is not sustainable in
law. (828-C-D]

CIVIL APPELLATE JURISDICTION : Civil AppeaJ No. 15581 of
1996. F
From the Judgment and Order dated 21.1.94 of the Kerala High Court
in O.P. No. 12929 of 1991.

D.A. Dave, Harish N. Salve, L.N. Rao, E.M.S. Anarn, Haris Beeran,
Siddhartha Dave, Ms. Beena Prakash, G. Prakash, Dilip Pillai, M.P. Vinod and G
T.G.N. Nair Advocates.

The Judgment of the Court was delivered by

V.N. KHARE, J. This is an appeal against the judgment of Kerala High
Court dismissing the appellant's writ petition filed against the grant of H
822 SUPREME COURT REPORTS [2001] 2 S.C.R.
A exemptions from the provisions of the Kerala Building Rules (hereinafter
referred to as the 'Rules') for construction of an eight storeyed 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 LS. Press Road in the city
B 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 storeyed godown-cum-office on the said plot of land.
The Government, by a special order dated 12.10.1983, granted exemption
•
c from the operation of the Rules 30(1), 30(5)(b), 31(D 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
D opened for car parking

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

(iv) Side open space on tl1e northern side will be 1.5 M.

E (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
F into force.

After the new Rules came into force, 5th respondent submitted an
another application to the Government seeking further exemption from op-
eration 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
G 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
H modified conditions:
V.M. KURIAN v. STATE [V.N. KHARE, J.] 823
"(i) Front open space shall be 6 M. for the ground floor. Upper A
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 I M.
B
(iv) Southern side space shall be 1.5 M."

After the exemption was granted, the 5th respondent started construc-
tion 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 c
immediately after the completion of the three storeyed building, the 5th
respondent on 19.3.1990 sent another application seeking exemption from
operation of provisions of the Rules to construct an eight storeyed building
by adding five more floors to the three storeyed building already constructed.
This application was sent directly to the State Government and was not D
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 tl1e 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
E
Planner, strongly objected to the grant of exemption from operation of the
rules for construction of an 8 storeyed 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 F
granted exemption from operation of the rules for construction of an eight
storeyed high rise building was discussed. Subsequently, the State Govern-
ment by an order dated 13.11.1990 permitted the construction of an eight
storcyed 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(l)(a), 18(2), 29(2),
21(1l)(b) and 32(a) with the following conditions: . G

(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.
H
824 SUPREME COURT REPORTS (2001] 2 S.C.R.
A (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.

B (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 Govern-
ment, on the very next day, by an order dated 22.11.1990, modified the
c conditions of exemption earlier granted in the following terms:

"I. Government are pleased to modify condition No. 2 specified in
G.0. !st read above.

D 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
E 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 storeyed building.
Consequently, the writ petition was dismissed. It is in this way, the appellant
F 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
G 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 storeyed 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 certifi~
H cate" by the GCDA and the Chief Town Planner, but it contemplates only
V.M. KURIAN v. STATE [V.N. KHARE, J.] 825
their view point. He further argued that even if the GCDA and the Chief Town A
Planner had objected to grant of the application, the State Government, in
exercise of its overriding power can permit dispensation of Rules for con-
struction of high rise Milding. In order to appreciate the argument of the
parties, it is necessary to quote the relevant portion of Rule 5, which runs
thus:
B
"5. Power of Government to exempt building: Tue 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; c
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;

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

A perusal of Rule 5 shows that an application for exemption from the provi-
sions of Rules is required to be processed through the GCDA and the Chief E
Town Planner. The Rule further requires that the application is to he 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 exemp- F
tion from the operation of the Rules for construction of a high rise building.
Tue 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 G
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 build- H
826 SUPREME COURT REPORTS [2001] 2 S.C.R.

A ing 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 au-
thorities on the spot who have special and technical knowledge to advise the
Government whether public safety and convenience requires dispensing with
B
the provisions of Rules while permitting construction of an eight storeyed
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
c 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
D
viewpoint of the GCDA and the Chief Town Planner. Here, what we find is
that there were neither recomm.endations 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, there-
E fore, 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 for according permission to construct an eight storeyed building and,
F
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
G 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 storeyed building. Where the Rules require specific
recommendation of the Chief Town Planner in writing, his mere presence in
H the meeting would not constitute recommendation for grant of exemption
V.M. KURIAN v. STATE [V.N. KHARE, J.] 827
from the Rules. Therefore, in the absence of any such recommendation, we A
~ find that the order passed by the State Government permitting the 5th
respondent to construct an eight storeyed 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 constructi~n of an eight storeyed building as being B
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 c
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 storeyed
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 D
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
r is required to be 9 as against proposed 1, that the open space is grossly E
insufficient. He, therefore, recommended the application to be rejected, but
the three storeyed 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 storeyed building with floor area of F
27306.55 sq. ft. and 83.15 ft. height to accommodate 28 residential apart-
-., ments, 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 - (I) minimum open spaces required to be kept
in the front, rear and sides, (2) front, rear and side yards, (3) projections into G
and constructions on open spaces, (4) floor area ratio, (5) maximum pre-
scribed height, (6) a'erodrome 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 maximum height
of the building. The building should not be constructed exceeding 1.5 times H
828 SUPREME COURT REPORTS [2001] 2 S.C.R.
A 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 perking. 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
B
of the staircase as required under Rule 21(1l)(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
c 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 storeyed
building where there are minor deviations from the Rules, which do not affect
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
D
Goverument exempting the provisions of the Rules for constructing an eight
storeyed 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 des.erves
E to be allowed. Consequently, the judgment and order of the High Court as
well as the order passed by the State Goverument are set aside. The appeal
is allowed. There shall be no order as to costs.

V.M. Appeal allowed.

'