IMPORTANT POINT
The order passed by the State Government of Kerala directly on an application of the 5th respondent exempting the provisions of the Rules for constructing an eight storied building was contrary to mandatory provisions of the Rules, particularly Rule 5, and therefore, is unsustainable in law.

Headnote:Kerala Building Rules, 1964-Rule 5-Power of Government to exempt Building-Only on recommendations of Greater Cochin Development Authority (=GCDA) and Chief Town Planner-Respondent 5 obtained exemption directly from State Government-Whether sustainable in law? (No)-Whether presence of Chief Town Planner at the time of State Government ordering exemption of any importance? (No)-Result-State Government s order of exemption not sustainable in law-Appeal allowed-High Court reversed which upheld Government s order.
       Held : 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. (Para 8)
       Held also : 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. (Para 9)
       Held consequently : 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. (Para 12)
       Held finally : 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. (Para 13)

Judgement Key Points

Certainly. Here are the key points derived from the provided legal document:

The order passed by the State Government of Kerala directly on an application of the 5th respondent, exempting the provisions of the Rules for constructing an eight-storied building, was found to be contrary to the mandatory provisions of the Rules, particularly Rule 5, and was thus deemed unsustainable in law (!) .
The Rules require that applications for exemption from building regulations must be processed through the Greater Cochin Development Authority (GCDA) and the Chief Town Planner, with specific recommendations provided by these authorities. The absence of such recommendations renders the exemption order invalid (!) (!) (!) .
The meaning of the term "recommendation" in this context implies a "favourable report" or "commendation," and the authorities on the spot, such as the GCDA and the Chief Town Planner, possess the technical expertise to advise on public safety and convenience requirements (!) (!) .
The mere presence of the Chief Town Planner at the meeting does not constitute a recommendation unless there is a formal written endorsement, which was not present in this case (!) .
The order granting exemption without proper recommendations was held to have serious legal infirmities, as it bypassed the procedural requirements mandated by the Rules (!) (!) .
The construction of the high-rise building violated several mandatory provisions of the Rules, including open space requirements, floor area ratio, maximum height restrictions, parking provisions, and safety standards such as fire protection and stairway width (!) (!) .
The Rules are mandatory and are intended to ensure public safety and urban planning standards; deviations of significant magnitude cannot be permitted by exemptions, especially for high-rise constructions (!) .
The exemption granted was found to be contrary to the public safety and convenience objectives of the Rules, and therefore, the order permitting the construction was declared unlawful and set aside (!) (!) .
The judgment emphasized that the procedural and substantive requirements of the Rules must be strictly followed, and any relaxation must be supported by proper, formal recommendations from the relevant authorities (!) (!) .
The appeal was allowed, and the orders of the High Court and the State Government were set aside, reaffirming the importance of procedural compliance and adherence to mandatory building regulations (!) (!) .

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JUDGMENT

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 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.

2. 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 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, I960 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 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."

5. 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

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