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Constructing High Rise Commercial Complex in Residential Zone is Against Mandatory Rules and Affects Public Safety AIR 2001 SC 1401

Constructing High Rise Commercial Complex in Residential Zone is Against Mandatory Rules and Affects Public Safety AIR 2001 SC 1401

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Justice V.N. Khare & Justice K.G. Balakrishnan in the case before Supreme Court in V.M. Kurian v. State of Kerala and Ors., reported in AIR 2001 SC 1401, wherein it is held that in the case of grant of permission for construction for high-rise building without compliance of technical clearance is a serious lapse. Where the public safety is involved, the lapses cannot be condoned.
Justice V.N. Khare & Justice K.G. Balakrishnan in the case before Supreme Court in V.M. Kurian v. State of Kerala and Ors., reported in AIR 2001 SC 1401, wherein it is held that in the case of grant of permission for construction for high-rise building without compliance of technical clearance is a serious lapse. Where the public safety is involved, the lapses cannot be condoned.

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11/06/2012

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http://JUDIS.NIC.IN SUPREME COURT OF INDIAPage 1 of 7
CASE NO.:Appeal (civil) 15581 of 1996PETITIONER:V.M. KURIANVs.RESPONDENT:STATE OF KERALA AND OTHERSDATE OF JUDGMENT: 27/03/2001BENCH:V.N. Khare & K.G. BalakrishnanJUDGMENT:V.N. KHARE, J.L...I...T.......T.......T.......T.......T.......T.......T..JThis is an appeal against the judgment of Kerala HighCourt dismissing the appellants writ petition filed againstthe grant of exemptions from the provisions of the KeralaBuilding Rules (hereinafter referred to as the Rules) forconstruction of an eight storied high rise building in thecity of Cochin to the 5th respondent.The 5th respondent herein, owns a plot of land measuring9.5 cents (384.46 sq. mtrs) in survey No. 312/1, situatedat I.S. Press Road in the city of Cochin. On 1.10.1982,the 5th respondent submitted an application directly to theGovernment of Kerala seeking exemptions from operation ofcertain provisions of the Kerala Municipal Building Rules,1968 for the proposed construction of a three storiedgodowncum-office on the said plot of land. The government,by a special order dated 12.10.1983, granted exemption fromthe operation of the Rules 30(1), 30(5)(b), 31(f) and38(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 bekept opened for car parking(iii) Rear open space will be minimum 1.8 M.(iv) Side open space on the northern side will be 1.5 M.(v) Side open space on the southern side will be 1.5 M.On 15.5.1984, the Kerala Building Rules, 1964 framedunder Section 344 read with Section 222 of KeralaMunicipalities Act, 1960 and Section 367 read with Section238 of Kerala Municipal Corporation Act, 1961 came intoforce.
 
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After the new Rules came into force, 5th respondentsubmitted an another application to the Government seekingfurther exemption from operation of the Rules. In the saidapplication, the 5th respondent pointed out that front setback of 4.5 mtr. may be accepted and the conditions imposedin the exemption order to increase the front set back to 6mtr. may be relaxed. The 5th respondent in his applicationfurther pointed out that since there was ample space on theexisting road for car parking, therefore the conditions forproviding space for car parking may be deleted. The StateGovernment by an order dated 13.3.1986 modified the earlierG.O. with the following modified conditions:(i) Front open space shall be 6 M. for the groundfloor. Upper floors may project by 3 M. into this openspace.(ii) Rear open space shall be 1.5 M.(iii) Northern side space shall be 1 M.(iv) Southern side space shall be 1.5 M.After the exemption was granted, the 5th respondentstarted construction over the said plot of land. It is atthis stage the appellant who is residing adjacent to thesaid plot of land raised objections to the Corporation aswell as to the Authority, and also filed a suit forinjunction. It appears that immediately after thecompletion of the three storied building, the 5th respondenton 19.3.1990 sent another application seeking exemption fromoperation of provisions of the Rules to construct an eightstoried building by adding five more floors to the threestoried building already constructed. This application wassent directly to the State Government and was not processedthrough, as required under proviso to rule 5 of the Rules.It further appears that after receipt of the saidapplication the Government asked for the comments from theGreater Cochin Development Authority (in short GCDA),Cochin Municipal Corporation, and the Town Planning Board tothe application of 5th respondent. The GCDA as well as theChief Town Planner, strongly objected to the grant ofexemption from operation of the rules for construction of an8 storied building by the 5th respondent. On 16.8.1990, theMinister for Local Administration held a meeting in hischamber for consideration of the application of the 5threspondent. In the said meeting, the appellant, 5threspondent, and the Chief Town Planner were also present.It appears that the question as to whether the 5threspondent be granted exemption from operation of the rulesfor construction of an eight storied high rise building wasdiscussed. Subsequently, the State Government by an orderdated 13.11.1990 permitted the construction of an eightstoried high rise building by granting exemption fromoperation of the Rules 15(5), 15(3)(a), 15(3)(b), 15(3)(c),15(7), 17(1)(2), 18(1)(a), 18(2), 29(2), 21(11)(b) and 32(a)with the following conditions:(i) The front open space should be minimum of 5.7 m forground floor and 2.7 m for the remaining floors.(ii) Rear open space should be minimum of 2 M for allfloors.(iii) Side open space on the north should be minimum of
 
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1 M for all floors.(iv) Side open space on the south should be a minimum of0.8 M to 1.4 M for all floors.(v) No further addition should be made in future.Not content with that, the 5th respondent again on21.11.1990, applied for further exemption from operation ofRules by way of modification of the conditions imposed inthe Government Order dated 13.11.1990. The Government, onthe very next day, by an order dated 22.11.1990, modifiedthe conditions of exemption earlier granted in the followingterms:1. Government are pleased to modify condition No. 2specified in G.O. 1st read above.2. Rear open space should be minimum of 2 M groundfloor 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 Constitutionchallenged the orders dated 13.11.1990 and 22.11.1990 passedby the State Government. The High Court was of the viewthat since the Chief Town Planner who was present in themeeting had consented to the grant of exemption from theoperation of the Rules and as such there was no infirmity inthe order of the State Government in dispensing with theRules for construction of an eight storied building.Consequently, the writ petition was dismissed. It is inthis way, the appellant is before us.Learned counsel appearing for the appellant urged, thatthe application submitted by the 5th respondent having notprocessed in conformity with Rule 5 of the Rules and,therefore, the said application could not have beenentertained by the State Government. It was also arguedthat in absence of any recommendation by the GCDA and theChief Town Planner, the State Government could not havegranted exemptions from operation of the Rules forconstruction of an eight storied building by the 5threspondent. Whereas, learned counsel for the 5th respondentcontended that the meaning of the word recommendationnecessarily does not mean a no objection certificate bythe GCDA and the Chief Town Planner, but it contemplatesonly their view point. He further argued that even if theGCDA and the Chief Town Planner had objected to grant of theapplication, the State Government, in exercise of itsoverriding power can permit dispensation of Rules forconstruction of high rise building. In order to appreciatethe argument of the parties, it is necessary to quote therelevant portion of Rule 5, which runs thus:5. Power of Government to exempt building: TheGovernment may in consultation with the Chief Town Plannerexempt (any building) from the operation of all or any ofthe provisions of these rules subject to conditions if may,to be stipulated in the order, granting such exemptions;Provided that such exemption shall be considered onindividual application forwarded to the government throughthe authority and the Chief Town Planner with their specificrecommendations;

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