AI Structured Summary
Not yet generated for this judgment
Judgment
Srinivasan, J.
I. INTRODUCTION
It is said that ""Kodaikanal is a charming Hill Station unspoiled by modern development and is known as Princess of Hill Stations of South"". But
alas, the facts of this case show that the day is not far off when Kodaikanal will lose its name and fame.
These three Writ petitions have been filed by Palni Hills Conservation Council, a society registered under the Tamil Nadu Societies Registration
Act, 1975. One of the objects of the Society, which is hereinafter referred to as ""the Petitioner"", is to preserve and protect the environment in and
around Kodaikanal. The State of Tamil Nadu is the first Respondent in all the Writ petitions. In the first Writ petition it is represented by its
Secretary to Government. Rural Development and Local Administration Department while in the other two it is represented by its Secretary to
Government, Municipal Administration and Water Supply Department. Kodaikanal Township Committee is the second Respondent in the first two
Writ petitions. Pleasant Stay Hotel is the third Respondent in the first two writ petitions, while the second Respondent in the third Writ petition is
Pleasant Stay (Kodai) Hotels Private Ltd. It is hereinafter referred to as"" the Hotel"" for the sake of convenience. The fourth Respondent in the first
two writ petitions is Mr. Rakesh Mittal, who is the Executive Director of the Hotel, third Respondent in the first two writ petitions and the second
Respondent in the last writ petition. The 7th Respondent in the second writ petition viz., the Union of India represented by its Secretary, Ministry
of Environment and Forests is the third Respondent in the last writ petition. Respondents 5 and 6 in the second writ petition being the Indian Bank
Limited and the Tamil Nadu Electricity Board are not parties to the other two Writ petitions. They are only proforma parties in the second Writ
petition as no relief has been prayed for against them. The main contesting party is the Hotel. The State Government is supporting the Hotel in the
second and the third Writ petitions, as the subject matter of attack are orders issued by the Government.
II CHRONOLOGY
In April, 1991, the Hotel applied to the Kodaikanal Township Committee for permission to construct a hotel building in R.S. No. 149(p) at
Blissvilla Street, Kodaikanal, along with plans and other required documents. As per the plan the building was to comprise a ground floor and a
first floor. According to Appendix ''D'' the area of the site and the total floor area of the building are 3320 sq. Meters and 2972.01 Sq. Meters
respectively. The area of the ground floor is 1380 sq. Meters and that of the first floor is 1411.28 sq. Meters. The area of the open space after
proposal is stated to be 1939.46 sq. Meters. The specifications of the foundations, superstructure, flooring, roofing, doors and windows and lintels
have all been set out in the said Appendix. A depth of 1.83 meters is said to be provided. Some defects were pointed out and they were rectified.
Ultimately, the Township Committee sanctioned the plans on 1-11-1991 subject to certain stipulated conditions. The permission was to construct
between 1-11-1991 and 31-10-1992. Some of the conditions are: (1) Construction should not be continued after the expiry of the period of
permission without renewal of the same; (2) if the construction is going to be different from the plan, a new plan must be drawn and fresh
permission must be obtained; in default, the building constructed in violation of the plan will be removed, and (3) nothing shall do done in variation
of the sanctioned plan.
On the 29th January, 1992, the Hotel wrote to the Executive Officer of the Township Committee for approval of the revised plan, It is stated
therein, ""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."" As per the revised plan, the Hotel wanted to construct five floors in basement level in addition to the ground
floor and the first floor. In Appendix ''D'' the area of the site is given as 5423.33 sq. Meters, while the total floor area of the building is shown as
8924.69 sq. Meters. The area of the ground floor, first floor, Basement level I and basement Level II is shown as 1517.95 sq. Meters each. The
area of the Basement Level III and Basement level IV is shown to be 1262.51 sq. Meters each, while the area of the Basement Level V is shown
as 327.87 sq. Meters. The area of open space after proposal is 3905.4 sq. Meters and the depth provided is 1.52 meters. By a communication
dated 7.2.1992, the Township Committee informed the Hotel that the application for sanction of the revised plan was rejected for the reason that
the proposal to construct more than two floors i.e., seven floor is 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 from the Township Office after having
rectified the defects, as otherwise action will be taken under the provisions of the Tamil Nadu District Municipalities Act. On 11-2-1992 the Hotel
submitted an appeal to the Secretary to Government of Tamil Nadu, Housing and Urban Development Department through the Executives Officer,
Kodaikanal Township and the Director of Town and Country Planning. In the appeal it is stated that the contour Plan (attached therewith) of the
land is such that while constructing only the ground and first floor of the proposed building, it has to leave open column and beam structure of 20
feet to 50 feet at different levels and that in the revised plan it wants permission to fill up the open space under the already approved plan with
rooms and other facilities of tourist interest or otherwise it has to be filled up with stone and sand and that it will definitely be a national waste. It is
also stated in the appeal that leaving the place open under the building as per the approved plan, will project it only as a big water tank. Clause 5
of the appeal reads thus:
We would like to emphasise that the proposed basements are the natural ones as can be confirmed from the contour plan attached and no cutting
or filling has been done by us to create artificial basements. There is no approach road to our building except from the one behind bust stand, i.e.
Bliss Villa Road.
In April 1992, a copy of the appeal was sent directly to the Secretary to Government by the Hotel. The Hotel proceeded to continue the
construction and the Township committee issued a notice on 22-4-1992 to remove the offending construction and warning the Hotel that action
will be taken u/s 317 of the District Municipalities Act. The Hotel sent a reply that the Government of Tamil Nadu will definitely consider its lawful
request and will avoid a national waste by allowing it to construct the open spaces below the already approved plan. In June 1992 the Hotel wrote
to the Executive Officer of the Township alleging that it was acting with ulterior motives and that the Hotel did not intend any construction activity
against the rules and regulations. The Executive Officer sent a reply on 1.7.1992 that the matter will be considered in the Local Planning
Authority''s Meetings. As the construction was proceeding, the Township filed a suit O.S. No. 78 of 1992 on the file of the District Munsif,
Kodaikanal against the Hotel for a mandatory in junction directing the demolition of the building unlawfully constructed in the suit property over and
above the ground and first floor and for a permanent injunction restraining the Defendant from raising any unauthorized construction without prior
approval and permission of the Township. The Plaintiff also applied for temporary injunction pending the suit. Even while contesting the
proceedings, the Hotel was continuing the construction.
It is at that stage, the Petitioner filed the first Writ petition W.P. No. 13231 of 1992 on 1.9.1992. The prayer in the writ petition is for issue of
mandamus directing the State Government and the Township Committee to ensure that no illegal construction is put up by the Hotel and
consequently to direct no electricity, water supply is given or occupancy permitted in the said building if any portion thereof is built in violation of
the Tamil Nadu Hilly Areas Special Building Rules, 1981 and the Kodaikanal Master Plan and that such illegal construction be demolished. In the
affidavit filed in support of the Writ Petition it is stated that the Hotel after getting permission to construct a building with two floors, proceeded to
construct additional floors and had commenced the R.C.C. work upto the fourth floor. It is also alleged that the acting Executive Officer of the
Township Committee expressed his helplessness and inability to stop the massive construction. It is averred that the width of the street on which
the building is situated is less than five meters and the height of the building cannot exceed 7.5. Meters according to Rule 5 of the Tamil Nadu Hilly
Areas Special Building Rules 1981 framed u/s 191 and Section 303(1) of the Tamil Nadu District Municipalities Act. It is also stated that Clause
8.6.1 of the Kodaikanal Master Plan has been violated inasmuch as it prevents construction exceeding two floors or ten meters in height. It is
stated that allowing such massive construction in Kodaikanal would lead to an intolerable strain on the scare resource of water and would create
problems of sanitation and waste disposal as well as congestion, traffic hazards and put a great strain on the limited civic, infrastructure.
The Writ petition was admitted on 2.9.1992 and an order of status quo was passed by this Court in W.M.P. No. 18689 of 1992. The Hotel
filed a counter affidavit and a petition to vacate the interim order. In the counter affidavit it is stated that when foundations were dug, it was found
there was a huge hollow space below the ground of a depth varying from 6 meters to 18 meters and the cost of filling up that hollow space with
hard rock and packing it with sand and with such materials so that the original proposed construction could be safely rested thereon would become
prohibitive. There was also a fear that rain water could still accumulate in the interstices making the building unsafe. It was advised that very strong
columns may be erected with adequate deep foundation below the actual floor level of the hollows to bear the weight of the construction. It
involved extra cost and it was not a solution how to fill up the hollow space. It was then decided to approach the Township for permission to build
below the surface level and utilise the vacant space so as to keep off possible water accumulation and future damage, the cost of which was
estimated around Rupees Two Crores. It is also contended that the reason given by the Township for rejection of the revise plan is not correct and
the Hotel has already filed an appeal to the Government. An attempt is made in the counter affidavit to justify the continuation of the construction.
After hearing both the parties, the court passed an order on 21.10.1992, the relevant part of which reads as follows:
Under such circumstances, pending disposal of the Writ Petition Respondents 3 and 4 cannot be permitted to make any construction beyond the
sanctioned plan as per the sanction of the Second Respondent Township granted on 01.11.1991. If the Respondents are able to get any
favourable order in the Appeal it is open to move them for appropriate permission.
The Hotel filed an appeal against the said order. In December, 1992, the Tamil Nadu District Municipalities Act was amended by Act, 58 of
1992. Chapter X-A was introduced providing a special procedure for the granting of building permission in respect of hill stations. In the Statement
of Objects and Reasons, it is stated that the Government consider necessary to take urgent steps to preserve the scenic beauty and environment of
hill stations in the State by preventing unplanned and mushroom growth of buildings and also to improve the architectural planning of the buildings
and structures in the hill stations so as to harmonize them with the environment and ecosystem of such hill stations. In order to achieve the above
objects, the Government decided that licence for construction or reconstruction of buildings and the use of the land, etc., in the hill stations shall
thereafter be granted only by the State Government. The contents of the Statement of Objects and Reasons are reproduced in the preamble to the
Act. Sections 217-A to 217-Q are introduced by the amendment as forming part of Chapter X-A. The Chapter applies only to Hill Stations.
Section 217-B prohibits construction or reconstruction of building without licence. Section 217-C provides for application for licence. Sub-section
(1) prescribes that every application for a licence shall be submitted to the executive authority in the prescribed form containing the prescribed
particulars. Under Sub-section (2), the Executive Authority shall examine the same with reference to such Building Rules as may be prescribed for
the purpose of the Chapter and forward the same to the committee. Sub-section (3) requires the Government to constitute a committee called the
Committee for Architectural and Aesthetic Aspects for all the hill stations in the State, with such number of officials and non-officials and having
such qualifications as may be prescribed. The Committee shall examine every application received from the Executive Authority in all aspects and
forward the same to the State Government with its remarks. The composition of the Committee is prescribed by Rule 26 of the Tamil Nadu
District Municipalities (Hill Stations) Building Rules, 1993 framed u/s 217-C. It is seen there from that the Chairman of the Committee shall be the
Chief Secretary to the Government. Fourteen Official members and six non official members consisting of (1) Director of School of Architecture
and Planning, Anna University, Madras, (2) Chairman, Institute of Architects, Tamil Nadu Chapter, (3) Head of the Department of Structural
Engineering Division Anna University, Madras, (4) three members representing Local Authorities in the hill stations to be nominated by the
Government. As per the said Rule, the recommendations of the Committee shall cover all or any matter specified under Sub-section (5) of Section
217-C as may be applicable to each application for licence and the Committee may also consider any other matter as are required for the
preservation of hill ecology and environment. Sub-section (5) of Section 217-C lists out the matters which have to be considered by the
Committee while examining the applications. One of them is the possibility of the construction of the building resulting in concentration of population
in and around the hill station. Section 217-D reads thus:
On receipt of an application from the Committee with its 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; Provided that a licence shall not be refused unless the applicant has been
given an opportunity of making his representation.
Section 217-K provides for review by the State Government of 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 the terms and conditions of the licence should be modified, annulled or
reversed. Section 217-L provides for a revision by the High Court against the order of the State Government u/s 217-K. Section 217-O is in the
following terms:
(1) The provisions of this Chapter shall have effect not - withstanding anything inconsistent therewith contained in this Act or any other law,
custom, usage or contract.
(2) Save as otherwise provided in Sub-section (1), the provisions of this Chapter shall be in addition to, and not in derogation of, any other
provisions of this Act.
Section 217-Q at that time read as follows:
The State Government may, by order, exempt subject to such conditions, if any, as may be specified in the order, the Central or the State
Government from all or any of the provisions of this Chapter.
The Amendment Act made the amendment applicable to applications for grant of licence pending before the Executive Authority of a hill station on
the date of the publication of the Act in the Gazette. Rule 27 of the Tamil Nadu District Municipalities (Hill Stations) Building Rules, referred to
earlier, is in the following terms:
(1) The Government on receipt of the recommendations of the Architectural and Aesthetic Aspects Committee may either approve 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 be extended for
a further period of one year if the constructions have been commenced and there are no deviations from the approved plan.
(3) Every application for renewal shall be submitted to the Government through the Executives Authority within three days before the expiry of the
approval.
In March 1993, the Draft Master Plan for Kodaikanal, which was pending for approval with the Government, was approved in G.O. Ms. No.
170 dated 4th March, 1993. The same was published as required by the provisions of the Tamil Nadu Town and Country Planning Act, in the
Gazette dated 6.3.1993. Thus, Kodaikanal came to be governed by the Master Plan as well as the Tamil Nadu District Municipalities (Hill
Stations) Building Rules, 1993. Earlier, the Rules known as ""The Multi-Storeyed and Public Buildings Rules, 1973"" and also the Rules known as
Hill Areas Special Building Rules, 1981"" had been framed u/s 191 and Section 303(1) of the District Municipalities Act. One of the questions
argued before us is whether the 1973 Rules ceased to be applicable to hill stations after the Rules of 1993 were framed.
Even in April 1993, the Petitioner filed Contempt Application No. 197 of 1993 to punish the Hotel for committing contempt by proceeding
with the construction of four to five additional floors in spite of the order of this Court referred to earlier, permitting construction only in accordance
with the sanctioned plan. When that application was pending, the Architectural and Aesthetic Aspects Committee constituted under chapter X-A
of the District Municipalities Act resolved in a meeting held on 29.7.1993 to recommend the rejection of the application filed by the Hotel for
sanctioning the revised plan. It is now in dispute that the appeal filed by the Hotel against the order of the Township rejecting the revised plan was
treated as an application under Chapter X-A and dealt with as such. The Committee resolved that the proposed plan involves large scale violations
of Building Rules and therefore, recommended for rejection. While communicating the resolution to the Secretary to Government, Municipal
Administration and Water Supply Department, the Director of Town and Country Planning, in Roc. No. 34010/93 - BS BA dated 11.8.93
pointed out that the proposed building violated the Development Control Rules, Multi-Storeyed and Public Buildings Rules, 1973, and the Tamil
Nadu District Municipalities (Hill Stations) Buildings Rules, 1993. The percentage of violation has also been noted therein. It is seen that in the case
of FSI (Floor Space Index) it is 182%, while there is a violation of Rule 11(3) of the Rules of 1993 to the extent of 304%. It is also pointed out
that there is no fire extinguishing system as required by Rule 18 of the Multi-Storeyed and Public Buildings Rules, 1973. It is seen from the file
produced by the Government that the concerned Department decided to circulate the file to the Minister for Local Administration for orders
whether the recommendation of the AAA Committee may be agreed to and the request of the Hotel for construction of seven floors may be
rejected. The Section Officer signed the note on 17.8.1993, the Under-Secretary and the Joint Secretary signed it on 19.8.1993. The Secretary
made an endorsement ""In view of gross violations, the request may be rejected"" and signed it on 24.8.1993. The file was forwarded to the
Minister and was kept pending for orders.
In the meanwhile, the Contempt Application was heard and after elaborate trial, the Court passed an order on 31.3.1994 holding that the
Hotel was guilty of Contempt of Court and imposed a fine of Rs. 2,000/-. The Court also gave the following directions:
(a) Respondents 3 and 4 shall not make any further construction in any part of the buildings above the ground and first floor, be it construction
work, maintenance work or any other type of finishing work.
(b) Respondents 3 and 4 shall not use the building except ground and the first floors (which according to the Respondents 3 and 4 is the first
basement floor at the ground level the second basement floor above the same) for any purpose, unless and until they got the 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 in the above terms.
The Hotel filed Contempt Appeal No. 6 of 1994 against the said order and the same is said to be pending. At that stage, the Minister for
Local Administration passed an order on 5.5.1994 on the Note file as follows:
It is a proposal for a Hotel Building at Kodaikanal Township. 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 in such that rear portion of the site is 50'' - 0"" below the access
road level. It is proposed to use these basement area for optimum use without increasing the 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.
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
clearance had been obtained.
On the writ petition by Palani Hills Conservation Council the Madras High Court observed and permitted the Petitioner to move for the
appropriate permission on appeal for construction of building.
The question now is to use the area below the building basement area in view of Contour conditions of the site, for optimum utility. The height of
the building proposed is less than 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, hi view of the very high cost of land, the use of site to its optimum
level, is also need to be considered and accepted.
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
ii) Necessary arrangements be made of the site for disposal of sewerage and sullage.
iii) Height of building should be restricted to 10 meters from the access road level.
iv) The Car Parking open should not be reduced in future.
The Minister signed it on 5.5.1994 and on the same day the Chief Minister has counter-signed it. There is an endorsement of the Joint Secretary
dated 12.5.94 that the Minister desired that orders on that should be issued immediately. Though the order wag issued on 13.5.1994 in G.O. Ms.
No. 126 and probably communicated to the Hotel, it was not brought to the notice of the Court or the Writ Petitioner. Getting scent of the same,
the Petitioner wrote to the Government on 30.5.1994 for a copy thereof. The Petitioner''s counsel issued a notice to the Secretary on 6.6.1994 for
production of the said order. As there was no response, the Petitioner filed the second Write Petition W.P. No. 13104 of 1994 for issue of a writ
of certiorarified mandamus to quash the said G.O. Ms. No. 126 and direct the Respondents to demolish the structure put up by the Hotel in
excess of the ground plus 1 floor limit. The Petitioner applied for dispensing with the production of the Government Order which was sought to be
quashed. As there was some difficulty expressed by the Registry in passing the papers, the Petitioner filed W.P. No. 12314 of 1994 for issue of a
mandamus to the State Government to provide the Petitioner with a copy of G.O. Ms. No. 126 dated 13.5.1994. That writ petition was ordered
on 19.7.1994 and the Government was directed to furnish the copy within one week from the date of receipt of the order. Thus, the Petitioner
obtained a copy of G.O. Ms. No. 126 on 25.7.1994. Thereafter, the second writ petition was numbered as W.P. No. 13104 of 1994. The writ
petition was admitted on 29.7.1994 and interim injunction was granted restraining the Hotel from constructing any further, In August 1994, the
Government filed a counter affidavit contending that the Government had the power to grant exemption to any builder and that the Government
was not bound by the recommendation made by the A.A.A. Committee. According to the Government, it was entitled to arrive at its own
conclusion. In the counter affidavit it is stated that the Government took note of the fact that Kodaikanal is a Tourist Resort which requires
development including the establishment of good hotels with all facilities which would cater to the need of various types of tourists and also the type
of hotel that was being put up in the premises and having due regard to the fact that there was no deterioration of scenic beauty or destruction of
environment and ecology, decided to relax the relevant Rules and grant permission to the Hotel. It has to be noted here that in the order passed by
the Minister on the Note file, there is no reference whatever to the need for developing tourism in Kodaikanal or the establishment of good hotels
with all facilities to cater to the needs of various types of tourists. Nor does the order make airy reference to environment and ecology. The order
merely says that it is considered that the use of basement floor does not interfere with the landscape of the site or its vicinity. We will address
ourselves to this aspect of the matter more at a later stage. The counter affidavit laid emphasis more on the tourism aspect in more than one place.
Incidentally, one feature of the said counter affidavit has to be adverted to at present. In paragraph 5, the following passage is found:
Ultimately orders were passed in Contempt Application No. 197/93 wherein this Hon''ble Court was pleased to make an observation to the effect
that it is open to the Government to satisfy itself about the claims made by the 3rd Respondent and passing appropriate orders in the matter. This
Hon''ble Court while passing the aforesaid order observed as follows:
If the 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. If the Respondents 3 & 4 satisfy the Government they can get the sanction from the Government. There is no bar for the
Government to grant sanction to the 3rd and 4th Respondents.
The affidavit proceeds to say that after the said orders in the contempt application, the claims of the Hotel were considered by the Government.
Significantly, the Note File circulated to the Minister does not make any reference whatever to the application for contempt or the orders thereon.
As pointed out earlier, the Contempt Application was pending when the Note File was signed by the Secretary and forwarded to the Minister with
a recommendation for rejection 24.8.1993. There is nothing in the file to show that the orders passed on the Contempt Application were brought
to the notice of the Minister officially by any person. Secondly, the portion of the counter affidavit extracted above purports to quote the order of
this Court in the Contempt application. The first part of the quotation beginning with the word ""If"" and ending with the word ""law"" is found in the
order of this Court and it is in a proper quotation. But, the second part of the quotation beginning with the word ""If"" and ending with the word
Respondents"" is found nowhere in the order of this Court. It is not known wherefrom the deponent of the affidavit, who is Deputy Secretary to
Government, Municipal Administration and Water Supply Department, got that passage. this Court had on several occasions pointed out that
affidavits filed by the Government Officials are not prepared with due care and caution and statements are made therein in a reckless and cavalier
fashion. This is one other instance where a high official of the rank of the Deputy Secretary to Government has signed an affidavit filed in this Court
without verifying the correctness of the same.
The Hotel filed a separate counter affidavit contesting the writ petition. On 28.9.1994 the Court passed an order in the Miscellaneous petition
that status quo must be maintained. On the same day, the petition filed by the Hotel to vacate the interim order was dismissed.
On 18th October, 1994 the two writ petitions were taken up for disposal. The Petitioner pointed out that the Government had no power to
pass an order of exemption u/s 217-Q with regard to a private building. After the Petitioner''s arguments were concluded, the Government took
adjournments. The matter was being adjourned periodically. On 9-11-1994, a Bill was moved in the Legislative Assembly to amend the District
Municipalities Act by amending Section 217-Q so as to provide for a power of exemption to the Government with regard to private buildings also.
That Bill was passed and the Amending Act viz., Tamil Nadu District Municipalities (Second Amendment and Validation) Act (No. 52 of 1994)
was passed and it received the assent of the Governor on 26.11.1994. It was published in the Gazette dated 28.11.1994. As per the amendment,
Section 217-Q empowered the State Government to exempt any building or class of buildings from all or any of the provisions of Chapter X or
Chapter X-A of the Act or relax any Rule made under the said chapters in respect of any building or class of buildings.
Section 3 of the said Act contains the validation Clause and it reads thus:
Notwithstanding anything contained in any law for the time being in force or in any judgment, 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 the rules made under Chapter X or Chapter X-A of the principal Act in respect of any buildings 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
Government Gazette shall for all purposes, be deemed to be and to have always been validly done, taken or issued in accordance with law, as if
Section 217-Q of the principal Act, as amended by this Act, had been in force at all materials times when such acts, proceedings or orders were
done, taken or issued.
When the matter came up before Court again on 2.12.1994, the Government took further time for arguments. It is seen from the file handed over
to the Court by the Government that the Additional Government Pleader wrote to the Secretary to Government on 2.12.1994 that the case had
been adjourned to 9.12.1994 and that a notification should be made u/s 113 of the Tamil Nadu Town and Country Planning Act and published in
the Gazette on or before 7.12.1994 and a copy of the same should be furnished to him to enable the conduct of the case. Pursuant to that, the
Secretary passes an order on 6.12.1994 in G.O. Ms. No. 317 that the appended Notification shall be published in the Gazette dated 6.12.1994.
The Notification is to the effect that the building constructed by Thiru Rakesh Mittal on S. No. 349(P), Bliss Villa Road, Kodaikanal is exempted
from the provisions of the Development Control Rules relating to commercial use zone side set back and Floor Space Index (FSI). The
Notification shall be deemed to have come into force from 13.5.1994. But, the Secretary to Government writes a letter on the same day i.e.,
6.12.1994 to Rakesh Mittal, the Municipal Commissioner, Kodaikanal and the Director of Town and Country Planning, Madras that an
amendment is issued to G.O. Ms. No. 126 dated 13.5.1994 substituting the following in para 1 of the said orders:
The Government after careful examination relaxes the provisions of the Development Control Rules relating to Commercial use zone side set back
and Floor Space Index ""FSI
for the expressions: ""The Government after careful examination relaxes Rules 1(a) and 1(b) of the Development Control Rules"". It is rather puzzling
that when the notification published in the Gazette purports to be a fresh Government Order with retrospective effect from 13.5.1994, the letter by
the Secretary to the parties referred to above reads differently that it is an amendment to the earlier G.O. No. 126. The hurry with which these
notifications have been issued without any thought being given thereto, is also evident from the note put up by the Housing and Urban Development
Department. In its note dated 13.12.1994 when the file was forwarded to it after the issue of the Notification, the following passage is found:
The Master plan for the Kodaikanal local planning area was approved in G.O. Ms. No. 170 Housing and U.D. dated 4.3.93. In the said
approved Master plan no Development Control Rules are incorporated, but only zoning regulations are incorporated as enabling provisions for
regulating developments within Kodaikanal local planning area. The hotel site in R.S. No. 349/pt is zoned for Commercial use zone in the land use
Schedule incorporated in Appendix-B of the said master plan, wherein construction of hotel is permissible provided that the heights of the building
shall not exceed 10 mts. or two floors irrespective of nomenclature like cellar, basement, Ground floor or first floor etc. whichever is less. In
Commercial use zone the maximum side set back requirement are 0.6 and 2.0M respectively; Further there is no provision under the Tamil Nadu
Town and Country Planning Act to publish notification u/s 113 of the said Act with retrospective effect.
The Secretary has made an endorsement.
MAWS is requested to send file to this dept. - prior to issue and not after issue.
Thereafter, the file was returned to M.A. & W.S. Department.
Thereafter, the Petitioner filed the third Writ Petition W.P. No. 20375 of 1994 on 8.12.1994 for issue of a Writ of certiorari to call for the
records in G.O. Ms. No. 317 dated 6.12.1994 and to quash the same. That was admitted and the Court passed an order on 12-12-1994 of
notice and interim stay.
The Petitioner has also filed W.P. Nos. 2504 of 1995 challenging the validity of the Amendment Act 52 of 1994 and W.P. No. 2836 of 1995
challenging the validity of Section 113 of the Town and Country Planning Act Though the said Writ Petitions were posted before us, both parties
agreed that they could be separated and heard later. The arguments before us were confined to these three writ petitions.
III. CONTENTIONS
In view of the subsequent developments during the pendency of the first Writ Petition W.P. Nos. 13231 of 1992, the later Writ Petitions
assume more importance and the decision therein will govern the decision in the first writ petition. According to the Petitioner, there is no doubt
now that the Hotel is guilty of raising a construction contrary to the sanctioned plan. Learned Counsel for the Petitioner contends that on the facts
now admitted and on the facts found by the Court in the order passed in Contempt Application No. 197 of 1993, it is evident that the Hotel having
obtained permission to construct two floors comprising a ground floor and first floor, has violated all the Rules and constructed a building
comprising seven floors. The attack against G.O. Ms. 126 dated 13.5.1994 is as follows: It is vitiated by total non-application of mind, which is
evident from the fact that it purports to relax Rules 1(a) and 1(b) of the Development Control Rules which have nothing to do whatever with
Kodaikanal. Those Rules are applicable only to Madras Metropolitan area. It is meaningless to Relax the said rules for the building of the Hotel in
Kodaikanal. Kodaikanal has its own Master Plan and the Government Order has not relaxed any of the Rules contained in the Master Plan. Nor
has it exempted the building from Rule 4 of the Tamil Nadu District Municipalities (Hill Stations) Building Rules, 1993.
Clause 8.6.1 of the Master Plan for Kodaikanal Town is mandatory in its terms, according to which the buildings shall be restricted to a ground
plus first floor construction; height per floor shall not exceed 4.5 meters internally or 5.0 meters externally and shall not be less than 2.5 meters.
The G.O. is not in furtherance of the objects of the statute which are evident from the preamble of the Amendment Act 58 of 1992 which
introduced Chapter X-A. The G.O. purports to relax Rules 11 and 18 of the Multi-Storeyed and public Building Rules, 1973. It does not relax
Rule 4, Clause (a) of which is in the following terms:
Any Construction, re-Construction, alteration or addition of or for a multi-storeyed building, shall be permitted only within the area approved for
the construction of multi-storeyed buildings in a Town Planning Scheme made under the Tamil Nadu Town Planning Act, 1920 or in a
Development Plan under the Tamil Nadu Town and Country Planning Act, 1971 or declared by a Special Resolution by the Council with the
approval of Director of Town Planning for such purpose and shall not exceed the maximum number of storeys or maximum height prescribed for
the individual area.
According to him, the contention that the Multi-Storeyed and Public Buildings Rules, 1973 and the provisions of the Master Plan are superseded
by the Rules of 1993 is erroneous. He invites our attention to the Proviso to Rule 11(2) of the Rules of 1993, according to which that Rule shall
not be applicable to the buildings for which permission is required to be taken under the Multi-Storeyed and Public Buildings Rules, 1973. Learned
Counsel also submits that the stand taken in the counter affidavit of the Government that the importance of Kodaikanal as a tourist Centre has been
taken into account is untenable. The Master Plan clearly says that the Commercial and tourist load should be within the capacity of the hill and
tourism through the provision of lodging and boarding facilities shall be within the carrying capacity of the hill.
It is further submitted that when the AAA Committee has recommended the rejection of the revised plan, it is not open to the Government to
accept the same without any further material on the basis of which it could differ from the Committee. Learned Counsel points out that no reason
has been given in the Government Order and, therefore, the exemption in favour of an individual is ex facie discriminatory and invalid.
Incidentally, Learned Counsel submitted that the Amendment Act 52 of 1994, in so far as it validates the previous orders of exemption, is really a
legislation for the benefit of one man.
Learned Counsel for the Petitioner cited rulings of Supreme Court in which various tests have been prescribed for adjudging the validity of an
administrative Order and submits that the present G.O. does not satisfy those tests. It is also his contention that the Petitioner had written to the
authorities to give a hearing in the appeal filed by the Hotel against the order of the Township rejecting the revised plan, but no such hearing was
given before the G.O. was passed and the G.O. is therefore, vitiated. It is next contended that G.O. Ms. No. 317 is on the face of it illegal as it has
been given retrospective effect. It is also stated that the G.O. does not save the building of the Hotel in so far as it contravenes the relevant building
Rules which are not referred to in either of the G.Os. It is also argued by Learned Counsel that it is necessary for the Hotel to obtain permission
from the Ministry of Environment and Forests, Central Government as per the Notification S.O. 60(E) dated 27-1-1994. Under that Notification,
all tourism projects between 200m-500 meters of High Water Line and at locations with an elevation of more than 1000 meters with investment of
more than Rs. 5 Crores, must get the clearance of the Central Government. It is pointed out that Kodaikanal is at an altitude of 2133 meters and
admittedly, the hotel project is of more than five crores in value. Learned Counsel also submits that the notifications are vitiated by mala fides, both
factual and legal. According to him, the Secretary who was opposing the grant of relaxation was transferred to another Department and a new
Secretary was brought in just before the order was issued, which proves the mala fides.
Learned Senior Standing Counsel for Central Government appearing for the Union of India, which is the 7th Respondent in the second Writ
petition and third Respondent in the third writ petition, has submitted that sanction of the Central Ministry has not been obtained for the building in
question and the construction is, therefore, illegal.
Learned Senior Counsel for the Hotel has advanced the following contentions:
The prayer in W.P. No. 13231 of 1992 is vague and meaningless. No useful purpose will be served by granting the prayer to ensure that no illegal
construction is put up by the Hotel. According to him, his client has not put up any illegal Construction. It is contended by him that the construction
for which the plan was sanctioned was a ground floor on road level and the first floor above it. It is submitted by him that the pillars on which the
ground floor and the first floor are raised are not illegal constructions and that the revised plan seeks only to construct basement floors below the
ground floor. Factually, he submits that the space below the ground floor is not even now filled up and he is awaiting only the sanction of the
revised plan to do so. The next contention of learned Senior Counsel is that as per the plan sanctioned by the Township, the ground floor abuts the
road on the road level and the first floor is above it.
The next contention of the Senior Counsel for the Hotel is that the AAA Committee is not concerned with the Building Rules or the violation
thereof and they are bound to consider only whether the scenic beauty and natural environment of the hill station are affected. In this case,
according to learned Senior Counsel, the Committee''s resolution rejecting the revised plan on the ground of large scale violation of Rules is
erroneous. It is argued that u/s 217-D, the Government has to be satisfied subjectively and once the Government is satisfied, it is not open to any
member of the public to raise objection thereto. It is stated that the Government is not bound by the views of A.A.A. Committee and it can come
to an independent conclusion.
The next argument of learned Senior Counsel is that the only remedy statutorily prescribed is to apply for review before Government u/s 217-
K and file a Revision to the High Court if that is not accepted. Consequently, there being a statutory efficacious remedy, the writ petitions are not
maintainable. It is then contended that the Petitioner is a society registered under the Tamil Nadu Societies Registration Act and by virtue of
Section 20 thereof, the Society can sue only by an officer authorised by the by-laws. In W.P. No. 13104 of 1994 the petition is filed on behalf of
the Society by a Member, who is not a member of the Executive Committee and who is not an officer authorised by the by-laws to file the writ
petition. Hence, the writ petition is not properly framed. It is next argued that there is no bona fide on the part of the Petitioner in filing a Public
Interest Litigation. It is really motivated to serve a collateral purpose, that is, to help a rival hotelier. It is next argued that G.O. Ms. No. 126 is
validated for all purposes by Act 52 of 1994 and it cannot be questioned in any court of law. Then it is contended that the Government Order is a
statutory order of administrative nature and even if some relevant materials are overlooked, the Order will not be vitiated. It is enough if the
materials referred to in the Order are relevant and it is not necessary that all the relevant materials should be taken into account. It is then argued
that there is no mala fide whatever, either factual or legal. At any rate no particulars are given to substantiate the allegations of factual mala fide. It is
contended that the Hotel has spent a huge amount of public money and in no case, demolition should be ordered by the Court. The Court should
strike a balance between economy and ecology and if no member of the public is aggrieved, the Petitioner who is not a resident of the locality
cannot claim to have been affected. The Hotel in question is the first Five Star Hotel in which there will be a Hot Water Swimming Pool. In those
circumstances, the court should not direct demolition thereof.
Learned Senior Counsel for the Government has contended that the Rules which have been relaxed by the G.O. are not really applicable as
they have been superseded by the Rules of 1993. According to him, neither the Development Control Rules nor the Multi-Storeyed and Public
Buildings Rules have any force with reference to Kodaikanal. It is contended that Section 217-D and Q read together will prove that the power of
exemption is entirely vested in the Government subject to the inbuilt limitation that the grant of licence will not result in the deterioration of scenic
beauty or destruction of the environment and eco system of the hill station. According to him, Chapter XA of the District Municipalities Act and the
Rules framed thereunder form a complete Code and supersede all other Rules. At the same time, learned Senior Counsel has chosen to contend
that if there is no provision in the Rules of 1993, the other Rules will apply. It is then contended by him that the Government is not bound by the
recommendation of the A.A.A. Committee and its power of exemption is overriding.
Another Senior Counsel appearing for the Hotel has, with our permission, submitted that the Notification issued by the Central Ministry does
not apply to the building in question, as according to him, three conditions, must co-exist, (1) the location is between 200m-500 meters of High
water line, (2) it is with an elevation of more than 1000 meters and (3) the investment must be of more than five crores of rupees.
After we reserved our judgment on 9-3-1995 at the conclusion of the arguments, the Hotel filed W.M.P. No. 6955 of 1995 in W.P. No.
20375 of 1994 and W.M.P. No. 6956 of 1995 in W.P. No. 13104 of 1994, on 21-3-1995. The matter was posted before us on 24.3.1995 and
a third Senior Counsel appeared for the Hotel and argued the petitions. The Miscellaneous Petitions are for taking into account three documents
filed therewith and reject the writ petitions on the ground that the Petitioner is guilty of not setting out true facts in the affidavits filed in support of
the writ petitions. In substance, the documents have been filed to show that Mrs. Tara Murali was not an Executive Committee Member as
claimed by her when she filed the writ petition and she was not authorised u/s 20 of the Societies Registration Act to represent the Society and file
the Writ Petitions. It is contended that the Petitioner having made false statements in the affidavits filed in the writ petitions, those writ petitions must
be dismissed without even going into the merits on that short ground.
This contention is met by Learned Counsel for the Petitioner as follows:
(1) Factually, Mrs. Tara Murali was co-opted as a Member of the Executive Committee on 28.5.1994 and she was competent to represent the
Society. The Executive Committee has been authorised by the by-laws to nominate any Member/Co-opted Member of the Committee to initiate,
prosecute and defend appropriate legal proceedings in the name of the Society. (2) Section 20 of the Societies Registration Act will not apply to
these writ petitions as they do not relate to the properties or the rights of the society. (3) It is not a litigation among the members of the Society or
between the Society and any of its members. The entire Society has approved of the action taken against a third party. (4) In a Public Interest
Litigation, the court is not trammelled by ultra-technical contentions as these.
IV DISCUSSION
The following points arise for considerations:
Is G.O. Ms. No. 126 dated 13.5.1994 valid?
Is it protected by Section 3 of the Tamil Nadu Act 52 of 1994 against any challenge in a court of law?.
Is G.O. Ms. No. 317 dated 6.12.1994 valid?
Is it necessary for the Hotel to get environmental clearance from the Central Government as per the Notification dated 27.1.1994 issued by the
Ministry of Environment and Forest?.
Are the Writ Petitions maintainable?
Are the prayers in the writ petition to be granted as such?
Point No. 1: At the outset it is necessary to have a clear perception of the facts. The attempt of the Senior Counsel for the Hotel has
throughout been to convince the court that the Hotel has not at any stage violated the Rules and it has always been its endevaour to construct the
building in accordance with the sanctioned plan. According to learned senior counsel, the plan which was approved by the Township Committee
was for a building with two floors above the road level. It is the specific case of the Hotel in this Court that when foundation was dug for the
purpose of constructing the building in accordance with the approved plan, there was a huge hollow space below the ground of a depth varying
from 6 meters to 18 meters and the cost of filling up that hollow space was prohibitive. It was, therefore, advised to erect very strong columns with
adequate deep foundation below the actual floor level of the hollow space to bear the weight of the construction. Thus, according to the Hotel, the
necessity for erecting strong columns with deep foundation was realised only after digging the foundation. It is the further case of the Hotel that the
idea of constructing basement floors below the ground floor was generated thereafter. This case is clearly false. Such a case was put forward for
the first time in the counter affidavit filed in this Court in the writ petition. We have already noticed that the plan filed by the Hotel was sanctioned
on 1.11.1991. Within three months thereafter, the application for sanction of a revised plan was submitted on 29.1.1992. In the letter
accompanying the said application it is only stated that the revised plan has been necessitated as the natural earth level of the site leaves the Hotel
with 20 to 50 feet of beam and column structure below the approved plan at different levels. There is no reference whatever to the discovery of the
so called hollow space after the digging of the foundation. We have already referred to the particulars contained in Appendix ""D"" to the initial
building application and a depth of 1.83 meters is said to be provided. Those particulars could not have been given in Appendix ""D"" without the
architect inspecting the land and taking note of all the relevant factors completely and thoroughly before drawing the plan. The nature of the soil
below the surface level would also have been tested, and if there was a hollow space ranging from 6 meters to 18 meters, it would have been
discovered at that time. The Rules which were in force at that time, viz., the Tamil Nadu Hilly Areas Special Building Rules, 1981 expressly
prohibited the use of a site consisting of made up soil as well as the site falling within the geologically weak zone notified by the District Collector
for construction of a building.
The story that there was such a hollow space and the natural earth level necessitated erection of 20 feet to 50 feet column and beam structure
is falsified by the contour plan filed by the Hotel along with its appeal to the Government. Before referring to the details in the contour plan, it must
be mentioned that the same was not produced along with the files by the Government. In fact, even for getting the relevant files we had to
repeatedly remind the Government Pleader more than thrice and the files were produced before us in instalments. But even in these the contour
plan was not found therein. We had to make a specific request to the Additional Government Pleader to get the contour plan and the other plans
filed by the Hotel along with its appeal and thereafter, they were brought to us. In view of the importance of the contour plan, we have caused the
Registry to xerox the same and keep a copy on the record. In the said copy we have marked the relevant points by suitably; lettering it. The line
ABCD is adjacent to Blissvilla Street while the line AEG is adjacent to Anthoniar Koil Street. The entire site inclusive of what is shown as drive-
way is marked as ABCDIMLKJGEA. Besides the contour lines in the map, the Hotel has drawn imaginary lines on its own which are marked by;
us as EF and GH. That they are not contour lines is evident from the fact that different levels are mentioned on the same line. According to the
contour plan, the topmost point of the site at ""A"" is 95.300 meters above Mean Sea Level. The bottom level at the end of 24 meters shown as ""E
is 89,890 meters and at the end of 42 meters, viz., ""G"", it is 89 meters above Mean Sea Level. The level of the topmost point in the land at the
centre marked as ""B"" is omitted to be mentioned. But, the level of the street near ""A"" is mentioned as 99.670 meters and near ""B"" as 98.755
meters. In the lines drawn by the Hotel, the bottom level of the land is shown as 89.55 meters at the end of 24 meters marked as ""N"" and 88.620
meters at the end of 42 meters marked as ""O"". Thus, even according to the contour plan, for length of 42 meters of the land, the difference in the
level between the topmost point and the bottom point in less than 6.5 meters. If that is so, the gradient is only between one in six and one in seven
and the angle of the slope is less than 9. No doubt, the land is not on the same level as the street, but below the road level; but in so far as the land
is concerned, the gradient is so small that it is almost a flat one. Further, the wide space between the contour lines shows that the slope is very
gentle. As per the plan submitted by the hotel, the length of the building is less that 45 meters. In the site plan filed initially, the outline of the
proposed building is shown is red. Though the east-west measurement is given as 102 feet 9 inches, the north to south measurement is not
mentioned therein. But a look at the plan shows that the north to south measurement of the building is around 150 feet, which is less than 45
meters. Beyond the building on the south of it the length of the open space is mentioned as 101 feet in the said plan. Thus, the natural earth level of
the space to be occupied by the proposed building does not warrant erection of columns and beams of 20 feet to 50 feet because even a column
at the lowest point of the land could only be of a height of six meters and odd. If a depth of 1.83 meters by way of foundation is added thereto, the
total will only be less than eight meters. That will be so if the original plan was for the purpose of constructing a building with two floors above the
road level. But, the original plan as submitted by the Hotel for approval was not for constructing two floors above the road level. There is no doubt
whatever that the plan was only for constructing two floors on the natural ground as it is. The first floor of the building will, to a small extent, project
above the road level. As per that plan, major part of the building will be below road level. In fact, the first floor plan shows clearly that the building
on ground level will be below the road and the first floor will be above the road level. There is also no reference whatever to the pillars and beams
in the said plans and if the Hotel had intended to construct two floors above the road level, it ought to have shown the pillars and the beams in the
plan.
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 Rules by getting sanction for construction of a building in accordance with the rules, but proceeding to construct a different building
in utter violation of the Rules, so that it could put forward a plea of fail accompli and avoid demolition. It is evident from the fact that it is within
three months from the date of the sanction of the original plan, the Hotel has come forward with a false case that the natural earth level demanded
construction of columns and beams of 20 feet to 50 feet. Even in the revised plan, the length of the proposed building north to south is less than 50
meters. We have already referred to the fact that the angle of the slope is less than 9, and the land is almost a flat one. The space to the south of
the building which is proposed to be kept open for the purpose of car park is of a length of about 35 meters north to south. According to the
contour plan, the height at the topmost point of the place marked as ''O'' is 88.620 meters and at the bottom point marked as ''K'' it is 81.915
meters. Thus, the difference in the height is again less than 7 meters to a length of 42 meters which means that the gradient is not steeper than 1 in
Again, the angle of the slope is less than 9�. When the Hotel has made a representation in its letter to the Township Committee that columns
and beams of 20 to 50 feet are necessitated, it is as if the proposed building is to extend over the entire land to a length of about 85 meters. The
height above the Mean Sea Level at the point ''K'' the farthest point of the site is about 14 meters less than the height at the topmost point of the
land on the road side viz., ''B'' If a building is to be constructed over the entire length, a column of about 15 meters height would be required at the
southern most point to have a floor of the same level as the road. But that is not the proposal. Even as per the revised plan, the north to south
length of the building is less than 50 meters. Hence the story that columns ranging from 20 to 50 feet height are required to be erected is absolutely
false.
The Hotel produced before us at the time of arguments a pith model of the building which was earlier produced before the learned judge who
decided the Contempt Application. We did not then have the contour map. After seeing the contour map, we find that the pith model shown to the
court does not represent the correct position as regards the gradient of the land.
Even while submitting the revised plan for sanction, the Hotel has proceeded to construct the building without waiting for the sanction. That
necessitated the filing of a suit by the Township Committee in the Court of the District Munsif, Kodaikanal for an injunction, followed by the filing
of the present writ petition by the Petitioner. Learned senior counsel for the Hotel has argued that even now the space below the ground floor,
which according to him, is on the road level has not been filled up and there are only columns and beams supporting the ground floor and first floor,
which are all above the road level. It is his submission that the space between the columns and beams is open. This is totally incorrect. The report
of the Commissioner appointed by the District Munsif, Kodaikanal in O.S. No. 78 of 1992, a copy of which has been filed before us by the Hotel
shows that the construction had been completed in more than five floors from the ground level. In Contempt Application No. 197 of 1993, several
photographs have been marked as Exhibits, which also show that the Hotel has constructed at least six floors from the ground level without
obtaining the sanction of the Township Committee. All along, the contention of the Hotel has been that it is constructing only the ground floor and
first floor above road level for which it had obtained approval. It is seen from the Note File of the Township Committee 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. No doubt, we are not
concerned with the question whether the Hotel is guilty of contempt for having raised such a construction, as an appeal is pending against the order
passed by the learned single judge in the Contempt Application. But certainly the question before us is whether the construction put up by the
Hotel is in accord with the sanctioned plan. We have no hesitation to answer that question in the negative and reject the factual submissions made
on behalf of the Hotel by learned Senior counsel.
The appeal preferred by the Hotel against the order of the Township Committee rejecting the revised plan was treated as an application for
permission under the provisions of Chapter X-A of the Tamil Nadu District Municipalities Act, on the introduction of the said Chapter by Tamil
Nadu Act 52 of 1994. On that footing, the A.A.A. Committee considered the same and recommended its rejection. When the file went to the
Minister, he treated it as an application for exemption u/s 217-Q of the said Act. We do not find any representation whatever on behalf of the
Hotel among the records praying for such exemption. The prayer in the appeal is only for grant of necessary approval. The contention therein is
that a plan for construction of ground and first floors above the road level having already been sanctioned, permission should be given for filling up
the open space under the said approved building. As stated already, the Committee found large scale violation extending to 182% in the matter of
F.S.I. and 304% in the matter of height of the building. But, 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 building. The order refers to the contour condition of the site and
optimum utility. It is said that in view of the very high cost of land, the use of site to its optimum level needs also to be considered and accepted.
The cost of site is totally irrelevant to the matter to be considered by the Government under Chapter X-A of the District Municipalities Act. The
order of the Minister is also based on the erroneous assumption that the rear portion of the site is also to be used for constructing the building. In
the second paragraph of the order it is stated that the contour and configuration of the terrain are such that the rear portion of the site is 50% below
the access road level and it is proposed to use that basement area for optimum use, without increasing the height of the building above road level.
The observation proves total non-application of the mind by the concerned authority to the records made available to him. If he had taken a look
at the plans he would have realised that the proposed building will be within a length of 40 meters and the building has nothing to do with the rear
portion of the site, which is beyond that and which is intended to be left as open space, even according to the revised plan. Thus, it is evident from
the minister''s order that he had neither applied his mind to the materials on record nor taken into consideration the relevant factors set out in
Section 217-C of the said Act. On the other hand, he has referred to an in relevant matter viz., the very high cost of land. The observation that the
use of basement floor does not interfere with the landscape of the site or its vicinity, is without any meaning. The authority has overlooked that the
proposed building will comprise seven floors, at least two of which will be admittedly above road level with the consequence of affecting the scenic
beauty in the vicinity and the landscape.
The non-application of mind is also evident from the following facts: The first set of rules relaxed in the G.O. are Development Control Rules
relating to side-set-back and F.S.I, in Commercial use Zone V. Though Learned Counsel for the Petitioner has at one stage argued that
Development Control Rules is applicable only to the Madras Metropolitan area and not to Kodaikanal, he has realised later in the course of
arguments that what is referred to in the G.O. is the Master Plan of Kodaikanal. The expression"" ""Development Control Rules"" is defined as the
Rules framed as part of Master plan prepared under the Tamil Nadu Town and Country Planning Act, 1971 in the Tamil Nadu District
Municipalities (Hill Stations) Building Rules, 1993 (hereinafter referred to as ""1993 Rules""), That definition is for the purpose of 1993 Rules. It is
obvious that the G.O. is referring to the provisions relating to side set-back and F.S.I. in the Kodaikanal Master Plan. The requirement in the
Master Plan for side set-back-is 2 meters, whereas the revised plan has provided only 1.88 meters. The violation is 6%. The requirement for
F.S.I. is 6 meters whereas the provision in the plan is 1.65 meters. Thus the extent of violation is 182%. Similarly, the G.O. refers to Multi
Storeyed and Public Building Rules 1973 (hereinafter referred to as ""M.S. & P.B. Rules""). Rule II requires 3 meters of open space around
whereas the plan provides only for 1.88 meters, the violation being 37%. Rule 18 provides for fire extinguishing system but the plan does not show
any provision thereof. It is contended on behalf of the Government as well as the Hotel that neither the Master plan nor the M.S. & P.B. Rules will
apply after the 1993 Rules came info force. According to them, the latter is a complete Code by itself and there is an implied repeal of all other
rules. Reliance is placed on the judgment of the Supreme Court in Ratan Lal Adukia and Another Vs. Union of India, . It is alternatively contended
that 1993 Rules are Special Rules and they prevail over the earlier Rules which are General. Reliance is placed on the judgment in P. Iya Nadar
Vs. State of Madras and Others, . But, neither of the contentions is acceptable. But before considering the validity of the same, we would like to
point out that the same is suicidal to their own case. If the G.O. purports to relax Rules which are not applicable to the locality, that also proves by
itself non-application of mind. But, as stated already, the contention is unsustainable. Rule 28 of the 1993 Rules excludes the application of the
Tamil Nadu District Municipalities Buildings Rules, 1972 and the Tamil Nadu Hilly Areas Special Buildings Rules, 1972 and the Tamil Nadu Hilly
Areas special Buildings Rules, (1981). The principle of expressio unius will apply in as much as there is no reference either to the Master plan
which is described as Development Control Rules in the G.O. or the M.S. & P.B. Rules. Further, the proviso to Rule 11(2) of the 1993 Rules
makes express reference to the M.S. & P.B. Rules. It reads thus:
Provided that this Rule shall not be applicable to buildings for which permission is required to be taken under the Multi Storeyed and Public
Building Rules, 1973.
The fact that the Master Plan is not superseded is also evident from the definition of Development Control Rules'' in Rule 2(v) of 1993 Rules. Rule
26 of the 1993 Rules sets out the matters which should be considered by the A.A.A. Committee while examining the applications for construction
of building. Sub-rule (11) enables the Committee to consider any other matter as are required for the preservation of hill ecology and environment.
Learned Counsel for the Government and the Hotel relied upon Section 217-O of the Tamil Nadu District Municipalities Act, but the Section gives
overriding effect to the provisions of the Chapter only with reference to provisions which are inconsistent therewith. Sub-section (2) of Section
217-O reads that, ""Save as otherwise provided in Sub-section (1), the provisions of this Chapter shall be in addition to, and not in derogation of
any other provisions of this Act"". The provisions contained in Section 217-C(v) (c) and (d) clearly prove that neither the Master Plan nor the M.S.
& P.B. Rules is jettisoned by the 1993 Rules. Hence, those Rules are applicable.
It is too well known that the purpose of preparing and publishing Master plan for a locality, and particularly a Hill Station is to maintain an
environmental balance. It is the duty of courts to uphold environmental laws and prevent the State and the citizens from upsetting the same by any
means. The Rules are framed with the object of preserving the nature''s gifts to the living beings such as air, earth, water and atmosphere and
protecting them against pollution and if lost those gifts cannot be replaced or replenished. Failure to protect the same causes irreparable harm not
only to the present generation but also the Posterity. That is why Articles 48-A and 51-A(g) were introduced. It has been held that the right to life
embodied in Article 21 of the Constitution contemplates environment of quality. There is no ground whatever in this case for relaxing the provisions
in the Master Plan particularly with reference to F.S.I. Large scale violation of F.S.I. in this country came to be noticed by the Supreme Court in
Pratibha Co-operative Housing Society Ltd. and another Vs. State of Maharashtra and others, and condemned in the following words:
We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and
such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of
occupiers and residents of multi-storeyed buildings.
In that case, the F.S.I. violation was found to be of more than 24,000 sq.ft. And the Court upheld the demolition of the eight floors of the building.
In the present case the violation is 182% as stated earlier. It is needless to say that any Government that ignores the sanctity of a Master plan and
relaxes the Rules without proper reasons is only laying the road to deterioration of environment and thus acts against public interest.
But unfortunately for the Hotel, the Government has not relaxed the entirety of the relevant provision. In the Master Plan in the provisions for
commercial zone, after prescribing the measurements for F.S.I., side set-back etc. some Rules are also set out. One such Rule is that the height of
the building shall not exceed 10 meters or two floors irrespective of nomenclature like cellar, basement, ground floor or first floor etc., whichever is
less. The height shall be reckoned from the natural ground level of the site. There is no relaxation in the G.O. of this requirement. When this was
pointed out to the Special Senior Counsel for the Government as well as the counsel for the Hotel, they started contending that all the Rules other
than the 1993 Rules are superseded. We have rejected that contention.
As regards M.S. & P.B. Rules, the violation is found to be 37% with reference to Rule 11. With reference to Rule 18, no fire extinguishing
system is shown in the plan. It is really surprising how the Minister and the Chief Minister sanctioned relaxation of Rule 18. For any Hotel, a fire
extinguishing system is an essential requirement and under no circumstances the same can be relaxed. The relaxation of the said requirement by
itself proves lack of application of mind on the part of the authority concerned. In fact, to get over the said difficulty, learned senior counsel for the
Hotel made an attempt to contend that the number of the Rule has been wrongly quoted by mistake, but the files do not show any such mistake. It
is found by the A.A.A. Committee that Rule 18 has been violated and the Minister magnanimously granted exemption from all the violated Rules.
There is also no reason whatever for relaxing Rule 11(3) of the 1993 Rules when the violation is to an extent of 304%. In order to get over this
difficulty, a contention is advanced that when the plan was submitted in April 1991, the Building Rules which prevailed at that time permitted the
construction of a building upto a height of 1 1/2 times the width of the street, and, therefore, the application was for a lawful construction, well
within the Rules. The contention is stated only to be rejected. The Hotel cannot blow hot and cold and say for one purpose that the 1993 Rules
prevailed over all other Rules after coming into force and for another purpose claim that the old Rules are satisfied and, therefore, the construction
is lawful.
A further contention is advanced that the A.A.A. Committee had no business to look into the various Rules relating to construction of the
building. According to Learned Counsel, the only function of the Committee is to see whether the proposed building will be detrimental to the
scenic beauty and natural environment of the hill station. According to him the Committee has acted beyond its jurisdiction in taking note of the
violation of the various Rules referred to in its resolution. There is no merit whatever in this contention. We have already referred to the relevant
provisions in Section 217-C of the Act and there is no doubt that the Committee has acted well within its limits in recommending the rejection of
the revised plan.
It is rightly contended by Learned Counsel for the Petitioner that when the A.A.A. Committee has after due deliberation recommended the
rejection of the plan, the Government cannot reverse the same without any other materials placed before it. The files do not disclose any other
material having been placed before the Government, apart from what was available to the A.A.A. Committee. Learned Counsel is also justified in
contending that the additional reason given in the counter affidavit filed in this Court which is not found in the Minister''s order that development of
tourism has been taken note of by the Government is an extraneous consideration and not a relevant factor. Even when the Master Plan has been
prepared, the details regarding tourist home and demand of bed-strength etc., have been taken into account and it is made clear that facilities for
the tourists shall be within the carrying capacity of the Hill. The Minister has referred to the increase in the cost of site which is totally irrelevant.
The reason for the increase in the cost of site is only because people are permitted to construct multi-storeyed buildings in utter disregard of the
Rules with a view to earn huge profits. The first object of the introduction of Chapter X-A in the District Municipalities Act as evident from the
preamble to the Amendment Act 58 of 1992 is to prevent unplanned and mushroom growth of buildings in the hill stations. But the Minister has
forgotten it.
Learned Counsel for the Petitioner has also submitted that the failure of the Government to hear the Petitioner when disposing of the appeal
filed by the Hotel has vitiated the order, as the Petitioner had already requested the Government to issue notice to it before deciding the appeal. In
the view we have taken on the facts of the case, we do not think it necessary to answer this question. We leave the same open.
Nothing more need be said to prove 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 has simply signed the file without entering any minute of 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 mind on the part of the Government.
Now we shall advert to the rulings referred to by counsel on both sides in which the relevant principles have been laid down. In P.J. Irani Vs.
The State of Madras, , the Court held that where the exemption granted is not of any class of buildings which would ex facie disclose a
classification, but the exemption is of a specified building owned by a particular person, then prima facie it would be discriminatory and when the
legality of the order is challenged, its intra vires character could be sustained only by disclosing the reason which led to the passing of the order.
In S. Pratap Singh Vs. The State of Punjab, it is pointed out that the court is not an appellate forum where the correctness of an order of
Government could be canvassed and the only question which could be considered by the Court is whether the authority vested with the power has
paid attention to or taken into account circumstances, events or matters wholly extraneous for the purpose for which the power was vested.
In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , it is held by a Constitution Bench that
when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be
supplemented by fresh reasons in the shape of affidavit or otherwise. In The The Registrar of Co-operative Societies, Trivandrum and Another Vs.
K. Kunjabmu and Others, the Court dealt with the purpose of a provision for exemption or relaxation. The Court pointed out that too rigorous
applications of some of the provisions of the Act may itself occasionally result in frustrating the very object of the Act instead of advancing the
same and it is to provide for such situations that the Government is invested with a power to relax the occasional rigors of the provisions of the Act
and to advance the object of the Act If that test is applied, the order of exemption on relaxation has to be made only when the object of the Act
will be frustrated by strictly enforcing the provisions thereof.
In Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another,
, the Court said:
Every activity of the Government has a public element in it and it must, therefore, be informed with reason and guided by public interest. Every
action taken by the Government must be in public interest; the Government cannot act arbitrarily arid without reason and if it does, its action would
be liable to be invalidated.
In Commissioner of Income Tax, Bombay and Others Vs. Mahindra and Mahindra Limited and Others, the Court said that the parameters of
the Court''s power of judicial review of administrative action and the grounds on which the Court can interfere with the same are well settled. After
referring to The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, the Court said that it is indisputably settled that if
the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the
authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified
interfering with the same. The Court quoted with approval a passage appearing at pages 285-86 in Prof. De Smith''s treatise Judicial Review of
Administrative Action, 4th edition, summarising the principles formulated by the Courts in that behalf. The relevant portion in the passage
underlined by the Court is in the following terms:
It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to
promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously.
In Indian Express Newspapers (Bombay) P. Ltd. v. Union of India AIR 1986 SC 515, it is held that the power to grant exemption should be
exercised in a reasonable way. The dictum of Lord Greens M.R in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948)
1 KB 223 as to what a ''reasonable way'' means has been quoted. It is sufficient to extract the following portion in the passage:
For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters
which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider.
In Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, The Court said that whenever a problem of ecology is
brought before it, the Court is bound to bear in mind Article 48-A of the Constitution, which enjoins that the State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life of the country and Article 51-A(g) which proclaims it to be the fundamental duty
of every citizen of India to protect and improve the natural environments including forests, lakes, rivers and wild life and to have compassion for
living creatures. The Court observed that when the question involves the nice balancing of relevant considerations, the Court may feel justified in
resigning itself to acceptance of the decision of the concerned authority. In the latter part of the judgment, the Court said that the reasons for the
decision of the authority could be gathered by looking at the entire course of events and circumstances of the case. The Court said that in such
cases the principles of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, will not apply. In the
present case, the question of balancing does not arise as the concerned authority has omitted, to consider relevant matters and taken into account
irrelevant matters. Learned senior counsel has contended that it is a question of balancing between economy and ecology but we do not accept the
said contention The preservation of ecological balance is absolutely necessary in the interests of the larger public, not only the residents of the area
but also the other citizens of the country.
In the Supreme Court Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, the Court has
reiterated that any arbitrary exercise of power by a public authority, whether or not it is in the nature of subordinate legislation, is liable to be
condemned as violative of Article 14 of the Constitution.
Both sides referred to the judgment of a Division Bench of this Court in Dwaraknath Reddy v. New India Maritime Agencies (1991)11 M.L.J.
118 and relied upon the same for their respective purposes. The question before the Division Bench was whether an order of the Government
granting exemption u/s 113 of the Tamil Nadu Town and Country Planning Act, 1971 was vitiated by total lack of application of mind to factors
germane and relevant to the policy and purpose of the Act. On the facts, the Bench upheld the validity of the Government Order. While doing so,
the case law on the subject was traced and the resultant position was summed up as follows:
Though it is desirable to disclose in express terms in the Order itself that the policy and purpose of the Act have weighed with the Government,
while granting the exemption, the order will not become illegal or ab initio void for want of such disclosure and it is permissible for the party
concerned to show aliunde that the order of exemption has not ignored the policy and purpose of the Act and on the other hand has adhered to it.
It would be a different matter if the provision itself enjoins the giving of recitals to that effect in the Order. Section 113 of the Act does not enjoin
the Government to set forth in the order of exemption, the reasons therefor.
Referring to the conditions imposed by the Government on the Order of exemption, the Bench observed that the same disclosed that there was
clear application of mind to the relevant factors. In the present case, we have already pointed out that the order in challenge proves total lack of
application of mind by the concerned authority. The ruling, does not help the Hotel in the present case as it was based on the facts of that case.
In U.P. Financial Corporation v. Gem Cap (India) Pvt. Ltd. AIR 1993 SC 1435, the Supreme Court reiterated that the High Court is not an
Appellate Authority under Article 226 of the Constitution of India over the administrative authority and warned that ignoring the self-imposed
constraints of writ jurisdiction would lead to confusion and uncertainty and the jurisdiction may become rudderless. The ruling has no application
here.
In Premium Granites and Another Vs. State of Tamil Nadu and Others, the Court held that the question of exemption or relaxation exhypothesi
indicates the existence of some provisions in the statute in respect of which exemption or relaxation is intended for some obvious purpose viz., to
mitigate unmerited hardship which could be caused by the strict enforcement of the provisions of the statute.
In Indian Nut Products and Others Vs. Union of India (UOI) and Others, , the court said that the satisfaction of a statutory authority for
exercising the statutory power has to be based on the existence of grounds mentioned in the statute and the same must be made out on the-basis of
relevant material. The Court also said that a person aggrieved by such action can question the satisfaction of the authority by showing that it was
wholly based on irrelevant grounds and amounted to no satisfaction at all.
In State of West Bengal, etc. Vs. Ashutosh Lahiri and others, the court said that it is well settled that an exceptional provision which seeks to
avoid the operation of the main thrust of the Act has to be strictly construed.
Bearing the above principles in mind, if the validity of G.O. Ms. No. 126 dated 13.5.1994 is tested, there can be no doubt whatever that it
does not satisfy any of the tests prescribed in the above rulings. On the other hand, it is vitiated by considerations which are not relevant or
germane to the objects of the legislation viz., Chapter X. A of the District Municipalities Act.
Learned senior counsel for the Hotel has been making some remarks derisively that there is no object for introduction of Chapter X-A as
contended by Learned Counsel for the Petitioner and the only purpose and effect of the said Chapter are to vest the power of sanctioning building
applications exclusively with the Government. We are unable to accept this contention. We have already referred to the Statement of Objects and
Reasons of the Tamil Nadu Amending Act 58 of 1992, which has introduced Chapter X-A in the District Municipalities Act. It is hardly necessary
for us to repeat the same here. We would, however, point out that the Committee which is constituted u/s 217-B is not only a High level
Committee but also an expert Committee. We have referred to the composition thereof as prescribed in Rule 26. A perusal of the preamble to the
Amendment Acts as well as the provisions in Chapter X-A read along with the Rules framed there under, leave no doubt in our mind that the
object of the amendment is to preserve the pristine purity of hill stations and maintain ecological balance. The impugned G.O. throwing over board
all the relevant matters set out in the Sections and the rules is without doubt illegal and invalid as it is arbitrary and based on irrelevant matters.
The allegations regarding factual malafides are hardly sufficient to be considered by the Court Obviously, the Petitioner was not aware that
orders have been passed by the Minister and approved by the Chief Minister. The Petitioner has rested content with reference to the change of the
concerned Secretary just before the issue of the G.O. That is not enough to warrant an enquiry by the Court into factual malafides. We have now
found that the G.O. is vitiated by legal malafides in as much as it is a result of total failure to consider relevant matters and consideration of
irrelevant matters.
Point No. 2: A contention is urged on behalf of the Hotel as well as the Government that Section 3 of the Tamil Nadu Amendment Act 52 of
1994 by which Section 217-Q is amended, bars any challenge to the validity of G.O. Ms. No. 126. We have already referred to the fact the
Section 217-Q was amended during the pendency of these writ petitions after the arguments of Learned Counsel for the Petitioner had concluded
and when the counsel for the Government was repeatedly taking adjournments. Learned Counsel for the Petitioner contends that the Act is itself
introduced for the benefit of one individual viz., the Hotel, and ex facie mala fide. As pointed out already, the question of validity of legislation does
not arise for consideration in these cases. We have referred to the fact that the writ petition in which the said Act is challenged has been, with the
consent of both parties, excluded from the purview of this hearing. However, we would like to point out one interesting feature in the Additional
Counter Affidavit filed by the Deputy Secretary to Government in W.P. No. 13104 of 1994 on 30-11-1994. In paragraph 4 it is stated;
The Government have since passed an Act to amend the District Municipalities Act, 1920 (Tamil Nadu Act 52 of 1994) in and by which Section
217-Q of the aforesaid Act has been substituted....
We have not so far heard of Government passing an enactment. In our opinion it is only the Legislature which can pass an enactment. Probably,
the Deputy Secretary has inadvertently blurted out the truth that it is the Government which has passed the Amendment Act and not the
Legislature, perhaps in view of the fact that the ruling party has such an absolute majority in the Assembly. It may be a legal conundrum for
Constitutional experts to ponder over whether in such cases the legislative enactments could be treated on par with executive orders; we would not
dilate on this subject any further, but pass on to the question argued before us.
Section 3 of the Amendment Act is the Validation provision. We have already extracted the section in Paragraph 15 earlier. The contention of
the Respondents is based on the expression ''for all purposes''. According to Learned Counsel, when the Section uses that expression it means that
the validity of the exemption orders passed between 9.12.1992 and the date of publication of the said Act in the Gazette cannot be questioned in
any Court of law. We are unable to accept this contention. The effect of the validation provision is only that Section 217-Q, as amended, must be
deemed to have been in existence from 9-12-1992 when Chapter X-A was introduced. In other words, it means that no person shall contend that
when the order of exemption was made, Section 217-Q in its unamended form did not confer any power on the Government to grant such
exemption. The question of validity of the G.O. must be considered as if the Government had the power of exemption u/s 217-Q from 9-12-1992.
It will not, therefore, prevent any person from contending that the order of exemption is vitiated by irrelevant considerations and by lack of
application of mind even though the Government had the power to exempt. Hence, it is open to this Court to consider the question whether the
G.O. is valid or not, as if Section 217-Q in the amended form was in existence from 9-12-1992. Hence, we reject the contention of Learned
Counsel for the Hotel and the Government.
Point No. 3: It is conceded by the Special Senior Counsel for the Government and the Senior Counsel for the Hotel that G.O. Ms. No. 317 is
bad as it purports to act retrospectively. It is well settled that power to pass orders with retrospective effect has to be conferred by the Legislature.
Vide (1) Mr. Azmat Azim Khan Vs. Board of Revenue, Uttar Pradesh, Allahabad and Others, and (2) Bakul Cashew Co. and Others Vs. Sales
Tax Officer Quilon and Another, Section 113 of the Town and Country Planning Act, under which G.O. Ms. No. 317 purports to have been
issued, does not empower the Government to issue notification with retrospective effect. However, learned Special Senior Counsel for the
Government has contended that the notification can be severed into two parts, one exempting the building from the provisions of the Development
Control Rules and the other, giving retrospective effect thereto. According to him, while the first part is valid prospectively, the second part is
invalid. He has placed reliance on the judgment of the Supreme Court in R. Jeevaratnam Vs. The State of Madras, , in which the Court had to
consider the validity of an-order of dismissal with retrospective effect. The Court held that the order was in substance an order of dismissal as from
the date of the order with the super-added direction that the order should operate retrospectively as from an anterior date and that the two parts of
the order are clearly severable. We have grave doubt whether the said principle can be imported in this case in support of G.O. Ms. No. 317.
Even assuming it to be so, the order is vitiated by its being arbitrary and against public interest. Here again, there is no application of mind arid
there could not have been any as evident from the facts set out in paragraph 15 of this judgment earlier. It is not necessary for us to add anything to
what is stated in the note dated 13.12.1994 made in the file by the Housing and Urban Development department which has been extracted in the
said paragraph. It is crystal clear that the G.O. has been passed only to get over an inconvenient situation faced by the Government in the course of
the hearing of these writ petitions. We hold that G.O. Ms. No. 317 dated 6.12.1994 is not valid.
Point No. 4: We have already referred to the notification issued by the Ministry of Environment and Forests on 27-1-1994, according to
which all tourism projects between 200m-500 meters of High Water Line and at locations with an elevation of more than 1000 meters with
investment of more than Rs. 5 crores requires environmental clearance from the Central Government. Admittedly, no such clearance has been
obtained by the Hotel in this case. It is contended by learned Senior Counsel for the Hotel that the Notification does not apply. According to him,
all the three conditions must be satisfied for the application of the Notification. In other words, it is contended that (1) the project must be between
200M - 500 meters of High Water line, (2) it must be with an elevation of more than 1000 meters and (3) the investment is of more than Rs. 5
crores. The contention is, to say the least, bordering on absurdity. No location which is between 200m - 500 meters of High Water Line can at the
same time be at an elevation of more than 1000 meters. As rightly pointed out by Learned Counsel for the Petitioner, Kodaikanal is at a height of
2133 meters above Mean Sea Level and the investment in this case being admittedly one of more than Rs. 5 Crores, it is necessary for the Hotel
to get the clearance of the Central Government.
Point No. 5: The contention of Learned Counsel for the Hotel under this head are three fold, (a) an effective alternative statutory remedy is
available to the Petitioner and the writ petitions ought not to have been entertained; (b) the writ petitions are not maintainable as the Petitioner
society is not represented by an authorised person. Besides, a Society cannot maintain a Public Interest Litigation, (c) There is no bonafide on the
part of the Petitioner in filing these writ petitions. They are really motivated. According to him the Society is itself a bogus one and the writ petitions
have been engineered by a rival hotelier. Now we shall consider the three aspects one by one.
(a) It is the contention of Learned Counsel that Section 217-K provides for review of any order of the Government and a further revision to the
High Court from the order after such review. It is contended that the only course open to the Petitioner is to file a review petition before the
Government u/s 217-K and if aggrieved by an order on that petition, to file a revision u/s 217-L in this Court. There is no merit in this contention.
The Petitioner was not a party to the application filed by the Hotel before the Government. Though the Petitioner had requested the Government to
issue a notice in the appeal, the latter had not done so. Further, the Government chose to treat it as an application for exemption. It is highly
doubtful whether the Government would have entertained any application for review of the order dated 13.05.1994 at the instance of the
Petitioner, Secondly, the first writ petition filed by the Petitioner has already been pending in this Court even before any order was passed by the
Government in the Appeal. Thirdly, an alternative remedy is not always a bar to the exercise of jurisdiction under Article 226 of the Constitution.
There is no absolute rule preventing the court from entertaining a writ petition by exercising its prerogative under the extra-ordinary jurisdiction.
Vide (1) A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, and (2) Dr (Smt.) Kuntesh
Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others, . In the facts and circumstances of this case, the rulings in
Thansingh Nathmal and Others Vs. A. Mazid, Superintendent of Taxes, and Tirlok Singh and Co. Vs. District Magistrate, Lucknow and Others,
relied on by Learned Counsel for the Hotel do not apply.
(b)(i) The next objection is that a society registered under the Societies Registration Act is not a legal person and it cannot maintain writ petitions.
Reliance is placed on the following judgments. (1) Board of Trustees, Ayurvedic and The Board of Trustees, Ayurvedic and Unani Tibia College,
Delhi Vs. The State of Delhi and Another, , (2) Daman Singh and Others Vs. State of Punjab and Others, and (3) All India Lawyer''s Union, Tamil
Nadu v. Union of India and 2 Ors. 1992 2 L.W. 577. The observations made in those cases cannot be torn out of context and used here to defeat
these writ petitions. Learned Counsel for the Petitioner has drawn our attention to the judgment of the Supreme Court in D.S. Nakara and Others
Vs. Union of India (UOI), wherein it has been held that a society registered under the Societies Registration Act can maintain a writ petition. Our
attention is also drawn to the judgment of the Supreme Court in Rural Litigation and Entitlement Kendra Vs. State of U. P., in which it has been
held that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before
the Court. As we have held that the Government had acted against public interest in passing the two orders under challenge, granting exemption to
the Hotel from the operation of the relevant Rules, we cannot throw out the writ petitions on hyper-technical grounds.
(ii) The next limb of the argument is that the second writ petition has been filed by a person who is not entitled to represent the society. That writ
petition has been filed by the society represented by its Member Mrs. Tara Murali. The contention is that u/s 20 of the Tamil Nadu Societies
Registration Act, 1975, the Committee or any Officer of the Registered Society authorised in this behalf by its bylaws may bring or defend or
cause to be brought or defended, any action or legal proceeding touching or concerning any property or claim of the registered society and may
sue or be sued in respect of any such property right or claim. In our opinion, this Section will not apply to the present writ petitions as they do not
relate to any property, right or claim of the society as such. This is a Public Interest Litigation brought for the purpose of protecting the larger
interest of all the residents of the locality, nay, the larger interest of the entire country and the Posterity.
(iii) We have referred to the fact that W.M.P. Nos. 6955 and 6956 of 1995 were filed by the Hotel after we reserved orders on 09.03.1995 and
we heard the petitions on 24.03.1995. In both the petitions, the contention is that some of the statements made in the affidavits filed by Mrs. Tara
Murali in support of the writ petitions as regards her membership of the Executive Committee of the Society on the relevant dates as well as the
resolutions passed by the Society are false and, therefore, the writ petitions must be dismissed without being considered on merits. According to
learned Senior Counsel for the Hotel, the jurisdiction under Article 226 of the Constitution of India should not be exercised in favour of a person
who has come to court with unclean hands inasmuch as false affidavits have been filed.
There is a serious contest on the facts as regards allegations made by the Hotel with regard to the membership of Mrs. Tara Murali in the
Executive Committee as well as the resolutions passed by the Society. Some documents have been filed on both sides in support of their
respective contentions. On a perusal of the documents, we are of the opinion that the allegations of the Hotel that false statements have been made
by Mrs. Tara Murali in her affidavits, are not established. In any event, we have now held that Section 20 of the Tamil Nadu Societies Registration
Act does not apply and the Society can be represented by any member thereof, even if such member is not one of the persons contemplated by
Section 20 so long as there is no objection whatever by any other member of the Society to the institution of the proceedings.
(c) It is next argued that the entire litigation is motivated and engineered by a rival hotelier. It is submitted that the Hotel is being persecuted by the
Petitioner and this is not a bona fide Public Interest Litigation. It is contended that the writ petitions have been filed at the instance of Hotel Carlton,
a Delux Hotel at Kodaikanal, as the Landscape consultant for the said Hotel by name Veeraraghavan was the President of the Society at one time.
It is also submitted that the Petitioner has challenged some similar constructions, but settled those matters. It is further argued that there are a
number of multi-storeyed constructions in Kodaikanal without planning permission and the Petitioner has not chosen to take any action against
them. According to Learned Counsel, the above circumstances prove that the present litigation is mala fide and not a genuine Public Interest
Litigation. The allegations made by the Hotel are suitably answered by the Petitioner in the reply affidavit. In paragraph 6 of the reply affidavit it is
stated that Veeraraghavan was never a landscape consultant, but Mrs. Veeraraghavan was such a consultant, but the association with Hotel
Carlton ended in March 1987. It is also contended that there are 200 members in the Petitioner society; several are eminent in their respective
fields of Industry, business, profession, social welfare, plantation formation etc., and it is not possible for a single person to influence the policies
and priorities of the society. It is also pointed out that Mr. Veeraraghavan against whom allegations are made by the Hotel is a retired Senior
I.A.S. Officer. It is worthwhile in this connection to extract paragraph 7 of the said reply affidavit, which contains a complete answer to the
aforesaid contentions of the Hotel:
Regarding the allegations made in para 3(1). I wish to state that while it is true that PHCC initiated proceedings before this Hon''ble Court in W.P.
No. 4257/88 regarding the pollution of Kodaikanal Lake by the Sterling Resorts, it is false to state that for apparent reasons the Council settled the
matter with M/s. Sterling Resorts. It is with some justifiable pride that I wish to point out that PHCC was consulted by the Chairman of the
Township Committee on the Draft Master, plan and lent its expertise and filed representations before the High Power Committee on Kodaikanal
Lake Pollution which representation dealt with Hotel Zion, Hotel Astoria, Hotel Paradise Inn, Hotel Tamil Nadu, Hotel Kodai International and
Hotel Carlton. The Petitioner Society is vitally interested in the preservation of the ecological integrity and environment, not only of Kodaikanal
Township but of entire Palani Hills, which extends to over 2000 sq.kms. Among the various activities of the Society are tree planting, running of
several nurseries for supply of seedings to fanners, preservation of flora and fauna, sustainable development of the Palani Hills Villages, including
analysis of drinking water sources, bee-keeping, women''s welfare and environmental education. These activities which cover a wide range and
geographical area are managed with great difficulty under severe constraints, both in terms of Finance and volunteer resources. The PHCC is
neither a Government agency nor does it have a surfeit of funds to litigate against every violator of Building Regulations, such as it would like to.
The very fact that the Respondent has pointed his finger at other violators, is an indication of the performance of the first and second Respondents
and does not cast any aspersions on the efforts of PHCC. Two major offenders have been arraigned before this Hon''ble Court, viz., the present
Respondent who had put up 7 unauthorised floors and M/s. Fernhill Hotels which had put up a hotel without any sanctioned plan in W.P. Nos.
13231/92 and W.P. No. 6947/93. The appropriateness of this action is borne out by the fact that these violators of Building Rules have flouted
with impunity the orders of this Hon''ble Court and have been adjudged guilty of Contempt of Court in Contempt Application No. 197/93 and
278/93 respectively.
Even if there are other constructions in violation of the Rules and the Petitioner has not instituted proceedings against them, these writ petitions
cannot be dismissed on that ground as contended by the Hotel. It is for the concerned Local Authority to take appropriate action against such
violations and the Government should take care not to encourage the violations by interfering with the action of the Local Authorities. We will issue
a suitable direction in this judgment to the Township Committee in this regard.
We do not find any merit whatever in any of the contentions urged by the Hotel in this regard. In our opinion, the Petitioner has bona fide
initiated this litigation and rightly brought to the notice of the Court the flagrant violation of the Rules and the way in which the Government has
thrown the Rules over-board. The ruling in Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, relied on by the Hotel has
no relevance in this case. Nor does the judgment of the Supreme Court in Rajatha Enterprises Vs. S.K. Sharma and Others, cited by Learned
Counsel for the Hotel apply here. On the facts of that case it was found that there was no evidence of public safety being in any manner
endangered or the public being inconvenienced by the reason of the construction of the building. In the present case, we have already found that
the Government has acted against the public interest and in utter disregard of the main object of Tamil Nadu Act 52 of 1994. Hence, we hold that
all the three writ petitions are maintainable in law.
Point No. 6: It is contended by Learned Counsel for the Hotel that a huge amount has been spent for constructing the building and financial
arrangements have already been entered into with others, including a Nationalised Bank, by the Hotel, which is a Company registered in 1990 with
a share capital of Rs. 24,00,000/-. It is submitted that the Court should not order demolition as the building has already been constructed and
demolition thereof would only mean a national waste. It is also submitted that the Court in its discretion should refrain from ordering demolition of a
valuable building. According to Learned Counsel, the Hotel will be the first of its kind in the whole of the country, as it is proposed to have a hot
water swimming pool. Reliance is also placed on the judgments of the Supreme court in (1) Corporation of Calcutta Vs. Mulchand Agarwalla, (2)
Rajatha Enterprises Vs. S.K. Sharma and Others, and (3) Raghubir Singh and Chatter Singh Vs. Union Territory of Chandigarh and others, .
None of the rulings referred to above will help the Hotel in this case, as we have found that from the inception the intention of the Hotel is to
deceive the Local Authority by obtaining sanction for a lawful construction and proceedings to construct unlawfully in violation of the Rules with a
view to get ex post facto sanction. It has also been the attempt of the Hotel to deceive the Court by putting forward false pleas. In our opinion, this
is a fit case in which the building should be demolished in view of the flagrant violation of the Rules. The argument that the first writ petition has
become ineffective and no purpose will be served by issuing a mandamus directing the authorities to ensure that no illegal construction is put up by
the Hotel, is untenable. The prayer in the first writ petition has not stopped there. There is also a prayer for a consequential direction that no
electricity or water supply is given or occupancy is permitted in the said building, if any part of it is built in violation of the Tamil Nadu Hilly Areas
Special Building Rules, 1981 and the Kodaikanal Master Plan. There is also a prayer for a direction to demolish the illegal construction. In our
opinion, the building should be demolished to the extent to which it is contrary to the plan sanctioned by the Township Committee. In other words,
there shall be only two floors from the natural ground level as originally planned. Till the building is reduced to such a state so as to be in
accordance with the sanctioned plan, there shall be no supply of electricity or water to any part of the building.
CONCLUSION
In (he result, all the three writ petitions are allowed in the following terms:
(1) A writ of Mandamus shall issue directing Respondents 1 and 2 in W.P. No. 13231 of 1992 to demolish the building constructed by the Hotel
to the extent to which it is contrary to the plan sanctioned by the second Respondent on 01.11.1991. Respondents 1 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 plan submitted by the hotel for sanction
in April, 1991. The remaining part of the building shall be demolished.
(2) It is necessary for the Hotel to obtain environmental clearance from the Central Ministry.
(3) Till the demolition as aforesaid and till obtaining clearance of the Central Ministry, there shall be no supply of electricity or water to the Hotel
and no occupancy shall be permitted in the building.
(4) The second Respondent-Township Committee is hereby directed to investigate all the cases of constructions in Kodaikanal erected in
contravention of the Rules and take appropriate action in accordance with law against the violators within a period of three months from this date.
(5) G.O. Ms. No. 126, Municipal Administration and Water Supply, dated 13.05.1994 is quashed.
(6) G.O. Ms. No. 317, Municipal Administration and Water Supply, dated 6th December, 1994 is quashed.
(7) The Petitioner is entitled to its costs in W.P. No. 13231 of 1992 against Respondents 3 and 4. Counsel''s fee Rs. 5,000/-.
(8) The Petitioner is entitled to costs in W.P. 13104 of 1994 and 20375 of 1994 against the first Respondent therein. Counsel''s fee Rs. 2,500/-in
each of the said writ petitions.
(9) W.M.P. Nos. 6955 and 6956 of 1995 are dismissed. There will be no order as to costs.
Before parting with the case, we would like to remind the Government of the wise words of the great Saint Tiruvalluvar, in the verse:
Behold the king who does not oversee his administration everyday and remove the irregularities therein; his sovereignty will wear away day by
day.""--Translation by Sri V.V.S. Aiyar).
In this case the Government has exempted the law-breaker from the operation of the law which would tantamount to cutting a man to the size of a
cot. Of the disastrous consequences we need not say, the great Saint has said it two thousand years ago.