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

- **Citation:** [1995] Supp. 3 S.C.R. 588
- **Court:** Supreme Court of India
- **Decided:** 1995-09-13
- **Case number:** Civil Appeal No. 8223 of 1995
- **Bench:** B.P. Jeevan Reddy, M.K. Mukherjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pleasant-stay-hotel-and-anr-v-palani-hills-conservation-council-and-ors-13270
- **Pages:** 20

## Headnote

Tamil Nadu District Municipalities Act, 1920:
Sections 217-C, 217-K and 217-Q(As amended by Act 52 of 1994).
c
Tamil Nadu Dist1ict Municipalities (Hill Station) Building Rules, 1993:
Rule 26.
Building Plan-Exemption from Rules-Hotel-Construction at hill station-Sanction of Plan for two storeys-Revised plan for additional construcD tion-Rejection by Municipal Committee-Construction notwithstanding
rejection of revised plan-Minister and Chief Minister granting exemption-Exemption orders-Quashing of by High Court-Findings of High Court
E
~ based on mate1ial on record-lnterf erence with by Supreme Court held not
justified-Matter remitted to High Court for clarification of its order regarding
demolition--Observations against Minister and Chief Ministe1'-lfeld factually correct and necessary for disposal of cases.
The Kodaikanal Township Committee sanctioned a plan submitted
by the appellant for construction of a hotel building comprising of two
floors at Kodaikanal. A revised plan submitted for additional construction
F
on the ground of structural necessity was rejected by the Committee
because the proposal to construct more than two floors was against clause
8.6.1 of the Master Plan Rules. Aggrieved by the said rejection the hotel
preferred appeal to the Government
of Tamil Nadu. However, not·
withstanding such rejection additional floors of hotel building were constructed in violation of the sanctioned plan and provisions of the Tamil
G Nadu District Municipalities Act, 1920. Palani Hills Conservation Council,
respondent herein, a society formed with the objert of preserving and
protecting hills in and around Kodaikanal, filed a writ petition in the High
Court seeking directions of the State Government and the Municipal
Committee to ensure that no illegal construction was put up by the hotel
H and the illegal construction already made be demolished. The High Court
588
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STAY HOTEL v. PALA.NI HILLS CONSERVATION COUNCIL
589
passed an interim order restraining the respondents from making conA
struction in violation of the sanctioned plan with liberty to move the
competent authority for appropriate permission. Meanwhile pursuant to
the amendments introduced in the 1920 Act the appeal preferred by the
Hotel against the order of Committee rejecting revised plan was considered by the Architectural and Aesthetic Aspects Committee which B
recommended to the Government that the application for revised plan
shall be rejected in view of large scale violation of Building Rules. Consequently the file was sent to Minister for Local Administration with endorsement of Secretary made thereon to reject the plan for construction of
extra floors. While the file was awaiting disposal by the Minister the High
Court, on an application moved by the Respondent-Council, held the C
appellant guilty of contempt for disobeying the High Court's order by
proceeding with construction in violation of the sanctioned plan. However,
overruling the recommendation of the Architectural and Aesthetic Aspects
Committee and that of the Secretary, the Minister for Local Administration passed an order stating that the request of the Hotel may be conD
sidered and necessary exemption from the violated rules may be granted
subject to certain conditions. On the same day the Chief Minister endorsed
the note of the Minister and consequently Government Order No. 126
dated May 13, 1994 was issued in accordance with the recommendations
of the Minister. The Palani Council filed a second writ petition for quashing the order and for issuing of directions for demolition of the structures E
put up by the Hotel beyond ground and first floors. The State Government
contested this petition contending that it was not bound by the recommendations of Architectural and Aesthetic Aspects Committee and that being
Licensing Authority it was entitled to arrive at its own conclusions.
F
During the pendency of this writ petition, Tamil Nadu District
Municipalities (Second Amendment and Validation) A

## Text

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A
PLEASANT STAY HOTEL AND ANR.
v.
PALANI HILLS CONSERVATION COUNCIL AND ORS.
. SEPTEMBER 13, 1995
B
(B.P. JEEVAN REDDY AND M.K. MUKHERJEE, JJ.)
Tamil Nadu District Municipalities Act, 1920:
Sections 217-C, 217-K and 217-Q(As amended by Act 52 of 1994).
c
Tamil Nadu Dist1ict Municipalities (Hill Station) Building Rules, 1993:
Rule 26.
Building Plan-Exemption from Rules-Hotel-Construction at hill station-Sanction of Plan for two storeys-Revised plan for additional construcD tion-Rejection by Municipal Committee-Construction notwithstanding
rejection of revised plan-Minister and Chief Minister granting exemption-Exemption orders-Quashing of by High Court-Findings of High Court
E
~ based on mate1ial on record-lnterf erence with by Supreme Court held not
justified-Matter remitted to High Court for clarification of its order regarding
demolition--Observations against Minister and Chief Ministe1'-lfeld factually correct and necessary for disposal of cases.
The Kodaikanal Township Committee sanctioned a plan submitted
by the appellant for construction of a hotel building comprising of two
floors at Kodaikanal. A revised plan submitted for additional construction
F
on the ground of structural necessity was rejected by the Committee
because the proposal to construct more than two floors was against clause
8.6.1 of the Master Plan Rules. Aggrieved by the said rejection the hotel
preferred appeal to the Government
of Tamil Nadu. However, not·
withstanding such rejection additional floors of hotel building were constructed in violation of the sanctioned plan and provisions of the Tamil
G Nadu District Municipalities Act, 1920. Palani Hills Conservation Council,
respondent herein, a society formed with the objert of preserving and
protecting hills in and around Kodaikanal, filed a writ petition in the High
Court seeking directions of the State Government and the Municipal
Committee to ensure that no illegal construction was put up by the hotel
H and the illegal construction already made be demolished. The High Court
588
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STAY HOTEL v. PALA.NI HILLS CONSERVATION COUNCIL
589
passed an interim order restraining the respondents from making conA
struction in violation of the sanctioned plan with liberty to move the
competent authority for appropriate permission. Meanwhile pursuant to
the amendments introduced in the 1920 Act the appeal preferred by the
Hotel against the order of Committee rejecting revised plan was considered by the Architectural and Aesthetic Aspects Committee which B
recommended to the Government that the application for revised plan
shall be rejected in view of large scale violation of Building Rules. Consequently the file was sent to Minister for Local Administration with endorsement of Secretary made thereon to reject the plan for construction of
extra floors. While the file was awaiting disposal by the Minister the High
Court, on an application moved by the Respondent-Council, held the C
appellant guilty of contempt for disobeying the High Court's order by
proceeding with construction in violation of the sanctioned plan. However,
overruling the recommendation of the Architectural and Aesthetic Aspects
Committee and that of the Secretary, the Minister for Local Administration passed an order stating that the request of the Hotel may be conD
sidered and necessary exemption from the violated rules may be granted
subject to certain conditions. On the same day the Chief Minister endorsed
the note of the Minister and consequently Government Order No. 126
dated May 13, 1994 was issued in accordance with the recommendations
of the Minister. The Palani Council filed a second writ petition for quashing the order and for issuing of directions for demolition of the structures E
put up by the Hotel beyond ground and first floors. The State Government
contested this petition contending that it was not bound by the recommendations of Architectural and Aesthetic Aspects Committee and that being
Licensing Authority it was entitled to arrive at its own conclusions.
F
During the pendency of this writ petition, Tamil Nadu District
Municipalities (Second Amendment and Validation) Act, 1994 was passed
whereunder Government was empowered to grant exemption to private
buildings; orders issued earlier by the State Government exempting such
buildings from the provisions of the 1920 Act were validated. Accordingly, G
Government order No. 317 dated December 6, 1994 was issued exempting
the building in question from the provisions of the Development Control
Rules. Further this order was given retrospective effect from may 13, 1994.
Immediately thereafter the Council filed a third writ petition for quashing
this order. Keeping in view the attending facts and circumstances as
appearing on the records and the relevant provisions of the Act and the H
A
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SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.
Rules the High Court allowed the writ petition and quashed both the
impugned Government orders. The reasons which, inter alia, weighed with
the High Court were : (i) when a High level Expert Committee had rejected
the revised plan the Minister and the State Government were not that
justified in granting the exemption; (ii) the requirement of Master Pla_n
and Rules have been completely ignored; (iii) the Minister totally over·
looked the environmental and ecological aspect of the matter and
proceeded simply on the basis that the use of basement floor did not .
interfere with the landscape of the site and vicinity; and (iv) the power to
pass orders with retrospective effect has to be conferred by the legislature.
Consequently, the High Court directed that the building constructed to the
extent it was contrary to the Plan sanctioned be demolished. It also
observed that the Minister has not at all applied his mind to the relevant
materials before signing the order. But, on the other hand, he has taken
note of irrelevant matters. The Chief Minister too has simply signed the
file without entering any minute or remark. There was nothing to show
D that there was application of mind to the matters on record by the Chief
Minister. Hence there was total lack of application of mind on the part of
the Government.
E
F
G
The State Government as well as Hotel preferred appeals before this
Court.
Disposing the appeals, this Court
HELD : 1. Considered in the light of the materials on record and in
the light of the relevant Acts and the Rules applicable to the construction
in question, the reasons which weighed with the High Court in quashing
the two impugned Government Orders are legally sustainable. The findings of the High Court in this regard are unexceptionable. As these
findings of fact are based on a proper appraisal of the entire materials
available there is no reason to disturb the same under Article 136 of the
Constitution. [604-E, 605-E]
2. The observations made by the High Court against the Minister
and Chief Minister are not only factually correct but are absolutely necessary for proper disposal of the writ petitions. [606-H, 607-C]
State of M.P. v. Tikamdas, AIR (1975) SC 1429 and Bakul Cashew
H Co. v. Sales Tax Officer, Quilon, AIR (1987) SC 2239; referred to.
STAY HOTEL v. PAiANI HILLS CONSERVATION COUNCIL (M.K. MUKHERJEE, J.) 591
3. From the order of the High Court it is not clear as to whether it A
intended that the construction of the two floors above the road level has
to be kept intact and the rest demolished, or the stepped structure of two
floors arising from the natural ground level has to be kept intact and the
rest demolished brespective of what the sanctioned plan indicates. This is
a matter which the High Court should clarify now. Accordingly the matter
is remitted to the High Court for the limited purpose of issuing fresh
directions in this regard. (606-F-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8223 of
1995 Etc. Etc.
From the Judgment and Order dated 10.4.95 of the Madras High
Court in W.P. No. 13231of1992.
B
c
G. Ramaswamy, Dr. Rajeev Dhawan, Sanjay Hegde, E.R. Kumar, for
P.H. Parekh, Ms. Subhashini, A. Ranganadhan, Sriram Pancho, Dayan
Krishanan, Gopal Singh, Nikhil Nayyar and P.P. Tripathi, for the appearing D
parties.
The Judgment of the Court was delivered by
M.K.MUKHERJEE, J. Special leave granted. Heard the learned
counsel appearing for the parties.
These six appeals have been heard together as they stem from a
common judgment rendered by a Division Bench of the Madras High
Court disposing of three writ petitions. Facts leading to these appeals and
relevant for their disposal are as under :
E
F
In April, 1981 Pleasant Stay (Kodai) Hotels Pvt. Ltd. (hereinafter
referred to as the Hotel') applied to the Kodaikanal Township Committee
(hereinafter referred to as the Committee') for permission to construct a
hotel building in the town of Kodaikanal. Along with the application it
submitted the plan and other necessary documents. According to the plan G
the building was to comprise a ground floor and a first floor. The plan was
sanctioned by the Committee on November 1, 1991 subject to the following,
amongst others, conditions :
(i) the construction should be completed by October 31, 1992 and
should not be continued thereafter without renewal :
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SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
A
(ii) if the construction was to be different from the sanctioned plan
B
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a new plan must be drawn and fresh permission obtained, in default,
construction. in breach of the plan should be removed : and
(iii) nothing should be done in variation of the sanctioned plan.
On January 29, 1992, the Hotel sent a revised plan to the Committee
for its approval with a forwarding letter addressed to its Executive Officer,
wherein it stated, inter alia, "the revised plan has been necessitated as the
natural earth level of our site leaves us with 20 to 50 feet beam and column
structure below the approved plan at different levels". In reply thereto the
Committee informed the Hotel, by its letter dated February 7, 1992, that
the application for sanction of the revised plan was rejected as the proposal
to construct more than two floors was against clause 8.6.1 of the Master
Plan Rules. The Hotel was also informed that no construction work should
be commenced or proceeded with without obtaining licence or permission,
D otherwise action would be taken under the Tamil Nadu District
Municipalities Act, 1920 (Act for short). Aggrieved by such rejection the
Hotel preferred an appeal on February 11, 1992 to the Secretary to the
Government of Tamil Nadu, Housing and Urban Development, through
the Executive officer of the Committee and the Director of town and
Country Planning. In the appeal the Hotel took the stand that the Contour
E
Plan (attached therewith) of the land was such that while constructing the
ground floor and first floor of the proposed building it had to leave open
column and beam structure of 20 feet to 50 feet at different levels and that
through the revised plan it wanted permission to fill up the open space
under the already approved plan with rooms and other facilities of tourist
F
interest for otherwise the open space would have to be filled up with stone
and sand which, necessarily, would be a national waste. It was also stated
therein that leaving the space under the building open as per the approved
plan would project it only as a big water tank.
As inspite of rejection of the revised plan, the Hotel continued with
G the construction work the Committee issued another notice on April 22,
1992 asking it to remove the off ending constructions with a warning that
action would be taken under Section 317 of the Act. In reply thereto the
Hotel alleged that the Committee was acting with ulterior motive and
denied to have made any construction against the Rules and regulations.
H The Committee then filed a suit against the Hotel in the Court of the
STAY HOTEL v. PALANIHILLS CONSERVATION COUNCIL [M.K MUKHERJEE,J.) 593
District Munsif, Kodaikanal, for a mandatory injunction directing the A
demolition of the building unlawfully constructed in the suit property over
and above the ground and the first floor and for a permanent injunction
restraining the Hotel from raising any construction without prior approval
and permission of the Committee.
Immediately after the suit was filed Palani Hills Conservation Council Conservation Council ('Council' for short), a Society formed with the
object, amongst others, of preserving and protecting hills in and around
Kodaikanal and registered under the Tamil Nadu Societies Registration
Act, 1975, filed a writ petition (W.P. No. 13231of1992) - one of the three
B
c
out of which the instant appeals arise - seeking a writ of mandamus
directing the State Government and the Committee to ensure that no illegal
construction is put up by the Hotel and to demolished the illegal construction, if already made. Consequential directions that no electricity and water
supply are given or occupancy permitted in the Hotel building or any
portion thereof, if illegally constructed,were also sought for. ln contesting D
the writ petition and praying for vacating the interim order of status-quo
granted thereon, the Hotel contended, inter alia, that the reasons given by
the Committee for rejection of the revised plan was not correct and that
the Hotel had already filed an appeal to the Government. The grounds
raised in support of the revised plan and the appeal were also reagitated.
After hearing the parties the High Court passed an order on October 21,
1992 which reads, inter alia, as under :
"Under such circumstances, pending disposal of the Writ Petition
Respondents 3 and 4 cannot be permitted to make any construcE
tion beyond the sanctioned plan as per the sanction of the Second
F
Respondent Township granted on 01.11.1991. If the Respondents
are able to get any favourable orders in the appeal it is open to
move them for appropriate permission."
In December, 1992 the Act was amended and Chapter X A was
incorporated therein making the State Government as the authority to G
grant licence for construction, and reconstruction of buildings and use of
land in hill stations and laying down the procedure for such grant. According to the procedure so laid down every application is to be vetted by a
Committee called Architectural and Aesthetic Aspects for hill station in
the State ('AAA Committee' for short), constituted in terms of the Rules H
594
SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.
A
framed under the Act. as amended.
B
c
D
E
F
G
H
As the Amendment Act made the amendments applicable also to
applications for grant of licence pending before the Committee the appeal
preferred by the Hotel against the order of the Committee rejecting their
revised plan was treated as an application filed under Chapter XA. Resultantly, it came to be considered by the AAA Committee and, in the meeting
held on July 29, 1993, it passed a resolution recommending to the Government to reject the application in view of large scale violations of Building
Rules pointed out therein. On receipt of the above recommendations the
concerned department of the State Government decided to circulate the
file to the Minister for Local Administration. Accordingly the file was sent
to the Minister, after the Secretary made an endorsement thereon on
August 24, 1993 to the effect that in view of the gross violations the request
(obviously meaning that of the Hotel for construction of extra floors) might
be rejected.
While the file was awaiting disposal by the Minister a contempt
application which the Council had earlier filed against the Hotel in April,
1993 for wilfully disobeying the order of the High Court by continuing with
the construction of additional floors illegally was heard and disposed of on
March 31, 1994 with a finding that the Hotel was guilty of contempt. of
Court. On such finding a fine of Rs. 2,000 was imposed and the following
consequential order passed :
"(a) Respondents 3 and 4 shall not make any further construction
in any party of the building above the ground and first floor be it
construction work, maintenance work or any other type of finishing
work.
(b) Respondnets 3 and 4 shall not use the building except ground
and first floor (which according to the respondents 3 and 4 is the
first basement floor at the ground level and second basement floor
above the same) for any purpose. Unless and until they got the
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."
..
STAY HOTEL v. PALANI HILLS CONSERVATION COUNCIL [M.K MUKHERTEE.J_) 595
Thereafter on May 5, 1994, the Minister for Local Administration A
made an order on the file that the request of the Hotel might be considered
and necessary exemption from the violated Rules might be granted, subject
to certain conditions as mentioned therein. On the same day the Chief
Minister endorsed the note of the Minister. After the file was sent back to
the Department a Joint Secretary put up a note on May 12, 1994 that the B
Minister desired that orders should be issued immediately. Pursuant thereto GOM No. 126 dated May 13, 1994 was issued in accordance with the
recommendation of the Minister.
Having learnt about issuance of such an Order, the Council wrote to
the State Government on May 30, 1~94 asking for a copy thereof and also
issued a legal notice for its production. As there was no response Council
filed the second writ petition (Writ Petition No. 13104 of 1994) for quashing the Order and for issuing directions for demolition of the structures
put up by the Hotel beyond the ground floor and the first floor. As no copy
c
of the Order was available, the Council applied for dispensing with its D
production. However, under the direction of the High Court, the Council
succeeded in getting a copy of the Order and after it was filed, an interim
order was passed on July 29, 1994 on the second writ petition restraining
the Hotel from making any further construction. In contesting this writ
petition the State Government asserted that it had the power to grant
exemption to any builder, that it was not bound by the recommendations
made by AAA Committee and that being the licensing authority it was
entitled to arrive at its own conclusions. It further contended that in
granting exemption by relaxing the Rules the Government took note of the
fact that Kodaikanal is a tourist station which requires development includE
ing establishment of good hotels with all facilities which will cater to the F
need of various types of tourists, the type of hotel that was being put up in
the premises in question and also the fact that there would be no deterioration of scenic beauty or destruction of environment and ecology.
When the above two writ petitions came up for hearing on October
18, 1994 the Council pointed out that the Government had no power to G
pass an Order of exemption under Section 217-Q of Chapter XA, incorporated by the Amending Act in respect of a private building. Before,
however, the hearing of the writ petitions could be concluded and disposed
of a Bill was moved in the Tamil Nadu Legislative Assembly on November
9, 1994 to amend Section 217 Q so as to provide a power of exemption to H
596
SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.
A
the Government with regard to private buildings also. That Bill was passed
and the Tamil Nadu District Municipalities (Second Amendment and
Validation) Act (No. 52 of 1994) was brought on the statute book on
November 28, 1994. Section 3 thereof, which contains the validation clause,·
reads as under :
B
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D
"Notwithstanding anything contained in any law for the time being
in force or in any Judgement decree or order of any court or other
authority, all acts done, proceedings taken or orders issued by the
State Government exempting any building or class of buildings
from any of the provisions of the principal Act or relaxing any of
the rules made under Chapter X or Chapter X A of the principal
Act in respect of any building or class of buildings, during the
period commencing on the 9th day of December, 1992 and ending
with the date of publication of this Act in the Tamil Nadu 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 material times when such acts, proceedings
or orders were done, taken or issued."
The above enactment was followed by another Government Order,
E
being GOM No. 317 dated December 6, 1994, which was published in the
Official Gazette on the same day, to say that the building in question was
exempted from the provisions of the Development Control Rules relating
to commercial use zone side set back and Floor Space Index and that it
(the Order) shall be deemed to have come into force with effect from May
13, 1994. Immediately after issuance of the above Order the Council filed
F
the third writ petition (Writ Petition No. 20375 of 1994) seeking a writ of
certiorari for quashing the. same. This writ petition was admitted by the
High Court on December 12, 1994 and an interim stay was granted.
All the writ petitions were thereafter heard together and allowed by
G the High Court by quashing the impugned Government Orders and issuing
certain directions to which we will refer to at the appropriate stage. Hence
these appeals, three of which been filed by the State Government and the
other three by the Hotel.
The facts as detailed above - and discussed at length by the High
H
Court ineluctably prove that (1) the plan as sanctioned by the Committee
-
~IAY HOTEL v. PALANIHILLSCONSERVATIONCOUNCIL[M.K MUKHERJEE,J.) 597
permitted the Hotel to construct a building comprising two floors only; A
(ii)) the request of the Hotel for sanctioning their revised plan for some
additional constructions which, according to it were structurally necessary,
was turned down by the Committee and (iii) notwithstanding such rejection
the Hotel constructed some additional floors in breach of the sanctioned
plan. In the context of the above mentioned facts that the questions as to
whether the two impugned Government Orders, were lawfully and validly
made and, if so, whether they could regularise the unauthorised constructions came up for consideration by the High Court.
To appreciate the reasons which weighed with the High Court in
answering the above questions in the negative it will be profitable at this
stage to refer to the fascicule of sections appearing in Chapter X-A of the
Act which was introduced by the Amendment Act 58 of 1992 to regulate
the constructions in hill stations. Section 271 B thereof prohibits construcB
c
tion and reconstruction of building without licence and Section 217 0, lays
down the procedure to be followed for grant of such licence. Sub-section D
(1) of Section 217 Q prescribes that every application for licence shall be
submitted to the Executive Authority in the {1rescribed form containing the
prescribed particulars. Sub-section (2) thereof obligates the Executive
Authority to examine those applications with reference to such building
rules as may be prescribed for the purposes of the above Chapter and
forward the ·same to a committee called the Committee for Architectural E
and Aesthetic Aspects for all the hill stations in the State which, the
Government is required to constitute under sub-section (3) with such
number of officials and non- officials and having such qualifications as may
be prescribed. The function of the AAA Committee is to examine every
application received from the Executive Authority in all aspects and forward the same to the State Government with its remarks. The composition
F
of the AAA Committee is prescribed by Rule 26 of the Tamil Nadu District
Municipalities (Hill Stations) Building Rules, 1993 (Rules for short)
framed under Section 217 Q. According to that rule the Chairman of the
AAA Committee shall be the Chief Secretary to the Government and there
shall be fourteen Official members and six non-official members consisting G
of the Director of School of Architecture and Planning, Anna University,
Madras, Chairman, Institute of Architects, Tamil Nadu Chapter, Head of
the Department of Structural Engineering Division, Anna University,
Madras and three members representing local authorities in the hill stations to be nominated by the Government. According to the above Rule, H
598
SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
A
the recommenda.tions of the AAA Committee shah cover all or any matter
specified under Sub-section (5) of Section 217-Q as may be applicable to
each application for licence and it may also consider any other matter
required for the preservation of hill ecology and environment. Sub-Section
(5) of Section 217-Q lists the matters which have to be considered by that
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Committee while examining the applications, one of them being the possibility of the construction of the building resulting in concentration of
population in and around the hill station. Section 217-D which relates to
the power of the State Government to grant the licence reads as under :
"On receipt of an application from the Committee with its
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 i'iot be refused unless the applicant
has been given an opportunity of making his representation."
Section 217-K empowers the State Government to review any order,
decision or direction made by them including the grant or refusal of a
licence, if it appears to them that any such order, decision or direction or
the terms and conditions of the licence should be modified, annulled or
reversed. Section 217-Q lays down, inter alia, that the provisions of Chapter
XA shall have effect notwithstanding anything inconsistent therewith contained in the Act or. any other law, custom, usage or contract. Section
217-Q empowers the State Government to grant exemption, subject to
conditions specified, to the State or Central Government from all or any
of the provisions of the Chapter. Rule 27 of the Rules framed in exercise
of powers conferred by Section 217-C of the Act reads as under:
"(1) The Government on receipt of the recommendations of the
Architectural and Aesthetic Aspects Committee may either 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
STAY HOTEL v. PALANIHILLS CONSERVATION COUNCIL (M.K MUKHERJEE, J.J 599
have been commenced and there are no deviations from the A
approved plan".
It appears from the impugned Judgment that to ascertain what
prompted the Minister for Local Administration to ignore and overrule the
recommendations of the AAA Committee and the secretary of his Department that the application for revised plan be rejected and make his order
dated May 5, 1994, the High Court called for and looked into the relevant
file. The order of the Minister as recorded in the file and quoted by the
High Court, reads as under :
B
"It is a proposal for a Hotel Building at Kodaikanal Township. C
The petitioner now seeks necessary exemption of rules for use of
basement area, below the permitted building.
On the perusal of the plan, the site have the contour and
configuration of the terrain is such that rear portion of the site is
50 - O" below the access road level. It is proposed to use these D
basement area for optimum use without increasing t4e height of
the building above road level.
The site is reported to be lying in the permissible zone of
Master Plan, where the hotel use is permitted.
Perusal of the plan, also indicates that there are large extent
of size is left for Car Parking. Further on pollution. control point
of view, necessary clearances had been obtained.
E
On the writ petition by Palani Hills Conservation Council the
Madras High Court observed and permitted the petitioner to move F
for the appropriate permission on appeal for construction of building.
The question now is to use the area below the building in
basement area in view of Contour conditions of the site, for
optimum utility. The height of the building proposed is less than G
10 meters from road level to keep the site in conformity with ·
surrounding landscape. It is considered that the use of basement
floor does not interfere with landscape of the site or its vicinity.
In view of the very high cost of land, the use of site to its optimum
level is also need to be considered and acc;epted.
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SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
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 metres from
the access road level.
(iv) The car parking open should not be reduced in future."
To conclude that the order of the Minister was patently bad, the
High Court dealt with the same at length keeping in view the attending
D facts and circumstances as appearing on the records and the relevant
provisions of the Act and the Rules, referred to earlier. The reasons which
weighed with the High Court in drawing the above conclusion as can be
culled from its judgment are as follows :
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F
G
H
(i) The Minister proceeded to deal with the matter as if it was an
application for exemption under Sedion 217-Q of the Act even though no
such representation was made by the Hotel for such exemption. On the
contrary, prayer made in the appeal (which was treated as an application
under Section 217-C of the Act) was only for grant of necessary approval
for filling up the open space under the building .
(ii) Through the AAA Committee found large scale violations extending to 182% in the matter of Floor Space Index (F.S.I.) and 304 % in
the matter of height of the building, the order of the Minister commences
with an observation that the Hotel seeks necessary exemption of the Rules
for use of basement area below the permitted buiiding;
(iii) The observation of the Minister that in view of the very high cost
of the land, the use of its site to its optimum level needs also to be
considered and accepted was uncalled for as the cost of site was a wholly
irrelevant consideration under Chapter XA of the Act :
(iv) The observation of the Minister that the contour and configura-
'
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STAY HOTEL v. PALANI HILLSCONSERVATIONCOUNCIL[M.K MUKHERJEE,J.) 601
tion of the terrain are such that the rear portion and the site is 50 feet A
below the access road level and that the Hotel proposed to use that
basement area for optimum use without increasing the height of the
building above :-oad level clearly proved total non application of mind to
the records made available to him. If he had seen the plans his would have
found that the proposed building will be within a length of 40 metres and
the building has nothing to do with the rear portion of the site which is
beyond that and which is intended to be left as open space even according
to the revised plan;
(v) The observation that the use of basement floor does not interfere
with the landscape of the site or its vicinity is without any meaning;
(vi) The fact that two of the seven floors at the proposed building
will be admittedly above road level with the consequence of affecting the
scenic beauty in the vicinity and the landscape has .been totally overlooked;
B
c
(vii) The requirement and the sanctity of the 'Master Plan' of
Kodaikanal, which had not been - nor could legally be - superseded by the D
Act and the Rules framed thereunder have not at all been considered and
breaches thereof in the revised plan have been completely ignored (detail~
of such breaches have been recorded in the Judgment) :
(viii) When a high level expert committee like the AAA Committee, E
had after due deliberations and taking into consideration all matters
relevant for sanctioning a plan under the Act rejected the revised plan, the
Minister and, for that matter, the Government were not justified in granting
the exemption, more so, when the files did not disclose any material, apart
from what was available to and considered by the AAA Committee:
(ix) Though the Amendment Act of 1992 was brought on the Statute
book to preserve the scenic beauty and environment of hill stations by
preventing unplanned and mushroom growth of buildings and improve the
architectural planning of the buildings and structures in the hill stations so
F
as to harmonize them with the environment and ecosystem, the Minister G
totally overlooked the environmental and ecological aspect of the matter
and proceeded simply on the basis that the use of basement floor did not
interfere with the landscape of the site or its vicinity; and
(x) There was no ground whatsoever for. relaxing the provisions in
. the Master Plan, particularly with reference to F.S.I. as the purpose for H
602
SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
A
preparing and publishing such a plan, particularly for a hill station is to
protect and maintain an environmental balance.
B
On the above findings the High Court held the Government Order
No. 126 dated May 13, 1994 to be illegal, invalid and arbitrary and quashed
the same.
An ancilliary submission that in view of the validation- clause of
Section 3 of the Tamil Nadu Act 52 of 1994 the above Government Order
was not open to any challenge was repelled by the High Court with the
observation that the effect Section 3, is only that the power of exemption
under Section 217-Q must be deemed to have been in existence from
C
December 9, 1992. When Chapter X-A of the Act (containing Section
217-Q) was introduced, but it cannot prevent any person from contending,
in a given case, that the order of exemption was vitiated by irrelevant
considerations and non-application of mind.
D
As regards the other GO No. 317 dated December 6, 1994 the High
Court held, in view of the judgments of this Court in (1) State ofM.P. v.
Tikamdas, AIR {1975) SC 1429 and (2) Baku/ Cashew Co. v. Sales Tax
Officer, Qui/on, AIR (1987) SC 2239 and the concession made by the
learned counsel appearing for the ·Hotel and the State, that it was not
legally unsustainable as the power to pass Orders with retrospective effect
E
has to be conferred by the Legislature.
F
G
After quashing the above two Government Orders the High Court
issued certain directions, of which we· are concerned, in these appeals, with
the following one :
"A Writ of Mandamus shall issued directing respondents 1 and 2
in W.P. No. 13231of1992 to demolish the building constrncted by
the Hotel to the extent to which it is contra1y to the plan sanctioned
by the second respondent on 1.11.1991. Respondents I and 2 shall
see to it that there are only two floors viz.,
ground-floor and
first-floor above natural ground level of the site as per the original
plan submitted by the Hotel for sanction in April, 1991. 17ie
remaining part of the building shall be demolished."
(emphasis supplied)
H
To ascertain whether the reasons which weighed with the High Court
STAY HOTEL v. PALANI HILLS CONSERVATION COUNCIL (M.K MUKHERJEE, J.) 603
in quashing the above two Government Orders are legally sustainable or A
not we have carefully considered the materials on record in the light of the
relevant Acts and the Rules applicable to the construction in question. Our
such exercise persuades us to unhesitatingly hold that the findings of the
High-Court in this regard are unexceptionable. Indeed, at the very outset
of the hearing of the appeals it was made clear to the learned counsel for B
the appellants that in view of the well considered judgment of the High
Court they would not be permitted to argue on merits and that their
arguments should be confined to the alleged inconsistency in the direction
as quoted above.
In assailing the above direction it was submitted on behalf of the
Hotel that the case of the Council had all along been that it (Hotel) should
not be allowed to make any illegal construction and the Government
Orders purporting to regularise the same should be quashed. According
to the learned counsel as the original sanctioned plan was never challenged
c
by the Council, the Hotel might, at best, be directed, consequent upon the D
quashing of those Or.ders, to demolish the illegal construction, if any, made
beyond the sanctioned plan. In expanding this contention it was submitted
that when the Hotel started constructing the building in terms of the
sanctioned plan, which was for a building with two floors above the road
level, and for that purpose foundation was dug, it was found that there was
a hollow space of a depth ranging from 6 to 18 matters below the ground.
Since the cost of filling that hollow space was prohibitive, the Hotel was
advised to erect very strong columns with adequate deep foundation below
the actual floor level to bear the weight of the construction. The foundation
pillars were, therefore, necessary to be put up for the approved plan
construction. It is in the context of the above facts, which, the Hotel was
not a ware of earlier, that the revised plan was submitted for sanction. It
was further submitted that under the Master Plan a building could be put
upto a height of 10 metres from the road level and as the proposed building
was to be only 6 metres high there could not be any violation in respect
thereof.
In repudiating the above contentions the Council submitted that the
Hotel was trying to create a confusion regarding the level from which it
was to construct its building. The learned counsel for the Council pointed
E
F
G
out that in the original plan the Hotel had shown the road level as the
ground level along the entire length of the proposed building even though H
604
SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.
A
the contour plan of the area clearly showed that the plot in question was
gradient and the ground level and the road level was not one and the same.
It was next contended that under the relevant Rules the height of a building
was to be reckoned from the general ground level of the site and measure
accordingly with reference to every point on the ground level. According
B
c
to the council, being fully aware of the above facts the Hotel first persuaded
the authorities to sanction the plan giving an impression that the two
storeys were to be constructed on the ground level, and having obtained
the sanction raised the bogey of instability of the proposed building in view
of the hollow space thereunder and necessity of construction of the
columns. The learned counsel submitted that such design of the Hotel
would be evident from the fact that it not only illegally raised those columns
but also constructed five more additional floors for residential accommodation.