Gopakumar B. Nair v. Corporation of Thiruvananthapuram and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932** ## **WP(C).No. 21789 of 2010(W)** **---------------------------------------** ## **PETITIONER(S):** **----------------------** **GOPAKUMAR B.NAIR, BUILDER AND PROMOTER, SERENE PARK, GBN SPACES, P.B.NO.5710, HOTEL SILVER SAND COMPLEX THIRUVANANTHAPURAM-36.** **BY SRI.V. CHITAMBARESH, SENIOR ADVOCATE, ADV. SRI.D.KISHORE** ## **RESPONDENT(S):** **-------------------------** **1. CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY, CORPORATION BUILDING, PALAYAM, THIRUVANANTHAPURAM.** **2. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, PALAYAM, THIRUVANANTHAPURAM.** **3. THE DISTRICT TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, NEAR AKG CENTRE, PALAYAM, THIRUVANANTHAPURAM.** ## **4. STATE OF KERALA,** **REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **R3 & R4 BY SPL.GOVT. PLEADER SRI.C.M. SURESH BABU. R1 & R2 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV. SRI.P.K. MANOJKUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010, ALONG WITH WP(C) NO. 24691 OF 2010, THE COURT ON 24/11/2010 DELIVERED THE FOLLOWING:** ## **WP(C) NO. 21789/2010-W** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE GO(MS) NO.144/07/LSGD DATED 31/05/2007.** **EXT.P2: COPY OF THE CIRCULAR NO.8911/RD2/08/LSGD DATED 06/02/2008.** **EXT.P3: COPY OF THE JUDGMENT IN WP(C) NO. 4160/2008-AT.** **EXT.P4: COPY OF THE LETTER NO.D/436/08 DATED 13/06/2008.** **EXT.P5: COPY OF THE ORDER DATED 27/05/2009 IN APPEAL NO.328/2009 OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** ## **EXT.P6: COPY OF THE REPRESENTATION DATED 02/06/2009 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXT.P7: COPY OF THE JUDGMENT IN WP(C) NO. 19579/2009 DATED 19/02/2010 (COMMON JUDGMENT).** **EXT.P8: COPY OF THE ORDER DATED 10/03/2010 IN W.A. NO. 323/2010.** **EXT.P9: COPY OF THE REVISED ORDER DATED 10/05/2010 IN APPEAL NO.328/2009 OF TRIBUNAL FOR LSGI.** **EXT.P10: COPY OF THE ORDER DATED 02/06/2010 IN COMPLAINT NO.981/2010 OF OMBUDSMAN FOR LSG.** **RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **rs** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.21789/2010-J & 24691/2010-J ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 24[th] day of November, 2010** ## **J U D G M E N T** These two writ petitions concern a common issue and, therefore, they are disposed of by a common Judgment. The main prayer in W.P(C).No.21789/2010 is for a direction to the third respondent to comply with Ext.P9 order of the Tribunal for Local Self Government Institutions. The said order of the Tribunal is under challenge in W.P.(C). No.24691/2010. 2. The short facts for the disposal of the writ petitions are the following:- The petitioner in W.P.(C).No.21789/2010 is a Realtor, Land Developer and Builder since 1995. The petitioner developed 160 cents of land in Survey Nos.1365 and 1485 of Kadakampally Village, Thiruvananthapuram Taluk and subdivided it into 18 plots under the name and style “Serene Park”. These steps were completed before 25/06/2000. Later, the Panchayat was notified as a Corporation area with effect from 01/10/2000 by which the Kerala Municipal Building Rules became applicable to the Village. 3. After settling certain disputes regarding the road leading to the plots, the said plots were sold out and sale deeds with respect to 18 plots were executed in December, ## W.P.(C). Nos.21789/2010 & 24691/2010 -:2:- 2006 and applications for grant of building construction permits for 18 individual single family residential buildings were submitted to the Thiruvananthapuram Corporation. 4. It is averred that the location therein is a substantially developed functional urban zone with KIMS Hospital, Southern Air Force Command, Central School, Two residential colonies namely Hilltop Gardens (76 Multistoried buildings), Hill Park Avenue (43 Residential Buildings). The area is marked as green strip Zone as per the Town Planning Scheme notified by the Government. The petitioner had to file W.P.(C).No.4160/2008 since no action was taken on his applications and this Court directed the second respondent herein to forward the applications to the Regional Town Planner for concurrence. The Regional Town Planner rejected the applications on the ground that the area falls in the Greenstrip Zone of the Medical College Area Development Scheme and true copy of the order has been produced as Ext.P4 in W.P.(C).No.21789/2010. The petitioner approached this Court again by filing W.P.(C). No.19651/2008 challenging the same and this Court relegated the matter to the Tribunal for Local Self Government Institutions. An Appeal was filed as Appeal No.328/2009 and the decision in the appeal was in his favour and the true copy of the order is produced as Ext.P5 wherein the ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:3:- third respondent was directed to pass a fresh proper order. This was challenged in W.P.(C).No.19579/2009 by the State and the District Town Planner, Thiruvananthapuram and the petitioner filed W.P.(C).No.18322/2008 seeking to implement Ext.P5 order. The State produced a Gazette Notification with regard to the date of coming into force of the Scheme and on that basis the writ petitions were disposed of by this Court quashing Ext.P5 order passed by the Tribunal and remitted the matter for fresh consideration. This was challenged by the petitioner in W.A.No.323/2010. An interim order was passed by the Division Bench in W.A.No.323/2010 as Ext.P8 in W.P.(C).No.21789/2010, wherein the Tribunal was directed to pass appropriate orders and, accordingly, the Tribunal passed Ext.P9 order which is in favour of the petitioner. 5. In Ext.P9 the Tribunal took the view that the Medical College Area Development Scheme or any other scheme does not stand in the way of petitioner getting clearance for construction of single family residential building of floor area upto 300 Sq.Mts. 6. One of the main contentions raised in W.P.(C). No.24691/2010 are that the finding of the Tribunal that the continued operation of the Scheme after expiry of more than 33 years is contrary to what is stipulated by the Travancore Town and Country Planning Act, 1120 and Rules, ## W.P.(C). Nos.21789/2010 & 24691/2010 -:4:- 1935 is not correct. The contention is that the Scheme was brought into force as per Gazette Notification dated 30/11/1976 with effect from 01/12/1976. There is no time limit fixed in the said Act for its deviation and implementation and, therefore, the construction of the residential buildings in the area earmarked as Green Strip Zone in the above said Scheme cannot be allowed as residential buildings are not permitted. Apart from that it is contended that the zoning regulations of the General Town Planning Scheme for Thiruvananthapuram varied and notified as per G.O.(MS) No.144/07/LSGD dated 31/05/2007 under the Town Planning Act, 1108 ME is not applicable for the area comprised in the Medical College Area Development Scheme in the light of Clause IV of the General Guidelines of the Zoning Regulations. It is specifically provided therein that the provisions of Detailed Town Planning Scheme, Area Development Plans, if any, will prevail over the said regulations. It is also mentioned in the writ petition that the scheme is still under implementation and Exts.P8(a) and P8(b) notifications are with regard to the acquisition of land under the Medical College Area Development Scheme itself. 7. Heard Shri V.Chitambaresh learned Senior Counsel appearing for the petitioner in W.P.(C).No.21789/2010, learned Senior Counsel Shri N.Nandakumara Menon for ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:5:- Thiruvananthapuram Corporation and learned Government Pleader Shri C.M.Suresh Babu. 8. The Division Bench in Ext.P8 order directed the Tribunal for Local Self Government Institutions to take up the matter as to whether the Trivandrum Medical College Area Development Scheme or any other Scheme stands in the way of the appellant therein getting clearance for construction of building and as to whether the Scheme itself was in force or is in operation as of now and also to consider whether the scheme of any other provision thereof is against the provisions of Travancore Town and Country Planning Act and consider appellant's entitlement. After the order was passed by the Tribunal, the Writ Appeal has been dismissed as infructuous. 9. A reading of the order passed by the Tribunal, produced as Ext.P9 in W.P.(C).No.21789/2010 shows the following aspects:- After considering the provisions of the Travancore Town Planning Country Planning Act, 1120, the Tribunal in paragraph (13) held that the 20 years time specified in the explanation to Rule 7(1) of the Travancore Town and Country Planning Rules, 1935 does not by itself mean that the Trivandrum Medical College Area Development Scheme has elapsed after 20 years after the date of coming into force of the same. However, the said provision indicates that ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:6:- the scheme is not expected to continue indefinitely without modification and may require modifications after lapse of reasonable period of time. It was therefore found that, considering that as per explanation to the rule a population that may be envisaged in the area within about, 20 years time only is considered in preparing the development scheme it is only proper to incorporate limitation of time for operation of the scheme as referred to in the schedule to the Act, in the scheme. Accordingly, it is found that the Scheme is contrary to what is stipulated by the Travancore Town and Country Planning Act, 1120. It was also observed that the provisions of the Act will indicate that the Schemes under the Travancore Town and Country Planning Act, 1120 are expected to be schemes for a limited period to be specified in the schemes itself. Finally, it was held in paragraph (14) that the continued operation of the Scheme after the expiry of more than 33 years from coming into force of the same is contrary to what is stipulated by the Travancore Town and Country Planning Act, 1120 and the Rules, 1935. Reliance was placed on the Judgment in O.P.No.34791/2001 and the Tribunal was of the view that the finding therein will show that the Scheme is not in force or in operation now. Accordingly, it was found that the Scheme, namely, the Trivandrum Medical College Area Development Scheme does not ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:7:- stand in the way of appellant getting clearance for construction of single family residential buildings. Reference was made to the General Town Planning Scheme as amended and it was also held that the Medical College Area Development Scheme or any other Scheme will not stand in the way of appellant getting clearance for construction of single family residential buildings of floor area upto 300 sq.meters. 10. The learned Government Pleader while attacking the said findings rendered by the Tribunal submitted that the Scheme was in operation and the finding that the Scheme is in violation of the Act and the Rules cannot be sustained. 11. There is no dispute that the statutory notification is there in bringing into force the Medical College Area Development Scheme with effect from 01/12/1976. Ext.P1(a) produced in W.P.(C).No.24691/2010 is the scheme. Ext.P7 therein is the true copy of the General Town Planning Scheme for Thiruvananthapuram sanctioned under Section 12 of the Town Planning Act, 1108 M.E. The Travancore Town and Country Planning Act, 1120 and specifically Section 12 therein provides the following:- “Variation and Revocation of Schemes; A scheme may be varied by our Government, otherwise than by way of extension of the area to which the scheme applies or may be revoked or supplemented ## W.P.(C). Nos.21789/2010 & 24691/2010 -:8:- by a subsequent scheme prepared in accordance with this Act and any Rules made thereunder”. Section 4 contains the scope of planning schemes. Section 9 confers power to enforce and carry into effect schemes, which is not relevant here. Evidently, therefore, going by Section 12, the scheme can be varied or revoked or supplemented by a subsequent scheme which has not happened. The view taken by the Tribunal, therefore, that its operation may not go beyond 20 years and the continued operation of the Trivandrum Medical College Area Development Scheme after expiry of more than 33 years from coming into force of the same without providing any limitation is contrary to what is stipulated by the Travancore Town and Country Planning Act, 1120 and Rules, 1935 may not therefore be fully correct. In fact, the Tribunal in paragraph (13) has found that the period of 20 years specified in the explanation to Rule 7(1) of the Travancore Town and Country Planning Rules, 1935 does not by itself mean that the Trivandrum Medical College Area Development Scheme has elapsed after 20 years after the date of coming into force of the same. In that view of the matter, the question regarding the non-implementation of the Scheme has to be considered in the light of the decision of this Court relied on by the Tribunal in O.P.No.34791/2001 produced as Ext.R1(i) along with the ## W.P.(C). Nos.21789/2010 & 24691/2010 -:9:- counter affidavit in W.P.(C).No.24691/2010. Therein the very same scheme and its challenge was considered. The Judgment shows that this Court considered the contentions raised by the petitioners that the notification issued in 1976 by efflux of time is termed as arbitrary and oppressive. A decision of a Full Bench of this Court in **Francis v. Chalakudy Municipality [1999 (3) KLT 560]** was considered and an interim order was passed on 03/03/2006 based on which the Government filed a counter affidavit. This Court, after referring to the terms of the counter affidavit expressed the views as follows:- “But, even after 14 years, no action has been taken to modify the scheme. I think, the claim of the petitioners is squarely covered by the decision of a Full Bench of this Court mentioned in the above quoted interim order. The scheme remains without implementation for the last 30 years, causing great prejudice to the petitioners. I think, the same should not be allowed to continue. Accordingly, it is ordered that the scheme notified as per Ext.P6 will not affect the properties of the petitioners. They will be free to deal with it as they think fit. If they apply for building permits, the same W.P.(C). Nos.21789/2010 & 24691/2010 -:10:- shall not be rejected by the Corporation for the reason that Ext.P6 is in force **.”** Evidently, this Court was of the view that the scheme remains without implementation for the last 30 years causing great prejudice to the parties. It was therefore held that the scheme notified as per Ext.P6 will not affect the properties of the petitioners. 12. The Judgment has become final and, therefore, is binding on the parties herein also including the State and the Corporation. 13. Learned Senior Counsel appearing for the Corporation and the learned Government Pleader submitted that the question considered by the Full Bench in **Francis** **v. Chalakudy Municipality [1999 (3) KLT 560]** was a different one. Therein the main question that was considered was whether in the absence of a notification acquiring properties within 3 years of the final notification the Scheme can be said to be in operation and has lapsed. Other related questions were also considered along with it. The Full Bench but observed, while considering the various contentions in paragraph (20) that **“** in the context of the indefiniteness in the implementation of the scheme and the stand adopted by the concerned Municipality, it may be open to the petitioners to ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:11:- challenge the scheme itself as having become arbitrary and unconstitutional since the restrictions imposed by the scheme have become oppressive and unreasonable”. Of course, this Court in Ext.R1(i) Judgment considered the matter in the light of the above observation, with regard to the challenge of the scheme itself. Only after considering the averments in the counter affidavit filed by the Government findings were rendered in the Ext.R1(i) Judgment. The scheme has not been modified at all thereafter. The observations in **Francis's case** [ _Supra_ ] were relied upon by this Court, in the light of the challenge to the Scheme. Hence the Judgment Ext.R1(i) will apply here as the Scheme is the same. 14. As rightly pointed out by learned Senior Counsel for the petitioner Shri V.Chidambaresh therefore, the petitioner will also be entitled for a similar direction that the scheme shall not affect the properties of the petitioner. Therefore, the question can be considered even without considering the various other aspects raised by the learned Government Pleader in the arguments. One of the aspects pointed out by the learned Senior Counsel for the petitioner in W.P.(C).No.21789/2010 is that the area is substantially developed with various institutions, namely, KIMS Hospital, Southern Air Force Command, Central School, ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:12:- Two residential colonies namely Hilltop Gardens (76 Multistoried buildings), Hill Park Avenue (43 Residential Buildings) etc. These facts have been reiterated in the counter affidavit filed in W.P.(C).No.24691/2010 in paragraph (6). It is pointed out therein that the constructions were made on the basis of individual exemption orders as recommended by the Chief Town Planner. This indicates that the existence of the Scheme was not considered as a bar for granting exemption. In that view of the matter, it can be seen that there is no proper implementation of the scheme when applications were submitted by various parties. The said aspect, whether there can be discrimination between various applicants has been considered under the very same scheme by a Division Bench of this Court in Ext.R1(j) Judgment. There also the Tribunal had allowed the appeal filed by the party concerned. After referring to various aspects, the Division Bench held thus:- “Further, we may also notice that the rejection was based on the premise that the area is earmarked as green strip of land. However, the finding is that several buildings are situated there and already permits are granted for more buildings. The stand of the Corporation ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:13:- is that subsequent to the scheme, nobody has been given permit. Even though it is pointed out that only after obtaining exemption order from the Government such permit was granted earlier, this itself shows that the very purpose is defeated by granting exemption and at the same time taking hostile discrimination against the respondent herein.” Therefore, the Division Bench was of the view that several buildings have been situated there and already permits have been granted for more buildings and that it itself shows that the very purpose is defeated by granting exemption and at the same time taking hostile discrimination against the respondents in the said case. 15. Evidently, the petitioner in W.P.(C).No.24691/2010 is also entitled for a similar treatment like that of the parties concerned therein. The purpose of the scheme has been defeated by granting exemption and so many buildings have been constructed in the green strip zone. 16. I had occasion to consider the pleas similarly raised by various parties in common Judgment in W.P.(C). No.14957/2010 and connected cases in respect of the same Scheme. Therein, reliance was placed on the Judgments in ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:14:- O.P.Nos.24089 and 34791/2001. In paragraph (8) it was held as follows:- “I am not called upon to decide the validity of the scheme in these writ petitions. But, still the question is whether without acquiring the properties the scheme can be implemented. Evidently, only by resorting to proceedings under the Land Acquisition Act or by negotiated purchase, the Corporation could make available the required land for the implementation of the scheme. So far no action has been taken, even after the lapse of 34 years.” Herein, even though the question of acquisition of properties is not necessary, various parties have been issued building permits for different reasons as well as on the basis of various Judgments of this Court. On that ground itself, the petitioner is also entitled to be granted permits without referring to the scheme. 17. The learned Senior Counsel for the petitioner, Shri V.Chithambaresh further submitted that in the Detailed Town Planning Scheme as notified in 2007, as per the uses permitted in the area, the permission is liable to be granted to single family residential buildings of floor area upto 300 sq.meters in areas which are substantially built up with lawful residential building on the date of ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:15:- notification and public utility service areas. Of course, the argument is attractive. As pointed out by the learned Government Pleader, the General Town Planning Scheme will be applicable only in the absence of an Area Development Scheme. But herein in the light of the view taken that the Medical College Area Development Scheme cannot affect the rights of the applicants in the light of the Judgment Ext.R1(i), the only other Scheme is the General Town Planning Scheme which will be in force. This aspect has been considered by the Tribunal in paragraph (18) of the order. Therefore, the applications could be considered in the light of the above Scheme which permits single family residential buildings of floor area upto 300 sq.mts. as the restricted use with the concurrence of the Town Planning Officer. In that view of the matter, I sustain the direction in paragraph (18) of the order passed by the Tribunal that the Medical College Area Development Scheme or any other scheme does not stand in the way of the petitioner in W.P.(C).No.21789/2010 getting clearance for construction of single family residential buildings of floor area upto 300 sq.meters, especially in the light of the peculiar facts of this case. 18. Even though the learned Government Pleader relied upon Exts.P8(a) and P8(b) which are said to be issued in implementation of the said scheme alone, a reading of the ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:16:- order shows that the Government has granted permission for land acquisition for making access to the Super Speciality Block in the Medical College. Of course, there is a mention about the Scheme but evidently, the land is acquired for a road leading to the Super Speciality Block in the Medical College. It cannot be conclusively said without other reliable materials whether the same is in implementation of the Scheme. 19. The learned Government Pleader relied upon the principles stated by the Apex Court in **Friends Colony Development Committee v. State of Orissa and others [(2004) 8 SCC 733], S.N.Chandrashekar and another v. State of Karnataka and Others [(2006) 3 SCC 208], K.K.Bhalla v. State of M.P. and others [(2006) 3 SCC 581] and, City and Industrial Development Corpn. of Maharashtra and another v.** **Ekta Mahila Mandal and another [(2007) 7 SCC 701]** in support of the pleas. All those are cases where the schemes were fully in operation and questions were considered whether there can be relaxation etc. in individual cases. The decision of the Apex Court in **Raju** ## **S.Jethmalani and others v. State of Maharashtra and others** **[(2005) 11 SCC 222]** is one, wherein, for implementation of the Scheme acquisition of the land was thought of. Herein, as already noticed, the Judgments Exts.R1(i) and R1(j) ## W.P.(C). Nos.21789/2010 & 24691/2010 ## -:17:- squarely applies and the petitioner's request is not one for granting exemption but the contention is that the scheme was not in operation. Therefore, the principles stated in those cases are distinguishable on the facts of this case. 20. The Tribunal in Ext.P9 order produced in W.P.(C). No.21789/2010, in paragraph (19) as directed the Corporation to proceed with the applications and to pass a fresh order. The Tribunal was of the view that in the light of Judgment in O.P.No.34791/2001, the scheme cannot be said to be in force or in operation now. Therefore, it was directed to grant the permits without reference to the Scheme itself. 21. Therefore, I hereby uphold the directions issued by the Tribunal on other grounds as pointed out above. The order passed by the Tribunal Ext.P9 will stand modified to that extend only but the directions therein are sustained for the reasons stated above. The petitioner in W.P.(C).No.21789/2010 is entitled for the consideration of grant of permits without reference to the Medical College Area Development Scheme and it is ordered that the Scheme will not affect the properties of the petitioner. 22. Therefore, W.P.(C).No.24691/2010 is dismissed and W.P.(C).No.21789/2010 is allowed. There will be a direction to the third respondent in W.P.(C).No.21789/2010 W.P.(C). Nos.21789/2010 & 24691/2010 -:18:- to take up the applications for building permits and consider the same in accordance with the law and pass appropriate orders within a period of two months from the date of receipt of a copy of this Judgment. The third respondent is also directed to consider the applications without referring to the Scheme for granting concurrence. No costs. **(T.R. Ramachandran Nair, Judge.)** ms