State of Kerala & District Town Planner, Regional Town Planning Office, Thiruvananthapuram v. Gopakumar B. Nair & Secretary, Corporation of Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** ## **THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933** **RP.No. 711 of 2011** **---------------------------** **[THE JUDGEMENT DATED 24/11/2010 IN IN W.P.(C).NOS. 21789/2010 & 24691/2010 OF THIS HON'BLE COURT]** **....................** ## **REVIEW PETITIONERS/PETITIONERS IN THE W.P.(C):** **----------------------------------------------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, THIRUVANANTHAPURAM.** ## **BY SPL. GOVERNMENT PLEADER (L.S.G.D) SRI. P. JAYASANKAR.** ## **RESPONDENTS/RESPONDENTS IN THE W.P.(C):** **---------------------------------------------------------------------** **1. GOPAKUMAR B.NAIR, BUILDER AND PROMOTER, SERENE PARK, GBN SPACES, P.B.NO.5710, HOTEL SILVER AND SAND COMPLEX, THIRUVANANTHAPURAM - 36.** **2. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, PALAYAM, THIRUVANANTHAPURAM - 36.** **R1 BY SRI. V. CHITHAMBARESH, SENIOR ADVOCATE, ADV. SRI.D.KISHORE, R2 BY SRI. N. NANDAKUMARA MENON, SENIOR ADVOCATE, ADV. SRI. P.K. MANOJ KUMAR.** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 18/10/2011,THE COURT ON 27/10/2011 PASSED THE FOLLOWING:** **R.P. NO.711/2011:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** ## **ANNEXURE -I: COPY OF THE PART MAP OF SANCTIONED MASTER PLAN, TRIVANDRUM.** **ANNEXURE -II: COPY OF THE PART OF CADASTRAL MAP.** **ANNEXURE -III: THE PHOTO SHOWING THE LOCATION OF THE SITE.** **ANNEXURE -IV: THE PHOTO SHOWING THE SITE AREA.** **ANNEXURE-V: COPY OF THE GOOGLE MAP SHOWING THE LOCATION OF THE PROPOSED PLOT AND NEARBY AREAS.** **ANNEXURE-VI: COPY OF THE G.O.(MS).NO.184/10/LSGD DTD. 20/08/2010.** **ANNEXURE-VII: COPY OF THE LETTER NO. 7568/RB2/07/LSGD DT. 17/05/2007.** ## **RESPONDENT'S ANNEXURES:-** ## **ANNEXURE R1(A): COPIES OF THE PHOTOGRAPH EVIDENCING THE REAL NATURE AND LIE OF THE PROPERTIES.** **ANNEXURE R1(B): COPY OF THE PLAN SUBMITTED BY THIS RESPONDENT BEFORE THE CORPORATION OF THIRUVANANTHAPURAM.** **ANNEXURE R1(C): COPY OF THE CIRCULAR NO.8911/RD2/08/LSGD DTD. 06/02/2008 OF THE GOVERNMENT OF KERALA.** **ANNEXURE R1(D): COPY OF THE CIRCULAR NO.64015/RD2/2010/LSGD DTD. 10/01/2011 OF THE GOVERNMENT OF KERALA.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Prv.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **R.P.No.711/2011 in W.P.(C) No. 24691/2010-J** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 27th day of October, 2011.** ## **O R D E R** This review petition is filed by the petitioners in W.P.(C) No.24691/2010. The said writ petition was disposed of along with the writ petition filed by the first respondent herein as W.P.(C) No.21789/2010, by a common judgment. 2. Heard learned Government Pleader for the petitioners, learned Senior Counsel Shri V. Chitambaresh appearing for the first respondent and learned Senior Counsel Shri N. Nandakumara Menon and Shri P.K. Manojkumar, appearing for the second respondent Corporation. In the review petition, mainly two grounds have been raised. One, that the finding rendered by this Court that the area of the proposed site for construction is not substantially developed, is not correct. The second ground is that the Trivandrum Medical College Area Development Scheme is still in force. 3. Learned Govt. Pleader submitted that Annexure VI is the notification issued under Section 12 of the Travancore Town and Country Planning Act, 1120 dated 20.8.2010 which will show that the Scheme, viz. rp 711/2011 2 Trivandrum Medical College Area Development Scheme is still in operation. It is further submitted that the said notification could not be produced along with the writ petition at the time of hearing and the same is a new material, which could be considered in the Review Petition. 4. The first respondent has filed a detailed counter affidavit opposing the prayers. Along with the counter affidavit, various photographs, Annexure R1(a) series have been produced to show that the averments in the review petition that the area is not substantially developed, is not correct. It is averred that the area is substantially developed and by the presence of KIMS Hospital, Southern Air Force Command, Central School, two residential colonies, viz. Hilltop Gardens and Hill Park Avenue. This averment made by the respondents before the Tribunal and before this Court in that regard was not refuted at all. It is thus contended that the plea raised in the review petition cannot be countenanced at all. It is also pointed out that the said institutions are within 200 to 400 meters distance from the plots in question. It is in that context Ext.R1 series have been produced to show that there is a 200 meter private tarred road from KIMS Hospital Junction which ends at the respondent's site. Construction of various rp 711/2011 3 buildings can also be seen from these photos. Apart from that, it is averred in para 9 of the counter affidavit that the petitioners have suppressed two circulars issued by the Government as per Annexures R1(c) and R1(d). It is averred that for concurrence what is required is only a tarred road access and internal road access and these facts are evident from the said circulars. 5. Learned Senior Counsel for the first respondent also submitted that a review petition cannot be one for a re-hearing of the writ petition itself and in that context, the principles stated by the Apex Court in **Inderchand Jain (Dead) through Lrs. v. Motilal (Dead) through Lrs.** {(2009) 14 SCC 663} were relied upon. Learned Senior Counsel also relied upon a decision of this Court in **Shivaprasad v. State of Kerala** (2011 (1) KLT 690) to show that Annexure VI, a draft notification cannot be relied upon in the light of the principles stated therein that the Travancore Town and Country Planning Act, 1120 has become unworkable in the light of the Municipality Act, 1994 and therefore the draft notification cannot be finalised at all. 6. Actually, a reading of the judgment will show that all the various aspects raised by the petitioners in the Review Petition have been rp 711/2011 4 considered in detail. The detailed resume of facts therein will reveal the background of the entire dispute. The Tribunal was of the view that the Medical College Area Development Scheme does not stand in the way of the first respondent herein getting clearance for construction of single family residential buildings of floor area upto 300 sq. meters. After hearing both sides, in para 11 of the judgment I have upheld the said finding. Ext.R1(i) judgment in O.P.No.34791/2001 produced along with the counter affidavit in W.P.(C) No.24691/2010 concerning the very same Scheme was also relied upon. Therein, this Court was of the view that the Scheme remained without implementation for the last 30 years and the same should not be allowed to continue. In para 12, I have held that the said judgment has become final and therefore is binding on the parties herein also including the State and the Corporation. The question whether there can be discrimination between various applicants, has been considered in para 14 of the judgment and reliance was placed on Ext.R1(j) judgment of this Court by a Division Bench which also is in respect of the same Scheme. It is in that context I was of the view that the Medical College Area Development Scheme cannot affect the rights of the applicants. The only rp 711/2011 5 scheme, therefore, in force then is the General Town Planning Scheme for Trivandrum and the Tribunal, in para 18 of the order, issued appropriate directions in accordance with the said scheme. 7. Therefore, the plea raised by the learned Government Pleader that the finding that the Scheme was not in operation amounts to an apparent error, cannot be accepted at all. Evidently, Annexure VI notification is a draft which was available with the review petitioners prior to the hearing of the writ petition as the same is dated 20.8.2010. It is not a final notification all. In the light of the decision of this Court in **Sivaprasad's case** (2011 (1) KLT 690) the contention raised placing reliance upon the said draft notification cannot be accepted at all. Therein, in paragraph 58, the provisions of Travancore Town and Country Planning Act, have been considered in detail and it was held that the Scheme of the said Act is totally in variance with the provisions of the Municipality Act, 1994 and the Kerala Panchayat Raj Act. In that view of the matter, the contention based on Annexure VI cannot hold good. 8. The next aspect is regarding the finding by this Court that the area is a substantially developed one. What is averred in the review petition is rp 711/2011 6 that the KIMS Hospital is situated about 200 meters away from the proposed site, the Southern Air Force Command and the Central School are situated about 400 meters away and the Hilltop Gardens and Hill Park Avenue are situated about 400 meters away from the proposed site. Photographs have been produced in support of the plea as Annexures III and IV. In fact in the writ petition filed by the State as W.P.(C) No.24691/2010 the finding rendered by the Tribunal in that regard, was not effectively met by producing any evidence to the contra. The counter affidavit filed by the first respondent herein projects the details of the locality by relying upon Annexure R1(a) series photographs. No reply has been filed against the said pleas made by the first respondent with the support of the above photographs as well as circulars Annexures R1(c) and R1(d). Therefore, the said contention also cannot be accepted. 9. As rightly pointed out by the learned Senior Counsel for the first respondent, it can be seen that the institutions are within a short distance from the plots and therefore what is relevant is the area wherein the proposed construction is to take place which will have a wide meaning and it is not as if the adjacent plot should be shown as developed. rp 711/2011 7 10. Learned Government Pleader further submitted that the fact that others have been issued permit cannot help the first respondent. Evidently, I have relied upon Ext.R1(j) judgment of this Court by a Division Bench, wherein it was found that such an attitude will amount to hostile discrimination. The State and the Corporation are parties to the said judgment, which has become final. Therefore, the contention advanced by the learned Government Pleader in that regard also falls to the ground. 11. Learned Govt. Pleader further submitted that there is a thodu known as 'Amayizhanjan thodu' and there is a green strip area. Evidently, the Tribunal has considered related aspects in para 19 of the order, Ext.P6 in the writ petition. The Scheme, namely General Town Planning Scheme shows that under clause 11(3), the construction is permitted upto 10 m. on both sides of Amayizhanjan Thodu. The learned Senior Counsel Shri Chitambaresh appearing for the first respondent, submitted that there is total compliance with it since the first respondent has submitted the plan giving a clearance of 20 m. from the said thodu on either side, which is not disputed and therefore no merit can be attached to the said contention also. The petitioners can easily verify these aspects from the plan submitted as rp 711/2011 8 Ext.R1(b). The review petition is therefore without any merit, as none of the pleas are sustainable. 12. As already pointed out by the learned Senior Counsel for the first respondent, the Apex Court in **Inderchand Jain's case** {(2009) 14 SCC 663) held that a review petition cannot be an attempt for a rehearing of the matter itself. In paragraphs 10 and 11 it was held thus: “10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order. 11. Review is not appeal in disguise. In _Lily Thomas v. Union of India_ {(2000) 6 SCC 224) this Court held: (SCC p.251, para 56) “56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise.” 13. All the points raised in the review petition have been elaborately considered by the Tribunal and by this Court in the common judgment. It is rp 711/2011 9 not as if any of the points was not available for the review petitioners at the time of hearing and all the points urged were considered on the merits and the judgment was accordingly rendered. Therefore, the attempt evidently is to have a rehearing of the matter, which is impermissible in law. 14. It is also noticeable that this review petition is filed only on 20.9.2011 whereas the judgment is dated 24.11.2010, and it is filed after the first respondent has filed a contempt case as C.O.C. No.230/2011. I find that there is no apparent error in the judgment and the review petition is thus dismissed. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**