State of Kerala represented by Secretary Local Administration (M) Department, Government Secretariat, Thiruvananthapuram; The Regional Town Planning Officer Ernakulam; Father Denny Mathew Peringatt, Trustee of Educational & Charitable Trust of Arch Diocese of Verapoly v Earthspace Builders and Developers; Thrikakkara Municipality; The Secretary Thrikakkara Municipality; Eldho Kuruvila Thombrayil; Rithika Kuruvila Thombrayil; Bosco Louis

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN & THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 26[th] DAY OF JULY 2023 / 4TH SRAVANA, 1945 RP NO. 815 OF 2022** **AGAINST THE ORDER/JUDGMENT DATED 26.10.2016 IN WA 559/2016** ## **REVIEW PETITIONERS/APPELLANTS IN THE WRIT APPEAL:** 1 STATE OF KERALA REPRESENTED BY SECRETARY LOCAL ADMINISTRATION (M) DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN - 695001 2 THE REGIONAL TOWN PLANNING OFFICER ERNAKULAM, PIN - 682030 3 FATHER DENNY MATHEW PERINGATT TRUSTEE OF EDUCATIONAL & CHARITABLE TRUST OF ARCH DIOCESE OF VERAPOLY, LATIN ARCH BISHOP'S HOUSE,BROADWAY, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM (SOUGHT TO BE IMPLEADED ) BY SHRI. GOPALAKRISHNA KURUP -ADVOCATE GENERAL SMT. DEEPA K.R. -SPECIAL GOVERNMENT PLEADER SRI. K. DENNY DEVASSY. ADVS.STIYA SIVAN ASITHA M.M. ANILA ANTONY K.R.RENJU ## **RESPONDENTS/RESPONDENTS IN THE WRIT APPEAL:** 1 EARTHSPACE BUILDERS AND DEVELOPERS 41/406C,4TH FLOOR,BEEJAY TOWER,RAJAJI ROAD,KOCHI REPRESENTED BY ITS PARTNER PRATHEESH VINCENT, PIN - 682035 2 THRIKKAKARA MUNICIPALITY REPRESENTED BY ITS SECRETARY THRIKKAKARA, PIN - 682030 3 THE SECRETARY THRIKKAKARA MUNICIPALITY,REPRESENTED BY ITS SECRETARY,THRIKKAKARA, PIN – 682030 R.P.No.815/2022 2 4 ELDHO KURUVILA THOMBRAYIL HOUSE,CHELLAD,KOTHAMANGALAM P O (IMPLEADED AS PER ORDER DATED 26.7.2023 IN I.A.NO.4/2022 IN R.P.NO.815/2022) 5 RITHIKA KURUVILA THOMBRAYIL HOUSE,CHELLAD,KOTHAMANGALAM P O (IMPLEADED AS PER ORDER DATED 26.7.2023 IN I.A.NO.4/2022 IN R.P.NO.815/2022) 6 BOSCO LOUIS S/O K.A LOUIS, RESIDING AT KARUNA NIVAS, VIDAKKUZHA, THAIKKATTUKARA P.O, NAD GATE, KALAMASSERY, ERNAKULAM DISTRICT (SOUGHT TO BE IMPLEADED ) BY ADVS. S.JAMAL Mayankutty Mather K.I V.HARISH RAJAN VISHNURAJ T.K.SREEKALA(K/000246/1987) S.PARVATHI(K/000823/2015) THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.P.No.815/2022 3 ## **ORDER** ## _**Gopinath, J**_ This review petition is filed seeking a review of the judgment dated 20.6.2016 in W.A.No.559/2016 of this Court. Writ Appeal No.559/2016 was filed by the review petitioners challenging the judgment of a learned Single Judge of this Court in W.P.(C)No.15551/2015 dated 27.5.2015. By the judgment in the Writ Petition, a learned Single Judge of this Court followed the decision of this Court in _**Padmini v. State of Kerala; 1999(3) KLT 465**_ and that of the Supreme Court in _**Raju S. Jethmalani v. State of Maharshtra; (2005) 11 SCC 222**_ and directed the Municipality to pass orders on the application for building permit without being in any manner influenced by the provisions of the said Town Planning Scheme. On appeal (W.A.No.559/2016) this Court noted, on facts, that the application for building permit had been refused on the ground that the area was earmarked as agricultural zone as per the provisions of the Town Planning Scheme. The Court took the view that, in the light of the judgment of the Supreme Court in _**Raju S. Jethmalani (supra)**_ , the provisions of a Town Planning Scheme which had never been implemented cannot be used against an applicant for building permit especially when all the adjoining lands had been substantially developed by putting up commercial buildings, office structures, schools, playgrounds and residential buildings etc.. R.P.No.815/2022 4 2. Sri.Gopalakrishna Kurup, the learned Advocate General appears for the Review Petitioners. The submission of the learned Advocate General _inter alia_ is that the State is aggrieved only by the finding in the judgment that the concerned Town Planning Scheme was never implemented. He submits that the Town Planning Scheme was sanctioned and notified under the provisions of the Town Planning Act. He submits that once the scheme is notified no further act of implementation is contemplated and that on such notification, the Town Planning Scheme comes into force. The learned Advocate General has also brought to our notice the judgment of a Division Bench of this Court in _**Regional Town Planner v. Muhammed Rasheed; 2019 (3) KLT 433**_ to contend that once the scheme is notified, a building permit can be issued only if it is in conformity with the town planning scheme. 3. The writ petitioner has transferred the land in question to Additional Respondents 4 & 5 (through registered Sale Deeds). The Building Permit issued to the writ petitioner on 24.6.2015 was also transferred to Additional Respondents 4 & 5. Though Sri.Mayankutty Mather has addressed arguments on behalf of Additional Respondents 4 & 5 (who have stepped into the shoes of the writ petitioner) in the light of the order that we propose to pass and in the light of the statement made at the Bar by the learned Advocate General that even if the review petition is allowed the State is not objecting to the directions issued in R.P.No.815/2022 5 favour of the writ petitioner, we do not intend to consider the submissions for the Additional Respondents 4 & 5. We also do not deem it necessary to hear the submissions made on behalf of persons who have sought to get themselves impleaded in the review petition as we are not adjudicating on any of their rights while disposing of the present review petition. 4. Having heard the learned Advocate General for the Review Petitioners and Sri.Mayankutty Mather for Additional Respondents 4 & 5, we are of the view that we must clarify the findings of this Court in the judgment dated 20.6.2016 in W.A.No.559/2016. That the Town Planning Scheme was sanctioned and notified under the Town Planning Act is beyond dispute. On such notification, the Town Planning Scheme comes into force. That the Town Planning Scheme is in existence has been duly taken note of in paragraph 2 of the judgment sought to be reviewed. All that this Court has held is that several commercial establishments, educational institutions and residential buildings had come up in the immediate vicinity of the plot which was the subject matter of the proceedings though the area was notified as an “agricultural zone” thus rendering implementation of the scheme in the area in question, impracticable. In other words, in respect of the area in question, though the Town Planning Scheme was in force, the same was not effectively implemented in the said area. The said finding was based R.P.No.815/2022 6 on the facts and materials in the case with regard to the property involved therein. It is not to be construed as a declaration by this Court that the Town Planning Scheme is not operational within the Municipality in question or was never implemented. The Learned Advocate General is right in contending that once a Town Planning scheme is notified it comes into force. In _**Regional Town Planner v.**_ ## _**Muhammed Rasheed (supra)**_ it was held:- _“6. On a consideration of the rival submissions, we find that the local authorities concerned issue building permits in terms of the provisions of the Kerala Municipality Building Rules or the Kerala Panchayat Building Rules as the case may be. The said Rules are framed by the State Government in exercise of the rule making power under the respective enactments, namely Kerala Municipality Act, 1994 or the Kerala Panchayat Raj Act, 1994. A Reference to Rule 11 of the Kerala Municipality Building Rules (or the corresponding provisions of the Kerala Panchayat Building Rules) would indicate that the Secretary of the local authorities, while approving the plan and issuing any permit, has to verify whether the plan and the work pursuant thereto conforms to the Rules and Byelaws made under the Act or any other law. Rule 3A of the Kerala Municipality Building Rules clarifies that wherever a Town Planning Scheme under the Town Planning Act is in force, the provisions or regulations thereunder shall prevail over the respective provisions of the Kerala Municipality Building Rules. The position is similar under the Kerala Panchayat Building Rules also. Thus, the Secretary of a local authority, while issuing building permits in terms of the respective rules, is statutorily obliged to ensure that the construction in respect of which the permit is issued does not breach the provisions of any law. A validly framed and duly notified scheme under a Town Planning Act would come within the ambit of the term “other law” for the purposes of the Kerala Municipality Building Rules or the Kerala Panchayat Building Rules, and it was to clarify this aspect that Rule 3A was inserted in the Kerala Municipality Building Rules and a similar provision inserted in the Kerala Panchayat Building Rules. It would also follow that, in an area that has been developed in accordance with the Scheme that was validly prepared and duly notified in accordance with the provisions of the Town Planning Act, future constructions would have to adhere to the terms of the Scheme and the plans approved thereunder. This must be so unless and until the Scheme itself is altered or varied by the State Government in_ R.P.No.815/2022 7 _accordance with the provisions of the Town and Country Planning Act. The mandate and purport of the Scheme so framed assumes the nature of a law that regulates future construction in the area and would also bind subsequent purchasers of land and users thereof. It may not also be out of place to mention, in this context, that the earmarking of the areas into residential/industrial/commercial/agricultural or keeping apart areas for parks, roads, etc. is an exercise that is done in public interest and hence, the private interest of the land owners who seek to put up particular construction would have to necessarily yield to the overriding public interest that informs the provisions of the DTP Scheme.”_ Therefore this review petition is ordered clarifying that the findings in the judgment dated 20.6.2016 in W.A.No.559/2016 were upon the facts of that case and they should not be treated as a finding by this Court that the Town Planning scheme in question was never implemented in the Municipality in question. The rights conferred on the writ petitioner/Additional respondents 4 & 5 in terms of the directions contained in the judgment in Writ petition W.P.(C)No.15551/2015 and the judgment in W.A.No.559/2016 are not liable to be reopened. With the above clarifications, this Review Petition is disposed of. ## **sd/-** ## **SATHISH NINAN JUDGE** **sd/-** **GOPINATH P.** **JUDGE** acd R.P.No.815/2022 8 ## **APPENDIX OF RP 815/2022** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE G.O(MS) NO.305/2015/LSGD THIRUVANANTHAPURAM DATED 29.09.2015 Annexure A2 TRUE COPY OF THE CIRCULAR NO. 304282/RD2/2015/LSGD THIRUVANANTHAPURAM DATED 18.02.2016 Annexure AI TRUE COPY OF THE LETTER DT.28-11-2022 ISSUED BY THE 3RD RESPONDENT TO THE SENIOR TOWN PLANNER,ERNAKULAM RESPONDENT ANNEXURES Annexure R4(a) True copy of the building permit issued by Trikkakara Municipality in the name of Earthspace Builders and Developers dated 24.06.2015. PETITIONER ANNEXURES Annexure AII TRUE COPY OF THE UILDING PERMIT NO.TPI.BA(19352)/2015 ISSUED IN THE NAME OF SRI./SMT.ELDHO KURUVILA,RITHIKA KURUVILA RESPONDENT ANNEXURES Annexure R4(b) True copy of the no objection certificate issued by the Fire and Rescue Services Department dated 17.3.2015 Annexure R4(c) True copy of the building permit given in the name of respondents 4 and 5 name dated 3.7.2020 Annexure R4(d) True copy of the renewed building permit dated 23.6.2021 Annexure R4(e) True copy of the addendum Fire NOC dated 25.9.2020 Annexure R4(f) True copy of the receipts evidencing payment to the Kerala State Electricity R.P.No.815/2022 9 Board Ltd. dated 8.7.2020 Annexure R4(g) Eye sketch to demonstrate the developments came up in the surrounding area of the subject property