IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WP(C).No. 18322 of 2009(I) --------------------------------------- PETITIONER(S): ------------------------ GOPAKUMAR B.NAIR, BUILDER AND PROMOTER, SERENE PARK, GBN SPACES, P.B.NO.5710, HOTEL SILVER SAND COMPLEX, TRIVANDRUM-36. BY MR.M.K.DAMODARAN, SENIOR ADVOCATE, BY ADV.MR.D.KISHORE. RESPONDENT(S): --------------------------- 1. CORPORATION OF TRIVANDRUM, REPRESENTED BY THE SECRETARY, CORPORATION BUILDING, PALAYAM, TRIVANDRUM. 2. THE SECRETARY, CORPORATION OF TRIVANDRUM, PALAYAM, TRIVANDRUM. 3. THE DISTRICT TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, NEAR AKG CENTRE, PALAYAM, TRIVANDRUM. R1 BY ADV. MR. P.K.MANOJKUMAR, SC R3 BY SPL. GOVERNMENT PLEADER MR. C.M. SURESH BABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2010 ALONG WITH WPC NO. 19579 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.18322/2009I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE G.O.(MS) /144/07/L&GD DTD. 31/05/2007. P2: COPY OF THE CIRCULAR NO.8911/RD2/08/LSGD DTD. 06/02/2008. P3: COPY OF THE JUDGMENT IN WPC.NO.4160/2008(T). P4: COPY OF THE LETTER NO.D436/08 DTD. 13/06/2008 FROM THE 3RD RESPONDENT. P5: COPY OF THE ORDER DTD. 27/05/09 IN APPEAL NO.328/09 OF TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. P6: COPY OF THE REPRESENTATION DTD.2/06/09 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ================ W.P.(C) NOs. 18322 & 19579 OF 2009 ========================== Dated this the 19th day of February, 2010 J U D G M E N T In WP(C) No.19579/09 filed by State of Kerala and the District Town Planner, Trivandrum, they are seeking to quash Ext.P7, an order passed by the Tribunal for Local Self Government Institutions in Appeal No.328/09. The first respondent in this writ petition has filed WP(C) No.18322/09 praying for directing the respondents therein to implement the said order. 2. Since the issues are connected, these writ petitions were heard and are disposed of by this common judgment. For convenience, I shall make reference to the facts as pleaded in WP (C) No.19579/09. 3. The 1st respondent herein, Sri.Gopakumar B.Nair, submitted an application to the Corporation of Trivandrum for the issuance of a building permit for the construction of 18 independent villas in a property owned by him. Corporation did not pass any order on the application, and therefore, he approached this Court by filing WP(C) No.4160/08, complaining of delay on the part of the Corporation. That writ petition was WPC 18322 & 19579/09 :2 : disposed of by Ext.P1 judgment directing the Corporation to forward the application to the second petitioner. 4. Accordingly, the application was forwarded, and by Ext.P2 order dated 13/6/08, the application was rejected mainly on the ground that the area in respect of which the application was made by the 1st respondent was covered by the Medical College Area Development Scheme. Ext.P2 order was challenged before this Court in WP(C) No.19651/08. That writ petition was disposed of by Ext.P6 judgment relegating the 1st respondent to file an appeal against Ext.P2 order before the Tribunal for Local Self Government Institutions. 5. Accordingly, he filed Appeal No.328/09, which was allowed by Ext.P7 order, the quashing of which is sought by the State and the District Town Planner. The reasoning of the Tribunal as contained in para 8 of Ext.P7 order, reads as under: So the notification dated 27.10.1976 is notification of the order sanctioning and publishing the “Trivandrum Medical College Area Development Scheme” for implementation. In clause 5 of the order, it is stated that the details of the scheme are appended to the order. The appended scheme is titled as “Trivandrum Medical College Area Development Scheme” and not as “Area Development Plan for Trivandrum Medical College” as referred to in the written statement of the 2nd respondent. In clause 1(b) of the “Trivandrum Medical College Area Development Scheme” WPC 18322 & 19579/09 :3 : published by notification dt 27.10.1976 it is stated that it shall come into force with effect from a date to be announced later by Government. There is no specific case for the contesting respondents that there was any such later announcement of date by the Government for enforcing the scheme. If there was no such later announcement by the Government of any date from which the scheme shall come into force, it cannot be said that the scheme has already come into force by mere sanctioning and publication of the scheme by the order dated 27.10.1976 of the Government. In the circumstances the impugned order passed on the basis of a scheme which has not come into force is not sustainable and is liable to be set aside. The rejection of the application for building permit is not on the basis of any sustainable grounds as specified in Section 393 of the Kerala Municipality Act. Hence the impugned order is not sustainable and is liable to be set aside. From the above, it is therefore evident that the first reason stated by the Tribunal is that there was no later announcement by the Government of any date from which the scheme was to come into force. The other ground stated is that reasons relatable to Section 393 of the Kerala Municipality Act were not mentioned in Ext.P2 order for rejecting the application for building permit. 6. In so far as the absence of an announcement by the Government mentioned in Ext.P7 order is concerned, Ext.P3 is the scheme in question. Clause 1(b) of the scheme provides that it shall come into force with effect from the date to be announced later by the Government. The respondents before the Tribunal WPC 18322 & 19579/09 :4 : did not produce any order issued by the Government notifying the date from which the scheme was to commence. Therefore, Tribunal cannot be faulted for the view it has taken. In fact, even along with the writ petition as originally filed, such a document was not placed on record. Subsequently, the petitioners herein filed IA 12059/09 praying for amendment of the writ petition producing GO(MS) No.294/76/LA & SWD dated 30th of November, 1976 issued by the Government of Kerala in terms of Clause 1(b) of Ext.P3 Scheme, announcing that the scheme shall come into force w.e.f. 1st of December, 1976. Thus from Ext.P8, it is evident that the scheme has come into force from 1st of December, 1976. If this be the factual position, the correctness of which cannot be doubted, the conclusion of the Tribunal in Ext.P7 order is erroneous. In that view of the matter, I am inclined to hold that the order is unsustainable. 7. The other reasoning assigned by the Tribunal in Ext.P7 order is that none of the grounds mentioned in Section 393 of the Municipalities Act are mentioned in Ext.P2 order, which in my view, is a consequential finding, and in the light of the aforesaid finding on the first reasoning of the Tribunal, this finding is WPC 18322 & 19579/09 :5 : unassailable. 8. Therefore, I am inclined to think that the matter needs to be reconsidered by the Tribunal. 9. Learned Senior Counsel appearing for the 1st respondent contented that the scheme itself has become redundant as held by this Court in Ext.R1(h) judgment in OP Nos.24089 and 34791 of 2001, which was rendered in the light of the Full Bench judgment referred to therein. Yet another contention raised by him is that by Ext.P5, the scheme itself has been modified and that in terms of Clause 11(2) of Ext.P5, the application is liable to be allowed. Now that I am inclined to order reconsideration of the matter by the Tribunal, in my view, these are issues which are to be canvassed by the 1st respondent before the Tribunal at the time when the matter is reconsidered. 10. Therefore, WP(C) No.19579/09 is disposed of quashing Ext.P7 and directing the Tribunal to reconsider Appeal No.328/09 filed by the 1st respondent, with notice to the parties. Having regard to the fact that this is a long pending matter, it is directed that the matter shall be reconsidered and orders passed, as expeditiously as possible, at any rate within 8 weeks of WPC 18322 & 19579/09 :6 : production of a copy of this judgment. The contentions raised by the 1st respondent on merits are left open to be urged before the Tribunal. It is clarified that both the parties shall have the liberty to urge any additional grounds as they deem necessary. In the light of the judgment in WP(C) No.19579/09, WP(C) No.18322/09 filed for the implementation of Ext.P7 order referred to above, is only to be dismissed and I so. ANTONY DOMINIC, JUDGE Rp