IMPORTANT POINTS :
By virtue of Section 113 (2) (ix) of the 2016 Act, any Development Authority constituted under the repealed enactment shall be deemed to be a development authority constituted under the 2016 Act-The authority under the 2016 Act, is expected to work within the parameters laid down under the 2016 Act and is not to look into the 1939 Act, as the source of its power.

HRISHIKESH ROY, J.

1. Heard Sri. Franklin Chellath, the learned counsel for the petitioner. The respondents 1 to 3 are represented by the learned State Attorney Sri. K.V. Sohan. The Corporation of Cochin [4th respondent] is represented by Adv. Sri. Millu Dandapani. The Greater Cochin Development Authority [5th respondent] is represented by Adv. Sri. Paul Jacob.

2. This Public Interest Litigation is filed questioning the constitutional validity of the Ordinance No. 4/2016 relating to town and country planning affairs, promulgated by the State Governor on 9.1.2016 as also the legislative exercise through which the Kerala Town and Country Planning Act, 2016 [hereinafter referred to as “the 2016 Act ”] was enacted. While the challenge to the promulgation of the Ordinance may have become redundant by virtue of the subsequent enactment, the learned counsel for the petitioner would submit that the defects noted by this Court in the Town Planning Act, 1939 [hereinafter referred to as “the 1939 Act ”] as also the Madras Town Planning Act, 1920 [hereinafter referred to as “the 1920 Act ”] in Shivaprasad vs. State of Kerala, 2011 (1) KLT 690 : 2011 (2) KLJ 1, continue to prevail in the 2016 Act.

3. It is the contention of the petitioner that, by virtue of the constitutional amendment introducing Part IXA in the Constitution through the 74th Amendment Act, 1992 with effect from 1.6.1993, the Municipalities have been vested with powers and authorities under Article 243W read with the XIIth Schedule of the Constitution, and under the Constitutional Scheme, the Town Planning Authority can have no role in the preparation of General Town Planning Schemes and the Detailed Town Planning Schemes, at the Municipalities and the Panchayat level.

4. The learned counsel then refers to sub section (ix) of the Repeal and Saving under Section 113 of the 2016 Act, to point out that the Development authority constituted under the repealed enactments, under the 1939 Act, continue to have a major role in the preparation of the Development schemes and the Town Planning in the metropolitan areas but this is not envisaged under the constitutional norms, as mandated by the 74th Amendment and the legislative exercise, undertaken through the enactment of the 2016 Act.

5. On the basis of the above submission, the petitioner seeks a declaration that powers conferred upon the Planning Board to advise the District Planning Committee on how to proceed with the Town Planning Scheme, the constitution of development authorities and giving powers, overriding the powers of the District Planning Committee and revival of the Town planning authorities is clearly contrary, to the declaration of law made by this Court in Shivaprasad's case (supra), and accordingly, appropriate declaration should be made by the Court.

6. Countering the said submissions of the learned counsel for the petitioner, the learned State Attorney would submit that the 2016 enactment, brought into effect from 23.9.2013 to replace the Ordinance, is in conformity with the constitutional provisions. He points out that the 'Development Authority' constituted under Section 51 of the 2016 Act is to exercise powers in performing functions under Section 56 of the 2016 Act, and it is clearly provided in Section 56 that the powers and functions are to be exercised by the Development Authority, subject to the provisions of the Kerala Municipality Act, 1994, and the Kerala Panchayat Raj Act, 1994.

7. The State Attorney submits that the primary responsibility of preparation of the Detailed Town Planning Scheme within the Municipal and Panchayat areas is vested on the Panchayat, and under Section 33, the Department of Town and Country Planning has just an advisory role, for the Municipal Corporation. The Government Advocate produces the three Notifications dated 16.12.2016, 17.4.2018 and 6.1.2017, to point out that, in exercise of the powers conferred by Section 51 of the 2016 Act, the Greater Cochin Development Auth