Once a town planning scheme is notified, it comes into force and prevails over building rules but its effective implementation may vary based on factual circumstances.

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..

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 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 proceedi