JUDGMENT : Petitioners 1 to 5 are allottees of residential plots in the area developed by the Greater Cochin Development Authority (GCDA) in terms of Elamkulam West Town Planning Scheme (the Scheme) sanctioned by the State Government under the Town Planning Act, 1108 ME (the Act). They have constructed residential buildings in the plots allotted to them and are residing in their respective plots. The sixth petitioner is the tenant of an allottee of residential plot and she is residing in the building constructed in the said plot. Ext.P7 is the map of the area covered by the Scheme. In Ext.P7, a plot measuring 21.308 cents is earmarked for public purposes like neighborhood centres, schools etc. The said plot is located on the eastern side of the plot owned by the fourth petitioner. On 24.07.1993, GCDA sold the said plot to the third respondent for Rs.1,03,572.22/-in terms of Ext.P1 assignment deed. It is stated, among others, in Ext.P1 assignment deed that the assignment is for running a nursery school in the plot; that the third respondent shall establish the nursery school in the plot within one year as per the plan and design approved by the GCDA and shall maintain the same; that they shall not make any addition or alteration in the school building without obtaining previous written approval of the GCDA; that they shall not put the said plot to any use except for running the nursery school and that they shall not be entitled to transfer the plot for any purpose other than running nursery school. The third respondent has not established the nursery school in the plot as provided for in Ext.P1 assignment deed. Instead, on 19.06.2010, they sold the plot to the fourth respondent, and the fourth respondent has, in turn, sold the plot on 28.09.2011, to the fifth respondent. The writ petition was filed on 27.2.2017 alleging that the fifth respondent is proposing to put up a multi storied building in the plot and that the fifth respondent cannot make use of the plot for any purpose other than the purpose for which the same was assigned to the third respondent. The relief sought in the writ petition was for a direction to the GCDA to take appropriate steps to stop the construction proposed by the fifth respondent in the plot. 2. The relief sought in the writ petition was for a direction to the GCDA to take appropriate steps to stop the construction proposed by the fifth respondent in the plot. 2. On 09.03.2017, the fifth respondent has filed a counter affidavit in the matter stating, among others, that on 16.01.2006, the Chairman of the GCDA has permitted the third respondent to make use of the land for commercial/residential purpose in terms of Ext.R5(i) communication; that she has been issued Ext.R5(k) building permit by the Corporation of Kochi (the Corporation) on 6.2.2017 to put up a residential building in the plot measuring 3502.61 square meters on the basis of the permission granted by the Chairman of the GCDA; that she is undertaking only the construction permitted in terms of Ext.R5(k) building permit in the plot and that the construction undertaken by her is therefore, in order. 3. On 16.07.2017, GCDA has filed a counter affidavit in the matter stating, among others, that the Scheme has so far not been varied and the area covered under the Scheme can be used therefore, only in the manner indicated in the Scheme. 4. On 11.08.2017, this Court ordered that the construction in the plot will be subject to the result of the writ petition. 5. In the meanwhile, in the light of the counter affidavit of the fifth respondent, the petitioners amended the writ petition and incorporated a challenge against Ext.R5(i) permission granted by the Chairman of the GCDA and Ext.R5(k) building permit. 6. Thereafter, on 25.07.2019, after hearing both sides, this Court restrained the fifth respondent from proceeding further with the construction and directed the GCDA to file an additional counter affidavit explaining the circumstances under which Ext.R5(i) permission has been granted to the third respondent. 7. On 30.08.2019, an additional counter affidavit has been filed by the fifth respondent stating, among others, that the construction of the building is complete except as regards its finishing works. 8. Pursuant to the interim order passed by this Court on 25.7.2019, on 05.01.2021, the GCDA has filed an additional counter affidavit stating, among others, that Ext.R5(i) permission has been issued by the then Chairman of the GCDA as he found that there is no need for a nursery school in the area. 9. Heard the learned counsel for the parties on either side. 10. 9. Heard the learned counsel for the parties on either side. 10. The learned counsel for the petitioners contended that the use of the plot for any purpose other than the purpose specified in the Scheme is wholly unauthorized and the fifth respondent is, therefore, not entitled to put up a residential building in the plot. It was also contended by the learned counsel that in the light of the provisions of the Act and the Scheme, the Chairman of the GCDA is not empowered to permit change of user of the land and Ext.R5(i) permission is therefore one issued without authority. It was further contended by the learned counsel that insofar as the plot cannot be used for construction of residential building, Ext.R5(k) building permit issued by the Corporation is also unsustainable in law. 11. The learned Standing Counsel for the GCDA as also the learned counsel for the additional eighth respondent supported the arguments advanced by the learned counsel for the petitioners. In addition, the learned counsel for the additional eighth respondent pointed out that the cost of the subject plot at the time when it was sold to the third respondent was far more than the price shown in Ext.A1 assignment deed and the plot has been sold for such a low price as the same cannot be used for any purpose other than the purpose mentioned in the Scheme. It was argued by the learned counsel that the cost of acquisition of the plot has in fact been borne by the allottees of residential plots in the area as the same was intended for their beneficial use and such a plot cannot be made use of by the fifth respondent for any purpose other than the purpose contemplated under the Scheme. It was also pointed out by the learned counsel that only a limited right to use the subject plot for running the nursery school has been transferred by the GCDA to the third respondent and the fifth respondent cannot therefore claim a better right over the property. It was argued by the learned counsel that Ext.R5(i) communication is a fraud on the Scheme committed by the Chairman of the GCDA and the same does not confer any right on the fifth respondent to make use of the land for residential purpose. It was argued by the learned counsel that Ext.R5(i) communication is a fraud on the Scheme committed by the Chairman of the GCDA and the same does not confer any right on the fifth respondent to make use of the land for residential purpose. It was also argued by the learned counsel that the conduct of the fifth respondent in putting up a multi storied residential building in the plot despite the caution of this Court that the construction will be subject to the outcome of the writ petition, cannot be viewed as a bona fide act. According to the learned counsel, in the light of the specific covenants in Ext.P1 assignment deed, it has to be presumed that the fifth respondent has purchased the plot knowing fully well that the same cannot be used for constructing a residential building and her attempt was somehow to complete the construction and then seek indulgence of the Court for its regularization. It was pointed out by the learned counsel that if such constructions are protected by the Court, it would not only give a wrong message to the public, but also would encourage such constructions in future. 12. Per contra, the learned counsel for the fifth respondent contended that in the absence of any impediment for the GCDA in selling the subject plot and insofar as the same was purchased by the third respondent for consideration, there cannot be any impediment at all for the fifth respondent, the successor of the third respondent, in enjoying the plot as she likes. It was argued by the learned counsel that the contention that only a limited right to use the subject plot for running the nursery school was transferred by the GCDA to the third respondent is built on clause 2 of Ext.P1 assignment deed. According to the learned counsel, the said clause in Ext.P1 assignment deed is hit by Section 11 of the Transfer of Property Act. It was also submitted by the learned counsel that if at all the Court finds that the plot could not have been used by the fifth respondent for construction of a residential building, the fifth respondent may be permitted to convert the building already constructed as a neighbourhood centre so that the resources made use of for the same would not go waste. 13. 13. I have examined the contentions advanced by the learned counsel for the parties on either side. 14. The Act was a legislation intended to regulate development of towns to secure to its inhabitants, sanitary conditions, amenities and convenience. Section 3 of the Act envisages drawing up of town planning schemes and Section 12 of the Act provides for sanctioning of the town planning schemes drawn up by the Government. Section 13 of the Act confers power only on the State Government to vary or revoke the town planning schemes once drawn up and sanctioned. Section 16 of the Act obliges owners of all the lands and buildings in the area affected by the scheme and who propose to construct or reconstruct or in any way alter or add to buildings, to conform to the requirements of the town planning scheme and provides also that no building shall be constructed or reconstructed in an area in which the building is expressly forbidden in the town planning scheme or which is reserved in the town planning scheme for any purpose incompatible with building. Going by the scheme of the Act, the provisions in the town planning schemes drawn up and sanctioned under the Act will operate as the law governing use of land in the area covered by the scheme and would bind all those who acquire right or interest over such lands [See Philip George v. State of Kerala, 2014 (2) KLT 116 ]. Similarly, the provisions of the Act oblige the authorities constituted under the Act to administer the Scheme to ensure that the land use in the area covered by the Scheme is strictly in accordance with the Scheme. Needless to say, if they fail, it becomes the obligation of the Court to compel the authorities to perform their mandatory legal obligations [See T.Damodhar Rao v. The Special Officer, Municipal Corporation of Hyderabad, AIR 1987 Andhra Pradesh 171]. 15. Reverting to the facts, the Scheme is one drawn up, sanctioned and implemented under the Act by acquiring land and developing the same on sound principles of planning into a housing colony by providing wide roads, parks, open spaces, recreational areas, shopping complexes, schools, neighbourhood centres etc. 15. Reverting to the facts, the Scheme is one drawn up, sanctioned and implemented under the Act by acquiring land and developing the same on sound principles of planning into a housing colony by providing wide roads, parks, open spaces, recreational areas, shopping complexes, schools, neighbourhood centres etc. The house plots in the Scheme area have been sold to persons who are desirous of purchasing the same, by collecting from them not only the cost of the plots, but also the proportionate share of the common facilities provided to the allottees. The Scheme, therefore, confers on the allottees of house plots in the scheme area a right to use the common spaces and facilities envisaged under the Scheme. Insofar as the subject plot is one earmarked in the Scheme for public purposes like schools, neighbourhood centres etc., the allottees of house plots in the scheme area have a right to use the said plot for their needs for school, neighbourhood centres etc. In other words, the plot cannot be used for construction of a residential or commercial building in such a manner, depriving the allottees their right to use the same for the purposes intended. 16. True, GCDA, the authority constituted under the Act to whom the Government has entrusted the administration of the Scheme, has executed Ext.P1 assignment deed in favour of the predecessor of the fifth respondent, purporting to transfer the ownership of the plot to them. When a plot in an area developed for residential purpose under a scheme framed under the Act is reserved for public purposes like establishment of schools, neighbourhood centres etc, its owner would lose all the ownership rights in the plot and he would be holding the plot thereafter only in trust for the benefit of the society or the public in general and would be precluded from transferring his interest in it. Viewed in this angle, it could be seen that what is conveyed by the GCDA to the third respondent in terms of Ext.P1 assignment deed was only a limited interest in the plot to use the same for the purpose of establishing and running a nursery school. The concept of 'limited interest' in the nature of the present one due to operation of law, is a concept that is recognised by law. The concept of 'limited interest' in the nature of the present one due to operation of law, is a concept that is recognised by law. As pointed out by the additional eighth respondent, the materials on record indicate that only a nominal amount of Rs.1,03,572.22 was collected by the GCDA from the third respondent towards sale consideration of the plot. The said fact also fortifies the view that only limited interest in the plot was transferred by the GCDA to the third respondent. If the third respondent had acquired only limited interest in the plot to use the plot for running a nursery school, the fifth respondent cannot claim any right in the land other than the right acquired by her predecessor, the third respondent. 17. It is not disputed that the Act and the Scheme do not confer any authority on the Chairman of the GCDA to vary the Scheme and grant permission for change of user of a plot in a scheme area. Ext.R5(i) permission is liable to be set aside on that sole ground. Even though the Act confers power on the State Government to vary the Scheme, according to me, the said power can be exercised by the State Government only in a manner which would promote the object of the Scheme and not in a manner that would defeat the Scheme. The reason being that when a public authority is empowered to take decisions in terms of a statute in public interest, such decisions shall not only be reached reasonably and intelligibly, but shall also be reached having regard to the object of the statute and the purpose for which the power is entrusted. There cannot be any doubt that grant of permission to use a plot earmarked for public purposes like schools, neighbourhood centres etc. in a housing area for residential purpose of a private individual would be detrimental to the Scheme and the interests of the allottees of house plots in the area covered by the Scheme. In other words, according to me, even the State Government cannot permit change of user in respect of the subject plot in exercise of the power conferred on it under the Act. If change of user in respect of the subject plot cannot be permitted even by the State Government, Ext.R5(i) permission cannot be justified on any count. 18. In other words, according to me, even the State Government cannot permit change of user in respect of the subject plot in exercise of the power conferred on it under the Act. If change of user in respect of the subject plot cannot be permitted even by the State Government, Ext.R5(i) permission cannot be justified on any count. 18. The Kerala Municipality Building Rules, 1999 was in force at the time when Ext.R5(k) building permit was issued by the Corporation to the fifth respondent. Rule 11 of the said Rules confers authority on the Secretary of the Corporation to issue building permits, if the construction proposed conforms to the provisions of the Kerala Municipality Act, 1994, the Rules referred to above as also other laws. Rule 3A of the Kerala Municipality Building Rules, 1999 categorically provides that notwithstanding anything contained in the rules, provisions or regulations in any Town Planning Scheme in force under the Act shall prevail over the respective provisions of the rules wherever such schemes exist. Rule 3A is a provision introduced long prior to Ext.R5(k) building permit. In other words, the Secretary of the Corporation was not empowered to issue building permit for construction of a residential building in the plot earmarked in terms of the provisions of the Scheme for public purposes like neighbourhood centres, schools etc. The upshot of the discussion is that Ext.R5(k) building permit is unsustainable in law. 19. I shall now deal with the contention advanced by the learned counsel for the fifth respondent on the basis of Section 11 of the Transfer of Property Act. The case set out by the fifth respondent is that clause 2 of Ext.P1 assignment deed, which provides that the third respondent is precluded from putting the plot assigned to it to any use except for the construction of a nursery school building, is hit by Section 11 of the Transfer of Property Act. Section 11 of the transfer property Act reads thus : 11. Restriction repugnant to interest created.— Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof. True, in the light of the said provision, once an interest is created absolutely in favour of a person on a transfer of property, there cannot be any fetters on the enjoyment of the interest so created. As indicated, what is transferred in terms of Ext.P1 assignment deed is only limited interest for the purpose of establishing and running a nursery school in the plot and since no fetters whatsoever is created in terms of the document in the matter of the transferee enjoying the said limited interest, Section 11 of the Transfer of Property Act, according to me, has no application. 20. As noted, the writ petition was filed just after the fifth respondent has obtained permit to put up the building in the plot and the construction was, therefore, carried out by the fifth respondent during the pendency of the writ petition. What shall be the fate of the said construction is the next issue. In the light of the finding that the plot could not have been utilised for construction of a residential building and that the building permit, on the strength of which the construction was undertaken, was not one issued in accordance with law, the building can be regarded only as an unauthorised one. Is this Court obliged to order demolition of such a building and if not, what shall be the relief to which the petitioners are entitled to, are the questions to be examined. 21. Mere departure from the authorised plan or putting up construction without permit, does not ipso facto justify demolition of the constructions and the constructions that are to be demolished are those involving grave breaches of statutory provisions, affecting the interests of the public. Other constructions can certainly be compounded, of course on imposition of appropriate and proportionate penalty, for otherwise, compounding of such constructions would give a wrong message to the public and encourage unauthorised construction [See Syed Muzaffar Ali v. Municipal Corpn. of Delhi, 1995 Supp (4) SCC 426]. Other constructions can certainly be compounded, of course on imposition of appropriate and proportionate penalty, for otherwise, compounding of such constructions would give a wrong message to the public and encourage unauthorised construction [See Syed Muzaffar Ali v. Municipal Corpn. of Delhi, 1995 Supp (4) SCC 426]. The question as to which construction is to be demolished and which is not to be demolished, has to be decided on the facts of each case. Reverting to the facts of the present case, it is not a case where constructions in the nature of one undertaken by the fifth respondent is prohibited in the area. On the other hand, the plot is one surrounded by residential buildings of similar nature. Further, it is not a case where the construction is carried out violating the Building Rules applicable, except as regards the provisions therein relating to the land user. On the other hand, the construction was made on the strength of the building permit issued by the local body. The construction is found to be unauthorised as the plot is one earmarked under the Scheme for schools, neighbourhood centres etc. The said reservation being one intended for the benefit of the allottees of residential plots in the area, when the said provision was flouted, the consequence is only that the beneficiaries of the scheme are deprived of the benefit. According to me, in the peculiar facts of this case, the construction is one that could be condoned by directing the fifth respondent to make good the loss caused by her to the allottees. While holding so, I am fully conscious of the fact that the power of this Court under Article 226 of the Constitution cannot be invoked for condoning an illegal and illegitimate act. Nevertheless, I am taking this view having regard to the wastage of resources, nuisance and inconvenience to the people residing close to the building, environmental impact etc., in the event of demolition being ordered, and the direction I propose to issue to the fifth respondent to make good the loss caused to the allottees. 22. Nevertheless, I am taking this view having regard to the wastage of resources, nuisance and inconvenience to the people residing close to the building, environmental impact etc., in the event of demolition being ordered, and the direction I propose to issue to the fifth respondent to make good the loss caused to the allottees. 22. Having taken the said view, the matter which was heard and reserved for orders once was posted again and the learned counsel for the parties on either side were requested to address the Court as to the directions to be issued to the fifth respondent to make good the loss caused to the allottees. Though a few opportunities were granted, both the petitioners as also the fifth respondent were unable to make any workable proposals. Having regard to the totality of the facts and circumstances, I deem it appropriate to dispose of the writ petition directing the second respondent to constitute a panel of three valuers registered with the Insolvency and Bankruptcy Board of India to assess the value of the plot purchased by the fifth respondent from the fourth respondent, and directing the fifth respondent to deposit the value of the plot as assessed by the panel of valuers appointed by the second respondent, with the second respondent. Ordered accordingly. This process shall be completed within two months. On depositing the value of the plot with the second respondent, the fifth respondent would be entitled to prefer an application before the Corporation for regularisation of the construction and if such an application is preferred by the fifth respondent after depositing with the second respondent the amount directed above, the Corporation shall regularise the construction carried out by the fifth respondent, if the same is in conformity with the Building Rules, except as regards the land user. The second respondent shall deposit the amount aforesaid, in turn, in a nationalised bank under any of their fixed deposit schemes and shall hold the said amount with interest in trust for the allottees of residential plots under the Scheme. The second respondent shall, thereafter invite suggestions from the allottees of residential plots under the Scheme as to the manner in which the amount in deposit is to be made use of for the benefit of the allottees and free to make use of the amount in deposit for the said purpose, after obtaining orders from this Court. The second respondent shall, thereafter invite suggestions from the allottees of residential plots under the Scheme as to the manner in which the amount in deposit is to be made use of for the benefit of the allottees and free to make use of the amount in deposit for the said purpose, after obtaining orders from this Court. The writ petition would be deemed to be pending for the said limited purpose.