JUDGMENT : Amit Rawal, J. Present intra court appeal is directed against the judgment of the Single Bench dated 11.12.2019, along with an application seeking condonation of delay of 1249 days. An additional affidavit dated 04.08.2023 has also been filed seeking condonation of delay. Paragraphs 3 to 5 of the affidavit read as under; “3. The above Writ Appeal was filed against the judgment of the Learned Single Judge dated 11.12.2019. The Appeal ought to have been filed within 30 days of the receipt of the copy of the judgment of the single judge. Concededly certified copy of the judgment was applied for on 17.12.2019 and received by the Office of the Advocate General on 19.12.2019 and it was communicated to the Government on 31.12.2019. It is stated in paragraph 3 of the additional affidavit that "the Government sought the legal opinion of the Advocate General on 11.12.2019." It is un- understandable how the Government could seek legal opinion in a matter, the disposal of which had been communicated from the Advocate General's office to the government only on 31.12.2019. It is thus evident that the averments stated in paragraph 3 of the additional affidavit are incorrect and only cooked up reasons. 4. The averiments in paragraph 4 of the additional affidavit are evidently reasons invented/cooked up for the purpose of explaining the delay in filing the appeal. The averments should be honest and just. The statement in paragraph 4 of the additional affidavit that a letter dated 03.02.2022 was received from the Local Self Government Department enquiring about the status of filing the appeal in the matter and thereupon the office of the Advocate General found out the misplaced files in their office and the Appeal was filed on 15.06.2023 is totally incorrect and so depicted only to mislead this Hon'ble Court on facts. The misplacement of file in the office of the Advocate General is evidently a concocted reason and the same is apparent from the fact that such a plea was not stated in the original affidavit filed along with the application for condonation of delay in filing the Appeal. There is no mention even in the additional affidavit when the office of the Advocate General rendered the legal opinion to the Government in response to the letter dated 11.12.2019. There is no mention even in the additional affidavit when the office of the Advocate General rendered the legal opinion to the Government in response to the letter dated 11.12.2019. There is also no mention when exactly the office of the Advocate General could find out the alleged missing files in their office to enable them to file the appeal on 15.06.2023. The deponent to the affidavit is not at all competent to speak about the alleged missing of files in the office of the Advocate General. The explanation offered in paragraph 4 of the additional affidavit is really vague and insufficient to justify condonation of the inordinate delay in filing the appeal. 5. The averments in paragraph 5 of the additional affidavit is contrary and inconsistent to what is stated in paragraph 4 of the affidavit. In order to demonstrate the inconsistency in the matter, I am producing herewith the affidavit and petition (CM Appl. No.1/2022 in RP No.815/2022) for reference and is marked as Annexure R1(a). The said RP was filed before this Hon'ble Court on 22.08.2022, whereas this Appeal is seen filed on 15.06.2023. It is therefore clear that the averments in paragraph 5 of the additional affidavit are also incorrect and misleading. 2. Challenge was laid to the order dated 03.05.2017 of the Local Self Government, rejecting the request for construction of the building on the ground that as per the Town Planning Scheme, the area falls within the Agricultural Zone. 3. During the pendency of the writ petition, an Advocate Commissioner was appointed who submitted a report dated 04.01.2018 along with the site plan. Paragraphs 3 to 5 of the same reads as under: “3) The petitioner and the counsel took me to the nearby properties such as Noel Green Nature Apartments, Alliance Apartments, Yeric Garden Apartments, Asset Cyber Heights Apartments, Noel Palm Dale Villas. DLF New Town Apartments, Prestige Hills Side Gate Way Shopping Mall-cum- Residential Villas and apartments, Infra Meadows Apartments, Noel Ivy Creek Villas, Divine Park Villas, Apple Town Villas, Royas Crown Apartments, Olive Villas and Apartments, Cheloor El Dorado Apartments, Melon Wood Castle Apartments, Kayees Hostel, Nalanda Hostel, Alpha Homes. The location and distance of the above properties are described in the sketch produced along with this report and may be taken as a part and parcel of this report. The location and distance of the above properties are described in the sketch produced along with this report and may be taken as a part and parcel of this report. 4) The Kayees Hostel is situated on the eastern side of the property within 20 meters distance from the petitioners property. There is a small portion of land belonging to a third party between the hostel and the petitioners property. The hostel was found to be newly constructed and on enquiry it was told that the building already existed and the floors above the ground floors were newly constructed very recently. Documents were not produced by any party to ascertain the age of construction. But the construction was found to be newly done. 5) Though the immediate neighbouring boundaries of the petitioners properties are barren lands, the properties within a kilometer distance radius of the petitioners property were found to be predominantly developed as residential apartments and commercial buildings. The property beings situated very close to the Collectorate is found to be in a very economically progressing and developing area. There are many buildings, shop rooms and commercial constructions taking place within a distance of one kilometer radius. It was also found that the area is within 5 Kms of road distance from the Smart City Project and IT park at Kakkanad.” 4. Learned Single Bench allowed the writ petition as per the judgment rendered by the Division Bench of this court in State of Kerala v Earthspace Builders and Developers (Writ Appeal No.559 of 2016) . The case of the appellants is that, review was filed in the judgment(supra) particularly with regard to the finding that, once the Town Planning Scheme has been in force and not implemented, it will not be operational and therefore, the permit could not have been refused. The aforementioned review was filed on the basis of the judgment of the Division Bench in Regional Town Planner v. Muhammed Rasheed [ 2019 (3) KLT 433 ] Learned Division Bench of this Court, vide judgment dated 26.07.2023, reviewed the aforementioned findings and held as under: “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. 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 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 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/agricultura l 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.” 5. Instead of the word ‘not operational’ or ‘never implemented’, the expression, ‘impracticable’, regarding the implementation of the scheme, had been used by protecting the rights of the party respondents. 6. In the instant case, the respondents-petitioners had submitted an application for setting up of the villas, despite the fact that the Scheme was in force from 1991 and modified in 2007, which was rejected on the ground that it is falling within the agricultural zone. The report of the Local Commissioner reveals that, in and around the area, there are various commercial buildings. Moreover, after the judgment of this Court, respondents-petitioners had been granted with the development permit dated 03.03.2022 from Thrikkakkara Municipality and renewed the permit from time to time. But owing to the pendency of the writ appeal with the application for condonation of delay without interim stay, further steps cannot be taken as it may entail into complications. 7. Learned Senior Counsel Mr.Mayankutty Mather submitted that many writ petitions, on the basis of the judgment referred to by the learned Single Bench, have been allowed and are still holding the field, despite the order of the review. Basically, the judgments were passed on account of the judgment of the Supreme Court in Raju S.Jethmalani v. State of Maharashtra [ (2005) 11 SCC 222 ] wherein directions were issued to the Municipality to pass orders on the application for building permit, uninfluenced by the provisions of the Town Planning Scheme, as it was refused on the ground that the land was earmarked as agricultural zone. In Raju S.Jethmalani (supra), it was observed that the Town Planning Scheme which had never been implemented cannot be used against the person seeking a 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. 8. The report of the Advocate Commissioner along with the site plan reveals that many commercial buildings, schools etc are already there around the area of the respondents-petitioners. 8. The report of the Advocate Commissioner along with the site plan reveals that many commercial buildings, schools etc are already there around the area of the respondents-petitioners. The State cannot play hide and seek with the court and adopt a dichotomous approach in refusing the permit when other buildings are being granted permit and carrying on the business. 9. As the respondents-petitioners in the instant case had deposited the conversion charges amounting to Rs.2,43,000/-, we are of the view that the judgment of the Single Bench is liable to be upheld with a clarification that the findings could not be construed strictly as per the judgment rendered in W.A.No.559 of 2016, as it will be subject to the finding given in the review petition ie., R.P.No.815 of 2022 decided on 26.07.2023. 10. The reasoning given in the application seeking condonation of delay is also not accepted. Writ appeal stands dismissed on the ground of delay as well as on merits.