Radhakrishnan, J.:— The question that is posed for consideration in this case is whether the Government have got power to grant exemption under the Town Planning Act for construction of a non-residential building contrary to the approved development scheme.

2. Petitioners are residents of Ward No. IV of Vadakkevila Panchayat in Kollam District, the area which falls within the master plan area under the Kollam Development Authority and is also covered by the master plan sanctioned and notified for the Kollam Development Authority. They are aggrieved by the Government Order G.O(Rt.) 1296/97.LAD. dated 5-4-1997 by which exemption was granted to 7th respondent for construction of a hospital building from the zoning regulation of the sanctioned development Plan for Kollam. Counsel appearing for the petitioner Sri. Dinesh R. Shenoy submitted that Government have not power to grant exemption under the Town Planning Act once the development plan has been approved. Seventh respondent made an application to the Government for exemption for construction of a hospital building in a residential area included in the approved development scheme. Seventh respondent as well as respondent No. 1 have taken up the stand that even if the development scheme has been approved by the Government, Government have got power under Section 13 of the Town Planning Act, 1108 to revoke, modify or amend the scheme.

3. Government of Kerala in exercise of the powers conferred under subsection (3) of Section 12 of the Town Planning Act, 1108 have sanctioned the development plan for Quilon Town. The sanctioned scheme has been published under subsection (5) of Section 12 of the Act vide notification, G.O (MS) No. 219/86.LAD dated 3rd November, 1986 in the Kerala Gazette No. 50 dated 23rd December, 1986. Prior to that the Quilon Development Authority had forwarded the Development Plan (Master Plan) for Quilon Town to the Government under Section 12 of the Town Planning Act, 1108 through the Chief Town Planner. Government examined the scheme in detail and had accorded sanction to the scheme and notified the same as required under subsection 5 of section 12 of the said Act. Undisputedly the area in question falls within the residential zone. Question is whether once the scheme has been approved and published in the Gazette, Government can tamper with the scheme.

4. We are of the view, Town Planning Act confers no power on the Government to tamper with the approved development scheme. Government have no power togrant individual exemption. Section 13 of the Town Planning Act only enables the Government to revoke the scheme as such and not to grant individual exemption orders. In our view, the action of the Government granting exemption is arbitrary and without authority of law. Apex Court in Virender Gaur v. State of Haryana. 1995 AIR SCW 306 had interfered with the sanction given for the construction of a Dharmasala contrary to the approved municipal scheme. Apex Court held that the grant of lease by the Government was clearly without authority of law and without jurisdiction. It was also pointed out that the open lands vested in the municipality were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreational, play ground and ventilation purposes and the buildings directed to be constructed necessarily adversely affect the health and the Government, sanitation and produce other effects on the residents in the locality. The court held, the order passed by the Government and the action taken pursuant thereto by the municipality would clearly defeat the purpose of the scheme. A Division Bench of the Delhi High Court in B-Block Residents Welfare Association v. D.D.A AIR 2003 Delhi 169 held that converting of residential area into commercial area cannot be justified.

5. We are of the view once the development scheme has been approved and published in the Gazette stating that a particular area has been earmarked as residential zone, the Government cannot tinker with the same and grant permission for construction of a non-residential building in a residential zone. Individual exemption granted to the 7th respondent for construction of hospital building in a residential area would upset the entire scheme and would also adversely affect the health, environment, sanitation, ecology etc. of the locality. Under such circumstance we find no hesitation to quash the Government Order dated 5-4-1997. Original petition is therefore allowed. Ext. P10 Government Order of exemption would stand quashed.