JUDGMENT : EASWARAN S., J. 1. R.S.A.No.701/2011 arises out of the concurrent findings rendered by the Additional Munsiff Court - I, Ernakulam in O.S.No.1214/2006 and Principal Sub Court, Ernakulam in A.S.No.41/2010 and W.P.(C)No.8456/2019 is filed by the legal heir of the deceased 3 rd defendant in O.S.No.1214/2006. 2. The brief facts necessary for the disposal of the matters are as follows: 2.1. The plaintiffs/ appellants in R.S.A instituted the suit for permanent prohibitory injunction and for a declaration against defendants 1 and 2, namely, the Greater Cochin Development Authority (GCDA). The plaintiffs prayed that they are the absolute owners of an extent of 10.192 cents of land with a building comprised in Survey No.934/4 of Ernakulam Village. The plaintiffs purchased the property on 10.05.1991 and obtained building permit on 28.09.2002. Based on the building permit, they have contructed the building and also put up a gate on the eastern side of the building. The entry into the building is from the northern side. The defendants 1 and 2 namely, the GCDA, attempted to convert the road earmarked for the development project plan into freehold land and made an allotment to the 3 rd defendant. The 3 rd defendant taking advantage of the allotment and support from defendants 1 and 2, attempted to take possession of the property lying just in front of the plaintiffs’ residence in the norther side. At that point of time, the plaintiffs came to know about the action of the defendants 1 and 2 and therefore, instituted the suit for prohibitory injunction restraining the defendants 1 and 2 from attempting to induct third parties including the 3 rd defendant into possession of the property lying immediately to the north of the plaint schedule property. 2.2. The defendants 1 and 2 resisted the suit by contending that, even though the land lying on the northern side of the plantiffs’ property was acquired for the road, the same is not fully earmarked for the road and that as per Resolution No.136/92-93 of the Executive Committee of the GCDA, it was decided to reduce the width of the proposed road to 7 metres and the alignment was altered. It was further contended that, since the defendants as per the Resolution No.136/92-93 had decided to reduce the width of the road to 7 metres, the attempt of the plantiffs are only to subvert the rightful claim of the 3 rd defendant pursuant to the allottment made by the GCDA. The plaintiffs immediately on filing of the written statement, sought amendment of the plaint by seeking to incorporate a declaratory relief to declare the resolution taken by the GCDA to reduce the width of the road to 7 metres is null and void. The application for amendment was allowed by order dated 17.01.2008 and the additional prayers were incorporated. On behalf of the plaintiffs, Exts.A1 to A12 series documents were produced and PW1 was examined. On behalf of defendants, Exts.B1 to B11 were marked and DW1 and DW2 were examined and Exts.C1 to C3 series are the report, rought sketch and photographs filed by the Advocate Commissioner. The Advocate Commissioner was examined as CW1. 2.3. The Trial Court on the basis of the oral and documentary evidence framed the following issues: “1. Whether suit is not maintainable? 2. Whether the plaintiffs are entitled for permanent prohibitory injunction sought for? 3. Whether the suit is bad for non joinder of necessary Parties? 4. Whether the plaintiffs are entitled for declaration sought for? 5. Reliefs and costs?” On appreciation of the oral and documentary evidence, the Trial Court came to the conclusion that, since the plaintiffs have a separate opening in the eastern side, they are not entitled for the reliefs sought for in the plaint and accordingly, dismissed the suit. Aggrieved, the plaintiffs preferred A.S.No.41/2010, which was also dismissed by judgment dated 23.12.2010 and hence, the present regular second appeal. 3. In W.P.(C)No.8456/2019, the legal heir of the 3 rd defendant in O.S.No.1214/2006 approached this Court seeking a direction to the GCDA to complete the allotment made to the husband of the petitioner and execute the sale deed and hand over 2.817 cents of land allotted to her husband as per Ext.P1 allotment letter. It is contended that, only on the filing of the writ petition, the litigation between the appellants in the second appeal and the GCDA was brought to her notice. It is contended that, only on the filing of the writ petition, the litigation between the appellants in the second appeal and the GCDA was brought to her notice. Later, upon realizing the nature of the contentions raised by the parties and the affidavit filed on behalf of the GCDA, she understood that the proposal by the GCDA to vary the town planning scheme was not accepted by the Government. Consequently, the possibility of getting the land allotted to her as per Ext.P1 was remote, and she sought an amendment to the writ petition, requesting a direction to the GCDA to return the amount collected by them with due interest and compensation. Since the dispute raised in the writ petition has a close bearing on the decision to be taken by this Court in the second appeal, the writ petition was also tagged to be heard along with the regular second appeal. 4. Heard, Adv.V.V.Asokan - learned Senior Counsel, assisted by Adv.S.Parvathi, appearing for the appellants/plaintiffs, Adv.Vipin P.Varghese – learned Standing Counsel for the GCDA and Adv.Johnson Manayani - learned counsel appearing for the legal heirs of deceased 3 rd defendant/writ petitioner. 5. Adv.V.V.Asokan - learned Senior Counsel appearing on behalf of the appellants/plaintiffs, would point out that the variation of any proposal made under a town planning scheme can only be taken by the State Government in terms of the provisions contained under Section 13 of the Town Planning Act, 1108(ME). With reference to the counter affidavit filed by the GCDA in W.P.(C)No.8456/2019, the learned Senior Counsel would point out that the proposal given by the GCDA for variation of the scheme has not been accepted by the State Government. If that be so, the allotment made in favour of the original 3 rd defendant in the suit has to necessarily fail. He would further point out that, in terms of the decision of this Court in Godavari Bhai v. Cannanore Municipality [ 1984 KLT 1103 ], the appellants have every right to access the public street adjoining their land. Therefore, the action of the GCDA in trying to infringe such a right is clearly questionable. He would further point out that, in terms of the decision of this Court in Godavari Bhai v. Cannanore Municipality [ 1984 KLT 1103 ], the appellants have every right to access the public street adjoining their land. Therefore, the action of the GCDA in trying to infringe such a right is clearly questionable. The courts below erred egregiously in finding that the appellants have got an alternate way through the eastern side of the plaint schedule property to access the public road, which is incorrect and unwarranted of the facts and evidence produced before the courts below. 6. Per contra, Adv.Vipin P.Varghese - learned Standing Counsel appearing for the GCDA, would point out that as per the resolution taken by the GCDA in the year 1993, the width of the road has been reduced to 7 metres and it is pursuant to the said decision that an allotment was made in favour of the 3 rd defendant. It is only because of the litigation that the original 3 rd defendant could not be put into the possession of the property, which is under dispute. At the same time, the learned Standing Counsel for the GCDA would fairly submit before this Court that, the proposal given by the GCDA was not accepted and that as matters stands today, the decision to vary the width of the road from 10 metres to 7 metres has not been approved by the State Government. 7. Adv.Johnson Manayani - learned counsel appearing for the legal heir of the original 3 rd defendant and also the writ petitioner, would submit that at this point of time, his client is not interested in getting the property alloted to her late husband. As early as in the year 2004, her husband had paid the entire money to the GCDA, which amounts to Rs.1,97,190/- and is yet to get possession of the property. At this point of time, he prays that a necessary direction be issued to the GCDA to refund the aforesaid amount with adequate interest and due compensation for the loss incurred. 8. I have considered the rival submissions raised across the Bar, perused the judgments of the courts below, records of the case and also the counter affidavit filed on behalf of the GCDA in W.P.(C) No.8456/2019. 9. 8. I have considered the rival submissions raised across the Bar, perused the judgments of the courts below, records of the case and also the counter affidavit filed on behalf of the GCDA in W.P.(C) No.8456/2019. 9. When the R.S.A was admitted to file, this Court on 20.07.2011, framed the following substantial question of law: “Whether an approved Government Scheme formulated under the Town Planning Act could be varied by the Greater Cochin Development Authority without the prior concurrence and approval of the Governinent and if so, as the width of the northern road was reduced from 10 to 7 metres, without the concurrence and approval of the State Government is it valid and if so whether the difference in the extent could be alloted by the Greater Cochin Development Authority and if so, whether the allotment to the third respondent is valid.” 10. The answer to the above question would ultimately depend upon this Court finding whether the GCDA has got power to vary the town planning scheme. Section 13 of the Town Planning Act, 1108 (ME), reads as under: “ 13. Variation or revocation of scheme .- (1) A town-planning scheme sanctioned under Section 12 may at any time be revoked or varied by a subsequent scheme, published and sanctioned in accordance with this [Act]: Provided that the municipal council shall be competent to modify a scheme after it has been sanctioned by Our Government under Section 12 by an agreement entered into with the persons interested in the scheme and with the concurrence of Our Government. (2) (a) Our Government may, at any time, by notification in Our Government Gazette, vary or revoke a scheme sanctioned under Section 12. (b) Before issuing such notification Our Government shall publish in the prescribed manner a draft of such notification together with a notice mentioning the reasons for the proposed variation or revocation and specifying a date on or after which such draft will be taken into consideration and shall consider any objection or suggestion which may be received in respect of such draft from the council or any person interested in the scheme before the date so specified.” A reading of Section 13 shows that a scheme sanctioned under Section 12 may be varied or revoked by a subsequent scheme published and santioned in accordance with law. The only requirement under Section 13 is that the said variation or revokation has to be approved by the Government under Section 12. Admittedly, even going by the counter affidavit filed in W.P.(C)No.8456/2019 by the GCDA, though a decision was taken by the Executive Committee in the year 1993 to vary the scheme by reducing the width of the road from 10 metres to 7 metres, the State Government has not accorded sanction. Pertinently, the GCDA again took up the matter before the State Government as per letter dated 02.02.2018. The aforesaid narration of facts would show that, at no point of time, when the resolution was taken by the GCDA as disclosed in the written statement, there was any preceding sanction given by the Government under Section 12. Therefore, the plaintiffs were justified in asking for a declaratory relief to declare the Resolution No.136/92- 93 as void. 11. A reading of the judgments of the courts below would certainly show that, both the courts below misdirected itself while considering the scope of Sections 12 and 13 of the Town Planning Act, 1108 (ME). Equally so, the Trial Court erred in holding that the plaintiffs have got an alternate way through the eastern side of the property to access the main door and therefore, the relief sought for cannot be granted. As found by this Court in Godavari Bhai (supra), the plaintiffs have a right to approach the civil court, if the access to the public street adjoining the land is adversely effected. Therefore, notwithstanding the fact that the plaintiffs have an alternate access from the eastern side of their property into the public road, when attempts were made to block the access from their property to the road towards the northern side, the plaintiffs’ were perfectly justified in approaching the civil court. Since it is an admitted case that the variation proposed in the year 1993 was without obtaining prior sanction from the State Government under Section 12 of the Town Planning Act, 1108 (ME), all consequential decisions to allot the balance extent of property in favour of the original 3 rd defendant should also necessarily fail. 12. Since it is an admitted case that the variation proposed in the year 1993 was without obtaining prior sanction from the State Government under Section 12 of the Town Planning Act, 1108 (ME), all consequential decisions to allot the balance extent of property in favour of the original 3 rd defendant should also necessarily fail. 12. Resultantly, answering the question of law framed by this Court in the R.S.A. in favour of the appellants, it is held that the decision to allot the 2.817 cents of land in front of the plaintiffs’ northern boundary in favour of the original 3 rd defendant by relying on Resolution No.136/92-93 is illegal and that such variation, being sought to be done without obtaining the prior sanction of the State Government, is not valid and binding on the plaintiffs. Accordingly, the appellants are entitled to succeed and the appeal stands allowed by reversing the judgment and decree in O.S.No.1214/2006 by the Additional Munsiff’s Court - I, Ernakulam, as confirmed by the Principal Sub Court, Ernakulam, in A.S.No.41/2010. Resultantly the suit will stand decreed as prayed for. Parties are directed to suffer their respective costs. 13. Insofar as the prayer sought for in W.P.(C)No.8456/2019 is concerned, in the light of the findings rendered by this Court in RSA No.701/2011, the prayer for writ of mandamus to the GCDA to execute the sale deed in respect of 2.817 cents of land cannot be granted by this Court. But, however, since the writ petitioner has sought an alternate relief for a direction to the GCDA to return the amount of Rs.1,97,190/- together with interest and just compensation, this Court is inclined to accept the said request and grant a relief to the extent of directing the GCDA to return Rs.1,97,190/- together with interest @ 10% from 24.08.2004 till realisation. As regards the compensation for the damages caused for the petitioner, the petitioner will be at liberty to invoke the jurisdiction of the civil court claiming appropriate reliefs. The amount, as directed above, shall be paid to the petitioner within two months from the date of receipt of the copy of this judgment. If the amount as directed by this Court is not made within two months, it is made clear that the amount shall carry interest @ 12% from 24.08.2004, till the same is realised. Accordingly, R.S.A.No.701/2011 and W.P.(C)No.8456/2019 are allowed.