Sev­er­al non-gov­ern­men­tal or­gan­i­sa­tions are plan­ning to ap­peal a High Court de­ci­sion which grant­ed the Cab­i­net the green light to trans­fer a hectare of land to the Hous­ing De­vel­op­ment Cor­po­ra­tion (HDC) to con­struct a 72-unit hous­ing de­vel­op­ment com­plex at Todd Street, San Fer­nan­do.

In a meet­ing at the Kr­ish­na Mandir, Todd Street, yes­ter­day, Ramesh Lawrence Ma­haraj, SC, told devo­tees and in­ter­est­ed par­ties that his le­gal team will file the mo­tion at the Court of Ap­peal to­day. In 2022, the Kr­ish­na Mandir, the Shri Kr­ish­na Se­va Trust Foun­da­tion, Stri Se­vak Sab­ha Inc and the Con­cerned Cit­i­zens for a Bet­ter San Fer­nan­do filed a claim against the Cab­i­net and the At­tor­ney Gen­er­al. They chal­lenged the law­ful­ness of the Cab­i­net’s Sep­tem­ber 8, 2022, de­ci­sion to trans­fer a hectare of land op­po­site the mandir to the HDC to build three res­i­den­tial tow­ers. Ma­haraj said that while the claimants have no prob­lem with the Cab­i­net trans­fer­ring the land to the HDC, it can­not con­struct hous­es there.

“We are say­ing in our case to the court that we recog­nise that the Cab­i­net has the pow­er un­der Sec­tion 75 to make pol­i­cy, but Cab­i­net is not above the law, and Cab­i­net is sub­ject to the law of the land. And what we al­so say is that the courts of Trinidad and To­ba­go have al­ready de­cid­ed in prin­ci­ple what our case is,” Ma­haraj said. He said the Cab­i­net de­cid­ed with­out con­sult­ing the Kr­ish­na Mandir, claimants or any groups in the area.

“In 1951, there was a sur­vey plan in the records of the Town and Coun­try Plan­ning Di­vi­sion, which has been ex­hib­it­ed and has been part of the ev­i­dence put in by the Cab­i­net of Trinidad and To­ba­go in the case that was be­fore the judge, that since 1951, this has been des­ig­nat­ed for plan­ning pur­pos­es to be used sole­ly for a build­ing of a tech­ni­cal and pri­ma­ry school in what is called a school zone.”

Ma­haraj said that Jus­tice Jacque­line Wil­son erred in her in­ter­pre­ta­tion of the law when she ruled in favour of the Cab­i­net in a ju­di­cial re­view on Ju­ly 4. He said Wil­son de­cid­ed the claimants were pre­ma­ture in fil­ing le­gal ac­tion as the land change ap­pli­ca­tion had yet to reach the Town and Coun­try Plan­ning Di­vi­sion (TCPD) and the En­vi­ron­men­tal Man­age­ment Au­thor­i­ty (EMA). Ma­haraj ex­plained that the NGOs’ chal­lenge at this stage was to nul­li­fy the pos­si­ble ar­gu­ment of their de­lay in fil­ing ac­tion. He said if they are suc­cess­ful at this stage, the claimant need not wor­ry about fur­ther de­vel­op­ments.

“There is a law that if you are fil­ing an ap­pli­ca­tion for ju­di­cial re­view, you have to act prompt­ly, and there is a lim­it of three months, and you must find your claim. If we had wait­ed on Town and Coun­try Plan­ning Di­vi­sion, and we had to file, they would then say we should have filed against the Cab­i­net de­ci­sion, and we are out of time. There are cas­es in Trinidad where, if you file late, you can­not file it again.”

Ma­haraj said Wil­son al­so found that the res­i­dents had no ex­pec­ta­tion of a sub­stan­tial ben­e­fit for the land re­main­ing un­der its orig­i­nal des­ig­na­tion. How­ev­er, his team dis­agreed and draft­ed an ap­peal. Among the grounds was that Wil­son erred by fail­ing to abide by set­tled pol­i­cy and prac­tice re­gard­ing the use of the land for in­sti­tu­tion­al pur­pos­es for 71 years. Ma­haraj said the ap­pel­lants have a le­git­i­mate ex­pec­ta­tion that the land clas­si­fi­ca­tion would not change with­out prop­er con­sul­ta­tion. He said the im­pune de­ci­sion would af­fect the ap­pel­lants. An­oth­er rea­son was that the Ju­di­cial Re­view Act, Sec­tion 20, re­flects that if a pub­lic au­thor­i­ty makes a de­ci­sion that im­pacts in­di­vid­u­als’ rights or in­ter­ests, it must fol­low the rules of pro­ce­dur­al fair­ness.

“The learn­ing judged erred in law, in fail­ing to un­der­stand, or to un­der­stand cor­rect­ly, that the Cab­i­net was re­quired if it in­tend­ed to change the use of this sub­ject lands, to con­duct con­sul­ta­tion with the ap­pel­lants and to prac­tice the rules of pro­ce­dur­al fair­ness.”

Ma­haraj said as far as he was con­cerned, the Cab­i­net would nev­er be able to change the land use as they are en­ti­tled to chal­lenge the de­ci­sion up to the Privy Coun­cil. How­ev­er, he is con­fi­dent of vic­to­ry in the Court of Ap­peal. Ma­haraj said they can al­so chal­lenge the TCPD and EMA process­es.