IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WP(C).No. 28316 of 2005(U) -------------------------------------- PETITIONERS: ------------------ 1. SUBHA BALAKRISHNAN, C/O.P.V.BALAKRISHNAN NAIR, SURYAKANTHI KALLYANA MANDAPAM, KOZHIKODE 2. 2. SREEKUMAR, DO. DO. 3. UMA, DO. DO. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: ---------------------- 1. THE SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE CHIEF TOWN PLANNER, OFFICE OF THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. 3. THE CORPORATION OF CALICUT, REPRESENTED BY THE SECRETARY, CALICUT. 4. THE SECRETARY, CALICUT DEVELOPMENT AUTHORITY, CALICUT. BY GOVERNMENT PLEADER BASANT BALAJI R1 & 2 BY ADVOCATE SHRI C.M. SURESH BABU, SC FOR R3 & 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO. 28316 OF 2005 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE RESPONDENTS 1 AND 2 DATED 4.6.2003. EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.26069 OF 2003 DATED 24.5.2004 OF THIS HONOURABLE HIGH COURT. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 23.2.2005 ISSUED TO THE FIRST PETITIONER. EXHIBIT P4 TRUE COPY OF THE LETTER SENT BY THE FIRST RESPONDENT TO THE FIRST PETITIONER DATED 24.6.2005. RESPONDENTS' EXHIBITS: NIL ------------------------------------- K. PADMANABHAN NAIR ,J. ------------------------------------------------- W.P.(C) No.28316 of 2005 ------------------------------------------------- Dated, this the 5th day of February, 2008 JUDGMENT Petitioners are challenging Ext.P3 order issued by the Deputy Secretary, Local Self Government (M) Department to the petitioners. Petitioners are owners of 18 cents of land comprised in T.S.No.587/2 in Ward No.2 of Kozhikode Corporation. According to them they purchased the same in the year 1995 and filed application for granting necessary building permit as early as in 1996. That application was rejected by the Corporation. Hence they filed W.P.(C) No.26069/2003 before this Court. This Court after considering the rival contentions raised by both sides directed respondents 1 and 2 to hear and dispose of the representation filed by the petitioners within a period of two months. Thereafter their representation was considered and rejected as per Ext.P3 order. Challenging that order this Writ Petition is filed. 2. The grievance of the petitioners is that on account of the Detailed Town Planning Scheme which was introduced as early as in 1990 third respondent Corporation was not permitting the owners of land included in the Scheme to make any development in that area. 3. First respondent has filed a counter affidavit contending that the draft proposal for the Scheme was published in leading newspapers in the year 1990 inviting objections and several objections were received and the same were WP(C)No.28316/2005 2 scrutinised by Calicut Development Authority Executive Committee on 29.6.1993. The objections were rejected and thereafter the Detailed Town Planning Scheme for the formation of a road was sanctioned by the Government on 18.8.1999. It was contended that the petitioners purchased the land after publication of the draft notification with the full knowledge of the existence of Detailed Town Planning Scheme. It was further contended that petitioners can effect constructions leaving the area which is proposed for the formation of road. It was contended that though Section 34 of the Madras Town Planning Act provides that the scheme will expire after three years, it is not incumbent upon the Government or local authority to take immediate steps for acquisition of land included in the notified scheme. 4. Third respondent Corporation had also filed a counter affidavit contending that the application for building permit submitted by the petitioners were rejected since the said land was included in the Detailed Town Planning Scheme for the formation of seven metre wide road. It was contended that Detailed Town Planning Scheme was sanctioned by the Government on 18.8.1999. It was further contended that as per the Scheme the proposed road is passing through the petitioners' property and there is no provision for permitting construction of any building in the proposed land. It was contended that draft notification was published in the year 1990 and objections were invited from the public in the year 1993 and the petitioners purchased the land with the full WP(C)No.28316/2005 3 knowledge that such a draft Scheme is in existence. 5. Even assuming that petitioners purchased the land with the knowledge of existence of the Scheme the authorities cannot indefinitely freeze the land. In Raju S.Jethmalani v. State of Maharashtra ((2005) 11 SCC 222) the Hon'ble Supreme Court had held that a citizen cannot be deprived of his right without following the proper procedure of law. It was also held that lands cannot be freezed for indefinite period and if the Government or local authority is in need of the same, it shall be acquired within a time frame. In that case six months time was granted to complete the acquisition proceedings. I am of the view that the same principle can be following in this case also. So there will be a direction to the respondents to initiate acquisition proceedings within six months from the date of receipt of a copy of this judgment. If the respondents 1 and 2 fail to initiate land acquisition proceedings within the time granted, respondents 3 and 4 shall issue necessary building permit to the petitioners and they are free to make any construction in the property. Writ Petition is disposed of in the above terms. K. PADMANABHAN NAIR, JUDGE. cks