IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 WP(C).No. 30449 of 2009(A) -------------------------- PETITIONER(S): --------------- 1. ABDULLAH MOHAMMED, UMBEMMEL HOUSE, KALATHIPADY, PULPALLI P.O., MANJERI. 2. MOHAMMED, KOLATHUKUNNU HOUSE, PULPALLI P.O., MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.T.P.GOPAKUMAR RESPONDENT(S): ------------------------- MANJERI MUNICIPALITY, MANJERI, REPRESENTED BY ITS SECRETARY. *ADDL. 2ND RESPONDENT IMPLEADED 2. THE TOWN PLANNER (CENTRAL AREA DPT SCHEME), TOWN PLANNING OFFICE, MALAPPURAM , MALAPPURAM DISTRICT. *ADDL. 2ND RESPONDENT IS IMPLEADED AS PER ORDER DTD. 10.2.2010 IN IA. NO.1422/2010. R1 BY GOVERNMENT PLEADER SRI.C.M.SURESH BABU ADDL. R2 BY ADV. SRI.M.P.ASHOKKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30449/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER ISSUED BY RESPONDENT DTD. 30.7.09. P2:- COPY OF THE REPRESENTATION FILED BEFORE THE COUNCIL DT. 1.8.09. P3:- COPY OF THE COMMUNICATION ISSUED BY RESPONDENT DTD. 14.10.2009. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 30449 of 2009-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of July, 2010. JUDGMENT The petitioner is aggrieved by Ext.P1 order by which the respondent Municipality rejected the application submitted by the petitioner for a building permit. It is stated in Ext.P1 that the area is included in the D.T.P. Scheme, viz. for public and semi public purposes and commercial purposes. It is contended that merely because there is a proposal as such in the D.T.P. Scheme, in the absence of any acquisition proceedings, the same cannot be taken as a ground to reject the application. Reliance is placed on the decision of a Division Bench of this Court in Padmini v. State of Kerala (1999 (3) KLT 465) and that of the Apex Court in Raju S.Jethmalani and others vs. State of Maharashtra and others ((2005) 11 SCC 222). 2. In the decision of the Apex Court in Raju S.Jethmalani's case (supra), the question with respect to the preparation of development plan and inclusion of private property therein and the principles to be followed in such cases were considered. It was held that without acquiring the private land, the Government cannot deprive the owner of the land from using that land for residential purpose. Their Lordship held thus in paragraph 3: wpc 30449/2009 2 “........Therefore, the question is whether the Government can prepare a development plan and deprive the owner of the land from using that land? There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose..........”. 3. A Division Bench of this Court in Padmini 's case (1999 (3) KLT 465) also considered a similar issue. It was held that unless there is a proposal leading to a notification under Section 4(1) of the Land Acquisition Act, the Municipality cannot reject the application. The head note reads thus: “It is thus clear that the object of S.4(1) of the Land Acquisition Act is to give public notice of the proposal to acquire the land in a particular locality and that the ultimate subjective satisfaction regarding the public purpose and the suitability of the land for the public purpose, etc. is with the Government. In the instant case, it is wpc 30449/2009 3 not in dispute that there was no proposal to acquire the land in question on the date of the appellants submitting the application for permission to construct a residential building on 16.1.1996 or when he again applied for permission to construct the building on 23.12.1997 which was rejected by the Municipality by the endorsement as contained in Ext.P3 and no notification under S.4(1) of the Act was issued. Therefore, the Municipality had no authority to reject the application on the ground that the land is proposed to be acquired. Such rejection, in our opinion, does not in any way come within the ambit of S.393 of the Kerala Municipality Act, since, under the said provision, the application can be rejected only if the land is under acquisition proceedings. The Municipality cannot freeze the land for an indefinite period on the pretext that they are taking steps to acquire the land”. 4. In that view of the matter, Ext.P1 cannot be sustained. The implementation of the D.T.P. Scheme evidently requires acquisition of properties. Therefore, the writ petition is allowed. Ext.P1 is quashed. There will be a direction to the respondent to consider the application afresh in the light of the above findings and without reference to the D.T.P. Scheme. An appropriate decision will be taken within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/