IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).No. 37648 of 2009(A) --------------------------------------- PETITIONER(S): ----------------------- MEHAMOL V., AGED 28 YEARS, D/O.VATAKETAN HAMSA, KAVUNGAL, MUNDAPARAMBIL, MUNDUPARAMBA P.O. MALAPPURAM DISTRICT. BY ADV. SRI.T.R.ASWAS SRI.ANIL KUMAR SREEDHARAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT TOWN PLANNER, MALAPPURAM. 3. THE MALAPPURAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MALAPPURAM. 4. DISTRICT COLLECTOR, MALAPPURAM. R1 & R4 BY GOVT. PLEADER SRI.C.M.SURESH BABU R2 & R3 BY ADV. SRI.N.ABDUL MAJEED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37648/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REGISTERED SALE DEED NO.1900/2007 OF S.R.O. MALAPPURAM. P2:- COPY OF THE RESIDENTIAL BUILDING PLAN SUBMITTED BY THE PETITIONER BEFORE THE MUNICIPALITY. P3:- COPY OF THE REJECTION ORDER ISSUED BY THE 3RD RESPONDENT. P4:- COPY OF THE JUDGMENT IN WPC. 14727/2009. P5:- COPY OF THE JUDGMENT IN WPC. NO.19337/2009. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37648 of 2009-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of July, 2010. JUDGMENT The petitioner is aggrieved by the rejection of the application for building permit. He is the owner and in possession of 13.72 ares of land in R.S. No.621/6 of Malappuram Village. Ext.P2 is the copy of the plan. By Ext.P3, it was rejected on the reason that the property is intended to be acquired for residential area, as per the approved Munduparambu Scheme. It is contended that the same is against the dictum laid down by 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). Exts.P4 and P5 are judgments of this Court rendered in similar circumstances, holding the view that the fact that the D.T.P. Scheme requires acquisition of land, cannot be taken as a ground for rejecting the application. 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 wpc 37648/2009 2 land, the Government cannot deprive the owner of the land from using that land for residential purpose. Their Lordship held thus in paragraph 3: “........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: wpc 37648/2009 3 “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 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.P3 cannot be sustained. Therefore, the writ petition is allowed. Ext.P3 is quashed. There will be a direction to the respondents to consider the application afresh in the light of the above findings and without reference to the D.T.P. Scheme. An appropriate wpc 37648/2009 4 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/