IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 WP(C).No. 20964 of 2009(M) --------------------------------------- PETITIONER: ------------------- LISSY RAJAN,W/O.RAJAN,VETTIPUZHA, PUNALUR,PATHANAMTHITTA. BY ADVS. SRI.BECHU KURIAN THOMAS, SRI.PAUL JACOB (P), SRI.ROSHEN.D.ALEXANDER, SMT.INDU SUSAN JACOB, SMT.NISHA JOHN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL ADMINISTRATION,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. PUNALUR MUNICIPALITY,MUNICIPAL OFFICE, PUNALUR,REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY,PUNALUR MUNICIPALITY, PUNALUR. R1 BY GOVERNMENT PLEADER SRI. C.M. SURESH BABU, R2 & R3 BY ADV. SRI.B.KRISHNA MANI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.20964/2009-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAN OF THE PUNALUR TOWN DTP SCHEME CALLED THE 'PUNALUR TOWN DTP SCHEME FOR KSRTC BUS STAND AND ENVIRONS. EXT.P.2: COPY OF THE JUDGMENT DTD. 11/03/05 IN W.P.(C).8267/05. EXT.P.3: COPY OF THE REPRESENTATION DTD. 10/09/94 SUBMITTED BY THE PETITIONER TO THE CHIEF MINISTER OF KERALA. EXT.P.4: COPY OF THE ORDER NO. E.2.9494/04 DTD. NIL, ISSUED BY THE R.2. EXT.P.5: COPY OF THE ROUGH SKETCH OF THE DTP SCHEME FOR PUNALUR KSRTC STAND AND ITS ENVIRONS. EXT.P.6: PHOTOGRAPHS (4 IN NO.) TO SHOW THE DEVELOPMENTS THAT HAVE TAKEN PLACE IN THE LAST 10 YEARS. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.20964 of 2009-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of July, 2010. JUDGMENT The petitioner challenges the proceedings issued by the third respondent herein, rejecting the application for issuance of building permit mainly on the ground that the property is intended for acquisition under the DTP Scheme. 2. The petitioner is a co-owner of an extent of 65 cents of land i n Sy. No.381/7A and 381/7B of Punalur Municipality. It is the case of the petitioner that he had carried out certain temporary constructions in the property which infuriated the authorities of the Municipality. Steps were also taken to acquire the property by recourse to land acquisition proceedings. It is averred that the proceedings have lapsed and thereafter the petitioner approached this Court in W.P.(C) No.8267/2005 for permission to construct the building and to retain the existing construction. By Ext.P2, this Court disposed of the writ petition with certain directions. Finally, the same has been rejected by Ext.P4. The petitioner also challenges the relevant provisions of the Town Planning Act also. 3. Ext.P1 is the true copy of the plan of Punalur Town DTP Scheme wpc 20964/2009 2 for KSRTC Bus Stand and Environs. Learned counsel for the petitioner submitted that the KSRTC has already purchased land for the construction of the bus stand. Further, the Municipality has been granting permits to numerous other people for constructing buildings within the said DTP Scheme. Mention is made about Pranavam Hospital, having building No.PMC 16/767, building constructed as NSS Office, bearing No.PMC 16/765 and prayer hall of India Pentecostal Church, numbered as PMC 16/766. It is pointed out that two new roads have also been constructed within the scheme area. It is therefore submitted that the scheme itself has become obsolate and redundant. The KSRTC has already completed the construction of the bus stand. 4. Learned counsel for the petitioner further submitted that it is evident that without acquisition proceedings, the Municipality will not be able to develop the plot in question and there was no proposal for acquisition proceedings as such at any point of time. Relying upon the principles stated by this Court in Francis v. Chalakudy Municipality (1999 (3) KLT 560), Padmini v. State of Kerala (1999 (3) KLT 465) and that of the Apex Court in Raju S. Jethmalani and others v. State of wpc 20964/2009 3 Maharashtra and others {(2005) 11 SCC 222), it is submitted that the right of a property owner under Article 300-A of the Constitution of India, cannot be defeated also. Ext.P6 series are photographs of the various buildings which have come up in the very same area. It cannot be disputed that the purpose shown as KSRTC Bus Stand Scheme requires acquisition of various lands. The decisions of this Court and that of the Apex Court relied upon by the petitioner, have dealt with the very same issue. 5. The first decision relied upon by the petitioner is Raju S.Jethmalani and others vs. State of Maharashtra and others ((2005) 11 SCC 222). Therein 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: “........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 wpc 20964/2009 4 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..........”. 6. A Division Bench of this Court in Padmini vs. State of Kerala (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 not in dispute that there was no proposal to acquire the land in question on the date of the appellants submitting the wpc 20964/2009 5 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”. 7. The Division Bench in Padmini's case (1999 (3) KLT 465), has held that rejection of application for permission to construct a residential building, tantamounts to deprivation of the property of the parties concerned without the authority of law, which is in violation of Article 300-A of the Constitution of India. The very same legal position was reiterated by this Court recently in Nasar v. Malappuram Municipality (2009 (3) KLT 92). 8. Herein, evidently there are no steps even as on today for acquisition of any property. Therefore, the reasons stated in Ext.P4 cannot be sustained. In that view of the matter, Ext.P4 is quashed. There will be a wpc 20964/2009 6 direction to respondents 2 and 3 to consider the application for building permit on its merits and without reference to the KSRTC Scheme, and communicate the decision, within a period of one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/