IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 20848 of 2010(E) ------------------------------------- PETITIONER(S): ------------------------ P.SAIDU, PUZHAKKATHODI HOUSE, MUNDUPARAMBA POST, MALAPPURAM DISTRICT, PIN-676 509. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT TOWN PLANNER, MALAPPURAM. 3. THE MALAPPURAM MUNICIPALITY, REPRESENTED BY THE SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM. 4. THE DISTRICT COLLECTOR, MALAPPURAM. R1,R2 & R4 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI R3 BY ADV. SRI.N.ABDUL MAJEED,SC,MALAPPURAM MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.20848/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PARTITION DEED DTD. 3.8.1989. P2:- COPY OF THE TAX RECEIPT. P3:- COPY OF THE CERTIFICATE DTD. 26.4.2010. P4:- COPY OF THE PLAN OF BLOCK NO.1. P5:- COPY OF THE PLAN OF BLOCK NO.2. P6:- COPY OF THE REJECTION MEMO DTD. 15.6.2010. P7:- COPY OF THE APPLICATION DTD. 17.4.2010. P8:- COPY OF THE MEMO DTD. 17.5.2010. P9:- COPY OF THE REPLY DTD. 11.5.2010. P10:- COPY OF THE JUDGMENT DTD. 25.6.2008 IN WPC. NO.15077/2008 AND JUDGMENT DTD. 19.6.08 IN WPC. 18356/08. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 20848 of 2010-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of August, 2010. JUDGMENT An applicant for grant of building permit is the petitioner herein. He is aggrieved by Ext.P6 reply given by the Corporation denying the same on the plea that there will be violation of the detailed Town Planning Scheme known as “Munduparamba Scheme”. 2. The property in question is 37 cents in R.S.No.622/2A7. It is averred in the writ petition that there was a small hut in the property bearing No.22/192, which was demolished in the year 1993 as evidenced by Ext.P3 and the petitioner wants to construct a new house in the place of the said hut. 3. It is pointed out that the scheme , viz. “Munduparamba Scheme” was evolved on 12.7.1988 which was never implemented. Ext.P8 reply received under the Right to Information Act, is relied upon to show the same. Evidently, the Scheme refers to construction of a road. 4. Reliance is placed on Ext.P10 judgment of this Court wherein, in similar circumstances, rejection of the application was interfered by this Court. wpc 20848/2010 2 5. The respondents have filed a counter affidavit supporting the order. The question is whether the rejection of the application can be supported. Evidently, going by para 8 of the counter affidavit, as per the “Munduparamba Scheme” there is a proposal for land acquisition for road widening. Evidently, it has not materialised so far and not even a proposal is there. 6. The issue is covered in favour of the petitioner in the light of a decision of 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). 7. In the decision of the Apex Court, 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 that private land is acquired for development. The wpc 20848/2010 3 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..........”. 8. 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 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 wpc 20848/2010 4 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”. A mere proposal in the Town Planning Scheme which requires acquisition of properties or its implementation cannot be a ground to reject the application for building permit. 9. In that view of the matter, the writ petition is allowed. Ext.P6 is quashed. There will be a direction to the Municipality to reconsider the application for building permit without reference to the “Munduparamba Scheme” and in accordance with the Kerala Municipality Building Rules and communicate the decision to the petitioner 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/