IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 24366 of 2010(U) -------------------------- PETITIONER: --------------- M.A.MOHAN, SUDHARMA, MARIYAPALLY POST, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): --------------- 1. THE KOTTAYAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM-01. 2. THE SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM-01. 3. THE TOWN PLANNING OFFICER, KOTTAYAM MUNICIPALITY, KOTTAYAM-01. ADV. SRI.SIBY MATHEW FOR R1-2 SRI.PHILIP J.VETTICKATTU FOR R1-2 SRI.B.PREMNATH (E) FOR R1-2 GOVT.PLEADER SHRI C.M.SURESH BABU FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.24366/10 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF MEMO DT.29.5.07 BY THE 3RD RESPONDENT. EXT.P2: TRUE COPY OF APPLICATION DT.10.8.09 BY THE PUBLIC INFORMATION OFFICER. EXT.P3: TRUE COPY OF JUDGMENT DT.11.2.10 IN W.P.(C)No.4478/10. EXT.P4: TRUE COPY OF ORDER DT.22.7.10 BY THE 2ND RESPONDENT. TRUE COPY T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.24366 Of 2010 ----------------------------------------------------- DATED THIS THE 19th DAY OF OCTOBER, 2010 J U D G M E N T Aggrieved by Exhibit P4, rejecting the application for grant of building permit, this Writ Petition has been filed. 2. The main reason stated for rejecting the application is that in the Detailed Town Planning Scheme for Boat Jetty Area, an 18 metre road is contemplated and therefore no permission can be granted for constructing the building. 3. Heard the learned Standing Counsel for the Municipality. The learned counsel submitted that in the light of the Detailed Town Planning Scheme, no permission can be granted. 4. The learned counsel for the petitioner placed reliance on a judgment of this Court in W.P.(C)No.11171/2010, wherein an identical question was considered. The Scheme therein was DTP Scheme for area between Kottayam Railway Station and Eranjal Bridge. 5. Evidently, the construction of road will require acquisition of properties. There is no case for the Municipality W.P.(C)No. 24366/10 -2- that any notification has been issued under the Land Acquisition Act. Exhibit R1(a) is only a notification under the Town Planning Act. 6. The legal position is settled in this regard by various decisions of this Court and that of the Apex Court. In Padmini vs. State of Kerala (1999 (3) KLT 465) , the Division Bench was of the view that local authority cannot reject an application for building permit wherever acquisition of properties is required, but the same has not been initiated. Herein, evidently, the implementation of the Detailed Town Planning Scheme requires acquisition of properties. Therefore the principles stated by the Division Bench therein will apply. The same position is covered by a decision of the Apex Court in Raju S.Jethmalani and others vs. State of Maharashtra and others ((2005) 11 SCC 222). The relevant portion of the judgment reads as follows: “........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 W.P.(C)No. 24366/10 -3- 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..........”. 7. In that view of the matter, the petitioner is entitled to succeed in the Writ Petition. Exhibit P4 is quashed. There will be a direction to the Municipality to reconsider the application dated 6.7.2010 submitted by the petitioner in terms of the Building Rules and communicate the decision to the petitioner within a period of two months. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn