IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 WP(C).No. 37442 of 2009(A) -------------------------- PETITIONERS: --------------- 1. K.M.ALI AKBAR, AGED 56 YEARS, S/O.LATE ABU, KARUKAMANNIL HOUSE, PONMALA P.O. MALAPPURAM. 2. P.K.AYISHU, AGED 46 YEARS, W/O.K.M.ALI AKBAR, KARUKAMANNIL HOUSE, PONMALA P.O., MALAPPURAM. BY ADV. SRI.P.P.ABDUL KAREEM RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT. 2. THE MALAPPURAM MUNICIPALITY, REPRESENTED BY IS SECRETARY, MALAPPURAM. BY GOVT.PLEADER SMT.K.R.DEEPA FOR R1 ADV. SRI.N.ABDUL MAJEED,SC,MALAPPURAM MUNCIPALITY FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.37442 of 2009 --------------------------------- DATED THIS THE 15th DAY OF JULY, 2010 JUDGMENT The petitioners are aggrieved by the rejection of the application for building permit as per Exhibit P1. It is mentioned in Exhibit P1 that as per the scheme named 'Kunnummel Scheme', the property of the petitioners are also proposed to be acquired for residential purposes. 2. It is submitted by the learned counsel for the petitioner that the matter is covered by the decision 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) . In those two decisions, it was held that no land owner can be deprived of the right to develop their properties by any proposal for acquisition. Reliance is also placed on the decision of this Court in Nasar vs. Malappuram Municipality (2009(3) KLT 92). 3. A reading of Exhibit P1 shows that the area is earmarked for development under the Kunnummel Scheme by acquisition. The issue therefore is covered by the decision of this W.P.(C)No.37442/09 -2- Court in Padmini v. State of Kerala. Evidently, there is no acquisition proceedings as on today with regard to the property in question. Therefore, going by the dictum laid down in Padmini's case(supra), when the development of the area requires acquisition of properties and in the absence of any proceedings leading to the acquisition of properties, the application for building permit cannot be rejected. The Apex Court also held in Raju S.Jethmalani's case that without acquiring the private land, the Government cannot deprive the owner of the land from using that land for residential purpose. On this ground, the petitioner is entitled to succeed in this Writ Petition. 4. The Writ Petition is allowed. Exhibit P1 is quashed. There will be a direction to the 2nd respondent to consider the application for building permit submitted by the petitioners in accordance with the Rules and without reference to the Kunnummel Scheme and pass appropriate orders 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. T.R.RAMACHANDRAN NAIR, JUDGE. dsn