IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).No. 11656 of 2010(F) ------------------------------ PETITIONER(S): ----------------------- 1. K.P.VASUDEVA KURUP, KUTTIKKATTU HOUSE, NEAR P.W.D.OFFICE,T.B.KOTTAYAM -1. 2. G.RAJASEKHARA KURUP, ANARIL SANTHI BHAVAN, MALAKUNNAM P.O., CHANGANASSERY. 3. INDIRA DEVI R., SAIKRIPA,KOTTAMURY P.O., CHANGANASSERY. 4. ASHA BABU, -DO- -DO- 5. G.RAVINDRANATH, ANARIL BUNGALOW, MALAKUNNAM P.O., CHANGANASSERY. 6. G.SUBHASH, -DO- -DO- 7. BINDU CHANDRAN, CHANDRA VILAS MUTHOOR, P.O.THIRUVALLA. 8. SINDHU CHANDRAN, W/O.M.J.SREEKUMARAN NAIR, CHANDRA VILAS, MUTHOOR P.O. THIRUVALLA. 9. INDU CHANDRAN, CHANDRA VILAS MUTHOOR, P.O. THIRUVALLA. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.MAHESH MENON RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETATIAT, THIRUVANANTHAPURAM. W.P.(C) NO.11656/2010 2. KOTTAYAM MUNICIPALITY, REP.BY THE SECRETARY, KOTTAYAM MUNICIPALITY, KOTTAYAM. 3. THE DISTRICT TOWN PLANNER, O/O. DISTRICT TOWN PLANNER, KOTTAYAM. R1 & R3 BY GOVT. PLEADER SMT.K.R.DEEPA R2 BY ADVS. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU , SRI.B.PREMNATH (E). THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.11656 of 2010 --------------------------------- DATED THIS THE 4th DAY OF JUNE, 2010 JUDGMENT The petitioners herein are owners of various items of properties. The petitioners want to dispose of their properties for which they sought for No Objection from the Municipality. 2. According to the petitioners, the Town Planning Scheme for the Kottayam Municipality was adopted as per G.O. (MS)No.112/86/LAD dated 13.6.1986 was never brought into force and the same will not stand in the way of the petitioners disposing of their properties. Accordingly, they seek for the following reliefs in this Writ Petition. (a) a declaration that the reservation of the petitioners land in Sy.NO.1/4 of Muttambalam Village, Kodimatha Area, Kottayam as “land to be acquired for cart and lorry stand” and for a new 15 metre road, in GO(MS) No.112/86/LAD dated 13.6.1986 issued by the 1st respondent, has expired and ceased to exist and does not bind the petitioners or W.P.(C)No.11656/10 -2- their lands. (b) a writ, order or direction setting aside the reservation of the petitioners lands in Sy.No.1/4 of Muttambalam Village for the purpose of “land to be acquired for cart and lorry stand” and for a new 15 metre road as per GO(MS)NO.112/86/LAD dated 13.6.1986.” 3. The second respondent has filed a counter affidavit, wherein it is stated that the Town Planning Scheme is in existence and action is being taken in the area brought under the said Tow Planning Scheme. It is further mentioned that nothing stands in the way of the petitioners disposing of their property and the 2nd respondent has not prohibited the transfer and disposal of the property. In paragraph 5 it is stated that there is no proposal to acquire the land for the purpose under the Town Planning Scheme. Ultimately, it is mentioned in paragraph No.5 that if any construction activities are undertaken by the petitioner, it will obstruct the implementation of the Town Planning Scheme. W.P.(C)No.11656/10 -3- 4. The learned counsel for the petitioner submitted that in the light of the decision of a Division Bench of this Court in Padmini v. State of Kerala (1999(3) KLT 465, the petitioner is entitled to get the reliefs as sought for. After considering various aspects, the Division Bench held in paragraph 8 as follows: “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. In the decision reported in AIR 1985 SC 1622(supra) the Supreme Court has held that a bare perusal of S.4(1) of the Land Acquisition Act clearly shows that in order to comply with the statutory requirements therein set out, a notification stating therein the land which is needed or is likely to be needed for a public purpose has to be published in the official W.P.(C)No.11656/10 -4- gazette and the Collector has to cause public notice of the substance of such notification to be given at convenient places in the locality in which the land proposed to be acquired is situated. Both the conditions are mandatory. This decision also has not been followed by the learned Single Judge. We are of the opinion that the Municipality cannot freeze the land for an indefinite period on the pretext that they are taking steps to acquire the land. In our opinion, the learned Single Judge erred in holding that the expression “acquisition proceedings” will take in the decision and the sanction and the procedure to be followed for acquiring the land. The decision rendered by P.A.Mohammed, J. in Hassan's case(supra) is, in our opinion, directly on point. As pointed out by the Supreme Court in the decision reported in AIR 1984 SC 1622, the decision of the Government is hardly relevant unless it takes the concrete shape and form by publication in the official Gazette. The decision of the Government does not become effective and valid unless a notification in the official Gazette follows. Therefore, assuming that notification is a formal expression of a decision of the Government to acquire the land, unless the decision is notified in the Government Gazette by an appropriate notification, the proceedings for acquisition cannot be said to have been initiated and the decision would remain a paper decision. In such circumstances, the land in question cannot be considered to be one under acquisition proceedings.” 5. In the light of the above decision also, the right of the petitioners to sell their properties cannot be restricted even if the Town Planning Scheme is in operation as contended by the Municipality. Therefore, going by the dictum laid down in the W.P.(C)No.11656/10 -5- above decision, it is clear that unless the land acquisition proceedings are initiated by issuance of the Section 4(1) notification under the Land Acquisition Act, the Municipality cannot restrict the right of the petitioners from making any construction in the property and selling it to other parties. It is declared so. The Writ Petition is accordingly disposed of. No Costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn