IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 19739 of 2010(N) -------------------------- PETITIONER(S): --------------- VIJAYALEKSHMI, ATHIYARAKKUNNATHU, MALAPPURAM VILLAGE, ERANADU TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.ABDUL JAWAD RESPONDENT(S): --------------- 1. MALAPPURAM MUNICIPALITY, REP. BY THE SECRETARY, MALAPPURAM. 2. SECRETARY, MALAPPURAM MUNICIPALITY, MALAPPURAM. BY ADV. SHRI N. ABDUL MAJEED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 19739 of 2010-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010. JUDGMENT Aggrieved by the rejection of an application for building permit by the respondents, this writ petition has been filed. The petitioner and her three children respectively, own and possess 11 cents of land in Sy.No.539/8 and 38.58 cents in Sy. No.539/9 in Malappuram Village. The proposal is to construct a commercial building in the property. 2. In Ext.P2, the reason for rejection shown is that the property is included in the DTP Scheme for development of a road by widening it. It is the contention of the petitioner that the detailed town planning scheme, even though was there, it expired long back. It is further pointed out that the right of an owner of the property to construct a building, cannot be denied on the ground of the proposed acquisition. Reliance is placed on 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 v. State of Maharashtra and others {(2005) 11 SCC 222). 3. Heard learned counsel for the petitioner, learned Govt. Pleader and learned Standing Counsel appearing for the Municipality. wpc 19739/2010 2 4. Herein, what is shown as a reason for rejection is that the property is required for acquisition for the widening of a road under the DTP Scheme. As on today, any land acquisition proceedings have not been initiated. Therefore, the same is only in contemplation. The property of a private person can be utilised for a public purpose only by acquisition. The right under Article 300-A of the Constitution cannot be deprived without any sanction of law. 5. In Raju S.Jethmalani 's case ((2005) 11 SCC 222), 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 his purposes. 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 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, wpc 19739/2010 3 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'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 19739/2010 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”. 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. For all these reasons, the writ petition is allowed. Ext.P2 is quashed. There will be a direction to the respondents to reconsider the application for grant of building permit and communicate the decision to the petitioner in the light of the findings rendered above, within a period of one month from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) wpc 19739/2010 5 kav/