IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 WP(C).No. 21825 of 2010(C) ---------------------------------------- PETITIONER(S): ------------------------- SHIBUKUMAR,S/O.SETHU,AGED 38 YEARS, NAVANIKKODU HOUSE,SAEKHARIPURAM, PALAKKAD DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------------------- THE PALAKKAD MUNICIPALITY,REPRESENTED BY ITS SECRETARY,PALAKKAD,PIN-678 001. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV. SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.21825/2010 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT DTD. 6/07/2010 TO THE PETITIONER. P2: COPY OF THE JUDGMENT DTD. 10/06/2009 IN WP(C) NO.14640/2009 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 21825 of 2010-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August, 2010. JUDGMENT The application filed by the petitioner for a building permit, having been rejected on the basis of a detailed Town Planning Scheme, this writ petition has been filed. 2. Ext.P1 is the communication issued by the Municipality stating that in the light of the detailed Town Planning Scheme and as per the Puthur Sub Centre Area Scheme, the property is included in the area earmarked for the construction of a Bus Bay. 3. The petitioner's application is for construction of residential apartments in a property having an extent of 60 cents. It is pointed out that the construction of Bus Bay requires acquisition of land and so far the respondents or any statutory authorities have not taken steps to acquire the land in question. The D.T.P. Scheme was prepared more than 20 years back in the Palakkad Municipality and so far there was not even an attempt to acquire the property. 4. The respondent has filed a counter affidavit wherein it is mentioned that the area is earmarked for a Bus Bay and the Municipality is wpc 21825/2010 2 not having any power to grant exemption to any Town Planning Scheme. 5. The legal position has been explained by a Division Bench of this Court in the decision in Padmini v. State of Kerala (1999 (3) KLT 465) and by the Apex Court in Raju S.Jethmalani and others vs. State of Maharashtra and others ((2005) 11 SCC 222). 6. 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 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 wpc 21825/2010 3 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. 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 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 wpc 21825/2010 4 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”. 8. Herein, evidently the Bus Bay can be constructed only after the required properties are acquired. The acquisition proceedings are not even in contemplation. Therefore, permanently the rights of the owners cannot be debarred like that. In Ext.P2 judgment produced by the petitioner also, this question has been elaborately considered. 9. Therefore, the writ petition is allowed. Ext.P1 is quashed. There will be a direction to the Municipality to consider the application for building permit on its merits and in accordance with the Municipality Building Rules, without reference to the D.T.P. Scheme, 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/