IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 WP(C).No. 27986 of 2009(P) ---------------------------------------- PETITIONER(S): ----------------------- SAJJAD SAMEER, AGED 46 YEARS, SON OF KUNJUMUHAMMED, DARIYA MANZIL, NEAR ALP SCHOOL, EZHUVATHURUTHY, PONNANI, REPRESENTED BY KOLLATHODI, MUHAMMED ISMAIL, AGED 59 YEARS, SON OF MUHAMED KOLLATHODI, SHANGRILA, P.O.AREACODE, MALAPPURAM DISTRICT. BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): -------------------------- 1. THE KOZHIKODE CORPORATION, REPRESENTED BY ITS SECRETARY, KOZHIKODE. 2. SECRETARY, THE KOZHIKODE CORPORATION, KOZHIKODE. R1 & R2 BY ADV. SRI.P.V.SURENDRANATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27986/2009-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE DATED 22/02/2008 BEARING NO.E 4/90429/06 ISSUED TO THE PETITIONER BY THE RESPONDENT. EXT.P2: COPY OF THE LETTER BEARING NUMBER 25/P/06/CDA DATED 22/01/2007 ISSUED TO THE PETITIONER BY THE CALICUT DEVELOPMENT AUTHORITY. EXT.P3: COPY OF THE NOTICE BEARING NO.E4/90429/06 DATED 28/06/2008 ISSUED TO THE PETITIONER BY THE RESPONDENT. EXT.P4: COPY OF THE NOTICE DATED 02/07/2007 BEARING NO.E4/90431/06 ISSUED BY THE TOWN PLANNNG OFFICER OF THE FIRST RESPONDENT TO SRI.MUHAMMED SAFARULLA. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.27986 of 2009-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July, 2010. JUDGMENT The petitioner is aggrieved by Ext.P3 notice issued by the Secretary of the Corporation declining permission for grant of a building permit. 2. The petitioner's application is to construct a shop cum office building in R.S. No.26 in Ward No.10, Kozhikode Taluk, Nagaram Village. Mainly it is pointed out that the proposed site is situated in an area to be acquired for commercial purpose and that the petitioner cannot be granted any exemption from zoning regulations. Ext.P2 is the communication issued by the Calicut Development Authority and Ext.P3 is the proceedings of the Corporation rejecting the application for permission. 3. Heard learned counsel for the petitioner and learned Standing Counsel for the Corporation. In Ext.P3 it is stated that as per the approved DTP Scheme, the area is to be acquired for commercial purposes. It is contended that proceedings for acquisition are not even in contemplation and actually the Calicut Development Authority had dropped the plan to acquire the area which is revealed from Ext.P4 notice. 4. The issue herein is covered by a decision of this Court in Padmini wpc 27986/2009 2 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). 5. 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 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 wpc 27986/2009 3 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 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 wpc 27986/2009 4 an indefinite period on the pretext that they are taking steps to acquire the land”. In that view of the matter, Ext.P3 cannot be sustained. Therefore, the writ petition is allowed. Ext.P3 is quashed. There will be a direction to the respondents to consider the application afresh in the light of the above findings and without reference to the D.T.P. Scheme. An appropriate decision will be taken 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/