IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 15526 of 2010(M) -------------------------------- PETITIONER: -------------- SREENIDHI TOWERS PRIVATE LTD., GURUVAYOOR, REPRESENTED BY ITS MANAGING DIRECTOR, K.M.MOHANDAS, S/O.MAMU, 'SREENIDHI', XXI/299, SREE NAGAR, POOTHOLE POST, THRISSUR DISTRICT. BY MR.BABU S. NAIR, ADVOCATE. MS.M.T.SHEEBA, ADVOCATE. MR.P.A.RAJESH, ADVOCATE. MR.K.RAKESH, ADVOCATE. MS.VRINDA PAUL, ADVOCATE. RESPONDENTS: ------------------ 1. THE CHIEF TOWN PLANNER, TRIVANDRUM. 2. THE DISTRICT TOWN PLANNER, THRISSUR. 3. THE GURUVAYOOR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, GURUVAYOOR, THRISSUR DISTRICT. MR.K.K.CHANDRAN PILLAI, ADVOCATE, FOR R3. MS. K.R. DEEPA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.15526 OF 2010 --------------------------------------- Dated this the 28th day of June, 2010. J U D G M E N T In this writ petition the petitioner is aggrieved by the rejection of the application for building permit to alter/modify the existing building and also to construct one additional floor with tress work. The rejection is on the ground that the area is earmarked for public and semi public purpose under the development scheme and on the western side of the plot there is a proposal for widening of the road to a width of 18.28 metres. 2. The ownership and possession by the petitioner extend to 17 cents comprised in R.S.No.3/6 of Thaycaud amsom, Perumbilly Chavakkad Desom within the Guruvayoor Municipality. There is an existing building in the said properties having building numbers IV/124, 125, 126, 127, 128 and 129. The existing building was constructed in the year 1994 after getting permit from the Municipality. The petitioner is the subsequent W.P.(C) No.15526/2010 2 purchaser. The petitioner had been submitting various representations before various authorities and the Government. The Government gave a reply as per Exhibit P5 and Exhibit P6 is another reply. 3. Learned counsel for the petitioner submitted that the Detailed Town Planning Scheme of the Guruvayoor Municipality was notified in the year 1976 and even in the particular area, so many buildings have been allowed to be constructed by the Municipality. Exhibit P9 series of photographs are relied upon by the petitioner in support of the above plea. It is submitted that even for utilisation of the area for public purpose and also for widening of the road, land acquisition proceedings are necessary and going by Exhibits P10 and P11 certificates issued by the Village Officer, Thaikkad, no land acquisition proceedings are pending. 4. Learned counsel for the petitioner Sri.Babu S.Nair relied upon the decision of the Apex Court in Raju S.Jethmalani and others vs. State of Maharashtra and others ((2005) 11 SCC 222) and that of the Division Bench of this Court in Padmini vs. W.P.(C) No.15526/2010 3 State of Kerala(1999(3) KLT 465) in support of the plea that a citizen cannot be deprived of his rights without following proper procedure of law. 5. The 3rd respondent has filed a statement pointing out that the DTP scheme has been notified in the Gazette on 17.02.1976 and that scheme came into existence and it is in force even now and the Government is now taking steps to modify/vary the scheme taking into consideration the present day requirements also. But unless and until the Government modifies or clarifies anything, the Municipality is bound by the provisions of the scheme which has become final. It is pointed out that as per the DTP scheme which is in force now the area where the petitioner's land in dispute is situated is classified as public and semi public area and the said land could be utilized only for the said purpose by the owners of the property. It is pointed out that no land acquisition is involved in such cases as the user of the area will be permitted by the local bodies and necessary permission will be granted to the owner for utilizing the land for the purposes like parking space, park etc. It is also pointed out W.P.(C) No.15526/2010 4 that the application of the petitioner for construction of additional floors and for extension can be considered only as a fresh application for permit. 6. Reliance is also placed on the decision of a Division Bench of this Court in Sayeesh Kumar vs. State of Kerala (2005 (4) KLT 1027) which declares that the Town Planning Act confers no power on the Government to tamper with the approved development scheme. Similar is the view taken in Writ Appeal No.2201/2008. 7. The first decision relied upon by the petitioner is Raju S.Jethmalani and others vs. State of Maharashtra and others ((2005) 11 SCC 222). Therein 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 W.P.(C) No.15526/2010 5 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 land the Government cannot deprive the owner of the land from using that land for residential purpose..........”. 8. A Division Bench of this Court in Padmini vs. State of Kerala (1999 (3) KLT 465) also considered a similar issue. It was held that unless there is 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 W.P.(C) No.15526/2010 6 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 an indefinite period on the pretext that they are taking steps to acquire the land”. 9. Sri.K.K. Chandran Pillai, learned counsel for the Municipality submitted that even herein the land can be utilized for public and other semi public purposes by the land owners in which case the Municipality can consider the grant of permission. The important question is whether a person can be deprived of his rights without recourse to any procedure established by law. W.P.(C) No.15526/2010 7 In fact, the Division Bench of this Court in Padmini vs. State of Kerala (1999 (3) KLT 465) has held that rejection of permission to construct a residential building, tantamounts to deprivation of the property of the appellants without the authority of law, which is in violation of Art.300-A of the Constitution of India. 10. The utilisation of private land for public or semi public purpose therefore, requires adequate compensation to be given to the party concerned. In that view of the matter, unless proceedings are initiated under the Land Acquisition Act, the Municipality cannot compel the owner in question to part away with the property for a public/semi public purpose. 11. In fact, in Nasar vs. Malappuram Municipality (2009 (3) KLT 92), following the decision of the Division Bench referred to above, it was held by this Court thus: “The acquisition of land for the purpose of a Town Planning Scheme has to be done under the L.A.Act. The cardinal date for various matters in relation to that legislation, including the fixation of compensation, is the notification of S.4(1) of the L.A.Act, which is the date that is relevant even for W.P.(C) No.15526/2010 8 determination of the compensation. This remains so in spite of the fact that in terms of the Municipality Act, the Government could be obliged to act on the request of the Municipality for the acquisition. Therefore, while the Government would not have any choice in the matter of acquisition for a Municipality and while any proposal of the Municipality to acquire would not depend upon any sanction of the Government, in so far as the owner of the land is concerned, the acquisition affects his interest only from the issuance of notifications and declarations under the L.A.Act and therefore, any attempt to curb the rights of the owners of the lands, until the publication of those statutory notifications and declarations, would result in infraction of the right to property under Art.300A of the Constitution. Any infraction of the principle stated therein would also result in the violation of the equality principle in the matter of enforcement of laws as is contained in Art.14 of the Constitution. Any demand to create a rider over the title of the owner of the property under the pretext of a Town Planning Scheme which has not become operational by acquisition would, essentially, be oppressive and would not be countenanced on the face of Art.14 of the Constitution”. 12. In fact, this decision was further explained by the W.P.(C) No.15526/2010 9 learned Judge in Secretary to Government vs. Nazar (2010 (1) KLT 286). It was clarified that any statement as to law in Nasar's case (2009(3)KLT 92) would not apply to cases which do not involve acquisition of land for the purpose of a Town Planning Scheme. Therefore, it is clear that wherever the requirement of acquisition is necessary, the Municipality cannot reject the application on the basis of the Detailed Town Planning Scheme alone. 13. Herein, even going by Exhibit P1, two reasons stated for rejection of the application are that the area is to be utilized for public and semi public purpose and that there is a proposal for widening of the road. All these will require utilization of the properties of various owners. Such an action can be taken only pursuant to the proceedings under the Land Acquisition Act. In fact, it is clear from Exhibit P6 also that the Government is proposing revision of the existing Detailed Town Planning Scheme. In the light of the legal position as discussed above, the reasons stated in Exhibit P1 cannot be supported. Exhibit P1 is W.P.(C) No.15526/2010 10 therefore, quashed. There will be a direction to the respondents to consider the application of the petitioner for building permit afresh in accordance with the findings rendered above and communicate the decision to the petitioner within a period of one month. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp