IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 29276 of 2011(H) ---------------------------------------- PETITIONER(S): ------------------------- SINDHU C.,W/O.PRADEEP M, AGED 36 YEARS, SINDHU NIVAS, HARISHANKAR ROAD, THAREKKAD, PALAKKAD BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): ---------------------------- 1. PALAKKAD MUNICIPALITY REP.BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD.PIN-678 001 2. THE TOWN PLANNING OFFICER, PALAKKAD MUNICIPALITY, MUNICIPAL OFFICE, PALAKKAD.PIN-678 001 3. THE STATE OF KERALA, REP.BY ITS SECRETARY ,DEPARTMENT OF LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM.PIN-695 001 R1 & R2 BY ADV. SRI.T.C.SURESH MENON,SC SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD R3 BY GOVERNMENT PLEADER SRI.MUHAMMED SHAFI.M. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.29276/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE POSSESSION CERTIFICATE DATED 28/12/2009 ISSUED BY THE VILLAGE OFFICER, PALAKKAD II VILLAGE. P2 COPY OF THE COMMUNICATION DATED 30/10/2007 ISSUED BY THE 1ST RESPONDENT. P3 COPY OF THE LETTER DATED 21/06/2010 OF THE 2ND RESPONDENT. P4 COPY OF THE PROCEEDINGS DATED 08/07/2010 OF THE 1ST RESPONDENT. P5 COPY OF THE EXTRACT OF THE SAID NOTIFICATION DATED GO(MS) 210/2009 DATED 11/11/2009. P6 COPY OF THE JUDGMENT DATED 12/08/2010 IN WP(C)NO.21825/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 29276 OF 2011 ------------------------------- DATED THIS THE 7TH DAY OF DECEMBER, 2011 JUDGMENT Writ petition is filed for a direction commanding the lst respondent to issue building permit to the petitioner to construct a residential building in the plot of land belonging to him and to quash Exts.P2 to P4 orders. 2. Petitioner applied for a building permit for the construction of a residential building. The application for building permit was rejected stating that there is a proposal to acquire the petitioner's property for the purpose of Detailed Town Planning Scheme and therefore, the application for building permit cannot be granted. Learned counsel for the petitioner submitted that the Detailed Town Planning Scheme referred to in Exts.P2 and P3 has become obsolete. It is pointed out that the zoning regulations relied on by the Municipality came into force in 1984 and that the same has not been implemented despite the lapse of several decades. It is -2- W.P.(C).No.29276/2011 also pointed out that the area, where the petitioner sought permission to construct a building is a pucca residential area, that most of the residential buildings in and around the properties of the petitioner were constructed about 15 to 20 years old and that the Municipality had issued building permit to construct those residential buildings in the adjacent properties of the petitioner. It is not disputed that the Government or the Local Authority has not acquired any properties for implementation of the scheme. 3. A Division Bench of this Court in Padmini v. State of Kerala (1999 (3) KLT 465) has considered the similar issue and 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 Court held as follows: “It is thus clear that the object of Section 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 -3- W.P.(C).No.29276/2011 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 Section 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 Section 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.” Similar view was taken by this Court in the decision reported in -4- W.P.(C).No.29276/2011 Nazar v. Malappuram Municipality (2009 (3) KLT 92). 4. In the decision reported in Raju S. Jethmalani and others v. State of Kerala (2005 (11) SCC 222) the Apex Court held that though land belonging to private persons can be included in development plan, unless the land is promptly acquired by the State Government or the Municipal Corporation to effectuate the said purpose, the land owner cannot be denied the right to use the property for any other purpose. Therefore, I am constrained to hold that the orders rejecting the application for building permit cannot be sustained. 5. In the result, Exts.P2 to P4 orders are quashed. The lst respondent-Municipality is directed to re-consider the application for building permit submitted by the petitioner herein and pass appropriate orders thereon, after affording an opportunity of being heard to the petitioner, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. It is made clear that the judgment does not stand in -5- W.P.(C).No.29276/2011 the way of implementing any such scheme or for acquisition of property for any public purpose in future. Writ Petition is disposed of as above, HARUN-UL-RASHID, Judge. kcv.