IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 WP(C).No. 18705 of 2010(K) ---------------------------------------- PETITIONER(S): ------------------------ E.J.LUKOSE, ELAYANKAL HOUSE, UZHAVOOR POST, KOTTAYAM. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): -------------------------- 1. THE SECRETARY TO GOVERNMENT, TOWN PLANNING LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, TRIVANDRUM P.O.-695 001. 2. THE CHIEF TOWN PLANNER, TRIVANDRUM P.O.-695 001. 3. THE TOWN PLANNING OFFICER, KOTTAYAM P.O.-695 001. 4. THE SECRETARY, KOTTAYAM MUNICIPALITY P.O., KOTTAYAM-695 001. R1 TO R3 BY GOVT. PLEADER SRI.C.M.SURESH BABU R4 BY ADVS. SRI.SIBY MATHEW, SRI.PHILIP J.VETTICKATTU, SRI.B.PREMNATH (E). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18705/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPLICATI9ON BY SAJAN CHACKO, KOSHY JOHN AND ALIAS DTD. 3.10.2008. P2:- COPY OF THE MEMO ISSUED BY THE 3RD RESPONDENT DTD. 9.3.2010. P3:- COPY OF THE LETTER BY THE PETITIONER. P4:- COPY OF THE REPLY DTD. 18.5.2010. P5:- COPY OF THE LETTER BY THE PETITIONER. P6:- COPY OF THE REPLY DTD. 28.5.2010 BY THE PUBLIC INFORMATION OFFICER. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 18705 of 2010-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of July, 2010. JUDGMENT The challenge is against the rejection of the application for building permit which was submitted by the petitioner for constructing a commercial complex in the property having an extent of 30.442 cents in Block No.IV of Muttambalam Village. Ext.P2 is the communication issued to the petitioner after rejecting the application. It is pointed out that the area is included in the D.T.P. Scheme for the formation of the proposed M.C. Road-bypass Alignment. It is the contention of the petitioner that the scheme was notified in 1979 and has not been implemented at all. It is further pointed out that merely because of such a scheme, the application cannot be rejected evidently, since no proceedings have been taken for acquiring the properties also. Thus, it is contended that in the absence of any acquisition proceedings, the application cannot be rejected. Reliance is placed on the decision of a Division Bench 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 vs. State of Maharashtra and others ((2005) 11 SCC 222). 18705/2010 2 2. Heard learned Standing Counsel for the Municipality, who submitted that the rejection is perfectly justified. 3. In the decision of the Apex Court in Raju S.Jethmalani's case (supra), 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 land the Government cannot deprive the owner of the 18705/2010 3 land from using that land for residential purpose..........”. 4. 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 an indefinite period on the pretext that they are taking steps to acquire 18705/2010 4 the land”. 5. In that view of the matter, Ext.P2 cannot be sustained. Therefore, the writ petition is allowed. Ext.P2 is quashed. There will be a direction to the respondent 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/