IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20964 of 2009(M)
1. LISSY RAJAN,W/O.RAJAN,VETTIPUZHA,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY SECRETARY
... Respondent
2. PUNALUR MUNICIPALITY,MUNICIPAL OFFICE,
3. THE SECRETARY,PUNALUR MUNICIPALITY,
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent :SRI.B.KRISHNA MANI
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :06/07/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.20964 of 2009-M
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Dated this the 6th day of July, 2010.
JUDGMENT
The petitioner challenges the proceedings issued by the third
respondent herein, rejecting the application for issuance of building permit
mainly on the ground that the property is intended for acquisition under the
DTP Scheme.
2. The petitioner is a co-owner of an extent of 65 cents of land i n Sy.
No.381/7A and 381/7B of Punalur Municipality. It is the case of the
petitioner that he had carried out certain temporary constructions in the
property which infuriated the authorities of the Municipality. Steps were
also taken to acquire the property by recourse to land acquisition
proceedings. It is averred that the proceedings have lapsed and thereafter
the petitioner approached this Court in W.P.(C) No.8267/2005 for
permission to construct the building and to retain the existing construction.
By Ext.P2, this Court disposed of the writ petition with certain directions.
Finally, the same has been rejected by Ext.P4. The petitioner also
challenges the relevant provisions of the Town Planning Act also.
3. Ext.P1 is the true copy of the plan of Punalur Town DTP Scheme
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for KSRTC Bus Stand and Environs. Learned counsel for the petitioner
submitted that the KSRTC has already purchased land for the construction
of the bus stand. Further, the Municipality has been granting permits to
numerous other people for constructing buildings within the said DTP
Scheme. Mention is made about Pranavam Hospital, having building
No.PMC 16/767, building constructed as NSS Office, bearing No.PMC
16/765 and prayer hall of India Pentecostal Church, numbered as PMC
16/766. It is pointed out that two new roads have also been constructed
within the scheme area. It is therefore submitted that the scheme itself has
become obsolate and redundant. The KSRTC has already completed the
construction of the bus stand.
4. Learned counsel for the petitioner further submitted that it is
evident that without acquisition proceedings, the Municipality will not be
able to develop the plot in question and there was no proposal for
acquisition proceedings as such at any point of time. Relying upon the
principles stated by this Court in Francis v. Chalakudy Municipality
(1999 (3) KLT 560), Padmini v. State of Kerala (1999 (3) KLT 465) and
that of the Apex Court in Raju S. Jethmalani and others v. State of
wpc 20964/2009 3
Maharashtra and others {(2005) 11 SCC 222), it is submitted that the
right of a property owner under Article 300-A of the Constitution of India,
cannot be defeated also. Ext.P6 series are photographs of the various
buildings which have come up in the very same area. It cannot be disputed
that the purpose shown as KSRTC Bus Stand Scheme requires acquisition
of various lands. The decisions of this Court and that of the Apex Court
relied upon by the petitioner, have dealt with the very same issue.
5. 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 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
wpc 20964/2009 4
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……….”.
6. 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 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
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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”.
7. The Division Bench in Padmini’s case (1999 (3) KLT 465), has
held that rejection of application for permission to construct a residential
building, tantamounts to deprivation of the property of the parties concerned
without the authority of law, which is in violation of Article 300-A of the
Constitution of India. The very same legal position was reiterated by this
Court recently in Nasar v. Malappuram Municipality (2009 (3) KLT 92).
8. Herein, evidently there are no steps even as on today for
acquisition of any property. Therefore, the reasons stated in Ext.P4 cannot
be sustained. In that view of the matter, Ext.P4 is quashed. There will be a
wpc 20964/2009 6
direction to respondents 2 and 3 to consider the application for building
permit on its merits and without reference to the KSRTC Scheme, and
communicate the decision, within a period of one month from the date of
receipt of a copy of this judgment.
The writ petition is disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/