Ramachandran Nair, J.
This writ petition is filed by the petitioner, aggrieved by the rejection of the application for building permit.
2. Heard learned counsel for the petitioner Shri V. Krishna Menon and learned counsel for the Municipality, Shri M. Sreekumar.
3. The petitioner is Thiruvenkitachalapathi Kshethra Samithi, Thiruvenkidom, Guruvayur who had purchased the property abutting the temple and situated in Sy. No.176/4, 5 of Iringapuram Village in the name of the temple. They have decided to construct a Kalyanamandapam in the aforesaid property and submitted Ext.P2 application for permit. The plan was also submitted along with the same. In Ext.P3 the reason shown is that the land in Sy. No.176/4, 5 has been identified for park and open space as per the D.T.P. Scheme.
4. Learned counsel for the petitioner, by relying upon the decision of this Court in Nasar v. Malappuram Municipality (2009 (3) KLT 92) submitted that a similar objection raised therein was rejected by this Court following the decision of the Apex Court in Raju S. Jethmalani v. State of Maharashtra {(2005) 11 SCC 222) and that of a Division Bench of this Court in Padmini v. State of Kerala (1999 (2) KLT 465). It is submitted by the learned counsel that the Municipality, if desirous of providing a park, they will have to resort to acquisition proceedings. In the absence of any acquisition proceedings, the application ought not have been rejected.
5. Shri M. Sreekumar, learned counsel for the Municipality, by relying upon the averments in the counter affidavit filed, submitted that as per the Detailed Town Planning Scheme of the Municipality published on 2.2.1976 as per G.O.(Ms) No.25/76/LA&SWD, the property of the petitioner is coming under “Park and open space, palm groove”. It is submitted that the zoning regulations are liable to be adhered to by the Municipality.
6. The legal position is no longer res integra, in the light of the decision of this Court in Nasar's case (2009 (3) KLT 92. The learned Judge in paragraphs 6 and 7 has held as follows:
“6. In Padmini v. State of Kerala (1999 (2) KLT 465 = 1999 KHC 619), the Division Bench of this Court considered the question whether the Municipality involved in that case, namely, the Vadakara Municipality, was justified in rejecting the application for building permit on a ground referable to a proposal to acquire land in satisfaction of the provisions of the Town Planning Scheme which fell for consideration in that case and also whether the provisions of the Municipality Act, 1994 empower the Municipality to acquire and possess land or whether the acquisition has to be done under the provisions of the Kerala Land Acquisition Act, 1894, hereinafter, the “L.A. Act”, for short. The Bench concluded that the land in relation to which the building permit was sought for, was not under any proceedings for acquisition in terms of the L.A. Act as on the date of application for building permit and therefore, the Municipality was not justified to refuse permit on a ground relatable to the scheme. The ratio of that judgment is that (1) without recourse to the provisions of the L.A. Act, there cannot, be any acquisition for the purpose of a DTPS under the Town Planning Act and for an acquisition of land from a private owner, the very earmarking of a piece of land cannot result in deprivation of rights of the owner of that land and that (2) the Municipality is not justified in refusing permit under the provisions of the Municipality Act and the KMBR merely on the ground that the land is identified and earmarked for public purpose in terms of zoning done under the DTPS. The said proposition as enunciated by this Court is in clear conformity with the conclusions of the Hon'ble Supreme Court of India in Raju S. Jethmalani v. State of Maharashtra ((2005) 11 SCC 222) wherein, posing a question whether the Government can prepare a development plan and deprive the owner of the land from using that land, it was laid down that while there is no prohibition of including a private land in a development plan, no development can be made on that land unless that private land is acquired for development and still further, that the Government cannot deprive the persons from using their private property. It was categorically stated that the Municipal Corporation involved in that case had not taken any effort to acquire the plot which was the subject matter of the dispute and because it was not acquired, the owner of the land was entitled to relief and the Government were well within jurisdiction to grant the relief that it, did which generated that litigation.
7. With the aforesaid, it needs to be noticed that on the facts of the cases in hand, the 1990 Scheme was never followed by any acquisition of private lands and the Municipality does not dispute the fact that the lands in question are part of the holding of the petitioners. It has no case that the 1990 Scheme was made operational by effecting necessary acquisitions, including of the different parcels in question which belong to the petitioners. So much so, following the decision in Padmini (supra), there is no rhyme or reason for the Municipality to have refused the building permits sought for.”
7. As far as the present case is concerned, there is no proposal for acquisition of the land for any project under the Town Planning Scheme covering the plot in question. No procedures have been initiated under the Land Acquisition Act and the present Act and the objection raised herein on the face of it cannot be sustained. In fact, in paragraph 8 of the above judgment, it has also been held as follows:
“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 Article 14 of the Constitution.”
We affirm the above view.
8. In that view of the matter, the order Ext.P3 cannot be sustained and the same is quashed. There will be a further direction to the respondent Municipality to consider the application submitted by the petitioner without reference to the Detailed Town Planning Scheme and issue permit accordingly, within six weeks from the date of receipt of a copy of this judgment.
The writ petition is allowed as above. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) (P.V.ASHA, JUDGE) kav/