Allowed

Francis T.Chacko v. Alappuzha Municipality and Others

Kerala HC16 Jul 2010WP(C)/17452/2010

Case brief

AI extract

What is this about?

The High Court of Kerala held that a municipality cannot freeze private land or reject a building permit based on a Development Plan proposal for road widening unless the land has been formally notified under Section 4(1) of the Land Acquisition Act. The petitioners’ application was rejected without such notification.

What did the court decide?

Exhibits P3 and P5 quashed. Direction to Municipality to reconsider application under building rules within one month.

Francis T.Chacko Vs Alappuzha Municipality and Others — Property and Title | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR

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FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932

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WP(C).No. 17452 of 2010(F)

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PETITIONER(S):

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FRANCIS T. CHACKO, CHARTERED ACCOUNTANT, THENGUMMOOTTIL HOUSE, VILLA NO.2, SOUPARNIKA GARDENS, TGRIPUNITHURA-682 301.

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BY ADVS. SRI.K.I.MAYANKUTTY MATHER, SRI.P.P.RAMACHANDRAN.

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RESPONDENT(S): ----------------------------

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1. ALAPPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, ALAPPUZHA.

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2. THE SECRETARY, ALAPPUZHA MUNICIPALITY, ALAPPUZHA.

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3. GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL ADMINISTRATION (G) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM.

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R1 & R2 BY ADV. SRI.M.K.CHANDRA MOHANDAS

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R3 BY GOVERNMENT PLEADER SRI. C.M. SURESH BABU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.17452/2010 F

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COPY OF THE EYE SKETCH SHOWING LIE OF THE PETITIONER'S PROPERTY AND THE SURROUNDING AREA DTD. NIL.

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P2: COPY OF BUILDING PLAN SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 22/10/2010.

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P3: COPY OF THE COMMUNICATION RECEIVED FROM THE OFFICE OF THE 2ND RESPONDENT DTD. 16/03/2010.

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P4: COPY OF THE INFORMATION FURNISHED BY THE EXECUTIVE ENGINEER, NH DIVISION, ALAPPUZHA DTD. 20/03/2010.

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P4(A): COPY OF THE INFORMATION FURNISHED BY THE PUBLIC INFORMATION OFFICER, TOWN PLANNING OFFICE, ALAPPUZHA DD. 6/04/2010.

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P4(B): COPY OF THE INFORMATION FURNISHED BY THE PUBLIC INFORMATION OFFICER, ALAPPUZHA MUNICIPALITY DTD. 8/04/2010.

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P4(C): COPY OF THE INFORMATION FURNISHED BY THE PUBLIC INFORMATION OFFICER, ALAPPUZHA MUNICIPALITY DTD. 21/04/2010.

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P4(D): COPY OF THE INFORMATION FURNISHED BY THE PUBLIC INFORMATION OFFICER, TOWN PLANNING OFFICE, ALAPPUZHA DTD. 11/05/2010.

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P5: COPY OF THE PROCEEDINGS OF THE 2ND RESONDENT DTD.26/5/2010.

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P6: COPY OF THE JUDGMENT IN WP(C) NO.18907/2006 DTD. 19/03/2007.

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P6(A): COPY OF THE JUDGMENT IN WP(C) NO.24830/2007 DTD. 18/03/2008.

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RESPONDENT'S EXHIBITS: N I L

/TRUE COPY/

P.S.TO JUDGE

Kss

T.R. Ramachandran Nair, J.

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- - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.17452 of 2010-F

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Dated this the 16th day of July, 2010.

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JUDGMENT

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The petitioner seeks to quash Ext.P3, a reply given by the second respondent rejecting the application for building permit on the plea that under the D.T.P. Scheme there is a proposal to widen the road near the property by 18 meters and therefore sanction can be given only by leaving at least five meters from the boundary of the road.

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The total extent of property is 5.15 cents of land comprised in R.S. No.21/5 of Alappuzha West Village. Ext.P2 is the copy of the plan submitted by the petitioner. Learned counsel for the petitioner submitted that the D.T.P. Scheme is of the year 1992 and so far no steps have been taken to implement the scheme. The question therefore is whether the proposal to widen the road as per the D.T.P. Scheme can be taken as a ground to reject the application for building permit.

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In the statement filed on behalf of respondents 1 and 2, what is contended is that the D.T.P. Scheme for Alappuzha Municipality was published in the year 1998 and per the Scheme, it is proposed to widen the

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wpc 17452/2010

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Callen Road to a width of 18 meters. It is therefore pointed out that the petitioner was advised to submit a revised plan by leaving out 5 meters open space from the boundary of the road.

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Evidently, the widening of the road requires acquisition of property, presumably on either side of the existing road. Going by the statement, filed by the Municipality, even now there is no proposal to acquire any property. Evidently, that indicates that the scheme has not been put to implementation so far. Without resorting to acquisition, an owner of a property cannot be deprived of it.

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The question whether the property can be freezed indefinitely by a local authority on the basis of the D.T.P. Scheme, which requires acquisition of property, is covered by 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 v. State of Maharashtra and others {(2005) 11 SCC 222). The Division Bench, after analysing the various aspects, has held as follows:

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“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

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wpc 17452/2010

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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”.

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6. In Raju S.Jethmalani 's case { (2005) 11 SCC 222} 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:

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“........Therefore, the question is whether the Government can prepare a development plan and deprive

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wpc 17452/2010

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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..........”.

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In the light of the above legal position, as it is not evident that there is any proposal for acquisition of the property, it cannot be said that the petitioner will have to leave five meters open space from the boundary of the road for getting sanction. The land cannot be freezed in contemplation of a proposal for widening a road, which is the dictum laid down by this Court and the Apex Court in the above decisions.

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In that view of the matter, Exts.P3 and P5 quashed. There will be a direction to the Municipality to reconsider the application in accordance

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wpc 17452/2010

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with the building rules and take a decision without referring to the D.T.P. Scheme for widening of a road and the same will be communicated to the petitioner, within a period of one month from the date of receipt of a copy of this judgment.

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The writ petition is disposed of as above. No costs.

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(T.R. Ramachandran Nair, Judge.)

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kav/

Francis T.Chacko v. Alappuzha Municipality and Others

Case brief

What is this about?

What did the court decide?

Francis T.Chacko v. Alappuzha Municipality and Others

Case brief

What is this about?

What did the court decide?

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