IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932
WA.No. 1565 of 2010 --------------------AGAINST THE ORDER IN RP 1189/2009 DATED 4.3.2010 & JUDGMENT IN WPC.24798/2009 Dated 01/10/2009
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APPELLANT/REVIEW PETITIONER/RESPONDENT NO.4:
THE KALPETTA MUNICIPALITY, REP.BY ITS SECRETARY, KALPETTA,WAYANAD.
BY ADV. SRI.JOE JOSEPH KOCHIKUNNEL
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3:
1. M.MOHANDAS,'MOHANAM',PINNAGODE ROAD,
2. THE STATE OF KERALA,REP. BY THE ADDITIONAL SECRETARY,(GENERAL ADMINISTRATION DEPARTMENT) THIRUVANANTHAPURAM.
3. CHIEF TOWN PLANNER,TRIVANDRUM.
4. DISTRICT TOWN PLANNER,KALPETTA,WAYANAD.
R1 BY ADV.SRI.P.V.JYOTHI PRASAD
R2 TO R4 BY SR.GOVERNMENT PLEADER SRI.BENNY GERVASIS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY DELIVERED THE
## **J.Chelameswar, C.J. & P.R. Ramachandra Menon, J.**
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## W.A.No. 1565 of 2010
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## **JUDGMENT**
## **J.Chelameswar, C.J.**
Aggrieved by judgment dated 01.08.2009 in W.P.(C) No. 24798 of 2009 as reaffirmed by dismissing the Review Petition, R.P.No.1189 of 2009, by an order dated 04.03.2010, the Municipality whose Secretary was the 4[th] respondent in the writ petition preferred the present appeal.
2. We must place on record our regret that though the abovementioned Municipality is a necessary party which is declared under Section 5 of the Kerala Municipality Act to be a body corporate which can be sued or capable of being sued in its name, was not made a party to the writ petition nor did the Municipality raise any objection in that regard but chose to prefer the instant writ appeal. In our opinion this appeal is not maintainable as the appellant is neither a party to a proceeding of this Court nor an appropriate application seeking leave to file appeal against the judgment to which the instant appellant
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is not a party. Be that as it may, the facts situation leading to the present litigation and the issues are as follows:
3. The 1[st] respondent herein is a doctor who purchased certain parcel of land(17.5 cents) within the limits of the appellant Municipality. He proposes to construct a Nursing Home in the said property. He, therefore, made an application to the appellant seeking appropriate permission under the provisions of the Kerala Municipality Act. The same was rejected by an order dated 26.07.07(filed as Ext.P2 in the writ petition) by the appellant on the ground that the property in which the building is proposed to be constructed, is shown in the draft scheme prepared under the provisions of Sections 4 and 9 of the Madras Town Planning Act, 1920, as a property which can be acquired eventually for the purpose of construction of a bus station.
4. By the judgment under appeal, a learned Judge of this Court dismissed the writ petition stating that the Scheme which is relied upon by the appellant herein is un-operational and therefore the issue is covered by an earlier decision of this Court
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## in **Nasar v. Malappuram Municipality** [2009 (3) KLT 92].
5. The learned counsel for the appellant submitted that in view of Sections 33 and 34 of the Madras Town Planning Act read with Section 393 (1)(vii) of the Municipality Act, once it is indicated that if a particular piece of property within the limits of the Municipality is required for a public purpose, no construction on the said property can be allowed or a building permit for such a construction can be granted.
6. Section 393 of the Kerala Municipality Act indicates grounds under which an application for building permit can be rejected, which reads as follows:
“ **393. Grounds on which approval of site or permission to construct or reconstruct building may be refused.-** (1) The grounds on which approval of site for construction or reconstruction of a building or permission to construct or reconstruct a building shall be refused are the following, namely:--
xxx xxx
(vii) that the land is under acquisition proceedings.”
7. It can be seen from the above that the application
for construction of a building can be rejected on the ground that the land upon which the construction is proposed is a land under
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“acquisition proceedings”. The expression “acquisition proceedings” is not defined under the Act, but having regard to the fact that there are various laws providing for the acquisition of the immovable property and also the specific reference under Sections 33 and 34 of the Madras Town Planning Act to the Land Acquisition Act 1894 to the expression “acquisition proceedings” in our view is required to be understood as the “acquisition proceedings” contemplated under the Land Acquisition Act, 1894.
8. The scheme of the Land Acquisition Act, 1894 is that whenever the Government is of the opinion that a particular piece of land is required for a public purpose, a notification to that effect is required to be published under Section 4 and upon the publication of such notification any person having an interest in such property sought to be acquired may raise objections regarding the legality of such acquisition. On receipt of the objections and upon an appropriate consideration of the objections, if the State is still satisfied that the objections are not tenable and the acquisition is necessary for a public purpose may
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make a declaration contemplated under Section 6 of the Land Acquisition Act and upon such a declaration after following the procedure prescribed under the latter provisions of the Land Acquisition Act, the possession of the property can be taken by the State. It is well settled that the proceedings for acquisition under the Land Acquisition Act, 1894 commence with the publication of the notification contemplated under Section 4 of the said Act.
## 9. Sections 33 and 34 of the Madras Town Planning Act read as follows:
## **“33. Modification of Land Acquisition Act:-** Immovable
property required for the purpose of a town planning scheme shall be deemed to be land needed for a public purpose, within the meaning of the Land Acquisition Act, 1894, (and may be acquired-
(a) under the said Act, or
(b) under the said Act as modified in the manner hereinafter provided in this chapter.)
## **34. Notification under section 14 to have effect as declaration under section 6, Land Acquisition Act:-** (In cases
falling under clause (b) of section 33, a notification under section 14 shall, notwithstanding anything contained in the Land Acquisition Act, 1894, operate) in respect of any land for the purposes of the scheme as a declaration under section 6 of the said Act, and no further declaration shall be necessary, but it shall
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not be incumbent on the (State Government), or officer authorized in that behalf to take immediate steps for the acquisition of such land. Provided that if the land is not acquired within three years from th date of the notification,it shall cease to have effect as a declaration under section 6 of the Land Acquisition Act, 1894.”
10. Section 33 only declares that if immovable property is required for the purpose of a Town Planning Scheme, it is deemed to be land needed for a public purpose. It may be mentioned here that Section 4 (d) ***** of the Madras Town Planning Act stipulates that the Town Planning Scheme may provide for acquisition either by purchase, exchange or otherwise of any land included in the Scheme. All that Section 33 provides for is a legal fiction that a piece of land as required under a Scheme prepared under the Madras Town Planning Act is required for a public purpose as the existence of a public purpose is a constitutionally mandated requirement for the State to exercise a
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## “ **4. Matters that may be dealt with in Scheme** :-
(d) the acquisition by purchase, exchange or otherwise, of any land (or other immovable property) within the area included in the scheme whether required immediately or not.”
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right to compulsorily acquire the property. Section 34 of the Madras Town Planning Act, on the other hand, declares that if a particular piece of land falls within the ambit of Section 33 described above, then on the publication of a notification contemplated under Section 14 of the Madras Town Planning Act, the said notification shall be treated as a notification contemplated under Section 6 of the Land Acquisition Act, 1894. In other words, the need for once again going through the procedure of requirements of Sections 4(2) and 6 of the Land Acquisition Act, 1894 is dispensed with. But it must be remembered that such a fiction comes into operation only on the publication of the notification under Section 10 of the Madras Town Planning Act. There is no further fiction created under the Town Planning Act that on the publication of such a notification under Section 11, the acquisition proceedings contemplated under Sections 33 and 34 of the Act date back to the draft notification under Section 10 of the said Act. Assuming for the sake of argument that the publication of draft notification under Section 11 of the Madras Town Planning Act is something akin to
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a notification under Section 4(1) of the Land Acquisition Act, 1894 and therefore, the legal implications of such notification under Section 10 should also be the same as Section 4(1) of the Land Acquisition Act, we are of the opinion that there is nothing in the Land Acquisition Act or any other law which prohibits the owner of a piece of land which is the subject matter of Section 4 of the Land Acquisition Act from enjoying the property in any manner not prohibited by law including construction of a building thereupon if it is otherwise permitted under law. Therefore, the rejection of the permission claimed by the 1[st] respondent, in our opinion, is untenable.
We do not see any reason to interfere with the judgment under appeal and therefore the appeal is dismissed at the admission stage.
**J.Chelameswar, Chief Justice.**
**P.R. Ramachandra Menon, Judge.**
ttb
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