Dr.A.R.
Lakshmanan (ACJ) and S. Sankarasubban, JJ.
Padmini Vs. State of Kerala
W.A.
No. 329 of 1999
05-Aug-1999
R.
Bhaskaran For Appellants
Government Pleader (Alexander Thomas) & P.C.
Sasidharan For Respondents
JUDGMENT
AR. Lakshmanan, Ag. C.J.
1. Heard Mr. R. Bhaskaran for the
appellant, Mr.P.C. Sasidharan for the 2nd respondent and Government Pleader for
the first respondent.
2. Petitioners in the Original
Petition are the appellants herein. They are in possession of 26 cents of land
in R.S.247/6C-2 in Vadakara amsom, desom as per registered document dated
27.1.1969. The property is situated very near to the new bus stand and the bye
pass road. It is submitted that the appellants are residing in a rented
building. Therefore, they applied for permission to construct a residential
building, to the 2ndrespondent Municipality on 16.1.1996, which was rejected by
the Municipality as per Ext. P1 on the same day stating that the area is
proposed to be acquired for residential purposes. According to the appellants,
the first respondent State of Kerala have decided to abandon the Narayanapuram
Housing Colony Scheme since it was found impractical and non-profitable. In
support of the said contention the appellants have produced Ext. P2
communication from the first respondent to a Member of the Legislative Assembly
with copy to one of the residents of Narayanapuram. Since the scheme was
abandoned as per Ext.P2, the appellants again applied for permission to
construct a residential building as per Ext.P2 dated 23.12.1997, which was
again returned on 13.1.1998 with the endorsement "the area to be acquired
for residential purpose as per D.T.P. Scheme for new bus stand area. May be
returned." Thereupon the appellants approached this Court by filing the
writ petition. The appellants also produced a copy of the application with the
above endorsement as Ext P3 in the Original Petition. They prayed for quashing
the order in Ext. P3 application for permission to construct the building and
also a mandamus directing the 2nd respondent to take back Ext.P3 application
and the plan accompanying the same and grant approval if the same is in
accordance with the Building Rules.
3. According to the appellants,
the Municipality has no jurisdiction to return an application for permission to
construct a building on the ground that the area is proposed to be acquired,
but it can only refuse permission under clause (vii) of S.393(1) of the Kerala
Municipality Act when the land is under the acquisition proceedings. According
to the appellant, the acquisition proceedings commence with a notification
under S.4(1) of the Land Acquisition Act and when there is no notification
under the said provision on the date of the application, the Municipality is
not entitled to reject the application on the basis of a proposed acquisition.
It is contended that the appellants being the owners in possession of the land,
have the right to use the land for their own purposes without violating the law
of the land and that the denial of the right or permission for construction of
a building amounts to deprivation of their right to property.
4. The Municipality has filed its
counter affidavit along with Exts. R2(a) to (d). The P. A. in charge of the
Secretary has signed the counter affidavit. It is stated therein that the
Government has accorded sanction for acquisition of 3.096 hectares of land in
Survey Nos. 246/3B, 246/4B, 246/5B, 247/6 A2,247/6 C2, 247/6 C7 and 248/1 of
Badagara Village for the construction of Narayanapuram Housing Scheme as per
G.O.(Rt) No. 810/97/LAD dated 27.2.1997. Copy of the said order has been
produced as Ext. R2(a). It is stated further that pursuant to Ext. R2(a) the
Municipality has addressed the District Collector, Kozhikode to initiate
necessary land acquisition proceedings as per letter dated 5.9.1992, Ext.R2(c).
It is also stated that the Municipality has forwarded necessary agreement and
requisition to the Collector along with Ext. R2(c) and the matter is seized by
the Land Acquisition authority. It is submitted that the Municipality has
prepared a detailed scheme envisaging scheme in the area, and in the meanwhile
if the appellant is permitted to construct the house in the property, the
scheme will be rendered unworkable and the public purpose will be defeated. It
is in these circumstances that the Municipality has returned the application
submitted by the appellant. It is contended by the Municipality that the
petitioners appellants here in have no fundamental right to hold possess the
land. The Municipality also brought to the notice of this Court that in terms
of the Madras Town Planning Act, when town planning scheme is prepared and
approved, it has force of the Land Acquisition Act and that restrictions are
imposed in the use of the land included in the detailed town planning scheme.
It is also submitted that the application of the appellant was rejected by the
Municipality in public interest and that the appellant cannot rely on Ext. P2
for the relief sought for in the Original Petition. It is the case of the
Municipality that it has only imposed restrictions on the use of the land held
by the appellants and that the land of the appellants is liable to be acquired
for public purpose, for which they will be entitled for compensation in terms
of the relevant law.
5. P. Shanmugarn,J., by his
judgment which is impugned in this appeal, held that the expression
"acquisition proceedings" will take in the decision and the sanction
and the procedure to be followed for acquiring the land and that the said
expression cannot be confined only to the last of S.4(1) notification. If it is
so understood, according to the learned judge, the acquisition proceedings will
include the decision taken by the Municipality and the sanction given by the
Government and the learned judge noted that of land in various survey numbers
for a housing scheme based on the recommendations of the Chief Town Planner and
the Secretary of the Municipality. According to the learned judge, the
Municipality has taken all the necessary steps for the land acquisition and
they have sent copy of the resolution, site sketch and agreement in Form No.7
as well as requisition in Form No. 2 and the District Collector had only to
issue the notification under the Land Acquisition Act. The learned judge
further observed that if the contention of the appellants is accepted, the purpose
of the acquisition will be defeated. Before the learned judge a decision of
this Court in
Hassan v. Corporation of Calicut, 1996 (2) KLT 839
and of the
Supreme Court in
Collector (Dist. Magistrate), Allahabad v. Raja Ram, AIR 1985
SC 1622
were also cited by counsel for the appellant. According to the learned
judge, the said decisions may not be of any help to the appellant's case. The
learned judge dismissed the Original Petition holding that an action taken
under S.215 of the Kerala Municipality Act for the purpose of acquiring land is
one of the proceedings under the Kerala Municipality Act, which can certainly
be brought under S.393(1) (vii) of the Act. Being aggrieved by the said
judgment, the petitioners have come up in appeal.
6. The following questions arise
for consideration in this appeal:
(a) Whether the Municipality is
justified in rejecting the application submitted by the appellants for
permission for construction of a residential building, under S.393(1)(vii) of
the Kerala Municipality Act, 1994 on the ground that the land is proposed to be
acquired, and whether the expression "acquisition proceedings will take in
the decision, the sanction and the procedures to be followed for acquiring the
land.
(b) Whether Ss.214 and 215 of the
Municipality Act give power to the Municipality to acquire and possess the land
and whether it does not mean that the acquisition proceedings under
S.393(1)(vii) includes the formalities before S.4(1) notification is issued
under the Land Acquisition Act.
7. As already noticed, the reason
for rejection of the application for permission to construct a building
submitted by the appellants is that the land is proposed to be acquired.
Whether the said reason will come under S.393 of the Kerala Municipality Act is
a matter to be considered in this appeal. S.393 of the Municipality Act deals
with the grounds on which approval of site or permission to construct or re
constrict building may be refused. Clause (vii) of sub-section (1), and
sub-section (2) of the said section are the provisions relevant for the case on
hand, which run 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 of a
building or permission to construct or reconstruct a building shall be refused
are the following, namely:
(vii) the land is under
acquisition proceedings.
(2) No application for approval
of a building site or for permission to construct or reconstruct a building
shall be refused without stating the reasons for such refusal."
As stated before, the contention
of the appellants is that the proceedings for acquisition of land commence with
a notification under S.4(1) of the Land Acquisition Act and, therefore, till
the notification is issued, the Municipality cannot reject the application on
the ground of proposed acquisition of the land. It is also the specific case of
the appellants that the earlier attempt for acquisition of the land in question
was given up by the Government as can be seen from Ext. P2. It is also submitted
by counsel for the appellants Mr.R. Bhaskaran that even after the rejection of
the application on the ground of proposed acquisition, the second respondent is
not taking any step to acquire the land and, even if any step has been taken,
no acquisition proceeding has been commenced by the issuance of a notification
under S.4(1)of the Land Acquisition Act. It is, therefore, submitted that the
appellants being the owners in possession of the land, have a right to use the
land for their own purpose. In support of this contention Mr. Bhaskaran cited
the decision reported in Hassan's case (supra). The question considered in that
case was whether the rejection of the application submitted by the appellants
for permission for construction can be sustained in view of clause (vii) of sub-S.(1) of S.393 of the Kerala
Municipality Act. In that case also, the Corporation of Calicut as the only
ground for rejection of the application that the Corporation was proposing to
acquire the land where the buildings are proposed to be constructed for the
purpose mentioned therein. P. A. Mohammed, J. held that clause (vii)
contemplates existing land acquisition proceedings and nothing else, and hence,
it was held that the land in question in that case could not considered to be a
land under acquisition proceedings in view of the withdrawal of the acquisition
proceedings by the Government under S.52(1) of the Kerala Land Acquisition Act,
1961.
Paragraphs 5 and 6 of the judgment can be usefully extracted for the
purpose of the case on hand:
"5. It must be recalled that
every citizen has the freedom to enjoy his land in a manner he likes of course
subject to the prevailing laws in the country. The right to hold land and
enjoyment thereof though is not a fundamental right, is a civil right protected
by Chap. IV of the Constitution. Art.300-A mandates that no person shall be
deprived of his property save by authority of law. When a person is restrained
from enjoyment of his land it may amount to deprivation of his property. But such
deprivation can be made only by authority of law. That means all restrictions
for enjoyment of land must be in accordance with the procedure authorised by
law. It also envisages strict compliance of such procedure in all matters
restricting the enjoyment of land.
6. As far as the present case is
concerned, the Land Acquisition Act is the law which restricts the enjoyment of
land by the petitioners. These must be strict compliance of the provisions of
this law before the enjoyment of land by the petitioners is restrained. The
grant of permit for construction of buildings is regulated or controlled by the
provisions contained in the Kerala Municipalities Act, 1994. There is no case
for the Corporation that any of the provisions contained in the said Act has been
violated by the petitioners while applying for such permission. The only ground
for rejection of the permission as pointed out earlier is that the land is
proposed to be acquired by the Corporation. The acquisition proceedings have
not been commenced by the Land Acquisition Officer authorised in this behalf.
What is available is only a resolution passed by the Corporation for fresh
acquisition in spite of the withdrawal of the earlier notification under
sub-s.(1) of S.52. As matters stand now there is no existing notification under
S.4(1) of the Act declaring that this particular land is required for the
public purpose. Therefore, the ground alleged for not granting permission to
construct the building is only an anticipated land acquisition proceeding and
not an existing one. The right of enjoyment of land available to the
petitioners cannot therefore be taken away on such anticipated grounds.
Therefore, the reason for rejection of permission to construct the buildings in
these cases cannot be sustained under any circumstances."
When the above decision was cited
before Shanmugam, L, the learned judge distinguished the same stating that the
decision was rendered without considering Ss.214 and 215 of the Municipality
Act. The said provisions deal with the procedure for acquisition of immovable
property under the Land Acquisition Act and the power of Municipality to
acquire and dispose of property. S.214 provides that any immovable property
which a Municipality is authorised under Kerala Municipality Act to acquire may
be acquired in accordance with the provisions of the Land Acquisition Act for
the time being in force, and on payment of the compensation awarded under the
said Act in respect of such property and of any other charges incurred in
acquiring it. S.215 provides that a Municipality may, with the previous
sanction of the Government, acquire any property whether land or building
within or without its Municipal area for any public purpose for providing any
convenience, service or facility or may dispose of by sale or otherwise any
property belonging to it or vested in it in the manner as may be prescribed.
Sub-Ss.(2) to (12) of that section provide for the procedures for construction
of commercial building, letting them out, etc. with which we are not now
concerned in these proceedings. These provisions do not, in any way, affect the
rigour of S.393 o1 the Act.
7A. S.4(1) of the Land Acquisition Act provides
that a notification under the provision can be issued only when it appears to
the appropriate Government that the land is needed or is likely to be needed
for a public purpose or for a company. The appropriate authority has to hold a
preliminary investigation into the need and the suitability of the land for the
purpose. The decision is to be according to the subjective satisfaction c the
authority. It is for the Government to make the choice or selection of the land
which is suitable for acquisition for the public purpose. The object of
inclusion of S.4(1) is t give public notice of the proposal to acquire the land
mentioned in the notification are to give a warning that any one who deals with
that land subsequent to the notification would do so at his own risk. The
notification under S.4(1) achieves two fold object viz.(a) it is a public
announcement by the Government and a public notice by the Collector in respect
of the land being needed or likely to be needed by the Government for a public
purpose; (b) it authorises departmental officers or officers of a local
authority or company, as the case may be, to survey and do other acts by
entering the land. S.6 of the Land Acquisition Act deals with the declaration
of the Government that the land is required for a public purpose. As already
noticed, the object of a notification under S.4(1) of the Act is to give notice
that the land in the locality is needed or is likely to be needed for a public
purpose; whereas the object of the declaration under S.6 is to intimate the
decision of the appropriate Government that the particular land is needed for a
particular public purpose. Such declaration shall be issued only if the
Government is satisfied after considering the report or reports of the
Collector under S.5-A of the Act that the land is needed for the particular
public purpose. The declaration under S.6 can become final only if the steps
and procedures mentioned in that section are followed and not otherwise. What
is enjoined under S.6 is the satisfaction of the appropriate Government. The
Government has to be satisfied initially that the land is needed for a public
purpose. The identity of the land has to be specified, sketched and shown so as
to indicate to the owners or persons interested in the land, that it is their
land that is going to be acquired. They should have notice to enable them to
state their objections. They may question the purpose of acquisition. Only
after hearing their objections, the Government has to decide. It is open to the
public to show that the land in question is most unsuitable for the purpose. A different land may be
suggested by the objector. But the ultimate subjective satisfaction regarding
the purpose and the land required for the purpose is with the Government.
8. 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. In the decision reported in AIR 1985 SC 1622 (supra)
the Supreme Court has held that a bare perusal of S.4(1) of the Land
Acquisition Act clearly shows that in order to comply with the statutory
requirements therein set out, a notification stating therein the land which is
needed or is likely to be needed for a public purpose has to be published in
the official gazette and the Collector has to cause public notice of the
substance of such notification to be given at convenient places in the locality
in which the land proposed to be acquired is situated. Both the conditions are
mandatory. This decision also has not been followed by the learned Single
Judge. We are of the opinion that the Municipality cannot freeze the land for
an indefinite period on the pretext that they are taking steps to acquire the
land. In our opinion, the learned Single Judge erred in holding that the
expression "acquisition proceedings" will take in the decision and
the sanction and the procedure to be followed for acquiring the land. The decision
rendered by P. A. Mohammed, J. in Hassan's case (supra) is, in our opinion,
directly on point. As pointed by the Supreme Court in the decision reported in
AIR 1984 SC 1622, the decision of the Government is hardly relevant unless it
takes the concrete shape and form by publication in the official Gazette. The
decision of the Government does not become effective and valid unless a
notification in the official Gazette follows. Therefore, assuming that
notification is a formal expression of a decision of the Government to acquire
the land, unless the decision is notified in the Government Gazette by an
appropriate notification, the proceedings for acquisition cannot be said to
have been initiated and the decision would remain a paper decision. In such
circumstances, the land in question cannot be considered to be one under
acquisition proceedings.
9. The other reasoning given by
the learned Single Judge, construing Ss.214 and 215 of the Land Acquisition Act
are also not sound. In the instant case, the Government had once abandoned the
scheme as evidenced by Ext. P2. Except a bald denial, no acceptable material
was placed before us to say that the scheme was not abandoned by the
Government. The proposed acquisition is for a housing scheme, which earlier
abandoned for the reason that the property is situated in a very important
locality and, therefore, the market value i s very high and hence the
acquisition is not profitable or practical. The present proposal is stated to
be for the very same purpose. The appellants, in our opinion, has got every
right to use their land to put the land for beneficial and profitable own use.
The rejection of permission to construct a residential building, tantamount to
deprivation of the property of the appellants without the authority of law,
which is in violation of Art.300-A of the Constitution of India.
10. In view of the above, we hold
that the land in question was not under acquisition proceedings on the relevant
date, viz., the date of the application, and therefore, the Municipality was
not justified in refusing the permission sought for on the ground that the land
is proposed to be acquired, in the light of S.393 of the Kerala Municipality
Act, 1994.
In the result, the Writ Appeal is
allowed and the judgment of the learned Single Judge, which is impugned in this
Writ Appeal, is set aside. The order/ endorsement in Ext. P3 application is
quashed and the Municipality is directed to take back on its file Ext.P3
application and the plan accompanying the same, consider the same and grant permission
if the same is in accordance with the Building Rules and Regulations, The
appellant is directed to represent Ext. P3 application and the plan, etc. to
the Municipality and the Municipality is directed to consider same and pass
appropriate orders as directed above within two weeks from the date of
representation of Ext. P3 application. No costs.
