“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 proceedures 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(l) notification is issued under the Land Acquisition Act." 

"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."xxxxx "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, tantamounts 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." 

“3. Plot No. 438 measuring 1.50 acres of land has Sub- Plots Nos. 1 to 9. Construction has already been completed on Sub-Plots Nos. 4, 5, 6 and 7. The dispute is with regard to Sub-Plots Nos. 1, 2, 3, 8 and 9 on the plot. Sub-Plots Nos. 1, 2 and 3 are on one side of the road and Sub-Plots Nos. 8 and 9 are on the other side of the road. It was also pointed out that adjacent Plot No. 437 measuring 2.00 acres was acquired and a garden was developed. It was not disputed that Plot No. 438 was earmarked as garden in the development plan in 1966 but it was not acquired and it remained a private property. It is true that when it was shown as a garden in the draft development plan no objection was raised and final notification declaring this land as earmarked for garden was published. It is true that a development plan can be prepared of a land comprising of a private person but that plan cannot be implemented till the land belonging to the private person is acquired by the Planning Authority. It is not that the Planning Authority was ignorant of this fact. It acquired some land from Plot No. 437 for developing garden but the land from Plot No. 438 was not acquired for garden. 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 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. In the present case, it is clear that Plot No. 438 belonged to a private person and it was shown as a garden in the development plan of 1966. But no effort was made by the Municipal Corporation or the Government to acquire this plot for the purpose of developing it as a garden. When it was not acquired for the purpose of garden, the owner of this land i.e. the appellants moved the Government for dereserving this land and the Government after resorting to necessary formalities dereserved the land by the impugned notification. All the procedures which were required under the 1966 Act were observed, the notification was issued inviting objections against dereservation. No objection was filed by the residents of the area and ultimately a proposal was put up before the Municipal Council. It also resolved that the Municipal Council is not in a position to acquire the land because of the financial crunch and accordingly, the Government was intimated. The Government accordingly dereserved it and consequently, issued the impugned notification dated 12-2-1993. When finally the notification came to be published on 12-2-1993 the residents of the area woke up and brought about this public interest litigation. Section 37 of the 1966 Act empowers the Government for modification of the final development plan. It lays down that where a modification of any part of or any proposal made in a final development plan is of such a nature that it will not change the character of such development plan, the Planning Authority may or when so directed by the State Government shall within sixty days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification with amendments, if any, to the State Government for sanction and if the Planning Authority fails to issue the notice as directed by the State Government, the State Government shall issue the notice, and thereafter modification can be issued by the State Government. Therefore, all the formalities required under the law were complied with by the authorities. In fact, the public-spirited persons who have filed the public interest litigation did not file any objection to the proposed dereservation of the area. The High Court after hearing both the parties felt persuaded because of the decision rendered by this Court in the case of Bangalore Medical Trust. But with great respect the Division Bench of the High Court of Bombay did not examine the matter very closely whether the provisions of the Bangalore Development Authority Act, 1976 and that of the Maharashtra Regional and Town Planning Act, 1966 are in pari materia or not. In the case of Bangalore Medical Trust the open space reserved for park under the development scheme was converted into a hospital in favour of a private body by the Development Authority at the instance of the Chief Minister of the State. Therefore, this Court examined the provisions of the Bangalore Development Authority Act, 1976 and after considering all those provisions, this Court held that this unilateral act of the Bangalore Development Authority at the instance of the Chief Minister of the State cannot be countenanced. In that case, the area was reserved for park and playground. Section 38-A of the Bangalore Development Authority Act, 1976 specifically prohibited that the authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic amenities for any other purpose and any disposition so made shall be null and void. Firstly, there is no such provision under the Maharashtra Regional and Town Planning Act, 1966 and secondly, the area which is earmarked for the purpose of park and playground was not owned by a private person. In the present case, though the development plan has been prepared in the year 1966 and the area has been earmarked for the purpose of garden but no proceeding for acquisition of the present plot was ever initiated by the respondent Municipal Corporation or by the State Government. There is no prohibition for preparing the development plan comprising of private land but that plan cannot be implemented unless the said private land is acquired by the Government for development purpose. In the present case, the area comprising in Plot No. 438 belonged to the appellants and that no steps were taken to acquire the said land by the State Government or by the Municipal Corporation of Pune and the Municipal Corporation had already expressed their inability to acquire that land and therefore, the said land has been dereserved by the State Government. Therefore, the present case has no semblance to that of Bangalore Medical Trust case. The question is whether without acquiring the land the Government can deprive a person of his use of the land. This in our opinion, cannot be done. It would have been possible for the Municipal Corporation and the Government of Maharashtra to acquire the land in order to provide civic amenities.” 

“13. Town Planning legislations are regulatory in nature. The right to property of a person would include a right to construct a building. Such a right, however, can be restricted by reason of a legislation. In terms of the provisions of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force.” 

“15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of legitimate expectation in a case of this nature would have a role to play.” 

“18. It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. (See Kuldeep Singh v. Govt. of NCT of Delhi.)” 

"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 S.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 S.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 right to compulsorily acquire the property. S.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 Ss.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 S.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 S.11, the acquisition proceedings contemplated under Ss.33 and 34 of the Act date back to the draft notification under S.10 of the said Act. Assuming for the sake of argument that the publication of draft notification under S.11 of the Madras Town Planning Act is something akin to a notification under S.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 S.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 S.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 1st respondent, in our opinion, is untenable." 

“25. Minimum distance between central line of a street and building.- 

(1) The minimum distance between the central line of a street and any building other than a compound wall or fence or outdoor display structure shall be 4.5 metres and that between plot boundary abutting the street and building shall be 3 metres: 

Provided that in the case of cul-de-sac of whatever width but not exceeding 250 metres length or pedestrian lanes and streets upto average 3 metres width or internal roads and streets of whatever width within or leading to any residential colony, it shall be sufficient if the distance between the plot boundary abutting the street and building is 2 metres for buildings upto 7 metres height irrespective of the distance from the central line of the road to the building: 

Provided further that in the case of lanes not exceeding 75 metres length leading to one or more individual plots it shall be sufficient if the distance between the plot boundary abutting the lane and the building is 1.50 metres irrespective of the distance from the central line of the lane. 

(2) Any restriction under street alignment or building line or both, if any, fixed for area and restriction under any development plan or any detailed town planning scheme or approved road widening proposal or any other rules or byelaws shall also apply simultaneously to all buildings in addition to the provisions contained in sub-rule (1). 

(3) The provisions contained in sub-rules (1) and (2) shall apply invariably to all buildings where the front, rear or side yard abuts a street or gain access through a street.” 

“29. Procedure for preparation, publication and sanctioning of Master Plan.- 

(1) A Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat may at, any time, by resolution, decide to prepare or adopt a Master Plan and shall notify the intention of the same in the Official Gazette and in at least one newspaper having wide circulation in the prescribed manner and such notification shall state the boundaries of the Local Planning Area and the purpose for which such Plan is intended to be prepared.” 

“(4) The Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall, within sixty days from the date of receipt of approval for publication under sub-section (3), publish the draft Master Plan in the website and a notice of publication, in the Official Gazette and in at least two newspapers having wide circulation in the Local Planning Area of which one must be in the regional language, inviting objections and suggestions to be submitted within sixty days from the date of publication of the notice in the Gazette, specifying the place or places where a copy thereof shall be available for inspection by the public: Provided that the Municipal Corporation, Municipal Council, Town Panchayat or Village Panchayat concerned shall publish such a notice, even if the draft Plan is prepared or got prepared by the Chief Town Planner under clause (e) of section 11.” 

“11. Notwithstanding the time limits prescribed in sub-sections (2) to (8), the provisions of the Master Plan published under sub-section (4) shall continue to be in operation until the Master Plan is sanctioned, even if the time limit prescribed under sub-sections (2) to (8) are not complied with: 

Provided that in cases where a sanctioned Master Plan already exists, its provisions shall only apply until the published Master Plan is sanctioned in accordance with this Ordinance.” 

“45. Use and development of land to be in conformity with Plans under this Ordinance.- 

(1) After the coming into operation of any Plan under this Ordinance, no person shall use or cause to use any land or carry out development in any land, or change the use of land otherwise than in conformity with the Plans under this Ordinance. 

(2) The date of coming into operation of a Plan for the purpose of sub-section (1) shall be the date of publication of the notice in the Official Gazette inviting objections and suggestions thereon under the provisions of this Ordinance.” 

“61. Use and development of land to be in conformity with Master Plans and Detailed Town Planning Schemes under this Ordinance.- 

After the coming into operation of a Master Plan or Detailed Town Planning Scheme under this Ordinance, no person shall use or cause to use any land or carryout development in any land, or change the use of land otherwise than in conformity with the Master Plans and Detailed Town Planning Schemes under this Ordinance. 

Note:- Provisions of Detailed Town Planning Schemes shall prevail over the provisions of the Master Plans where both Plans are in force in an area.” 

“22. But we do feel that the very object of framing a town planning scheme would tend to get defeated if the scheme is not implemented within a reasonable period. The Town Planning Act concerned, does not provide for the lapsing of the scheme sanctioned under it and notified under it on the ground that the same had not been implemented within a stipulated period. S. 15(3) of the Act restricts the period of restriction imposed by that Section to two years in case the draft scheme is not prepared within two years of the publication of the notification of the resolution under S. 8 of the Act the restriction will close. Though S. 16 of the Act imposes an obligation on the owners of the land coming within the scheme not to do anything in their lands which will impede the implementation of the scheme notified, under S. 12 of the Act, it imposes no time limit on such restriction. The undefinite life given to a scheme notified under the Act without insistence on its implementation within a time frame certainly brings hardship to the owners of land included in the scheme. It may be necessary for the second respondent and the concerned authorities to consider whether a specific period shall not be statutorily prescribed for the implementation of a scheme notified under the Act after due sanction of it by the Government so as to free the owners from the shackles of restriction. But, that of course, is a matter for the legislature and we can only point out that it appears to be necessary for the State to consider whether any such safeguard in the matter of enjoyment of his own land shall not be provided to the citizen by compelling the conterned Municipality to implement the scheme within a period to be fixed by the stature itself."