AR. Lakshmanan, Ag. C.J.

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