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1996 Supreme(Ker) 321
Judges : P.A.MOHAMMED
Hassan - Appellant
Versus
Corporation of Calicut - Respondent
Case No : O.P. Nos. 14934 & 14697 of 1995
Decided On : 09/19/1996
Advocates Appeared :
M.A. Mahu & M.A. Fayaz For Petitioners K.P.G. Menon & Govt. Pleader (C.E. Unnikrishnan) For Respondents
The right to enjoyment of land is protected by law, and any restriction must be in accordance with the authorized procedure.
Headnote:
Land Acquisition Proceedings - Rejection of Building Construction Permission - Kerala Municipalities Act, 1994 - S.393(1)(vii) - Kerala Land Acquisition Act, 1961 - S.52 - S.3(1) - Right to Enjoyment of Land
Fact of the Case:
The petitioners sought permits from the Calicut Corporation to construct buildings on their respective lands, which were rejected on the grounds of proposed land acquisition for a permanent exhibition-cum-shopping centre by the Corporation.
Finding of the Court:
The court found that the rejection of permission for construction of the buildings cannot be sustained as the land in question was not under existing land acquisition proceedings, and the Corporation's proposal for acquisition did not constitute an existing proceeding.
Issues: The main issue was whether the rejection of the permission for construction of the buildings could be sustained under S.393(1)(vii) of the Kerala Municipalities Act, 1994, due to the proposed land acquisition by the Corporation.
Ratio Decidendi: The court emphasized that the right to enjoy land is protected by law, and any restriction on such enjoyment must be in accordance with the authorized procedure. It held that the rejection of permission based on anticipated land acquisition proceedings was invalid.
Final Decision: The court quashed the orders rejecting permission and directed the Calicut Corporation to reconsider the applications for permission to construct the buildings within a month.
P.A. Mohammed, J.
The petitioners in these Writ Petitions are the owners of the two respective plots in Ward No. 17 of Calicut Corporation. The land of the- petitioners in O.P. No. 14934 of 1995 having an extent of 181/4 cents is comprised in T.S.No. 404 whereas the land of the petitioner in O.P. No. 14697 of 1995 and his two brothers having an extent of 231 / 2 cents is comprised in T.S. No. 437. They applied for permits from the Calicut Corporation for constructing buildings in their respective lands. The applications filed by them were rejected by the Corporation on the ground that the Corporation, is proposing to acquire the above lands belonging to mem for the purpose of constructing a permanent exhibition-cum-shopping centre. Those orders passed by the Corporation are challenged in these writ petitions.
2. At the instance of the Corporation of Calicut the Special Tahsildar, Land Acquisition, Kozhikode issued a notification under S.3(1) of the Kerala Land Acquisition Act, 1961 on 15.3.1982 proposing to acquire about 7 acres of land in Ward No. 17 for constructing an exhibition-cum-shopping centre. The said proposal was objected to by the residents of the locality and by the order dated. 22.7.1983 the Special Secretary to Government directed the Corporation to take immediate steps to drop the above land acquisition proceedings. Thereafter, the Corporation by the letter dated 25.1.1984 requested the Government to reconsider the order for dropping the proceeding. But the Government by letter dated 18.2.1984 again directed the Corporation to drop the proposal and to comply with the earlier order dated 22.7.1983. Subsequently, on 17.1.1985, the Government of Kerala issued a notification, G.O.(ms) No. 18/85 dated. 17.1.1985 under sub-s.(i) of S.52 of Kerala Land Acquisition Act, 1961 withdrawing the land acquisition proceedings as per the notice dated 15.3.1982. Explanatory note to the said notification reveals that the land acquisition proceedings in respect of the land afore-motioned were initiated at the instance of the Corporation of Calicut for the construction of exhibition ground and shopping centre, and the Government in their letter No.17333/G3/82/LA dated 22.7.1983 have directed to drop the said acquisition proceedings and in order to effect withdrawal the above notification has been issued.
3. The Corporation of Calicut filed counter-affidavit in O.P.No. 14697 of 1995 opposing the prayer made by the petitioners for quashing the orders rejecting permission to construct buildings. Ext. R1(g) produced along with the counter affidavit is a copy of the resolution of the Council dated 29.1.1994. By the aforesaid resolution, the Coporation has proposed to acquire the land in question again for the purpose alleged in spite of the withdrawal notification issued by the Government. In fact the main objection raised by the Corporation is that the proposal to acquire the very same land is in existence now. Therefore, the case of the Corporation is that the permission for construction of the buildings in the disputed land cannot be granted in view of the provision contained in S.393(1)(vii) of the Kerala Municipalities Act, 1994. The said provision reads as follows:
393. Ground s on which approval of site or permission to construct or reconstruct building may be
refused
(1) The grounds on winch 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 :
(i) ….
(ii) ….
(iii) …..
(iv) ……
(v) ….
(vi)
(vii) that the land is under acquisition proceedings.
4. The main point to be decided in these cases is whether the rejection of the permission for construction of the buildings can be sustained in view of clause (vii) of sub-s.(1) of S.393 of the Act, The only ground pointed out in the orders rejecting permission is that the Corporation is proposing to acquire the land where the buildings are proposed to be constructed for the purpose
