"CR"

Having been granted leave, the Secretary to Government of Kerala in Local Self Government Department has filed this petition seeking review of the judgment dated 10.6.2009 in WP (C) 16046 of 2009, a writ petition disposed of as part of a bunch of matters – Nasar V. Malappuram Municipality (2009 (3) KHC 35).

2. The relief sought for in the writ petition filed without the government on the array, was to quash the Malappuram Municipality’s decision refusing building permit on the ground that the land in relation to which building permit was sought, fell within an area identified as wet land and restricted to be for such user in terms of the master plan approved by the Government. It was noticed that in terms of the judgments issued by this court in Padmini V. State of Kerala (1999 (3) KLT 465) different judgments were issued by this court including those placed on record along with the writ petition as Exts.P3, P4, P5 etc. The judgment sought to be reviewed was accordingly issued. It is also a matter of record by now, that even the judgment sought to be reviewed has been followed later by this court in issuing different judgments.

3. For one thing, the Municipality is not aggrieved by the judgment sought to be reviewed. It is a Municipality which makes a Scheme for Town Planning and places it to the Government for approval. The Government sanctions that scheme after a preliminary notification and after considering the objections thereof. Thereafter, the scheme becomes operational and obliges the Municipality and the citizens to abide by its terms. The withdrawal of the scheme or a master plan can thereafter be only in terms of the statutory provisions which enjoin that such action can only be with the orders of the Government. The provisions in the Town Planning laws also provide for compensation to persons who have acted in accordance with the scheme and have changed the user of the land to suit the dictate of the scheme; but on withdrawal of the scheme, may suffer on that count.

4. The learned Special Government Pleader appearing on behalf of the Local Self Government Department pointed out that the application for review is filed essentially because the judgment sought to be reviewed as also different other judgments issued before that and following it, are misused to get over the prohibitions contained in Town Planning laws. It is pointed out that the fact situations which would fall within the parameters of the law laid in Padmini (supra) would be only those where acquisition is necessary for the purpose of giving effect to a particular clause of the Town Planning Scheme and that the said principle cannot be extended to the provisions relating to the zoning regulations contained in the scheme which do not require any acquisition to bring the land to the public hold but enjoins only a restrictions on the user of the land. Therefore, the review petition needs to be answered, having regard to the issues raised.

5. Friends Colony Development Committee V. State of Orissa and Others (2004 (8) SCC 733) was rendered by the Apex Court noticing that the concept of zoning and planning, though may result in hardship to individual property owners as regards their freedom to use their property in the way they like, such regulation and control is no reason by which alone, the controlling regulations could be termed as arbitrary or unreasonable. It was held that the private interest stands subordinate to public good and the power to plan development of city and to regulate building activity therein flows from the police power of the State. It was accordingly held that the exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable inter-meddling with private ownership of property may not be justified.

6. In Raju S. Jethmalani and Others V. State of Maharashtra and Othe