The main legal point established is that land acquisition for a Town Planning Scheme must be done under the Kerala Land Acquisition Act, 1894, and the Municipality cannot refuse building permits based solely on zoning under the Detailed Town Planning Scheme without acquisition.

1. Learned standing counsel appears for the Municipality.

2. These petitions are filed challenging different decisions of authorities under the Malappuram Municipality refusing to grant building permits applied for under the Kerala Municipality Building Rules, 1999, hereinafter referred to as the "KMBR", on the ground that Detailed Town Planning Scheme, hereinafter, "DTPS", for short, as available in relation to that municipal area, namely, the Town Planning Scheme published in terms of G O.(Ms.)No.74/90/LAD dated 24.5.1990 published as S.R.O.No. 1464/90 in the Kerala Gazette dated 23.10.1990, does not provide for the grant of permit as sought for by the petitioners in the different cases, in as much as if such permits are granted, they would be in violation of the classification of municipal area into different zones which are earmarked for different purposes. The DTPS also would have green belts, which are exclusively meant for maintaining the sustained development of the ecological factors.

3. In some of the cases, the competent authority under the Kerala Land Utilization Order, 1967 issued under the Essential Commodities Act, 1955 has granted permits to convert lands for the purpose of putting up buildings. Even in those cases, the Municipality has refused permits on grounds relatable to the provisions of the DTPS.

4. The respondent Municipality has come on record with the counter affidavit which is adopted in the different matters, placing therewith the CIO.(Ms.) No.338/2008/LSGD dated 22nd December, 2008 whereby the Government has proposed to issue a notification varying the 1990 Scheme. The exercise being undertaken under the 2008 Government order is expressed to be under the provisions of the Madras Town Planning Act, 1920 and on the premise that the 1990 scheme requires to be varied for the purpose of making the Zoning Regulations compatible to the present development scenario.

5. The 2008 Government Order itself evidences the ground reality that the present development scenario is not compatible with the terms of the 1990 Scheme. The proposal in the 2008 Government Order is to issue a notification varying the 1990 Scheme, to the extent required. The issuance of such a notification essentially has cautioned the Municipality that the 1990 Scheme is intended to be modified, objections have been called for. The Municipality has placed objections and suggestions before the Government.

6. In Padmini v. State of Kerala (1999 (2) KLT 465 =1999 KHC 619), the Division Bench of this Court considered the question whether the Municipality involved in that case, namely, the Vadakara Municipality, was justified in rejecting the application for building permit on a ground referable to a proposal to acquire land in satisfaction of the provisions of the Town Planning Scheme which fell for consideration in that case and also whether the provisions of the Municipality Act, 1994 empower the Municipality to acquire and possess land or whether the acquisition has to be done under the provisions of the Kerala Land Acquisition Act, 1894, hereinafter, the "L.A. Act", for short. The Bench concluded that the land in relation to which the building permit was sought for, was not under any proceedings for acquisition in terms of the L.A. Act as on the date of application for building permit and therefore, the Municipality was not justified to refuse permit on a ground relatable to the scheme. The ratio of that judgment is that (1) without recourse to the provisions of the L. A. Act, there cannot, be any acquisition for the purpose of a DTPS under the Town Planning Act and for an acquisition of land from a private owner, the very earmarking of a piece of land cannot result in deprivation of rights of the owner of that land and that (2) the Municipality is not justified in refusing permit under the provisions of the Municipality Act and the KMBR merely on the ground that the land is identified and earmarked for public purpose in terms of z