The government cannot deprive the owner of private land from using it for residential purposes without acquiring the land for development.

T.R. Ramachandran Nair, J.

An applicant for grant of building permit is the petitioner herein. He is aggrieved by Ext.P6 reply given by the Corporation denying the same on the plea that there will be violation of the detailed Town Planning Scheme known as "Munduparamba Scheme".

2. The property in question is 37 cents in R.S. No. 622/2A7. It is averred in the writ petition that there was a small hut in the property bearing No.22/192, which was demolished in the year 1993 as evidenced by Ext.P3 and the petitioner wants to construct a new house in the place of the said hut.

3. It is pointed out that the scheme, viz. "Munduparamba Scheme" was evolved on 12.7.1988 which was never implemented. Ext.P8 reply received under the Right to Information Act, is relied upon to show the same. Evidently, the Scheme refers to construction of a road.

4. Reliance is placed on Ext.P10 judgment of this Court wherein, in similar circumstances, rejection of the application was interfered by this Court.

5. The respondents have filed a counter affidavit supporting the order. The question is whether the rejection of the application can be supported. Evidently, going by para 8 of the counter affidavit, as per the "Munduparamba Scheme" there is a proposal for land acquisition for road widening. Evidently, it has not materialised so far and not even a proposal is there.

6. The issue is covered in favour of the petitioner in the light of a decision of the decision of a Division Bench of this Court in Padmini v. State of Kerala (1999 (3) KLT 465) and that of the Apex Court in Raju S. Jethmalani and others v. State of Maharashtra and others ((2005) 11 SCC 222).

7. In the decision of the Apex Court, the question with respect to the preparation of development plan and inclusion of private property therein and the principles to be followed in such cases were considered. It was held that without acquiring the private land, the Government cannot deprive the owner of the land from using that land for residential purpose. Their Lordship held thus in paragraph 3:

"........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..........".

8. A Division Bench of this Court in Padmini's case (1999 (3) KLT 465) also considered a similar issue. It was held that unless there is a proposal leading to a notification under Section 4(1) of the Land Acquisition Act, the Municipality cannot reject the application. The head note reads thus:

"It is thus clear that the object of Section 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 Section 4 (1) of t