The court held that the Corporation of Kozhikode's decision to sell a portion of the property acquired for public road to respondents 3 to 5 was not tainted with malafides and was in accordance with the law. The court found that the road in question was not required for any other public purpose and that the sale of the remnant piece of land to the respondents would not cause any inconvenience to the public. The court also held that the Corporation had followed the due procedure for parting with the land and that the appropriate value had been fixed.

JUDGMENT :

S. Manikumar, J.

Being aggrieved by the decision of the Corporation of Kozhikode, represented by its Secretary, respondent No.2, as per the resolution dated 06.07.2007 (Exhibit-P2), approved by the State of Kerala, respondent No.1, vide orders dated 01.01.2008 and 18.03.2008 (Exhibits-P3 and P4) respectively, instant public interest writ petition has been filed seeking to quash the same.

2. Petitioner has also sought for a direction commanding respondent No. 2 to keep the property referred to in Exhibits-P2 to P4 in trust for the benefit of public for widening the road, and for providing public amenities.

3. Petitioner has stated that he is resident of St.Vincent Colony, Asokapuram in Kasaba village, Kozhikode taluk, which is very close to National Highway 212 leading to Wayanad. According to the petitioner, Jawahar Nagar Housing Colony and St.Vincent Colony are two major residential colonies situated in the above locality. For the purpose of formation of colonies and roads, land was acquired by the Government, in accordance with the procedure contemplated under the Land Acquisition Act, 1894 and the same was handed over to Calicut Development Authority, who, by virtue of the powers conferred under the Madras Town Planning Act, 1920, developed the land for formation of Jawahar Nagar Housing Colony.

4. Petitioner has further stated that apart from the internal colony roads, a separate road was laid connecting Christian College-Thiruthiyad Cross road and Rarichan road, as a part of the Housing Scheme and for the formation of the said road, private properties comprised in Town Survey Nos.706/1 and 700/3 were acquired. Besides, there was an existing public land comprised in T.S. No.712, which is situated adjacent to T.S.No.706. It is submitted that Calicut Development Authority has now become functus officio and the 2nd respondent is now vested with the powers of the said authority. Now, the above said road vests with the Corporation of Kozhikode under Section 207 of the Municipality Act, 1994.

5. The issue raised by the petitioner is that Corporation of Kozhikode, respondent No.2, as per Exhibit-P2 resolution dated 6.7.2007 has decided to sell a portion of the property acquired for public road to respondents 3 to 5, and the State of Kerala, represented by the Secretary, Local Self Government Department, Thiruvananthapuram, respondent No.1, has approved the same. According to the petitioner, the decision taken to sell the above said public property is tainted with malafides.

6. Petitioner has contended that Kerala Municipality Act, 1994 does not empower the 2nd respondent to sell land appurtenant to the public road for reasoning whatsoever. According to him, the concept of vesting public roads on the 2nd respondent does not mean absolute and unfettered right for sale of property which forms part of the road. He has further contended that land acquired for public purpose and earmarked for road development under Town Planning Schemes is not liable to be sold to individuals and that Town Planning Schemes are framed for development of urban areas.

7. In support of his contention, petitioner has relied on a decision of a Hon'ble Division Bench of this Court in Thalassery Municipality v. Puthalath Balakrishnan reported in 2019 (3) KLT 154, wherein it is held as follows:

“9. A reading of the provisions of the Act, 2016 and the Municipality/Panchayat Building Rules indicates that the DTP Schemes prepared under the Act, 2016 are to have overriding effect over the provisions of the Building Rules. Accordingly, the procedure under S.67 has to be followed in case the project envisaged under the DTP Scheme involves acquisition of land by the Local Authorities as a pre-requisite for implementing the proposal.

10. The provisions of S.67 of the Act, 2016 are intended to balance the conflicting rights of the State and the private individual