Judgment:
ORDER
P.A. Mohammed, J.
1. The petitioners in these writ petitions are the owners of 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 18 1/4 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 23 1/2' 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 them 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 Section 3(1) of the Kerala Land Acquisition Act, 1961 on 15-3-1982 proposing to aquire 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 dt. 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 dt. 25-1-1984 requested the Government to reconsider the order for dropping the proceedings. But the Government by letter dt. 18-2-1984 again directed the Corporation to drop the proposal and to comply with the earlier order dt. 22-7-1983. Subsequently on 17-I-I985 the Government of Kerala issued a notification, G.O. (Ms) No. 18/85, dt. 17-1-1985 under Sub-section (i) of Section 52 of the Kerala Land Acquisition Act, 1961 withdrawing the land acquisition proceedings as per the notice dt. 15-3-1982,' Explanatory note to the said notification reveals that the land acquisition proceedings in respect of the land afore-mentioned 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, dt. 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 dt. 29-1-1994. By the aforesaid resolution the Corporation 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 Section 393(1)(vii) of the Kerala Municipalities Act, 1984. The said provision reads as follows :
393. Grounds on which approval of site or permission to construct or reconstruct building may be refused --
(1) The grounds on which 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-section (1) of Section 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 aforementioned. What is contained in clause (vii) is that 'the land is under acquisition proceedings'. This clause contemplates an existing land acquisition proceeding and nothing else. Hence in this case the land in question cannot be considered to be a land 'under acquisition proceedings' in view of the withdrawal of the acquisition proceedings by the Government under Sub-section (1) of Section 52 of the Kerala Land Acquisition Act, 1961.
5. It must be recalled that every citizen has the freedom to enjoy his land in a manner he likes of course subject to the prevailing laws in this country. The right to hold land and enjoyment thereof though is not a fundamental right, is a civil right protected by Chapter IV of the Constitution. Article 300A mandates that no person shall be deprived of his property save by authority of law. When a person is restrained from enjoyment of his land it may amount to deprivation of his property. But such deprivation can be made only by authority of law. That means all restrictions for enjoyment of land must be in accordance with the procedure authorised by law. It also envisages strict compliance of such procedure in all matters restricting the enjoyment of land.
6. As far as the present case is concerned, the Land Acquisition Act is the law which restricts the enjoyment of land by the petitioners. There must be strict compliance of the provisions of this law before the enjoyment by the petitioners is restrained. The grant of permit for construction of buildings is regulated or controlled by the provisions contained in the Kerala Municipalities Act,' There is no case for the Corporation that any of the provisions contained in the said Act has been violated by the petitioners while applying for such permission. The only ground for rejection of the permission as pointed out earlier is that the land is proposed to be acquired by the Corporation. The acquisition proceedings have not been commenced by Land Acquisition Officer authorised in this behalf. What is available is only a resolution passed by the Corporation for fresh acquisition in spite of the withdrawal of the earlier notification under Sub-section (1) of Section 52 aS matters stand now there is no existing notification under Section 3(1) of the Act declaring that this particular land is required for the public purpose. Therefore, the ground alleged for not granting permission to construct the building is only an anticipated land acquisition proceeding and not an (fisting one. The right of enjoyment of land available to the petitioners cannot, therefore, be taken away on such anticipated grounds. Therefore, the reason for rejection of permission to construct the buildings in these cases cannot be sustained under any circumstances.
7. There are certain Court decisions against the Corporation in these cases as revealed from the pleadings. In O.P. No. 14934 of 1995 the petitioners have produced Ext. P-5 judgment delivered by this Court in O.P. No. 9773 of 1987. That original petition was filed by a similarly placed land owner when permission for construction of the building was refused. In the said judgment this Court observed:
'So long as the Government Orders Exts. P-2 and P-3 and the notification Ext. P-4 remain in force the position is that there cannot be any acquisition of the land. In other words Exts. P-2 and P-4 will bar any proceedings for acquisition. Therefore, the mere passing of a resolution seeking consideration of the matter and to permit acquisition of the land cannot be equated to pendency of the proceedings for acquisition of land as envisaged in Section 248(8) of the Kerala Municipal Corporations Act.'
In view of the 'above situation this Court quashed the impugned order and directed the Corporation to reconsider the petitioner's application for licence to construct buildings. Following Ext. P-5 judgment this Court again in Ext. P-6 judgment in O.P. No. 7427 of 1992 quashed a similar order issued by the Corporation in the case of a similarly placed applicant for licence.
8. In O.P, No. 14697 of 1995 the petition has produced Ext. P-8 judgment of this Court in O.P. No. 16239/94. That was also a case where permission for construction of the building was refused on the same ground. When the writ petition came up for hearing it was submitted on behalf of the Corporation that the notice issued by the Corporation has already been cancelled as per order dt. 16-12-1994. In view of the aforesaid decisions of this Court, I think the contention advanced on behalf of the Corporation in support of the rejection of the permission to construct the building to the petitioners cannot be countenanced in these writ petitions.
9. It is revealed from Ext. P-3 produced in O.P. No. 14934 of 1995 that the Chief Town Planner has pointed out that there was a sanctioned detailed town planning-scheme for the area. Except for five 'survey numbers which were zoned for public and semi-public uses, all the other survey numbers proposed for acquisition come within the residential zone as per the detailed town planning scheme. In view of the above it cannot be disputed that this is a residential area and covered by residential zone in the town planning scheme. As long as the said position continues, it cannot be said that there is a change of circumstances after the withdrawal notification issued by the Government.
10. In view of the discussion herein-above, the ground alleged by the Corporation for rejection of licence for construction of the buildings in favour of the petitioners is declared invalid. Inasmuch as there is no other reason stated in the orders passed by the Corporation, I am inclined to quash Ext. P-1 in O.P. No. 14934 of 1995 and Ext. P-2 in O.P. No. 14697 of 1995.1 do so. Consequently I direct the Calicut Corporation to reconsider the applications for permission to construct the buildings filed by the petitioners and pass orders within a period of one month from the date of receipt of a copy of this judgment. The writ petitions are allowed as above.