K.V.Pavithran vs Corporation Of Kozhikode Represented By Its Secretary, Municipal Corporation Office, Kozhikode (Po), Pin 673001

T.R.Ravi,J.

The application submitted by the petitioner for a building permit was rejected by the 1st respondent stating that a portion of the property is included in the DTP Scheme. Ext.P1 is the order of rejection. The petitioner has produced Ext.P2 dated 1.7.2014, issued much before Ext.P1, which is a letter written by the District Town Planner to the Superintending Engineer of the Kozhikode Corporation, stating that though 27 years have gone by after the DTP Scheme was approved, the road proposed had not been constructed nor had it been included in any five year plan. The Town Planner hence opined that it is appropriate to grant permission to the applicant therein for construction of the building in terms of the order of the Tribunal for Local Self Government Institutions. The petitioner submits that Ext.P2 relates to the property adjacent to the petitioner's property, the owner of which had also applied for construction of an apartment complex in his property. The petitioner relied on the judgment of the Hon'ble Supreme Court in Raju S.Jethmalani v. State of Maharashtra reported in [(2005) 11 SCC 222] and other Division Bench judgments of this Court to submit that the reason stated in Ext.P1 for rejection cannot be sustained. The only reason stated is about the proposed road widening, which is the very same widening which has been considered in Ext.P2. Even though there are two other reasons stated in Ext.P1, the same are aspects which can be corrected.

A counter affidavit had been filed by the 2nd respondent, Regional Town Planner, wherein it is stated that Ext.P2 is with reference to a specific case and is consequent on the order of the Tribunal and the same cannot be applied in the case of the petitioner. It is also stated that the DTP Scheme has been sanctioned and hence cannot be termed as obsolete. The petitioner has produced as Ext.P3, the order of the Tribunal for Local Self Government Institutions in Appeal No.694/2013 preferred by the petitioner's neighbour Sri K.P.Veerankutty, which had led to Ext.P2 order. The specific finding in the order of the Tribunal is that the reason of a proposal for a road cannot be taken as a ground for rejection of the permit.

Pending the writ petition, on 10.1.2022, this Court had directed the 1st respondent to file an affidavit stating whether there are residential buildings in the area and whether the neighbouring owner has been granted permission for construction of a multi-storeyed apartment complex. Subsequent to the direction, a statement has been filed on behalf of the 1st respondent wherein it is admitted that the neighbouring owner Sri Veerankutty along with one Krishnan Nair and his wife Sathi Devi had filed an application for building permit, which has been granted after the order of the Tribunal. The building permit dated 20.2.2015 has been produced as Annexure R1(b).

In the above circumstances, I do not find any reason for discriminating the petitioner alone. The writ petition is hence allowed. Ext.P1 is quashed. There will be a direction to respondents 1 and 3 to reconsider the application submitted by the petitioner, with specific reference to Exts.P2, P3 and Annexure R1(b), and pass orders after hearing the petitioner within six weeks from the date of receipt of a copy of this judgment. If physical hearing is not possible, the hearing may be conducted in the virtual mode.