The petitioners have filed this writ petition aggrieved by Ext.P10 order passed by the respondent rejecting an application for building permit submitted by him. The petitioners are the owners of an extent of 24.675 cents of land by the side of the old National Highway, NH 47 within the limits of the respondent Municipality. The petitioners' application for building permit had been rejected by the Municipality initially. Thereupon the petitioners approached this Court by filing WPC 580/2011. The same was disposed of by judgment dated 19.8.2011 directing the matter to be reconsidered. Thereupon, the Municipality adopted Ext.P3 resolution wherein, it has been noticed that though the Detailed Town Planning scheme (DTP) was applicable to the Municipality, building permits had been issued in violation of the purposes for which the area had been set apart by the DTP scheme. Therefore, the respondent decided to request the Government for exemption from the scheme. By Ext.P4, the Government directed that permission could be granted to the construction of the petitioners provided, space was left vacant for the purpose of future widening of the existing road. However, by Ext.P5 proceedings the petitioners' building permit was again rejected. In Ext.P5, the petitioner was directed to submit a fresh plan making provision for the condition stipulated by Ext.P4. According to the petitioner sufficient space has been provided by Ext.P6. The petitioner also points out that, by Exts.P7 and P8, the adjacent property owners have been granted permission to make constructions. The petitioners had challenged Ext.P5 before this Court in WPC 8969/2013. The said writ petition was disposed of by Ext.P9 directing reconsideration of the petitioners' application. 2. The entire dispute in the case has been referred to and considered in paragraph 4 of the judgment, which reads as follows:-
“4. Heard. It is evident from Ext.P3 resolution of the respondent/Municipality that the DTP Scheme relied on is of the year 1976 and that it is impracticable to rely on the same or to enforce the same in the present conditions. It also is an undisputed fact that the DTP Scheme has not been enforced in the Municipality. The Municipality itself has constructed a commercial complex in the locality. Exts.P6 and P7 permits have been granted to owners of the adjacent properties. Therefore, there is no point in denying to the petitioners what has been granted to others in similar circumstances. As held by a Division Bench of this Court, it is the ground reality that is prevailing in the locality that has to be taken into account, while considering an application for building permit. An area though demarcated for a particular purpose, if shown to have been converted and put to different use over the years, there is no point in relying on the DTP Scheme to reject individual applications.
What Ext.P4 has directed is only to make provision for future widening of the road, which according to the petitioner has been provided for, in Ext.P8 application. If so, it is necessary that the Municipality considers Ext.P8 and passes appropriate orders thereon, taking into account Exts.P3, P4 as well as the actual situation that is prevailing in the locality.”
In view of the above, the respondent was directed to consider the petitioner's application again. However, by Ext.P10 the application has been rejected.
3. According to the Senior Counsel Shri. Ranjith Thampan who appears for the petitioners, the conduct of the respondent is nothing but contempt of this Court. The petitioners have been driven to this Court challenging the various proceedings passed by the Municipality, without any justification. It is pointed out that what has been directed in Ext.P10 is to submit a fresh plan making provision for a new road that is proposed as per the DTP scheme. According to the learned Senior Counsel, the import of Ext.P4 is not to the said effect, the reference in Ext.P4 is to the widening of an existing road and not to a new road that is proposed as per the DTP scheme.
4. Adv.Sheejo Chacko appears for the respondent Municipality. According to the counsel, Ext.P4 refers to a road and to the understanding of the respondent, the reference is to the new road that is proposed by the DTP scheme that connects the Meloor Panchayat through the Vettukadvu bridge.
5. Heard. A perusal of Ext.P4 shows that, what is referred to therein is to provide space for the future widening of the said road. However, the said aspect has not been considered by Ext.P10. I notice that what has been directed to be considered by Ext.P9 is also referable only to the road that is already in existence. However, the respondent has in Ext.P10 fished out a new reason to reject the building permit of the petitioner. Neither Ext.P4 nor Ext.P9 has made any reference to the road that is proposed to be constructed as per the DTP scheme connecting the Meloor Panchayat through the Vettukadavu bridge. If there is any proposal for such a road, the respondent would have to implement the said proposal by invoking the provisions of the Land Acquisition Act. The rejection of the petitioners' application for building permit on the said ground is therefore held to be unsustainable.
Ext.P4 is accordingly set aside. The respondent is directed to consider the petitioners' application afresh and to pass appropriate orders thereon, as expeditiously as possible and at any rate within a period of two weeks of the date of receipt of a copy of this judgment.
jj /True copy/ Sd/-
K. SURENDRA MOHAN Judge