The petitioner is the owner in possession of an item of immovable property within the first respondent Municipality. The petitioner has filed this writ petition challenging Exhibit P6 proceedings by which, the first respondent has rejected an application for a modified permit submitted by him. According to the counsel for the petitioner, by Exhibit P3, the respondents had informed the petitioner that there was no objection to the construction of a building in his property. Exhibit P3 is dated 05.09.2008. Thereafter, the petitioner was issued with Exhibit P4 building permit. Later on, the petitioner applied for permission to effect some modifications in the construction proposed by him. Exhibit P5 is the application for the issue of a modified permit. By Exhibit P6 dated 05.06.2013, the petitioner's application has been rejected. What is stated in Exhibit P6 is that, as per the Draft Development Plan of the Pala Municipality, the property of the petitioner has been earmarked as 'Park and Open Space'. Therefore, it was not permissible to construct a commercial building in the said property. The petitioner places reliance on Exhibits P7 and P8 building permits that were issued to his neighbouring property owners, without any objection, by the very same Secretary. It is also pointed out that, as per Exhibit P9 on an earlier occasion, this Court had directed the first respondent to consider the application of the petitioner, when a similar objection was raised. In respect of Exhibit P9, it is pointed out that, the very same objections had been put forward for rejecting the application of the petitioner. 2. Advocate V.M.Kurian appears for the respondents. A counter affidavit has been filed. It is stated in the counter affidavit that, though the petitioner had been granted a building permit on 20.01.2011, he had not started his construction. Therefore, when he submitted a revised plan and an application for modified building permit, the same was rejected.
3. Heard. A perusal of Exhibit P6 does not show that the petitioner's application was rejected for the reason that he had not commenced his construction after obtaining a building permit in the year 2011. It is settled position of law that, reasons that do not find a place in the impugned order cannot be supplied by an affidavit, to justify an order, at a later point of time. Therefore, the said reason cannot be countenanced. Exhibit P3 shows that it had been clarified on 05.09.2008 that the petitioner's property was not required for any purpose and that, there was no objection to any construction being permitted therein. The action of the first respondent in completely retracting from the said stand is without any justification and unsupported by any material. It is also pertinent to notice that, the petitioner had been granted a building permit as per Exhibit P4. It is only when the petitioner had sought for a modification by submitting Exhibit P5 that Exhibit P6 has been issued. Therefore, there is absolutely no justification or bonafides for the reason stated in Exhibit P6. For the above reasons, I do not find any grounds to sustain Exhibit P6.
In view of the above, this writ petition is allowed. Exhibit P6 is set aside. The first respondent is directed to consider Exhibit P5 application and to issue a modified building permit to the petitioner, if the modified plan submitted by the petitioner does not violate any of the provisions of the building rules applicable. Orders as indicated above shall be issued, 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.
K.SURENDRA MOHAN, JUDGE kkj