- (1.) THE petitioner has filed this Writ Petition aggrieved by Ext.P10 order and Ext.P11 communication by which an application for building permit submitted by him has been rejected. According to the petitioner, an earlier application had been submitted by the petitioner's father to the 4th respondent Municipality for the issue of a building permit. However, the same was rejected by Ext.P2. Against Ext.P2, the petitioner's father had filed W.P(c) No.18705 of 2010. By Ext.P7 judgment, the said Writ Petition was allowed by this Court, the impugned order was set aside and a direction was issued to the respondent therein to consider the application afresh in the light of the findings rendered therein, without reference to the Detailed Town Planning (D.T.P) Scheme. Pursuant to Ext.P7, the application submitted by the petitioner's father was allowed and a building permit was issued as evidenced by Ext.P8.
(2.) IN the meanwhile, the petitioner's father expired. The petitioner purchased the adjacent property also and decided to construct another building in the said property. The 4th respondent Municipality has granted the petitioner a building permit for effecting the said construction. It was in the above circumstances that the petitioner had sought for permission to construct upper floors to both the buildings so as to convert the same into an 8 storied single building. The application has been rejected by the impugned order, Ext.P10. Ext.P11 is the communication issued by the 4th respondent forwarding a copy of Ext.P10 to the petitioner. According to Sri Mathew John, who appears for the petitioner, the impugned order Ext.P10 is unsustainable and liable to be set aside. The reasoning of the 2nd respondent is erroneous for the reason that it has been found in Ext.P7 judgment that the D.T.P Scheme that is said to be applicable to the Municipality cannot be a ground for rejection of the application for building permit submitted earlier. Therefore, a direction may be issued for consideration of the building permit without reference to the D.T.P Scheme. In Ext.P10 what is stated is that the petitioner would not be entitled to the benefits of Ext.P7 judgment.
(3.) A counter affidavit has been filed on behalf of respondents 2 and 3. According to the counter affidavit, apart from the fact that the plan submitted by the petitioner cannot be sanctioned in view of the provisions of the D.T.P Scheme, there are other defects also. The earlier plan submitted by the petitioner was for a 4 storied building occupying a lesser plinth area. The present building encompasses not only the said property as well as the neighbouring property, but also covers a plinth area far in excess of the original plan. Therefore, it is contended that there are violations of the provisions of the Kerala Municipality Building Rules. It is also contended that there is a dispute regarding a pathway that is located on the western side of the petitioner's property. It is alleged that the petitioner has encroached upon the said way. Since the earlier plan approved by the Municipality has been drastically altered, apart from the change in the ownership of the property, the matter was referred to the 2nd respondent. In para.9 of the counter affidavit it has also been stated that the building permit could be granted only if the proposal satisfies the provisions of the development plan since the alignment of the M.C Road by- pass is proposed to pass through the petitioner's property.;