IMPORTANT POINT
The DTP scheme cannot restrict building permits when commercial constructions exist nearby; prior judicial precedents support reconsideration of such applications.

JUDGMENT :

Mohammed Nias C.P., J

The petitioners challenge Ext.P5, an order rejecting the application for a building permit stating four reasons, out of which one is that the property is included in the DTP scheme which restricts putting up residential buildings above 180 sq.mtrs. In this writ petition, this is a specific averment that there are so many commercial buildings in and around the petitioners' property in paragraph 2 of the writ petition. There is no denial of the said averments in the counter affidavit filed by the respondents. It is stated that the 2nd petitioner had submitted an application for constructing a commercial cum residential building on 19.08.2022 with 1237.40 sq. mtrs in 7.9073 ares of land situated in Revenue Ward-17 of Kozhikode Corporation which on inspection was found to be included in DTP scheme for ward 17, in the zone specified as “reserved for residential area ". Three defects were also noticed in Ext.P.5 order, alleging violation of the building Rules.

2. The learned counsel for the petitioners relies on the judgment of this Court in Gopalakrishnan T.V v. State of Kerala and others [2011 (3) KHC 162] wherein it was held that when there are many commercial buildings adjacent to the land in question, the Secretary can conduct an inspection of the site to find out whether the buildings constructed in and around land and nearby area consists mostly of commercial buildings than residential, then Secretary can allow commercial construction subject to approval of building plan. The learned counsel also relies on the judgment of this Court in W.P.(C) No.26246 of 2023 dated 21.06.2024 which held that in cases where the respondents had allowed several buildings to come up in violation of the scheme, preventing an individual, based on the Master Plan which was all along flouted, cannot be justified. It is also noticed that the authorities had only themselves to blame and nobody else for the situation in which they were placed. The said judgment was confirmed in W. A No.1099 of 2024 by judgment dated 30.09.2024.

3. The learned counsel for the Corporation brings to my notice a judgment in Unnikrishnan V. v. Kozhikode Municipal Corporation [2023 KHC 9436] wherein this Court held that though in various judgments, before coming into force of the Act of 2016, this Court had referred to the redundancy of DTP Schemes and permitted constructions to come up despite the existence of the DTP Scheme, those judgments cannot be relied upon after the coming into force of the Act. In the instant case, the contentions of the petitioners are that several commercial buildings have been allowed to come up in the DTP scheme, which is not even denied.

4. Under such circumstances, the Corporation cannot be allowed to reject the application preferred by the petitioners citing that the properties are included in the DTP Scheme which is being followed by the Corporation itself. Given the judgments mentioned above, including two judgments of the Division Bench, I do not think that the stand of the Corporation in Ext.P5 order can be sustained.

5. Accordingly, Ext.P5 is quashed. There will be a direction to respondents to reconsider the application for building permit submitted by the petitioners dehors the defect based on the DTP Scheme and pass fresh orders within six weeks in accordance with law, from the date of receipt of the copy of this judgment. It is made clear that the petitioners will have to comply with all the other provisions of the relevant building Rules to get the permit sought. Needless to say that the application of the petitioners has been considered in the light of the Master Plan in force. However, the same objection made as serial No.1 in Ext.P5 cannot be relied upon to refuse the application for building permit submitted by the petitioners.

The impugned order is quashed and the writ petition is allowed.