The petitioner is the owner in possession of 22.54 cents of land comprised in Resurvey No. 590/6 of Kakkanad Village. The petitioner submitted Ext.P3 application for building permit. That application was considered by the third respondent and it was rejected as per Ext.P4 holding that the land in question lies in an area earmarked as agriculture zone by virtue of the structural of plan of Kochi and as there is violation of Rule 54(3)(i) and 34 (7) of the Municipality Building Rules. The petitioner assailed Ext.P4 order by filing W.P.(C) No.16121/2013. As per Ext.P5 judgment this Court set aside Ext.P4 order and disposed of the same with a direction to the third respondent to consider the application afresh after conducting an inspection of the land in question to ascertain its real nature and then pass orders on the application, in accordance with law. Instead of considering the application in terms of the directions in Ext.P5 judgment the third respondent forwarded the building permit application to the 4th respondent and after its consideration the 4th respondent passed the Ext.P6 order. A perusal of Ext.P6 order would reveal that the application submitted by the petitioner was rejected by the 4th respondent virtually on the same ground upon which the third respondent rejected the application on the earlier occasion as per Ext.P4. It is in the said circumstances challenging Ext.P6 that this writ petition has been filed. 2. The contention of the petitioner is that in the light of Ext.P5 judgment the third respondent should have conducted an inspection and should have taken a decision thereon based on the outcome of the said inspection. It is the further contention of the petitioner that there was absolutely no justification for the 3rd respondent to forward the application for the consideration of the 4th respondent. Further, it is contended that the 4th respondent lacks jurisdiction to decide the request of the petitioner for building permit. The learned Government Pleader submitted that in the light of Rule 56 of the Kerala Municipality Building Rules, 1999 the contention of the petitioner that the District Town Planner, the third respondent got no jurisdiction cannot sustained. It is submitted that bare perusal of the said rule would reveal that the District Town Planner is empowered to consider such an application in the sense that he is the authority competent to grant approval for usage of plot and layout in respect of a proposed building with total floor area exceeding 4,000 Sq.Metres up to 10,000 Sq.Metre. The learned counsel appearing for the petitioner submitted that Ext.P3 application itself would reveal that the floor area of the proposed building is below 4,000 and therefore, the third respondent should not have forwarded Ext.P3 application for consideration of the 4th respondent and in fact, in tune with the directions in Ext.P3 it should have been by considered by the third respondent himself. The further contention of the petitioner is that the reason assigned in Ext.P4 for rejecting the application on the earlier occasion as per Ext.P4 that the land in question lies in an agriculture area was considered and rejected by this Court based on the dictum laid down by this Court in Gopalakrishnan V State of Kerala reported in 2011(3) KLT 317. In Gopalakrishnan's case the area concerned was earmarked as a residential zone and the petitioner therein submitted an application for grant of permit for constructing a commercial building. That application of the petitioner was rejected assigning the reason that permission to construct a commercial building could not be granted as the area in question was earmarked as a residential zone. The Division Bench considered the entire aspects and found that if large number of constructions for commercial purposes were permitted by the concerned Local Self Government Institutions in an area earmarked as residential zone that area could no longer be regarded as a residential zone and in such circumstances there was absolutely no reason to deny an application for constructing the commercial purpose citing the reason that the area concerned is earmarked as a residential zone. The dictum laid down in the said decision was followed by this Court in rendering Ext.P5 judgment. This Court directed the respondents to inspect the land in question to ascertain its real nature and also the aspect as to whether any constructions were effected in the adjoining lands. The specific contention of the petitioner is that though the area is earmarked as an agriculture area several constructions, residential and commercial were effected in the area on the strength of the permits granted by the third respondent. Evidently, those contentions were taken into consideration by this Court while rendering Ext.P5 judgment. When this Court directed the authority to conduct an inspection and pass orders thereon based on the outcome of such inspection that authority is bound to comply with the said direction. The specific contention of the petitioner based on Ext.P3 is that the floor area of the proposed building is less than 4,000 sq.feet. The question of forwarding that application and obtaining approval of the District Town Planner would arise only the total floor area of the proposed building exceeds 4000 Sq. feet. In the said circumstances in the light of Ext.P5 I have no hesitation hold that the third respondent should have considered the application by himself after conducting an inspection in tune with the directions in Ext.P5 judgment. For all these reasons I am of the considered view that Ext.P6 invites interference. In the said circumstances Ext.P6 is set aside. The third respondent is directed to conduct an inspection into the land where the petitioner proposes to construct a commercial building and for which he submitted Ext.P3 application, within three weeks from the date of receipt of a copy of this judgment in the light of the dictum laid down by the decision in Gopalakrishnan's case (supra) and in tune with Ext.P5 judgment. After such an inspection and based on the outcome the third respondent shall consider Ext.P3 application afresh and pass orders in accordance with law bearing in mind the decision of this Court in Gopalakrishnan's case (supra) expeditiously and at any rate, within a period of one month from the date of inspection.
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C.T.RAVIKUMAR,JUDGE.
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