Kerala High Court
Jayan vs The Secretary on 17 October, 2015
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940
WP(C).No. 16342 of 2017
-------------------------
PETITIONER(S):
-------------
JAYAN, S/O.VELAYUDHAN
KOTTAYIL (H), THIRUVANGADI TALUK
CHETTIPADI, MALAPPURAM- 676 319
BY ADVS.SMT.SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI
SRI.PREMCHAND R.NAIR
RESPONDENT(S):
--------------
1. THE SECRETARY, VALLIKKUNNU GRAMA PANCHAYATH
VALLIKKUNNU.P.O., MALAPPURAM DISTRICT- 673 314
2. THE VALLIKKUNNU GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY
VALLIKKUNNU.P.O., MALAPPURAM DISTRICT- 673 314
3. THE CHIEF TOWN PLANNER
OFFICE OF THE CHIEF TOWN PLANNER,PALAYAM
NANDAVANAM ROAD, PALAYAM, THIRUVANANTHAPURAM- 695 033
4. THE DISTRICT TOWN PLANNING OFFICER
CIVIL STATION, UP HILL, MALAPPURAM DISTRICT- 676505
5. THE KERALA STATE POLLUTION CONTROL BOARD
PATTOM.P.O., THIRUVANANTHAPURAM- 695 004
6. JIJU.K., S/O. VENU KOONERI, KOONERI VEEDU
KONDAKKADU.P.O., MALAPPURAM DISTRICT- 676 319
R5 BY ADV. SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL BOARD,
R6 BY ADV. SRI.JAMSHEED HAFIZ
R1-R2 BY ADV. SRI.V.A.MUHAMMED
R1-R2 BY ADV. SRI.V.K.GOPALAKRISHNAN
R3-R4 BY SRI. PAUL ABRAHAM VAKKANAL, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2018
ALONG WITH W.P.(C).NO.3230/2018 THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 16342 of 2017 (P)
----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:
-----------------------
EXHIBIT P1 THE TRUE COPY OF THE LICESE ISSUED BY THE 1ST
RESPONDENT PANCHAYATH DT. 4.12.2015
EXHIBIT P2 THE TRUE COPY OF THE CONSENT ISSUED BY THE 5TH
RESPONDENT DATED 17.10.2015
EXHIBIT P3 THE TRUE COPY OF THE LICENSE DATED 11.4.2016
EXHIBIT P4 THE TRUE COPY OF THE OWNERSHIP CERTIFICATE
DATED 17.10.2015
EXHIBIT P5 THE TRUE COPY OF THE REPORT PREPARED BY THE 4TH
RESPONDENT DATED NIL
EXHIBIT P6 TRUE COPY OF THE PHOTOGRAPHS OF THE PLACE
WHERE THE POULTRY FARM SITUATES AND THE
PHOTOGRAPHS INSIDE THE POULTRY FARM
EXHIBIT P7 THE TRUE COPY OF THE COMMUNICATION DATED
29.3.2016 ISSUED BY THE 4TH RESPONDENT TO THE 1ST
RESPONDENT IS PRODUCED HEREWITH
EXHIBIT P8 THE TRUE COPY OF THE COMMUNICATION ISSUED BY
THE 4TH RESPONDENT TO THE 3RD RESPONDENT
DATED 16.6.2016
EXHIBIT P9 THE TRUE COPY OF THE SHOW CAUSE NOTICE DATED
26.6.2016
EXHIBIT P10 TRUE COPY OF THE MEMO ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER DATED 28.11.2016
EXHIBIT P11 TRUE COPY OF THE APPLICATION FOR THE RENEWAL OF LICENSE
DATED 19.10.2017.
EXHIBIT P12 TRUE COPY OF THE ACKNOWLEDGMENT DATED 19.10.2017
RECEIVED BY THE PETITIONER FROM THE RESPONDENT
PANCHAYAT WITH RESPECT TO EXT.P11 APPLICATION
RESPONDENT(S)' EXHIBITS : NIL
-----------------------
//TRUE COPY//
P.A.TO JUDGE
nkr
A.K.JAYASANKARAN NAMBIAR, J.
********************************************************************************
W.P.(C) Nos.16342 of 2017 & 3230 of 2018
********************************************************************************
th
Dated this the 12 day of June, 2018
JUDGMENT
As the issue involved in both these writ petitions is similar, they are taken up for consideration together and disposed by this common judgment. For the sake of the convenience, the reference to facts and exhibits is from W.P.(C).No.16342/2017.
2. The petitioner is stated to be a resident of Vallikunnu Grama Panchayat where he is conducting a poultry farm in property that he owns. It is his case that, the poultry farm was put up after obtaining the necessary building permit and licences from the respondent Panchayat. In the writ petition, the petitioner is aggrieved by Ext.P9 show cause notice and Ext.P10 stop memo that was issued to him by the respondent Panchayat stating that, an inspection done by the District Town Planner had revealed that the petitioner was carrying on activities of the poultry farm by constructing a building with a plinth area of 1000 sq.meters, when as per the building permit granted to him the building that was sanctioned was only of a plinth area of 484.50 sq.meters. The respondent Panchayat therefore, took the view that, inasmuch as -2- W.P.(C) Nos.16342 of 2017 & 3230 of 2018 the construction of the building where the poultry farm was conducted was itself unauthorised, the activity of the petitioner in running the poultry farm was also an unauthorised one requiring a stoppage at the instance of the respondent Panchayat. It would appear that, during the pendency of the said writ petition, through an interim application, the petitioner produced an application that he had filed before the respondent Panchayat for renewal of his license for running a poultry farm. The application for renewal was for the period 2017-2018. By an interim order dated 08.11.2017, this court directed the respondent Panchayat to take a decision on the application for renewal preferred by the petitioner, within a period of one week from the date of receipt of a copy of the order. The order that was passed by the respondent Panchayat pursuant to the directions in the interim order referred above, is produced as Ext.P15 in W.P.(C).No. 3230/2018 filed by the petitioner and impugned therein. In the latter writ petition, Ext.P15 order is impugned, inter alia, on the contention that the said order proceeds on the basis that the construction put up by the petitioner in connection with the running of the poultry farm is an unauthorised one and therefore, inasmuch as the premise on which Ext.P15 order is passed, is erroneous, the order itself -3- W.P.(C) Nos.16342 of 2017 & 3230 of 2018 ought to be set aside.
3. I have heard the learned counsel appearing for the petitioner in both these writ petitions, the learned Standing Counsel appearing for the respondent Panchayat, the learned counsel appearing for the 6th respondent in W.P.(C).No. 16342/2017 and also the learned Standing Counsel appearing for the Pollution Control Board in both these writ petitions.
4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that, the essential objection of the respondent Panchayat to the activities carried on by the petitioner is that the poultry farm is being conducted in a building which has been constructed in deviation of the building permit granted to the petitioner. While it is the case of the Panchayat that, the building permit granted to the petitioner had sanctioned only a building with a plinth area of 484.50 sq.meters, it was found that, the petitioner had actually constructed a building having a plinth area of 1000 sq.meters. The learned counsel for the petitioner would vehemently dispute the said observations of the respondent Panchayat, and maintain that the District Town Planner who had -4- W.P.(C) Nos.16342 of 2017 & 3230 of 2018 visited the site had taken the measurement of an area covered by pillars, which the petitioner had installed with a view to construct a new building in the premises. It is stated that, the said proposal for the new building was abandoned, and it was under the said circumstances, the District Town Planner erroneously believed that the area bounded by the pillars was also a part of the building housing the poultry farm. I also note that, the petitioner had approached this Court through W.P. (C).No.16342/2017 immediately on receipt of Ext.P9 show cause notice and Ext.P10 stop memo and had not submitted any objections to the said stop memo before the respondent Panchayat pointing out the aforesaid facts with regard to the construction carried out by him. Under the said circumstances, I am of the view that the interests of justice would be served by directing the respondent Panchayat to consider the objections preferred by the petitioner against Ext.P9 show cause notice and Ext.P10 stop memo in W.P.(C).No. 16342/2017, within a period of three weeks from the date of receipt of a copy of this judgment. I make it clear that it will be open to the petitioner to furnish additional material to substantiate his contentions that the building in the premises is solely in conformity with the building permit that was issued to him by the respondent -5- W.P.(C) Nos.16342 of 2017 & 3230 of 2018 Panchayat. After the respondent Panchayat passes an order on the objections filed by the petitioner to Ext.P9 show cause notice and Ext.P10 stop memo, the Panchayat shall consider the application to be preferred by the petitioner for renewal of the D & O license for the year 2018-2019. An order on the said application shall be passed within a period of three weeks from the date of receipt of such application from the petitioner. I make it clear that, during the said period of three weeks granted to the respondent Panchayat to pass an order on the aspect of unauthorised construction of the petitioner, the petitioner shall not carry on any activities in the said poultry farm.
The writ petition is disposed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE nkr/13.06.2018