Kerala High Court
K.V.Abdul Rasheed vs Pariyaram Grama Panchayat on 5 May, 2015
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 29TH DAY OF AUGUST 2016/7TH BHADRA, 1938
WP(C).No. 25663 of 2015 (G)
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PETITIONER:
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K.V.ABDUL RASHEED,
S/O.MAMMU HAJI, AGED 38 YEARS,
RESIDING AT 'ZEENATH MANZIL',
NEAR DISCO GRANITE, PONNURUKKI PARA,
PARIYARAM AMSOM P.O. THIRUVATTUR 670 502,
KANNUR DISTRICT.
BY ADV. SRI.R.SURENDRAN
RESPONDENT(S):
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1. PARIYARAM GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, PARIYARAM GRAMA PANCHAYAT,
P.O.CHITHAPPILE POYIL -670 502, KANNUR DISTRICT.
2. THE SECRETARY,
PARIYARAM GRAMA PANCHAYAT,
P.O.CHITHAPPILE POYIL -670 502, KANNUR DISTRICT.
3. SHAREEF CHITTARIKKADAVATH, S/O.MOIDEEN,
AGED ABOUT 42 YEARS, PULIBARAMB, TALIPARAMBA AMSOM,
KUPPAM DESOM, P.O.TALIPARAMBA - 670 141,
KANNUR DISTRICT.
4. THE DISTRICT MEDICAL OFFICER,
OFFICE OF THE DISTRICT MEDICAL OFFICER, KANNUR 670001
5. KERALA STATE POLLUTION CONTROL BOARD
REPRESENTED BY THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
DISTRICT OFFICE, KANNUR-670 002.
R1-R2 BY ADV. SRI.M.G.SREEJITH
R3 BY ADVS. SMT.VIDHYA. A.C
SRI.A.C.VENUGOPAL
R4 BY GOVERNMENT PLEADER SRI SAGI JACOB PALATTY
R5 BY ADVS. SRI.B.PRASANTH, SC,
SRI. T.NAVEEN
SRI. M.AJAY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.V.
WP(C).No. 25663 of 2015 (G)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 - TRUE COPY OF THE REGISTERED DOCUMENT BEARING
NO.45 OF 2010 OF SRO MATHAMANGALAM.
P2 - TRUE COPY OF THE INTIMATION DATED 5.5.2015 ALONG
WITH THE PLANS.
P3 - TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED
8.5.2015 ISSUED BY THE 1ST RESPONDENT.
P4 - TRUE COPY OF THE REQUEST AND COMPLETION PLAN
DATED 7.7.2015.
P5 - TRUE COPY OF THE RECEIPT DATED 8.7.2015 ISSUED BY
THE 1ST RESPONDENT.
P6 - TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED
20.7.2015 ISSUED BY THE 2ND RESPONDENT.
P7 - TRUE COPY OF THE APPLICATION DATED 11.5.2015
FILED BY THE PETITIONER BEFORE THE INFORMATION
OFFICER OF 1ST RESPONDENT.
P7(A) - TRUE COPY OF THE REPLY DATED 26.5.2015 ISSUED
BY THE INFORMATION OFFICER OF 1ST RESPONDENT TO
THE PETITIONER.
P8 - TRUE COPY OF THE APPLICATION DATED 30.5.2015
SUBMITTED BY THE PETITIONER BEFORE THE
INFORMATION OFFICER OF THE FIRST RESPONDENT.
P8(A) - TRUE COPY OF THE REPLY DATED 8.6.2015 ISSUED
BY THE INFORMATION OFFICER OF THE FIRST
RESPONDENT TO THE PETITIONER.
P9 - TRUE COPY OF THE REPRESENTATION DATED 30.5.2015
FILED BY THE PETITIONER BEFORE THE FIRST
RESPONDENT.
P9(A)- TRUE COPY OF THE RECEIPT DATED 30.5.2015 ISSUED
BY THE FIRST RESPONDENT TO THE PETEITIONER.
P10 - TRUE COPY OF THE REPRESENTATION DATED 22.7/2015
SUBMITTED BY THE PETITIONER BEFORE THE 4TH
RESPONDENT.
P10(A) - TRUE COPY OF THE ACKNOWLEDGEMENT DATED
24.7.2015 SIGNED BY THE 4TH RESPONDENT.
P11 - TRUE COPY OF THE REPRESENTATION DATED 22.7.2015
SUBMITTED BY THE PETITIONER BEFORE THE 5TH
RESPONDENT.
-2-
-2-
WP(C)NO 25663 OF 2015
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P11(A) - TRUE COPY OF THE ACKNOWLEDGEMENT DATED
24.7.2015 SIGNED BY THE 5TH RESPONDENT.
P12 - TRUE COPY OF THE LETTER DATED 7.8.2015 ISSUED BY
THE 2ND RESPONDENT TO THE PETITIONER.
P13 - TRUE COPY OF THE LETTER DATED 7.8.2015 ISSUED BY
SECOND RESPONDENT.
P14 - TRUE COPY OF THE PLAINT IN O.S.NO.355 OF 2015 ON
THE FILE OF THE MUNSIFF COURT, TALIPARAMBA.
P15 - TRUE COPY OF THE INJUNCTION ORDER ISSUED IN IA
NO.1620 OF 2015 IN OS NO.355 OF 2015 ON THE FILE
OF THE MUNSIFF COURT, TALIPARAMBA.
P16 - TRUE COPY OF THE CONSENT TO ESTABLISH DATED
23.1.2015 ISSUED BY THE 5TH RESPONDENT IN FAVOUR
OF THE 3RD RESPONDENT.
P17 - TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE
2ND RESPONDENT ON 23.2.2015 TO RESPONDENT NO.3.
P18 - TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT
MADE BY THE 3RD RESPONDENT AND THE APPENDED
DOCUMENTS FILE MAINTAINED BY 2ND RESPONDENT
OBTAINED UNDER THE RTI ACT.
RESPONDENT(S)' EXHIBITS
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R3(A): COPY OF BUILDING TAX RECEIPT DATED 9.06.2015
R3(B) COPY OF PHOTOGRAPH OF BUILDING CONSTRUCTED BY
THE PETITIONER.
R3(C) COPY OF LICENSE ISSUED BY 2ND RESPONDENT DATED
06.08.2015 TO THE 3RD RESPONDENT.
R3(D) COPY OF LETTER DATED 12.06.2015 OF THE HEALTH
INSPECTOR TO THE SECRETARY,PARIYARAM GRAMA
PANCHAYAT.
R3(E) COPY OF LETTER DATED 15.03.2016 OF THE HEALTH
INSPECTOR TO THE SECRETARY,PARIYARAM GRAMA
PANCHAYAT.
R3(F) COPY OF THE CONSENT TO OPERATE DATED 10.2.2016
ISSUED BY THE KERALA POLLUTION CONTROL BOARD.
R3(G) COPY OF BUILDING TAX RECEIPTDATED 2.05.2016
ISSUED BY THE SECRETARY PARIYARAM GRAMA
PANCHAYAT
R3(H) COPY OF RECEIPT ISSUED BY PARIYARAM GRAMA
PANCHAYAT DATED 1.04.2016.
/TRUE COPY/
P.S.TO JUDGE
K.V.
K. VINOD CHANDRAN, J.
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W.P.(C) No.25663/2015
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Dated this the 29th day of August, 2016
J U D G M E N T
Petitioner is aggrieved with the Poultry Farm, run in the adjacent property which the petitioner alleges occasions hazardous pollution affecting the residents of the area including the petitioner. The petitioner submits that the Panchayat ought not to have granted the said permit, to carry on the poultry farm, due to the residential building of the petitioner being within the prohibited distance. The petitioner also allege that the provisions of the Kerala Panchayat Raj Act 1994 and the Kerala Panchayat Raj (Licencing of Livestock Farms) Rules 2012 have not been complied with by the respondent. The petitioner also contends that the objections filed by the petitioner were not considered and seeks a declaration that the 3rd respondent has no right to commence, continue or conduct any poultry farm in the building bearing No. P.P-XVII/214-A and P.P.-XVII/214-B. The W.P.(C) No.25663/2015 - : 2 :-
petitioner seeks setting aside of the license issued by the 2nd respondent to the 3rd respondent for conducting a poultry farm.
2. The facts urged by the petitioner are as follows: The petitioner is the owner in possession of 2 acres and 10 cents of land situated in R.S. No.8 of Pariyaram amsom, Payadu Desom, Taliparambu Taluk in Kannur District. The petitioner purchased the property in 2010 as evidenced from Ext.P1. On 5.5.2015, the petitioner was issued with building permit produced as Ext.P2 for construction of a residential building having 51.37 square meters. This permit has been issued in accordance with the Kerala Panchayat Building Rules 2011. The petitioner completed the building by 7.7.2015 and was also issued with ownership certificate on 20.7.2015 as is evident from Ext.P6. The petitioner contends that the Poultry farm in the adjacent property established by the 3rd respondent is subsequent to the construction of the residential building and the petitioner also ought to have been heard before the license was granted.
3. The learned Counsel appearing for the 3rd respondent would stoutly refute the contention raised by the petitioner as to the 3rd respondent having applied for a license after the W.P.(C) No.25663/2015 - : 3 :-
construction of the building. The contention of the 3rd respondent is that the petitioner had sought for construction of a small building, only to some how prevent the operation of the poultry farm in the adjacent property. The 3rd respondent contends that such an attempt was made, since the petitioner apprehended that there would be a diminution in the market value of the property for reason only of the poultry farm coming up on the adjacent land. As to the application made by the 3rd respondent, the building permit application is said to have been made on 23.09.2014. The petitioner then approached the Pollution Control Board for a Consent to Establish which was granted as per Ext.P16 on 23.01.2015. The 3rd respondent also approached the Fire and Rescue Services who granted a certificate dated 29.11.2015, based on which, a building permit was issued on 23.2.2015. Admittedly, the building permit sanctioned was for the purpose of establishment of a Poultry farm since the 3rd respondent has also produced a Consent to Establish issued by the Pollution Control Board and the NOC issued by the Fire and Rescue Services, after verification of which the building permit itself was issued. The construction is said to have been W.P.(C) No.25663/2015 - : 4 :-
completed in May 2015 and the building was numbered on 23.5.2015; just prior to which the petitioner's application for building permit was granted as per Ext.P2 building permit on 5.5.2015.
4. Subsequent to the numbering of the building, the 3rd respondent applied for a D & O license before the Panchayat as provided under the Livestock Rules, which was granted as per Ext.R3(c) dated 9.6.2015. The said license is also valid till 31.3.2016. The petitioner even prior to that, has obtained Consent to Operate from the Pollution Control Board as per R3(f) dated 10.2.2016 which consent is valid till 31.1.2019. On the facts stated herein before, this Court is not inclined to accept the contention of the petitioner that the 3rd respondent's establishment of a poultry farm was detrimental to the petitioner or that the same could not have been established for reason of the residential building constructed in the neighbouring plot. The building constructed by the petitioner was not an already existing one. It can also be safely presumed from the facts that the petitioner's attempt to construct the building commenced with full knowledge of the poultry farm coming up in the neighbouring W.P.(C) No.25663/2015 - : 5 :-
property; with a view to somehow scuttle such commencement.
5. It is also to be noticed that there is no provision pointed out as to any distance rule being applicable in so far as the establishment of a poultry farm as seen from the Livestock Rules or the Panchayat Raj Act. In such circumstances, the only reservation that could be sustained is that the operation of the poultry farm should not cause any pollution affecting the nearby residents. If such a pollution is caused; despite the issuance of license and Consent to Establish, the petitioner could take up the issue before the Pollution Control Board or the Panchayat who would be duty bound to carry out an inspection and direct the 3rd respondent to provide mitigating measures. As of now, the PCB has issued a consent to establish and operate and the Panchayat too has issued license. This Court is not inclined to interfere in the license issued to the 3rd respondent for establishing and operating the poultry farm which is as per the provisions of the Act and Rules.
6. One other contention raised by the petitioner is that the 3rd respondent's license expired on 31.3.2016 and an application to renew the license was made only on 1.4.2016. Section 236 W.P.(C) No.25663/2015 - : 6 :-
according to the petitioner specifically provides for an application to be made within 90 days prior to the expiry of license and the Livestock Rules provide for the the application to be made within 30 days prior to the expiry of the license and there is no provision for renewal of license after the expiry as such. It is also contended that in such circumstance, there should be a fresh license applied for before the Panchayat. This Court is unable to concede to such an argument; especially since there is no such prohibition as argued by the petitioner in the Livestock Rules.
The general provisions applicable from the Act also provide to the contrary. Section 236 provides for an application to be made not less than 30 days but not more than 90 days before the expiry of the license period. Sub-section (11) of Section 236 only provides for deeming the operations to be illegal, if a renewal is not sought for within the time provided. Sub-section (11) specifically provides such deeming effect only until the license or permission is renewed. Herein, admittedly the petitioner applied for a renewal of license on 1.4.2015, allegedly for reason of the Secretary having directed the petitioner not to do so earlier.
W.P.(C) No.25663/2015 - : 7 :-
7. In the circumstances coming out from the writ petition, it would suffice to direct the Secretary to consider the renewal within a period of two weeks from today. The totality of the facts would commend this Court, to restrain the Panchayat from applying the deeming provision till such consideration is made. It is made clear that the petitioner would be entitled to approach either the Pollution Control Board or the Panchayat if any pollution is occasioned when the farm is made operational.
The writ petition is dismissed with the above reservation and directions. No order as to costs.
Sd/-
K. VINOD CHANDRAN , Judge al/-