Kerala High Court
Ramla Ashraf vs Vellangallur Grama Panchayath on 9 March, 2015
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938
WP(C).No. 39479 of 2015 (H)
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PETITIONER(S):
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RAMLA ASHRAF,
W/O.LATE ASHRAF, PADIYATH PUTHENKATTIL HOUSE,
BLOCK JUNCTION, VELLANGALLUR, THRISSUR,PIN 680 662.
BY ADVS.SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
SRI.JOSEPH KURIAN VALLAMATTAM
SRI.K.H.ANSAR
RESPONDENT(S):
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1. VELLANGALLUR GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,VELLANGALLUR,
THRISSUR DISTRICT.
2. THE HEALTH OFFICER RURAL,
HEALTH SUPERVISOR,PRIMARY HEALTH
CENTRE,VELLANGALUR,THRISSUR DISTRICT-680662.
3. MOHAMMED NIZAR.K.I,
S/O.IBRAHIM, KALLUNGAL HOUSE, BLOCK
JUNCTION,VELLANGALLUR, THRISSUR DISTRICT-680662.
R1 BY ADVS. SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.K.R.MONISHA
SRI.C.RAKESH VENUGOPAL
R2 BY GOVERNMENT PLEADER SRI.MANZOOR ALI
R3 BY ADVS. SRI.M.SHAJU PURUSHOTHAMAN
SRI.K.S.RAJESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27/6/2016 THE COURT ON 14-07-2016, DELIVERED THE FOLLOWING:
PJ
WP(C).No. 39479 of 2015 (H)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT:P1: TRUE COPY OF THE LICENSE DATED 09.03.2015
EXT:P2: TRUE COPY OF THE RECEIPT DATED 12.03.2015.
EXT:P3: TRUE COPY OF THE COMPLAINTS DATED 09.03.2015
BEFORE SUPERINTENDENT OF POLICE.
EXT:P3(A): TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER TO
DEPUTY SUPERINTENDENT OF POLICE,(WOMEN CELL)DATED
09.03.2015.
EXT:P3(B): TRUE COPY OF THE COMPLAINT DATED 25.07.2015 SUBMITTED
BEFORE THE IRINJALAKUDA SUB INSPECTOR OF POLICE.
EXT:P4: TRUE COPY OF THE SAID NOTICE DATED NIL
EXT:P5: TRUE COPY OF THE COMPLAINANT FILED BY THE 3RD RESPONDENT
EXT:P6: TRUE COPY OF THE OBJECTION DATED 21.05.2015.
EXT:P7: TRUE COPY OF THE TRUE COPY OF THE SAID JUDGMENT DATED
18.11.2015 IN W.P(C) 18375/2015
EXT:P8: TRUE COPY OF THE ORDER DATED 14.12.2015.
RESPONDENT(S)' EXHIBITS
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
P.B.SURESH KUMAR, J.
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WP(C).No.39479 of 2015-H.
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Dated this the 14th day of July, 2016.
J U D G M E N T
Ext.P8 notice issued by the second respondent is under challenge in this writ petition.
2. The petitioner is rearing a dog in a kennel in her residential property. The third respondent is residing in the adjacent property. On a complaint lodged by the third respondent, the second respondent issued Ext.P4 notice to the petitioner stating that it was found on inspection that intolerable foul smell is emanating from the kennel of the petitioner; that fluff of the dog is likely to flow into the well of the third respondent and that the bark of the dog is creating nuisance to the third respondent. The second respondent has, therefore, directed the petitioner as per the said notice to shift the kennel to the western side of the residential building of the petitioner. The petitioner has not complied with the direction contained in Ext.P4 notice. Instead, she preferred Ext.P6 objection to Ext.P4 notice. WP(C).No.39479/2015-H. 2 The third respondent, in the circumstances, has approached this Court by filing WP(C).No.18375 of 2015. This Court disposed of the said writ petition directing the second respondent to take appropriate decision in the matter after adverting to the objections raised by the petitioner. Thereafter, the second respondent conducted yet another inspection in the property of the petitioner and issued Ext.P8 notice to her stating that even at the time of his second visit, he found that intolerable foul smell is emanating from the kennel of the petitioner. As per Ext.P8, the second respondent has again directed the petitioner to remove the kennel from its present place. The petitioner is aggrieved by Ext.P8 communication. Hence this writ petition.
3. A counter affidavit has been filed by the third respondent. It is contended by the third respondent in the counter affidavit that rearing of the dog by the petitioner in her residential property is causing nuisance to him and to the members of his family. According to the third respondent, in the circumstances, the second respondent is justified in issuing Exts.P4 and P8 notices to the petitioner.
WP(C).No.39479/2015-H. 3
4. Heard the learned counsel for the petitioner as also the learned counsel for the third respondent.
5. The fact that the petitioner is rearing a dog and that the kennel constructed by the petitioner is situated hardly ten feet away from the house of the third respondent is not disputed. The case of the petitioner is that no nuisance is caused to anybody on account of the petitioner rearing the dog, whereas the case of the third respondent is that nuisance is caused to him and to the members of his family on account of the petitioner rearing the dog. The second respondent inspected the residential property of the petitioner twice. On both occasions, the second respondent was satisfied personally that nuisance is caused to the third respondent on account of the petitioner rearing the dog. It is seen from Ext.P4 notice that when the concerned Medical Officer was brought to the house of the petitioner by the second respondent to convince the petitioner about the gravity of nuisance caused to the third respondent, the petitioner did not open the gate of her residential property nor did she co-operate with the inspection. There is nothing on record to indicate that WP(C).No.39479/2015-H. 4 the factual finding rendered by the second respondent in Exts.P4 and P8 notices as to the nuisance caused on account of the rearing of the dog by the petitioner is incorrect. Section 42 of the Travancore Cochin Public Health Act reads thus:
"42. Power of Health Officer to abate nuisance:- If the Health Officer is satisfied, whether upon information given under Section 41 or otherwise, of the existence of a nuisance he may, by notice, require the person by whose act, default or sufferance the nuisance arises or continuous or if that person cannot be found, the owner or occupier of the premises on which the nuisance arises or continuous to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose:
Provided that-
(a) where the nuisance arises from any defect of a structural character, the notice shall be served on the owner of the premises; and
(b) where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act, default or sufferance of the owner or the occupier of the premises, the Health Officer may himself forthwith do what he considers necessary to abate the nuisance and to prevent a recurrence thereof."
Section 42 confers power on the second respondent to direct the WP(C).No.39479/2015-H. 5 petitioner to take such steps as may be necessary for abatement of the nuisance. The second respondent has only directed the petitioner to change the location of her kennel to the western side of her residential building. There is absolutely no illegality in Ext.P8 order. The writ petition, in the said circumstances, is devoid of merits and the same is accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Kvs/-
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