Sajeena A vs State Of Kerala
2021 Latest Caselaw 17469 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
         THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                         WP(C) NO. 14655 OF 2021
PETITIONER:

              SAJEENA A
              AGED 38 YEARS
              W/O. ASHRAF, KALLARAYYATHU KIZHAKKATHIL, KIDANGAYAM
              NADUVIL, SOORANADU SOUTH, KOLLAM-690522.

              BY ADVS.
              V.PHILIP MATHEW
              GIBI.C.GEORGE



RESPONDENTS:

     1        STATE OF KERALA
              REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT (RD)
              DEPARTMENT, KERALA GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM-695001.

     2        JUNIOR HEALTH INSPECTOR,
              PRIMARY HEALTH CENTRE, SOORANADU SOUTH, PATHARAM P.O.,
              KOLLAM DISTRICT-690522.

     3        SOORANADU SOUTH GRAMA PANCHAYAT,
              PATHARAM P.O., KOLLAM DISTRICT-690522, REPRESENTED BY ITS
              SECRETARY.

     4        THE SECRETARY,
              SOORANADU SOUTH GRAMA PANCHAYAT, PATHARAM P.O., KOLLAM
              DISTRICT-690522.

     5        KERALA STATE POLLUTION CONTROL BOARD,
              PATTOM P.O., THIRUVANANTHAPURAM-695004, REPRESENTED BY
              ITS SECRETARY.

     6        THE ENVIRONMENTAL ENGINEER,
              KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE,
              BIG BAZAR, KOLLAM-691001.
 WP(C) NO. 14655 OF 2021
                                  2

    7     JAYAN,
          RESIDING AT JAYA BHAVANAM, KIDANGAYAM NADUVIL,
          SOORANADU SOUTH, KOLLAM-690522.

          BY ADV P.C.SASIDHARAN



OTHER PRESENT:

          SRI. P.S. APPU-G.P.




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14655 OF 2021
                                        3

                                  JUDGMENT

This writ petition is filed seeking the following reliefs:-

"i) Issue a writ of certiorari or other appropriate writ, order or quashing Exhibits P5, P6 and P7 notices issued by the 4 th respondent.

ii) Issue a writ of certiorari or other appropriate writ, order or quashing Exhibit P8."

2. Heard the learned counsel for the petitioner, the

learned Government Pleader, the learned counsel appearing for

respondents 3 and 4, the learned Standing Counsel for

respondents 5 and 6 as well as the learned counsel appearing for

the 7th respondent.

3. The petitioner submits that she had been conducting a

poultry farm in 6.37 Ares of property in Survey No.494/2-5 of

Sooranadu South Village within the territorial jurisdiction of

respondents 3 and 4. It is submitted that no license is required for

the poultry farm. However, the 7th respondent, who is a politically

influential person, had submitted a complaint before the WP(C) NO. 14655 OF 2021

Panchayath, based on which Ext.P5 to Ext.P7 notices were issued

against the petitioner and the petitioner was disabled from

conducting the farm, it is contended.

4. The learned counsel for the petitioner would submit

that under the provisions of the Kerala Panchayat Raj (Licensing

of Lifestock Farms) Rules, 2012 (hereinafter referred to as 'the

Rules'), no license is required in case the poultry farm does not

have the specified number of birds. It is further contended that in

terms of Rule 3 of the said Rules, license would be required only

in case there is a notification issued in terms of Rule 4 of the

Kerala Panchayat Raj (Issue of Licence to Factories, Trades,

Entrepreneurship activities and other services) Rules, 1996 read

with Section 232 of the Kerala Panchayat Raj Act, 1994. It is

submitted that without a notification under Section 232, the

activity carried out by the petitioner would not require a license at

all. It is further submitted that Ext.P7 was issued without hearing

the petitioner and without serving a copy of the complaint on the

petitioner. The learned counsel for the petitioner also contends WP(C) NO. 14655 OF 2021

that the action, if any, can be taken only by competent officers of

the Animal Husbandry Department and not by the Panchayath.

5. A detailed counter affidavit has been placed on record

by respondents 3 and 4. It is submitted that the petitioner had

been required to stop the functioning of the poultry farm which

was being conducted without any license by Exts.P5 and P6. It is

submitted that, after issuance of the stop memos and after

conducting due inspection in the property, Ext.P7 had been

issued. It is submitted that the petitioner does not possess any

license for the conduct of the poultry farm. It is submitted that

going by Rule 3(2) of the Rules, a poultry farm having more than

1000 birds should obtain a license from the Panchayath. It is

submitted that Rule 10 of the said Rules enables the Secretary or

an authorised officer to conduct necessary inspections for

ascertaining the number of birds in the farm or to verify the

compliance of the condition of the license. It is further contended

that an inspection had been conducted in the premises and it was

found that there were more than 3000 birds in the farm. Ext.R3(a) WP(C) NO. 14655 OF 2021

report of the Health Inspector dated 19.06.2021 is also produced

and relied on. It is further submitted that a reading of the Rule

would show that once the number of birds in the farm exceeds

the number as provided in Rule 3(2), no notification is required by

the Panchayath and the farm would be deemed to be an offensive

trade requiring a license from the Panchayath. It is further

submitted that the Panchayath is duty bound to take appropriate

steps for protection of the health of the citizens and that the

clearance certificate from the Pollution Control Board produced by

the petitioner was also only valid till 23.12.2017, after which no

clearance was issued and that the petitioner cannot be permitted

to carry on the poultry farm without any license and without any

consent from the Pollution Control Board, as is required by law.

6. The learned counsel appearing for the party

respondent would submit that it was in view of the pollution and

the difficulties faced by the residents of the locality that a

complaint had been preferred before the Panchayath and that the

steps taken by the Panchayath are well in order and are liable to WP(C) NO. 14655 OF 2021

be upheld.

7. Having considered the contentions advanced, I notice

that Rule 3 of the Kerala Panchayat Raj (Licensing of Lifestock

Farms) Rules, 2012 provides for the licensing of farms where

there are more than 1000 birds in a poultry farm. A reading of the

Rules would make it clear that once the number of animals

exceeds the number provided in the table under Rule 3(1), the

farm is deemed to require a license in terms of Section 232 of the

Kerala Panchayath Raj Act, 1994. In the above view of the matter,

the contention of the petitioner that no license is required for the

poultry farm cannot be accepted.

8. The learned counsel for the petitioner thereupon

submits that Exts.P9 and P10 applications have been submitted

before the Pollution Control Board for consent to operate and

Ext.P11 request has been made before the Panchayath for

license.

9. The learned counsel for the Panchayath points out that

Ext.P11 is only a representation pointing out the steps taken by WP(C) NO. 14655 OF 2021

the petitioner to abate the nuisance. It is submitted that if an

application for license in the prescribed Form accompanied by the

required fees and supported by appropriate documents is made

by the petitioner before the Panchayath, the request will be

considered without delay.

10. In the above view of the matter, there will be a direction

to the 6th respondent to take up, consider and pass orders on

Exts.P9 and P10 request made by the petitioner without delay.

There will be a further direction that in case the petitioner

approaches the 4th respondent with an application for license in

terms of the 2012 Rules as accompanied by all due documents

and requisite fees, the same shall be considered, in accordance

with law, at any rate, within 30 days from the date on which such

an application is submitted.

This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE bng/31.08.2021 WP(C) NO. 14655 OF 2021

APPENDIX OF WP(C) 14655/2021

PETITIONER EXHIBITS

Exhibit P1 COPY OF LAND TAX RECEIPT DATED 2.6.2021.

Exhibit P2 COPY OF INTEGRATED CONSENT TO ESTABLISH DATED 24.12.2014 ISSUED BY THE 6TH RESPONDENT.

Exhibit P3 COPY OF OWNERSHIP CERTIFICATE DATED 1.6.2016 ISSUED BY THE 3RD RESPONDENT.

Exhibit P4 COPY OF NO OBJECTION/CONSENT GIVEN BY THE MR.ABDUL ASSIZ.

Exhibit P5 COPY OF NOTICE DATED 14.6.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P6 COPY OF NOTICE DATED 15.6.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P7 COPY OF NOTICE DATED 05.07.2021 ISSUED BY THE 4TH RESPONDENT.

Exhibit P8 COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT.

Exhibit P9 COPY OF ONLINE INDUSTRY REGISTRATION RECEIPT DATED 12.7.2021.

Exhibit P10 COPY OF ONLINE PAYMENT RECEIPT DATED 12.7.2021.

Exhibit P11 COPY OF APPLICATION DATED 30.07.2021 SUBMITTED BEFORE THE 4TH RESPONDENT

Exhibit P12 COPY OF PHOTOGRAPHS SHOWING TANK FOR WASTE MANAGEMENT.

WP(C) NO. 14655 OF 2021

Exhibit P13 COPY OF PHOTOGRAPHS SHOWING TANK FOR DEPOSITING MANURE.

RESPONDENTS EXHIBITS

Exhibit R3(A) TRUE COPY OF THE REPORT OF THE HEALTH INSPECTOR DATED 19.06.2021