P.P.Francis vs The Secretary, Pudukkad Grama ...
2021 Latest Caselaw 14602 Ker

W.P.(C) No. 34068/2014             :1:



                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                 THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943

                          WP(C) NO. 34068 OF 2014

PETITIONER/S:

             P.P.FRANCIS,
             AGED 52 YEARS,
             S/O.PORINCHU P N, MARKET ROAD, PUDUKKAD , THRISSUR.

             BY ADVS.
             SRI.T.SETHUMADHAVAN (SR.)
             SRI.K.JAYESH MOHANKUMAR
             SRI.PUSHPARAJAN KODOTH
             SRI.C.K.VIDYASAGAR



RESPONDENTS:

     1       THE SECRETARY, PUDUKKAD GRAMA PANCHAYATH
             THRISSUR-680301.

     2       THE HEALTH OFFICER,
             CHC, MATTACHOOR, KODALI, THRISSUR DIST, PIN-680 301.

             BY ADVS.
             SMT.P.R.REENA
             GOVERNMENT PLEADER
             SRI.RENJITH THAMPAN SR.




             R2-SRI.SURIN GEORGE IPE,SENIOR GOVERNMENT PLEADER

             R1 - SMT.P.R.REENA




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

      14.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 34068/2014             :2:


                 Dated this the 14th day of July, 2021.

                            JUDGMENT

This writ petition is filed by the petitioner being aggrieved by

Ext. P5 notice dated 14.12.2014 issued by the 2 nd respondent ie., the

Health Officer, Mattathoor Thrissur District, directing the petitioner to

close down the meat stall conducted by him stating that the trade was

conducted in an unhygienic surroundings for a period of 15 days, and

directed the petitioner to cure the defects and construct a soak pit to

drain out the the wastewater, and thereafter intimate the same to the

Health office.

2. From the materials on record, it is evident that on

14.12.2014, at 11 a.m., the Health Officer, inspected the petitioner's

shop and took action in accordance with the provisions of the

Travancore-Cochin Public Health Act, 1955, since the meat business

was conducted without maintaining hygiene and proper mechanism to

treat solid and liquid waste, and there was no trade license issued by

the Panchayat to conduct the business. It is, thus, aggrieved by the

alleged drastic action to close down the business temporarily, the writ

petition is filed. The second respondent ie., the Health Officer, CHC,

Mattathoor, Kodali, Thrissur District, has filed a counter affidavit

basically contending as follows:

"3. It is respectfully submitted that the stop memo No. PH 65/2014 served by the Health Officer, Rural Community Health Centre, Mattathur, Thrissur District dated 14.12.2014 as per Travancore Cochin Public Health Act, 1955 is a legal one. Health Officer is satisfied (TCPH Act, 1955 Sec. 42) of the existence of the nuisance due to the following reasons. The petitioner has failed to produce a valid licence at the time of inspection. It is found that the petitioner has exhibited/displayed carcass of animal, meat of pork etc. in such a way that the general public is able to see through transparent (not provided screens with coloured glass) glass screens in his shop and open space in front of the shop. The exposure of meat in public places/market for selling purpose is the violation of the direction of this Hon'ble Court. As per order dated 10.12.2008, this Hon'ble Court directed that no animal carcass of whole of huge parcels of animal is allowed to be exhibited/displayed. The petitioner had kept dressed meat in ice box along with stomach and intestine of animal (cause contamination of meat) for selling. Mixing of meat with viscera, blood and other evisceration waste leads to contamination of meat and it enhances spread of certain diseases (some disease-carrying pathogens found in contaminated beef are Salmonellas, Escherichia Coli, Shigella, Staphylococcus Aureus and Listeria Monocytogenes. Different varieties of Salmonellas are often found in contaminated poultry) among the public. The petitioner is letting out waste water (wash water, waste water from the fish platter) to the public drain intended to convey rain water. He has failed to show the sanitary arrangements provided for safe disposal of waste water. The meat vendor failed to produce certificate of examination

of animal and postmortem examination of meat by an authorized Veterinary Doctor. The stamped portion of meat by an authorized slaughter house has not been preserved in the meat stall. The wooden block and tables used for cutting meat were found dirtied. Bones, refuse and poultry waste was found accumulated or thrown out. This inspection and action has been based on the direction of the District Medical Officer of Health, Thrissur vide (No.C6-11969/14/DMO (H) Thrissur dated 05.12.2014. A true copy of the direction issued by the District Medical Officer dated 05.12.2014 is produced herewith and marked as Exhibit R2(a). The District Medical Officer (H) was directed by the District Collector (as per letter No. No.(A-10) File No.2014/71782/8 dated 28.11.2014 Collectorate, Thrissur) to take immediate necessary action on the complaint submitted by Sri. Prasad N.B., S/o. Bhaskaran dated Nelliyanikkunnel, Varakkara, Amballur, Thrissur District dated 26.11.2014. A true copy of the letter dated 28.11.2014 issued by the District Collector is produced herewith and marked as Exhibit R2(b). A true copy of the complaint submitted by Sri. Prasad.N.B, S/o Bhaskaran Nelliyanikkunnel, Varakkara, Amballur, Thrissur is produced herewith and marked as Exhibit R2(c).

4. lt is submitted that the 2nd respondent is not the authority to Issue or renew a licence and it is to be issued by the 1 respondent.

5. It 1s respectfully submitted that Exhibit P2 has not been issued by the 2" respondent. It was issued by the Health Inspector, Primary Health Centre, Mupliyam on 11.06.2008 considering the sanitary conditions of the meat stall at that time i.e. the time of beginning of the Stall. Thus Exhibit P2 has no validity at present. The Exhibit Nos.

P3 & P4 only permits the petitioner to sell broiler chickens (alive) and not to sell meat of animals, poultry and sea foods. But the petitioner is conducting retail business of animal meat, chicken meat and fish (in unhygienic surroundings) and the same is admitted by the petitioner in his petition (synopsis) filed before the Hon'ble High Court of Kerala through his Advocate. The true copy of the photographs taken at the time of inspection on 14.12.2014 is produced herewith and marked as Exhibit R2 (d).

6. It is the duty of the 2nd respondent to conduct these sorts of inspections even without any complaint from the public. The allegation of the petitioner that the action of the 2 respondent is only to help certain other traders during the Christmas season is baseless because the 2nd respondent served five Stop Memos to other vendors in Pudukad market on the same day and imposed fine as per KPR. This action has also been done in the neighbouring Grama Panchayats, Nemanikaara, Alagappa Nagar and Varandarappilly. The true copy of the said memos dated 14.12.2014 is produced herewith and marked as Exhibit R2(e).

7.It is respectfully submitted that the amount paid by the petitioner is penalty as per KPR towards the offence he had committed. This fine imposed from the petitioner by the Secretary, Grama Panchayat, Pudukkad is as per KPR Sections 222 and 255 and Kerala Panchayat Raj Rules, penalties, compounding offence 1996 for functioning of a meat shop/market without licence and breach of provisions of KPR Act respectively.

8. It is respectfully submitted that the 2nd respondent (not first respondent as referred in the petition) has issued a Stop Memo

considering the public health importance of the case and emergency situation (nuisance described in this statement of Fact No.1) and the Health Officer is satisfied of the existence of nuisance. Earlier he was served with public health notice by the Junior Health Inspector of the area for the same offence. True copy of the notice served to the Junior Health Inspector is produced herewith and marked as Exhibit R2(f). The Stop Memo has not insisted the petitioner to close the meat stall permanently but ordered to stop continuing offence and to close the meat Stall only for fifteen days. The petitioner could have rectified his mistakes mentioned in the Stop Memo within the period of time and could have re-opened his shop. Photographs taken during the time of inspection which shows the actual situation prescribed in the statement of facts No.1 are attached herewith.

9. It is submitted that Ext.P6 produced by the petitioner along with Writ Petition by the petitioner is fake and fraudulent because the petitioner has not submitted such an affidavit to the 2nd respondent. But, he had submitted an affidavit on 16.12.2014 before the Secretary, Grama Panchayat, Pudukad during the time of follow up visit in which he stated that he got a stay order against the stop memo from the Hon'ble High Court of Kerala. He has not submitted it till date. A true copy of the affidavit dated 16.12.2014 is produced herewith and marked as Exhibit R2(g).

3. The counter affidavit shows that the trade is being carried

out by the petitioner without maintaining hygiene and cleanliness in

the premises. The counter affidavit filed would speak in volumes the

ugly manner in which the business was being carried on by the

petitioner. The paramount contention advanced by the petitioner is

that the action of the health officer is illegal and arbitrary, since the

business was directed to be closed down abruptly. It was also the

submission that the business was being carried on by securing all

licenses from the statutory authorities and no manner of prejudice was

caused to the public, apart from contending that there was no

complaint from the public. Yet another contention advanced was that

since a fine was imposed under the Kerala Panchayat Raj Act, 1994,

the licence would stand renewed. That apart, a submission was made

that the action affected the livelihood of the petitioner and the family.

4. The learned Standing Counsel appearing for Pudukad Grama

Panchayat, Smt. P.R Reena, submitted that the petitioner is carrying

on the business without securing a trade licence from the year 2013

onwards. However, it is evident that the Secretary has not taken any

steps so far to stop the illegal activities of the petitioner. It is seen

from the records that though this writ petition was listed and notice on

admission was ordered on 17.12.2014, the case was not listed before

the Court not even once. There was no interim order granted by this

Court probably for the reason that the impugned order is merely a

notice directing the petitioner to close down the business for 15 days

to rectify the defects.

5. As I have pointed out above, the photographs produced,

which remain undisputed, would depict and demonstrate the illegal,

unhygienic, and ugly way the business is being carried on by the

petitioner. However, today, when the matter was taken up, the learned

counsel for the petitioner seeks time for getting instructions. But, in

my considered opinion there is no point in keeping the writ petition

pending and therefore, it can be disposed of with appropriate

directions, in view of the detailed counter affidavit filed by the Health

Officer extracted above.

6. Therefore, after having analysed the arguments advanced by

the learned counsel for the petitioner, learned Standing Counsel for

the Panchayat and the learned Senior Government Pleader, this writ

petition is disposed of directing respondents 1 and 2 ie., the Secretary

of the Pudukad Grama Panchayat and the Health Officer to take

appropriate action in accordance with law, after providing a notice of

hearing and objection to the petitioner at the earliest and at any rate

within a month from the date of receipt of a copy of this judgment, if

the petitioner has not rectified the defects as pointed out in the

impugned notice, and if the petitioner is not having the requisite

licences and permits from the appropriate statutory authorities to

carry on with the trade in question. The parties would be guided by

the orders passed by the concerned authorities.

7. I also make it clear that if in any case the issue was

considered and sorted out by the respective statutory authorities, or if

the petitioner had rectified the defects, by securing appropriate

clearances from the respective statutory authorities and cured the

defects as noted by the health authorities , the directions contained

above would stand vacated.

This writ petition is disposed of as above.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 34068/2014

PETITIONER EXHIBITS:

Exhibit P1 PHOTOGRAPHS SHOWING THE SHOP ROOM IN WHICH THE BUSINESS IS BEING CONDUCTED.

Exhibit P1(A) PHOTOGRAPHS SHOWING THE SHOP ROOM IN WHICH THE BUSINESS IS BEING CONDUCTED

Exhibit P2 TRUE COPY OF THE LETTER DTD 11/6/2008 ISSUED BY THE 2ND RESPONDENT

Exhibit P3 TRUE COPY OF THE LICENSE ISSUED BY THE IST RESPONDENT TO THE PETITIONER DATED 13/3/2012.

Exhibit P4 TRUE COPY OF THE LICENSE DATED 5/10/2012 ISSUED BY THE FSASA OF INDIA TO THE PETITIONER.

Exhibit P5 TRUE COPY OF THE NOTICE DATED 14/12/2014 ISSUED BY THE 2ND RESPONDENT

Exhibit P6 P6:_TRUE COPY OF THE REPLY DATED 14/12/2014 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.

Exhibit P7 P7:-TRUE COPY OF THE RECEIPT DATED 14/12/2014 ISSUED BY THE 1ST RESPONDENT

RESPONDENT EXHIBITS

Exhibit R2(a) A TRUE COPY OF THE DIRECTION ISSUED BY THE DISTRICT MEDICAL OFFICER DATED 05/12/2014 WITH ENGLISH TRANSLATION.

Exhibit R2(b) A TRUE COPY OF THE LETTER DATED 28/11/2014 ISSUED BY THE DISTRICT COLLECTOR.

Exhibit R2(c) A TRUE COPY OF THE COMPLAINT SUBMITTED BY SRI.

PRASAD N.B. WITH ENGLISH TRANSLATION.

Exhibit R2(d) THE TRUE COPY OF THE PHOTOGRAPHS TAKEN AT THE TIME OF INSPECTION ON 14/12/2014.

Exhibit R2(e) THE TRUE COPY OF THE SAID MEMOS DATED 14/12/2014 WITH ENGLISH TRANSLATION.

Exhibit R2(f) TRUE COPY OF THE NOTICE SERVED BY THE JUNIOR HEALTH INSPECTOR WITH ENGLISH TRANSLATION.

Exhibit R2(g) A TRUE COPY OF THE AFFIDAVIT DATED 16/12/2014 WITH ENGLISH TRANSLATION.

/True Copy/

P.S To Judge.

rv