Aby, C.P. Kurian and Saji v. Revenue Divisional Officer, Mazhuvanoor Grama Panchayat, Kerala State Pollution Control Board; Basil C. Rajan v. Mazhuvanoor Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 11[TH] DAY OF OCTOBER 2021/19TH ASWINA, 1943** **WP(C) NO. 6461 OF 2021** ## **PETITIONERS:** - **1 ABY, AGED 43, S/O.VARGHESE, CHENGANAMADATHIL HOUSE, MANGALATHUNADA, NORTH MAZHUVANNOOR P.O., ERNAKULAM, PIN-686 669.** - **2 C.P.KURIAN, AGED 77, CHERAIKKAKKUZHIYIL, MANGALATHUNADA, NORTH MAZHUVANNOOR P.O., ERNAKULAM, PIN-686 669.** - **3 SAJI, AGED 40, S/O.SUKU, MULAIKKASERIYIL HOUSE, MANGALATHUNADA, NORTH MAZHUVANNOOR P.O., ERNAKULAM, PIN-686 669.** ## **BY ADV K.R.PRATHISH** ## **RESPONDENTS:** - **1 REVENUE DIVISIONAL OFFICER (RDO), REVENUE DIVISIONAL OFFICE, MUVATTUPUZHA, ERNAKULAM, PIN-686 666.** - **2 THE KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE (ERNAKULAM-II), 1ST FLOOR, MANNA RESIDENCY, M.C.ROAD, PERUMBAVOOR, ERNAKULAM, PIN-683 542.** - **3 MAZHUVANNOOR GRAMA PANCHAYAT, AIRAPURAM COLLEGE JUNCTION, KILIKULAM ROAD, AIRAPURAM, ERNAKULAM, PIN-683 541.** WP(C) Nos.6461&18072 of 2021 : 2 : **4 BASIL C.RAJAN, AGED 34, S/O.C.P.RAJAN, CHENGANAMADATHIL HOUSE, MANGALATHUNADA, NORTH MAZHUVANNOOR P.O., ERNAKULAM, PIN-686 669.** **BY ADVS.** **R1 SRI.SYAMANTHAK B.S, GOVT.PLEADER R2 SRI.T.NAVEEN, SC.** **R3 SRI.ABRAHAM P.MEACHINKARA R4 SRI.P.THOMAS GEEVERGHESE R4 SRI.TONY THOMAS (INCHIPARAMBIL)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2021, ALONG WITH WP(C).18072/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) Nos.6461&18072 of 2021 : 3 : ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 11[TH] DAY OF OCTOBER 2021/19TH ASWINA, 1943** ## **WP(C) NO. 18072 OF 2021** ## **PETITIONER:** **BASIL C. RAJAN, AGED 34 YEARS, S/O.C.P.RAJAN, CHENGANAMADATHIL HOUS** E, **MANGALATHUNADA, ERNAKULAM-686 669.** **BY ADV P.THOMAS GEEVERGHESE** ## **RESPONDENTS:** |**1**|**MAZHUVANOOR GRAMA PANCHAYAT,**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**AIRAPURAM COLLEGE JUNCTION,**| ||**AIRAPURAM, ERNAKULAM-683 541.**| |**2**|**SECRETARY, MAZHUVANOOR GRAMA PANCHAYAT,**| ||**AIRAPURAM COLLEGE JUNCTION, AIRAPURAM,**| ||**ERNAKULAM-683 541.**| |**ADDL.3**|**ABY, AGED 43, S/O.VARGHESE,**| ||**CHENGANAMADATHIL HOUSE,**| ||**MANGALATHUNADA,**| ||**NORTH MAZHUVANNOOR P.O.,**| ||**ERNAKULAM, PIN-686 669.**| |**ADDL.4**|**C.P.KURIAN, AGED 77,**| ||**S/O.CHERIKKAKKUZHIYIL,**| ||**MANGALATHUNADA,**| ||**NORTH MAZHUVANNOOR P.O.,**| ||**ERNAKULAM, PIN-686 669.**| WP(C) Nos.6461&18072 of 2021 : 4 : **ADDL.5 SAJI, AGED 40, S/O. SUKU, MULAIKKASERIYIL HOUSE, MANGALATHUNADA, NORTH MAZHUVANNOOR P.O., ERNAKULAM, PIN-686 669.** **(ADDL.R3 TO R5 ARE IMPLEADED AS PER ORDER DATED 20-09-2021 IN IA 1/2021).** **BY ADVS.** **R1-R2 SRI.ABRAHAM P.MEACHINKARA R3-R5 P.K.SREEVALSAKRISHNAN R3-R5 K.R.PRATHISH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2021, ALONG WITH WP(C).6461/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) Nos.6461&18072 of 2021 : 5 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 11[th] day of October, 2021**_ Both these writ petitions relate to running of a Kennel Farm in Mazhuvannur Grama Panchayat. The petitioners in W.P.(C) No.6461/2021 are aggrieved by the running of the Kennel Farm without adhering to statutory requirements and the petitioner in W.P.(C) No.18072/2021 is aggrieved by the non-consideration of his application for regularisation by the Panchayat authorities. The parties and exhibits are referred to in this judgment as they are arrayed/marked in W.P.(C) No.6461/2021, unless otherwise specified. 2. In W.P.(C) No.6461/2021, the petitioners state that they are residents of Ward No.XII of Mazhuvannoor Grama Panchayat and are residing near the Kennel Farm of the 4[th] respondent. The 4[th] respondent’s property is of less than 30 Cents. The 4[th] respondent started a Kennel Farm in his WP(C) Nos.6461&18072 of 2021 : 6 : property with four or five dogs and the pack is now increased in number. The Kennel Farm is run without obtaining any consent from the Pollution Control Board or licence from the Panchayat. There are more than 50 dogs in the Farm now. The 4[th] respondent has constructed Dog Cages all around his property, attached to boundary walls. 3. The Farm creates environmental pollution and nuisance. The petitioners submitted Ext.P3 complaint to the Secretary to the 3[rd] respondent-Panchayat. Ext.P5 complaint was filed before the Pollution Control Board authorities also. The authorities have taken no effective steps to curb the pollution and nuisance. In the meanwhile, the 4[th] respondent is proceeding with construction of new cages without licence, to multiply the Kennel pack. The petitioners seek to direct the respondents to take necessary steps to stop the illegal activities of the 4[th] respondent. 4. The 4[th] respondent in W.P.(C) No.6461/2021 filed WP(C) No.18072/2021. The 4[th] respondent stated that he is a reputed dog breeder of Great Dane dogs. He constructed a WP(C) Nos.6461&18072 of 2021 : 7 : dog kennel having a total plinth area of 251.60 M[2] in his land having an area of 83 cents. The Kerala Panchayat Building Rules 2019, exempts dog kennel from Building Permit if the number of dogs is less than six. The 4[th] respondent constructed the kennel when the number of dogs was less than six. However, the Secretary to the Panchayat issued Ext.P1 stop memo. Hence, the 4[th] respondent submitted Ext.P2 application for regularisation of his kennel construction. The 2[nd] respondent noted certain defects in the application and required the 4[th] respondent to cure the same as per Ext.P3 order. The 4[th] respondent has complied with the requirements in Ext.P3 and submitted a fresh plan(Ext.P4). 5. By Ext.P1, the 4[th] respondent was required to obtain licence from the Panchayat for rearing dogs. The 4[th] respondent sought information regarding the Panchayat resolution authorising licensing of dogs, as per Ext.P6. The 4[th] respondent was served with Ext.P6(a) reply to the effect that the Panchayat has not taken any decision to give license to dogs or dog kennels. The 4[th] respondent has obtained Ext.P7 WP(C) Nos.6461&18072 of 2021 : 8 : Consent to Operate the dog kennel, from the Kerala State Pollution Control Board. The 2[nd] respondent-Panchayat Secretary informed the 4[th] respondent that the application for building regularisation cannot be considered due to the pendency of W.P.(C) No.6461/2021. 6. In W.P.(C) No.6461/2021, this Court passed Ext.P9 interim order on 12.3.2021 directing the Panchayat to ensure that no further construction of dog cages is made by the 4[th] respondent without obtaining necessary building permit. The 4[th] respondent would submit that Ext.P9 does not in any manner restrain the Panchayat from considering his application for regularisation of constructions. In such circumstances, the 4[th] respondent seeks to direct the 2[nd] respondent to consider and pass final orders on merits, on Ext.P2 application for building regularisation as revised by Ext.P4, within a reasonable time. 7. Heard the learned counsel for the petitioners, the learned Government Pleader representing the 1[st] respondentRDO, the learned Standing Counsel for the Kerala State WP(C) Nos.6461&18072 of 2021 : 9 : Pollution Control Board, the learned Standing Counsel for the 3[rd] respondent Panchayat and the learned counsel for the 4[th] respondent. 8. The petitioners have sought to stop the construction of the Kennel Cages by the 4[th] respondent and to remove the Kennel Cages constructed unauthorisedly. The petitioners have also sought to remove the Kennels/Dogs from the property of the 4[th] respondent. According to the petitioners, the 4[th] respondent is bound to obtain Licence under Rule 4 of the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules,1998 for conducting Kennel Farm. As per the norms of the Pollution Control Board, the distance of the Kennel Farm from the nearest residential house is 100 metres and 25 metres set back is also required. 9. As regards violation of Rule 4 of the Kerala Panchayat Raj (Licencing of Pigs and Dogs) Rules, 1998, the requirement to obtain a licence would arise only if the Panchayat has taken a decision as contemplated under Rule 3 of the Rules, 1998. The 4[th] respondent submitted an RTI WP(C) Nos.6461&18072 of 2021 : 10 : application regarding any resolution taken by the Panchayat under Rule 3 and in Ext.P6 reply, the Public Information Officer has stated that there exists no such information in the available records. Hence, it must be presumed that there exists no resolution passed by the Panchayat, under Rule 3. The argument of the petitioners based on Rule 4 of the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998 cannot therefore be accepted. 10. Furthermore, this Court has held in the judgment in _**Shaji Philip v. Pallikkathodu Grama Panchayat** [2009 (1) KLT 14]_ that the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998 would apply only to dogs and pigs kept for domestic purpose only. In the case of the 4[th] respondent, dogs are reared not for domestic purpose. 11. As regards the licence/Consent of the Pollution Control Board, the Board has issued Consent to Operate the Dog Farm. Ext.P7 Consent (in W.P.(C) No.18072/2021) has been issued on condition that the Kennels shall be washed daily and wash water and excreta shall be directed to a WP(C) Nos.6461&18072 of 2021 : 11 : scientifically constructed bio gas plant. There is a further condition that effluent or waste water shall not be discharged to outside the premises of the Unit. If the petitioners have any complaint that the 4[th] respondent has violated any conditions of Ext.P7 Consent, it is for the petitioners to bring it to the notice of the Pollution Control Board and the Board is competent to review the Consent. 12. The main argument of the petitioners is that the 4[th] respondent has not obtained permit for constructing Dog Cages. However, it is evident from Ext.P3 that the 4[th] respondent has submitted application for Building Permit/Regularisation. The Secretary to the Panchayat has pointed out certain defects in the proposals as per Ext.P3. According to the 4[th] respondent, he has been orally informed that the application for building regularisation is not being considered due to the pendency of W.P.(C) No.6461/2021. The application for regularisation submitted by the petitioner being statutory in nature, the 2[nd] respondent is bound to take a decision in the matter within a reasonable time. WP(C) Nos.6461&18072 of 2021 : 12 : In view of the facts as aforesaid, W.P.(C) No.6461/2021 and W.P.(C) No.18072/2021 are disposed of directing the 2[nd] respondent-Secretary to Panchayat therein to pass final orders on Ext.P2 application for regularisation submitted by the 4[th] respondent, as revised by Ext.P4, within a period of one month. The representation of the petitioners to take action against illegal construction shall be proceeded with depending upon the final order to be passed on Ext.P2. Sd/- **N. NAGARESH, JUDGE** aks/04.10.2021 WP(C) Nos.6461&18072 of 2021 : 13 : ## **APPENDIX OF WP(C) 6461/2021** ## **PETITIONERS' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE RESIDENTS IN WARD NO.XII OF MAZHUVANNOOR GRAMA PANCHAYAT TO THE 3RD RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE REPLY ISSUED BY THE 3RD RESPONDENT DATED 12.06.2018 UNDER THE RIGHT TO INFORMATION ACT.** **EXHIBIT P3 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE 3RD RESPONDENT PANCHAYT DATED 22/.01.2021.** - **EXHIBIT P4 TRUE COPY OF THE RECEIPT ACKNOWLEDGING THE EXT.P3 COMPLAINT DATED 25.01.2021.** - **EXHIBIT P5 TRUE COPY OF THE COMPLAINT DATED 18.02.2021 SUBMITTED BY THE PETITIONERS TO THE POLLUTION CONTROL BOARD.** - **EXHIBIT P6 TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE SENDING OF EXT.P5 COMPLAINT DATED 18.02.2021.** - **EXHIBIT P7 TRUE PHOTOGRAPHS SHOWING THE PRESENT DOG CAGES AND THE CONSTRUCTION OF CAGES IN 4TH RESPONDENT PROPERTY.** - **EXHIBIT P8 TRUE COPY OF THE AFFIDAVIT DATED 22.03.2021 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE POLLUTION CONTROL BOARD** - **EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 10.09.2021.** - **RESPONDENTS' EXHIBITS** - **EXHIBIT R4(a) TRUE COPY OF LAND TAX RECEIPT OF THE 4TH RESPONDENT BEARING NO.KL07051402925/2020** - **EXHIBIT R4(b) TRUE COPY OF CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD TO THE 4TH RESPONDENT BEARING NO.G21ERNA-CTO220937** WP(C) Nos.6461&18072 of 2021 : 14 : **EXHIBIT R4(c) TRUE COPY APPLICATION FOR REGULARIZATION OF BUILDING SUBMITTED BY 4TH RESPONDENT TO 3RD RESPONDENT, BEARING EFILE NO.07506780121001354282 EXHIBIT R4(d) TRUE COPY LETTER DATED 07.07.2021 GIVEN BY THE MAZHUVANNOOR GRAMA PANCHAYAT BEARING NO.C3-3006/21 EXHIBIT R4(e) TRUE COPY APPLICATION FILED BY THE 4TH RESPONDENT ON 22.03.2021 UNDER RTI ACT TO THE MAZHUVANNOOR GRAMA PANCHAYAT EXHIBIT R4(f) TRUE COPY REPLY DATED 20.04.2021 NO.C12441/21 GIVEN BY THE MAZHUVANNOOR GRAMA PANCHAYAT TO EXT.R4(c0 APPLICATION EXHIBIT R4(g) NOTARISED AFFIDAVIT EXECUTED BY BALU KURIACHAN DATED 09.04.2021. EXHIBIT R4(h) NOTARISED AFFIDAVIT EXECUTED BY ALIAS DATED 09.04.2021. EXHIBIT R4(i) NOTARISED AFFIDAVIT EXECUTED BY DARLY BINOY DATED 09.04.2021. EXHIBIT R4(j) TRUE PRINT OUT TAKEN FROM BARKSTORY.COM WEBSITE ABOUT THE DOG BREAD GREAT DANE, AS ACCESSED ON 14.07.2021.** WP(C) Nos.6461&18072 of 2021 : 15 : ## **APPENDIX OF WP(C) 18072/2021** **PETITIONER'S EXHIBITS** **Exhibit P1 TRUE COPY OF STOP-MEMO DATED 19.03.2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P2 TRUE COPY APPLICATION FOR REGULARIZATION OF BUILDING SUBMITTED BY 4TH RESPONDENT TO 3RD RESPONDENT, BEARING EFILE NO.07506780121001354282 DATED 31.03.2021.** **Exhibit P3 TRUE COPY ORDER DATED 12.07.2021 ISSUED BY THE 2ND RESPONDENT.** **Exhibit P4 TRUE COPY OF THE RECTIFIED FINAL PLAN SUBMITTED IN EXT.P2 APPLICATION FOR REGULARIZATION.** **Exhibit P5 TRUE COPY RECEIPT DATED 29.07.2021 ISSUED BY THE 1ST RESPONDENT BEARING NUMBER 3957.** - **Exhibit P6 TRUE COPY APPLICATION FILED BY THE 4TH RESPONDENT ON 22.03.2021 UNDER RTI ACT TO THE MAZHUVANNOOR GRAMA PANCHAYAT.** - **Exhibit P6(a) TRUE COPY REPLY DATED 20.04.2021 NO.C12441/21 GIVEN BY THE MAZHUVANOOR GRAMA PANCHAYAT TO EXT.R4(C) APPLICATION.** - **Exhibit P7 TRUE COPY CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD TO THE 4TH RESPONDENT BEARING NO.G21ERNA-CTO220937 DATED 22.03.2021.** - **Exhibit P8 TRUE COPY OF WP(C)NO.6461/2021 WITHOUT EXHIBITS.** **Exhibit P9 TRUE COPY OF ORDER DATED 12.03.2021 IN WP(C)NO.6461/2021.** ncd