C.K. Mohanan (deceased) and others v. Ayavana Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** **WP(C).No.25714 OF 2010(L)** ## **PETITIONERS:** |**1**|**C.K.MOHANAN (DECEASED),**| |---|---| ||**AGED 48 YEARS**| ||**S/O.KUNJAN, CHIRAKKAL HOUSE, AYAVANA KARA,**| ||**ENANALLOOR VILLAGE, MUVATTUPUZHA, PIN-686 676.**| |**2**|**ADDL. P2. THANKAMANI MOHANAN,**| ||**AGED 51 YEARS**| ||**W/O. SRI. C.K. MOHANAN, CHIRAKKAL HOUSE, AYAVANA**| ||**KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA, PIN-686 676.**| |**3**|**ADDL. P3. SINOJ MOHANAN,**| ||**AGED 28 YEARS**| ||**S/O. SRI. C.K. MOHANAN, CHIRAKKAL HOUSE, AYAVANA**| ||**KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA, PIN-686 676.**| |**4**|**ADDL. P4. SILJA MOHAN,**| ||**AGED 27 YEARS**| ||**D/O. SRI. C.K. MOHANAN, CHIRAKKAL HOUSE, AYAVANA**| ||**KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA, PIN-686 676.**| |**5**|**ADDL. P5. SOORAJ MOHAN,**| ||**AGED 26 YEARS**| ||**S/O. SRI. C.K. MOHANAN, CHIRAKKAL HOUSE, AYAVANA**| ||**KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA, PIN-686 676.**| |**6**|**ADDL. P6. KARTHIYAYANI,**| ||**AGED 82 YEARS**| ||**M/O. LATE C.K. MOHANAN, CHIRAKKAL HOUSE, AYAVANA**| ||**KARA, ENANALLOOR VILLAGE, MUVATTUPUZHA, PIN-686 676.**| ||**(ADDITIONAL P2 TO P6 ARE IMPLEADED AS THE LEGAL**| ||**REPRESENTATIVES OF DECEASED PETITIONER AS PER ORDER**| ||**DATED 06/03/2020 IN IA NO.433/2017)**| **BY ADV. SRI.THOMAS M.JACOB** **WP(C) No.25714 OF 2010(L)** **2** ## **RESPONDENTS:** - **1 AYAVANA GRAMA PANCHAYATH AND ANOTHER AYAVANA P.O., MUVATTUPUZHA, PIN-686 676,, REPRESENTED BY ITS SECRETARY.** - **2 THE HEALTH INSPECTOR, PUBLIC HEALTH CENTRE, AYAVANA P.O.,, MUVATTUPUZHA, PIN-686 676.** - **3 MEAT PRODUCTS OF INDIA LTD., EDAYARM KOOTHATTUKULAM, ERNAKULAM, PIN-686662, REPRESENTED BY ITS MANAGING DIRECTOR.** - **4 THE SECRETARY, AYAVANA GRAMA PANCHAYAT, AYAVANA P.O., MUVATTUPUZHA, PIN-686676.** - **5 M.N.MOHANAN NAIR, SECRETARY, AYAVANA GRAMA PANCHAYAT, AGED 52 YEARS, S/O. LATE SRI. NEELAKANDAN NAIR, MENAMUTTATHE HOUSE, ENANELLOOR P.O., MUVATTUPUZHA-686673.** - **6 THE PRESIDENT, AYAVANAGRAMA PANCHAYAT, AYAVANA P.O., MUVATTUPUZHA, PIN-686676.** - **7 ADV. JOJO JOSEPH, THE ERSTWHILE PRESIDENT AYAVANA GRAMA PANCHAYAT, AGE AND FATHER'S NAME NOT KNOWN, VADAKKUMPADATH, MULLAPPUZHACHAL P.O., AYAVANA, MUVATTUPUZHA-686670.** - **8 THE VICE PRESIDENT, AYAVANA GRAMA PANCHAYAT, AYAVANA P.O., MUVATTUPUZHA, PIN-686676.** - **9 JOLLY GEORGE, THE ERSTWHILE VICE-PRESIDENT AYAVANA GRAMA PANCHAYAT, AGE NOT KNOWN, S/O. GEORGE, POTTACKAL, KAVAKKADU P.O., MUVATTUPUZHA, PIN-686668.** - **BY ADV. SMT.ASHA CHERIAN BY ADV. SRI.M.C.CHERIAN BY GOVERNMENT PLEADER SRI SUNIL KUMAR KURIAKOSE BY ADV. SRI.MILLU DANDAPANI BY ADV. SMT.SARAMMA CHERIAN** **WP(C) No.25714 OF 2010(L)** **3** **BY ADV. SRI.P.M.SANEER BY ADV. SMT.K.I.LEKSHMI RANI, SC, MEAT PRODUCTS OF INDIA LTD. BY ADV. SRI.M.A.THOMAS KUTTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2020, THE COURT ON 19-05-2020 DELIVERED THE FOLLOWING:** **WP(C) No.25714 OF 2010(L)** **4** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 19[th] day of May, 2020**_ The 1[st] petitioner (deceased) filed the writ petition seeking to command the 1[st] respondent to return the pigs seized from the 1[st] petitioner together with off-springs and for other consequential and incidental reliefs. On the demise of the 1[st] petitioner, additional petitioners 2 to 6 impleaded themselves in the writ petition to prosecute the case. 2. The 1[st] petitioner was a resident of 1[st] respondentAyavana Grama Panchayat and owned 2.06 Acres of land. The 1[st] petitioner has been rearing pigs in a shed in the property since 2008 as a means of livelihood. Pigs were reared in a hygienic manner. The pig drops and other waste were diverted to a bio-gas plant. As on 10.08.2010, there were 13 pigs, three of them pregnant. On 28.07.2007, the 1[st] respondent issued Ext.P1 notice requiring the 1[st] petitioner to **WP(C) No.25714 OF 2010(L)** **5** remove the pigs within seven days. The notice was issued based on some complaints. The 1[st] petitioner was not given copy of the complaint. Ext.P1 notice was issued due to the undue influence exerted by his neighbour one Benny, contended the 1[st] petitioner. The 1[st] petitioner was issued with a further notice as per Ext.P2 on 27.05.2010 requiring the petitioner to undo certain defects. The 1[st] petitioner carried out all necessary work including installation of mosquito nets and intimated the same to the 1[st] respondent. 3. The 1[st] petitioner apprehended further adverse steps by 1[st] respondent and hence filed Ext.P3 OS No.358/2009 before the Munsiff's Court, Muvattupuzha. A Court Commissioner submitted Ext.P4 Commission Report. The Panchayat filed Ext.P5 written statement. The written statement did not specifically reject the plaint averment that requisite notification or publication was not published by the Panchayat. In the absence of a notification or publication as required under Section 232 of the Kerala Panchayat Raj Act, 1994 and under Rule 3 of the Kerala Panchayat Raj (Issue of **WP(C) No.25714 OF 2010(L)** **6** Licence to Dangerous and Offensive Trades and, Factories) Rules, 1996, the piggery did not require licence. But, by way of caution, the 1[st] petitioner submitted an application for licence, which was not accepted by the Secretary. Instead, the 1[st] respondent issued Ext.P6 notice dated 14.12.2009 requiring the 1[st] petitioner to stop the unauthorised pig rearing. The 1[st] petitioner stated that there were 40 households in Ayavana Panchayat, rearing pigs. But, the 1[st] petitioner alone was proceeded against. 4. The 1[st] petitioner stated that on 07.08.2010 at 4.30 p.m. Ext.P9 notice was served requiring him to remove the pigs within three days. The 8[th] and 9[th] August were public holidays. On 10.08.2010, the 1[st] petitioner caused to serve Ext.P10 lawyer notice to the respondents pointing out that case was pending in court. However, on 10.08.2010, the Secretary came to the premises and took away the pigs. No receipt was issued regarding seizure of the pigs. The 1[st] petitioner submitted Ext.P12 letter on 10.08.2010 itself seeking return of the pigs. As the request was not acceded **WP(C) No.25714 OF 2010(L)** **7** to, this writ petition was filed on 13.08.2010. The pigs were handed over to the Meat Products of India (MPI), who slaughtered and sold the pigs. The MPI paid price at the rate of ₹54/- per Kg. The cost of slaughtered meat in open market was ₹140/- per Kg. The MPI was selling pork slice at ₹210/per Kg. The 1[st] petitioner estimated the damage and loss occurred to him at ₹2 lakhs and claimed that amount. 5. The learned counsel for the petitioners argued that there was no mandatory publication required under Rule 3 of the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998. Hence, no licence can be insisted for rearing pigs. Even if the Panchayat can insist, interest of justice and equity required that 1[st] petitioner be given time to regularise the piggery. Issuance of Ext.P9 notice granting three days to remove the pigs is illegal. At least clear 15 days notice should have been given. The exertion of power by the respondents is capricious, oppressive, malicious and without any _bona fide_ . The haste with which the pigs were seized and slaughtered, would be sufficient proof of lack of _bona_ **WP(C) No.25714 OF 2010(L)** **8** _fide_ . The petitioners are poor farmours who depended upon the rearing of pigs for their livelihood. Loans were taken from Bank for this purpose. Unless the petitioners are compensated adequately by this Court, they will be put to irreparable loss and injury. The learned counsel relied on the judgment of this Court in _**Renadevan v. Ezhupunna Grama Panchayat** [2010 (1) KLT 644]_ and of the Apex Court in _**State of Gujarat v. Memon Mahomed Haji Hasam** [AIR 1967 SC 1885]_ to urge that reasonable time shall be given in notices in such cases and that the respondents have a legal obligation to preserve seized property intact, until the proceedings are completed. 6. The Standing Counsel for the 1[st] respondentPanchayat opposed the petitions. The Standing Counsel stated that the first complaint against the unauthorised rearing of pigs was received on 10.06.2009 and after giving sufficient time to the 1[st] petitioner, pigs were removed only on 10.08.2010, after 14 months. On receipt of Ext.R1(a) public complaint, Health Inspector visited the place on 23.06.2009 **WP(C) No.25714 OF 2010(L)** **9** and as per Ext.R1(b), he requested the Secretary to stop the rearing. Ext.P1 notice was issued on 28.07.2009 directing the 1[st] petitioner to stop the piggery within seven days. The 1[st] petitioner, instead of complying with the direction, instituted civil proceedings in court. Yet another public complaint Ext.R1(g) was received on 11.12.2009. Thereupon, Ext.P6 notice was issued giving the 1[st] petitioner 15 days time. The Panchayat thereupon sent Ext.R1(h) communication to the Sub Inspector of Police, who gave further time to the 1[st] petitioner, to remove pigs. Thereafter, the Health Inspector issued Ext.P2 notice. Yet, no steps were taken by the 1[st] petitioner. Thereafter the Panchayat passed Ext.R1(p) resolution on 15.07.2010 and issued Ext.P9 notice dated 07.08.2010 directing the 1[st] petitioner to remove the pigs within three days. In Ext.P9, the 1[st] petitioner was cautioned that if he fails, the pigs will be taken over by MPI. The 1[st] petitioner, instead of complying with the direction, required the Panchayat to defer the proceedings till civil suit is disposed of. In view of the defence of the petitioners, the **WP(C) No.25714 OF 2010(L)** **10** Panchayat had no other go than to take over the pigs from the 1[st] petitioner's premises which was done on 10.08.2010. The pigs were handed over to MPI. 7. The Standing Counsel for the 1[st] respondent submitted that the MPI paid ₹41,252/- towards the price of the pigs, which amount is retained by the Panchayat. The Standing Counsel pointed out that necessary statutory notification was first passed by the Panchayat in the year 2006 itself. The 1[st] petitioner was bound to obtain D&O licence since pig sale and storing are included in Schedule I as item No.130, in the D&O Rules. This Court has also held so in the judgment in _**Shaji Philip v. Pallikkathodu Grama Panchayat** [2009 (1) KLT 14]_ . The counsel further denied the allegation that the 1[st] petitioner is singled out for hostile treatment. The Standing Counsel, referring to the additional counter affidavit, pointed out that the Panchayat has proceeded against other similarly situated piggeries. 8. Learned Government Pleader Sri.Sunil Kumar Kuriakose pointed out that the Health Inspector had given **WP(C) No.25714 OF 2010(L)** **11** Ext.P2 notice on 25.07.2010 and it is the refusal of the petitioners to take remedial measures as directed in Ext.P2 that resulted in the situation, for which the petitioners have to blame themselves. 9. Heard Sri. Thomas M. Jacob, counsel for the petitioners, Smt. Asha Cherian, Standing Counsel for the 1[st] respondent and Sri. Sunil Kumar Kuriakose, learned Government Pleader. 10. The petitioners' prime contention is that the petitioners are not legally required to possess a licence under the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998 in the absence of any notification under Rule 3 thereof. In the counter affidavit dated 31.08.2010 of the Panchayat Secretary, it has been stated that requisite notification under Rules, 1998 was published and the Panchayat has been issuing licence based thereon. Ext.R1(D) is one of such licences issued, though a copy of notification has not been produced. A further notification was made in the year 2009, based on Ext.R1(E) decision of the **WP(C) No.25714 OF 2010(L)** **12** Committee. It was duly published as is evidenced by Ext.R1(F) dated 16.09.2009. Assuming for arguments sake that there was no such notification published in the year 2006 and hence Ext.P1 notice is invalid, even then the subsequent notices, Exts.P6 and P9 are valid as those have been issued after Ext.R1(F) notification. Once a notification under Rule 3 of the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998 is published, those who are already rearing or keeping pigs or dogs are bound to obtain licence under Rule 4. Continuation of rearing/keeping such animals without obtaining licence will be an offence under the Rules. 11. The Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and, Factories) Rules, 1996 are applicable to the owner or occupier of every place used for the purposes specified in Schedule I of the Rules. Pig sale and storing falls under Item No.130 to Schedule I. Therefore, it is evident that for commercial trading in pigs, a licence under D&O Rules is necessary. When pigs are reared and stored for the purpose of selling commercially, a licence under **WP(C) No.25714 OF 2010(L)** **13** the D&O Rules is necessary. The petitioners therefore ought to have obtained D&O licence before starting rearing of pigs. The petitioners have no such licence. The petitioners therefore cannot be heard to contend that seized pigs should be returned to them and they should be permitted to continue rearing of pigs. 12. The learned counsel for the petitioners strenuously argued that natural justice was denied to the 1[st] petitioner as he was given only three days notice, that too with two intervening holidays, to remove the pigs. As all the proceedings of the Panchayat were in violation of Rules and natural justice and as the same has caused considerable financial loss, the petitioners should be compensated, it was urged. The pleadings would, however, reveal that the 1[st] petitioner was given Ext.P1 notice as early as 28.07.2009 requiring the 1[st] petitioner to stop rearing within seven days. Another notice was given on 14.12.2009 as per Ext.P6 requiring him to stop the rearing within 15 days. Finally, the 1[st] petitioner was given Ext.P9 notice on 07.08.2010. The 1[st] **WP(C) No.25714 OF 2010(L)** **14** petitioner responded to the said notice requiring the Panchayat to defer the proceedings till the civil court decides the issue. In the absence of any interim injunction or orders of the civil court and in the face of the public complaints against the petitioners' activities, the Panchayat could not have abstained from removing the pigs from the premises of the 1[st] petitioner. The judgment of this Court in _**Renadevan v. Ezhupunna Grama Panchayat** (supra)_ will not be of any help to the petitioners because the petitioner in the said case had obtained initial licence, NOC from DMO and consent from Pollution Control Board. He was denied renewal of licence. It was under those circumstances that this Court deprecated the action of the authorities in hurriedly shutting down the piggery without granting reasonable time. In the case on hand, the petitioners had ample time after the issuance of first and second notices to remove the pigs. In the circumstances, I find no illegality or impropriety in Panchayat removing the pigs by themselves. 13. Relying on the judgments of the Apex Court in **WP(C) No.25714 OF 2010(L)** **15** _**State of Gujarat v. Memon Mahomed Haji Hasam** (supra)_ and _**N. Nagendra Rao and Co. v. State of A.P.** [(1994) 6 SCC 205]_ , it was urged that the authorities have a legal obligation to preserve properties seized intact and also to take reasonable care of it so as to enable the Government to return it in the same condition in which it was seized. The said case dealt with seizure under the Customs Act, 1962 and Essential Commodities Act, 1995. The articles seized in those cases were motor trucks and fertilizers. Those are inanimate objects which can be preserved by the authorities to certain extent without any difficulty or substantial damage. In the petitioners' case, the seizure was of pigs and they were reared for sale. The Panchayat authorities seizing those living beings cannot be expected to nurture or rear pigs till the end of all legal proceedings. The Panchayat, in Ext.P9 notice, had cautioned the 1[st] petitioner that unless the 1[st] petitioner removes the pigs, the same will be given to Meat Products of India, which is a public sector undertaking. In spite of notice, the 1[st] petitioner did not care to remove the **WP(C) No.25714 OF 2010(L)** **16** pigs. In the circumstances, I find no illegality in the action of the Panchayat in handing over the seized pigs to MPI. As the petitioners had all the opportunity to sell the pigs in open market before seizure by Panchayat authorities, the petitioners cannot be heard to contend that the pigs would have fetched more money if they were auctioned or sold in open market. In the circumstances, I find no merit in the contentions of the petitioners. The writ petition therefore fails. However, in the facts of the case, the writ petition is disposed of directing the 1[st] respondent to pay the amount received from Meat Products of India towards sale of pigs, to the petitioners, with accrued interest, if any, within a period of one month. Sd/- **N. NAGARESH, JUDGE** aks **WP(C) No.25714 OF 2010(L)** **17** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 28/07/2007. EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 27/05/2010.** **EXHIBIT P3 TRUE COPY OF THE PLAINT IN OS NO.358/09 OF MUNSIFF'S COURT, MUVATTUPUZHA.** **EXHIBIT P4 TRUE COPY OF THE COMMISSIONER REPORT IN OS NO.358/2009 OF MUNSIFF'S COURT, MUVATTUPUZHA.** **EXHIBIT P5 TRUE COPY OF THE WREITTEN STATEMENT OF PANCHAYAT IN OS NO.358/09. EXHIBIT P6 TRUE COPY OF THE NOTICE NO.A5-2299/09 DATED 14/12/2009. EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR INFORMATION REGARDING PIG REARING UNITS. EXHIBIT P8 TRUE COPY OF THE REPLY GIVEN BY THE PANCHAYT UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P9 TRUE COPY OF THE NOTICE NO.A4-7130/10 ISSUED BY PANCHAYAT. EXHIBIT P10 TRUE COPY OF NOTICE ISSUED BY COUNSEL FOR PETITIONER. EXHIBIT P11 THE RECEIPT FOR SUBMISSION OF EXT.P10. EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 10/08/2010 SUBMITTED BY PETITIONER FOR RETURN OF PIGS. EXHIBIT P13 TRUE COPY OF NOTICE DATED 22/06/2009 ISSUED BY THE CANARA BANK, MUVATTUPUZHA.** **WP(C) No.25714 OF 2010(L)** **18** **EXHIBIT P14 TRUE COPY OF THE INVOICE DATED 08/09/2010 OF MPI LIMITED.** **EXHIBIT P15 LIST OF SOME OF THE HOUSEHOLDS THAT ARE HAVING PIG REARING UNITS.** **RESPONDENT'S EXHIBITS:** **EXHIBIT R1P TRUE COPY OF RESOLUTION DATED 15/07/2010 OF AYAVANA GRAMA PANCHAYAT. EXHIBIT R1(Q) TRUE COPY OF LETTER DATED 10/08/2010 OF THE MPI TO 1ST RESPONDENT. EXHIBIT R1(R) TRUE COPY OF LETTER DATED 26/02/2011 OF MPI TO 1ST RESPONDENT.**