Jimmy Paul v. Koratty Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934** **WP(C).No. 18651 of 2011 (F) ---------------------------** ## **PETITIONER(S): -------------** **JIMMY PAUL, S/O. PAUL, PEREPPADAN HOUSE, NALUKETTU, KIZHAKKUMURI VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.K.S.BHARATHAN** **RESPONDENT(S):** **--------------** **1. KORATTY GRAMA PANCHAYATH(SPECIAL GRADE), REPRESENTED BY ITS SECRETARY, KORATTY P.O. THRISSUR DISTRICT-680 308.** **2. THE HEALTH INSPECTOR, PUBLIC HEALTH CENTRE, NALUKETTU, KORATTY GRAMA PANCHAYATH, THRISSUR DISTRICT.** **3. SANTHOSH, S/O. DEVASSIKUTTY, THEKKENIYATH HOUSE, NALUKETTU, KIZHAKKUMURI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. R,R1 BY ADV. SRI.SHEEJO CHACKO R,R1 BY ADV. SRI.SANGEETH C. SUBRAMANIAN R,R1 BY ADV. SMT.M.BINDUDAS R,R3 BY ADV. SRI.M.RAJASEKHARAN NAYAR R,R3 BY ADV. SMT.K.N.RAJANI R,R3 BY ADV. SRI.G.ARUN GOPAN R,R2 BY ADV. GOVERNMENT PLEADER SRI ALOSYIOUS THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **kkj** ## **WP(C).No. 18651 of 2011 (F)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** |**P1:**|**TRUE COPY OF THE REPRESENTATION DATED 19.04.2011.**| |---|---| |**P2:**|**TRUE COPY OF THE INFORMATION DATED 28.04.2011**| |**P3:**|**TRUE COPY OF THE REPORT OF RESPONDENT NO.2 DATED 11.05.2011**| |**P4:**|**TRUE COPY OF THE NOTICE DATED 28.05.2011 OF RESPONDENT NO.1**| |**P5:**|**TRUE COPY OF THE REPRESENTATION DATED 02.07.2011**| |**P6:**|**TRUE COPY OF THE COMMUNICATION DATED 14.07.2011 ISSUED BY**| ||**THE 1ST RESPONDENT**| ## **RESPONDENT'S EXHIBITS:-** - **R1(a) TRUE COPY OF THE NOTICE DATED 09.06.2011 ISSUED UNDER REGISTER POST ADDRESS TO 3RD RESPONDENT.** - **R3(a) TRUE COPY OF THE CIRCULAR ISSUED BY THE PANCHAYAT DIRECTOR DATED 26.07.2000** - **R3(b) TRUE COPY OF THE AGREEMENT AND THE DECLARATION DATED 14.03.2011.** - **R3(c) TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE POLLUTION CONTROL BOARD DATED 16.07.2011.** **//TRUE COPY//** **PA TO JUDGE** **kkj** ## **K.SURENDRA MOHAN,J. --------------------------------------------WP(C).No.18651 of 2011 ---------------------------------------------Dated this the 8[th] day of November, 2012** ## **J U D G M E N T** The grievance of the petitioner herein is against the conduct of a pig farm and poultry by the third respondent, without obtaining any licence from the Panchayat, exposing the public to health hazards and causing nuisance. According to the petitioner, the third respondent has been conducting the pig farm and poultry for the past more than 10 years, without taking any licence as required by law. Without paying any heed to the instructions given by the authorities or to the needs of sanitation and maintenance of public health, pollution is caused making the lives of the people of the locality insufferable. The counsel for the petitioner places reliance on Ext.P3, report of the second respondent which graphically describes the unhealthy conditions in which W.P.(C)No.18651 of 2011 : 2 : the third respondent is carrying on his activities. The second respondent also takes note of the possibility of epidemics breaking out due to the functioning of the farm. Therefore, he has recommended that the farm be closed down immediately. Pursuant to Ext.P3, Ext.P4 notice was issued on 28.05.2011 by the first respondent directing that the functioning of the farm be stopped within a period of 30 days of the date of receipt of the said notice. However, no action has been taken thereafter in the matter, it is alleged. According to the petitioner, Ext.P5 representation was submitted since no action was taken against the unauthorised poultry. The same is also pending consideration of the first respondent. The petitioner has therefore filed this writ petition seeking necessary reliefs. 2. A counter affidavit has been filed by the third respondent. It is contended that for rearing of the pigs and conduct of a poultry, permission of the Panchayat is not required. A notification dated 28.07.2000 issued by W.P.(C)No.18651 of 2011 : 3 : the Director of Panchayats is also relied upon. It is contended that as per Ext.R3(a) circular, it has been provided that no licence is required for keeping cattle. According to the counsel for petitioner, cattle includes pigs also as per the definition in the Cattle Trespass Act, 1961. It is further contended that the Animal Husbandry Department has given the pigs to the petitioner and for the said reason also, no licence is necessary. 3. A counter affidavit has been filed by the Panchayat in which the first respondent has stated that the Panchayat has not issued any licence to the 3[rd] respondent either for the conduct of a poultry or pig farm. It is also stated that the third respondent is conducting a meat stall, for which activity also no licence has been granted. According to the Panchayat, no follow up action has been taken pursuant to Ext.P4 notice for the reason that the third respondent has filed an appeal under Section 276 of the Panchayat Raj Act. Proceedings pending before the Human Rights Commission, is also W.P.(C)No.18651 of 2011 : 4 : pointed out as a reason for not having taken any action to close down the third respondent's farm. The petitioner has filed a reply affidavit to the counter affidavit filed in this case. 4. The only issue that arises for consideration is whether a licence is required for conducting a pig farm and poultry. A similar question had come up for consideration before this Court in the decision reported in **Shaji Philip v. Pallikkathodu Grama Panchayat [2009 (1) KHC 32].** In the said case also, a pig farm had been started in the year 2003 and was being conducted without obtaining any licence from the Panchayat. While so, the Panchayat authorities insisted that a licence should be taken. The said action was under challenge in the said writ petition. It has been held in the said decision that a licence is required, no matter whether the pigs are being reared for domestic purposes or kept for business purposes. Where the pigs and dogs are only reared, for domestic purposes, the provisions of W.P.(C)No.18651 of 2011 : 5 : the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998 applies. Where the premises are used for any of the purposes mentioned in schedule 1 of the Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 ('the D & O Rules' for short), a licence under the said Rules would have to be obtained. 5:-Item 130 of schedule I of the D & O Rules reads as follows:- “poultry, pig, goat - Storing, sale”. ## 5. On the basis of the above provisions, this Court has held in paragraph 7 of the said decision as follows:- On the other hand, the D & O Rules are applicable to the owner or occupier of every place used for the purposes specified in Schedule I of the Rules. Item 130 of Schedule I of the D & O Rules specifies as “poultry, pig, goat - Storing, sale”. That makes it clear that when any person intends to engage in the trade of selling poultry, pig or goat, a licence under the D & O Rules is mandatory. It is relevant to note that D & O Rules were promulgated in 1996 whereas the Pigs and Dogs Rules were promulgated subsequently in 1998. That would also go to show that the rule making authority was aware W.P.(C)No.18651 of 2011 : 6 : of the fact that the D & O Rules were applicable only when pigs are stored for sale. It is common for people to have dogs and pigs purely for domestic purposes, for which D & O Rules would not be applicable and because of the nature of these animals, the rule making authority wanted separate licensing in respect of pigs and dogs which are reared and kept for domestic purposes only, which resulted in the Pigs and Dogs Rules. Therefore, I have no doubt in my mind that when pigs are reared and stored for the purpose of selling the same commercially what is required is a licence under the D & O Rules. The essential difference between the two licences is that for a licence under Pigs and Dogs Rules, the licence fee is only Rs.10/-, whereas for a licence under D & O Rules, the licence fee is as per Schedule II thereof, which is on the basis of average daily turnover. When for poultry and goat which are traded commercially the licence fee is on the basis of daily turnover, there is no reason whatsoever why for trading in pigs, the licence fee should be only Rs.10/-. This is another reason for holding that for commercial trading in pigs a licence under D &O Rules is mandatory. 6. In view of the above dictum, there cannot be any doubt that a licence is necessary for the activity that is being carried on by the third respondent in this case. 7. It is pointed out by the counsel for the third respondent that the Kerala State Pollution Control Board W.P.(C)No.18651 of 2011 : 7 : has granted Ext.R3(c) consent to operate in respect of the poultry. However, the consent appears to have been granted only for the purpose of selling chicken meat. Therefore, for the purpose of conducting a poultry and pig farm, consent of the Pollution Control Board would also have to be obtained. Without obtaining necessary licences and permissions under the various laws that are applicable to the activity of conducting a poultry and pig farm, the third respondent cannot be permitted to engage in such activity. The inaction on the part of the second respondent against such conduct is a violation of the law. Such inaction, despite the same being brought to the notice of the said authority by the petitioner, cannot be justified for any reason whatsoever. It is such soft attitude of the law enforcement authorities that permit the violation of law with impunity. In the present case, except for issuing Ext.P4 and Ext.R1(a), precious little has been done by the Panchayat to see that functioning of the third respondent's farm in violation of law is stopped. W.P.(C)No.18651 of 2011 : 8 : For the above reasons, the petitioner is entitled to succeed. This writ petition is allowed. The first respondent is directed to stop the poultry and pig farm conducted by the third respondent without any licence, forthwith and to see that the farm is not conducted without obtaining all the necessary licences and permissions as required by law. Sd/- **K.SURENDRA MOHAN, JUDGE** kkj