K. Cham y v. Thachampara Grama Panchayath & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932** **WP(C).No. 17398 of 2010(Y)** **--------------------------------------** **PETITIONER:** **-------------------** **K.CHAMY, S/O. AYYAPPAN, AGED 65 YEARS KOMPODA, MUTHUKURUSSI, THACHAMPARA VIA., PALAKKAD DISTRICT.** **BY ADV. SRI.JACOB SEBASTIAN.** **RESPONDENTS:** **------------------------** **1. THE THACHAMPARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THACHAMPARA, MANNARKAD VIA., PALAKKAD DISTRICT.** **2. RADHAKRISHNAN, CHEERAPATH HOUSE, THACHAMPARA, MANNARKAD VIA., PALAKKAD DISTRICT.** **3. ANNAMMA JOSEPH, MANIKANAMPARAMBIL, THACHAMAPARA, MANNARKAD VIA., PALAKKAD DISTRICT.** **R1 BY ADV. SRI.GEORGE JACOB (JOSE), R3 BY ADV. SRI.C.E.UNNIKRISHNAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/07/2010,THE COURT ON 22/07/2010 DELIVERED THE FOLLOWING:** **W.P.(C). NO.17398/2010-Y:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE THACHAMPARA PANCHAYATH.** ## **EXT.P.2: COPY OF THE CONSENT LETTER.** **EXT.P.3: COPY OF THE ACKNOWLEDGEMENT ISSUED BY THE PANCHAYATH.** **EXT.P.4: COPY OF THE BUILDING PERMIT (PHOTOCOPY) ISSUED BY THE R.1.** **EXT.P.5: COPY OF THE NOTICE DTD. 07/05/2010.** **EXT.P.6: COPY OF THE NOTICE DTD. 14/05/2010.** **EXT.P.7: COPY OF THE NOTICE DTD. 24/05/2010.** **EXT.P.8: COPY OF THE NOTICE DTD. 25/05/2010.** ## **EXT.P.9: COPY OF THE PETITION.** **EXT.P.10: COPY OF THE NOTICE DTD. 29/05/2010 ISSUED BY THE PANCHAYATH.** **EXT.P.11: COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, THACHAMPARA.** **EXT.P.12: COPY OF THE PHOTOGRAPHS OF THE PROPERTY.** **EXT.P.13: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1.A: COPY OF THE APPLICATION AND APPENDED PLANS DTD. 23/11/2009.** **EXT.R1.B: COPY OF THE COMMUNICATION DTD.07/12/2009 ADDRESSED TO THE PETITIONER.** **EXT.R1.C: COPY OF THE LETTER DTD. 19/05/2010 RECEIVED IN THE OFFICE ON 24/05/2010.** **EXT.R1.D: COPY OF THE REPORT DTD. 19/05/2010.** **EXT.R3.A: COPY OF THE COMPLAINT DTD. 23/04/2010 BY THE R.3.** **EXT.R3.B: COPY OF THE PROCEEDINGS NO. A.6446/10 DTD. 25/10/2010.** **EXT.R3.C: COPY OF THE LETTER DTD. 29/05/2010.** **EXT.R3.D: COPY OF THE REPRESENTATION DTD. 08/06/2010.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.17398/2010-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 22[nd] day of July, 2010** ## **J U D G M E N T** The grievance raised by the petitioner herein is against the communication issued by the Secretary of the Panchayat directing to stop the poultry business and to demolish the building used for the same, allegedly, for certain violation of the provisions of the Act and the Rules. 2. The case pleaded by the petitioner is the following:- He possesses an extent of 26 cents of land in a hilly tract in Thachampara Panchayat. He decided to set up a small chicken farm therein and applied for issuance of a building permit as per application dated 23/11/2009. He had also applied for licence to set up the chicken farm. The consent of the neighbours also have been produced by him. The Panchayat has acknowledged the receipt of the application which is evidenced by Ext.P3. 3. Ext.P4 is the copy of the building permit claimed to have been issued to him which is not signed by the Secretary and it does not bear any date also. After completing the construction of the building, he commenced the business in April, 2010. ## W.P.(C). No.17398/2010 -:2:- 4. The petitioner contends that at the instance of the third respondent, the Panchayat issued a stop memo as per Ext.P5 and subsequently, he received a communication as per Ext.P6 rejecting the application for building permit. Ext.P7 is the communication threatening prosecution for running the business without licence and Ext.P8 is the notice directing the petitioner to demolish the building. Ext.P9 is the reply given by him and finally the Panchayat repeated their instructions to stop the business and demolish the building by Ext.P10. It is mainly pleaded that there is no complaint from any quarters with regard to the running of the unit. It is his case that the construction of the building is in terms of the building permit itself and the orders communicated are arbitrary and illegal. 5. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents. 6. The Secretary of the Panchayat, in his counter affidavit has explained that Ext.P4 is not a building permit issued by the Secretary. It was obtained by the petitioner with the assistance of a temporary employee of the Panchayat who is not now in service and it is clearly an act of manipulation. The consent letters alleged to have been given by the neighbours have not been furnished to the Panchayat. The application for licence said to have ## W.P.(C). No.17398/2010 ## -:3:- been submitted on 11/11/2009 for running the unit was rejected as no building was constructed at that point of time. On the application for issuance of building permit also, by Ext.R1(b) communication, he was informed that the same has been rejected. On getting complaint from the third respondent and other neighbours, the subsequent proceedings have been initiated. 7. It is contended that neither for the construction of the building nor for the conduct of the business, the Panchayat has given any permit or licence. It is pointed out that there is no report showing no objection by the Medical Officer as well as the consent from the Pollution Control Board for starting the business. 8. The learned counsel for the petitioner submitted that the petitioner has not received any communication rejecting the application for building permit and no reply was given by him with regard to the rejection of the application for licence also. Therefore, the applicant is entitled for deemed licence on expiry of the statutory period and reliance is placed on the decision of this Court ## in **Rajesh Ramachandran v. Corporation of Thiruvananthapuram** ## **[2008 (3) KHC 175].** 9. Herein, some other aspects are also relevant for consideration. Evidently, the building permit, Ext.P4, produced by the petitioner does not bear the date, and ## W.P.(C). No.17398/2010 ## -:4:- signature of the Secretary. He has not explained the source from which it was received. The Secretary has denied the involvement in the matter and has explained that the petitioner has obtained the same with the assistance of the temporary employee, Shri Kuttikrishnan. Evidently, the Secretary is the competent authority to issue permit. Therefore, as the veracity of Ext.P4 has itself been denied, the contention that he had obtained a building permit validly, cannot be accepted. The Panchayat has taken a contention that since it is a paddy field, the application for building permit was rejected by Ext.R1(b). Of course, the learned counsel for the petitioner submits that the petitioner has not received it and the site is not a paddy field. 10. The learned counsel for the Panchayat invited my attention to Ext.R1(c) communication given by the petitioner, dated 19/05/2010, to the Secretary, wherein it is stated that he has not started the chicken farm. Therefore, it is contended that the petitioner had knowledge about these aspects. The Panchayat has obviously taken action in the light of the report submitted by the Health Inspector produced as Ext.R1(d) which shows that the petitioner has not taken any steps to prevent pollution and for avoiding nuisance. Evidently, these are mandatory requirements. Herein, the contention of the learned ## W.P.(C). No.17398/2010 ## -:5:- counsel for the petitioner is that it was upto the Secretary on receipt of his application for licence to contact such statutory authorities including the District Medical Officer and Pollution Control Board to get the required clearance. This contention cannot be countenanced in the light of the fact that the petitioner has not taken any efforts either through the Panchayat or by himself to get the statutory clearances from such authorities. The question is whether the petitioner was entitled for deemed licence on expiry of the statutory period prescribed under Section 236 (3) of the Act. Herein, evidently, no proper building permit has been issued to him and, therefore, the construction of the building itself is found to be against the rules. In that view of the matter, the petitioner cannot bank upon the principles governing deemed licence. Evidently, Ext.P7 notice issued by the Panchayat shows that the requisite permissions from the District Medical Officer and the Pollution Control Board have also not been obtained by the petitioner. Admittedly, he has not taken any further steps in the matter. Therefore, the action taken by the Panchayat to close down the unit cannot be said to be illegal or arbitrary on that score also. 11. The learned counsel for the petitioner submitted that the petitioner is having no other means and had to borrow money for starting the unit and the Panchayat ought ## W.P.(C). No.17398/2010 ## -:6:- to have shown some indulgence in the matter. It is alleged that the third respondent's undue influence has resulted in the action taken by the Panchayat. Evidently, the Panchayat cannot be faulted for insisting compliance of statutory formalities for starting the business and for constructing the building. 12. The learned counsel for the petitioner, relying upon Ext.P12 photographs, argued that the property is not a paddy field but a dry land. Actually, the said aspect is not the main ground for the action now taken by the Secretary. The view taken by the Secretary in the light of the facts stated above cannot be said to be faulty. For all these reasons the writ petition is dismissed. This will not prevent the petitioner from moving the Panchayat with proper applications for starting the business and to get a building permit after complying with all statutory formalities which will be duly considered by the first respondent. No costs. **(T.R. Ramachandran Nair, Judge.)** ms