T. Basheer v. Nenmeni Grama Panchayat and Secretary, Nenmeni Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938** ## **WP(C).No. 21908 of 2015 (K)** **----------------------------** ## **PETITIONER :** **----------------------** **T. BASHEER, AGED 43, S/O MOHAMMEDKUTTY, RESIDING AT THAYATTUCHIRA, MANDOKKARA, POOMALA P.O, SULATHAN BATHERY TALUK, WAYANAD DISTRICT-673 592** ## **BY ADV. SRI.MATHEW KURIAKOSE** **RESPONDENT(S):** - **----------------------------** **1. NENMENI GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KOLIYADI, NENMENI, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN-673 592** **2. THE SECRETARY, NENMENI GRAMA PANCHAYAT, KOLIYADI, NENMENI, SULTHAN BATHERY TALUK, WAYANAD DISTRICT, PIN-673 592** ## **R1 & R2 BY ADVS. SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-12-2016,ALONG WITH WPC.NO.9413/2015 AND WPC.NO.314/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 21908 of 2015 (K) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS ----------------------------------------** **EXT.P1: TRUE COPY OF THE APPLICATION DT. 31/12/14 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT FOR LICENSE TO CONDUCT THE SLAUGHTER HOUSE WITH ACKNOWLEDGMENT RECEIPT EXT.P2: TRUE COPY OF THE RELEVANT PAGES OF THE CONSENT DT. 14/8/14 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD IN FAVOUR OF THE PETITIONER EXT.P3: TRUE COPY OF THE NO OBJECTION CERTIFICATE DT. 10/12/14 ISSUED BY THE ASSISTANT DIVISIONAL OFFICER, KERALA FIRE AND RESCUE SERVICES, KALPETTA IN FAVOUR OF THE PETITIONER EXT.P4: TRUE COPY OF THE FITNESS CERTIFICATE DT. 10/3/15 ISSUED BY THE HEALTH INSPECTOR AND MEDICAL OFFICER OF THE PRIMARY HEALTH CENTRE, CHULLIYODE IN FAVOUR OF THE PETITIONER EXT.P5: TRUE COPY OF THE CERTIFICATE DT. 1/4/15 ISSUED BY THE VILLAGE OFFICER, NENMENI IN FAVOUR OF THE PETITIONER EXT.P6: TRUE COPY OF THE CERTIFICATE DT. 10/7/14 ISSUED BY THE AGRICULTURAL OFFICER, NENMENI IN FAVOUR OF THE PETITIONER EXT.P7: TRUE COPY OF THE CERTIFICATE DT. 6/4/15 ISSUED BY THE AGRIUCLTURAL OFFICER, NENMENI IN FAVOUR OF THE PETITIONER EXT.P8: TRUE COPY OF THE ENQUIRY REPORT DT. 24/12/14 SUBMITTED TO THE 1ST RESPONDENT PANCHAYAT PURSUANT TO THE APPLICATION OF THE PETITIONER EXT.P9: TRUE COPY FO THE NOTIFICATION DT. 3/2/15 PUBLISHED BY THE 1ST RESPONDENT MALAYALA MANORAMA DAILY DT. 6/2/15 EXT.P10: TRUE COPY OF THE ORDER DT. 4/3/15 ISSUED BY THE 2ND RESPONDENT CANCELLING THE BUILDING NUMBER ALLOTTED TO THE SLAUGHTER HOUSE OF THE PETITIONER EXT.P11: TRUE COPY OF THE INTERIM ORDER DT. 25/3/15 IN WPC NO.9413/15 OF THIS HONOURABLE COURT EXT.P12: TRUE COPY OF THE APPLICATION DATED 05/04/2016 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT ALONG WITH ITS ACKNOWLEDGMENT RECEIPT DATED 05/04/2016. EXT.P13: TRUE COPY OF THE RESOLUTION NO.41/05/2016(1) OF THE MEETING OF THE COMMITTEE OF THE 1ST RESPONDENT PANCHAYAT HELD ON 26/05/2016** **2/-** **-2-** ## **WP(C).NO.21908/2015** **EXT.P14: TRUE COPY OF THE LETTER DATED 27/05/2016 ISSUED BY THE 1ST RESPONDENT TO ITS COUNSEL SEEKING LEGAL ADVICE REGARDING THE ISSUE OF LICENCE. EXT.P15: TRUE COPY OF THE RECEIPT DATED 18/04/2016 ISSUED BY THE 2ND RESPONDENT REGARDING PAYMENT OF PROPERTY TAX IN RESPECT OF SLAUGHTER HOUSE BEARING DOOR NO.NO 3/336-A** **RESPONDENT(S)' EXHIBITS: NIL -------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **K. VINOD CHANDRAN, J.** ## **===================== W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L** ## **============================= Dated this the 16[th] day of December, 2016** ## **J U D G M E N T** The identical petitioner has filed the above three writ petitions with different prayers. W.P.(C)No.9413/2015 is filed against Ext.P1 produced therein, which revoked the numbering of the building, in which the petitioner had intended to carry on a slaughtering house. The reason for such revocation was the land being a paddy land as defined under the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (for brevity ' the Paddy Land Act'). 2. W.P.(C) No.21908 of 2015 was filed, when the application for slaughtering house made under the Kerala Panchayat Raj (Slaughter Houses and Meat Stalls) Rules, 1996 (for brevity 'the Slaughter Houses Rules); was not being considered. W.P.(C) No.314 of 2016 was filed again for reason 2 W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L of the non-consideration of an application for butchers licence under Rule 6 of the Slaughter Houses Rules. W.P.(C) No.21908 of 2015 is referred to with the documents produced therein. 3. The petitioner with the intention of carrying on a slaughter house in 1.17 Ares of property situated in ReSy.No.45/1A, 46 and 49 of 1A of Nenmeni Village, filed Ext.P1 application under the Slaughter Houses Rules. The petitioner obtained Ext.P2 consent to operate from the Kerala State Pollution Control Board (PCB), Ext.P3 NOC from the Fire and Rescue Services as also Ext.P4 fitness certificate from the Health Officer. It was in the meanwhile that Ext.P10 order dated 04.03.2015 was issued revoking the numbering for reason of the petitioners land being a paddy land as defined under the Paddy Land Act. 4. Ext.P10 was challenged in W.P.(C) No.9413 of 2015, in which Ext.P11 interim order was issued. Hence the revocation of the numbering stood stayed and the petitioner's 3 W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L application for slaughter house not having been considered, the petitioner was entitled to the deeming provision under Section 236 of the Kerala Panchayath Raj Act, 1994 (for brevity ' the Panchayath Raj Act'). 5. This Court on 06.08.2015, by way of an interim order in W.P.(C) No.21908 of 2015 found that the petitioner is entitled to the deeming provision and also declared the petitioner's right to make an application for licence under the Food Safety and Standards Act, 2006. On the strength of the interim order the petitioner obtained such licence, which is produced at Ext.P4. The petitioner then made Ext.P12 renewal application for the year 2016-17, which was considered by the Council for the Panchayath and decided in Ext.P14 to issue the licence pending consideration of the writ petitions. The Panchayath is also said to have numbered the building and accepted property tax as indicated at Ext.P15; thus setting at naught the earlier order based on the Paddy Land Act. 4 W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L 6. In W.P.(C) No.314 of 2016, the petitioner produced Ext.P5 application for butchers licence, which had not been considered, within 30 days. Again the petitioner seeks benefit of the deeming provision. Ext.P8 produced in W.P.(C) No.314 of 2016 is the renewal application filed in the year 2016-17, which also has not been considered. 7. The respondent Panchayath filed a counter affidavit in W.P(C) No.9413 of 2015 and contended that the objections raised in the impugned order stood against the consideration of a licence application and hence the subsequent applications were not maintainable and hence the petitioner also could not avail of the benefit of the deeming provision. It is also submitted that the order dated 04.03.2015 revoking the licence was in pursuance of the specific conditions prescribed in the order of the Chief Town Planner dated 30.10.2014 produced as Ext.P2 in W.P.(C) No.9413 of 2015. In considering the grant of licence by condition No.(3) 5 W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L of Ext.P2, the Chief Town Planner had specifically cautioned the Panchayath on verifying whether the land is included in the Paddy Land Act in which event, no licence can be granted. 8. In the circumstances of the contentions raised by the Panchayath, the non consideration of the applications for licence were only on account of the land of the petitioner being one defined as paddy land under the Paddy Land Act. In this context, the certificates of the Village Officer and the Agricultural Officer produced at Exts.P5, P6 and P7 in W.P.(C) No.21908 of 2015 assumes significance. Ext.P5 is a certificate issued by the Village Officer in which it is found that there are trees having age of about 30 years in the property and that there is also existing a building in the property, wherein the K.S.E.B has provided power connection. Ext.P6 is a certificate of the Agricultural Officer Nenmeni finding the existence of coconut trees of age 35 years and arecanut palms of 20 years age as also jack fruit and mango trees in the property. Ext.P7 6 W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L is another certificate issued by the Village Officer, in which it has been specifically stated that though the property is included in the Data bank, the same is described as a paddy land not possible for cultivation. It is also stated that the paddy land was converted long before the coming into force of the Paddy Land Act. 9. In such circumstance, it is for the petitioner to approach the appropriate authority under Clause (6) of the Kerala Land Utilisation Order, 1967 for conversion of user of the land. The petitioner shall also produce a copy of the writ petition before the Agricultural Officer along with the copy of the Field Measurement Book and Survey and Sub-division numbers with respect to the property obtained from the concerned Village Officer. The Agricultural Officer shall then seek a report of the lie and nature of the property as it remained on the date of coming into force of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, from the 7 W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L Director, Kerala State Remote Sensing and Environment Center (KSRSEC), Vikas Bhavan, C-Block, Thiruvananthapuram, Kerala 695 033. On the direction of the Agricultural Officer so to do, the petitioner shall remit the required fees in the name of the petitioner, C/o. the concerned Agricultural Officer (showing the full address) before the KSRSEC for obtaining such report and produce such receipt before the Agricultural Officer. The Agricultural Officer shall then obtain the report and map from the KSRSEC, who shall issue the same on the strength of the receipt produced by the Agricultural Officer. The Agricultural Officer, on receipt of the report, shall conduct physical inspection of the property and submit a report before the Revenue Divisional Officer (R.D.O) as to the lie and nature of the property, as it exists at present, along with the report from the KSRSEC. 10. The report of the Agricultural Officer, along with the satellite map and report forwarded by the K.S.R.S.E.C shall 8 W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L be forwarded to the R.D.O and the R.D.O shall then issue notice to the petitioner and consider the application, within a period of two months from the date of receipt of the report of the Agricultural Officer. The Revenue Divisional Officer/District Collector would consider such an application, in accordance with the declaration in **Puthan Purakkal Joseph** v. **Sub Collector [2015 (3) KLT 182].** W.P.(C) No.9413 of 2015 would stand disposed of on the basis of the directions herein above. 11. With respect to W.P.(C) No's 21908 of 2015 and 314 of 2016, the petitioner is entitled to the deeming provision for the year 2016-17, since the Panchayath has not responded to the applications filed. The defense raised to sustain the nonconsideration for reason of the objection under the Paddy Land Act cannot be countenanced since the revocation order was stayed by this Court. The petitioner hence would be entitled to continue the activity for the present year as held in **Sudhakaran** v. **Pallichal Grama Panchayat [2016(2) KLT** 9 W.P.(C) Nos.21908 - K, 9413 of 2015 - B and 314 of 2016 - L **175]** . W.P.(C) Nos. 21908 of 2015 and 314 of 2016 are allowed. The Panchayath shall issue the licence, within a period of one month from the date of receipt of a certified copy of this judgment. The further consideration of renewal of license shall depend upon the consideration of the application filed under the KLU Order. The writ petition would stand disposed of. Parties to suffer their costs. **Sd/K. VINOD CHANDRAN, JUDGE** SB/17/12/2016 // true copy // P.A to Judge