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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934
WP(C).No. 17180 of 2012 (V)
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PETITIONER:
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1. JAYAKUMAR.T.S, THOPPIL, SREERAGAM, KOTTAMURI P.O.,
THRIKKODITHANAM, CHANGANASSERY, KOTTAYAM-686105.
2. JACOB GEORGE
CHETTAKKAD VEEDU, KOTTAMURI P.O., THRIKKODITHANAM
CHANGANASSERY, KOTTAYAM-686105.
3. TITTY MERY JAMES,
KATTADI VEEDU, KOTTAMURI P.O., THRIKKODITHANAM
CHANGANASSERY, KOTTAYAM-686105.
BY ADVS.SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
RESPONDENTS:
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1. THE THRIKKODATHANAM GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, THRIKKODITHANM
KOTTAYAM 686105.
2. THE KERALA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY ITS SECRETARY,THIRUVANANTHAPURAM-695001.
3. THE DISTRICT MEDICAL OFFICER,KOTTAYAM DISTRICT-686001.
4. CHACKO CHACKO,AYYARUKULANGARA HOUSE, KOTTAMURI P.O.,
THRIKKODITHANAM, CHANGANASSERY, KOTTAYAM-686105.
R1 BY ADV. SRI.P.HARIDAS
R2 BY ADV. SRI. M.AJAY, SC,
KERALA STATE POLLUTION CONTROL BOARD
R3 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL
R4 BY ADVS.SRI.P.K.VIJAYAMOHANAN
SRI.ALAN PAPALI
SRI.GILBERT GEORGE CORREYA
SRI.SOJAN MICHEAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21-03-2013, ALONG WITH WPC. 1949/2013, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
VK
WP(C).No. 17180 of 2012 (V)
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APPENDIX
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PETITIONER(S) EXHIBITS
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EXHIBIT-P1. COPY OF THE COMPLAINT SUBMITTED BEFORE THE FIRST RESPONDENT
DATED 05.10.2006.
EXHIBIT-P2. COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED NIL.
EXHIBIT-P3. COPY OF THE COMPLAINT FILED BY THE PETITIONERS BEFORE THE
FIRST RESPONDENT DATED 26.11.2011.
EXHIBIT-P4. COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE FIRST
RESPONDENT DATED 26.11.2011.
EXHIBIT-P5. COPY OF THE REQUEST UNDER THE RTI ACT DATED 24.01.2012.
EXHIBIT-P6. COPY OF THE REPLY DATED 25.2.2012 ISSUED BY THE FIRST
RESPONDENT.
EXHIBIT-P7. COPY OF THE APPLICATION FOR LICENCE SUBMITTED BY THE 4TH
RESPONDENT DATED 19.01.2012.
EXHIBIT-P8. COPY OF THE STOP MEMO NO.PCB/KTM/COMP/G/63/2011 DATED
29.12.2011 ISSUED BY THE 2ND RESPONDENT.
RESPONDENTS' EXHIBITS :
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EXT.R4(A). COPY OF THE COMMUNICATION NO.266/09 DATED 9.3.2009 FROM THE
MEDICAL OFFICER, PRIMARY HEALTH CERNTRE, THRIKKODITHANAM TO THE 1ST
RESPONDENT.
EXT.R4(B). COPY OF THE CONSENT FROM 8 OF THE NEIGHBOURING RESIDENTS IN
FAVOUR OF THE 4TH RESPONDENT.
EXT.R4(C). COPY OF THE CONSENT TO OPEATE NO.PCB/KTM/ICO/1686/2012 DATED
26.06.2012 ISSUED BY THE 2ND RESPONDENT.
ET.R4(D). COPY OF THE APPLICATION DATED 11.04.2012 SUBMITTED BY THE 4TH
RESPONDENT FOR THE LICENCE WITH ITS ACKNOWLEDGEMENT BY THE 1ST
RESPONDENT GRAMA PANCHAYAT ON 27.06.2012.
EXT.R4(E). COPY OF THE CERTIFICICATE NO.103/PHC/TKDM DATED 11.05.2012
OF THE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, THRIKKODITHANAM.
/ TRUE COPY /
P.A. TO JUDGE
VK
A.M.SHAFFIQUE, J
* * * * * * * * * * * * *
W.P.C.Nos.17180 of 2012
and 1949 of 2013
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Dated this the 21st day of March 2013
J U D G M E N T
W.P.C.No.17180 of 2012 is filed by certain persons complaining of pollution caused by the 4th respondent running a chicken farm and meat stall in his property. The petitioners seeks a direction against respondents 1 to 3 namely the Panchayath, the Kerala Pollution Control Board (in short PCB) and the District Medical Officer, the authorities who refused licence or consent to conduct the chicken farm. According to the petitioners, the chicken farm and meat stall of the 4th respondent is causing large scale pollution, nuisance and possibility of health hazards.
2. It is contended that though an application is filed by the 4th respondent as Ext.P7, no permission was granted by the Panchayath for conducting the chicken farm and the PCB has also not given any such permission. W.P.C.Nos.17180 of 2012 and 1949 of 2013 2
3. Counter affidavit is filed by the 3rd respondent inter alia contending that on a visit made by the Medical Officer, it was found that the saw dust, chicken feeds excreta and feathers of chicken have spread inside and outside the poultry shed which is creating foul smell up to 50 meters radius, causing air pollution and generating fly breeding. It is also contended that during rainy season the waste generated from the farm may flow to the natural water source and contaminate it. Hence 'No Objection Certificate' was rejected by the District Medical Officer. The petitioners rely upon Ext.P2 report of the District Medical Officer in relation to the very same chicken farm.
4. The 4th respondent has filed a counter affidavit inter alia contending that he has been conducting the farm since 1991 and the petitioners started residence in the locality subsequently. According to him, the licence was being renewed from time to time and though an application was submitted for renewal of the licence for the period W.P.C.Nos.17180 of 2012 and 1949 of 2013 3 2012-2013, the Panchayath has not taken any action and therefore the 4th respondent has a deemed licence in terms of Rule 3 of the Kerala Panchayath Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (hereinafter referred to as the 'D & O Rules'). 4th respondent also produced Ext.R4(c) which is a consent given by the PCB on 26/06/2012 valid up to 31/12/2015 under the Air (Prevention & Control of Pollution) Act, 1981, the Water (Prevention & Control of Pollution) Act, 1974 and Environmental (Protection) Act, 1986. It is further contended that there are no nearby residences within 50 meters of the property of the petitioner and the chicken farm is being conducted within an area of 2 acres. He denied the contention that any pollution is caused to the nearby area and the farm as well as the meat stall is kept very neat and clean. He also referred to Ext.R4(e), a No Objection Certificate issued by the Medical Officer in-charge of a Primary Health Centre indicating that the chicken farm W.P.C.Nos.17180 of 2012 and 1949 of 2013 4 and the meat stall is being conducted in a hygienic manner.
5. W.P.C.No.1949 of 2013 is filed by the 4th respondent in W.P.C.No.17180 of 2012 challenging the report given by the 1st respondent District Medical Officer inter alia indicating that the chicken farm cannot be established as it causes pollution in the nearby locality. Ext.P8 is the said report. In Ext.P8, the District Medical Officer had come to the conclusion that within 50 meters radius of the chicken farm and slaughter house, there are more than nine residences and the nearest water source of chicken farm is about 30 meters. It is stated that during the inspection, chicken feeds excreta and feathers of chicken were found in the area and the chicken farm and slaughter area were not kept in a hygienic condition. Therefore, it is observed that the chicken farm and slaughter house is causing nuisance to the people in the neighbouring locality.
6. Counter affidavit is filed on behalf of the 1st respondent, DMO supporting the stand taken in Ext.P8. W.P.C.Nos.17180 of 2012 and 1949 of 2013 5 They also produced Ext.R1(a) Government order G.O.(Rt) No.631/2009/ID/Tvm. dated 25/09/2009 to indicate that certain instructions had been given to the Panchayat to consider the issue relating to a poultry farm in Thrikkodithanam Grama Panchayath.
7. The 2nd respondent, Panchayath has filed a counter affidavit reiterating the contentions urged by the DMO. According to them, necessary steps had been taken to avoid pollution in the said area and they did not grant licence to the petitioner on account of the report of the DMO.
8. Heard the learned counsel appearing for the parties and the learned Government Pleader.
9. At the outset, it is relevant to note that the petitioner in W.P.C.No.1949 of 2013 is liable to obtain licence from the Panchayath in terms of Section 232 of the Kerala Panchayath Raj Act read with the D & O Rules and therefore it is obligatory on the part of the petitioner to W.P.C.Nos.17180 of 2012 and 1949 of 2013 6 obtain a licence from the local authority.
10. Parties are hereinafter referred to as shown in W.P.C.No.1949 of 2013, unless otherwise stated.
11. It is not in dispute that the petitioner had a licence during the period 2011-2012. He had applied for a licence as per Ext.P3 dated 11/04/2013 for the period 2012-2013, but Ext.P3 has not been considered or rejected by the Panchayath. Going by Section 236(3) of the Panchayath Raj Act and Rule 12(3) of the D& O Rules, it cannot be disputed that the petitioner has a deemed licence. Then the next question is about the impact of the report of the DMO. On a perusal of the Rules relating to the conducting of meat stall in addition to compliance of the licence conditions under the D & O Rules for conducting a meat stall, the petitioner has to comply with the provisions of the Kerala Panchayath Raj (Slaughter House And Meat Stalls) Rules, 1996 in respect of conducting a meat stall for vending of bird meat. Rule 38 applies which reads as under:
W.P.C.Nos.17180 of 2012 and 1949 of 2013 7
38. Location of Meat Stalls.- A stall to vend meat of bird or animal in a Panchayath area shall be located in a place approved by the Village Panchayath for that purpose. Meat stall shall be one covered with glass, inaccessible to insects like houseflies and also having abundant air circulation and meat shall be kept in a manner not visible to the lay public and the Licensee of the stall shall exhibit a board in front of the stall, visible to others, specifying his name, number of the stall and price chart."
12. Rule 39 imposes an obligation on the part of the examining authority or President or Secretary or any officer authorised by the Village Panchayath or Government to inspect the meat which is kept for sale. Rule 39 reads as under:
39. Power to inspect meat stalls.-
The Examining Authority or President or Secretary or any officer authorised by the Village Panchayath or Government shall have W.P.C.Nos.17180 of 2012 and 1949 of 2013 8 power to inspect the meat kept for sale and to seize and destroy the meat which is seen as disease caused or unfit for consumption. The amount required for such destruction shall be levied as mentioned in Rule 11.
13. Therefore, before conducting a meat stall, there is an obligation on the part of the person conducting the stall to obtain a licence from the Panchayath. Apparently, the petitioner has not obtained the said licence even now. There is nothing either in the aforesaid Rules or in the D & O Rules to indicate that the DMO has to give a report regarding the functioning of the meat stall or the farm house as the case may be. Under Rule 39 of the Kerala Panchayath Raj (Slaughter House And Meat Stalls) Rules, 1996, it is open for the examining authority to inspect the meat kept for sale and to seize and destroy the meat if it is having any disease or is unfit for consumption. This Rule does not give any power to such examining authority which includes Officers of Health Services to give a report as W.P.C.Nos.17180 of 2012 and 1949 of 2013 9 contemplated in the impugned report. That being the situation, probably it is open for the Panchayath to call for the report from the DMO to find out whether there is any nuisance or pollution.
14. The fact remains that PCB has already permitted the petitioner to establish a chicken farm and also to have a meat stall in the said farm. It is therefore the obligation of the PCB to verify and ensure that the farm is being conducted in the manner prescribed as per the consent to establish given by the PCB.
15. As far as the Panchayath is concerned, the Panchayath has an obligation to grant licence if an application is filed in time. As matters stand today, the petitioner has a deemed licence for running the farm. He does not have a licence to conduct the meat stall. While conducting the farm, the petitioner has to comply with the procedure prescribed by the PCB and to ensure that no nuisance or pollution is caused to the nearby area or nearby W.P.C.Nos.17180 of 2012 and 1949 of 2013 10 residences. The petitioner has a case that the very factual basis on which the DMO had given Ext.P8 report is incorrect especially in view of the fact that there are no residences within a distance of 100 meters of his farm. That apart, it seems that DMO proceeded on the basis that a specified distance is required from the nearby residents since the petitioner is having a slaughter house. In fact, there is no such restriction under the Kerala Panchayath Raj (Slaughter House And Meat Stalls) Rules, 1996. Hence it is not open for the authority to prevent the farm from functioning. The Rule only requires for a licence to conduct a meat stall under Rule 38 and no specific distance factor is mentioned in the said Rules.
16. That being the situation, I am of the view that the opinion of the DMO has no relevance on the point in issue. In regard to pollution, definitely it is for the PCB to ensure that the conditions under which the consent to establish has been granted, is complied with.
W.P.C.Nos.17180 of 2012 and 1949 of 2013 11
17. As matters stand now, the petitioner will have to seek for renewal of the licence to continue the farm activity as also to apply for a fresh licence to vend meat in the said area. If such an application is filed by the petitioner, it is for the Panchayath to take appropriate action in the matter after taking into consideration the consent given by the PCB as well.
Under these circumstances, these writ petitions are disposed of with the following directions:
i) In W.P.C.No.17180 of 2012, it is made clear that the 4th respondent will have to apply for renewal of licence and can continue the chicken farm operation only after getting renewal of licence in accordance with the Rules. The 4th respondent can conduct the operation of the meat stall after getting necessary licence from the authorities in accordance with the Rules prescribed under the Kerala Panchayath Raj (Slaughter House And Meat Stalls) Rules, 1996.
W.P.C.Nos.17180 of 2012 and 1949 of 2013 12
ii) W.P.C.No.1949 of 2013 is allowed setting aside Ext.P8 and it shall be open for the petitioner to conduct the farm as per the consent issued by the PCB and the petitioner shall apply afresh for conducting the farm and meat stall for the period 2013-2014 and the Panchayath shall consider and pass appropriate orders on the application to be given by the petitioner after taking into consideration the factual circumstances involved in the matter in accordance with law and as per the observations made in the above judgment.
(sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.P.C.Nos.17180 of 2012 and 1949 of 2013 13 W.P.C.Nos.17180 of 2012 and 1949 of 2013 14 W.P.C.Nos.17180 of 2012 and 1949 of 2013 15