IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 WP(C).No. 17280 of 2006(F) --------------------------------------- PETITIONER(S): ----------------------- SIJO MATHEW, S/O.MATHEW, AGED 32 YEARS, KUDAKASSERY HOUSE, NELLIKKAMPOYIL, P.O.ULIKKAL, PIN-670 705, KANNUR DISTRICT. BY ADV. MR.R.SURENDRAN RESPONDENT(S): ------------------------- 1. THE SPECIAL GRADE SECRETARY, ULICKAL GRAMA PANCHAYATH, P.O.ULICKAL, KANNUR DISTRICT. 2. ULICKAL GRAMA PANCHAYATH, P.O.ULICKAL, REP. BY THE SPECIAL GRADE SECRETARY, ULICKAL GRAMA PANCHAYATH, P.O.ULICKAL, KANNUR DISTRICT. 3. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. DEPUTY DIRECTOR OF PANCHAYATH, KANNUR,KANNUR DISTRICT. 5. THE HEALTH INSPECTOR, PUBLIC HEALTH CENTRE, ULIKKAL, KANNUR DISTRICT. *ADDL. R6 TO R9 ARE IMPLEADED. 6. MATHEW KANNUTHOTTIYIL, S/O. MATHEW KANNUTHOTTIYIL HOUSE, MANDAPAPARAMBU P.O., ULIKKAL, PIN. 670 705, KANNUR DISTRICT. W.P.(C) NO.17280/2006 7. PADINHAREMURIYIL JOHN, RETIRED TEACHER, PADINHAREMURIYIL HOUSE, MANDAPAPARAMBA, P.O. ULIKKAL, PIN 670 705, KANNUR DISTRICT. 8. GEORGE KANNUTHOTTIYIL , S/O. MATHEW, KANUTHOTTIYIL HOUSE, MANDAPAPARAMBA, P.O. ULIKKAL PIN 670 705, KANNUR DISTRICT. 9. RASIYA, NAJIRA MANZIL, MANDAPAPARAMBA P.O.ULIKKAL PIN 670 705, KANNUR DISTRICT. *ADDL. RESPONDENTS IMPLEADED AS PER ORDER DT. 20.10.2006 IN IA. 14820/06. ADDL. 10 IS IMPLEADED 10. THE SENIOR ENVIRONMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, KANNUR. ADDL. R10 IS IMPLEADED AS PER ORDER DT. 19.9.07 IN WPC. BY ADVS. MR.CIBI THOMAS FOR R1 & 2 GOVERNMENT PLEADER MR.T.K.VIPIN DAS FOR R3- R5 BY ADVS.MR.BABU CHERUKARA FOR R6 TO 9 MR.M.K.CHANDRA MOHANDAS FOR ADDL.R.10 MR.THULASI BAI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.17280/2006 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE APPLICATION FOR LICENCE DT. 4.3.06 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P2:- COPY OF THE CERTIFICATE DT. 1.3.06 ISSUED BY THE VETERINARY SURGEON, MOBILE FARM AID UNIT, ULICKAL. P3:- COPY OF THE NOTICE/ORDER DT. 21.3.06 ISSUED BY THE IST RESPONDENT. P4:- COPY OF THE REPLY DT. 23.3.06 GIVEN BY THE PETITIONER TO THE IST RESPONDENT. P5:- COPY OF THE NOTICE/ORDER DT. 3.4.06 ISSUED BY THE IST RESPONDENT. P6:- COPY OF THE LETTER DT. 19.4.06 ISSUED BY THE IST RESPONDENT TO THE 5TH RESPONDENT. P7:- COPY OF THE ORDER/NOTICE DT. 20.4.06 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. P8:- COPY OF THE REPLY DT. 24.4.06 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. P9:- COPY OF THE APPLICATION FOR COPY OF DECISION TOGETHER ITH THE POSTAL RECEIPT. P10:- COPY OF THE DECISION OF THE PANCHAYAT BOARD MEETING DT. 12.2.06. P11:- COPY OF THE NOTICE DT. NIL ISSUED BY THE IST RESPONDENT TO THE PETITIONER. P12:- COPY OF THE CERTIFICATE ISSUED BY DEPARTMENT OF ANIMAL HUSBANDRY TO THE PETITIONER. ANNEXURE R4(a):- COMPLAINT PETITION FROM ONE MATHEW KUNNUTHOTTIYIL AND SOME NEIGHBOURHOOD RESIDENTS. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE NOTICE PUBLISHED BY THE PANCHAYAT DT. 17.5.08. R1(b):- COPY OF THE RESOLUTION NO.169/06 DT. 27.6.06. R1(c):- COPY OF THE NOTICE DT. 27.6.06. R7(a):- COPY OF THE PETITION DT. 14.2.06 GIVEN BY THE RESPONDENTS 6 TO 9 AND OTHERS TO THE PRESIDENT OF THE 2ND RESPONDENT. R7(b):- COPY OF THE PETITION DT. 14.2.2006 GIVEN BY THE 6TH RESPONDENT TO THE MEDICAL OFFICER, PRIMARY HEALTH CENTRE, PURAVAYAL. R7(c):- COPY OF THE PETITION GIVEN BY THE 6TH AND 7TH RESPONDENTS TO THE DISTRICT COLLECTOR, KANNUR DT. 25.7.06. W.P.(C) NO.17280/2006 R7(d):- COPY OF THE ROUGH SKETCH PREPARED BY THE 7TH RESPONDENT. R7(e):- COPY OF THE PETITION DT. 14.7.06 BY THE RESPONDENT 6 TO 9 BEFORE THE GRAMASABHA OF XII THE WARD OF THE 2ND RESPONDENT. R7(f):- COPY OF THE REPORT SUBMITTED BY THE HEALTH INSPECTOR P.H.C. PARAVAYAL DT. 1.3.06. R7(g):- COPY OF THE DECISION OF ULICKAL GRAMA PANCHAYAT WARD NO.XII DT. 14.3.08. TRUE COPY P.S. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.17280 OF 2006 ---------------------------- DATED THIS THE 3RD DAY OF MARCH, 2009 JUDGMENT Petitioner is residing in the property having an extent of 5 acres and 50 cents. Petitioner submitted that he is running a pig farm situated in the property, that there is a bio-gas plant installed near the pig farm, that the waste from the farm is an input and that he is getting sufficient quantity of bio-gas for cooking purposes. There are 11 cages in which the pigs are kept in the farm having sheet roof and side mesh which are made for protection from sun, rain, intruding animals and birds. Petitioner also installed a sealed waste disposal pit for disposal of other waste. According to the petitioner, there is enough source of water for cleaning the cages and premises. Therefore, the running of the pig farm is not causing any nuisance to the people residing in the locality. 2. Petitioner applied for grant of licence under the Kerala Panchayat Raj (Licensing of pigs and dogs) Rules, 1998. Ext.P1 is -2- W.P.(C).No.17280/2006 the application for licence. Ext.P2 is the certificate issued by the Veterinary Surgeon. Ext.P3 is a notice issued by the Panchayat directing the petitioner to stop the functioning of the farm. The same was issued based on the complaints filed by some persons in the locality, who are in inimical terms with the petitioner, according to him. The petitioner submitted that in respect of Ext.P4 reply, the Panchayat again issued notice dated 3-4-2006 and insisted that the consent of people residing within 100 metres of the farm is required to be obtained. Ext.P5 is the communication received by the petitioner. In Ext.P5 it is stated that the petitioner shall obtain instructions of the Veterinary Doctor and Health Inspector and also to get consent from the people residing within the radius of 100 metres. Again the Panchayat issued Ext.P7 notice stating that the conditions stipulated by the Panchayat is not followed. Ext.P11 is another communication received from the Pachayat, which also stipulates more or less the same conditions stipulated in Ext.P5. According to the petitioner, the conditions contained in Exts.P4 and P5 -3- W.P.(C).No.17280/2006 cannot be imposed on him, as they are not reasonable restrictions for the running of the pig farm. According to the petitioner, he had satisfied all the conditions stated in Ext.P11, except the condition regarding obtaining of consent and that the Panchayat cannot legally prescribe conditions as stated in Exts.P10 and P11 over and above the conditions stipulated in the rules. 3. This writ petition is filed seeking to quash Exts.P7, P11 and the conditions contained in Ext.P10 and for a direction to the lst respondent to issue a licence for running the existing farm in the property. In Ext.P10 decision of the Board Meeting, there is no condition that the licensee shall obtain consent of neighbours residing within the radius of 100 metres. In Ext.P10 the conditions stipulated are the Health Inspector's Certificate, the applicant shall maintain the cage need and tidy, install a pit for disposal of waste and to fix time for catering the pigs. In Ext.R1(b) a further condition was stipulated stating that the consent of the neighbours is necessary. 4. By interim order dated 16/1/2008 this Court directed -4- W.P.(C).No.17280/2006 the petitioner to cure all the defects and to maintain the pig farm pollution free. This Court issued further direction to the Kerala State Pollution Control Board to conduct an inspection with notice to the petitioner and additional respondents 6 to 9 and to file a report to this Court. Pursuant to the interim order passed by this Court, the Pollution Control Board reported that collection shed for food waste has been built, that bio-gas plant is not maintained properly and the slurry was not property treated. This was noted on the date of inspection, i.e. 21/4/2008. Again the unit was inspected on 29/5/2008 and found that the unit has not complied with the directions given by the Board and that foul smell spread in the premises and the pig farm is not maintained hygienically. 5. In the counter affidavit filed by the Panchayat it is contended that few families are residing within 100 meters of the farm, that the petitioner is running the pig farm in violation of the conditions of licence and that the petitioner is not entitled to run the pig farm without a valid licence. Learned counsel for -5- W.P.(C).No.17280/2006 respondents 6 to 9 submitted that the running of the farm is causing nuisance to the public. According to the counsel, the 6th respondent is residing 80 meters away, 7th respondent is residing 87 meters away, 8th respondent 94.5 meters away and the 9th respondent 185.5 meters away from the pig farm. From the submission made by the learned counsel for respondents 6 to 9 it is very clear that these persons are residing at a good distance from the pig farm. If the petitioner complies with the directions issued by the Panchayat in the matter of maintenance of the pig farm in healthy conditions, there may not arise any problems to any persons, who are the residents in the locality. I have also noted that the pig farm is situated in the property having an extent of 5 acres and 50 cents. Respondents 6 to 9 are residing at a distance of more than 80 meters from the property. So the complaint regarding the nuisance caused to them by running of the pig farm may not be so serious as alleged in their counter affidavit. Inspection of the pig farm by the Veterinary Doctor and Health Inspector and to carry out their instructions are must and -6- W.P.(C).No.17280/2006 the petitioner shall follow such instructions. The petitioner shall also maintain the pig farm neat and tidy and shall comply with the other conditions issued by the Panchayat on health grounds. If the petitioner abide by the conditions issued by the Panchayat from time to time, the Secretary of the Panchayat shall conduct an inspection of the pig farm, after issuing notice to the petitioner and if he satisfies that the pig farm is maintained properly, he shall issue licence without insisting the distance condition under the rules. In order to ascertain whether the pig farm is maintained properly, periodical inspection shall be conducted by the Secretary of the Panchayat. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.