IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 OP(C).No. 2220 of 2011(O) ------------------------- CMA.48/2010 of PRL.SUB COURT.,THALASSERY OS.137/2010 of MUNSIF COURT, KUTHUPARAMBA .................... PETITIONER -------------------- N.SURESH BABU, S/O.GOVINDAN, KULATHINTAVIDE HOUSE, KUTHUPARAMBA AMSOM, THRIKKANNAPURAM DESOM, POOKKODE P.O., THALASSERY TALUK. BY ADV. SMT.C.G.BINDU SMT.C.G.AJITHA RESPONDENT(S): ------------------------ 1. POLAPPADY SAJITHA, D/O.SANTHA, SAJITHA NIVAS, THRIKKANNAPURAM, P.O.POOKODE, THALASSERY. 2. KUTHUPARAMBA MUNICIPALITY REPRESENTED BY ITS SECRETARY. 3. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KANNUR. GOVERNMENT PLEADER SRI.T.K.SAJEEV THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: dmb OP(C).No. 2220 of 2011 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF THE PLAINT IN O.S.NO.137/2010 SUBMITTED BEFORE THE MUNSIFF COURT, KUTHUPARAMBA BY THE 1ST RESPONDENT EXT.P2:- COPY OF THE WRITTEN STATEMENT IN O.S.NO.137/2010 SUBMITTED BEFORE THE MUNSIFF COURT, KUTHUPARAMBA BY THE PETITIONER EXT.P3:- COPY OF THE INTERIM INJUNCTION APPLICATION IN I.A.NO.1151/2010 IN O.S.NO.137/2010 SUBMITTED BEFORE THE MUNSIFF COURT, KUTHUPARAMBA BY THE 1ST RESPONDENT EXT.P4:- COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO I.A.NO.1151/2010 IN O.S.NO.137/2010 EXT.P5:- COPY OF THE OBJECTION SUBMITTED BY THE 2ND RESPONDENT MUNICIPALITY TO I.A.NO.1765/2010 IN O.S.NO.137/2010 EXT.P6:- COPY OF THE EXPARTE COMMISSION REPORT IN O.S.NO.137/2010 EXT.P7:- COPY OF THE LETTER DTD 19.6.2010 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER WHICH IS EXT.B1 SUBMITTED IN O.S.NO.137/2010 BY THE PETITIONER EXT.P8:- COPY OF THE NOTICE DTD 21.7.2010 ISSUED BY SENIOR VETERINARY SURGEON, VETERINARY HOSPITAL, KUTHUPARAMBA IN FAVOUR OF THE PETITIONER EXT.P9:- COPY OF THE LETTER DTD 6.3.2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXT.P9(a):- COPY OF THE NOTICE DTD 26.3.2007 ISSUED BY THE 2ND RESPONDENT EXT.P9(b):- COPY OF THE EXPENDITURE OF PEOPLE PLANNING PROGRAMME OF THE 2ND RESPONDENT FOR THE YEAR 1998-99 EXT.P9(c):- COPY OF THE EXPENDITURE OF PEOPLE PLANNING PROGRAMME OF THE 2ND RESPONDENT FOR THE YEAR 1999-2000 EXT.P10:- COPY OF THE CERTIFICATE DTD 7.2.1998 ISSUED BY THE DEPARTMENT OF ANIMAL HUSBANDRY IN FAVOUR OF THE PETITIONER OP(C).No. 2220 of 2011 EXT.P11:- COPY OF THE LETTER DTD 27.7.2000 ISSUED BY THE SENIOR VETERINARY SURGEON TO THE ASSISTANT ENGINEER, KSEB IN THE MATTER OF PETITIONER'S POULTRY FARM EXT.P11(a):- TYPED COPY OF EXT.P11 EXT.P12:- COPY OF THE PROCEEDINGS DTD 28.8.2000 OF THE KSEB IN THE MATTER OF ELECTRIC CONNECTION TO THE PETITIONER'S POULTRY FARM EXT.P13:- COPY OF THE NOTICE DTD 28.11.2006 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER IN THE MATTER OF GRANTING LICENCE TO THE PETITIONER'S FARM EXT.P13(a):- COPY OF THE CONSENT LETTER DTD 22.12.2006 ISSUED BY THE OTHER LEGAL HEIRS OF KELOTH GOVINDAN TO THE 2ND RESPONDENT MUNICIPALITY EXT.P13(b):- COPY OF THE CONSENT LETTER DTD 22.12.2006 ISSUED BY THE NEIGHBOURS OF THE PETITIONER TO THE 2ND RESPONDENT MUNICIPALITY EXT.P14:- COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT'S SON TO THE 2ND RESPONDENT EXT.P15:- COPY OF THE NOTICE DTD 21.3.2009 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXT.P16:- COPY OF THE NOTICE DTD 15.6.2009 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXT.P17:- COPY OF THE ORDER DTD 12.8.2010 IN I.A.NO.1151/2010 AND I.A.NO.1765/2010 IN O.S.NO.137/10 OF THE MUNSIFF COURT, KUTHUPARAMBA EXT.P18:- COPY OF THE JUDGMENT DTD 7.1.2011 IN CMA 48/2010 OF THE SUB COURT, TALASSERY RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A TO JUDGE dmb THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ O.P.(C). No.2220 of 2011 ~~~~~~~~~~~~~~~~~ Dated this the 13th day of July 2011 J U D G M E N T Petitioner is the 3rd defendant in O.S.No.137 of 2010 of the court of learned Munsiff, Kuthuparamba. That is a suit filed by the first respondent for prohibitory injunction against petitioner running a poultry farm in plaint B schedule on the grounds that it is a nuisance to the first respondent and that petitioner is running the poultry farm since 2006 onwards without licence from the local authority. First respondent filed I.A.No.1151 of 2010 for an order of preliminary injunction and I.A.No.1765 of 2010 for an order of mandatory injunction to direct respondents 2 and 3, the municipality and the State Government to close down the poultry farm. Petitioner preferred counter in both the applications and produced document in support of his contention (marked as Ext.P7 in this proceeding). Learned O.P.(C). No.2220 of 2011 -: 2 :- Munsiff found from the report of the Advocate Commissioner that there is a prima facie case in favour of the first respondent regarding allegation of nuisance. Learned Munsiff also found that in view of Sec.469 of the Municipalities Act (for short, “the Act”), petitioner was bound to obtain a licence to run the poultry farm. On the above grounds, I.A.No.1151 of 2010 was allowed but, I.A.No.1765 of 2010 was dismissed. Petitioner challenged the order on I.A.No.1151 of 2010 in appeal. Learned Sub Judge, Thalassery dismissed C.M.A.No.48 of 2010 concurring with the order on I.A.No.1151 of 2010. The said order and judgment are under challenge in this original petition. 2. Learned counsel for petitioner has contended that the allegation of nuisance made by the first respondent is prima facie untrue for various reasons. It is pointed out that according to the first respondent, petitioner started the poultry farm in the year 2006. But the various documents O.P.(C). No.2220 of 2011 -: 3 :- produced by petitioner along with the original petition would show that the poultry farm was started in the year 2000 and that except the first respondent all the other neighbours had given consent to the petitioner for starting the poultry farm. It is also contended that even if the case of first respondent that poultry farm was started in the year 2006 is accepted, the court below failed to note that the suit was filed only in the year 2010 which indicates that it was not on account of any nuisance but due to the grudge first respondent nursed against petitioner that first respondent filed the suit in the year 2010. It is contended that between plaint A schedule belong to the first respondent and plaint B schedule where petitioner is running the poultry farm there is a lane being used by the local people, but none except the first respondent complained about the alleged nuisance. So far as want of licence is concerned, learned counsel would contend that since petitioner is only running a poultry farm and, there is no slaughtering of the chicks in O.P.(C). No.2220 of 2011 -: 4 :- plaint B schedule, no licence is required. It is pointed out that petitioner is running a poultry farm as per Peoples Planning Programme launched by the local authority in the year 2000 with the financial assistance of the local authority (2nd respondent). None had instructed petitioner to obtain a licence. It is also submitted by learned counsel that except Ext.P7, other documents produced along with this original petition could not be produced in the court below and in the circumstances, petitioner may be given opportunity to re- agitate I.A.No.1151 of 2010 based on the documents now produced along with this original petition. 3. I must bear in mind the scope of interference under Article 227 of the Constitution as laid down by the various decisions of the Apex Court. It is not as if this Court is required to interfere on concurrent findings of fact under Article 227. The said provision confers power of superintendence on the High Court to ensure that the subordinate civil courts acted within their bounds. I should O.P.(C). No.2220 of 2011 -: 5 :- approach the contentions raised in the light of the above principles. 4. So far as allegation of nuisance is concerned, the courts below have entered a finding that prima facie the case of first respondent is correct. Now, the question is whether in holding so, courts below have travelled beyond their bounds. Reference can be made to Ext.P6, report of the Advocate Commissioner who initially inspected plaint A and B schedules on 18.5.2010 and later, on 26.5.2010. In the said report the Advocate Commissioner has stated that plaint B schedule where petitioner is running the poultry farm is just 33 meters away from the house of the first respondent in plaint A schedule. The Commissioner found petitioner running poultry farm in plaint B schedule. At the time of his first inspection there were around 200 chickens and a heap of its dung behind the shed in plaint B schedule. The Commissioner has also stated that on account of the unbearable smell he had to plug his nostrils with kerchief to O.P.(C). No.2220 of 2011 -: 6 :- make inspection in the plaint B schedule. It is true that as pointed out by learned counsel, Commissioner has not stated so about the situation at the time of inspection on 26.5.2010. But I must bear in mind that it is not as if the Commissioner has submitted two reports; instead, the result of the inspection on both dates is given in Ext.P6. The only difference that the Commissioner could note at the time of second inspection was that instead of the larger chickens, the Commissioner only found around 200 small chickens. In the light of that report, I do not find reason to think that the courts blow while entering a finding regarding nuisance have gone beyond their bounds so that this Court is required to interfere under Article 227 of the Constitution. Learned counsel has pointed out that as per Ext.P5, counter filed by the second respondent, the local authority there is no nuisance. I am inclined to think that it is not the local authority which is to decide that, but the court. The question whether the poultry farm was started O.P.(C). No.2220 of 2011 -: 7 :- in the year 2000 or, in the year 2006 as the parties contend and whether that would have any bearing on the suit filed in the year 2010 alleging nuisance is a matter which the trial court has to decide having regard to the relevant facts and circumstances and the law on the point. 5. The next question is whether petitioner was required to obtain a licence. Regarding that, learned Munsiff has referred to Sec.469 of the Act and held that a 'Poulterer' is required to take a licence. The expression ‘poulterer’ is described by the learned Munsiff as meaning a person who deals with poultry. I am not inclined to think, having regard to the dictionary meaning of that expression that the said view of learned Munsiff is wrong. At any rate, assuming that no licence is required or that petitioner is able to get a licence, a licence is not a shield for nuisance. 6. Having heard learned counsel, I do not find reason to interfere on the judgment/order of the courts below in exercise of power under Article 227. But, having O.P.(C). No.2220 of 2011 -: 8 :- regard to the difficulties stated by learned counsel, learned Munsiff is directed to expedite the trial and disposal of the case untrammelled by any observation or finding contained in the order/judgment under challenge or in this judgment which shall be confined to the disposal of I.A.No.1151 of 2010. With the above observations and directions this original petition is dismissed. THOMAS P. JOSEPH, JUDGE. Jvt