IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 21312 of 2006(K) --------------------------------------- PETITIONERS: --------------------- 1. K.C.SHAJI, S/O.K.J.CHACKO, AGED 38 YEARS, KULATHINGAL HOUSE, PULPALLY AMSOM, SULTHAN BATHERY TALUK, WAYANAD DISTRICT. 2. SHAHUL HAMEED, S/O.MUHAMMED ALI, KALPETTA AMSOM, VYTHIRI TALUK. BY ADV. MR.SUNNY MATHEW. RESPONDENTS: ------------------------ 1. THE SULTHAN BATHERY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, OFFICE OF THE SULTHAN BATHERY GRAMA PANCHAYATH, SULTHAN BATHERY, WAYANAD DISTRICT. 2. THE SECRETARY, SULTHAN BATHERY GRAMA PANCHAYATH, OFFICE OF THE SULTHAN BATHERY GRAMA PANCHAYAT, SULTHAN BATHERY, WAYANAD DISTRICT. R1 & R2 BY ADV. MR.K.M.SATHYANATHA MENON, MR.S.VINOD BHAT ADVOCATE COMMISSIONER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21312/2006-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE PETITIONERS BEFORE THE R.1. EXT.P.2: COPY OF THE ORDER DTD. 07/07/2006 ISSUED BY THE R.2. TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 21312 OF 2006 ............................................ DATED THIS THE 10TH DAY OF AUGUST, 2009 JUDGMENT The petitioners applied for a building permit. They wanted to construct a residential unit in a plot of land where there is also a residential building. The first respondent panchayat took the stand that the proposed building will be within the limit of 90 metres prescribed as per Rule 5 of the Kerala Panchayat Raj (Slaughter House and Meat Stalls)Rules, 1996, hereinafter referred to as the `Rules'. The consequential refusal to grant building permit is under challenge. 2. Though the controversies essentially related to questions of fact, on noticing that this matter had been lingering in this court for more than three years now, petitioners' request for issuance of a commission was allowed. The Commissioner's report is on record. It shows that the shortest aero-distance between the so called slaughter house and the petitioners' premises is 19 metres. Different other landmarks and the distance between the different buildings are shown. The property Wpc 21312/2006 2 of the petitioner includes a residential building, which is about 40 to 50 years old, going by the Commissioner's report. 3. It is a matter of pain that the Commissioner's report shows that a slaughter house constructed by the panchayat around 15 years ago is still not operational and is not permitted to function owing to objections of the local public. It is still unfortunate as to how the panchayat had thought of a slaughter house at that place, if the landmarks shown by Commissioner's report had already been there. Even if I were to assume that the slaughter house was put up before the 1996 Rules came into force, the fact of the matter remains that there is a potable water source available within the panchayat land. There is also another well on another side, though it belongs to a private individual. On the whole, the situs of the slaughter house has been objected to repeatedly and consistently by the local public. 4. On to the core issue in this writ petition, Rule 5 of the Rules, provides that a slaughter house shall not be within 19 metres of any dwelling house or within 150 metres from hospital etc. The slaughter houses are to be away from the dwelling place and public road. Now, the statutory objection is that the slaughter houses shall not be established within the prohibitory Wpc 21312/2006 3 distance from a dwelling unit. That prescription cannot, as a necessary corollary, carry with it, a prescription that a dwelling house shall not be permitted to come up within a distance of 90 metres from an existing slaughter house. Lending support, though arising from a matter relating to quarries, is the decision of this court in Joseph V. State of Kerala(2003(3) KLT 296). Not only that, even going by the Commissioner's report, the petitioners' dwelling unit which is already in existence, would have been there, along with many other houses, even when the slaughter house was being established by the panchayat. For the aforesaid reasons, I do not find any ground for the panchayat to refuse building permit to the petitioners. Ext.P2, therefore, does not stand. It is illegal, arbitrary and liable to be set aside, also being contrary to the statutory provisions in the Rules. 5. In the result, impugned Ext.P2 is quashed and it is directed that Ext.P1 application of the petitioners shall be taken up, considered and ordered, without reference to the provisions in the Rules. This shall be done within a period of one month from the date of receipt of a copy of this judgment. 6. The materials on record disclose yet another fact. Public funds are involved in the management of the panchayats. Facility Wpc 21312/2006 4 of a slaughter house is absolutely essential. But at the same time, stagnating public funds would be colossal waste and a national peril. Under such circumstances, the clear opinion of the panchayat regarding the utilisation of the structure that has been erected, as if it is for a slaughter house, taking into consideration all relevant aspects, have to be considered. It needs also to be addressed as to whether the panchayat would deem it appropriate to have that building for any other purpose by changing its user with necessary modifications, so that it becomes a utility oriented centre, be it for women and child welfare or for any other activity which may not cause any pollution or nuisance for the local public. First respondent Panchayat is therefore directed to address itself on this issue and place its views in the form of an affidavit through its Secretary, before the Registrar General of this Court within a period of three months from now. On such affidavit being placed, that shall be placed on the judicial side, with this matter being listed “to be spoken to”. Writ petition ordered accordingly. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/11/8