IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 WP(C).No. 2295 of 2010(J) ------------------------------------ PETITIONER: ------------------- SHIJI SEBASTIAN, PROPRIETOR M.C.CHICKEN CENTRE' GOMATHI JUNCTION, CHINGAVANAM P.O., KOTTAYAM, RESIDING AT KOZHIKOTTU VEETIL, CHINGAVANAM, KOTTAYAM DISTRICT. BY ADVS. MR.M.V.THAMBAN, MR.R.REJI, MR.B.BIPIN. RESPONDENTS: ------------------------ 1. NATTAKAM GRAMA PANCHAYATH,REPRESENTED BY ITS SECRETAY, MARIYAPPALLY POST, KOTTAYAM DISTRICT PIN-686 023. 2. THE SECRETARY,NATTAKAM GRAMA PANCHAYATH, MARIYAPPALLY POST, KOTTAYAM DISTRICT, PIN-686 023. 3. SUSHAMA SABU,RESIDING AT PUTHENPARAMBIL HOUSE, GOMATHY JUNCTION,CHINGAVANAM P.O., NATTAKOM, KOTTAYAM DISTRICT. R1 & R2 BY ADVS.MR.A.K.HARIDAS, SMT.RASHMI RAMESH, R3 BY ADV. MR.P.KURUVILLA JACOB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.2295/2010-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RENT AGREEMENT DTD. 18/06/2009. EXT.P.2: COPY OF THE RECEIPT OF LICENSE FEE ISSUED BY THE PANCHAYAT FOR THE YEAR 2009-2010 DT. 30/06/2009. EXT.P.3: COPY OF THE LICENSE ISSUED TO THE PETITIONER BY THE R.2. DT. 20/09/2007. EXT.P.4: COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE R.2. DT. 29/08/2009. EXT.P.5: COPY OF THE REPLY DTD. 10/09/2009 SEND BY THE PETITIONER. EXT.P.6: COPY OF THE EXTRACT OF THE ORIGINAL PETITION FILED BY THE R.3. DTD. 16/11/2009. EXT.P.7: COPY OF THE ORDER DTD. 20/11/2009. EXT.P.8: COPY OF THE COMMUNICATION ISSUED BY THE R.2. DTD. 26/08/2008. EXT.P.9: COPY OF THE ORDER PASSED BY THE R.2. DT. 21/01/2010. RESPONDENTS' EXHIBITS: EXT.R3.A: PHOTOGRAPH OF THE SITE INDICATING THE DISTANCE BETWEEN PETITIONER'S RESIDENTIAL HOUSE AND THE OLD BUILDING WHERE PETITIONER IS CONDUCTING BROILER-CHICKEN BUSINESS. EXT.R3.B: COPY OF THE LETTER DTD. 04/01/10 OF THE ENVIRONMENTAL ENGINEER OF THE POLLUTION CONTROL BOARD AT KOTTAYAM COMMUNICATED TO R.3. EXT.R3.C: COPY OF THE ORDER DTD. 21/12/09 OF R2. COMMUNICATED TO PETITIONER. EXT.R3.D: COPY OF THE LETTER DTD. 12/01/10 OF R.3. COMMUNICATED TO R.2. BY SPEED POST. EXT.R3.E: COPY OF THE LETTER DTD 13/01/10 OF THE D.M.O. KOTTAYAM COMMUNICATED TO R.3. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.2295 OF 2010(J) -------------------------------------------------- Dated this the 9th day of February, 2010 J U D G M E N T Challenge in this writ petition is against Ext.P9, an order passed by the Secretary of the first respondent Panchayat requiring the petitioner to close down his Broiler Chicken Stall within 24 hours. According to the petitioner, even as late as on 31.12.2009, the Secretary had held that the shop was conducted in compliance with the statutory requirements and therefore there was no justification for issuing Ext.P9 on 21.1.2010. It is also his contention that the order is without jurisdiction. 2. The 3rd respondent on the other hand contends that Ext.P8 was issued pursuant to Ext.P7 order passed by the Ombudsman. According to him, in the inspection that was held pursuant to Ext.P7, the report obtained by the petitioner was a manipulated one and therefore the Secretary was misled to issue Ext.P8. It is stated that, there after Ext.P8 complaint was made and on the basis of the complaint, the District Medical Officer inspected the premises with notice to the parties and submitted his report dated 13.1.2010, a copy of which is Ext.R3(e). It is stated that it is acting upon the said report that Ext.P9 has been WPC.No.2295/2010 :2 : issued. 3. As far as this writ Petition is concerned, challenge is against Ext.P9. One of the contentions raised by the petitioner is that the said order is without jurisdiction. According to him, order has been issued invoking of the power of cancellation as provided under Rule 25 of the Kerala Panchayat Raj( Issue of License to Dangerous and Offensive Trades and Factories) Rules, 1996. It is stated that such power is available only to the President of the Panchayat and that the Secretary could not have exercised the said power. Rule 25 enables cancellation of License in the circumstances mentioned therein. As is seen from this rule, power is conferred only on the President. Admittedly Ext.P9 has been issued by the Secretary and it does not even suggest that the said order has been issued at the instance of the President. If that be so, Ext.P9 is illegal for want of jurisdiction and it has to be set aside only for that reason itself. It is Ordered accordingly. 4. It is made clear that quashing of Ext.P9 will not stand in the way of Panchayat or President or Secretary from initiating any fresh action against the petitioner which shall be in accordance with law. It is also made clear that it will be open to WPC.No.2295/2010 :3 : the Ombudsman to continue the proceedings in O.P.No.1631/2009 initiated at the instance of the 3rd respondent. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/