IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 15639 of 2009(Y) --------------------------------------- PETITIONER: ------------------- JOSE.T.K., S/O.KUNJIYU, THOMMANA HOUSE, AVITTATHOOR P.O., IRINJALAKKUDA. BY ADV. MR.C.E.UNNIKRISHNAN. RESPONDENTS: ------------------------ 1. THE VELUKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KOTTANELLURE P.O.-680 672. 2. WALTEN.T.P., S/O.THOMMANA PAVU, WARD NO.5, KUTTIKKADAN MOOLA, AVITTATHOOR P.O., IRINJALAKKUDA. R1 BY ADVS. MR. V.M.KRISHNAKUMAR, MR.P.A.ANITHA, R2 BY ADVS. MR. T.M. RAMAN KARTHA, MR.M.G.KARTHIKEYAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15639/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DATED 27/08/2008 SUBMITTED BY THE HEALTH INSPECTOR, PHC, VELOOKKARA. EXT.P.2: COPY OF THE LETTER OF THE MEDICAL OFFICER, PHC, VELOOKKARA. EXT.P.3: COPY OF THE LETTER NO.C6-215/09 DTD. 26/03/09 ISSUED BY THE R.1. EXT.P.4: COPY OF THE REPLY SENT TO THE DISTRICT COLLECTOR NO.C6-181/09 DTD. 24/03/09. EXT.P.5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER AND OTHERS DTD. 09/02/2009. EXT.P.6: COPY OF THE JUDGMENT DTD. 20/03/09 IN W.P.(C).7798/2009. EXT.P.7: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DTD. 03/04/2009. EXT.P.8: COPY OF THE NOTICE DTD. 01/06/2009. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE APPLICATION OF THE R.2. DTD. 24/12/2008. EXT.R1.B: COPY OF THE CERTIFICATE DTD. 31/01/09 OF GOVERNMENT VETERINARY SURGEON. EXT.R1.C: COPY OF THE CONSENT LETTER DTD. 04/02/2009. EXT.R1.D: COPY OF THE REPRESENTATION DTD. 09/02/2009 ISSUED TO THE PANCHAYAT. EXT.R1.E: COPY OF THE LETTER DTD. 08/05/09 OF THE MEDICAL OFFICER, VELUKKARA. EXT.R1.F: COPY OF THE LETTER DTD. 03/04/2009 ISSUED TO THE PETITIONER. EXT.R1.G: COPY OF THE PROCEEDINGS DTD. 26/05/09 OF THE PANCHAYAT. EXT.R1.H: COPY OF THE NOTICE DTD. 28/05/09 AND MINUTES DTD. 30/05/09. EXT.R1.I: COPY OF THE LETTER DTD. 06/06/09 ISSUED BY THE PANCHAYAT. W.P.(C). NO.15639/2009-Y: EXT.R1.J: COPY OF THE COMPLAINT FILED BY THE SECRETARY OF THE PANCHAYAT DTD. 29/06/09. EXT.R2.A: COPY OF THE LICENCE NO.C6-24/09-10 DTD. 26/05/2009. EXT.R2.B: COPY OF THE TAX RECEIPT EVIDENCING THE PAYMENT OF LICENCE FEE DT. 26/05/09. EXT.R2.C: COPY OF THE RECEIPT EVIDENCING THE PAYMENT OF PROFESSIONAL TAX DT. 26/05/09. EXT.R2.D: COPY OF THE REPORT NO.64/09 DT. 08/05/2009 OF THE MEDICAL OFFICER. EXT.R2.E: COPY OF THE NO OBJECTION CERTIFICATE DTD. 31/01/2009. EXT.R2.F: COPY OF THE MINUTES OF THE HEARING HELD ON 07/04/09 OF THE SECRETARY, VELUKARA GRAMA PANCHAYAT. EXT.R2.G: COPY OF THE PROCEEDINGS DTD. 26/05/2009 ISSUED BY THE SECRETARY, VELUKARA GRAMA PANCHAYATH. EXT.R2.H: COPY OF THE NO-OBJECTION CERTIFICATE ISSUED BY THE VETERINARY SURGEON, KOTTANELLUR. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.15639 OF 2009 ------------------------------------------- Dated this the 21st day of December, 2009 JUDGMENT 1.The petitioner is a neighbour of the second respondent. The second respondent has two sheds in his property. He intends to put it to use for rearing chicken. Having regard to the different controversies touching the issuance of licences to the second respondent, the fundamental plea of the petitioner is that the activity of the second respondent will visit the petitioner with adverse health consequences. The plea is that one of the sheds of the second respondent is very near to the residence of the petitioner. It is in this context that the petitioner has raised the question as to whether the secretary of the grama panchayat could have issued licence under D & O Rules. Though the plea of the petitioner in this regard with reference to the Kerala Panchayat Raj Act, 1994 and the D & O Rules is decided by the second respondent on the ground that the secretary has sufficient power with reference to some of WPC.15639/09 2 the judgments of this Court and the provision under Section 232 of the Panchayat Raj Act, I do not deem it necessary for this Court to enter into that issue, having regard to the fact that ends of justice could be met by balancing the requirement of the petitioner to protect his interest as also by providing the second respondent to have his opportunity to make his livelihood, thus providing the balance between their rival claims. 2.The Deputy Director of Panchayats had visited the site following the directions of this Court and has placed a report regarding the ground realities, however, stating that at the time of his visit, there were no chicken in the sheds. One of the sheds of the second respondent is stated to be close to the residence of the petitioner in as much as the distance between the petitioner's residence and the said shed is only 23 metres, going by the report of the Deputy Director. All that would be required is to ensure that the activity in the second respondent's premises is properly enclosed so that there will WPC.15639/09 3 be no polluting situation endangering the health of the neighbours. 3.Taking all relevant facts and circumstances into consideration, it is ordered that the second respondent will be permitted to commence the activity on appropriate certification by the Deputy Director that the sheds, to the extent they may, causes inconvenience to the petitioner, is properly covered with such material which would prevent any polluting situation by the second respondent, providing such remedial measures as are necessary to handle the situation as the Deputy Director may deem fit. To enable this, it is directed that the Deputy Director, on production of a copy of this judgment, will hear the petitioner, the second respondent, as also the secretary of the grama panchayat and issue necessary directions. The second respondent will comply with those directions and report it to the secretary of the grama panchayat, who, after visiting the premises, will make a report to the Deputy Director who will grant formal sanction following the decision WPC.15639/09 4 taken, so that the second respondent can commence his activities at the earliest. The hearing by the Deputy Director will be held within a period of four days of the production of a copy of this judgment. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.21/12.