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2005 DIGILAW 346 (KER)

Thomas George v. The Revenue Divisional Officer

2005-06-03

K.M.JOSEPH

body2005
JUDGMENT K. M. Joseph, J. 1. The writ petitioner claims to be the Convenor of Swasraya SahakaranaSangam at Maruthoor. Ext. P1 is the Bye law. Ext. P2 is the Certificate issued by the Kalloorkkad Farmers Cooperative Bank. According to the petitioner, theproperty of the petitioner's mother was taken on lease for starting a pig Farm. It is stated that an application was made for licence/consent to the local authority and to the Kerala State Pollution Control Board. It is stated that the Officers of the Pollution Control Board inspected the Pig Farm and as per their direction, heavy investments were made for constructing septic tank, gas plant etc. Ext. P3 is the plan approved by the Kerala State Pollution Control Board.By letter dated 14-10-2004, the Kerala State Pollution Control Board issued consent also. According to the petitioner, respondents 4 to 10 madecomplaints before the first respondent to close down the pig farm. The fatherof the petitioner was made the counter petitioner. A conditional order waspassed (Ext. P5). According to the petitioner, he filed objection that the PigFarm is run by the Swasraya Sahakarana Sangam. It is without issuing notice to the petitioner, the Kalloorkkad Farmers' Cooperative Bank, etc. that the firstrespondent by Ext. P6 order made the conditional order absolute. Petitionermade a petition before the first respondent to recall Ext. P6 order (Ext. P7). Itis stated that his father who was the counter petitioner in Ext. P6 filed Crl. R.P. No. 71/04, challenging Ext. P6, before the Sessions Court, Ernakulam andthe same was dismissed. The contention of the petitioner is that under S.133of the Cr.P.C. the conditional order shall be one directing the person who isdoing the trade committing nuisance, etc. In this case, the conditional orders(Exts. P5 and P6) were issued against the petitioner's father and the saidorders are not binding on the petitioner. It is stated that the petitioner has filedExt. P7 for recalling Ext. P6, and that the respondent is duty bound to considerthe same. It is stated that the petitioner has obtained consent from thePollution Control Board and satisfied all conditions. Reliance is placed onS.141 Cr.P.C. It is further contended that irreparable injury will be caused tothe petitioner. The prayers in the Writ Petition are as follows: "i) Issue a writ of mandamus or any other appropriate writ, order or directiondirecting respondents 1 to 3 not to interfere with the functioning of the pig farmin Sy. Reliance is placed onS.141 Cr.P.C. It is further contended that irreparable injury will be caused tothe petitioner. The prayers in the Writ Petition are as follows: "i) Issue a writ of mandamus or any other appropriate writ, order or directiondirecting respondents 1 to 3 not to interfere with the functioning of the pig farmin Sy. No. 258/1B/1.259/18A of Kalloorkkad Village functioning in accordancewith Ext. P4 consent of the Kerala State Pollution Control Board. ii) Issue appropriate writ, order or direction declaring that Ext. P6 order of thesecond respondent is not binding on the petitioner. iii) Issue a writ of mandamus or any other appropriate writ, order or direction,directing the 1st respondent to consider and dispose of Ext. P7 in accordancewith law." 2. A Counter Affidavit has been filed by respondents 4 to 10. It is, inter alia,contended that the petitioner, his father, mother and other family members areoperating an unauthorised and illegal pig farm. The pit farm is the joint ventureof the petitioner and his family members. It is located in a strictly residentialarea where they reside. It is stated that there is no licence from the Panchayat,Health Authority or the Pollution Control Board. Air and water are highlypolluted. Ext. P1 is alleged to be manipulated. The U.P. School teachers andstudents are suffering from dirty foul smell from the pig farm and the shortageof drinkable water, the Secretary of the Grama Panchayat has issued Ext.R10(a) notice to stop the farm. Ext. P2 is alleged to be a false document. Exts.P3 and P4 are managed, according to the respondents, suppressing truth. It isstated that the application for consent was filed on 21-6-2004 while thepreliminary order was passed by the first respondent on 14-6-2004. It is statedthat the farm owner challenged Ext. P6 by filing Crl. R. P. No. 71/04. In thatCrl. R. P., the petitioner has produced two forged documents showing consentby the neighbour and an agreement of lease. Complaint has been filed by the6th respondent against the farm owner before the Judicial First ClassMagistrate Court, Muvattupuzha and Crime No. 92/04 was registered againstthe farm owner under S.420, 469 and 471 IPC and investigation is pending. Itis stated that in Crl. R. P., the petitioner has produced two forged documents showing consentby the neighbour and an agreement of lease. Complaint has been filed by the6th respondent against the farm owner before the Judicial First ClassMagistrate Court, Muvattupuzha and Crime No. 92/04 was registered againstthe farm owner under S.420, 469 and 471 IPC and investigation is pending. Itis stated that in Crl. R. P. 71/04, the petitioner has produced Annexure A3agreement dated 29-8-2001 and in that agreement the name of the Convenoris shown as Thomas George, Son of Thomas, Perumpillikunnel House,Kalloorkkad and in the Writ Petition, the petitioner is shown as the Convenor,Thomas George, son of George. It is stated that the respondents suspectedpersonation in the name of the petitioner. In the local area and among familymembers, the petitioner is called Sanoop, S/o. George. It is stated that thepetitioner is drawing water nearly from 400 metres away by pumping and theschool children and other inhabitants of the area are forced to drink dirtypolluted water. 3. A Reply Affidavit has been filed denying the allegation in the CounterAffidavit. It is stated that the Swasraya Sahakarana Sangam was formed asper the scheme of Ernakulam District Cooperative Bank Ltd. It is further statedthat the petitioner had made an application for licence to the KalloorkkadPanchayat. However, no orders were communicated to the petitioner. WhenExt. R10(a) notice was issued to the father of the petitioner, the petitionercontacted the Panchayat Authorities and reminded about the pendency of theapplication for licence. It is stated that consequently the Panchayat stopped allproceedings based on Ext. R10(a). It is stated that since no orders werecommunicated on the application for licence as the same was misplaced, thepetitioner has made another application on 29-10-2004 for licence to thePanchayat (Ext. P9). The Panchayat has not so far communicated orders onExt. P9. It is stated that respondents 4 to 7 are residing away from the farm.Petitioner reiterates that the proceedings of the first respondent are notbinding on him. He relied on sub-s.(3) of S.236 in this regard. It is extracted asfollows: "236. P9). The Panchayat has not so far communicated orders onExt. P9. It is stated that respondents 4 to 7 are residing away from the farm.Petitioner reiterates that the proceedings of the first respondent are notbinding on him. He relied on sub-s.(3) of S.236 in this regard. It is extracted asfollows: "236. General provisions regarding licences and permissions --(3) Save as aforesaid, if orders on an application for any such licence orpermission are not communicated to the applicant within thirty days or suchlonger period as may be prescribed in any class of cases after the receipt ofthe application by the Secretary, the application shall be deemed to have beenallowed for the period, if any, for which it would have been ordinarily allowedand subject to the law, rules and bye laws and all conditions ordinarilyimposed." 4. It is clear from a perusal of sub-s.(3) of S.236 that if no orders are passed,the application shall be deemed to have been allowed for the period if any, forwhich it would have been ordinarily allowed and subject to the law, rules orbye laws and all conditions ordinarily imposed. The licence is usually issuedfor a period of one year. Even according to the petitioner, he made theapplication for licence on 8-12-2000. If that be so, it is clear that the licencestood expired on 7-12-2001. It is also to be noted that the petitioner has noteven produced the application for licence allegedly made on 8-12-2000. Hehas a case that he made Ext. P9 application dated 29-10-2004 seeking alicence. It is to be noted that the Kerala Panchayat Raj (Licensing of Pigs andDogs) Rules, 1998 provides as follows: "4. Licence -- If any Village Panchayat takes a decision under R.3, then, everyperson possessing or having control of any dog and or pig shall, before thedate specified in the decision, submit an application to the Secretary showingthe details such as the age, colour and breed of the animal together, with a feeof rupees ten for licence from the Village Panchayat to rear or keep inpossession each such animal." 5. It is clear that Ext. P9, even assuming that it has been given, cannot beeven treated as an application in the proper form. If that be so, it is clear thatthe petitioner does not possess a licence as required in law for the rearing ofpigs. It is clear that Ext. P9, even assuming that it has been given, cannot beeven treated as an application in the proper form. If that be so, it is clear thatthe petitioner does not possess a licence as required in law for the rearing ofpigs. In such circumstances, the Pig Farm cannot be run except after obtaininga licence as is required in law. He as operating the Pig Farm without licence.Ext. R10(a) issued by the Panchayat also supports the respondents'contention. The Panchayat has not been made a party in this Writ Petition.Also I find that though it is admitted that Ext. P6 was challenged by the counterpetitioner in Ext. P6 - the father of the petitioner before the Sessions Court,Ernakulam, it stood dismissed. The second prayer, however, in the WritPetition is to declare that Ext. P6 order is not binding on the petitioner. Thepetitioner's complaint does not deserve consideration and the Writ Petition isdismissed.