ALI RAWTHER Vs. MANIMALA GRAMA PANCHAYAT & ORS.

JUDGEMENT

(1.) The petitioner is stated to be conducting a poultry farm in property that falls within the territorial limits of the 3rd respondent Panchayat. It is the case of the petitioner that he had submitted an application for construction of a poultry shed, in accordance with a plan that he had submitted along with the application for building permit. The said application was considered by the respondent Panchayath, which granted him a building permit, and thereafter, the poultry shed was constructed in accordance with the approved plan and the building permit issued to the petitioner. It is not in dispute that the petitioner is carrying on his poultry farm in the shed so constructed. The petitioner thereafter decided to construct two more sheds in the same property behind the existing poultry shed, with a total area of 462 sq. m. He obtained a plan for the said proposal, and submitted the said plan before the 2nd respondent for necessary approval. Along with the plan, the petitioner also submitted Ext.P8 certificate of the Health Supervisor, which indicated that if the petitioner constructed the additional shed in accordance with the plan attached, there was no chance of any health problem arising consequent to the functioning of a poultry farm with the said two sheds. It would appear that the Panchayat Committee that met to consider the application of the petitioner for the building permit and license, for carrying on the poultry farm with the additional sheds, relied upon a report that was available before them, that indicated that the activities of the petitioner were likely to cause health issues in the neighbourhood, and proceeded to reject the application of the petitioner by Ext.P10 decision dated 15.9.2015. It is relevant to note that, in Ext.P10 decision, there is no reference to the report dated 18.8.2015 of the Health Supervisor, but reliance appears to have been placed solely on the assumption that there would be health problems if the petitioner was permitted to carry on his poultry business with the two additional sheds.

(2.) A Counter affidavit has been filed on behalf of respondents 1, 2 and 4, wherein, the sequence of events leading to the rejection of the application of the petitioner is narrated. In particular, reference is made to Ext.R1(a) complaint dated 8.1.2015 filed by a neighbouring U.P School, which expressed concerns about the expansion of the poultry farm of the petitioner, and the possibility of it resulting in health issues, inter alia, for the children of the School. It is stated that the Panchayat also found that the further extension of the poultry farm by the petitioner, within 100 m. distance from the School, is likely to affect the conduct of the School as well as the minor students pursuing their studies, and that it was therefore that the Panchayat decided not to grant permission to the petitioner for further extension of the poultry farm. In reply to the counter affidavit of the respondents, it is stated by the petitioner that the extension of the poultry farm will not bring it within 100 m. from the School, and hence, if the construction of the sheds is done in accordance with the plan that is appended to Ext.P8 report of the Health Supervisor, then there is no possibility of causing any health issue to the neighbouring property owners including the School in question.

(3.) I have heard the learned counsel for the petitioner as also the learned Standing counsel for the respondent Panchayat. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from Ext.P10 decision of the Panchayath, that is impugned in the writ petition, that the said decision is taken merely on the basis of a complaint that was received by the Panchayat, alleging the possibility of a health issue in the event of the petitioner setting up two additional sheds in the poultry farm operated by him. I note, in this connection that, while taking Ext.P10 decision, the respondent Panchayat did not advert to Ext.P8 Health certificate that was issued by the Health Supervisor, who, in my view, would be more competent to speak upon the health issues associated with the activities carried on by the petitioner than a mere complaint raised by persons in the locality. I also find that it is the specific case of the petitioner that there will not be any activity conducted in the Farm within 100 m. from the neighbouring School. Under such circumstances, I find that Ext.P10 decision of the Panchayat cannot be legally sustained, since, I find it to be one that was passed without application of mind and without considering factors that are germane to the issue that had to be considered by it. Accordingly, I quash Ext.P10 decision, and direct the 2nd respondent to consider the application submitted by the petitioner for operating the poultry farm with two additional sheds, afresh, in the light of the Ext.P8 Health certificate issued by the Health Supervisor, as also the plan appended to the said certificate and after ascertaining the views of the expert bodies with a view to ensure that no pollution/health issues arise on account of the activities carried on by the petitioner. The 2nd respondent shall pass fresh orders in the matter, after hearing the petitioner, within six weeks from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 2nd respondent, for further action.