OLIVEIRA C HENRIQUES Vs. UNION OF INDIA

JUDGEMENT

(1.) The short question that this writ petition gives rise to is whether the fourth respondent was justified in not taking the action which he was bound to do under law as the sixth respondent had built a structure without licence and thereafter, had been running a poultry farm therein without obtaining the no objection certificate of the health authorities and inspite of the objection of the neighbourhood.

(2.) The relevant facts that gave cause to this petition may be stated. Petitioner has his residential house situated at Mangor Hill, Vasco-da-Gama in a property surveyed under Chalta Nos. 20 and 21 of P.T. Sheet No. 139 of the City Survey, Vasco-da-Gama. The said property is bounded on the northern side with the property belonging to the respondent No. 6 which is surveyed under Chalta No. 22 of P.T. Sheet No. 139. The respondent No. 4 granted a licence to the sixth respondent to start the business of a poultry farm in his aforesaid property but the said licence was granted without compliance with the necessary formalities and pre-conditions for the grant of the licence. In fact, the respondent No. 6 did not obtain any no objection certificate from the Health Department for the purposes of commencing such business nor a verification was made whether the necessary sheds had been built. In addition, the said farm is situated in a residential zone where there are residential house of several persons and, therefore, the said farm was likely to be a source of nuisance and a health hazard to the residents of the place. Somewhere in the second week of February 1985, the respondent No. 6 without obtaining permission of the Municipal Council or from the Mormugao Planning and Development Authority started the construction of a shed for installing therein his poultry business and such shed is barely at a distance of about 6 to 7 metres from the petitioners residence. By his later dated 12th February, 1985, petitioner brought to the notice of the fourth respondent that the sixth respondent was installing a poultry industry close to the petitioner house and that such installation was a potential health hazard owing to the fifth and stench that accompanies such kind of business and , therefore, requested the fourth respondent to initiate the requisite inquiry to find out the legality of the activities of the sixth respondent. On receipt of this letter, the Chief Officer of the Municipality carried out an inspection of the site and found that the grievance of the petitioner was well founded and thereby by his letter dated 21st February, 1985 addressed to the sixth respondent, brought to his notice that he had constructed a shed for a poultry farm without obtaining valid licence for its construction as required by the Building Bye laws and, therefore, directed the sixth respondent to stop the construction at once and follow the Rules. He further stated that the poultry was likely to cause nuisance to the residents by creating pollution and as such, the sixth respondent was requested not to start the said activity until further orders of the Municipality. The sixth respondent, however, did not pay heed to the said notice given by the fourth respondent and went ahead with his illegal activities. The petitioner brought this fact to the notice of the fourth respondent and since no action was taken, he complained to the Collector of Goa by his letter dated 28th February, 1985. The Collector by his letter dated 19th March, 1985 addressed to the fifth respondent, directed the latter to stop the illegal activity immediately and to demolish the illegal shed constructed by the sixth respondent, in terms of the rules in force. The petitioner also approached the Urban Health Centre, Vasco-da-Gama and come to know that no objection certificate had been issued to the sixth respondent to start the poultry farm. He also requested the Health Officer to inspect the site and on such inspection, it was found that the poultry farm of the sixth respondent was causing bad smell and nuisance to the nearby residents. This was informed to the fourth respondent. Pursuant to this letter of the Health Officer, by his letter dated 22nd April, 1985, the fourth respondent informed the sixth respondent about the report received from the Health Service and stated that the sixth respondent had been given permission to start the said activity under an undertaking that, in case of complaints, the said poultry would be closed. Therefore, the Chief Officer of the Municipality requested the sixth respondent to show cause why the poultry should not be immediately cancelled and the illegal shed be demolished. The sixth respondent did not show cause and continued to carry on his business causing unbearable nuisance to the petitioner and other residents. Therefore, petitioner and other residents complained to the Chief Officer but no action was taken. Finally by his letter dated 7th June, 1985 the fourth respondent addressed a notice to the sixth respondent stating that it has been found that there was considerable air pollution due to the bad smell of the poultry and that such bad smell was affecting the surrounding area. The fourth respondent, therefore, requested the sixth respondent to keep the poultry clean and out of bad smells. Since no further action was taken and according to the petitioner it is manifest from the notice dated 7th June, 1985 that the fourth respondent is bent to allow the sixth respondent to continue with his activities, this petition was filed for a writ of mandamus to cancel the licence as well as to demolish the illegal shed. It was also prayed for a relief of quashing and setting a side the licence dated 4th January, 1985.

(3.) Though notice was given to the respondents, none of them put an appearance at the hearing nor was any of them represented. We may, however, record that, at one hearing, the fourth respondent was represented by a Counsel and the sixth respondent appeared in person. The hearing, however, was adjourned at the request of the said respondents and on the next date, none of them put an appearance. The case was adjourned several times to give an opportunity to the said respondents to be present but they did not avail themselves of such opportunity.