Aby vs State Of Kerala

N. Nagaresh, J

Both these writ petitions relate to running of a Kennel Farm in Mazhuvannur Grama Panchayat. The petitioners in W.P.(C) No.6461/2021 are aggrieved by the running of the Kennel Farm without adhering to statutory requirements and the petitioner in W.P.(C) No.18072/2021 is aggrieved by the non-consideration of his application for regularisation by the Panchayat authorities. The parties and exhibits are referred to in this judgment as they are arrayed/marked in W.P.(C) No.6461/2021, unless otherwise specified.

In W.P.(C) No.6461/2021, the petitioners state that they are residents of Ward No.XII of Mazhuvannoor Grama Panchayat and are residing near the Kennel Farm of the 4th respondent. The 4th respondent's property is of less than 30 Cents. The 4th respondent started a Kennel Farm in his property with four or five dogs and the pack is now increased in number. The Kennel Farm is run without obtaining any consent from the Pollution Control Board or licence from the Panchayat. There are more than 50 dogs in the Farm now. The 4th respondent has constructed Dog Cages all around his property, attached to boundary walls.

The Farm creates environmental pollution and nuisance. The petitioners submitted Ext.P3 complaint to the Secretary to the 3rd respondent-Panchayat. Ext.P5 complaint was filed before the Pollution Control Board authorities also. The authorities have taken no effective steps to curb the pollution and nuisance. In the meanwhile, the 4th respondent is proceeding with construction of new cages without licence, to multiply the Kennel pack. The petitioners seek to direct the respondents to take necessary steps to stop the illegal activities of the 4th respondent.

The 4th respondent in W.P.(C) No.6461/2021 filed WP(C) No.18072/2021. The 4th respondent stated that he is a reputed dog breeder of Great Dane dogs. He constructed a dog kennel having a total plinth area of 251.60 M2 in his land having an area of 83 cents. The Kerala Panchayat Building Rules 2019, exempts dog kennel from Building Permit if the number of dogs is less than six. The 4th respondent constructed the kennel when the number of dogs was less than six. However, the Secretary to the Panchayat issued Ext.P1 stop memo. Hence, the 4th respondent submitted Ext.P2 application for regularisation of his kennel construction. The 2nd respondent noted certain defects in the application and required the 4th respondent to cure the same as per Ext.P3 order. The 4th respondent has complied with the requirements in Ext.P3 and submitted a fresh plan(Ext.P4).

By Ext.P1, the 4th respondent was required to obtain licence from the Panchayat for rearing dogs. The 4th respondent sought information regarding the Panchayat resolution authorising licensing of dogs, as per Ext.P6. The 4th respondent was served with Ext.P6(a) reply to the effect that the Panchayat has not taken any decision to give license to dogs or dog kennels. The 4th respondent has obtained Ext.P7 Consent to Operate the dog kennel, from the Kerala State Pollution Control Board. The 2nd respondent-Panchayat Secretary informed the 4th respondent that the application for building regularisation cannot be considered due to the pendency of W.P.(C) No.6461/2021.

In W.P.(C) No.6461/2021, this Court passed Ext.P9 interim order on 12.3.2021 directing the Panchayat to ensure that no further construction of dog cages is made by the 4th respondent without obtaining necessary building permit. The 4th respondent would submit that Ext.P9 does not in any manner restrain the Panchayat from considering his application for regularisation of constructions. In such circumstances, the 4th respondent seeks to direct the 2nd respondent to consider and pass final orders on merits, on Ext.P2 application for building regularisation as revised by Ext.P4, within a reasonable time.

Heard the learned counsel for the petitioners, the learned Government Pleader representing the 1st respondent-RDO, the learned Standing Counsel for the Kerala State Pollution Control Board, the learned Standing Counsel for the 3rd respondent Panchayat and the learned counsel for the 4th respondent.

The petitioners have sought to stop the construction of the Kennel Cages by the 4th respondent and to remove the Kennel Cages constructed unauthorisedly. The petitioners have also sought to remove the Kennels/Dogs from the property of the 4th respondent. According to the petitioners, the 4th respondent is bound to obtain Licence under Rule 4 of the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules,1998 for conducting Kennel Farm. As per the norms of the Pollution Control Board, the distance of the Kennel Farm from the nearest residential house is 100 metres and 25 metres set back is also required.

As regards violation of Rule 4 of the Kerala Panchayat Raj (Licencing of Pigs and Dogs) Rules, 1998, the requirement to obtain a licence would arise only if the Panchayat has taken a decision as contemplated under Rule 3 of the Rules, 1998. The 4th respondent submitted an RTI application regarding any resolution taken by the Panchayat under Rule 3 and in Ext.P6 reply, the Public Information Officer has stated that there exists no such information in the available records. Hence, it must be presumed that there exists no resolution passed by the Panchayat, under Rule 3. The argument of the petitioners based on Rule 4 of the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998 cannot therefore be accepted.

Furthermore, this Court has held in the judgment in Shaji Philip v. Pallikkathodu Grama Panchayat [2009 (1) KLT 14] that the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998 would apply only to dogs and pigs kept for domestic purpose only. In the case of the 4th respondent, dogs are reared not for domestic purpose.

As regards the licence/Consent of the Pollution Control Board, the Board has issued Consent to Operate the Dog Farm. Ext.P7 Consent (in W.P.(C) No.18072/2021) has been issued on condition that the Kennels shall be washed daily and wash water and excreta shall be directed to a scientifically constructed bio gas plant. There is a further condition that effluent or waste water shall not be discharged to outside the premises of the Unit. If the petitioners have any complaint that the 4th respondent has violated any conditions of Ext.P7 Consent, it is for the petitioners to bring it to the notice of the Pollution Control Board and the Board is competent to review the Consent.

The main argument of the petitioners is that the 4th respondent has not obtained permit for constructing Dog Cages. However, it is evident from Ext.P3 that the 4th respondent has submitted application for Building Permit/Regularisation. The Secretary to the Panchayat has pointed out certain defects in the proposals as per Ext.P3. According to the 4th respondent, he has been orally informed that the application for building regularisation is not being considered due to the pendency of W.P.(C) No.6461/2021. The application for regularisation submitted by the petitioner being statutory in nature, the 2nd respondent is bound to take a decision in the matter within a reasonable time.

In view of the facts as aforesaid, W.P.(C) No.6461/2021 and W.P.(C) No.18072/2021 are disposed of directing the 2nd respondent-Secretary to Panchayat therein to pass final orders on Ext.P2 application for regularisation submitted by the 4th respondent, as revised by Ext.P4, within a period of one month. The representation of the petitioners to take action against illegal construction shall be proceeded with depending upon the final order to be passed on Ext.P2.