Dismissed

Jose K.J. v. Secretary, Chakkittapara Grama Panchayath

Kerala HC18 Nov 2020WP(C)/22670/2020

Case brief

AI extract

What is this about?

This writ petition challenged orders from the Kerala State Human Rights Commission and the Chakkittapara Grama Panchayat directing the closure of the petitioner's pig farm. The Court held that a pig farm does not constitute an 'enterprise' under the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019, thus rejecting reliance on that Act while finding the impugned orders lawful.

What did the court decide?

The writ petition challenging the orders to close the pig farm is dismissed with no directions to the respondents.

Jose K.J. Vs Secretary, Chakkittapara… — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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WP(C).No.22670 OF 2020(G)

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PETITIONER/S:

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JOSE K.J., AGED 63 YEARS, KAVIL PURAYIDAM HOUSE POOZHITHODE POST, PERUVANNAMOOZH, KOZHIKODE DISTRICT-673 528.

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BY ADVS. SRI. R. RAJESH(PULLIKADA) SMT. THUSHARA.V

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RESPONDENTS:

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1 SECRETARY, CHAKKITTAPARA GRAMA PANCHAYATH, P.O. CHAKKITTAPARA, KOZHIKODE DISTRICT- 673 526.

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2 KERALA STATE HUMAN RIGHT COMMISSION, TURB PLUS TOWERS, PMG JN. VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.

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3 ENVIROMENTAL ENGINEER, KERALA STATE POLLUTION CONTROL BOARD, PALAYAM ROAD, KOZHIKODE-673 020.

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4 STATE OF KERALA, REPRESENTED BY SECRETARY , DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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R3 BY ADV. SRI. T. NAVEEN, SC, R4 BY SRI. ARAVINDA KUMAR BABU, SR. GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C):22670/2020

“C.R”

JUDGMENT

S. Manikumar, CJ

Challenging Exhibit-P4 order passed by the Kerala Human Rights Commission in HRMP Nos. 6975/11/9/2019 and 6965/11/2019 dated 30.06.2020 and Exhibit-P5 proceedings of the Secretary of Chakkittapara Grama Panchayat dated 14.10.2020, instant writ petition is filed for the following reliefs:

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i) “Issue a writ of certiorari and quash Exhibits-P4 and P5 holding that the said orders were passed against the prevailing laws.

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ii) Declare Exhibit-P4 order is not binding on the petitioner, as it is passed without notice to him.”

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Facts leading to the filing of the writ petition are that the petitioner, a resident of Ward No.1 of Chakkittapara Grama Panchayat, Kozhikode, is conducting a pig farm in a remote area, following the norms prescribed, after successfully submitting application before the Environmental Engineer, Kerala State Pollution Control Board, Kozhikode, respondent No.3, under the provisions of the Kerala Micro Small & Medium Enterprises Facilitation Act, 2019.

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Petitioner has further stated that before starting the pig farm, he has made arrangements for all the necessary infrastructures, including for waste management, as prescribed by the 3^rd respondent, in order to avoid pollution in the locality, and submitted the application under Act, 2019 successfully through online and secured a receipt (Exhibit-P1). Due to the spread of COVID-19 pandemic, respondent No.3 could not conduct the second inspection for issuing the consent of Pollution Control Board. That being so, the Secretary of Chakkittapara Grama Panchayat, respondent No.1, issued Exhibit-P2 notice dated 18.09.2020 informing that the Kerala State Human Rights Commission, respondent No.2, has ordered to close down the pig farm run by the petitioner, after hearing him, and to appear on 06.10.2020 before him, for hearing.

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Petitioner has further stated that on receipt of Exhibit-P2 notice, as directed, he appeared before the Secretary of Chakkittapara Grama Panchayat, respondent No.1, on 06.10.2020, and explained that the conduct of the pig farm is in accordance with the prevailing law. That apart, a written explanation (Exhibit-P3), along with a recently obtained test result of water collected from the nearby water source of his pig

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farm and tested at the laboratory, Centre for Water Resources Development and Management under the Government of Kerala [Exhibit-P3(a)] was also submitted by him before the 1^st respondent on 06.10.2020.

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In spite of the production of Exhibits-P3 and P3(a), along with a copy of Exhibit-P1 receipt issued under the Act, 2019, by the petitioner on 16.10.2020, the 2^nd respondent passed Exhibit-P4 order dated 30.06.2020 directing the Secretary of Chakkittapara Grama Panchayat, respondent No.1, to give notice to the owners of the pig farms mentioned in the complaints, hear them, and take steps to legally close down the pig farms that are creating health issues. Pursuant to the said order, the 1^st respondent has issued Exhibit-P5 proceedings dated 14.10.2020, directing to remove the pigs kept in the farms and close down the farms, within 7 days. Being aggrieved, petitioner has filed this writ petition for the reliefs, stated supra:

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Petitioner has contended that he is running the farm, in accordance with the prevailing laws, including the mandates prescribed under the Kerala Micro, Small and Medium Enterprises Facilitation Act,

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W.P.(C):22670/2020

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The 2^nd respondent has passed Exhibit-P4 order, without notice to the petitioner, and, therefore, it is illegal.

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Petitioner has further contended that instead of following an illegal order of the 2^nd respondent, the 1^st respondent ought to have considered the law and the contentions raised by the petitioner in Exhibit-P3 explanation. Petitioner is running the farm following all the conditions prescribed by the 3^rd respondent. He is not aware about the case considered by the 2^nd respondent in which, Exhibit-P4 order was passed and that he is not a party to it.

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Petitioner has further contended that by way of Exhibit-P1 receipt issued under Section 6 of the Kerala Micro, Small & Medium Enterprises Facilitation Act, 2019, the application will be in force for a period of three years and any clearance, consents, licenses, recognitions, registrations, orders and no objection certificates are required to be produced for obtaining a licence. According to the petitioner, as per the Act, a period of three years is provided to produce the same with a six months' further extended period. He is running the pig farm following all possible measures to avoid pollution.

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Heard the learned counsel for the parties and perused the

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material on record.

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Exhibit-P2 notice issued by the 1^st respondent Grama

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Panchayat dated 18.09.2020 to the petitioner reads thus:

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“B3-5591/2020 18-09-2020

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Chakkittapara Grama Panchayat NOTICE

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Sub : Closure of Pig farm consequent to order of the State Human Rights Commission – Reg.

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Ref: 1. Sections 232, 240, 254 of Kerala Panchayat Raj Act, 1994, The Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules.

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Order of the State Human Rights Commission as HRMP No.6965/11/8/2019 dated 30.06.2020.

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Notice issued by the Secretary, Chakkittapara Grama Panchayat to Shri Jose, Kavilpurayidom (House), Puzhithodu.

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The State Human Rights Commission has as per the 2^nd referred to Order has ordered the closure of the unauthorised pig farm being conducted by you without any license. It is decided to hear you before the implementation of the order. Accordingly you are to be present in this office in person or through authorised representative on 06.10.2020 at 11 O’ Clock. It is put to your notice that if you or anybody authorised by you fails to appear at the appointed time, without any further notice steps will be initiated for closure of the farm.

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Sd/Secretary, Chakkittapara Grama Panchayat”

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W.P.(C):22670/2020

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Perusal of the above shows that the State Human Rights Commission, has noticed that a pig farm is being conducted, without any licence. Thus, on 30.06.2020, the 1^st respondent has ordered closure of the pig farm, after hearing the petitioner. Thereafter, the Secretary of Chakkittapara Grama Panchayat, by referring to the order of Human Rights Commission and statutory provisions, Sections 232, 240 & 254 of the Kerala Panchayat Raj Act, 1994, the Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998, has issued Exhibit-P2 notice dated 18.09.2020, directing the petitioner to appear on 06.10.2020.

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Order passed by the Kerala State Human Rights Commission

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dated 30.06.2020 in HRMP Nos. 6975/11/9/2019 and 6965/11/2019

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(Exhibit-P4) is extracted hereunder:

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“ KERALA HUMAN RIGHTS COMMISSION

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Present : P. Mohandas Hon’ble Member

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H.R.M.P No.6975/11/9/2019

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Complainant : Johnson Opposite Parties : H.R.M.P No.6965/11/2019

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Complainant : Jolly Vargheese & others

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K.U-P School Teachers and students, Pozhithodu, Kozhikode

Opposite Parties :

W.P.(C):22670/2020

Order dated 30th June, 2020

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H.R.M.P No. 6965/11/8/2019 is a complaint filed by the teachers and students of K.U.P School, Poozhithode of Chakkittapara Panchayat. The complaints are filed alleging that a pig farm is being conducted unauthorizedly and the pollutants from the farm are polluting the area. And the smell from the farm is injurious to the health of children and neighbours. Though complaints were filed before the Panchayat authorities no action is being taken.

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The Secretary of Chakkittapara Panchayat has submitted a detailed report after conducting an enquiry. That there is strength in the allegations. That in the area there are three pig farms that are operating without any permission or license from the panchayat. They are bring hotel waste from outside and it is being handled in an unscientific way thereby causing environmental pollution. There is chance that it may reach any water bodies or sources of water during the rainy season. It is stated that the Medical Officer visited the farms and submitted a report and opined that the waste disposal was not satisfactory and insufficient. Notices were issued to the farm owners to stop functioning of the farms.

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The complaint of the teachers and students of the Pozhithode K.U.P school was that the pollutants from the farm were creating health issues, the medical officer has also opined the basis of complaint are true.

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Therefore, the petition is disposed off ordering the Secretary, Chakkittapara Panchayat to give notice to the owners of the pig farms mentioned in the complaints and hear them and take steps to legally close down the pig farms that are creating health issues for the neighbours, teachers an students of the school.

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Sd/P. Mohandas.

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Member Kerala State Human Rights Commission

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True Copy Registrar, Sd/-”

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Perusal of the order passed by the Human Rights Commission

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discloses that acting on a complaint made by teachers and students of K.U.P. School, Poozhithode, Chakkittapara Grama Panchayat, the Human Rights Commission has called for a report from the Secretary of Chakkittapara Grama Panchayat. Accordingly, report has been submitted. Human Rights Commission has also taken on record that the Medical Officer has visited the farms and opined that the waste disposal was not satisfactory and insufficient. Thus, finding prima facie in the complaint, the Commission has directed the Secretary of Chakkittapara Grama Panchayat, to take steps for closure of the pig farms.

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Explanation dated 06.10.2020 (Ext-P3) given by the petitioner before the Secretary, Chakkittapara Grama Panchayat reads thus:

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“Before the respectful Secretary, Chakkittapara Grama Panchayat.

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As per Notice No: B5599/2020 dated 18/09/2020 I am appearing before you and making the following submissions and considering the same you may find that the farm being conducted by me in Thalipara, the 4^th ward of the panchayat is not unauthorized and order that it is not necessary to close the farm.

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Reasons : The reasons why the pig farm should not be closed.

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a). I have submitted an application under the “Kerala Micro Small Medium Enterprises Facilitation Act 2019” and received an online receipt. As per the above Act, it is authorised to start business on submission of the application and rectify any shortcomings within 3 years thereafter. In such circumstances, my farm is an authorised farm.

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b). On application submitted the officials of the Pollution Control Board have inspected the place. However, due to the spread of the pandemic COVID 19, I have not received any further communication regarding the inspection. We have carried out all the work as per the directions and you will be convinced on personal inspection.

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c). ICUP school is situated at an air distance 1 km from my pig farm and has a greater land distance. During the said period at regular intervals water from the water sources near the pig farms have been collected and the results of the examination conducted by CWDRDM’s Lab, Kozhikode are submitted before you. Also, water for the Pozhithodu ICUP School is sourced from water connection from Jalanidhi project. If you examine the same you will be convinced of the same.

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On the basis of the personal hearing and above mentioned facts you may order that the pig farm conducted by me doesn’t have to be closed and also if there are any faults, I may be granted sufficient time to clear the same.

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6/10/2020 Yours faithfully,

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Jose K.J”

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Proceedings of the Secretary of Chakkittapara Grama

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Panchayat dated 14.10.2020 (Exhibit-P5), is extracted hereunder:

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“Proceedings of the Secretary of Chakkittapara Grama Panchayat.

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Present: Anish Aravind

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Sub: Closure of Pig Farms as per the order of the Hon’ble State Human Rights Commission.

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Ref :1. Sections 232,240,254 of Kerala Panchayat Raj Act, 1994, The Kerala Panchayat Raj (Licensing of Pigs and Dogs) Rules, 1998.

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Order of the State Human Rights Commission as HRMP No. 6965/11/8/2019 dated 30.06.2020.

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This office Order No:B3-5591/2020 dated 15.09.2020.

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This office Notices No. B3-5591/2020 dated 18.09.2020 and 01.10.2020.

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Hearings on 06.10.2020 and 12.10.2020.

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Order No: B3-5591/2020 Dated 14/10/2020

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That Shri Jose Kavilpurayidom and Midhun Cherian are conducting Pig farms without any permissions or licenses from the Grama Panchayat in the 4^th ward, Pozhithodu of Chakkittapara Grama Panchayat and bringing Hotel waste and are handling the same in an unscientific way. As the waste disposal in the farms are insufficient it is causing environmental pollution and as the pollution from the farms in the rainy season can flow out and pollute the wetlands and drinking water sources. The Hon’ble State Human Rights Commission has ordered to legally stop the pig farms.

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As part of implementing the order the Secretary of the Grama Panchayat had taken 3^rd reference decision to hear the owners of the Pig farms and the Complaints in person.

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Thereafter, the farm owners were heard on 06.10.2020 and the complainants were heard in person on 12.10.2020. As per the direction of the Hon’ble State Human Rights Commission is hereby implemented by ordering the closure of the pig farms operated without the permission or licence of the Grama Panchayat by Shri Jose Kavilpurayidom and

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Shri Midhun Cherian. They are directed to remove the pigs kept in the farms and to close the farms within 7 days.

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Secretary Chakkittapara Grama Panchayat Seal of the Bank.”

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The main contention advanced by the petitioner is that pig

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farm falls within the ambit of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 and that, under the provisions of the Act, he has made an application to the competent authority. As per the said Act, he is authorised to start business on submission of the application and rectify and shortcomings within three years thereafter. In the abovesaid circumstances, pig farm is an authorised farm. He has further contended that on his application, though the farm was inspected by the Pollution Control Board, there was no further communication.

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In the light of the above contentions, let us consider whether a pig farm will fall within the ambit of the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019.

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Kerala Micro Small and Medium Enterprises Facilitation Act, 2019 is an Act to provide for exemption from certain approvals and inspections required for the establishment and operation of micro small

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and medium enterprises in the State and matters connected therewith and incidental thereto.

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Section 2(h) of the Act defines micro, small or medium enterprises to mean, the micro, small or medium enterprises, as defined in the Micro Small and Medium Enterprises Development Act, 2006. As per the Act, 2006, micro, small or medium enterprises is defined under Section 7 which reads thus:

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“ 7. Classification of enterprises .—(1) Notwithstanding anything contained in section 11B of the Industries (Development and Regulation) Act, 1951 (65 of 1951), the Central Government may, for the purposes of this Act, by notification and having regard to the provisions of subsections (4) and (5), classify any class or classes of enterprises, whether proprietorship, Hindu undivided family, association of persons, co-operative society, partnership firm, company or undertaking, by whatever name called,—

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(a) in the case of the enterprises engaged in the manufacture or production of goods pertaining to any industry specified in the First Schedule to the Industries (Development and Regulation) Act, 1951 (65 of 1951), as-

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(i) a micro enterprise, where the investment in plant and machinery does not exceed twenty five lakh rupees;

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(ii) a small enterprise, where the investment in plant and machinery is more than twenty-five lakh rupees but does not exceed five crore rupees; or

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(iii) a medium enterprise, where the investment in plant and machinery is more than five crore rupees but does not exceed ten crore rupees;

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(b) in the case of the enterprises engaged in providing or rendering of services, as—

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(i) a micro enterprise, where the investment in equipment does not exceed ten lakh rupees;

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(ii) a small enterprise, where the investment in equipment is more than ten lakh rupees but does not exceed two crore rupees; or

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(iii) a medium enterprise, where the investment in equipment is more than two crore rupees but does not exceed five crore rupees.

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Explanation 1 .—For the removal of doubts, it is hereby clarified that in calculating the investment in plant and machinery, the cost of pollution control, research and development, industrial safety devices and such other items as may be specified, by notification, shall be excluded.

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Explanation 2 .—It is clarified that the provisions of section 29B of the Industries (Development and Regulation) Act, 1951 (65 of 1951), shall be applicable to the enterprises specified in sub-clauses (i) and (ii) of clause (a) of subsection (1) of this section.”

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Analysis of the above provision makes it clear, to fall within

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the definition of 'enterprise' under Act, 2019, the enterprises should be

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engaged in the manufacture of goods pertaining to any industry, specified in the First Schedule to the Industries (Development and Regulation) Act, 1951, and that, there should be investment in plant and machinery. Enterprise, whether micro, small or medium, depends upon

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the value of investment in plant and machinery. Yet another kind of enterprise recognised under the abovesaid Act is an enterprise engaged in providing or rendering of services. Here, the classification depends upon the investment in equipments. Thus, going by the definitions, we cannot accept the contention of the petitioner that pig farm is an enterprise under the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019.

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Section 10 of the Act, 2019 speaks about overriding effect of this Act on other laws and it reads thus:

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“ 10. Overriding effect of this Act on other laws .— (1) The provisions of this Act shall have overriding effect, notwithstanding anything inconsistent therewith contained in any other law, for the time being in force.

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(2) In particular and without prejudice to the generality of the foregoing provisions of this Act, such provisions shall have effect notwithstanding anything inconsistent therewith contained in the following enactments and the provisions of these enactments shall be read as amended in conformity with the provisions of this Act, namely:—

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The Kerala Panchayat Raj Act, 1994 (13 of 1994)

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The Kerala Municipality Act, 1994 (20 of 1994)

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The Kerala Shops and Commercial Establishments Act, 1960 (34 of 1960)

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The Kerala Lift and Escalators Act, 2013 (18 of 2013)

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W.P.(C):22670/2020

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Travancore – Cochin Public Health Act, 1955 (XVI of 1955)

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Madras Public Health Act, 1939 (3 of 1939)”

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As pig farm does not fall within the definition of an 'enterprise', under the Kerala Micro Small and Medium Enterprises Facilitation Act, 2019, Section 10 of the Act is also not applicable to the case on hand. Material on record discloses that the impugned orders have been passed, after considering the report of the Secretary of Chakkittapara Grama Panchayat and by observing the principles of natural justice.

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We do not find any illegality or irregularity in the impugned orders. Writ petition is dismissed.

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Sd/-

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S. MANIKUMAR CHIEF JUSTICE

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Sd/-

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SHAJI P. CHALY JUDGE

krj

W.P.(C):22670/2020

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	COPY OF THE ONLINE RECEIPT ISSUED ON SUCCESSFUL SUBMISSION OF APPLICATION UNDER THE KERALA MICRO, SMALL AND MEDIUM ENTERPRISES FACILITATOR ACT 2009.
EXHIBIT P2	COPY OF THE NOTICE DATED 18.9.2020 OF THE 1ST RESPONDENT.
EXHIBIT P3	COPY OF THE EXPLANATION GIVEN BY THE PETITIONER BEFORE THE 1ST RESPONDENT, ON EXHIBIT P2.
EXHIBIT P3 A	COPY OF THE LABORATORY TEST RESULT ISSUED BY CWRDM FOR THE WATER TEST CONDUCTED.
EXHIBIT P4	COPY OF THE ORDER DATED 30.6.2020 OF THE 2ND RESPONDENT PROVIDED BY 1ST RESPONDENT.
EXHIBIT P5	COPY OF THE ORDER DATED 14/10/2020 OF 1ST RESPONDENT.

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RESPONDENTS' EXHIBITS:- NIL

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//TRUE COPY//

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P.A. TO C.J.

Jose K.J. v. Secretary, Chakkittapara Grama Panchayath

Case brief

What is this about?

What did the court decide?

Jose K.J. v. Secretary, Chakkittapara Grama Panchayath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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