Panchayat:Repo18/Law Manual Page0308

308

THE KERALA PANCHAYAT LAW MANUAL

Sec. 232

NOTES

In Jacob George v. Tomy Abraham the question of penalty in conducting a quarrying operation in the absence of licence was considered. The Court held that the penalty provided under a Statute takes in only contraventions of that Statute; unless otherwise specifically provided for, to be initiated and proceeded with by the Authorities authorised under that Statute. Authority under the Panchayat Raj Act, when proceeding for violation of that Act, cannot impose the penalty under the Mines and Minerals (Development and Regulation) Act. Absence of a D&O Licence if proceeded with by the competent Authority under the KPR Act is compoundable under the Rules. – Jacob George v. Tomy Abraham - 2016 (5) KHC 893 : 2016 (4) KLT 422 : 2016 (4) KLJ 688.

A laundry unit was closed for a while due to financial constraints and subsequently it was planned to revive it. In the instant case, it was held that when the unit has obtained certificate from the Pollution Control Board, permission for resumption of functioning can be given by Secretary for which licensee need not approach Panchayat Council again. - Soorya Retreats and Holidays India Private Limited and Another v. Elamadu Grama Panchayath and Another – 2016 (3) KHC 838.

Establishment permit and licence - When all Authorities had confirmed that the Unit will not cause any environmental problems and that there would not be any pollution or nuisance to the people at large, provided it functions as per the conditions imposed by the said Authorities, then, it is not open for the Panchayat (in the absence of other expert materials) to take a different view and deny licence, overruling the findings of the Expert Authorities. – Ramapuram Grama Panchayat v. St. Basil Industries India (P) Ltd. and Others – 2016 (3) KHC 118: 2016 (2) KLT 219.95

In Action Council (supra), the Supreme Court had set aside the judgment of a Division Bench of this Court reported in Action Council v. Benny Abraham. - 2001 KHC 485 : 2001 (2) KLT 690 : 2001 (2) KLJ 120 : AIR 2002 Ker. 65. Supreme Court felt that four conditions ascribed by the Panchayat need not be interfered with. A perusal of para 11 of the Division Bench judgment of this Court would indicate that the main reason stated for rejecting the application for permit is that there was scarcity of water in the area and therefore it will not be possible to use sprinkler as directed by the Pollution Control Board during summer season and the agricultural properties might be adversely affected and it would include the members belonging to scheduled caste around the locality and there was a road around 100 metre of the premises. It is therefore clear that Action Council (supra) was decided on its own facts which is also clear from the judgment of the Supreme Court and cannot be treated as a binding precedent to form an opinion that in all cases such a view is to be taken. – Ramapuram Grama Panchayat v. St. Basil Industries India (P) Ltd. and Others – 2016 (3) KHC 118: 2016 (2) KLT 219.

Establishment permit -- Objection on ground of density of population -- Held, if there has to be a valid finding that industry is objectionable on account of density of population in the neighbourhood, then, District Medical Officer ought to have taken such a view. Opinion of Panchayat Sub Committee is irrelevant, unless it is constituted with expert bodies nor have they taken the assistance of any experts in the field, If, after establishing the Unit, any pollution is caused, it is always open for the Panchayat or the Kerala State Pollution Control Board, as the case may be, to take appropriate preventive measures or even revoke or suspend the licence if there is noncompliance of the statutory provisions. - Ramapuram Grama Panchayat v. St. Basil Industries India (P) Ltd. and Others - 2016 (3) KHC 118: 2016 (2) KLT 219. Action Council v. Benny Abraham, 2002 KHC 416; Assistant Commissioner of Central Excise v. Krishna Poduval, 2005 KHC 1914; Chandi Prasad v. Jagdish Prasad, 2004 KHC 1184; Deepak Kumar v State of Haryana, 2012 KHC 4150: Gem Granites v. Deputy Superintendent of Police. Singh v. Union of India and Others, 1979 KHC 591; Krishnan T. and Others v. State of Kerala, 2007 KHC 3367; Mool Shankar Singh v. Regional Manager, PNB and Another, 2004 (9) SCC754; Municipal Corporation, Ahmedabad v. Jan Mohammed, 1986 KHC 796; Olga Tellis and Others v. Bombay Municipal Corporation, 1985 KHC 669; Panopharam y. Union of India, 2010 KHC 6221; Paul Industries (India) v. Union of India and Others, 2004 KHC 1954; State of Kerala v. Kondottyparambanmoosa, 2008 (3) KHC 733; Thomas Thomas v. Kottayam Municipality, 2008 (4) KHC 26; Referred to]

The provisions of the Act and the D & O Rules stand by themselves and those provisions are not

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