Panchayat:Repo18/Law Manual Page0320

There is no local body which has come forward for setting up a case to the effect that "machinery" with which we are concerned i.e. parts used in mobile tower, falls under Section 233(b) of the Kerala Panchayat Raj Act and the corresponding provision of the Kerala Municipality Act and they require permission. We make it clear that we are leaving this issue open and this judgment will not stand in the way of any local body taking the stand that the component parts are "machinery", the installation of which requires permission under Section 233 of the Panchayat Raj Act and the corresponding provisions of the Municipality Act, in which case, it will be open to the petitioners/operators to challenge the same in properly constituted proceedings. – Essar Telecom Infrastructure (P) Ltd. (M/s.) v. State of Kerala - 2011(2) KHC 171 (DB): 2011 (2) KLT 516: 2011 (2) KLJ 335.

Section 233 of the Panchayat Raj Act and the corresponding provisions in the Municipality Act, in pith and substance, fall under Entry 6 of List II of the Vilth Schedule to the Constitution and, therefore, are perfectly within the legislative competence of the State. - Essar Telecom Infrastructure (P) Ltd. (M/s.) v. State of Kerala - 2011(2) KHC 171 (DB): 2011 (2) KLT 516 : 2011 (2) KLJ 335.

In Byju K. J. v. Mundathikkodu Grama Panchayath and Others the application for quarrying permit was rejected. The court was of the view that before rejecting the application, suitability of the site for the proposed activity has to be considered. Committee of the Panchayat cannot reject the application without following the procedure as laid down in Section 233 of the Act and Rule 12 of the Rules. - 2011 (1) KHC 246 : 2011 (1) KLT 315.

Entry 100 of the Dangerous and Offensive Trades and Factories Rules specifically refers to cutting, storing, polishing, preparing and Sculpturing or selling of five categories of stones, specifically named, granites, kadapa stones, mosaic and marble. That would essentially mean that the Government specifically wanted to exclude laterite stones from the scope of D & O Rules itself. Apart from the fact that even under R. 20 licence is required to be taken only in respect of matters covered by the Schedule. R. 20 also refers to machinery or manufacturing plant which also cannot refer to a cutting machine used by the petitioner. - Prathapan v. Sub Inspector of police - 2005(3) KLT SN 66.

Panchayat (Licensing of Dangerous and Offensive Trade and Factories) Rules, 1996 (Kerala), Rr. 6 & 12. - If an entrepreneur produces sufficient positive certification from the competent authorities, then the Panchayat/President is liable to act on the same and issue by valid policy reasons - See - Panchayat Raj Act, 1994 (Kerala), Ss.232 & 233 - Annu Thomas v. Mathew Thomas - 2001 (2) KLT 688.

After granting licence to construct building and to start an industry, Panchayat cannot cancel the licence on a complaint not based on actual facts - If there is chance for pollution, it is open to the authority to require the certificate from State Pollution Control Board - District Collector had to test by a trial run of the plant and them come to the conclusion that the ice plant will be harmful. On the basis of mere surmises, District Collector came to the conclusion that pollution will be caused if the ice plant is allowed to operate. Panchayat may require the petitioner to get certificate from the State Pollution Control Board as to the precautions to be taken by the petitioner. - Pathrose v. State of Kerala - 1996 (2) KLT SN.48 P.43 : 1996 (2) KLJ 177 : AIR 1977 Ker.48.

Ss.97 and 100 [corresponding to S.233 & 123 of the Panchayat Raj Act, 1994]– Licences issued by Panchayat - Licensing process is a quasi judicial function by the Panchayat - Therefore the Panchayat cannot be said to be an aggrieved party to agitate the question before the higher authorities under S. 144 or to challenge the order passed thereon in a writ petition under Art.226 of the Constitution - The panchayat has to function in accordance with the provisions, illustratively S. 97 of the act in this context, and has to decide as a quasi-judicial authority. In the process the role in question could not be one that can be understood to be a role of adversary in the system where there is a question of 'res' in the sense of the normal litigation as is understood. As a consequence the decision in the matter becomes a subject matter of challenge strictly in accordance with the statutory provisions of S. 144 of the Act, being available to the person aggrieved as a result thereof. It is plain in the process that the role of the Panchayat as an aggrieved party is not available under the provisions of the said section. The person has a right to appear by way of an appeal with regard to his grievance, in this case before the Deputy Direct of Panchayats. – Karoor Panchayat v. State - 1996 (1) KLT 112: 1995 (2) KLJ 742. [Cassel v. Broome 1972 AC 1027; Dist. Executive Officer v. State of Kerala. 1991 (1) KLT 390; Bhopal Sugar Industries v. Income Tax officer AIR 1961 SC 182 - Relied on.]

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