Panchayat:Repo18/Law Manual Page0308: Difference between revisions

Latest revision as of 07:16, 24 January 2019

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

ഈ താൾ 2018 -ലെ പഞ്ചായത്ത് റെപ്പോ നിർമ്മാണം യജ്ഞത്തിന്റെ ഭാഗമായി സൃഷ്ടിച്ചതാണ്.

വർഗ്ഗം:റെപ്പോയിൽ സൃഷ്ടിക്കപ്പെട്ട ലേഖനങ്ങൾ

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-THE KERALA PANCHAYAT RAJ ACT, 1994
+{{center|
-Panchayat can levy penalty/fine for violation of Rules and hence, Tribunal's finding is incorrect. It was also held that the Tribunal may admit a petition submitted within one month after prescribed time limit, if Tribunal is satisfied that there is sufficient reason for not submitting petition within time. Though Rule does not provide for filing of a separate petition for condonation of delay, it is always advisable to file a petition to condone delay so that Tribunal can satisfy itself that there was sufficient reason for not submitting petition within time. Revision filed without an application for condonation of delay, was defective and R. 11 would squarely be applicable to such a situation. Hence. Tribunal was not proper i dismissing the revision. Revision petition ought to have been returned giving petitioner an opportunity to re present the same along with an application to condone the delay. – Mallappally Grama Panchavath. Pathanamthitta v. Zeenath Beevi and Another - 2014 (3) KHC 32 : 2014 (3) KLT 161.
+''THE KERALA PANCHAYAT LAW MANUAL''}}
-In Unnikrishnan A. G. V. Commissioner of Excise, Tvm and Another the question of shifting of toddy shop and effect of Ordinance 62 of 2012 was considered. The Court held that if the toddy shop is in existence as on 25/11/2012, Panchayat cannot insist on obtaining a licence under the D&O Rules, 1996, upon shifting of the toddy shop. Notification issued under 1960 Act is superseded when D&O Rules, 1996 were notified. – Unnikrishnan A. G. v. Commissioner of Excise, Tvm and Another - 2014 (1) KHC 140: 2014 (1) KLJ 747.
+{{right|
-Village Panchayat cannot pass a resolution and take a blanket decision that it would not grant any fresh licence for conducting quarries on account of objection by people in the locality. Hence, an application seeking to establish a factory, workplace or other establishments, cannot be summarily rejected. Enquiry contemplated under S.233 is mandatory. For establishing quarry in which mechanical power or electrical power is used, it requires permission from Village Panchayat. Authority of Secretary is only to obtain reports from Inspector of factories, District Medical Officer, Divisional Fire Officer and place it before Village Panchayat. In an instance coming under R. 12(3)(d), Secretary can issue license in respect of
+Sec. 232}}
-s with machinery capacity having less than 5 HP, if he is of opinion that the factory or industrial establishment does not cause pollution. When S.232 of the Act gives power on the Secretary of Panchayat to issue licence to establish Rules have to be read as if the power is vested with the Secretary. The Village Panchayat or the President has no Authority in such a case. When an application is filed under S.232 of the Act, Secretary will be the only authority to decide whether the license could be granted or not - Notwithstanding the same, Village Panchayat has powers to grant or refuse permission under S.233 of the Act. If an application is submitted under S.232 of the Act read with D&O Rules, and a permission under S.233 is not required, Secretary is
-der application and pass appropriate orders. In matters coming under R.12(3)(d) of the D&O Rules also power is conferred on the Secretary. However when a composite application is submitted by a person under S.232 and 233, a decision to grant a licence or permission under S.233 is to be taken by the Village Panchayat. President is given the power to take any action in case of violation of the conditions of licence. - Kadaplamattom Grama Panchayat, Kottayam and Another v. Johny Roy - 2013 (3) KHC 857 : 2013 (3) KLT 1053 : ILR 2013 (4) Ker. 367. BH
+{{center|NOTES}}
-Government have framed the Kerala Panchayat Raj (Licensing of Dangerous Trade) Rules, 1996. As per Section 232, it is for the local body to notify that a particular activity is offensive or dangerous to human health or property and in such a case, without licence from the Executive Authority, no person can use any area for such purposes as are notified, without licence. This Court has taken the view that the word "offensive or dangerous to human life or health or property" are not to be construed in their ordinary sense and it need be only activities which are so considered by the Authority (See - Shaji v. State of Kerala). It is true that a mobile tower is not notified under Section 232 as such. But, we should have regard to the words used in Section 233 wherein the only indispensable requirements are the construction or establishment of any factory, workshop or workplace in which, no doubt, it must be proposed to employ steam power, water power or other mechanical power or electrical power. Nothing prevented the Legislature also indicating in Section 233 that it must be a factory, workshop or workplace to which Section 232 is applicable. The conspicuous omission to refer to the same and the width of the language employed in Section 233 leads us to hold that any factory, workshop or workplace, be it included in Section 232 or not, in which it is proposed to employ the steam power, water power, mechanical power or electrical power will attract Section 233 and permission must be sought and granted before construction or establishment - (Para 41) – 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 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.
-In the conspectus of all the decisions, the concepts and the definitions which we have referred to, we are of the view that a mobile tower would not be a "workplace" within the meaning of Section 233 of the Panchayat Raj Act or Section 448 of the Municipalities Act. As already noted, both enactments are of the year 1994 and they are patterned on the provisions of Section 97 of the Kerala Panchayat Act, 1960 and the corresponding provisions of the Municipalities Act, 1960. The word "Workshop" is found in the
+::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
+{{create}}