Panchayat:Repo18/Law Manual Page0319

NOTES

A machinery installed as a temporary measure for the purpose of a construction activity can also be termed as a portable machine. It is not a permanent fixture and it is definitely capable of being moved from one site to another site. The largeness of the machinery will not exclude it from the meaning of the word "portable" used in the Statute. If a concrete mixture is considered to be portable, a hot mix plant having a dimension, may be a little more than a concrete mixture, can also be treated as "portable". Therefore, we are of the view that the Panchayat cannot contend that an application under S.233 is required for the purpose of installing a hot mix plant which is used for preparation of hot mix for tarring purposes and that too with reference to construction of a High Way. - Janardhanan Nair v. K. V. Vijayamma and Others - 2016 (2) KHC 932: 2016 (2) KLT 735: 2016 (2) KLJ 787.

In Abdul Rahiman K K. v. Arakuzha Grama Panchayath, Moovattupuzha and Others wherein the existing quarrying licence was valid and the applicant obtaining all other statutory clearances from the concerned authorities, it was held that rejection of application for licence is not justified. In this regard it is relevant to note that the Court in Najeeb v. Shoukath Ali – 2015 KHC 3696 : 2015 (3) KLT 396 : 2015 (3) KLJ 536 has clarified a previous decision of the Division Bench in All Kerala River Protection Council v. State of Kerala, - 2015 (2) KHC 359 : 2015 (2) KLT 78: 2015 (1) KLD 679: 2015 (2) KLJ 157 : ILR 2015 (2) Ker. 409 in which it is held that after the judgment in Deepak Kumar v. Union of India - 2012 KHC 4150 : 2012 (4) SCC 629 : AIR 2012 SC 1386 : 2012 (4) KLJ 289 and the Government notification issued on 18/05/2012, no mining operation either by mining lease or mining permit is permissible without obtaining environmental clearance. However, the Division Bench has held that insofar as mining leases which were existing at the relevant time is concerned, environmental clearance was not required till the leases come for renewal. - Abdul Rahiman K. K. v. Arakuzha Grama Panchayath, Moovattupuzha and Others – 2015 (5) KHC 566: 2016 (1) KLT SN 46.

Quarry - Extraction of building stones - Exemption is granted for portable drilling machines and portable engines when used for construction purposes. For drilling machines used for other purposes, permission of Panchayat is necessary – Mathai John v. District Collector, Ernakulam and Others – 2015 (3) KHC 371 : 2015 (2) KLJ 853 : 2015 (3) KLT 195

When resolution passed by Grama Panchayat has decided to grant necessary licence, which is passed in exercise of powers under S.233(3) of the Act, it cannot reverse its earlier decision based on objections of people of locality received later. Applicant entitled to licence in physical form, if all other statutory formalities are complied with. objectors can take recourse by way of appeal or revision provided under S.276 of the Act and R.12(4) of Rules. - Siyad Hassan v. Marady Grama Panchayat and Another - 2015 (1) KHC 794 : 2015 (1) KLJ 752 : 2015 (1) KLT 961 : ILR 2015 (2) Ker. 190.

In St. Basil Industries India (P) Ltd., Ekm v. State of Kerala and Others, the petitioner submitted an application seeking permission for granite quarry which was refused after 45 days of receipt of application. The question that arose for consideration here was that whether the claim that there is deemed licence as decision was not taken within 45 days as stipulated by R. 12(3)(c) of Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules was sustainable. It was held that S.233 of Act deals with grant of permission for establishment of workplace/factory, enabling Panchayat to deal with application within 60 days. Prescription of shorter period in any Rules cannot prevail, and time limit stipulated under S.233(3) will prevail over R.12(3)(c) and hence, claim for deemed licence cannot be sustained. St. Basil Industries India (P) Ltd., Ekm v. State of Kerala and Others - 2014 (3) KHC 660 : 2014 (3) KLT 797.

In the Rules provided pursuant to sub-section (2) of Section 233 of the Kerala Panchayat Raj Act and Section 448 of the Kerala Municipality Act itself, the law contemplates the making of an application "before so constructing or establishing" in the case of Rule 12 and "Before beginning such construction or establishment" in Section 448 of the Municipality Act clearly relate to clause (a) of Section 233(1) of the Panchayat Raj Act and Clause (a) of Section 448 of the Municipality Act. In other words, the words "construct and establish" appear in conjunction with the words "factory, workshop or workplace". The impression that would appear to be generated would be that even in respect of installation of machinery, there is no separate application contemplated and the application is contemplated as a composite one at the time before the construction or establishment of the factory, workshop or workplace. This would appear to advance the case that the installation of "machinery" contemplated in both the Kerala Panchayat Raj Act and the Kerala Municipality Act, though stated to relate to "any premises" may have to take its context and colouring from the words 'factory, workshop or workplace", - Essar Telecom Infrastructure (P) Ltd. (M/s.) v. State of Kerala - 2011(2) KHC 171 (DB): 2011 (2) KLT 516: 2011 (2).KLJ 335..

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