Panchayat:Repo18/Law Manual Page0314
required, notwithstanding the lease granted under the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 and the Rules framed thereunder. So, licence/permission under the one Act is not a substitute for the licence/permission under the other Act. Having said by necessary implication that if the petitioner has all statutory clearances/permits/licences, it can walk into this Court, seeking police protection. Normally, it should approach the Civil Court against the obstruction, in view of the decision of the Division Bench of this Court in George v. Circle Inspector of Police, 1990 (1) KLT 741, wherein it was held that unless special-reasons are pleaded as to why the rem efficacious, a petition for police protection under Article 226 should not be entertained. (Para 13) – M/s. Gem Granites v. Deputy Supdt. of Police, Neyyattinkara and Others. – 2008 (1) KHC 909 (DB). [1995 KHC 379: 1995 (2) KLT 720: ILR 1996 (1) Ker. 206: 1995 (2) KLJ 589; (Para 11); 1990 KHC 161 : 1990 (1) KLT 741 : ILR 1990 (3) Ker: 718 : AIR 1990 Ker. 298; (Para 13) – Referred to.)
- Even though licence is obtained for running toddy shops under Abkari Act and Rules, a person needs to obtain licence from the Panchayat as well to run the toddy shop in the Panchayat area - Z - 2007 (4) KHC 116: 2007 (4) KLT 526.
- Section 74 [corresponding to S.210, 232 & 236 of the Panchayat Raj Act, 1994) – In the matter of default in payment of building tax due to the Panchayat, the rule enables the Magistrate Court to impose fine not exceeding twice the amount which may be due from the accused. But as per the limitation contained in Section 29(2) of Cr.P.C, Magistrate cannot impose a fine exceeding Rs. 5000/-. Subordinate legislation cannot enlarge the pecuniary jurisdiction of a Magistrate of First Class, from the limit fixed by Section 29 (2) of Criminal Procedure Code, 1973, which is Rupees 5000/-. In the light of the above bar on the pecuniary jurisdiction of the Trial Court, the above order of sentence imposing fine to the tune of Rupees 15,000 each on the accused has to be held as illegal. But at the very same time, after having found the accused guilty, they shall not go unpunished but, of course, subject to the above pecuniary limitation. But, still even in such event, the panchayat will not be benefited or compensated and the tax arrears due to the panchayat cannot be realised unless an order passed by the Court below by invoking Rule 26 (2) of the Rules. Thus, if the Trial Court, after evaluating the entire factual situation involved in the matter, invokes Rule 26 (2) and fixes an appropriate amount, the same will be sufficient to advance the intention behind the Rule and give effect for the same. Besides invoking Rule 26 (2) of the Rules, the Magistrate can also invoke Section 357 of CrPC-A.E.Damodaran and Others v. Special Grade Executive Officer and Another – 2007 (4) KHC 894. [2001 KHC 136: 2001 (1) KLT 517 (SC): 2001 (2) SCC 595 : AIR 2001 SC 567; (Paras 5, 8, 10, 12) - Referred to.]
- The dangerous and offensive trades for the purpose of the Rules need not necessarily be dangerous and offensive as understood in common parlance. The words have been given an artificial meaning under the Act and Rules. This will be evident from schedule 1 of the Rules. Production of Ayurvedic Medicines, running of hotel and tea shops, storing of water, fruits, flowers, etc. are also enumerated among dangerous and offensive trades. Therefore, the petitioners need not be felt aggrieved by the inclusion of private hospital as one among them. – Shaji v. State of Kerala - 2004 (1) KLT 118.
- Though the entrepreneur had obtained the necessary "No Objection. Certificate" from the environmental authorities, the Panchayat on consideration of the matter, was of the opinion that the decision not granting permission to install the metal crusher machine would be in the interest of the public and it ascribed 4 reasons as to why the Panchayat comes to the conclusion that it would not be in the public interest to grant such licence. Having regard to the parameters prescribed by this Court in exercise of power under Art. 226 of the Constitution of India against an order of a statutory authority, the High Court seriously erred in law in issuing the impugned direction. The Panchayat was fully justified in refusing to grant licence to the entrepreneur. - Action Council v. Benny Abraham – 2002 (2) KLT 228 (SC) [2001 (2) KLT 690 Reversed]
- When the Act provides for industrial use of a place in the Panchayat with licence and subject to conditions imposed in the licence with a view to protecting human life or health or property, is it open to the Panchayat or its President to arbitrarily refuse to grant permission/licence by merely stating that it would be against the interest of the public. We are of the clear view that they are certainly not clothed with unbridled powers under the Act and Rules. The provisions of the Act under Ss. 232 and 233 read with the Rules are not too vague to be understood by ordinary man. Thus having understood from the statute what is prohibited and what is permitted and having taken steps in furtherance of what is permitted and what is not prohibited, the authorities cannot arbitrarily deny permission/licence. That would amount to violation of Art. 19(1)(g), which is subject only to reasonable restriction. That reasonable restriction which is in fact a limitation on the enjoyment of a right shall not be arbitrary or excessive and beyond what is required in the interest of the public. The statutory indication under the Act and Rules in the matter of permission/licence is only that it shall not be offensive or dangerous to human life, health or property.