PICH ROWTHER HAMEEDU ROWTHER Vs. PAMPADY FANCHAYATH
HIGH COURT OF KERALA
PICH ROWTHER HAMEEDU ROWTHER
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(1.) THESE are two petitions under Article 226 of the Constitution filed by two different persons, calling in question the restraint imposed more or less similarly, on their trade or business by two different Panchayat authorities respectively.
(2.) THESE Panchayats have been constituted by Government under the Tranvancore-Cochin Panchayats Act 2 of 1950 with a view to make better provisions (or the administration of village affairs. Their functions, powers and property are dealt With in Chapter 3 of the Act under Ss. 43 to 51. Of these it is enough for us to note the general provision in Section 44 and also the Clause (d) thereof, as follows: Subject to such rules as may be prescribed a Panchayat shall also make arrangements for carrying out the requirements of the panchayat area in respect of the following matters, namely :- (d) control of offensive and dangerous trades. Chapter 5 contains provisions as to public safety, convenience and health under various sub-heads. It is necessary to note the sub-head "industries" and Section 80 under it. Section 80 consists of five clauses. The first three clauses which alone concern us run as follows: (1) The panchayat may, with the previous approval of the Director, notify that no place within the limits of the panchayat area shall be used for any of the purposes specified in the rules made in this behalf being purposes Which, in the opinion of Government, are likely to be offensive or dangerous to human life or health or property, without a licence from the executive authority and except in accordance with the conditions specified therein; Provided that no such notification shall take effect until sixty days from the date of its publication, (2) The owner or occupier of every such place shall, within thirty days of the publication of such notification apply to the executive authority for a licence for the use of such place for such purposes. (3) The executive authority may by an order and under such restrictions and conditions as he thinks fit grant or refuse to grant such licence. The statutory functionary referred in Clause (1) is defined under Section 2 (4) as an officer of Government. Then Chapter 6 deals generally with licences and permissions and Chapter 7 contains the usual provisions reserving powers respectively to Government to make rules and to the Panchayat under Section 99 with the approval of the Director, to make bye-laws, among other things for (vii) for the sanitary control and supervision of places used for any of the purposes notified under Section 80 and of any trade or manufacture carried on there :
(3.) NOW it is conceded by both the respondent panchayats that no rules have so far been prescribed under Section 44 Clause (d), with reference to the control of offensive and dangerous trades. It is also conceded that there has been no notification published or rules made as contemplated by Section 80 Clause (1 ). Similarly also that no byelaws have been framed under Section 99 Clause (vii) of the Act.;
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