Back
JAMMU & KASHMIR BRICK KILNS (REGULATION) ACT, 1990
JAMMU & KASHMIR BRICK KILNS (REGULATION) ACT, 1990
ACT NO. XXII OF 1990
PREAMBLE
An Act to regulate the establishment of Brick Kilns in the State and to provide for matters connected therewith.
Enacted by the Governor in the Forty-first Year of the Republic of India.
In exercise of the powers vested under Proclamation No. P-l/90 of 1990 dated 19th January, 1990, issued under section 92 of the Constitution of Jammu and Kashmir, the Governor is pleased to enact as follows:—
Section 1 - Short title and commencement
(1) This Act may be called the Jammu and Kashmir Brick Kilns (Regulation) Act, 1990.
(2) It shall come into force at once.
(3) The expiry of this Act, in terms of sub-section (4) of section 92 of the Constitution of Jammu and Kashmir, shall not affect the previous operation of, or anything duly done under this Act.
Section 2 - Definitions
In this Act, unless the context otherwise requires,-
(a) "brick" means any piece of burnt clay, having geometrical shape fired in a kiln;
(b) "consumer" means a person permitted to acquire bricks under this Act for private or public consumption and not for sale;
(c) "dealer" means a person carrying on the business of selling bricks;
(d) "defunct kiln" means-
(i) a kiln in existence at the commencement of this Act but in which brick manufacturing operations have not been carried on or are not carried on, for a continuous period of one year prior to such commencement; and
(ii) a kiln whether established before or after such commencement in which brick manufacturing operations are not carried on for a continuous period of one year at any time after the commencement of this Act;
(e) "existing kiln" means a kiln carrying on bricks manufacturing operations at the commencement of this Act and includes a kiln in existence at such commencement which is not carrying on brick manufacturing operations but in which bricks manufacturing operations have been carried on at any time within a period of one year prior to such commencement:
Provided that if in such kiln brick manufacturing operations are not carried on within a period of one year after the commencement of this Act, such kiln shall, on the expiry of the said period of one year cease to be an existing kiln and be deemed to be a defunct kiln;
(f) "kiln" means a structure used for firing bricks;
(g) "licensing authority" means an officer appointed as such under section 3;
(h) "manufacturer" means a person engaged in the production or manufacturing of bricks in a kiln;
(i) "new brick kiln" means a kiln other than an existing kiln or a defunct kiln; and
(j) "prescribed" means prescribed by rules made under this Act.
Section 3 - Appointment of Licensing Authority
The Government may, by notification in the Government Gazette,-
(a) appoint such persons, being Gazetted Officers of the Government as it thinks fit to be the licensing authorities for the purposes of this Act; and
(b) define the limits within which such a licensing authority shall exercise the powers conferred on a licensing authority by or under this Act.
Section 4 - Grant of licence
(1) (a) Any person desiring to establish a brick kiln in any area of the State shall make an application to the licensing authority for grant of a licence for the establishment of a new brick kiln and for commencing brick manufacturing operations there; and any owner of a defunct kiln shall make a like application to the licensing authority for grant of a licence for recommencing the brick manufacturing operations in such kiln;
(b) any owner of an existing kiln shall make an application to the licensing authority for the grant of a licence for carrying on brick manufacturing operations in that kiln.
(2) Every application under sub-section (1) shall be made in the prescribed form and shall contain the particulars regarding the location of the brick kiln, the size and type thereof and such other particulars as may be prescribed.
(3) If, on receipt of an application for grant of licence, the licensing authority is of the opinion that it is necessary so to do for ensuring adequate supply of bricks, it may, subject to the provisions of sub section (4)
(a) grant the licence specifying therein the period within which the kiln is to be established or, as the case may be, the kiln is to recommence brick manufacturing operations;
(b) in the case of the existing kiln grant the licence for carrying on brick manufacturing operations in that kiln, on such conditions (including such conditions as to the improvements to existing machinery, replacement of existing machinery and use of improved methods of brick manufacturing as may be necessary to eliminate air and water Pollution) as may be prescribed.
(4) Before granting licence under sub-section (3) the licensing authority shall make or shall cause to make a full and complete investigation in the prescribed manner in respect of the application having due regard to -
(a) the suitability of the locality wherein the proposed kiln is to be established;
(b) the number of kilns operating in the area;
(c) such kiln is not detrimental to the health of general public or to the crops, gardens or nurseries in close proximity;
(d) such other particular as may be prescribed:
Provided that no licence shall be granted for the establishment of a brick kiln or for commencing brick manufacturing operations in any cultivable land except where improvement can be made in such land for the purpose of irrigation as a result of leveling.
(5) A licence granted under this section shall be valid for a period of one year from the date of its issue and may be renewed for a period of one Year at a time.
(6) In granting licence under this section the licensing authority shall give preference to a defunct kiln over a new brick kiln.
Section 5 - Fee for Licence
The fee payable for a licence shall be rupees five thousand and that for renewal of licence rupees two thousand per annum.
Section 6 - Revocation, suspension of licence
(1) If the licensing authority is satisfied, either on a reference made to him in this behalf or otherwise, that-
(a) a licence granted under section 4 has been obtained by misrepresentation as to an essential fact; or
(b) the holder of a licence has, without reasonable cause, failed to comply with the conditions subject to which the licence has been granted; or
(c) the holder of the licence has suspended the manufacture and production of bricks without any reasonable cause in order to, create artificial scarcity; or
(d) the holder of a licence has contravened any of the provisions of this Act or the rules made thereunder;
(e) the holder of a licence has been prosecuted and convicted under section 15, of this Act;
then, without prejudice to any other penalty to which the holder of the licence may be liable under this Act, the licensing authority may, after giving the holder of the licence an opportunity of showing cause, revoke or suspend the licence or forefeit the sum, if any, or any portion thereof deposited as security for the due performance of the conditions subject to which the licence has been granted and may also black list the owner of a brick kiln debarring him from issuance of a licence for a period up to five years.
Section 7 - Restrictions on establishment of brick kilns
(1) No person shall, after the commencement of this Act, establish any new brick kiln except under and in accordance with a licence granted under section 4.
(2) No owner of a kiln shall, after the commencement of this Act, carry on brick manufacturing operations except under and in accordance with a licence granted under section 4:
Provided that nothing in this sub-section shall apply to an existing kiln for such period as may be specified in this behalf by the Government by notified order.
(3) No owner of a brick kiln-
(a) in respect of which a licence has been granted under section 4, shall carry on brick manufacturing operations in that kiln after the licence has ceased to be valid;
(b) in which the licence has been revoked or suspended under section 6, shall carry on brick manufacturing operations in that kiln after the revocation or, as the case may be, during the period for which the licence has been suspended;
(c) shall without the previous permission of the licensing authority, change the location of kiln in respect of which a licence has been granted under section 4;
(d) shall effect any expansion of the kiln except with the previous permission of the licensing authority where such expansion is not in accordance with terms and conditions of the licence granted under this Act.
Explanation.— For the purpose of clause (a) of this sub-section the period of validity of a licence shall not be deemed to have expired, if an application for its renewal is pending before the licensing authority.
Section 8 - Power of inspection
The licensing authority or any other person authorised by the Government in this behalf shall have the right-
(i) to enter and inspect any brick kiln;
(ii) to seize or order the production of any document, book, register or record in the possession of owner or any person having control of or employed in connection with any brick kiln if he has reason to believe that contravention of the provisions of this Act or the rules made there under has been or is being or is about to be committed;
(iii) to stop and inspect any vehicle or animal in which bricks are being carried for sale, supply or storage or for any other purpose; and
(iv) to seize bricks found in the premises of any person or any vehicle or on animal in respect of which he has reason to believe that contravention of the provisions of this Act or the rules made there under has been or is being or is about to be committed.
Explanation.— The provisions of section 102 and 103 of the Code of Criminal Procedure, Samvat 1989 relating to search and seizure shall apply under this section.
Section 9 - Fixation of price
The Government may, from time to time, by notification in the Government Gazette, fix the maximum price of bricks for the whole State or for different areas thereof and different prices may be fixed for different kinds of bricks having regard to the weight, size and compressive strength of bricks.
Section 10 - Restriction on sale by manufacturer and dealers
(1) No manufacturer or dealer shall sell or offer for sale or otherwise dispose off, to any person bricks for a price or at a rate exceeding the maximum fixed under section 9 in this behalf.
(2) Where bricks are sold, offered for sale or otherwise disposed off in contravention of sub-section (1), by a manufacturer or dealer or through any person employed by him or acting on his behalf, such person and also unless they prove that they exercised due deligence to prevent such contravention, the manufacturer "or dealer, as the case may be, and any person having the charge on behalf of the manufacturer or dealer of the place where such contravention occurred, shall be liable to punishment provided by section 15, whether or not they were present when the contravention occurred.
Section 11 - Refusal to sell
No manufacturer or dealer shall refuse to sell bricks to any person if he is holding sufficient stock for such sale.
Section 12 - Memorandum of sale to be given
(1) Every dealer or manufacturer selling bricks to any person shall give to the purchaser at or before the time of delivery of the bricks a memorandum containing the particulars of the transaction.
(2) The Government may, by notification in the Government Gazette, exempt specific areas, classes of manufacturers or of dealers from the operation of this section.
Section 13 - Delegation of powers
The Government may, by notification in the Government Gazette, direct that the powers exercisable by it under section 7(2) or 9 shall, subject to such conditions, if any, as may be specified in the direction, be exercisable also by such offer or authority subordinate to it, as may be notified.
Section 14 - Appeals
(1) Any person aggrieved by a decision of the licensing authority may, within a period of thirty days from the date on which the decision is communicated to him, prefer an appeal to an authority as may be appointed by the Government in this behalf:
Provided that the Appellate Authority may entertain the appeal after the expiry of the said period of thirty days but not later than sixty days if he is satisfied that the appellant was prevented by sufficient cause from filling the appeal in time.
(2) On receipt of an appeal under sub-section (1) the appellate authority shall after giving the appellant an opportunity of being heard, dispose off the appeal as expeditiously as possible.
Section 15 - Penalties
(1) If any person contravene or abets contravention of any of the provisions of this Act or the rules made there under he shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to ten thousand rupees, or with both.
(2) If the person punishable under sub-section (1) is a company or other body corporate, every Director, Manager. Secretary, other officer or agent thereof, shall, unless he proves that the contravention took place without his knowledge and that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention.
Section 16 - Cognizance of offence
No court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by licensing authority or any person duly authorised by the Government in this behalf.
Section 17 - Licensing authority to be public servant
The licensing authority and every person duly authorised to discharge any duties imposed on him by or under this Act shall be deemed to be public servant within the meaning of section 21 of the State Ranbir Penal Code.
Section 18 - Power to exempt
The Government may by general or special order exempt any class of persons from the operation of all or any time suspend or cancel such exemption.
Section 19 - Protection of action taken under the Act
No suit, prosecution or other legal proceeding shall lie against any officer or authority for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under. No suit or other legal proceedings shall lie against the Government for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made there under.
Section 20 - Power to make rules
(1) The Government may, by notification in the Government Gazette, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) the form of application for grant of licence under section 4 and the particulars it may contain;
(b) the manner in which an investigation is to be made in respect of an application for a licence and matters to be taken into account in granting or refusing a licence;
(c) the form of application for renewal of licence and the particulars it may contain;
(d) the form of licence which may be granted;
(e) the conditions subject to which the licence may be granted or renewed;
(f) the form and manner in which appeals may be filed under section 14 and the procedure to be followed by Appellate Authority in disposing of appeals; and
(g) any other matter which has to be prescribed under this Act.
Section 21 - Power to give directions
The Government may, from time to time, give directions to the licensing authority for carrying out purposes of this Act and the rules made there under.
Section 22 - Repeal and saving
If immediately before the commencement of this Act, there is in force in the State of Jammu and Kashmir any law and order relating to the matter regulating under this Act that law or order shall stand repealed.
