Sri Jagadeesh Shenoy vs State Of Karnataka on 2 November, 2018

[Cites 3, Cited by 0]

Karnataka High Court

Sri Jagadeesh Shenoy vs State Of Karnataka on 2 November, 2018

Bench: B.Veerappa

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 2ND DAY OF NOVEMBER, 2018

                          BEFORE

            THE HON'BLE MR. JUSTICE B.VEERAPPA

          WRIT PETITION NO.48061/2018(GM-POLICE)

BETWEEN:

SRI JAGADEESH SHENOY,
S/O MADHAVA SHENOY,
AGED ABOUT 59 YEARS,
R/AT STATION VIEW,
MOODABIDRI,
D.K DISTRICT-574 227.
                                            ... PETITIONER

(BY SRI HAREESH BHANDARY, ADVOCATE FOR
SRI SUBHASH KOWDICHAR, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       REPESENTED BY ITS SECRETARY,
       DEPT.OF HOME AFFAIRS,
       VIDHANA SOUDHA,
       BANGALORE-01.

2.     COMMISSIONER OF POLICE
       MANGALORE,
       D.K DISTRICT-575 001.

3.     POLICE INSPECTOR
       O/O MUDIBIDRE POLICE STATION,
       D.K. DISTRICT-574 227
                                         ... RESPONDENTS
(BY SRI VIJAYKUMAR A. PATIL, ADVOCATE)
                                     2



        THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ENDORSEMENT DATED 20.10.2018 ISSUED BY R-2
VIDE ANNEXURE-C AND ETC.,

        THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                              ORDER

The petitioner has filed the present writ petition seeking for a writ of certiorari to quash the impugned endorsement dated 20.10.2018 bearing No. M/A/J/100/Ma.No/2018 issued by the 2nd respondent vide Annexure-C and for a writ of mandamus directing the 2nd respondent to renew the license of the petitioner in Form LE-5 to possess and sell fireworks and crackers pursuant to the application vide Annexure-B.

2. It is the specific case of the petitioner that petitioner is having licence to run a fireworks shop for sale of manufactured fire works of class-7, Divison-2, Sub-Divison - 3 2, 400 K.G. of Chinese crackers and sparkles and 50 kg of manufactured fireworks which was valid upto 31.03.2017. On 28.02.2018, petitioner made a request to the 1st respondent - authority to renew the license No.45/93 and paid the requisite fee as contemplated under Rule 112 of the Explosives Rules, 2008. The 1st respondent without following the procedure as contemplated under the provisions of 116 of the Explosive rules issued the impugned endorsement on 28.10.2018. Hence, the petitioner is before this Court for the relief sought for.

3. I have heard the learned counsel for the parties to the lis.

4. Sri Hareesh Bhandary, learned counsel for the petitioner reiterating the grounds urged in the petition has contended with vehemence that though the petitioner is having licence to run firework shop from 1993 upto 31.03.2017 by renewing periodically, inspite of request made on 28.02.2018 by paying the requisite fee as contemplated, 4 issued endorsement rejecting the application mainly on the ground that the premises is situated within the vicinity of shopping place thickly populated area. The said endorsement issued by the 2nd respondent is in utter violation of Rule 116(5) of the Explosives Rules, 2008. Therefore, he sought to quash the impugned order passed by the 2nd respondent by allowing the present writ petition.

5. Per contra, Sri Vijay Kumar A. Patil, learned AGA., submits that the very writ petition is filed against the impugned order passed by the 2nd respondent and is not maintainable as the petitioner has got an alternative remedy of appeal under the provisions of 6(F) of the Explosive Act, 1884 and he further sought to justify the endorsement mainly on the ground that the premises for which the petitioner sought to renew the licence is within the vicinity of shopping place and thickly populated area. Therefore, he sought to dismiss the writ petition.

6. Having heard the learned counsel for the parties, it is an undisputed fact that the petitioner was having licence to run a firework shop for sale of manufactured fire works in the same premises from 1993 to 2017 for which the petitioner made a representation on 28.02.2018 to renew the licence No.45/93. The 2nd respondent while rejecting the application for renewal of the licence, has not provided any opportunity of being heard as contemplated under Rule 116(5) of the Explosives Rules 2008, which reads as under:

116. Refusal to amend or renew a licence -

(1) xxx (2) xxx (3) xxx (4) xxx (5) Before refusing renewal of a licence under the rule, the holder of the licence shall be given an opportunity of being heard. 6

7. On the said short ground alone, the impugned order passed by the 2nd respondent dated 20.10.2018 at Annexure-C cannot be sustained and the matter requires for re-consideration from the 2nd respondent afresh after giving an opportunity to the petitioner of being heard as contemplated under the provisions of Rule 116(5) of the Rules.

8. In view of the aforesaid reasons, writ petition is allowed and the impugned order passed by the 2nd respondent is hereby quashed. The matter is remanded to the 2nd respondent for fresh consideration.

9. The petitioner shall appear before the 2nd respondent on 03.11.2018 and produce all the relevant documents in support of his case. The 2nd respondent shall consider the documents to be produced by the petitioner and consider the report of the Karnataka Fire and Safety Department dated 08.09.2018 and pass appropriate orders on or before 05.11.2018.

10. In case the petitioner fails to appear before the 2nd respondent on 03.11.2018 and not produce any documents, it is for the 2nd respondent to proceed in accordance with law.

Ordered accordingly.

Sd/-

JUDGE BS

Unlock Advanced Research with PRISMAI

Karnataka High Court