Kerala High Court
Anvar Sadik vs Additional District Magistrate on 13 November, 2020
Equivalent citations: AIRONLINE 2020 KER 1026
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A.No. 1477/2020 : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942
WA.No.1477 OF 2020
AGAINST THE JUDGMENT IN WP(C) 8927/2020(M) OF HIGH COURT OF KERALA
APPELLANT/S:
ANVAR SADIK,
S/O THE LATE SHAHUL HAMEED, DARUL SALAM, NJARAKKAL
KIZHAKKETHIL, VADAKKEVILA VILLAGE, VADAKKEVILA CHERI,
PALLIMUKKU, KOLLAM DISTRICT-691 011.
BY ADVS.
SRI.T.A.SHAJI (SR.)
SRI.S.ABHILASH VISHNU
SRI.ATHUL SHAJI
SHRI.ANWIN JOHN ANTONY
RESPONDENTS/RESPONDENTS 1 TO 4 IN THE W.P.(C):
1 ADDITIONAL DISTRICT MAGISTRATE,
CIVIL STATION, KANKATHU MUKKU, KOLLAM, PIN-691 013.
2 COMMISSIONER OF POLICE,
KOLLAM CITY, KOLLAM, PIN-691 001.
3 STATE OF KERALA,
REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, REVENUE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
4 AJEE RAJAPPAN,
AGED 46 YEARS
S/O RAJAPPAN, ADVOCATE , KOLLAM, RESIDING AT ARADHANA,
KAVANAD P.O.KOLLAM FROM RAJ VIHAR, NENMENI,
MANDROTHURUTH, KOLLAM
R1 TO R3 BY SRI. TEK CHAND SR GOVERNMENT PLEADER
R4 BY SRI. B.MOHANLAL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.11.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No. 1477/2020 : 2:
'CR'
Dated this the 13th day of November, 2020.
JUDGMENT
SHAJI P. CHALY,J.
The captioned writ appeal is filed by the petitioner in the writ petition challenging the judgment dated 10.11.2020 of the learned single Judge in W.P.(C) No. 8927 of 2020, whereby the writ petition was dismissed holding that Ext.P17 order dated 02.03.2020 of the Additional District Magistrate, Kollam declining licence for storing and selling fancy fire works as per the provisions of Rule 83 of the Explosives Rules, 2008 ('Rules, 2008' for short) does not suffer from any illegality or vice of arbitrariness liable to be interfered with by the writ court. It is, thus, challenging the correctness and legality of the said judgment of the learned single Judge, this writ petition is filed.
2. The subject issue relates to the rejection of an application submitted by the appellant seeking licence for the storage and sale of 450 kgs. of fancy fireworks items and Chinese crackers in the building in which the petitioner's father was granted licence to carry on the said business.
3. Brief material facts for the disposal of the appeal are as W.A.No. 1477/2020 : 3: follows:
According to the appellant, he along with his father was running a shop selling fancy fireworks items and Chinese crackers for the past 35 years in the building in which the appellant's father was granted with a licence which was valid till 31.03.2020. Appellant's father died on 09.01.2019 and thereupon, the licence was surrendered in accordance with the Rules, 2008, so as to secure a fresh licence to conduct the business in the very same shop room for which application in form AE-5 as per Rules, 2008 was submitted along with consent letters from other legal heirs. Though the Tahsildar and the District Fire Officer, after due enquiries, forwarded the report favourably recommending the issue of licence after ensuring the security parameters, the District Police Chief, Kollam made a report stating that it was not advisable to issue licence. Thereupon, relying on the report of the District Police Chief, the Additional District Magistrate i.e.., the first respondent, rejected the application made by the appellant. The said rejection was challenged by filing W.P.(C) No. 24318 of 2019, which was disposed of as per Ext.P16 judgment dated 28.10.2019 directing the first respondent to pass fresh orders after considering the issue as to whether the premises offered by the appellant is one conforming to Rule 83 of the Rules, 2008. The Additional District W.A.No. 1477/2020 : 4: Magistrate, in accordance with the directions issued by this Court in the earlier round of litigation as specified above, passed an order dated 02.03.2020 rejecting the application for licence stating that the requirement under Rule 83(4)(a) of the Rules, 2008 has not been complied with by the appellant disabling the appellant to secure license under Rules, 2008. It was challenging the veracity and legality of the said order, the writ petition leading to the appeal was preferred by the appellant. The learned single Judge, as per the judgment impugned, dismissed the writ petition stating that since the Additional District Magistrate has stated that the rear door of the shop is opening towards a toilet, it cannot be considered as an opening to an open space and therefore, it was not satisfying the requirements of Rule 83(4)(a) of the Rules, 2008.
4. The paramount contentions advanced by the appellant in this appeal is that the learned single Judge failed to consider the fact that as per Ext.P16 judgment, almost all the objections raised earlier were set at naught by an inter party judgment and the matter was remanded only for the purpose of examining whether the shop in question is conforming to Rule 83 of the Rules, 2008. According to the appellant, the only requirement of the Rule is that the emergency exit shall open to an open air and the said condition is fully met. It is also W.A.No. 1477/2020 : 5: submitted that the appellant had produced photographs of the area showing the distance and asserted that the distance between the toilet and the emergency exit is 2.6 meters, which is not controverted by the Additional District Magistrate by filing an affidavit, despite seeking time to file an affidavit on the particular fact. It is also submitted that the learned single Judge failed to appreciate the fact that the appellant along with his father was running a fireworks shop for the past 35 years in the same building on the basis of the licence granted by the authority under the Rules, 2008. It was valid even after the death of the father of the appellant up to 31.03.2020. Therefore, it is contended that if not for the death of the appellant's father, the appellant along with his father could have legitimately carried on with the fireworks shop for more than an year till the expiry of licence, which was validly obtained to conduct the business in the room in question. That apart, it is predominantly contended that the learned single Judge had failed to take into account the reports submitted by the Tahsildar and Divisional Officer of Fire and Rescue Services and also the fact of total absence of any objection by the adjacent owners as gathered by the Revenue Authorities. Apart from the same, other contentions are also raised.
5. We have heard the learned senior counsel appeared for the W.A.No. 1477/2020 : 6: petitioner Sri. T.A. Shaji assisted by Adv. Athul Shaji, learned Senior Government Pleader Sri. Tek Chand and Adv. B. Mohanlal for the 4 th respondent one Ajee Rajappan who was additionally impleaded .
6. The learned single Judge, after taking into account the contentions advanced by the respective parties and appreciating the law on the point, has rendered the following findings at paragraphs at 14 to 17 of the judgment:
14. The application of the petitioner for issuance of LE-5 licence under the Explosives Rules stands rejected by the 1st respondent as per Ext.P17. Ext.P17 would show that the 1st respondent has personally visited the area and inspected the shop and the 1st respondent found that the emergency exit of the shop is opening towards the toilet of nearby Mosque. Therefore, the shop does not satisfy the criteria laid down by Explosives Rules, 2008. It is for the said reason that the application of the petitioner stands rejected.
15. The Explosives Rules have been framed by the Central Government in exercise of the powers conferred under the Explosives Act. Rule 83 of the Explosives Rules, 2008 reads as follows:-
"83. Explosives permitted for possession and sale from shop (1) No explosives, other than fireworks, [gun powder and small arm nitro-compound], permitted in licence shall be stored in a shop for possession and sale. (2) Construction of shop The shop shall be constructed of a brick, stone or concrete and the shop shall be closed and secured so as to prevent unauthorized person from having access thereto. (3) The premise shall have storage area not less than nine square metres and not more than twenty-five square metres. (4) The shop shall- (a) be located on the ground floor of a building completely separated from other parts of the building by substantial wall having independent entrance and emergency exit from open air and having doors opening outwards, if applicable; (b) not be situated in the sub-level or basement or mezzanine floor; (c) not be situated under the upper W.A.No. 1477/2020 : 7: [floors] used for the purpose of dwelling; (d) not be situated under or nearby any staircase or lift; (e) be accessible for fire fighting; and (f) have no electrical apparatus or battery or oil lamp or similar equipments capable of producing spark or ignition and all electrical wiring in the shop be fixed and effectively sealed or conduited or mechanically protected; the main switch or circuit breaker be provided at the immediate accessible position outside the premises."
Therefore, it is evident that no explosives licence can be granted to an applicant if the shop does not have independent entrance and emergency exit from open air and having doors opening outwards. The specific case of the respondents is that the emergency exit existing on the rear side of petitioner's shop opens towards a toilet of nearby Mosque and hence the said door is not opening from open air.
16. The 2nd respondent-Commissioner of Police has filed a statement disclosing that the shop of the petitioner is in a commercial complex situated in a crowded area, hundreds of people visiting the area for various purposes. The 2nd respondent has specifically stated that the backside of the shop opens towards the toilet of a Mosque. From Ext.P17, it can be seen that the 1st respondent-Additional District Magistrate has personally inspected the shop and has found that the emergency exit of the shop is opening towards toilet of the adjacent Mosque. In short, the emergency door of the shop of the petitioner is not opening towards open air, which is a mandatory requirement under Rule 83 of the Explosives Rules, 2008.
17. In the circumstances, the application of the petitioner for issuance of LE-5 licence under the Explosives Rules, 2008 is not liable to be granted. The rejection of the application of the petitioner as per Ext.P17 by the Additional District Magistrate is therefore perfectly justified.'
7. The sole question emerges for consideration is whether any manner of interference is warranted in the impugned judgment of the learned Single Judge . The subject issue revolves around Rule 83 of the Rules, 2008, which deals with explosives permitted for possession W.A.No. 1477/2020 : 8: and sale from shop and sub-Section (1) thereto stipulates that no explosives, other than fireworks, gun powder, small arm nitro compound and safety fuse, permitted in licence shall be stored in a shop for possession and sale. Sub-Sections (2) and (3) require the shop room to be constructed in a specified manner, and the area required for storing the fireworks respectively. Sub-Section (4) deals with the manner in which the shop shall be situated and clause (a) stipulates inter alia that the shop shall be located on the ground floor of a building completely separated from other parts of the building by substantial walls having independent entrance and emergency exit from open air and having doors opening outwards, if applicable.
8. It was taking into account Section 83(4)(a) that the Additional District Magistrate declined to grant licence to the appellant. The order of the Additional District Magistrate dated 02.03.2020 reads thus:
PROCEEDINGS OF THE ADDITONAL DISTRICT MAGISTRATE, KOLLAM (Present: P.R. Gopalakrishnan) No. M/7/155404/19 Dated: 02.03.2020 Sub: Explosives Act and Rules-LE5 Licence -Application of Sri. Anvar Sadik- Judgement of the Hon'ble High Court of Kerala in W.P.(C) No. 24318/2019 examined Rule 84-Application for license rejected-Reg.- Ref:
1. Judgement dated 28.10.2019 of the Hon'ble High Court of Kerala in W.A.No. 1477/2020 : 9: W.P.(C) No. 24318 of 2019.
2. Application dated 14.01.2019submitted by Sri. S.M. Anvar Sadik, S/o. Sri. M. Shahul Hammed, Darul Salam, Njarakkal Kizhakethil, Vadakkevila Village, Kollam.
3. Proceedings No.K.Dis/DCKLM/1052/19/M7 dated 20.08.2019 of the Additional District Magistrate.
4. Order dated 05.09.2019 of the Hon'ble High Court of Kerala in W.P. (C) 24318/2019.
5. Proceedings No.M7-155404/19 dated 07.09.2019 of the Additional District Magistrate.
6. Order dated 04.10.2019 of the Hon'ble High Court of Kerala in W.P. (C) 24318 OF 2019.
7. Proceedings No. M7-155404/19 dated 11.10.2019 of the Additional District Magistrate.
8. Order dated 17.10.2019 of the Hon'ble High Court of Kerala in W.P. (C) No. 24318 of 2019.
9. Proceedings No.M7-155404/19 dated 21.10.2019 of the Additional District Magistrate.
As per ref. 2nd cited, Sri. Anvar Sadik has filed application for possession and sale of 450 Kgs. of manufactured fire works in the building No.MC XVII/3030(KMC 46/3428) of Kollam Corporation in the land comprised in Resurvey 54 of Block No.177 of Kollam, East Village of Kollam Taluk and as per Ref. 3rd cited the same has been rejected based on the report of the District Police Chief and on satisfying that there is threat to the life and property of the public.
As against the proceedings in ref. 3rd cited, the applicant filed W.P.(C) No. 24318/2019 before the Hon'ble High Court and by interim order vide ref. 4th cited it was directed that the applicant shall be given provisional licence for 1 month for the sale of 450 Kgs. of low intensity firework items. Based on W.A.No. 1477/2020 : 10: that, as per ref. 5th cited, he has been granted provisional licence in Form LE-5, vide Licence No.01/19 for a period of 1 month from 08.09.2019 to 07.10.2019. As the period of the licence was to expire on 07.10.2019 the same was directed to be extended for a further period of 2 weeks as per ref.6 th cited.
Accordingly, the provisional licence No.1/19 in Form LE-5 was extended from 08.10.2019 to 21.10.2019 for a period of 2 weeks as per ref. 7 th cited. Since the period of the said provisional licence was to expire on 21.10.2019, it was further ordered to be extended by the court as per ref. 8 th cited. Based on that the LE 5 provisional licence No. 1/9 was further extended vide ref. 9th cited for the period from 21.10.2019 to 23.10.2019 for 2 days.
Subsequently, by judgment dated 28.10.2019 in W.P.(C) No. 24318/2019, this Hon'ble Court directed to consider whether the building is in conformity with Rule 83 of the Explosives Rules, 2008 for the sale of fireworks items. The property (building) which is the subject matter of the application was inspected by the Additional District Magistrate. The Additional District Magistrate is satisfied that the emergency exit of the building is opening towards the toilet of the nearby Mosque and hence, Rule 83(4)(a) of the Explosives Rules is not complied with. Subsequently, after hearing the applicant on 18.02.2020 under Rule 116(5) of the Explosives Rules, it is ordered as follows:
W.A.No. 1477/2020 : 11:
ORDER As per Rule 83(4)(a) of the Explosive Rules, 2009, the shop room for the sale of firework items shall have special entrance and emergency exit to open space. However, in this case, the emergency exit of the shop room opens towards the toilet of the nearby Mosque and hence it is not in accordance with Rule 83(4)(a). Hence, it is ordered by rejecting the application for licence under Section 6C(c) of the Explosives Act, 1884 and Explosives Rules 116. The order of the Hon'ble High Court in the judgment dated 28.10.2019 in W.P. (C) No. 24318/2019 is complied with accordingly.
sd/-
Additional District Magistrate
9. Therefore, according to the Additional District Magistrate, the emergency exit opens towards the toilet of a nearby mosque and hence, it is not in accordance with Rule 83(4)(a) of the Rules, 2008. The main contention advanced by the learned senior Counsel for the appellant is that as per Ext.P12 report of the District Fire Officer, Fire and Rescue Services, Kollam, it is clearly specified that there is no hindrance standing in the way so far as the Fire Department is concerned so as to grant licence to the appellant.
10. On a reading of Ext.P12, what we could gather is that the District Fire Officer conducted an enquiry and it was found that there exists a motorable road leading to the building in question, which is fit W.A.No. 1477/2020 : 12: for fire and rescue vehicles and on further inspection, it was found that the building is equipped with fire fighting facilities and it has two doors and that the room did not have any electrical main switch board. Therefore, according to the District Fire Officer, in the light of the aforementioned findings on inspection for the purpose of the report as is sought for, the application submitted by the appellant can be considered on the basis of the conditions recited thereunder. The conditions contained under Ext.P12 reads thus:
1. All firefighting equipment installed in the building must be operational at all times.
2. Electric connections in the said building room to be avoided to he maximum extent possible and such connections are adequately insulated.
3. Usage of electric plug points inside the said building room to be completely avoided.
4. Storage of manufactured crackers beyond permissible limits is strictly prohibited.
5. "No smoking" signs must be placed inside in building room in both English and Malayalam.
6. Both doors of the said building room must be kept usable at all times. No modifications are permitted to the doors.
7. The shop building must not be used for purposes other than sale of crackers.
8. The licence granted will be valid for a period of one year.
Therefore, relying heavily upon the same, the learned Senior Counsel W.A.No. 1477/2020 : 13: for the appellant submitted that there is no objection raised by the District Fire Officer in respect of the emergency exit from the open air.
11. However, on a reading of the report of the Fire Officer, we are of the view that the Fire Officer has never considered the question of emergency exit from the open air while issuing the report, other than saying that the room has two doors and imposing a condition at clause 6 extracted above that" Both doors of the said building room must be kept usable at all times. No modifications are permitted to the doors". Therefore, there is no basis or foundation to the arguments relying upon the report of the Fire Officer to sort out the issue with respect to the requirement contained under Rule 83(4)(a) of Rules, 2008. It was also strenuously argued by the learned senior Counsel that even going by the impugned order passed by the Additional District Magistrate, it only says that it is opening to the area where the toilet is situated and according to the learned counsel, mere existence of a toilet away from the open space as is contemplated in Rule 83(4)
(a) will not disable the Licencing Authority to grant licence.
12. On the other hand, the learned senior Government Pleader submitted that the learned single Judge has considered the entire factual and legal issues raised by the appellant and has arrived at the correct finding that due to the existence of a toilet in the open space, W.A.No. 1477/2020 : 14: the decision taken by the statutory authority was correct and legal.The Learned counsel for the 4th respondent fully, supported the arguments advanced by the learned Government Pleader.
14. We have evaluated the rival submissions made across the Bar. The sole question remains to be considered is whether the finding rendered by the learned single Judge requires any manner of interference. Apparently, we find that the impugned order passed by the Additional District Magistrate evident from Ext.P17 extracted above is on the basis of the clear findings of fact which alone persuaded the learned Single Judge to arrive at the conclusions. The Additional District Magistrate has found that the emergency exit as is required under Rule 83(4)(a) is opening towards a toilet of the nearby Mosque and it is not in contemplation of the Rules specified above, which according to us also, a clear finding of fact. Said so, the provisions of the Rules shall be given strict interpretation in view the danger involved in fire crackers being an explosive as defined under Section 4(d) of the Explosives Act, 1884. To top up the aforesaid findings, there is no allegation of any mala fides or other unjustifiable actions leading to any arbitrariness on the part of the statutory authority while passing the order. T he order was also passed complying with the principles of natural justice.
W.A.No. 1477/2020 : 15:
15. We are also of the considered opinion that the purpose behind the said Rule should be given relevance and importance, and according to us, it is incorporated in the Rules with the intention of enabling the Fire and Rescue Department to carry out operations in case of any emergency from the open air. This is more so because the Rule clearly specifies, an emergency exit 'from the open air' exemplifies the intention of the rule making authority in the larger interest and the safety of the public also, by which it means there should be clear open air to carry out the rescue operations in case of emergency and not an open air with any kind of hindrances causing obstruction to the movement of fire fighting equipments. To put it otherwise, no manner of laxity shall be shown in the matter of considering applications for licenses of such nature. Anyhow, it is admitted by the appellant that the toilet complex is situated only 2.6 meters away from the door opening to the open air. The District Fire Officer has never considered the issue taking into account the significance of Rule 83(4)(a) of the Rules, 2008. The Fire Officer has given a report basically stating that through the road in front of the shop, fire fighting can be carried out in case of any emergency and also that the shop was fitted with necessary fire equipment and the shop room is not having any electrical switch board. Therefore, we have no hesitation to hold that no grounds are made out by the W.A.No. 1477/2020 : 16: appellant to interfere with the judgment of the learned single Judge in an intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958, there being no illegality in exercising the discretionary power conferred under Article 226 of the Constitution of India .
Needless to say, the writ appeal fails and accordingly, it is dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv