Kerala High Court
O.Sathis Chandran vs State Of Kerala on 10 August, 2012
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934
WP(C).No. 8264 of 2012 (G)
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PETITIONER(S):
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O.SATHIS CHANDRAN, AGED 72 YEARS
PROPRIETOR,M/S.P.K.NAIR & O.S.CHANDRAN
FIREWORKS DEALERS, BIG BAZAAR, CALICUT-673001
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENT(S):
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1. STATE OF KERALA
REP.BY THE SECRETARY TO GOVERNMENT
DEPARTMENT OF REVENUE, SECRETARIAT
THIRUVANANTHAPURAM-695001
2. DISTRICT COLLECTOR,
KOZHIKODE-673001
3. THE ADDITIONAL DISTRICT MAGISTRATE,
KOZHIKODE-673001
SRI.ABDUL SALAM,GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-08-
2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 8264 of 2012 (G)
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1:- TRUE COPY OF THE RELEVANT PAGES OF THE REGISTER OF
DECLARATION FROM UNDER THE CENTRAL SALES TAX RULES,
EXT.P2:- TRUE COPY OF THE NOTICE DTD 20/3/1970
EXT.P3:- TRUE COPY OF THE LICENCE POSSESSED BY THE PETITIONER
EXT.P4:- TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENSE DTD
16/2/2010 TOGETHER WITH CHELAN RECEIPT
EXT.P5:- TRUE COPY OF THE CHELAN RECEIPT
EXT.P6:- TRUE COPY OF THE ORDER DTD 03/04/2010 ISSUED BY THE 3RD
RESPONDENT.
EXT.P7:- TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE.
EXT.P8:- TRUE COPY OF THE REPORT, DTD 27/3/2011
EXT.P9:- TRUE COPY OF THE APPLICATION FOR RENEWAL OF LICENCE.
EXT.P10:- TRUE COPY OF THE TREASURY CHELAN RECEIPT
EXT.P11:- TRUE COPY OF THE ORDER DTD 16/3/2009 IN WPC NO 8117/2009
RESPONDENTS' EXHIBITS : NIL
// true copy//
PA to Judge
P.N.RAVINDRAN, J.
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W.P.(C) No.8264 of 2012
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Dated this the 10th day of August, 2012
J U D G M E N T
The petitioner is the present proprietor of M/s.P.K.Nair & O.S Chandran, Fire works Dealers, Big Bazaar, Calicut. The proprietary concern commenced business in the year 1846. After the Explosives Act, 1884 was enacted and brought into force, the proprietary concern was periodically applying for and obtaining licence in the terms thereof and the rules framed thereunder. After the State of Kerala was formed license No.355/KDE was issued to the petitioner by the Additional District Magistrate, Kozhikkode. The business establishment of the petitioner is situated in premises bearing door No.12/1062, Big Bazar, Kozhikkode. The license issued to the petitioner under rule 155 of the Explosives rules, 1983 which was first issued on 6.12.1988 was being periodically renewed and the last of the renewals was valid till 31.3.2007. Even before the validity of the explosives license issued to the petitioner's establishment expired, he applied for renewal of the license by submitting an appropriate application accompanied by the requisite fee. While matters stood thus, a fire incident took place on 5.4.2007 in the premises of another fire works dealer having his place of business in S.M.Street, Kozhikode. Eight persons lost their lives in W.P.(C)No.8264 of 2012 -2- that incident and extensive damage was also caused to properties of the third parties. The District administration thereupon suspended all the licenses issued under the Explosives Rules, 1983 to fire works dealers like the petitioner in Kozhikkode Corporation. For that reason, the license issued to the petitioner under rule 155 of the Explosives Rules, 1983 was not renewed after 31.3.2007. The petitioner was however periodically applying for renewal of the license for the years 2007-08, 2008-09 and 2009-2010 by submitting an appropriate application in prescribed form and remitting the prescribed fee.
2. Fire works dealers like the petitioner who were aggrieved by the order passed by the District administration on 5.4.2007 suspending the licenses issued to them moved the Additional District Magistrate, Kozhikode to withdraw the suspension order. Thereupon an inspection of the business premises of all the fire works dealers was conducted. After inspection, the committee consisting of the Additional District Magistrate, Kozhikode, the Assistant Commissioner of Police, Kozhikode and the Assistant Divisional Fire Officer, Kozhikode decided to revoke the licenses issued to fire works dealers who have their place of business in crowded localities where fire tenders do not have easy access. They also decided to renew the license in respect of establishments which are situated in premises where fire tenders have W.P.(C)No.8264 of 2012 -3- easy access. Thereupon, the Additional District Magistrate, Kozhikode issued Ext.P6 proceedings dated 3.4.2010 revoking the license issued to the petitioner under rule 155 of the Explosives Rules, 1983. In the meanwhile, the Explosives Rules, 1983 was repelled and Explosives rules, 2008 was brought into force with effect from 31.12.2008, the date on which it was published in the Gazette of India.
3. In this writ petition the petitioner challenges Ext.P6 proceedings and seeks the following reliefs:
i) to issue a writ of certiorari quashing Ext.P6 as unjust, illegal and unsustainable
ii) to declare that cancellation of the licence held by the petitioner by way of Ext.P6 is unjust, illegal and unsustainable
iii) to issue a writ of mandamus directing the respondents to take a decision on Exts.P7 and P9 in the light of the payment of licence fee reflected in Exts.P5 and P10 and also in the light of Rule 112(5) of the Explosives Rules, 2008 and Rule 84 of the said Rules.
iv) to issue writ of mandamus directing the respondents to refrain from interfering with the business of sale of fireworks, sparklers and Chinese crackers done by the petitioner in Shop No.12/1062 (New No.35/916) at Big Bazar, Kozhikode with licence No.355/KDE which was in force till Ext.P6.
v) to issue a writ of mandamus directing the respondents to renew the petitioner's licence for sale of fireworks, sparklers and colour matches, by cancelling Ext.P6
4. The second respondent has filed a statement dated 2.7.2012 justifying the impugned proceedings.
W.P.(C)No.8264 of 2012 -4-
5. I heard Sri.Kaleeswaram Raj, learned counsel appearing for the petitioner and Sri.Abdul Salam, learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. Ext.P6 proceedings which is impugned in the instant writ petition is essentially an order issued by the District Magistrate under clause (b) of subsection (3) of section 6E of the Explosives Act, 1884. Section 6F of the Explosives Act, 1884 stipulates that any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority suspending or revoking a licence may prefer an appeal against that order to such authority, within such period as may be prescribed. Though sub-section (2) of section 6F of the Explosives Act stipulates that no appeal shall be admitted if it is preferred after the expiry of the period prescribed therefore, the proviso to subsection (2) of section 6F of the Act stipulates that an appeal may be admitted after the expiry of the period prescribed therefore, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period. Sub- section (3) of section 6F of the Act stipulates that the period prescribed for an appeal shall be computed in accordance with the provisions of the Limitation Act, 1963, with respect to the computation of periods of W.P.(C)No.8264 of 2012 -5- limitation thereunder. Rule 121 of the Explosives Rules, 2008 prescribes the authority competent to entertain the appeals from an order of revocation of license issued under sub-section (3) of section 6E of the Explosives Act, 1884 and the period of limitation for preferring such an appeal. Rule 121 stipulates that an appeal against an order revoking a licence shall lie, if the order is passed by the District Magistrate to the immediate superior to such authority. Sub rule (2) of rule 121 stipulates that every such appeal shall be preferred in accordance with the provisions of the Act and shall be presented within sixty days of date of the communication of such order. It is thus evident from a reading of section 6F of the Explosives Act, 1884 and rule 121 of the Explosives Rules, 2008 that an appeal lies from an order of a kind of Ext.P6 passed by the District Magistrate in exercise of the power conferred on him under sub-section (2) of section 6E of the Explosives Act, 1884 to the immediate superior authority who according to the learned Government Pleader is the Land Revenue Commissioner. Section 6F of the Act also empowers the appellate authority to condone the delay in filing the appeal. In such circumstances, as an appeal lies from Ext.P6 proceedings and the appellate authority is empowered to entertain the appeal filed belatedly after condoning the delay, I am of the opinion that the W.P.(C)No.8264 of 2012 -6- petitioner should invoke the appellate remedy available to him instead of straight away invoking the jurisdiction of this Court. In view of the fact that by Ext.P6, the license issued to the petitioner under the Explosives Act and the rules framed thereunder stands revoked, the mere fact that the District Magistrate has referred to other enabling provisions of laws to justify the order does not in my opinion deprive the petitioner of the right to file an appeal challenging Ext.P6 before the Land Revenue Commissioner. I accordingly dispose of the writ petition with the following directions:
6. The petitioner shall within two weeks from the date of receipt of a certified copy of this judgment, file an appeal challenging Ext.P6 proceedings before the Land Revenue Commissioner. The petitioner shall also pay the fee stipulated in Article 14(ii) of the Schedule to the Explosives Rules, 2008. Needless to say the petitioner shall along with the appeal produce the original of Ext.P6 proceedings that was saved on him.
7. In the event of the petitioner filing an appeal in the manner indicated above, the appellate authority shall entertain the appeal as one filed in time and dispose it of on the merits, after affording the petitioner an opportunity of being heard.
The appellate authority shall after orders are passed W.P.(C)No.8264 of 2012 -7- communicate a copy thereof to the petitioner. The contentions of the petitioner on the merits are kept open.
Sd/-
P.N.RAVINDRAN, JUDGE.
Rkc // true copy// PA to Judge