Kerala High Court
Salina Thomas vs Land Revenue Commissioner on 22 March, 2021
Equivalent citations: AIR 2021 KERALA 106, AIRONLINE 2021 KER 266
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
WP(C).No.6400 OF 2021(Y)
PETITIONER:
SALINA THOMAS, AGED 64 YEARS
VEMBIL HOUSE, PALLISSERY,
ANNAMADA.P.O, THRISSUR,
KERALA-680741.
BY ADV. SHRI.P.DEEPAK
RESPONDENTS:
1 LAND REVENUE COMMISSIONER
PUBLIC OFFICE COMPOUND, MUSEUM JUNCTION,
VIKAS BHAVAN P.O,
THIRUVANANTHAPURAM-695033.
2 DISTRICT COLLECTOR, COLLECTORATE,
CIVIL STATION, AYYANTHOLE,
THRISSUR-680003.
3 THE ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, THRISSUR-680003.
BY GOVERNMENT PLEADER SRI. G. RANJITHA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 22.03.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.6400 of 2021 ..2..
P.B.SURESH KUMAR, J.
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W.P.(C) No.6400 of 2021
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Dated this the 22nd day of March, 2021
JUDGMENT
Petitioner obtained during 2003, a licence in Form 20 of the Explosives Rules, 1983 to manufacture 5 Kgs of gun powder and 10 Kgs of fireworks. The said licence was being renewed from time to time, and after the Explosives Rules, 1983 was replaced by the Explosives Rules, 2008(the Rules), the licence was being renewed treating the same as one issued in Form LE-1 of the Explosives Rules, 2008. The latest renewal of the licence was for the period upto 31.03.2016. On 10.02.2016, the petitioner preferred an application for renewal of the licence again and the said application was rejected by the licensing authority namely, the third respondent on 15.03.2017. The petitioner preferred an application for W.P.(C) No.6400 of 2021 ..3..
reconsideration of the said order and the said application was rejected by the third respondent as per Ext.P4 order holding that there is no access to the licensed premises for taking vehicles during emergency. The premises of the petitioner does not have vehicular access. As such, when the third respondent insisted that there shall be vehicular access to the licensed premises, the petitioner has furnished before the third respondent, a letter of the adjoining land owner to the effect that he has no objection in taking vehicles to the licensed premises through his land in the event of an emergency. In Ext.P4 order, the third respondent took the view that the consent letter of the adjoining land owner cannot be acted upon since the said land is lying 2 feet down the road level. The petitioner challenged Ext.P4 order in appeal before the appellate authority namely the first respondent. In the said appeal, the first respondent found that the requirement in terms of the conditions of licence is only that there shall be free access to the premises for the authorities to ensure compliance of the provisions of the Explosives Act and the W.P.(C) No.6400 of 2021 ..4..
Rules made thereunder and consequently remitted the application preferred by the petitioner for fresh decision by the third respondent after examining the question whether access to the licensed premises through the adjoining land with the consent of its owner is sufficient compliance of the requirement concerning access. Ext.P5 is the order passed by the first respondent in this regard. Pursuant to Ext.P5 order, the third respondent passed Ext.P6 order rejecting the application of the petitioner for renewal of the licence again, holding that the land adjoining the licensed premises belongs to five persons and only one among them has given consent for access to the licensed premises through that land. Ext.P6 is under challenge in the writ petition.
2. Heard the learned counsel for the petitioner as also the learned Government Pleader.
3. It is seen that the licence referred to in the writ petition is one issued for manufacturing fireworks upto a maximum quantity of 10 Kgs and gun powder upto a maximum quantity of 5 Kgs at a time. As noted, the petitioner was W.P.(C) No.6400 of 2021 ..5..
holding the licence since 2003 and the same was renewed upto 31.03.2016. There is no case for the official respondents that the petitioner has violated conditions of licence at any point of time all these years. Ext.P1 is the latest order of renewal issued by the competent authority on 20.06.2011. The said renewal was after the introduction of the Explosives Rules, 2008. The impediment concerning access to the licensed premises was not raised on the previous occasions when the petitioner applied for renewal of licence. Be that as it may. As noted by the first respondent, the only requirement concerning access in the Explosives Rules, 2008 as fas as a licence issued in Form LE-1 is concerned, is the requirement in terms of condition No.19 in the conditions of LE-1 licence which reads thus:
"Free access to the licensed premises shall be given at all reasonable times to any inspecting or sampling officer and every facility shall be afforded to the officer for ascertaining that the provisions of the Act and the Rules and the safety conditions are duly observed".
Neither the first respondent nor the third respondent has a W.P.(C) No.6400 of 2021 ..6..
case that licensed premises does not conform to condition No.19 referred to above. In the absence of any prescription in the Explosives Act, 1884 and in the Rules made thereunder that the licensed premises shall have vehicular access, according to me, want of vehicular access to the licensed premises cannot be a reason to reject an application for renewal of licence. That apart, Rule 112 of the Rules is the Rule relevant in the context of considering the application for licence. The Rule 112 reads thus:
"112. Renewal of licence.--(1) Every licence except the licences granted for a specific period not exceeding one year, shall be renewable for a maximum period of five financial years ending on the 31st March.
(2) Every application under sub-rule (1) for renewal of the licence shall be accompanied by the following documents, namely :--
(a) application in Form RE- 1;
(b) the original licence;
(c) prescribed renewal fee.
(3) A licence may be renewed by the authority empowered to grant such licence :
Provided that a licence which has been granted by the Chief Controller may be renewed without any alteration by a Controller duly authorised by the Chief Controller in this W.P.(C) No.6400 of 2021 ..7..
behalf:
Provided further that a licence, which has been granted by the District Magistrate, may be renewed without any alteration by a Sub-Divisional Magistrate or an Executive Magistrate duly authorised by the District Magistrate in this behalf.
(4) Every application for the renewal of a licence shall be made so as to reach the licensing authority or the authority empowered to renew the licence on or before the date on which the licence expires.
(5) If the application for renewal reaches the renewing or licensing authority on or before the date of expiry, the licence shall be deemed to be in force until such date as the licensing authority renews the licence or until an intimation that the renewal of the licence is refused has been communicated to the applicant.
(6) The same fee shall be charged for the renewal of a licence for each year as for grant thereof:
Provided that if the renewal application together with complete documents is received by the licensing authority after the date of expiry but not later than six months from the date of expiry; and if the licensing authority is satisfied that such delay is beyond the control of the licensee, the licence may, without prejudice to any other action that may be taken in this behalf, be renewed on payment of penalty fee which is equal to one year's licence fee.
(7) In case of an application for the renewal of the licence for a period of more than one year at a time, W.P.(C) No.6400 of 2021 ..8..
the fee prescribed under proviso of sub-rule (6), if payable, shall be paid only for the first financial year of renewal.
(8) Every licence granted under these rules other than a licence granted for a specified period shall be renewable for a maximum period of five years where there has been no contravention of the Act or these rules framed there under or of any condition of the licence so renewed.
(9) Where a licence renewed for more than one financial year is surrendered before its expiry, the renewal fee paid for the unexpired portion of the licence shall be refunded to the licensee:
Provided that no refund of renewal fee shall be made for any financial year during which-
(a) the licensing authority received the renewed licence for surrender;
(b) any explosive is received or stored on the authority of the licence.
(10) No licence shall be renewed if the application for renewal is received by the licensing or renewing authority after six months of the date of its expiry. An application for renewal received after six months of the expiration of the licence shall be considered as an application for a new licence.
(11) When a licence is renewed by the Chief Controller or a Controller, an intimation to that effect shall be sent to the District Magistrate concerned and when a licence is renewed by the District Magistrate, W.P.(C) No.6400 of 2021 ..9..
intimation to that effect shall be sent to the Controller having jurisdiction"
The Rule aforesaid does not confer on the third respondent authority to reject an application for renewal on the ground mentioned in Exts.P4 and P6 orders. On the other hand, the scheme of the extracted Rule is that if the application for renewal conforms to the requirements of the Rule, the same shall be renewed. The third respondent has no case in Exts.P4 and P6 orders that the application for renewal of licence submitted by the petitioner was not in accordance with Rule 112 of the Rules. In the said view of the matter, Ext.P6 order is liable to be interfered with.
In the result, the writ petition is allowed, Exts.P6 order is quashed and the third respondent is directed to renew the licence of the petitioner in accordance with the Rules.
This shall be done within two weeks.
Sd/-
P.B.SURESH KUMAR, JUDGE ds 17.03.2021 W.P.(C) No.6400 of 2021 ..10..
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER NO.C6- 8344/11/L.DIS OF THE 3RD RESPONDENT DATED 20.06.2011 RENEWING LICENSE OF THE PETITIONER.
EXHIBIT P2 A TRUE COPY OF THE CHALLAN SHOWING REMITTANCE OF THE PRESCRIBED FEE FOR RENEWAL OF LICENCE DATED 10.02.2016.
EXHIBIT P3 A TRUE COPY OF THE RECEIPT DATED 10.02.2016 ISSUED TO THE PETITIONER PURSUANT TO THE APPLICATION FOR RENEWAL.
EXHIBIT P4 A TRUE COPY OF THE ORDER NO.C6- 20228/2017/KDS DATED 230.06.2017.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 08.05.2018 OF THE 1ST RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 15.02.2021 PASSED BY THE 3RD RESPONDENT FILE NO.DCTSR/1535/2021-C6.