Madras High Court
Mrk.Siva vs The District Collector on 12 April, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12..04..2017
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR. JUSTICE M.V.MURALIDARAN
W.P.(MD) No.20232 of 2015 & M.P.(MD) No.1 of 2015
and
W.P.(MD) No.19510 of 2016 & W.M.P.(MD) No.14081 of 2016
W.P.No.20232 of 2015
MRK.Siva
... Appellant
-Versus-
1.The District Collector,
Karur District, Karur.
2.The District Revenue Officer,
Karur District, Karur.
3.The Superintendent of Police,
Karur District, Karur.
4.M.Basker
5.P.Natesan
6.The Tamil Nadu Fireworks and Amorces
Manufacturers Association,
Rep. by its General Secretary,
TANFAMA Centre,
No.442, Kamarajar Road,
Sivakasi 626 123.
[R6 - impleased as per order dated 09.02.2017
in WMP (MD) No.975 of 2017]
7.M/s.Srinivasan
[R7 - Impleaded as per order dated 09.02.2017 made in
WMP(MD) No.15735 of 2016]
8.N.Govindaraj
[R8 - Impleaded as per order dated 03.03.2017 made in WMP(MD) No.1900
of 2017]
... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Mandamus directing the respondents to take
appropriate and necessary action against the cracker shops in Karur District,
being run without proper license in accordance with the conditions laid down
in Form 24 of the Explosives Rules, 1983 by considering my representation
dated 29.10.2015.
W.P.(MD) No.19510 of 2016
K.Tajudeen
... Petitioner
-Versus-
1.The Chief Controller of Explosives,
Petroleum and Explosives Safety Organisation,
'A' Block, 5th Floor, CGO Complex,
Seminary Hills, Nagpur 440 006.
2.The State of Tamil Nadu,
Rep. by its Secretary,
Department of Home,
Fort St. George, Chennai 600 009.
3.The Director General of Police,
Kamaraj Salai, Chennai 600 004.
4.The Joint Chief Controller of Explosives,
No.142, Ruckmani Lakshmipati Salai,
Egmore, Chennai 600 008.
5.The District Magistragte cum District Collector,
Tiruchirapalli District,
Tiruchirapalli 620 020.
6.The Commissioner of Police,
Tiruchirapalli City,
Tiruchirapalli 620 020.
7.The Deputy Commissioner of Commercial Taxes,
Government of Tamil Nadu,
No.156/3, Srivilliputhur Road,
Sivakasi 626 123.
8.The Deputy Commissioner of Commercial Taxes,
Court Compound,
Tiruchirappali 620 001.
9.Mr.Subbiah,
Manager,
M/s.Sivakasi Fire Works Agencies,
No.3B, Rockins Road,
Junction,
Tiruchirapalli District 620 001.
10.S.M.I.Abubacker,
Managing Director,
M/s.Femina Shopping Mall,
107-A, Williams Road,
Central Bus Stand,
Tiruchirapalli 620 001.
11.M/s.Srinivasan
[R11-Impleaded as per order dated 09.02.2017 made in W.M.P(MD) No.15742
of 2016]
12.Mr.N.Govindaraj
[R12-Impleaded as per order dated 09.02.2017 made in W.M.P(MD) Nos.1899
and 1900 of 2017]
... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Mandamus directing the respondents to take action
forthwith on the petitioner's representation dated 12.09.2016 seeking
suitable action relating to the conditions imposed while granting licenses
for possession and sale of fireworks in temporary shops under Section 7 of
the Explosives Act, 1884 r/w Rules 84 and 86 of the Explosives Rules, 2008
for ensuring public safety and strict compliance of law.
!For Petitioner (s)
:
Mr.R.Nitesh Kumar for Petitioner in W.P.(MD) No.20232 of 2015
Mr.Godson Swaminathan for Petitioner in W.P.(MD) No.19510 of 2016
^For Respondents
:
Mr.A.N.Thambidurai, Spl. G.P. for R1 to R3 in W.P.(MD) No.20232 of 2015 and
R2, R3, R5 to R8 in W.P.(MD) No.19510 of 2016
Mr.K.M.Vijayan, Senior Counsel for Mr.B.Saravanan for R6 in W.P.(MD) No.20232
of 2015
Mr.A.Kesavan for R8 in W.P.(MD) No.20232 of 2015 and R12 in W.P.(MD) No.19510
of 2016
Mr.S.M.Ananda Murugan for R7 in W.P.(MD) No.20232 of 2015 and R11 in W.P.(MD)
No.19510 of 2016
Mr.Dilipkumar for R4 & R5 in W.P.(MD) No.20232 of 2015
Mr.D.Saravanan for R1 and R4 in W.P.(MD) No.19510 of 2016
:COMMON ORDER
(Order of the Court was delivered by S.NAGAMUTHU. J. ) The writ petition in W.P.No.19510 of 2016 has been filed for issuance of writ of mandamus directing the respondents to take appropriate and necessary action against the cracker shops in Karur District, being run without proper license, in accordance with the conditions laid down in Form 24 of the Explosives Rules, 1983 by considering my representation dated 29.10.2015 and the other writ petition in W.P.No.20232 of 2016 seeking for issuance of a writ of mandamus directing the respondents to take action forthwith on the petitioner's representation dated 12.09.2016 seeking suitable action relating to the conditions imposed while granting licenses for possession and sale of fireworks in temporary shops under Section 7 of the Explosives Act, 1884 r/w Rules 84 and 86 of the Explosives Rules, 2008 for ensuring public safety and strict compliance of law.
2. When these writ petitions came up for hearing before a Division Bench of the Madurai Bench of this Court on 18.11.2016, the Division Bench consisting of one of us [Justice S.Nagamuthu], passed the following order:-
"In these Writ Petitions, a common issue has arisen for consideration in respect of the safety distance to be maintained between a fireworks shop and a public place such as a protected works. Referring to Rule 83 of the Explosives Rules, 2008 (hereinafter referred to as ?the Rules?), the learned Senior Counsel Mr.Isaac Mohanlal appearing for one of the petitioners would submit that so far as a licence for a shop (permanent shop) is concerned, Rule 83 itself prescribes certain requirements. But, Rule 83 does not speak of any distance rule.
2. Rule 84 of the Rules deals with ?temporary shops for possession and sale of fireworks during festivals?. Sub Rule (2) of Rule 84 provides for safety distance which states that ?the sheds for possession and sale of fireworks shall be at a distance of at least 3 metres from each other and 50 metres from any protected work. Rule 86 speaks of ?safety distances to be maintained?. It contained three Sub Rules, wherein Sub Rule (1) deals with ?Factory or Magazine?; or Sub Rule (2) deals with ?Store house? and Sub Rule (3) deals with ?shop?. The said Rule reads as follows;
86.Safety distances to be maintained : (1) Factory or magazine.- The factory licensed for manufacture or magazine licensed for possession, sale or use of explosives shall maintain safety distance specified in Schedule VIII and condition of licence, as the case may be.
(2) Store house ? The store house licensed for possession of fireworks or safety fuse shall maintain safety distance of three metres from protected works and minimum fifteen metres from any such premises or any other premises used for storage of similar explosives, flammable or hazardous materials. (3) Shop ? The shop licensed for storage and sale of small arms nitro- compound, fireworks or safety fuse shall be at a distance of minimum fifteen metres from any such premises or any other premises used for storage of similar explosives, flammable or hazardous materials.?
3.A plain reading of Rule 86 would go to show that the Sub Rule (3) of Rule 86 speaks only of the minimum distance between a fireworks shop and a premises where the storage of similar explosives, flammable or hazardous materials are kept. In other words, it prescribes a minimum distance of 15 metres between one fireworks shop and another fireworks shop or any other licensed storage or sale unit. This Sub Rule does not provide for any minimum distance to be maintained between a permanent shop and a protected works or any other public place.
4. Similarly, a plain reading of Sub Rule (2) of Rule 84 would go to show that it not only prescribes the minimum distance to be maintained between a temporary shop and another temporary shop, but also the minimum distance to be maintained between a temporary shop and a protected works. The minimum distance which shall be maintained between a temporary shop and another temporary shop is three meters, whereas the distance between a temporary shop and a protected works should be at least 15 meters.
5. The expression ?Protected works? has been defined in Sub Rule (43) of Rule 2 which reads as follows;
?(43)?protected works? includes buildings or structures in which persons dwell, work or assemble, college, school, hospital, theatre, cinema house, shop, market, factory, place of worships, place of storage of hazardous, substances, highway or public road, railway line, navigable waterways, cross country above ground pipelines, dams or reservoirs, overhead high tension power lines, but does not include cart tracks not in regular use, agricultural wells and pump sets connected therewith.?
6. Similarly, the expression ?safety distance? has also been defined in Sub Rule (48) of Rule 2 which reads as follows; ?(48) ?safety distance? means the distance necessary under these rules to be kept clear between any licensed factory shed, magazines, store house or other licensed premises and protected works as referred to in Schedule VIII.?
7. Today, before us Mr.K.Sundaresan, Deputy Chief Controller of Explosives, Sivakasi, made appearance on our direction. We heard him also, when we heard the learned counsel on either side. He also explained as to how licence is issued either temporary or permanent for running a fireworks shop. It is brought to our notice that so far as the Sub Rules (1) and (2) of Rule 86 are concerned, they speak of safety distances. The expression ?safety distance?, as employed in the said two Sub Rules, carries the meaning as defined in Sub Rule (48) of Rule 2. Sub Rule (48) of Rule 2 states that the safety distance should be as referred to in Scheduled VIII. If we look into Schedule VIII, it would be more clear that the same is applicable only in respect of Sub Rules (1) and (2) of Rule 86 viz., the safety distance in respect of factories, magazines or storage houses. Therefore, it is crystal clear that the safety distance as defined in Sub Rule (48) of Rule 2 and as referred to in Schedule VIII have got no application to a fireworks shop either permanent or temporary. That is the reason why, in Sub Rule (2) of Rule 84 and Sub Rule (3) of Rule 86 the minimum distance itself has been mentioned.
8. As we have already pointed out, so far as temporary fireworks shop is concerned, Sub Rule (2) of Rule 84 comes with clarity leaving no doubt that the minimum distance between two temporary fireworks shops should be at-least 3 meters and the distance between a temporary fireworks shop and a protected works is at least 50 meters. Regarding this, there is no controversy. Then, the authorities while granting temporary licence have to adhere to these distance rules.
9. So far as the licence to be granted for a permanent shop under Rule 83 is concerned, the distance between a fireworks shop and other places, like premises used for storage of similar explosives, flammable or hazardous materials, the minimum distance of 15 meters should be maintained. Regarding this position also, there is no controversy or doubt before us. The real doubt lies in knowing the minimum distance to be maintained between a permanent fireworks shop to be licensed under Rule 83 and another premises, like a protected works. As we have already pointed out, for a permanent shop neither Sub Rule (3) of Rule 86 nor any other provisions provide for the minimum distance for such a shop and a public place. This is undoubtedly a gray area. Going by the plain reading of these two provisions, we understand that the authorities under the Act have been issuing licence for permanent shops under Rule 83 without insisting for any safety distance. Even at the time of renewal for licence, the authority do not take into account any protected works which come into being very nearer to the shops.
10. In this regard, we may refer to Section 6-C of the Explosives Act, 1884 which reads as follows; 6-C.Refusal of licenses.- (1)Notwithstanding anything contained in Section 6-B, the licensing authority shall refuse to grant a license- (a) where such license is required in respect of any prohibited explosives; or (b) where such license is required by a person whom the licensing authority has reason to believe- (i) to be prohibited by this Act or by any other law for the time being in force to manufacture, possess, sell, transport, import or export any explosive, or (ii) to be of unsound mind, or (iii) to be for any reason unfit for a license under this Act, or
(c) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such license. (2) where the licensing authority refuses to grant a license to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of opinion that it will not be in the public interest to furnish such statement.?
11. As provided in Sub Rule (1) of Rule 6-C of the Act, while granting license or while renewing the license, the authority concerned should also take into account the ?public safety?. Since there is no rule prescribing the minimum distance between a fireworks shop and a protected works, though the authority is concerned with the ?public safety?, they are unable to refuse to grant license insisting for safety distance. In some cases, the officer concerned, while enforcing the ?public safety?, prescribes a minimum distance, according to his own whims and fancies. Even then, there is no uniformity between the authorities, who are engaged to grant licence. The hallmark of law is its certainty and therefore, we cannot allow uncertainty to exist. In our considered view, there has to be either guidelines issued or the rule should be duly amended prescribing a minimum distance between a permanent fireworks shop and a protected works.
12. When we requested Mr.K.Sundaresan, Deputy Chief Controller of Explosives, to suggest the distance which could be prescribed for a permanent shop and a protected works, he submitted that it requires a study by experts. We do feel that it requires a thorough study by experts. Therefore, we feel that it would be appropriate for us to constitute a panel consisting of the following experts and officers for the said purpose: (i)The Secretary, Department of Industrial Policy and Promotion, Ministry of Industry and Commerce, Government of India, New Delhi. (ii) The Secretary, Department of Revenue, Government of Tamil Nadu, Chennai. (iii)The Additional Secretary to Department of Home, Government of Tamil Nadu, Chennai. (iv)The Chief Controller of Explosives, Nagpur. The said committee shall hold a meeting either during or before the 2nd week of December, 2016 at any venue to be fixed by the Secretary, Department of Industrial Policy and Promotion, New Delhi and receive suggestions from other experts such as fire service, Police, etc. The committee shall submit a report to this Court as to what shall be the minimum distance to be maintained between a permanent fireworks shop licensed under Rule 83 of the Rules and a protected works, within a period of eight weeks thereafter.
13. Post these matters on 28.11.2016. "
Thereafter, on the orders of the Hon'ble Chief Justice, both the writ petitions were listed before us before this Principal Bench. Earlier these writ petitions came up for hearing on several occasions. It was also reported to this court that the panel constituted by this court held meetings on the issue and the obligations in respect of ensuring the public safety were also being considered.
3. Today, the Deputy Chief Controller of Explosives, Sivakasi, Virudhunagar District, has filed an affidavit, wherein, in para 2 to 6, he has stated as follows:-
"2. It is most respectfully submitted that in the light of aforesaid order of the Hon'ble High Court, a panel was constituted and meetings of the said panel were held on 14.12.2016 and 09.01.2017. After detailed deliberations, the following recommendations were made by the panel:-
(i) The fireworks shop shall be single storied independent building;
(ii) The fireworks shop shall maintain minimum 3 metres open to sky clearance from any structure or building;
(iii) Minimum 9 square metres and maximum 12 square metres floor area shall be prescribed for the shop to be licensed by the District Authority;
(iv) Minimum 12 square metres and maximum 20 square metres floor area shall be prescribed for the shop to be licensed by PESO;
(v) An Emergency Gate with minimum width of 1.2 metre, opening outside shall be provided;
(vi) The fire works shop shall maintain 15 metres distance from any other fireworks shop, flammable or hazardous material premises and also from educational institutions, hospitals, medical diagnostic centres, religious places, banks, commercial centres, marriage halls and shopping malls.
3. As per the direction of this Hon'ble Court, report of the panel containing the above recommendations was submitted before this Hon'ble High Court.
4. The impleading petitioner has now submitted that recommendations (i) to (v) of the panel are irrelevant and not called for by the Hon'ble High Court whereas recommendations (vi) has been given without any legal consultation with the stake holders.
5. The Chief Controller of Explosives, Petroleum and Explosives Safety Organisation, Nagpur has been directed to to do stake holder consultation and give his suggestions on the proposed amendment in the Explosives Rules, 2008.
6. As per Section 18 of the Explosives Act, 1884, draft notification of the proposed amendment in the Explosives Rules, 2008 shall be published in the Gazette of India specifying a date for receipt of objections or suggestions from stake holders. Objections/suggestions, if any, will be considered by the Central Government before notifying the final rules. Hence, all stake holders including the impleading petitioner will be given fair chance to submit objections/suggestions to the proposed amendment rules.
Thus, there is no violation of principle of natural justice in this case. Besides, the impleading petition is neither proper nor necessary parties to the proceedings at this stage."
4. The Miscellaneous Petitions in W.M.P.(MD) Nos.15742 of 2016, W.M.P.(MD) Nos.1900 & 975 of 2017 in W.P.(MD) No.20232 of 2015, W.M.P.(MD) No.15735 of 2016 in W.P.(MD) No.19510 of 2016 have been filed by the fireworks manufacturers, fireworks seller seeking to implead themselves as parties to the writ petitions. Accordingly, they have been impleaded as parties. The grievance of the impleaded parties is that they were not heard before any decision taken by the authorities to issue draft amendment to The Explosive Substances Rules, 2008.
5. Today, after having seen the counter affidavit filed by the Deputy Chief Controller of Explosives, the learned senior counsel Mr.K.M.Vijayan appearing for one of the impleaded parties would submit that in view of the submissions made in para 6 of the counter, necessary directions may be issued to the parties and the writ petition may be closed.
6. Having regard to the above submission made, since we are satisfied that the panel constituted by this court has held meetings on 14.12.2016 and 09.01.2017 and the recommendations have also been made, and since the draft amendment to the Explosive Substance Rules, 2008 are going to be published in the Official Gazette of India calling for objections and suggestions, if any and thereafter, the final rules is going to be notified, we are of the view that no further order is required in these matters. We are, therefore, inclined to dispose of the writ petitions recording the statement made by the Deputy Chief Controller of Explosives in paras 2 to 6 of the counter and we accordingly direct the parties to strictly abide by para 6 of the counter affidavit.
7. In the result, the writ petitions are disposed of with the above directions. No costs. Consequently, connected MPs are closed.
To
1.The Chief Controller of Explosives, Petroleum and Explosives Safety Organisation, 'A' Block, 5th Floor, CGO Complex, Seminary Hills, Nagpur 440 006.
2.The Secretary,Home Department, Government of Tamil Nadu, Fort St. George, Chennai 600 009.
3.The Director General of Police, Kamaraj Salai, Chennai 600 004.
4.The Joint Chief Controller of Explosives, No.142, Ruckmani Lakshmipati Salai, Egmore, Chennai 600 008.
5.The District Magistrate cum District Collector, Tiruchirapalli District, Tiruchirapalli 620 020.
6.The Commissioner of Police,Tiruchirapalli City, Tiruchirapalli 620 020.
7.The Deputy Commissioner of Commercial Taxes, Government of Tamil Nadu,No.156/3, Srivilliputhur Road, Sivakasi 626 123.
8.The Deputy Commissioner of Commercial Taxes, Court Compound, Tiruchirappali 620 001.
9.The District Collector, Karur District, Karur.
10.The District Revenue Officer, Karur District, Karur.
11.The Superintendent of Police, Karur District, Karur..