Jharkhand High Court
Geeta Devi vs The State Of Jharkhand on 11 May, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.1069 of 2018 & I.A No. 3393 of 2018
With
W.P. (C) No.2017 of 2018 & I.A No. 4244 of 2018
With
W.P. (C) No.2071 of 2018 & I.A No. 4241 of 2018
With
W.P. (C) No.2075 of 2018 & I.A No. 4243 of 2018
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1. Geeta Devi
2. Manoj Kumar Choudhary @ Manoj Kumar .......... Petitioners.
[In W.P.(C) No.1069/2018]
1. Mukesh Kumar Sahu
2. Vishal Agency .......... Petitioners.
[In W.P.(C) No.2017/2018]
1. Alomani Devi
2. Subhash Kumar Sahu .......... Petitioners.
[In W.P.(C) No.2071/2018]
1. Naresh Mehta
2. Gulam Murtuza
3. Abdul Qudus .......... Petitioners.
[In W.P.(C) No.2075/2018]
-Versus-
1. The State of Jharkhand, through its Chief Secretary, Project Bhawan, Ranchi.
2. Deputy Commissioner-cum-District Arms Magistrate, Ranchi.
3. Deputy Collector, District General Section, Ranchi.
4. Sub Divisional Officer, Sadar, Ranchi.
5. District Arms Magistrate, Ranchi.
.......... Respondents.
[In all cases]
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : M/s. Anil Kumar Sinha, Sr. Advocate & A. K. Sahani, Advocate.
For the State : A.C. to G.A.IV, A.C. to A.G.,
A.C. to Sr. S.C.I & A.C. to G.P.I
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07/11.05.2018: These batch of writ petitions have been preferred against the decision of the respondent authorities, whereby the petitioners have been directed to shift their firework shops from the present place of business to other place for alleged violation of Rule 83 of the Explosive Rules, 2008 (in short Rules, 2008).
2. All these writ petitions involve common question of law and as such same are being heard together and decided by this common judgment. With the consent of the learned counsel for the parties, W.P.(C) No. 1069 of 2018 is taken as a lead case.
-2-3. The factual background of the case, as emerges from the writ petition, is that the petitioners are carrying on the business of fireworks in Upper Bazar, Ranchi after taking license from the licensing authority. Their licenses were also renewed time to time. Suddenly, by an order contained in Memo No.78(i) dated 08.05.2017 the Deputy Commissioner, Ranchi (respondent no.2) constituted a Committee under the Chairmanship of the Additional Collector, District General Section, Ranchi to carry out inspection about the status of the shops/godowns of fireworks situated in Upper Bazar, Ranchi and submit a report. Pursuant thereto, the inspection was carried out and some irregularities were found in the shops of the petitioners and as such they were asked to submit explanation. The petitioners, accordingly, submitted their explanations and denied some of the alleged irregularities and the rest were claimed to have been removed. Thereafter, in terms with the order of the Deputy Commissioner, Ranchi vide memo no.2435 dated 23.09.2017 one inspecting team was constituted headed by the Sub Divisional Officer, Sadar, Ranchi to inspect as to whether the irregularities highlighted by the inspecting team has been cured or not. Again the shops of the petitioners were inspected and it was found that except one-two irregularities, rests are still existing. The report was submitted by the inspecting team before the respondent no.2, Ranchi for further action and on that basis, the respondent no.2 vide letter dated 10.01.2018 directed the petitioners to shift their shops from the present place of business to other place of low population density. The Chhotanapur Fire Works Dealers Association, Ranchi vide letter dated 17.01.2018 requested the respondent no.2 to review the said order and thereafter the respondent no.2 directed the Additional In-charge State Fire Service Officer, Ranchi for physical verification, who reported that the shops of the petitioners are situated in highly populated and dense area, which is not in the interest of the public at large, and as such their shops may be shifted to some other place. Thus, the respondent no.2 vide letter dated 29.03.2018 directed the Sub-Divisional Officer, Ranchi to hold a meeting with the licensees of the fireworks. Accordingly, the meeting was held and it was resolved that the concerned licensees shall shift their shops till 07.05.2018. In the said -3- meeting, it was also resolved to recommend for cancellation of the no objection certificates issued in favour of the concerned licensees.
4. The learned Senior Counsel for the petitioners submits that the petitioners are carrying on the business of fireworks after obtaining licenses and in conformity with the provisions of the Act and the rules framed thereunder. It is also submitted that the respondent authorities have arbitrarily directed the petitioners to shift their shops/godowns from the present place of business to some other place. The said action of the respondent authorities is violative of the principles of natural justice. The fire department itself has been issuing no objection certificates to the petitioners from time to time. It is also submitted that merely shifting the firework shops running under valid licenses to a place other than the Upper Bazar would not prevent incidents which may occur at any place, if the safety measures are not properly taken care of. The incident of village Kumardubu of Bahragora Block in the District of East Singhbhum has been referred by the respondents to justify the impugned orders, however, the said incident did not take place in a thickly populated area like Upper Bazar. Moreover, the said incident had taken place in a factory where fireworks were being illegally manufactured without any license, whereas the petitioners deal in the sale of readymade fireworks used during festivals/marriages. The tankers and necessary equipments can be stationed or parked at the vacant place of the Ranchi Municipal Corporation available just in the vicinity of Upper Bazar (the business places of the petitioners) for safety and security of all the establishments and in the interest of the public at large. The remedy to prevent such apprehension of an accident can be sorted out by keeping a tanker of the Fire Department with all necessary equipments for all times to come instead of shifting the old business establishments to an unknown and indefinite place. The petitioners have fitted all possible and necessary fire extinguishing systems as directed by the Fire Department. It is also submitted that the place of business of the petitioners are situated by the side of 30 ft. or 20 ft. wide road which is easily accessible to all types of vehicles. Even tankers containing water for supply in different parts of the city used by the RMC are -4- also parked in the Upper Bazar. Moreover, a Fire Station is situated near Upper Bazar and as per Google map it will take only 5-7 minutes time to reach Upper Bazar and thus it is wrong to say that the vehicles of Fire Station would take more than an hour to reach there.
5. Per contra, the learned counsel for the respondents submits that the petitioners have been directed to shift their place of business as they are carrying on the business in violation of Rule 83 of the Rules, 2008 particularly clause (e) of Rule 83(4). It is further submitted that the impugned directions have been passed after giving reasonable opportunity and on due enquiry of the petitioners' shops. It is further submitted that in order to ensure safety of the public at large, it is necessary to shift the firework business of the petitioners from densely populated area to other places.
6. Heard learned counsel for the parties and perused the materials available on record.
7. The respondents have given much stress to the argument that the petitioners are carrying on business in violation of Rule 83 of Rules, 2008 and as such before coming to the merit of the case, it would be appropriate to quote said rule, which reads as under:-
"83. Explosives permitted for possession and sale from shop.--
(1) 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.
(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 premises shall have storage area not less than nine square meters and not more than twenty five square meters.
(4) The shop shall --
(a) 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;
(b) not be situated in the sub-level or basement or mezzanine floor;
(c) not be situated under the upper floor used for the purpose of dwelling;
(d) not be situated under or nearby any staircase or lift;
(e) be accessible for fire-fighting; and -5-
(f) have no electrical apparatus or battery or oil lamp or similar equipment's capable of producing spark or ignition and all electrical wiring in the shop be fixed and effectively sealed or conducted or mechanically protected; the main switch or circuit breaker be provided at the immediate accessible position outside the premises."
8. On perusal of the record it appears that although several irregularities have been alleged against the petitioners while carrying on the firework business, the main violation is with respect to Rule 83(4)(e) of the Rules, 2008 which provides that the shop shall be accessible for fire-fighting. The contention of the learned counsel for the respondents is that the shops of the petitioners are situated in densely populated area having very narrow road. Thus, the shops are not accessible for fire-fighting measures. Pursuant to the order of the Deputy Commissioner (respondent no.2), a physical inspection was carried out at the petitioners' places of business by the Additional In- charge State Fire Service Officer, who reported that the shops of the petitioners are situated in a very densely populated area. In the said report, it has been mentioned that in the event of any mishappening, a fire extinguisher vehicle may take an hour to reach the place of occurrence. Learned senior counsel for the petitioners has, however, submitted that the office of the Fire Department is situated just near the petitioners' places of business and as per Google map, it would take only 5-7 minutes to reach there.
9. In my view, the time shown by the Google map appears to be only an ideal one during normal traffic conditions in the said area. As per the stand of the respondents, the fire extinguisher vehicle would have to pass through heavily congested road to reach the shops of the petitioners, particularly during day time due to chocked traffic condition, thus the accessibility of fire extinguisher vehicle is very difficult. According to the petitioners, the road near their shops are wide i.e. upto 30 ft., however, that may not ensure easy accessibility of fire extinguisher vehicle considering the fact that the same are situated in a densely populated area. What is relevant here is that in case of any mishappening, whether the fire extinguisher vehicle would reach the said place promptly penetrating the chocked traffic. Learned senior counsel for the petitioners has submitted that although they have removed most of the irregularities, the direction of the -6- respondents to shift their places of business is arbitrary, as the direction for shifting the place of business has been passed in violation of clause (e) of Section 83(4) of Rules, 2008 and thus the removal of other irregularities may not make any major difference in the case of the petitioners.
10. Learned senior counsel for the petitioners puts reliance on a Single Bench judgment of the Chhattisgarh High Court rendered in the case of Manish Kumar Sahu & Ors. Vrs. State of Chhattisgarh & Ors. (W.P.C No. 706 of 2016). I have perused the said judgment wherein the issue was that the licensees of fireworks were directed to shift their place of business on the ground that those were situated in busy and densely populated area. The court held that the impugned direction has been passed in violation of the principles of natural justice. It has further been held that none of the materials placed before the court show that any of the licensees have violated the terms and conditions of the license. In the said case, the violation of rule 83 of Rules, 2008 was not in question, thus the observation made in the said case is not applicable in the facts situation of the present case.
11. Moreover, in the present case the petitioners have been given sufficient opportunity to explain their cases and only thereafter the impugned direction has been issued. The legislature in its wisdom enacted Explosive Act, 1894 in order to regulate the manufacture, possession, use, sale, transport and importation of explosives and in order to carry out the object and purpose of the Act, 1894, Rules have been framed from time to time in exercise of the powers conferred under the Act. Presently, the Rules, 2008 is in vogue. Rule 102 of Rules, 2008 provides that any person who desires to obtain a licence for manufacture, possession for sale or use of explosives shall obtain no objection certificate from the District Magistrate or Director General of Mines Safety, as the case may be, before commencing construction of the premises. Further, Rule 103 provides the procedure to be observed for issuance of no objection certificate and for grant of licence. After getting application, the District Magistrate shall make verification of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other -7- verifications or enquiries as may be specifically required by the licensing authority to be carried out, if any, and on any other matter as deemed necessary. For verification of the interest of public, the District Magistrate shall forthwith cause a notice to be published calling upon the public to submit objections and only after hearing the objections, shall take any decision. Further Rule 115 provides that any 'no objection certificate' granted under Rule 103 may be cancelled by the authority issuing the same or the authority superior to it, if the authority is satisfied that the cancellation of no objection certificate is absolutely necessary for public peace and safety. It is further provided that before cancellation of the no objection certificate the licensee shall be given reasonable opportunity of being heard. Thus, on consideration of the aforesaid provisions of Rules 2008, it would emerge that the licensee is not entitled to continue with the no objection certificate if the public peace and safety is put in question.
12. In order to ensure public peace and safety, apart from other conditions, clause (e) of Rule 83(4) specifically provides that the place of business of any fireworks must be accessible for fire-fighting. Thus, in any violation thereof, the authority is required to take appropriate action against the licensee and the same cannot be challenged merely on the ground that the licence and no objection certificate have been granted to the licensee after following due procedure. Ranchi is fast developing city resulting in immense growth in population and business activities throughout the city particularly 'Upper Bazar' area which is also known as business hub of Ranchi. Thus, the area which may not be so densely populated earlier has now become thickly populated which may have drawn the attention of the administrative authorities to take suitable steps so as to ensure public safety and peace. Though, the said decision may cause hardship to the businessmen (the petitioners herein), yet for the safety of the public at large, hard measures are required to be taken for which the authorities are otherwise empowered by the Rule itself. However, the words "out of densely populated area" mentioned in the letter dated 10.01.2018 are too vague to be followed by the petitioners.
-8-13. Under the aforesaid circumstance, the present batch of writ petitions are disposed of with a direction to the petitioners to shift their place of business to such places where there is accessibility of fire extinguisher vehicle within two months from the date of this order and thereafter they shall make application(s) before the competent authority for grant of no objection certificate(s). The said application(s) of the petitioners shall be taken up by the competent authority on priority basis within the sphere of the Explosive Act and Rules, 2008. The respondents shall not take any coercive action against the petitioners within the period of two months as indicated herein above.
14. Consequently I.A No. 3393 of 2018, I.A No. 4244 of 2018, I.A No. 4241 of 2018 and I.A No. 4243 of 2018 are also disposed of.
(Rajesh Shankar, J.) Sanjay/AFR