Kerala High Court
Siju John vs The District Collector on 20 February, 2016
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
TUESDAY, THE 30TH DAYOF MAY 2017/9TH JYAISHTA, 1939
WP(C).No. 11639 of 2017 (D)
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PETITIONER(S):
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SIJU JOHN,
MANAGING PARTNER, S.N. TRADERS,
MUKKADAYIL HOUSE, SOUTH VAZHAKKALA,
KAKKANAD, KOCHI - 682 030.
BY ADVS.SRI.SHINU J.PILLAI,
SRI.V.GOPIKRISHNA,
SMT.S.SUJA,
SMT.SHADHIYAELIZABETH GEORGE.
RESPONDENT(S):
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1. THE DISTRICT COLLECTOR,
COLLECTORATE, KAKKANAD,
ERNAKULAM DISTRICT - 682 030.
2. THE ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, ERNAKULAM DISTRICT - 682 030.
3. THE DIVISIONAL OFFICER,
FIRE AND RESCUE SERVICES,
ERNAKULAM DISTRICT - 683 020.
4. THE DISTRICT POLICE CHIEF,
ERNAKULAM RURAL, ALUVA - 683 101.
5. THE TAHSILDAR, KANAYANNUR TALUK,
ERNAKULAM DISTRICT - 682 011.
6. THE SECRETARY,
EDAKKATTUVAYAL GRAMA PANCHAYATH,
EDAKKATTUVAYAL - 682 313.
WP(C).No. 11639 of 2017 (D)
7. THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,
ERNAKULAM, KENDRIYA BHAVAN, BLOCK C-2,
3RD FLOOR, CSEZ P.O., ERNAKULAM - 682 037.
R1 TO R5 BY GOVT. PLEADER SRI.SURIN GEORGE IPE.
R7 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30-05-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 11639 of 2017 (D)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE PARTNERSHIP REGISTRATION CERTIFICATE.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE NO.A6-4015/16.
EXHIBIT P3 TRUE COPY OF THE APPLICATION ALONG WITH ACKNOWLEDGMENT
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 20.02.2016 ISSUED BY THE
1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPORT DATED 26.03.2016 SUBMITTED BY
THE 5TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 09.03.2016 ISSUED BY
THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED 23.06.2016 ISSUED BY THE
4TH RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE SAID ORDER DATED 23.03.2017 ISSUED BY
THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE COMPLAINT DATED 27.09.2016 PREFERRED BY
THE ALLEGED LOCAL RESIDENTS.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
P.B.SURESH KUMAR, J.
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W.P.(C).No.11639 of 2017
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Dated this the 30th day of May, 2017
J U D G M E N T
The petitioner is the Managing Partner of a firm engaged in the wholesale and retail sale of fireworks including Chinese sparklers. For the purpose of running a firework store, the petitioner had applied for the No Objection Certificate (NOC) as provided for under sub rule (1) of Rule 103 of the Explosives Rules, 1984 (the Rules) before the second respondent. The application of the petitioner was rejected by the second respondent as per Ext.P8 order. Ext.P8 order is under challenge in this writ petition.
2. Heard the learned counsel for the petitioner W.P.(c).No.11639 of 2017 : 2 : as also the learned Government Pleader.
3. It is seen from Ext.P8 order that the second respondent had called for the remarks of all the statutory authorities on the application preferred by the petitioner for NOC and all the statutory authorities have informed the second respondent that the premises, where the petitioner intends to start the shop, is suitable for the purpose and that the petitioner can be granted the NOC sought for by him. Nevertheless, it is seen that the application preferred by the petitioner for NOC has been rejected by the second respondent on the ground that the people in the locality are objecting to the business proposed by the petitioner. It is also seen that since the people in the locality have raised objection against the grant of NOC sought by the petitioner, the second respondent sought the views of the local Grama Panchayat and in response to the said reference, the local Grama Panchayat has also passed a resolution objecting the grant of NOC sought by the petitioner. The case of the petitioner is that the NOC sought by him cannot be refused W.P.(c).No.11639 of 2017 : 3 : on the ground that the people in the locality are objecting to the grant of NOC. The issue therefore, is as to whether the second respondent is justified in refusing the NOC sought for by the petitioner on account of the objection raised by the people in the locality.
4. As far as the present case is concerned, there is no dispute to the fact that there is no legal impediment in granting the NOC sought by the petitioner. As noted above, the only impediment in granting the NOC is the objection raised by the local Grama Panchayat and the neighbouring public. Sub-rules (1), (2) and (3) of Rule 103 of the Explosives Rules, which are relevant in the context, read thus:
"103. Procedure to be observed for issue of no objection certificate and for grant of licence - (1) The applicant desiring to obtain a licence from the Chief Controller or Controller, shall apply to the District Magistrate or the Director-General of Mines Safety with copies of the site plan showing the location of the premises proposed to be licensed for issue of a certificate to the effect that there is no objection to the applicant receiving licence for the site proposed.
(2) The District Magistrate shall be the W.P.(c).No.11639 of 2017 : 4 : authority to issue the certificate referred to in sub-rule (1) if the area of the proposed site does not come under the Indian Mines Act, 1952 (35 of 1952) and the District-General of Mines Safety shall be such authority if the area of the proposed site is for ANFO, Liquid Oxygen Explosives or SME and comes under the Indian Mines Act, 1952.
(3) The District Magistrate on receipt of application referred in sub-rule (1), shall make verification of the antecedents of the applicant, lawful possession of the site, genuineness of the purpose, interest of public and any other 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.
(a) 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, if any, with reasons thereof, within a period of one month from the date of publication of the notice and specifying the date, time and place for consideration of objections by him. Where the site of the proposed premises lies within 1.5 kilometers of the limits of the jurisdiction of any town planning municipal authority or port or air port or satellite or space craft launching station or similar establishments of national importance, the District Magistrate shall cause the notice to be served to such authority or establishment. The day of hearing for consideration of objections shall be fixed as early as possible, after the expiration of the period of one month from the date of publication of notice. On receipt of objection, the District Magistrate shall call the person or persons raising objection and also the applicant, giving not less that seven clear days before the day fixed for hearing for consideration of W.P.(c).No.11639 of 2017 : 5 : the objection. On the day fixed for the hearing or any day to which such hearing may be adjourned from time to time, the District Magistrate shall hear any objection relating to the purpose of no objection certificate and shall make such enquiry, as he may deem necessary to assess justification of such objection.
(b) If the quantity of explosives does not exceed one hundred kilograms or in case of ANFO or Liquid Oxygen Explosives or SME or transport of explosives in a road van, the notice for public for objection as stated in clause (a) shall not be necessary.
The said Rule mandates that the District Magistrate shall verify the interest of the public while considering the applications for NOC. Clause (a) of Rule 103(3) of the Rules prescribes the manner in which the District Magistrate has to verify the interest of the public. The said clause provides that the District magistrate shall forthwith cause a notice to be published calling upon the public to submit objections, if any, with reasons thereof, within a prescribed time and if any objection is received pursuant to the said notice, the objector shall be heard and the justification for such objection shall be assessed, after making such enquiry as he deems necessary. It is thus evident that when objection is raised to the grant of NOC, the District Magistrate shall go into the reasons on the basis of which the objection is raised and arrive at W.P.(c).No.11639 of 2017 : 6 : a conclusion as to the justifiability of the objection, after making necessary enquiries, and NOC sought can be rejected only if it is found that there are justifiable reasons for raising objections against the grant. It is with a view to enable the District Magistrate to examine the justifiability of the objection, the Rule insists the objectors to give reasons in support of their objections. In other words, the application for grant of NOC cannot be rejected merely for the reason that there are objections against the grant. (See Joy Joseph v. The District Collector, Collectorate, Kannur & Others [2016 (3) KLT 514]). The impugned order does not indicate that the District Magistrate has considered the justifiability of the objections raised by the local public. The impugned order, in the circumstances, is liable to be interfered with on that sole ground.
In the result, the writ petition is allowed and the impugned order is set aside. The second respondent is directed to consider the application preferred by the petitioner for grant of NOC afresh, with notice to the W.P.(c).No.11639 of 2017 : 7 : petitioner and the persons who have raised objections against the grant of NOC as also the local Grama Panchayat. If it is found that there is no justifiable reason for refusing the NOC, the NOC sought by the petitioner shall be granted.
Sd/-
P.B.SURESH KUMAR JUDGE rsr