Bombay High Court
Mintech Explochem India Llp A ... vs The Union Of India, Thr. Ministry Of ... on 2 December, 2021
Author: Sunil B.Shukre
Bench: Sunil B. Shukre, Anil L. Pansare
WP.1177.20.J
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 1177/2020
Mintech Explochem India LLP
A partnership firm : Through its partner
Premnarayan Shrikisan Vyas
Aged about 35 years, occu: Business
R/o F/3 Nikehra Apartment
New Colony, Nagpur. ..PETITIONER
versus
1. The Union of India
Through Ministry of Commerce and
Industries
Petroleum and Explosives
Safety Organization (PESO)
Formerly Department of Explosives
Through its Secretary
5th floor, A Block, CGO Complex
Seminary Hills, Nagpur.
2) The Chief Controller of Explosives
A Block, CGO Complex, Fifth floor
Seminary Hills, Nagpur.
3) The State of Maharashtra
Through Urban Development Department
Through its Secretary
Mantralaya, Mumbai
4) District Magistrate
Collector office Premise
Civil Lines, Nagpur. .. RESPONDENTS
..................................................................................................................
Mr. S.S. Sharma, Advocate for petitioner
Mr. U.M.Aurangabadkar, ASGI for respondents 1 & 2
Mr. K.L. Dharmadhikari, AGP for respondents 3 and 4
................................................................................................................
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WP.1177.20.J
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CORAM: SUNIL B. SHUKRE &
ANIL L. PANSARE, JJ
DATED : 2nd December, 2021.
ORAL JUDGMENT: (PER SUNIL B.SHUKRE, J.)
1. Heard.
2. Rule. Rule, returnable forthwith. Heard finally by consent.
3. The State of Maharashtra has not given any reply regarding the constitutional challenge made to the Government Resolution (GR) dated 19.12.2018 which sets set out the limit of 1.5 km. from gaothan boundary, as set out in Rule 103 (3) (a) for the purpose of issuance of 'no objection certificate' and for grant of license for storage, possession and sale of explosives. It contends that in any case the proposed site of godown/ storage being situated within 1.5 km. no objection could not have been granted without following proper procedure. Such a stand of the State of Maharashtra, as seen from the reasons stated in the impugned order dated 10.01.2020 appears to be contrary to its own position. In the impugned order, it is stated that such magazine of explosives or storage of explosives is permissible only if it is situated ::: Uploaded on - 03/12/2021 ::: Downloaded on - 04/12/2021 01:57:34 ::: WP.1177.20.J 3 beyond 2 kms and that means the State of Maharashtra still going by its GR dated 19.12.2018. Now, if we consider the GR dated 19.12.2018, we can, at once, come to the conclusion that minimum limit of 2 km. beyond the gaothan boundary prescribed therein, is not consistent with the limit of 1.5 km set out in Rule 103(3)(a) of the Rules, 2008. There is no dispute about the fact that the subject of explosive is included in the Union list and, therefore, it is within the exclusive power and domain of the Union to legislate upon it and it is not for the State to do so.
4. In the present case, the central legislation is already in place and, therefore, by GR dated 19.12.2018, the limit of 1.5 km could not have been extended to 2 km and, as such, the GR dated 19.12.2018 could be said to be inconsistent with the Central legislation and, therefore, must not stand to the scrutiny of law.
5. In the result, the Writ Petition is allowed. The GR dated 19.12.2018 is hereby quashed and set aside as being ultra vires to Explosive Rules 2008, in particular, Rule 103 of the said Rules. The impugned order is hereby quashed and set aside. The matter is remanded back to the respondent no.4 for fresh consideration in the light of the provisions made in Rule 103 of the Rules, 2008. ::: Uploaded on - 03/12/2021 ::: Downloaded on - 04/12/2021 01:57:34 :::
WP.1177.20.J 4
6. Rule is made absolute in the above terms. No costs.
JUDGE JUDGE
sahare
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