Andhra Pradesh High Court - Amravati
K.V. Manikyamba vs Union Of India on 20 December, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.20217 of 2019
ORDER:
1. This writ petition is filed under Article 226 of the Constitution of India to issue Writ of Mandamus, declaring the action of respondent Nos.4 and 5, in issuing impugned order RDIS No.34/MC/II/2018 dated 19.11.2019 served on the petitioner dated 01.12.2019 by cancellation of NOC in connection with possession and sale of fire crackers in the name and style of M/s.Kolla Butchiraju at D.No.13- 14-6 I.T.I road, new Gajuwaka, Visakhapatnam, declare the same as illegal, arbitrary and set aside the order dated 19.11.2019.
2. The main grievance of this petitioner before this Court is that the petitioner obtained Explosive License and also obtained 'No Objection Certificate' from the Joint Chief Controller of Explosives, South Circle, Chennai for running crackers business. The third respondent/Commissioner of Police issued a notice to this petitioner on 26.06.2019 and the petitioner submitted his reply. Thereafter, the third respondent/Commissioner of Police addressed a letter to the fourth respondent to take action against the petitioner. Thereupon, an order of cancellation of 'No Objection Certificate' was passed on 19.11.2019 by the third respondent/Commissioner of Police and no opportunity was afforded to the petitioner for personal hearing. Therefore, it is violative of Rule 115(c) of Explosive Rules, 2008 and on the sole ground, the petitioner sought to set aside the order impugned in the writ petition.
3. Learned Assistant Government Pleader for Home submitted that the order was issued strictly adhering to Explosives Rules, 2008, more 2 MSM, J wp_20217_ 2019 particularly Rule 115(c), since it is situated within commercial locality surrounded by petrol bunks etc, and therefore, it is dangerous to neighbouring occupants, thereby, the order passed by the authorities cannot be set aside.
4. Learned Government Pleader for Home would contend that, an appeal is provided against the order passed for cancellation of 'No Objection Certificate' and without approaching the Appellate Authority, petitioner cannot approach this Court seeking redressal of claim, invoking jurisdiction under Article 226 of the Constitution of India and requested to pass appropriate order.
5. As seen from material on record, 'No Objection Certificate' was issued to the petitioner by third respondent for running fire works business. But, intended to cancel 'No Objection Certificate' without issuing any show cause notice, calling for explanation of petitioner. These facts are not in dispute and similarly passing the impugned order on 19.11.2019 is also equally not in quarrel.
6. The only ground urged before this Court is that, no opportunity of being heard is afforded to the petitioner, as required under Section 115(1)(c) of the Explosives Rules, 2008. The question of affording an opportunity by third respondent/police cannot be interfered in the particular fact situation, for simple reason that no show cause notice was issued, calling the petitioner for explanation, thereby, there is no possibility of affording an opportunity to the petitioner. In fact, it is not the case of petitioner as per the order that, an opportunity of being heard was afforded to the petitioner before passing the 3 MSM, J wp_20217_ 2019 impugned order. Therefore, the order passed by the third respondent/Commissioner of Police is totally in violation of Rule 115(c) of the Explosive Rules and this provision is incorporated with an avowed object to comply with the in-built principle of natural justice. But, contrary to the intendment of Legislature in incorporation of such provision, this order is passed hence, this Court can exercise power under Article 226 of the Constitution of India that third respondent has violated Rule 115(c) of the Explosive Rules, which is in the nature of principles of natural justice. Hence, I find that it is a fit case to set aside the impugned order, on the sole ground that the order is in contravention of mandatory requirement under Rule 115(c) of the Explosive Rules. However, this order will not preclude third respondent to pass appropriate order, strictly adhering to Rule 115(c) of the Explosive Rules.
7. In the result, writ petition is allowed, setting aside the cancellation order dated 19.11.2019 passed by third respondent, giving liberty to third respondent/Commissioner of Police to pass reasoned order in accordance with law, strictly adhering to Rule 115(c) of the Explosive Rules. There shall be no order as to costs.
8. Consequently, miscellaneous petitions, pending if any, shall stand closed.
______________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 20.12.2019 Rvk