Madras High Court
M.Mari vs The District Collector / on 25 August, 2015
Author: R.Subbiah
Bench: R.Subbiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.08.2015
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
Writ Petition(MD).No.16994 of 2014
and
M.P.(MD) No.1 of 2014
M.Mari ... Petitioner
Vs
1.The District Collector /
District Magistrate,
Kanniyakumari District.
2.The District Revenue Officer
and Additional District Magistrate,
Nagercoil, Kanyakumari District. ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India
to issue a Writ of Certiorarified Mandamus to call for the records relating
to the order cancellation of Explosives License of the 2nd respondent in his
proceedings Pa.Mu.Se.1/5691/12 dated 18.09.2014, quash the same and issue
consequential directions to the respondents to renew the Explosives License
of the petitioner in No.1/Exp/Agm/06 to run the Explosives Manufacturing Unit
Under Form 20 under Explosives Act, 1884.
!For Petitioner : Mr.M.Ajmal Khan
Senior Counsel
for M/s.G.Kasinatha Durai
^For Respondents : Mr.S.Kumar
Additional Government Pleader
:ORDER
This Writ Petition has been filed challenging the order dated 18.09.2014 passed by the second respondent cancelling the Explosives License of the petitioner and consequential direction to the respondents to renew her Explosives License in No.1/Exp/Agm/06 in Form 20 under Explosives Act, 1884, to run the Explosives Manufacturing Unit.
2.The learned Senior Counsel for the petitioner would submit that the petitioner is running a crackers shop in the licensed premises in Door No.19/5-2, S.No.482/13, Neendakarai 'B'Village, Agasteeswaram Taluk, from the year 2002 onwards as per the licence granted under Form 24 in Explosives License No.3/Exp/KKI/02. The petitioner applied for renewal of the explosives license from 01.04.2005 which was granted under Form 24. Pursuant to the same, the petitioner was called upon by the District Revenue Officer and Additional District Magistrate, Kanniyakumari District to attend the enquiry on 26.09.2005 with relevant documents to renew her explosives licence and she had attended the enquiry on the same day. Thereafter, the explosives licence granted to the petitioner under Form 24 was cancelled and new explosives licence under Form 20 in Licence No.1/Exp/Agm/2006 was granted by the respondent on 14.10.2006 to manufacture explosives under the Explosives Act, 1884. As per the said licence, the petitioner has been running the explosives manufacturing unit in a proper manner and the licence has also been renewed every year by the officials. The petitioner had paid Rs.500/- towards renewal charges on 13.02.2012 and applied on 23.02.2012 to renew her explosives licence for the year 2012-2013 as per the Rule 165(3) of the Explosives Rules, 1983 and on the belief that her licence would be renewed automatically, she has been running the manufacturing unit, but till the date of expiry of her licence i.e., 30.03.2012 no order has been passed. Therefore, she had approached the officials to renew her licence as early as possible and the officials have stated that it is under process and they have also informed her to run the explosives manufacturing unit without waiting for the licence and they have checked the unit periodically upto 26.11.2012. While so, on 11.10.2012 the petitioner was called by the Vellichandai Police for enquiry with regard to Crime Nos.45 and 46 of 2012 registered under Sections 4, 5(a) of the Explosives Substances Act, 1908 and when she had gone to the police station for enquiry, she had been arrested by the Vellichandai Police on the allegation that she had sold 1 Kg of Aluminium Powder, Barium Nitrate and Pottasium Nitrate to one Mr.Sasiyon, S/o. Pangiraj, on 03.04.2012 by getting Rs.5,000/- illegally. Thereafter, she had been released on bail by the Judicial Magistrate. Under such circumstances, the Personal Assistant (General) to the District Collector, Kanniyakumari, had issued show cause notice to the petitioner on 12.11.2012 asking why action should not be taken against her for the illegal sale of explosives and also asked her to attend enquiry within one week from the date of notice. Thereafter, on 28.01.2013 another notice was issued to the petitioner to attend enquiry on 05.02.2013 at about 4 p.m. before the District Revenue Officer, Nagercoil, with relevant document to renew her explosives licence and she had attended the enquiry on the said date. While the petitioner was eagerly waiting for her licence, to her shock and surprise, the second respondent herein cancelled her Explosives Licence without considering her explanation.
3.The learned Senior Counsel for the petitioner drew the attention of this Court to Rule 112(5) of the Explosives Rules, 2008 which reads as follows:
112.Renewal of licence-
...
(5) If the application for renewal reaches the renewing or licensing authority on or before the date of expiry, the licence shall be deemed to be in force until such date as the licensing authority renews the licence or until an intimation that the renewal of the licence is refused has been communicated to the applicant.
4.By relying upon the above said rule, the learned Senior Counsel for the petitioner would submit that even if the period mentioned in the licence expires, till the application for renewal is considered by the authority concerned, the licence shall be deemed to be in force. In so far as the present case is concerned, the licence period expired on 30.03.2012 but the impugned order was passed on 18.09.2014 and therefore, till 18.09.2014 the petitioner's licence is deemed to be in force. He would further submit that as per Rule, 114 of the Explosives Rules, 2008, the authority refusing to grant approval or licence including amendment and renewal shall record in writing the reasons for such refusal and communicate the same to the applicant and before refusal, the applicant should be given an opportunity of being heard. In so far as suspension and revocation or cancellation of licence is concerned, the same is governed by Rule 118 of the Explosives Rules, 2008 and the Rule 118(b) says every licence granted under these rule shall stand cancelled, if the licensee is convicted and sentenced under any criminal offences or ordered to execute under Chapter VIII of the Code of Criminal Procedure, 1973 (2 of 1974), a bond for keeping peace for good behaviour. Insofar as the present case is concerned, only a criminal case is pending trial and the petitioner was not convicted. Further more, as per Section 118, before cancelling the licence under this Rule, the holder of the licence should be given an opportunity of being heard. But, in the instant case, no opportunity of personal hearing was given to the petitioner. Therefore, the order passed by the second respondent cancelling the explosives licence of the petitioner is in violation of the Explosives Rules, 2008. Hence, the petitioner is before this Court.
5.Per contra, the learned Additional Government Pleader appearing for the respondents would submit that the order was passed only after hearing the petitioner and therefore, it cannot be stated that the order was passed without giving an opportunity of hearing to the petitioner.
6.Considering the submissions made on either side and on perusal of the Rules 114 and 118 of the Explosives Rule, 2008, it is very clear that before cancelling the explosives licence of the petitioner, the authority should have communicated the reasons for refusal and opportunity of being heard should have been given to the petitioner. But, in the instant case, no such communication of the authority concerned expressing his intention to cancel explosives licence of the petitioner was given and also no opportunity of personal hearing was given to the petitioner. In my considered opinion, had the notice been given and opportunity of being heard was given, the explanation of the petitioner would have been different. Therefore, on the above grounds, the impugned order dated 18.09.2014 passed by the second respondent is set aside. This Court directs the second respondent to issue fresh notice expressing the intention of the authority to cancel the licence within a period of two weeks from the date of receipt of a copy of this order and after affording an opportunity of personal hearing to the petitioner, the second respondent shall pass orders within a period of six weeks thereafter.
7.In the result, the Writ Petition is allowed. No costs. Consequently, the connected miscellaneous petition is closed.
To
1.The District Collector / District Magistrate, Kanniyakumari District.
2.The District Revenue Officer and Additional District Magistrate, Nagercoil, Kanyakumari District.
.