Chattisgarh High Court
J. J. Enterprises vs State Of Chhattisgarh on 9 November, 2021
Author: Rajendra Chandra Singh Samant
Bench: Rajendra Chandra Singh Samant
-1-
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP(C) No. 4463 of 2021
J. J. Enterprises Through Its Partner Satyanarayan Sharma Aged About
39 Years S/o Shri Nandlal Sharma R/o Dondekala, Housing Board
Colony, Raipur Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through District Magistrate, Korba, District Korba
Chhattisgarh.
2. Commissioner, Bilaspur Division, District Bilaspur Chhattisgarh.
3. Additional District Magistrate, Korba, District Korba Chhattisgarh.
4. Sub Divisional Officer, Korba, District Korba Chhattisgarh.
5. Sunao Ram (Dead) Through Legal Representatives-
(a) Itwari Bai.
(b) Nakul Prasad.
(c) Arun Kumar.
All are R/o Dongaama, Tahsil Kartala, District Korba Chhattisgarh.
---- Respondents
For Petitioner : Shri Anand Shukla, Advocate.
For respondents No.1 to 4/ State : Shri Chandresh Shrivastava,
Dy.A.G.
For respondents No.5(a) to (c) : Shri Manoj Paranjpe and Shri Amit
Soni, Advocates.
Hon'ble Shri Justice Rajendra Chandra Singh Samant Order on Board 09.11.2021 Heard on petition.
1. This petition has been brought praying to set aside the order dated 27.8.2021 (Annexure-P/1) passed by respondent No.2 - Commissioner, Bilaspur Division in Case No. 14/Explosive License/ 20-2021.
2. It is submitted by counsel for the petitioner that Satyanarayan Sharma, partner of the petitioner firm purchased the land bearing Khasra No.234/10 measuring 0.85 acres situated at Dongaama, Kartala, District Korba from Shaifun Nisha by a registered sale-deed dated 31.5.2019. Mahboob Ali had given consent for that sale. For the purposes of -2- construction of a go-down for storage of explosives, the petitioner has filed an application for issuance of 'No Objection Certificate' (NOC) before the District Magistrate, Korba under the provisions of The Explosive Rules, 2008. After making requisite verification and enquiry, NOC was issued in favour of the petitioner on 22.1.2021.
3. It is submitted that respondents No.5(a) to 5(c) moved a representation under Rule 115 of the Explosives Rules, 2008 before the Commissioner, Bilaspur Division on the ground that the land on which go-down is proposed to be constructed is a Forest land and prayed for cancellation of NOC granted to the petitioner.
4. It is submitted by counsel for the petitioner that respondent No.2 - Commissioner, Bilaspur Division has passed the impugned order without taking into consideration that the NOC was granted after due verification of the application and submission of report from the revenue authorities. The petitioner preferred an appeal against the order of the Commissioner dated 27.8.2021 before the Board of Revenue. The Board of Revenue has dismissed the appeal on the ground that it is not maintainable under the provisions of the Explosive Rules, 2008.
5. It is further submitted that the impugned order passed by respondent No.2 is based on assumption and presumption by ignoring the facts on the basis of which, the NOC was issued in favour of the petitioner. Respondent No.2 has drawn a conclusion on the basis of missal of the year 1929-30 in which the land in question was "Bade Jhad Ka Jungle". It is also submitted that in the present scenario, the land mentioned as above is no longer a forest land. Documents are produced on the record to show that the land in question was assessed to land revenue and that Bhoomiswami rights were granted on the same land to the vendor of the sale-deed, which was executed in favour of the petitioner. -3- Hence, the impugned order is unsustainable, which is liable to be quashed.
6. Learned State counsel representing for respondents No.1 to 4 opposes the submissions and submits that the impugned order is reasoned and sustainable, hence, the petition be dismissed.
7. Learned counsel for respondent No.5 opposes the submissions made by counsel for the petitioner and submits that respondent No.3 - Additional District Magistrate had no authority to grant NOC to the petitioner. In the Schedule IV(3) of the Explosives Rules, 2008, it is clearly provided that licensing authority for grant of license in the matter of use of explosives etc. shall be Chief Controller or Controller of Explosives authorized by the Chief Controller which is an authority of Central Government.
The procedure as provided under Rule 103 of the Explosives Rules, 2008 in the matter of grant of NOC has not been followed. There is clear provision for publication of notice to invite objections but no such notice was published by the District Magistrate, therefore, respondent No.5 did not have any opportunity to object in the matter of grant of NOC. It is also submitted that No Objection Certificate granted under Rule 103 can be canceled by the authority issuing the same or authority superior to it and sub-rule (3) of Rule 11 of the Explosives Rules, 2008 clearly provides that the remedy against the order of cancellation of NOC is by filing an appeal. In the present case, the Appellate Authority shall be the State Government. It is also submitted that the petitioner had been given an opportunity of hearing by respondent No.2 before passing the impugned order. The land in question is forest land and the purpose of land can be converted only by the Central Government.
8. Reliance has been placed on the judgment of Division Bench of this -4- Court in W.P.(S) No. 2162 of 2020 between Steel Authority of India Limited through its Chairman and Anr. vs. Union of India and Anr. decided on 1.6.2020 that any interim relief as the nature of final relief cannot be granted. Reliance has also been placed on the judgments of this Court in the case of Budheshwar Singh vs. Krishna Pratap Singh and Ors., reported in 2021 SCC OnLine Chh 188 and in the case of Dharam Singh Gond vs. State of Chhattisgarh and Anr. in W.P.(C) No. 954 of 2014 dated 31.7.2017. Hence, it is submitted that the petition is liable to be dismissed.
9. In reply, learned counsel for the petitioner submits that the present petition is maintainable as the impugned order has been passed by the Commissioner. There is no provision of second appeal under the Rules, 2008, hence, the petitioner is entitled for grant of relief. It is also submitted that the constitutional right of the petitioner under Article 19(1)
(g) of the Constitution of India has been violated by passing of the impugned order. Hence, the petition be allowed and the petitioner may be granted interim relief.
10. Considered on the submissions. On perusal of the documents present in the record of the petition, it is noticeable that the sale-deed was executed in favour of the partner of the petitioner firm mentioning that the land in question is a revenue land. On the application filed by the petitioner, District Magistrate has made an enquiry and granted 'No Objection Certificate' dated 22.1.2021 (Annexure-P/3), in which the report of the Divisional Forest Officer, Korba has mentioned that Khasra No.234/10 situated in village Dongaama is a revenue land and it is the adjacent to the Forest Compartment No. P/1160 and therefore, the Forest Department had no objection. Hence, the NOC was issued.
11. Respondent No.2 has given emphasis and khasra missal of 1929-30 in -5- which land in question has shown as forest land and it is on that basis, order granting NOC has been cancelled.
12. Any NOC issued under Rule 103 of Rules, 2008 can be cancelled only on the grounds which are mentioned in Rule 115 of Rules, 2008. Sub- rule 1 & 2 of Rule 115 of Rules, 2008 provides as follows:
'115. Cancellation of no objection certificate.--(1) No objection certificate granted under rule 103, may be cancelled by the authority issuing the same or authority superior to it, if such authority is satisfied, that--
(a) the licensee has ceased to have any right for the lawful possession over the licensed premises;
(b) the licensee is convicted and sentenced for any criminal offence 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;
(c) the cancellation of no objection certificate is absolutely necessary for public peace and safety:
Provided that before cancellation of the no objection certificate, the licensee shall be given a reasonable opportunity of being heard.
(2) The authority issuing the no objection certificate or the District Magistrate or the State Government cancelling no objection certificate shall record, in writing, the reasons for such cancellation and shall immediately furnish to the licensee and the licensing authority concerned, copy of the order cancelling the no objection certificate and the reason for such cancellation.'
13. On examining the objections raised by respondent No.5 which had been the basis for passing the impugned order, there appears to be requirement to make a scrutiny of Rule 103 of Rules, 2008. Sub-rule (3) (A) of Rule 103 of Rules, 2008, is as follows:
'(3) ....
(a) For verification of the interest of public, the District -6- 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 than seven clear days before the day fixed for hearing for consideration of 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.'
14. The provision is clear on these terms that the District Magistrate shall cause show-cause a notice to be published calling upon the public to submit objections, if any, 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. It is only after the consideration of the objections, the District Magistrate shall proceed in the matter of taking decision on the application praying for grant of NOC. The procedure that has been followed by the District Magistrate nowhere mentions about the publication of notice for the public in the proceeding for granting NOC to the petitioner. The procedure was completed after -7- submission of report from the Superintendent of Police, Divisional Forest Officer, Sub-Divisional Officer, Executive Engineer PWD, Deputy Director Town & Country Plan and the Chief General Manager ERCON International Limited, therefore, clearly the rule as provided under Rule 103 (3)(a) has not been complied before passing of the order granting NOC.
15. It is also taken notice of that in the objection raised by respondent No.5 before the Commissioner/ respondent No.2, the fact regarding the Missal Khasra of 1929-30 was brought to the notice of the authorities for the first time and there was no opportunity for examining the same by the District Magistrate, as this fact was not brought to the notice of District Magistrate by any of the authorities concerned from whom the reports were called, hence, for these reasons, I am of this view that the order of District Magistrate granting NOC is not sustainable, however, the order of cancellation of that NOC passed by respondent No.2 is also not sustainable because the same has not been passed on the grounds that are available under Rule 115(1) of the Rules, 2008. Hence, it is found that both the orders are not sustainable. Therefore, this petition is disposed off at motion stage. The impugned order as well as the order of the District Magistrate for NOC are quashed. The application of the petitioner for grant of NOC before the District Magistrate stands restored. The District Magistrate, Korba i.e. Respondent No.1 is directed to initiate fresh proceedings on the application of the petitioner in strict compliance with the Rule 103 of the Explosive Rules, 2008 and pass the appropriate orders in accordance with law, at the earliest.
Sd/-
(Rajendra Chandra Singh Samant) Judge Nimmi