Kerala High Court
S.Prasad vs District Magistrate on 14 February, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941
WP(C).No.11868 OF 2018(G)
PETITIONER:
S.PRASAD
AGED 56 YEARS, S/O.SUKUMARAN, RESIDING AT LAL
BHAVAN, KOCHUKARIKKAL,KARIMPINPUZHA P O,
PAVITHRESWARAM, KOLLAM DISTRICT-691507.
BY ADVS.
SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SEBASTIAN
SRI.RAJAN G. GEORGE
RESPONDENTS:
1 DISTRICT MAGISTRATE, KOLLAM
CIVIL STATION, KOLLAM-691013.
2 ADDITIONAL DISTRICT MAGISTRATE
KOLLAM, CIVIL STATION, KOLLAM-691013.
3 SECRETARY
PAVITHRESHWARAM GRAMA PANCHAYATH,KARIMPINPUZHA P O,
KOLLAM-691507
4 REJITHA V
VANI NIVAS, KANNIMEL CHERY,KILIKOLLOOR P O, KOLLAM-
691004.
R1 BY GOVERNMENT PLEADER
R4 BY ADV. SRI.R.T.PRADEEP
OTHER PRESENT:
GP. B.VINITHA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-
01-2020, THE COURT ON 14-02-2020 DELIVERED THE FOLLOWING:
W.P.(C).No.11868/18
2
JUDGMENT
Dated this the 14th day of February 2020
1. This writ petition is filed with the following prayers:-
i)issue a writ in the nature of certiorari or any other appropriate writ, direction or order to quash Ext.P4; or
ii)issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the 1st respondent to review Ext.P4 on the basis of Ext.P5 representation, and keep the operation of Ext.P4 until then;
iii)issue a writ in the nature of mandamus or any other appropriate writ, direction or order directing the 3rd respondent from issuing licenses or permits under the Kerala Panchayat Raj Act, 1994 to the 4th respondent to start fire-cracker stall;"
2. Heard learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for the 4th respondent.
3. The contentions of the petitioner is that the licence granted to W.P.(C).No.11868/18 3 the 4th respondent by Exhibit P4 proceedings for storage and sale of 500 kgs of Chinese crackers and sparklers is per se illegal and invalid. The contention of the petitioner is that the petitioner's house is situated at a distance of 10 meters from the proposed location, whereas the safety distance should be at least 45 meters. It is further contended that there are several protected works within the prohibited distance from the licensed premises and that as such, Exhibit P4 licence could not have been issued.
4. At the time of argument, the learned counsel for the petitioner contended that chinese crackers have been banned in the State of Kerala and that the licence granted for sale of Chinese crackers or sparklers including Sub-division 1 of Division 2 of Class 7 as per the Explosives Rules is completely misconceived, since the licence could be granted under LE5 only in respect of manufactured fire works of Class 7 of Division 2 of Sub-division 2 upto 300 kgs along with Chorsa crackers or sparklers. It is, therefore, contended that there is no LE5 licence contemplated for 500 kgs of Chinese crackers W.P.(C).No.11868/18 4 or sparklers and that as such, Exhibit P4 is non est and void. It is also contended that the dual classification as provided in Schedule 1 and Schedule 2 to the Explosives Rules is no longer applicable and that the UN classification as provided in Part 2 of Schedule 1 is the classification applicable in the case of Explosives licence. It is further contended that the definition of fire works and manufactured fire works being distinct and separate in terms of Rule 2(24) and Rule 2(32) of the Explosives Rules, 2008, the 4th respondent would not be entitled to a LE5 licence for Chinese crackers or sparklers.
5. A detailed counter affidavit has been placed on record by the 4th respondent contending that the licence issued is one for storage and sale of 500 kgs of crackers and sparklers and that there is no distance rule contemplated under Explosives Rules, 2008 to be maintained for a shop room from a dwelling house in respect of the licence granted to the 4 th respondent. It is stated that Rule 86(3) of the Rules is the applicable provision and that there is admittedly a distance of more than 10ms from the shop room to the petitioner's house. It is further W.P.(C).No.11868/18 5 contended that the distance required from a licenced shop room to the dwelling house is only meters at the m. Relying on the provisions of Schedule I of the Rules, it is contended that Class 7 of the Schedule I is a fireworks class and Sub-division I thereof of Division 2 comprises fireworks which are relatively innocuous and are not liable to explode violently and includes Chorsa crackers, serpants etc. It is stated that the arguments raised by the petitioner are completely untenable and that pursuant to the licence granted, the 4 th respondent has already started functioning the storage and shop room in the premises in question.
6. The learned Government Pleader would also submit that the licence is an LE5 licence in respect of Sub-division 1 of Division 2 of Class 7 of Schedule I to the Rules and that the distance to be maintained is as per Rule 86(3) and that the licence granted is perfectly in order. It further contended that Part 2 of Schedule I with regard to the UN classification of explosives is applicable only for the transportation of dangerous goods and has no application whatsoever in the W.P.(C).No.11868/18 6 classification with regard to grant of licences for the possession or sale of fireworks.
7. I have considered the contentions advanced. Rule 2(24) defines fireworks as low hazard explosives comprising of any composition or device manufactured with a view to produce coloured fire or flame, light effect, sound effect, smoke effect or combination of such effects and includes fog-signals and fuses. Rule 2 (59) defines UN Classification to mean United Nations recommendations in the Model Regulation on the Transport of Dangerous Goods which specify testing procedures to be carried out by competent authorities while classifying dangerous goods for transport. Chapter II provides for the classification of explosives and Chapter III provides for the need for licences. The types of licences are provided in the Rules. An LE5 licence is a licence required to possess and sell fireworks of Class 7 Division 2 Sub-division 2 and 500 kgs of Chorsa crackers or sparklers. The petitioner has been granted licence for possession and sale of fireworks including crackers and sparklers which are provided at Sub-division 1 of W.P.(C).No.11868/18 7 Division 2 of Class 7 which is substituted by notification dated 9.1.2019. Rule 86(3) only provides that there shall be minimum distance of 50 meters from "any such premises" or any other premises used for storage of similar explosives flammable or hazardous materials. In the above view of the matter, the contention raised in the writ petition that Exhibit P4 licence issued to the 4th respondent is in violation of the provisions of the Explosives Act and the Rules made thereunder cannot be accepted. The arguments raised by the writ petitioner in the writ petition as also at the time of hearing are devoid of merits. The writ petition fails and the same is accordingly dismissed. However, it is made clear that the licence granted can be utilised for storage and sale of permitted fireworks alone.
Sd/-
Anu Sivaraman, Judge sj APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF TAX RECEIPT EXHIBIT P2 A TRUE COPY OF PLAINT IN OS.NO.75/2018 ON
THE FILE OF COURT OF MUNSIFF, KOTTARAKKARA. EXHIBIT P3 A TRUE COPY OF REPORT OF THE ADVOCATE COMMISSIONER DATED 19/02/2018 FILED IN OS.NO.75/2018 ON THE FILE OF COURT OF MUNSIFF, KOTTARAKKARA.
EXHIBIT P4 A TRUE COPY OF LICENSE DATED 27.01.2018 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT IN PROCEEDINGS NO.DDS/16903/17/M7 EXHIBIT P5 A TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R4(A) TRUE COPY OF ORDER DATED 20.3.2018 IN I.A.NO.538/2018 IN O.S.NO. 75/2018 BY THE COURT OF MUNSIFF, KOTTARAKKARA.
EXHIBIT R4(B) TRUE COPY OF LICENSE DATED 13.8.2018 BY PANCHAYAT FOR POSSESSION AND SALE OF 500 KGS. OF CHINESE CRACKERS AND SPARKLERS.
EXHIBIT R4(C) TRUE COPY OF INVOICE BILL DATED 20.8.2019 FOR PURCHASE WORTH OF RS.20,296/-.
EXHIBIT R4(D) TRUE COPY OF INVOICE BILL DATED 21.08.2019 FOR PURCHASE WORTH OF RS.29,293.50 EXHIBIT R4(E) TRUE COPY OF INVOICE BILL DATED 23.8.2019 FOR PURCHASE WORTH OF RS. 35,223/-
EXHIBIT R4(F) TRUE COPY OF INVOICE BILL DATED 27.8.2019 FOR PURCHASE WORTH OF RS.41,005/-.
EXHIBIT R4(G) TRUE COPY OF REGISTRATION CERTIFICATE DATED 23.2.2018 FOR GST.
EXHIBIT R4(H) TRUE COPY OF RECEIPT DATED 28.8.2019 ISSUED FROM DISTRICT POLICE OFFICE, KOLLAM RURAL.
True copy PS to Judge