Andhra Pradesh High Court - Amravati
Kureti V.S.K. Srimannarayana vs Union Of India on 12 December, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.19705 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue Writ of Mandamus, declaring the action of the respondents, particularly third respondent/police, in issuing the 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 at D.No.25-122 Kanithi Road, Visakhapatnam and declare the same as illegal, arbitrary and set-aside the order dated 19.11.2019.
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 on 04.07.2019. Thereafter, the third respondent/ Commissioner of Police addressed a letter to the fourth respondent to take action against the petitioner. Thereupon, a show cause notice was issued by the fourth respondent/Deputy Chief Controller of Explosives, Visakhapantam on 14.11.2019 proposing to cancel the 'No Objection Certificate' of the peititoner issued by the authorities for running fire works business, calling for explanation within fifteen days from the date of notice. Accordingly, the petitioner submitted his reply/ explanation to the show cause notice on 18.11.2019. But, an order of cancellation of MSM,J WP.No.19705 of 2019 2 'No Objection Certificate' was passed on 19.11.2019 by the third respondent/Commissioner of Police and no opportunity was afforded to this 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 this petition.
Learned Assistant Government Pleader for Home placed on record written instructions dated 10.12.2019 alleging that the order was issued strictly adhering to the Explosives Rules, 2008, more particularly Rule 115(c), since it is situated within the commercial locality surrounded by petrol bunks etc, and therefore, it is dangerous to the neighbouring occupants and thereby, the order passed by the authorities cannot be set-aside.
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, the petitioner cannot approach this Court seeking redressal of his claim, invoking jurisdiction under Article 226 of the Constitution of India and requested to pass appropriate order.
As seen from the material on record, 'No Objection Certificate' was issued to this petitioner by the third respondent for running fire works business. But, intended to cancel the 'No Objection Certificate' issued show cause notice dated 14.11.2019, calling this petitioner to submit his explanation within fifteen days from the date of receipt of the notice. In compliance of the show cause notice, the petitioner submitted reply/explanation to the show cause notice on 18.11.2019. These facts are not in dispute MSM,J WP.No.19705 of 2019 3 and similarly passing the impugned order on 19.11.2019 is also equally not in quarrel.
The only ground urged before this Court is that, no opportunity of being heard is afforded to this petitioner, as required under Section 115(1)(c) of the Explosives Rules, 2008. The question of affording an opportunity by the third respondent/police cannot be interfered in the particular fact situation, for the simple reason that the explanation was submitted on 18.11.2019 and the order was passed on the next day i.e. 19.11.2019, thereby, there is no possibility of affording an opportunity to this petitioner, in fact, it is not the case of the petitioner as per the order that, an opportunity of being heard was afforded to this petitioner before passing the 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 the 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 the third respondent to pass appropriate order, strictly adhering to Rule 115(c) of the Explosive Rules.
MSM,J WP.No.19705 of 2019 4 In the result, writ petition is allowed, setting aside the cancellation order dated 19.11.2019 passed by the third respondent, giving liberty to the third respondent/Commissioner of Police to pass a reasoned order in accordance with law, strictly adhering to Rule 115(c) of the Explosive Rules. No costs.
Consequently, miscellaneous applications pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:12.12.2019 sp