Madhya Pradesh High Court
Mahesh Ahuja vs The State Of Madhya Pradesh on 10 September, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2024:MPHC-JBP:45872
1 WP-24461-2024
IN THE HIGH COURT OF MADHYA
PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 10th OF SEPTEMBER, 2024
WRIT PETITION No. 24461 of 2024
MAHESH AHUJA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Warija Ghildiya, learned counsel for the petitioner.
Shri Abhijeet Awasthi, Deputy Advocate General for the
respondent/State.
ORDER
The petitioner has filed the present Writ Petition being aggrieved by the order dated 19.04.2024 passed by District Magistrate, Narmdadapuram under Rule 115 of the Explosives Rules, 2008 whereby the 'No Objection Certificate' dated 31.12.2018 has been cancelled. The petitioner has also challenged the order dated 19.04.2024 whereby the Commissioner, Narmdadapuram has dismissed the appeal vide order dated 02.08.2024 and maintained the order dated 19.04.02024.
The facts of the case in short are as under;-
2. The petitioner submitted an application before the District Magistrate Narmdadapuram for issuance of a 'No Objection Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43 NEUTRAL CITATION NO. 2024:MPHC-JBP:45872 2 WP-24461-2024 Certificate' under the Explosives Rules, 2008 for the sale and storage of explosives i.e. crackers etc. In the exercise of power under Rules 99 and 102, a 'No Objection Certificate' before construction was issued to the petitioner by the District Magistrate. Thereafter, the petitioner was given a license by the Controller of the Explosive under Rule 107 for the period of five years valid up to 31.03.2024. Before the expiry of the period, the petitioner has applied for renewal of the said license under Rule 112 of the Explosives Rules, 2008. Under Rule 112 (5) of the Explosives Rules, 2008, after submission of such application, the license shall be deemed to be in force until such date as the licensing authority renews the license.
3. The petitioner was served with the show cause notice dated 02.04.20224 by the District Magistrate, Narmdadapuram under (i) of sub-rule (5) of Rule 118 the Explosives Rules, 2008 for cancellation of license relying on the report submitted by the Sub Divisional Officer. In the show-cause notice, the six violations and reasons for the cancellation of the 'No Objection Certificate' were assigned to the petitioner. The petitioner submitted a reply on 12.04.2024 denying alleged violation or non compliance on his part. However, out of six alleged shortcomings, only two were considered by the District Magistrate and vide order dated 19.04.2024, cancelled the NOC dated 31.12.2018 in exercise of the power conferred under Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43 NEUTRAL CITATION NO. 2024:MPHC-JBP:45872 3 WP-24461-2024 Rule 115 the Explosives Rules, 2008. Thereafter, the appeal filed by the petitioner has also been dismissed by the Divisional Commissioner.
4. The petitioner has challenged the aforesaid two orders on various grounds like non-application of mind, invalid action, and arbitrary action and respondents filed the reply to support impugned action against the petitioner. After perusing the record one fact is revealed that a show cause notice dated 02.04.2024 was issued under sub-rule (i) of Rule (5) of Rule 118 the Explosives Rules, 2008 which provided grounds for cancellation of the License not cancellation of the 'No Objection Certificate' and the impugned final order has been passed under Rule 115 of the Explosive Rules which only deals with grounds for cancellation of the "No Objection Certificate". The petitioner was served with the 'No Objection Certificate' for cancellation of the License but by issuing the final order the 'No Objection Certificate' has been cancelled. The reasons for the cancellation of 'No Objection Certificate' under Rule 115 are altogether different to the reasons provided under sub-Rule 5(1) of Rule 118. The show-cause notice was given under sub-Rule (5)(i) which deals with the suspension of license as an interim measure for violation of any provision of the Act of Rules. Sub-Rule (2) deals with the suspension as well as cancellation by the Central Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43 NEUTRAL CITATION NO. 2024:MPHC-JBP:45872 4 WP-24461-2024 Government. The entire Rule 118 of the Explosive Rules is reproduced below:-
''118. Suspension and revocation or cancellation of licence .-(1) Every licence granted under these rules shall-
(I) stand cancelled, if-
(a) the licensee has ceased to have any right for the lawful possession over the licensed premises;
(b) the licensee is convicted and
sentenced under any criminal offences
[involving violence or moral turpitude for a term of not less than six months at any time during a period of five years after the expiration of the sentence] 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 licenced premises or manufacturing facilities are leased to any other Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43 NEUTRAL CITATION NO. 2024:MPHC-JBP:45872
5 WP-24461-2024 person, firm, company, society] (II) stand cancelled, if the no-objection certificate is cancelled by the authority issuing the same or District Magistrate or the State Government in accordance with rule 115.
(III) be liable to be suspended or cancelled by an order of the licensing authority for any contravention of the Act or these rules or of any condition contained in such licence, or by order of the Central Government, if it is satisfied that there are sufficient grounds for doing so:
Provided that before suspending or cancelling a licence under this rule, the holder of the licence shall be given an opportunity of being heard.
(2) The suspension or cancellation shall take effect from the date specified therein. (3) An order of suspension or revocation of a licence shall be deemed to have been served if sent by post to the address of the licensee entered in the licence.Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43
NEUTRAL CITATION NO. 2024:MPHC-JBP:45872 6 WP-24461-2024 (4) The suspension of a licence shall not debar the holder of the licence from applying for the renewal.
(5) Notwithstanding anything contained in sub- rule (1), an opportunity of being heard may not be given to the holder of the licence before his licence is suspended or cancelled in cases-
(i) where the licence is suspended by a licensing authority as an interim measure for violation of any of the provisions of the Act or these rules or of any conditions contained in such licence and in his opinion such violation is likely to cause imminent danger to the public:
Provided that where a licence is so suspended, the licensing authority shall give the holder of the licence an opportunity of being heard before the order of suspension is confirmed; or
(ii) where the licence is suspended or cancelled by the Central Government, if that Government considers that in the public interest or in the interest of the security of the State, such Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43 NEUTRAL CITATION NO. 2024:MPHC-JBP:45872
7 WP-24461-2024 opportunity should not be given.
(6) A licensing authority or the Central Government suspending or cancelling a licence shall record its reason for so doing in writing.''
5. Rule 5 the Explosives Rules, 2008 starts with the notwithstanding clause which provides an opportunity for a hearing before the suspension or cancellation of the license. Rule 5(i) of the Explosives Rules, 2008 authorizes the licensing authority to suspend the license whereas under Rule 115 of the Explosives Rules, 2008 the authority is competent to cancel the 'No Objection Certificate. No notice under Rule 115 of the Explosives Rules, 2008 specifying the reasons as envisioned under (a), (b) or (c) for cancellation of 'No Objection Certificate' has been communicated to the petitioner. As per sub-clause 1(c) of Rule 115, the Explosives Rules, 2008 the cancellation of 'No Objection Certificate' is necessary for public peace and safety then only it can be cancelled. There is no allegation in respect of violation of (a) and (b) of sub-rule (1) of Rule 115. Therefore, the competent authority must record the reason that it is absolutely necessary for the cancellation of 'No Objection Certificate'. Only in apprehension of any incident to take place in future, the license or 'No Objection Certificate' should not have Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43 NEUTRAL CITATION NO. 2024:MPHC-JBP:45872 8 WP-24461-2024 been cancelled.
6. The two grounds are assigned that in the impugned order, the rice mill and the school are situated near the business place of the petitioner, but no reason has been assigned whether these rice mills and school have been constructed after the grant of 'No Objection Certificate' to the petitioner or they were already there much before granting of the 'No Objection Certificate' prior to 2018 then the District Magistrate must have considered before granting 'No Objection Certificate' to the petitioner.
7. The storage and sale of the crackers are not prohibited in the country however, it is governed under provisions of the Explosives Rules, therefore, the satisfaction of the authority should be supported by valid reasons before granting of 'No Objection Certificate' or before cancellation of the 'No Objection Certificate'. It is apparent that the notice was issued under Rule 118 of the Explosives Rules, 2008 which provides suspension, revocation or cancellation of the license, but the order has been passed under Rule 115 of the Explosives Rules, 2008.
8. In view of the above, the order dated 19.04.2024 is unsustainable and is hereby set aside. Resultantly, the order passed by the appellate authority i.e. Commissioner dated 02.08.2024 is also set aside. The 'No Objection Certificate' of the petitioner is hereby Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43 NEUTRAL CITATION NO. 2024:MPHC-JBP:45872 9 WP-24461-2024 restored and the renewal application be considered by the law by the competent authority. Writ Petition is allowed with a cost of Rs. 10,000/- (Rupees Ten Thousands Only) payable to the petitioner.
Certified copy as per rules.
(VIVEK RUSIA) JUDGE Praveen Signature Not Verified Signed by: PRAVEEN Signing time: 17-09- 2024 19:06:43