M/S. Umrao Traders vs Union Of India & Ors on 16 August, 2016

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Rajasthan High Court - Jodhpur

M/S. Umrao Traders vs Union Of India & Ors on 16 August, 2016

This petition for writ is before us to examine validity of Rule 47(1)(a)(iii) of the Gas Cylinders Rules, 2004 (hereinafter referred to as 'the Rules of 2004'). As per the petitioner the rule impugned is in conflict with the Explosives Rules, 2008 (hereinafter referred to as 'the Rules of 2008'). The Rules of 2004 as well as the Rules of 2008 are enacted by the Central Government exercising powers under Sections 5 and 7 of the Explosives Act, 1884 (hereinafter referred to as 'the Act').

The Act is a comprehensive law to regulate the manufacture, possession, use, sale, transport, import and export of explosives throughout the country. The 'explosive" as defined under Section 2

(d) of the Act means gunpowder, nitroglycerine, nitroglycol, guncotton, di-nitro-tolune, tri-nitro-tolune, picric acid, di-nitro-phenol, tri-nitro-resorcinol (styphnic acid), cyclo-trimethylene-tri-nitramine, penta-erythritol-tetranitrate, tetryl, nitro-guanidine, lead azide, lead styphynate, fulminate of mercury or any other metal, diazo-di-nitro-phenol, coloured fires or any other substance whether a single chemical compound or a mixture of substances, whether solid or -5- liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and includes fogsignals, fireworks, fuses, rockets, percussion-caps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosive as defined.

Section 5 of the Act empowers the Central Government to make rules for licensing of the manufacture, possession, use, sale, transport, import and export of explosives. The power with regard to inspection, search, seizure, detention and removal of the explosives is available as per Section 7 of the Act.

The Rules of 2008, as already stated, were framed by the Central Government exercising powers under Sections 5 and 7 of the Act. The Rules of 2008 regulates the procedure for carrying out explosive business including grant of license for possessing, use and sale of explosives. The licensing authority grants license in form LE-3 which specifies capacity of explosive magazines. The license is granted by the licensing authority after conducting proper inquiry and after due verification of the fact that the existing store houses/ explosive magazines are located at what -6- distance from railways, roads, dwelling houses, offices, factories etc. The capacity of explosive magazines are directly proportional to the distance from the railway, roads, dwelling houses, offices and factories etc. Rule 4 of the Rules of 2008 classifies the explosives in the manner specified in Schedule-I appended with the Rules of 2008. As per Rule 5, explosives are divided into four categories i.e. x, y, z and zz according to the risks which they bear. While operating a magazine, a safety distance as per Rule 86 of the Rules of 2004 read with tables specified in Schedule-VIII have to be maintained. Table 1 of Schedule-VIII deals with the explosive category 'zz'. This category of explosives are having mass explosion risk with minor missile effect.

The Rules of 2004 governs and provides guidelines for carrying on the business of Liquid Petroleum Gas (hereinafter referred to as 'LPG') cylinders. No person can fill any cylinder with compressed gas and no cylinder filled with compressed gas can be possessed by anyone except under and in accordance with the conditions of a license granted as per the Rules of 2004. Every person desirous to obtain a license to fill and store any compressed gas in any cylinder is required to submit to the Chief Controller, -7- Explosives or the Controller authorised by the Chief Controller, the specifications and plans drawn to the scale indicating (1)the manner in which the provisions prescribed in the Rules of 2004 will be complied with; (2)the premises proposed to be licensed, the area of which shall be distinctly coloured or otherwise marked; and (3)the surrounding area lying within 100 meters of the edge of all facilities which are proposed to be licensed. A person desirous to have new license for CNG dispensing station, is also supposed to apply to the District Magistrate with site plan showing the location of premises proposed to be licensed under the Rules of 2004 for a no objection certificate from the District Magistrate, which is to be forwarded to the Chief Controller or Controller with the application seeking license.

The petitioner firm is having four existing explosive magazines at village Shahpura in District Bhilwara. These magazines were established after getting the conversion of agriculture land for non- agricultural purposes and after obtaining necessary license as per provisions of the Rules of 2008. The licenses available with the petitioner shall remain in currency upto 31.3.2008 subject to their further -8- renewal. The petitioner firm is possessing explosives of 'zz' category in its magazines, therefore, as per Rule 86 of the Rules of 2008 read with Schedule-VIII, a safety distance prescribed is required to be maintained.

The respondent No.6, a permanent resident of village Shahpura, got his agricultural land converted for non-agricultural purposes. He desired to have a license under the Rules of 2004, accordingly, submitted an application for having no objection certificate. The objections were invited under public notices dated 23.1.2013 and 22.1.2015. A no objection certificate was accordingly issued by the District Magistrate in the month of March, 2015. After having the no objection certificate the respondent constructed godowns as per needs of the license under the Rules of 2004.

The grievance of the petitioner is that the gas godown constructed by the petitioner falls within the safety distance related to the magazines of the petitioner, therefore, if the license as per the Rules of 2004 is granted, then the same shall be highly hazardous for public safety in addition to the adverse effects caused to the rights of the petitioner in undertaking business of explosives as he has to reduce -9- his category of explosives to fall within the requisite safety distance as per Rule 86 read with Schedule-VIII appended with the Rules of 2008.

According to the petitioner the licensing authority under the Rules of 2008, as well as under the Rules of 2004 is same, therefore, while granting license under the Rules of 2004, the adverse effect upon the existing explosive magazines should have been kept in mind. It is asserted that as per Rule 47(1)(a)(iii) of the Rules of 2004 the surrounding periphery for gas godown is 100 meters only, whereas the safety distance under the Rules of 2008 is having a range of 45 meters to 1300 meters as per categorisation of explosives. The surrounding periphery given under the Rules of 2008 is in direct conflict with the safety distance given under the Rules of 2008, hence, that deserves to be declared illegal. It is stated that while formulating the Rules of 2008 the rule framing authority was extremely cautious in prescribing safety distance, but that has been jeopardised by prescribing a less surrounding periphery under the Rules of 2004. The rule making authority while prescribing such surrounding periphery must have mentioned in the rules that if any license under the Rules of 2004 to set

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up LPG godown is to be issued, then the same shall remain directly subject to the safety distance provided under Schedule-VIII of the Rules of 2008. Being not having such a condition in the Rules of 2004, the Rule 47(1)(a)(iii) of the Rules of 2004 is bad and that deserves to be struck down.

Replies to the writ petition have been filed on behalf of the respondents stating therein that merely on the count that the license granted to the respondent No.6 within the safety distance of the petitioner does not make the rule bad. It is asserted that constitutional validity of rules is required to be examined within the four corners of Article 13 of the Constitution of India and no such eventuality exists in the instant matter. No right of the petitioner guaranteed under Part-III of the Constitution of India or any other constitutional provision has been violated and it is also not the case of the petitioner that the Government of India was lacking competence to frame the rules. The inconvenience, if any caused to the petitioner, then it may be examined by taking into consideration particular aspects of the matter, but in no case that would be a reason sufficient to declare Rule 47(1)(a)

(iii) bad.

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On behalf of the respondent No.6 certain allegations with regard to conduct of the petitioner are also made, but those are of not much relevance while examining case of the petitioner giving challenge to a statute.

Heard learned counsels.

As already stated, the case of the petitioner is that if the Chief Controller, Explosives or the Deputy Chief Controller, Explosives be permitted to grant a license/permit to the respondent No.6 for setting up the LPG godown within the safety distance relating to the magazines owned by the petitioner, then the same shall adversely effect his business and shall also put public safety in danger. The effect of the grant of such license shall be highly unjust and arbitrary and, therefore, shall be in violation of Articles 14 and 19 of the Constitution of India. Learned counsel appearing on behalf of the petitioner while giving challenge to the provisions of Rule 47(1)(a)(iii) of the Rules of 2004 urged that "safety distance" as defined under Rule 2 (48) of the Rules of 2008, means the distance necessary to be kept clear between any licensed

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factory, shed, magazine, store house or other licensed premises and protected works as referred to in Schedule-VIII and further it gives a scale of distance to dwelling houses or other structures from the range of 45 meters to 1300 meters. The Rules of 2004 on the other hand prescribed 100 meters only as periphery surrounding for granting license to operate a LPG godown. The LPG is an explosive and, if any license is given to house LPG cylinders within the safety distance, then that shall effect the business of the explosive magazine. This effect shall be nothing but an injury to a right of business protected under Article 19(1)(g) of the Constitution of India. The licensing authority under the Rules of 2004, thus, was supposed to ensure that there should not be any overlapping inconsistency. The rule making authority should have also examined this eventuality of the matter and should have taken care while determining periphery surroundings for LPG godown. Rule 47(1)(a)(iii) of the Rules of 2004 as per learned counsel does not take this care, hence is bad.

The argument advanced by learned counsel does not make out any case to strike down a statute. In normal course validity of a statute can be challenged on the ground of legislative competence and violation

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of any fundamental right enshrined under Part-III of the Constitution of India or of any other constitutional provision. However, if the challenge is given to a subordinate legislation, as in the instant matter, it may be questioned on the ground that it is contrary to some other statute. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. (for reference, Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India & Ors., reported in (1985)1 SCC 641). On examination of the facts of this case and the arguments advanced, we do not find this eventuality available in the instant matter. The case of the petitioner at the most of causing hardship, if the respondents No.2 and 3 grants LPG godown license to the respondent No.6. This hardship cannot be a ground for striking down a valid legislation. The provisions of Rule 47(1)(a)(iii) of the Rules of 2004 nowhere reflects any unreasonableness also. It is well settled that the parliament transfers its authority of legislating law, by law to some other authority and i.e. subordinate legislation, and this transfer of authority is for certain important reasons including that the experts may be a

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better hands for legislating minor procedural road maps relating to the law framed by the parliament. As per Sections 5 and 7 of the Act the authority has been extended to Central Government for making rules in different disciplines arising out of the Explosives Act. The Rules of 2004 have been framed by the competent legislative authority after taking into consideration all objective realities. The periphery surrounding, thus, must be based on expert advise, as such, no reason exists to treat the same as unreasonable. Whatever unreasonability learned counsel for the petitioner want to express is only because of peculiar eventualities existing in present case. These peculiar eventualities must be causing hardship to the petitioner, but for no reason these eventualities can be a foundation for striking down a statute. In view of it, we do not find any merit in the challenge given to the validity of Rule 47(1)(a)(iii) of the Rules of 2004. The writ petition to that extent deserves to be dismissed.

The petitioner, however, is at liberty to avail appropriate civil remedy for redressal of its grievance relating to hardship, if any caused, as we are not inclined to examine the same under Article 226 of the

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Constitution of India being based on complicated questions of fact.

With the observations as above, the writ petition stands disposed of.

No order to costs.

(KAILASH CHANDRA SHARMA),J. (GOVIND MATHUR),J. MathuriaKK/PS

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Rajasthan High Court - Jodhpur