Rajasthan High Court - Jodhpur
M/S. Super Shiv Shakti Chem. Pvt. Ltd vs State & Ors on 3 August, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
1/27
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2574 / 2017
1. M/s Super Shiv Shakti Chemicals Private Ltd., Village Shripura,
Tehsil-Rawatbhata, District- Chittorgarh Through Its Director Shri
Brijraj Singh Shekhawat, Aged About 49 Years, Son of Late Shri
Bhopal Singh Shekhawat, Resident of C-112, Shastri Nagar,
Bhilwara.
2. Brijraj Singh Shekhawat, S/o Late Shri Bhopal Singh
Shekhawat, Aged About 49 Years, Resident of C-112, Shastri
Nagar, Bhilwara.
----Petitioners
Versus
1. The State of Rajasthan Through the Secretary, Industries
Department, Government of Rajasthan, Jaipur
2. The District Magistrate Cum District Collector, Chittorgarh
3. The Union of India Through the Secretary, Ministry of
Commerce and Industry, Petroleum and Explosives Safety
Organisation (Formerly Department of Explosives), A-Block, Fifth
Floor, CGO Complex, Seminary Hills, Nagpur-440006
(Maharastra).
4. The Chief Controller of Explosives, Petroleum and Explosives
Safety Organisation (Formerly Department of Explosives), A-Block,
Fifth Floor, CGO Complex, Seminary Hills, Nagpur-440006
(Maharastra).
5. The Deputy Chief Controller of Explosives, Petroleum and
Explosives Safety Organisation (Formerly Department of
Explosives), Amrapali Circle, Vaishali Nagar Jaipur
----Respondents
_____________________________________________________
For Petitioner(s) : Mr M.S.Singhvi Sr Advocate assisted by
Mr Hemant Dutt
For Respondent(s) : Mr O.P.Boob - GC
Mr Sunil Joshi
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order (2 of 27) [CW-2574/2017] 03/08/2017 The petitioner No.1, which is a private limited company incorporated and registered under the Indian Companies Act, 1956. has filed this writ petition through its Director - petitioner No.2 being aggrieved with the action of the District Magistrate- cum-District Collector, Chittorgarh - respondent No.2 in raising objections before the respondent No.4 - The Chief Controller of Explosives, Petroleum and Explosives Safety Organisation (for short 'CCE' hereinafter) in case of revocation the suspension of manufacturing licences issued to the petitioners-company under the Explosives Rules, 2008. The licences of the petitioner- company were suspended by CCE on 12.08.2016 and the said suspension was confirmed on 12.09.2016.
Brief facts necessary for adjudication of this writ petition are that the petitioner No.1 - company is holding the following manufacturing licences duly issued under the Explosives Rules, 2008 for manufacturing of following kinds and quantities of explosives:
Sl. No. Licence no.under Kind & Quantity of Licence quantity Explosives Rules, Explosives 2008
1. E/HQ/RJ/20/21 Detonating Fuse 40 Mill.Mtrs (E23420) _________________ _________________ PETN 550 MT _________________ _________________ CAST BOOSTER 500 MT _________________ _________________
2. E/HQ/RJ/20/34 Detonators of all 50 Million Nos.
(E70164) kinds
(3 of 27)
[CW-2574/2017]
3. E/HQ/RJ/20/22 Slurry & Emulsion 30,000 MT
(E23432) Explosives
The manufacturing factory of the petitioner No.1 is situated in village Shripura, Tehsil Rawatbhata, District Chittorgarh. On 11.08.2016 at about 5:00 P.M., an accident took place in Drying Unit of the factory of petitioner-company and in that accident 4 persons died. As per the requirements of section 8 of the Explosives Act, 1848 (for short 'the Explosives Act' hereinafter), petitioner-company informed the CCE and Deputy Chief Controller of Explosives, Jaipur - respondent No.5 about the said accident. On 12.08.2016, the CCE suspended the licences of the petitioner-company bearing Nos.E70164 and E23420 till further orders. Vide Annexures-12 and 13, the petitioner-
company was asked to show cause why the suspension of its subject licence be not confirmed.
On 12.08.2016 vide Annexure-14, the Deputy Conservator of Forest (Wild Life), Mukandra National Park, Kota wrote a letter to the District Collector, Chittorgarh requesting him to cancel the permission of the petitioner-company and to close down the factory.
On 19.08.2016, the Deputy CCE sent a communication to the District Collector, Chittorgarh requesting him to order for a magisterial inquiry as required under section 9A of the Explosives Act. On 23.08.2016, the District Collector, Chittorgarh vide letter Annexure-16 requested the CCE not to issue any permission to the petitioner-company without the consent of the State/District (4 of 27) [CW-2574/2017] Administration. In the letter (Annexure-16), the District Collector referred the communications received by him from the Superintendent of Police, Chittorgarh and the Deputy Conservator of Forest (Wild Life), Mukandra National Park, Kota. Thereafter vide order dated 24.08.2016 (Annexure-17), the District Collector appointed Additional Collector-cum-Additional District Magistrate, Chittorgarh to conduct magisterial inquiry as contemplated under section 9A of the Explosives Act.
In the meantime, the Superintendent of Police, Chittorgarh wrote a letter dated 30.08.2016 (Annexure-18) to the District Collector, Chittorgarh stating therein that it would be proper to cancel the licences of the petitioner-company, so that such incidents, like accident dated 11.08.2016 may not be repeated in the factory of the petitioner-company. Along with its recommendation, the Superintendent of Police submitted the detailed report prepared by the Additional Superintendent of Police, Circle Rawatbhata, Chittorgarh.
On 02.09.2016, the CCE issued a notice (Annexure-19) to the petitioner-company to show cause within 21 days from the issue of letter as to why its subject licences should not be suspended in the light of the letters written by the District Collector dated 23.08.2016 (Annexure-16) and the letter issued by the Deputy Conservator of Forest (Wild Life), Mukandra National Park, Kota dated 12.08.2016 addressed to the Joint Chief Controller of Explosives, Faridabad.
The petitioner-company has replied to the said notices to the CCE on 08.09.2016 (Annexure-20). The CCE vide orders (5 of 27) [CW-2574/2017] dated 12.09.2016 (Annexures-21 and 22) has confirmed the suspension of explosives licences Nos.E70164 and E23420. On 12.09.2016 itself vide Annexure-23, the petitioner-company submitted a representation to the CCE with a request to grant permission to start slurry/emulsion explosive plant under licence No.E23432 while claiming that the said plant is unaffected by the accident dated 11.08.2016. In response to the above representation filed by the petitioner-company, the CCE wrote a letter (Annexure-24) to the District Collector, Chittorgarh on 12.09.2016, whereby the CCE sought the concurrence of the District Collector for considering the request of the firm to resume the manufacturing of slurry and emulsion explosives covered under licence No.E23432. He has referred in the notice that the said plant was not affected in the said accident.
On 19.09.2016 vide Annexure-25, the petitioner- company filed a representation before the District Collector, Chittorgarh requesting him to grant permission to restart its manufacturing plant. Thereafter again vide letter dated 20.09.2016 (Annexure-26), the petitioner-company requested the District Collector to grant permission to start the factory. On 21.09.2016 vide Annexure-27, the petitioner-company filed a representation before the CCE with a request to grant permission to start the plant of manufacturing slurry/emulsion explosive. Vide letter dated 22/26.09.2016 (Annexure-28), the CCE again wrote a letter to the District Collector to give concurrence/no objection for considering the request of the firm to resume the manufacturing of slurry/emulsion explosives plant covered under (6 of 27) [CW-2574/2017] licence No.E23432. Again on 27.09.2016, the CCE wrote a letter to the District Collector, Chittorgarh requesting him to grant concurrence/no objection for resuming the manufacturing of slurry/emulsion explosives by the petitioner-company under the licence No.E23432. In the said letter, the CCE has also written that huge quantity of manufactured explosives are lying in the factory premises, which are required to be disposed of as the prolonged storage of the same is not conducive to safety.
In response to the letter dated 27.09.2016 (Annexure-
29), the District Collector, Chittorgarh sent his reply to the CCE on 28.09.2016 (Annexure-30), wherein he has stated that as the Superintendent of Police has recommended for cancellation of the permission of the petitioner-company for all times to come and as the magisterial inquiry in the matter is going on, it is not proper to grant permission to the petitioner-company to start the manufacturing of explosives till the report of the magisterial inquiry is received.
The Chief Conservator of Forest, Kota vide letter dated 27.09.2016 (Annexure-31) requested the District Collector to cancel the permission of the petitioner-company as the same is situated in the Jawahar Sagar Sanctuary area in violation of provisions of sections 20 and 32 of the Wild Life Protection Act, 1972 and reference of the fact that the factory is established on excess area has also been mentioned.
On 14.10.2016, the Additional District Magistrate, who conducted the magisterial inquiry has submitted its report (Annexure-32), wherein it is mentioned that the accident took (7 of 27) [CW-2574/2017] place on 11.08.2016 in the factory premises had happened on account of short circuit. He has also taken into consideration the objections raised by the Superintendent of Police and the forest authorities in his report, however, he has opined that the said authorities are required to clarify that how in view of the recommendations of the authorities under the Explosives Act etc. their requests for cancellation of licences of the petitioner - company are justified.
On 21.10.2016, the District Magistrate, Chittorgah vide letters Annexures-33 and 34 asked the Superintendent of Police, Chittorgarh and the Chief Conservator of Forest, Kota to give their clarifications in view of the observations made by the Additional Collector in his magisterial inquiry report dated 14.10.2016 (Annexure-32). In response to the letter of the District Magistrate, Chittorgarh, the Superintendent of Police, Chittorgarh has replied on 03.11.2016 vide Annexure-35 and reiterated that the licence/permission of the factory is liable to be cancelled. Along with his reply, he also submitted the reports of the Additional Superintendent of Police, Rawatbhata, Deputy Superintendent of Police, Rawatbhata and S.H.O., Police Station, Bhensroadgarh.
It appears that the Collector, Chittorgarh did not receive any clarification from the Chief Conservator of Forest, Kota in relation to his letter dated 21.10.2016 (Annexure-34), however, the District Collector vide letter dated 18.11.2016 (Annexure-37) has sent the magisterial inquiry report along with clarifications of the Superintendent of Police, Chittorgarh dated 03.11.2016 (Annexure-35) and the letter of the Chief Conservator (8 of 27) [CW-2574/2017] of Forest, Kota dated 27.09.2016 (Annexure-31) to the CCE. After receiving the letter dated 18.11.2016 (Annexure-37), the Office of CCE wrote a letter to the District Collector pointing out that the magisterial inquiry report has opined that accident had occurred due to short circuit and the factory has adequate security arrangements. It is also mentioned that in the report the Magistrate has opined that the factory land does not come in the forest area as per the various inquiries and order dated 31.10.2011 passed by the High Court. The District Collector was, therefore, requested to intimate his objection in revoking the suspension of the licence Nos.E23432 and E70164. The relevant part of the letter of the CCE dated 24.11.2016 (Annexure-38) is reproduced hereunder:
"On perusal of the Magisterial Inquiry report, it appears that the Addl. District Magistrate has opined that the accident have occurred due to short circuit. He has pointed out that the factory has the adequate security arrangements. He has also mentioned that the factory land does not come in the forest area giving reference of various Inquiries and Hon'ble High Court, Jodhpur Order dated 31/10/2011.
The explosives licences were suspended by this office for violation of Rule 19 of Explosives Rules, 2008 i.e., for not taking special precautions against accident. However, the Magisterial Inquiry report states that the accident has occurred due to short circuit. The licensee has submitted the compliance and ensured that adequate safety will be strictly followed.
In view of the Magisterial Inquiry conducted in accordance with Section 9(1) of Explosive Act, 1884 and the report submitted, you kindly requested to intimate this office, if you have any objection in revoking the suspension order issued vide this office Orders of even (9 of 27) [CW-2574/2017] No. dated 12/09/2016 imposed against the licence Nos.E/HQ/RJ/20/21(E23420) & E/HQ/RJ/20/34(E70164) and to permit the regular production activity of the factory as per the provisions of the Explosives Rules, 2008."
In response to the letter dated 24.11.2016 of the CCE, the District Collector again wrote a letter to the CCE on 07.11.2016 while referring to the reports of the Superintendent of Police, Chittorgarh and the Chief Conservator of Forest, Kota has asked the CCE as to whether any further inquiry is to be conducted on his part or not.
Thereafter on 12.12.2016, the petitioner-company filed a detailed representation to the CCE referring to the magisterial report and other facts and requested for rejection of suspension of the above referred two licences. On 23.12.2016, the CCE again wrote a letter to the District Magistrate, Chittorgarh and stated that though the magisterial inquiry has concluded that the accident has occurred due to short circuit, however, the Superintendent of Police, Chittorgarh has requested to cancel all the licences and the petitioner-company is repeatedly requesting for revocation of suspension of licences and looking to the said situation, the District Collector is requested to get the explosive manufacturing unit inspected by an Executive Magistrate or Police Officer authorized under Rule 128 of Explosives Rules, 2008 to ascertain if there is any violation of the Act and the Rules thereof and also to ascertain adequacy of security guards as per Rule 21(2) of the Explosives Rules, 2008. It is also requested by the CCE to the District Collector that he may send his comments (10 of 27) [CW-2574/2017] regarding the conclusion of the magisterial inquiry report and on the inspection report as per Rule 128 from the Superintendent of Police Chittorgarh on receipt of it.
In the meantime, the petitioner filed SBCWP No.15121/2016 before this Court and this Court directed to issue notices to the respondents on 02.01.2017. As per the petitioners, the respondent-authorities were acting even after filing of the writ petition, the petitioner-company stood advised to withdraw the writ petition and for that, they moved an application seeking leave to withdraw the writ petition with liberty to file fresh writ petition and this Court vide order dated 16.01.2017 while allowing the application, dismissed the writ petition as withdrawn with liberty to file fresh writ petition, if occasion arises.
In response to the letter dated 23.12.2016 (Annexure-
41), the Superintendent of Police, Chittorgarh conducted an inquiry through Additional Superintendent of Police, Rawatbhata under Rule 128 of the Explosives Act and under Rule 21(2) of the Explosives Rules, 2008 and opined that he has no objection if the security measures of the petitioners' factory are confirmed by the Petroleum and Explosives Safety Organisation. A photostat of the letter of this effect dated 25.01.2017 sent by the Superintendent of Police, Chittorgarh to District Magistrate, Chittorgarh is on record as Annexure-43. It appears that one copy of the letter dated 21.01.2017 has also been sent to the CCE.
After receiving of the letter of the Superintendent of Police dated 25.01.2017 (Annexure-43), the Office of the CCE wrote a memo dated 03.02.2017 (Annexure-44) to the Deputy (11 of 27) [CW-2574/2017] Chief Controller of Explosives, Jaipur advising him to thoroughly inspect the subject explosives manufacturing factory and verify all the points mentioned in the letter of Superintendent of Police and forward his detailed inspection report along with his recommendation to this office for taking further action in the matter.
Pursuant to the letter dated 25.01.2017 (Annexure-43), the Office of Chief Controller of Explosives (PESO), Nagpur including Deputy Chief Controller of Explosives, Jaipur and Deputy Controller of Explosives-II, Jaipur conducted the inspection of the petitioners' factory on 05.02.2017 and submitted its report vide memo dated 08.02.2017. The petitioners have obtained the copies of the said memo under R.T.I. and submitted the same along with this writ petition as Annexure-45.
In the meantime, in response to the letter dated 23.12.2016 (Annexure-41) written by the Office of the CCE to the District Magistrate, Chittorgarh, he wrote a letter to the CCE dated 07.02.2017 (Annexure-46) referring to the letter of the Superintendent of Police, Chittorgarh dated 25.01.2017 (Annexure-43) and the magisterial inquiry report again raised objection in granting permission for revocation of suspension of licences of the petitioner-company. The letter dated 07.02.2017 (Annexure-46) is reproduced hereunder.
"jktLFkku ljdkj dk;kZy; ftyk eftLVªsV] fprkSM+x<+ Øekad@U;k;@i21&1¼ ½2016@189 fnukad % 07 Qjojh] 2017 (12 of 27) [CW-2574/2017] fufer] eq[; fu;a=d foLQksVd] iSVªksfy;e ,oa foLQksVd lqj{kk laxBu ¼islks½] 5 ¶yksj] ,&CykWd] lh-th-vks- dkWEIysDl] lsfeujh fgYl] ukxiqj ¼egkjk"Vª½ fo"k; % eSllZ lqij f'ko 'kfDr dsfedy izk-fy-] HkhyokM+k dh xzke Jhiqjk rglhy jkorHkkVk ftyk fprkSM+x<+ fLFkr bdkbZ esa gqbZ foLQksV nq?kZVuk ds laca/k esaA izlax %vkidk i= Øekad@bZ@,pD;q@vkjts@20@21¼bZ23420½@bZ@,pD;q@ vkjts@20@34¼bZ70164½ fnukad 23-12-2016 ds laca/k esaA egksn;] mi;qZDr fo"k;kUrxZr izklafxd i= ds Øe esa fuosnu gS fd vki }kjk eSllZ lqij f'ko 'kfDr dsfedy izk-fy-] HkhyokM+k dh xzke Jhiqjk rglhy] jkorHkkVk ftyk fprkSM+x<+ fLFkr bZdkbZ dk foLQksVd vf/kfu;e] 2008 ds fu;e 128 ds vuqlkj fujh{k.k djus ,oa fu;e 21¼2½ ds vUrxZr QsDVªh esa Ik;kZIr flD;wfjVh xkMZ dh O;oLFkk gS vFkok ugha ds laca/k esa tkap izfrosnu pkgk x;k gSA bl dk;kZy; }kjk iqfyl v/kh{kd] fprkSM+x<+ ls fujh{k.k djok;k tkdj izfrosnu izkIr fd;k x;kA iqfyl v/kh{kd] fprkSM+x<+ us muds i= Øekad@139&40 fnukad 25-01-2017 ¼izfr layXu½ }kjk voxr djk;k gS fd muds dk;kZy; ds i= Øekad@1937 fnukad 03-11-2016 ¼izfr layXu½ esa of.kZr fcUnqvksa vuqlkj rduhdh izf'k{k.k fd;k tkuk] vkikrdkyhu fLFkfr ls fuiVus ds fy;s fu;ekuqlkj vko';d lalk/ku ,oa izcU/ku dh miyC/krk lqfuf'pr fd;k tkus ,oa QSDVªh dh lqj{kk gsrq pkj nhokjh] izdk'k ,oa Ik;kZIr la[;k esa lqj{kk xkMZ dh O;oLFkk fd;k tkuk vko';d gSA budh O;oLFkk lqfuf'pr fd;s tkus ds i'pkr bl gsrq ftEesokj ,oa vf/kd`r izkf/kdj.k isVªksfy;e ,oa foLQksVd lqj{kk laxBu (Petroleum and Explosives safety Organisation) }kjk fu.kZ; ys;s tkus ij dksbZ vkifÙk ugha gksuk vafdr fd;k gSA vfr- ftyk eftLVªsV] fprkSM+x<+ ¼tkap vf/kdkjh½ us vius tkap izfrosfnr esa IykaV esa 'kkVZ lfdZV gksus ls nq?kZVuk ?kfVr gksuk vafdr fd;k x;k gSA eq[; ou laj{kd ¼oU;tho½] dksVk us muds i= Øekad@,Q¼ ½rd- @eqolaoth@2016@377 fnukad 23-01-2017 ds lkFk layXu miou laj{kd ¼oU; tho½] eqdUnjk jk"Vªh; m|ku] dksVk ds i= fnukad 16-12-2016 ds vuqlkj QSDVªh esa fnukad 11-08-2016 dks gq, foLQksV ls ,oa vU;Fkk Hkh (13 of 27) [CW-2574/2017] QSDVªh dh xfrfof/k;ksa ls oU;thoksa ds gschVkV dks uqdlku igqaprk gSA QSDVªh }kjk ekSds ij 16251 oxZehVj ds LFkku ij QSDVªh dks djhcu 36 gSDVj Hkwfe ij foLrkj dj fn, tkus ds dkj.k mDr QSDVªh dks tkjh vukifÙk izek.k&i= dks fujLr djus gsrq vuqjks/k fd;k x;k gSA vr% eSllZ lqij f'ko 'kfDr dsfedy izk-fy-] HkhyokM+k dh xzke Jhiqjk rglhy] jkorHkkVk ftyk fprkSM+x<+ fLFkr bZdkbZ dks pkyw djus gsrq bl dk;kZy; ls vukifÙk tkjh fd;k tkuk mfpr ugha gSA layXu % mijksDrkuqlkj Hkonh;
,lMh@& ¼bUnzthr flag½ ftyk eftLVªsV fprkSM+x<+"
From the above letter, it is clear that the District Collector, Chittorgarh has declined to give no objection certificate on the basis of two letters written to him by the Chief Conservator of Forest (Wild Life), Kota and Deputy Conservator of Forest (Wild Life), Mukandra National Park, Kota dated 23.01.2017 and 16.12.2016. Copies of letters dated 23.01.2017 and 16.12.2016 are placed on record by the petitioner as Annexure-47.
From perusal of the above referred letters (Annexure-
47), it appears that the Chief Conservator of Forest has recommended for cancellation of the permission of the petitioner- company while relying on the letter of the Deputy Conservator of Forest (Wild Life), Mukandra National Park, Kota dated 16.12.2016. From perusal of the letter dated 16.12.2016, it is clear that the Deputy Conservator of Forest has recommended for cancellation of the permission of the petitioners' factory mainly on the ground that the petitioners' factory is situated within the (14 of 27) [CW-2574/2017] boundaries of Jawahar Sagar Sanctuary declared by the State of Rajasthan through Notification dated 23.10.1975. It is also mentioned that the factory is established in excess area about 36 hectares, which is more than the allotted area to it. A copy of the letter dated 16.12.2016 is reproduced hereunder:
" dk;kZy; mi ou laj{kd ¼oU;tho½ eqdUnjk jk"Vªh; m|ku] dksVk Qksu 0744&2330823 Email: [email protected] Øekad % ,Q¼ ½rd@mol@eq-jk-m-@2016&17@9236 fnukad% 16@12@16 fufer %& eq[; ou laj{kd] oU;tho] dksVk fo"k; %& eSllZ lqijf'ko 'kfDr dsehdYl izk- fy- dEiuh rglhy jkorHkkVk dh vukifÙk izek.k i= vUrxZr ¼,DlIyksftl :Yl] 1983 ds fu;e 156 ds rgr½ fujLr djus ckcr~A lanHkZ %& vkidk i= Øekad 6478 fnukad 14-12-2016 ,oa ftyk dysDVj ,oa ftyk eftLVsªV fpÙkkSM+x<+ dk i= Øekad U;k;@2016@1693 fnukad 21-10-2016 egksn;] mijksDr fo"k;kUrxZr fuosnu gS fd eSllZ lqij f'ko 'kfDr dsfedYl izk-fy- dEiuh rglhy jkorHkkVk dh vukifRr izek.k&i= vUrxZr ¼,DlIyksfto :Yl] 1983 ds fu;e 156 ds rgr½ fujLr djus ds lEcU/k esa ftyk dysDVj ,oa ftyk eftLVsªV fpRrkSM+x<+ ds i= Øekad U;k;@i- 21&1¼2½ 2015@2108 fnukad 30&11&15 ds lUnHkZ esa fcUnqokj lwpuk bl dk;kZy; ds i= Øekad 9354 fnukad 16&12&2015 }kjk e; nLrkost izsf"kr dh tk pqdh gS] ftldh izfr Jheku~ dks Hkh i`"Bkafdr dh xbZ FkhA lqyHk lanHkZ gsrq lwpuk iqu% iszf"kr gS %&
1. tokgj lkxj vHk;kj.; dh vf/klwpuk jktLFkku ljdkj jsosU;w ¼xzqi& VIII½ foHkkx }kjk 09-10-1975 dh tkjh dh x;hA ftldk jktLFkku ds jkti= esa 23-10-1975 dks izdk'ku gqvk] ftldh lhek,a fuEu izdkj gSa tks ifjf'k"V layXu gSA (15 of 27) [CW-2574/2017] North- Kota Dam (Jawahar Sagar) and road from kota Dam to Borabas.
East- Road from Borabas to Rawatbhata (Rana Pratap Sagar) Dam.
South- Rawatbhata (Rana Pratap Sagar) Dam and road from Rawatbhata Dam to Dundesra (Mandesra) and Lotiana.
West- Western boundary of notified forest blocks Ambarani, Guda Rajpura, Bhunjar, Padjhar, Pirmagra and road from Nasera to Lotiana.
mijksDr uksfVfQds'ku ckm.Mªh ds vuqlkj eSllZ lqij f'ko 'kfDr dsfedYl izk- fy- Jhiqjk] xzke Jhiqjk dk iwjk {ks= gh tokgj lkxj vH;kj.; dh lhek ds vUnj vkrk gSA ekSds ij m|ksx ds ekfydksa }kjk vkoafVr {ks= ls dkQh vf/kd yxHkx 36 gSDVj Hkwfe ij viuk fu;a=.k ckMcUnh }kjk fd;k gqvk gSA Jheku~ vfrfjDr dysDVj ¼iz'kklu½ fpRrkSM+x<+ }kjk mijksDr uksfVfQds'ku gksus ds ckotwn Hkh mDr lqij f'ko 'kfDr dsfedYl izk- fy- Jhiqjk dh Hkwfe dks vH;kj.; {ks= esa ugha crk;k tkuk rF;ksa ls iw.kZr;k gVdj gSA
2. eSllZ lqij f'ko 'kfDr fy- dEiuh] tokgj lkxj vH;kj.; dh vf/klwpuk esa crk;h x;h lhek esa dk;kZy; ftyk dysDVj] fpRrkSM+x<+ ds i=kad jktLo@,Dl eSx@123 ¼77½04@1106 fnukad 08-07-2015 }kjk xzke Jhiqjk ds [kljk ua- 196@5 jdck 5-40 gS] 196@6 jdck 3-24 gS] 196@7 jdck 2-16 gS] 194@61 jdck 1-88 gS] 194@30 jdck 5-40 gS] 194@86 jdck 1-08 gSA dqy fdrk 6 dqy jdck 18-36 gSDVs;j esa ls 16251 oxZehVj Hkwfe ,DlIykstho m|ksx ,oa Hk.Mkj x`g dh LFkkiuk gsrq vkoafVr dh x;h layXu ifjf'k"V ua- 2
3. ftyk dysDVj] fprkSM+x<+ ds vkns'k Øekad U;k;@vkns'k¼ ½2005@3110&14 fnukad 28-07-2015 }kjk vukifRr izek.k&i= nsus ds ckn mDr QSDVªh o"kZ 2005 esa pkyw dh x;hA layXu ifjf'k"V ua- 3
4. fdlh izksVsfDVM ,sfj;k tks jkT; ljdkj }kjk oU;tho lqj{kk vf/k- 1972 dh /kkjk 18 ds vUrxZr jkT; ljkdj }kjk vH;kj.;] jk"Vªh; m|ku ?kksf"kr fd;k x;k gSA mldh lhekvksa ds vUnj fdlh Hkh Hkwfe dk fdLe ,yksVesaUV ;k [kjhn ,oa cspku vFkkZr uohu vf/kdkjksa ds l`tu fd;s tkus ij ikcanh gS ,oa oU;tho lqj{kk vf/k- 1972 dh /kkjk 20 dh f[kykQ othZ gSA layXu ifjf'k"V4
5. vH;kj.; {ks= dh lhekvksa dh vUnj bl rjg dh [krjukd QSDVªh ,DlIyksflo m|ksx dh LFkkiuk djuk oU;tho lqj{kk vf/k- 1972 dh /kkjk 32 dk Li"V mYya?ku gS] rFkk oU;tho ds fy, [krjk gSA layXu ifjf'k"V 5 (16 of 27) [CW-2574/2017] layXu %& mijksDrkuqlkj Hkonh;
¼,l-vkj- ;kno½ mi ou laj{kd ¼oU;tho½ eqdUnjk jk"Vªh; m|ku dksVk Øekad % ,Q¼ ½rd@mol@eq-jk-m-@2016&17 fnukad % izfrfyfi %& ftyk dysDVj ,oa ftyk eftLVªsV fpRrkSM+x<+ dks nh tkdj fuosnu gS fd mDr lEcU/k esa rF;kRed fjiksVZ bl dk;kZy; ds i= Øekad 9354 fnukad 16&12&2015 ls izsf"kr dh tk pqdh gSA lqyHk lanHkZ gsrq izfr layXu dj iqu% izsf"kr gSA layXu %& mijksDrkuqlkj ¼,l-vkj- ;kno½ mi ou laj{kd ¼oU;tho½ eqdUnjk jk"Vªh; m|ku dksVk"
In this writ petition, the petitioner-company has challenged the action of the District Collector, Chittorgarh of raising objections before the CCE in the matter of revocation of suspension of its licences on various grounds, however, after going through the entire facts and circumstances of the case particularly the facts of the earlier litigation between the petitioner-company and the respondents, decided by a Co-ordinate Bench of this Court in SBCWP No.10842/2010 vide order dated 31.10.2011, I have decided not to consider the grounds raised by the petitioner- company in this petition because I feel that the objections raised by the District Collector, Chittorgarh before the CCE in the matter of revocation of suspension of licences of the petitioner-company are without any basis and contrary to the observations and directions given by this Court in the order dated 31.10.2011. The (17 of 27) [CW-2574/2017] copy of the order dated 31.10.2011 is placed on record along with the reply to this writ petition filed by the District Collector, Chittorgarh as Annexure-R/8.
From the perusal of the order dated 31.10.2011, it emerges out that the District Collector, Chittorgarh on 17.07.2009 issued a notice to the petitioner-company to show cause as to why the NOC granted to it vide order dated 08.07.2005 (Annexure-4) be not cancelled. The said notice was based on three points; first that the petitioners' factory is operating on the excess land belonging to the SC/ST; second that the manufacturing unit and the storage unit in the premises are situated within the distance of 100 meters and 50 meters respectively of electricity line and; third that the factory of the petitioner-company is not adhering to the security measures. The said notice was issued by the District Collector while exercising powers under Rule 115 of the Explosives Rules, 2008. The petitioner-company replied to the said notice, however, the District Collector vide order dated 16.02.2010 proceeded to cancel the NOC granted to the petitioners. Being aggrieved with the same, the petitioner-company has preferred an appeal under Rule 125 of the Explosives Rules, 2008 before the Divisional Commissioner, Udaipur, which was allowed vide order dated 26.03.2010 and the matter was remanded to the District Magistrate, Chittorgarh.
After remanding the matter, the District Collector, Chittorgarh vide order dated 17.08.2010 again cancelled the NOC of the petitioner-company. Being aggrieved with the same, the petitioner-company has preferred an appeal before the Divisional (18 of 27) [CW-2574/2017] Commissioner, which came to be rejected vide order dated 01.11.2010. Against the same, the petitioner preferred SBCWP NO.10842/2010 before this Court, which came to be decided on 31.10.2011. The relevant portion of the order dated 31.10.2011 is reproduced hereunder:
"After having given a thoughtful consideration to the rival submissions and having examined the material placed on record, this Court is unable to approve the orders as passed by the Divisional Commissioner and the District Magistrate in this matter for the same being clearly in violation of the basic principles of natural justice.
Though several submissions have been made before this Court on the merits of the case where the grounds for cancellation as adopted by the concerned authorities have been questioned by the petitioner and the same are sought to be supported by the contesting respondents but, looking to the nature of proceedings, this Court would not enter into such merits as if an Appellate Court. However, the manner of dealing with the matter by the District Magistrate and the Divisional Commissioner in their impugned orders being largely at variance with the fundamentals of natural justice, this Court is clearly of opinion that these orders are required to be annulled and set aside.
The fact that the petitioner-company did apply for conversion of the land in question and such conversion was indeed granted after sanction from the State Government is not in dispute. The petitioner was, thereafter, specifically issued the NOC under Rule 156 of the Rules of 1983 on 28.07.2005; was, thereafter, granted the licences by the Petroleum and Explosives Safety Organisation ('PESO') of the Government of India; and did establish the factory for manufacture of explosives. An accident appears to have occurred at the factory premises wherefor the licences were suspended but such suspension was revoked after the petitioner was found having carried out all the necessary safety requirements.
However, it appears that after happening of such an accident, the respondent District Magistrate took up the proceedings for revocation of NOC earlier issued to the petitioner and for that purpose, issued the notice dated 17.07.2009 (Annex.8). The said notice has been reproduced (19 of 27) [CW-2574/2017] hereinabove and three grounds on which the District Magistrate intended to proceed were: (a) that the petitioner was granted conversion for 16251 sq.m. land but had established the explosives manufacturing unit and storage unit upon 36.09 hectares of agriculture/forest land belonging to SC/ST/General category persons; (b) that the electricity line was situated 100 metres from the manufacturing unit and 50 metres from the storage unit; and (c) that an accident occurred on 12.05.2009 resulting in loss of life for want of adequate security arrangements. The petitioner indeed submitted a reply to this notice and the District Magistrate proceeded to consider the matter in his order dated 16.02.2010. It appears rather strange that in the said order dated 16.02.2010, the learned District Magistrate chose to record the findings on several of such objections against the petitioner's unit that were not even whispered in the said notice dated 17.07.2009 (Annex.8). The District Magistrate chose to record the findings regarding coverage of the land in the notification dated 09.10.1975 issued for the purpose of Jawahar Sagar Wild Life Sanctuary and even the likelihood of the danger to Rana Pratap Sagar Dam. Such kind of grounds could not have been taken up for consideration by the learned District Magistrate without putting the petitioner to adequate notice.
In the earlier round of litigation, the petitioner filed an appeal against the order so passed by the District Magistrate and the learned Divisional Commissioner, in his order dated 26.03.2010 recorded the findings, inter alia, that the appellant was not in unauthorised possession of 36.09 hectares land; that the safety measures were found adequate by the concerned specialists and technicians before granting and reviving the licence to the petitioner and such facts had not been examined by the subordinate authority. The Divisional Commissioner also found that there was no report on record regarding the distance of high tension lines. The Divisional Commissioner yet further found that the petitioner was deprived of adequate opportunity of hearing and of presenting its case. The Divisional Commissioner, in the interest of justice, remanded the matter for decision afresh and in accordance with law.
In conformity with the requirements of the remand order, the petitioner moved the applications requesting the District Magistrate to requisition the reports from the concerned Departments; to appoint an independent technician to find out the distance of high tension lines from (20 of 27) [CW-2574/2017] the manufacturing unit and storage unit and the safety measures taken; and to summon the records of the Forest and Revenue Departments.
The learned District Magistrate though took up the matter pursuant to the order of remand but, again, chose to proceed contrary to the requirements of principles of natural justice. The learned District Magistrate assumed that the land in question was falling within the Wild Life Sanctuary with reference to the notification dated 09.10.1975 and the amended notification dated 16.02.2010. The learned District Magistrate, again, observed that existence of this factory merely at a distance of 6-7 kms. from Rana Pratap Sagar Dam was not proper. The learned Magistrate further observed that as per the technical report, the high tension line was going at a distance of about 60.96 metres from the premises and that the petitioner was polluting the river by effluent discharge. The learned District Magistrate referred to the orders passed by the Hon'ble Supreme Court and observed that the existence of the factory in the Wild Life Sanctuary was contrary to the directions of the Hon'ble Supreme Court and, thus, the NOC was required to be cancelled. The learned Divisional Commissioner has, in substance, endorsed the findings and views of the District Magistrate though with a bit elaborate discussion.
The basic shortcoming in the approach of the learned District Magistrate and the Divisional Commissioner in the impugned orders dated 17.08.2010 and 01.11.2010 remains their total failure to consider that most of the grounds on which they proceeded were not even specified in the notice served on the petitioner. The proceedings have been adopted under Rule 115 of the Rules of 2008 that reads as under:-
"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 (21 of 27) [CW-2574/2017] 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.
(3) In case an appeal is made against the cancellaiton of no objection certificate, the appellate authority may consult, if so desired, the Chief Controller."
It is more than clear that before cancellation of the NOC, the licensee is required to be given a reasonable opportunity of being heard. A reasonable opportunity of being heard necessarily enjoins upon the authorities concerned to put the licensee to notice on the grounds on which NOC is sought to be cancelled. The contents of the notice as issued in this matter have been reproduced hereinabove; and it is clear that the ground about the land being covered under the Wild Life Sanctuary, or the petitioner causing pollution in the river, or there being a danger to the existing dam were not even whishpered in the said notice. This Court is clearly of opinion that such grounds could not have been taken up for consideration without the petitioner having been put to adequate notice and having been supplied all the material sought to be used against him and having been afforded an adequate opportunity of stating its case. It appears that in the earlier round of litigation, the Divisional Commissioner indeed examined the matter in its right perspective and after finding the order passed by the District Magistrate on 16.02.2008 suffering from the shortcomings of violation of basic principles of natural justice, remanded the matter. Even while remanding, the learned Divisional Commissioner specifically recorded the findings that the petitioner was not in unauthorised possession of 36.09 hectares of land; and that the safety measures had duly been inspected and found adequate by the concerned authorities of PESO. The learned Divisional Commissioner also found that in relation to the distance of high tension lines, no specific report of any specialist/technician was available on record. As observed above, the petitioner had rightly moved three applications for summoning of the necessary records and reports but it seems that other two applications have simply been ignored by the District Magistrate and only the application for the report from an expert has been dealt with in the manner that the report received from the Assistant Engineer, AVVNL was sufficient. It has been pointed out that copy of such so-called report of the Assistant Engineer, AVVNL was not even supplied to the petitioner. This apart, after looking at the so-
(22 of 27) [CW-2574/2017] called report of the Assistant Engineer, AVVNL, Rawatbhata (Annex.18), this Court is unable to find it to be a report at all. From which particular point the distance had been measured and in whose presence has not even been stated. The said communication of the Assistant Engineer, AVVNL is contradicted by the stand of the respondents Nos.5 to 7 that as per the inspections carried out on 21.04.2006 and 27.05.2009, the high tension lines were found at a distance more than 90 metres from the respective magazines. The PESO had also stated in its communication dated 16.11.2010 (Annex.19) that the high tension lines were at the requisite distance from the concerned premises.
Much emphasis has been laid on two grounds by the respondents that the land in question is covered by the Wild Life Sanctuary and though there was a clerical mistake in the notification issued in the year 1997 but the petitioner is not entitled to take advantage of the same; and that the land in question has been procured in violation of Section 42 of the Rajasthan Tenancy Act, 1955. As noticed above, these grounds were not as such stated in the notice issued to the petitioner. Though the petitioner has also attempted to refute such grounds on merits but this Court would not enter into the merits of such grounds and the same, if at all available, are left to be determined at an appropriate stage in appropriate proceedings. For the present purpose, suffice it to observe that these were not the grounds stated in the notice served on the petitioner and could not have formed the basis of cancellation of NOC. Moreover, so far the question regarding procurement of the land is concerned, it is not in dispute that the matter remains pending with the Board of Revenue and an interim order is in operation in favour of the petitioner. In this position, the respondent authorities could not have recorded a finding against the petitioner in these proceedings regarding the title to the land in question. It does appear appropriate, however, to observe that the submission as made on behalf of the petitioner about want of authority with the District Magistrate to take up the proceedings under Rule 115 of the Rules of 2008 does not appear carrying substance and is required to be rejected. The Rules of 2008 have been promulgated in supersession of the Rules of 1983 and the repeal and savings clause as contained in Rule 139 of the Rules of 2008 reads as under:-
"139. Repeal and Savings.- (1) The Explosives Rules, 1983 are hereby repealed.
(23 of 27) [CW-2574/2017] (2) Notwithstanding such repeal-
(a) all licences, permits or duplicates thereof granted or renewed under the said rules and all fees imposed or levied shall be deemed to have been granted, renewed, imposed or levied, as the case may be, under the corresponding provisions of these rules;
(b) all approvals given and all powers conferred by or under any notification or rule shall, so far as they are consistent with the Act and these rules, be deemed to have been given or conferred by under this Act or these rules."
The learned counsel for the petitioner though has submitted that cancellation under Rule 115 ibid. could be taken up only in relation to NOC granted under Rule 103 but a purposive interpretation of the whole of the rules makes it clear that all licences, permits or approvals granted/given under the Rules of 1983 are deemed to have been granted/given under the corresponding provisions of the Rules of 2008. Thus, the NOC as granted to the petitioner shall be deemed to have been granted under Rule 103 of the Rules of 2008 for the present purpose; and the District Magistrate very much carries the jurisdiction to deal with the matter under Rule 115 ibid. However, as observed above, the orders as passed in the present case against the petitioner cannot be approved for breach of basic principles of natural justice.
As a result of the aforesaid, this writ petition deserves to be allowed with necessary observations.
Accordingly, this writ petition is allowed to the extent and in the manner that:
(a) The impugned orders dated 17.08.2010 and 01.11.2010 are quashed and set aside.
(b) However, it is left open for the District Magistrate, Chittorgarh that if at all any proceedings are sought to be adopted against the petitioner, he shall be entitled to do so after serving a proper notice on the petitioner and after supplying all the relevant material sought to be used against the petitioner and he shall be entitled to pass an order in the matter but only after adequate opportunity of hearing to the petitioner.
(c) For the above purpose, the District Magistrate can serve a fresh notice incorporating all of the grounds sought to be pressed against the petitioner.
(d) As at present, as a consequence of setting aside of the impugned orders, the respondents Nos.5 to 7 shall be at liberty to resume the licences in favour of the petitioner but only after being satisfied about the safety requirements and for that purpose they may carry out necessary inspection and (24 of 27) [CW-2574/2017] issue necessary directions.
It is made clear that this Court has, otherwise, not pronounced on the merits of the case either way; and it shall be open for the parties to deal with the merits in accordance with law.
It is also made clear that this decision shall have no bearing either way on the matter said to be pending before the Board of Revenue; and the Board of Revenue shall be expected to deal with the pending matter in accordance with law and the question of title to the subject land shall be governed by the final decision in those proceedings.
There shall be no order as to costs of this writ petition."
[Emphasis supplied] From the above, it is clear that earlier in the year 2010, the District Collector proceeded to cancel the NOC of the petitioner-company on the ground that the factory of the petitioner-company is established on the excess land and the same is situated in a wild life sanctuary.
This Court in the order dated 31.10.2011 has held that the factory of the petitioner-company is not established on the excess land. This Court has further observed that the District Collector, Chittorgarh assumed that the land in question was falling within the wild life sanctuary with reference to the Notification dated 09.10.1975 and the amended Notification dated 16.02.2010, however, before arriving at this conclusion no notice of this effect was given to the petitioner-company. While setting aside the order passed by the District Collector as well as the Divisional Commissioner of cancellation of the NOC of the petitioner-company, this Court has left open for the District Magistrate to proceed against it, if desires so, however, after serving a proper notice to the petitioner-company and after (25 of 27) [CW-2574/2017] supplying all the relevant materials sought to be used against the petitioner after providing adequate opportunity of hearing to the petitioner.
As stated earlier the objections of the District Collector vide letter dated 07.02.2017 (Annexure-46) are based on the letters written by the Chief Conservator of Forest and Deputy Conservator of Forest (Wild Life), Mukandra National Park, Kota, which speak about establishment of factory in the wild life sanctuary area in excess to the area allotted to it.
From the reply filed on behalf of the District Collector to this writ petition, it is divulged that pursuant to the order dated 31.10.2011, any proceedings against the petitioner-company has ever been initiated by the District Magistrate, Chittorgarh on the ground that the factory of the petitioners is established in excess area than allotted to it or the same is situated in the wild life sanctuary.
The documents Annexures-R/2, R/3, R/5 and R/6 annexed with the reply of the District Collector, Chittorgarh suggests that initially Jawahar Sagar Wild Life Sanctuary was declared by the State Government vide Notification dated October 9, 1975 (Annexure-R/2). Later on the area of the said sanctuary was changed by District Collector, Chittorgarh vide declaration dated 21.10.1997 (Annexure-R/3) issued by the District Collector, Chittorgarh. Thereafter vide amended declaration dated 16.02.2010 (Annexure-R/5) objections were sought to redefine the area of the Jawahar Sagar Wile Life Sanctuary, however, the said amended declaration was thereafter withdrawn by the District (26 of 27) [CW-2574/2017] Collector, Chittorgarh on 04.07.2012 vide Annexure-R/6.
Be that as it may, this Court is not inclined to enter into the controversy whether the factory premises of the petitioner- company falls within the boundary of Jawahar Sagar Wild Life Sanctuary or not and it is for the appropriate authorities to decide the same because earlier also this controversy was raised before this Court in SBCWP No.10842/2010 and this Court without entering into the merits of the said controversy has left it open for the District Collector, Chittorgarh to decide the same. However, the fact remains that the District Collector has not yet decided the said controversy. When the District Collector has not decided the said controversy till date, it is not open for him to refuse the no objection certificate for the purpose of revocation of the explosives licences of the petitioner-company on the basis of said controversy.
In view of the above discussions, this Court is of the opinion that the objections raised by the District Collector from time to time before the CCE in the matter of revocation of suspension of licences of the petitioner-company are not justified. Hence, the letters/communications dated 23.08.2016 (Annexure-
16), 07.12.2016 (Annexure-39) and 07.02.2017 (Annexure-46) written by the District Collector are hereby set aside. The CCE is directed to consider the request of the petitioner-company for revocation of suspension of explosives licences in view of the observations made hereinabove.
It is made clear that this Court has not pronounced any decision on the fact that the factory premises of the petitioner-
(27 of 27) [CW-2574/2017] company is situated within the limits of wild life sanctuary or not and this decision will also not affect any pending proceeding before the revenue courts or criminal courts. This order will also not come in the way of the District Collector in the proceeding against the petitioner-company under any law.
With these observations, the writ petition is disposed of. There shall be no order as to costs.
(VIJAY BISHNOI)J. m.asif/PS