Kerala High Court
E.K.Joju vs State Of Kerala on 19 November, 2020
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942
WP(C).No.18277 OF 2020(H)
PETITIONER:
E.K.JOJU,
AGED 48 YEARS,
ELAVATHINGAL HOUSE, KATTOOR P.O.,
THRISSUR, KERALA-680 702.
BY ADV. SMT.SANJANA R.NAIR
RESPONDENTS:
1 STATE OF KERALA
REP BY CHIEF SECRETARY TO THE GOVT.,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION, AYYANTHOLE,
THRISSUR-680 003.
3 THE ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, THRISSUR-680 003.
BY ADV. SMT.PRINCY XAVIER, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.18277 OF 2020(H)
2
JUDGMENT
The petitioner is aggrieved by Ext.P3 order by which his application for renewal of licence for sale of fireworks, crackers and sparklers was rejected on the ground that C.C.No.1736/2016, is pending against him and stating that he would be free to submit application as and when a judgment was rendered in the said case in his favour.
3. According to the petitioner, there is no provision for refusing renewal of licence on the ground that a crime is registered or is pending against the licensee. Pointing out Rule 118(2) of the Explosives Rules, Smt.Sanjana R. Nair, the learned counsel for the petitioner argued that it is only on conviction and sentence under a criminal offence that an application for renewal of license can be rejected.
4. She also argued that the crime case, WP(C).No.18277 OF 2020(H) 3 which is referred to in the order Ext.P3, is of the year 2016; but the respondents had not taken any action against him till the licence expired on 31.03.2019.
5. The respondents 2 and 3 had filed a counter affidavit supporting the order Ext.P3. It is stated that petitioner had submitted an application for renewal of license on 24.12.2018 and the said application was rejected as per order dated 14.08.2019, based on the objection raised by the police submitting a report that a crime no.409/16 was registered against the petitioner under Section 9B(1) of the Explosives Act, 1884 at Kattur Police Station on 12.04.2016, for illegally storing 6.5kg manufactured fire works and 9.7kg of chinese crackers in a tea shop building and that C.C. 1736/2016 is pending in Judicial First Class Magistrate Court, Irinjalakuda. It is stated WP(C).No.18277 OF 2020(H) 4 that Ext.P3 order was passed on his application dated 14.09.2019 requesting for reconsideration of the order of rejection. According to the respondents, the action of the petitioner was in violations of the conditions under rule 83(7) of Explosive Rules and the rejection was under Rule 127 of Explosives Rules 2008, considering the safety and security of the lives of the public. It is also their case that the petitioner has not exhausted from the statutory remedy available before the Appellate authority.
6. According to the learned counsel for the petitioner the issue is covered by the judgments of this Court in W.P.(C) No.2633/2016 (Ext.P5) and W.P.(C) No.22083/2019 (Ext.P4).
7. Smt.Princy Xavier, the learned Government Pleader argued that petitioner is an accused in a criminal case for offences under Section 9B(1)(b) of the Explosives Act for WP(C).No.18277 OF 2020(H) 5 storing fire crackers in a tea shop in violation of the conditions of his license. She pointed out that unlike the petitioners in the Exts.P4 and P5 judgments, petitioner herein is an accused in an offence under the Explosives Act itself and he has violated the conditions of the license granted to him and therefore those judgments cannot be applied in the case of the petitioner.
8. Heard the learned Counsel on both sides.
9. Rule 116 of the Explosives Rules, 1988, provides for the circumstances under which a renewal of license can be refused.
"116. Refusal to amend or renew a licence.--(1) The licensing authority refusing to amend or renew a licence shall record the reasons for such refusal in writing.
(2) The licensing authority shall refuse to renew a licence if such licence can be revoked in accordance with the Act or these rules. (3) A brief statement of reasons for refusal to renew a licence shall be given to the holder of the licence on demand unless in any case the WP(C).No.18277 OF 2020(H) 6 licensing authority is of the opinion that it will not be in public interest to furnish such statement.
(4) Where the renewal of the licence is refused, the fee paid for the renewal shall be refunded to the licensee after deducting the proportionate fee for the period beginning from the date from which the licence was to be renewed up to the date from which renewal thereof is refused.
(5) Before refusing renewal of a licence under the rule, the holder of the licence shall be given an opportunity of being heard."
10. Rule 118 of the Rules provides for the circumstances under which a license granted under the Act can be revoked. The relevant portion of the R.118, reads as follows:
"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 WP(C).No.18277 OF 2020(H) 7 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 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.
xxxx "
11. The only reason stated in the order Ext.P3 for rejecting the application of petitioner for renewal of license is that he is WP(C).No.18277 OF 2020(H) 8 an accused in C.C.No.1736 of 2016 pending before the First Class Magistrate Court, Irinjalakuda. Respondent does not have a case that petitioner is convicted in a case, which attracts Section 118(i)(b)of the Rules. In Ext.P3 order, nothing is stated regarding violation of conditions of license. The respondents cannot be permitted to supplement the reasons in the counter affidavit. Moreover, as rightly pointed out by Smt.Sanjana, the learned counsel for the petitioner, the respondents did not choose to take any action to revoke or suspend the licence of the petitioner on the ground of registration of crime though the crime was registered in 2016 and the Criminal case has been pending before the Magistrate court since the year 2016. The license continued to be in force till 31.03.2019, the expiry of its tenure.
12. The respondents have stated that the WP(C).No.18277 OF 2020(H) 9 application for renewal of license was rejected in exercise of power under Rule 127 of the Explosive Rules, which reason also does not find a place in Ext.P3 order. At any rate, it is relevant to have a look at Rule 127 of the Rules, which reads as follows:
127. Power of officers to prevent dangerous practices.--(1) If in any matter which is not provided for by any express provision of, or condition of a licence granted under these rules and a Controller or District Magistrate finds any factory, magazine or place where an explosive is being manufactured, possessed or sold, or used or any part thereof, or anything or practice therein or connected therewith or with the handling or transport of explosives to be unnecessarily dangerous or defective so as, in his opinion, to tend to endanger the public safety or the bodily safety of any person, such Controller or District Magistrate may, by an order in writing, require the occupier of such factory magazine, store house or place or the owner of the explosive, to remedy the same within such time as may be specified in the order.
13. When respondents themselves say that WP(C).No.18277 OF 2020(H) 10 condition of license was violated, there is no reason to invoke Rule 127 which can be invoked in respect of matters which are not provided in the conditions of license or in any of the provisions in the Act or rules. Moreover what is provided therein is to issue an order directing the concerned person to remedy the defect within a prescribed period.
14. In the judgments Exts.P4 and P5, similar cases of rejection of applications for renewal are seen to have been interfered with, by this Court on the ground that mere registration of a crime or pendency of a case against the licensee cannot be a reason for refusing renewal of licence. Even though the learned Government Pleader vehemently argued that the Exts.P4 and P5 judgments cannot be applied to the factual circumstances, which arose in the case of petitioner herein and that petitioner has to WP(C).No.18277 OF 2020(H) 11 resort to the statutory remedy of appeal, I am of the view that the judgments Ext.P4 as well as Ext.P5 are rendered against the orders passed by the licensing authorities.
Therefore there is no reason for denying licence to the petitioner. Ext.P3 order is set aside. There shall be a direction to the 2nd respondent to pass fresh orders on the application of the petitioner, for which Ext.P2 receipt was received, within a period of two months, from the date of receipt of a copy of the judgment.
Accordingly, the writ petition is
allowed. Sd/-
P.V.ASHA
JUDGE
ww
WP(C).No.18277 OF 2020(H)
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LICENSE ISSUED TO THE
PETITIONER DATED 22.9.2016.
EXHIBIT P2 TRUE COPY OF THE RECEIPT ON THE APPLICATION
FOR RENEWAL DATED 24.12.2018.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT DATED 01.06.2020.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 14.08.2019
IN WRIT PETITION NO.22083 OF 2019. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 22.01.2016 IN WRIT PETITION NO.2633 OF 2016.