Kerala High Court
Land Revenue Commissioner vs Salina Thomas on 16 March, 2022
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A.No.4 of 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
WA NO. 4 OF 2022
AGAINST THE JUDGMENT IN WP(C) 6400/2021 OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS IN W.P.(C):
1 LAND REVENUE COMMISSIONER
PUBLIC OFFICE COMPOUND, MUSEUM JUNCTION, VIKASBHAVAN
P.O., THIRUVANANTHAPURAM-695033.
2 DISTRICT COLLECTOR,
COLLECTORATE, CIVIL STATION, AYYANTHOLE, THRISSUR-680003.
3 THE ADDITIONAL DISTRICT MAGISTRATE,
COLLECTORATE, THRISSUR-680003.
BY SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER
RESPONDENTS/PETITIONER IN THE W.P.(C):
SALINA THOMAS
AGED 64 YEARS
VEMBIL HOUSE, PALLISSERY, ANNAMADA P.O., THRISSUR,
KERALA-680741.
BY ADVS.
SRI.P.DEEPAK
SRI.SANJANA R.NAIR
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.4 of 2022 2
CR
JUDGMENT
SHAJI P.CHALY,J.
This appeal is preferred by the Land Revenue Commissioner and other State officials, who were respondents in W.P.(C) No.6400/2021, challenging the judgment of the learned Single Judge dated 22.3.2021, whereby the learned Single Judge quashed Exhibit P6 order passed by the Additional District Magistrate, Thrissur bearing No.DCTSR/1535/2021/C6-KDS, wherein the licence sought for by the petitioner for manufacturing 5Kg. Ammunition and 10 Kg. fireworks in the property comprised in Sy.No 1083/2 and 1085/1 of Kalloor, Thekkumuri Village, Chalakudy Taluk, was refused to be renewed under the provisions of the Explosives Rules, 2008; and directed the Additional District Magistrate, Thrissur, to renew the licence of the petitioner in accordance with the Rules. It is thus challenging the legality and correctness of the judgment of the learned Single Judge, the writ appeal is preferred.
2. Brief material facts for the disposal of the writ appeal are as follows; the writ petitioner/respondent was granted licence during the year 2003 as per the W.A.No.4 of 2022 3 Explosives Rules, 1983 for the manufacture of 5 Kgs. gunpowder and 10 Kgs. fire works, which was being renewed upto 2016. On 10.2.2016, an application for renewal of licence with prescribed fee was submitted before the Additional District Magistrate, Thrissur. The Additional District Magistrate sought a report of the Divisional Officer, Fire & Rescue Services, Palakkad, who in turn reported that from the 5 meter width road, there is only a pathway of 150 meters long to the fire cracker manufacturing unit, which is situated in an open garden land. It was further reported that as per the amendment to rule 61 of the Kerala Panchayat Building Rules, 2011, which came into force w.e.f. 3/6/2015, there must be a 7 meter wide road to a firecracker manufacturing unit, having a plinth area of more than 700 sq.mtrs. and since there is no 7 meter wide road to the applicant's/writ petitioner's building, a Non Objection Certificate cannot be granted for renewing the licence.
3. In fact in the report submitted by the Tahsildar, Chalakudy it is stated that the storeroom, working shed, drying platform and stock room, which make up of various parts of the firecracker manufacturing unit, is situated in a land belonging to the writ petitioner; that the storeroom has three rooms with separate doors to each room; that the working shed situated 15 meters away to the west of the storeroom has doors on all four sides. Among others, it is also reported that there is no high tension electric line, workshops etc. likely to catch fire within a radius of 50 meters W.A.No.4 of 2022 4 from the property of the applicant; that there are also no inhabited houses within a radius of 50 meters and that no cases have been registered in the recent past against the writ petitioner under the Explosives Rules and that the same state of affairs existed at the time of grant of the original licence and its subsequent renewal continues, and therefore, recommended for renewal of licence.
4. The District Police Chief, Thrissur has also filed a report stating that there are no objectionable sites within 75 metres from the fire cracker manufacturing unit and there are adequate safety arrangements provided in the unit. Apart from the same, it is also reported that the writ petition er has been manufacturing the firecrackers for the last more than 13 years and he has secured sufficient experience in handling the explosives with care and caution and therefore, there is no objection in renewing the licence.
5. In fact, a second report of the Tahsildar, Chalakudy dated 21.10.2016 was also secured, wherein it is stated that the property owners of the land lying to the south and east of the writ petition ers property have given their consent for renewing the licence and further stated that consent of the land owners having property on all four sides of the stockroom has been obtained and that, no complaints have so far been received with respect to the functioning of the W.A.No.4 of 2022 5 firecracker manufacturing unit.
6. Apparently, the Additional District Magistrate, conducted a local inspection on 31.1.2017 and after providing a personal hearing on 22.12.2017 to the writ petitioner, the application was rejected vide an order dated 15.3.2017. Thereupon, petitioner has submitted a representation for reconsideration of the application, which was also rejected as per Exhibit P4 order dated 30.6.2017. Aggrieved by the said order, an appeal was preferred before the Land Revenue Commissioner, Thiruvananthapuram, which was disposed of by the 1 st appellant, directing the Additional District Magistrate, to reconsider the application within three months, evident from Exhibit P5.
7. According to the writ petitioner, the Additional District Magistrate, did not pass any order, which constrained him to file W.P.(C) No.2700/2021, seeking direction to the Additional District Magistrate to consider and pass orders on the application, as directed in Exhibit P5 order of the Land Revenue Commissioner. However, soon after filing of the writ petition, the Additional District Magistrate passed Exhibit P6 order dated 15.2.2021, rejecting the renewal application. It was thus challenging the legality and correctness of Exhibit P6 order, the writ petition was filed.
W.A.No.4 of 2022 6
8. The paramount contention advanced by the writ petitioner was that the rules relating to the renewal of licence is contained in the Explosives Act and Rules, which does not contemplate a procedure, as adopted by the Additional District Magistrate, in relation to an application for renewal. It is also the case of the writ petitioner that as per rule 112 of the Explosives Rules, 2008, an application for renewal of licence has to be accompanied by,
(a) Application in Form LE-1
(b) Original licence;
and
(c) Prescribed renewal fee
9. Therefore it is submitted that, the insistence of the Additional District Magistrate for reports, over and beyond what is prescribed by the Rules, is illegal and cannot be sustained. That apart, it is pointed out that the reason assigned in Exhibit P6 order is that there is no proper access to the property, which is incorrect. It is further submitted that the licence was obtained by the petitioner in the year 2003 and at that time all Rules and formalities existing then, were complied with. It is also submitted that even though rule 113 of the Rules, 2008 contains various parameters to be satisfied for approval and grant of licence, the Rules relating to renewal are simpler and the documents required to be submitted for renewal are only those specified in rule 112 and therefore, the 3 rd respondent was not justified W.A.No.4 of 2022 7 in going beyond rule 112 of the Rules, 1983. The learned Single Judge, after taking into account the pleadings put forth by the petitioner and hearing the rival parties, was of the opinion that the licence in question is one issued for manufacturing fireworks upto a maximum quantity of 10 Kgs. and gunpowder upto 5 Kgs, at a time, and the licence was being renewed from 2003 to 2016 and there is no case for the official respondents that petitioner has violated the conditions of licence during these years. It is also observed that Exhibit P1 was the last renewal for a period of 5 years on 20.6.2011, which was after the introduction of the Explosives Rules, 2008; and that the impediment concerning access to the licensed premises was not raised on the previous occasion when the petitioner applied for renewal of licence. Therefore, after assimilating the intricacies of rule 112 of the Rules, 2008 and having found that the rule does not confer power on the 3 rd respondent to reject an application on the ground mentioned in the impugned order, direction was issued to renew the licence.
10. The paramount contention advanced in the appeal by the State Officials is that as per rule 103(3) of the Explosives Rules, 2008, the Additional District Magistrate is empowered to make verification of any matter, which is necessary while considering the application for licence and according to the appellants, while considering a renewal application, the yardsticks and parameters adopted for grant of licence can be reverified. It is also pointed out that rule 113 (3) of the Rules, 2008 W.A.No.4 of 2022 8 enables the primary authority as well as any superior authority to cancel the Non Objection Certificate, if it is absolutely necessary for public peace and safety. It is the further contention of the appellants that the Additional District Magistrate, before declining renewal, has conducted a site inspection on 10.3.2017 and found that there is no road access for a distance of 100 meters to the manufacturing premises and therefore, there will be difficulty for taking any vehicle of a Fire Department and ambulance in emergency situations, in order to carry out rescue operations. Therefore, according to the appellants, the primary authority was justified in declining renewal. That apart, it is submitted that as per rule 61 of the Kerala Panchayat Building Rules, 2011, which stood amended from 2015, a 7 meter width access is required to the buildings for use of explosive manufacturing. Other contentions are also raised based on rule 112 of the Rules, 2008.
11. In fact, the writ petitioner has filed a counter affidavit in the writ appeal wherein, it is submitted that the Kerala Panchayat Building Rules, 2011, as amended in 2015, in the matter of access width to the road, cannot be taken into account since the licence was originally granted to the writ petitioner in the year 2003. That apart, it is pointed out that the Tahsildar as well as the District Police Chief, have recommended for renewal of the licence and in fact, the requirement of the road under rule 112 of the Rules, 2008, is only for the purpose of having access to the W.A.No.4 of 2022 9 building in question and there is no requirement at all for having a 7 meter wide road for the fire engine or ambulance be taken to the building in question. It is also pointed out that a co-owner of a property has agreed to vehicular access to the premises in question, which in fact, was declined by the Additional District Magistrate on the reason that all co-owners have not agreed for the same and that the said property is lying two feet below the property in question . Learned counsel for petitioner has also relied upon the dictionary meaning of the word "road" and submitted that it could also be a path approaching to a place.
12.We have heard, learned Senior Government Pleader Sri.K.P.Harish for appellants and Sri.P.Deepak for the respondent/ writ petitioner and perused the pleadings and materials on record.
13. The sole question emerging for consideration is whether any interference is required to the judgment of the learned Single Judge? However, before proceeding to consider the same, we are of the opinion that the reliefs sought for in the writ petition are to be appreciated, which are as follows:
(i) Issue a writ in the nature of certiorari or such other writ, order or direction calling for the records leading to Exhibit P6 and quash the same.
(ii) Issue a writ in the nature of mandamus or such other writ, order or direction commanding the 3rd respondent to forthwith reconsider the W.A.No.4 of 2022 10 application for renewal and renew the Explosives licence No.1186/20 issued to the petitioner.
14. On an analysis of the reliefs sought for, it is clear that the writ petitioner has sought to quash Exhibit P6 impugned order of the Additional District Magistrate and sought for a further direction to the Additional District Magistrate to reconsider the application for renewal and renew the explosive licence issued to the writ petitioner.
15. However, the learned Single Judge has quashed Exhibit P6 order and further directed the Additional District Magistrate to issue the licence in accordance with law, which was not at all a relief sought for by the petitioner in the writ petition. In fact, rule 112 deals with renewal of licence and sub-rule (1) thereto specifies that every licences except the licence granted for a specific period not exceeding one year, shall be renewable for a maximum period of five financial years ending on the 31st March.
16. It is true that every application for renewal shall be accompanied by application form RE-1, the original licence and prescribed fee. However, sub-rule (3) says that a licence may be renewed by the authority empowered to grant such licence. It is also important to note that sub-rule (8) of rule 112 stipulates that every licence granted under the rules other than a licence granted for a specified period W.A.No.4 of 2022 11 shall be renewable for a maximum period of five years where there has been no contravention of the Act or the rules framed thereunder or of any condition of the licence so renewed. It is an admitted fact that the licence was issued to the writ petitioner as per the Explosives Rules, 1983. Rules 154 thereto deals with application for licence and sub-rule (3) specifies the requirement for grant of licence. In order to arrive at a logical conclusion, it is only appropriate that the relevant provisions of rule 154 of the Explosives Rules, 1983 is extracted:
"154. Application for licence--(1) A person desiring to obtain or renew or amend a licence under these rules shall submit an application in writing in the authority empowered to grant, renew or amend such a licence. (2) The application shall be signed by the licensee or applicant himself, as the case may be, or by a person authorised by him in writing in this behalf, and shall, in the latter case, be accompanied by such authorisation. (3) Every application for grant of a licence to manufacture explosive shall consist of following:
(a) an application in Form 3;
(b) plans of the proposed buildings and the site drawn to scale. These site plans should show full approach road net work to the factory/or premises.
(c) a description of situation, character and construction of all mounds, building (production, non-production, stores, administrative, etc.) and safety distance W.A.No.4 of 2022 12 observed by each building;
(d) description of process/work to be carried out in each building or part,thereof;
(e) a description of plant and equipment and its location provided in each building part thereof;
(f) a description of explosives and ingredients thereof, whether wholly or partially mixed that will be present in any building or machine at any one time;
(g) a description of maximum number of persons to be employed in each building;
(h) a description of any special constructions which the applicant may propose by reason of special circumstances, arising from the locations, situation or construction of a building or works, or the nature of process or otherwise;
(i) prescribed scrutiny fee;
(j) in case where applications is made in the name of a company, the names an addresses of Directors and partners and the name, address correspondence in respect of licence applied for. Any change in such names and addresses should be immediately communicated to the licensing authority.
... "
17. The licence was granted as per Explosives Rules, 1983 and also may be on the basis of the site plan showing the full approach road network to the factory/or premises. As per rule 113 of the Explosives Rules, 2008 dealing with documents for approval and grant of licence, the following documents shall be required for approval and grant of licence to a firecracker unit of the instant nature, which read thus:
___ W.A.No.4 of 2022 13 ___________________________________________________________ Sl. Purpose of Article Licence Documents required Documents required No. Licence number Form for approval for grant of licence as per Part I of Schedule IV ________________________________________________________________
1. Licence to 1(a) LE-1 (i) Form AE-1; (i) Form AE-1;
manufacture (ii) Plans of the proposed (ii) plans of the proposed buildings or sheds and the buildings or sheds and the site showing approach road site showing approach road to the factory, all buildings to the factory, all buildings in and around, and safety in and around, and safety distances maintained. distances maintained.
(iii) Particulars of competent (iii) Particulars of competent persons and their experience persons and their experience in related fields; in related fields;
(iv)Passport size photographs (iv)Passport size photographs
of the occupier along with of the occupier along with
documentary evidence documentary evidence
of nomination as occupier of nomination as occupier
rule 2. as per rule 2.
(v) Scrutiny fee as per (v)Completion certificate
Schedule IV, Part 2 (vi) Indemnity bond in CE-3
(vii) Licence fee as per
Schedule IV, Part 2.
18. Therefore, even though the requirements under rule 154 of the Rules, 1983 was to produce a site plan showing the full approach road network to the factory/or premises, as per rule 113 of the Rules, 2008, the requirements are ; Form AE-1 and Plans for the proposed buildings or sheds and the site showing the approach road to the factory; all buildings in and around and safety distance maintained.
19. Anyhow, we come back again to sub-rule (8) of rule 112, which states that W.A.No.4 of 2022 14 every licence granted under these rules other than a licence granted for a specified period shall be renewable for a maximum period of five years where there has been no contravention of the Act or these rules framed there under, or of any condition of the licence so renewed. It is an admitted fact that the licence was renewed in the year 2011 in accordance with the provisions of the Rules, 2008 and therefore, when a renewal is sought for, the primary authority is vested with powers to identify whether there has been any contravention of the Act or the Rules framed thereunder. Which thus means if the conditions and requirements for the approval and the grant of licence was satisfied in accordance with the Rules 1983 originally in the year 2003, and later as per Rules 2008 which is in force, it shall be maintained as such; and the said aspects can always be verified by the authority while considering an application for renewal of licence in order to satisfy himself that the satisfied mandatory requirements are continued as such; otherwise the licensing conditions would be a mockery affecting the rule of law prevailing in the country .
20. In that view of the matter, it cannot be said that primary authority is not vested with powers to see as to whether there is a contravention of the provisions of the Act and the Rules, 2008. Taking into account all the above aspects, we are of the view that the plans of the proposed building and the approach road to the W.A.No.4 of 2022 15 factory to be provided is not an empty formality, but made with the intention to ensure any rescue operations in the event of any adverse situations. In fact the Additional District Magistrate who is the primary authority declined to renew the license on the ground that there is no proper road access to conduct any rescue operations by employing fire fighting vehicles and ambulances, which cannot be said to be bad in any manner .
21. It is evident that the Tahsildar, Chalakudy has submitted an additional report stating that there is no sufficient access to the manufacturing unit. However, it is seen from the order that one Purushothaman, has given consent to use his property as a road in the event of any emergency situation. But , the Additional District Magistrate found that the said property is a co-ownership property belonging to 5 persons and the consent of all the co-owners is not secured .
22. Taking into account all the above aspects, we are of the considered opinion that the directions issued by the learned Single Judge to grant renewal to the writ petitioner, may not be correct because the requirement of road access to the property in question cannot be said to be a pathway without a vehicular access, since the Act and the Rules envisions emergency situations in a gunpowder and crackers manufacturing unit and that is why it is clearly specified that the plan W.A.No.4 of 2022 16 should contain the details of the road to the factory. Anyhow, the Additional District Magistrate has conducted a site inspection, and has also taken into account the report of the Tahsildar, Chalakudy that a co-owner of the property one Purushothaman has given consent to use his property in the case of any emergency. The said aspect was not acceptable to the primary authority, since all the co-owners have not agreed for the same. Even though the learned counsel for petitioner Sri.P.Deepak, submitted that going by the settled legal position, the consent of all the co-owners are not required since all the co-owners of the property are joint owners of every inch of the entire property till such time it is divided by the co-owners. But fact remains, all co-owners are owners of every inch of property and unlike some action taken by a co-owner in a rent control proceedings to evict a tenant from a building premises, it cannot be said that the permission of one co-owner alone is required for granting permission to utilise the property of all co-owners for conducting fire fighting and making access for other vehicles to the factory in question. Any how the width of the road as specified in the Kerala Panchayat Building Rules 2011 as stood amended in 2015, as insisted upon in the order impugned may not be required in the case of a small manufacturing unit like the instant one, since it is not so specified even in the conditions for grant of approval and license under the rules 2008 , whereas as per W.A.No.4 of 2022 17 Section 83 (4) (e) of the Explosives Act, 1884, dealing with explosives permitted for possession and sale from shop, under which the Rules 2008 are framed , it is clearly specified that the shop shall be accessible for fire fighting, among other imperative conditions .
23. Taking into consideration the factual and legal deliberations as above we think it is only appropriate that an opportunity is provided to the petitioner, to establish an approach road to the factory for vehicular access by providing an appropriate plan in contemplation of the rules, with properly constituted consent from the co-owners of the property. This we say specifically, because even according to the petitioner, the access road is available through a co-ownership property belonging to third persons. Therefore the quashing of Exhibit P6 impugned order of the Additional District Magistrate, made by the learned Single Judge is to be sustained, and the application is directed to be re-considered, after receiving necessary and appropriate documents from the writ petitioner, as observed above.
24. Therefore, we allow the writ appeal partly, and set aside the direction issued by the learned Single Judge to grant the renewal of the licence. We consequently direct the Additional District Magistrate to re-consider the renewal application submitted by the writ petitioner within a period of one month from the date of W.A.No.4 of 2022 18 receipt of a copy of this judgment, after providing an opportunity of participation and hearing to the petitioner, and in accordance with law. We make it clear that the petitioner is at liberty to produce additional documents so as to satisfy the requirements of road access in accordance with the observations made above, to the factory premises in question, within two weeks from the date of receipt of a copy of this judgment, which shall also be taken into account for complying with the directions, as contained above.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE