Gauhati High Court
Subhash Jain vs Guwahati Municipal Corporation And Anr on 27 September, 2019
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/7
GAHC010165252019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4962/2019
1:SUBHASH JAIN
S/O LT. MEGHRAJ JAIN, R/O KALAPAHAR, P.O. BIRUBARI,P.S. FATASIL
AMBARI, GUWAHATI-781016, DIST. KAMRUP (M), ASSAM
VERSUS
1:GUWAHATI MUNICIPAL CORPORATION AND ANR.
REP.BY THE COMMISSIONER, GUWAHATI MUNICIPAL CORPORATION,
GUWAHATI-781001
2:THE DEPUTY COMMISSIONER
SOUTH ZONE
GUWAHATI MUNICIPAL CORPORATION
GUWAHATI-781001
3:THE DIRECTOR
FIRE SERVICE
FIRE AND EMERGENCY SERVICES
ASSAM
PAAN BAZAR-78100
Advocate for the Petitioner : MR. S KATAKI
Advocate for the Respondent : Mr. D. Saikia, Sr. Adv.
Mr. S. Bora, SC, GMC Mrs. D.D. Barman, GA, Assam.
BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM JUDGMENT AND ORDER (CAV) Date : 27-09-2019 Page No.# 2/7
1. Heard Mr. S. Kataki, learned counsel for the writ petitioner. I have also heard Mr. D. Saikia, learned senior counsel assisted by Mr. S. Bora, learned counsel appearing for the respondent nos. 1 and 2. Mrs. D.D. Barman, learned Government Advocate, Assam, has appeared for the respondent no. 3.
2. The writ petitioner is a businessman by profession and runs a shop wherein, fire crackers are sold. For carrying on with his aforesaid business, the petitioner has obtained a trade license from the Guwahati Municipal Corporation (GMC), Guwahati. The present petition has been filed being aggrieved by the order dated 03/07/2019 issued by the Deputy Commissioner/South Zone, GMC, directing the petitioner to obtain an "NOC" from the Director of Fire Services, Government of Assam and produce the same within seven days, failing which, his trade license bearing no. 179610 dated 17/08/2015 would be cancelled. As an interim measure, the petitioner was restrained from selling and purchasing fire crackers so as to prevent any possible disaster.
3. Mr. Kataki, learned counsel for the petitioner has argued that his client has obtained "NOC" from the competent authority under Rule 102 of the Explosive Rules, 2008 and as such, there was no further necessity to obtain another NOC from the Director of Fire Services, Assam. Referring to the explosive license issued to the petitioner by the Deputy Chief Controller of Explosive. Mr. Kataki has submitted that no further license or NOC, save and except, the trade license from the GMC authority was required for selling and purchasing fire crackers. It is also the submission of the learned counsel for the writ petitioner that as per section 180 of the GMC Act, 1971, the GMC is authorized to issue trade license taking note of the nature of the trade or business carried out by the applicant. Contending that the Page No.# 3/7 Act of 1971 does not confer any authority upon the GMC to insist on NOC from the Director, Fire Services, Mr. Kataki has argued that the impugned order dated 03/07/2019 is illegal and therefore, liable to be set aside by this Court.
4. Assailing the impugned order dated 03/07/2019, Mr. Kataki has further argued that the Assam Fire Services Act, 1985 operates in a different field, which has nothing to do with trade and commerce carried out by an entity and therefore, it was wholly inappropriate for the respondents to insist on NOC from the Director of Fire Services and on such ground, suspend his trade license. According to Mr. Kataki, it is the Deputy Commissioner of the District, who is competent to issue a license in respect of fireworks under Section 17 of the Act of 1985. Since the Deputy Commissioner has already granted NOC in favour of the writ petitioner, based on which, the Explosive License under Explosive Rules of 2008 was obtained, the consent of the Deputy Commissioner in this case. The learned counsel, therefore, submits that since Section 180 of the GMC Act of 1971 does not lay down any provision for obtaining NOC from the Director, Fire Services, there is no scope for the GMC authorities to add words to the statue so as to expand its ambit.
5. Mr. D. Saikia, learned senior counsel appearing for the respondents, on the other hand, contends that the license issued by the Chief Controller of Explosive cannot supplement the requirement of fire safety, which is the responsibility of the State Government. Therefore, merely because the petitioner is holding a license from the Controller of Explosive, the same would not obviate the need for obtaining a separate license under the Act of 1985. It is also the submission of the respondents' counsel that in this case, the petitioner would not only require a trade license from the GMC authorities and an Explosive License under the Explosive Rules of 2008 but a separate license from the Deputy Commissioner of the District under Page No.# 4/7 Section 17 of the Act of 1985 to deal in fire crackers. Mr. Saikia has also argued that the GMC is responsible for maintaining the civic amenities within the corporation area and, therefore, it would have the authority to examine the legitimacy of any business activity before taking a decision in the matter of granting or renewal of trade license.
6. I have considered the arguments advanced by the learned counsel for both the parties and have also carefully gone through the materials available on record.
7. There is no dispute about the fact that the writ petitioner is running a shop within the municipal corporation area at Guwahati and he is dealing in fire crackers (fire works). The Explosive Act, 1884 defines explosives which includes fireworks. As per Rule 102 of the Explosive Rules, 2008, an "NOC" is required to be obtained by every person who is possessing or engaging in sale or use of explosives. The Explosive license can be issued by the Controller of Explosive only after the NOC is obtained from the District Magistrate or Director General of Mine Safety, as the case may be. In the present case, there is no dispute about the fact that the Joint Chief Controller of Explosive, Kolkata has granted an explosive license to the petitioner for dealing in fire crackers, Chinese crackers and/or sparklers by specifying the quantity which can be dealt with at any one time. The Explosive license had evidently been issued to the petitioner under Explosive Rule 103 of the Rules, on the basis of an "NOC" obtained from the District Magistrate and the same is valid till 31/03/2021.
8. The Assam Fire Service Act, 1985 also lays down the requirement for obtaining a license for dealing in fireworks. Section 17 of the Act of 1985 would be relevant in this case and is, therefore, reproduced herein below :-
"17. Fire Work:- No building or place shall be used for purpose of Page No.# 5/7 manufacturing, making or otherwise dealing in any manner, in respect of fireworks without previously obtaining a license for the same from the licensing authority or such officer as may be authorized."
9. Section 2(k) of the Act of 1985 defines "Licensing Authority" which means "Deputy Commissioner" or such officer, as may be authorized by the State Government.
10. Rule 18 of the Assam Fire Service Rules, 1989 lays down the procedure that is to be followed for issuance of license by the Deputy Commissioner of the District under Section 17 of the Act of 1985. Rule 18 is extracted herein below for ready reference :-
"18. No objection certificate :- (1) The Deputy Commissioner or such officer as may be authorized by the state Government shall issue Trade License for warehouse , workshop, place of public entertainment or any other place "place' in the respective jurisdiction only on receipt of 'No objection certificate' from the Director of Fire Service.
(2) The Director of Fire service on being satisfied about provisions of fire prevention and safety measures, obtained in a place shall issue 'No objection certificate' Form "C" under sub-rule (1)."
11. A plain reading of the relevant provisions of the Act of 1985 and the Rules of 1989 leaves no room for doubt that any person dealing with fireworks would have to obtain a license under Section 17 of the Act of 1985 by following the prescribed procedure laid down in Rule 18 of the Rules of 1989. But in this case, there is no dispute about the fact that the petitioner has failed to obtain a license under the Act of 1985 although he is dealing in fire crackers.
12. It is to be noted herein that an Explosive License from the Chief Controller of Page No.# 6/7 Explosive is necessary under Rule 103 of the Rules of 2008 for any person to deal with explosives coming with the definition as provided under the Act of 1884. However, the license as contemplated by section 17 of the Act of 1985 pertains to the building or place, which is used for the purpose of dealing in fireworks in any manner. Rule 18 of the Rules of 1989 makes it further clear that the license can be granted subject to satisfaction of the Director of Fire Services regarding provisions of fire prevention and safety measures. Therefore, the license issued under the Explosive Act and that under the Act of 1985, have parallel purposes and cannot be substituted by one another. When there is a requirement under the statute that a person dealing in fire crackers must obtain a license as per section 17 of the Act of 1985 he cannot be permitted to deal in fire crackers without obtaining such licence. Such a license can also be issued only after obtaining NOC/clearance from the Director of Fire Services giving clearance for using a particular premise or place for storing or dealing in fire crackers after assessing the fire safety measures.
13. It is to be noted herein that Article under 243(Q) of the Constitution of India, inter- alia provides that there shall be a Municipal Corporation for a larger urban area. Accordingly, the Guwahati Municipal Corporation was established under the Guwahati Municipal Corporation Act, 1971 (herein after referred to as the Act of 1971). Section 6 of the Act of 1971 provides that the "Municipal Administration" of the city shall vest in the Corporation. Section 7 of the Act of 1971 provides that it shall be incumbent upon the Corporation to make adequate provision with regard to the matters enlisted therein. A reading of clauses 10, 11, and 12 of Section 7 of the Act of 1971, leaves no room for doubt that the Corporation not only has the duty to look into the matter of public safety and regulate the use of offensive and dangerous trade or practice but it would have the duty under the statute to ensure Page No.# 7/7 proper maintenance of fire brigade for the purpose of protection of life and property in case of fire. Therefore, it cannot be argued that the GMC authorities did not have any authority to examine as to whether a particular business or trade is being run legitimately and by observing the various norms including the fire safety norms.
14. As noted above, Section 17 of the Act of 1985 lays down the requirement of obtaining a license for dealing with fireworks, which includes the articles traded by the petitioner. Since the statute lays down the requirement of obtaining a license for such trade and considering the fact that the license is to be issued by the competent authority only after obtaining "NOC" from the Director of Fire Services, I am of the view that the impugned letter dated 03/07/2019 issued by the Deputy Commissioner, GMC, cannot be held to be an outcome of arbitrary exercise of power. The Writ Court, in exercise of equitable jurisdiction under Article 226 of the Constitution of India cannot, therefore, issue a Writ of Mandamus restraining the authorities from discharging their public duty by enforcing the law.
15. For the reasons stated herein above, I am of the view that there is no merit in this writ petition. The same is accordingly dismissed.
There would be no order as to costs.
JUDGE Sukhamay Comparing Assistant