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[Cites 9, Cited by 4]

Madhya Pradesh High Court

Badshah Fataka Centre Thr. Hakimuddin vs The State Of Madhya Pradesh on 21 August, 2019

Equivalent citations: AIRONLINE 2019 MP 1465

Author: Vivek Rusia

Bench: Vivek Rusia

-1-                              W.P.No.17690/2018

         HIGH COURT OF MADHYA PRADESH,
                     BENCH AT INDORE
                WRIT PETITION NO.17690/2018
      (Badshah Fataka Centre vs. State of M.P & another)
21.08.2019 (INDORE):
       Shri S.R Bhargava, learned counsel for the petitioner.
       Shri Arvind Sharma, learned Govt. Advocate for the
respondent/State.
       Heard.
                              ORDER

Petitioner has filed the present petition being aggrieved by the order dated 17.09.2015 passed by District Magistrate, Ujjain whereby license No.2/94 has been revoked and declined to renew under section 6E of the Explosives Act, 1884 as also against the order dated 21.10.2016 whereby the appeal filed under section 6F of the Explosives Act has been dismissed by the Additional Commissioner, Ujjain.

Facts of the case in short are as under:

2. Petitioner is engaged in the business of sale of fire crackers since 1991 and has a warehouse to store fire crackers since 1994. The petitioner is having a shop for display and sale of fire crackers at 103-A, Shirsagar Complex, Nai Sadak, Ujjain in the name of M/s Badsha Fataka Centre and one go-down/warehouse on land bearing survey No.22/3 Gram Ratadia, Tehsil Ghatia, District Ujjain.

The petitioner is having the License No.2/Ujjain/94 issued by the District Magistrate since in the year 1994 and which -2- W.P.No.17690/2018 has been renewed from time to time.The petitioner submitted an application before the District Magistrate for renewal of license on 15.03.2015 in form No.24. According to the petitioner the said godown is situated 10 kms. away from the municipal limits. An inspection was carried out by the Revenue Inspector and SHO , thereafter Tehsildar submitted report to the DM in his favour. Despite that, vide order dated 17.09.2015 the application for renewal of his license has been rejected and the license No.2/Ujjain/94 has been revoked. The appellate authority has also not considered the grounds raised in the appeal and dismissed the appeal vide order dated 21.10.2016, hence the present petition before this Court.

3. Shri Bhargava, learned counsel appearing for the petitioner submits that the petitioner is having a license to sell fire crackers from the shop at Nai Sadak, Ujjain. The said license was issued by Joint Chief Controller of Explosives, Central Circle, Agra and same has now been renewed from 28.03.2019 to 31.03.2024. The petitioner was also having a license to store fire crackers in godown duly issued by the District Magistrate since 1994 and renewed time to time. He applied for renewal of the license on 31.03.2015. The respondents made an inspection of his shop and on the basis of such inspection report the license of the godown has been cancelled which is highly illegal and arbitrary on the part of the respondents. The godown has never been inspected and no violation of rules and -3- W.P.No.17690/2018 regulations has been found, hence the impugned orders are liable to be quashed.

4. Respondents have filed the return by submitting that the shop of the petitioner is situated in a densely populated residential and commercial area. A detailed enquiry was conducted, in which it has been found out that the storage and sale of explosives in a densely populated area is not safe, therefore, the competent authority has rightly taken a decision for revocation of the license. In the report the violation of provisions of section 15(4), 88, 74 & 83(4) of the Explosives Act was also found. The petitioner was given a show cause notice and a reply was submitted, hence the license has rightly been cancelled after giving due opportunity of hearing. In identical facts and circumstances W.P.No.7804/15 (Firm Mahakal fire Shop and others vs. State of M.P & others) has been dismissed by this Court. The respondents have also placed reliance on a judgment of the Apex Court in the case of Arjun Gopal & others vs. Union of India & others in Writ petition (civil) No.728/2015 in which the Apex Court has issued certain directions to the concerned authorities to implement in respect of sale and use of fire crackers. In the aforesaid judgment the Apex court has held that sale of fire crackers shall be only through licensed traders and it shall be ensured that these licensed traders sell those fire crackers which are permitted by that order; hence the writ petition is liable to be dismissed.

-4- W.P.No.17690/2018

5. The petitioner has filed the rejoinder to the return along with the copy of the license issued by the Controller of Explosives and now he has filed copy of the license issued by the Controller of Explosives along with list of documents by which it has been renewed from 28.03.2019 to 31.03.2024. Shri Arvind Sharma has argued in support of the impugned action of the respondents.

Appreciation & conclusion....

6. The case of the petitioner before this Court is that he applied for renewal of license No.2/Ujjain/94 before the District Magistrate, Ujjain which was issued for the storage of fire crackers in the godown but the respondents have conducted inspection of his shop and cancelled the license.

7. Section 5 of the Explosives Act, 1884 gives powers to the Central Govt. to make rules consistent with the Act to regulate or prohibit with the condition of license as provided by the rules in respect of manufacture, possession, use, sale, transport, import and export of the explosives or any specified class of explosives. Section 6A imposes prohibition of manufacture, possession, sale or transport by young persons and certain other persons. Section 6B provides grant of license by an authority prescribed in the rules made under the Act. Section 6C provides refusal of license and 6D provides that the licensing authority is competent to impose conditions in addition to the prescribed conditions. Under Section 6E the licensing authority may suspend or revoke the license and thereafter 6F provides a remedy of appeal.

-5- W.P.No.17690/2018

Earlier in exercise of powers conferred by sections 5 & 7 of the Act of 1884 the Central Govt. made rules called the Explosives Rules 1983. Thereafter, w.e.f 31.12.2008 the Explosives Rules 2008 came into force by repealing old rules .

8. Rule 2(19) provides display of fireworks and according to which a group of authorized manufacturers of fireworks assemble at a site solely for the purpose of display. Rule 2(40) defines the word "permit" which means permit issued by the Chief Controller or Controller or District Magistrate under these rules for specific purpose. As per rule 7 no person shall manufacture, import, export, transport, possess or sell or use an explosive except as authorized or licensed under these rules.

9. Chapter VII of the Rules of 2008 deals with the special provisions for possession, sale and use of explosives. As per rule 88 no person shall sell fireworks from any premises other than those licensed under these rules. Under rule 99 the licenses and the certificates for specific purposes may be granted by the authorities specified in Part-I of Schedule IV. Under Sub Rule (1) of Rule 107 the licensing authority, on being satisfied with the documents received for grant of license, and after making such enquiry, may issue a license or refuse to grant the license and in sub rule (2) a copy of every license other than for import or export shall be forwarded to the District Magistrate and Superintendent of Police of the district in whose jurisdiction the premises are -6- W.P.No.17690/2018 situated. Rule 113 provides the list of document required to be submitted for approval and grant of license. Schedule IV Part-I provides name of license and licensing authorities. As per rule 19 the license to possess and sale from a shop manufactured wire works of class 7, division No.2, sub division No.2 etc. the form No.LE-5 is required under Article 5(f) and the competent authority is Controller of Explosives. Likewise, license to possess and use fire works for public display the license No.LE-6 under Article 6 is required and for which the District Magistrate is competent authority.

10. Petitioner is having license LE-5 under Article 5(f) issued by the Controller of Explosives for the shop at Nai Sadak and the said license has been renewed from 28.03.2019 to 31.03.2014. Therefore, license No.E/CC/MP/24/262(E-37007) which has been issued by the Controller of Explosives cannot be cancelled by the District Magistrate as the issuing authority is having power to cancel or renew the license. The petitioner he is having another license No.2/Ujjain/94 issued by the District Magistrate for the godown situated at survey No.22/3. The aforesaid license was initially issued in the year 1994 under the old Explosive Rules,1983 and remained in force up to 31.03.1996. The quantities for storage of fireworks and Chinese crackers have been prescribed in the license. The aforesaid license was issued under Form 24 under rule 155 of the Explosives Rules 1983 but it has been renewed from time to time and under the new rules of 2008 last time it was -7- W.P.No.17690/2018 renewed from 01.04.2012 to 31.03.2015 and thereafter petitioner filed an application for renewal from 01.04.2015 to 31.03.2020. In column No.1 of Form No.24 it is mentioned that the license issued to Hakimuddin (firm Badshah Fataka Centre), 103-A, Nai Sadak, Ujjain and in clause-6 the licensed premises is situated at survey No.22/3, Ratedy, Ujjain.

11. As per the contents of impugned order Annexure P/5 the Sub Divisional Magistrate submitted a reported dated 26.05.2014 after inspection of a shop at Nai Sadak with license No.2/94 on 05.05.2014 and it was found that the shop is situated in residential and commercial place and for the safety purpose the license is liable to be cancelled. A show cause notice was issued to the petitioner under rule 118 of the Rules of 2008. The petitioner submitted a reply and on the basis of the report the license has been revoked under section 6C and rule 118 of the Rules of 2008 by the Divisional Magistrate. It has also been observed that rules15(4), 88, 74 & 83(4) of the Explosives Act have been found violated and for the safety purpose the place is not appropriate. The Police Station, Bherugarh, Ujjain submitted a report to the Superintendent of Police in respect of the safety measures provided by the petitioner in his godown over land bearing survey No.22/3. The Revenue Inspector has also submitted a Panchnama report and recommended for storage of fire crackers in the godown vide its report dated 22.02.2016.

-8- W.P.No.17690/2018

12. Petitioner is already having license to sell the fire crackers of specified item by way of license LE-5 (5(f)). The photocopy of license filed by the petitioner is reproduced below:

LICENSE FORM LE-5 (See article 5(a) to (f) Part-I of Schedule IV of Explosives Rules, 2008) License to : (f) possess and sell from a shop manufactured fireworks of Class 7 Division 2 sub division 2 exceeding 100 kilogrammes but not exceeding 300 kilogrammes and Chines Crackers or Spar Kilogrammes but not exceeding 1200 kilogrammes.
License No:E/CC/MP/24/262(E-37007) Annual Fee Rs:1000/-
1. Lincense is hereby granted to: M/s Badsha Fataka Centre(Occupier: Shri HAKIMUDDIN S/O SHRI HADAR ALI) 103/A KSHIR SAGAR CORNER, NEW ROAD, DIST. UJJAIN district, State, Pincode-456006
2. Status of licensee :Company
3. License is valid only for the following purpose: possess and sell from a shop of Chine Crackers and/or Sparklers, Fire Works,
4. License is valid for the following kinds and quantity of explosives:
Sr. Name and Description Class & Division Sub-division Quantity at No. (If any) any one time 1 Chines Crackers and/or Sparklers 7,2 1 1200 Kg. 2 Fire Works 7,2 2 300 Kg.
5. The licensed premises shall conform to the following drawing(s):
Drawing No.:E/CC/MP/24/262(E37007) dated: 26/06/2003.
6. The licensed premises are situated at following address:
Survey No(s).N.A, Town/Village:DAWARI PITHA, NAI SADAK Police Station: Ujjain District: Ujjain State:Madhya Pradesh PinCode: Phone: E-Mail: Fax
7. The licensed premises consist of following facilities:
8. The license is granted subject to the provision of Explosives Act 1884 as amended from time to time and the Explosives Rules, 2008 framed thereunder and the conditions, and annexures......
(1)Drawings (showing site, constructional and other details) as stated in serial No.5 above.
(2) Conditions of this license signed by the licensing authority.

9. This license shall remain valid till 31 st day of March 2005 except for temporary licenses issued under Rule 84 for which the maximum period should be 15 days from the date of issue This license is liable to be suspended or revoked for any violation of the Act or rules framed there under or the conditions of this license as set forth under Set XV, wherever applicable, referred to in Part 4 of Schedule V or if the licensed premises are not found conforming to the description shown in the plans and annexures attached hereto.

The Date 26/06/2003 Sd/ Joint Chief Controller of Explosives Central Circle office, Agra -9- W.P.No.17690/2018

13. The aforesaid license has been renewed by the licensing authority i.e Controller of Explosives up to 31.03.2020. The District Magistrate issued the license No.2/Ujjain/94 in which the description of licensed premises is land No.22/3, Gram Ratedya, district Ujjain, however, this license is also issued to M/s Badsha Fataka Centre, Shirsagar Complex, Nai Sadak, Ujjain, therefore, the petitioner is having two licenses issued by two different authorities. The license No.2/Ujjain/24 as held above is in respect of permission to store the firecrackers in the godown, therefore, the inspection ought to have been made to the godown and according to the petitioner the reports to that effect have already been given in his favour. The respondents have revoked license No.2/94 or refused to renew after inspecting the shop at Nai Sadak for which the petitioner is having license from Controller of Explosives and the said license has not been cancelled so far. The aforesaid facts have not been examined by the District Magistrate while passing the order dated 17.09.2015. If on the point of safety the license No.2/94 has been cancelled the petitioner is still having license No.E/CC/MP/24/262(E-37007) issued by the Controller of License and having valid permission to sell the fire crackers as specified in the license, therefore, only on the point of safety no purpose would be served to cancel the license No.2/94, hence the matter is liable to be remitted back to the District Magistrate to consider the application afresh for renewal of license. Accordingly, order dated -10- W.P.No.17690/2018 17.09.2015 passed by the District Magistrate and the order dated 21.10.2016 passed appellate authority are hereby quashed. The matter is remitted back to the District Magistrate to pass a fresh order for renewal of the license 2/Ujjain/24 in accordance with the Explosives Act and the Explosives Rules 2008.

14. Accordingly, the petition is allowed. No order as to cost.


                                      (VIVEK RUSIA)
hk/                                       JUDGE
        Digitally signed by Hari Kumar
        Nair
        Date: 2019.08.27 10:18:32 +05'30'