Kerala High Court
The Additional District Magistrate vs Augustin Joseph on 10 April, 2025
WA.210 of 2020 -:1:-
2025:KER:32306
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA, 1947
WA NO. 210 OF 2020
[AGAINST THE JUDGMENT DATED 11 July 2018 IN WP(C) NO.32052 OF 2017 OF
HIGH COURT OF KERALA.]
APPELLANTS/RESPONDENTS:
1 THE ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE-673001.
2 THE CHAIRMAN, TALUK LAND BOARD AND SUB-COLLECTOR,
KOZHIKODE-673001.
3 THE GEOLOGIST, DISTRICT OFFICE,
MINING AND GEOLOGY, CIVIL STATION,
KOZHIKODE-673001.
BY SPECIAL GOVERNMENT PLEADER SRI. S. RENJITH
RESPONDENTS/PETITIONERS:
1 AUGUSTIN JOSEPH,
S/O. KANNEZHATH JOSEPH, SHANTHI NAGAR P.O.,
CHEMARUTHAI DESOM, THAMARASSERY, KOZHIKODE-673001.
2 MATHAI P.P., PARIYADATH HOUSE, SHANTHI NAGAR P.O.,
THAMARASSERY, KOZHIKODE-673001.
BY ADV. SRI. NIRMAL S.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2025, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WA.210 of 2020 -:2:-
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"C.R."
JUDGMENT
Dated this the 10th day of April, 2025.
Nitin Jamdar, C. J.
By this Appeal filed under Section 5 of the Kerala High Court Act, 1958, the Appellants/Respondents have challenged the judgment dated 11 July 2018 in W.P.(C) No. 32052 of 2017. The learned Single Judge by the impugned judgment, directed the Appellants to consider the application submitted by the Respondents/Petitioners for renewal of Explosives Licence and take a decision within six weeks.
2. The Appellants are the Additional District Magistrate, the Chairman, Taluk Land Board & Sub Collector, and the Geologist, Mining & Geology, Kozhikode. The Respondents in the Appeal are the Original Petitioners.
3. Petitioner No. 1 is the owner of a property in which Petitioner No. 2 is operating a quarry. The Petitioners, apart from holding other licenses, were also issued a licence by the Additional District Magistrate, Kozhikode, in Form LE-3 under the Explosives Act, 1884, and the Rules framed thereunder for the grant of such licence. After the expiry of the period of Explosives Licence, Petitioner No. 2 applied for its renewal on 2 February 2015. By letter dated 26 September 2016, the Additional District Magistrate informed the Petitioners that, in the light of the letter dated 26 August 2016, the renewal of Explosives Licence was rejected. Aggrieved by the rejection of the application for renewal of Explosives Licence, Petitioner WA.210 of 2020 -:3:- 2025:KER:32306 No. 2 filed W.P.(C) No. 34788 of 2016. By judgment dated 24 March 2017, the Single Judge allowed the writ petition, quashed the letter dated 26 September 2016, and directed the Additional District Magistrate to reconsider the application for renewal. In light of the said judgment, the Additional District Magistrate reconsidered the application for renewal of the Explosives Licence submitted by the Petitioners and again rejected the same by order dated 28 June 2017. It was stated that, by virtue of the letter dated 25 February 2015 issued by the Secretary, Taluk Land Board, and taking into consideration the provisions of the Kerala Land Reforms Act, 1963, since the property cannot be fragmented or used for any purpose other than as a rubber plantation, it is not possible to renew the Explosives Licence of Petitioner No. 2.
4. Being aggrieved, the Petitioners have filed the subject writ petition challenging Exhibits - P9 and P11 orders dated 26 September 2016 and 28 June 2017. The learned Single Judge, by judgment dated 11 July 2018, allowed the writ petition and set aside the orders impugned therein, declaring that Exhibit - P11 decision is vitiated by lack of application of mind and directed the Appellants to consider the application for renewal of the Explosives Licence untrammelled by Exhibit - P7 letter dated 25 February 2015 issued by the Secretary, Land Board. Challenging the judgment of the learned Single Judge, the State authorities are in appeal before us.
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5. We have heard Mr. S. Renjith, the learned Special Government Pleader for the Appellants, and Mr. S. Nirmal, the learned counsel for the Respondents/Original Petitioners.
6. The learned Special Government Pleader submitted that the object of the Kerala Land Reforms Act, 1963 (Land Reforms Act) is to prevent fragmentation of plantations and that quarrying activity is not an exempted category under the said Act. He submitted that in the present case what is sought for is renewal of Explosives Licence for conducting quarrying activities in the exempted category of land. Quarrying, if permitted in the exempted category, would result in conversion of the property, which cannot be allowed. It is submitted that a combined reading of Section 81(4) and Explanation - II to Section 87 of the Land Reforms Act shows that fragmentation of estate has to be treated as a case of conversion of plantation into some other category. In short, it is the contention of the Appellants that renewal of Explosives Licence for conducting quarrying activities if it is done in a plantation would amount to violation of the provisions of the Land Reforms Act, and therefore, the Respondents are not entitled for renewal of the Explosives Licence. According to the learned Special Government Pleader, the aforesaid facts were not considered by the learned Single Judge while deciding the issue and, therefore, on this ground, the Appeal is to be allowed, setting aside the impugned judgment.
7. The learned counsel for the Respondents/Petitioners submitted that WA.210 of 2020 -:5:- 2025:KER:32306 each Authority has to be restricted to its jurisdiction under the statute and the ground taken by the Appellants under the Explosives Act, 1884 (Explosives Act) to deny renewal of Explosives Licence to the Petitioners is not a valid consideration under the Explosives Act. Therefore, such a contention cannot be taken by the Authority who has to consider the application under the Explosives Act.
8. We have considered the rival contentions.
9. Petitioner No. 2 was granted an LE-3 licence under the Explosives Act and the Rules framed thereunder. He had applied for renewal of the said licence to the Additional District Magistrate, Kozhikode, who is the Authority empowered to grant licenses under the Explosives Act. Therefore, the grant and renewal of the licence have to be under the parameters of the Explosives Act. The power of the Authority under the Explosives Act is circumscribed by its provisions and the Rules framed thereunder.
10. In the order refusing to renew the Explosives Licence (Exhibit-P9), it is stated that under Section 81 of the Land Reforms Act, land exempted from the provisions of the Act shall not be converted or alienated; and a direction is seen issued by the Secretary of the State Land Board to take immediate steps for restarting ceiling case against the Company for violation of the provisions of the Act, by changing the type of the land and selling it, which is violative of Section 87 of the Land Reforms Act. It was stated that WA.210 of 2020 -:6:- 2025:KER:32306 steps have been initiated for gathering details after examining the records vide letter dated 26 August 2016 from the Chairman of Taluk Land Board and Sub Collector, Kozhikode. The Petitioners are accordingly informed that until an order is issued by the Taluk Land Board, it is not possible to renew the Explosives Licence issued to Petitioner No. 2.
11. The Explosives Act, 1884 is enacted to regulate the manufacture, possession, use, sale, transport, import and export of explosives. Section 4(d) of the Act defines what is meant by explosives. Under Section 5, the Central Government may make rules to regulate or prohibit the manufacture, possession, use, sale, transport, import and export of explosives. The rules prescribe the authority to grant licenses, fees to be charged for licenses, the manner in which applications for licenses have to be made, and the matters to be specified in such applications. Section 6-B of the Explosives Act deals with grant of licenses and Section 6-C provides for refusal of licenses.
12. In exercise of the powers conferred under Sections 5 and 7 of the Explosives Act, the Explosives Rules, 2008 (Explosives Rules) have been framed. Chapter VIII of the Explosives Rules deals with the grant or refusal of approval, No Objection Certificate, licence, certificates, amendment, transfer and renewal of licence. Rule 99 of the Explosives Rules specifies the licences and licensing authorities. Rule 103 provides for the procedure to be observed for issue of no objection certificate and for grant of licence, which WA.210 of 2020 -:7:- 2025:KER:32306 states that the applicant desiring to obtain a licence from the Chief Controller or Controller has to apply to the District Magistrate or the Director General of Mines Safety with the required documents. The District Magistrate upon receipt of the application, has to follow certain procedures laid down under Rule 103. The application for grant of licence after the construction of premises is provided under Rule 105. The grant of licence and certificate is regulated under Rule 107.
13. Rule 106 of the Explosives Rules deals with the period of validity of a licence and the procedure for its renewal is provided under Rule 112. The learned counsel pointed out that in the present case, the renewal of Explosives Licence would be governed by Rule 112 of the Explosives Rules.
14. Under Rule 113 of the Explosives Rules, the documents for approval and grant of licence to be submitted are preserved. There are various types of licences set out and the documents required for each of them. Category 9 deals with LE-3 licence, which is the subject matter of the present case. The documents required to be submitted along with LE-3 licence are, Form AE- 3 (for possession and use); Plans of the completed magazine and the site showing the approach road; safety distances, licensed capacity; Completion certificate; Passport size photographs of the occupier along with documentary evidence of nomination as occupier as per Rule 2; licence fee as per Schedule IV, Part II; and copies of documents in support of rightful possession of the premises.
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15. Under Rule 115 of the Explosives Rules, cancellation of No Objection Certificate has been provided. Rule 115(1)(a) states that if the licensee has ceased to have any right for the lawful possession of the licensed premises, the No Objection Certificate granted under Rule 103 can be cancelled. Rule 116 of the Explosives Rules deals with refusal to amend or renew a licence. Rule 116 states that the licensing authority has to refuse to renew a licence if such licence can be revoked in accordance with the Explosives Act or the Rules, the licensing authority refusing to amend or renew a licence has to record the reasons for such refusal in writing, and before refusing renewal of a licence under the Rule, the holder of the licence has to be given an opportunity of being heard.
16. Suspension and revocation or cancellation of licence are provided under Rule 118 of the Explosives Rules. The relevant part of Rule 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 a period of five years after the expiration of the sentence or ordered to execute under Chapter VIII of the Code of Criminal WA.210 of 2020 -:9:- 2025:KER:32306 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;"
*** Thus, a conjoint reading of Rules 112, 116 and 118 of the Explosives Rules provides the methodology for application, processing and refusal to renew a licence. Under Rule 116(2) of the Explosives Rules, the licensing authority can refuse to renew a licence if it can be revoked as per Rule 118.
17. The grounds given in the impugned judgment refusing renewal of the Explosives Licence are not based on the Explosives Rules but based on the alleged initiation of proceedings under the provisions of the Land Reforms Act, with reference to Section 81. It is stated that steps have been initiated to gather details for taking action regarding the breach of Section 81. The Petitioners have made an assertion, which remains undisputed, that no notice has been received by any party pursuant to the so-called enquiry referred to by the licensing authority. Therefore, the learned counsel for the Petitioners is right in contending that the Petitioners have not ceased to have any right for the lawful possession of the licensed premises. No other ground under Rule 118 of the Explosives Rules has been put to the Petitioners. It is not the case that the Petitioner's No Objection Certificate has been cancelled in accordance with Rule 115 of the Explosives Rules. No contravention of the Explosives Act, the Rules framed thereunder, or WA.210 of 2020 -:10:- 2025:KER:32306 the conditions of the licence has been pointed out. That being the position, unless and until a proceeding culminates in the Petitioners ceasing to have any right for the lawful possession over the property, the District Magistrate under the Explosives Act and the Rules, could not have refused to renew the licence. The grant of a licence, its duration, cancellation, and renewal are governed by the Explosives Act and the Rules framed thereunder. The Appellants have not been able to point out to us as to how the conditions under the Explosives Rules for refusing renewal of licence have been established in the case of the Petitioners.
18. Therefore, in the present case, the refusal to renew the Explosives Licence issued to Petitioner No. 2 by the Additional District Magistrate under the Explosives Act and the Explosives Rules, on the basis of an alleged institution of an enquiry for breach of the provisions of the Land Reforms Act, without the enquiry even having culminated in any action against the Petitioners, is outside the jurisdiction of the District Magistrate and, therefore, ultra vires. That being the position, we find no error in the view taken by the learned Single Judge in the impugned judgment and the Appeal is liable to be dismissed.
19. We clarify that in case proceedings initiated under the Land Reforms Act or under any other enactment, pursuant to an order valid in law, culminate in the Petitioners losing their right to lawful possession over the property, the District Magistrate can always take necessary action under the WA.210 of 2020 -:11:- 2025:KER:32306 Explosives Rules. Needless to state, action can also be taken by the District Magistrate under the Explosives Act and the Explosives Rules if the Petitioners contravene the provisions of these statutory instruments.
20. Accordingly, the Appeal is dismissed.
Sd/-
NITIN JAMDAR, CHIEF JUSTICE Sd/-
S. MANU, JUDGE krj/-
//TRUE COPY// P.A. TO C.J.
WA.210 of 2020 -:12:-2025:KER:32306 APPENDIX OF WA 210/2020 APPELLANTS' ANNEXURES:-
ANNEXURE 1 TRUE COPY OF THE INTERIM ORDER IN WA NO.2299/2019 DATED 21/11/2019.
RESPONDENT'S ANNEXURES:- 'NIL' //TRUE COPY// P.A. TO C.J.