High Court Kerala High Court

C.A.Rafi vs The Additional District … on 9 September, 2010

Kerala High Court
C.A.Rafi vs The Additional District … on 9 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1458 of 2010()


1. C.A.RAFI, S/O. ANTHONI,
                      ...  Petitioner

                        Vs



1. THE ADDITIONAL DISTRICT MAGISTRATE,
                       ...       Respondent

2. THE JOINT CHIEF CONTROLLER OF

3. THE CHIEF CONTROLLER OF EXPLOSIVES,

                For Petitioner  :SRI.DINESH MATHEW J.MURICKEN

                For Respondent  : No Appearance

The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :09/09/2010

 O R D E R
                        J.Chelameswar,C.J. &
                     P.R.Ramachandra Menon,J.
                   --------------------------------------------
                        W.A.No.1458 of 2010
                   --------------------------------------------
            Dated, this the 9th day of September, 2010

                               JUDGMENT

J.Chelameswar, C.J.:

Aggrieved by a judgment dated 17th June, 2010 in W.P.

(C).No.18876 of 2010, the unsuccessful petitioner therein preferred

the present appeal.

2. It appears from the judgment under appeal that the

appellant along with two others are the joint owners of a particular

piece of property. In the said piece of property a granite quarry exists.

One of the co-owners, Mr.Paulson, allegedly transferred his interest

in the said property in favour of the appellant herein. For the purpose

of quarrying, it appears that explosives were being used and initially a

licence under the provisions of the Explosives Act, 1884, hereafter

referred to as “the Act” read with the Explosives Rules, 1983 was

issued in favour of the abovementioned Paulson.

3. Consequent to the alleged transfer of interest in the

property, the appellant herein made an application seeking transfer of

the above mentioned licence in favour of the appellant herein. Along

with the said application, the appellant also produced a letter (Ext.P3)

W.A.No.1458 of 2010

– 2 –

allegedly from the original licensee, i.e., Paulson, to the effect that the

original licensee does not have any objection to the transfer of the

licence.

4. By the impugned order under Ext.P6 the first respondent

herein directed the appellant herein to submit a fresh application

(obviously seeking appropriate licence). The relevant portion of the

said order reads as follows:

“Since the title of the premises in Sy.No.1069/2,3 in

Chengaloor Village for which the No Objection Certificate was

granted was transferred to S/Sri.C.A.Raphy and P.L. Raphy

recommendation is hereby issued, for cancelling the No

Objection Certificate granted to Sri.K.I.Paulson as per Rule 115

(1)(a) of the Explosive Rules 2008. At the same, Sri.C.A.Raphy is

hereby directed to submit a fresh application, as per Explosive

Act for granting No Objection Certificate/Licence for the

possession and use of the explosives in the above mentioned

premises”.

5. The licence in issue was initially given under the

Explosive Rules, 1983 in favour of Mr.Paulson which, it appears, was

renewed from time to time.

6. Section 5 of the Explosives Act, 1884, hereinafter

referred to as “the Act”, authorises the Government of India to make

W.A.No.1458 of 2010

– 3 –

rules consistent with the provisions of the Act to regulate or prohibit

the manufacture, possession, use, sale, transport, import and export of

explosives. Such a regulation or prohibition can be either of all the

explosives or the specified class of explosives. However, the use of

explosives is permitted under and in accordance with the conditions of

licence granted under the Act and the Rules. Section 5(1) reads as

follows:-

“5(1) The Central Government may, for any part of India

make rules consistent with this Act to regulate or prohibit,

except under and in accordance with the conditions of a licence

granted as provided by those rules, the manufacture,

possession, use, sale, transport, import and export of

explosives, or any specified class of explosives”.

Section 5(2) authorises the making of the rules for various purposes

enumerated therein, the details of which are not necessary for the

present case. Section 6B stipulates that whenever an application

seeking a licence under the Act is made, the same is either required

to be granted or refused after making an appropriate enquiry.

Section 6C enumerates the various circumstances in which the

licencing authority is mandated to refuse a licence. However, such a

refusal is subject to the further condition that the reasons for such

W.A.No.1458 of 2010

– 4 –

refusal are required to be recorded and furnished to the applicant on

demand.

7. Various rules are framed in exercise of the powers

conferred under Sections 5 and 7 of the Act from time to time. The

latest set of rules is made in the year 2008, called “The Explosives

Rules, 2008”. By Rule 139 of the said Rules, the rules made earlier in

force under the Act, i.e., the Explosives Rules, 1983 are repealed.

Rule 139 reads as follows:-

“139. Repeal and Savings.- (1) The Explosives

Rules, 1983 are hereby repealed.

(2) Notwithstanding such repeal –

(a) all licences, permits or duplicates thereof

granted or renewed under the said rules and all fees

imposed or levied shall be deemed to have been granted,

renewed, imposed or levied, as the case may be, under

the corresponding provisions of these rules;

(b) all approvals given and all powers

conferred by or under any notification or rule shall, so far

as they are consistent with the Act and these rules, be

deemed to have been given or conferred by under this

Act or these rules”.

It can be seen from sub-section (2) extracted above that all the

licences granted or renewed under the repealed rules are deemed

W.A.No.1458 of 2010

– 5 –

to be licences granted or renewed, as the case may be, under the

corresponding provisions of the new rules.

8. Under Rule 7, it is declared that no person shall

manufacture, import, export, transport, possess for sale or use an

explosive except as authorised or licensed under the rules. Rule 7

reads as follows:-

“7. Control over manufacture, import, export, transport,

possession for sale or use of explosives.- No person shall

manufacture, import, export, transport, possess for sale or use an

explosive except as authorised or licensed under these rules”.

It can be seen from the rules that having regard to the dangerous

nature of the substance, every aspect of dealing in the explosives is

required to be licenced, except as exempted under the Act and Rules.

Chapter IV of the Rules deals with the manufacture of the explosives

and the various aspects for regulation dealing with manufacture, while

Chapter V deals with the import and export of explosives. Chapter VI

deals with transportation of the explosives.

9. Chapter VII deals with the possession, sale and use of

explosives. Rule 71, which occurs under Chapter VII, declares as

W.A.No.1458 of 2010

– 6 –

follows:-

“71. Possession in licensed premises.- (1) A person

holding licence for possession of explosives granted under these

rules shall store the explosives only in premises specified in the

licence.

(2) The licensed magazine or store house shall be kept

securely closed or locked at all times except when goods are

being placed in or taken from it or when it must be kept open for

some other purpose in connection with the management of such

premises.

(3) The keys of the licensed magazine shall, at all times

be kept secured in licensee’s own custody or of his authorised

agent and shall be produced for opening the magazine or store

house whenever so required by an inspecting officer.

(4) The name and address of the person along with

passport size photograph with whom the keys will be kept shall

be furnished to the licensing authority and the Controller having

jurisdiction”.

It can be seen from the above extract that a person holding a

licence for possession of explosives, either for sale or use, is

required to store only in the premises specified in the licence,

known as “magazine” or “store house”. Both the expressions are

W.A.No.1458 of 2010

– 7 –

defined under Rule 2, sub-rules (31) and (55)* respectively.

10. Chapter VIII of the Rules deals with the various aspects

of the licensing for any one of the purposes mentioned earlier. Rule 99

reads as follows:-

“99. Licences and licensing authorities.- Licences and

certificates for specific purposes may be granted by the authorities

specified in Part I of Schedule IV”.

It can be seen that under the Act and Rules, various licences and

certificates are required to be obtained in connection with the various

activities in the context of the explosives. Schedule IV appended to the

rules contains a detailed list of the various purposes for which licences

are granted and the appropriate licensing authority with reference to

each one of the forms of licence.

——————————————————————————

*R.2(31) “magazine” means a building or structure (other than

an explosives manufacturing building) intended for storage of

explosives, specially constructed in accordance with the

specification provided under these rules or of a design and

approved by the Chief Controller.

R.2(55) “store house” means independent building other

than a magazine meant to possess fireworks not exceeding 5000

kilogrammes or safety fuse not exceeding 50000 meters, not for

sale but for transfer to own licensed shop”.

W.A.No.1458 of 2010

– 8 –

11. The licence in issue, it is admitted on all hands, is a

licence contemplated under Schedule IV, Part 1 appended to the

said Rules. Entry 3(a) of the said Schedule reads as follows:

“Purpose for which granted Licence Form Licensing
Authority

——————————- ————— ———————–
Licence to possess for use, LE-3 District Magistrate
for agricultural purpose or
in small quarry, explosives
not exceeding 25 kilogrammes
of Class 1 or 2 or 3 and 1500
numbers of detonators; and
1500 meters of detonating
fuse or safety fuse at any one
time in a magazine”.

12. Rule 101* stipulates that a person desiring to obtain

a licence of any kind with respect of explosives, shall obtain prior

approval from the authority empowered to grant such licence by

submitting documents mentioned in Rule 113. Rule 113 contains a

table indicating the various documents required to be submitted for

seeking the approval contemplated under Rule 101 with reference

—————————————————————————–

*R.101(1) A person desiring to obtain a licence for

manufacture, possession for sale, use, transport of

explosives, under these rules, shall obtain prior approval from

the authority empowered to grant such licence, by submitting

documents mentioned in rule 113.

W.A.No.1458 of 2010

– 9 –

to each of the purposes specified under the various entries of the

table. Relevant in the context of the present case is Entry 9, which

reads as follows:


Sl. Purpose of          Artitle   Licence Documents            Documents
No. Licence             number    Form    required             required for grant
                        as per            for approval         of
                        Part I of                              licence
                        Schedule
                        IV

1   2                   3         4       5                    6
 9  Licence to possess 3(a)       LE-3    (i) Form AE-3        (i)  Form     AE-3
    for      use,    for                  (for possession (and (for    possession
    agricultural purpose                  use);                and use);
    or in small quarry,
    explosives       not
    exceeding        25                   (ii) Plans of the    (ii) Plans of the
    kilogrammes of Class                  proposed magazine    completed
    1, 2 or 3; 1500                       and the site showing magazine and the
    numbers detonators;                   approach       road; site       showing
    1500     meters  of                   safety     distances,approach      road;
    Detonating Fuse at                    licensed capacity;   safety    distances,
    any one time in a                                          licensed capacity;
    magazine.
                                          (iii) Passport size
                                          photographs of the   (iii)  Completion

                                          occupier along with  certificate;

                                          documentary
                                          evidence          of (iv) Passport size
                                          nomination        as photographs      of
                                          occupier as per rule the occupier along
                                          2;                   with documentary
                                                               evidence         of

                                          (iv) Scrutiny fee as nomination       as

                                          per   Schedule   IV, occupier as per

                                          Part 2.              rule 2;


                                                               (v) Licence fee as
                                                               per Schedule IV,
                                                               Part 2.

W.A.No.1458 of 2010
                                      - 10 -

13. Rule 102 stipulates that after obtaining an approval

under Rule 101, a person desiring to obtain a licence shall also

obtain a “No Objection Certificate”, either from the District

Magistrate or Director General of Mines Safety, as the case may be,

before commencing the construction of the premises. The

“premises” obviously in the context means the “magazine”. Rule

103, in so far as it is relevant, reads as follows:

“R.103(3) The District Magistrate on receipt of

application referred in sub-rule (1), shall make verification of

the antecedents of the applicant, lawful possession of the

site, genuineness of the purpose, interest of public and any

other verifications or enquiries as may be specifically

required by the licensing authority to be carried out, if any,

and on any other matter as deemed necessary.

(a) For verification of the interest of public, the

District Magistrate shall forthwith cause a notice to be

published calling upon the public to submit objections, if any,

with reasons thereof, within a period of one month from the

date of publication of the notice and specifying the date, time

and place for consideration of objections by him. Where the

site of the proposed premises lies within 1.5 kilometers of the

limits of the jurisdiction of any town planning municipal

authority or port or air port or satellite or space craft

launching station or similar establishments of national

W.A.No.1458 of 2010

– 11 –

importance, the District Magistrate shall cause the notice to

be served to such authority or establishment. The day of

hearing for consideration of objections shall be fixed as early as

possible, after the expiration of the period of one month from the

date of publication of notice. On receipt of objection, the District

Magistrate shall call the person or persons raising objection and

also the applicant, giving not less than seven clear days before

the day fixed for hearing for consideration of the objection. On

the day fixed for the hearing or any day to which such hearing

may be adjourned from time to time, the District Magistrate shall

hear any objection relating to the purpose of no objection

certificate and shall make such enquiry, as he may deem

necessary to assess justification of such objection.

(b) If the quantity of explosives does not exceed one

hundred kilograms or in case of ANFO or Liquid Oxygen

Explosives or SME or transport of explosives in a road van, the

notice for public for objection as stated in clause (a) shall not be

necessary”.

14. Rule 108 permits the transfer of a licence obtained

under the Rules and it also stipulates the various documents required

to be submitted by an applicant seeking transfer of a licence

(proposed transferee). Rule 108 reads as follows:-

“108. Transfer of licence.- (1) A licence granted under

these rules may be transferred by the authority empowered to

grant the licence.

W.A.No.1458 of 2010

– 12 –

(2) An applicant who desires to get the licence

transferred in his favour shall submit to the licensing authority –

(a) an application in form appropriate for grant of the

licence;

(b) specimen signature of the applicant or his

authorised person;

(c) a letter from the existing licensee signed by the

authorised person requesting the transfer of licence in favour of

the applicant or a succession certificate from a competent court

in case of death of a licensee being an individual;

(d) original licence issued to the existing licensee;

(e) copies of supporting documents regarding transfer

of rights of the premises in favour of the applicant;

(f) requisite scrutiny fee and transfer fee;

(g) copies of all approved drawings in the name of the

applicant;

(h) status of the applicant whether individual,

proprietary firm, partnership firm, company, association or

society or otherwise – documentary evidence along with names,

addresses of the proprietor or partners or directors or members

as the case may be, and photographs of the occupier, to be

submitted;

(i) a no objection certificate from the District

Magistrate for transfer of the licence in favour of the applicant:

Provided that no objection certificate shall not be

necessary if the applicant holds a licence for which a no

objection certificate has already been granted”.

W.A.No.1458 of 2010

– 13 –

It can be seen that under sub-rule (2) clause (i), in the case of a

transfer of a licence also a ‘no objection certificate’ from the District

Magistrate is required to be obtained. Though the rule is not very

categoric about the nature of the District Magistrate’s responsibility in

granting such a no objection certificate, we are of the opinion that the

scope of the authority and the nature of the legal obligation cast on the

District Magistrate cannot be in any way different than the authority

and scope of the District Magistrate while granting a no objection

certificate under Rule 103, the relevant portion of which is already

extracted earlier. One of the relevant considerations either for granting

or declining to grant a no objection certificate is the lawful possession

of the site where the explosives are proposed to be used.

15. In the instant case when an enquiry was conducted

on the application of the appellant seeking transfer of the licence

originally issued in favour of Mr.Paulson, it appears that the original

licensee (Paulson) raised certain objections regarding the claim of

the appellant. In view of such objection and also the report of the

Tahsildar, Mukundapuram dated 29.3.2010, the first respondent

declined to transfer the explosives licence as prayed for and

advised the appellant to make a fresh application in accordance

W.A.No.1458 of 2010

– 14 –

with law if he is still desirous of securing an explosive licence for the

purpose of use of explosives for quarrying operations in the property

referred to above.

16. Aggrieved by the said direction, the appellant herein

filed the writ petition which was dismissed in limine. Hence this appeal.

17. The learned counsel for the appellant argued that the

first respondent could not have declined a no objection certificate for

transfer of licence as much as transfer is permissible under the

Explosives Act and the rules made thereunder.

18. We regret our inability to accept the submission of the

learned counsel. As already noticed, under sub-rule (3) of Rule 103,

before granting a no objection certificate, the District Magistrate is

obliged (1) to conduct verification of the antecedents of the applicant,

(2) lawful possession of the site in which the explosives are proposed

to be used pursuant to the licence, (3) genuineness of the purpose of

use, (4) interest of the public and (5) any other matter which may

appear to be appropriate to the authority having regard to the facts

and circumstances of the case.

19. It appears from the order that the original licensee

objected to the application of the appellant seeking transfer of the

W.A.No.1458 of 2010

– 15 –

licence. Under what circumstances the original licensee who according

to the appellant is alleged to have agreed to transfer the licence

subsequently turned round and objected is not the concern of the first

respondent. The first respondent, in our view, was perfectly justified

and is within the limits of the jurisdiction in declining to grant no

objection certificate in view of the dispute between the alleged

transferor and the appellant herein. The existence of a dispute

between the alleged transferor and transferee regarding the transfer is

certainly a ground which is required to be kept in mind before granting

or refusing the no objection certificate for the transfer of the licence.

In such circumstances, we do not see any merit in the writ

appeal and it is accordingly dismissed at the admission stage.

J.Chelameswar,
Chief Justice.

P.R. Ramachandra Menon,
Judge.

vns/vku.