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.
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W.A.No.1458 of 2010
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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)
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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
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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
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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
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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
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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
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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”.
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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
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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.
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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
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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.
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(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”.
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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
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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
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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.