Mohd. Javed vs State Of U.P. Thru Secy. And 2 ...
2018 Latest Caselaw 4139 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - C No. - 24622 of 2013
 

 
Petitioner :- Mohd. Javed
 
Respondent :- State Of U.P. Thru Secy. And 2 Others
 
Counsel for Petitioner :- Arvind Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Siddhartha Varma,J.

The petitioner's father Late Sri Abdul Gafur was running a Fire Work Shop where he used to sell fire crackers, namely, Sparklers, Flower Pots, Twinkling Stars, Confetti, Fountain, Sky Shots which were used for marriage processions and during the festival of Deepawali, from a premises numbered as 44/381, Rotiwali Gali, Police Station - Moolganj, District - Kanpur Nagar.

After the petitioner's father died on 31.8.2002, the Explosives Licence issued under the Act No. 4 of 1884 was transferred under the relevant Rules to the petitioner and was numbered as Licence No. 29 of 2002. On 1.11.2004, when the licence was cancelled, the Appellate Authority also confirmed the cancellation order. On 25.4.2005, the Revisional Court remanded the matter wherein again on 19.10.2006, the District Magistrate confirmed the earlier cancellation order and the Appellate Court on 9.5.2007 confirmed the order of the District Magistrate dated 19.10.2006. The revision filed by the petitioner on 2.7.2007 was also dismissed. Thereafter, the petitioner abandoned his efforts of running the shop from the earlier location and filed a fresh application on 10.3.2011 saying that he had changed the location of his shop from the earlier location which was at 44/381, Rotiwali Gali, Police Station- Mookganj, Kanpur Nagar, to 44/409 Nayee Sadak, Police Station - Moolganj, District - Kanpur Nagar and stated that it was situate on a 100 feet wide road and that it was a shop from where fire crackers could be sold without any danger to any neighbouring shops etc. and prayed that the earlier licence being licence no. 29/2002 be revived, after getting the Police and the Fire Department to see if the shop could be run in the premises where the petitioner was wanting to open the new shop.

The Police and the Fire Department on 20.1.2011 and 23.3.2011 submitted their reports and after considering the reports of the Police and the Fire Department, the application of the petitioner was, however, again rejected on 14.9.2011. The petitioner, thereafter, filed an appeal before the Commissioner, Kanpur Mandal, Kanpur, which again was rejected on 3.11.2012. Aggrieved thereof, the petitioner has filed the instant writ petition.

Learned counsel for the petitioner made the following submissions:-

I. If the order of the District Magistrate is seen then it would be apparent that he had, after relying upon the reports of the Police Department and the Fire Department rejected the application of the petitioner by a cryptic order saying that the shop from which the petitioner wanted to do business was not suitable for running a Fire Cracker Shop.

II. Learned counsel submitted that under Rule 9 of the Explosives Rules 2008, the District Magistrate did not see as to whether the licence was at all required as the reserve of fire crakers never exceeded 100kg.

III. Further learned counsel for the petitioner submitted that if Rule 83, 84 and 86 of the Explosives Rules, 2008, were perused then the licence could definitely be issued to run a Fire Works Shop from the shop in question.

IV. Learned counsel for the petitioner further submitted that his shop was situate on a 100 feet wide road and there was no shop in his neighbourhood which was not separated by a lane. He also submitted that Petrol pumps and the Arms factories were situate far away from the shop where the petitioner wanted to open his new shop.

V. Learned counsel for the petitioner also submitted that the various reports regarding the other fire explosives shop owners which were given in the supplementary affidavit did not show as to why the petitioner was not being given the licence to run the Fire Work Shop. In the supplementary rejoinder affidavit which the petitioner had filed on 19.2.2018, he had stated that the Fire Works Shop known as Kanpur Fire & General Store, located at 40/171 Makhaniya Bazar Faiz-a-Aam Girls Inter College was running a Fire Work Shop in a densely populated area. This shop, he submits, was also in the neighbourhood of an LPG Gas Store. In paragraph 6 of the affidavit, he has further given the names of the licencees, namely, Jamshed Khan, Mohd. Kadir, Mohd. Raees whose shops continued to run in certain densely populated areas.

Similarly, he pointed out that one Abdul Haque was given a licence to run the shop in Police Station - Sachendi, Kanpur which was also a densely populated area. Learned counsel, therefore, submitted that simply because a shop was situated in a densely populated area, the licence to run a fire work shop could not be refused.

Learned Standing Counsel, in reply, however, after pointing out to various documents attached in the counter affidavit and the supplementary counter affidavit, and the report of the police and the Fire Department on 20.1.2011 and 23.3.2011 submitted that there were sufficient reasons to deny the licence to the petitioner.

Having heard the learned counsel for the petitioner and the learned counsel for the Standing Counsel, I am of the view that the orders impugned by which the application of the petitioner to get his licence revived was rejected did not mention if actually there was any violation of any law by which the petitioner could be prevented from running the Fire Work Shop. The order of the District Magistrate dated 14.9.2011 only relied upon the reports of the Police and the Fire Department. The petitioner's contention, that the Rules 9, 83, 84, 86 and 133 of the Explosives Rules which gave the method in which the licence could be granted or refused were not looked into, has substance.

A perusal of the impugned order of the District Magistrate definitely shows that no independent mind was exercised by him. Simply by saying that certain other licences had also been cancelled could not be a reason sufficient to deny the petitioner a licence. I have also perused the the Appellate Court's order which only confirms the order of the District Magistrate. Definitely, no reason has been given in the two orders dated 14.9.2011 and 3.11.2012 passed by the District Magistrate Kanpur Nagar and the Commissioner Kanpur Mandal, Kanpur. A perusal of the orders definitely does not show that any of the Rules mentioned in the Explosives Rules, 2008, have been either adverted to or even considered. A blind reliance upon the reports of the Police and the Fire Department was not the proper thing to do while taking a decision on the application for running a fire work shop.

Under such circumstances, the orders dated 14.9.2011 passed by the District Magistrate, Kanpur Nagar and 3.11.2012 passed by the Commissioner, Kanpur Mandal, Kanpur, are quashed. The matter is remanded back to the District Magistrate who shall, after looking into all the provisions of the Explosives Rules, 2008, decide the matter afresh.

Order Date :- 5.12.2018

praveen.

(Siddhartha Varma,J.)