Shabi Ali vs State Of U.P. And 6 Others
2018 Latest Caselaw 329 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 21
 
Case :- WRIT - C No. - 11415 of 2018
 

 
Petitioner :- Shabi Ali
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Petitioner :- Raj Kumar Upadhyay, Avanish Kumar Upadhyay, Rakesh Bahadur
 
Counsel for Respondent :- C.S.C.,A.S.G.I., Anand Prakash Srivastava, Jitendra Prasad Mishra
 

 
Hon'ble Krishna Murari,J.

Hon'ble Ashok Kumar,J.

(Delivered by Justice Ashok Kumar)

Heard Sri Rakesh Bahadur, learned counsel for petitioner, Sri Anand Prakash Srivastava and Sri Jitendra Prasad Mishra, learned counsel representing respondent nos. 4 to 7 and learned standing counsel.

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner assailing the order dated 31.10.2017 passed by the City Magistrate/ In-charge Officer, Audh, Varanasi canceling "No Objection Certificate" (hereinafter referred to as "NOC") dated 22.12.2009 issued to the petitioner for storage and sale of fireworks in Shop No. CK-66/5-A, Beniyabhag, Police Station Chowk, Varanasi. The petitioner has also challenged the consequential proceedings which are being carried out by the respondents authorities and therefore, has prayed that the respondent no.2 be restrained and directed not take any coercive action with regard to the functioning of business of the petitioner.

The facts which are not in dispute as is evident from the pleadings are that the petitioner applied for storage and sale of fireworks in the aforesaid shop in the year 1999. Based on the report of the Collector dated 5.3.1993 given to the State Government, an application was filed by the petitioner, who is the proprietor of M/s. Hindustan Fireworks CK-66/5-A, Beniyabhag, Police Station Chowk, Varanasi whereupon, reports were sent and the then City Magistrate, Varanasi submitted a report recommending grant of licence for sale of explosive in favour of the petitioner on 14.10.1999 and on the said report, the then District Magistrate, Varanasi, granted a licence to the petitioner for storage and sale of explosive.

In praragraph 8 of the writ petition the petitioner has contended that the District Magistrate, Varanasi had only granted for storage and sale of 1050 KG Explosive, on the basis of which, the City Magistrate, Varanasi, with the approval of the District, Varanasi issued "NOC" dated 27.10.1999 in favour of Shabi Ali for storage and sale of Explosive of Class-2, Division-2, Sub Division-2 and 1000 Kg Class-7, Division-1, Sub Division-2 and on the basis of No objection Certificate, the competent authority granted a licence in favour of Shabi Ali.

On the basis of "NOC" dated 27.10.1999 the petitioner has been granted licence for LE-5, to possess and sell from a shop manufactured fireworks of class-7 and Division-2 Sub Division-2 exceeding 100 kilograms but not exceeding 300 kilograms and Chinese Crackers and Sparkler exceeding 500 kilograms, under the Indian Explosive Act 1884 and Rules 2008 on 25.1.2002. After the grant of licence to the petitioner the General Manager of the Telephone, Varanasi moved an application for shifting of explosive shop to other place, whereupon the Collector has passed an order dated 14.11.2000 directing the Additions District Magistrate, Varanasi to inquire into the mater, where after the then City Magistrate, Varanasi has submitted his report dated 22.12.2000, saying that the Telephone Exchange has no danger and after the said report the shop of the petitioner was permitted to remain in continuation at the same place.

In paragraph 11 of the writ petition the petitioner has given the details with regard to a civil misc. writ petition no. 31022 of 2007, being as a P.I.L. by one Dilip Singh. In the said writ petition a prayer was made for issuance of writ of mandamus commanding the State to inquire into the matter about the grant of explosive licence for the area of Chowk of Dashawamedh, Varanasi and also for stop of illegal and unauthorise trading and business of storage and sale of explosive without having proper license as well as restraining the private respondents from doing business of storage and sale of explosive for the same area from Chowk and Dashawamedh, Varanasi and further prayed for issuance of a direction for preventing trade and business of explosive from the area Chowk and Dashaswamedh, Varanasi by private respondent nos. 4 and 5 as well as other persons. The said PIL was dismissed vide order dated 29.11.2017 on the ground that the same is not maintainable and further that the same has been filed on ill-advised as well as is a misconceived writ petition by which the private dispute between the petitioners and respondent nos. 4 and 5 are raised.

According to the petitioner in the same aforesaid locality some other licences for fireworks have been granted by the respondent authorities and activities are being regularly carrying on of the fire crackers and sparklers. According to the petitioner the District Magistrate, Varanasi without any notice to the petitioner purported to cancel "NOC" on the ground that a complaint has been received by him to the effect that the premises of the shop in question is situated in a very thickly populated area, and serious incident could take place and it would be difficult to resolve the situation and further that the District Magistrate has referred in his report while cancelling the "NOC" proceedings that the business of the petitioner is within the premises of Sankat Mochan Temple, Varanasi which has resulted loss of life and property and the petitioner has fraudulently got scribed a higher quantity of fireworks for storage and sale, in excess and what was actually granted by the District Magistrate.

The Joint Chief Controller after examining all the facts and reports wrote to the District Magistrate, Varanasi that the apprehension so expressed by him of an accident like that of Sankat Mochan Temple was wholly unfounded and that the licence was granted for the premises on the basis of "NOC" dated 22.12.2000 issued by the District Magistrate, Varanasi which is being regularly issued after fresh instructions for successive renewal of licence, the last "NOC" till then was issued by the District Magistrate as late as on 18.2.2006 for renewal of licence up to 31.3.2007. The Joint Chief Controller has also stated in his letter that once the licence is granted on the basis of "NOC" the same could be cancelled only after licensee violated any condition of the licence and there is no such allegation of violation of licence.

The District Magistrate, Varanasi vide order dated 15.5.2007 has revised to restore the "NOC" dated 27.10.1999 of the petitioner on the ground that the shop in question is situated at thickly populated area. The Chief Controller of Explosive based on the report of District Magistrate dated 15.5.2007 has cancelled the petitioner's licence vide order dated 20.7.2007.

A Writ Petition No. 40793 of 2007 was filed by the petitioner by which the petitioner has challenged the order of the District Magistrate, Varanasi dated 18.1.2007 cancelling "NOC" dated 27.10.1999 and the consequential order of the Joint Chief Controller of Explosive dated 20.7.2007 cancelling the licence of the petitioner. This Court has stayed the order impugned dated 15.11.2007. This Court has noted the allegations against the petitioner namely that neighbouring shop of one Zubair Ahmad is similarly situated in the same locality where the shop of the petitioner situated and that Zubair Ahmad had been permitted to run the business of fireworks while the "NOC" of the petitioner has been cancelled. This Court therefore, has directed the District Magistrate, Varanasi to examine as to whether Zubair Ahmad was being permitted to sell the fire crackers from the aforesaid shop in the same locality and further that if that being so the District Magistrate will issue an appropriate order. The High Court has permitted the petitioner to run his shop up till 14.11.2007 while fixing the date being 15.11.2007.

When the aforesaid writ petition was listed on 15.11.2007 the same has been dismissed on the ground of alternative remedy of appeal and the petitioner was granted liberty to file an appeal and the appellate authority was directed to entertain the appeal and decide the same at the earliest.

The appeal has been filed before the appellate authority namely the Chief Controller, Explosive who vide order dated 11.1.2008, allowed the appeal and has set aside the order of cancellation of licence dated 20.7.2007 inter alia with the finding that there is specific ground for cancellation "NOC", that the District Magistrate has not given any specific violation of Rules and conditions found by him and no major violation of Rules have been reported during the time to time inspection by the authorized officer while permitting the licensee namely Zubair Ahmad who is situated in the same locality to carry on the business. The appellate authority has directed the District Magistrate, Varanasi to further review revisions for cancellation of 'NOC' granted to the petitioner.

In turn the District Magistrate, Varanasi vide order dated 30.1.2008 has re-affirmed the order of the cancellation of 'NOC'. On appeal the appellate authority had issued the notices to the petitioner along with the copy of the order of the District Magistrate, Varanasi dated 30.1.2008 calling upon the petitioner to file his objection. On account of certain reasons as so mentioned in para 21 of the instant writ petition the appeal of the appellant was dismissed by the appellate authority vide order dated 2.2.2009 solely on the ground that the petitioner has not been submitted his reply/objections against the order dated 2.2.2009.

A Writ Petition No. 12072 of 2009 has been filed by the petitioner which was allowed and the matter was remitted back to the appellate authority to decide the appeal afresh on merit considering the observations made in the judgment and further that the petitioner was permitted to sell the crackers and sparklers available in his shop without making any new purchases. This order has been passed by the High Court on 19.5.2009.

In compliance of the directions of the order dated 19.5.2009 the appellate authority vide its order dated 5.8.2009 had decided the petitioner's appeal and has held that under the explosive Rules 1983 there was no specific provisions for cancellation of "NOC" by the District Magistrate however, the new Explosive Rules, 2008 had made provisions for cancellation of "NOC" by the District Magistrate vide Rule 115 but since the petitioner was not given any opportunity of hearing by the District Magistrate Varanasi, before cancellation of the "NOC", and that certain other persons are allowed to carry on the fireworks business in the same locality and their "NOCs" were not cancelled and according to the appellate authority the same creates disparity amongst the licensees, hence the petitioner has been allowed to carry on the business of sale of fireworks from the said shop temporarily, however, not beyond the date 31.12.2009. The appellate authority has also directed the petitioner to obtain fresh "NOC" from the District Magistrate.

In compliance of the directions of the appellate authority dated 5.8.2009 the petitioner made an application for fresh grant of "NOC" for carrying on business of fireworks from the aforesaid premises situated at Beniyabagh, Varanasi. In support of his case the petitioner has placed the report of the Deputy Chief Controller of Explosive dated 6.5.2008 which was obtained under Right to Information Act. The District Magistrate has decided the said application of the petitioner and has renewed the original "NOC" vide letter dated 22.12.2009.

Based on the renewal of the "NOC" the licence of the petitioner was also renewed for a period of five years which stars w.e.f. 24.3.2014 and ending on 31.3.2019.

A team has been constituted which was headed by some Senior Administrative Authorities for the purposes of inspection of licence premises of different licensees who are carrying on the business of the fireworks and the said team has submitted a report dated 23.9.2013 with regard to inspection which was carried out on different premises. The shop of the petitioner was also inspected and the said team has submitted a report with regard to petitioner's stock register by saying that the same was not properly kept though the mistake in keeping the stock register was not pointed out. The said team has further reported that the stock register was not got verified and further that the details of the total purchase and sale of the fireworks were not provided by the petitioner to the inspecting team.

According to the petitioner that even assuming without admitted these shortcomings pointed out by the inspecting team in its report the same did not relate to grant or cancellation of "NOC" by the District Magistrate, with regard to quantity of each category of fireworks for which the "NOC" granted.

The said team has however, reported that the location of the petitioner's shop is not safe and accordingly it has recommended the cancellation of the licence on the ground of safety. The District Magistrate, Varanasi after a gap of more than one month from the date of receiving of said report has passed the order dated 31.10.2013 to the effect that by an order dated 22.9.2013 the team which has been constituted for the inspection of fireworks shop that did not find any irregularity therein but the shop in question was directed to seize by the order of the District Magistrate dated 31.10.2013.

Against the said order dated 31.10.2013 a writ petition has been filed being Writ Petition No. 62107 of 2013 by which the petitioner has assailed the order of the District Magistrate dated 31.10.2013. The writ petition was disposed of on 26.11.2013 by issuing a direction that the order dated 31.10.2013 keeping the shop of the petitioner closed from Dushehra to Deepawali appears to be momentous order being in question has already been mentioned therein and in case, the authorities found that if there is some illegal impediment in, running the shop, a written order shall be passed given reasons as to why, the petitioner could not run his business.

According to the petitioner after the order dated 26.11.2013 nothing was done till a fresh show cause notice is issued just before the Deepawali festival on 7th October 2014, by which the District Magistrate, Varanasi has observed that the shop and residence of the petitioner is located in the same building in which the explosive and the fireworks are stored and are sold, which is causing grave danger to the life of the citizen and therefore, the petitioner called upon to show cause as to why the "NOC" be not cancelled.

A reply in detail has been submitted to the show cause notice in which the petitioner has clarified the exact position of his shop in question by saying that the petitioner is carrying on the business only by way of his legal right and further clarified that his storage is situated in the rural area at Baragaon, Varanasi as such the petitioner keeps the goods only running the business to such fireworks which are required for the purpose of day to day business. It is further submitted by the petitioner that the petitioner has never violated any rules as framed in the Act of 1884 and further that on 12.10.2014 the concerned authority have inspected the shop of the petitioner wherein they had not noticed any irregularity.

The petitioner has also brought to the notice of the respondent authority that another shop keeper namely, Mohd. Zubair Ahmad, who is running the shop in the name of style of Jenit Agencies, who deals with the fireworks is also situated in the same locality and was never checked nor his business is ever obstructed as such only the petitioner's shop is being repeatedly inspected before the festival of Dashehra and Deepawali and the proceedings are being carried on for cancellation of 'NOC'.

The allegation of the petitioner in para 36 of the instant writ petition is that on 23.10.2014 the festival of Deepawali was going to be held, however on 21.10.2014 the District Magistrate, Varanasi with ill-intention has cancelled the "NOC" which was given to the petitioner on 22.12.2009. The District Magistrate has further directed the authority to take away the available stock of explosive from the shop of the petitioner.

According to the petitioner neither the petitioner deals in explosive nor a single item of explosive was available in his shop or with the entire storage of fireworks and on account of illegal action of the District Magistrate the petitioner suffered huge loss.

The Chief Controller Explosive, Allahabad vide his order dated 9.1.2015 has cancelled the licence of the petitioner dated 25.1.2000 while exercising his power conferred under Section 6 E(3) of the Explosive Act, 1884 read with Rule 118, 1(III) of Explosive Rules 2008 on the ground that since the "NOC" dated 22.12.2009 has already been cancelled by the District Magistrate, vide order dated 21.10.2014, hence the licence of the petitioner to run the shop is also to be cancelled as per provisions of Rules 115 and 118 of the Explosive Rules 2008.

The submission of the petitioner is that for running a shop the petitioner has taken loan from the Bank to the tune of Rs.80 lacs. against which the petitioner is liable to pay huge monthly interest and further that the fireworks material, which was taken away by the local authorities as well as police authorities, is lying in the open space at the police station and lots of items are being removed which causes immense injury to the petitioner not only mentally but monetary. According to the petitioner the petitioner has no option but to file a writ petition being Writ Petition No. 60155 of 2014 by which he has challenged the order passed by the District Magistrate dated 21.10.2014.

The said writ petition was taken up for hearing and it is noticed by this Court that the affidavit of the District Magistrate, Varanasi was selective in nature, therefore, the District Magistrate was directed to visit the shops of the petitioner personally and also visit the shop of Zubair Ahmad whose shop is situated nearby the shop of the petitioner in the same locality.

This Court has directed the District Magistrate to file an affidavit along with photographs. The said writ petition came up for hearing on 21.11.2016 and this Court has noticed that the order passed by this Court dated 25.11.2014 has not been complied with by the District Magistrate and therefore, this Court has again directed the District Magistrate Varanasi to make spot inspection and comply the order dated 25.11.2014.

During this intervening period the City Magistrate, Varanasi has proceeded to seize the entire stock which was available at the shop of the petitioner and an FIR dated 25.10.2017 was also lodged with the police station, Chowk, District Varanasi which was registered as Case Crime No. 259 of 2016 under Section 9(B) of the Explosive Act, 1884 before the Court of Special C.J.M., Varanasi.

The Special C.J.M., Varanasi vide order dated 6.11.2017 has released the shop and goods in favour of the petition on his depositing a sum of Rs.2,00,000/- as security.

The Writ Petition No. 60155 of 2014 again came up for hearing on 2.9.2017 and this Court passed an order directing the petitioner to withdraw the writ petition with liberty to approach the concerned authority for fresh licence and "NOC". The petitioner therefore, has withdrawn the said writ petition and thereafter has submitted an application for grant of fresh "NOC" and licence in his favour. This application has been moved before the District Magistrate, Varanasi along with the copy of the original licence.

Before the District Magistrate Varanasi the petitioner has placed all the relevant provisions of law and therefore has prayed that the ground on which the "NOC" has been cancelled are not punishable under the statute. According to the petitioner the shop in question satisfies the requirement of Rule 83 and in particular clause (4)(a) of Rule 83 and remaining conditions of Rule 83 are also not attracted in the case of the petitioner. However, on extraneous consideration, increase in population in area and apprehension of loss to public life and property, which are not relevant circumstances so as provided under Rule 2008, the "NOC" could not have been denied to the petitioner specially when all other conditions under the Act 1884 and Rules 2008 are satisfied.

The submissions of the learned counsel for the petition is that the licensing authority could have suspended or revoked a license if it deems necessary for security of public peace or for public safety. In the present case licensing authority has not cancelled license on the ground of public safety but it has been cancelled for the reason that "NOC" was cancelled by District Magistrate, Varanasi on certain apprehension, which are not contemplated under any part of statutory provisions. He further states that shop in question is on the ground floor and easily accessible to fire brigade, if any occasion so arises. Complex is not a residential one in which shop is situated and there is no other firework shop within the distance of 15 meters as contemplated under Rule 86(2) and (3) of Rules 2008.

Counsel for the petitioner has further submitted that an FIR was lodged by the City Magistrate, Varanasi dated 5.10.2017 against the petitioner under Section 9(B) of the Explosive Act 1984 P.S. Chowk, District Varanasi, Whereby the shop and office of the petitioner were seized by the City Magistrate Varanasi, with Police Force of Chowk Varanasi, which was duly assailed before the Court of Chief Judicial Magistrate, Varanasi in case Crime No. 259 of 2016 (State vs. Shabi Ali), wherein, on 6.11.2017 the Court below after perusing the entire relevant records, found that no offence is made out against the petitioner under Section 9(b) of the Explosive Act 1884, on the basis of which the seized shop of the petitioner was directed to be released in favour of the petitioner.

Counsel for the petitioner further submitted that the present case of the petitioner is purely the identical as that of the Zubair Ahmad, inasmuch as the order dated 9.1.2015 is the same as that of Zubair Ahmad, dated 9.1.2015, passed by the same authority of Allahabad, and as such the same benefit which has been granted to Zubair Ahmad be extended even upon the present petitioner whose case is fully covered by the judgment and order dated 13.2.2018 which cannot be disputed at all.

He has further submitted that the City Magistrate, Varanasi is acting wholly arbitrarily and he has illegally rejected the application of the petitioner dated 3.10.2017 vide its order dated 31.10.2017 which is wholly arbitrary, baseless and illegal and as such is without jurisdiction. At the last the petitioner has submitted that the impugned order dated 31.10.2017 has been passed by the City Magistrate/ In-charge Officer, Ayudh Varanasi is under the Explosive Rules, 2008, whereas only the District Magistrate is empowered to either grant or cancel or reject the application for grant of "NOC" as such the City Magistrate did not have any jurisdiction to pass such an order which has been passed on 31.10.2017, therefore, the same is liable to be quashed.

We have heard learned counsel for the parties and have also perused the record as well as the impugned order passed by the City Magistrate, Ayudh, Varanasi dated 31.10.2017 by which the application for grant of "NOC" filed by the petitioner has been rejected and the petitioner was refused to run the shop, whereas another shop keeper namely one Zubair Ahmad whose shop is also situated in Beniyabag, Varanasi is allowed to sell crackers and fireworks from his shop.

Learned standing counsel could not dispute that there is no requirement that shop having licence of explosive storage and sale in an area, if situated within 100 meters from residential accommodation, such licence shall not be granted.

With regard to the population in an area in which such licence can be granted, learned standing counsel again could not dispute that there is no provision under statute or rules in this regard and population as such is not a relevant factor for grant or denial of licence or possession and sale of fireworks and crackers under the Act 1884 and Rules 2008.

We are further in agreement with the contention of the learned counsel for the petitioner that there appears no valid reasons as to why the impugned order dated 31st October 2007 has been passed by the City Magistrate and not by the District Magistrate, Varanasi, who is empowered to either grant or reject the application for grant of "NOC", however according to us the City Magistrate did not have any jurisdiction to pass such an order rejecting the application for grant of "NOC". In view of the aforesaid reasons, the impugned order dated 31.10.2017 is hereby set aside.

In the result, the writ petition is allowed. However, this order shall not preclude the respondents from passing a fresh reasoned order in accordance with law. We further notice that the petitioner has suffered huge loss on account of not allowing him to run the business but otherwise also that is on account of wastage of his goods which was seized, therefore, the petitioner would also be entitled to cost which we quantity to Rs.50,000/- against the respondent nos. 2 and 3.

Order Date :- 03.05.2018

S.S.

    (Ashok Kumar, J.)         (Krishna Murari, J.)