Mintech Explochem India Llp A ... vs The Union Of India, Thr. Ministry ...
2021 Latest Caselaw 16714 Bom

                                                                                              WP.1177.20.J
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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT NAGPUR, NAGPUR.
                                       ...

WRIT PETITION NO. 1177/2020

Mintech Explochem India LLP A partnership firm : Through its partner Premnarayan Shrikisan Vyas Aged about 35 years, occu: Business R/o F/3 Nikehra Apartment New Colony, Nagpur. ..PETITIONER

versus

1. The Union of India Through Ministry of Commerce and Industries Petroleum and Explosives Safety Organization (PESO) Formerly Department of Explosives Through its Secretary 5th floor, A Block, CGO Complex Seminary Hills, Nagpur.

2) The Chief Controller of Explosives A Block, CGO Complex, Fifth floor Seminary Hills, Nagpur.

3) The State of Maharashtra Through Urban Development Department Through its Secretary Mantralaya, Mumbai

4) District Magistrate Collector office Premise Civil Lines, Nagpur. .. RESPONDENTS ..................................................................................................................

Mr. S.S. Sharma, Advocate for petitioner Mr. U.M.Aurangabadkar, ASGI for respondents 1 & 2 Mr. K.L. Dharmadhikari, AGP for respondents 3 and 4 ................................................................................................................

WP.1177.20.J

CORAM: SUNIL B. SHUKRE & ANIL L. PANSARE, JJ DATED : 2nd December, 2021.

ORAL JUDGMENT: (PER SUNIL B.SHUKRE, J.)

1. Heard.

2. Rule. Rule, returnable forthwith. Heard finally by

consent.

3. The State of Maharashtra has not given any reply

regarding the constitutional challenge made to the Government

Resolution (GR) dated 19.12.2018 which sets set out the limit of

1.5 km. from gaothan boundary, as set out in Rule 103 (3) (a) for

the purpose of issuance of 'no objection certificate' and for grant of

license for storage, possession and sale of explosives. It contends

that in any case the proposed site of godown/ storage being

situated within 1.5 km. no objection could not have been granted

without following proper procedure. Such a stand of the State of

Maharashtra, as seen from the reasons stated in the impugned

order dated 10.01.2020 appears to be contrary to its own position.

In the impugned order, it is stated that such magazine of

explosives or storage of explosives is permissible only if it is situated

WP.1177.20.J

beyond 2 kms and that means the State of Maharashtra still going

by its GR dated 19.12.2018. Now, if we consider the GR dated

19.12.2018, we can, at once, come to the conclusion that minimum

limit of 2 km. beyond the gaothan boundary prescribed therein, is

not consistent with the limit of 1.5 km set out in Rule 103(3)(a) of

the Rules, 2008. There is no dispute about the fact that the subject

of explosive is included in the Union list and, therefore, it is within

the exclusive power and domain of the Union to legislate upon it

and it is not for the State to do so.

4. In the present case, the central legislation is already in

place and, therefore, by GR dated 19.12.2018, the limit of 1.5 km

could not have been extended to 2 km and, as such, the GR dated

19.12.2018 could be said to be inconsistent with the Central

legislation and, therefore, must not stand to the scrutiny of law.

5. In the result, the Writ Petition is allowed. The GR dated

19.12.2018 is hereby quashed and set aside as being ultra vires to

Explosive Rules 2008, in particular, Rule 103 of the said Rules. The

impugned order is hereby quashed and set aside. The matter is

remanded back to the respondent no.4 for fresh consideration in

the light of the provisions made in Rule 103 of the Rules, 2008.

WP.1177.20.J

6. Rule is made absolute in the above terms. No costs.

                                   JUDGE                      JUDGE

sahare