Gopal S/O Babulal Agrawal vs Divisional Commissioner, ...
2022 Latest Caselaw 1018 Bom

WP 2100-21                                    1                       Judgment

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

                   WRIT PETITION NO. 2100/2021

Gopal S/o Babulal Agrawal,
Aged about 55 years, Occ: Business,
R/o At present Muktanand Nagar, Near Dr.Gaikwad
Hospital, Nandura road, Khamgaon, Tq. Khamgaon,
District Buldana.                                                 PETITIONER

                                .....VERSUS.....

1.   Divisional Commissioner,
     Amravati Division, Amravati.
2.   District Collector, Buldana.
3.   Narendra S/o Babulal Joshi,
     Aged about 48 years, Occ: Advocate,
     r/o Main Road, Khamgaon, Tq. Khamgaon,
     District Buldana.
4.   The Controller of Explosives, West Circle,
     Petroleum and Explosive Safety Organization (PESO)
     A1 A2 Wing, 5th Floor, CGO Complex,
     CBD Belapur, Mumbai-400614.                               RESPONDENTS

              Mrs. Renuka S. Sirpurkar, counsel for the petitioner.
 Ms Nivedita P. Mehta, Assistant Government Pleader for the respondent nos.1
                                    and 2.
  Shri Anil S. Mardikar, Senior Advocate with Shri S.G. Joshi, counsel for the
                               respondent no.3.



CORAM : A. S. CHANDURKAR AND SMT. M.S. JAWALKAR, JJ.

DATE     : 28TH JANUARY, 2022.
ORAL JUDGMENT           (PER : A.S. CHANDURKAR, J.)



       RULE.    Rule made returnable forthwith and heard the learned

counsel for the parties.
 WP 2100-21                                  2                      Judgment

2. The challenge raised in this writ petition is to the orders dated

18.11.2020 passed by the Collector and District Magistrate, Buldana and

the order dated 07.06.2021 passed by the Divisional Commissioner,

Amravati Division, Amravati in proceedings arising out of the Explosives

Act, 1884 (for short, 'the Act of 1884'). The District Magistrate has been

pleased to cancel the no objection certificate dated 17.03.1997 that was

granted to the petitioner for storage and sale of explosives. The

Divisional Commissioner was pleased to confirm that order and further

directed appropriate action to be taken under the provisions of Sections

44 and 45 of the Maharashtra Land Revenue Code, 1966 and the

Maharashtra Land Revenue (Conversion of use of Land and Non-

Agricultural Assessment) Rules, 1969.

3. Brief facts giving rise to the present proceedings are that it is the

case of the petitioner that pursuant to grant of no objection certificate by

the Additional District Magistrate, Buldana on 17.03.1997 the petitioner

is operating fire cracker shops/godowns on Survey No.86 at Mouza

Shirajgaon, Taluka Khamgaon, District Buldana. It is the case of the

petitioner that he has been running the aforesaid business since then

without any interruption. On 10.10.2018 the respondent no.3 moved an

application before the District Magistrate praying therein that since the

aforesaid business was being carried out by the petitioner in breach of the WP 2100-21 3 Judgment

provisions of the Explosives Rules, 2008 (for short, 'the Rules of 2008'),

the no objection certificate granted in favour of the petitioner be

cancelled. Pursuant thereto the District Magistrate on 17.10.2018 issued

a notice to the petitioner and sought his clarification on various aspects

stated in the said notice. It appears that on 29.10.2018 the explosives

godowns were inspected. During the course of inspection, various

shortcomings were noticed and hence on 31.10.2018 the District

Magistrate issued a show cause notice to the petitioner calling upon him

to explain as to why the no objection certificate granted earlier should not

be cancelled. The petitioner was called upon to show cause by

03.11.2018. The petitioner accordingly submitted his reply and

thereafter by an order dated 18.11.2019 the District Magistrate found

that the land in question had not been converted for non-agricultural use.

The District Magistrate found it fit to seek further guidance in the matter

from the Controller of Explosives and he directed that till such guidance

was received the petitioner's godown be sealed. The appeal filed by the

petitioner challenging that order before the Divisional Commissioner

came to be dismissed on 17.03.2020. The Divisional Commissioner

however directed the District Magistrate to examine as to whether

appropriate permission has been granted for non-agricultural use of the

land where the business of the petitioner was being conducted. The

petitioner being aggrieved by the aforesaid orders approached this Court WP 2100-21 4 Judgment

in Writ Petition No.1802 of 2020. On 17.09.2020 this Court found that

the action of sealing the godown was not relatable to any provision under

the Act of 1884 or the Rules of 2008. Consequently, the orders passed in

that regard came to be set aside and liberty was granted to the District

Magistrate to move the appropriate Authority under the Act of 1884 for

taking the appropriate action if found necessary.

4. The District Magistrate however acting on the directions issued by

the Divisional Commissioner by which the aspect of conversion of the

land for non-agricultural use was directed to be examined re-opened the

matter and after hearing the petitioner as well as the respondent no.3

cancelled the no objection certificate issued to the petitioner principally

on the ground that the land where the godowns were situated had not

been converted for non-agricultural use and the user of that land for

storage of explosives was not permissible under the Regional

Development Scheme. The Explosives Department was accordingly

informed about the same. The petitioner then filed an appeal before the

Divisional Commissioner who on 07.06.2021 was pleased to affirm the

order of revocation of the no objection certificate. The appeal was

accordingly dismissed and further directions were issued to take action

under the provisions of the Maharashtra Land Revenue Code, 1966.

Being aggrieved the petitioner has challenged the aforesaid orders.

WP 2100-21 5 Judgment

5. Smt.Renuka Sirpurkar, learned counsel for the petitioner in

support of the writ petition submitted that the District Magistrate as well

as the Divisional Commissioner mechanically proceeded to cancel the no

objection certificate without taking into consideration the relevant

applicable provisions of the Act of 1884 and the Rules of 2008. Referring

to the scheme of the Rules of 2008 in the matter of grant of no objection

certificate it was submitted that on 17.03.1997 the no objection

certificate had been granted to the petitioner after following the

prescribed procedure. Since some of the godowns were situated on

portions of land falling within the same survey number it was not

necessary for the petitioner to obtain a fresh no objection certificate in

that regard in view of Rule 102(2)(b) of the Rules of 2008. Referring to

the provisions of Rule 115 it was submitted that cancellation of the no

objection certificate was permissible only on the occurrence of the

contingencies prescribed therein. She submitted that none of the grounds

mentioned in Rule 115(1) were existing for the District Magistrate to

cancel the no objection certificate. Attention was invited to the

communication dated 15.05.2020 issued by the Joint Chief Controller of

Explosives to the District Magistrate in that regard. The impugned orders

had been passed without considering the relevant record and were liable

to be set aside. It was submitted that this Court in Writ Petition No.1802

of 2020 having set aside the orders dated 18.11.2019 and 17.03.2020 it WP 2100-21 6 Judgment

was not permissible for the District Magistrate to take into consideration

the material that was collected during those proceedings for the present

adjudication. It was therefore not permissible for the District Magistrate

to have cancelled the no objection certificate on the basis of such

material. Various grounds were raised before the Divisional

Commissioner for challenging the said order. Without adverting to those

grounds, the order had been confirmed by the Divisional Commissioner

without considering the relevant aspects. It was also submitted that the

respondent no.3 had no locus to raise the grievance to the running of the

fire cracker godowns by the petitioner. On these counts, it was submitted

that the impugned orders were liable to be set aside.

6. Ms Nivedita Mehta, learned Assistant Government Pleader for the

respondent nos.1 and 2 supported the impugned orders. It was submitted

that the no objection certificate dated 17.03.1997 was rightly cancelled as

the petitioner was operating the godowns from land which was not

converted for non-agricultural use. Considering the aspect of safety of

citizens, the action taken was relatable to Rule 115(1)(c) of the Rules of

2008. The impugned action was taken after giving the full opportunity to

the petitioner to put forth his say. After considering all relevant material

since it was found that the godowns were being run on land which had

not been converted for non-agricultural use the action of cancellation as WP 2100-21 7 Judgment

taken was legal and valid not requiring any interference. Reliance was

placed on the affidavits filed by the respondent no.2 on record.

7. Shri Anil Mardikar, learned Senior Advocate for the respondent

no.3 also supported the impugned orders. According to him on a

complete reading of the order passed by the District Magistrate as

confirmed by the Divisional Commissioner it was clear that the

Authorities had taken into consideration the aspect of public safety while

cancelling the no objection certificate. Though restricted permission was

initially granted on 17.03.1997 to run the godown the petitioner

expanded his business without converting the land for non-agricultural

use. After noticing the provisions of the Maharashtra Land Revenue

Code, 1966 the District Magistrate rightly took steps for cancelling the no

objection certificate. Such action was in view of Rule 115(1)(c) of the

Rules of 2008. As the Authorities had given importance to the aspect of

public safety and the impugned orders had been passed after granting

due opportunity to the petitioner there was no reason to interfere with

the said orders. He further submitted that the respondent no.3 as a

vigilant citizen was entitled to bring to the notice of the Authorities any

breach of conditions on which the no objection certificate was granted

and seek its cancellation. It was thus submitted that no case for

interference in writ jurisdiction was made out.

WP 2100-21 8 Judgment

8. We have heard the learned counsel for the parties at length and

with their assistance we have perused the documents placed on record.

The challenge raised is to the cancellation of the no objection certificate

that was granted to the petitioner to store and sell explosives. This no

objection certificate was issued under the Rules of 2008. The decision of

the District Magistrate to cancel that no objection certificate and

consequent affirmation of that decision by the Divisional Commissioner is

under challenge. In matters of this nature, the Court in exercise of writ

jurisdiction would primarily be concerned with the decision making

process rather than the decision itself. In other words, if it is shown that

the Authorities have arrived at their conclusion after granting due

opportunity to the parties and on consideration of all relevant aspects the

scope to interfere with such adjudication would be limited. The Court

would be slow to interfere with the actual decision if all necessary

safeguards have been complied with. If however the decision making

process is shown to be flawed or that irrelevant aspects have been taken

into consideration while taking the decision a case for interference would

be made out. It is in the aforesaid backdrop that the challenge to the

impugned orders would have to be examined.

9. The issuance of the no objection certificate to the petitioner for

storage and sale of explosives on 17.03.1997 is not in dispute. Pursuant WP 2100-21 9 Judgment

to the complaint made by the respondent no.3, the District Magistrate

issued a show cause notice. Perusal of the said show cause notice dated

31.10.2018 indicates that reference has been made to nine licenses that

were granted to the petitioner and storage of explosives was undertaken

in nine such godowns. With regard to each license, identical deficiencies

have been noticed. These deficiencies broadly are that (a) the explosives

stored in the godown exceeded the permissible capacity and during

inspection it was found that the stock was not maintained in proper

manner; (b) the yellow and red marking in the godown was either not

made or where red marking was made the goods were stored beyond the

same; (c) the electricity lines were touching the roof as well as the stock

of explosives; (d) the fire prevention equipment was not working and the

water tank was empty; and (e) there was no security guard for the

godown. These deficiencies have been noted for all the licenses except

license No.3 where the deficiency with regard to the absence of security

guard was not found. By referring to these deficiencies the District

Magistrate has observed that there was likelihood of fire breaking out. As

the petitioner failed to follow necessary terms and conditions of the no

objection certificate, the same was liable to be cancelled. It is thus clear

from the show cause notice that specific deficiencies were mentioned

against each license and the petitioner's explanation was sought. The

petitioner in his reply dated 14.11.2018 has denied the presence of such WP 2100-21 10 Judgment

deficiencies and has given his clarification. He has also referred to Rule

102(2)(b) of the Rules of 2008 and has further stated that the no

objection certificate was not liable to be cancelled.

10. We find that neither the District Magistrate nor the Divisional

Commissioner have adverted to the various deficiencies that were

referred to in the show cause notice dated 31.10.2018. Perusal of the

order dated 18.11.2020 passed by the District Magistrate indicates that

the entire thrust of the said order is on the absence of permission for non-

agricultural use being obtained by the petitioner. After finding absence of

such permission and the fact that use of the godown for storage of

explosives was not permissible within limits of two kilometers from the

Gaothan/Village, action of cancellation of the no objection certificate has

been taken. The Divisional Commissioner in turn has affirmed that action

by his order dated 07.06.2021. As stated above for each of the nine

licenses except one, similar deficiencies were found. The proceedings for

cancellation of the no objection certificate having commenced on the

basis of that show cause notice, it was expected of the District Magistrate

and thereafter the Divisional Commissioner to have considered the

deficiencies referred to in the show cause notice, petitioner's response to

the show cause notice and further action in that regard. The impugned

orders do not indicate any consideration of the deficiencies referred to in WP 2100-21 11 Judgment

the show cause notice or the petitioner's reply in that context. On this

sole count that the Authorities have cancelled the no objection certificate

on the basis of material that was not part of the show cause notice, the

impugned orders are liable to be set aside.

11. We find that the District Magistrate and thereafter the Divisional

Commissioner have noticed absence of due permission being obtained for

non-agricultural use of the lands where the godowns were situated. No

doubt, being Authorities under the Maharashtra Land Revenue Code,

1966, the District Magistrate and thereafter the Divisional Commissioner

had the jurisdiction to go into the said aspect. However before going into

that matter the petitioner ought to have been noticed in that regard and

his response to the allegation that there was no permission for non-

agricultural use of the land ought to have been obtained. No such notice

was given to the petitioner. On the contrary without considering the

deficiencies mentioned in the show cause notice dated 31.10.2018 and

the petitioner's response to the same, the no objection certificate has been

cancelled for a different reason. Such course of action would be

impermissible. The Authorities have held against the petitioner by

relying upon grounds of which no notice was given to the petitioner. It

was not permissible for the Authorities to travel beyond the show cause

notice and consider aspects that were foreign to it thus taking the WP 2100-21 12 Judgment

petitioner by surprise. It was always open for the Authorities to indicate

the action proposed consequent to absence of such permission for non-

agricultural use. The District Magistrate issued notice indicating

deficiencies under the Rules of 2008 but cancelled the no objection

certificate for absence of permission for conversion of the land for non-

agricultural use. This course is not in accordance with law and thus the

impugned orders cannot be sustained.

12. Though it was sought to be urged by the respondents that the

Authorities have acted by keeping public safety in mind that by itself

cannot assist the respondents in salvaging their position in the present

matter. The Authorities are obliged to act in accordance with law and by

keeping public safety in mind. The action proposed would however have

to be preceded by giving appropriate notice and opportunity to the party

likely to be affected. For the aforesaid reasons therefore we are unable to

sustain the impugned orders. We accordingly pass the following order:

(I) The order dated 18.11.2020 passed by the Collector and District Magistrate, Buldana and the order dated 07.06.2021 passed by the Divisional Commissioner, Amravati Division, Amravati is set aside.

(II) The District Magistrate, Buldana is free to proceed in accordance with law pursuant to the show cause notice dated 31.10.2018. The petitioner is at liberty to file additional reply to the aforesaid show cause notice, if so advised.

WP 2100-21 13 Judgment

(III) The Authorities are free to take necessary action in accordance with the Explosives Rules, 2008 and/or the Maharashtra Land Revenue Code, 1966 after granting due opportunity to the petitioner.

(IV) Considering the fact that the proceedings are pending since long, the District Magistrate shall take appropriate steps in accordance with law expeditiously.

(V) All points raised by the petitioner as well as the respondent no.3 on merits are kept open.

13. Rule is made absolute in aforesaid terms. No costs.

         (SMT. M.S. JAWALKAR, J.)           (A.S. CHANDURKAR, J.)


APTE




                                                       Signed By: Digitally signed
                                                       byROHIT DATTATRAYA
                                                       APTE
                                                       Signing Date:29.01.2022 15:42