WA/291/2019
2021 Latest Caselaw 805 Gua

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GAHC010251002019




              IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

                               WA 291/2019

                         Sri Subhash Jain,
                         Son of Late Meghraj Jain,
                         Resident of Kalapahar,
                         P.O. Birubari, P.S. Fatashil Ambari,
                         Guwahati-781016,
                         District Kamrup (M), Assam.
                                                      - Writ appellant
                                          -Versus-
                           1. Guwahati Municipal Corporation,
                            Represented by the Commissioner,
                            Guwahati Municipal Corporation,
                            Guwahati-781001.
                           2. Deputy Commissioner, South Zone,
                           Guwahati Municipal Corporation,
                           Guwahati-781001.
                           3. The Director of Fire Service,
                           Fire & Emergency Service, Assam,
                           Panbazar, Guwahati-781001.
                                                      - Respondents

BEFORE HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

Advocates present:

For the Writ Appellant : Mr. S. Kataki, Advocate. For Respondent nos. 1 and 2 : Ms. G. Hazarika, Advocate.

For Respondent no. 3           :     Mr. T. Chutia,
                                     Senior Additional Government
                                     Advocate, Assam.



                     JUDGMENT & ORDER (ORAL)

04.03.2021
(Sudhanshu Dhulia, CJ)

Heard Mr. S. Kataki, learned counsel for the appellant, and Ms. G. Hazarika, learned counsel for respondent nos. 1 and 2 as well as Mr. T. C. Chutia, learned senior Additional Government Advocate, Assam, appearing for the State respondent no. 3.

2. This writ appeal has been filed by the appellant/writ petitioner aggrieved by the order dated 27.09.2019, passed by the learned Single Judge in WP(C) 4962/2019, by which the writ petition of the appellant/writ petitioner was dismissed. The cause of filing the writ petition arose when the writ petitioner received a notice dated 03.07.2019 from the Guwahati Municipal Corporation, Guwahati, South Zone (hereinafter referred to as "the Municipal Corporation") which said that the writ petitioner was running a business of fireworks without obtaining No Objection Certificate (NOC) from the competent authority and, hence, asking the petitioner to get a No Objection Certificate (NOC) from the Director of Fire Services, Government of Assam, and to produce the same at the office of the Municipal Corporation within seven days failing which the Trade Licence of the writ petitioner would stand cancelled. This notice was challenged by the petitioner before this court in WP(C) 4962/2019 on grounds that the Municipal Corporation has absolutely no jurisdiction to issue such a notice to the writ petitioner. The case of the writ petitioner was based on the facts that he is in the business of fireworks, which includes selling fire crackers and for the said purpose he has a shop at Fancy Bazar, Guwahati, which falls under the Guwahati Municipal Corporation. According to the writ

petitioner, the only licence that he is required for selling fire crackers in his shop is a licence issued under the Explosives Act, 1884 (hereinafter referred to as "the Act") and such a licence under the Explosives Act was granted to him by the Joint Chief Controller of Explosives, Kolkata, way back in 1987 which has been periodically renewed, without any default on the part of the petitioner. It was further argued before the learned Single Judge that a licence under the Explosives Act is given, inter alia, for the purposes of running a shop of firecrackers and the licence is issued only after a detail enquiry is first made by the appropriate authority. Therefore, the case of the petitioner was that there is absolutely no requirement under any other provision of law for obtaining a licence, once a licence was given to the petitioner by the competent authority under the Explosives Act. Learned counsel for the appellant/ writ petitioner would argue that in case any other authority insists upon the petitioner to obtain a licence for running the business of fireworks and selling firecrackers, such action of the authority is totally without jurisdiction. This argument of the writ petitioner did, however, not find favour of the learned Single Judge and the writ petition was dismissed on the ground that it is indeed the duty of the Municipal Corporation, as given Section 7(10), 7(11) and 7(12)1 of the Gauhati Municipal Corporation Act, 1971 (hereinafter referred to as "Municipal Corporation Act"), to look into the matter of public safety and to regulate dangerous and offensive

7. Matters to be provided by Corporation. -

*** *** *** (10) the construction and maintenance of municipal markets and slaughter houses and the regulation of all markets and slaughter houses;

(11) the regulation and abatement of offensive or dangerous trades or practices; (12) maintenance of fire-brigade and the protection of life and property in case of fire;

trade and, therefore, issuing the aforesaid notice was within the powers Municipal Corporation.

3. Learned counsel for the appellant/writ petitioner has drawn our attention to Section 275 of the Municipal Corporation Act, which reads as under:

"275. Regulation of dangerous and offensive trades. - Except in accordance with the provisions of this Act, no person shall, -

(a) Store or keep in any premises any articles which are prescribed as dangerous or offensive, or as being or likely to be nuisance to the public, or dangerous to life, health or property; or

(b) Store or keep in any premises or hide any part of the carcass of any animal afflicted at the time of its death with infectious or contagious disease; or

(c) Carry on or allow to be carried on in any premises any trade, manufacturing industry or operation which is prescribed as dangerous to life, health or property or is likely to create nuisance, either from its nature or by reason of the manner in which or the conditions under which the same may be carried on:

Provided that nothing in this section shall affect the provisions of the Indian Explosives Act, 1884 or Indian Petroleum Act, 1934.

(emphasis provided)

4. Learned counsel for the appellant/writ petitioner would argue that though Section 275 of the Municipal Act gives power to the

Municipal Corporation to regulate dangerous and offensive trade within the municipality area and though dangerous and offensive trade may include the trade of fireworks and firecrackers, the proviso to Section 275 excludes the provisions of the Explosives Act.

Hence, the argument of the learned counsel for the appellant/writ petitioner would be that the very notice given by the Municipal Corporation is without jurisdiction. Learned counsel for the writ appellant would argue that the licences and licencing authorities for the purpose of selling fireworks and crackers from a shop are given in Schedule IV (Part 1)2 of the Explosives Rules and, therefore, even if the authorities are insisting upon such a licence or NOC, in whatever name it is called, such action of the authorities is totally without jurisdiction.

5. We, however, do not agree with the said submission of the learned counsel for the appellant/writ petitioner for the simple reason that Section 275 of the Municipal Corporation Act gives power to the Municipal Corporation to regulate the storage, sale, purchase etc. of articles which are dangerous of offensive. This would include offensive material like firecrackers. Even if the proviso to Section 275 of the Municipal Act excludes the provisions of the Explosives Act, but there is no exclusion of other provisions, 2 Licences and Licensing Authorities Purpose for which granted Licensing Authority

5. *** *** ***

(a) *** *** ***

(b) *** *** ***

(c) *** *** ***

(d) *** *** ***

(e) *** *** ***

(f) Licence to possess and sell from a shop Controller of Explosives manufactured fireworks of Class 7 Division 2 Sub-division 2 exceeding 100 kilograms but not exceeding 200 kilograms, and crackers or sparklers exceeding 500 kilograms but not exceeding 1200 kilograms.

such as Assam Fire Service Act, 1985 and the Rules framed thereunder which would be applicable in the present case.

6. Section 13 the Assam Fire Service Act provides for preventive measures to be taken and licences to be obtained from the appropriate licencing authority before using a particular premises as shop or godown. Section 13 of the Assam Fire Service Act reads as under:

"Preventive measures and Licences: - (1) No building or place shall be used as a warehouse or as a workshop unless the owner or occupier thereof shall have previously obtained under this Act, a licence for such use and that no licence to use any building or place as a warehouse shall be granted unless such building or place conforms to such precautionary measures taken by the owner or occupier thereof as may be directed by the licensing authority.

(2) The owner or occupier of any building or place which was being used as a warehouse immediately before the date on which this Act comes into force shall have to apply for obtaining a licence from the appropriate licensing authority within days from the date on which this Act comes into force.

(3) A licence granted under this Act may be withdrawn or suspended by such authority who granted it.

(4) Where on application a licence or renewal of a licence is refused, withdrawn or suspended, the licensing authority shall record in writing the reasons for such refusal with due intimation to the applicant.

(5) Every licence granted under sub-section (2) above shall be required to be renewed annually. Application for renewal shall be made to the licensing authority who shall refer the case to the

Director and the licensing authority shall grant or refuse renewal as may be recommended by the Director."

For fireworks there is a specific provision which is contained under Section 17 of the Assam Fire Service Act, which reads as under:

"17. Fire works. - No building or place shall be used for the purpose of manufacturing, making or otherwise dealing in any manner, in respect of fire works without previously obtaining a licence for the same from the licensing authority or such officer as may be authorised."

Under Section 48 of the Assam Fire Service Act, the State Government has been given the power to frame rules, which have been framed by the State Government, known as Assam Fire Service Rules, 1989. Rule 18 of the Fire Service Rules reads as under:

"18. No objection certificate. - (1) The Deputy Commissioner or such officer as may be authorised by the State Government shall issue trade licence for warehouse, workshop, places of public entertainment or any other place, in their respective jurisdiction on receipt of 'No objection certificate' from the Director of Fire Service.

(2) The Director of Fire Service on being satisfied about provision of fire prevention and safety measures, obtained in a place shall issue "no objection certificate" in Form "G", under sub-rule (1)."

7. From a bare reading of the aforesaid Rule it is seen that Rule 18 of the Assam Fire Service Rules clearly mandates that a place/premises can be used as a warehouse or workshop etc. only after obtaining NOC from the Director of Fire Service. "Licencing

Authority" has been defined under Section 2(k) of the Fire Service Act as "Deputy Commissioner".

8. A bare reading of the provisions of the aforesaid Acts and the Rules makes it absolutely clear that it is the duty of the Municipal Corporation to take measures for the safety of the inhabitants who come under its jurisdiction. This is provided under Section 7(10), 7(11), 7(12), as well as under Section 275 of the Municipal Corporation Act. In case an officer of the Municipal Corporation gives a notice to the appellant/writ petitioner to get NOC from the Fire Service authority, such a notice cannot be said to be without jurisdiction. The appellant/writ petitioner, in any case, will have to get an NOC from the Deputy Commissioner under the Fire Service Act as he is using his shop, which is in a busy market area, inter- alia for selling fire crackers.

9. We must also take note of the fact that the Explosives Act is of the year 1884 and it belongs to a colonial period. Undoubtedly, the statute has been amended from time to time and it also has an exhaustive Rules framed therein which have also been amended from time to time. Yet the basic purpose of the act is to regulate the manufacture, possession, use, sale, transport, import and export of explosives3. It also prescribes certain punishments in violation of the Act and there is definitely a concern in the Act as to the transport of explosives etc., yet by and large, it does not address the precautionary safety measures relating to explosives. This is the area of State and local authorities, such as Fire Service Department and the Municipal Corporation or the local body of the concerned area. Therefore, the two provisions, i.e. the Explosives

Objectives and reasons of the Act.

Act and the Fire Service Act read with Municipal Corporation Act, operate on different levels. A local body such as a Municipal Corporation has a duty to keep the inhabitants under its jurisdiction safe, and one of the measures which it has to take in this regard is to take safety precautions of an area or a shop, where explosives are sold or stored. There should never be a doubt on this aspect. There is hence no illegality in the notice given by the Municipal Corporation.

10. We hence find no scope here to interfere with the order of the learned Single Judge. The writ appeal is without any merit and the same is hereby dismissed.

                  JUDGE                           CHIEF JUSTICE




RK