Shabbirali Tayabali Chhatariya vs The Union Of India
2023 Latest Caselaw 634 Guj

     C/LPA/1185/2022                               ORDER DATED: 23/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 1185 of 2022
                                  In
             R/SPECIAL CIVIL APPLICATION NO. 16001 of 2015
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                                   In
              R/LETTERS PATENT APPEAL NO. 1185 of 2022
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                       SHABBIRALI TAYABALI CHHATARIYA
                                    Versus
                             THE UNION OF INDIA
==========================================================
Appearance:
MR UI VYAS(1000) for the Appellant(s) No. 1
MS DHRUMA U VYAS(6850) for the Appellant(s) No. 1
MS VYOMA K JHAVERI(6386) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
==========================================================
  CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
         KUMAR
         and
         HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                               Date : 23/01/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

1. By way of this Letters Patent Appeal under Clause 15 of

the Letters Patent Act, appellant- original petitioner has assailed

the order of learned Single Judge dated 19.7.2022 passed in

main Special Civil Application No.16001 of 2015.

2. The background of facts which has given rise to this

appeal is that petitioner is a license holder of explosives and

doing his business in the name of M/s. Gujarat Explosives,

C/LPA/1185/2022 ORDER DATED: 23/01/2023

situated at Mahuva since the year 1987. Petitioner is having in

all 7 licenses for different types of explosives and having

godown in the outskirts of village Vadali, Taluka Mahuva,

District Bhavnagar. Storage of the explosives are in a godown

constructed strictly in accordance with the specifications

provided under the Rules and design whereof is also approved

by the Chief Controller who in turn has permitted the stock of

various types of explosives to be kept/ stored as per the rules.

Earlier, license was issued in the name of M/s. Premier

Explosives Agency, later on same was permitted to be changed

to M/s. Gujarat Explosive Agency.

3. It is the case of the petitioner that said licenses were

issued after following due procedure prescribed under the Act

and were issued only after District Collector, Mahuva,

concerned police department- PWD along with opinion of

Panchayat who inspected the area where the stock of explosives

is allowed to be kept had taken the view. So much so, that

Vadodara Circle Officer had also personally checked the safety

measures and parameters which are required and after having

satisfied, the Chief Officer of Explosive Department, Nagpur

C/LPA/1185/2022 ORDER DATED: 23/01/2023

upon verification issued No Objection Certificate and thereupon,

godown/ magazine in the said area are built. The license holder

is required to pay requisite fee as prescribed under the Rules

through Demand Drafts regularly and also to see that periodical

renewal may also be accorded to as on the date all licenses have

been renewed regularly and petitioner company stated to have

valid license under the Act.

4. According to the petitioner, even surprise checking are

also being undertaken at regular span of 1, 2 or 5 years, as the

case may be, and necessary compliance reports are also being

prepared and sent to the authority.

5. According to petitioner, on 28.8.2015, Deputy Chief

Controller of Explosives, Vadodara came to the spot and made

inspection of the premises and at that point of time, there was

no discrepancy or any violation of any of the conditions was

indicated to the petitioner and for the first time on 10.9.2015, it

was pointed out that there are some violations/ discrepancies

and straightway, without granting any opportunity or affording

opportunity of even to explain, it has been indicated in the said

C/LPA/1185/2022 ORDER DATED: 23/01/2023

communication dated 10.9.2015 to restrict the stock of

explosives in the magazine/ godown upto said quantities as

indicated, and has called upon the petitoner to submit

documents and fee for amendment of reduced quantity to be

stored as per the available safety distances within 21 days.

Grievance of the petitioner is that though all parameters are

prescribed and observed closely by petitioner and there was no

violation as noticed, however without affording any opportunity,

straightway petitioner company has been advised rather

ordered to restrict the stock which has prejudicely affecting the

right of petitioner and since same was without affording any

opportunity and it is in the form of notice-cum- order, petitioner

was constrained to approach this Court by way of Special Civil

Application No.16001 of 2015.

6. The petition appears to have been entertained at initial

stage whereby an ad-interim relief was granted and then

appears to have come up before the learned Single Judge who

by way of judgment and order dated 19.7.2022 was pleased to

dismiss the same, which has given rise to filing of the present

Letters Patent Appeal before us.

C/LPA/1185/2022 ORDER DATED: 23/01/2023

7. The Letters Patent Appeal was entertained by this court by

order dated 19.9.2022, wherein notice was issued calling upon

the authority to respond. As a result of this, learned advocate

Ms. Vyoma Jhaveri appeared on behalf of the respondent

authority. Hence, with consent of learned advocates, we have

taken up the hearing of present appeal.

8. Learned advocate Mr. U.I. Vyas appearing on behalf of the

appellant has submitted that issuance of impugned

communication dated 10.9.2015 is in flagrant violation of the

principles of natural justice as neither any opportunity of

hearing was given nor any explanation is given prior to issuance

of it and straightway passing an order indicating to restrict

explosive stock would tantamount to infringe the right to carry

on business and as such on this ground of violation of principles

of natural justice itself, impugned communication deserves to be

quashed.

9. Learned advocate Mr. Vyas has further submitted that

before ordering to restrict the stock as indicated in the

impugned communication, if opportunity would have been

C/LPA/1185/2022 ORDER DATED: 23/01/2023

given, petitioner would have pointed out earlier compliance

report, earlier inspection report as well as fact that there is no

violation of any directions or rules which are applicable and as

such this impugned communication though in the form of notice,

it is practically notice-cum- order which was not recognized by

proposition of law, hence same deserves to be quashed.

10. Learned advocate Mr. Vyas has further submitted that

relevant Rules, precisely Rules 117, 118 to 121 and 128 of the

Explosives Rules, 2008 are making it clear that power is

invested in an authority to inspect and issue such direction, but

said powers are to be exercised in case of exigency exists, which

is not here in the present case on hand. Hence, very exercise of

issue of such direction is uncalled for. In fact, by referring to a

chart contained in paragraph 9 of the petition memorandum,

learned advocate Mr. Vyas has pointed out that there is no

violation and stock has been maintained strictly as per the

parameters which are prescribed and had the opportunity been

given, petitioner could have pointed out to the authority. In fact,

when godowns were inspected, no such infirmity was indicated

to the petitioner and as such, order appears to be not only

C/LPA/1185/2022 ORDER DATED: 23/01/2023

unjust, arbitrary but not in consonance with the settled

proposition of law and as such impugned communication

requires to be quashed and set aside.

11. As against this, learned advocate Ms. Vyoma Jhaveri

appearing on behalf of contesting respondent has submitted

that while issuance of communication dated 10.9.2015,

authority has taken care of parameters and only upon due

verification, communication is issued. However, Ms. Jhaveri has

fairly and candidly submitted that while issuance of directives in

the impugned communication to reduce stock, no opportunity

was given, as is reflecting. Ms. Jhaveri has further submitted on

instruction that authority is inclined to extend an opportunity to

the petitioner and since petitioner has been protected from

beginning, authority would desist itself from insisting to act

upon impugned communication dated 10.9.2015 insofar as has

restricted to maintain stock till final decision is taken on

impugned communication.

12. Learned advocate Ms. Jhaveri has submitted that since

order is related to explosive, urgent attention to this issue

C/LPA/1185/2022 ORDER DATED: 23/01/2023

deserves and as such requested to fix some time schedule so

that appropriate decision can be taken. Ms. Jhaveri has

requested not to enter into merits and without expressing any

opinion on such, has requested to issue appropriate direction

which will be taken care of by an authority since the issue at

this stage is only with regard to non-granting of opportunity.

13. Having heard learned advocates for the parties and having

gone through the material on record, following circumstances

deserve consideration before disposing of the present

proceedings:-

(1) From the record, it appears that petitioner company is

having 7 licenses since number of years and is carrying on

business and original licenses were of 1987 and periodically,

same appear to have been renewed from time to time, as

indicated. In between, it also appears that some spot verification

also appears to have been undertaken, but in the last inspection

visit on 28.8.2015, authority has found certain discrepancies

and as such it appears that impugned communication has been

issued by an authority. From the reading of the impugned

C/LPA/1185/2022 ORDER DATED: 23/01/2023

communication, it indicates that there are some encroachments

made surrounding the area and some dwelling houses three in

numbers have been found, but same is an encroachment stated

to be not by the petitioner and for which, petitioner has

indicated that company is not responsible for the same. Though

by way of the impugned communication, within a period of 21

days, petitioner has been called upon to reply, failing which

steps would be contemplated, but then reading of this impugned

communication further indicates that straightway a directive is

issued in the form of an advice to restrict stock of explosives in

the magazine upto said quantities and as such this direction has

been issued without granting any opportunity to the petitioner

and this fact of non-grant of opportunity appears to be

undisputed as Ms. Jhaveri on instruction from an officer who is

personally present has confirmed that prior to this, no

opportunity was given to the petitioner, hence impugned

communication appears to be without grant of any opportunity

to the petitioner.

(2) Additionally, this action of imposing restriction has got an

adverse impact on smooth running of business activity of the

C/LPA/1185/2022 ORDER DATED: 23/01/2023

petitioner as stated by counsel and that being so, having broadly

accepted the situation, learned advocate for the respondent on

instruction from the officer who is present in the Court has

stated that petitioner is at liberty to submit reply to impugned

communication dated 10.9.2005 and till decision is taken, no

steps will be taken under the guise of this communication and

stay which has been operative throughout the proceedings will

continue to be abided and as such upon submission and

instruction, learned counsel for petitioner has also jointly

requested to dispose of the appeal by issuing appropriate

direction by setting aside the impugned order passed by learned

Single Judge.

14. Hence, upon such broad submissions made before us, we

deem it proper to dispose of the present Letters Patent Appeal

on following lines which would meet the ends of justice:-

(1) Letters Patent Appeal is ALLOWED by quashing and setting aside impugned order dated 19.7.2022 passed in Special Civil Application No.16001 of 2015 and as a consequent thereof, appellant- petitioner is permitted to submit specific explanation/ reply or objection, if any against impugned communication dated 10.9.2015 on

C/LPA/1185/2022 ORDER DATED: 23/01/2023

or before 6.2.2023 and upon receipt of said reply, the authority shall take appropriate decision on or before 6.3.2023 in respect of the show cause notice dated 10.9.2015.

(2) It is made clear that this Court has not expressed any opinion on merit and it is independently left it open to the authority to take appropriate decision in accordance with law on the basis of the parameters which are applicable while taking such decision.

(3) Appellant- petitioner is directed to cooperate with decision making process which may be undertaken by an authority.

(4) It is also observed since there is a broad consensus that during process of taking decision on or before 6.3.2023, stay granted and which was operative during pendency of the petition same shall continue to remain and if any adverse decision is taken, same shall not be implemented for a period of 10 (TEN) DAYS.

With above observations and directions, Letters Patent Appeal stands DISPOSED OF. All pending applications also stands consigned to records. Cost made easy.

Sd/-

(ARAVIND KUMAR,CJ)

Sd/-

(ASHUTOSH SHASTRI, J) OMKAR