Karnataka High Court
M/S. Madhi Trading Co vs Bruhat Bengaluru Mahanagara ... on 29 July, 2022
Bench: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 29 DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.46677 OF 2013 (GM-RES)
BETWEEN:
1. M/S. MADHI TRADING CO.
A PARTNERSHIP FIRM,
PARTNER,
SRI.C.DAYALAN @ A.PARAGASPATHI,
S/O.S.V.CHIDAMBARAM,
AGED ABOUT 62 YEARS,
NO.123, SULTANPET,
BANGALORE-560 053.
2. M/S NATARAJ TRADING CO.,
A PARTNERSHIP FIRM,
PARTNER, SRI.V.GURUSWAMY,
S/O A. VALAGUR,
AGED ABOUT 68 YEARS,
NO.165, SULTANPET,
BANGALORE-560 053.
3. M/S ROYAL FIREWORKS INDUSTRIES TRADING CO.,
A PARTNERSHIP FIRM,
PARTNER SRI.R.SATHEESH,
S/O S.A.K.S.RAJARATNAM,
AGED ABOUT 39 YEARS,
NO.183, SULTANPET,
BANGALORE-560 053.
4. M/S NAGARAJ TRADING
BY ITS PROPRIETOR SRI.G.NAGARAJ,
S/O.M.GOPALAPPA,
AGED ABOUT 52 YEARS,
R/AT.NO.151, SULTANPET,
BANGALORE-560 053.
2
5. SRI.K.R.PARANJYOTHI,
S/O K.B.DODDARAJAPPA,
AGED ABOUT 60 YEARS,
M/S. JYOTHI STORES,
NO.8, MAMULPET,
BANGALORE-560 053.
6. SRI.T.G.PRABHAKAR GUPTA
S/O T.K.GOPAL SHETTY,
AGED ABOUT 58 YEARS,
PROPRIETOR OF M/S.CHANDRA STATIONARY MART,
NO.179, AVENUE ROAD,
BANGALORE-560 053.
7. SRI.S.KARUNAKARAN,
S/O A.SENTHIAPPA NADAR,
AGED ABOUT 52 YEARS,
PROPRIETOR OF M/S.SANTOSH TRADING CORP.,
A-11, BALAJI COPLEX,
NO.125, SULTANPET,
BANGALORE-560 053.
8. M/S T.V. & SONS
PROP. V.SRIDHAR,
S/O SHANMUGAM,
AGED ABOUT 44 YEARS,
NO.304, AVENUE ROAD,
BANGALORE-560 053.
9. THE SENTHIL TRADERS
PROP.G.ABIRUBEN,
S/O GRAHADORE,
AGED ABOUT 44 YEARS,
NO.12 AND 13, SRI BALAJI COMPLEX,
F BLOCK, SULTHANPET,
BANGALORE-560 053.
10. B.VASUDEV BHADARKAR AND CO
PROP. B.VASUDEV BHANDARKAR,
S/O BHANDARKAR,
AGED ABOUT 45 YEARS,
NO.125-E, SREE BALAJI COMPLEX,
SULTHANPET, BANGALORE-560 053.
...PETITIONERS
3
(BY SMT.PRAMILA NESARGI, SENIOR COUNSEL A/W
MISS.BINDU.U, ADVOCATE)
AND:
1. THE JOINT CHIEF CONTROLLER OF EXPLOSIVES,
SOUTH CIRCLE, CHENNAI,
NO.140, RUKMINI LAKSHMIPATHY SALAI,
EGMORE, CHENNIA-60008.
2. THE DIRECTOR GENERAL AND INSPECTOR OF POLICE,
NRUPATHUNGA ROAD,
BANGALORE-560 001.
3. THE COMMISSIONER OF POLICE,
INFANTRY ROAD,
BANGALORE-560 001.
4. THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES,
MANGALORE SUB CIRCLE OFFICE,
MANGALORE.
5. M/S K.C.SADASHIVAIAH AND SONS,
NO.9/4, MAMULPET, BANGALORE URBAN,
KARNATAKA - 560 002.
BY ITS PROPRIETOR.
6. SRI. A. JEYACHANDRA,
AGED MAJOR,
C/O MANJU TRADING COMPANY,
52/38, COTTON PET, BANGALORE,
BANGALORE URBAN,
KARNATAKA - 560 002.
7. SRI K.S. MUTHURAJAN, AGED MAJOR,
NO.170/6, SULTHANPET,
BANGALORE, BANGALORE URBAN,
KARNATAKA - 560 002.
8. M/S BASAVARAJAPPA AND SONS
NO.84/71, OLD MARKET ROAD,
SHIVAJINAGAR,
BANGALORE, BANGALORE URBAN
KARNATAKA-560 009.
4
BY ITS PROPRIETOR.
9. B.GANAPATHI BHANDARKAR AND SONS
NO.598, AVENUE ROAD,
BANGALORE, BANGALORE URBAN,
KARNATAKA - 560 002.
BY ITS PROPRIETOR.
10. SRI.T.G.PRABHAKAR GUPTA, AGED MAJOR,
NO.13/5, MAMULPET,
BANGALORE URBAN,
KARNATAKA - 560 002.
11. SRI.ASHWATH NARYAN SHETTY, AGED MAJOR,
8/9, JOLLY MOHALLA,
BANGALORE-560 053.
12. SRI.ASHWATH NARAYANA SHETTY, AGED MAJOR,
NO.6-26, AVENUE ROAD,
BANGALORE-560 002.
13. G.MOHANRAJ,
AGED ABOUT 50 YEARS,
S/O LATE M.GOPALAPPA,
R/AT NO. 153, II FLOOR,
SULTHAN PET MAIN ROAD,
BANGALORE - 560 053.
AMENDMENT CARRIED OUT
V.C.O DATED 27.10.2014.
...RESPONDENTS
(BY SRI.TIMMANNA BHAT DEVATHE, CGC FOR R1 & R4;
SRI.B.V.KRISHNA, AGA FOR R2 & R3;
SMT.R.RADHA AND
SRI.R.YOGESH, ADVOCATE FOR R5, R7 AND R9;
SRI.JANARDHANA G, ADVOCATE FOR R8;
SRI.K.R.ASHOK KUMAR, ADVOCATE FOR R10;
SMT.REVATHY ADINATH NARDE, ADVOCATE FOR R11 & 12;
SRI.B.N.ANANTHANARYAN, ADVOCATE FOR R13)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 27.9.2013 PASSED BY THE R-2 VIDE ANNX-F, F1
TO F9 AND ETC.,
5
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Petitioners are engaged in the business of crackers &
fireworks items, with the special permissions and Trade
Licenses obtained at the hands of competent authorities.
They claim to have been in the business since years. They
are grieving before the Writ Court against the order dated
27.09.2013 whereby, the second respondent-Director
General of Police has negatived their statutory appeals and
thereby upheld the order dated 12.04.2012 made by the
third respondent-Commissioner of Police withdrawing 'No
Objection Certificates'. The net effect of the impugned order
is that the petitioners cannot run the said business in the
subject congested area of Bangalore city.
2. After service of notice, the official respondents
having entered appearance through their respective
advocates, resist the Writ Petition making submission in
justification of the impugned order and the reasons on
which it has been constructed. Learned Addl. Govt.
Advocate representing the respondent Nos.2 & 3, has also
filed a detailed Statement of Objections, opposing the Writ
Petition, after serving a copy thereof on the counsel for the
petitioners well in advance.
3. Having heard the learned counsel for the parties
and having perused the Petition Papers, this Court declines
indulgence in the matter for the following reasons:
(a) AS TO OBSERVATIONS OF THE APEX COURT:
(i) In ARJUN GOPAL vs. UNION OF INDIA1 what the
Hon'ble Supreme Court with all concerns/constraints
observed needs to be kept in view. It said amongst other
things that, extensive public awareness campaigns should
be undertaken by the Central Government, State
Governments, schools, colleges, etc., to inform & alert the
public at large about the harmful effects of firecrackers. It
needs no research to know that the production,
transportation & bursting of crackers (including those with
reduced emission such as green crackers) are detrimental to
the 'mother nature', in varying degrees & kind. Firecrackers
apart from being health hazard and risk to life & limb, cause
AIR 2018 SC 5731
enormous environmental pollution; in dense cities like
Bangalore that are plagued with ceaseless sound pollution,
the bursting of crackers would only add, to the existing
woes.
(ii) The following observations from the paper,
'Personal exposures to particulate matter<2.5 µm in mass
median aerodynamic diameter (PM2.5) pollution during the
burning of six most commonly used firecrackers in India'2
have been profitably reproduced below:
"...During the Diwali festival in India, 30%-
40% increase in the cases of wheezing,
respiratory infections, exacerbation of
bronchial asthma, and chronic obstructive
pulmonary disease (COPD) have been
reported...Children are the most vulnerable
population to the harmful effects of
firecrackers air pollution since their lungs are
growing and guided by a complex and
precise time sequence of chemical
messages. Many of these air pollutants
interfere with this pathway making them
vulnerable to develop infections, asthma,
and overall poor lung
development...Furthermore, their airway
epithelium is more permeable to air
pollutants, has a poor defense against PM as
compared to adults, and has differential
Shah, R., Limaye, S., Ujagare, D., Madas, S., & Salvi, S. 'Personal
exposures to particulate matter <2.5 µm in mass median aerodynamic
diameter (PM2.5) pollution during the burning of six most commonly used
firecrackers in India.' Lung India : Indian Chest Society, 36(4), pp 324-329
ability to metabolize and detoxify
environmental agents. The harmful effects of
the pollutants emitted from firecrackers are
not just restricted to respiratory illnesses but
also have a significant effect on
cardiovascular health as well."
The Apex Court too in ARJUN GOPAL, supra at paragraph 29
observed as under:
"From the aforesaid it can be gathered that
when PM 2.5 crosses the normal limits, even
if it remains in the air for few days, it
becomes severe health hazard thereby
causing serious health problems.
Unfortunately such problems are virtually
irreversible, which means that a person
whose health gets affected because of this
particulate has a long suffering. In view
thereof, argument in opposition that air
quality that gets worsened during Diwali
remains only for few days would be of no
consequence as even in few days it causes
severe harm to the health of the people, that
too for prolonged duration."
(iii) However, the above is not the end of matter, several
cases are reported as to 'ocular firecracker injuries' in
children aged twenty & below. Those who have lost their
eyes, the world becomes blind to them for the rest of their
lives. This would make the Makers of the Constitution to
shiver in their grave. There cannot be a greater violation of
the right to life, limb & liberty.
The real photographs clicked of such injuries caused by
bursting of firecrackers are reproduced to understand the
enormity of pain the victims would undergo:
The above pictures have been taken from the very same
research paper at footnote 3.
The following observations from a paper, 'Firecracker eye
injuries during Deepavali festival: A Case Series' is
profitably reproduced as under:
"...The injuries reported ranged from
conjunctival or corneal burns to globe
rupture...Most of the patients were below the
age of 20 years. Unlike the findings in some
studies where victims were mostly those who
were actively involved in igniting the
firecracker, more than half of the victims in
our study were bystanders...Many of the
injuries were caused as a result of negligence
of those igniting the firecrackers...In one
instance, the patient suffered severe facial
and bilateral ocular injuries when he
attempted to ignite a homemade device made
up of un-burnt firecracker powder... Ocular
injuries by firecrackers are common during
'Deepavali'. Lack of knowledge about safety
measures or not following them was a reason
for eventualities. Absence of parental
supervision, and failure to maintain safe
distance from firecrackers were contributory
in some cases of injuries. The other major
cause of injury is the common practice of
igniting firecrackers in the streets thus
exposing passersby to injury..."
Kumar, R., Puttanna, M., Sriprakash, K. S., Sujatha Rathod, B. L., &
Prabhakaran, V. C. 'Firecracker eye injuries during Deepavali festival: A Case
Series' Indian journal of ophthalmology, 58(2), pg 157-159, (2010).
(iv) Indisputably the ill effects of firecrackers cause
irreversible damage to the environment. Apart from infants,
expectant mothers & patients (more particularly those
having heart ailment & high blood pressure) even animals &
birds too feel the violence due to bursting of crackers. What
right humans have to perpetrate acts of violence when our
scriptures (Brihadaranyaka Upanishad 1.4.14) edict:
'sarve bhavantu sukhinaha,
sarve santu niraamayaha...'
It nearly translates to: let all people be happy and all
creatures be free from affliction. It is high time that the civil
society accelerates its positive response to the inner voice of
Apex Court of country as mentioned above. It is in this
background, the cases relating to grant, renewal, transfer,
denial & rescinding of Explosive Licenses, have to be
approached. Added, the alarming rate of climate change is
caused due to the unsustainable and environmentally
harmful patterns of life, sustainability in this regard must
now more than ever before factor into decision making.
(b) AS TO FACT MATRIX: With the above, let me
come to the foundational facts of this case. All the
petitioners have been running the business in crackers &
fireworks items with the licenses granted by the competent
authorities under the provisions of the Explosives Act, 1884
& the Rules promulgated thereunder. They also possess the
Trade Licenses granted, and renewed periodically by the
City Corporation, is not in dispute. Now these licenses have
been put to peril by the impugned orders on the ground that
the shops of the petitioners are situate in congested areas
of the city, and that any fire mishap arising from the
crackers & fireworks cannot be easily handled & abatsed,
because of difficulty of fire engines moving in the narrow
lanes that are thickly congested & over populated. Any fire
mishap in these areas would transcend the locality and will
have chain reaction, cannot be disputed. It is on this
premise the impugned orders have been founded. The
Commissioner of Police having looked into the matter, has
taken the decision way back in April 2012 i.e., a little more
than a decade ago. The Director General & Inspector
General of Police who happens to be Head of Police Wing in
the State, too having considered the matter, has negatived
the appeals of petitioners with the participation of
stakeholders. The impugned orders accord with the policy
considerations of the State as promulgated in the
Government Orders dated 11.04.1980 and 23.09.1981.
(c) The answering respondents who are high ranking
officials of All India Service, happen to be the statutory
authorities under the Explosives Act, 1884. The relevant
part of Rule 115 of the Explosive Rules, 2008 providing for
the cancellation of 'No Objection Certificate' reads as under:
"115. Cancellation of no objection
certificate.--(1)
No objection certificate granted under rule
103, may be cancelled by the authority issuing
the same or authority superior to it, if such
authority is satisfied, that--
(c) the cancellation of no objection
certificate is absolutely necessary for public
peace and safety:
Provided that before cancellation of the no
objection certificate, the licensee shall be given a
reasonable opportunity of being heard."
The very text & context of this Rule shows the concern of
the Rule Maker for public peace & safety. Two statutory
authorities of high ranking, one in original jurisdiction and
the other in appellate have looked into the matter with the
participation of stake holders. The Appellate Authority has
concurred with the views of original authority. After hearing
the parties and after perusing the material on record has
taken the impugned decisions that are not easily vulnerable
for challenge on the ground urged here. A Writ Court
examining these quasi judicial orders under restrictive
supervisory jurisdiction constitutional vested under article
227, is not a court of appeal, needs to be kept in mind. The
focal point of Judicial Review is the decision making process,
and not the decision itself. The doctrine of 'separation of
powers' which is a Basic Feature of the Constitution vide
INDIRA NEHRU GANDHI vs. RAJ NARAIN4, expects the
constitutional courts to show due deference to the decisions
of the executive, in the absence of an exceptional case
being made out for indulgence. The factual foundation on
which the impugned orders are structured cannot be readily
AIR 1975 SC 2299
demolished by the courts exercising such limited supervisory
jurisdiction vide SADHANA LODH vs. NATIONAL INSURANCE
COMPANY LIMITED5. What Justice Neely observed in
MONONGAHELA POWER CO. vs. PUBLIC SERVICE
COMMISSION6 is worth mentioning:
"I have very few illusions about my own
limitations as a judge and from those
limitations I generalize to the inherent
limitations of all appellate courts reviewing
rate cases...It is not the function of a judge
to act as a superboard, or with the zeal of a
pedantic schoolmaster substituting its
judgment for that of the administrator."
(d) AS TO VIOLATION OF FUNDAMENTAL RIGHT: It
hardly needs to be stated that the explosive substances
being 'res extra commercium' like the liquor, poison, etc.,
no citizen can claim an unrestricted fundamental right under
Article 19(1)(g) of the Constitution to carry on trade &
business of the kind, vide KHODAY DISTILLEREIS vs. STATE
OF KARNATAKA7. It is difficult to countenance the vehement
submission of learned Sr. Advocate Smt.Pramila Nesargi
(2003) 3 SCC 524
276 S.E. 2d 179 (1981)
1995 SCC (1) 574
appearing for the petitioners that her clients are
discriminated qua others similarly circumstanced in general
and private respondents herein in particular. If the
petitioners have to shift their 'apple carts' to safer areas,
quitting the lanes in question, other similarly circumstanced
businessmen cannot be permitted to cling on to the same
area. What applies to goose applies to gander, as rightly
contended by the counsel for the State. Even otherwise, in
matters like this, the doctrine of equality enshrined in Article
14 cannot be readily pressed into service, unmindful of
enormous hazards that would possibly put the public at
large to, should a section of traders be permitted to
continue their firecracker business in the areas in question.
The interest of the public would be more served by
petitioners & other traders shifting their said business to
safer areas than being permitted to continue in the same
areas in question. The observations of the National Green
Tribunal in Original Application No. 249/2020 between
TRIBUNAL ON ITS OWN MOTION vs. MINISTRY OF
ENVIRONMENT, FOREST & CLIMATE CHANGE & ORS decided
on 11.12. 2020 have been profitably reproduced as under:
"As already laid down by the Hon'ble
Supreme Court, discussed in the order of
this Tribunal dated 09.11.2020, the laid
down air quality and noise level norms
under the Air (Prevention and Control of
Pollution) Act, 22 1981 and noise level
under the Environment (Protection) Act,
1986 have to be maintained to give
effect to the principle of Sustainable
Development of which Precautionary
principle is a part. Since mere passing of
order does not ensure compliance,
necessary coercive measures have to be
taken. Even if there are other sources of
pollution and meteorological conditions
contributing to the air pollution, it does
not justify ignoring acknowledged
pollution by bursting of fire crackers
adding to the air and noise pollution,
beyond statutory norms. Right to
business is not absolute. There is no
right to violate air quality and noise level
norms. This being a crime under the law
of the land cannot be a right. Exceeding
of the norms, adversely affect the health
and cannot be allowed. Nobody has a
right to carry on business at the cost of
health of others. All licenses already
given or which may be given are
inherently subject to overriding
requirement of preventing damage to
the environment and the public health."
(e) There is yet another aspect of the matter, i.e.,
burning of firecrackers as part of 'Diwali' celebrations and
the right to do business in such substances being
constitutionally guaranteed under Article 19(1)(g) which is
stressed by the counsel for the petitioners; this aspect has
been fully addressed by the Apex Court at paragraphs 35 &
36 of ARJUN GOPAL, supra as under:
"35. It may be stressed that in Vellore
Citizens' Welfare Forum case, this Court had
banned the tanneries when it was found that
they were causing immense damage to the
environment. Thus, environment protection,
which is a facet of Article 21, was given
supremacy over the right to carry on business
enshrined in Article 19(1)(g). We state at the
cost of repetition that right of health, which is
recognised as a facet of Article 21 of the
Constitution and, therefore, is a fundamental
right, assumes greater importance. It is not
only the petitioners and other applicants who
have intervened in support of the petitioners
but the issue involves millions of persons
living in Delhi and NCR, whose right to health
is at stake. However, for the time being,
without going into this debate in greater
details, our endeavour is to strive at balancing
of two rights, namely, right of the petitioners
under Article 21 and right of the
manufacturers and traders under Article
19(1)(g) of the Constitution.
36. Almost for the same reasons, argument
predicated on Article 25 of the Constitution
need not detain us. We proceed on
the assumption that burning of crackers
during Diwali is a part of religious practice.
The question is as to whether it should be
allowed to be continued in the present form
without any regulatory measures, as a part of
religious practice, even if it is proving to be a
serious health hazard. We feel that Article
25 is subject to Article 21 and if a particular
religious practice is threatening the health and
lives of people, such practice is not to entitled
to protection under Article 25. In any case,
balancing can be done here as well by
allowing the practice subject to those
conditions which ensure nil or negligible effect
on health."
In the above circumstances, this Writ Petition being
devoid of merits, is liable to be dismissed and accordingly, it
is, costs having been made easy.
The apprehension of the petitioners that with this
judgment, their other business in the same premises may
be disturbed by the official respondents stands allayed by
the State Counsel's submission that the impugned orders
that are now upheld being confined to the business of
firecrackers, have nothing to do with other business being
carried on by the petitioners.
Before parting with this case this court places on
record its deep appreciation for the able research and
assistance rendered by its official Law Clerk cum Research
Assistant, Mr. Faiz Afsar Sait.
Sd/-
JUDGE
cbc
