Kerala High Court

Salina Thomas vs Land Revenue Commissioner on 22 March, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

 MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                   WP(C).No.6400 OF 2021(Y)


PETITIONER:

              SALINA THOMAS, AGED 64 YEARS
              VEMBIL HOUSE, PALLISSERY,
              ANNAMADA.P.O, THRISSUR,
              KERALA-680741.

              BY ADV. SHRI.P.DEEPAK

RESPONDENTS:

     1        LAND REVENUE COMMISSIONER
              PUBLIC OFFICE COMPOUND, MUSEUM JUNCTION,
              VIKAS BHAVAN P.O,
              THIRUVANANTHAPURAM-695033.

     2        DISTRICT COLLECTOR, COLLECTORATE,
              CIVIL STATION, AYYANTHOLE,
              THRISSUR-680003.

     3        THE ADDITIONAL DISTRICT MAGISTRATE,
              COLLECTORATE, THRISSUR-680003.

              BY GOVERNMENT PLEADER SRI. G. RANJITHA

     THIS WRIT PETITION (CIVIL) HAVING COME UP           FOR
ADMISSION ON 22.03.2021, THE COURT ON THE SAME           DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.6400 of 2021               ..2..




                       P.B.SURESH KUMAR, J.
              -----------------------------------------------
                      W.P.(C) No.6400 of 2021
              -----------------------------------------------
           Dated this the 22nd day of March, 2021


                           JUDGMENT

Petitioner obtained during 2003, a licence in Form

20 of the Explosives Rules, 1983 to manufacture 5 Kgs of gun

powder and 10 Kgs of fireworks. The said licence was being

renewed from time to time, and after the Explosives Rules,

1983 was replaced by the Explosives Rules, 2008(the Rules),

the licence was being renewed treating the same as one issued

in Form LE-1 of the Explosives Rules, 2008. The latest renewal

of the licence was for the period upto 31.03.2016. On

10.02.2016, the petitioner preferred an application for renewal

of the licence again and the said application was rejected by

the licensing authority namely, the third respondent on

15.03.2017. The petitioner preferred an application for W.P.(C) No.6400 of 2021 ..3..

reconsideration of the said order and the said application was

rejected by the third respondent as per Ext.P4 order holding

that there is no access to the licensed premises for taking

vehicles during emergency. The premises of the petitioner does

not have vehicular access. As such, when the third respondent

insisted that there shall be vehicular access to the licensed

premises, the petitioner has furnished before the third

respondent, a letter of the adjoining land owner to the effect

that he has no objection in taking vehicles to the licensed

premises through his land in the event of an emergency. In

Ext.P4 order, the third respondent took the view that the

consent letter of the adjoining land owner cannot be acted

upon since the said land is lying 2 feet down the road level.

The petitioner challenged Ext.P4 order in appeal before the

appellate authority namely the first respondent. In the said

appeal, the first respondent found that the requirement in

terms of the conditions of licence is only that there shall be

free access to the premises for the authorities to ensure

compliance of the provisions of the Explosives Act and the W.P.(C) No.6400 of 2021 ..4..

Rules made thereunder and consequently remitted the

application preferred by the petitioner for fresh decision by the

third respondent after examining the question whether access

to the licensed premises through the adjoining land with the

consent of its owner is sufficient compliance of the

requirement concerning access. Ext.P5 is the order passed by

the first respondent in this regard. Pursuant to Ext.P5 order,

the third respondent passed Ext.P6 order rejecting the

application of the petitioner for renewal of the licence again,

holding that the land adjoining the licensed premises belongs

to five persons and only one among them has given consent

for access to the licensed premises through that land. Ext.P6 is

under challenge in the writ petition.

2. Heard the learned counsel for the petitioner as

also the learned Government Pleader.

3. It is seen that the licence referred to in the writ

petition is one issued for manufacturing fireworks upto a

maximum quantity of 10 Kgs and gun powder upto a maximum

quantity of 5 Kgs at a time. As noted, the petitioner was W.P.(C) No.6400 of 2021 ..5..

holding the licence since 2003 and the same was renewed

upto 31.03.2016. There is no case for the official respondents

that the petitioner has violated conditions of licence at any

point of time all these years. Ext.P1 is the latest order of

renewal issued by the competent authority on 20.06.2011. The

said renewal was after the introduction of the Explosives Rules,

2008. The impediment concerning access to the licensed

premises was not raised on the previous occasions when the

petitioner applied for renewal of licence. Be that as it may. As

noted by the first respondent, the only requirement concerning

access in the Explosives Rules, 2008 as fas as a licence issued

in Form LE-1 is concerned, is the requirement in terms of

condition No.19 in the conditions of LE-1 licence which reads

thus:

"Free access to the licensed premises shall be given at all reasonable times to any inspecting or sampling officer and every facility shall be afforded to the officer for ascertaining that the provisions of the Act and the Rules and the safety conditions are duly observed".

Neither the first respondent nor the third respondent has a W.P.(C) No.6400 of 2021 ..6..

case that licensed premises does not conform to condition

No.19 referred to above. In the absence of any prescription in

the Explosives Act, 1884 and in the Rules made thereunder

that the licensed premises shall have vehicular access,

according to me, want of vehicular access to the licensed

premises cannot be a reason to reject an application for

renewal of licence. That apart, Rule 112 of the Rules is the Rule

relevant in the context of considering the application for

licence. The Rule 112 reads thus:

"112. Renewal of licence.--(1) Every licence except the licences granted for a specific period not exceeding one year, shall be renewable for a maximum period of five financial years ending on the 31st March.

(2) Every application under sub-rule (1) for renewal of the licence shall be accompanied by the following documents, namely :--

(a) application in Form RE- 1;

(b) the original licence;

(c) prescribed renewal fee.

(3) A licence may be renewed by the authority empowered to grant such licence :

Provided that a licence which has been granted by the Chief Controller may be renewed without any alteration by a Controller duly authorised by the Chief Controller in this W.P.(C) No.6400 of 2021 ..7..

behalf:

Provided further that a licence, which has been granted by the District Magistrate, may be renewed without any alteration by a Sub-Divisional Magistrate or an Executive Magistrate duly authorised by the District Magistrate in this behalf.

(4) Every application for the renewal of a licence shall be made so as to reach the licensing authority or the authority empowered to renew the licence on or before the date on which the licence expires.

(5) If the application for renewal reaches the renewing or licensing authority on or before the date of expiry, the licence shall be deemed to be in force until such date as the licensing authority renews the licence or until an intimation that the renewal of the licence is refused has been communicated to the applicant.

(6) The same fee shall be charged for the renewal of a licence for each year as for grant thereof:

Provided that if the renewal application together with complete documents is received by the licensing authority after the date of expiry but not later than six months from the date of expiry; and if the licensing authority is satisfied that such delay is beyond the control of the licensee, the licence may, without prejudice to any other action that may be taken in this behalf, be renewed on payment of penalty fee which is equal to one year's licence fee.

(7) In case of an application for the renewal of the licence for a period of more than one year at a time, W.P.(C) No.6400 of 2021 ..8..

the fee prescribed under proviso of sub-rule (6), if payable, shall be paid only for the first financial year of renewal.

(8) Every licence granted under these rules other than a licence granted for a specified period shall be renewable for a maximum period of five years where there has been no contravention of the Act or these rules framed there under or of any condition of the licence so renewed.

(9) Where a licence renewed for more than one financial year is surrendered before its expiry, the renewal fee paid for the unexpired portion of the licence shall be refunded to the licensee:

Provided that no refund of renewal fee shall be made for any financial year during which-

(a) the licensing authority received the renewed licence for surrender;

(b) any explosive is received or stored on the authority of the licence.

(10) No licence shall be renewed if the application for renewal is received by the licensing or renewing authority after six months of the date of its expiry. An application for renewal received after six months of the expiration of the licence shall be considered as an application for a new licence.

(11) When a licence is renewed by the Chief Controller or a Controller, an intimation to that effect shall be sent to the District Magistrate concerned and when a licence is renewed by the District Magistrate, W.P.(C) No.6400 of 2021 ..9..

intimation to that effect shall be sent to the Controller having jurisdiction"

The Rule aforesaid does not confer on the third respondent

authority to reject an application for renewal on the ground

mentioned in Exts.P4 and P6 orders. On the other hand, the

scheme of the extracted Rule is that if the application for

renewal conforms to the requirements of the Rule, the same

shall be renewed. The third respondent has no case in Exts.P4

and P6 orders that the application for renewal of licence

submitted by the petitioner was not in accordance with Rule

112 of the Rules. In the said view of the matter, Ext.P6 order is

liable to be interfered with.

In the result, the writ petition is allowed, Exts.P6