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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M.NAGAPRASANNA, J.
Smt. Kalavathi W/o Manjunatha M. – Appellant
Versus
Director General And Inspector General Of Police Karnataka State - Respondent
Writ Petition No. 24195 of 2023 (GM-RES)
Decided on : 06-11-2023
Fireworks License - Explosives Act, Explosives Rules - The court examines the provisions of the Explosives Act and the Explosives Rules. It finds that the license granted by the Deputy Commissioner is contrary to law as the Deputy Commissioner does not have the power to grant a license to store and sell 1000 kgs of fireworks. The court restricts the license to store up to 600 kgs of fireworks/sparklers, in line with the Deputy Commissioner's authority. The court also sets out safety measures that must be followed by licensees.
Fact of the Case:
The petitioner seeks quashment of an order cancelling their license to sell firecrackers. The Deputy Commissioner granted the license without the authority to do so. The petitioner argues that they were not given an opportunity to be heard before the cancellation. The Deputy Solicitor General of India inspected the premises and found certain lacunae. The court restricts the license to store up to 600 kgs of fireworks/sparklers, which the Deputy Commissioner is authorized to grant. The petitioner is given the opportunity to correct the lacunae and continue their business.
Finding of the Court:
The court examines the provisions of the Explosives Act and the Explosives Rules. It finds that the license granted by the Deputy Commissioner is contrary to law as the Deputy Commissioner does not have the power to grant a license to store and sell 1000 kgs of fireworks. The court criticizes the Deputy Commissioner for granting licenses without the necessary authority and emphasizes the need for caution in granting licenses. The court restricts the license to store up to 600 kgs of fireworks/sparklers, in line with the Deputy Commissioner's authority. The court also sets out safety measures that must be followed by licensees.
Ratio Decidendi: The Deputy Commissioner does not have the authority to grant a license to store and sell 1000 kgs of fireworks. Licenses should be granted within the limits of the authority given by the law. Safety measures must be followed by licensees.
Result: The writ petition is disposed. The petitioner is permitted to correct the lacunae in the premises within 24 hours. A compliance report must be submitted to the State Government before the business can continue. The order is separate from the corrections of the lacunae indicated in the inspection report.
ORDER :
The petitioner – proprietor of a business is before this Court seeking quashment of an order dated 25.10.2023 passed by respondent No.5 – Deputy Commissioner and a direction by issuance of the writ in the nature of mandamus restraining the respondents – authorities from interfering with the petitioner’s business of sale of fire crackers, during the subsistence of valid license at the schedule premises.
2. Heard Sri Sharath S. Gowda, learned counsel for petitioner, Sri K.S.Harish, learned Additional Government Advocate for respondent Nos.1 to 7 and Sri H. Shanthi Bhushan, learned Deputy Solicitor General of India representing respondent No.8.
3. The petitioner claims to be a recipient of license of a premises in survey Nos.44/1 and 44/2 in Veerenahalli Main Road, Bidarahalli Hobli, Bengaluru East Taluk. It is her further claim that he has secured No Objection from all quarters in terms of Rules 101 and 102 of the Explosives Rules, 2008 (for short ‘the Rules’). The petitioner later applies for license under Section 105 of the Rules for a changed premises. The Deputy Commissioner appears to have directed securing No Objection from all the concerned departments. After conducting spot inspection, the license was granted in favour of the petitioner. An untoward incident takes place on 07.10.2023 in a fire cracker godown at Attibele village, Anekal Taluk, Bengaluru. Based upon the said incident, several licenses come to be cancelled, one of which is that of the petitioner. It is this action that has driven the petitioner to this Court in the subject petition.
4. Learned counsel appearing for the petitioner contends that before cancellation of license, no opportunity of hearing is afforded to the petitioner. While granting permission or issuing NOC all the necessary inspection and precautionary measures were checked and found to be present in the premises of the petitioner. He would submit that merely because an untoward incident happens on 07.10.2023, every license holder is punished.
5. Sri Shanthi Bhushan H., learned Deputy Solicitor General of India representing respondent No.8 was directed to accept notice and was further directed to cause an inspection of the property of the petitioner. The Deputy Solicitor General of India through the Controller of Explosives has undertaken the inspection of the premises of the petitioner and filed his report. The report projects the following lacunae:
“Licence No.Licensed in LE-5:MAGA(5) CR/137/2022-2023 Valid upto 31.08.2028. Date of Inspection 05.11.2023
Fireworks shop may be allowed to operate with following conditions
1. Stock registered shall be maintained.
2. Two numbers of fire extinguishers (DCP Type – 10 Kg each) along with two numbers of sand buckets and water buckets shall be provided in the premises.
3. Fireworks shop shall have area within 9 sq. M to 25 sq.M in accordance to rule 83(2) of Explosives Rules 2008.
4. Fireworks shop granted by authorities other than Controller of Explosives shall be Schedule IV Part 1 Point 5(b).
5. Fireworks shop granted by District Magistrate/Deputy Commissioner/Commissioner of Police shall grant license accomplishing suitable plan.
Please refer Rule 112 of Explosives Rules 2008 “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.”
(Emphasis added)
The report further indicates that if the lacunae projected in the report is set right, permission can be granted. The learned DSGI would submit that the issue is that the very license issued is contrary to law. It is his contention that the Deputy Commissioner has granted licence to store and sell fireworks/crackers not exceeding 1000 kgs. which power is unavailable to the Deputy Commissioner.
6. The learned Government Advocate appearing for the State though would seek to justify that
AI
The Deputy Commissioner does not have the authority to grant a license to store and sell 1000 kgs of fireworks. Licenses should be granted within the limits of the authority given by the law. Safety ....
Administrative authorities must duly consider recommendations from relevant bodies and allow applicants a chance to be heard before denying licenses.
Primary authority is not vested with powers to see as to whether there is a contravention of the provisions of the Act and the Rules, 2008.
Cancellation of a license without opportunity for a hearing or stated reasons violates procedural fairness as required by the Explosives Act and Rules.
Temporary magazines suffice for fireworks in temporary events; prior refusals set aside with conditions.
The court ruled that temporary safety measures for fireworks displays are sufficient, and refusals to grant permission must be substantiated with valid reasons.
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