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2020 Supreme(Ker) 806
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. MANIKUMAR, SHAJI P. CHALY, JJ.
Anvar Sadik S/o Late Shahul Hameed – Appellant
Versus
Additional District Magistrate, Kollam – Respondent
W.A. No. 1477 of 2020
Decided On : 13-11-2020
Advocate Appeared:
For the Appellants : Sri. T.A. Shaji, Sri. S. Abhilash Vishnu, Sri. Athul Shaji, Sri. Anwin John Antony.
For the Respondents: Sri. Tek Chand, Sri. B. Mohanlal.
IMPORTANT POINTS
An emergency exit ‘from the open air’ exemplifies the intention of the rule making authority in the larger interest and the safety of the public also, by which it means there should be clear open air to carry out the rescue operations in case of emergency and not an open air with any kind of hindrances causing obstruction to the movement of fire fighting equipments.
Headnote:
Explosives Rules, 2008- Rule 83;; The Kerala High Court Act, 1958- Section 5;; The Constitution of India- Article 226- -The emergency exit of the building is opening towards the toilet of the nearby Mosque and hence, Rule 83(4)(a) of the Explosives Rules is not complied with-The provisions of the Rules shall be given strict interpretation in view the danger involved in fire crackers being an explosive as defined under Section 4(d) of the Explosives Act, 1884
Statement of facts:
The writ petition was dismissed holding that Ext.P17 order dated 02.03.2020 of the Additional District Magistrate, Kollam declining licence for storing and selling fancy fire works as per the provisions of Rule 83 of the Explosives Rules, 2008 does not suffer from any illegality or vice of arbitrariness liable to be interfered with by the writ court. It is, thus, challenging the correctness and legality of the said judgment of the learned single Judge, this writ petition is filed.
Finding of the court:
The Fire Officer has given a report basically stating that through the road in front of the shop, fire fighting can be carried out in case of any emergency and also that the shop was fitted with necessary fire equipment and the shop room is not having any electrical switch board-No grounds are made out by the appellant to interfere with the judgment of the learned single Judge in an intra-court appeal filed under Section 5 of the Kerala High Court Act, 1958, there being no illegality in exercising the discretionary power conferred under Article 226 of the Constitution of India.
Result: Writ Appeal Dismissed
JUDGMENT :
SHAJI P. CHALY, J.
1. The captioned writ appeal is filed by the petitioner in the writ petition challenging the judgment dated 10.11.2020 of the learned single Judge in W.P. (C) No. 8927 of 2020, whereby the writ petition was dismissed holding that Ext.P17 order dated 02.03.2020 of the Additional District Magistrate, Kollam declining licence for storing and selling fancy fire works as per the provisions of Rule 83 of the Explosives Rules, 2008 (‘Rules 2008’ for short) does not suffer from any illegality or vice of arbitrariness liable to be interfered with by the writ court. It is, thus, challenging the correctness and legality of the said judgment of the learned single Judge, this writ petition is filed.
2. The subject issue relates to the rejection of an application submitted by the appellant seeking licence for the storage and sale of 450 kgs. of fancy fireworks items and Chinese crackers in the building in which the petitioner's father was granted licence to carry on the said business.
3. Brief material facts for the disposal of the appeal are as follows:
According to the appellant, he along with his father was running a shop selling fancy fireworks items and Chinese crackers for the past 35 years in the building in which the appellant's father was granted with a licence which was valid till 31.03.2020. Appellant's father died on 09.01.2019 and thereupon, the licence was surrendered in accordance with the Rules, 2008, so as to secure a fresh licence to conduct the business in the very same shop room for which application in form AE-5 as per Rules, 2008 was submitted along with consent letters from other legal heirs. Though the Tahsildar and the District Fire Officer, after due enquiries, forwarded the report favourably recommending the issue of licence after ensuring the security parameters, the District Police Chief, Kollam made a report stating that it was not advisable to issue licence. Thereupon, relying on the report of the District Police Chief, the Additional District Magistrate i.e. the first respondent, rejected the application made by the appellant. The said rejection was challenged by filing W.P. (C) No. 24318 of 2019, which was disposed of as per Ext.P16 judgment dated 28.10.2019 directing the first respondent to pass fresh orders after considering the issue as to whether the premises offered by the appellant is one conforming to Rule 83 of the Rules, 2008. The Additional District Magistrate, in accordance with the directions issued by this Court in the earlier round of litigation as specified above, passed an order dated 02.03.2020 rejecting the application for licence stating that the requirement under Rule 83(4)(a) of the Rules, 2008 has not been complied with by the appellant disabling the appellant to secure license under Rules, 2008. It was challenging the veracity and legality of the said order, the writ petition leading to the appeal was preferred by the appellant. The learned single Judge, as per the judgment impugned, dismissed the writ petition stating that since the Additional District Magistrate has stated that the rear door of the shop is opening towards a toilet, it cannot be considered as an opening to an open space and therefore, it was not satisfying the requirements of Rule 83(4)(a) of the Rules, 2008.
4. The paramount contentions advanced by the appellant in this appeal is that the learned single Judge failed to consider the fact that as per Ext.P16 judgment, almost all the objections raised earlier were set at naught by an inter party judgment and the matter was remanded only for the purpose of examining whether the shop in question is conforming to Rule 83 of the Rules, 2008. According to the appellant, the only requirement of the Rule is that the emergency exit shall open to an open air and the said condition is fully met. It is also submitted that the appellant had produced photographs of the area showing the distance and asserted that the distance between the toilet and the emergen
