W.P.(C) No.18403 of 2016

26.10.2016

Heard learned Senior counsel Mr. Milan Kanungo for the petitioners and learned

Addl. Government Advocate Mr. Dhala.

The petitioners are temporary licensee to deal with fire crackers during the e

nsuing Diwali Festival. Originally, they have come up with this writ petition to direct the op

posite party no.2, i.e. Deputy Commissioner of Police, Cuttack to grant license to the petitio

ners to operate their shops in their place of business in and around Choudhury Bazaar-nandisah

i along with permanent shop keepers, or in the alternative direct the opposite party no.2 to a

llow the petitioners to operate their shops in front of the Saheed Bhawan, Cuttack. Initially,

it was challenged that the authorities do not have the jurisdiction to impose any particular

condition like specifying the place, where the temporary stalls will be set up for sale of fir

e crackers. The learned Senior counsel for the petitioners seriously disputed the jurisdiction

of the authorities to fix the place for possession and sale of fire crackers in any manner. H

owever, learned Addl. Government Advocate draws attention of the Court to Rule 84 of the Explo

sives Rules, 2008 and submits that the District Magistrate has the jurisdiction to issue tempo

rary license for possession and sale of firework in a temporary shop subject to the following

conditions, namely,

1. The fireworks shall be kept in a shed made of non-flammable material, which is closed and s

ecured so as to prevent unauthorized persons having access thereto.

2. The sheds for possession and sale of fireworks shall be at a distance of at least three met

res from each other and fifty metres from any protected work.

Sub-Rule (43) of Rule 2 of the Explosives Rules, 2008 provides the definition of prot

ected works. It includes building or structure in which persons dwell, work or assemble, coll

ege, school and hospital, theatre, cinema house, shop, market, factory, place of worship, plac

e of storage of hazardous substances, highway or public road etc. Thus, it is apparent that t

he area in which the petitioners want to sale their firework temporarily in

Choudhury Bazar-nandi Sahi comes within the definition of protected area as per Rule 2(43) of

the aforesaid Rules. So, the contention raised by the learned Senior Advocate for the petition

er is incorrect.

As far as the alternative relief is concerned, the learned senior counsel for

the petitioners submits they may be allowed to make representation before the opposite party n

o.2 to allow them to operate their shops in front of Saheed Bhawan, Cuttack. As far as the Sah

eed Bhawan is concerned, it is a crowded place with lot of residential houses, two to three Ka

lyan Mandaps and Municipality Office. Hence, this Court is of the opinion that such a directio

n cannot be given for allowing the petitioners to operate their fireworks at Saheed Bhawan, Cu

ttack. So, this Court is not inclined to pass any order on the contention of the petitioners.

In course of argument, the learned senior counsel for the petitioners also dre

w attention of the Court to the fact that the permanent license holders, who are having shop a

t Choudury Bazar-nandisahi, are encroaching portions of the road by putting temporary stalls i

n front of their permanent shops and selling fire cracker, thereby not only obstructing and en

croaching part of the road but they are also disturbing the free flow of traffic in that area.

The learned senior counsel for the petitioner submits that setting of temporar

y shops in front of the permanent shop should not be allowed. This Court is of the opinion tha

t this contention of the petitioners is correct and acceptable. Hence, it is directed that the

opposite party no.2 shall take steps against all such permanent licensee holders, who are set

ting of temporary shops in front of their permanent shops for enteri