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2006 DIGILAW 64 (DEL)

UOI v. BHARAT EXPLOSIVES LTD

2006-01-12

MADAN B.LOKUR

body2006
MARKANDEYA KATJU, CJ. ( 1 ) CM 270/2006 (delay) heard counsel for the parties. We are satisfied that there is sufficient cause for the delay. The delay in filing the appeal is condoned. Accordingly, the application is allowed. LPA 22-23/2006 this writ appeal has been filed against the impugned judgment of the learned Single Judge dated 2. 9. 2005. ( 2 ) HEARD counsel for the parties and perused the records. ( 3 ) THE facts in detail have been set out in the judgment of the learned single Judge and hence we are not repeating the same except where necessary. ( 4 ) IT appears that the Central Government had issued a notification dated 21. 1. 2004 which states as follows:-"ministry OF COMMERCE AND INDUSTRY (Department of Industrial Policy and Promotion) notification new Delhi, the 21st January, 2004 g. S. R. 59 (E) -Whereas the Central Government is of the opinion that the explosive, namely, nitro-glycerine or such other substance whether a single chemical compound or a mixture of the said explosive (explosive or Class 3 division 1) is of a dangerous character; and whereas, it is expedient for the security concerns and the public safety to prohibit the possession of nitro-glycerine-based explosives (explosive of Class 3 Division 1); now, therefore, in exercise of the powers conferred by clause (a) of Sub- section (1) of Section 6 of the Explosives Act, 1884 (4 of 1884) , the Central government hereby prohibits the possession, sale and use of the said explosives throughout the country with effect from the 1st day of April, 2004 (F. No. 17 (3)/2000-Expl) a. E. AHMAD, Jt. Secy. " ( 5 ) THEREAFTER by another notification dated 20. 8. Secy. " ( 5 ) THEREAFTER by another notification dated 20. 8. 2004 the earlier notification was modified by this notification which states as follows:-"ministry OF COMMERCE AND INDUSTRY (Department of Industrial Policy and Promotion) notification new Delhi, the 20th August, 2004 g. S. R 530 (E)-Whereas, by the notification of the Government of India in the Ministry of Commerce and Industry (Department of Industrial Policy and promotion), vide number G. S. R, 59 (E) dated the 21st January, 2004 (herein referred to as the said notification), the Central Government prohibited the possession, sale and use of nitro-glycerine or such other substance whether a single chemical compound or a mixture of the said explosives (explosive of Class 3 Division 1) (herein referred to as the said explosive) throughout the country with effect from the 1st day of April, 2004; and whereas, sizeable stockes of the said explosives are still lying with the licence holders under their possession either for sale or use and that additional time is necessary for the disposal of the existing stock of the said explosives; and whereas, the Central Government is of the opinion that it is expedient for the security concerns and the public safety to dispose of the existing stock of the said explosives which are lying with various licence holders across the country as this may deteriorate over time and may become further dangerous, within a reasonable time; now, therefore, in exercise of the powers conferred by clause (a) of sub- section (1) of Section 6 of the Explosives Act, 1884 (4 of 1884), the Central government hereby extends the time-limit specified under the said notification till the 1st day of December, 2004 for disposing of the stock of the said explosives existing as on 1st day of April, 2004 and for that purpose makes the following amendment in the said notification namely:- in the said notification, for the words, letters and figures ?the 1st day of April, 2004? the words, letters and figures? the 1st day of December, 2004? shall be substituted. (F. No. 17 (3)/2000-Expl) umesh KUMAR, Jt. Secy. " ( 6 ) SUBSEQUENTLY, it appears that the third notification dated 24. 3. the words, letters and figures? the 1st day of December, 2004? shall be substituted. (F. No. 17 (3)/2000-Expl) umesh KUMAR, Jt. Secy. " ( 6 ) SUBSEQUENTLY, it appears that the third notification dated 24. 3. 2005 was issued by the Central Government, Ministry of Commerce and Industry which reads as follows:-"ministry OF COMMERCE AND INDUSTRY (Department of Industrial Policy and Promotion) notification new Delhi, the 24th March, 2005 g. S. R. 191 (E)- Whereas, it has been represented by M/s Singareni collieries Company Limited, Eastern Coalfields Limited and Central Mining research Institute to the Central Government that P-3 type Nitro-glycerine based explosives (Belgex Coal-R) are used in the Blasting Gallery method in underground mines and there was no substitute available for P-3 type Nitro- glycerine based explosives in the market; and whereas, it has also been represented that production of coal for power generation has been seriously affected in the southern region of the country, due to ban of Nitro-glycerine based explosives; and whereas, the Central Government is of the opinion that it is expedient in the public interest to allow only M/s Singareni Collieries Company limited, Eastern Coalfields Limited and Central Mining Research Institute to use p-3 type Nitro-glycerine based explosives (Belgex Coal-R) in the Blasting gallery method in underground mining; now, therefore, in exercise of the powers conferred by Sub-section (2) of section 14 of the Explosives Act, 1884 (4 of 1884), the Central Government hereby exempts: (i)M/s Singareni Collieries Company Limited, Eastern Coalfields Limited and central Mining Research Institute (CMRI) for possession, transport and use of P- 3 type Nitro-glycerine based explosives (Belgex Coal-R); and (ii)Units having licence to manufacture P-3 type Nitro-glycerine based explosives (Belgex Coal-R) for possession, sale and transport of P-3 type Nitro- glycerine based explosives (Belgex-Coal R), to use, possess and transport P-3 type Nitro-glycerine based explosives (Belgex- coal R) in Blasting Gallery method in underground mining, for a period of one year from the date of publication of this notification. 2. 2. The above exemption shall be subject to the following conditions, namely:- (i)Total production of P-3 type NG explosives (Belgex -Coal R) does not exceed 500 Metric Tonnes; (ii)Such explosives shall be produced under the supervision of representatives of Department of Explosives under the Ministry of Commerce and Industry; (iii)Such explosives shall be transported from the manufacturers premises to the site where it is to be used under armed security guards; (iv)The manufactures as well users shall maintain records of production, transport and usage, which would be open for scrutiny by the Department of explosives; (v)The users shall also arrange adequate and strict security at the place of shortage of such explosives and furnish monthly information about storage and usage of such explosives to Department of Explosives; and (vi)The user and manufacturer shall dispose of the remaining stocks, if any, within the period specified under this notification. (F. No. 17 (3)/2000-Expl) umesh KUMAR, Jt. Secy. " ( 7 ) A perusal of the notification dated 24. 3. 2005 shows that in respect of only three entities, namely, M/s Singareni Collieries Company Limited, Eastern coalfields Limited and Central Mining Research Institute the Central Government granted certain exemptions which were not granted to other companies/legal entities. ( 8 ) THE learned Single Judge in paragraph 9 of his judgment observed as follows:-"there appears to me to be no justification for extending the period for supply of NG based explosives in respect of M/s Singareni Collieries Company limited, Eastern Coalfields Limited and Central Mining Research Institute and not in respect of other persons who had similarly also placed orders on the petitioner before the relevant date and whose contracts have not been performed till now. It is no sufficient justification for favourable or distinct treatment of Government collieries, especially in the absence of allegations that parties other than these three are guilty of diverting the explosives already supplied to them. Therefore, they must be given equal treatment lest Article 14 of the constitution is violated. " ( 9 ) A perusal of the above observation of the learned Single Judge shows that he was of the view that Article 14 of the Constitution has been violated in as much as the benefit granted by the notification dated 24. 3. Therefore, they must be given equal treatment lest Article 14 of the constitution is violated. " ( 9 ) A perusal of the above observation of the learned Single Judge shows that he was of the view that Article 14 of the Constitution has been violated in as much as the benefit granted by the notification dated 24. 3. 2005 has not been granted to other companies/legal entities other than the aforesaid entities, namely, M/s Singareni Collieries Company Limited, Eastern Coalfields Limited and central Mining Research Institute. ( 10 ) WITH due respect to the learned Single Judge we are of the opinion that he was not correct in holding that there is a violation of Article 14 of the Constitution. ( 11 ) IT is well settled that to establish a violation of Article 14 of the constitution, the burden of proof is on the writ petitioner, vide East India tobacco Co. vs. State of A. P. , AIR 1962 SC 1733 (para 6 ). In V. S. Rice and Oil mills vs. State of A. P. , AIR 1964 SC 1781 (vide para 22) a Constitution Bench of the Supreme Court observed:"this Court has repeatedly pointed out that when a citizen wants to challenge the validity of any statute on the ground that it contravenes Article 14, specific, clear and unambiguous allegations must be made in that behalf, and it must be shown that the impugned statute is based on discrimination not referable to any classification which is rational and which has nexus with the object intended to be achieved by the statute. "similarly, in A. K. Mukherjee vs. Local Board AIR 1965 SC 1561 , a constitution Bench observed (vide para7):"it is well settled that it is for the person who alleges that equality before law has been infringed to show that such really is the case. It was therefore for the appellant to produce facts and figures from which it can be inferred that the tax imposed is hit by Article 14 of the Constitution. "in P. M. Rajkotia vs. Union of India, AIR 1966 SC 1044 the Supreme Court observed: "it is manifest in the present case that the petitioners have not furnished sufficient particulars to justify the plea of infringement of Article 14. "in P. M. Rajkotia vs. Union of India, AIR 1966 SC 1044 the Supreme Court observed: "it is manifest in the present case that the petitioners have not furnished sufficient particulars to justify the plea of infringement of Article 14. " in Cochin Devaswamy Board vs. Vamana Setti, AIR 1966 SC 1980 the constitution Bench observed (vide para 15):"a person relying upon the plea of unlawful discrimination which infringes a guarantee of equality before the law must set out with sufficient particulars his plea showing that between the persons similarly circumstanced discrimination has been made which is founded on no intelligible differentia. " ( 12 ) SINCE we are considering whether there was a violation of Article 14, the burden of proof was clearly on the writ petitioner, and to discharge this burden he has to plead sufficient facts but in our opinion he has not done so in the writ petition or in any affidavit. ( 13 ) A perusal of the notification dated 24. 3. 2005 shows that the benefit therein has been granted to only three legal entities, namely, M/s Singareni collieries Company Limited, Eastern Coalfields Limited and Central Mining research Institute because they were using P-3 type Nitro Glycerine based explosives in the blasting gallery method in underground mining. There is no averment in the writ petition or any affidavit that the writ petitioner or other companies/legal entities were also using P-3 type Nitro Glycerine based explosives in the blasting gallery method in underground mining. ( 14 ) TO demonstrate a violation of Article 14 of the Constitution the petitioner has to show that another company which is doing the same activity is being granted certain benefits while the petitioner which is doing the same activity has been denied those benefits. Unless this pleading is there, the court cannot hold that there is any violation of Article 14 of the Constitution. ( 15 ) IN our opinion, there is not even a single pleading that the petitioner (respondent in this appeal) was using the blasting gallery method in underground mines. In the absence of such a pleading we cannot hold that there is any violation of Article 14 of the Constitution. ( 16 ) APART from the above, we are of the opinion that in such matters there must be judicial restraint. A Judge cannot legislate. In the absence of such a pleading we cannot hold that there is any violation of Article 14 of the Constitution. ( 16 ) APART from the above, we are of the opinion that in such matters there must be judicial restraint. A Judge cannot legislate. It is highly improper to encroach in the executive domain, and expand the scope of a notification by a judicial verdict. With due respect to the learned Single Judge he has expanded the scope of the notification dated 24. 3. 2005 and thus he has practically acted as a legislator. This a Judge cannot do. ( 17 ) FOR the reasons given above, this appeal is allowed and the impugned judgment of the learned Single Judge is set aside and the writ petition is dismissed. ( 18 ) LEARNED counsel for the respondent (writ petitioner) submitted that the petitioner should be allowed to make a representation to the authorities for some relief. It is always open to the petitioner to make such a representation and if he does so, the same would be decided preferably within two weeks of receipt of the application by the authority concerned in accordance with law. Dasti. .