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Madhya Pradesh High Court · body

2010 DIGILAW 1152 (MP)

M. S. Razawat v. State of M. P.

2010-11-19

ALOK ARADHE, S.R.ALAM

body2010
ORDER Alok Aradhe, J. 1. In the instant writ petition which has been filed as "Public Interest Litigation" the writ Petitioners, who are Boiler Attendants and Boiler Operation Engineers, are, inter alia, seeking quashing of the notification published in Madhya Pradesh Gazette dated 21.12.2001 (Annexure-P-3) issued by the State Government in exercise of powers under Section 34(3) of the Indian Boilers Act, 1923 (hereinafter referred to as 'the Act') by which a class of boilers has been excluded from certain provisions of the Act. 2. Facts leading to filing of the present petition, briefly stated are that in the State of Madhya Pradesh there are about 750 registered boilers in operation. Out of aforesaid 750 boilers, about 90% i.e. 675 boilers belong to the category whose heating surface area is less than 1000 square meters. In order to ensure safety of large numbers of workers who work in the vicinity of boilers, the installation and periodical inspection of boilers by a qualified Inspector is mandatory. However, the State Government in purported exercise of powers under Section 34(3) of the Act has issued a notification (Annexure P-3) by which boilers' whose heating surface area is less than 1000 square meters, which have been installed or would be installed in future, have been excluded from operation of provisions of Clauses (a) and (b) of Section 6, Sections 7 to 27 and Section 30 of the Act subject to certain conditions. 3. It is averred in the writ petition that while granting the aforesaid exemption, the very object and intent of the Act has been diluted down to a nullity by the State Government. By issuing the impugned notification, the State Government has prescribed a condition to the effect that the General Manager of the District Trade and Industries Centre of every district shall receive documents. The competent authority which has been described under the notification can be a Lecturer, Reader, or Professor from a recognized University or a Chartered Engineer who may not have the requisite technical expertise to issue the certificate for installation and registration of boilers. Another condition which has been prescribed in the notification is that the owner of the boiler is made responsible to run and maintain the boiler as per the provisions of the Act and the Rules made thereunder. Another condition which has been prescribed in the notification is that the owner of the boiler is made responsible to run and maintain the boiler as per the provisions of the Act and the Rules made thereunder. Lastly, a condition which has been imposed in the notification provides that in case the owner of the boiler violates any of the provisions of the Act or the Rules made there under, a penalty of Rs. 5000/- can be imposed on him and further penalty of Rs. 500/- per day in case of re-occurrence. The General Manager, District Trade and Industries Centre has been empowered to impose the aforesaid penalty to prevent the use of boiler. In the aforesaid factual backdrop the Petitioners have prayed that notification (Annexure-P-3) issued under Section 34(3) of the Act be declared as unconstitutional, arbitrary, unlawful and unjustified. The Petitioners have also prayed for issue of a writ of mandamus directing the Respondents to implement all the provisions of the Act to the entire boilers which have been registered and are operational in the State of Madhya Pradesh. 4. The Respondents have filed their return in which, inter alia, it is stated that while exercising powers under Section 34(3) of the Act the State Government has exempted the specified class of boilers subject to fulfillment of stringent conditions which are stipulated in Regulation 4 of the Indian Boilers Regulation, 1950 and the safety aspect has not been compromised. The object of issuing the impugned notification is to widen the scope of availability of appropriate technically qualified persons competent to inspect as provided under Rule 15(3) of the M.P. Boiler Rules, 1969 and to certify the boilers as provided in the Act read with Regulations and Rules framed thereunder. The notification in question further provides that it shall be the responsibility of the owner to ran and maintain it in accordance with the provisions of the Act and the Rules framed thereunder. Even after issuance of the notification which is sought to be impugned in the instant writ petition, the boiler can be inspected and certified for a certain period by the competent authorities specified in the notification. Even after issuance of the notification which is sought to be impugned in the instant writ petition, the boiler can be inspected and certified for a certain period by the competent authorities specified in the notification. It has further been averred that no exemption has been granted to the boilers from the operation of the provisions of Section 6(e) of the Act which specifies that the boilers shall be in charge of persons holding the certificate of proficiency or competency. It has further been pointed out that similar arrangement of third party inspection exists under various provisions of the Act and the Rules involving public safety, in the context of use of specified type of machinery, equipments and other devices. 5. The Respondents have also pleaded that boiler industry in particular has progressed and modernized a lot during past 8 to 10 decades. Now, the boilers of high quality material, design and construction are manufactured strictly in accordance with Indian Boilers Regulations 1950 by reputed companies which are readily available in the market. Competent persons like Mechanical/Thermal engineers are also available in major industries of the State. Therefore, considering the existence of large number of boilers which are in use in the State of Madhya Pradesh and with a view to augment the rapid industrialization, third party inspection mechanism has been introduced by way of notification which is an industry friendly measure which will cut down any possible inspection delays without sacrificing the safety and quality of boilers. It will also provide more time to regular Boiler Inspectors, who are only seven in number, to concentrate on technical advancement in the field. The Boiler Inspectors may also play an important role as a facilitator to an industry by rendering appropriate technical advice and consultancy. It has further been averred that the initiative of the Government has been widely welcomed by the industries and boiler users. The Petitioners who are Boiler Attendants and Boiler Engineers have been set up by a lobby who has vested interest and the instant public interest petition is, in fact, a sponsored litigation. It has further been averred that the Petitioners are placing wrong interpretation of the notification so far as the qualification of the competent authority is concerned. The competent authority is required to hold a Degree of Mechanical or Thermal Engineer from a recognized University necessarily and the aforesaid requirement is mandatory. 6. It has further been averred that the Petitioners are placing wrong interpretation of the notification so far as the qualification of the competent authority is concerned. The competent authority is required to hold a Degree of Mechanical or Thermal Engineer from a recognized University necessarily and the aforesaid requirement is mandatory. 6. We have heard learned Counsel for the parties at length. Shri Sheel Nagu, learned Counsel for the Petitioners has submitted that the impugned notification is violative of Section 34(3) of the Act as while issuing the notification the State Government has ignored the aspect of material, design and construction of the boilers. It has further been contended that the exclusion of boilers with a certified extent of heating surface has no nexus or relevance with the element of material design or construction or, even for that matter, need for rapid industrialization. The impugned notification nullifies the very object and intent of the Act which has been enacted with a view to ensure safety of life of workers working in the vicinity of boilers by providing periodical checks and inspections. The impugned notification is arbitrary as it eliminates the existence of expert and qualified inspectors. The impugned notification has turned the clock back to pre 1923 era when there was no consolidated law to ensure safety of the workers. Learned Counsel has also referred to the report submitted by the Joint Committee, Government of India dated 10.3.1921. With reference to the aforesaid report the learned Counsel has stressed upon the need for necessity of efficient staff to inspect boilers. 7. On the other hand, Mr. Kumaresh Pathak, learned Deputy Advocate General has argued that while issuing the impugned notification the issue pertaining to safety of the workers has not been compromised. While issuing the impugned notification the State Government has imposed necessary conditions and precautions have also been taken to ensure the safety of workers. It has further been pointed out that the requirement of Section 14 of the Act which prescribes the duty of the owner at the time of examination of the boiler has been incorporated in the notification. It has further been contended that the qualification prescribed for the competent authority under the notification is being misinterpreted by the Petitioners. It has further been pointed out that the requirement of Section 14 of the Act which prescribes the duty of the owner at the time of examination of the boiler has been incorporated in the notification. It has further been contended that the qualification prescribed for the competent authority under the notification is being misinterpreted by the Petitioners. The competent authority is required to hold a Degree of Mechanical or Thermal Engineering from a recognized University and should have experience of maintenance of boilers for two years and the other two conditions pertaining to qualification are in the alternative. 8. Before proceeding to deal with the adjudication of the controversy involved in the writ petition it would be appropriate to refer to the relevant provisions of the Act. The Act has been enacted with an object to consolidate and amend the law relating to steam boilers. The Act has been enacted mainly for the safety of life and property of persons from the danger of explosion and the achievement of uniformity of practice in regard to inspection and maintenance of the boilers. Section 2 of the Act deals with the definitions. Section 6 of the Act prohibits the use of unregistered or uncertified boiler. Section 6(e) was amended by Parliament by Act No. 18 of 1960 which came into force with effect from 6.5.1960 primarily with an object to ensure the increased safety of human life. The relevant extract of Section 6(e) reads as under: 6(e) Where the State Government has made rules requiring that boilers shall be in charge of persons holding certificates of proficiency or competency, unless the boiler is in charge of a person holding the certificate required by such rules: Provided that any boiler registered, or any boiler certified or licensed, under any Act hereby repealed shall be deemed to have been registered or certified, as the case may be, under this Act. Section 7 deals with registration of boilers whereas Section 8 provides for renewal of certificate of boilers. Section 28 of the Act empowers the Central Boilers Board to frame Regulations with regard to the matters enumerated therein. Section 28(1) of the Act reads as under: 28. Section 7 deals with registration of boilers whereas Section 8 provides for renewal of certificate of boilers. Section 28 of the Act empowers the Central Boilers Board to frame Regulations with regard to the matters enumerated therein. Section 28(1) of the Act reads as under: 28. Power to make regulations.-(1) the Board may, by notification in the Gazette of India, make regulations consistent with this Act for all or any of the following purposes, namely: (a) for laying down the standard condition in respect of material, design and construction which shall be required for the purpose of enabling the registration and certification of a boiler under this Act; (aa)for prescribing the circumstances in which, the extent to which, and the conditions subject to which variation from the standard conditions laid down under Clause (a) may be permitted; (b) for prescribing the method of determining the maximum pressure at which a boiler may be used; (c) for regulating the registration of boilers, prescribing the fees payable therefore, and for the inspection and examination of boilers or parts thereof the drawings, specifications, certificates and particulars to be produced by the owner, the method of preparing a boiler for examination, the form of the Inspector's report thereon the method of marking the register number and the period within which such number is to be marked on the boiler; (d) for regulating the inspection and examination of boilers and steam-pipes, and prescribing forms of certificates therefor; (e) for ensuring the safety of persons working inside a boiler; and (f) for providing for any other matter which is not, in the opinion of the Board a matter of merely local or State importance. 9. In exercise of powers under Section 28(1) of the Act the Indian Boilers Regulations, 1950 have been framed by the Board. Section 29 of the Act empowers the State Government to frame the Rules in consistent with the provisions of the Act and the Regulation made thereunder in respect of matters which have been enumerated therein. Section 29(1) of the Act reads as under: 29. Section 29 of the Act empowers the State Government to frame the Rules in consistent with the provisions of the Act and the Regulation made thereunder in respect of matters which have been enumerated therein. Section 29(1) of the Act reads as under: 29. Power to make rules.- (1) The State Government may, by notification in Official Gazette, make rules consistent with this Act and the regulations made thereunder for all or any of the following purposes, namely: (a) for prescribing the qualifications and duties of the Chief Inspector, of Deputy Chief Inspectors and of Inspectors for prescribing or constituting authorities to which they shall respectively be subordinate, and the limits of the administrative control to be exercised by such authorities; (b) for regulating the transfer of boilers, (c) for providing for the registration and certification of boilers in accordance with the regulations made under this Act; (d) for requiring boilers to be in charge of persons holding certificates of proficiency or competency, and for prescribing the conditions on which such certificates may be granted; (e) for prescribing the times within which Inspectors shall be required to examine boilers under Section 7 or Section 8; (f) for prescribing the fees payable for the issue of renewed certificates, for the inspection and examination of boilers or parts thereof or drawings for steam-pipes, for the testing of welders or for any other matter which, in the opinion of the State Government, would involve time and labour, and for prescribing the method of determining the amount of such fees in each case; (g) for regulating inquiries into accidents; (h) for constituting the appellate authority referred to in Section 20 and for determining its powers and procedure; (i) for determining the mode of disposal of fees, costs and penalties levied under this Act; and (j) generally to provide for any matter which is, in the opinion of the State Government as matter of merely local importance in the State. 10. In exercise of powers under Section 29(1) the State Government has framed M.P. Boilers Rules, 1969. Section 34 of the Act deals with exemption. Section 34(3) which is relevant for the purpose of the controversy in the instant writ petition reproduced below for the facility of reference. 10. In exercise of powers under Section 29(1) the State Government has framed M.P. Boilers Rules, 1969. Section 34 of the Act deals with exemption. Section 34(3) which is relevant for the purpose of the controversy in the instant writ petition reproduced below for the facility of reference. Section 34(3) of the Act reads as under: 34(3) If the State Government is satisfied that, having regard to the material, design or construction of boilers and to the need for the rapid industrialization of the country, it is necessary so to do, it may, by notification in the Official Gazette and subject to such conditions and restrictions as may be specified in the notification, exclude and specified class of boilers or steam-pipes in the whole or any part of the State, from the operation of all or any of the provisions of this Act. 11. After having noticed the relevant provisions of the Act, Rules and the Regulations we may now advert to the facts of the case. From perusal of the impugned notification contained in Annexure-P-3 it is clear that the State Government has issued the notification excluding a class of boilers from certain provisions of the Act on being satisfied that it is necessary to do so for the rapid industrialization of Madhya Pradesh. A close scrutiny of the impugned notification reveals that requirement of Section 6(e) of the Act has not been excluded. As stated supra, Section 6(e) was amended by Amending Act No. 18 of 1960 with the object to ensure the increased safety of human life. Section 6(e) requires that the boiler shall be in charge of a person holding the certificates of proficiency or competency. Therefore, notwithstanding the fact that class of boilers have been excluded from certain provisions of the Act, the boilers shall continue to remain in charge of persons holding the certificates of proficiency or competency as required under the M.P. Boilers Rules, 1969. Notwithstanding issuance of impugned notification, provisions of Indian Boilers Regulations 1950 and provisions of M.P. Boilers Rules, 1969 which contain measures for safety and inspection of boilers continue to apply to all the boilers. 12. From perusal of the impugned notification we also find that the requirement of registration of boiler as provided under Section 14(1)(c) of the Act has also been incorporated in the notification. 12. From perusal of the impugned notification we also find that the requirement of registration of boiler as provided under Section 14(1)(c) of the Act has also been incorporated in the notification. A person is required to submit all the necessary documents as provided in Indian Boilers Regulations, 1950 alongwith an application for registration of the boiler. A person concerned shall also annex the certificate from the competent authority with regard to boiler for the period and maximum pressure for which it can be safely used. The relevant extract of the notification which prescribes qualifications of competent authority is reproduced below for the facility of reference: "Competent Authority" shall be a person: -who has a degree of Mechanical or Thermal Engineering from a recognized university. AND -who has experience of maintenance of Boiler for two years. OR -who is a Lecturer/Reader/Professor in a recognized Engineering College. OR -A Chartered Engineer. 13. Thus, the competent authority has to be a person who holds a degree of Mechanical or Thermal Engineering from a recognized University and should have experience of maintenance of boilers for two years. The remaining two conditions are in the alternative. Therefore, the contention of the Petitioners that even Lecturer or Reader or Professor or Chartered Engineer can be appointed as the competent authority, cannot be accepted. 14. From perusal of the report filed on behalf of the Respondents this fact also cannot be lost sight of, that there has been significant improvement in the conditions prevailing in the boilers' industries and there has been remarkable growth in the industrial sector with technical advancement. The boilers with latest designs and specifications are indigenously manufactured and are readily available in the market which are manufactured strictly in accordance with the Indian Boiler Regulations, 1950 by a reputed companies. Certificates authorizing use of boiler are renewed. Thus, we have no hesitation in coming to the conclusion that the issue of safety of the workers/employees working in the vicinity of boiler has not been compromised by the State Government. 15. A composite reading of the impugned notification as a whole would reveal that it does not travel beyond the purview of Section 34(3) of the Act. Thus, we have no hesitation in coming to the conclusion that the issue of safety of the workers/employees working in the vicinity of boiler has not been compromised by the State Government. 15. A composite reading of the impugned notification as a whole would reveal that it does not travel beyond the purview of Section 34(3) of the Act. The State Government while incorporating the requirement as provided in Section 14(1)(c) of the Act as well as by ensuring applicability of Section 6(e) of the Act has satisfied itself with regard to the material design and construction of boilers and has also taken into account the need of rapid industrialization in the State of Madhya Pradesh. Therefore, the notification cannot be said to be violative of Section 34(3) of the Act, rather it is in consonance with mandate of Section 34(3) of the Act. 16. So far as the grievance with regard to inspection of boilers which has been handed over to third party is concerned, it is appropriate to state that inspection by a third party in respect of specified type of machinery, equipment and other devices involving public safety exist under various Acts and Rules. For instance, under Rule 6(a) of M.P. Factories Rules, 1962 framed under Section 31 of the Factories Act, 1948, a competent person has been authorized to conduct hydraulic test of pressure vessels. Similarly, under Rule 130 of Petroleum Rules, 1976 a competent person is authorized to issue certificate of safety for storage of petroleum in any installation or service station for the first time or whenever any addition or alteration to the enclosure valves and embankment are carried out. Similarly, under Rule 2(d) of the Statical and Mobile Pressure Vessels (Unfired) Rules, 1981 a competent person has been empowered for carrying out tests, examinations, inspection and certification for installation and transport vehicles as stipulated in such rules. 17. In view of the fact that the competent authority is required to have the necessary qualification we do not find any fault with the condition in the impugned notification which provides for inspection at the instance of third party, especially in view of the fact that the issue with regard to safety of workers has not been compromised by the State Government while issuing the impugned notification. 18. For the aforementioned reasons, we do not find any merit in the writ petition. 18. For the aforementioned reasons, we do not find any merit in the writ petition. The instant writ petition deserves to and is hereby dismissed. However, there shall be no order as to costs.