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2023 DIGILAW 185 (GUJ)

SHABBIRALI TAYABALI CHHATARIYA v. UNION OF INDIA

2023-01-23

ARAVIND KUMAR, ASHUTOSH SHASTRI

body2023
ORDER : 1. By way of this Letters Patent Appeal under Clause 15 of the Letters Patent Act, appellant-original petitioner has assailed the order of learned Single Judge dated 19.7.2022 passed in main Special Civil Application No. 16001 of 2015. 2. The background of facts which has given rise to this appeal is that petitioner is a license holder of explosives and doing his business in the name of M/s. Gujarat Explosives, situated at Mahuva since the year 1987. Petitioner is having in all 7 licenses for different types of explosives and having godown in the outskirts of village Vadali, Taluka Mahuva, District Bhavnagar. Storage of the explosives are in a godown constructed strictly in accordance with the specifications provided under the Rules and design whereof is also approved by the Chief Controller who in turn has permitted the stock of various types of explosives to be kept/stored as per the rules. Earlier, license was issued in the name of M/s. Premier Explosives Agency, later on same was permitted to be changed to M/s. Gujarat Explosive Agency. 3. It is the case of the petitioner that said licenses were issued after following due procedure prescribed under the Act and were issued only after District Collector, Mahuva, concerned police department- PWD along with opinion of Panchayat who inspected the area where the stock of explosives is allowed to be kept had taken the view. So much so, that Vadodara Circle Officer had also personally checked the safety measures and parameters which are required and after having satisfied, the Chief Officer of Explosive Department, Nagpur upon verification issued No Objection Certificate and thereupon, godown/ magazine in the said area are built. The license holder is required to pay requisite fee as prescribed under the Rules through Demand Drafts regularly and also to see that periodical renewal may also be accorded to as on the date all licenses have been renewed regularly and petitioner company stated to have valid license under the Act. 4. According to the petitioner, even surprise checking are also being undertaken at regular span of 1, 2 or 5 years, as the case may be, and necessary compliance reports are also being prepared and sent to the authority. 5. 4. According to the petitioner, even surprise checking are also being undertaken at regular span of 1, 2 or 5 years, as the case may be, and necessary compliance reports are also being prepared and sent to the authority. 5. According to petitioner, on 28.8.2015, Deputy Chief Controller of Explosives, Vadodara came to the spot and made inspection of the premises and at that point of time, there was no discrepancy or any violation of any of the conditions was indicated to the petitioner and for the first time on 10.9.2015, it was pointed out that there are some violations/discrepancies and straightway, without granting any opportunity or affording opportunity of even to explain, it has been indicated in the said communication dated 10.9.2015 to restrict the stock of explosives in the magazine/godown upto said quantities as indicated, and has called upon the petitoner to submit documents and fee for amendment of reduced quantity to be stored as per the available safety distances within 21 days. Grievance of the petitioner is that though all parameters are prescribed and observed closely by petitioner and there was no violation as noticed, however without affording any opportunity, straightway petitioner company has been advised rather ordered to restrict the stock which has prejudicely affecting the right of petitioner and since same was without affording any opportunity and it is in the form of notice-cum-order, petitioner was constrained to approach this Court by way of Special Civil Application No. 16001 of 2015. 6. The petition appears to have been entertained at initial stage whereby an ad-interim relief was granted and then appears to have come up before the learned Single Judge who by way of judgment and order dated 19.7.2022 was pleased to dismiss the same, which has given rise to filing of the present Letters Patent Appeal before us. 7. The Letters Patent Appeal was entertained by this court by order dated 19.9.2022, wherein notice was issued calling upon the authority to respond. As a result of this, learned advocate Ms. Vyoma Jhaveri appeared on behalf of the respondent authority. Hence, with consent of learned advocates, we have taken up the hearing of present appeal. 8. Learned advocate Mr. 7. The Letters Patent Appeal was entertained by this court by order dated 19.9.2022, wherein notice was issued calling upon the authority to respond. As a result of this, learned advocate Ms. Vyoma Jhaveri appeared on behalf of the respondent authority. Hence, with consent of learned advocates, we have taken up the hearing of present appeal. 8. Learned advocate Mr. U.I. Vyas appearing on behalf of the appellant has submitted that issuance of impugned communication dated 10.9.2015 is in flagrant violation of the principles of natural justice as neither any opportunity of hearing was given nor any explanation is given prior to issuance of it and straightway passing an order indicating to restrict explosive stock would tantamount to infringe the right to carry on business and as such on this ground of violation of principles of natural justice itself, impugned communication deserves to be quashed. 9. Learned advocate Mr. Vyas has further submitted that before ordering to restrict the stock as indicated in the impugned communication, if opportunity would have been given, petitioner would have pointed out earlier compliance report, earlier inspection report as well as fact that there is no violation of any directions or rules which are applicable and as such this impugned communication though in the form of notice, it is practically notice-cum-order which was not recognized by proposition of law, hence same deserves to be quashed. 10. Learned advocate Mr. Vyas has further submitted that relevant Rules, precisely Rules 117, 118 to 121 and 128 of the Explosives Rules, 2008 are making it clear that power is invested in an authority to inspect and issue such direction, but said powers are to be exercised in case of exigency exists, which is not here in the present case on hand. Hence, very exercise of issue of such direction is uncalled for. In fact, by referring to a chart contained in paragraph 9 of the petition memorandum, learned advocate Mr. Vyas has pointed out that there is no violation and stock has been maintained strictly as per the parameters which are prescribed and had the opportunity been given, petitioner could have pointed out to the authority. In fact, by referring to a chart contained in paragraph 9 of the petition memorandum, learned advocate Mr. Vyas has pointed out that there is no violation and stock has been maintained strictly as per the parameters which are prescribed and had the opportunity been given, petitioner could have pointed out to the authority. In fact, when godowns were inspected, no such infirmity was indicated to the petitioner and as such, order appears to be not only unjust, arbitrary but not in consonance with the settled proposition of law and as such impugned communication requires to be quashed and set aside. 11. As against this, learned advocate Ms. Vyoma Jhaveri appearing on behalf of contesting respondent has submitted that while issuance of communication dated 10.9.2015, authority has taken care of parameters and only upon due verification, communication is issued. However, Ms. Jhaveri has fairly and candidly submitted that while issuance of directives in the impugned communication to reduce stock, no opportunity was given, as is reflecting. Ms. Jhaveri has further submitted on instruction that authority is inclined to extend an opportunity to the petitioner and since petitioner has been protected from beginning, authority would desist itself from insisting to act upon impugned communication dated 10.9.2015 insofar as has restricted to maintain stock till final decision is taken on impugned communication. 12. Learned advocate Ms. Jhaveri has submitted that since order is related to explosive, urgent attention to this issue deserves and as such requested to fix some time schedule so that appropriate decision can be taken. Ms. Jhaveri has requested not to enter into merits and without expressing any opinion on such, has requested to issue appropriate direction which will be taken care of by an authority since the issue at this stage is only with regard to non-granting of opportunity. 13. Having heard learned advocates for the parties and having gone through the material on record, following circumstances deserve consideration before disposing of the present proceedings: (1) From the record, it appears that petitioner company is having 7 licenses since number of years and is carrying on business and original licenses were of 1987 and periodically, same appear to have been renewed from time to time, as indicated. In between, it also appears that some spot verification also appears to have been undertaken, but in the last inspection visit on 28.8.2015, authority has found certain discrepancies and as such it appears that impugned communication has been issued by an authority. From the reading of the impugned communication, it indicates that there are some encroachments made surrounding the area and some dwelling houses three in numbers have been found, but same is an encroachment stated to be not by the petitioner and for which, petitioner has indicated that company is not responsible for the same. Though by way of the impugned communication, within a period of 21 days, petitioner has been called upon to reply, failing which steps would be contemplated, but then reading of this impugned communication further indicates that straightway a directive is issued in the form of an advice to restrict stock of explosives in the magazine upto said quantities and as such this direction has been issued without granting any opportunity to the petitioner and this fact of non-grant of opportunity appears to be undisputed as Ms. Jhaveri on instruction from an officer who is personally present has confirmed that prior to this, no opportunity was given to the petitioner, hence impugned communication appears to be without grant of any opportunity to the petitioner. (2) Additionally, this action of imposing restriction has got an adverse impact on smooth running of business activity of the petitioner as stated by counsel and that being so, having broadly accepted the situation, learned advocate for the respondent on instruction from the officer who is present in the Court has stated that petitioner is at liberty to submit reply to impugned communication dated 10.9.2005 and till decision is taken, no steps will be taken under the guise of this communication and stay which has been operative throughout the proceedings will continue to be abided and as such upon submission and instruction, learned counsel for petitioner has also jointly requested to dispose of the appeal by issuing appropriate direction by setting aside the impugned order passed by learned Single Judge. 14. 14. Hence, upon such broad submissions made before us, we deem it proper to dispose of the present Letters Patent Appeal on following lines which would meet the ends of justice: (1) Letters Patent Appeal is ALLOWED by quashing and setting aside impugned order dated 19.7.2022 passed in Special Civil Application No. 16001 of 2015 and as a consequent thereof, appellant-petitioner is permitted to submit specific explanation/ reply or objection, if any against impugned communication dated 10.9.2015 on or before 6.2.2023 and upon receipt of said reply, the authority shall take appropriate decision on or before 6.3.2023 in respect of the show cause notice dated 10.9.2015. (2) It is made clear that this Court has not expressed any opinion on merit and it is independently left it open to the authority to take appropriate decision in accordance with law on the basis of the parameters which are applicable while taking such decision. (3) Appellant-petitioner is directed to cooperate with decision making process which may be undertaken by an authority. (4) It is also observed since there is a broad consensus that during process of taking decision on or before 6.3.2023, stay granted and which was operative during pendency of the petition same shall continue to remain and if any adverse decision is taken, same shall not be implemented for a period of 10 (TEN) DAYS. 15. With above observations and directions, Letters Patent Appeal stands DISPOSED OF. All pending applications also stands consigned to records. Cost made easy.