r4 245 1 Civil Writ Petltion No1746 of 2008 15 In the HighCourt of Punjaband Haryanaat Chandigarh Civil Writ Petition Noe1746 of 2008 1 Dateof Decision 9 12009 C 0 1C Arora C43 Petitioner I Versus C5 Stateof Punjaband Others I espondents Z CORAM HONBLE MR JUSTICE TTHAKUR CHIEF JUSTICE r HONBLE MR JUSTICE KANWALJIT SINGHAHLUWALIA I 1 Whether Reportersof Iocal papers may be allowed to see the 08 2 Whether to be referredto the reporters or not7 3 VVhetherthejudgment should be reportedin the Digest2 7 Z Presentl Mr IC Arora Petitionerin person Ll Ms Madhu DayalAdditionalAdvocate General PunJabfor respondents Nol and 3 Mr SanjeevKaushik Senior StandingCounsel IndirectTaxes for respondents No2 4 and 5 Mr R Handa Advocate for respondentNo6 Mr JagmohanBansal Advocate for respondents No 9 and 13 Mr Vikas Bahl Advocate for respondents No10 12 and 14 TS Thakur C This petitionhas been Oled In publicInterest It prays for a Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 246 Civil Writ Petition No1746 of 2008 2 mandamusdirecting of a hugestocks of explosives iyingat DryPoit Dhandari Kalan Ludhiana since October 2004 which to the petitionerhas become a securityrisk for the people 1 Iivingin thevicinityof the said area The petitlonerwho is a practicingIawyerat Chandigarh 0 0 appears to have soughtinformation from the DeputyCommissioner I Ludhiana about the type of explosivesIyingat Dhandari Kalan 5 I Ludhianaand the stepswhich the District Administration of Ludhiana was taking for destroying the same The petitioneraiso appears to have Z receivedfrom the Authoritiesthe date4Nisesummary of the stocks of 0 that was taken into possessionand that was Iyingat the Dry I Port mentioned above Accordingto the averments made in the Writ 08 petition and the chart which the petitionerhas placed on record the material includes 55 stick bombs 365 grenades54 boxes of 7 Z bottle bombS one box of ballisticcanridges215 golas Topelmedium 857 mortar shells 234 rockets one drum magazinefilled with Iive cailridgesone box of medium cartridgesthree Iargebomb shells 17 gun golas32 milesl 6908 cartridges MMG 1007 medium gun shells 189small gun shells one unknown bomb 392 smali golatope cells 891 anti aircraft cartridges239 cartridges JTl 30 base rockets 1 1 grenadesAIPI It is not disputed that Assistant DhandariKalan Ludhiana has by his Ietterdated 302008 certified that of the above explosiveis a threat to securitYOf the peopleIivingin the viclnltyof the area It Is also not denied that the Commissloner Ludhiana has taken up the maHer with the Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 247 Civil Writ Petition No 1746 of 2008 r 1 Police and the ArmyAuthorities and also soughtthe advice of the of Home AHairs and Justice in the matter of destructionof the said stocks The ArmyAuthorities had in turn requestedfor an EnvironmentClearance Certificate from the Ministryof Environment C Governmentof India who had directedthe District Administration to 0 0 contact the Chief Controllerof ExplosivesDepartmentof Explosives I underthe Ministryof Commerce and Industryas the matter did not 9 I according to the Ministtyof Environment relate to their MinistryThe DistrictAdministration is reportedto have thereuponapproachedthe Z Chief Controller of ExplosivesDepartment of ExplosivesNagpurwho r stated that the matterdid not fall within theirjurisdictionand that it was I for theArmyAuthorltlesto disposeof the seized explosivematerial The 08 DistrictAdministration was also advised to take up the matter with the Deputy Chief Controller of ExplosivesChandigarhwho appears to have 7 Z expressed his inabilltyto take any action in the matter 0a Itwas in the above that the District Administration vide its Ietter dated 20122007 requestedthe Army Authorities to respondto the situation keepingIn vIew the urgency and thesensltivlty of the issue The Chief Controller of the State Government was also requestedto take up the matter with the Ministryof Home Affalrs The petitioners caseIS that despiterepeatedattemptsmade by the District AdministrationLudhiana the Army Authorities have not favourablyto the task of disposalof the explosivematerial withthe result that the securityof the entire area around the Place where the explosives are Iyingis seriouslycompromisec4 mandamus the respondentsto Immediately take up the matter and to Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 248 Clvll Writ Petition Noa 1746 of 2008 Il ensure disposaiof the explosivehas therefore been prayedfor as alreadynoticed earlier When the petitioncame up for hearingon 292009 counsei m for Governmentof Indiainformedthe Court that a meetingin connection tr with the disposalof the ammunition described earlier had been 0 0 convenedby the PunjabState Home Secretar The Depanmentof I Customswas also directed to state whether the Customs Authorities C5 I had initiated any action for recovery of demurragechargesand the expensesinvolved in disposaiof the explosivesfrom those who had Z the ammunitionstocksf so the nature of the action initiated Q directedto be indicated and in case no action had been initiated was I the reasons for the failure of the Customs Authorities to do so were 08 ordered to be placedon record On 4009 when the mattercame up again the minutesof w2 Z meetingheld on 291 009 under the Chairmanshipof the Principal Home Punjab were placedon record From a readingof the said minutes it appearedthat the DeputyCommissioner Ludhiana had been directed to take up the matter immediatelywith the CentraI ExciselCustomsDepartment for arrangingthe involved in the disposal of the explosivematerial The minutes further indicated that the Central ExclselCustoms Departmentmay need to recover the said amount from the partieswho had importedthe material Issues relatingto compensation package insurance cover declaration of battlecasualtystatus sanction of contingentexpendituredeployment of PAP Bomb DisposalSquadto assist the Armyduringthe operation which was code named Sanyamwere also examined and decisions Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 1 249 Civil Writ Petition No746 of 2008 51 taken The Commissioner of Customs Amritsar had also placedon record copiesof orders of confiscation of the material importedby the partiesconcerned and impositionof fine upon them The orders 1 revealed that a total fine amount of Rs14500001e was Ievied upon seven importersresponsiblefor importof the explosivematerial which 0 C amount was found to be much Iessthan what was Iikelyto be the cost of I disposalof the materlalconservatively assessed bythe ArmyAuthorities C5 I at Rs00000001 or so This Court therefore directed the Deputy Commissioner Ludhiana to assess the expenditureinvolved in the Z r disposalof the ammunitionin consultationwith Commissioner Customs r Amritsar and to apportionthe same among the importersresponsible I for the importof the material lll proportionto the quantityof the 08 ammunition importedAt the same time this Coutt impleadednine importers responslblefor the importof the material as party 7 Z respondents to the petition The Commissioner of Customs Amritsar pursuantto the above and based on the deliberations held with the Authorities assessed the cost involved in the disposalof the explosive material at Rsl 35051 171mand apportioned the said amount among the importersresponsiblefor bringingthe explosivemateriai into this Country All the importersresponsiblefor this import were also represented in this Court except Mls Nabha SteeIs Mandi Gobindgarh who chose to remain absent despiteservice of the notice Time was prayedfor and grantedto the imponersto Ole their response to the affidavitassessingthe amount of and apponionment thereof and to explainas to whydirectionsfor paymentof the amount involved Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 250 Civil Writ Petition No 1746 of 2008 V 111the disposal01the material should not be issued againstthem The assessment and of the involved in the disposalof the materialamongthe importers was as underl 1 0Qty ncldental r Name 01QtYe 0 Exploslv S Fue4 Total PartyIMlslexploslveexploslvototal 0 Charges Rsl IPcSel materiai of oHIccmLubrlcant 0 IBoxosI dotccted ries and IFOLI only in persons case 01 C below actual t officers damage I rank army C5 1 IPBORI 1 I 1 Bhushan 10638 24 88 10263383 1317240 70848 59585 176038 SteelSl 4 Chandlgarh t z 2 Rav 39 0 32 37627 4829 260 218 645 43579 3 Upper 705 83 680173 87296 4695 3949 11666 787780 4 Steels Ltd1 I Ludhiana 4 Raghav 308 255 297154 38138 2051 1725 5097 344165 08 Il ndustrles ILudhIana f 5 Gandharv 95 79 91655 11763 633 532 1572 106155 Alloys 7 Ludhlana 1 Z t 6 Nabha 6 2 05 5789 743 40 34 99 6705 Steels Qe 7 Sharu 152 126 146647 18821 1012 851 2515 169848 Steels Ludhlana 8 Bassi 78 065 75253 9658 519 437 1291 87159 AlloyS Mandl Goblndgarh i 9 Best Sfeeis 65 54 62711 8049 433 364 1076 72632 Mandi Gobindgarh 1 TOTAL 12086 26 100 1496537 80492 67696 200000 13505117 When the matter came up again before us on 972009 counselfor private of the ammunitionsubmitted that their cllents were ready to deposit with the Deputy CommissionerlDlstrictMaglstrateLudhiana the amounts determined agalnst each one of them towardschargesfor disposalof the explosive Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 251 1 Civil Writ Petition No 1746of 2008 1 materialin terms of Annexures A2 and A3 to the amdavit sworn bythe Commissionerof Customs Amritsar They funher urgedthat the amountdeterminedby the ArmyAuthoritiesand the District Magistrate 1 Ludhiana appearedto be on the higherside and prayedfor Iibenyto t the District Maglstratefor a fresh determinationlreviewof the 0 C costsinvolved in the processof disposalof the said explosivesaner the same have been destroyeclThey agreedto abide by the fresh C5 determination made by them even if the Authorities came to the conclusionthat the amount alreadydeterminedwas Iess than the actual Z incurred in which event the imponersagreedto deposit r even the additional amount so incurred Theyalso made a statement I that in case depositsare not made this Court was free to pass 08 orders includingdirections for examination of the criminal C of the importingrespondents It was on that note that the e Z of orders in this petitionwas reserved to enable the ll to make a depositand to Issue directionsdependingupon whetherthe depositshave been made Ms MadhuDayal Additional Advocate General Punjab has fiied a communication dated 102009 received from the District Ludhiana pointingout that all the imponersexcept Mls Raghav Industrles Ludhiana had depositedthe amount determined against it This impliesthat majorpai1of the amount requiredfor of the material has been received In so far as Mls Raghav Ludhiana who has not made the depositis concerned we see no reasons why a directionfor paymentof the amount involved in thedisposalof the materialshould not be issued againstit Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 252 Civil Writ Petition No1746 of 2008 22 The only further direction that we need to issue is to the Government of Punjaband the District MagistrateLudhiana to ensure that the explosivematerial is disposedof after takingsuch precautions 1 Q and safetymeasures as may be essential to preventany Iossof Iife Iimb or propertyto anyone involved Ill the task of disposalor any other 0 C Citizen There is no manner of doubt that the cost of such disposalmust I C5 be entirelyborne by the importersthemselves and the said cost cannot I be confused with the Ievyof One upon them We say so because while Z Ievyof fine may take care of the irregularity or breach of any provision of the statute in the makingof the importthe same cannot be deemed to be inclusive of the cost involved in the of I hazardous or explosivematerialIikethe one reponedin the instantcase 08 no in fairness to counsel appearingfor the imponerswe must mentionthat 3 even theydid not disputethat the Iiability on account of the expenditure Z incurred on the dlsposalof the explosivematerial Iies entirelyupon the tl importers All that was submittedwas that the assessment of the cost of the disposaimay be on the higherside which aspect could be ree examinedbythe DistrictAdministrationon the which the importersmay make before the District Magistrate That Iibenyhas aireadybeen grantedto the importersand we see no reason whythe same shouldnot be made absolute with the clariOcationthat no pan of theexpenses involved on the disposalof the explosivematerialshall be excluded from reckoning while determining the total expenditureWe make it clear that expenses of any nature whatsoever including on use of vehicles petroloil and Iubricants or payments madeto officers expertsand employeesmazdoors towards completion Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 253 Civil Writ Petition No1746 of 2008 2 of operationSanyam shall not form a burden for the PubIic Exchequer The District Magistrateand the Commissioner of Customs Amritsar shall be free in this regardto redetermine the amount takinginto m consideration any which the imponersmay make and recover the shortfall or refund the excess if any paid by them as the 0 C case may be In the result this petitionis allowed with the directionthat the C5 I Home Secretaryto Governinent of Punjabshall personallycodinate the process of disposalof the explosivematerialtakingall precautions Z for the safetyand securityof the peoplein the neighbourhood and those l involvedin the exercise of disposalof the materialwhich exercise ought I to be completed but not iater than two months from the 08 date a copy of this order Is received bythe Home Secretary Needless C to say that all Authoritles statutotyor otheiwise includingthe Army 7 Z Authorities shall Iend whatever coaoperation and assistance is needed Clw for the disposalof the materialso that the material stands defused and disposedof before any untoward incident takes place Mls Raghav Industries Ludhlana shall deposit the amount of Rs441 651e determined as its share of the expenditure within two months from today failingwhich the same shall be recovered as arrears of Iand Pl revenuefrom the an1e respondentLibertyis however givento all the importers to make a suitable to the District Magistrate Ludhiana for redeterminationof the amount of expenditureinvolved in the disposalof the exploslvematerial in which event the District shall redetormine the amount and recover the shonfall or refundthe excess if any paldas the case may be Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document 254 Civil Writ Petition No 1746 of 2008 l Parties are directed to bear their own costs in these proceedlngs 1 Chie Justice 0 0 e C5 Judge November OK Z I 08 O 7 Z 11 0L1 olfl 6 1A P c Rawat Seema 2013.12.28 10:22 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:51 I attest to the accuracy and integrity of this document