IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 WP(C).No. 8314 of 2008(M) ------------------------- PETITIONER: ------------ P.P.UDAYASANKAR, S/O.P.BHASKARAN, RESIDING AT SANGEETH, PUTHIYANGADI, CALICUT. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: ------------- 1. THE CORPORATION OF CALICUT, REPRESENTED BY ITS SECRETARY, CORPORATION BUILDING, BEACH ROAD, CALICUT. 2. THE SECRETARY, CORPORATION OF CALICUT, CORPORATION BUILDING, BEACH ROAD, CALICUT. 3. THE DISTRICT MAGIRSTRATE,[ADM], KOZHIKODE. 4. THE DISTRICT COLLECTOR, KOZHIKODE. R1 & R2 BY ADV. SRI.P.V.KUNHIKRISHNAN R3 & R4 BY GOVT.PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX:- EXT.P1 TRUE COPY OF THE LICENCE ISSUED BY THE DEPUTY CHIEF CONTROLLER OFEXPLOSIVE DATED 3-3-2008. EXT.P2 TRUE COPY OF THE RECEIPT ISSUED BY THE KOZHIKODE CORPORATION. EXT.P3 TRUE COPY OF THE PLAN OF THE PREMISES. EXT.P4 TRUE COPY OF THE APPLICATION FORM SUBMITTED BY THE PETITIONER SEEKING RENEWAL OF THE LICENCE. //TRUE COPY// PS TO JUDGE. PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 8314 OF 2008 ----------------------------------------------- Dated this the 24th day of March, 2008 J U D G M E N T The petitioner is a holder of licence for selling of crackers and other fire work materials and he has filed this writ petition under Article 226 of the Constitution of India arraying the Corporation of Calicut (R1), the Secretary of the Corporation of Calicut (R2), the Additional District Magistrate, Kozhikode (R3) and the District Collector, Kozhikode (R4) seeking the following reliefs: 1. Issue a writ of mandamus or other appropriate writ, order or direction directing the 1st and 2nd respondents to accept, process and order the renewal application submitted by the petitioner. 2 Issue a writ of mandamus or other appropriate writ, order or direction directing the 3rd and 4th respondents not to issue any prohibitory order restraining the petitioner from storing and selling fire works in his premises legally and on the basis of a valid licence, without giving him a proper notice and hearing. According to the petitioner, the Deputy Chief Controller of Explosives has renewed his licence on 3-3-08 for a period of two years. Licence was renewed after obtaining no objection certificate from the District Administration including respondents 3 and 4. For storing and selling crackers he has to obtain necessary trade licence from respondents 1 and 2. The petitioner is presently having a trade licence which is valid WP(C)N0. 8314/08 -2- till 31-3-08. For continuing the licence the petitioner has filed an application for renewal in February 2008. Petitioner's grievance is that respondents 1 and 2 are refusing to accept that application. Petitioner expects good business during “Vishu” which falls in April 2008. On enquiry the petitioner understands that his application has not been received on the basis of an oral direction issued by respondents 3 and 4 not renew the licence for storing and selling crackers. According to the petitioner, the above restriction is limited only to places within the commercial areas of the Corporation and not to areas which are in proximity to neighbouring Panchayats. Petitioners premises is hardly 500 metres from the neighbouring Panchayat Ext.P1 produced along with the writ petition is copy of the licence dated 3-3-08 issued by the Deputy Chief Controller of Explosives to the petitioner. As per Ext.p1 petitioner has the permission to possess and sell 100 kgs. of crackers at a given time and is permitted to purchase 10 times of the licence capacity in one calendar month. The petitioner's premises shown in the licence is Door No.39/969, Koya Road Junction, Puthiyangadi which though coming within the area of Corporation is far away from its commercial area and is very near to the neighbouring Elathoor Panchayat. According to the petitioner, his father has been engaged in this trade for the past more than 50 years and there has been no WP(C)N0. 8314/08 -3- untoward incident till this date concerning the petitioner. Ext.P2 is the receipt issued by the Corporation against the licence granted to the petitioner for conducting trade till 31-3-08. The petitioner claims that he has got an open yard and has got all necessary fire fighting facilities including 5 wells, fire fighting equipments, fire extinguishers, water storage tanks of sufficient capacity etc. and relies on Ext.P3 sketch of premises in this regard. Ext.P4 is the application submitted by the petitioner before the first respondent renewal of licence. His grievance is that his application is not being considered at all on the basis of oral directions given by R3 and R4. These directions, petitioner understands, are in the wake of the tragedy which occurred in a building which was used for storing fire crackers in the S.M.Street, the commercial nerve centre of Calicut. As a result of that tragedy sale of firecrackers was banned with the limits of the Calicut Corporation last year. In fact considering the tragedy the traders themselves suspended the sale of firecrackers in S.M.Street. Thereafter the District Collector had permitted the sale of firecrackers in an open ground situated near the Dream City Project of Calicut City, situated on the banks of Canoli Canal. Petitioner understands that R3 and R4 are contemplating a similar action this year also as could be gathered from newspaper reports. According to the petitioner, shifting of sale to WP(C)N0. 8314/08 -4- an open ground will be unsafe since storage of fire works in an open area exposed to heat and also since there is no electric or water supply to the open ground. Chances of short circuit due to unprecedented rains are on the higher side. There is no security for the storage and sale in the open ground which during night is a free abode for anti- social elements. Petitioner also points out that in the open ground where sale was last year permitted by R3 and R4, there are at least three retail fuel outlets within a radius of 250 metres. One is within a radius of just 100 metres. According to him, conducting sale in his shop will be much more safe in view of the facilities which are available. It is on these averments that he has filed the writ petition seeking the reliefs already mentioned. 2. Upon the writ petition coming up for admission Sri.P.V.Kunjikrishnan, Standing Counsel for the Corporation took notice on behalf of R1 and R2 and Government Pleader took notice on behalf of R3 and R4. Government Pleader was asked to get instructions immediately from the third respondent. 3. I have heard Mr.P.A. Harish, learned counsel for the petitioner, Government Pleader for R3 and R4 andSri.P.V.Kunjikrishnan, standing counsel for the Corporation. Sri.Kunjikrishnan's stand was that but for the direction of R3 and R4 WP(C)N0. 8314/08 -5- the Corporation will not have objection for renewal being granted to the petitioner's licence. Sri.K.J.Mohammed Anzar, learned Government Pleader has placed before me the written instructions received by him from the Additional District Magistrate. According to these instructions , an unfortunate fire mishap took place on 5-4-07 in a particular crackers shop functioning in S.M.Street Calicut. In view of that mishap, the additional District Magistrate in exercise of powers under section 6E, subsection (3b) of the Explosive Act, 1884 suspended all the explosive licences in the Kozhikode Corporation until further orders as per the proceedings No.D5/14692/07 dated 5-4-07 considering the fact that the mishap caused considerable loss and damages to the human life and property in congested area like S.M. Street, Calicut. Since several vendors subsequently preferred applications before the District Collector seeking permission to sell fire crackers during Vishu season Collector granted permission on 11-4-07 as per the proceedings dated 9-4-07 in accordance with the circular No.E2(1) Fireworks dt. 9-4-07 issued by the Deputy Chief Controller of Explosives, Ernakulam and the guide lines contained in the Government of India Notification No.GSR.687/(e) dt. 27-9-84 under Explosive Rules 1983. Permission was granted under that proceeding to conduct fire works shops in the premises of “Swapna Nagari” WP(C)N0. 8314/08 -6- ground. Ext.P1 is copy of the circular of the Deputy Chief Controller of Explosives and the same is annexed to the written instructions. Instructions further provide that investigation and court cases relating to fire mishap on the SM. Street are yet to be finalised and therefore the suspension order continues. This year also vendors have submitted application before the District Collector seeking permission to sell fire crackers during Vishu season. Additional District Magistrate convened a meeting on 11-2-08 and 15-2-08 in this regard. Intimation regarding this meeting has been given to the Deputy Chief Controller of Explosives also. But the Deputy Chief Controller of Explosives has informed that since officers are preoccupied with works relating to fireworks display, destruction of explosives, accident investigation etc. last year status quo can be maintained with regard to fire shops in highly congested areas like S.M.Street and other busy areas in Calicut City, those shops in the busy street may be identified and they maybe allowed to function at fire works booths as per the Government of India notification No.GSR/687 dt. 27-9-1984. The District Magistrate shall identify these congested areas as per the advice from the police and Fire Force taking into consideration the density of the population, road traffic,fire fighting, rescue and relief operation in case of any fire accident etc. Written instructions goes on WP(C)N0. 8314/08 -7- state that the issue has been discussed with the Deputy Chief Controller of Explosives, Ernakulam and it has been decided to grant permission to conduct fire work shop in open area as per the guidelines in the Government of India notification No.GSR.687/E dt. 27-9-1984 under the Explosives Rules, 1983. 4. As will be seen from the written instructions given by the Additional District Magistrate to the Government Pleader the details of which are quoted above, the restrictions which are insisted upon in the matter of conducting fireworks shops are only regarding the highly congested areas of the city. The standing counsel for the Corporation was not in a position to dispute the claim of the petitioner that his shop is situated far away from the commercial thorough fares of the city. According to the petitioner his shop is in the outskirts of the Calicut city and Elathoor Panchayat is just 500 metres from his shop. He has also claimed that in comparison to the ground Swapna Nagari his shop has got all safety facilities in the event of any mishap occurring. Under these circumstances I am of the view that the claim of the petitioner that his shop is situated not in a congested area in the city and that there are enough facilities in his premises for attending any emergency situation arising out of any fire mishap is somewhat correct. The corporation should process and pass orders on Ext.P4 application WP(C)N0. 8314/08 -8- submitted by him. Accordingly I dispose of this writ petition issuing the following directions. 5. Respondents 1 and 2 are directed to accept the original of Ext.P4 application for renewal of licence. They are also directed to conduct immediate local inspection of the petitioner's premises and verify whether the petitioner's claim that his shop is situated no on a busy or congested area of the city and the further claim that in his premises there are facilities for meeting any emergency situation arising out of any fire mishap are correct. If the verification reveals that the claims are correct R1 and R2 will finalise Ext.P4. The needful in compliance with the above direction will be done by R1 and R2 at the earliest and at any rate within seven days of receiving a copy of this judgment. Issue photocopy tomorrow itself. (PIUS C.KURIAKOSE, JUDGE) ksv WP(C)N0. 8314/08 -9-