Smt. Kalavathi vs. Director General And Inspector

- 1 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R

TH
DATED THIS THE 6 DAY OF NOVEMBER, 2023


BEFORE

THE HON'BLE MR JUSTICE M.NAGAPRASANNA

WRIT PETITION NO. 24195 OF 2023 (GM-RES)


BETWEEN:

SMT. KALAVATHI
W/O MANJUNATHA M.,
AGED ABOUT 44 YEARS
R/AT NO.35, HARIPRIYA NILAYA
VEERENAHALLI VILLAGE
VIRGONAGAR POST
BIDARHALLI HOBLI
BENGALURU EAST TALUK
BENGALURU – 560 049.
…PETITIONER










(BY SRI SHARATH S.GOWDA, ADVOCATE)

AND:

1. DIRECTOR GENERAL AND
INSPECTOR GENERAL OF POLICE
KARNATAKA STATE POLICE HEAD QUARTERS
NO. 2, NRUPATUNGA ROAD
BENGALURU – 560 001.

2. THE SUPERINTENDENT OF POLICE
BANGALORE DISTRICT
NO.5, MILLERS ROAD
BENGALURU – 560 052.


Digitally signed by
PADMAVATHI B K
Location: HIGH
COURT OF
KARNATAKA


- 2 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



3. DEPUTY SUPERINTENDENT OF POLICE
HOSKOTE SUB-DIVISION
HOSKOTE - 562 114.

4. AVALAHALLI POLICE STATION
NH75, VIRGONAGAR POST OFFICE
AVAALAHALLI, BIDARAHALLI
UTTARAHALLI HOBLI
BENGALURU – 560 049
REP. BY STATION HOUSE OFFICER.

5.
DEPUTY COMMISSIONER
BENGALURU URBAN
K.G.ROAD
BEHIND KANDAYA BHAVAN
BENGALURU – 560 009.

6. THE TAHSILDAR
BENGALURU EAST TALUK
K.R.PURA, BENGALURU – 560 036.

7. REVENUE INSPECTOR
BIDARAHALLI HOBLI
BIDARAHALLI NADAKACHERI
BANGALORE EAST TALUK
BENGALURU – 560 049.

8. THE CHIEF CONTROLLER OF EXPLOSIVES
PETROLEUM AND EXPLOSIVES SAFETY
ND
ORGANZATION, 2 FLOOR, CITY CENTRE,
OPPOSITE TO HOTEL ROOPA,
BALMATTA ROAD,
MANGALURU – 575 001.
…RESPONDENTS
(BY SRI K.S.HARISH, GOVT. ADVOCATE FOR R1 TO R7;
SRI H.SHANTHI BHUSHAN, DSGI, FOR R8)

- 3 -
NC: 2023:KHC:39426
WP No. 24195 of 2023




THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DTD 25.10.2023 PASSED BY THE R5,
DISTRICT MAGISTRATE / DEPUTY COMMISSIONER IN
NO.MAG(5)/CRACKERS/CR/137/2022-23, VIDE ANNEXURE-A
AND ETC.,

THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER

The petitioner – proprietor of a business is before this
Court seeking quashment of an order dated 25.10.2023 passed
by respondent No.5 – Deputy Commissioner and a direction by
issuance of the writ in the nature of mandamus restraining the
respondents – authorities from interfering with the petitioner’s
business of sale of fire crackers, during the subsistence of valid
license at the schedule premises.

2. Heard Sri Sharath S. Gowda, learned counsel for
petitioner, Sri K.S.Harish, learned Additional Government
Advocate for respondent Nos.1 to 7 and Sri H. Shanthi
Bhushan, learned Deputy Solicitor General of India representing
respondent No.8.

- 4 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



3. The petitioner claims to be a recipient of license of a
premises in survey Nos.44/1 and 44/2 in Veerenahalli Main
Road, Bidarahalli Hobli, Bengaluru East Taluk. It is her further
claim that he has secured No Objection from all quarters in
terms of Rules 101 and 102 of the Explosives Rules, 2008 (for
short ‘the Rules’). The petitioner later applies for license under
Section 105 of the Rules for a changed premises. The Deputy
Commissioner appears to have directed securing No Objection
from all the concerned departments. After conducting spot
inspection, the license was granted in favour of the petitioner.
An untoward incident takes place on 07.10.2023 in a fire
cracker godown at Attibele village, Anekal Taluk, Bengaluru.
Based upon the said incident, several licenses come to be
cancelled, one of which is that of the petitioner. It is this action
that has driven the petitioner to this Court in the subject
petition.

4. Learned counsel appearing for the petitioner contends
that before cancellation of license, no opportunity of hearing is
afforded to the petitioner. While granting permission or issuing
NOC all the necessary inspection and precautionary measures

- 5 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



were checked and found to be present in the premises of the
petitioner. He would submit that merely because an untoward
incident happens on 07.10.2023, every license holder is
punished.

5. Sri Shanthi Bhushan H., learned Deputy Solicitor
General of India representing respondent No.8 was directed to
accept notice and was further directed to cause an inspection of
the property of the petitioner. The Deputy Solicitor General of
India through the Controller of Explosives has undertaken the
inspection of the premises of the petitioner and filed his report.
The report projects the following lacunae:
“Licence No.Licensed in LE-5:MAGA(5) CR/137/2022-
2023
Valid upto 31.08.2028.
Date of Inspection 05.11.2023

Fireworks shop may be allowed to operate with
following conditions

1. Stock registered shall be maintained.

2. Two numbers of fire extinguishers (DCP Type
– 10 Kg each) along with two numbers of
sand buckets and water buckets shall be
provided in the premises.


- 6 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



3. Fireworks shop shall have area within 9 sq. M
to 25 sq.M in accordance to rule 83(2) of
Explosives Rules 2008.

4. Fireworks shop granted by authorities other
than Controller of Explosives shall be
Schedule IV Part 1 Point 5(b).

5. Fireworks shop granted by District Magistrate
/ Deputy Commissioner / Commissioner of
Police shall grant license accomplishing
suitable plan.

Please refer Rule 112 of Explosives Rules 2008 “Every
licence except the licences granted for a specific period
not exceeding one year, shall be renewable for a
st
maximum period of five financial years ending on the 31
March.”
(Emphasis added)

The report further indicates that if the lacunae projected
in the report is set right, permission can be granted. The
learned DSGI would submit that the issue is that the very
license issued is contrary to law. It is his contention that the
Deputy Commissioner has granted licence to store and sell
fireworks/crackers not exceeding 1000 kgs. which power is
unavailable to the Deputy Commissioner.

6. The learned Government Advocate appearing for the
State though would seek to justify that the license is issued by
the Deputy Commissioner but would admit that the license
granted is contrary to law.

- 7 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



7. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.

8. The petitioner is the proprietor of a business vending
fireworks, holding a fire cracker license, granted by the Deputy
Commissioner, Bengaluru District. It is a permanent license to
possess and sell from the shop, not exceeding 1000 Kgs. of
manufactured fireworks/sparklers. Whether the Deputy
Commissioner/District Magistrate is empowered to grant such
license is what is required to be noticed.

9. Grant of license and its cancellation is dealt with under
the provisions of the Act and the Rules framed under the Act.
Chapter VII of the Rules which deals with grant of licences
reads as follows:
“SPECIAL PROVISIONS FOR POSSESSION, SALE
AND USE OF EXPLOSIVES

XXXX

85. Special precautions to be observed for fireworks


- 8 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



(1) Subject to other provisions of this rule,
fireworks shall not be placed or kept a shop window
used for display of goods.

(2) Fireworks in the shop shall be kept in a
spark proof receptacle, or the original outer packet
in which they were received if that package is
effectively sealed and in good order and condition.

(3) A receptacle or package containing
fireworks shall be kept in a position away from and
clear of shop traffic to be separated from all articles
of a flammable or combustible nature.

(4) Where a package containing fireworks is
opened for sale, the fireworks shall immediately be
placed in a clean, dust free and spark proof
receptacle.”

Clause 5 of Schedule IV of the Rules 89 which deals with
licenses and licensing authorities, reads as follows:
“SCHEDULE IV
Part 1
(Refer rule 99)
LICENCES AND LICENSING AUTHORITIES

- 9 -
NC: 2023:KHC:39426
WP No. 24195 of 2023

(Emphasis added)

In terms of Clause 5 of Schedule IV, an application for
grant of license for fireworks/crackers/sparklers to the tune of
500 kgs. is with the Deputy Commissioner – District Magistrate
and between 500 to 1200 kgs., is with the Controller of
Explosives. A perusal at the subject license would indicate it
being granted to store and sell 1000 kgs., which power the
Deputy Commissioner, on the face of it, did not possess.
Therefore, the license granted is contrary to law.


- 10 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



10. There are huge number of cases filed on identical
cause of action. It is a matter of surprise as to how the Deputy
Commissioner has granted licence left, right and center,
exercising power under the Explosives Act qua the quantity,
without having such power. Therefore, the Deputy
Commissioners’ henceforth shall hold their hands in granting
licences beyond 600 kgs of storage and selling of
fireworks/crackers/sparklers, failing which they would be held
accountable for any mishap. What has emerged now due to
the illegal grant of licence by the Deputy Commissioner is, a
place which can store only 600 kgs. is now permitted to store
1000 kgs., they are storage of fireworks or sparklers. It is trite
that ‘a spark neglected can burn the house’ . Therefore, it
is high time that caution is exercised by the State, in grant of
indiscriminate licenses.

11. The petitioner has only applied for a licence. He has
been granted such licence contrary to law. I find no fault with
the petitioner. The situation now is, the petitioner cannot for
the ensuing festival take a fresh license from the Competent
Authority, be it the Deputy Commissioner or the Controller of

- 11 -
NC: 2023:KHC:39426
WP No. 24195 of 2023



Explosives. To redeem this situation, I deem it appropriate to
restrict this license for a storage upto 600 Kgs. of
fireworks/sparklers, which the Deputy Commissioner is
empowered to grant. This remedy is rendered, as a one off
situation, as the festival is ensuing in the next two or three
days.

12. Insofar as the safety measures, in the vending area
are concerned, the lacunae forms the part of the report as
afore-quoted. Therefore, the petitioner is given liberty to set
right all the lacunae and commence the business.

13. In the aforesaid circumstance, I deem it appropriate
to direct the following:

a. Application for storing fireworks i.e., crackers or
sparklers less than 600 kgs. shall only be
considered by the Deputy Commissioner, beyond
600 kgs. the Deputy Commissioner shall not
venture into grant of licence.

b. Every licensee shall maintain safe distance as is
depicted under the Act from the storehouses to any
residential premises or any place of inhabitants.

- 12 -
NC: 2023:KHC:39426
WP No. 24195 of 2023




c. Adequate number of fire extinguishers of adequate
kilograms, shall find place in any
storehouses/shops, where crackers/fire workers or
sparklers are stored and sold.

d. Buckets of water as is necessary under the Rules
shall also be a part of the storehouse.

e. It would be the responsibility of the officers of the
State Government to randomly inspect and take
appropriate action against those licensees of the
storehouses/shops, if they would find any violations
of the terms of licence or any safety measures, on
a case to case basis.

14. Learned counsel for the petitioner submits that if the
premises is unlocked, the aforesaid lacunae as indicated in the
inspection report would be attended to, and corrected
forthwith.

15. For the aforesaid reasons, the following:
ORDER

a. The Writ Petition is disposed.


- 13 -
NC: 2023:KHC:39426
WP No. 24195 of 2023




b. The State – respondent No.7 shall forthwith unlock the
premises and permit the petitioner to correct the
lacunae that is found in the inspection report and as
noted supra , within 24 hours from now.


c. A compliance report shall be placed before the State
Government by the petitioner once the corrective
measures are taken and completed and only after that,
the State Government shall permit the petitioner to
continue the business of selling the crackers in the
said premises.


d. It is made clear that the business would commence
after the compliance report being submitted before the
State Government and its acceptance by them.


e. This order is apart from corrections of the lacunae
indicated in the inspection report.


Sd/-
JUDGE





NVJ
List No.: 1 Sl No.: 66