HINDUSTAN FIRE WORKS Vs. STATE OF U P
LAWS(ALL)-2009-5-114
HIGH COURT OF ALLAHABAD
Decided on May 19,2009

HINDUSTAN FIRE WORKS Appellant
VERSUS
STATE OF UTTAR PRADESH Respondents


Referred Judgements :-

P D AGRAWAL VS. STATE BANK OF INDIA [REFERRED TO]


JUDGEMENT

Arun Tandon, J. - (1.)HEARD Sri S.M.A. Kazmi, Senior Advocate assisted by M/s. Tahira Kazmi, learned counsel for the petitioner, Sri R.N. Singh, learned counsel for the respondent no.5, learned Additional Solicitor General of India for the respondent nos. 3 to 5 and learned Standing Counsel for State-respondents. Petitioner before this Court is the proprietor of firm, M/s Hindustan Fire Works engaged in the business of selling Crackers and Sparklers from his shop in the City of Varanasi. Petitioner is stated to have granted licence for sale, purchase and storage of 100 k.g. Crackers and 1000 k.g. Chinese Sparklers (Low Hazard) under the Explosives Act. Petitioner was served with an order of the Joint Chief Explosives Controller, Madhyanchal, Agra dated 20/23rd July, 2007 cancelling the licence of the petitioner dated 25th January, 2000, 2009. Such cancellation was based on the recall of the No Objection Certificate vide letter dated 27th October, 1999 of the District Magistrate. Petitioner approached this Court against the aforesaid order by means of Civil Misc. Writ Petition No. 40793. Initially an interim order was granted by this Court in the said writ petition on 6th November, 2007. However, ultimately the writ petition was dismissed vide judgment and order dated 15th November, 2007 on the ground that petitioner has efficacious statutory alternative remedy by way of appeal under Rule 159 of the Explosive Rules, 1983 (hereinafter referred to as the 'Rules, 1983') before the Chief Controller of Explosives, Nagpur. Petitioner filed his appeal, which was numbered as Appeal No. R.4(2)83/APPEAL-UP575/E. Hearing of the appeal took place on 11th January, 2008 and the Chief Controller of Explosives, Nagpur/Appellate Authority by means of an interim order set aside the cancellation of the licence of the petitioner dated 20/23rd July, 2007 with a further direction upon the District Magistrate, Varanasi to review the reasons for cancellation of the No Objection Certificate earlier granted in favour of the petitioner. The order itself records that aforesaid direction was being issued with reference to Rule 170 of the Rules, 1983. The District Magistrate on receipt of the aforesaid order passed an order dated 30th January, 2008 again reaffirming his stand qua cancellation of No Objection Certificate. The Chief Controller of Explosives, Nagpur/Appellate Authority forwarded the order/report of the District Magistrate dated 30th January, 2008 to the petitioner for meeting the allegations made therein. The petitioner did not submit any reply to the aforesaid within the time prescribed but made an application dated 24th March, 2008 asking for certain documents and grant of time for the purposes of submitting detail reply as certain information was wanted. No reply to the letter was forwarded nor the documents asked for were made available. The Appellate Authority by means of the order dated 2nd February, 2009 has dismissed the appeal filed by the petitioner after recording that despite sufficient opportunity being afforded tot he petitioner he had not submitted any reply to the report of the District Magistrate dated 30th January, 2008 withdrawing the No Objection Certificate earlier granted in favour of the petitioner. This order of the appellate authority dated 2nd February, 2009 is being questioned basically on two grounds (a) no date and time for personal hearing in the matter was fixed, and therefore, relevant facts could not be brought to the knowledge of the appellate authority, (b) reply to the letter of the District Magistrate could not be submitted within time because of necessary documents being not supplied nor any response to the letter dated 24th March, 2008 was received. The contention so raised on behalf of the petitioner is opposed by Sri R.N. Singh, learned counsel for respondent no.5 as well as by the learned Standing Counsel for the State-respondents. On their behalf it is submitted that personal hearing is not contemplated for the purposes of hearing of the appeal. Since the petitioner had failed to produce any documents or to submit any reply, to the facts recorded by the District Magistrate for withdrawing No Objection Certificate, therefore, the impugned order cannot be faulted with. Therefore, this Court may not interfere with the impugned order on the ground violation of principles of natural justice. Reliance in that regard has been placed upon the judgment of the Hon'ble Supreme Court of India in the case of P.D. Agrawal vs. State Bank of India and Ors., reported in (2006) 8 SCC 776, Paras 30 and 39. I have considered the submissions made on behalf of the parties and have gone through the records of the present writ petition. From the records of the present writ petition it is apparently clear that on 24th December, 2007, when the appeal was taken up for consideration by the appellate authority, personal hearing did take place and the appellate authority vide order dated 11th January, 2008 after considering the submissions made by the parties through their representatives was pleased to set side the order of the Joint Chief Explosives Controller, Madhyancahl, Agra cancelling the licence of the petitioner vide order dated 20/23rd July, 2007. Reasons for such cancellation are borne out from the order of the appellate authority dated 11th January, 2008, which records that the District Magistrate has not given specific reasons for withdrawing the No Objection Certificate, which was earlier granted by him in favour of the petitioner. Further, the issue as to whether No Objection Certificate once granted in favour of a person could be withdrawn subsequently or not, has not been examined. The appellate authority instead of remanding the matter to the Licensing Authority for obtaining fresh reports from the District Magistrate qua No Objection Certificate in light of the observations made thereunder, proceeded to exercise its power under Rule 170 of Rules, 1983, which confers a power upon the appellate to hold an enquiry itself. For ready reference Rule-170 reads as follows: "170. Procedure to be followed by the appellate authority.---On receipt of the appeal and if such appeal can be admitted in accordance with the Act, the appellate authority may call for the records of the case from the authority who passed the order appealed against and may make such further enquires as it may deem necessary and after giving the appellate a reasonable opportunity being heard, pass final orders." The appellate authority therefore, decided to examine the correctness or otherwise of the withdrawal of the No Objection Certificate by the District Magistrate itself and accordingly, required the District Magistrate to review the reasons for cancellation of the No Objection Certificate and to report to the appellate authority itself directly. The District Magistrate is stated to have submitted his report in compliance to the order of the appellate authority dated 11th January, 2008, vide letter dated 30th January, 2008, which contained detail reasons for withdrawal of the No Objection Certificate. This letter of the District Magistrate was forwarded to the petitioner vide letter dated 12th March, 2008 with an opportunity to submit his reply to the facts mentioned in the report of he District Magistrate. On receipt of the letter, petitioner forwarded his application dated 24th March, 2008 to the appellate authority seeking certain documents, which were referred to in the letter of the District Magistrate in order to enable him to submit detail reply. However, such documents were not made available to the petitioner. It is stated that petitioner made an application under the provisions of Right to Information Act, 2005 for supply of the documents, which are still awaited. Reference has been made to the letter of the Explosives Department dated 16th June, 2008, issued with reference to Section 6 (1) of the Right to Information Act, 2005, stating that the information asked for by the petitioner shall be provided after obtaining acceptance of concerned Explosives Sellers. However, till date documents asked for by the petitioner have not been received. On 2nd February, 2009, the appellate authority dismissed the appeal after recording that petitioner has not submitted his reply to the various facts found mentioned in the report of the District Magistrate and it is to be presumed that he has no case in opposition thereof. Consequently since No Objection Certificate has been withdrawn, licence of the petitioner has to be cancelled in the interest of public peace and public safety as per Section 6(E) 3(b) of Explosives Act, 1884. In the impugned order, it is apparently clear that reference has been made to the personal hearing, which had taken place in the matter on 24th December, 2007. It is not in dispute between the parties that subsequent to the receipt of the report of the District Magistrate dated 30th January, 2008, no date for personal hearing in the matter was fixed. This Court has to examine as to whether opportunity of personal hearing was required before deciding the appeal by the appellate authority or not in the facts of the case. For appreciating the aforesaid controversy raised in the present writ petition, it is worthwhile to refer to Rule 170 of Rules, 1983 quoted herein above. The Chief Controller of Explosives, Agra/Appellate Authority exercised powers under Rule-170 of Rules, 1983 for deciding the issue as to whether the No Objection Certificate earlier granted by the District Magistrate had been revoked on valid grounds or not. Further since on an earlier occasion while considering the same appeal at the interim stage, the appellate authority had done personal hearing on 24th December, 2007, the petitioners were justified in informing that after the District Magistrate had submitted his report vide letter dated 30th January, 2008, a date for personal hearing shall be fixed and such hearing will take place. However, no such date for personal hearing was fixed by the appellate authority before passing the impugned order. I am of the considered opinion that if the Appellate Authority decided to exercise the power of getting a further enquiry conducted under Rule 170 of Rules, 1983 and on earlier occasion had heard the appellant in person, it was logical that after report was obtained from the District Magistrate, opportunity of personal hearing in the appeal was required especifically when the appeal was decided after more than one year of the report from the District Judge. It is not necessary to enter into the other issue raised for challenging the impugned order. Consequently the order of the appellate authority dismissing the appeal filed by the petitioner dated 2nd February, 2009 is hereby quashed. Let the appellate authority decide the appeal afresh on merits by means of a reasoned speaking order after affording opportunity of personal hearing to the petitioner as well as to the contesting parties within a period of two months from the date a certified copy of this order is filed which the petitioner undertakes to do so within two weeks from today. The date of personal hearing in the matter shall be fixed by the appellate authority on the date the certified copy of this order is filed before him. It is made clear that no unnecessary adjournment shall be granted to either of the parties. Till such orders are passed by the Appellate Authority petitioner will be permitted to sell the Crackers and Sparklers from the stock which are available at his shop, he shall not be entitled to make any new purchase. If the petitioner is so advised he may make necessary correction in the section under which the appeal has been filed. The writ petition is allowed subject to the observations made above.


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