IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : EXPLOSIVES RULES, 2008 W.P.(C) 7020/2012 DATE OF DECISION : 07.11.2012 AJAY GOEL... Petitioner Through: Mr Tarun Sharma & Ms Aprajita Singh, Advs. versus COMMISSIONER OF DELHI POLICE... Respondent Through: Mr Nitin Saluja, Adv. for Mr Najmi Waziri, St. Counsel with ASI Rajesh, Licensing Department. CORAM: HON'BLE MR. JUSTICE RAJIV SHAKDHER Yesterday, the following order was passed by this Court:..W.P.(C) 7020/2012 Issue notice. Mr. Waziri accepts notice on behalf of respondent No.1. The claim of the petitioner is that, he had applied for grant of temporary fire works license, in the requisite form, on 20.07.2012. The petitioner s application was rejected only on 2.11.2012, and immediately thereafter, he has moved the Court. It is the case of the petitioner that, the ground for rejection articulated in the impugned order is that there is a shop within 15 metrers of the petitioner s shop, which has been issued a permanent license for selling crackers, and therefore, granting permission to the petitioner would entail violation of Rule 86(3) of the Explosives Rules, 2008 (in short the said Rules). Rule 86 (3) reads as under:- Shop.---The shop licensed for storage and sale of small arms nitrocompound, fireworks or safety fuse shall be at a distance of minimum fifteen metres from any such premises or any other premises used for storage of similar explosives, flammable or hazardous materials.
It is the case of the petitioner that the said rule has no applicability, for various reasons. First, that it would apply to a shop used for storage. Stores has been defined in Rule 82, which envisages storage of quantities of inflammable material in the range of 5000 kgs. Second, the petitioner in previous years has been granted permission despite, the said Rule being on the statute book. In this regard, the learned counsel for the petitioner submits that the petitioner has been issued a temporary license since 2002 even while the neighbouring shop has continued to sell crackers, under a permanent license, issued to its owner. The learned counsel for the petitioner further submits that the Supreme Court has made an exception in the case of shops. Reliance in this regard is placed on the order passed by the Supreme Court in the case of Sadar Bazar Fire Works (Pucca Shop) Association (Regd.) Vs. M/s Pankaj Traders & Ors. and Babu Lal & Ors Vs. DCP (Licensing) N.D. & Ors. Fire Works (Pucca Shop)Association Vs. M/s Pankaj Traders & Ors dated 22.10.1993; pertaining to shops in Sadar Bazar and Jama Masjid. Keeping in view of the urgency of the matter, the learned counsel for the respondent is directed to obtain instruction and report to the Court on 07.11.2012, as regards its stand in the matter. In the forenoon today, Mr Saluja, who appears for the respondent, was directed to obtain instructions vis-à-vis the areas in which purportedly temporary licenses had been issued, according to the petitioner, to the similarly circumstanced; though denied to the petitioner. These areas being: INA, Sadar Baazar and Jama Masjid. Mr Saluja, was directed to file a one page affidavit, in respect of the submission made by the learned counsel for the petitioner. Mr Saluja has returned with oral instructions. He submits that since time was short, no affidavit could be filed. This position is understandable. The only reason, Mr Saluja was asked to take instructions, as the festival of Diwali is on the anvil, and the entire petition would become infructuous in case it is not dealt with today. It may be noted that, Mr Saluja has come back with an oral instructions that, in none of the areas referred to above temporary licenses have been issued, as claimed by the petitioner. The counsel for the petitioner, however, continues to dispute the said position. Notwithstanding the above, I had examined the contours of the case yesterday, as indicated above. Broadly, the petitioner s challenge to the impugned order is based on three grounds: (i) Rule 86(3) of the Explosives Rules, 2008 (in short the said Rules), to which I have made a reference in the previous order, does not apply to the
shops which sell fire crackers. For this purpose reliance is placed on Rule 82 of the said Rules; (ii) the Supreme Court, in the order passed in the case of Sadar Bazar Fire Works (pucca Shop) Association (Regd.) vs M/s Pankaj Traders & Ors dated 22.10.1993 in SLP No. 17327-28/1993 has allowed temporary license to be issued qua shops selling fire crackers; and (iii) lastly, the petitioner has been granted a temporary license since 2002 and the situation is no different in the current year. The argument being that, the neighbouring shop, which has been granted a permanent license, has continued to exist, at least since 2002, for the same purpose, i.e., to sell fire crackers. Mr Saluja, on the other hand, as noticed on the last date, insists that no exception can be granted in this case. He concedes though that the only exception is provided in the Supreme Court s order, referred to above, qua shops in Jama Masjid and Sadar Baazar. In so far as argument of the petitioner is concerned, that license has been granted since 2002, Mr Saluja says that, this apparently is a mistake, and it can certainly be corrected in the current year. I have heard the learned counsels for the parties. I am not impressed with the argument of the petitioner qua Rule 86(3) of the Explosives Rules. A closer examination of Rule 82 would show that a store house is a place which is used for possession of fire works not exceeding 5000 kilograms or safety fuse not exceeding fifty thousand meters, which are not for sale. It is not known, as a matter of fact; at this stage: if nothing else, as to whether or not the shop adjoining the petitioner s shop proposes to store, if at all, any quantity of explosive/ inflammable material and, the quantity involved in the case. This would become a matter of enquiry. Therefore, it cannot be said, as a matter of Rule, that shops, which sell fire crackers, do not come within the ambit of Section 86(3) of the Rules. As long shops store a certain quantity of explosive material, prima facie it can fall within the ambit of Rule 86(3). To construe the Rule in a fashion that as long as shop sells fire crackers it can store explosive material of any quantity without adhering to the requirement of inter-se distance would lead to an anomaly. There is, however, another aspect whch requires consideration qua the construction of Rule 86(3). In this regard, I may refer to Rule 84(2) of the said Rule, which reads as follows: 84. Temporary shops for possession and sale of fireworks during festivals. xxxx
(2) The sheds for possession and sale of fireworks shall be at a distance of at least three meters from each other and fifty meters from any protected work. A reading of sub-rule (2) of Rule 84 seems to suggest that if temporary shops are raised then, the distance which is required to be maintained between two shops is only three meters. As noticed above qua permanent structures, contrary position obtains under Rule 86(3). Prima facie, if the purpose of the Rules is to prevent an untoward accident and/or an incident, then to have a provision of only three meters distance between temporary shops as against fifteen meters between permanent shops, does not appear to stand to reason. These rules will have to be read together. Therefore, for the moment, I do not intend to express a definitive view either way on the construction of the said Rule, as the argument made by the learned counsel for the petitioner in respect of the other two grounds has weighed with me. I have perused the order of the Supreme Court dated 22.10.1993. Even though it refers to the traders, who were before the Supreme Court there is no exception carved out which would suggest that its directions would not apply to traders, who are located in other parts of the city. This is evident from the following observations made by the Supreme Court in its order dated 22.10.1993:. The authorities will consider the request for grant of temporary licence to pucca shop owners in the Sadar Bazar and Jama Masjid areas provided the shop owners provide in their shops: (a) Sufficient number of sand bags as may be directed by the authority; (b) A water tank of the capacity as may be determined by the authority; (c) One or more fire extinguishers, as may be directed by the authority; (d) Restriction on stock to be kept so as not to exceed the quantity allowed by the authority; and (e) Such other precautions as the authority may consider appropriate to direct. The temporary licence will, however, be issued to only those shopkeepers whose shops are not adjacent to shops in which inflammable or highly combustible products are sold and the shops are situate on the main thoroughfare where a fire brigade vehicle can have easy access and the location of the shop is within the easy reach of its hose pipes. If the authorities deem it necessary to station a fire brigade vehicle in that locality to meet with an emergency, the temporary license holders will bear and deposit the expense thereof in advance, as may be directed by the concerned
authority. In on account of the sale of fire crackers extra security arrangements are required to be made they may be made by the authorities and the temporary licence holders will bear and deposit the expenses thereof in advance, as may be directed. It is clarified that the above conditions are in addition to and not in derogation of the requirements of the Act and the Rules made thereunder. Since the question of grant of temporary licence is within the discretion of the concerned authority, it will be open to the concerned authority to add to the above precautions having regard to movement of pedestrians, vehicles, etc, on the main roads. If the licensing authority refuses to grant a license the reasons for so doing will be stated in writing to enable this Court to appreciate its view-point (emphasis supplied) As rightly pointed out by the learned counsel for the petitioner, this order appears to have been clarified on 01.11.1993. The order being short, it is once again extracted for the sake of convenience: It appears that after this Court s order of 22nd December, 1993, the authorities have issued a circular dated 26.10.1993 imposing certain conditions in regard to which the petitioners have no objection, save and except condition ii(a) which provides that the premises to be used for sale of crackers, etc. shall be at a minimum distance of 15 meters from any such premises used for storage of similar explosives and hazardous materials. After some discussion at the bar, Mr Lahiri, the learned counsel for the respondents, states that appropriate instructions will be issued so that temporary licence are not denied on the ground that the cracker shops are adjacent to each other. We have also indicated to Mr Lahiri that what was intended was that if there is any shop adjacent to the shops in respect of which licence is sought wherein any other highly inflammable and combustible material is being sold, that may be a factor which may weigh with the authority. In view of the statement made by Mr Lahiri, we do not think it necessary to issue any direction. The proceedings will stand terminated with liberty to mention if there is any difficulty. The application for temporary licences should be processed without delay. The parties may be advised to complete the forms wherever there are deficiencies. With these observations, the Special Leave Petition are disposed of. (emphasis supplied) On a combined reading of the aforesaid two orders, there is no doubt
that, temporary license can be issued even though the minimum distance of 15 meters is not maintained. Therefore, according to me, the petitioner has a case for to grant of a temporary license. In so far as the last submission is concerned, as indicated above, learned counsel for the respondent has not denied that petitioner has been issued temporary license since, 2002. That being the position, I do not see any different circumstances obtaining in the current year for denial of license to the petitioner on the ground indicated in the impugned order. Therefore, the impugned order is set aside. The respondents are directed to issue a temporary license to the petitioner by forenoon tomorrow. ASI Rajesh, Licensing Department, who is present in Court, is made aware of the order of this court. The parties will, however, bear in mind the additional conditions imposed by the Supreme Court in its order dated 22.10.1993, so that the possibility of a fire hazard is eliminated. With the aforesaid directions, the writ petition is disposed of. Dasti under the signatures of the Court master. NOVEMBER 07, 2012 Sd/- RAJIV SHAKDHER, J