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Allahnoor Vs. District Magistrate, Chittorgarh - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberCivil Writ No. 43 of 1955
Judge
Reported inAIR1956Raj153
ActsExplosives Act, 1884 - Sections 5; Explosives Rules - Rule 85(3) and 85(5); Constitution of India - Article 19(1) and 19(6)
AppellantAllahnoor
RespondentDistrict Magistrate, Chittorgarh
Appellant Advocate S.M. Raxora, Adv.
Respondent Advocate Kansingh, Deputy Govt. Adv.
DispositionApplication allowed
Cases ReferredKathi Railing Rawat v. State of Saurashtra
Excerpt:
- - state of saurashtra, 1952 sc 123 (air v 39) (a), at page 132. these remarks were made in connection with article 14 of the constitution, but apply with equal force to article 19 :in my opinion, if the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation .thediscretion that is conferred on official agencies in such circumstances is not an unguided discretion;.....file-works, and sale or gun-powder at nimbahera. in that connection, he applied to the district magistrate of chittorgarh for a no-objection certificate under rule 85(3) of the explosives rules as he desired to obtain a license for 200 pounds of gun-powder from the chief inspector of explosives. the district magistrate, however, rejected the application without even looking at the site where the applicant proposed to carry on the business, and gave, no reasons to the applicant for such rejection.the applicant, therefore, has come up to this court and his contention is that he is being deprived of his occupation, and thus his fundamental right granted under article 19(1)(g) of the constitution has been violated. he also attacks the rules under the indian explosives act on the.....
Judgment:

Wanchoo, C.J.

1. This is an application by Allahnoor under Article 226 of the Constitution for a writ, direction or order to the District Magistrate of Chittorgarh, and arises in the following circumstances:

2. The applicant is a person carrying on trade and business of manufacturing file-works, and sale or gun-powder at Nimbahera. In that connection, he applied to the District Magistrate of Chittorgarh for a no-objection certificate under Rule 85(3) of the Explosives Rules as he desired to obtain a license for 200 pounds of gun-powder from the Chief Inspector of Explosives. The District Magistrate, however, rejected the application without even looking at the site where the applicant proposed to carry on the business, and gave, no reasons to the applicant for such rejection.

The applicant, therefore, has come up to this Court and his contention is that he is being deprived of his occupation, and thus his fundamental right granted under Article 19(1)(g) of the Constitution has been violated. He also attacks the Rules under the Indian Explosives Act on the ground that they impose unreasonable restriction on his fundamental right to carry on his trade inasmuch as the rules confer arbitrary power on the authorities to refuse licences. Though Rule 85(5) is not mentioned by the applicant in his application, the main attack is on that rule.

3. The application has been opposed on behalf of the opposite party, and his contention is that he had full authority to refuse the no-objection certificate. Reliance is placed on his behalf on Rule 85(5) in this connection. It is also urged that the opposite party was under no obligation to communicate to the applicant the grounds for his refusing the no-objection certificate.

4. We are concerned in this application with the Indian Explosives Act, 1884, and the Rules framed thereunder. It cannot, in our opinion, be denied that control of explosives by the State is necessary in the interests of the general public, Explosives are dangerous substances, and it is in the interest of the general public that all and sundry should not have explosives in their possession, or should not be permitted to use them for making fireworks, etc., without proper conditions and restrictions.

Consequently Section 5 of the Indian Explosives Act (No. IV) of 1884 provides that the Central Government may make rules to regulate or prohibit, except under and in accordance with the conditions of a licence granted as provided by the Rules, the manufacture, possession, use, sale, etc., of explosives.

Considering the very nature of explosive substances, we are of opinion that Section 5 of the Act, which gives power to the Central Government to regulate and prohibit the manufacture, possession and use, etc., of explosives, contains a reasonable restriction, and it does not require much argument to show that such restriction is in the interest of the general public.

5. We have then to see whether the rules, Which govern the manufacture, possession, and sale of explosives, prescribe reasonable restrictions or not. Rule 84 provides, for example, that a person desiring to obtain a license for these purposes, shall submit an application in writing to the authority empowered to grant such a license.

Where the quantity of explosives involved is up to 25 pounds, the District Magistrate is the authority for granting a license. Where it is more than 25 pounds, but up to 200 pounds, the proper authority is the Chief Inspector of Explosives. Then comes Rule 85(1) which provides that licenses may be granted by the authorities concerned on payment of certain fees, and one of the restrictions is that no license shall be granted to any person under the age of 18 years.

Sub-rule (2) of Rule 85 provides that a license shall be granted for 12 months at a time, and may be renewed from year to year. Then come Sub-rules (3), (4) and (5) which are as follows-

'(3) Where the licensing authority is the Chief Inspector or an Inspector of Explosives, an applicant for a new license in Form I may apply to the District Authority for a certificate to the effect that there is no objection to the applicant receiving a license for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant who may forward it to the Chief Inspector or the Inspector of Explosives, as the case may be, with his application in Form C.

(4) The Chief Inspector or the Inspector of Explosives, as the case may be, may refer an application not accompanied by a certificate granted under Sub-rule (3) to the District Authority for his observations.

(5) If the District Authority, either on a reference being made to him, or otherwise, intimates to the Chief Inspector or the Inspector of Explosives, as the case may be, that any license which has been applied for should not in his opinion be granted, such license shall not be issued without the sanction of the Central Government.'

6. In this case, the applicant wanted a license for possession of 200 pounds of explosive material, and he had there tore to apply to the Chief Inspector of Explosives. Under Sub-rule (3), it is provided that in such a case the applicant, before applying to the Chief Inspector, may apply to the District Magistrate for a certificate to the effect that there is no objection to the applicant, receiving a license for the site proposed, and the District Authority shall, if he sees no objection, grant such certificate.

Thereafter, the person applying for a license has to forward the no-objection certificate to the Chief Inspector with his application for the license.

7. The contention of the applicant is that under Sub-rule (3) all that the District Magistrate has to see is that the site proposed is not open to any objection. There are provisions in the Rules which lay down that the site proposed should be so far distant from inhabited places and so on, and the applicant contends that all that the District Magistrate had to see, when deciding whether to grant a no-objection certificate, was whether the site proposed was suitable in view of these other rules.

It seems to us that there is force in this contention of the applicant. In this connection, we emphasise the words 'a licence for the site proposed' appearing in Sub-rule (3). As this rule stands, all that the District Magistrate has to see is whether the site proposed is suitable and in accordance with the other provisions of the rules.

It does not appear that the sub-rule requires the District Magistrate to consider the suitability of the person applying for a licence. What happened in this case was that the District Magistrate did not inspect the site, nor did he say that the site proposed was in any way objectionable in view of the other provisions of the rules.

What the District Magistrate did was to refuse the certificate on the ground that the applicant was, in his opinion, an undesirable person to whom licence for explosives should not be granted. He did not give this reason to the applicant; but he has in his reply shown to us why he considered the applicant an undesirable person, and therefore refused the no-objection certificate.

We are of opinion that while dealing with an application under Sub-rule (3) the District Magistrate was not right in going into the question of undesirability of the applicant asking for a no-objection certificate, and it was not correct on the part of the District Magistrate to refuse a no-objection certificate on that ground.

8. After Sub-rule (3) comes Sub-rule (4) which provides that the Chief Inspector may refer an application not accompanied by a certificate granted under Sub-rule (3) to the District Magistrate for his observations. Then comes Sub-rule (5) which provides that if the District Authority either on a reference or otherwise intimates to the Chief Inspector that any licence which has been applied for should not in his opinion be granted such license shall not be issued without the sanction of the Central Government.

Learned counsel for the applicant urges that Sub-rule (5) is governed by Sub-rule (3) and merely refers to the site. We are of opinion that this is not so. Sub-rule (3) is complete in itself, and provides for the grant of a no-objection certificate with respect to the site. We have already held that in dealing with an application under that sub-rule, the District Magistrate can only consider the suitability of the site and nothing else.

Sub-rule (5), in our opinion, is very much wider, and gives power to the District Magistrate to inform the Chief Inspector of Explosives that, in his opinion, a licence should not be granted to the person applying for the same. The District Magistrate may form this opinion on the suitability of the person applying for a licence in addition to considering the suitability of the site.

This is clear from the fact that under Sub-rule (5), the District Magistrate may send, his opinion to the Chief Inspector without even being asked by the Chief Inspector under Sub-rule (4). We have, therefore, no hesitation in coming to the conclusion that Sub-rule (5), is much wider than Sub-rule (3), and gives power to the District Magistrate to express his opinion about the grant of any licence on any grounds which the District Magistrate considers relevant and proper for purposes of the granting of a licence.

Therefore, in this case, the District Magistrate should have, when a no-objection certificate was applied under Sub-rule (3), inspected the site, and decided about its suitability if he wanted to refuse such certificate. It was also open to him when he came to know, on an application under Sub-rule (3) being made to him, that such a licence was being applied for, to send his opinion to the Chief Inspector about the desirability or otherwise of issuing a licence to the applicant.

The proper course, therefore, for the District Magistrate to follow was to consider the suitability of the site under Sub-rule (3), and give a no-objection certificate if he thought that the site was suitable. At the same time, it was open to him under Sub-rule (5) to send his opinion to the Chief Inspector of Explosives about the desirability of issuing a licence to the applicant. What the District Magistrate has done in this case is to mix up the two things, and to refuse a no-objection certificate on a ground other than the suitability of the site.

9. Finally, it was urged on behalf of the applicant that Sub-rule (5) imposes an unreasonable restriction on his right to carry, on the profession of fire-works maker, and as such is ultra vires under Article 19(1)(g). It is said that it gives arbitrary power to the District Magistrate to recommend refusal of a licence to a particular person because he is undesirable, and that we should, therefore, strike down Sub-rule (5) on that ground.

10. We are, however, of opinion that there is no force in this argument. We have already indicated that it is eminently in the interest of the general public that restrictions should be imposed on those dealing with such dangerous substances as explosives. Now it is very difficult sometimes to provide by law or rule what are the circumstances in which an authority having the power may say whether a person is desirable or not.

There may be so many reasons depending upon each individual case which may make a person undesirable so far as possession of explosives is concerned. It would, in our opinion, be very difficult to frame laws or rules in general terms to bring all those circumstances within those terms.

In such a case, it seems to us that the law or rule is bound to vest a discretion in some authority to judge each individual case on its merits and then decide whether licence should be granted or not to the person applying for the same. In this connection, we may refer to the remarks of Mukherjea J. (as he then was) in Kathi Railing Rawat v. State of Saurashtra, 1952 SC 123 (AIR V 39) (A), at page 132. These remarks were made in connection with Article 14 of the Constitution, but apply with equal force to Article 19 :

''In my opinion, if the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation ........ Thediscretion that is conferred on official agencies in such circumstances is not an unguided discretion; it has to be exercised in conformity with the policy, to effectuate which the discretion is given and it is in relation to that objective 'that the propriety of the classification would have to be tested.'

We can say the same thing when dealing with the question of reasonable restrictions under Article 19. Where the legislative policy is clear and definite and cannot be called an unreasonable restriction and a discretion has to be vested by the law or rules upon a body of administrators or officers to make selective application of the law, the discretion that is so conferred on official agencies in such circumstances cannot be called an unguided or arbitrary discretion. It has to be exercised in conformity with the policy to effectuate which the discretion is given.

11. We, therefore, allow the application and setting aside the order refusing the no-objection certificate, direct the District Magistrate to consider the question of granting a no-objection certificate under Sub-rule (3) in the manner indicated above.

It is of course open to him under Sub-rule (5) to send separately such opinion to the Chief inspector or Inspector of Explosives about the desirability of granting a licence to the applicant as he considers proper. In view of the circumstances, we order parties to bear their own costs.


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