(2012) 246 KLR 345 IN THE HIGH COURT OF KERALA AT ERNAKULAM
THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. = = = = = = = = = = = = = = = = = = = = = = W.P.(C)No.6412 of 2012 and DBA.Nos.1, 2, 3, 4, 5, 6, 7, 8 & 9 of 2012 with CDB Report No.50 of 2012 = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of March, 2012 "CR" Head Note:-
FOR PETITIONER(S): -----------------------
FOR RESPONDENT(S): ----------------------------
J U D G M E N T Thottathil B. Radhakrishnan, J. 1.The captioned DBAs are different applications filed by Cochin Devaswom Board, for short, the "CDB", seeking approval for the auction/sale conducted in relation to vedivazhipadu in different temples during the year 2011. When these matters came up on 11.1.2012, we were not shown any earlier order of this Court which requires such sanction being obtained from this Court. Approvals need be sought only when there are directions as to obtain approval. It was also then stated by this Court in clear terms that the grant of approval by the Court cannot be utilised to close off the right of any party who may have the right in law, to challenge any particular contract proceedings or even when it becomes necessary to challenge certain actions on other grounds. Orders of approvals granted by the High Court in such matters cannot be utilised to shield the CDB authorities against any allegation as to any wrong committed by it in its administrative proceedings. After perusing the materials in each of those DBAs, this Court recorded the fact that the right to conduct vedivazhipadu in the different temples covered by those DBAs have been auctioned out and granted as stated in the different applications. Anticipated income in terms of those auctions were also noted, subject to audit. It was then clarified that the said order shall not be taken as an approval of either the CDB or the grantee of any contract possessing all necessary licences in terms of the laws or as to any other matters in which they may become liable in the event of any actionable wrong. The Bench was of the view that the whole question of vedivazhipadu and the guidelines which have to be followed needed a deeper look. It also occurred to this Court that there is creation of virtual monopoly, particularly, in major temples. Specific reference was also made to different matters that have come up before the Bench, including regarding Kodungallur Sree Kurumba Bhavavathy temple, Chottanikkara Bhagavathy temple etc. The auctioning of vedivazhipadu brings considerable revenue to the CDB. We, therefore, wanted to ensure that appropriate guidelines are in place. Therefore, it was directed that CDB should place its views touching all matters before the learned Ombudsman so that a comprehensive view can be taken and proper guidelines formulated. It was also noted by the Bench that it is abundantly necessary that vedivazhipadu activities shall be carried out only in strict compliance with the laws relating to explosives, to the extent they apply, control and regulate. We had noticed that there is lack of clarity in this regard with CDB authorities. We also recalled the considerable confusion that had arisen when the issue regarding vedivazhipadu in Thriprayar Sree Ramaswamy temple became the subject matter of a litigation recently. It was, therefore, found necessary that the jurisdictional Controller of Explosives gives necessary inputs to the learned Ombudsman so that the CDB could be advised appropriately. The Chief Controller of Explosives and the officers under his control were directed to render assistance to the learned Ombudsman as may be sought for from that end. The learned Ombudsman was requested to look into the matter and send up a report to this Court if it is found that guidelines are necessary to be formulated and finalised with the interference of this Court. The Bench also had requested the learned Ombudsman to consider the necessity of CDB taking insurance coverage to protect its interest and also on insisting that the contractors shall also possess necessary insurance cover since no victim of any unfortunate accident could be left high and dry with no relief. 2.While the issues referred for consideration to the learned Ombudsman were pending at that end, the captioned writ petition was filed challenging tender/auction notices issued by the CDB for the conduct of vedivazhipadu in Chottanikkara temple, Ernakulam Siva temple and Thriprayar Sree Ramaswamy temple. Pithily put, the activity of vedivazhipadu falls within "Adirvettu or Kadina" as defined in Rule 2(3) of the Explosives Rules, 2008, hereinafter referred to as the "Rules". The captioned DBAs, which are reopened today, vide separate order, relate to such activity in different other temples under CDB, including Kodungallur Sree Kurumba Bhagavathy temple, where "Adirvettu or Kadina" is put to use. 3.The learned Ombudsman has placed CDB Report No.50 of 12 dated 22nd March, 2012 in the captioned DBAs following the procedure covered by the order dated 11.1.2012 issued by the Bench in those cases and referred to in paragraph no.1 above. 4.In view of the issues arising for decision on the basis of the contentions in the captioned writ petition and the views expressed by the learned Ombudsman in the aforesaid CDB Report No.50 of 2012, the Bench had ordered listing of the captioned DBAs also. By separate order issued today, we had re-opened those DBAs to enable comprehensive consideration of all issues involved in these matters. 5.Having regard to the contents of the report of the learned Ombudsman and the requirement to ensure that no activity using explosives is carried out except in accordance with the provisions of the Explosives Act, 1884, hereinafter referred to as the "Act", and the aforesaid Rules, we heard the learned counsel for the petitioner, learned counsel for the contesting respondents, learned Central Government Counsel, the learned Senior Government Pleader and the learned amicus curiae on behalf of learned Ombudsman quite in extenso, on the basis of the pleadings in the writ petition, counter affidavits and reply affidavit. We then felt that it would be profitable to hear in person, the competent officers in the Department of Explosives and in the State executive, also involved in the issuance of licences under the Act and the Rules. 6.Following earlier orders, we have before us Sri.K.Sundaresan, Controller of Explosives (in charge) and Smt.E.K.Sujatha, Deputy Collector (General) and ADM, Ernakulam. We place on record that both those officers provided abundant assistance, including by taking us through the different aspects of the licensing process under the Act & the Rules. While ADM, Ernakulam dilated on the time frame that would normally be taken for granting licence under the Rules, Sri.E.K.Sundaresan, Controller of Explosives (in charge) took us through the different provisions of the Explosives Rules and the regulating conditions in the different licences. He did it in the best possible methodical manner. That brought home to us the relevant issues involved in granting of licences. We record our appreciation for the effort of, and contribution made, by the officers in this regard. 7."Adirvettu or Kadina" is a sound producing device made of iron tube having strong base with a hole at the side, close to the bottom. This device is filled with gunpowder and fired by means of trail of dry loose gunpowder. This has to be approved by the Chief Controller of Explosives. This is how the term "Adirvettu or Kadina" is defined in Rule 2(3) of the Rules. The fact that use of "Adirvettu or Kadina" is only in some regions of the India has gained the attention of the Parliament. This is evident from Rule 9(6) of the Rules excluding authorisation to possess even small quantities of gunpowder within the States of Bihar, Kerala, Tamil Nadu and West Bengal. 8.Noticing the aforesaid, on ground reality, what happens is that, the activity of firing the "Adirvettu or Kadina" takes place in land around the temple and there are specified zones for such activity. The entire activities, including the storage of gunpowder for the purpose of "Adirvettu or Kadina" manufacture and making and firing of "Adirvettu or Kadina" fall within the regulatory provisions which lead to the issuance of LE-2 licence. Those provisions specifically regulate different aspects. It specifies the manner in which the licensee has to maintain records for purchase of gunpowder. It also contains the restriction that gunpowder purchased on the strength of LE-2 licence shall not be sold or transferred to any other person. An examination of the Rules and the terms of the prescribed form for LE-2 licence clearly shows that LE-2 licence is site specific, as rightly opined by the learned Ombudsman and as pointed out by the officers before us. This means that if blasting of "Adirvettu or Kadina" has to be carried out in any site, there has to be an LE-2 licence for that site. This is the law. 9.Having regard to the provisions in the Act and the Rules, which deal with dangerous and explosive substances, we find nothing in Article 25 or elsewhere in the Constitution which would give any overriding impact to the right to profess, practise and propagate religion. All such rights can be exercised only in accordance with the regulatory provisions contained, in particular, in the Act and the Rules. 10.So much so, there can be no making or firing of "Adirvettu or Kadina" or storage of gunpowder for that purpose in any site, except under a licence in form LE-2 in connection with that site. The licensee shall be the owner or possessor of that parcel of land, which has to be described in the LE-2 licence. Therefore, in relation to the temples under CDB, the licensee shall be the CDB or the individual who acts as the Executive Officer or Principal Administrative Officer of the temple concerned. 11.In the case in hand, we find that only Thriprayar and Kodungallur temples have LE-2 licences. This means that the "Adirvettu or Kadina" firing activity in Chottanikkara and Ernakulam Siva temples and all other temples which do not have LE-2 licences cannot but be termed as illegal and has to be immediately stopped. This is the effect of the law. 12.In dealing with the Act and the Rules, we remind ourselves that they call for strict construction in terms of what has been specifically stated therein because of the nature of those legislative instruments and the objects sought to be achieved and the zone sought to be regulated by their provisions. We do not therefore find any room to take any view for judicial interpretative tinkering, expanding those provisions. That would be detrimental to larger public interest. 13.A person who possesses an LE-2 licence can take supply of gunpowder only from a person who is authorised to supply gunpowder in terms of the Act and the Rules, that is, a person who has a licence under LE-3, which includes the licence to possess for sale, explosives in Class 1. Gunpowder falls under Class 1. Therefore, only one who possesses an LE-3 licence can sell or supply gunpowder to a premises of a person who holds an LE-2 licence. Such sale or supply has to be made to the premises for which the LE-2 licence is granted. This is because while the LE-2 licence holder can purchase or receive the supply, it does not have the authority to transport the gunpowder from any other point of sale. The transport of gunpowder in a vehicle is regulated by LE-7 licence. The terms of that licence do not authorise sale. It authorises only transport. It does not authorise any supply. This means that the LE-3 licence holder has to deliver the gunpowder in the premises to which LE-2 licence is granted and, transport of gunpowder in a vehicle, for such delivery, can be only by one who possesses LE-7 licence. 14.In so far as manufacture of gunpowder is concerned, it can be done only by a person who has an LE-1 licence. That manufacturer is duty bound under the Act and the Rules to immediately transfer the product of manufacture to storage in terms of the Act and the Rules. This means that an LE-1 licensee is also not authorised by law to directly effect a sale to the end consumer. 15.Therefore, an LE-1 licensee can manufacture gunpowder; LE-7 licensee can transport the gunpowder in a vehicle; and, an LE-3 licensee can supply gunpowder, including by sale, to the holder of an LE-2 licensee. It is the LE-2 licensee who is authorised to carry out "Adirvettu or Kadina", that too, only in the site in relation to which the LE-2 licence is granted. 16.Law does not prevent anyone from holding only an LE-3 licence. If there is proper networking between LE-1, LE-7 and LE-3 licence holders, the gunpowder can be supplied by the LE-3 licensee to the LE-2 licensee, who is the end user. The requirement in the impugned notices that the offerer should possess LE-1, LE-7 and LE-3 licences has excluded an otherwise competitive field which would have responded, if offers were invited from LE-3 licence holders without insisting on LE-1 and LE-7 licences. The situation created by clubbing up of LE-1, LE-7 and LE-3 licences, while inviting tenders, can be easily seen from the very low number of competitors who have made offers in answer to the invitation. This leads to monopoly which has to be excluded. The tender/auction notices therefore do not stand. 17.At the same time, Rule 10(4)(c) provides the clear restriction that no person shall receive explosives from any person other than the holder of a licence granted under the Rules. Therefore, CDB has to ensure that the supply comes from an authorised source of manufacture and the identity of the manufacturer, the carrier/transporter and the supplier has to be maintained by the LE-2 licensee, among its records, to ensure that in the event of any requirement to look into those aspects, details would be available. The CDB cannot, in any situation, throw up its hands in despair. 18.In fact, Sri.E.K.Sundaresan, Control of Explosives (in charge) had assisted the learned Ombudsman and what we have seen above in terms of law is well reflected in the report of the learned Ombudsman also, except may be the stand of the Explosives Department before the learned Ombudsman as to whether the LE-2 licence holder should have also LE-3 licence. We see that the learned Ombudsman points out that the use of "Kadinas" as part of the rituals in some of the temples is necessary going by the practices of such temples and there may be practical difficulties if the activities were to stop. He also points out that the Act enables the Central Government to grant exemption. That power is with the Central Government and it is for the authorities connected with the affairs of the temples to seek any relief in terms of that provision. The quality of the statute law which we are now dealing with, as already noticed, needs to be strictly complied, having regard to the objects they seek to achieve. We accept the suggestion of the learned Ombudsman that the CDB or the contractor may be directed to take full insurance cover for each of the premises where new arrangement has to start on the basis of new contracts. 19.Incidentally, we may notice that it was argued on behalf of the petitioner in the writ petition that the nature of the contracts for which notices for auction/tender have been issued is not merely for supply of gunpowder but also to undertake the activity of firing the "Kadinas"; rate to be mentioned per "Kadina", including the value of the gunpowder and labour charges etc. We do not find any illegality or infirmity in this procedure. The source of gunpowder has to be identified and recorded by the LE-2 licensee. At the same time, there is nothing wrong in the supplier being entrusted by the LE-2 licensee to do the activity of filling the "Kadinas" and also firing them within the premises for which LE-2 licence is granted. To that extent, it would normally be the situation of entrusting that part of the work also to one who holds the LE-3 licence or a person nominated by the LE-3 licensee. Therefore, in the eye of law, what would be governed by such a contract following the auctions/tenders would be the supplying of gunpowder by the holder of the LE- 3 licence and the carrying out the activity of filling and firing the "Kadinas" also being done by that person. Law does not prohibit such course because a person who has an LE-2 licence can have the "Kadinas" fired by any person of his choice within that premises. No separate licence is provided for to fire the "Kadinas". LE-2 licence is a comprehensive one which takes all the activities in relation to the storing of gunpowder, allied materials, the activity of filling the "Kadina" or "Adirvettu" and its firing. In the light of the aforesaid, the writ petition and DBAs are ordered as follows:-
Sd/- THOTTATHIL B. RADHAKRISHNAN Judge Sd/- C.T.RAVIKUMAR Judge TKS/Sha/300312 -true copy- P.S.to Judge. |
