Allowed

M/s Ragia Ku Enterprise v. the State of Ap and 4 Ors.

Gauhati HC4 Apr 2022WP(C)/126/2022

Case brief

AI extract

What is this about?

Writ petition allowed. High Court set aside orders seizing explosives and equipment from a contractor building a public road. Court directed the Deputy Commissioner to issue blasting permission after hearing parties and providing a reasoned order based on public interest.

What did the court decide?

Orders dated 22.02.2021 and 08.03.2022 set aside; Contractor permitted to approach Commissioner for blasting permission.

M/s Ragia Ku Enterprise Vs the State of Ap and 4 Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/4

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GAHC040003442022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 126/2022

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1:M/s Ragia Ku Enterprise

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Having registered office at ESS Sector, Itanagar near MLA Cottage, PO/PS Itanagar, District Papum Pare, Arunachal Pradesh represented by Sri Khoda Bida, Power of Attorney holder.

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VERSUS

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1:THE STATE OF AP and 4 Ors.

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Represented by the Secretary (RWD), Govt. of Arunachal Pradesh, Itanagar

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2:The Chief Engineer Cum CEO (PMGSY) ARRDA Govt. of Arunachal Pradesh Itanagar

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3:The Deputy Commissioner Kra Dadi District Govt. of Arunachal Pradesh Palin.

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4:The Superintendent of Police Kra Daadi District Palin

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5:The Executive Engineer Rural Work Department Govt. of Arunachal Pradesh Zir

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Advocate for the Petitioner : T T Tara

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Advocate for the Respondent : GA (AP)

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Page No.# 2/4

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BEFORE HON’BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

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Date : 04-04-2022

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JUDGMENT & ORDER (ORAL)

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Heard Mr. TT Tara, learned counsel for the petitioner, Mr. I Riram, learned Additional Senior Government Advocate for the respondents No. 3 and 4 and Mr. G Tarak, learned counsel for the respondents No. 1, 2 and 5 being the authorities under the RWD, Government of Arunachal Pradesh.

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The petitioner who is a contractor under the RWD Department, having been allotted the work of construction of a 126 KM Kimin-Daporijo BRTF road to Kembing village (full stage) with a total length of 28 KM, out of which, 20 KM is within the district of Lowar Subansiri and 8 KM is within the district of Kra-Daadi and consequence thereof, a deed of agreement dated 19.06.2019 had also been entered between the authorities under the RWD and the petitioner. For construction of the 8 KM portion of the road in the Kra-Daadi district, there is a requirement to indulge in blasting of the rocks over certain portion, so as to complete the construction of the road, the absence of which would render the road being not constructed.

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This writ petition is instituted in the circumstances that the Deputy Commissioner, Kra-Daadi district, who is also the authority to issue the necessary permission for the blasting is not doing the needful, so as to enable the petitioner to carry out the work.

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We take note of that this is a work of construction of a public road and therefore, it has its own public interest. The petitioner is a contractor, who is awarded the work under the RWD, which is a Government Department entrusted with the responsibilities to carry out the work of construction of the road. We do not find any private interest of any party being involved in this writ petition. In this writ petition, the petitioner is aggrieved by an order dated 22.02.2021 and 08.03.2022, by which the Deputy Commissioner, Kra-Daadi in purported exercise of the powers under Rule-5 of the Explosives Rule, 1983 (in short Rules of 1983) and Sections 3 and 4 of the Explosive Substances Act, 1908 (in short Act of 1908) had directed that no unauthorized explosive blasting be carried out by the contractor and the RWD and also required the Superintendent of Police, Kra-Daadi to seize the explosive substances.

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We have also noticed that in exercise of such powers, the Deputy Commissioner, Kra-Daadi had not only directed the seizure of some explosive substances, but he had also ordered the Superintendent

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Page No.# 3/4

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of Police to seize certain construction equipments of the petitioner. As already arrived at in our earlier order of 01.04.2022, the seizure of the construction equipments of the contractor petitioner by the Deputy Commissioner in the guise of exercising the powers under the Explosive Substances Act and the Explosive Rules, prima-facie appears to be an act without any jurisdiction. Not only it is an act of without jurisdiction, but it was also an act of non-application of mind by the Deputy Commissioner. If the Deputy Commissioner has any issue for issuing the permission for the blasting, he can do so only upon a due consideration of the entire matter.

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Consequent thereof, our earlier order dated 01.04.2022 to release the construction equipments of the petitioner is re-iterated and the Deputy Commissioner, Kra-Daadi is directed to do the needful to ensure that the construction equipments of the petitioner are released forthwith.

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As regards the Deputy Commissioner invoking the powers under sections 3 and 4 of the Act of 1908, we have taken note of that Sections 3 and 4 of the Act of 1908 is for punishment of any person, who unlawfully and maliciously causes or attempts to cause an explosion with the intention to endanger life or property.

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Clearly, a contractor acting under the RWD Department who is the authorized Department for construction of roads, which may require blasting of rocks at a particular location to carry forward such construction, cannot be an act of any person unlawfully and maliciously causing or attempting to cause an explosion to endanger to endanger life or property. From such point of view, the invocation of sections 3 and 4 of the Act of 1908 by the Deputy Commissioner also appears to be arbitrary rather than an act done in furtherance to protect the life and property of persons.

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Be that as it may, it is for the Deputy Commissioner to look into the matter. If the Deputy Commissioner has reasons and materials that the petitioner is not an authorized contractor under the RWD Department or that the nature of the work of construction of the road does not require any such explosion, it is for the Deputy Commissioner to pass a reasoned order on the same with supporting materials on record.

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The Deputy Commissioner also refers to Rule 5 of the Rules of 1983 for invoking his power. But we take note of that Explosive Rules, 1983 had in the meantime been repealed by Explosive Rules, 2008 and neither any act already done under the Explosive Rules, 1983 survives in this matter, so as to retain the eligibility to do so under Rule 139(2) of the Explosive Rules, 2008.

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As the Explosive Rules of 1983 itself has been repealed, we are unable to arrive at any primafacie view as to what kind of a power the Deputy Commissioner intended to exercise. We further take note of a communication dated 15.07.2021 from the Executive Engineer, RWD addressed to the Deputy

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Page No.# 4/4 Commissioner, Kra-Daadi district, wherein the Department had made a specific mention and request for issuing the blasting permission in order to carry forward the public interest of completing the construction of the road in question.

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In the aforesaid circumstances, the petitioner is required to provide the Deputy Commissioner, Kra-Daadi with the relevant materials that the blasting permission is required for the public interest for completing the construction work of the road and that the contractor has necessary explosive license etc. for undertaking the blasting work. In doing so, the Executive Engineer, RWD under whose jurisdiction the work of construction of road is going on be also given a hearing in the matter and thereafter the Deputy Commissioner to take a comprehensive decision based on the entire materials on record and if the public interest requires the issuance of a blasting permission, which can be done u8nder the relevant provisions of the law, necessary order thereof be passed.

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We have been told that presently there is a blockage in the road for approaching the Deputy Commissioner, Kra-Daadi because of the heavy rains that are inflicting the area. In the circumstance, we require the writ petitioner to approach the Deputy Commissioner, Kra-Daadi immediately on the reopening of the road with a certified copy of this order requesting him to do the needful as indicated above and the Executive Engineer, RWD, Ziro to also co-operate in the matter and the Deputy Commissioner upon being provided with the certified copy of this order, fix a date of hearing of the parties within a period of three days thereof and pass a reasoned order as indicated above.

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In view of what is provided hereinabove, the two orders dated 22.02.2021 and 08.03.2022 of the Deputy Commissioner, Kra-Daadi district stands interfered and set aside.

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The writ petition is allowed to the extent indicated above.

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JUDGE

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Comparing Assistant

M/s Ragia Ku Enterprise v. the State of Ap and 4 Ors.

Case brief

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M/s Ragia Ku Enterprise v. the State of Ap and 4 Ors.

Case brief

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