Disposed

Anil Kumar v. State of Kerala

Kerala HC19 Feb 2020WP(C)/4840/2020

Case brief

AI extract

What is this about?

This writ petition challenges the rejection of a fireworks display application for Puthiyakavu Temple. The High Court dismissed the plea for quashing but granted liberty to file a revised application seeking permission for limited fireworks using permissible items.

What did the court decide?

Directed the second respondent to consider a fresh application from the petitioner for limited fireworks display using permissible items and pass orders by 5 p.m. on 22.02.2020.

Anil Kumar Vs State of Kerala — Public Procurement and Tenders | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941

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WP(C).No.4840 OF 2020

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PETITIONER:

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ANIL KUMAR,AGED 58 YEARS, S/O.AMBUJAKSHA MENON,PUTHENPURAYIL HOUSE, MANAKUNNAM VILLAGE,UDYAMPEROOR,PIN-682307. PRESIDENT,PUTHIYAKAVU BHAGAVATHY DEVASWOM, PUTHIYAKAVU,THRIPUNITHURA, PIN-682 301

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BY ADVS.

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SRI.P.N.SUKUMARAN KUM.T.S.SAUMYA SRI.AKHIL S.VISHNU SHRI.SOORAJ S

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RESPONDENTS:

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1 STATE OF KERALA,REP.BY THE CHIEF SECRETARY, GOVT.SECRETARIAT,TRIVANDRUM-695 001.

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2 THE DISTRICT COLLECTOR,COLLECTORATE, KAKKANADU,ERNAKULAM PIN-682 030.

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3 THE ADDITIONAL DISTRICT MAGISTRATE, ERNAKULAM PIN-682 030.

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4 THE TAHSILDAR,KANAYANNUR TALUK, ERNAKULAM PIN-682 313.

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SENIOR GOVERNMENT PLEADER SRI. T.K.ANANDAKRISHNAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)No.4840/2020

JUDGMENT

Ravikumar, J.

It is the second round of litigation for the petitioner on the same subject for the purpose of conducting fireworks display in connection with the festival in 'Puthiyakavu Bhagavathi Temple', which is to commence from 23.02.2020. The petitioner is the President of the said Devaswom.

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Earlier, the petitioner filed WP(C) No. 3496/2020 aggrieved by the non consideration of the application dated 26.12.2019 to conduct fireworks display during four days of the festival. As per the judgment dated 12.02.2020 passed thereon, taking note of the pendency of the said application, this Court directed the second respondent to consider and pass orders on the said application. Obviously, the order impugned in the writ petition-Ext.P14, was passed on considering the said application in the light of the judgment in the said writ petition. As per Ext.P14, the said application was rejected assailing 12 reasons. It is aggrieved by the

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WP(C)No.4840/2020

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rejection of the application as per Ext.P14 that this writ petition has been filed seeking the following reliefs:

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“1. Quash Exhibit P-14 order passed by the 2^nd respondent by issuing a writ of certiorari or other appropriate writ, order or direction.

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Issue a writ of mandamus or any other writ, order or direction, directing the 2^nd respondent to grant license/permission to the petitioner for fire display in the light of Exhibit P- 6, P7, P8 & P11 taking into consideration of Exhibit P1.

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Issue a direction to the second respondent to permit the petitioner to conduct the fire display as per the programme scheduled in Exbt.P1 notice.”

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Heard the learned counsel appearing for the

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petitioner and the learned Government Pleader.

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The learned counsel for the petitioner submitted

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that, for the past several decades in connection with the festival in the said Temple, fireworks display had been conducted. In such circumstances, the conclusion arrived at by the second respondent is that fireworks display could not

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be effected in the site in question complying with the

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WP(C)No.4840/2020

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statutory requirements and the requirements on the very subject. It is absolutely unsustainable. Ext.P8 would reveal that taking note of the circumstances obtained, permission was earlier granted for conducting fireworks display in this Temple. It is submitted that based on Ext.P8 order, permission was granted and in the last year, fire display has been done in this Temple. It is also submitted by the learned counsel that a perusal of Ext.P8 would reveal that this Court virtually left to the authorities to regulate and fix the distance to be maintained by the public during the time of fireworks. The fact is that subsequently in complying with the conditions, permission was granted and fireworks display are conducted. It is the submission that the fact that last year complying with the conditions fireworks display had been conducted itself would reveal that there cannot be any legal impediment for granting permission to conduct fireworks display by strictly adhering to the statutory compulsions and conditions.

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WP(C)No.4840/2020

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Ext.P4 is the application submitted by the petitioner for grant of licence for public display of fireworks. It would reveal that names of one Byju and one Swaminathan are shown as the persons as the technical personnel employed for the fireworks display. In respect of Byju, in the impugned order, it is stated that he was the licencee to conduct fireworks in a nearby temple, viz., at Nadakkavu temple and in relation to mishap occurred during the fireworks display in the said Temple. A crime as crime No. 26/2020 was registered against the said person. The learned counsel appearing for the petitioner submitted that no such allegations are there against the second person shown at column No.4 A of Ext.P4 viz., against Swaminathan, who is also a person who possesses licence for manufacturing fireworks and also for fire works display. The said Swaminathan possesses LE 1 and LE 3 licences. Perusal of Ext.P4 would reveal that the question whether there is such licence for fireworks display is not considered

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WP(C)No.4840/2020

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at all. The description and quantity of fireworks to be used going by Ext.P4 application contained certain objectionable items, such as “Nadan amittu, Kuzhi minnal etc.

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The learned counsel appearing for the petitioner submitted that fireworks display with such items are impermissible and that could not have been a reason for total rejection of permission to conduct fireworks display. In other words, the submission is that even in such eventuality, the authority ought to have considered whether limited fireworks display could be permitted with permissible items. Such a consideration was not seen made going by Ext.P14. Ext. P14 application would reveal that permission was sought for to conduct fireworks display on the following days during the time specifically mentioned therein. It reads thus:

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“23.02.2020 - 8.30 p.m. to 9.15 p.m. 25.02.2020 - 7.00 a.m. to 8 a.m. &

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8.00 p.m. to 9.30 p.m. 26.02.2020 - 7.00 a.m. to 8 a.m. & 8.00 p.m. to 9.30 p.m. 29.02.2020 - 7.00 p.m. to 9.45 p.m.”

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WP(C)No.4840/2020

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Certainly, the application which carried such description regarding date and time of display would suggest that what is proposed is a large scale fireworks display. But at the same time, we are of the view that taking into account, the fact that fireworks display had been conducted in the said Temple in connection with the Temple festival, the mere fact that the application contained items for the fireworks display which are impermissible ought not to have been the reason for total rejection of permission to conduct fireworks display. There cannot be any doubt with respect to the position that permissible items were also included in the application.

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The learned counsel appearing for the petitioner further submitted that the safety storage of fireworks material using portable magazine is permissible and being permitted by the authorities. Therefore, there is no reason for not granting the petitioner such right, that is to safely store the permissible items of fireworks for the conduct of fireworks

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WP(C)No.4840/2020

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display. It is also submitted that taking into account the fact that the proximity of Ayurveda Hospital and such other institutions, fireworks display for four days is not permissible. The second respondent should have considered the question whether limited fireworks could be permitted limiting the days of display. In short, the contention is that those aspects were not at all considered as seen from Ext.P14.

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The learned Government Pleader, on the other hand, submitted that Ext.P4 would reflect consideration of all aspects of the matter. However, as observed hereinbefore, Ext.P4 did not reflect consideration of the question whether limited display of fireworks could be permitted using permissible items and if permission in that regard could be given, what should be the regulations to be made for the conduct of fireworks display. Taking into account such aspects, we are of the view that liberty can be given to the petitioner to file an appropriate application to the second respondent before 11 a.m. on 20.02.2020 seeking

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WP(C)No.4840/2020

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permission to limited extent to conduct fireworks display using items which are permissible.

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The learned counsel submitted that one of the reasons assailed in Ext.P4 for rejecting the request was that consent from persons residing nearby was not obtained and produced at the time of consideration of the earlier application. It is further submitted that now such persons who are nearby have given their consent in writing, consent letters issued by such persons originally in Ext.P5 series could be produced before the authorities.

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Taking into account all these facts, this writ petition is disposed of with a direction to the second respondent to consider application from the petitioner seeking permission to conduct fireworks display in limited extent using permissible items. In case such application is submitted, after considering the same, appropriate orders shall be passed thereon by the second respondent. We also make it clear that if the second respondent grants permission for

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WP(C)No.4840/2020

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conduct of fireworks display to limited extent, it will be upon to him to him to permit such items of fireworks which could be used for fireworks display and also the number of days for fireworks display. Needless to say that orders shall be passed by the second respondent on or before 5 p.m. on 22.02.2020. Any order passed thereon shall be

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communicated to the petitioner immediately.

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Sd/- C.T.RAVIKUMAR

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JUDGE

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Sd/-

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N. NAGARESH JUDGE

ncd

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE NOTICE PUBLISHED BY THE PETITIONER

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EXHIBIT P2 A TRUE COPY OF THE SPECIAL CONTINGENCY INSURANCE POLICY

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EXHIBIT P3 A TRUE COPY OF THE RANK ASSESSMENT REPORT WITH COVERING LETTER DATED 3.1.2010 PREPARED AND PRODUCED BY THE PETITIONER BEFORE 2ND RESPONDENT

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EXHIBIT P4 A TRUE COPY OF THE APPLICATION FOR ISSUANCE OF THE LICENSE FOR CONDUCTING FIRE DISPLAY/FIREWORKS PREFERRED B THE PETITIONER BEFORE THE 2ND RESPONDENT WITH ACKNOWLEDGMENT DATED 26/12/2019

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EXHIBIT P5 A TRUE COPY OF THE CHELLAN DATED 9.1.2020

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EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 14.1.2019 IN WP(C) NO.4075/2019

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EXHIBIT P8 A TRUE COPY OF THE INTERIM ORDER DATD 28.2.2019 IN WP(C)NO.5835/2019

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EXHIBIT P10 A TRUE COPY OF THE PROCEEDINGS OF 2ND RESPONDENT GRANTING LICENSE DATED 5.3.2019

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EXHIBIT P11 A TRUE COPY OF THE JUDGMENT IN WP(C)NO.2978/2020 DATED 5.2.2010 OF THE HONOURABLE DIVISION BENCH

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EXHIBIT P12 A TRUE COPY OF THE JUDGMENT IN WP(C)NO.3496/2020 DATED 12.2.2020 OF THE HONOURABLE DIVISION BENCH EXHIBIT P13 THE TRUE COPY OF THE RECEIPT ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DATED 14.2.2020 EXHIBIT P14 THE TRUE COPY OF THE REJECTION ORDER DATED 15.2.2020 ISSUED BY THE 2ND RESPONDENT EXHIBIT P15(A) TRUE COPY OF THE NO OBJECTION GIVEN BY DIANA RAJAN EXHIBIT P15(B) TRUE COPY OF THE NO OBJECTION GIVEN BY DILEEP KUMAR EXHIBIT P15(C) TRUE COPY OF THE NO OBJECTION GIVEN BY K.M.RAJAN EXHIBIT P15(D) TRUE COPY OF THE NO OBJECTION GIVEN BY V.N.CHANRAN EXHIBIT P15(E) TRUE COPY OF THE NO OBJECTION GIVEN BY JIS JOHN EXHIBIT P15(F) TRUE COPY OF THE NO OBJECTION GIVEN BY VISHNU M EXHIBIT P15(G) TRUE COPY OF THE NO OBJECTION GIVEN BY DON MATHEW EXHIBIT P15(H) TRUE COPY OF THE NO OBJECTION GIVEN BY M.N.GOPINATHAN EXHIBIT P15(I) TRUE COPY OF THE NO OBJECTION GIVEN BY KUMAR L EXHIBIT P15(J) TRUE COPY OF THE NO OBJECTION GIVEN BY SREEDEVI K.D EXHIBIT P15(K) TRUE COPY OF THE NO OBJECTION GIVEN BY MATHEW KANJIRAKKAD

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EXHIBIT P15(L) TRUE COPY OF THE NO OBJECTION GIVEN BY K.VISWAMBARAN EXHIBIT P15(M) TRUE COPY OF THE NO OBJECTION GIVEN BY SREERAJ.M.N

Anil Kumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

Anil Kumar v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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