Arattupuzha Kshethra Upadesaka Samithy v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 22ND DAY OF MARCH 2018 / 1ST CHAITHRA, 1940 WP(C).No. 9250 of 2018** ## **PETITIONER:** **ARATTUPUZHA KSHETHRA UPADESAKA SAMITHY, P.O. ARATTUPUZHA, THRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY, A.G.GOPI, AGED 55 YEARS, S/O.GOVINDAN, RESIDING AT ARATTUPUZHA HOUSE, P.O. ARATTUPUZHA, THRISSUR-680 562.** **BY SRI.K.RAMAKUMAR,SENIOR ADVOCATE ADVS.SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.N.K.SUBRAMANIAN SMT.ASHA BABU SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE DISTRICT COLLECTOR, THRISSUR-680 001.** **3. ADDITIONAL DISTRICT MAGISTRATE, THRISSUR-680 001.** **4. THE COCHIN DEVASWOM BOARD, ROUND NORTH, THRISSUR-680 020.** **5. THE CIRCLE INSPECTOR OF POLICE, CHERPU POLICE STATION,THRISSUR-680 561.** **2/-** **-2-** **WP(C).No. 9250 of 2018** **6. THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, KENDRIYA BHAVAN, KAKKANAD, ERNAKULAM, KOCHI-682 037.** **R1 TO R3,R5 BY GOVERNMENT PLEADER SRI.E.S.ASHRAF** **R4 BY SRI.AJITH KRISHNAN, SC, SRI.K.P.SUDHEER, SC,** **R6 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 22/3/2018** ## **WP(C).No. 9250 of 2018 (E)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXT.P1 COPY OF THE SKETCH LOCATION ALONG WITH THE REPORT OF THE VILLAGE OFFICER DATED 06/03/2017. EXT.P2 COPY OF THE ORDER DATED 26/03/2007 IN W.P(C) NO.72/1998 ON THE FILE OF THE SUPREME COURT OF INDIA. EXT.P3 COPY OF THE ORDER DATED 14/04/2016 IN W.P(C)NO.14978/2016. EXT.P4 COPY OF THE APPLICATION ALONG WITH COVERING LETTER DATED 01/03/2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P5 COPY OF THE JUDGMENT DATED 28/03/2017 IN W.P.(C) NO.10133/2017. EXT.P6 COPY OF THE CIRCULAR DATED 19/02/2018 ISSUED BY THE 6TH RESPONDENT. EXT.P7 COPY OF THE MINUTES OF THE MEETING HELD ON 04/03/2018.** ## **RESPONDENT'S EXHIBITS:** **NIL** **/TRUE COPY/** **P.S.TO JUDGE** **sts 22/3/2018** ## P.R.Ramachandra Menon & Devan Ramachandran, JJ. ------------------------------------------------------- ## W.P.(C)No.9250 of 2018 E ------------------------------------------------------- Dated this the 22[nd] day of March, 2018 ## **JUDGMENT** ## **Ramachandra Menon, J.** The laxity on the part of the competent authority in considering and passing appropriate orders for enabling the petitioner to conduct the fire works display in connection with Arattupuzha Pooram scheduled to be held on 23.03.2018, 28.03.2018 and 29.03.2018 is the subject matter of challenge in this writ petition. 2. Heard Sri.K.Ramakumar, the learned Senior Counsel appearing on behalf of the petitioner, Sri.E.S.Ashraf, the learned Government Pleader appearing for the State/ Department, Sri.Vinu, the learned Central Government Counsel, who entered appearance on behalf of the sixth respondent and Sri.Ajith Krishnan, the learned Standing Counsel appearing on behalf of the Cochin Devaswom Board. 3. The case projected by the petitioner is that Arattupuzha Pooram is one of the old festivals in the country WPC 9250/18 2 and this time, it is the 1436[th] annual event. It is also stated that the Pooram is significant and exclusive, in so far as there is a belief that all the Hindu Gods and Goddesses take part in the Pooram. It is for this reason that, almost all the Temples in Kerala and even the Temple at Kasi will remain closed early, so as to enable the deities to take part in the Pooram. The display of fire works is an integral part of the said festival and this was going on for centuries. The fire works display is stated as being performed by the petitioner, adhering to all the relevant provisions of law and the instructions being issued by the competent authorities from time to time. No untoward incident has occurred so far, by virtue of the prudent steps being taken by the petitioner, the authorities of the Temple/Devaswom and also by the departmental authorities in this regard. 4. The petitioner points out that the fire works display is being conducted in a vacant land having an extent of nearly 1.10 acres, which, in fact, belongs to the Local Authority, who is also supporting the cause. Necessary intimations have already been issued to the Revenue Authorities as well and it WPC 9250/18 3 was only after the inspection of the property by the Revenue/ competent authorities under the Explosives Act/Rules, that permission was being granted to have the fire works display. The petitioner submits that conduct of the fire works display was the subject matter of consideration before the Apex Court as well, where Exhibit P2 order came to be passed on 26.03.2007. The Apex Court made a specific reference as to the permissibility of conducting such fire works display with reference to the observations in paragraph 168 of the judgment passed in **Noise Pollution (V), in RE Forum, Prevention of Environmental & Sound Pollution v. Union of India & Anr.** ((2005) 5 SCC 733), which is in the following terms: “Festivals and ceremonies wherein fireworks and crackers are customarily burst can be accompanied by earmarking a place and time wherein and when all the people can come together and witness of view a show of fireworks dispensing with the need of crackers being burst in residential areas, and that too which is done without any regard to timings. Manufacturers can be encouraged to make such fireworks as would display more the colours rather than make noise.” It was with reference to said observation, that the matter was finalised enabling the fire works display to be conducted, to WPC 9250/18 4 the extent as mentioned in Exhibit P2. The petitioner points out that the matter had come to be examined by this Court as well on earlier occasions, leading to verdicts including Exhibit P5 judgment in respect of the previous year and that the festival was conducted accordingly without any complaint from any corner. 5. In so far as the festival for the present year is concerned, Exhibit P4 application was submitted on 01.03.2018 along with all the requisite documents, including the licence and clearance obtained by the licencee in tune with the relevant provisions of law. But no action was taken by the competent authority to grant the permission and on enquiry, the petitioner was made to understand that the Executive Magistrate was not prepared to grant permission, by virtue of the contents of a new circular dated 19.02.2018, a copy of which has been produced as Exhibit P6, whereby, it is insisted that a 'permanent magazine' has to be constructed so as to facilitate approval/clearance. The learned Senior Counsel for the petitioner points out that the said circular was issued with reference to the 'violation' of the statutory provisions and WPC 9250/18 5 conditions of licence by various parties, which, however, cannot applied as such in the case of the eptitioner, as the petitioner has been doing the exercise strictly complying with all the requirements in accordance with the provisions of the Act/Rules/norms/ guidelines issued by the authorities and also the conditions imposed by this Court at different points of time. It is further pointed out that the petitioner was all along willing to have any other reasonable conditions to be stipulated by the authorities/this Court and that same is the position this year as well. The temple festival is scheduled to be held on 23.03.2018,28.03.2018 and 29.03.2018, whereas Exhibit P6 circular is with reference to some office letter issued way back on 04.10.2016, which comes as a 'bolt from the blue'. No time is left to the petitioner to arrange permanent magazine for conducting the display and that, as in the last year, the petitioner has made arrangements to construct a 'temporary shed' away, meeting the requirements/ stipulations to be made by the authorities concerned, maintaining all safety standards. It is added that steps have been taken to construct a permanent magazine in terms of WPC 9250/18 6 Exhibit P6, which cannot be completed before the festival scheduled to be held on 23.03.2018, 28.03.2018 and 29.03.2018. It was taking note of the need of hour, that a meeting of all stakeholders was convened on 04.03.2018 by the Hon'ble Minister for Education, in the presence of the District Collector, whereby a consensus has been arrived at in connection with the fire works display and such other aspects. 6. The learned Government Pleader points out that the inability expressed by the District Collector/Executive Magistrate is by virtue of the specific mandate in Exhibit P6 circular pointing out that the items like “Amit, Gundu, Kuzhiminnal, etc. are prohibited items”, which cannot be used at all, whereas in Exhibit P4 application preferred by the petitioner these items have been specifically included. It is relevant to note in this context that the prohibited items were mentioned only as “Kuzhiminnal” and “Dynamite”, as specifically incorporated in Exhibit P5 judgment passed by this Court in the last year. However, by virtue of mentioning of such other items like “Amit” and “Gundu” in Exhibit P6,k we found it appropriate to get clarifications from the sixth WPC 9250/18 7 respondent. It was accordingly, that the matter was passed over, requiring the learned Central Government Counsel to get instructions; who submits that after taking note of the facts and figures, revised guidelines have been issued by the Central Government under Rule 126 of the Explosives Rules, 2008. A copy of the said revised guidelines are made available to this Court, which is re-produced below for easy reference: “(i) District Magistrate's office will be the single window for granting licences in Form LE-6 of the Explosives Rules, 2008 for public display of fireworks. Application for licence for public display of fireworks shall be submitted to the District Magistrate's office two months prior to scheduled date of display and if approved, permission will be granted at least one month prior to the display date; (ii) District Magistrate may take appropriate decision on relaxation of timing for display of fireworks in the light of Hon'ble Supreme Court's order dated 26.03.2007 in the case of Prevention of Environmental and Sound Pollution Forum Vs Union of India and others [Writ Petition ( Civil) No. 72 of 1998]; (iii) Only authorized fireworks approved by Chief Controller of Explosives shall be used for public display of fireworks (Rule 6 and condition 4 of licence in Forum LE-6 of the Explosives Rules, 2008); (iv) For authorization of traditional fireworks Viz. Amittus, Kuzhiminnal, multishots, gundus, etc, manufacturers shall apply to Chief Controller of Explosives ( CCE), Petrolium and Explosives Safety Organisation (PESO), Nagpur as per Rule 6 of the Explosives Rules, 2008, accompanied by particulars namely nature, composition, percentage of ingredients, dimensions, process of manufacture and performance characteristics of the fireworks. Prior approval for manufacture of sample fireworks will be given by PESO WPC 9250/18 8 within 10 days and after submission of fireworks samples, authorization will be accorded within 30 days. Fireworks samples will be submitted to the Office of Deputy Chief Controller of Explosives, Sivakasi who will send the test report to CCE, Nagpur for authorization. Though palm leaf crackers are included in the list of authorized explosives vide notification GSR No.225 dated 06.09.2006, approval of CCE with respect to its size, construction design and explosive composition is mandatory; (v) Storage licences to store fireworks, if required, near the display site shall be taken form the Office of Deputy Chief Controller of Explosives, PESO at Ernakulam. The store house (magazine) should be shown in the drawing along with display site (Rule 71 and Schedule IV of the Explosives Rules, 2008); (vi) The District Magistrate shall ascertain that 100 metres safety distance between the fireworks display site and spectators and 250 metres from hospitals, schools and nursing home shall be strictly complied. Barricading shall be provided at 100 metres around the display site to prevent entry of general public in the display area (conditions 3 and 11 of licence in Form LE-6 of the Explosives Rules, 2008); (vii) Wherever these safety distances are not available, the display site should be shifted to a suitable area. Even if safety distances are available but the display site is congested, that may make evacuation of people in case of an accident difficult/problematic, it should be shifted to an open area; (viii) District Authority shall ensure presence of experienced man power for conducting fireworks display (condition 24 of licence in Form LE-6 of the Explosives Rules, 2008); (ix) District Magistrate shall instruct festival organizers to conduct risk assessment by reputed organizers to identify potential hazards arising on account of fireworks display prior to applying for display license and ensure that relevant provisions of the Explosives Rules, 2008 are complied with. Based on the risk assessment study, disaster management plan shall be prepared by the District Administration before the fireworks display; WPC 9250/18 9 (x) Strict action should be taken against unauthorized manufacturers and display of fireworks (Rules 6 and 7 of the Explosives Rules, 2008); (xi) District/Police Authorities shall collect samples of fireworks from the premises of manufacturers and submit the same to Regional Chemical Examiner's Laboratory at Ernakulam well in advance to be tested for Potassium Chlorate or any other chlorate. Fireworks containing chlorate or prohibited chemicals shall not be used for public display ( Rule 128 (c) and condition 6 of licence in Form LE-6 of the Eplosives Rules, 2008); (xii) District Magistrate will have to send a report every 15 days to the State Government regarding display of fireworks, starting one month prior to start of festival season till the end. The report shall include particulars like no.of applications received, no. of licences granted, suitability of display site, compliance of the Explosives Rules, 2008, etc.” ## 7. The learned Central Government Counsel submits that 'Clause (iv)' of the revised guidelines does not prohibit “Amit” or “Gundu” as such, but for stipulating that, so as to deal with the said products, proper authorisation shall be there for the licencee and that specific clearance has to be given if such items are to be stored at the display site. Reference is also made to 'Clause (v)' in this regard. The learned Central Government Counsel points out that there is no prohibition as such in respect of “Amit” and “Gundu” as sought to be interpreted by the Executive Magistrate and that the restriction is only with regard to the unauthorised use of WPC 9250/18 10 such items and nothing else, This is more so, when they are shown as 'traditional fire works' as given in 'Clause (vi)' of Exhibit P6 revised guidelines. 8. The learned Senior Counsel for the petitioner points out that the petitioner does not intend to store any items at the display site and that a separate spot has been identified, much away from the display site, adding that the petitioner is ready to adhere to any condition to be imposed with regard to the temporary shed to be constructed at the storage site so as to ensure that there is no compromise to the safety and security. It is also stated that the petitioner, though has included 'Dynamite' and 'Kuzhiminnal' in Exhibit P4 application, it is not intended to be pressed much and undertakes that prohibited items will not be put to use in the fire works display. The learned Senior Counsel further points out that the petitioner, as in the previous year, is ready to provide insurance coverage to an adequate extent, also adding that the Cochin Devaswom Board, who owns the Temple, has arranged sufficient insurance coverage to an extent of Rs.10 crores, this year as well. The said fact is stated as correct by WPC 9250/18 11 the learned Standing Counsel for the Devaswom Board. 9. In the above circumstances, we find it appropriate to direct the competent authority to issue necessary clearance for fire works display in connection with the Arattupuzha Pooram based on Exhibit P4 application except the prohibited items (Kuzhiminnal and Dynamite) as mentioned already. It is open open for the competent authority to incorporate appropriate conditions to safeguard the interest of all concerned and to enable the fire works display to be conducted with adequate precaution. It is ordered accordingly. 10. It is open for the authorities like the District Collector and the District Police Chief to ensure that all the safety requirements are satisfied by the petitioner for facilitating display of fire works, without compromising the safety and security at large. It shall also be open for the Deputy Chief Controller of Explosives, Ernakulam and the Regional Chemical Examiner, Ernakulam to take samples of the materials used/proposed to be used in connection with the fire works display to ensure that no prohibited items are put to use. Necessary site inspection shall be conducted by the WPC 9250/18 12 authorities concerned and satisfaction could be recorded in this regard. The respondents shall also ensure that safe distance be maintained between the place of fire works display and the line up to which the general public can be permitted to have access and witness the event. Sufficient barricades shall be provided ensuring the safety and security. The place where the fire works are to be stored and the place of display shall be kept by the Police, Revenue and Fire & Rescue authorities and also the authorities of the Explosives Department under close surveillance. The petitioner shall submit an affidavit before the second respondent to the effect that no prohibited items will be used in the fire works display. The petitioner shall also furnish proof for having taken insurance coverage to an extent of 'Rs.3 crores' in respect of the current year's festival. The Devaswom shall also make available a copy of the insurance coverage to the tune of Rs.10 crores (stated as taken by them) before the District Collector forthwith. If any safety aspect is involved, appropriate measures shall be taken by the Kerala Electricity Board as well, with regard to the power supply in or nearby area, taking WPC 9250/18 13 prudent steps in this regard. The writ petition is disposed of accordingly. P.R.Ramachandra Menon, Judge Devan Ramachandran, Judge tkv