Arattupuzha Kshethra Upadesaka Samithy v. State of Kerala, District Magistrate, Cochin Devaswom Board, Circle Inspector of Police, Cherpu Police Station, and Deputy Chief Controller of Explosives

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY ,THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940** **WP(C).No. 6642 of 2019** ## **PETITIONER:** **ARATTUPUZHA KSHETHRA UPADESAKA SAMITHY, P.O.ARATTUPUZHA, THRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY, ADV.SUJESH K., AGED 44 YEARS, S/O.K.SETHUMADHAVAN NAIR, RESIDING AT KORAPATH HOUSE, P.O.ARATTUPUZHA, ARATTUPUZHA VILLAGE, THRISSUR TALUK, THRISSUR - 680 562.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.R.S.ASWINI SANKAR SRI.G.RENJITH SRI.N.K.SUBRAMANIAN SRI.S.M.PRASANTH SRI.T.H.ARAVIND SRI.T.RAMPRASAD UNNI** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE DISTRICT MAGISTRATE/DISTRICT COLLECTOR,**| ||**THRISSUR - 680 001.**| |**3**|**THE COCHIN DEVASWON BOARD,**| ||**ROUND NORTH, THRISSUR - 680 020, REPRESENTED BY**| ||**ITS SECRETARY.**| |**4**|**THE CIRCLE INSPECTOR OF POLICE,**| ||**CHERPU POLICE STATION, THRISSUR - 680 561.**| **2** ## **WP(C).No. 6642 of 2019** - **5 THE DEPUTY CHIEF CONTROLLER OF EXPLOSIVES, KENDRIYA BHAVAN, KAKKANAD, ERNAKULAM, KOCHI - 682 037.** **BY ADV. SRI.M.A.VINOD, CGC SRI .AJITH KRISHNAN SC. COCHIN DEVASWOM BOARD30 BY SR. GOVT. PLEADER SRI T K ANANDAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** ## **WP(C).No. 6642 of 2019** ## **JUDGMENT** ## **P.R. 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 13.03.2019, 18.03.2018 and 19.03.2018 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.T.K. Anandakrishnan, the learned Government Pleader appearing for the State/ Department, the learned Central Government Counsel, who entered appearance on behalf of the fifth respondent and Sri.Ajith Krishnan, the learned Standing Counsel appearing on behalf of the Cochin Devaswom Board. 3. The learned Sr. Counsel for the petitioner submits that Arattupuzha Pooram is one of the old festivals in the country and this time, it is the 1437[th] **4** ## **WP(C).No. 6642 of 2019** 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 learned counsel 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 **WP(C).No. 6642 of 2019** **5** the cause. Necessary intimations have already been issued to the Revenue Authorities as well and it 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_ **WP(C).No. 6642 of 2019** **6** _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 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 27.02.2019 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 would not grant permission. The petitioner has made **7** ## **WP(C).No. 6642 of 2019** arrangements to construct a 'temporary shed' away, to serve as magazine for storing the fireworks for display, meeting the requirements/ stipulations made by the authorities concerned, maintaining all safety standards. 6. The learned Government Pleader points out that the view expressed by the District Collector/Executive Magistrate is because of the chance to use prohibited items. It is relevant to note in this context that the prohibited items were mentioned only as “Kuzhiminnal” and “Dynamite”, as specifically incorporated in the judgment passed by this Court earlier. However, since “Gundu” and “Amittu” were also sought to be used, we found it appropriate to get clarifications from the Deputy Chief Controller of Explosives in the last year. It was accordingly, that the matter was passed over, requiring the learned Central Government Counsel to get instructions; who submitted that after taking note of the facts and figures, revised guidelines had been issued by the Central Government under Rule 126 of **WP(C).No. 6642 of 2019** **8** the Explosives Rules, 2008. A copy of the said revised guidelines was made available to this Court, which was extracted in Ext.P5 as re-produced below : _“(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 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_ **WP(C).No. 6642 of 2019** **9** _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;_ **WP(C).No. 6642 of 2019** **10** _(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 had submitted before this Court, as noted in Ext.P5, 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 was also made to 'Clause (v)' in this regard. The learned Central **WP(C).No. 6642 of 2019** **11** Government Counsel pointed out that there was no prohibition as such in respect of “Amit” and “Gundu” and that the restriction is only with regard to the unauthorised use of such items and nothing else. It was accordingly that permission was granted in the last year as per Ext.P5 judgment passed by this Court. 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 will not use any 'Dynamite' and 'Kuzhiminnal' and undertakes that no prohibited items will 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 **12** ## **WP(C).No. 6642 of 2019** 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 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 the fire works display in connection with the Arattupuzha Pooram to be held on 13[th] , 18[th] and 19[th] of this month; based on Exhibit P4 application, except the prohibited items (Kuzhiminnal and Dynamite) as mentioned already. It is 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 **WP(C).No. 6642 of 2019** **13** 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 authorities concerned and satisfaction could be recorded in this regard. The respondents shall also ensure that safe distance of a minimum of 100 metres 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 without access to the general public, **leaving a minimum** **WP(C).No. 6642 of 2019** **14** **distance of 50 metres** . 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** 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 prudent steps in this regard. The writ petition is disposed of accordingly. **Sd/-P.R. RAMACHANDRA MENON, JUDGE** **Sd/-N. ANIL KUMAR, JUDGE** lk **15** ## **WP(C).No. 6642 of 2019** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF SKETCH LOCATION ALONG WITH THE REPORT OF THE VILLAGE OFFICER DATED 06/03/2017.** **EXHIBIT P2 TRUE COPY OF ORDER DATED 26/03/2007 IN W.P (CIVIL) NO.72 OF 1998 ON THE FILE OF THE SUPREME COURT OF INDIA.** **EXHIBIT P3 TRUE COPY OF ORDER DATED 14/04/2016 IN WP(C) NO.14978 OF 2016.** **EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 27/02/2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 22/03/2018 IN WP (C) NO.9250 OF 2018.** **EXHIBIT P6 TRUE COPY OF MINUTES OF THE MEETING HELD ON 04/03/2018.** **/true copy/** **P.S. TO JUDGE.**