'We Are Not The Police': Gujarat High Court In PIL On Violation Of Ammonium Nitrate Rules, Asks Litigant To Approach Authorities First

Permitting withdrawal of a PIL highlighting the alleged non-compliance of Ammonium Nitrate Rules 2012 by certain entities in handling the chemical, the Gujarat High Court on Wednesday (December 4) asked the petitioner to first approach the concerned authorities empowered to look into the issue, and approach the court only if there is any inaction. 

“Have you made any effort to approach anyone? See, why we are asking this question. We are not the police, we are not collector. Don't make this court, police and collector. First you have to go through these authorities, make an effort to intimate them. Preparing a representation and sending through the registered post generally for 10-15 units is not the way. This is only for the preparation of Writ Petition, PIL only. This is only for the purpose of PIL", bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi said orally.

The Court noted that there was no statement on oath in the writ petition, demonstrating that the petitioner had approached the concerned authorities. A representation that was filed, was sent through registered post, and it was not clear if the authorities had received it or not.

The division bench said while it was not against entertaining PILs, however a public interest litigant must show his bonafides and come with a categorical case; wherein the present PIL before it did not demonstrate so. 

During the hearing, senior advocate Deven Parikh submitted that the United Nations, World Bodies, various governments internationally are all aware of the problems that are created by handling of ammonium nitrate.

He said that the Petitioner is living next to the vicinity of the persons who are making ammonium nitrate. He then submitted that the state government made ammonium nitrate–that was earlier bought and sold freely in the country–in 2012 subject to the Ammonium Nitrate Rules, 2012 and it was declared to be a deemed explosive. Furthermore, he submitted that under the rules, all the units converting ammonium nitrate should register themselves and the rules stated are not being followed.

At this stage the court orally asked, "You are trying to say that rules are not being followed. Where is the statement in that regard. There has to be a statement. And what is the basis of saying this". 

The senior counsel thereafter pointed to the grounds in this regard in the petition as per which the concerned Respondents No. 11 to 19 are operating ammonium nitrate conversion unit that flagrant violation of safety distance provided in ammonium nitrate rules, not complied with the rule 5 of the Ammonium Nitrate Rules; it has been urged that they are claiming exemption even though they are not entitled, that the unit is not explosive industries and not holding a license and has not taken any steps to comply with safety distance. The concerned authority has failed to conduct timely audit, the plea adds. 

Then bench then orally inquired if the petitioner has made a representation to Gujarat Pollution Control Board (GPCB). "Where is the statement in this regard in the petition of you approaching GPCB," the court asked.

The court noted that the petitioner's statement was that he had written to the District Magistrate, Superintendent of Police and Chief Controller of Explosives. The court however said that the main issue is about GPCB and asked whether GPCB is authorised to make any inspection or not.

The Additional Government Pleader then clarified that GPCB does not have any authority to control. The Chief Controlling authorities; Chief Controller and Joint Chief Controller of Explosives according to the rules has the authority to control.

The Senior Counsel then pointed to the relevant rules and said,“Notwithstanding anything containing in these rules, the Executive Magistrate or police officer authorized in the table shall carry out inspection of the licensed premises located within the jurisdiction once in 6 months in order to ascertain here has been any violation of the rules”.

The court meanwhile orally noted that the representation was dated October 21 and the petition was filed in November. It asked if the petitioner had filed any other representation or reminder in this time period. The petitioner said that he had not. "Where is the proof has been received in the office? This representation does not contain his name or signature and it has been sent through registered post," the court orally asked. 

Parikh requested to amend the petition and submitted that they have approached the Collector for the present issue and would produce the original records before the court.

The court then orally said, “No, not a single statement in the Writ Petition, this is a representation, not even signed, typed copy of the representation sent through registered post. See, Mr Senior Counsel, we are not against entertaining PIL but we are against entertaining this type of PIL.”

Parikh then requested to file an additional affidavit but the court denied his request stating the time was already given twice. 

The Court then orally said, “Then, you can withdraw it and file a fresh (petition) but then it should contain all the particulars and efforts by you...because it is expected that you go to them, if they are not deciding your case, then you again come.”

The bench then dictated in its order “After a brief submission, Ld. Senior Counsel appearing for the petitioner would submit that the petitioner be permitted to withdraw the present petition as he proposes to approach the competent authority empowered to implement the provisions of the rules namely, Ammonium Nitrate Rules, 2012, by making specific representation raising grievances of alleged violation of rules against the private respondents 11 to 19. On such representations being filed, along with the copy of this judgement, the competent authority under the rules authorized to make inspection and ensure implementation of Rules, 2012, shall take necessary action and report and under the due intimation to the petitioner. However, in case of inaction on the part of such authority, it would be open for the petitioner to approach this Court again. With the above observations and directions, the present petition filed as Public Interest Litigation is hereby disposed of”. 

Case title: PATHAN NAZIMKHAN MOHAMMAD KHAN V/S STATE OF GUJARAT & ORS.