Maoist Threat In Locality Valid Reason To Deny NOC For Explosive Licence : Kerala High Court

The Kerala High Court has held that the presence of a Maoist threat in a locality is a sound reason to deny a No Objection Certificate (NOC) for an explosive license. It was also held that the fact that there is an Anganwadi or a PWD road nearby is also sufficient for such rejection. 

Justice N. Nagaresh while dismissing a petition challenging the decision of a Magistrate observed as follows: 

"...the proposed site for the magazine will badly affect the Anganwadi and Ambedkar colony; the Cheemeni-Odakolly PWD Road is precariously near to the site and is passing through southern side of the proposed quarry; and the Maoist-Terrorist threat within the limits of Chittarikkal Police Station, are good and sufficient reasons for the District Magistrate to decline NOC."

The Court also noted that the presence of Maoist terrorists and the perceived threat posed by them is a very relevant factor in the context of public interest.

"When an Anganwadi and Ambedkar Colony are nearby, maintaining an Explosive Magazine in the area would be inviting a disaster in a Maoist-prone area. Security of individual is a basic human right and the protection of individual is a fundamental obligation of the State in view of Article 21 of the Constitution of India. The State has an obligation to ensure the human rights of citizens by taking positive measures to protect them against the threat of terrorist acts. Counter-terrorism measures taken by the State therefore should be viewed in the context of protection of Human Rights and right to life guaranteed under Article 21."

The Mining and Geology Department issued a Letter of Intent to the petitioner to conduct quarrying operations for the extraction of granite stones. Subsequently, the petitioner was granted Consent to Operate from the Pollution Control Board and the Environmental Clearance for the same. 

To operate a quarry, the petitioner requires an Explosive Licence. Accordingly, he submitted an application for NOC from the District Magistrate under Rule 113 of the Explosive Rules, 2008. 

After considering the relevant aspects, the Sub Collector sent a letter to the District Collector recommending the grant of NOC. However, the District Police Chief issued a letter stating that the proposed quarry may endanger the vehicles, travellers and pedestrians using the road and may adversely affect the environment. 

He added that the area faced Maoist threats as well.  

Consequently, the Additional District Magistrate rejected the petitioner's application for NOC on the  ground that the proposed quarry will affect the following:

• an Anganwadi
• the Ambedkar Colony
• the PWD Road precariously near to the site
• there is a Maoist threat in the area.

Aggrieved by the view taken by the Magistrate, the petitioner approached the High Court. 

Advocates Alex M. Scaria, A.J. Riyas, Saritha Thomas, Pavan Rose Johnson and Aparna Anil appearing for the petitioner argued that it is the duty of the Police to give protection from Maoist-Terrorist threats to the citizens.

They added that such presumed Maoist threat cannot be a reason to deny NOC for Explosive Licence as the petitioner has a fundamental right to carry on an avocation. 

It was also pointed out that there were other quarries in the locality to argued that the petitioner was subjected to discrimination.

After referring to Rule 103(3) of the Explosives Rules, the Court decided that the District Magistrate while processing application for NOC has to verify:

• Antecedents of the applicant.
• Lawful possession of the Site.
• Genuineness of the purpose.
• Interest of public.
• Any other verification/enquiry specifically required by the Licensing Authority.
• Any other matter as deemed necessary.

After examining the Magistrate's order, the Court noted that the reason of "Environmental issues"  cannot be sustained since the District Environment Impact Assessment Authority, an expert body on environmental issues, had granted Environmental Clearance to the petitioner. 

"When a competent expert body like the District Environment Impact Assessment Authority has cleared the project after assessing the adverse environmental impact of the project, it will not be open to the Additional District Magistrate to take a contrary view, unless there are compelling reasons which render the Clearance given by such Authority legally unacceptable."

However, it was noted that all the other reasons given by the Additional District Magistrate were good and sufficient reasons to decline NOC.

Further, the Court found that the other quarries functioning in the area may have been sanctioned prior to the Maoist-terrorist threat perception. Therefore, it was not inclined to interfere with the decision of the Magistrate on that ground. 

As such, it was held that the petition fails and was accordingly dismissed. This view was upheld in a revision petition subsequently filed by the petitioner. 

Case Title: Rajan K. v. Additional District Magistrate & Anr.

Citation: 2022 LiveLaw (Ker) 34

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