Fundamental Right To Trade Under Article 19 Not Unrestricted: High Court Upholds Ban On Firecracker Business In Congested Areas Of Bengaluru

The Karnataka High Court has upheld the orders passed by the Director General of Police back in 2013 by which petitioners running the business in crackers & fireworks items were prohibited from carrying on their businesses in the congested areas of Bangalore city, mentioned in the order.

A single judge bench of Justice Krishna S Dixit rejected the petition filed by M/S Madhi Trading Co. and others and said,

"The Commissioner of Police having looked into the matter, has taken the decision way back in April 2012 i.e., a little more than a decade ago. The Director General & Inspector General of Police who happens to be Head of Police Wing in the State, too having considered the matter, has negatived the appeals of petitioners with the participation of stakeholders. The impugned orders accord with the policy considerations of the State as promulgated in the Government Orders dated 11.04.1980 and 23.09.1981."

The bench referring to Rule 115 of the Explosive Rules, 2008 which provides for the cancellation of 'No Objection Certificate' said, "The very text & context of this Rule shows the concern of the Rule Maker for public peace & safety."

It added,

"Two statutory authorities of high ranking, one in original jurisdiction and the other in appellate, have looked into the matter with the participation of stakeholders. The Appellate Authority has concurred with the views of original authority. After hearing the parties and after perusing the material on record has taken the impugned decisions that are not easily vulnerable for challenge on the ground urged here."

It opined, "A Writ Court examining these quasi judicial orders under restrictive supervisory jurisdiction constitutional vested under article 227, is not a court of appeal, needs to be kept in mind. The focal point of Judicial Review is the decision making process, and not the decision itself."

It also expressed,

"The doctrine of 'separation of powers' which is a Basic Feature of the Constitution, expects the constitutional courts to show due deference to the decisions of the executive, in the absence of an exceptional case being made out for indulgence. The factual foundation on which the impugned orders are structured cannot be readily demolished by the courts exercising such limited supervisory jurisdiction."

The bench also relied on studies depicting the harmful effects of bursting fire crackers on humans/animals etc. It said,

"It needs no research to know that the production, transportation & bursting of crackers (including those with reduced emission such as green crackers) are detrimental to 'mother nature', in varying degrees & kind. Firecrackers apart from being a health hazard and risk to life & limb, cause enormous environmental pollution; in dense cities like Bangalore that are plagued with ceaseless sound pollution, the bursting of crackers would only add to the existing woes."

No Violation of Article 19 (1) (g), Fundamental Right to practise any profession, or to carry on any occupation, trade or business.

The Court clarified that explosive substances being 'res extra commercium' like the liquor, poison, etc., no citizen can claim an unrestricted fundamental right under Article 19(1)(g) of the Constitution to carry on trade & business of the kind.

Rejecting the contention of the petitioners that they are discriminated qua others similarly circumstanced in general and the private respondents herein in particular, the bench said,

"In matters like this, the doctrine of equality enshrined in Article 14 cannot be readily pressed into service, unmindful of enormous hazards that would possibly put the public at large to, should a section of traders be permitted to continue their firecracker business in the areas in question. The interest of the public would be more served by petitioners & other traders shifting their said business to safer areas than being permitted to continue in the same areas in question."

Accordingly it dismissed the petition.

Case Title: M/S. MADHI TRADING CO & Others v THE JOINT CHIEF CONTROLLER OF EXPLOSIVES.

Case No: WRIT PETITION NO.46677 OF 2013

Citation: 2022 LiveLaw (Kar) 303

Date of Order: 29TH DAY OF JULY, 2022

Appearance: Senior Advocate PRAMILA NESARGI, a/w Advocate BINDU.U, for petitioner; CGC TIMMANNA BHAT DEVATHE, FOR R1 & R4; AGA B.V.KRISHNA, FOR R2 & R3; Advocate R.RADHA & Advocate R.YOGESH, FOR R5, R7 AND R9; Advocate JANARDHANA G, FOR R8 Advocate K.R.ASHOK KUMAR, FOR R10; Advocate REVATHY ADINATH NARDE, FOR R11 & 12;

Advocate B.N.ANANTHANARYAN, FOR R13

Click Here To Read/Download Order