Nripendra Narayan Roy v. State Of Bihar — 1974 DIGILAW 16 (PAT)

Judgment SHAMBHU PRASAD SINGH, J. 1. This application under Articles 226 and 227 of the Constitution of India has been filed for quashing Annexures-4 and 5 to the application and directing Respondent No. 3, the District Magistrate, Champaran, to grant a license to the petitioner for a revolver. Annexure-4 is a letter from the Secretary to the Commissioner of Tirhut Division, Respondent No. 2, dated 9th of February, 1971, informing Respondent No. 3 that the Commissioner was not approving grant of a license for a revolver to the petitioner. This letter was written in reply to letter No. 74 dated 9th of January, 1971 of Respondent No. 3. The reasons as stated in this letter for not approving the grant of a license for a revolver to the petitioner are that the petitioner from before has a licence for a gun and a rifle and there are also 20 fire arms in his village. Annexure-5 is the letter dated 17th of February, 1971, of the Fire Arms Officer, Motihari, informing the petitioner that as the Commissioner was not approving grant of a license for a non-prohibited bore of revolver to him, his application was being rejected. 2. It has been contended on behalf of the petitioner that on 4th of December, 1970, Respondent No. 3, did pass an order, granting a license for a revolver to the petitioner and thereafter Respondent Nos. 2 or 3 could revoke the license only in accordance with the provisions of the Indian Arms Act. The order dated 4th of December, 1970, runs as follows : "Granted license, valid for the whole of Bihar State, Obtain Commissioners approval informally through letter." This order was passed on the application of the petitioner for grant of license of a non-prohibited bore revolver. The entire order sheet of Respondent No. 3 in relation to this application has been made Annexure-2 to the writ application and the last order passed is as quoted above. According to the petitioner, Respondent No. 3 acted illegally in writing to the Commissioner, Respondent No. 2, for approving the grant of a license of a revolver to the petitioner. It has been contended by learned counsel for the petitioner that according to the provisions of the Arms Act and the relevant rules framed thereunder, Respondent No. 3 himself had absolute power to grant a license for a non-prohibited bora revolver. It has been contended by learned counsel for the petitioner that according to the provisions of the Arms Act and the relevant rules framed thereunder, Respondent No. 3 himself had absolute power to grant a license for a non-prohibited bora revolver. In a matter which according to law Respondent No. 3 was himself entitled to deal, he ought not to have been influenced by the views of Respondent No. 2. 3. On behalf of the respondents, it has been urged that according to the directions of Respondent No. 1, the State of Bihar, the District Magistrate could grant license of a non-prohibited bore revolver only after obtaining the approval of the Commissioner. Therefore, Respondent No. 3 did nothing illegal in writing to Respondent No. 2 for the approval of grant of a license to the petitioner for a revolver of non-prohibited bore. The order dated 4th of December, 1970 of Respondent No. 3 was a provisional order. Till the approval of the Commissioner was not obtained, no license could be granted to the petitioner according to it. It has lastly been submitted by learned counsel for the respondents that no person has got any legal right for a license and as such no writ application is maintainable for a direction for grant of a license for fire arms. 4. Sec.3 of the Arms Act (No. 54 of 1959) hereinafter referred to as the Act lays dawn that no person shall acquire, have in his possession, or carry any fire arm or ammunition unless he holds in this behalf a license issued in accordance with the provisions of this Act and the rules made thereunder. Sec.13(1) of the Act provides that an application for the grant of a licence under Chapter II has to be made to the licensing authority in prescribed form giving necessary particulars and accompanied by such fee, if any, as may be prescribed. Sec.13(2) empowers the licensing authority, after making such inquiry, if any, as it may consider necessary and subject to other provisions of Chapter III of the Act either to grant the licence or refuse to grant the same by an order in writing. Sec.13(2) empowers the licensing authority, after making such inquiry, if any, as it may consider necessary and subject to other provisions of Chapter III of the Act either to grant the licence or refuse to grant the same by an order in writing. According to Sec.13(3)(a) a licence under Sec.3 is to be granted by the licensing authority to a citizen of India in respect of a smoothbore gun having a barrel of not less than twenty inches in length or in respect of a muzzle-loading gun or in respect of a .22 bore rifle or an air-rifle for certain purposes mentioned therein. Sec.13(3)(b) lays down that a licence under Sec.3 in a case not covered by Sub-Section (3)(a) or a licence under other sections of Chapter II may be granted by the licensing authority if it is satisfied that the person by whom the licence is required has a good reason for obtaining the same. Sec.14(1) of the Act deals with cases in which the licensing authority shall refuse to grant a licence. Sec.14(2) provides that the licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not possess or own sufficient property. Sec.14(3) requires the licensing authority to record in writing the reasons for refusal to grant a licence and to furnish the person who applies for the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement. Sec.17 of the Act provides for variation, suspension and revocation of licences by the licensing authority. The grounds on which a licence may be suspended or revoked are mentioned in Sub-Section (3) of the section. Sub-Section (5) of that section is similar to Sub-Section (3) of Sec.14. Sub-Section (6) of Sec.17 lays dawn that the authority to whom the licensing authority is subordinate may, by order in writing, suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority. The licensing authority is defined in Sec.2(1)(f) to mean an officer or authority empowered to grant or renew licences under rules made under this Act, and includes the Government. The licensing authority is defined in Sec.2(1)(f) to mean an officer or authority empowered to grant or renew licences under rules made under this Act, and includes the Government. R.4 of the Arms Rules, 1962 (hereinafter referred to as the Rules) says that licences under Chapter II of the Act may be granted or renewed for such purposes, by such authorities, in such Forms and to be valid for such period and in such areas as are specified in Schedule II and subject to such conditions as are specified in that Schedule and in the licence. Rule 3 lays down that for the purposes of the Act and the Rules, arms or ammunition shall be of the categories specified in columns 2 and 3 respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly. In Schedule I to the Rules, revolvers constituted category III(a). Under Item 3 of Schedule II, the District Magistrate is the licensing authority for granting licences in respect of arms of category III(a) for whole of India or any specified area. It would thus appear that the District Magistrate was the licensing authority in this case. Learned counsel appearing on behalf of the State was not able to place before us any rule according to which the District Magistrate who is the licensing authority in the case could grant licence of a non-prohibited bore revolver only after obtaining approval of the Commissioner. 5. In my opinion, there is substance in the contention of learned counsel for the petitioner that Respondent No. 3 being the licensing authority should have exercised his discretion in the matter and ought not to have written to Respondent No. 2 for approving the grant of a licence of a revolver to the petitioner. In the matter of granting licence, if Respondent No. 3 was satisfied that it was a fit case for granting licence to the petitioner, he ought not to have been influenced by what the Commissioner wrote to him. The case is covered by the decision of the Supreme Court in Commr. of Police, Bombay V/s. Gordhandas Bhanji, AIR 1952 SC 16 . In that case, Gordhandas Bhanji, the respondent before the Supreme Court, wanted to built a cinema house in a part of Greater Bombay. The case is covered by the decision of the Supreme Court in Commr. of Police, Bombay V/s. Gordhandas Bhanji, AIR 1952 SC 16 . In that case, Gordhandas Bhanji, the respondent before the Supreme Court, wanted to built a cinema house in a part of Greater Bombay. He obtained the necessary permission from the Commissioner of Police, Bombay (appellant before the Supreme Court), in exercise of the discretion vested in him to grant a licence under Sec.22 of the City of Bombay Police Act, 1902. Later the permission was suspended by the appellant and the respondent was told to await the orders of the Government. Shortly after, the appellant sent to the respondent the following communication : "I am directed by the Government to inform you that the permission to erect a cinema granted to you is hereby cancelled". The respondent applied for an order in the nature of a mandamus for a direction to the appellant to withdraw the cancellation and directing him to grant permission for the erection of the cinema. The High Court of Bombay granted the necessary directions as prayed for by the respondent before the Supreme Court and the Commissioner of Police, Bombay, appealed. The Supreme Court held that as the necessary power was vested in the appellant who had absolute discretion in the matter, he alone could exercise it and not the State Government. In the circumstances of the case, the Supreme Court made some modifications in the order passed by the High Court. 6. In the instant case, according to the provisions of the Act and the Rules, the power to grant licence was vested in Respondent No. 3. He did exercise that power in favour of the petitioner. Respondent No. 2 was not vested with any power in the matter of granting of licence. Respondent No. 3, therefore, erred in exercise of his jurisdiction in being influenced by the opinion of Respondent No. 2. Really as was the case before the Supreme Court, even after receiving the opinion of Respondent No. 2, Respondent No. 3 did not apply himself to the matter. What was communicated to the petitioner was the opinion of Respondent No. 2 and not the order passed by Respondent No. 3 in exercise of his discretion. 7. Really as was the case before the Supreme Court, even after receiving the opinion of Respondent No. 2, Respondent No. 3 did not apply himself to the matter. What was communicated to the petitioner was the opinion of Respondent No. 2 and not the order passed by Respondent No. 3 in exercise of his discretion. 7. True it is that as an appellate authority of Respondent No. 3, Respondent No. 2 could suspend or revoke the licence granted to the petitioner, but that he could do only on the grounds mentioned in Sec.17(3). Learned counsel for the State had to concede that it was not a case of revocation or suspension of the licence on any of the grounds mentioned in Sec.17(3) of the Act and even an order of revocation or suspension on any ground would be bad if the licensee is not afforded an opportunity of being heard in the matter before the suspension or revocation of his licence. 8. There is also no substance in the contention of learned counsel for the State that the grant of licence by Respondent No. 3 was provisional. The first sentence of the order of Respondent No. 3, already quoted in paragraph 2 of this judgement, is complete in itself and he himself had the absolute discretion in the matter. The second sentence for obtaining Commissioners approval informally was redundant and did not make the order passed by the first sentence a provisional one. 9. I now take up the question whether the petitioner has got any legal right for a licence and his writ application is maintainable. In Kishore Singh V/s. State of Rajasthan, AIR 1954 Raj 264 : (1954 Cri LJ 1672) Wanchoo, C.J. (as he then was) held that to acquire, hold and dispose of arms is a right and not privilege. In Sudhansu Kanta Acharya V/s. State of Bihar, AIR 1954 Pat 299 : ((1954) Cri LJ 951) a Bench of this Court issued a writ of certiorari quashing the proceedings taken against the petitioner of that case by the Deputy Commissioner of Ranchi for the cancellation of arms licences. It was observed that the power of cancellation of a licence under the Arms Act was not untramelled. It was observed that the power of cancellation of a licence under the Arms Act was not untramelled. In re State of Madras 1957 2 Mad LJ 249 : (1957 Cri LJ 1282 (1)) a Bench of that Court held that an order purporting to cancel a gun licence is though an administrative order, it interferes with the fundamental rights of a citizen to hold property and the High Court has jurisdiction under Article 226 of the Constitution to investigate the validity of the order. 10. Had it been an order merely refusing to grant a licence to the petitioner it could be argued that the petitioner had no legal right, and I do not consider it necessary to go into the question whether in such a case this Court could investigate the validity of the order. But, in my opinion, Respondent No. 3 had granted the licence and the information sent to the petitioner subsequently that his application for licence was being rejected as Respondent No. 2 was of the view that no licence should be granted to him, really amounts to an order cancelling the licence already granted. In such a case this Court can interfere and issue a writ quashing the subsequent order. It is directly covered by the Bench decision of this Court in Sudhansu Kanta Acharyyas case AIR 1954 Pat 299 : (1954 Cri LJ 951) referred to above. The prayer for a direction to Respondent No. 3 to grant a licence in substance is a prayer for issue of a formal licence. The order granting the licence has already been passed by Respondent No. 3. 11. In the result, the writ application is allowed and Annexures 4 and 5 are quashed. Respondent No. 3 is further directed to issue a formal licence to the petitioner in accordance with the first sentence of his order dated 4th of December, 1970. In the circumstances of the case, there will be no order as to costs. ANWAR AHMAD, J. 12 I agree.