Ram Narain v. Commissioner, Meerut Division — 1982 DIGILAW 838 (ALL)

JUDGMENT K. P. Singh, J. 1. BRIEF facts giving rise to the present writ petition are that the petitioner held licence no. 342/May/1972 for gun No. 86470. The petitioner is a resident of village Sapanawat, Police Station Pilkhuna, Tahsil Ghaziabad, District Meerut. It appears that the petitioner was involved in a case under Sections 395/ 397 IPC but he was acquitted by the 4th Additional Sessions Judge, Meerut through his judgment dated 17-4-1975 (Annexure 1 attached with the writ petition). In connection with that case the petitioner's gun and its licence were taken in custody by the police. After acquittal, the petitioner prayed for return of his gun. He was intimated that the licence had already expired, hence on the production of renewed licence he would get his gun. The petitioner applied for renewal of his licence (See Annexure V attached with the writ petition). The prayer of the petitioner was refused by the Sub Divisional Magistrate Ghaziabad through his order dated 4-6-1975 (See Annexure CAI attached with the counter affidavit). It appears that the order dated 4-6-1975 was communicated to the petitioner through an order of the Additional District Magistrate (Executive), Meerut dated 30-6-1975. Against the order dated 30-6-1975 the petitioner preferred an appeal to the Commissioner Meerut Division and the same was rejected by him through his order dated 21-11-1975 (Annexure VIII attached with the writ petition). Thereafter a review application was filed which was also rejected by the Commissioner through his order dated 5-1-1976 (See Annexure VII attached with the writ petition). Aggrieved by the orders of the Commissioner and that of the Additional District Magistrate (Executive) dated 30-6-1975 as well as the order of the Sub Divisional Magistrate, Meerut, dated 4-6-1975, the petitioner has approached this Court under Article 226 of the Constitution. 2. THE learned counsel for the petitioner has contended before me that the refusal of the licence by the Sub Divisional Magistrate on 4-6-1975 was without affording any opportunity to the petitioner hence the same deserves to be quashed. It has also been suggested that the licensing authority has misread the judgment of the Criminal Court and has arbitrarily held the petitioner as not a bonafide person to hold a gun licence. According to the learned counsel for the petitioner the appellate authority has also upheld the order refusing to renew the licence in favour of the petitioner almost on the same ground. According to the learned counsel for the petitioner the appellate authority has also upheld the order refusing to renew the licence in favour of the petitioner almost on the same ground. It has been stressed that the criminal case against the petitioner ended in acquittal of the petitioner and in the body of the judgment the Additional Sessions Judge had observed as follows :- ".........Therefore, it appears that the prosecution has not come with clean hands so far as the Dhata affair is concerned. The accused, if participated in the crime and if they had Dhatas around their faces they could not have been identified on account of invisibility of their faces, if the (sic) that as had not got untied. In the above circumstances the untying of the Dhatas appear very much doubtful and naturally the recognition of the accused also." 3. THE learned counsel for the State has submitted in reply that the petitioner has been ignorant althrough in pressing his claim hence he should not get any relief by this Court. It has been pointed out that the order of the Additional District Magistrate (Executive) dated 30-6-1975 was only an order communicating the petitioner the refusal to renew the licence in his favour and the petitioner had filed appeal only against that order and has failed to challenge the real order passed by the Sub Divisional Magistrate on 4-6-1975. It has also been stressed that the petitioner has not attached the relevant orders with the writ petition, hence his claim should be negatived and no effective relief can be granted to the petitioner in writ jurisdiction. 4. WHEN I heard this case on the last occasion I was feeling that the writ petition should be dismissed on the technical ground that the petitioner had been negligent but during the course of argument the learned counsel for the petitioner stressed that he owns a gun which is rusting due to the wrong and illegal order passed by the licensing authority, and he took time to take appropriate steps to cure the defect. The time was granted and thereafter the petitioner prayed for quashing the order dated 4-6-1975 passed by the Sub Divisional Magistrate. At this stage the only objection on behalf of the State is that the move of the petitioner is belated. The time was granted and thereafter the petitioner prayed for quashing the order dated 4-6-1975 passed by the Sub Divisional Magistrate. At this stage the only objection on behalf of the State is that the move of the petitioner is belated. There is no doubt about it that the prayer for quashing the relevant order refusing to renew the licence is a little belated but a perusal of the order of the appellate authority indicates that all the facts were before the appellate authority and the appellate authority felt satisfied that the order refusing to renew the licence in favour of the petitioner was quite correct. In such a circumstance in the ends of justice I have allowed the prayer of the petitioner for adding the relief in the writ petition for quashing the order of the Sub Divisional Magistrate dated 4-6-1975. 5. AFTER hearing the counsel for the parties I find that the order dated 4-6-1975 was not passed after giving reasonable opportunity to the petitioner. Even if the petitioner did not file any appeal against the relevant order before the appellate authority, it is well known that an alternative remedy is not an absolute bar for quashing an order which is passed in contravention of the principles of natural justice. Moreover, in the present case the petitioner had filed an appeal against the order dated 30-6-1975 whereby the refusal of renewal of his licence was communicated to the petitioner and the appeal of the petitioner has not been rejected on the ground that the same was defective or was not against the relevant order. Rather, the appellate authority has observed that refusal to renew the licence in favour of the petitioner was justified in the circumstances of the present case. 6. IN view of the circumstances mentioned above, I entertain the writ petition against the order dated 4-6-1975 passed by the Sub-Divisional Magistrate refusing the renewal of the licence in favour of the petitioner. It is not necessary to point out the mistakes in the order of the appellate authority. It is enough to indicate that the order of the Sub Divisional Magistrate was not passed after hearing the petitioner hence it deserves to be quashed. It is not necessary to point out the mistakes in the order of the appellate authority. It is enough to indicate that the order of the Sub Divisional Magistrate was not passed after hearing the petitioner hence it deserves to be quashed. In the circumstances of the present case, I think that the latches on the part of the petitioner deserve to be condoned and the writ petition against the order dated 4-6-1975 should be treated as a valid writ petition. 7. THE only ground given in the order of refusal to renew the licence of the petitioner is that he was an accused in a case under section 395/397 IPC and got acquittal due to benefit of doubt, hence he was not a fit person to get the licence renewed. It would be proper to mention that the Sessions Judge has also observed that the prosecution had not come with clean hands and that was also a circumstance to give the benefit of doubt to the petitioner. THE theory of Dhatas set up by the prosecution was not acceptable to the Sessions Judge. In this view of the matter I think that the prosecution had not proved his case against the petitioner and in the Criminal case the acquittal of the petitioner appears on the failure of the prosecution in establishing its case, hence the very basis of the order of the licensing authority under the impression that only technically benefit of doubt was given to the petitioner does not appear to me as correct. 8. IN this connection the attention of the licensing authority is directed to the case reported in 1972 AWR 383 Masiuddin v. Commissioner Allahabad Division, Allahabad, and also to the case reported in 1975 ALJ 508 Mohd. Ashfaq v. Commissioner, Allahabad Division, Allahabad. The perusal of the aforesaid two rulings would indicate that the ground given by the licensing authority for not renewing the licence in favour of the petitioner is no ground in the eye of law. Since the refusal of the licence by the Sub Divisional Magistrate is without giving reasonable opportunity to the petitioner, I think it proper to quash the order dated 4-6-1975 whereby the petitioner's licence has not been renewed. Since the order of the licensing authority has been quashed, the order passed by the appellate authority falls through. Since the refusal of the licence by the Sub Divisional Magistrate is without giving reasonable opportunity to the petitioner, I think it proper to quash the order dated 4-6-1975 whereby the petitioner's licence has not been renewed. Since the order of the licensing authority has been quashed, the order passed by the appellate authority falls through. In the result, the writ petition succeeds and the impugned order of the licensing authority dated 4-6-1975 passed by the Sub Divisional Magistrate (attached with the counter affidavit as CAI) is hereby quashed. The prayer for quashing the aforesaid order has been added through the amendment application. The licensing authority is directed to pass final order on the application of the petitioner for renewal of the licence in his favour in the light of the observations made above. Parties are directed to bear their own costs. Petition allowed.