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1999 DIGILAW 588 (MP)

Sher Khan v. State of M. P.

1999-08-16

N.G.KARAMBELKAR, S.P.SRIVASTAVA

body1999
Srivastava, J.–1. Feeling aggrieved by an order dismissing his writ petition upholding the order passed by the Commissioner whereunder the petitioner's appeal directed against the order cancelling the fire arm licence issued to him, as having been filed beyond the period prescribed, he has now come up in Letters Patent Appeal seeking redress praying for the reversal of the impugned orders passed by the learned Single Judge as well as the Commissioner. 2. We have heard the learned counsel for the appellant as well as the learned Govt. Advocate representing the respondents and have carefully perused the record. 3. The facts in brief, shorn of details and necessary for the disposal of this appeal lie in a narrow compass: The petitioner-appellant had been granted an arms licence for keeping a twelve bore gun under the provisions of the Arms Act. This licence was suspended by the Licensing Authority acting under Section 17 (3) of the Arms Act and was later on cancelled vide the order dated 26.3.1996 which was communicated to the appellant on 15.6.1996. An application for a certified copy of the order dated 26.3.1996 was moved by the appellant on 3.7.1996. On receiving the certified copy of the order, he had filed the appeal before the Commissioner on 10.7.1996 alongwith an application seeking condonation of delay in filing the appeal. 4. The Commissioner vide the order dated 3.11.1997 dismissed the appeal as having been presented beyond the prescribed period of limitation rejecting the application seeking condonation of delay in filing the same holding that the contention of the appellant to the effect that he had received the communication in regard to the cancellation of his arms licence on 15.6.1996 was not acceptable. The Commissioner was of the view that in the proceedings relating to the cancellation of the licence on 15.1.1996, the licensee had been informed about the next date fixed which was 11.3.1996. In spite of this information, neither the licensee nor his counsel put in appearance on 11.3.1996, with the result that the Licensing Authority proceeded ex parte and passed the order cancelling the licence on 26.3.1996. In spite of this information, neither the licensee nor his counsel put in appearance on 11.3.1996, with the result that the Licensing Authority proceeded ex parte and passed the order cancelling the licence on 26.3.1996. The Commissioner came to the conclusion that although the aforesaid order was an ex parte order, yet since the licensee had not appeared on the date fixed in spite of having been provided an opportunity for the same, he ought to have moved an application on the next date or a day thereafter for getting the ex parte order set aside which was however not done. No application in this regard was filed by the licensee within a day or two of the date on which the licence had been cancelled. It was in the aforesaid circumstances that the Commissioner had come to the conclusion that the case of the licensee that he was given the information on 15.6.1996 was not acceptable. 5. A perusal of the order passed by the Commissioner indicates that he had proceeded on the assumption that the starting point for computing the period of limitation prescribed for filing the appeal had to be taken as 26.3.1996 i.e. the date of the order and since the licensee had attended the proceedings relating to the cancellation of his licence on 15.1.1996 on which date 11.3.1996 had been fixed, he was to be presumed to know the subsequent dates fixed in the case including 26.3.1996, on which date the ex parte order cancelling the licence had been passed. 6. In the aforesaid view of the matter, according to the commissioner, the fact that the information in regard to the order of cancellation dated 26.3.1996 was communicated to the appellant on 15.6.1996 was found to be wholly irrelevant and not sufficient for the condonation of delay in filing the appeal as sought for. 7. The petitioner-appellant had filed a copy of the Communication dated 30.3.1996 issued from the office of the District Magistrate, Gwalior addressed to the Thana Prabhari, P.S. Aaron, district Gwalior in connection with the cancellation of the licence of the petitioner wherein the Thana Prabhari, had been informed that the licence in question had been cancelled by the District Magistrate vide the order dated 26.3.1996 and therefore he was directed to get the fire arm deposited in the police station and send the compliance report within a week. A copy of the aforesaid order was endorsed to the licensee with a direction to the Thana Prabhari to serve the said copy on the licensee for compliance. The licensee claimed that the Thana Prabhari, P.S. Aaron had served the said copy on him on 15.6.1996 and it was from the said copy that he came to know about the date of the order cancelling his licence and thereafter he moved an application for certified copy of the same on 3.7.1996 which was supplied to him on 10.7.1996, on which date the appeal had been presented. 8. In the impugned order, the learned Single Judge has observed that the only question involved in the case was in regard to the meaning of the expression "date of issue of an order" as occurring in Rule 55 of the Rules framed under the Arms Act. 9. On a consideration of the provisions contained in Section 17 (3) of the Act and the Rule 55 of the Rules framed under the Arms Act, the learned Single Judge came to the conclusion that the expression "issue of an order" referred to the actual date of the passing of the order and the date of the communication whereof was not relevant. In other words, what has been held is that the starting point for computing the period of limitation prescribed for an appeal invariably has to be the date of the order and not the date of the knowledge of the order. In these circumstances, it was observed that the Commissioner had not committed any error in dismissing the appeal. 10. Rule 55 of the Rules framed under the Arms Act is to the following effect: "55. In these circumstances, it was observed that the Commissioner had not committed any error in dismissing the appeal. 10. Rule 55 of the Rules framed under the Arms Act is to the following effect: "55. Appeal against the order of a licensing authority or an authority suspending or revoking a licence under Section 17 (6) -- In any case in which an authority issues an order -(a) refusing to grant or renew a licence or to give a no-objection certificate for such grant or renewal, or (b) varying any condition of a licence or suspending or revoking a licence under sub-section (1) or sub-section (3) or sub-section (6) of Section 17, the person aggrieved by such order may, within thirty days from the date of issue of the order, and subject to the proviso to sub-section (2) of Section 18 prefer an appeal against that order, to the concerned appellate authority." (Emphasis supplied) 11. It may be noticed that the relevant portion of Rule 46 of the Rules provides as under: "46. Deposit of arms and ammunition under Section 21--(1) When a licensing authority decides to suspend or revoke a licence or to refuse to renew it, he shall, while communication his decision in writing to the licensee, inform him that -(a) under Section 21 (1) he is required to deposit within such time as may be specified in the order suspending, revoking or refusing to renew the licence, the arms or ammunition covered by the licence, either with the officer-in-charge of the nearest police station forthwith a dealer holding a licence in Form XIV, or, in case he is a member of the armed forces of the Union, in the unit armoury; (b) xxxx xxxx (c) xxxx xxxx (2) xxxx xxxx (3) xxxx xxxx (4) xxxx xxxx (5) xxxx xxxx (6) xxxx xxxx (Emphasis Supplied) 12. Learned counsel for the appellant has strenuously urged that taking into consideration the implications arising under the aforesaid provisions the starting point for computing the period of limitation for filing an appeal could not be taken to be the date of the order but it ought to be the date of the knowledge of the contents of the order and the decision received either by communication of the said order or otherwise. 13. 13. Reliance in this connection has been placed on the observations made by the Apex Court in its decision in the case of Rajah Harish Chandra Raj Singh v. Dy. Land Acquisition Officer, reported in AIR 1961 SC 1500 wherein it had been emphasised as under: "Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of a remedy by the person aggrieved against the said order by reference to the making of said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned." 14. Heavily relying upon the ratio of the aforesaid decision it has been urged that the limitation in the present case had to be taken to run from the date of the knowledge of the decision/order and not the date of passing of the order. 15. It has further been urged that a Division Bench of this Court in its decision in the case of Ramsewak v. State of M.P. decided on 5.10.1987 in M.P. No. 739/87 had considered in detail the implications arising under Rule 55 of the Arms Rules and had observed as under: ".............. On reading Rule 55 of the Arms Rules, 1962, we entertain no doubt at all that when the licence is revoked or suspended, it becomes the duty of the concerned authority to communicate the order to the licence-holder. This is writ large in the language of the provision because the period of limitation for preferring an appeal is made 30 days' 'from the date of issue of the order" ........" It was further emphasised by the Division Bench that such an order had to be communicated. 16. In the present case, what we find is that the letter dated 30.3.1996 which had been sent to the Thana Prabhari, P.S. Aaron, by the District, Magistrate only communicated the date of the order cancelling the licence. It did not disclose the contents of that order. The licensee had come to know of the contents of the order on receiving the certified copy of the same. No appeal could have been filed without knowing the decision/contents on the order sought to be appealed against. It did not disclose the contents of that order. The licensee had come to know of the contents of the order on receiving the certified copy of the same. No appeal could have been filed without knowing the decision/contents on the order sought to be appealed against. The implications arising under the provisions contained in Rule 55 of the Rules read together with Rule 46 thereof make it abundantly clear that the District Magistrate has to communicate the decision in writing affecting adversely the rights of licensee in the matter relating to the holding of a fire arm. The limitation for filing an appeal therefore had to be computed not from the actual date of the order but from the date of the communication of the decision in writing to the licensee. It could not be a date anterior to the date of such communication or the date of the knowledge of the decision/contents of the order. 17. We are of the considered opinion that the ratio of the decisions in the case of Rajah Harish Chandra Raj Singh (supra) and Ramsewak (supra) clearly. stand attracted to the facts and circumstances of the present case on the admitted and proved facts. Therefore, the appeal filed by the petitioner-appellant could not have been held to be barred by time. The Commissioner has acted with manifest illegality in refusing to go into the merits of the appeal filed by the petitioner -appellant. 18. In the aforesaid view of the matter, sufficient ground has been made out for interference. 19. In the result, this appeal succeeds. The impugned order passed by the learned Single Judge is set-aside and the order passed by the Commissions Gwalior Division, Gwalior/respondent No.2, a copy whereof has been filed as Annexure-P/1 to the writ petition, is hereby quashed with a direction to the Commissioner, Gwalior Division, Gwalior to restore the appeal of the petitioner-appellant to its original number and consider and decide the same on merits in accordance with the law.