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2004 DIGILAW 359 (PAT)

Braj Bhushan Sharma v. State Of Bihar

2004-03-31

NAGENDRA RAI, S.N.HUSSAIN

body2004
Judgment 1. The petitioner is the same in all the three writ applications. As the points involved in all the three writ petitions are more or less the same, they have been heard together and are being disposed of by this common order. 2. CWJC No. 3002/2001 has been filed by the petitioner for a direction to the authorities to renew the gun manufacturing licence for the year 2001, CWJC No. 4400/2002 has been filed for a direction to the authorities to renew the gun manufacturing licence for the year 2002 and CWJC No. 10753/2000 has been filed for a direction to grant Transport Licence to transport ten DBBL guns manufactured by the petitioner to M/s. Capital Gun House, Kanpur, a licensed Arm dealer. 3. The admitted fact is that the petitioner is engaged in manufacturing of DBBL guns and in the year 1978 he was granted licence u/s. 5 of the Arms Act (hereinafter referred to as the Act) and the same was being renewed from time to time under the provisions of sec. 15 of the Act till the year 2000. The applications, filed by the petitioner for the renewal of the said licence for subsequent years i.e., 2001 and 2002, have not been disposed of by the authorities, which necessitated the filing of the two writ applications (CWJC Nos. 3002/01 and 4400/02). While the licence for the year 2000 was valid, the petitioner wanted to transport 10 DBBL Guns manufactured by him to M/s: Capital Gun House, Kanpur, a licensed Arm Dealer and prayed for permission from the concerned authority of the State Government, but when the same was not granted, he filed CWJC No. 10753/2000 as stated above. 4. The State has admitted the fact that the licence up to the year 2000 was granted, but thereafter the licence is not being renewed from year to year on the ground that the petitioner has defaulted in payment of sales tax for the said manufacturing unit and municipal taxes. It is also stated that two certificate cases have already been registered against the petitioner; one for recovery of the sales tax under the Bihar Finance Act and other for recovery of rent with regard to the same. 5. It is also stated that two certificate cases have already been registered against the petitioner; one for recovery of the sales tax under the Bihar Finance Act and other for recovery of rent with regard to the same. 5. It is an admitted position that so far as the sales tax matter is concerned, the order, on the basis of which certificate case has been registered, has already been set aside and the matter has been remanded for fresh decision. 6. The controversy in these cases lies in a narrow compass. According to the petitioner, he fulfilled all the conditions for renewal of the licence in terms of the Act and none of the grounds, as mentioned in sec. 14 of the Act for renewal of the licence, is present and as such the State Government, which is a delegate of the Central Government, cannot refuse the renewal of the licence on the ground of non-payment of arrears of sales tax etc. The stand of the State, on the other hand, is that as the petitioner is in arrears of the Government dues in the shape of safes tax and the rent and has also defaulted in payment of municipal taxes, the petitioner is not entitled to the renewal of the licence. 7. The matter was placed before the learned single Judge and before whom the judgment of this Court in batch of cases i.e., CWJC No. 9428 of 1998 Tridip and Company V/s. State of Bihar and Ors., disposed of on 15.1.1999, was relied upon by the. petitioner in support of his case that for non-payment of sales tax etc., the renewal of the licence cannot be denied. The learned single Judge did not agree with the view taken by the learned single Judge in the said batch cases as according to him in case of default in payment of sales tax and other Government dues, no licence can be granted/renewed and, accordingly, referred the matter to a larger Bench and that is how the matter has been placed before us. 8. The grant of licence to manufacture fire-arm is governed by the provisions of the Act, read with the Rules. sec. 5 of the Act provides for grant of licence for manufacture, sale etc. of arms and ammunitions and the form of licence is prescribed in Scheduler-III as Form IX. sec. 8. The grant of licence to manufacture fire-arm is governed by the provisions of the Act, read with the Rules. sec. 5 of the Act provides for grant of licence for manufacture, sale etc. of arms and ammunitions and the form of licence is prescribed in Scheduler-III as Form IX. sec. 15 of the Act contains a provision with regard to duration and renewal of licences. sec. 13 of the Act provides procedure for grant of licence and sec. 14 contains grounds for refusal of licences, which runs as follows :- - "14. Refusal of licences.--- (1) Notwithstanding anything in sec. 13, licensing authority/shall refuse to,-- (a) a licence u/s. 3, sec. 4 or sec. 5 where such licence is required in respect of any prohibited arms or prohibited ammunition; (b) a licence in any other case under Chapter II,-- (i) where such licence is required by a person whom the licensing authority has reason to,-- (1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms of ammunition, or (2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act; or (ii) where the licensing authority deems it necessary for the security of the to grant such licence. (2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property. (3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person 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." 9. sec. 15(2) of the Act provides inter alia, that a licence granted under Sec. 5, unless revoked earlier, shall continue in force for such period from the date it is granted as the licensing authority may in each case determine. From a conjoint reading of sec. 14 and the aforesaid provision of sec. 15 of the Act, it is clear that while considering the case for renewal also the same grounds, which are relevant for refusal, will apply. From a conjoint reading of sec. 14 and the aforesaid provision of sec. 15 of the Act, it is clear that while considering the case for renewal also the same grounds, which are relevant for refusal, will apply. In other words, even if licence has been granted and any of the conditions for refusal of the licence is subsequently found at the time of renewal, the authorities may refuse to grant renewal of the licence. Form IX in Schedule III, as stated above, is a form of licence. Several conditions are mentioned in the said Form, which are to be followed/obeyed by the licensee. However, neither the grounds relevant for deciding the question of grant/renewal of licence nor the terms and conditions prescribed for refusal of licence, provide that the renewal of the licence may be refused for non-payment of the dues under the Sales Tax Act or other provisions of the Act. When the law provides for certain conditions for refusal of the renewal of the licence in case of the same being not fulfilled then that ground alone can be looked into for refusal of renewal of the licence. No other grounds can be looked into to deny a person to carry on business. 10. As stated above, the provisions of the Arms Act and the Rules as well as Form IX do not provide that non-payment of the arrears of sales tax or other taxes shall be a ground to refuse the renewal of the licence. On the other hand, the Government order, issued to the District Magistrate, Munger, in August, 1997 (Annexure-1) shows that non-payment of sales tax and other Government dues cannot be a ground to refuse the grant/renewal of licence and the authorities should take steps under the relevant law for recovery, of the same. 11. Learned counsel for the State has not been able to show that any amendment has been made in any of the provisions incorporating the non-payment of Government dues also as a conditions precedent for grant/refusal of the licence. 12. If a person is in arrears of sales tax or other taxes, then elaborate provisions have been provided in the relevant Act to recover the said amount and to take action in case of default. 12. If a person is in arrears of sales tax or other taxes, then elaborate provisions have been provided in the relevant Act to recover the said amount and to take action in case of default. If they are not incorporated as grounds for refusal of grant/renewal of licence, then this Court cannot put them as a condition for grant or renewal of licence. The view taken by the learned single Judge in the batch cases (CWJC No. 9428/1998 and others) is a correct view and, in our opinion, the State cannot refuse to consider the applications of the petitioners for renewal of the licence on a ground, which is not relevant/germane to consider the question of either grant of licence or renewal of licence. Accordingly, the stand of the State Government is wholly unjustified. 13. In the result, the two writ applications i.e., CWJC Nos. 3002/2001 and 4400/2002 are allowed, with a direction to the State Government to take a final decision in the matter within a period of two months from the date of receipt/ production of a copy of this order. So far as other writ application i.e., CWJC No. 10753/2000 is concerned, the only prayer made therein is for grant of transport licence to transport Ten DBBL Guns. Accordingly the State Government is directed to consider and take a final decision in this matter also within the same time after receipt/production of a copy of this order. 14. In the result, all the three writ applications are allowed, However, it is made clear that the applications in case of having been filed by the petitioners for renewal of the licence for the subsequent years, shall also be considered in the light of the decision rendered in this case.