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2007 DIGILAW 123 (ALL)

SURENDRA KUMAR v. STATE OF UTTAR PRADESH

2007-01-15

A.N.VERMA

body2007
JUDGMENT Honble A.N. Varma, J.—The petitioner on 27.8.2004 applied before the opposite party No. 3 on a prescribed format for grant of N.P. Bore Rifle/Pistol. The opposite party No. 3 vide its order dated 7.2.2006 rejected the petitioner’s application for grant of said arm licence. Being aggrieved he approached the opposite party No. 2 on 24.7.2006 in Appeal under Section 18 of the Arms Act, 1959. An endorsement was made by the Munsarim that the Appeal was barred by limitation and also did not accompany treasury challan for Court fee prescribed. 2. 26.7.2006 was the date fixed before the opposite party No. 2 for orders. On the said date the petitioner is said to have proceeded to get the treasury challan passed from the treasury and when he returned it was found that the judgment has been reserved, fixing 3.8.2006. The opposite party No. 2 vide its judgment and order dated 3.8.2006 dismissed the Appeal. An application was thereafter preferred for recall of the said order on the ground that the same was ex parte and the petitioner had not been given an opportunity of hearing. The said application was also rejected vide order dated 19.9.2006. It is against the said orders that the petitioners had approached before this Court through the instant petition. 3. I have heard Sri Sudeep Seth, learned Counsel for the petitioner as well as Sri Deepak Mehrotra, learned Standing Counsel. With the consent of parties, the writ petition is being disposed of at the admission stage. 4. Sri Seth vehemently argued that provision with regard to filing an Appeal is set out under Section 18 of the Arms Act. The said provision contemplates that any person aggrieved by an order of licensing authority refusing to grant a licence may within such period as prescribed, prefer an Appeal to the appellate authority. Sub-section (2) lays down that no Appeal shall be admitted if preferred after the period prescribed. Sub-section (5) of Section 18 lays down that for disposing of an Appeal the appellate authority shall follow the procedure as may be prescribed. The proviso appended thereto contemplates that no Appeal shall be disposed of unless the Appellant has been given a reasonable opportunity of being heard. Sub-section (5) of Section 18 lays down that for disposing of an Appeal the appellate authority shall follow the procedure as may be prescribed. The proviso appended thereto contemplates that no Appeal shall be disposed of unless the Appellant has been given a reasonable opportunity of being heard. Rule 55 of the Rules framed under the Act prescribes the limitation for filing an Appeal against the order passed by the licencing authority, i.e. 30 days after the passing of the authority. Rule 56 prescribes the procedure to be followed by the appellate authority. 5. Rule 55 as well as Rule 56 reads as follows : “55. [Appeal against the order of 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 an 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. 56. Procedure to be followed by the appellate authority.—On receipt of an appeal the appellate authority may call for the records of the case from the authority who passed the order appealed against and after giving the appellant a reasonable opportunity of being heard, pass final orders." 6. Learned Counsel for the petitioner submitted that in view of the fact that the Appeal was not properly instituted, there being a shortfall in the Court fee for which treasury challan was required and also the Appeal being barred by limitation, therefore, unless the delay was condoned and proper Court fee affixed, the opposite party No. 3 had no authority to proceed with the disposal of the Appeal. 7. His next limb of argument is that on 26.7.2006 without giving an opportunity of hearing the judgment was reserved and 3.8.2006 was the date fixed. He further argued that relevant record as required to be sent for under the provisions of Rule 56 was also not called for. 7. His next limb of argument is that on 26.7.2006 without giving an opportunity of hearing the judgment was reserved and 3.8.2006 was the date fixed. He further argued that relevant record as required to be sent for under the provisions of Rule 56 was also not called for. The opposite party No. 2 in disregard and in utter violation of the procedure prescribed, proceeded to decide the Appeal. Application preferred for recall of the ex parte order was also illegally rejected. The opposite party No. 2 being completely oblivious of the fact that in the event Appellant before it is not afforded an opportunity of hearing as prescribed under the Rules the order could not be sustained. 8. The learned Standing Counsel on the other hand submitted that the Appeal fixed for 26.7.2006, having been called upon and no one being present on behalf of the petitioner, the opposite party No. 2 had no option, but to proceed and decide the Appeal. As per his submission when no one responds upon case being called, it cannot be said that there is a denial of opportunity of hearing. 9. As would appear from the sub-clause 5 of Section 18 and proviso appended thereto as well as Rule 56 which prescribes the procedure to be followed by the appellate authority, the position is abundantly clear that upon receipt of an Appeal the appellate Court may summon the record from the subordinate authorities and after providing opportunity of hearing to the Appellant, can proceed to decide an Appeal. 10. It is apparent from the perusal of the order impugned in the writ petition that neither record was called for, nor was petitioner given an opportunity of hearing. Thus there was a flagrant disregard of the aforesaid provision. The appellate order as well as the order rejecting the petitioner’s application for recall thus cannot be allowed to be sustained 11. In the circumstances the writ petition succeeds and is allowed. The judgment and order dated 3.8.2006 (Annexure 2) as well as the order dated 19.09.2006 (Annexure 4) passed by the opposite party No. 2 are hereby quashed. The appellate order as well as the order rejecting the petitioner’s application for recall thus cannot be allowed to be sustained 11. In the circumstances the writ petition succeeds and is allowed. The judgment and order dated 3.8.2006 (Annexure 2) as well as the order dated 19.09.2006 (Annexure 4) passed by the opposite party No. 2 are hereby quashed. The opposite party No. 2 shall restore the Appeal to its original number and thereafter shall proceed to decide the same after summoning record from the licensing authority and after giving an opportunity of hearing to the petitioner on the question of delay as well as on merits. ———