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Allahabad High Court · body

2009 DIGILAW 3528 (ALL)

VIVEK KUMAR v. STATE OF U. P.

2009-11-18

DILIP GUPTA

body2009
JUDGMENT Hon’ble Dilip Gupta, J.—This petition seeks the quashing of the order dated 2nd March, 2009 passed by the District Magistrate, Ballia. The petitioner has also sought the quashing of the order dated 28th May, 2009 passed by the Commissioner, Azamgarh Region, Azamgarh by which the appeal that had been filed by the petitioner for setting aside the aforesaid order of the District Magistrate has been dismissed. 2. The petitioner was granted three licences under The Arms Act, 1959 (hereinafter referred to as the ‘Act’). Licence No. 15 of 1999 was granted in Form XIII, Licence No. 2 of 1999 was granted in form XIV while Licence No. 69 of 1999 was granted in Form XII. A notice was issued to the petitioner to show cause why the aforesaid licences issued in Forms XIII and XIV may not be cancelled and why recommendations may not be made to the State Government for cancellation of the licence issued in Form XII. The petitioner submitted a reply to the show cause notice and ultimately by order dated 2nd March, 2009, the District Magistrate, Ballia cancelled the licences issued to the petitioner in Forms XIII and XIV and made recommendations to the State Government for cancelling the licence issued in Form XII. 3. The petitioner filed an appeal against the aforesaid order before the Commissioner. The Commissioner found that the appeal in respect of cancellation of licences issued in Forms XIII and XIV was not maintainable before him and in respect of licence issued in Form XII, the Commissioner observed that the petitioner may file objections before the State Government since the District Magistrate had only made recommendations to the State Government for cancellation of the licence. 4. Learned counsel for the petitioner submitted that the Commissioner committed an illegality in holding that the appeal against cancellation of licence issued in Forms XIII and XIV was not maintainable before him and in support of his contention he has placed reliance upon Rule 5 of The Arms Rules, 1962 (hereinafter referred to as the ‘Rules’). 5. Learned Standing Counsel on the other hand submitted that there is no infirmity in the order passed by the Commissioner. 6. I have carefully considered the submissions advanced by the learned counsel for the parties. 7. 5. Learned Standing Counsel on the other hand submitted that there is no infirmity in the order passed by the Commissioner. 6. I have carefully considered the submissions advanced by the learned counsel for the parties. 7. Under Section 2(1)(f) of the Act, the “licensing authority” means an officer or authority empowered to grant or renew licence under Rules made under the Act, and includes, the Government. Under Section 13 of the Act, an application for grant of licence has to be made to the licensing authority and under Section 17 of the Act, the licensing authority can revoke the licence. Section 18 of the Act deals with appeals which is as follows : “18. Appeals.—(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed: Provided that no appeal shall lie against any order made by, or under the direction of, the Government.” 8. Rule 4 and 5 of the Rules which are relevant for the purposes of the controversy involved in the present petition are as follows : “4. Licensing authority and forms of licences.—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, subject to such conditions as are specified in that Schedule and in the licence: Provided that the licences granted or renewed by a licensing authority may be signed by such officer subordinate to that authority as may be specially empowered in this behalf by the State Government. 5. Appellate authorities.—(1) For the purposes of the Act and these rules the appellate authority to whom an appeal shall lie from an order of the licensing or other authority specified in column (1) of the Table below shall be that specified in the corresponding entry in column (2) thereof: ............................” 9. Schedule II deals with the licensing authorities. The State Government is the licensing authority for grant of licence under Form XII. Schedule II deals with the licensing authorities. The State Government is the licensing authority for grant of licence under Form XII. In respect of Forms XIII and XIV, the licensing authority is the State Government or any officer specially empowered by the State Government. It is not in dispute that in respect of Forms XIII and XIV, the State Government has empowered the District Magistrate. Thus, licence in Form XII can be cancelled by the State Government while licence issued in Forms XIII and XIV can be cancelled by the District Magistrate. It is for this reason that the District Magistrate has made recommendations to the State Government for cancellation of the licence in Form XII but he has cancelled the licences issued in Forms XIII and XIV. 10. The dispute in the present case is that whether an appeal would lie to the Commissioner under Rule 5(1)(b) of the Rules or to the authority empowered under Rule 5(1)(f) of the Rules. Rule 5(1)(b) will not be applicable as the District Magistrate is not the licensing authority but is an authority empowered by the State Government. Thus, it is Rule 5(1)(f) which will be applicable and the Appellate Authority in the present case would be the authority that empowered. The State Government has empowered the District Magistrate and, therefore, the appeal will lie to the State Government. 11. There is, therefore, no infirmity in the order passed by the Commissioner. 12. The writ petition is, accordingly, dismissed. ————