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2010 DIGILAW 1281 (ALL)

WASIM AHAMAD v. STATE OF U. P.

2010-04-21

BALA KRISHNA NARAYANA

body2010
JUDGMENT Hon’ble Bala Krishna Narayana, J.—Heard Sri B. K. Tripathi learned counsel for the petitioner and the learned counsel for the State. 2. The petitioner moved an application for grant of fire-arm licence before the respondent No. 3 who by his order dated 16.9.2005 (Annexure No. 3 to the writ petition) refused to grant fire-arm licence to the petitioner only on the ground that the petitioner’s need for licence was not genuine. Against the order of the respondent No. 3, the petitioner preferred an appeal before the respondent No. 2 under Section 18 of the Arms Act which was registered as appeal No. 2/G/05 and dismissed by him by his order dated 24.1.2006 (Annexure No. 5 to the writ petition). 3. This writ petition has been filed by the petitioner for quashing the above noted orders dated 16.9.2005 and 24.1.2006 passed by the respondent Nos. 3 and 2 respectively. 4. Learned counsel for the petitioner submitted that the order passed by the respondent No. 3 refusing to grant fire-arm licence to the petitioner is an absolutely non-speaking and cryptic order which does not reflect any application of mind by the respondent No. 3 to the facts of the case and the material on record. 5. He further submitted that the reason given by the respondent No. 3 in his order for refusing to grant fire-arm licence to the petitioner is not covered under any of the provision of Section 14 of the Arms Act. 6. Learned counsel for the petitioner also submitted that the failure of the appellate authority to re-deem the illegality committed by the licensing authority, respondent No. 3 has vitiated the order of appellate authority also. 7. Learned standing counsel has made his submissions in support of the impugned order. 8. After examining the submissions advanced by the learned counsel for the parties and perusing the record of the writ petition as well as the impugned order, I am of the view that submissions made by learned counsel for the petitioner have force. 9. Section 14 of the Act which enumerates the grounds for refusal of the licence. Section 14 of the Arms Act, reads as here under: “ 14. 9. Section 14 of the Act which enumerates the grounds for refusal of the licence. Section 14 of the Arms Act, reads as here under: “ 14. Refusal of licences.—(1) Notwithstanding anything in Section 13, the licensing authority shall refuse to grant: (a) a licence under Section 3, Section 4 or Section 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 believe; (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 or 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 public peace or for public safety to refuse 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 licensing authority is of the opinion that it will not be in the public interest to furnish such statement. Sub. Sec (3) of Section, 14 of the Act makes it clear that when the licensing authority refuses to grant a licence to any person, he has to record reasons for such refusal. The refusal will therefore have to be based on one of the grounds of Section 14 (i) viz, in clauses (a), (b), (i), (1) (2), (3), (ii). The reason for refusal must, therefore, be under one of the clauses of Section 14 of the Act. Where the reason given does not come under any of the clauses of Section 14 (i) of the Act, the order would not be one under section 14 (i) of the Act and would therefore be unsustainable.” 10. The reason for refusal must, therefore, be under one of the clauses of Section 14 of the Act. Where the reason given does not come under any of the clauses of Section 14 (i) of the Act, the order would not be one under section 14 (i) of the Act and would therefore be unsustainable.” 10. In the present case, the Additional District Magistrate (City), Gorakhpur has in his order relying upon the report of S.S.P. held that the petitioner was not entitled to fire-arm licence. The reason given in the report of S.S.P. for his recommendation for not granting a fire-arm licence to the petitioner was that the petitioner’s need / requirement of the fire-arm was not genuine. The aforesaid reason given by the Additional District Magistrate in his order does not come within the ambit of Section 14 of the Act. 11. A Division Bench of this Court in the case of Ram Shanker v. State of U.P., 1980 AWC 154, has laid down that the absence of genuineness of the need is not a ground for refusing a licence under Section 14 of the Act. Lack of genuineness of the need is therefore, not one of the ground for refusing a licence. Identical question was considered by the learned Single Judge in Case of Ram Khelawan Misra v. State of U.P. and another, 1982 AWC 123 and in paragraph Nos. 6 and 10 of the aforesaid judgment this Court held as under:- “6. In the present case, the District Magistrate has in his order stated that the S.D.M. and the Superintendent of Police have written ‘ No objection’ on the application of the petitioner, but that was not a recommendation for the grant of a licence. He has ultimately observed that the need of the applicant was not genuine. It would, therefore, be seen that the order passed by the District Magistrate does not come under any of the clauses of Section of the Act. The expression to be for any reason unfit for a licence under the Act is not synonymous with the applicant not having genuine need. Section 14 of the Act prohibits the grant of a licence where the person is under some disability, or is of unsound mind or where he is such type person who may endanger the public peace or public safety. Section 14 of the Act prohibits the grant of a licence where the person is under some disability, or is of unsound mind or where he is such type person who may endanger the public peace or public safety. The plea that the petitioner does not have a genuine need cannot be equated with any of the clauses under Section 14 of the Act. There is no provision in Section 14 of the act to refuse a licence if the need of the applicant is not genuine. A Division Bench of this Court in the case of Ram Shanker v. State of U.P., 1980 AWC 154, has laid down that the absence of genuineness of the need is not a ground for refusing a licence under Section 14 of the Act. Lack of genuineness of the need is, therefore, not one of the grounds for refusing a licence.” 10. Section 14 of the Act commences with a non obstante clause (notwithstanding anything in Section 13) and then lays down the grounds for refusing to grant the licence. Since the grant of a licence can be refused only under the provisions of Section 14 and its sub-clauses, I do not find any provision which permits the licensing authority to refuse the grant of a licence on the ground that the applicant did not establish a genuine need. “ 12. Similar view was taken by this Court in the case of Ram Chandra Yadav v. State of U.P., 2009 (9) ADJ 2007. 13. The failure of the appellate authority to re-deem the illegality committed by the licensing authority, Additional District Magistrate, Gorakhpur has rendered the order of appellate authority also totally unsustainable. Hence in view of the settled legal position on the issue that the fire-arm licence cannot be refused merely on the ground that the need of licence is not genuine, the orders passed by the respondent Nos. 2 and 3 are totally unsustainable in the eyes of law and are liable to be set aside. 14. For the aforesaid reasons, the writ petition is allowed. The order dated 16.9.2005 (Annexure No. 3 to the writ petition) passed by the Additional District Magistrate (City) Gorakhpur, respondent No. 3 and the order dated 24.1.2006 (Annexure No. 5 to the writ petition) passed by Commissioner Gorakhpur Division, Gorakhpur respondent No. 2 are hereby quashed. 14. For the aforesaid reasons, the writ petition is allowed. The order dated 16.9.2005 (Annexure No. 3 to the writ petition) passed by the Additional District Magistrate (City) Gorakhpur, respondent No. 3 and the order dated 24.1.2006 (Annexure No. 5 to the writ petition) passed by Commissioner Gorakhpur Division, Gorakhpur respondent No. 2 are hereby quashed. The matter is remitted back to the respondent No. 3, with a direction to him to re-consider and decide the petitioner’s application for grant of fire-arm licence strictly in accordance with law by a speaking and reasoned order within a period of two months from the date of production of a certified copy of this order before him. ————