Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 3519 (ALL)

Firasat All @ Munna v. State of U. P. and Others

2010-11-16

A.P.SAHI

body2010
Hon'ble A.P. Sahi, J. - The petitioner has come up against the order of District Magistrate dated 9.4.2009 and the order in appeal dated 16.8.2010 affirming the same whereby the arms license of the petitioner has been cancelled. The arms licnese was cancelled on the ground that the petitioner was involved in a solitary criminal case being case crime No. 768 of 2008 under Sections 323/504/ 506/307IPC. During the pendency of the appeal before learned Commissioner the petitioner appears to have produced a copy of the judgment of the trial Court acquitting the petitioner dated 10.6.2010 which has also been brought herein on record. A perusal thereof indicates that the victim has not been found to suffer any firearm injury. Not only this it is a clear acquittal after discussing the entire evidence of a competent Court. Learned Commissioner while disposing of the appeal has arrived at the conclusion that police report indicates that the petitioner had utilized the said arm, during the said occurrence. He has further rendered an opinion that since the aforesaid criminal case was registered against him therefore it cannot be said that the petitioner will not misuse his firearm in future. 2. In the opinion of the Court the same cannot be a basis for cancelling the arms licnese inasmuch as the said observation is on pure surmises on the future use or misuse of fire arm. Such a possibility is not an ingredient as contemplated under section 17 of the Arms Act, 1959, inasmuch as there has to be a finding with regard to disturbance of public peace and tranquility before a firearm license is cancelled. Learned Commissioner has therefore not proceeded to adjudicate the controversy in correct perspective. This Court is supported in its view by the 6.9.2010 issued by the Tehsildar, Lucknow, for a sum of Rs. 1,65,699/-,in pursuance of the said recovery certificate. 3. The principal contention urged on behalf of the petitioner is that neither the respondent No. 3 could have issued the recovery certificate nor could respondents 1 and 2 issue the citation for recovery of dues of respondent No. 3, as the agreement entered into between the petitioner's firm and respondent No. 3 is purely a contractual agreement. The recovery certificate purported to have been issued by respondent No. 3 is under the provisions of the Revenue Recovery Act, 1890 (hereinafter referred to as the 'Act 1890'). The recovery certificate purported to have been issued by respondent No. 3 is under the provisions of the Revenue Recovery Act, 1890 (hereinafter referred to as the 'Act 1890'). Section 3 of the Act 1890 sets out that where an arrear of land revenue or a sum recoverable as an arrear of land revenue, is payable to a Collector by a defaulter being or having property in a district other than that in which the arrears accrued or the sum is payable, the Collector may send to the Collector of other district a certificate in the form as nearly as may be of the Schedule, setting out various particulars as set out therein. It would, thus, be clear that insofar as the provisions of the Act 1890 are concerned, the amount sought to be recovered must be an arrear of land revenue or a sum recoverable as an arrear of land revenue and payable to a Collector by a defaulter. 4. Appearance has been put on behalf of respondent No. 3, though no reply has been filed. On being asked by the Court to show as to under which provision, the recovery certificate was sent by respondent No. 3 to respondents 1 and 2 for recovery of the amount, learned counsel for the respondent No. 3 fairly concedes that there is no provision under which the said amount could be recovered as arrears of land revenue. 5. There is another provision, namely, the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 (in short 'Act 1972'), wherein 'Corporation1 has been defined under Section 2(a). The petitioner is not a Corporation as per Section 2(a) of the Act 1972. It may be a Government Company in terms of Section 2 (c) of the Act 1972. The relevant portion of Section 3 of the Act 1972 reads as under: "3. Recovery of certain dues as arrears of land revenue. The petitioner is not a Corporation as per Section 2(a) of the Act 1972. It may be a Government Company in terms of Section 2 (c) of the Act 1972. The relevant portion of Section 3 of the Act 1972 reads as under: "3. Recovery of certain dues as arrears of land revenue. - (1) Whereany person is party, - (a) to any agreement relating to a loan, advance or grant give to him or relating to credit in respect of, or relating to hire-purchase of, goods, sold to him by the State Government or the Corporation, by way of financial assistance; or (b) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods sold to him, by a banking company or a Government company, as the case may be, under a State-sponsored scheme; or (c) to any agreement relating to a guarantee given by the State Government or the Corporation ,in respect of a loan raised by an industrial concern; or (d) to any agreement providing that any money payable thereunder to the State Government [or the Corporation] shall be recoverable as arrears of land revenue; and such person - (i) makes any default in repayment of the loan or advance or any instalment thereof; or (ii) having become liable under the conditions of the grant to refund the grant or any portion thereof, makes any default in the refund of such grant or portion or any instalment thereof; or (iii) otherwise fails to comply with the terms of the agreement; then, in the case of the State Government, such officer as may be authorised in that behalf by the State Government by notification in the-official Gazette, and in the case of the Corporation or a Government company the Managing Director [orwhere there is no Managing Directorthen the Chairman of the Corporation, by whatever name called] [or such officer of the Corporation or Government company as may be authorised in that behalf by the Managing Director or the Chairman] thereof, and in the case of a banking company, the local agent thereof, by whatever name called may send a certificate, to the Collector, mentioning the sum due from such person and requesting that such sum together with costs of the proceedings be recovered as if it were an arrearof land revenue. (2) The Collector on receiving the certificates shall proceed to recover the amount stated therein as an arrear of land revenue." It would, thus, be clear that for the purpose of recovery of dues as arrears of land revenue, there must be an agreement relating to a loan, advance or grant and if there be a default of payment of any installment thereof, then said amount defaulted can be recovered as arrears of land revenue. In the instant case, respondent No. 3 has not given any loan, advance or grant to the petitioner, nor is related to credit in respect of, or relating to hire-purchase of goods sold by a Banking Company or a Government Company under the State-sponsored scheme. Thus, it will be clear that the recovery certificate issued by respondent No. 3 for recovery of the amount in terms of the Act 1890 is clearly without jurisdiction and without authority of law and, consequently, respondents 1 and 2 could not have acted on the same. The recovery citation, therefore, issued by respondent No. 2 is without jurisdiction. 6. In the light of that, the petition deserves to be allowed and is, accordingly, allowed in terms of prayers Clauses (A) and (B), which read as under: "(A) A writ, order or direction in the nature of certiorari may kindly be issued quashing the recovery certificate dated 21.6.2010 issued by the respondent No. 3 and recovery citation dated 6.9.2010 issued by the respondent No. 2, copies whereof have been filed herewith as Annexure No. 1 and 2 respectively. (B) A writ, order or direction in the nature of mandamus may kindly be issued commanding the respondents not to proceed to recover any amount from the petitioner as arrears of land revenue in pursuance of the recovery certificate dated 21.6.2010 issued by the respondent No. 3 and recovery citation dated 6.9.2010 issued by the respondent No. 2, copies whereof have been filed herewith as Annexure No. 1 and 2 respectively." 7. In the circumstances of the case, there shall be no order as to cost.