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2011 DIGILAW 1669 (PAT)

Binay Kumar v. State of Bihar

2011-08-09

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ORDER Heard learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the State. 2. The petitioner is aggrieved by the order dated 10.12.2009 passed by the respondent Commissioner, Bhagalpur Division in Misc.Arms Case No.23 of 2008-09, whereby and whereunder he has refused to entertain the application filed by the petitioner pursuant to the liberty granted under the orders of this court passed in C.W.J.C.No.12845 of 2007, inter alia, on grounds that the petitioner had already exhausted his remedy of appeal in Appeal No.1/2005, which was heard and the matter remitted to the Collector, Bhagalpur for reconsideration and which has since been dismissed by him and thus the petitioner can not prefer another appeal on the same issue. 3. The facts of the case, in brief, is that following a show cause issued by the Sub Divisional Officer, Naugachia dated 18.6.2002 and its reply filed on behalf of the petitioner, his arms licence was cancelled by the District Magistrate, Bhagalpur by order dated 25.7.2002 bearing memo no.141 dated 26.7.2002 as contained in Annexure-1 to the writ petition. In compliance of the order dated 25.7.2002, the petitioner deposited his arms in question. 4. A review application was filed by the petitioner before the District Magistrate, Bhagalpur for review of the order dated 25.7.2002. The review application filed on behalf of the petitioner, was dismissed on grounds of non prosecution on 2.5.2005. The restoration application filed by the petitioner also met with the same fate when it was dismissed on 16.5.2005. 5. Being aggrieved, the petitioner tiled an appeal before the Commissioner, Bhagalpur Division on 7.6.2005 giving rise to Appeal No.1 of 2005, which was allowed by order dated 19.12.2005 (Annexure-5) and the matter was remitted back to the District Magistrate, Bhagalpur for consideration of the review application and its disposal on merits. 6. Pursuant to the order in appeal, the review was considered by the District Magistrate, Bhagalpur and was again dismissed vide order dated 26.7.2007 as contained in Annexure-2 to the writ petition. The petitioner being aggrieved by the order of rejection of the review application filed a writ petition giving rise to C.W.J.C.No.12845 of 2007 and which was disposed of by order dated 30.1.2009 (Annexure-3) with liberty to the petitioner to take recourse to the remedy of appeal. 7. The petitioner being aggrieved by the order of rejection of the review application filed a writ petition giving rise to C.W.J.C.No.12845 of 2007 and which was disposed of by order dated 30.1.2009 (Annexure-3) with liberty to the petitioner to take recourse to the remedy of appeal. 7. It is pursuant to the liberty granted to the petitioner by this court that an appeal was filed before the Commissioner, Bhagalpur Division and who has since rejected the same by the impugned order dated 10.12.2009 as contained in Annexure4 of the supplementary affidavit filed in the writ petition. 8. Learned counsel for the petitioner submits that the respondent Commissioner, Bhagalpur Division, in dismissing the appeal, has acted in teeth of the directions of this court. It is contended that the premise on which the impugned order has been passed by the Divisional Commissioner, Bhagalpur, itself is misplaced as the earlier appeal was filed challenging the order of dismissal of the review application, in default by the District Magistrate, Bhagalpur and not against an order of disposal of case on merit. It is thus contended that the Appeal is yet to be considered and disposed of on merits. 9. A counter affidavit has been filed on behalf of the respondent no.2 the Commissioner, Bhagalpur Division in which a stand has been taken that as the appeal did not raise any fresh ground and the order dated 26.7.2007 dismissing the review application was never put to challenge before him hence, the respondent no.2 having already deliberated upon the issue, there was no fresh case for consideration. It is contended that as the earlier appeal had also been filed against the order dated 25.7.2002 and was disposed of vide order dated 19.12.2005, thus no second appeal would lie against the same order, more so when the petitioner did not choose to assail the order dated 26.7.2007 in appeal. 10. I have heard learned counsel appearing for the parties and have perused the materials available on records of the proceeding. 10. I have heard learned counsel appearing for the parties and have perused the materials available on records of the proceeding. Undoubtedly, the earlier appeal filed on behalf of the petitioner also sought to assail the order of cancellation of the arms licence dated 25.7.2002 together with the orders passed on 2.5.2005 and 16.5.2005 whereunder the review application and the restoration application had been dismissed but the Commissioner, Bhagalpur Division, while deliberating on the appeal bearing Appeal No.1/2005, did not consider the same on merits, rather remitted the matter for fresh consideration and disposal by the District Magistrate, Bhagalpur and whereafter the review application has been dismissed on merits vide order passed on 26.7.2007. 11. It is thus manifest that the respondent Commissioner, Bhagalpur Division, while considering the Appeal No.1/2005, did not deliberate upon the issue of cancellation of the arms licence of the petitioner, on merits in the backdrop of the order dated 25.7.2002, rather the issue of dismissal of the review application of the petitioner, in default, by the District Magistrate, Bhagalpur and the rejection of his application for restoration of the review application, was the main subject matter of the appeal and which was allowed and the matter remitted to the Collector, Bhagalpur to pass a fresh order after hearing the petitioner. The Collector, Bhagalpur, upon remand of the case, vide order dated 26.7.2007 placed at Annexure-2, while dismissing the review application of the petitioner, has held that the order dated 25.7.2002 did not call for any interference, meaning thereby, the order dated 25.7.2002 was upheld. 12. Order 47 Rule 7 of the Code of Civil Procedure prohibits any appeal against any order rejecting a review application. Even otherwise an appeal lies against the substantive order and not against an order passed in review unless the review has been allowed. Thus, the petitioner after rejection of his review application by order dated 26.7.2007, had very correctly filed the appeal challenging the substantive order passed on 25.7.2002 and which has been dismissed by the impugned order dated 10.12.2009 on a complete misconception of law. 13. That being the position, the order dated 10.12.2009 can not be upheld and is accordingly quashed and set aside. The matter is remitted back to the Commissioner, Bhagalpur Division to pass a fresh order in accordance with law after affording an opportunity of hearing to the petitioner. 13. That being the position, the order dated 10.12.2009 can not be upheld and is accordingly quashed and set aside. The matter is remitted back to the Commissioner, Bhagalpur Division to pass a fresh order in accordance with law after affording an opportunity of hearing to the petitioner. The order may be passed within a period of three months from the date of receipt/production of copy of this order. The writ application is allowed.