Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 866 (PAT)

State of Bihar v. Nawal Kishore Singh

2013-07-24

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
ORDER Re. Interlocutory Application No. 699 of 2013. Delay of 95 days occurred in filing the Letters Patent Appeal is condoned. Interlocutory Application stands disposed of. Re. Letters Patent Appeal No. 119 of 2013 & Interlocutory Application No. 700 of 2013. Feeling aggrieved by the order dated 27th August 2012 made by the learned single Judge in CWJC No. 3223 of 2012, the respondent State of Bihar has preferred this Appeal under Clause 10 of the Letters Patent. 2. The matter at issue is the license to hold arms granted to the respondent – the writ petitioner. The facts undisputed are that as early as on 24th December 2003 the District Arms Magistrate, Saharsa granted license to the writ petitioner to hold arms on condition that he must purchase the arms and produce it for inspection before the District Arms Magistrate latest by 30th June 2004. The license was granted for the period up to 31st December 2004. It is admitted that the writ petitioner did not purchase the arms for which he had been granted license; nor did he produce the same before the District Arms Magistrate for inspection as specified. By afflux of time, the license expired on 31st December 2004. Nevertheless, in 2007 the District Magistrate, Saharsa gave a notice to the writ petitioner calling upon him to show cause why the license granted to him be not cancelled. The said notice was duly replied to by the writ petitioner. After receiving the reply, the District Magistrate, Saharsa on 21st February 2008 cancelled the license. Copy of the said order was marked to the writ petitioner. 3. Although the arms license granted to the writ petitioner had expired on 31st December 2004, no formal order for cancellation of the license was required to be made; although a formal order of cancellation was made by the District Arms Magistrate as early as on 21st February 2008. Once again the matter was reopened. Under letter dated 10th October 2010, the District Magistrate, Saharsa called upon the writ petitioner to show cause why the arms license granted to him on 26th December 2003 be not cancelled. The said show cause notice was replied to by the writ petitioner on 4th November 2010 citing the same reason he had cited earlier. Feeling satisfied by the said reply, the District Arms Magistrate, Saharsa renewed the aforesaid license on 6th September 2011. The said show cause notice was replied to by the writ petitioner on 4th November 2010 citing the same reason he had cited earlier. Feeling satisfied by the said reply, the District Arms Magistrate, Saharsa renewed the aforesaid license on 6th September 2011. On 1st October 2011, he informed the writ petitioner that the time was finally granted up to 31st December 2011 and that the writ petitioner shall by that date produce the arms for inspection. 4. It appears that having realized that the license granted to the writ petitioner had earlier been cancelled by a formal order dated 21st February 2008, the District Arms Magistrate, Saharsa, under his order dated 26th December 2011, recalled the earlier order dated 1st October 2011. Feeling aggrieved, the writ petitioner approached this Court under Article 226 of the Constitution in above CWJC No. 3223 of 2012. 5. The learned single Judge has allowed the Writ Petition on the premise that the order dated 21st February 2008 was not communicated to the writ petitioner. The said order, therefore, cannot be the ground for cancellation of the license renewed on 6th September 2011. The learned single Judge also directed the appellants to grant the writ petitioner time to produce the arms pursuant to the license dated 6th September 2011 and directed the District Arms Magistrate, Saharsa to make necessary order. Therefore, this Appeal. 6. Learned Additional Advocate General Mr. Anjani Kumar has appeared for the appellant State of Bihar. He has filed supplementary affidavit to produce certain documents which were not produced before the learned single Judge. Mr. Anjani Kumar has vehemently argued that once the license was cancelled on 21st February 2008 there was no question of renewing the said license. The entire action of the renewal of the license was initiated on account of mischief played by the concerned clerk in issuing the notice dated 10th October 2010. 7. Learned advocate Mr. Diwakar Prasad Singh has appeared for the respondent – writ petitioner. He has contested the Appeal and has supported the order of the learned single Judge. He has submitted that the above referred order dated 21st February 2008 was never communicated to the writ petitioner. The writ petitioner, therefore, had no occasion to refer to the said order in his application for renewal of the license. He has contested the Appeal and has supported the order of the learned single Judge. He has submitted that the above referred order dated 21st February 2008 was never communicated to the writ petitioner. The writ petitioner, therefore, had no occasion to refer to the said order in his application for renewal of the license. The writ petitioner could not purchase the arms on account of unavoidable circumstances and now that he has purchased the arms he is required to be given the license for the same. He has submitted that the State Government has granted license to the dignitaries of the State who are otherwise provided security by the State. The writ petitioner who is a businessman requires to bear arms for his personal protection. The same could not have been denied by the appellants. 8. Be that as it may, if the writ petitioner required to carry arms for personal protection, the right course of action for him was to apply for arms license afresh. The license which had already expired could not have been renewed in any circumstances. In our opinion, renewal of the license having expired by efflux of time, there was no occasion for the District Magistrate or the District Arms Magistrate to renew the said license after it had expired. Any license can be renewed only during the period the license is subsisting or is operating. The entire action of issuing show cause notice to the writ petitioner and to make a formal order of cancellation of license was uncalled for and was quite likely actuated by mala fide and extraneous consideration. These are, of course, the matters to be enquired by the State Government. 9. In any view of the matter, the license having expired by efflux of time there was no scope for renewal of the license on 6th September 2011; nor the impugned order dated 26th December 2011 was required to be made. Whether or not the writ petitioner had received the order dated 21st February 2008 is of no consequence. His claim could not have been allowed on the premise that the said order was not received by him. 10. For the aforesaid reason, we hold that the action of the District Magistrate / District Arms Magistrate in renewing the license on 6th September 2011 was contrary to law. The said order is non-est in the eye of law. His claim could not have been allowed on the premise that the said order was not received by him. 10. For the aforesaid reason, we hold that the action of the District Magistrate / District Arms Magistrate in renewing the license on 6th September 2011 was contrary to law. The said order is non-est in the eye of law. Consequently the order dated 26th February 2011 is of no consequence. 11. For the aforesaid reason, this Appeal is allowed. The impugned order dated 27th August 2012 made by the learned single Judge in CWJC No. 3223 of 2012 is set aside. 12. CWJC No. 3223 of 2012 is dismissed. Interlocutory Application no. 700 of 2013 stands disposed of. The writ petitioner will surrender the concerned Revolver before the District Arms Magistrate, Saharsa within fifteen days from today. The registry will send copy of this order to the respondent forthwith.