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2019 DIGILAW 304 (ALL)

Hanuman Prasad Tiwari v. State of U. P.

2019-02-05

ABDUL MOIN

body2019
JUDGMENT : Abdul Moin, J. 1. Supplementary-affidavit filed today is taken on record. By means of the present writ petition, the petitioner has challenged the order dated 20.4.2017 passed by the Commissioner, Faizabad, a copy of which is Annexure No. 1 to the petition, by which the appeal preferred by the petitioner under the provisions of Arms Act has been rejected. 2. Learned Counsel for the petitioner while seeking to challenge the said order has contended that the Appellate Authority has considered the interim order dated 7.10.2013 passed by a Division Bench of this Court in Writ Petition No. 3268 (MB) of 2012 and the consequential Government Order dated 8.11.2013 that had been issued with respect to the arms licenses which were being granted in a discriminatory manner. The High Court being apprised with the misuse of such arms licenses and also the menace of celebratory firing was constrained to pass the order dated 07.10.2013. 3. Learned Counsel for the petitioner contends that when the petitioner had applied for arms license, the District Magistrate, Faizabad, vide his order dated 15.10.2016, a copy of which is Annexure-2 to the petition, rejected the said application while placing reliance on the aforesaid interim order passed by this Court and the consequential Government Order so issued. Upon a challenge being raised to said impugned order by way of an appeal, the Appellate Authority vide order dated 20.4.2017 also placing reliance on the aforesaid orders rejected the appeal of the petitioner. 4. Sri Manish Mishra, learned Standing Counsel, points out that the aforesaid interim order dated 7.10.2013 and the consequential Government Order have been considered by this Court in Writ Petition No. 828 (MB) of 2015 in re: M/s. Agarwal Brothers v. Union of India and others, and thereafter even the Arms Rules, 2016 have also been framed. 5. Learned Counsel for the petitioner contends that once the Arms Rules, 2016 have been issued which have come into force on 15.7.2016 and even the interim order passed by the High Court and the consequential Government Order have all been considered by a Division Bench of this Court consequently the said factors should not have prevailed on the Appellate Authority while rejecting the appeal. It is thus prayed that the impugned order dated 20.4.2017 be set-aside granting liberty to the petitioner to apply under the provisions of Arms Rules, 2016 and the authority concerned be directed to consider the application for grant of arms license afresh. 6. Having heard learned Counsel for the petitioner and learned Standing Counsel along with Sri Savitra Vardhan Singh, learned Additional Chief Standing Counsel, what this Court finds is that when the Appellate Authority proceeded to reject the appeal vide order dated 20.4.2017, Arms Rules 2016 had already been issued. Even otherwise, the interim order passed by this Court dated 7.10.2013 and the consequential Government Order have already been considered by a Division Bench of this Court Consequently at the time when the Appellate Authority proceeded to reject the appeal of the petitioner the aforesaid relevant facts had not been considered. For the sake of convenience, the relevant observations of the Division Bench of this Court in the case of M/s. Agarwal Brothers (supra) are reproduced below:- "These writ petitions have been instituted under Article 226 of the Constitution of India, basically challenging the orders by which applications made by the petitioners, for grant of Arms Licence/Licence to Arms and Ammunition Dealers under Chapter II of the Arms Act, 1959, to the Licensing Authority, had been rejected on different grounds including that the guidelines prescribed by the State Government by issuing different orders including order dated 29.12.2014, impugned in these petitions, were not complied. In this connection, we have perused section 44 of the Arms Act, which confers power to the Central Government to make Rules. It is an admitted position that when the applications for licence were made by the petitioners and when they were rejected, the Arms Rules, 2016 (for short 'Rules 2016') framed in exercise of the powers under section 44 of the Arms Act were not in force. It further appears that this Court from time to time had issued directions/made observations in some petitions, including the order dated 7.10.2013 passed in Misc. Bench No. 3268 of 2012, and in pursuance thereof, the State Government had issued certain orders prescribing the guidelines for regulating the grant of licences. By order dated 7.10.2013, passed in Misc. It further appears that this Court from time to time had issued directions/made observations in some petitions, including the order dated 7.10.2013 passed in Misc. Bench No. 3268 of 2012, and in pursuance thereof, the State Government had issued certain orders prescribing the guidelines for regulating the grant of licences. By order dated 7.10.2013, passed in Misc. Bench No. 3268 of 2012, a direction was issued not only to the State Government but also to the Central Government to come out with a plan to regulate grant of licence. In this backdrop, it is stated that the Central Government in exercise of the powers conferred by sections 5, 9, 10, 11, 12, 13, 16, 17, 18, 21 and 41 and in super session of the Arms Rules, 1962, made the Rules, 2016 which came into force on 15.7.2016. In this view of the matter, Counsel for the parties have agreed for the following order: It is open to the petitioners to make fresh applications in the prescribed form under the Rules, 2016. The concerned authority shall deal with their applications, as and when made, within a period of twelve weeks from the date of the receipt of their applications, in accordance with the Rules, 2016. In view thereof, the orders, whereby the petitioners' applications came to be rejected, shall render ineffective and the concerned authority shall consider their fresh applications uninfluenced by those orders. If the State Government make any attempt to implement their orders issued from time to time, it is open to the aggrieved persons to take appropriate remedy against such action. These petitions are accordingly disposed of." 7. Accordingly, keeping in view the aforesaid facts and discussions, the order dated 20.4.2017 is quashed and set-aside. Liberty is given to the petitioner to apply for arms license in terms of Arms Rules, 2016 and the said application would be considered by the prescribed authority being uninfluenced by any of the observations made in the order dated 15.10.2016 by which the application of the petitioner for grant of arms license had been rejected as well as the appellate order dated 20.4.2017 within the time stipulated under the rules and being uninfluenced by any of the observations or findings given by this Court. 8. With the aforesaid observations, the writ petition is finally disposed of.