JUDGMENT : Abdul Moin, J. C.M. Application No.143861 of 2018 Heard. 2. The reasons indicated in the affidavit filed in support of the application are sufficient. Accordingly, the application is allowed. Learned counsel for the petitioner is permitted to substitute legal heirs of the petitioner as petitioner nos.1/1 Mrs. Mohsina Begum-wife of the petitioner, 1/2 Mohd. Imran Khan and 1/3 Mohd. Suhail Khan-sons of the petitioner, during the course of the day. Order on the memo of petition 3. Heard Sri Surendra Pratap Singh, learned counsel for the petitioner, and Sri Rajesh Tiwari, learned Additional Chief Standing Counsel appearing for the respondents. Under challenge is the order dated 29.09.2018 passed by the District Magistrate, Sultanpur, by which the application filed by the petitioner for selling of his firearms has been rejected on the ground of delay. Copy of the order dated 29.09.2018 is Annexure-1 to the petition. A further prayer is for re-consideration and for deciding the application of the petitioner for grant of permission to sell the firearms i.e. the revolver and the rifle. 4. During pendency of the present petition, the petitioner died on 20.11.2018 and his legal heirs have now been substituted. 5. The case set forth by the petitioner is that the firearms licenses of the petitioner for his revolver and rifle were suspended on 12.05.2008. It is submitted that the rifle had already been deposited by the petitioner on 21.01.2008 with Das and Company, a valid arms dealer at Sultanpur, while the revolver was deposited subsequent to suspension of the license on 29.05.2008 with the firearms dealer i.e. Das and Company. Subsequent thereto, both the licenses of the petitioner were cancelled on 04.12.2010 by the District Magistrate, Sultanpur. The application filed by the petitioner for recall of the said order was also rejected on 29.10.2016. Being aggrieved with the said order, the petitioner preferred an Appeal No.1205 of 2016 under Section 18 of the Arms Act 1959 (for short, the Act of 1959) before the appellate authority. During pendency of the appeal itself the petitioner purportedly moved an application dated 05.07.2018 seeking permission for selling of the firearms i.e. rifle and revolver under deposit with Das and Company. Copy of the said application is Annexure-11 to the petition. During pendency of the appeal itself the petitioner purportedly moved an application dated 05.07.2018 seeking permission for selling of the firearms i.e. rifle and revolver under deposit with Das and Company. Copy of the said application is Annexure-11 to the petition. Subsequent thereto, the petitioner also preferred an application for withdrawal of his appeal vide his application dated 18.07.2018 and in pursuance thereof the appeal was also dismissed and consigned to records vide order dated 18.07.2018, a copy of which is Annexure-13 to the petition. When the application for selling of his firearms was not decided, the petitioner preferred a Writ Petition No.21837 (MS) of 2018, which was disposed of by this Court vide order dated 13.08.2018 permitting the petitioner to make a fresh representation to the District Magistrate, Sultanpur, who was required to decide the same within a specified time. In pursuance thereof, the District Magistrate proceeded to pass the order dated 29.09.2018, a copy of which is Annexure-1 to the petition, by which the petitioner's application for selling of the firearms has been rejected on the ground of delay. 6. Learned counsel for the petitioner while seeking to challenge the said order dated 29.09.2018 has contended that the District Magistrate, Sultanpur, has proceeded on an erroneous basis in rejecting the said application inasmuch as the District Magistrate has recorded that as the firearms licenses of the petitioner were cancelled on 04.12.2010 against which order the application for recall was also rejected on 29.10.2016, consequently the application filed by the petitioner for selling of the said firearms in July 2018 is grossly time barred. 7. Learned counsel for the petitioner while inviting the attention of this Court towards the table which forms part of Rule 47 of the Arms Rules, 2016 (hereinafter referred to as the 2016 Rules) has argued that the District Magistrate while passing the impugned order has referred to serial no.2 of the table which pertains to preferring of an application within one year from the date of suspension or revocation of the license, which is not the case here inasmuch as the effective date which is to be considered would be the date specified at serial no.5 of the table which provides that where an appeal is preferred by the owner under Section 18, the effective date for preferring an application would be one year from the date of final order. It is argued that as the final order on the appeal was passed on 18.07.2018, consequently the petitioner's application having been moved prior to the said date i.e. 05.07.2018 would be considered to be within the time. As such the impugned order rejecting the application of the petitioner on such grounds which are not attracted in the facts of the present case reflects patent non-application of mind in the impugned order. It is also argued that now when the petitioner has died leaving behind his legal heirs as such the District Magistrate, Sultanpur be directed to consider the application from the legal heirs and the District Magistrate, Sultanpur, be required to pass an order strictly in accordance with the 2016 Rules. 8. On the other hand, Sri Rajesh Tiwari, learned Additional Chief Standing Counsel, has argued that once the cancellation of the firearms licenses of the petitioner was done vide order dated 04.12.2010 against which the recall application was also dismissed on 29.10.2016 consequently the application preferred by the petitioner in July 2018 would be grossly time barred and the District Magistrate, Sultanpur, while considering this aspect of the matter has correctly proceeded to pass the impugned order rejecting the said application of the petitioner as time barred and there is no error or infirmity in the said order. Sri Tiwari also argues that as Sub-section (3) of Section 21 of the Act of 1959 provides that all things deposited and not received back or disposed of under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the district magistrate and as the petitioner did not receive back both the firearms within a period of one year from the date of cancellation of his firearms licenses as such the same are deemed to be forfeited to the Government and accordingly after such a long lapse of time i.e. almost 8 years from the date of cancellation of the firearms licenses dated 04.12.2010, the petitioner would not be entitled for any relief. Sri Tiwari also argues that even if for the sake of arguments the petitioner would be entitled for preferring an application within a period of one year from the date of final order of the appeal yet the appeal itself was patently time barred having been filed after almost six years of the date of cancellation of the firearms licenses and the same was never decided on merits rather it was withdrawn as such the petitioner would not be entitled for invoking the time frame as prescribed at serial no.5 of the table specified under Rule 47 of 2016 Rules. Thus, it is contended that the impugned order passed by the District Magistrate has no infirmity and present petition deserves to be dismissed. 9. Heard learned counsel for the contesting parties and perused the records. The facts that come out from perusal of the records are that the cancellation of both the firearms licenses of the petitioner took place on 04.12.2010. The recall application filed by the petitioner praying for recall of the order dated 04.12.2010 came to be rejected vide order dated 29.10.2016. Being aggrieved with the said order, the petitioner preferred an appeal which remained pending before the appellate authority. The petitioner thereafter preferred an application during pendency of the appeal itself on 05.07.2018 to the District Magistrate, Sultanpur, for grant of permission for selling the firearms under deposit with the arms dealer. Thereafter an application for withdrawal of the appeal was also filed by the petitioner which has resulted in the appeal being decided/dismissed/consigned to records on 18.07.2018. Thus, the dispute pertaining to cancellation of the firearms licenses only attained finality with the appeal being finally decided on 18.07.2018. Consequently after the decision of the appeal whether the petitioner was entitled to file an application seeking permission from the competent authority for selling of his firearms under deposit with the arms dealer is the question to be decided by the Court. 10. In this regard, the Court may refer to the provisions of Section 21 of the Act of 1959 which deals with the eventuality of the depositor being entitled to dispose of the arms or ammunitions so deposited by sale or otherwise to any person. For the sake of convenience, Section 21 of the Act of 1959 is reproduced as under:- "21. For the sake of convenience, Section 21 of the Act of 1959 is reproduced as under:- "21. Deposit of arms, etc., on possession ceasing to be lawful.-- (1) Any person having in his possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer incharge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury. Explanation.--In this sub-section "unit armoury" includes an armoury in a ship or establishment of the Indian Navy. (2) Where arms or ammunition have or has been deposited under sub-section (1) the depositor or in the case of his death, his legal representative, shall, at any time before the expiry of such period as may be prescribed, be entitled-- (a) to receive back anything so deposited on his becoming entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, or (b) to dispose, or authorise the disposal, of anything so deposited by sale or otherwise to any person entitled by virtue of this Act or any other law for the time being in force to have, or not prohibited by this Act or such other law from having, the same in his possession and to receive the proceeds of any such disposal: Provided that nothing in this sub-section shall be deemed to authorise the return or disposal of anything of which confiscation has been directed under section 32. 3. All things deposited and not received back or disposed of under sub-section (2) within the period therein referred to shall be forfeited to Government by order of the district magistrate: Provided that in the case of suspension of a licence no such forfeiture shall be ordered in respect of a thing covered by the licence during the period of suspension. 4. 4. Before making an order under sub-section (3) the district magistrate shall by notice in writing to be served upon the depositor or in the case of his death, upon his legal representative, in the prescribed manner, require him to show cause within thirty days from the service of the notice why the things specified in the notice should not be forfeited. 5. After considering the cause, if any, shown by the depositor or as the case may be, his legal representative, the district magistrate shall pass such order as he thinks fit. 6. The Government may at any time return to the depositor or his legal representative things forfeited to it or the proceeds of disposal thereof wholly or in part." 11. From the perusal of the aforesaid provisions of the Act it clearly comes out that any person having in his possession any arms or ammunition, the possession whereof, on account of revocation of a license ceases to be lawful, shall deposit the same with the licensed dealer. Sub-section (2) of Section 21 provides that where arms or ammunitions have been deposited, the depositor or his legal representatives at any time before expiry of such period as may be prescribed, be entitled to receive back anything so deposited, if entitled or to dispose off or authorise the disposal of the arms so deposited by sale to any person entitled by virtue of this Act. Thus, in the present case the depositor would be entitled to dispose of the firearms so deposited provided he prefers an application within the time prescribed. 12. Rule 47 of the Arms Rules, 2016, which deals with the aforesaid situation is reproduced as under:- "47. Thus, in the present case the depositor would be entitled to dispose of the firearms so deposited provided he prefers an application within the time prescribed. 12. Rule 47 of the Arms Rules, 2016, which deals with the aforesaid situation is reproduced as under:- "47. Deposit of arms and ammunition under section 21.- (1) When a licensing authority decides to suspend or revoke a licence or to refuse to renew it, he shall, communicate his decision in writing to the licensee, requiring him to deposit under section 21, within such time as may be specified in the order suspending, revoking or refusing to renew the licence, the arms or ammunition covered by the licence, either with the officer-in-charge of the nearest police station or with a dealer holding a licence in Form VIII, or, in case he is a member of the armed forces of the Union, in the unit armoury: Provided that in case of death of a licensee, the arms or ammunition shall be deposited by the legal representative with the officer-in-charge of the nearest police station or with a dealer holding a licence in Form VIII, within a period of three months of the death of the licensee. (2) Subject to the proviso to sub-section (2) of section 21,the licensee or, in the case of his death, his legal representative shall be entitled to sell or otherwise dispose of the arms or ammunition to any person lawfully entitled to possess the same and to receive the sale-proceeds, if any, during the period specified in column (3) of the Table in case of deposit of arms and ammunition mentioned in column (2) of the said table in sub-rule (6): Provided that if the arms or ammunition have not been disposed of or their possession by the licensee or his legal representative, as the case may be, has not become lawful within the period so specified, then such arms or ammunition shall, subject to the proviso to sub-section (3) of section 21, be forfeited to the Government by an order of the district magistrate. (3) Where any arm or ammunition is deposited by an owner under sub-section (1) of section 21, in a police station or unit armoury or with a dealer holding a licence in Form VIII, the officer-in-charge of the police station or unit armoury or the licensed dealer, as the case may be, shall attach to each article deposited, a card and issue a receipt to the depositor and send a copy to the authority who granted the licence or renewed it last, containing the following particulars, namely:- (i) Description (No. etc.) of the article; (ii) Particulars of licence or exemption (if any); (iii) Name and address of the depositor; (iv) Serial No. in register and date of deposit; (v) Date due for forfeiture or disposal; (vi) Signature of the depositor; and (vii) Signature of the dealer or officer-in-charge of police station or unit armoury. (4) Any arms or ammunition deposited in a unit armoury under sub-section (1) of section 21 may, unless returned or disposed of earlier, be transferred, after the expiry of a period of thirty days after such deposit, to the nearest police station. (5) Any arms or ammunition deposited in a police station under sub-section (1) of section 21, which have not been returned or disposed of - (i) with-in thirty days of the deposit with it; and (ii) transferred from the unit armoury under sub-rule (4) may be transferred by the officer-in-charge of the police station for the sake of better maintenance or safety, to a police armoury in the district/taluqa headquarters or such other place as may be specified by the district magistrate, in accordance with such instructions as may be issued by the State Government for the purpose: Provided that the district magistrate may, if he considers it necessary, extend the said period of thirty days up-to ninety days and intimation of such transfer shall be given to the depositor of the article and to the licensing authority who, granted or last renewed the licence. (6) The depositor or his legal representative may exercise his rights to receive back or dispose of any arms or ammunition under sub-section (2) of section 21, within the period specified in column (3), in case of deposit of the arms or ammunition specified in column (2) of the table given below, namely:- Sl. No. Reason of deposit of arms and ammunition Effective date 1 2 3 1. No. Reason of deposit of arms and ammunition Effective date 1 2 3 1. Due to contravention by the owner of any provisions of the Act, the rules or conditions of licence One year from the date of such deposit 2. Due to suspension or revocation of licence or for any other reason One year from the date of the order of suspension or revocation 3. Where the arms or ammunition are already deposited One year from the date of the order of revocation, suspension or refusal to renew the licence 4 When a notification is issued under section 4 One year from the date of said notification 5. Where an appeal is preferred by the owner under section 18 One year from the date of the final order 6. Where the arms or ammunition are - he subject of a legal suit or dispute; or From the date of termination of the dispute or the date of final order; or owned or inherited by a person who has not completed the age of twenty-one years One year from the date of completion by that person of the age of twenty one years 7. Where the owner is on active service outside India from the date of his return to India Note 1-The period of one year may be extended by the district magistrate by another six months in case the depositor or owner is found unfit for any reasons to carry such arms or ammunition. Note 2 - The State Government may further extend the said period beyond six months by another six months. (7) Any arms or ammunition not returned or disposed of before the expiry of the period specified under sub-rule (6) shall be transferred to the district malkhana or such other place, by order of the district magistrate, for the purpose of forfeiture under sub-section (3) of section 21: Provided that the district magistrate shall, before making such order of forfeiture, serve a notice as required under sub-section (4) of section 21 in like manner as for service of summons under the Code of Criminal Procedure, 1973 (2 of 1974): Provided further that in the case of the depositor being a member of the armed forces of the Union the notice, shall be served personally, through the Commanding Officer, of such member. (8) Charges for maintaining the articles deposited may be levied at such rates as may be fixed from time to time by the State Government." 13. Rule 47 (2) of the 2016 Rules specifies that subject to proviso to Sub-section (2) of Section 21 of the Act of 1959 the licensee or in the case of his death his legal representatives shall be entitled to sell or otherwise dispose of the arms or ammunition to any person lawfully entitled to possess the same during the period specified in column (3) of the table in case of deposit of arms or ammunitions mentioned in column (2) of the table. 14. The table appended to Rule 47 of 2016 Rules clearly specifies at serial no.2 that where the deposit of arms or ammunition has taken place on account of suspension or revocation of the license, the effective date whereby the depositor or his legal representative may exercise his right to receive back or dispose of any arms or ammunition would be one year from the date of order of suspension or revocation. At the same time, serial no.5 of the table also stipulates that where an appeal is preferred by the owner under Section 18, the effective date for exercise of rights by the depositor to either receive back or dispose of any arms and ammunition would be one year from the date of final order. 15. In this case, it is admitted that the appeal has been finally decided (may be not pressed or withdrawn) on 18.07.2018 i.e. the order of cancellation of license stood merged with the final order passed in the appeal on 18.07.2018. Thus, for all purposes the petitioner was entitled to prefer an application for receiving back or disposing of the arms or ammunition under deposit within one year from the date of final order, i.e. an application could very well have been preferred within one year from 18.07.2018 the date of decision in the appeal i.e. up to 17.07.2019. 16. Thus, for all purposes the petitioner was entitled to prefer an application for receiving back or disposing of the arms or ammunition under deposit within one year from the date of final order, i.e. an application could very well have been preferred within one year from 18.07.2018 the date of decision in the appeal i.e. up to 17.07.2019. 16. As regards the argument of learned State Counsel that in terms of sub-section (3) of Section 21 of the Act of 1959 as the firearms as had been deposited were not received back or disposed off under sub-section (2) within the period therein, the same shall be forfeited to the Government, suffice to state that sub-section (3) of Section 21 of the Act of 1959 itself provides that the forfeiture shall be by an order of the District Magistrate. Sub-section (4) of Section 21 of the Act of 1959 clearly provides that before making an order under sub-section (3) of Section 21 of the Act of 1959, the District Magistrate shall by notice in writing to be served upon the depositor or in the case of his death upon his legal representative require him to show cause within 30 days from the service of the notice why the things specified in the notice should not be forfeited. Sub-section (5) of Section 21 of the Act of 1959 provides that after considering the cause, if any, shown by the depositor, the District Magistrate shall pass such order as he thinks fit. Thus the sine-qua-non for an order of forfeiture under sub-section (3) of Section 21 of the Act of 1959 is an order of the District Magistrate and that too to be passed after issue of notice in writing upon the depositor or upon his legal representative requiring him to show cause as to why the firearms be not forfeited. Nowhere in the impugned order dated 29.09.2018 or in the counter affidavit filed by the respondents has it been contended that an order had been passed by the District Magistrate forfeiting the firearms of the petitioner and any notice in this regard was ever given to the depositor or his legal representative and in absence thereto it can validly be presumed that no such forfeiture as provided in sub-section (3) of Section 21 of the Act of 1959 ever took place and accordingly the said argument of learned State Counsel is rejected. 17. As regards the argument of learned State Counsel that the appeal was not decided on merits rather it was not pressed/withdrawn on the application preferred by the appellant and the same was also patently time barred, the said argument also merits to be rejected inasmuch as the table as appended to Rule 47 of 2016 Rules at serial no.5 does not provide that the appeal preferred by the owner under Section 18 of the Act of 1959 is to be decided on merits. Withdrawal of the appeal or not pressing the appeal would itself entail dismissal of the appeal whereby the order of cancellation passed by the District Magistrate would stand merged. A perusal of the application which was filed by the petitioner praying for not pressing of his appeal as filed by the petitioner dated 18.07.2018, a copy of which is Annexure-12 to the petition, indicates that the petitioner has referred to an order of the High Court dated 16.02.2018 for deciding the appeal on merits. It is further indicated in the said application that as the petitioner wants to dispose off his firearms as such he does not want to contest the appeal on merits rather wants to not press the same. Thus it was in such circumstance that the appeal has been dismissed as not pressed. Accordingly the time schedule as given at serial no.5 of the table under Rule 47 of the 2016 Rules would come into play and consequently the prescribed period for preferring an application under the provisions of Section 21(2) (b) of 1959 Act read with Rule 47 (2) of 2016 Rules would be one year from the date of final order on the appeal. Accordingly, this argument of learned State Counsel is also rejected. 18. Keeping in view the aforesaid discussions, what this Court finds is that the impugned order dated 29.09.2018 passed by the District Magistrate, Sultanpur, rejecting the application of the petitioner for disposal of the firearms under deposit with the arms dealer on the ground that the same is time barred cannot be upheld inasmuch as the District Magistrate, Sultanpur, has proceeded to take the date of application from cancellation of the firearms licenses i.e. 04.12.2010 instead of taking the effective date as the date when the appeal was finally decided i.e. 18.07.2018. Thus, in this view of the matter, the order dated 29.09.2018 merits to be quashed and is accordingly quashed and set-aside. 19. As the petitioner has died during pendency of the present petition and his legal heirs have already been substituted and in terms of the provisions of Section 21(2) of the Act of 1959 read with Rule 47 (2) of 2016 Rules the legal representatives are entitled to prefer an application before the prescribed authority seeking permission to sell or otherwise dispose of the arms or ammunitions under deposit, as such, the legal representatives of the petitioner would be entitled to prefer an application seeking permission for selling/disposal of the arms under deposit with the arms dealer within 15 days from today before the District Magistrate, Sultanpur. The District Magistrate, Sultanpur, shall proceed to consider the said application and pass a final order strictly in accordance with the provisions of 1959 Act and the 2016 Rules and the observations made in this order within a period of two months from the date of receipt of the said application along with certified copy of this order. 20. With the aforesaid observations, the writ petition is finally disposed of.