Arvind Kumar vs The State Of U.P. Thru Secy. And ...
2011 Latest Caselaw 6039 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 2
 

 
Case :- WRIT - C No. - 66367 of 2011
 

 
Petitioner :- Arvind Kumar
 
Respondent :- The State Of U.P. Thru Secy. And Others
 
Petitioner Counsel :- Sanjay Srivastava
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. With the consent of learned counsel for the parties, this Court proceeded to decide the matter at this stage under the Rules of the Court.

2. The petitioner Arvind Kumar, son of Kailash Nath has come to this Court aggrieved by the order dated 29th July, 2011 communicated by Officer Incharge (Arms), District Chitrakoot by letter dated 06.08.2011 that firearm licence granted to the petitioner by District Magistrate, Chitrakoot's order dated 18.12.2001 has been withdrawn and application for grant of firearm licence submitted by the petitioner on 15.03.2001 has been rejected.

3. The case of the petitioner is that he applied for grant of firearm licence on 15.03.2001 but no order passed by District Magistrate thereon was communicated to the petitioner at all. He got knowledge that licence was sanctioned by District Magistrate on 18.12.2001 but no information was given to the petitioner hence he submitted a representation dated 03.5.2011 requesting the District Magistrate to pass appropriate order so that the petitioner may purchase a weapon whereafter the impugned order has been communicated to the petitioner.

4. A bare perusal of order dated 29.7.2011 (Annexure 1 tot he writ petition) shows that present District Magistrate, Chitrakoot Sri D.K.Gupta has taken a view that though licence was sanctioned on 18.12.2001 but petitioner did not make any efforts to purchase the weapon and got it entered in the licence. Since the petitioner did not find any necessity of having weapon in the last ten years meaning thereby he wanted to possess firearm licence only as a hobby and there is no real justification for the same hence order dated 18.12.2001 is being withdrawn.

5. When this matter was taken by this Court on 21.11.2011, learned Standing Counsel was required to inform the Court whether licence sanctioned to the petitioner on 18.12.2001 was actually communicated to him by District Magistrate, Chitrakoot or his office at any point of time till the impugned order was passed, pursuant whereto original record has been produced before this Court by learned Standing Counsel and I have gone through the same. There is nothing on record to show that after sanction of licence by District Magistrate on 18.12.2001 any letter was ever issued and communicated to the petitioner at any point of time.

6. Learned Standing Counsel however submitted that since order was only on the file and was not communicated to the petitioner, it never became an 'order' and could have been reviewed or altered by the competent authority which has actually been done and District Magistrate has rejected application of the petitioner for firearm licence on the ground that he did not find any justification for grant of said licence.

7. I have heard learned counsel for the parties and perused the record.

8. It is apparent from the record that petitioner submitted application for grant of firearm licence on 15.03.2001. After obtaining report from various authorities, Arms Clerk prepared a note for grant of licence to the petitioner which was approved and signed by the then District Magistrate on 18.12.2001. Thereafter anything done by the office of District Magistrate is not clear since there is no document in the aforesaid record. The next document available on record is an application of the petitioner dated 04.04.2011 wherein he said that regarding his application for grant of firearm licence, he tried to enquire from concerned Arms Clerk but he never informed about sanction of firearm licence at any point of time. This information he could get on 2.4.2011 and therefore he requested for grant of a copy of firearm licence with further permission to purchase the weapon.

9. On the said application of the petitioner received in the Complaint Cell of Collectorate, Chitrakoot on 4.4.2011, District Magistrate passed an order directing Arms Clerk to apprise the entire facts of the matter. A similar application was submitted by the petitioner on 18.4.2011 whereupon the District Magistrate sought comments from Officer Incharge (Arms). A third application was submitted by the petitioner on 03.5.2011 on Tehsil Diwas whereupon the District Magistrate directed Arms Clerk to produce entire record on 06.5.2011. Thereupon the Arms Clerk submitted report on 04.5.2011 stating that after submission of application on 15.03.2001, formalities were completed and in the meantime petitioner made a representation on 12.12.2001 for grant of firearm licence whereafter the District Magistrate sanctioned the firearm licence but the petitioner since then did not take any steps to find out current status of the matter. On the said note the District Magistrate passed an order seeking a police report afresh and to inform the applicant (petitioner) and Sub Divisional Magistrate.

10. The Officer Incharge (Arms) pursuant thereto issued a letter dated 12.5.2011 to the Sub Divisional Magistrate, Mau and Superintendent of Police, Chitrakoot by subsequent letter dated 16.5.2011. The Superintendent of Police by letter dated 13.7.2011 observed that since petitioner did not find any expediency for receiving firearm licence in the last ten years, therefore it is evident that there is no necessity of firearm licence by him hence no recommendation is made in his favour.

11. The petitioner thereafter submitted a letter dated 22.7.2011 stating that Arms Clerk has informed that Superintendent of Police has declared to recommend grant of firearm licence to the petitioner though there is no proper reason for the same. Another application was submitted by the petitioner on 28.7.2011. Since the Police authorities did not recommend firearm licence to the petitioner, vide letter dated 13.7.2011, a note was submitted by the Arms Clerk to the District Magistrate for withdrawal of order dated 18.12.2001 and rejection of application dated 15.3.2001. The said note was approved by District Magistrate on 29.7.2011 and pursuant thereto order dated 29.7.2011 was issued. A copy of the order dated 29.7.2011 was communicated to the petitioner vide office letter dated 06.08.2011 which was served upon the petitioner on 29.10.2011. This is the entire record produced before this Court for its perusal.

12. The real issue, which has been ignored by learned District Magistrate in this matter as to why and how the order dated 18.12.2001 sanctioning firearm licence to the petitioner was not communicated to him. Since the record does not contain anything to throw light on this aspect, learned Standing Counsel fairly said that it is difficult to make any comment on this aspect since a number of District Magistrates in the meantime have changed and the present District Magistrate is not in a position to make any comment on this aspect.

13. Be that as it may, the fact remains that the competent authority under the statute took a decision in favour of the petitioner in the files but it did not become an "order" since no communication ever took place to the petitioner and therefore so far as power of District Magistrate to review/recall or alter that decision is concerned, the same cannot be disputed. The Apex Court in the case of Bachhittar Singh Vs. State of Punjab, AIR 1963 SC 395 considering the distinction between a "decision" and an "order" held as under:

"Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over against and, therefore, till its communication the order cannot be regarded as anything more than provisional in character."

14. Power of review or withdrawal of earlier decision though may be available to the District Magistrate in the present case but this Court cannot ignore a serious but unexplained lapse on the part of respondents to the extent that though decision was taken in favour of the petitioner as long back as on 18.12.2001 but no communication was given to him almost for a decade. Obviously the petitioner cannot be made responsible for this lack of communication and simultaneously also respondents cannot be allowed to take advantage of their own wrong by sitting idol over the matter for such a long time.

15. Learned Standing Counsel faintly suggested that it was the duty of the petitioner to meet the officials in the Collectorate so as to obtain copy of firearm licence but he admitted that there is no such provision under the statute obliging a person applying for grant of firearm licence to continuously pursue his application by meeting various officials in the department at every stage to take decision and thereafter communicate it to him. In fact such an approach if suggested or conceived for a common man, it would create not only an unnecessary hurdle and obstruction in the official functioning of the department concerned but would also encourage corruption and other illegal considerations. It is now a matter of common knowledge that in Government department and offices nothing move unless one takes step to get the things moved. This movement is not without any consideration or price. In other words, movement is consequence of corruption. This Court cannot encourage it and on the contrary must prevent any such attempt.

16. The application submitted by the petitioner for grant of firearm licence was a statutory document. Once the statutory document with requisite fees etc. was submitted, it was incumbent upon respondents to look into such application and pass appropriate order, as the case may be. The Competent Authority cannot wriggle out of its obligation by resorting to suggest that the applicant has not persuade the matter himself by coming and meeting the officials of the Collectorate. This suggestion is wholly unwarranted and shows an attempt to encourage an unlawful approach and access on the part of private persons. The record clearly shows that officials in the Collectorate Chitrakoot responsible for communication of Collector's orders for grant of licence to the incumbent concerned kept silence over the matter and did not make any appropriate communication hence they were directly responsible for such lapse and ought to have been proceeded departmentally but the present District Magistrate, who has passed the impugned order, further committed serious lapse and error by not looking into the real flaw and instead ignoring the entire lapses on the part of concerned officials proceeded to consider petitioner's application afresh and thereafter passed impugned order. This lapse on the part of Sri D.K.Gupta, District Magistrate, Chitrakoot, who has passed the impugned order also cannot be appreciated and condoned. It also demonstrate the attitude on the part of District Magistrates to encourage subordinate officials to indulge in corrupt activities.

17. Having said so, I have also to consider the impugned order on merits and find that petitioner's application has been rejected by withdrawing order dated 18.12.2001 only on the ground that after sanction of licence to the petitioner on 18.12.2001, he did not persuade further in the matter to purchase firearm and kept silence for the last ten years which shows that there is no genuine need on part of the petitioner for possessing a firearm licence for his personal safety and security. What in other words he has said since the petitioner has survived and has not suffered any injury or loss in the last ten years meaning thereby he has no genuine apprehension to his safety and security justifying rejection of his application. This is something strange and amounts to putting the cart ahead the horse.

18. Section 14 of the Arms Act provides grounds on which a licence can be refused and sub-section 1(b)(i)(3) provides that the reason on which a firearm licence can be declined must be a valid one and not a fanciful and stretched one which normally cannot be included so as to disentitle a person to grant firearm licence.

19. This Court in Pawan Kumar Jha Vs. State of U.P. and others, 2010(10) ADJ 782 has held that undue restriction on keeping and bearing arms ought not be based on unfounded fear. Licence is normally to be granted unless there is something adverse.

20. A fire arm licence cannot be denied only on conjectures and surmises and without appreciating the objective of statute under which the power is being exercised. Right to life and liberty which includes within its ambit right of security and safety of a person and taking, adopting and pursuing such means as are necessary for such safety and security, is a fundamental right of every person. Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. In the interest of maintenance of law and order certain reasonable restrictions have been imposed on such right but that would not make the fundamental right itself to be dependant on the vagaries of executive authorities. It is not a kind of privilege being granted by Government to individual but only to the extent where grant of fire arm licence to an individual would demonstratively prejudice or adversely affect the maintenance of law and order including peace and tranquillity in the society, ordinarily such right shall not be denied. It is in these circumstances, this Court has observed that grant of fire arm licence ordinarily be an action and denial an exception. In Vinod Kumar Shukla Vs. State of U.P. and others, (Writ Petition No. 38645 of 2011), decided on 15.07.2011 this Court has said:

"When a fire arm licence is granted for personal safety and security it does not mean that in the family consisting of several persons only one fire arm licence is to be granted. Moreover, this cannot be a reason for denial of arm licence. Fire arm licence can be denied only if the reason assigned by applicant or details given by him in application are not found to be correct but merely because there are one fire arm licence already possessed by one of the family member, the same cannot be denied. Grant of fire arm licence should ordinarily be an action and denial should be an exception. The approach of authorities below is clearly arbitrary and illegal. It also lacks purpose and objective of the statute."

21. The authorities empowered to grant licence under the Act ought not to behave as if they are part of the old British sovereignty and the applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of applicant with more pragmatic and practical approach. Unless they find that in the garb of safety and security, applicant in fact intend to use the weapon by obtaining a licence for a purpose other than self defence, it ought not to have been denied such licence. I am not putting the statutory power of authority concerned in a compartment since there may be more than one reasons for exercising statutory discretion against applicant but then that must justify in the context of purpose and objective of statute and necessarily ought not be whimsical.

22. In the light of the discussion and observations, the impugned order in my view cannot sustain. Besides for the lapses and unmindful act on the part of respondents, the petitioner has been compelled to get involved in this litigation which could have been avoided if the respondents authorities would have looked into the matter with more responsibility and sensibility.

23. The writ petition therefore is allowed with cost which I quantify to Rs.20,000/-. The impugned order dated 29.07.2011 passed by District Magistrate, Chitrakoot is hereby quashed. The District Magistrate is directed to consider petitioner's application for grant of firearm licence afresh and pass appropriate order in accordance with law within two month from the date of production of a certified copy of this order.

Order Date :- 23.11.2011

KA