Rakesh vs State Of U.P.And Another
2014 Latest Caselaw 4982 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
1. Case :- WRIT - C No. - 41173 of 2014
 
Petitioner :- Rakesh
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Smt.Rekha Pundir,Ramesh Pundir
 
Counsel for Respondent :- C.S.C.
 

 
2. Case :- WRIT - C No. - 41267 of 2014
 
Petitioner :- Sudheer
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Smt.Rekha Pundir,Ramesh Pundir
 
Counsel for Respondent :- C.S.C.
 

 
3. Case :- WRIT - C No. - 41269 of 2014
 
Petitioner :- Vinay
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Smt.Rekha Pundir,Ramesh Pundir
 
Counsel for Respondent :- C.S.C.
 

 
4. Case :- WRIT - C No. - 41271 of 2014
 
Petitioner :- Kushalpal
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Smt.Rekha Pundir,Ramesh Pundir
 
Counsel for Respondent :- C.S.C.
 

 
5. Case :- WRIT - C No. - 41273 of 2014
 
Petitioner :- Braham Singh
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Smt.Rekha Pundir,Ramesh Pundir
 
Counsel for Respondent :- C.S.C.
 

 
6. Case :- WRIT - C No. - 41275 of 2014
 
Petitioner :- Ram Prasad
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Smt.Rekha Pundir,Ramesh Pundir
 
Counsel for Respondent :- C.S.C.
 

 
7. Case :- WRIT - C No. - 41277 of 2014
 
Petitioner :- Sherpal
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Smt.Rekha Pundir,Ramesh Pundir
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Ramesh Pundir, Advocate for petitioners and Sri Kamal Singh Yadav, Additional Advocate General assisted by Sri R.C. Yadav, learned Standing Counsel for respondents.

2. Sri O.P. Verma, Additional District Magistrate, Saharanpur is present pursuant to this Court's order dated 08.08.2014.

3. These writ petitions could have been avoided if respondents and, in particular, respondent no. 2 would have acted with an eye on rule of law instead of indiscreet, arbitrary and unsubstantiated discretion.

4. All the writ petitioners are farmers, except petitioner in Writ Petition No. 41277 of 2014, who is Teacher in a Government Inter College, and hold firearm licences, granted under the provisions of Arms Act, 1959, by District Magistrate, after complying the procedure prescribed and satisfying with the need of petitioners, which is, personal safety and security. They are residents of rural area, which falls within the jurisdiction of Police Station Deoband, District Saharanpur.

5. The cause of action commenced on 09.09.2013 when pursuant to a petty incident, serious riots grow, to which anti-social element sought to give colour of communal riots. The respondents claimed that for maintaining law and order, and also on the ground that firearm licence holders did not cooperate with police to maintain peace, licences of various firearm holders were suspended which included these seven petitioners also. The orders of suspension in all these writ petitions have been passed on 12.09.2013, 13.09.2013, 16.09.2013 and 21.09.2013 though worded identically.

6. Learned counsel for the petitioners submitted that the District Magistrate acted by identifying licence holders of a particular section/community and, therefore, suspension is wholly illegal and arbitrary.

7. Since a serious allegation was made by petitioners that licence holders of a particular section/community were picked up, for reasons other than bona fide, this Court vide order dated 08.08.2014 required District Magistrate, Saharanpur to file a personal affidavit giving certain information. Para 6 of the order dated 08.08.2014 reads as under:

"6. Let District Magistrate, Saharanpur shall file a personal affidavit giving following facts:

(I) How many firearm licence have been issued in the area under Police Station Deoband.

(II)How many suspension orders have been passed after the riots took place on 09.09.2013, till date. A list of such cases shall be appended.

(III)Whether all those suspension orders are continuing or some have resulted in cancellation or withdrawal, as the case may be. These details, separately, shall be provided.

(IV) What was the police report? Whether it is in respect of an individual licensee or in general.

(V) The report submitted by police, pursuant whereto impugned orders have been passed, shall also be produced before this Court on the next date. The information above shall be produced before this Court on 26.08.2014 through an officer not below the rank of Additional District Magistrate."

8. Pursuant thereto, an affidavit has been filed, sworn by Dr. Indraveer Singh Yadav, District Magistrate, Saharanpur stating that he has joined thereat only on 13.08.2014. Earlier District Magistrate, Sandhya Tiwari, after receiving the order of this Court and after going through the writ petitions and its enclosures, decided to withdraw orders of suspension and consequential order was passed on 11.08.2014. Copy of the order has been filed as Annexure-1 to the affidavit, which shows that District Magistrate did not find any justification for suspending firearm licence of petitioners and, therefore, revoked suspension orders.

9. In normal course, the writ petitions would have rendered infructuous after the order dated 11.08.2014, but learned counsel for the petitioners claimed that petitioners should be allowed cost for forcing to file these avoidable writ petitions and undergoing harassment of a forced litigation and pointed out certain facts which are borne out from the affidavit submitted by present District Magistrate, Saharanpur.

10. It shows that from 1963 till July, 2014, in the area of Police Station, Deoband, 3887 firearm licence have been issued. After riots took place on 09.09.2013, 72 licences were suspended and a list of those licensees is appended as Annexure-2 to the affidavit. Learned counsel for the petitioners drew my attention to aforesaid list which makes it apparent that all 72 persons whose licences were suspended, belong to a particular section/community. He contended that what he argued earlier stands fortified from the facts as now are evident from Annexure-2 to the affidavit.

11. The persons belonging to three villages were selected for suspension of firearm licence. In Village Rankhandi, 29 firearm licences were suspended. In Villages Gunarasi/Gunarsa and Meeragpur, 41 and 2 licences, respectively, were suspended. The report of Incharge Inspector, Deoband, District Saharanpur, collectively has been placed on record as Annexure-3 to the affidavit. In respect of these 72 persons, stark similarity/ identical language, except of difference of names, is very evident from a bare reading of these notices which the Incharge Inspector Deoband has given, recommending suspension of firearm licence of all these persons. It is then further stated that out of 72, four licensees have died, abating their cases, 12 cases have resulted in cancellation of licences, whereagainst in six cases appeal was filed and the matter has been remanded to Collector to reconsider. In 29 cases, licences were revoked and 27 cases are pending.

12. Learned Standing Counsel though endevoured to contend that police report was submitted individually and, therefore, individual orders were passed by District Magistrate but could not dispute that police report was in identical language. It shows a virtual non application of mind on the part of District Magistrate in passing order of suspension relying mechanically on such report. There was no justification for suspension in case of petitioners, is also fortified from the fact that District Magistrate itself has found lack of any justification and, therefore, after receiving order of this Court, passed orders revoking suspension orders in all these writ petitions.

13. Learned Standing Counsel could not explain and give any reason whatsoever as to why firearm licences of only one section of society were selected for suspension. In any riot, there are two parties. It is admitted and also evident from record that the alleged riot involved members of two sections/communities of society. None else but those of only one sections of society gave an occasion for similar action is difficult to believe and beyond apprehension. In fact the affidavit is totally silent on this aspect. Sri O.P. Verma, Additional District Magistrate, Saharanpur is also present before this Court alongwith record but neither he could give any reason as to why all 72 cases of suspension of firearm licence relates to only one section of society nor from record any reason could discern.

14. These facts apparently fortify the contention advanced by learned counsel for petitioners that suspension of firearm licences of only one section of society was for reasons other than bona fide. This is nothing but a selective executive action, patently arbitrary and discriminatory. It also seriously disturbs string of communal harmony in the society. The confidence of a large section of society shakes looking to execution action of this nature.

15. The constitution contemplates a permanent executive with an objective that having several constitutional protections, executive shall guide political executives to perform their duties and obligations strictly in accordance with law. They themselves shall not work under any influence, favour etc. in any manner. The kind of action which has been taken by concerned District Magistrate, in the case in hand, I have no option but to observe, breaches not only the constitutional protection of equity before law but also the very preamble thereof which requires the State to act as a "Secular State". The term "secular" means respect to all castes, creed, community, instead of taking a partisan stand in respect of a particular section/community in the society.

16. The executive must understand, when statutory power has been conferred upon them by legislature, it has deposed a heavy confidence upon them that statutory power shall be exercised without fear, favour and/or ill-will, to any individual or group of individuals of common identity. The executive shall govern all persons alike and would apply rule of law with open mind to all, equally and at par.

17. In these cases, unfortunately, this objectivity, independence and impartiality is lacking. I have no doubt in my mind that power of suspension of firearm licence was not exercised legally and it was for reason other than bona fide. It travels in the realm of malice in law.

18. The Apex Court has summarised "malice in law " in (Smt.) S.R. Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :

"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)

(emphasis added)

19. The Apex Court further in para 9 of the judgment in S.R. Venkatraman (supra) observed:

"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."

20. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :

"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."

21. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law, the Apex Court in para 16 of the judgment observed as under:

"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal." (emphasis added)

22. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:

"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."

"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide." (emphasis added)

23. In brief malice in law can be said when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. [See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198].

24. Looking to the above discussion and considering the fact that orders of suspension of firearm licences has now been withdrawn on 11.08.2014 after receiving this Court's order dated 08.08.2014, the reliefs No. 'A' and 'B' have rendered infructuous but since this litigation could have been avoided, had the respondent no. 2 would have acted fairly and impartially, but it had forced litigation upon petitioners, in my view, reliefs No. 'C' and 'D' can be considered and in consequence thereof, I dispose of these writ petitions by holding that petitioners are entitled to cost of Rs. 5,000/- for each set of writ petitions, against respondent no. 2. The amount of cost shall be paid to petitioners by respondent no. 2 but it is open to respondent no. 1 to recover the said amount from erring official concerned after making such inquiry as provided in law.

Order Date :- 26.08.2014

AK