Suhail Ahmad vs State Of U.P. Thru Secy. Home ...
2017 Latest Caselaw 537 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 5
 
Case :- MISC. SINGLE No. - 4046 of 2014
 
Petitioner :- Suhail Ahmad
 
Respondent :- State Of U.P. Thru Secy. Home Lucknow & Others
 
Counsel for Petitioner :- Nisar Ahmed,Mohd.Ateeq
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Mohd. Ateeq, learned counsel for petitioner, learned State counsel and perused the record.

By means of the present writ petition, the petitioner has challenged the order dated 24.04.2012 passed by respondent No. 3 thereby rejecting the petitioner's application for grant of arms license and order dated 21.01.2014 passed by respondent No. 2/Commissioner, Faizabad Division, Faizabad thereby dismissing the petitioner's appeal.

Learned counsel for petitioner submits that petitioner is a law abiding citizen and always makes an effort to remove social evils in the society. He use to face some miscreant and unsocial elements and he has filed a complaint/FIR against some unsocial persons of t6he locality where he is residing. Due to the said act, the unsocial elements have threatened the petitioner, as such in order to save his life, on 24.02.2011 petitioner applied for arms license. By an order dated 24.04.2012, Licensing Authority has rejected the petitioner's application that there is no threat perception, so there is no justification or reason to grant the petitioner's arms license by invoking the provisions as provided under Section 14(1)(khha)(1)(3) of the Arms Act, 1959. By order dated 24.04.2012 passed by Licensing Authority was challenged by filing an appeal No. 2333 /Amethi (Suhail Ahmad Vs. State of U.P.) under Section 18 of the Arms Act, rejected by order dated 21.01.2014 passed by the appellate authority.

Learned counsel for petitioner while challenging the impugned order submits that the petitioner is being recognized by unsocial elements, so he is a threat to life, as such in view of the sid fact, the petitioner requires arms license, however, without considering the said facts, on sermises and conjunctures, the petitioner's application for grant of arms license has been rejected.

In support of his argument, petitioner has placed relience on the judgment given by this Court in the case of Abdul Kafi Vs. District Magistrate, Allahabad, 2003 ALL. L.J. 1959, relevant portion quoted hereinunder:

"Heard learned counsel for the parties. Learned counsel appearing on behalf of the petitioner has submitted that an application for grant of firearm licence under the provision of Arms Act can be refused only on the ground, which is relevant in the context of the grant of firearm license. The Scheme of the Arms Act does not contemplate that a licence of firearm shall be granted only when somebody has apprehension to his life from someone. In this view of the matter, learned counsel for the petitioner has submitted that the view taken by; the licensing authority, as stated above, that since the petitioner has not mentioned as to who are the persons from whom he has apprehension to his life and property and further there is no police report to this effect also, therefore application of the petitioner for grant of firearm licence is liable to be rejected, amounts to rejection of application of firearm licence on wholly irrelevant consideration and it is also submitted that in this view of the matter, the order passed by the licensing authority rejecting the application for grant of firearm licence of the petitioner deserves to be quashed and petitioner is entitled for grant of the licence, applied for."

He further submits that petitioner has no criminal history nor has been convicted and involved in any criminal case, so the action on the part of respondents thereby denying to grant arms license to the petitioner is contrary to law as well as Articles 14 & 21 of the Constitution of India. In support of his argument, petitioner has placed reliance on the judgment given Hon'ble Apex Court in the case of B.A. Linga Reddy and others Vs. Karnataka State Transport Authority and others, 2015 (4) SCC 515.

Accordingly, it is submitted by learned counsel for petitioner that the impugned orders are contrary to law, liable to be set aside.

Learned State counsel while defending the impugned order submits that the matter in regard to grant of arms license to the petitioner has been considered by the respondent No. 3 and on the basis of material on record, he comes to the conclusion that there is no necessary to grant the petitioner arms license keeping in view the report submitted by the authorities of the District Chhatrapati Shhuji Maharaj Nagar, so there is no threat perception to the petitioner's life, as such there is no infirmity in the impugned order, writ petition is liable to be dismissed. In support of his contention, learned State counsel placed reliance on the judgment dated 15.01.2014 passed in Special Appeal No. 62 of 2014 (State of U.P. and others V. Mahipal Singh).

I have heard learned counsel for parties and gone through the record on the point in issue.

A Division Bench of this Court by judgment and order dated 15.01.2014 passed in Special Appeal No. 62 of 2014, after placing reliance on the judgment given in the case of Rana Pratap Singh Vs. State of U.P. and others, 1996 Cr. L.J. 665, held as under:-

"33. Turning now to the reference pertaining to the grant of an arms licence, there is the judgment of M. Katju, J. in Ganesh Chandra Bhatt v. The District Magistrate, Almora (1993(30) ACC 204) where the learned Judge held that the right to carry non-prohibited firearms was part of Article 21 of the Constitution of India since he said the word 'life' in Articles 21 has been held by the Supreme Court to be a life of dignity. It was, in this behalf, his view that is only an armed man who can lead a life of dignity and self respect.

34. The learned Judge went on to lay down as a legal proposition that "Whenever an application for a licence for a non-prohibited arm is made and it is not disposed of within three months it will be deemed to have been allowed on the expiry of three months". Not only this, but a general mandamus was also issued "to all concerned authorities that whenever any application for licence under the Arms Act is made the same must be processed and decided within three months, and the normal rule must be grant of the licence in the case of non-prohibited firearms, and the refusal should be exception and for strong reasons to be recorded in writing after giving opportunity of hearing to the applicant, and such reasons for rejection must be communicated to the application within three months of the application. The licence should also be normally not restricted to the district or State except for special reasons to be recorded in writing and communicated to the applicant."

35. Both these views, namely, that if no order is passed on an application for an arms licence within three months from the date thereof it shall be deemed to have been granted and that the right to carry a non-prohibited weapon was a right guaranteed under Article 21 of the Constitution, were later given the seal of approval by the Division Bench in Civil Misc. Writ Petition No.29963 of 1993 (Devendra Pratap Singh Vs. District Magistrate), decided on October 27, 1993, of which M. Katju, J. was a member.

36. Strong reservations were expressed by Bahuguna, J. in Ajai Singh's case to the rationale of the judgments in Ganesh Chandra Bhatt, 1993 (30) ACC 204 and Devendra Pratap's cases (supra) Civ. Misc. Writ Pet. No.29963 of 1993, D/-27-10-93 and he consequently sought their reconsideration by a larger Bench.

37. A reading of the relevant statutory provisions of the Arms Act would show that no time limit has been prescribed therein for the consideration of an application for the grant of an arms licence, nor is there any provision to the effect that if the application is not finally decided within a particular time frame, the licensing authority shall be bound to grant the licence, or that the licence shall be deemed to have been granted. We, therefore, cannot but concur with the view of Vijay Bahuguna, J. that had the intention of the Legislature been such, specific provisions would undoubtedly have been made for it in the Act. On the face of it, therefore, the provisions of the Arms Act cannot be so construed as to provide for a deeming provisions for the grant of a licence merely on the expiry of a particular period of time. ......

38. Equally unsustainable is the view that the right to carry non-prohibited fired arms comes within the purview of Art. 21 of the Constitution, nor indeed one can we subscribe to the theory as expounded by M. Katju, J. In Ganesh Chandra Bhatt's case 1993(30) ACC 204, that it is only an armed man who can lead a life of dignity and self respect. As rightly held in Kailash Nath's case 1985 AWC 493: AIR 1985 All 291 (supra), obtaining of a licence for acquisition and possession of fire arms under the Arms Act is no more than a privilege. M.N. Shukla, C.J. in this behalf, further observed "No doubt, a citizen may apply for grant of a licence of fire arms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Article 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras, 1950 SCR 88 Article 21 is attracted only in cases of deprivation in the sense of total loss and that accordingly has no application to the case of a mere restriction upon the right to move freely or to the grant of licence for possession and acquisition of fire arms which stands on an entirely different footing from the licence to carry on a trade or occupation". M.K. Katju, J. in Ganesh Chandra Bhatt's case (1993 (30) ACC 204, brushed aside this observation by fastening upon it the label of "per incuriam". On the face of it, this represents a glaring instance of a learned Single Judge, as they say "Seeking to win the game by sweeping all the chessmen of the table" by so blatantly disregarding a binding judgment of a Full Bench of five Judges, by merely saying it is per incuriam, when it was clearly not so.

.....................

42. It will thus be seen that branding the observation in Kailash Nath's case (supra), with regard to the right to carry firearms and it not coming under Article 21 of the Constitution, as being merely per incuriam was not founded upon any law or precedent and was, therefore, wholly unwarranted, rather it constitutes a striking instance of the manner in which the per incuriam rule never can or should be applied. It follows, therefore, that the right to carry firearms does not come within the purview of Article 21 of the Constitution. We are, thus, again constrained to hold that both Ganesh Chandra Bhatt's case 1993 (30) ACC 204 as also Devendra Pratap Singh's case Civil Mis. Writ Petition No.29963 of 1993, D/-7-10-1993, do not lay down correct law and are consequently hereby over-ruled."

(emphasis supplied)"

Further in the aforesaid judgment, it has also been held as under:-

"In order to adjudicate the controversy involved in the present case, it is necessary to examine the provisions of the Actand the Arms Rules, 1962 relating to grant/refusal of firearm licence. Under sub-section (1) of Section 3 of the Act, no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of the Act and the Rules. Section 13 provides for the grant of of licences under Chapter II (of which Section 3 is a part) and sub-section (2) of Section 13 requires the licensing authority to call for the report of the officer in charge of the nearest police station on the application. Under sub-section (2-A), the licensing authority is empowered to either grant the licence or refuse the grant of licence after such inquiry as it may consider necessary and upon considering the report received under sub-section (2).

Section 14 of the Act deals with the refusal of licences and provides as follows:-

"14. Refusal of licences.--(1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant--

(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;

(b) a licence in any other case under Chapter II,--

(i) where such licence is required by a person whom the licensing authority has reason to believe--

(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or

(2) to be of unsound mind, or

(3) to be for any reason unfit for a licence under this Act; or

(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.

(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement."

In the instant matter, the undisputed points which emerged out that the petitioner on 24.04.2011 has applied for arms license on the ground that he has threat from unsocial elements, so there is danger to his life. However, the said application has been rejected by Licensing Authority/District Magistrate, Chhatrapati Shahuji Mamaraj Nagar vide order dated 24.04.2012 and the findings given by the respondent No. 3 while rejecting the petitioner's application are as under:-

"आवेदक को आयुध अनुज्ञप्ति निर्गत करने के सम्बन्ध में पुलिस अधीक्षक, छत्रपति शाहूजी महराजनगर एवं तहसील से प्राप्त आख्याओं एवं पत्रावली का परिसीलन किया गया | पुलिस अधीक्षक, सी० एस०ऍम० नगर व उपजिलाधिकारी तिलोई छत्रपति शाहूजी महराजनगर द्वारा आवेदक को शास्त्र लाइसेंस हेतु स्पस्ट संस्तुति नहीं की गयी है | आवेदक की आय का साधन कृषि है आवेदक द्वारा अलप बचत में कोई योगदान नहीं किया है न ही कोई प्रशासनिक कार्य में सहयोग किया गया है|"

In addition to abovesaid facts, while rejecting the petitioner's application vide order dated 24.04.2012, Licensing Authority/respondent No. 3 has also held that Superintendent of Police and SDM, have not given any approval/recommendation in respect to grant of license to the petitioner and he has not any given any cogent reasons in his application that under what circumstances there is a threat to his life and life of his family members, so there is no threat perception , as such in view of the provisions of Section 14(1)(khha)(1)(3) of the Arms Act, 1959, the petitioner cannot be granted arms license. The said order was confirmed by the appellate authority vide order dated 21.01.2014.

So, in view of the abovesaid position of law, the argument as raised by learned counsel for petitioner that there is a violation of Articles 14 & 16 of the Constitution of India while rejecting the petitioner's case for arms licence has got no force.

In the present case, the Licensing Authority has rejected the petitioner's arms license on the ground that police authorities as well as administrative authorities of District Chhatrapati Sahuji Maharaj Nagar has not recommended the petitioner'[s case for grant of arms license as well as fact that from the material on record other application moved by the petitioner for grant of arms license, it is not established that there is a threat perception of petitioner's life and life of his family members is a finding given on the basis of material on record.

In respect to grant of arms licenses, the Licensing Authority has vested with the discretion to grant or not to grant a license keeping in view the circumstances of a particular case and if the said authority comes to the conclusion that there is no perception of threat to security of a person and also take into consideration the various reports submitted by the police authority and SDM etc. which are one of the condition in respect to grant of arms license and rejected the petitioner's application, then the said finding should not be interfered while exercising the power of judicial review because the Licensing Authority is the appropriate authority to consider the facts and circumstances under which a license to the petitioner can be granted.

Thus, keeping in view the said facts as well as the facts that this Court while exercising power of judicial review under Article 226 of the Constitution of India does not exercise appellate powers. It is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the decisions. Judicial review is a protection and not a weapon.

In the case of Council of Civil Service Unions (CCSU) V. Minister 11 for the Civil Service (1984) 3 ALL ER 935, Lord Diplock has observed the scope of judicial review in the following words:-

"Judicial Review as I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety".

Moreover, judicial review has certain inherent limitation. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the rules and statute.

In the case of Mohd. Yunus v. Mohd. Mustaqim and Ors., AIR 1984 SC 38 Hon'ble the Apex Court held that there is a very limited scope under Article 226 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 226 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/ Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.

Hon'ble the Supreme Court in the case of Indian Overseas Bank v. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, observed that it is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.

And in the case of Union of India v. Rajendra Prabhu, (2001) 4 SCC 472, it has been held that the High Court in exercise of its extraordinary powers under Article 226 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.

Further, if the decision making body goes outside its power or misconstrues the extent of its power, then the Courts can only interfere, if the decision making body acts in a bad faith or with ulterior object which it is not authorized by law, its decision will be set aside in supervisory jurisdiction. A decision of a public authority will be liable to be quashed or otherwise dealt with by appropriate order in judicial review proceedings, where the Courts concludes that the decision is such that no authority properly directing itself on the relevant law and fact acting reasonably could have reached it.

For the foregoing reasons, I do not find illegality or infirmity in the impugned orders.

Accordingly, the writ petition is dismissed.

Order Date :- 12.05.2017

Ravi/