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Ram Khelawan Misra Vs. State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 4670 of 1979
Judge
Reported inAIR1982All283
ActsArms Act, 1959 - Sections 13, 13(3), 14 and 14(1)
AppellantRam Khelawan Misra
RespondentState of U.P. and anr.
Appellant AdvocateR.K. Dwivedi, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....has a good reason for obtaining the rifle. he was, therefore, required to show a good reason for obtaining the same. 8. it is true that in section 13(3)(b) of the act there is a provision that the licensing authority is to be satisfied that the person by whom the licence is required has a good reason for obtaining the same. the licensing authority is empowered under the act to issue a rifle licence in case he is satisfied that the applicant has a good reason for obtaining the licence for a rifle. what would happen if he is not satisfied about the existence of a good reason ? section 14 of the act should have provided in such a case for the refusal of the licence if the licensing authority was satisfied that the person by whom the licence was required did noi have a good reason for..........was based on the circumstances that the applicant did not have any justifiable need to get a rifle licence, but then lack of a genuine need does not come under any of the clauses of section 14 of the act. if the person was unfit to hold a licence for a rifle, this should have been mentioned. if it was deemed that a licence could not be given to him, for it would endanger public peace or public safety, such an application could be refused. there is no indication in the order that the petitioner was prohibited under the act or any other law for the time being in force from having in his possession a rifle. in view of the above, the refusal of the licence to the petitioner on a ground which does not form part of section 14 of the act does not seem to be in accordance with law. 8. it.....
Judgment:
ORDER

A. Banerji, J.

1. This writ petition has been filed by the petitioner Ram Khelawan Misra, a resident of village Samgara Tahsil and Police Station Baberu district Banda, against the orders passed by the District Magistrate, Banda, dated 12th Jan. 1979 and the Commissioner, Jhansi Division, jhansi, dated 30th Mar. 1979 refusing to grant a licence for a rifle to the petitioner. The petitioner has challenged the order passed by the District Magistrate on the ground that the order is not in accordance with law and the reason given by the District Magistrate that the need of the applicant is not genuine is not a valid ground for refusing the licence. The order of the Commissioner in appeal has also been challenged on the same ground.

2. A counter affidavit has been filed on behalf of the respondents in which ii was stated that the impugned order was passed after carefully going through the record and after hearing the learned counsel for the petitioner and keeping in view all facts and circumstances of the case. In the rejoinder affidavit, it has been re-asserted that the need of the petitioner was genuine, as the rifle was required for the protection of his life and property.

3. I have heard the learned counsel for the petitioner and the Standing Counsel and perused the material on the record.

4. A person wanting to possess a fire-arm must obtain a licence for the same. He has to apply for the licence to the licensing authority for the grant of a licence in the prescribed form. Section 13(2) of the Arms Act, 1959 makes it clear that on receipt of an application the licensing authority after making such enquiry as may be necessary and subject to the provisions of Chap. III may grant or refuse to grant the licence. It is incumbent that the order is passed in writing. Subject to the above, the licensing authority is required to issue a licence under Section 3 of the Arms Act, 1959, hereinafter referred to as the Act, where the licence is required by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection, or in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government. He is also required to issue a licence in respect of a fire arm other than the above if the licensing authority is satisfied that the person by whom the licence is required has good reason for obtaining the same. Section 13(2) of the Act speaks of smooth bore gun and a muzzle loading gun and point 22 bore rifle or an air rifle. It does not speak of a rifle. A rifle is not a smooth bore gun. Therefore, in respect of a rifle or for that matter any of the arms which comes under the provisions of Section 4 or a licence for the manufacture, sale, etc. of arms and ammunition as mentioned in Section 5 or a licence for the shortening of guns or conversion of imitation firearms into firearms mentioned in Section 6 or a licence for import or export of arms or for transporting of arms, the licensing authority has to be satisfied that the person asking for the licence has a good reason for obtaining the same. It is obvious from the above that the grant of a licence in the case of a smooth bore gun stands on a different footing than that of a rifle. In the case of a smooth bore gun all that a person has to satisfy the licensing authority is that it is required for protection or sport. In the case of a rifle the applicant has to satisfy the licensing authority that he has a good reason for obtaining the rifle.

5. In the present case, the petitioner has asked for a licence for a rifle. He was, therefore, required to show a good reason for obtaining the same. Section 14 of the Act lays down the grounds for refusal of the licence. Section 14 of the Act reads 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, 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 Chap. II,--

(1) 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.'

Sub-section (3) of Section 14 of the Act makes it clear that when the licensing authority refuses to grant a licence to any person, he has to record reasons for such refusal. The refusal will therefore have to be based on one of the grounds of Section 14(1) i. e. in Clauses (a), (b), (i), (1), (2), (3), (ii). The reasons for refusal must, therefore, be under one of the clauses of Section 14 of the Act. Where the reason given does not come under any of the clauses of Section 14(1) of the Act, the order would not be one under Section 14(1) of the Act and would therefore be unsustainable,

6. In the present case, the District Magistrate has in his order stated that the S. D. M. and the Superintendent of Police have written 'No objection' on the application of the petitioner. But that was not a recommendation for the grant of a licence. He has ultimately observed that the need of the applicant was not genuine. It would, therefore, be seen that the order passed by the District Magistrate does not come under any of the clauses of Section 14 of the Act. The expression to be for any reason unfit for a licence under the Act is not synonymous with the applicant not having genuine need. Section 14 of the Act prohibits the grant of a licence where the person is under some disability, or is of unsound mind or where he is such type of person who may endanger the public peace or public safety. The plea that the petitioner does not have a genuine need cannot be equated with any of the clauses under Section 14 of the Act. There is no provision in Section 14 of the Act to refuse a licence if the need of the applicant is not genuine. A Division Bench of this Court in the case of Ram Shanker v. State of U. P. (1980 (6) All LR 538) has laid down that the absence of genuineness of the need is not a ground for refusing a licence under Section 14 of the Act. Lack of genuineness of the need is therefore not one of the grounds for refusing a licence.

7. The Commissioner has observed that he did not find any justifiable ground to interfere with the District Magistrate's order. In his opinion, the ground given by the District Magistrate that the applicant's need was not genuine was based on the circumstances that the applicant did not have any justifiable need to get a rifle licence, but then lack of a genuine need does not come under any of the clauses of Section 14 of the Act. If the person was unfit to hold a licence for a rifle, this should have been mentioned. If it was deemed that a licence could not be given to him, for it would endanger public peace or public safety, such an application could be refused. There is no indication in the order that the petitioner was prohibited under the Act or any other law for the time being in force from having in his possession a rifle. In view of the above, the refusal of the licence to the petitioner on a ground which does not form part of Section 14 of the Act does not seem to be in accordance with law.

8. It is true that in Section 13(3)(b) of the Act there is a provision that the licensing authority is to be satisfied that the person by whom the licence is required has a good reason for obtaining the same. However, there is no provision in Section 14 of the Act for refusing a licence on this ground. The licensing authority is empowered under the Act to issue a rifle licence in case he is satisfied that the applicant has a good reason for obtaining the licence for a rifle. What would happen if he is not satisfied about the existence of a good reason Section 14 of the Act should have provided in such a case for the refusal of the licence if the licensing authority was satisfied that the person by whom the licence was required did noi have a good reason for obtaining the same, but there is no such provision in Section 14 of the Act. In the absence of such a provision in Section 14 of the Act, the provision of Section 13(3)(b) cannot be a ground for refusing a licence.

9. Section 14 of the Act commences with a non obstante clause (notwithstanding anything in Section 13) and then lays down the grounds for refusing to grant the licence. Since the grant of a licence can be refused only under the provisions of Section 14 and its sub-clauses I do not find any provision which permits the licensing authority to refuse the grant of a licence on the ground that the applicant did not establish a genuine need.

10. In view of the above, the orders passed by the District Magistrate and the Commissioner in appeal must be set aside and the case sent back to the District Magistrate for a fresh consideration of the petitioner's application for the grant of a licence for a rifle. The District Magistrate will be free to make necessary enquiry and dispose of the application in accordance with law.

11. In the result, therefore, the writ petition is allowed. The orders passed by the Commissioner dated 30th Mar. 1979 and that of the District Magistrate dated 12th Jan. 1979 are quashed and the case is sent back to the District Magistrate, Banda for deciding the matter afresh in accordance with law. There will be no order as to costs.


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