Patna High Court
Sundram Tiwari @ Sundram Kumar Tiwari vs The State Of Bihar & Ors on 24 May, 2018
Equivalent citations: AIRONLINE 2018 PAT 481
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12514 of 2017
======================================================
Sundram Tiwari @ Sundram Kumar Tiwari son of Late Arvind Kumar Tiwari
resident of Main Road, Truck Syndicate, Golamber, near Ambessador Hotel,
P.S. Buxar (T), District - Buxar.
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2. The District Magistrate, Buxar.
3. The Superintendent of Police, Buxar.
4. The Sub-Divisional Officer, Sub-Division, Buxar, Buxar.
5. The Sub-Divisional Police Officer, Sub-Division, Buxar, Buxar.
6. The Station House Officer, Buxar (T) P.S. Buxar, Buxar.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Pravin Kumar Sinha
For the Respondent/s : Mr. Sheo Shankar Prasad - Sc8
======================================================
CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
Date : 24-05-2018
Heard learned Counsels for the petitioner and the respondent-
State.
The present writ application has been filed for quashing of the
order dated 22.02.2016, passed by Respondent no.2, the District
Magistrate, Buxar, as contained in Annexure-10, whereby, the
petitioner's application for grant of arms licence for DBBL Gun has
been rejected.
The factual matrix of the case is that the father of the petitioner late
Arvind Tiwari was granted licence for DBBL gun vide Licence No. 332
of 1980, as contained in Annexure 1 and the same was being renewed
from time to time. The 12 bore DBBL Gun bearing no. 68106 was
deposited with a gun dealer, namely, M/s Buxar Gun House on
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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25.10.2002 for repair. The father of the petitioner died on 17.11.2005
and consequently, the petitioner filed an application, as contained in
Annexure 4 for grant of licence for DBBL gun on 24.12.2011.
Consequently, the police report was called for and it is learnt by the
petitioner that the police recommended the case of the petitioner. Still,
the application of the petitioner was kept pending for years together and
ultimately, the District Magistrate, Buxar vide order dated 22.2.2016 as
contained in Annexure 10, rejected the claim of the petitioner only on
the ground that the petitioner is not having any threat perception. Hence,
the present writ application.
It is submitted by learned Counsel appearing on behalf of the
petitioner that the parameters for grant of arms licence has been
incorporated in Section 13 of the Arms Act, 1959 (hereinafter referred to
as the Act) and the parameters for refusal of licence are incorporated in
Section 14 of the Act. Section 14 of the Act stipulates that the licensing
authority can refuse to grant licence in respect of any prohibited arms or
prohibited ammunition under Sections 3, 4 or 5 of the Act or if such
licence is required by a person whom the licencing authority has reason
to believe that he is prohibited by this Act or by any other law for the
time being in force from acquiring or having in his possession or
carrying any arms or ammunition or he is of unsound mind, or the
person concerned is found, for any reason, unfit for a licence under the
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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Act or if the licencsing authority deems it necessary to refuse to grant
such licence for the security of the public peace or for public safety.
Section 14 of the Act does not incorporate any condition that the arms
licence can be denied if the person does not have any threat perception.
It is next contended that the rejection of the claim of the petitioner
is against the Heirloom Policy for grant of licence to the heirs of the
licensee. It is further submitted that since the order impugned is
absolutely without jurisdiction and against the various judgments of this
Court, hence, the doctrine of alternative remedy will not act as a bar in
exercising the discretionary writ jurisdiction by this Court.
Learned counsel for the Respondent-State submits that since the
petitioner is not having any threat perception, nor any specific reason
has been given by the petitioner for having arms licence for the
protection of life and property, nor the same has been found during
police enquiry, hence, the application for grant of arms licence has been
rejected. However, it is orally submitted though no such stand has been
taken in the counter affidavit that in view of the directives of the
Ministry of Home, Government of India, the licence is being refused to
such applicants who do not have any threat perception.
Having heard learned counsels for the parties, this Court, prima
facie, is convinced with the submission of learned counsel for the
petitioner that the grant of arms licence to the petitioner has not been
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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refused on the parameters as incorporated under Section 14 of the Act,
hence the doctrine of alternative of remedy of appeal incorporated under
Section 18 of the Act will not apply to the petitioner.
Sections 13 and 14 of the Act stipulate the parameters for grant or
refusal of 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, 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
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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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."
From perusal of the aforesaid provision, it appears that the arms
licence can be refused by the licensing authority in respect of the
prohibited arms and ammunition under Sections 3, 4 or 5 of the Act or if
such licence is required by a person whom the licencing authority has
reason to believe that he is prohibited by this Act or by any other law for
the time being in force from acquiring or having in his possession or
carrying any arms or ammunition or he is of unsound mind, or the
person concerned is found, for any reason, unfit for a licence under the
Act or if the licencsing authority deems it necessary to refuse to grant
such licence for the security of the public peace or for public safety.
Hence, in the present case, the licence has not been refused on any of
the ground incorporated under Section 14 of the Act.
This Court, in the case of Sushil Kumar Singh Vs. The State of
Bihar & Ors., reported in 2015(2) PLJR 549 held that the arms licence
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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can be refused only within the parameters of Section 14 of the Act. Yet,
in the case of Braj Bhushan Sharma Vs. The State of Bihar & Ors.,
reported in 2004(2) PLJR 473, a Division Bench of this Court, while
dealing with the matter of refusal of renewal of licence, held that if the
law provides for certain conditions for refusal of the renewal of the
licence and in case of the same being not fulfilled, then only that ground
can be looked into and no other ground. A Bench of this Court in the
case of Manish Kumar & Ors. Vs. The State of Bihar through the
Commissioner, Patna Division & Ors. and analogous cases, reported in
2015(4) PLJR 212 has held that the non-availability of threat perception
cannot be a ground for refusal of arms licence and grant of arms licence
can only be refused under the parameters under Section 14(1)(b)(i)(ii)
of the Act.
This Court had occasion to come across numerous orders passed by
the licensing authority whereby the arms licence has been refused on the
ground of non-existence of threat perception to the applicant, perhaps on
the basis of various directives issued by the Ministry of Home Affairs
dated 6th April, 2010 transmitted vide letter no. V-11016/16/2009-Arms
to the Secretary (Home Department), All States/Uts wherein Clause (ii)
stipulates for grant of Arms License for Non-Prohibited Bore weapons.
Sub-clause(a) of Clause (ii) stipulates that the applications for grant of
NPB arms licences may be considered from persons, who may face or
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
7/18
perceive grave and imminent threat to their lives. Clause (ii) reads as
follows:
"ii) Grant of Arms License for Non-Prohibited Bore
(NPB) weapons
The arms licences for acquisition of NPB weapons are
considered by the State Government/DM concerned. At
present, there are no norms for grant of NPB weapons and
some State Govts. may be issuing arms licences liberally. It
has been decided that:
(a) Applications for grant of NPB arms licences may
be considered from persons, who may face or perceive
grave and imminent threat to their lives, for which the
licensing authority will obtain an assessment of the threat
faced by the persons from the police authorities.
(b) No licence may be granted without police
verification, which will include report on (i) antecedents of
the applicant, (ii) assessment of the threat, (iii) capability of
the applicant to handle arms, and (iv) any other information
which the police authority might consider relevant for the
grant or refusal of licence. Steps are being taken to delete
the proviso to Sec. 13(2A) of the Arms Act, 1959.
(c) The police authorities may be advised to send the
police report within 45 days positively failing which the
concerned police officials may be liable for action.
(d) The licensing authority may call for any
information / documents such as voter ID card, ration card
or any other document which it may consider necessary to
verify the bonafides of the applicant and to ensure that the
applicant resides within its jurisdiction.
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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(e) The licensing authority shall be obliged to take
into account the report of police authorities called for under
Section 13 (2) before granting arms licences and no arms
license may be issued without police verification."
It appears that pursuant to the said directive, the licensing
authorities are refusing the licence to all such persons who do not have
any threat perception. This is not only contrary to the provisions of the
Act and the Rules, but also contrary to the whole scheme of the Act. It is
true that no person can have arms without a valid licence but similarly,
no person can be denied arms licence if he comes within the parameters
laid down by the Act and Rules. The above directive, as it suggests, was
only to give preference to such persons who have the threat perception.
It appears that the legislature, visualizing the confusion with regard to
the said directive, has stipulated the provision of giving preference to
specified categories of the applicant under Rule 12 of the Arms Rules
2016 (hereinafter referred to as Rules, 2016) which reads as follows:
"12. Obligations of licensing authority in certain
cases.- (1) Save as otherwise provided in the Act, every
licensing authority granting a licence in Form III to an
individual for the restricted or permissible arms or
ammunition as specified in category I(b) and I(c) or
category III respectively in Schedule I, shall have due
regard to the application of norms specified in sub-rules (2)
and (3).
(2) For grant of a licence for the restricted arms or
ammunition specified in category I(b) and I(c) in Schedule
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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I, the licensing authority, may consider the application of-
(a) any person who faces grave and anticipated threat
to his life by reason of-
(i) being resident of a geographical area or areas
where militants, terrorists or extremists are most active; or
(ii) being the prime target in the eyes of militants,
terrorists or extremists; or
(iii) facing danger to his life for being inimical to the
aims and objectives of the militants, terrorists or extremists;
or
(b) any Government official who by virtue of the
office occupied by him or by the nature of duty performed
by him and/or in due discharge of his official duty is
exposed to anticipated risk to his life; or
(c) any Member of Parliament or Member of
Legislative Assembly, who by virtue of having close or
active association with anti-militant, anti-terrorist or anti-
extremist programmes and policies of the Government or
by mere reason of holding views, political or otherwise,
exposed himself to anticipated risk to his life; or
(d) any family member or kith and kin of a person
who by the very nature of his duty or performance (past or
present) or position occupied in the Government (past of
present) or even otherwise for known or unknown reasons
exposed himself to anticipated risk to his life; or
(e) any other person, for any legitimate and genuine
reason, to the satisfaction of the licensing authority, by
passing of a speaking order in this regard:
Provided that before grant of a licence under this sub-
rule, the licensing authority based on the recommendations
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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of the district magistrate and of the State Government
concerned and on examination of the police report and after
conducting a separate verification from its own source,
shall satisfy itself that the applicant requires such licence.
(3) For grant of a licence for the permissible arms or
ammunition specified in category III in Schedule I, and
without prejudice to the provisions contained in clause (a)
of sub-section (3) of section 13, the licensing authority,
based on the police report and on his own assessment, may
consider the applications of-
(a) any person who by the very nature of his business,
profession, job or otherwise has genuine requirement to
protect his life and/or property, or
(b) any dedicated sports person being active member
for the last two years, of a shooting club or a rifle
association, licensed under these rules and who wants to
pursue sport shooting for target practice in a structured
learning process; or
(c) any person in service or having served in the
Defence Forces, Central Armed Police Forces or the State
Police Force and has genuine requirement to protect his life
and/or property."
The above provision under Rule 12 of Rules, 2016 also suggests
that preference has to be given to the persons who are having threat to
their life or property, but that does not mean that a person having no
threat perception will not get licence.
The petitioner applied for grant of licence since his father was a
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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licensee. To grant licence to the heirs of the licensee within the
prescribed parameters is more in the nature of transfer if the heir of the
licensee is otherwise eligible. Since there was unnecessary delay in
grant of licence to the heirs of licensee, the Ministry of Home,
Government of India by the above mentioned directive in Clause (iii)
laid down the parameters for grant of licence to the heirs of the licensee
either on his death or the licensee has attained the age of 70 years or
having held the licence for 25 years or more. The scope of legal heir has
been extended to the son-in-law, daughter-in-law, brother and sister of
the licensee. Clause (iii) reads as follows:
"iii)Grant of Licences under family heirloom
Attention is invited to the instructions contained in
MHA's letter No. V-11019/23/95-Arms dated 28-02-
1985 regarding grants of licences to the legal heir of
existing licensee, after the death of the licensee or
the licensee has attained the age of 70 years or had
held the weapon for 25 years or more. Normally, the
scope of legal heirs is extended to husband, wife, son
& daughter. It has been decided to extend the scope
of legal heir ship of the son-in-law, daughter-in-law,
brother and sister of the existing licensee.
Accordingly, the applications for transfer of weapons
from the said categories or relatives of the licensee
may also be considered subject to other conditions
stipulated in the said letter."
Patna High Court CWJC No.12514 of 2017 dt.24-05-2018
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Based on the directives of the Ministry of Home Affairs,
Government of India, the Principal Secretary, Home (Police)
Department, Government of Bihar vide Memo No. 7 dated 13 th October,
2014 issued a directive for expediting the grant of licence to all the
District Magistrates and copy to all the Divisional Commissioners and
Superintendents of Police. The said directive reads as follows:
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It appears that there was no such provision in Arms Rules, 1962, hence, the legislature thought it proper to incorporate the parameters for grant of arms licence to the legal heirs of the licensee in Rule 25 of Rules, 2016. Rule 25 reads as follows:
"25. Grant of licences to legal heirs.─ (1) The licensing authority may grant a licence ─
(a) after the death of the licensee, to his legal heir; or
(b) in any other case, on the licensee attaining the age of seventy years or on holding the firearm for twentyfive years, whichever is earlier, to any legal heir nominated by him:
Provided that notwithstanding the Patna High Court CWJC No.12514 of 2017 dt.24-05-2018 14/18 provisions contained in rule 12 of these rules, the licensing authority may grant a licence to such legal heir if the eligibility conditions under the Act and these rules are fulfilled by the said legal heir and there are no adverse remarks in the police report.
(2) Where a licensee leaves behind more than one legal heir and the legal heirs decide amongst themselves to retain the arm or arms of the deceased, one of the legal heirs nominated by all other legal heirs may apply for a licence under sub-rule (1) along with the following documents, namely:-
(i) a declaration of no-objection from the remaining legal heirs;
(ii) an indemnity bond executed by the applicant giving full details of the licence and the arm or arms endorsed thereupon; and
(iii) a copy of the death certificate of the deceased licensee.
(3) Where the legal heirs decide to dispose of the arm or arms endorsed on the licence of the deceased licensee, they may apply to the licensing authority for grant of a limited period permission to sell the arm or arms, within the time allowed by such authority, to any licensed dealer or to any other person entitled to possess an arm under these rules.
Explanation. ─ For the purposes of this rule, 'legal heir' includes husband, wife, son, daughter, son-in-law, daughter-in-law, brother, sister and grandchildren of the licensee or the deceased licensee."
The above parameters suggest that preference has to be given in grant of licence to the heirs of licensee and it is more in the nature of transfer of licence. Hence, if the heir is otherwise eligible for grant of licence, and the original licensee has held the licence for more than two Patna High Court CWJC No.12514 of 2017 dt.24-05-2018 15/18 decades, there is no reason for rejecting the grant of licence to the petitioner on the ground of not having threat perception. Yet the issuance of licence are being rejected on such grounds little appreciating the directives of the Government of India and the State Government as well as the provisions under the Rules, 2016.
It is well settled legal principle that when a statute provides for a particular procedure, for doing a thing in a particular manner, then it has to be done in that particular manner and not in any other manner at all. The aforesaid legal proposition is based on the legal maxim "Expressio unius est exclusio alterius"
In this regard, a useful reference may be made to the case of Selvi J. Jayalalithaa Vs. State of Karnataka & Ors., (2014) 1 PLJR (SC) 531. Paragraph no. 29 of the judgment reads as :
"29. We find force in the submissions advanced by the learned Attorney General that this Court generally should not pass any order in exercise of its extraordinary power under Article 142 of the Constitution to do complete justice if such order violates any statutory provisions. We do not intend to say that it would be illegal to extend the term of the Special Judge, but that it is a matter within the jurisdiction of the State in accordance with the relevant law.
There is yet an uncontroverted legal principle that when the statute provides for a Patna High Court CWJC No.12514 of 2017 dt.24-05-2018 16/18 particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all, are impliedly and necessarily forbidden. The aforesaid settle legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course in not permissible.
In State of Uttar Pradesh vs. Singhara Singh & Ors., AIR 1964 SC 358, this court held as under:-
"8. The rule adopted in Taylor vs. Taylor, (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted." [See also: Accountant General, State of Madhya Pradesh vs. S.K. Dubey & Anr.*, (2012)4 SCC 578]"
However, under Rule 13 of Rules, 2016, time frame has been fixed Patna High Court CWJC No.12514 of 2017 dt.24-05-2018 17/18 for taking decision on the application for grant of arms licence. Rule 13 reads as follows:
"13. The time limit for grant of licence.- The licensing authority, after consideration the application and on being satisfied that the applicant has fulfilled the eligibility conditions, shall grant or refuse to grant a licence for permissible category of arms or ammunition satisfied in category III of Schedule I, to any person by recording in writing the reasons for such grant or refusal by passing a speaking order, within a period of sixty days of the receipt of the police report.
Provided that the licensing authority shall specify, the type of arms and ammunition to be procured by the applicant after assessing the reason and the need for possession of the type of arms and ammunition applied for by the applicant, considering the lethality or fire-power."
In view of the discussions made above, the order dated 22.02.2016, passed by Respondent no.2, the District Magistrate, Buxar, as contained in Annexure-10, in Arms Licence Case No.70 of 2012, is hereby set aside. The licensing authority Respondent no.2, the District Magistrate, Buxar is expected to re-consider the prayer of the petitioner for grant of arms licence in the light of above discussions and preferably dispose of such application within a period of eight weeks from the date of Patna High Court CWJC No.12514 of 2017 dt.24-05-2018 18/18 receipt/production of a copy of this order within the parameters of provisions of the Act.
Accordingly, with the above observation and direction, the present Writ application is allowed.
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