Allahabad High Court
Rameshwar Singh @ Nanhu Singh vs State Of U.P. Through Secretary (Home) ... on 23 October, 2007
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri R.S. Chauhan, learned Counsel for the petitioner and Sri D.K. Tripathi, learned standing counsel appearing for the respondents.
2. By this writ petition, the petitioner has prayed for quashing the order dated 20th July, 2007 passed by the District Magistrate cancelling the arm licence of the petitioner.
3. The petitioner was granted an arm licence of rifle being Licence No. 143 of 1987 by the licensing authority of district Panna (Madhya Pradesh). A notice was issued by the District Magistrate, Hamirpur asking the petitioner to show cause as to why the licence of the petitioner be not cancelled. The petitioner submitted reply to the said notice. The District Magistrate by the impugned order dated 20th July, 2007 cancelled the arm licence. The District Magistrate in the order stated that against the petitioner Case Crime No.46 of 1986, under Sections 147, 452, 376 and 323 of I.P.C., Case Crime No.138 of 1989, under Sections 147, 148, 149, 352 and 302 of I.P.C., Case Crime No. 49A of 1989, under Sections 147, 148, 149 and 307 of I.P.C. were registered. A supplementary show cause notice dated 26th April, 2007 was also given to the petitioner that Case Crime No. Nil of 2007, under Sections 197, 198, 200, 420, 408 and 471 of I.P.C. has been registered at Police Station Khanna, district Hamirpur against the petitioner, The District Magistrate cancelled the arm licence of the petitioner by the impugned order. The District Magistrate in the order held that for obtaining the arm licence from District Magistrate, Panna (Madhya Pradesh) the petitioner did not disclose that he is original resident of village Atghar, district Hamirpur but by concealing the criminal history he Obtained the arm licence. The District Magistrate further held that petitioner has submitted documents to show that he is resident of district Panna (Madhya Pradesh) but from the documents he has failed to prove that he is resident of village Itwakhas, district Panna (Madhya Pradesh).
4. Learned Counsel for the petitioner submits that District Magistrate, Hamirpur has no jurisdiction to cancel the arm licence of the petitioner. He submits that arm licence was granted by the licensing authority at district Panna (Madhya Pradesh) and it was the licensing authority who had granted the licence alone had jurisdiction to cancel the arm licence and the District Magistrate, Hamirpur has no jurisdiction to cancel the arm licence of the petitioner. Learned Counsel for the petitioner further submits that petitioner's arm licence has also been renewed from time to time at Madhya Pradesh. Learned Counsel for the petitioner submits that petitioner has property at village Atghar district Mahoba, Uttar Pradesh, hence the District Magistrate Hamirpur has no jurisdiction to cancel the arm licence. Learned Counsel for the petitioner has placed reliance on judgments of this Court reported in 2006(62) ALR 454 Takdeer Singh v. Commissioner, Jhansi Division, Jhansi and Ors. 2002(2) AWC 945 Habib v. State of U.P. and Ors. and 2002(2) AWC 1080 Virendra Singh v. Station Officer, P.S., Kabrai and Ors.
5. Learned standing counsel refuting the submissions of learned Counsel for the petitioner, contended that power to cancel the licence is not confined to District Magistrate who granted the arm licence but the said power can be exercised by the District Magistrate of any district, which is under the area of operation of the arm licence. Learned Counsel for the petitioner has placed reliance on judgments of this Court reported in 1982 All. L.J. 1232 Bhishm Deo v. The Commissioner, Jhansi Division, Jhansi and Anr. and 1975 Crl.L.J. 896 Raghuraj Singh v. the District Magistrate, Fatehpur and Ors.
I have considered the submissions and perused the record.
6. The writ petition has been filed against the order of the District Magistrate cancelling the arm licence passed under Section 17(3) of the Arms Act, 1959. Under Section 18 of the Arms Act, the petitioner has remedy of appeal before the Commissioner. Learned Counsel for the petitioner submitted that in the present case the petitioner need not be relegated to remedy of appeal since the order of the District Magistrate is without jurisdiction. It is true that alternate remedy provided in a statute is not a bar for entertainability of the writ petition by this Court under Article 226 of the Constitution of India, although normal rule is that where there is a statutory remedy, this Court does not exercise its jurisdiction by entertaining the writ petition. Rule of exhausting statutory remedy is subject to well known exceptions, one of the exception being that if the order is without jurisdiction this Court can entertain the writ petition without exhausting the statutory remedy; In view of the above I proceed to examine the contention of the petitioner as to whether the order of the District Magistrate, Hamirpur is without jurisdiction.
7. Section 17 of the Arms Act provides variation, suspension and revocation of licences by the licensing authority. The "licensing authority" has beer defined in Section 2(f), which is to the following effect:
(f). 'licensing authority' means an Officer or authority empowered to grant or renew licences under rules made under this Act, and includes the Government;
8. In view of the definition, the "licensing authority" means an officer empowered to grant or renew the licence under the rules. Thus an authority empowered to grant as well as renew the licence can be said to be licensing authority. The power of renewing the arm licence is provided in Section 15 of the Act. Rule 4 of the Arms Rules, 1962 provides for granting and renewing the arm licence by such authorities as specified in Schedule II. Schedule II of the Rules provides for licensing authority and renewing authority. In the present case the arm licence of the petitioner has been granted for the area Madhya Pradesh and the Uttar Pradesh, which is clear from Annexure-2 to the writ petition, which is a duplicate copy of the licence. Schedule II, Item No. 2, which is relevant in this context, is quoted below:
_____________________________________________________________________________________________ Item Purpose Categories Place/ Licensing Area for Renewing Form C No. of arms/ Class of Authority which Authority No. o ammunition persons licences n as defined can be di in Schedule granted ti o n.
_____________________________________________________________________________________________ 1 2 3 4 5 6 7 8 9 _____________________________________________________________________________________________
- - - - - - - - -
_____________________________________________________________________________________________ 1 Acquisition/ III(b), III(c), District District Throughout District II -
and III(d), V, VI or any Magistrate the district Magistrate
Possession specified or his area
only area. or
Jurisdiction
or any
Specified
part of his
jurisdiction
_____________________________________________________________________________________________
9. The District Magistrate is mentioned as licensing authority or renewing authority. The question is as to whether the licensing authority has to be read as the same District Magistrate, who has granted the licence or any other District Magistrate in the area of operation of the arm licence has power to cancel the arm licence. The above issue was considered in detail by a learned Single Judge of this Court in Bhishm Deo's case (supra). In the said case the question was as to whether the District Magistrate, who issued the arm licence is licensing authority and had power to revoke the licence or every District Magistrate in the district of the State is licensing authority. After considering the provisions of the Arms Act including Section 2(f) and Section 17, following was laid down in paragraph 9:
9. ...Great emphasis was laid on the use of the article 'the' in Sub-section (3) of Section 17 before the words 'licensing authority'. By this it was urged that it ought to be the licensing authority who had granted the licence. It appears to me that no such emphasis can be laid on this article 'the' before the words licensing authority' in Sub-section (3) of Section 17 for the reason that the article 'the' had to be used in a grammatical sense at the commencement of this section. If the intention of the legislature was that the power to revoke vested only in the licensing authority who had granted the licence originally the legislature would have made it clear by saying "The licensing authority who had granted the licence may revoke the licence." It is not permissible to interpret statutory provisions by reading words or phrases which are not there. One of the canons of the interpretation of the statutes is that it has to be seen as it and the question of harmonious construction does not arise unless there is some contradictory indication. In the present case it has been seen that every District Magistrate throughout the Indian Union is a licensing authority under Section 17(3) is empowered to revoke a licence. If his powers were restricted to those cases there he had granted the licence as District Magistrate the statute would have made a provision or restricted or curtailed his powers accordingly. There is nothing in the Act which would indicate that the power to revoke lay only in the licensing authority who had originally issued or granted the licence.
10. The similar view has been taken in Raghuraj Singh's case (supra). Following was laid down in paragraph 2 of the said judgment:
2. The principal ground of challenge is that the licence having been issued by the District Magistrate, Kanpur, the District Magistrate, Fatehpur had no jurisdiction to suspend it. According to the learned Counsel, the licence could be suspended only by the District Magistrate, Kanpur. I see no merit in this contention. Under Section 17 of the Arms Act power has been given to the Licensing Authority to suspend or revoke a licence, if he thinks fit necessary for the public safety. The Licensing Authority has been defined in Section 2(f) to mean an officer or authority competent to grant or renew licence under the rules framed under this Act and includes the Government. Every Dist. Magistrate under the Rules has the power to grant or renew a licence. Thus every Dist. Magistrate is a Licensing Authority for the purposes of Section 17 of the Arms Act. District Magistrate, Fatehpur was, therefore, a Licensing Authority competent to suspend or revoke the petitioner's licence even if the licence had been issued by the District Magistrate, Kanpur. It has to be borne in mind that the Arms Act is\an All India Act and the Licence issued to the petitioner was valid for the whole of the Indian Territory. It could not be the intention of the Legislature that a person carrying arm under a licence granted by a particular Licensing Authority was immune from any action under Section 17 of the Act at any other place where he might choose to reside.
11. In case the argument of the petitioner is accepted that it is only the District Magistrate who had granted the licence can suspend or revoke the licence, the power to suspend or revoke the licence in case of urgency cannot be exercised. The area in which licence is granted is the State of U.P. and the State of Madhya Pradesh in the present case. In Lease the argument is accepted then it is the District Magistrate, Panna (Madhya Pradesh) who can exercise the power, other licensing authorities situate in whole of the State of U.P. and State of M.P. are denuded of their power and in every case where there is ground for suspension or revocation they have to necessarily refer the matter to the District Magistrate from where the licence has been granted. The power of (suspension of the arm licence may be necessary to be exercised to achieve an object. In case the submission is accepted that it is only the District Magistrate, Panna (Madhya Pradesh) who can suspend the licence, the power given under Section 17 of the Arms Act cannot be effectively exercised. The power has been given to the licensing authority with an object and purpose. Nothing can be read in the provisions of the Arms Act and the Arms Rules, which may restrict the power of revocation or suspension in the same authority who has granted the arm licence.
12. There is one more reason, which makes the above submission not acceptable. In Schedule-II, there are cases where the licence can be granted by the authority other than the District Magistrate and the power has been given to the District Magistrate to renew the licence. The said can be demonstrated by giving reference to Item No.3 of Schedule II where the Central Government in the Ministry of Home Affairs is the licensing authority for the whole of India with regard to categories (a), 1(b), 1(c) of arms/ammunition in as defined in Schedule I and the District Magistrate has been provided as renewing authority. Thus in each case Central Government has not to be approached in case of suspension or revocation of the licence. The District Magistrate who is renewing authority can always exercise the power of the licensing authority. Item No.3 of Schedule II is quoted below:
_____________________________________________________________________________________________ Item Purpose Categories Place/ Licensing Area for Renewing Form C No. of arms/ Class of Authority which Authority No. o ammunition persons licences n as defined can be di in Schedule granted ti I o n.
_____________________________________________________________________________________________ 1 2 3 4 5 6 7 8 9 _____________________________________________________________________________________________
- - - - - - - - -
_____________________________________________________________________________________________ 1 Acquisition/ (a), 1(b), (1c) Whole of Central Whole of District III _ possession India Govt in India or any Magistrate /carrying the specified and use for Ministry of part protection/ Home thereof.
sport/target Affairs
practice/
display
(b) 1(d) III, (i)district District Throughout District III/IV -
V, VI Magistrate, the district Magistrate
or his area
of
jurisdiction
or any
specified
part of his
jurisdiction
(ii) State District Whole of District III/IV -
Magistrate the State or Magistrate
any
Specified
part thereof
(iii) Whole State Whole of District III/IV -
of India Govt. India or any Magistrate
specified
part thereof
_____________________________________________________________________________________________
- - - - - - - - -
_____________________________________________________________________________________________
13. Learned Counsel for the petitioner further contended that the District Magistrate, Hamirpur had no jurisdiction to cancel the licence since the petitioner has property in district Mahoba and being the resident of district Panna and no offence was committed in district Hamirpur. It is suffice to mention that in the impugned order the District Magistrate has referred to Case Crime Nil of 2007, under Sections 197, 198, 200, 420, 468 and 471 of I.P.C. and allegations in the order was that petitioner although was resident of village Atghar, district Hamirpur but he obtained the licence concealing the aforesaid fact from district Panna (Madhya Pradesh).
14. With regard to the submission of the petitioner that his properties are at district Mahoba, it is also relevant to note that village Atghar was in district Hamirpur till a new district Mahoba was created subsequent to grant of licence to the petitioner. At the time of grant of arm licence to the petitioner, the petitioner's property was in district Hamirpur.
15. In view of the foregoing discussions, the submission of the petitioner that District Magistrate, Hamirpur has no jurisdiction to cancel the licence of the petitioner cannot be accepted. The order passed by the District Magistrate, Hamirpur being within the jurisdiction of the District Magistrate, Hamirpur, the submission that order being without jurisdiction the petitioner cannot be relegated to remedy of appeal cannot be accepted. The petitioner has statutory remedy of filing an appeal under Section 18 of the Arms Act. It is open for the petitioner to file an appeal and make all his submissions on merits of the case. This Court in Raghuraj Singh's case (supra) after rejecting the argument of jurisdiction of the District Magistrate observed that remedy of appeal be invoked. Following was observed in paragraph 4 of the judgment:
4. This petition must fail on a further reason. The petitioner had an alternative remedy by way of appeal to the Commissioner under Section 18 of the Act. In my opinion, the remedy by way of appeal is an effective remedy and the petitioner cannot be allowed to invoke the extra-ordinary jurisdiction under Article 226 of the Constitution without first exhausting the remedy available to him under the Statute itself.
16. The further submission of the petitioner that petitioner having acquitted, it was not a case for cancellation of licence and the cancellation cannot be made on the ground of involvement; all these submissions are submissions on merits of the case. The petitioner may seek his remedy of appeal and raise all his submissions on merits before the appellate authority. The petitioner having not yet filed an appeal nor the appellate authority having occasion to consider the submissions, it is appropriate that petitioner may first seek his remedy of appeal and raise all his grounds and submissions. It is not necessary to consider the judgments relied by counsel for the petitioner in support of his submissions on merits of his case in this judgment. It will be open for the petitioner to raise all his submissions and contentions before the appellate authority in case an appeal is filed under Section 18 of the Arms Act.
17. In view of the foregoing discussions, it is held that order of the District Magistrate, Hamirpur is an order passed within the jurisdiction and the District Magistrate, Hamirpur had jurisdiction to invoke the power under Section 17(3) of the Arms Act. The order having been passed by an authority having jurisdiction, the petitioner may avail his right of appeal. Subject to above observation, the writ petition is dismissed.