# Awadhesh Kumar Pandey v. Commissioner, Lucknow and another

- **Citation:** (2010) 3 ILRA 1046
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-10-01
- **Case number:** Misc. Single No. 2264 of 2007
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-kumar-pandey-v-commissioner-lucknow-and-another-41722
- **Pages:** 5

## Headnote

Arms Act 195, Section 17-Cancellation of
license of non Prohibited fire Arms-on
pertext of Public interest-nowhere such
ground provided in statutory provision,-
even appeal rejected by no speaking
order-held
illegal
arbitrary-right
to
possess fire Arm with right to life
protection under Art 21 of constitutioncan not denied on filing ground.

Held: Para 18

A notice may be taken of the fact that for
any reason whatsoever, the crime rate is
rising day by day. The Government is not
in a position to provide security to each
and every person individually. Right to
possess arms is statutory right but right
to life and liberty is a fundamental right
guaranteed
by
Article
21
of
the
Constitution of India. Corollary to it, it is
citizen's right to possess fire arms for
their personal safety and to save their
family from miscreants. It is often said
that ordinarily in a civilized society, only
civilized persons require arms licence for
their safety and security and not the
criminals.
Of
course,
in
case
the
Government feels that arms licences are
abused for oblique motive or criminal
activities, then appropriate measures
may be adopted to check such malpractice. But arms licence should not be
suspended
in
a
routine
manner
mechanically,
without
application
of
mind and keeping in view the letter and
spirit of Section 17 of the Arms Act.

## Text

1046 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
from
service;
the
order
of
the
Commissioner,
Varanasi
Division,
Varanasi dated 19.8.2002 allowing the
appeal and the order of the learned Single
Judge dated 30.9.2008 dismissing the writ
petition. The petitioner was to retire in the
year 2003. He shall be treated to be in
service till the date of his retirement and
shall be paid the entire arrears of salary
upto date of his retirement and the entire
retiral benefits to be calculated, and paid to
him within four months from the date a
certified copy of the order is produced in
the office of District Magistrate, Jaunpur.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2010

BEFORE
THE HON'BLE ANIL KUMAR, J.

Misc. Single No. 2264 of 2007

Awadhesh Kumar Pandey
 ...Petitioner
Versus
Commissioner, Lucknow and another

 ...Respondent

Counsel for the Petitioner:
Vivek Manishi Shukla

Counsel for the Respondent:
C.S.C.

Arms Act 195, Section 17-Cancellation of
license of non Prohibited fire Arms-on
pertext of Public interest-nowhere such
ground provided in statutory provision,-
even appeal rejected by no speaking
order-held
illegal
arbitrary-right
to
possess fire Arm with right to life
protection under Art 21 of constitutioncan not denied on filing ground.

Held: Para 18

A notice may be taken of the fact that for
any reason whatsoever, the crime rate is
rising day by day. The Government is not
in a position to provide security to each
and every person individually. Right to
possess arms is statutory right but right
to life and liberty is a fundamental right
guaranteed
by
Article
21
of
the
Constitution of India. Corollary to it, it is
citizen's right to possess fire arms for
their personal safety and to save their
family from miscreants. It is often said
that ordinarily in a civilized society, only
civilized persons require arms licence for
their safety and security and not the
criminals.
Of
course,
in
case
the
Government feels that arms licences are
abused for oblique motive or criminal
activities, then appropriate measures
may be adopted to check such malpractice. But arms licence should not be
suspended
in
a
routine
manner
mechanically,
without
application
of
mind and keeping in view the letter and
spirit of Section 17 of the Arms Act.

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Sri Vivek Manishi Shukla,
learned counsel for the petitioner and
learned Standing Counsel.

2. By means of present writ petition,
the impugned orders dated 21.12.2005
and 14.09.2006 passed by the respondent
no.1
i.e.
Commissioner,
Lucknow
Division, Lucknow and order dated
28.05.2003 passed by respondent no. 2,
District Magistrate, Sitapur are under
challenge.

3. Facts in brief as submitted by the
learned counsel for the petitioner are that
the petitioner was holder of licence No.
798 Double Barrel Gun, granted by the
licensing authority/District Magistrate,
Sitapur.

4.

On
23.01.2003,
petitioner
received a show-cause-notice issued by
3 All] Awadhesh Kumar Pandey V. Commissioner, Lucknow Division and another
1047
the licensing authority/District Magistrate,
Sitapur that why the licence should not be
cancelled and his licence was also
suspended. On 05.02.2003, petitioner
submitted reply in response to the showcause-notice
dated
23.01.2003.
Thereafter, vide order dated 28.05.2003
petitioner's licence was cancelled.

5. Aggrieved by the same, petitioner
preferred an appeal before the appellate
authority under Section 18 of the Arms
Act, 1959 dismissed vide order dated
21.12.2005. Thereafter, the petitioner
filed an application for recall/restoration
of the said order, dismissed vide order
dated
14.09.2006
by
the
appellate
authority/Commissioner,
Lucknow
Division, Lucknow, hence the present
writ petition has been filed.

6. Learned counsel for the petitioner
while assailing the impugned orders in
question submits that the order passed by
the appellate authority dated 21.12.2005
by which the petitioner's appeal has been
dismissed is a non-speaking order and
passed without application of mind, as
such the same is arbitrary in nature, in
violation of principles of natural justice.

7. He further submits that the
Licensing Authority/District Magistrate,
Sitapur had cancelled the petitioner's
licence vide order dated 28.05.2003 on
the basis of a report dated 14.01.2003
submitted by Superintendent of Police,
Sitapur, copy of the said report was not
given to the petitioner, accordingly the
non-supply of the material/report dated
14.01.2003 renders the impugned order
without jurisdiction.

8. Learned counsel for the petitioner
further submits that as a matter of fact and
record, two cases namely Case Crime No.
174/89 and 135/95 which are the basis of
passing of the impugned order of
cancellation of his arm licence in both the
cases he has been acquitted.

9. Further, there is no finding in the
impugned orders about the imminent
danger to public peace and safety due to
the involvement of the petitioner in
alleged criminal cases, but the impugned
order of cancellation passed by the
respondent no. 2 in 'Janhit'; the said action
is per se illegal and in contravention to the
provisions as provided under Section 17
of the Arms Act.

10. In support of his contention,
learned counsel for the petitioner relies on
the following judgments.

1. Fuzail Ahmad Vs. Commissioner
Allahabad
Mandal,
Allahabad
and
others [2001(19) LCD 1]

2.
Ram
Murti
Madhukar
Vs.
District Magistrate, Sitapur [1998 (16)
LCD 905]

3. Ram Sanehi Vs. Commissioner,
Devi Patan Division Gonda and another
[2004(22) LCD 1643]

4. Mohd. Haroon Vs. The District
Magistrate, Siddharth Nagar [2003(21)
LCD 548]

5. Hari Kant @ Raja Vs. State of
U.P. and others [2002(1) JIC 714(All)]

6.
Raghubir
Singh
Vs.
Commissioner Jhansi Division, Jhansi &
others [2002(2)JIC 987(All)]
1048 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

7.
Ram
Karpal
Singh
Vs.
Commissioner
Devi
Patan
Mandal
Gonda and others [2006(24) LCD 114]

8.
Satish
Singh
Vs.
District
Magistrate, Sultanpur [2010(68) ACC
94].

11. On the strength of the said
judgments,
learned
counsel
for
the
petitioner submits that the Arm licence
no. 798 cancelled only on the ground of
'Janhit' cannot be cancelled under the
provisions as provided under Section 17
of the Arms Act, so the instant writ
petition liable to be allowed.

12. Sri Suresh Panjwani, learned
Standing Counsel on the other hand
submits that after considering the facts
and circumstances of the case, the licence
of the petitioner has been cancelled by the
respondent no. 2 taking into consideration
the report submitted against him by police
authority of the District Sitapur, said
order was confirmed by the appellate
authority. However, Sri Suresh Panjwani,
learned Standing Counsel fairly admits
that the two criminal cases which were
the basis of the passing of the impugned
cancellation order in the same, petitioner
has been acquitted.

13. I have heard learned counsel for
the petitioner and gone through the
record.

14. The power to suspend or cancell
the arm licence has been given under
Section 17 Arms Act, 1951, from the
perusal of the said section, it can be seen
that the arm licence can be cancelled or
suspended on the ground that it will
necessary for security and public safety.

15. A plain reading of Section 17
indicates that the arms licence can be
cancelled or suspended on the ground
when the licensing authority deems it
necessary for the security of the public
peace or the public safety. In the present
case, while passing the impugned order,
neither the District Magistrate nor the
appellate authority has recorded the
finding as to how and under what
circumstances, the possession of arms
licence by the petitioner, is detrimental to
the public peace or the public security and
safety. Merely because criminal cases are
pending does not seems to attract the
provisions of Section 17 of the Arms Act.

16. To attract the provisions of
Section 17 of the Arms Act with regard to
public peace, security and safety, it shall
always be incumbent on the authorities to
record a finding that how and under what
circumstances and in what manner, the
possession of arms licence shall be
detrimental to public peace, safety and
security. In absence of any such finding
merely on the ground that a criminal cases
are pending without considering any
circumstances with regard to danger of
public peace, safety and security, the
provisions contained under Section 17 of
the Arms Act, shall not satisfy.

17. Needless to say that right to life
and liberty are guaranteed under Article
226 of the Constitution of India and the
arms licences are granted for personal
safety and security after due inquiry by
the authorities in accordance with the
provisions contained in Arms Act, 1959.
The provisions of Section 17 of the Arms
Act with
regard to suspension or
cancellation of arms licence cannot be
invoked lightly in an arbitrary manner.
The provisions contained under Section
3 All] Awadhesh Kumar Pandey V. Commissioner, Lucknow Division and another
1049
17 of the Arms Act should be construed
strictly and not liberally. The conditions
provided therein, should be satisfied by
the authorities before proceeding ahead to
cancel or suspend an arms licence.

18. A notice may be taken of the fact
that for any reason whatsoever, the crime
rate is rising day by day. The Government
is not in a position to provide security to
each and every person individually. Right
to possess arms is statutory right but right
to life and liberty is a fundamental right
guaranteed
by
Article
21
of
the
Constitution of India. Corollary to it, it is
citizen's right to possess fire arms for their
personal safety and to save their family
from miscreants. It is often said that
ordinarily in a civilized society, only
civilized persons require arms licence for
their safety and security and not the
criminals.
Of
course,
in
case
the
Government feels that arms licences are
abused for oblique motive or criminal
activities, then appropriate measures may
be adopted to check such mal-practice.
But arms licence should not be suspended
in a routine manner mechanically, without
application of mind and keeping in view
the letter and spirit of Section 17 of the
Arms Act.

19. Learned counsel for the
petitioner relied upon the judgment
reported
in
Ram
Sanehi
Vs.
Commissioner, Devi Patan Division
Gonda and another [2004(22) LCD
1643] where this Court relied upon its
earlier judgment Habib Vs. State of
U.P.2002 ACC 783 and in one another
judgment
Fakir
Chand
Vs.
Commissioner, Meerut Mandal, Meerut
2002 (11) ACC 518 and it has been held
that merely because criminal case is
pending, it shall not create a ground for
suspension or cancellation of arms licence
in pursuance of powers conferred by
Section 17 of the Arms Act. The
authorities have to record finding based
on material evidence with regard to
breach of public peace and security while
cancelling the arms licence.

20. In the present case, neither the
District Magistrate, Sitapur nor appellate
authority while passing the impugned
order has recorded the reasons as on what
grounds and under what circumstances if
the petitioner possesses the Arm licence,
the same would be against the society of
public peace or public safety but the same
had cancelled on the ground of 'Janhit'
taking into consideration the two criminal
cases in respect of which a report was
submitted against the petitioner, however
the said two criminal cases he was
acquitted, so the impugned action on the
part of respondents thereby cancelling his
arm licence is arbitrary action, in
violation to the provisions of the Arms
Act.

21. Further, in the impugned order
dated 14.09.2006 passed by the appellate
authority/Commissioner,
Lucknow
Division, Lucknow, no reasons on the
basis of which the appellate authority had
came to the conclusion for dismissing the
appeal of the petitioner had been
stated/given moreover, when it was
brought to the notice to the appellate
authority that the two criminal cases
which are the basis of the cancellation of
Arm licence by the respondent no. 2 vide
order dated 28.05.2003, in the same
petitioner has been acquitted, so it is
incumbent upon the appellate authority to
discuss the said fact and thereafter the
impugned order should be passed.
1050 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

22. For the foregoing reasons, the
orders dated 21.12.2005 and 14.09.2006
passed by the respondent no. 1 and the
order dated 28.05.2003 passed by the
respondent no. 2 are quashed and
respondent
no.
2
is
directed
to
restore/renew the licence of the petitioner
forthwith.

Accordingly, writ petition is allowed.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2010

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Second Appeal No. 2751 of 1978

The State of U.P.

 ...Appellant
Versus
Union of India and another ...Respondent

Counsel for the Appellant:
Sri Shrish Chandra(S.C.)

Counsel for the Respondent:
Sri Govind Saran
S.C.

Code
of
civil
procedure-Section-102readwith constitution of India Art-131suit by State Govt. for loss of 3236 bags
of wheat worth of Rs. 3283.53 against
Railways
including
Union
of
IndiaPreliminary
issue
regarding
maintainability
decided
against
Plaintiff/Appellant-whether
appeal
maintainable-held 'yes'-civil court has
jurisdiction to try such suit-Art.131 come
in existence where dispute between
State picture and Union of India in
context of constitutional relationship
arose-suit for loss against Railways not
barred. Appeal allowed.

Held: Para 14 and 16

In view of the aforesaid, I am of the
considered
opinion
that
the
present
second appeal is not hit by Section 102
CPC.

In the aforesaid decision, the Apex Court
considering the various earlier decisions
concerning Article 131 held that a suit filed
against the Union of India for recovery of
compensation for the loss on account of
damage caused to the goods belonging to
the
State
dispatched
through
Indian
Railways is maintainable in a civil court
and is not covered by Article 131 of the
Constitution
of
India
which
confers
exclusive original jurisdiction upon the
Supreme Court in respect of the disputes
within the ambit of the above Article. It
was further laid down that Article 131 of
the Constitution of India is attracted only
when a dispute arises between or amongst
the State and the Union of India in the
context of Constitutional relationship that
exists between them and the powers,
rights,
duties,
immunities,
liabilities,
disabilities etc., flowing therefrom but
would not cover ordinary disputes of the
nature in relation to carrying on any trade
or business covered by Article 298 of the
Constitution of India. Thus, where the
State Government has made a claim like
any other consignee of goods dispatched
through Railways for compensation whose
success or failure depend on proof of facts
which have to be established in the same
way in which a private person would have
to establish such a claim would essentially
be
a
claim
against
the
Railway
administration and not actually against the
Union of India who is impleaded as a party
to the suit being the owner of the India
Railways by virtue of Article 300 of the
Constitution of India. The dispute of such a
kind is actually a dispute between the
Railway administration and the person
instituting the suit.
Case law discussed:
AIR 1967 SC 344, AIR 1960 SC 980, AIR 1984
SC 1675