# Bhupendra and another v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1359
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-03
- **Case number:** Civil Misc. Writ Petition No. 37913 of 2009
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhupendra-and-another-v-state-of-u-p-and-others-42014
- **Pages:** 6

## Headnote

Arms Act-Section 17 (3)-suspension of five
Arm
Licence-without
pending
any
proceeding for cancellation-suspension by
the licenses authority-without jurisdictionkeeping
suspension
pending
without
follow up action inspite of direction of
Court-held-sheer harassment of individual
having no control over statutory authorityin
action
on
part
of
D.M.
Highly
condemned
and
depreciated-order
quashed
with
cost
of
Rs.
10,000
recoverable from erring officer.

Held: Para 7

In the case in hand though petitioners'
firearm licence was suspended almost four
years back but the District Magistrate
could not find time or occasion to pass a
final order in the matter though it is the
ultimate and statutory function he is
supposed to discharge. In absence of any
explanation whatsoever for not taking
final decision for the last four years,
inaction on the part of District Magistrate
is highly condemnable and depreciated. It
is nothing but sheer harassment to an
individual who has no control over the
1360 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
statutory authority like District Magistrate.
This is per se arbitrary.
Case law discussed:
Civil Misc. Writ Petition No. 58216 of 2005 (Ajay
Kumar Gupta Vs. State of U.P. and others; 1988
A.W.C. 1481; 1985 A.W.C. 493; 1998 All.C.J.
1449; 2009 (1) AWC 691; 1972 AC 1027; 1964
AC 1129; JT 1993(6) SC 307; JT 2004 (5) SC 17;
(1996) 6 SCC 530; (1996) 6 SCC 558; AIR 1996
SC 715

## Text

3 All] Bhupendra and another V. State of U.P. and others
1359

33. Learned counsel for the petitioner
drew my attention to Arun Kumar Singh
Vs. State of U.P. and others 2006(1) UP
Cr.R. 415 and Takdeer Singh, Prabhu
Dayal
Vs.
Commissioner,
Jhansi
Division and others 2005 (TLS) 316893
(writ petition no. 32033 of 2004 decided
on 19.10.2005). I have gone through the
aforesaid judgments and do not find the
same applicable to the facts of the present
case. In Arun Kumar Singh (supra) the
judgment shows that this Court took the
view that the petitioner cannot be said to
be guilty of misrepresentation which may
form basis of cancellation of firearm
licence. Same was the view in Takdeer
Singh (supra). In both the cases, firearm
licence was already granted and thereafter
proceedings were initiated for cancellation
thereof. The circumstances in which the
firearm licence was cancelled is specified
in Section 17 but here is a case where
question of grant of firearm licence under
Section 13 has to be considered. In such a
case where information is not given in the
application form in the manner it is
required,
the
authorities
are
quite
competent to reject application for such
lapses. The reason being that in such a case
the petitioner would not be deprived of
moving fresh application furnishing correct
details and information. It is always open
to an applicant whose application has once
been rejected for one or the other
shortcoming or incomplete information, to
move
another
application
fulfilling
requirements of Form prescribed under
Rules.

34. For what has been stated above, I
am of the definite opinion that this writ
petition is devoid of merits.

35. Dismissed.

36. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.11.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 37913 of 2009

Bhupendra and another
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.K. Dubey
Sri S.K. Pandey

Counsel for the Respondents:
C.S.C.

Arms Act-Section 17 (3)-suspension of five
Arm
Licence-without
pending
any
proceeding for cancellation-suspension by
the licenses authority-without jurisdictionkeeping
suspension
pending
without
follow up action inspite of direction of
Court-held-sheer harassment of individual
having no control over statutory authorityin
action
on
part
of
D.M.
Highly
condemned
and
depreciated-order
quashed
with
cost
of
Rs.
10,000
recoverable from erring officer.

Held: Para 7

In the case in hand though petitioners'
firearm licence was suspended almost four
years back but the District Magistrate
could not find time or occasion to pass a
final order in the matter though it is the
ultimate and statutory function he is
supposed to discharge. In absence of any
explanation whatsoever for not taking
final decision for the last four years,
inaction on the part of District Magistrate
is highly condemnable and depreciated. It
is nothing but sheer harassment to an
individual who has no control over the
1360 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
statutory authority like District Magistrate.
This is per se arbitrary.
Case law discussed:
Civil Misc. Writ Petition No. 58216 of 2005 (Ajay
Kumar Gupta Vs. State of U.P. and others; 1988
A.W.C. 1481; 1985 A.W.C. 493; 1998 All.C.J.
1449; 2009 (1) AWC 691; 1972 AC 1027; 1964
AC 1129; JT 1993(6) SC 307; JT 2004 (5) SC 17;
(1996) 6 SCC 530; (1996) 6 SCC 558; AIR 1996
SC 715

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. The writ petition is directed against
the order dated 22.11.2007 passed by the
respondent No.2 suspending the petitioners'
firearm licence in purported exercise of
power under Section 17(3) of Arms Act,
1959 (hereinafter referred to as "Act 1959").
The grievance of the petitioners is that he
submitted his reply as long back as on
18.12.2007 but no final order has been
passed by District Magistrate so far. He also
drew my attention to the fact that raising his
grievance against arbitrary and illegal action
on
the
part
of
District
Magistrate,
Farrukhabad petitioners approached this
Court in Writ Petition No.35112 of 2008
which was disposed of on 22.7.2008 with
the following direction:

"Proceedings
for
cancellation
of
petitioners' fire-arm licence have been
undertaken vide show cause notice dated
22.11.2007. Petitioners submit that they
have submitted reply to show cause notice
but till date Licensing Authority has not
taken any final decision in the matter.

Consequently, in these circumstances
and in this background, in case till date no
final decision has been taken, then in that
event, Licensing Authority is directed to
take final decision after taking into
consideration the reply so submitted by
petitioners, within two months from the date
of receipt of a certified copy of this order.

In terms of above order and direction,
present writ petition is disposed of."

2. It is said that despite the said order
more that three years have now passed but
no final order has been passed by the
District Magistrate so far. The respondents
have filed counter affidavit wherein nothing
has been said about final order of District
Magistrate, The case of respondents is that
petitioners had obtained firearm licence by
giving wrong information about original
residence and for this reason firearm licence
was suspended. However, entire counter
affidavit is conspicuously silent on the fact
whether any final order has been passed by
District Magistrate so far or not.

3. This sheer inaction on the part of
District Magistrate failing to discharge its
statutory obligation can be examined from
two angles. Firstly; this Court has held in
catena of decisions that there is no power of
suspension of firearm licence under Section
17(3) of Act 1959. In a decision dated
9.9.2005 of this Court in Civil Misc. Writ
Petition No. 58216 of 2005 (Ajay Kumar
Gupta Vs. State of U.P. and others), after
considering the Full Bench decision of this
Court in the cases of Balaram Singh Vs.
State of U.P. and others 1988 A.W.C.
1481, Kailash Nath Vs. State of U.P. 1985
A.W.C. 493 as well as the Division Bench
decision of this Court in the case of Sadri
Ram Vs. District Magistrate, Azamgarh
and others 1998 All. C.J. 1449, it has been
held that the licensing authority has no
power to suspend the arms licence.

4. Yet ignoring the said exposition of
law laid down by this Court the District
Magistrate has gone ahead to place the
3 All] Bhupendra and another V. State of U.P. and others
1361
firearm licence of the petitioners under
suspension. It is ex facie contrary to the
aforesaid law laid down by this Court and is
contemptuous also.

5. The second aspect; assuming that
power of suspension exist pending enquiry
regarding cancellation of firearm licence,
the same would be in the nature of
intermediary step in aid and assistance to
achieve final objective i.e. decision on the
question whether firearm licence granted to
an individual require to be cancelled or not.
This
power
of
suspension
in
such
circumstances cannot be usurped as a
substitute of cancellation. Considering
similar kind of power of suspension of an
employees in a pending or contemplated
departmental enquiry, in Smt. Anshu
Bharti Vs. State of U.P. and others,
2009(1) AWC 691, (paras 9, 10, 11, 12 and
13), this Court has observed:

"9. . . . . . The prolonged suspension of
the petitioner is clearly unjust and
unwarranted. The question deals with the
prolonged agony and mental torture of a
suspended employee where inquiry either
has not commenced or proceed with snail
pace. Though suspension in a contemplated
or pending inquiry is not a punishment but
this is a different angle of the matter, which
is equally important and needs careful
consideration.
A
suspension
during
contemplation of departmental inquiry or
pendency thereof by itself is not a
punishment if resorted to by the competent
authority to enquire into the allegations
levelled against the employee giving him an
opportunity of participation to find out
whether the allegations are correct or not
with due diligence and within a reasonable
time. In case, allegations are not found
correct, the employee is reinstated without
any loss towards salary, etc., and in case
the charges are proved, the disciplinary
authority passes such order as provided
under law. However, keeping an employee
under suspension, either without holding
any enquiry, or in a prolonged enquiry is
unreasonable. It is neither just nor in larger
public interest. A prolonged suspension by
itself is penal. Similarly an order of
suspension at the initial stage may be valid
fulfilling all the requirements of law but
may become penal or unlawful with the
passage of time, if the disciplinary inquiry is
unreasonably prolonged or no inquiry is
initiated at all without there being any fault
or obstruction on the part of the delinquent
employee. No person can be kept under
suspension for indefinite period since
during the period of suspension he is not
paid full salary. He is also denied the
enjoyment
of
status
and
therefore
admittedly it has some adverse effect in
respect of his status, life style and
reputation in society. A person under
suspension is looked with suspicion in the
society by the persons with whom he meets
in his normal discharge of function.

10. A Division Bench of this Court in
Gajendra Singh Vs. High Court of
Judicature at Allahabad 2004 (3) UPLBEC
2934 observed as under :

"We need not forget that when a
Government
officer
is
placed
under
suspension, he is looked with suspicious
eyes not only by his collogues and friends
but by public at large too."

11.
Disapproving
unreasonable
prolonged suspension, the Apex Court in
Public Service Tribunal Bar Association Vs.
State of U.P. & others 2003 (1) UPLBEC
780 (SC) observed as under:
1362 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

"If
a
suspension
continues
for
indefinite period or the order of suspension
passed is malafide, then it would be open to
the employee to challenge the same by
approaching the High Court under Article
226 of the Constitution........................(Para
26)

12. The statutory power conferred
upon the disciplinary authority to keep an
employee
under
suspension
during
contemplated
or
pending
disciplinary
enquiry cannot thus be interpreted in a
manner so as to confer an arbitrary,
unguided an absolute power to keep an
employee under suspension without enquiry
for unlimited period or by prolonging
enquiry unreasonably, particularly when
the delinquent employee is not responsible
for such delay. Therefore, I am clearly of
the opinion that a suspension, if prolonged
unreasonably without holding any enquiry
or by prolonging the enquiry itself, is penal
in nature and cannot be sustained.

13 .The view I have taken is supported
from another Judgment of this Court in
Ayodhya Rai & others Vs. State of U.P. &
others 2006 (3) ESC 1755."

(emphasis added)

6. Though the above observations are
in the context of a service matter but qua
power of suspension in pending enquiry vis
a vis final order, the observations are
broadly applicable to this case also. Here
also one cannot be allowed to make an
order of suspension as a tool to deprive the
licencee benefit thereof in the garb of
suspension by keeping it pending for years
together by not passing a final order. Any
view otherwise would be discriminatory
and shall defeat the very objective and
purpose of the power conferred under
Section 17 of Act 1959.

7. In the case in hand though
petitioners' firearm licence was suspended
almost four years back but the District
Magistrate could not find time or occasion
to pass a final order in the matter though it
is the ultimate and statutory function he is
supposed to discharge. In absence of any
explanation whatsoever for not taking final
decision for the last four years, inaction on
the part of District Magistrate is highly
condemnable and depreciated. It is nothing
but sheer harassment to an individual who
has no control over the statutory authority
like District Magistrate. This is per se
arbitrary.

8. This Court time and again has
commented strongly against such attitude of
the State and its authorities. This kind of
attitude demean and denigrate individuals
respect and honour. The respondents being
"State" under Article 12 of the Constitution
of India, its officers are public functionaries.
As observed above, under our Constitution,
sovereignty vest in the people. Every limb
of constitutional machinery therefore is
obliged to be people oriented. Public
authorities
acting
in
violation
of
constitutional
or
statutory
provisions
oppressively are accountable for their
behaviour. It is high time that this Court
should remind respondents that they are
expected to perform in a more responsible
and reasonable manner so as not to cause
undue and avoidable harassment to the
public at large. The respondents have the
support of entire machinery and various
powers of statute. An ordinary citizen or a
common man is hardly equipped to match
such might of State or its instrumentalities.
Harassment of a common man by public
authorities is socially abhorring and legally
3 All] Bhupendra and another V. State of U.P. and others
1363
impressible. This may harm the common
man personally but the injury to society is
far more grievous. Crime and corruption,
thrive and prosper in society due to lack of
public resistance. An ordinary citizen
instead of complaining and fighting mostly
succumbs to the pressure of undesirable
functioning in offices instead of standing
against it. It is on account of, sometimes,
lack of resources or unmatched status which
give the feeling of helplessness. Nothing is
more damaging than the feeling of
helplessness. Even in ordinary matters a
common man who has neither the political
backing nor the financial strength to match
inaction in public oriented departments gets
frustrated and it erodes the credibility in the
system. This is unfortunate that matters
which require immediate attention are being
allowed to linger on and remain unattended.
No authority can allow itself to act in a
manner
which
is
arbitrary.
Public
administration no doubt involves a vast
amount of administrative discretion which
shields action of administrative authority
but where it is found that the exercise of
power is capricious or other than bona fide,
it is the duty of the Court to take effective
steps and rise to occasion otherwise the
confidence of the common man would
shake. It is the responsibility of Court in
such matters to immediately rescue such
common man so that he may have the
confidence that he is not helpless but a
bigger authority is there to take care of him
and to restrain arbitrary and arrogant,
unlawful inaction or illegal exercise of
power
on
the
part
of
the
public
functionaries.

9. In our system, the Constitution is
supreme, but the real power vest in the
people of India. The Constitution has been
enacted "for the people, by the people and
of the people". A public functionary cannot
be permitted to act like a dictator causing
harassment to a common man and in
particular when the person subject to
harassment is his own employee.

10. Regarding harassment of a
common man, referring to observations of
Lord Hailsham in Cassell & Co. Ltd. Vs.
Broome, 1972 AC 1027 and Lord Devlin
in Rooks Vs. Barnard and others 1964
AC 1129, the Apex Court in Lucknow
Development Authority Vs. M.K. Gupta
JT 1993 (6) SC 307 held as under:

"An Ordinary citizen or a common
man is hardly equipped to match the might
of the State or its instrumentalities. That is
provided by the rule of law....... A public
functionary if he acts maliciously or
oppressively and the exercise of power
results in harassment and agony then it is
not an exercise of power but its abuse. No
law provides protection against it. He who
is
responsible
for
it
must
suffer
it...........Harassment of a common man by
public authorities is socially abhorring and
legally impermissible. It may harm him
personally but the injury to society is far
more grievous." (para 10)

11. The above observations as such
have
been
reiterated
in
Ghaziabad
Development Authorities Vs. Balbir
Singh JT 2004 (5) SC 17.

12. In a democratic system governed
by rule of law, the Government does not
mean a lax Government. The public
servants hold their offices in trust and are
expected to perform with due diligence
particularly so that their action or inaction
may not cause any undue hardship and
harassment to a common man. Whenever it
comes to the notice of this Court that the
Government or its officials have acted with
1364 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
gross negligence and unmindful action
causing harassment of a common and
helpless man, this Court has never been a
silent spectator but always reacted to bring
the authorities to law.

13. In Registered Society Vs. Union
of India and Others (1996) 6 SCC 530 the
Apex court said:

"No public servant can say "you may
set aside an order on the ground of mala
fide but you can not hold me personally
liable" No public servant can arrogate in
himself the power to act in a manner which
is arbitrary".

14. In Shivsagar Tiwari Vs. Union
of India (1996) 6 SCC 558 the Apex Court
has held:

"An arbitrary system indeed must
always be a corrupt one. There never was a
man who thought he had no law but his own
will who did not soon find that he had no
end but his own profit."

15. In Delhi Development Authority
Vs. Skipper Construction and Another
AIR 1996 SC 715 has held as follows:

"A democratic Government does not
mean a lax Government. The rules of
procedure and/or principles of natural
justice are not mean to enable the guilty to
delay and defeat the just retribution. The
wheel of justice may appear to grind slowly
but it is duty of all of us to ensure that they
do grind steadily and grind well and truly.
The justice system cannot be allowed to
become soft, supine and spineless."

16. In view of the above discussion,
the impugned order cannot sustain. The writ
petition is allowed. The impugned order
dated 22.11.2007 is hereby quashed to the
extent it suspends the firearm licence of the
petitioner.

17. However quashing of order of
suspension will not prevent Licensing
Authority
to
proceed
and
conclude
proceeding, if any, for cancellation of
firearm licence of the petitioner pursuant to
impugned order dated 22.11.2007.

18. The petitioners shall be entitled to
cost which I quantify to Rs.10,000/- against
respondents 1 and 2. It is made clear that at
the first instance costs shall be paid by
respondent No.1 but it shall be at liberty to
recover the same from concerned District
Magistrate held office at Farrukhabad
during the relevant period and found
responsible for inaction in the matter, after
making such enquiry as permissible in law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2011

BEFORE
THE HON'BLE SUNIL HALI,J.

Civil Misc Writ Petition No. 38545 of 1996

Rajjan Singh and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri B.D. Mandhyan

Counsel for the Respondents:
C.S.C.

U.P. Imposition of Ceiling on Land Holding
Act 1960 Section 5(6)-Sale transaction
made
and
became
effective-prior
24.01.71-can
not
be
questioned,
Prescribed Authority-No jurisdiction to
consider nature of Transaction either bona
fide or
to
defeat
the ceiling-finding