# Mohd. Arif Khan v. District Magistrate

- **Citation:** (2012) 1 ILRA 9
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-24
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-arif-khan-v-district-magistrate-42269
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226General Direction to deposit Fire Arm
License
with
dealer-considering
Lok
Sabha or Vidhan Sabha election-without
considering individual role regarding
apprehensive of danger of violence-heldillegal-without being written order of
competent
authority-such
directionunsustainable.

Held: Para 10

"23.
Considering
the
facts
and
circumstances of the case these writ
petitions are disposed of with the
following directions:

(1)
A
writ
in
the
nature
of
Mandamus commanding the State of U.P.
is issued directing that the citizens who
have valid fire arm licenses including the
petitioners may not be compelled to
deposit their fire arms in general merely
on the basis that Lok Sabha Election is to
be held in near future.

(2) It is also directed that no
District
Magistrate
or
District
10 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Superintendent of Police or any officer
subordinate to them shall compel the
citizen in general to deposit their fire
arm unless thee is an order of the
Central Government as indicated in the
body of the judgment.

(3) The decision made in the case of
Mohd. Arif Khan v. District Magistrate
(Supra) by the Division Bench of this
Court shall be followed by the State
Government and its officers posted in
the districts within the State of U.P.

## Text

1 All] Ravindra Kumar Singh and others V. State of U.P. and others
9
judgement. It provides for appeal only
against decree and since an appeal under
Section 19 of the Family Courts Act lies
only against a judgement or order, no
appeal would lie under Section 19 of the
Family Courts Act against a decree. An
appeal against a decree passed by the
Civil Judge would lie under Section 28 of
the Hindu Marriage Act.

5. Since in the present case the
impugned judgement and decree have
been assailed under Section 28 of the
Hindu Marriage Act and the valuation of
this appeal is Rs. 10,000/-, the pecuniary
jurisdiction
as
well
as
appellate
jurisdiction would not be with the High
Court. An appeal against a decree passed
by the original Court under Section 13 of
the Hindu Marriage Act, would lie before
the
court
of
competent
appellate
jurisdiction.

6. In view of the aforesaid
circumstances, the report of the Stamp
Reporter is accepted and it is upheld. This
appeal is not maintainable before the High
Court. The appellant may avail his
remedy under Section 28 of the Hindu
Marriage Act before the competent court
having
appellate
jurisdiction
against
decrees. The period, w.e.f. 16.11.2011
(the date when present appeal was
presented before the Stamp Reporter) to
12.01.2012 i.e. today, shall be given
benefit of for the purpose of limitation, in
case the appeal is filed under Section 28
of Hindu Marriage Act against a decree
by the appellant. This appeal is dismissed
as not maintainable before this Court.

7. No order is passed as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.01.2012

BEFORE
THE HON'BLE RITU RAJ AWASTHI,J.

Misc. Single No. - 84 of 2012

Ravindra Kumar Singh and others

 ...Petitioner
Versus
State of U.P. Thro Secy. Department of
Home and others
 ...Respondents

Counsel for the Petitioner:
Sri Vinay P.Singh Rathore

Counsel for the Respondent:
C.S.C.
Sri N.C.Mehrotra
Sri O.P. Srivastava.

Constitution
of
India,
Article
226General Direction to deposit Fire Arm
License
with
dealer-considering
Lok
Sabha or Vidhan Sabha election-without
considering individual role regarding
apprehensive of danger of violence-heldillegal-without being written order of
competent
authority-such
directionunsustainable.

Held: Para 10

"23.
Considering
the
facts
and
circumstances of the case these writ
petitions are disposed of with the
following directions:

(1)
A
writ
in
the
nature
of
Mandamus commanding the State of U.P.
is issued directing that the citizens who
have valid fire arm licenses including the
petitioners may not be compelled to
deposit their fire arms in general merely
on the basis that Lok Sabha Election is to
be held in near future.

(2) It is also directed that no
District
Magistrate
or
District
10 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Superintendent of Police or any officer
subordinate to them shall compel the
citizen in general to deposit their fire
arm unless thee is an order of the
Central Government as indicated in the
body of the judgment.

(3) The decision made in the case of
Mohd. Arif Khan v. District Magistrate
(Supra) by the Division Bench of this
Court shall be followed by the State
Government and its officers posted in
the districts within the State of U.P.

24. However, the above directions
shall
not
preclude
the
competent
officer/authority
to
pass
orders/prohibitory orders in individual
cases or in general under the provisions
of
Arms
Act
or
Code
of
Criminal
Procedure 1973 after application of mind
in accordance with law."
Case law discussed:
1994 LCD (Vol. 12), page 93; 1999 (17) LCD,
page 1171

(Delivered by Hon'ble Ritu Raj Awasthi,J. )

1. Learned Standing Counsel has
produced the copy of the Government
Order dated 29.12.2011, which is taken
on record.

2. Heard Mr. Mohd. Arif Khan,
learned Senior Advocate, appearing for
the petitioners as well as Mr. Sanjay
Sareen,
learned
Standing
Counsel
appearing for the State and Mr. Manish
Mathur, learned counsel appearing for
Election Commission.

3. With the consent of parties'
counsels the case has been heard finally at
the admission stage.

4. This is a bunch of writ petitions
involving the same legal question and
similar facts, therefore, they are being
heard together and are decided by a
common order.

5. By earlier order this Court had
directed the learned Standing Counsel to
seek instructions in the matter.

6. Mr. Sanjay Sareen, learned
Standing Counsel on the basis of
instructions submits that on the basis of
directions
issued
by
the
Election
Commission of India, the Government
Order dated December 29, 2011 has been
issued wherein it has been provided that
general orders for deposit of firearms is
not necessary. On declaration of elections
the District Magistrate of the concerned
districts
would
review
the
activities/antecedents
of
the
license
holders of firearms so that free, fair and
independent elections are held and only
those licensee would be required to
deposit their firearms, who have been
identified. The license of only those
persons would be deposited from whom
there is a danger of violence in the
elections.

7. It is the clear stand of the State
that no general orders have been issued
for deposit of firearms by the public
during elections.

8. Mohd. Arif Khan, learned Senior
Advocate appearing for the petitioners
submitted that in spite of the fact that
there
is
no
specific
circular/order/directions for deposit of
firearms, the police of the concerned
police
station
are
compelling
the
petitioners to deposit their firearms in the
police station or with the firearm dealers.

9. In support of his submissions, he
relied on a Division Bench Judgment of
1 All] Ravindra Kumar Singh and others V. State of U.P. and others
11
this Court rendered in the case of Mohd.
Arif Khan Vs. District Magistrate and
others, reported in 1994 LCD (Vol.12),
page 93, wherein the Division Bench of
this Court had quashed the circular dated
16.7.1993
issued
by
the
Election
Commission requiring the firearm license
holders to deposit all their firearms with
the District Administration during the
period of one week from the day after the
last date for withdrawal of candidatures
and the fire arm would remain deposited
till the declaration of the result and no
person shall be allowed to carry his own
personal
fire
arms.
The
relevant
paragraphs 7, 21 and 22 are reproduced
below:

"7. We have heard the learned
counsel for the petitioners and learned
Chief Standing Counsel on behalf of the
opposite parties nos. 1 to 5 and 7 in Writ
Petition No. 4782 (MB) of 1993 and Dr.
Ashok Nigam, Senior Standing Counsel,
Central Government on behalf of the
Chief Election Commissioner, opposite
party no.6. After hearing the learned
counsel for the parties and perusing the
record, we passed the following order in
their presence:-

"We have heard the learned counsel
for the parties at length.

We are satisfied that the impugned
order dated 18.10.1993 passed by the
District Magistrate, Lucknow contained
in Annexure No. 3 to the writ petition and
Annexure-A-4 to the counter-affidavit of
opposite party no.1 are liable to be
quashed. Therefore, for reasons to follow,
we allow the writ petition and quash the
aforesaid
impugned
order
subject,
however, to the observation that it will be
open to the opposite party no.1 to pass
such order afresh in his discretion in
accordance
with
law
as
may
be
considered by him appropriate and
warranted by the circumstances."

21. We have no doubt in our mind
that the democracy being the basic
feature of our Constitution, it must be
ensured that free, fair and peaceful
elections are held and for that purpose
the Constitutional authorities as well as
other authorities must have the fullest
scope for taking appropriate action in
exercise of their powers according to
their discretion under the Constitution
and the existing laws. We have, therefore,
made it clear that even after the quashing
of the impugned order dated October 18,
1993 it will be open to the District
Magistrate to take such action in
accordance with law, whether under
Section 144 CrPC or otherwise, as he
considers necessary and appropriate in
his discretion in the circumstances of the
case.

22. It is for these reasons that we
have passed the order indicated earlier
allowing the writ petitions and quashing
the impugned order dated October 18,
1993 and leaving it open to the District
Magistrate to take appropriate action
according to law in future."

10. He also relied on the case of
Shahabuddin Vs. State of U.P. and
others, reported in 1999 (17) LCD, page
1171, wherein this Court had issued
directions that the citizens who have valid
firearm licenses including the petitioners
shall not be compelled to deposit their
firearms in general merely on the basis
that Lok Sabha election is to be held in
near future. The relevant paras 23 and 24
12 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
of the aforesaid judgment are reproduced
below:

"23. Considering the facts and
circumstances of the case these writ
petitions are disposed of with the
following directions:

(1) A writ in the nature of Mandamus
commanding the State of U.P. is issued
directing that the citizens who have valid
fire arm licenses including the petitioners
may not be compelled to deposit their fire
arms in general merely on the basis that
Lok Sabha Election is to be held in near
future.

(2) It is also directed that no District
Magistrate or District Superintendent of
Police or any officer subordinate to them
shall compel the citizen in general to
deposit their fire arm unless thee is an
order of the Central Government as
indicated in the body of the judgment.

(3) The decision made in the case of
Mohd. Arif Khan v. District Magistrate
(Supra) by the Division Bench of this
Court shall be followed by the State
Government and its officers posted in the
districts within the State of U.P.

24. However, the above directions
shall
not
preclude
the
competent
officer/authority
to
pass
orders/prohibitory orders in individual
cases or in general under the provisions
of Arms Act or Code of Criminal
Procedure 1973 after application of mind
in accordance with law."

11. I have considered the various
submissions made by the learned counsel
for the parties.

12. Since the learned Standing
Counsel on the basis of instructions
submits
that
there
is
no
specific
direction/order/
circular/notification
issued by the Election Commission as
well as by the State Government that all
the licensee of fire arms are required to
deposit their fire arms during Vidhan
Sabha Elections and the Government
Order dated December 29, 2011 only
provides that the District Magistrate of the
concerned District would review the
activities/antecedents of the licensee and
identify the persons from whom there is a
threat to law and order situation during
elections and only those persons would be
required to deposit the fire arms, who are
required individually to do so and there is
no general order for deposit of fire arms
during Vidhan Sabha Elections this Court
is of the considered opinion that the
opposite parties can not compel the valid
license holders of fire arms to deposit
their arms in the concerned police station
or with the firearm dealers during the
Vidhan Sabha Elections, which are
scheduled to be held in near future
without there being a written order by the
competent authority.

13. In this view of the matter, the
writ petitions are allowed with the
direction that in case the petitioners
possess valid license for their firearms
and no written orders have been issued by
the competent authority to deposit their
firearms, the opposite parties shall not
compel the petitioners to deposit their
firearms during incoming Vidhan Sabha
Elections.

14. The State of U.P. is directed that
the citizens, who have valid firearm
licenses shall not be compelled to deposit
their arms in general merely on the basis
1 All] Mahendra Pratap Sharma V. State of U.P. and others
13
of incoming Vidhan Sabha Elections.
However, it will be open for the
concerning District Magistrates to take
such action in accordance with law
whether under Section 144 Cr.P.C. or
otherwise or as they consider necessary
and appropriate in their discretion in the
circumstances of individual case.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2012

BEFORE
THE HON'BLE RAKESH TIWARI,J.
THE HON'BLE DINESH GUPTA,J.

Special Appeal No. 148 of 2008

Mahendra Pratap Sharma
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Bhoopendra Nath Singh

Counsel for the Respondents:
Sri Yogendra Yadav
C.S.C.

U.P. Recruitment of Dependant of Govt.
Servant, Dying in Harness Rules 1974Rule 5 (2) (3) as Amended by G.O. At
13.10.2013-Compassionate
Appointment-claimed
after
expiry
of
statutory period-denied on ground of
non
consideration
of
delay-non
appointment on compassionate ground
can not be treated as reservation-which
itself
violative
the
rights
of
other
claimants-amendment with prospective
effect-can
not
be
enforced
retrospectively-held-refusal
of
appointment-justified.

Held: Para 29

There is also no provisions of keeping
vacancy reserved for the minors of
dependents of government servants who
died in harness. The 51% appointments
under compassionate appointments is to
be made in the existing vacancies for
minors in each year. If reservation of
vacancies for minors in such manner is
permitted, many a deserving dependents
of government servants who have died in
harness
and
living
in
indigent
circumstances would be deprived of the
benefit of dependents U.P. Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974. The Rule
which is a beneficial piece of legislation
would loose its beneficial part and turn
into an unworkable Rule.
Case law discussed:
2010 (7) A.D.J. -1 (DB); 2010 (10) ADJ-289;
1996 (5) SCC-308; 2008 (2) A.D.J. 433 (DB);
2000
(2)
E.S.C.
967;
2005
(3)
U.P.L.B.E.C.2426; 1993 (supp) E.S.C 37 (L.B.);
2009 (4) A.D.J.-89; 2009 (120) F.L.R. 164;
2008 Vol.6 A.D.J. 741 (DB); 2003 (1)
U.P.L.B.E.C.; ALR-1976 SC-1766; AIR 2006 SC
2743

(Delivered by Hon'ble Rakesh Tiwari,J. )

1. Heard learned counsel for the
parties and perused the record.

2. This special appeal is preferred
challenging the validity and correctness of
the judgment and order dated 6.11.2007
by which the Civil Misc. Writ Petition
No. 11036 of 2006, Mahendra Pratap
Sharma versus State of U.P. and others
has been dismissed. The appellant also
prays for setting aside the order dated
18.9.2002 passed by respondent no.2,
Director, Panchayat Raj, U.P. Lucknow
rejecting the claim of the appellant for
compassionate appointment under the
U.P. Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as "
1974 Rules") which was impugned in the
writ petition.