# Sharad Pathak v. State Of U.P.& Ors - **Citation:** (2016) 8 ILRA 759 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-11 - **Bench:** Dr. Devendra Kumar Arora - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharad-pathak-v-state-of-u-p-ors-44384 - **Pages:** 7 ## Headnote Arms Act, 1959 - Sections 13 and 14 - Grant of arms licence - Refusal of licence - Grounds - Absence of threat perception - Whether valid ground - Application by legal heir for licence of firearm earlier held by father - Licensing authority rejecting application on ground that applicant wanted licence only for status - Legality. Petitioner applied for grant of licence of a Double Barrel Gun earlier possessed by his grandfather and later by his father after his father's death. The District Magistrate rejected the application on the ground that there was no threat perception to the petitioner and the licence was sought merely for prestige. Held, the licensing authority is required to exercise its power objectively in light of Sections 13 and 14 of the Arms Act. Refusal of licence can only be based on grounds contemplated under Section 14 such as prohibition under law, unsoundness of mind, unfitness of the applicant, or necessity for maintaining public peace and safety. Rejection merely on the ground that the applicant has no threat to life or seeks licence for status is not a statutory ground and reflects arbitrary exercise of power. The licensing authority cannot deny grant of licence on whims or fanciful considerations. The impugned order dated 10.5.2013 passed by the District Magistrate, Sultanpur was therefore quashed and the matter was remitted to the District Magistrate to reconsider the petitioner's application and pass appropriate orders in accordance with law within three months. Case Law discussed: Ram Singh Yadav v. State of U.P. Ram Prakash Srivastava v. Commissioner Jhansi Division Chandraraj Tripathi v. State of U.P. and others 760 INDIAN LAW REPORTS ALLAHABAD SERIES Result: Writ Petition Allowed. ## Text 8 All. Sharad Pathak Vs State Of U.P. & Ors. 759 (2016) 8 ILRA 759 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 11.08.2016 BEFORE THE HON'BLE DR. DEVENDRA KUMAR ARORA, J. Misc. Single No.- 210 Of 2014 Sharad Pathak ...Petitioner Versus State Of U.P.& Ors. ...Respondents Counsel for the Petitioner: Sanjay Misra, Advocate assisted by G.C. Verma, Advocate Counsel for the Respondents: C.S.C., Pankaj Patel, Addl. Chief Standing Counsel Headnote: Arms Act, 1959 - Sections 13 and 14 - Grant of arms licence - Refusal of licence - Grounds - Absence of threat perception - Whether valid ground - Application by legal heir for licence of firearm earlier held by father - Licensing authority rejecting application on ground that applicant wanted licence only for status - Legality. Petitioner applied for grant of licence of a Double Barrel Gun earlier possessed by his grandfather and later by his father after his father's death. The District Magistrate rejected the application on the ground that there was no threat perception to the petitioner and the licence was sought merely for prestige. Held, the licensing authority is required to exercise its power objectively in light of Sections 13 and 14 of the Arms Act. Refusal of licence can only be based on grounds contemplated under Section 14 such as prohibition under law, unsoundness of mind, unfitness of the applicant, or necessity for maintaining public peace and safety. Rejection merely on the ground that the applicant has no threat to life or seeks licence for status is not a statutory ground and reflects arbitrary exercise of power. The licensing authority cannot deny grant of licence on whims or fanciful considerations. The impugned order dated 10.5.2013 passed by the District Magistrate, Sultanpur was therefore quashed and the matter was remitted to the District Magistrate to reconsider the petitioner's application and pass appropriate orders in accordance with law within three months. Case Law discussed: Ram Singh Yadav v. State of U.P. Ram Prakash Srivastava v. Commissioner Jhansi Division Chandraraj Tripathi v. State of U.P. and others 760 INDIAN LAW REPORTS ALLAHABAD SERIES Result: Writ Petition Allowed. (Delivered by Hon'ble Dr. Devendra Kumar Arora, J.) (Delivered by Hon'ble Dr. Devendra Kumar Arora, J.) 1. Heard Sri G.C.Verma, Advocate assisted by Sri Sanjay Mishra, Advocate for the petitioner and Sri Pankaj Patel, Addl. Chief Standing Counsel for the State. 2. Feeling aggrieved by the order dated 10.5.2013 passed by the District Magistrate, Sultanpur whereby the application of the petitioner for grant of license of Double Barrel Gun, which was owned by the father of the petitioner during his life time, has been rejected. 3. In short the facts of the case are that the petitioner is a practicing Advocate of this Court and belongs to a reputed Brahmin family of district Sultanpur. The grandfather of the petitioner,namely, Pt Mahatma Prasad Pathak owned a Double Barrel Gun, which was later on transferred to the father of the petitioner, namely, Sri Som Prakash Pathak, who was the District Government Counsel (Civil) in Sultanpur. The father of the petitioner left for heavenly abode on 12.6.2009. Petitioner is the only son of his father and the real sister of the petitioner is married and there is no dispute of succession. Therefore, after the death of his father, the petitioner deposited the gun of his father at Madras Gun House and applied for grant of license vide application dated 30.6.2009. 4. When no action was taken for sufficient long time on the aforesaid application, the petitioner filed a Writ Petition No. 22 (MS) of 2013 before this Court wherein a direction was issued to the concerned authority vide order dated 1.2.2013 to examine the application of the petitioner and decide the same in accordance with law. Thereafter, the application of the petitioner has been rejected by the licensing authority vide impugned order dated 10.5.2013 on the ground that there is no threat of life to the petitioner and the petitioner wants the license just for his status. 5. Learned Counsel for the petitioner has submitted that Section-14 of the Arms Act deals with the ground on which license can be refused and the ground which has been taken in the impugned order is not covered under Section 14 of the Arms Act and as such the impugned order is nonest and shows the arbitrariness of the concerned authority. 6. On the strength of the decisions rendered in Ram Singh Yadav Vs. State of U.P.; 1993 ALR (23) 523, Ram Prakash Srivastava Vs. commissioner Jhansi Division, Jhansi [2002(20) LCD 414] and Chandraraj Tripathi Vs. State of U.P. and others; passed in Writ-C No. 65647 of 2013 decided on 10.12.2013, it has been argued that the impugned order being contrary to the provisions of the Arms Act, is not tenable in the eyes of law and is liable to be quashed. 7. In contrast, Sri Pankaj Patel, Addl. Chief Standing Counsel submitted that there is no illegality or infirmity in the impugned order and it has rightly been observed that the petitioner wants the fire-arm license just for the prestige sake and there is no threat to life or property of the 8 All. Sharad Pathak Vs State Of U.P. & Ors. 761 petitioner. During inquiry, the police authorities have not found any genuine need of the petitioner. It has further been argued that the petitioner has no fundamental right to have fire arm licence as alleged by him in the writ petition. It is a subjective satisfaction of the Licensing Authority to issue or refuse the grant of licence depending upon the gravity of threat. Therefore, no interference is warranted under Article 226 of the Constitution and the writ petition is liable to be dismissed. 8. Before dealing with the actual controversy involved in the writ petition, it would be apt to refer Section 13 and 14 of the Arms Act, which are relevant for the disposal of the present matter. 13. GRANT OF LICENCES 1. An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. 2. On receipt of an application, the licensing authority shall call for the report of the office in charge of the nearest police station on that application, and such officer shall send in his report within the prescribed time. (2A) The licensing authority, after making such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same: Provided that where the officer in charge of the nearest police station does not send his report on the application with the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.](3) The licensing authority shall grant--- (a) a licence under section 3 where the licence is required--- (i) By a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection: Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection; or (ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognized by the Central Government; (b) a licence under section 3 in any other case or a licence under section 4, section 5, section 6, section 10 or section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same. 762 INDIAN LAW REPORTS ALLAHABAD SERIES 14. REFUSAL OF LICENCES (1) Notwithstanding anything in section 13, the licensing authority shall refuse togrant--- (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 low 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 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. 9. A perusal of aforesaid clause (a) of sub-section (1) of Section 14 would thus indicate that a licence under-Section 3, Section 4 or Section 5 shall be refused where it is required in respect of any prohibited arms or prohibited ammunition. In any other case under Chapter-II, a licence shall be refused where the licensing authority has reason to believe that the person who requires a licence is prohibited by the Act or by any other law from acquiring, having in his possession or carrying any arms or ammunition; or that he is of unsound mind or unfit for any reason for a licence under the Act. Similarly, a licence shall be refused where the licensing authority deems it necessary for the security of the public peace or public safety to refuse the grant of such licence. In other words, the effect of Section 14 is to provide a catalogue of circumstances in which notwithstanding anything in Section 13, a licence shall be refused. Section 14 specifies the grounds when a licence shall be refused, but even otherwise, under Section 13, the licensing authority is duty bound to apply its mind to all the relevant facts and circumstances in determining as to whether the licence 8 All. Sharad Pathak Vs State Of U.P. & Ors. 763 should be granted or refused. In those cases which would fall within the ambit of Section 14, the licensing authority must necessarily refuse the licence. 10. Rule 51 of the Arms Rules, 1962 provides that every application for the grant of a licence shall contain all such information as is necessary for the consideration of the application. Rule 51-A provides that the application shall not suppress any factual information or furnish any false or wrong information in the application form. Every application for the grant of licence has to be in Form ''A' prescribed under the Rules. Part ''A' of Form ''A' requires a disclosure of the identity of the applicant, Part ''B' is for other particulars in relation to the applicant and Part ''C' is for particulars of the licence. Part ''C' requires a disclosure of the need for a licence and of claims for special consideration. In considering the grant of a licence, the authority is duty bound to consider such facts as may be personal to the applicant as well as the impact of the grant of the licence on the safety and security of others which may be impinged by the grant of the licence. Undoubtedly, the licensing provisions of the Act would require that the power which is vested in the competent authority to grant or refuse the grant of a licence must not be exercised arbitrarily or whimsically but for just and sound reasons. 11. In Ram Prakash Srivastava's case [supra], the application for grant of licence was rejected by the licensing authority on the ground that the petitioner has not filed any proof regarding disposal of concerned fire arm and during the period 1980-1993, no incident has taken place which may come to help of petitioner that he require fire arm. This Court while quashing the order of refusal, observed that both the grounds taken by the licensing authority and the appellate authority are not in consonance to the provisions of Arms Act. Similarly, in the case of Gajendra Kumar[supra] the application was rejected as there was no threat or apprehension to the life and property of the petitioner. The Court while allowing the writ petition observed that the reasons given by the District Magistrate is beyond the scope of Sections 13 and 14 of the Arms Act. 12. In Chandraraj Tripathi's case [supra] the Court observed that the District Magistrate has wrongly interpreted the order dated 7.10.2013 passed by a Division Bench in Jitendra Singh vs. State of U.P. And others [W.P.No.3268(MB) of 2013]. According to the Division Bench no fresh licence would be granted under the Arms Act but will not include: (a) applicants who have applied as an heir; (b) applicants who are victims of crime; and (c) applicants having genuine need of weapon in the opinion of the concerned District Magistrate. 13. In the instant case, the fact situation as indicated hereinabove , contention of learned counsel for the petitioner that respondent no.2 have found out a ground to reject petitioners' applications on getting annoyed of petitioners daring to approach this Court with complaint of inaction on their part, whereupon this Court mandated to pass final order within a specified time, 764 INDIAN LAW REPORTS ALLAHABAD SERIES deserves to be accepted. The licensing authority in fact has tried to penalize the petitioner by rejecting his application on fanciful grounds overlooking the fact that the petitioner has no criminal antecedents and has applied for firearm licence, as his late grandfather was having a DBBL gun, which later on passed on to his father. 14. On examining the facts in entirety, I have no hesitation in observing that a cumulative and harmonious reading of Sections 13 and 14 leave no manner of doubt that an objective consideration is mandated on the part of licensing authority. He cannot deny grant of license to a person on his sheer whims, caprices, imagination etc. Consequently, the impugned order dated 10.5.2013 passed by the District Magistrate, Sultanpur is hereby quashed. The District Magistrate, Sultanpur is directed to re-examine the issue in the light of the observations made herein above and pass appropriate orders for grant of license to the petitioner within a maximum period of three months. 15. The writ petition stands allowed in above terms. ----------- 8 All. Anil Kumar Garg Vs State Of U.P. 765 (2016) 8 ILRA 765 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 12.08.2016 BEFORE THE HON'BLE SATYENDRA SINGH CHAUHAN, J. THE HON'BLE ANIL KUMAR, J. Service Bench No.- 124 Of 2013 Anil Kumar Garg ...Petitioner Versus State Of U.P. ...Respondent Counsel for the Petitioner: Om Prakash Srivastava, Virendra Kr. Dubey Counsel for the Respondent: C.S.C. Headnote: Para - Departmental enquiry-Violation of principles of natural justice-Non-production of original documents-No opportunity of cross-examination-Charges treated as proved without leading evidence-Enquiry vitiatedDismissal order quashed-Matter remitted for fresh enquiry from stage of reply to charge-sheetReinstatement to be considered by disciplinary authority. Case Law discussed: Chamoli District Co-Operative Bank Ltd. v. Raghunath Singh Rana & Ors., Civil Appeal No. 2265 of 2011 Sur Enamel and Stamping Works Pvt. Ltd. v. Their Workmen, (1964) 3 SCR 616 State Bank of India v. R.K. Jain, (1972) 4 SCC 304 State of Uttaranchal v. Kharak Singh, (2008) 8 SCC 236 ECIL v. B. Karunakar, (1993) 4 SCC 727 Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd., (1999) 2 SCC 21 Syndicate Bank v. Venkatesh Gururao Kurati, (2006) 3 SCC 150 Conclusion: The Court held that the departmental enquiry against the petitioner was conducted in clear breach of the settled principles of natural justice. The department failed to prove the charges by leading evidence, did not produce original documents, and denied the petitioner opportunity to cross-examine witnesses. Consequently, the dismissal order dated 02.11.2012 and corrigendum dated 12.11.2012 were quashed. The respondents were directed to conduct a fresh enquiry from the stage of reply to the charge-sheet within four months, and the disciplinary authority was left free to consider reinstatement in accordance with law. (Delivered by Hon'ble Satyendra Singh Chauhan, J. & Hon'ble Anil Kumar, J.)