# Uma Kant Yadav v. State of U.P. and others

- **Citation:** (2007) 2 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-23
- **Case number:** Civil Misc. Writ Petition No. 14434 of 2007
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-kant-yadav-v-state-of-u-p-and-others-40946
- **Pages:** 6

## Headnote

Constitution of India Art. 226-read with
Arms Act Section 21-General direction to
deposit fire Arm without taking recourse
of law-contained in Arms Act-basis of
impugned
order-G.O.
dated
11.2.07
considering
election-petitioners
are
Advocate, M.P. or M.L.A. or Doctors or
Security Guard-direction contained in
para 10 of impugned order passed by
D.M.-empowering
S.H.O.-held-
wholly
illegal
and
unwarranted-can
not
sustained-guide line issued.

Held: Para 17
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Consequently, this Court is of the opinion
that the direction given by the District
Magistrate to the Station House Officer
for depositing the fire arms from the
licence holders was wholly illegal and
unwarranted.
The
said
direction
as
contained in paragraph No.10 of the
order
of
the
District
Magistrate,
Allahabad dated 6.3.2007 cannot be
sustained.
Case law discussed:
1994 ACJ-315, 2000 ALR (38)-44, 2002 ACJ586, 2000 (40) ALR-281, 1996 (27) AL-198,
200 ALJ-2246, 2004 (5) AWC-4675, 2004 ACJ1312, W.P. No. 12755/96 decided on 12.1.96

## Text

2 All] Uma Kant Yadav. V. State of U.P. and others
475
considering various judgments of the
Supreme Court held that where the
applicant
obtained
an
order
by
misrepresentation or by playing a fraud
upon the competent authority, such an
order could not be sustained in the eyes of
law .

In District Collector and Chairman
Vizianagram
Social
Welfare
Residential School Society vs. M.
Tripura Sundari Devi, 1990 (3) SCC
655, the Supreme Court held:-
"If
by
committing
fraud
any
employment is obtained, the same cannot
be permitted to be countenanced by a
Court of Law as the employment secured
by fraud renders it voidable at the option
of the employer."

12. Consequently, by playing a
fraud, it was no longer open to the
workman to plead that he was entitled to a
right of hearing. In my opinion, the
workman cannot claim any right arising
out of his wrong doing. The principles of
"Juri Ex Injuria Non Oritur" is squarely
applicable.

13. In view of the fraud played by
the workman, the question of complying
with the requisite requirement of Section
6-N does not arise in the fact of the
circumstances of this case. Apart from the
aforesaid, the provisions of Section 6-N
of the U.P. Industrial Disputes Act comes
into play provided the workman proves
that he had worked for 240 days in a
calendar year. In the present case there is
no material on the record to prove that the
workman had actually worked for more
than 240 days in a year. Consequently, the
provisions of Section 6-N of the Act is not
applicable in the present case.

14. In view of the aforesaid, this
Court is of the opinion that the award of
the Labour Court cannot be sustained and
is therefore quashed. The writ petition is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2007

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 14434 of 2007

Uma Kant Yadav

...Petitioner
Versus
State of U.P. Through Chief Secretary,
Govt. of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.K. Yadav
Sri Rakesh Pandey
Sri B.P. Singh
Sri S.C. Pandey
Sri R.C. Yadav
Sri M.S. Yadav

Counsel for the Respondents:
Sri J.K. Khanna
Sri B.N. Mishra
Sri Waseem Alam
S.C.

Constitution of India Art. 226-read with
Arms Act Section 21-General direction to
deposit fire Arm without taking recourse
of law-contained in Arms Act-basis of
impugned
order-G.O.
dated
11.2.07
considering
election-petitioners
are
Advocate, M.P. or M.L.A. or Doctors or
Security Guard-direction contained in
para 10 of impugned order passed by
D.M.-empowering
S.H.O.-held-
wholly
illegal
and
unwarranted-can
not
sustained-guide line issued.

Held: Para 17
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Consequently, this Court is of the opinion
that the direction given by the District
Magistrate to the Station House Officer
for depositing the fire arms from the
licence holders was wholly illegal and
unwarranted.
The
said
direction
as
contained in paragraph No.10 of the
order
of
the
District
Magistrate,
Allahabad dated 6.3.2007 cannot be
sustained.
Case law discussed:
1994 ACJ-315, 2000 ALR (38)-44, 2002 ACJ586, 2000 (40) ALR-281, 1996 (27) AL-198,
200 ALJ-2246, 2004 (5) AWC-4675, 2004 ACJ1312, W.P. No. 12755/96 decided on 12.1.96

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri R.K. Yadav, Sri Rakesh
Pandey, Sri B.P. Singh, Sri S.C. Pandey
and Sri R.C. Yadav, and other learned
counsels appearing for the petitioners at
length and Shri J.K. Khanna, Sri B.N.
Misra and Sri Waseem Alam, the learned
Standing Counsels for the respondents.

2. Since the matter is one of urgency
and no disputed facts are required to be
considered, this group of petitions are
being decided together, with the consent
of the parties at the admission stage itself,
without the exchange of counter or
rejoinder affidavits. However, pursuant to
the direction of the Court, the Standing
Counsel has filed an application bringing
on record the order of the State
Government dated 11.2.2007 and the
consequential order dated 6.3.2007 issued
by the District Magistrate, Allahabad with
regard to the deposit of fire arms during
the ensuing general assembly elections.

3. The preamble to our Constitution
seeks
to
give
India
a
democratic
Constitution which provides for holding
free, fair and peaceful elections and to
achieve this constitutional goal, the
constitutional authorities as well as other
authorities
are
empowered
to
take
appropriate action by exercising its power
either under the Constitution or under the
existing laws.

4.

Whenever,
elections
are
announced, the authorities, in the past,
have been issuing general directions with
regard to the deposit of fire arms during
the election period. The compliance of
these directions had become a bone of
contention by the law abiding citizens,
who refused to surrender the weapons for
various reasons. It has been noticed that
whenever the election process started, a
large number of writ petitions were filed
praying that the authorities should be
restrained from compelling the petitioners
from depositing their weapons. Various
directions had been issued by the Court
directing the authorities not to force the
licence holders from depositing their
weapons. Inspite of these directions, the
State Government comes out with another
ingenuous method for the compulsory
deposit of arms which has no authority or
sanction of law.

5. In Mohd. Arif Khan and others
vs. District Magistrate, Lucknow and
others, 1994 A.C.J 315, a Division
Bench of this Court, while quashing the
order of the District Magistrate passed
under Section 144 Cr.P.C. for depositing
of the fire arms held, that it was based on
the directive of the Election Commission
and was not based on the own opinion of
the District Magistrate and consequently
suffered from the non application of the
mind. The Court held that the power to
take action under Section 144 Cr.P.C. was
discretionary and the same had to be
exercised in accordance with law. The
Court further found that if any action was
2 All] Uma Kant Yadav. V. State of U.P. and others
477
required to be taken under the said
provision, the authority was required to
consider the material facts of the case and
form a bonafide opinion on relevant
consideration as to whether there was a
sufficient ground for proceeding under
that Section and whether immediate
prevention
or
speedy
remedy
was
desirable. The Court further found that if
the authority found that such a situation
existed, in that eventuality, the authority
could direct any person to abstain from
doing a certain act but could not pass a
general order for depositing the fire arms.

6. Subsequently, the Court in
Shahabuddin and others vs. State of
U.P. And others, 2000 (38) A.L.R. 44
issued a mandamus directing the State
Authorities not to compel the licence
holders to deposit the firm arms on the
basis that elections are going to be held in
the near future. Similar direction was
again issued in Mohd. Arif Khan and
others vs. State of U.P. and others 2002
A.C.J. 586.

7. In Ram Hit Vs. State of U.P.
and others, 2000 (40) ALR 281, the
Court held that the authority cannot
compel a citizen to deposit the fire arms
unless there was a specific order by a
competent authority under the Arms Act.

8. In Israr Khan Vs. State of U.P.,
1996(27) ALR 198, the Court held that
the weapon could only be deposited in
accordance with law as contemplated
under the Arms Act and that the weapon
could not be deposited under an oral order
of the Station House Officer.

9. In Pandhari Yadav vs. State of
U.P. And others, 2004 A. L.J. 2246, the
Court held that the retention of the fire
arms was essential to the preservation of
the life and property of the licence holder.

10. In Shesh Nath Nayak vs.
District Magistrate, Sant Kabir Nagar
and another, 2004 (5) AWC 4675, a
single judge of this Court held that even
though the Election Commissioner could
issue
orders
directing
the
District
Magistrate to get the fire arms deposited
as a preventive measure for conducting
free and fair election, nonetheless, the
deposit of the fire arms could only be
sought through legitimate means, i.e., on a
review of each individual case on
objective assessment.

11. In Yaduvir Singh Chauhan vs.
District Magistrate, Etah and other,
1993, A.C.J 1312, this Court quashed the
notification of the Election Commissioner
as well as the order of the District
Magistrate with regard to the deposit of
fire arms of the valid licence holders.
Similar view was reiterated in Shri
Narayan
Shukla
and another vs.
District Magistrate, Allahabad and
others decided on 12.1.1996 in Civil
Misc. Writ Petition No.12755 of 1996.

12.

Inspite
of
the
aforesaid
directions, upon the announcement of the
ensuing Assembly elections, a bunch of
writ petitions have again been filed
alleging that the State Administration has
issued some orders for the deposit of the
weapons and based on such orders, the
Station House Officer was compelling the
petitioners and other law abiding citizens
to deposit the fire arms.

13. In this bunch of the writ
petitions, the petitioners before the Court
is a Member of Parliament, a Member of
Legislative Assembly, a Doctor, an
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Advocate, a farmer , a businessman, a
prospective candidate in the ensuing
election, a Security Guard, a Central
Government Employee, etc. Some of the
writ petitioners have approached this
Court contending that they are valid
licence holders of the fire arms and could
not be compelled to deposit their arms on
the basis of some general orders being
issued by the Administration. Some of the
petitioners have alleged that the licence
was granted to them because of the
danger to their life and property. Another
petitioner has approached this Court
contending that he is a security guard and
that he is required to carry the fire arms as
part
of
his
employment.
Another
petitioner has contended that in the last
election his brother was shot dead by a
rival candidate and that he was also
seriously wounded, and therefore requires
the weapon to protect himself. There is
yet
another
petitioner,
who
has
approached this Court contending that as
a law abiding citizen he had deposited the
weapon in the last election as per the
direction of the Administration and the
Station House Officer, and that the
Station House Officer refused to hand
back the weapon to him after the elections
were over. The weapon was only released
when a mandamus was issued by the High
Court in his petition. The petitioner
contends that he does not want to undergo
the same harassment again.

14. All the petitioners, by and large,
contend that no sweeping orders could be
issued
by
the
Administration
for
depositing the fire arms. The petitioners
contend that they are law abiding citizens
and that no criminal cases are pending
against them nor have they misused their
weapons. It was urged that no orders had
been passed either suspending their
licence nor any orders had been passed
cancelling their licence under the Arms
Act, and therefore, the petitioners cannot
be compelled to deposit the fire arms
merely because the Assembly election
were going to be held in the near future.
The petitioners have further contended
that no notice has been issued for
depositing the fire arms. A learned
Advocate of this Court submitted that
only
yesterday
he
had
heard
an
announcement on a loudspeaker directing
the citizens to deposit the fire arms at the
local
police
station.
The
counsel
submitted that such general orders could
not be issued by the local Administration.

15. This Court had directed the
Standing Counsel appearing on behalf of
State of U.P. and the local administration
to seek necessary instructions.

The Standing Counsel has filed an
application today bringing on record an
order dated 11.2.2007 issued by the Chief
Secretary and the Director General of
Police
directing
all
the
District
Magistrates
and
other
officers
for
compliance of various directions in the
ensuing Assembly elections. Para 6 of this
order pertains to the deposit of the fire
arms, in which the State Government has
directed the authorities to reappraise the
fire arms licence issued by them and take
appropriate action for the deposit of fire
arms, suspension or cancellation in
accordance with the provisions of law,
where it was found that the licence holder
was likely to misuse the weapon.

In my view, the aforesaid direction
of the State Government as contained in
paragraph No.6 of its order dated
11.2.2007 is in consonance with the
provision of the Arms Act and in
2 All] Uma Kant Yadav. V. State of U.P. and others
479
accordance with the directions issued by
this Court, from time to time, in various
judgments but, based on this direction, the
District Magistrate, Allahabad has issued
a further direction in paragraph No.10 of
its order dated 6.3.2007 directing the
Station House Officer to submit a
certificate indicating therein that he had
made all the licence holders in his
jurisdiction to deposit the weapon where
in his opinion, the licence holder was
likely to misuse the weapon during the
election period. This portion of the order
has given unlimited power to the Station
House Officer pressurising the law
abiding citizens to deposit their weapons.
The question, at this stage, to be
considered is, whether such an omnibus
order could be issued by the District
Magistrate to the Station House Officer
for depositing the weapons? Can the
District Magistrate issue a direction to the
Station House Officer to exercise his
discretion for depositing the fire arms ?

In my view, the direction issued by
the District Magistrate, as contained in
paragraph No.10 of its order dated
6.3.2007
is
totally
illegal
and
unwarranted. Such power cannot be
delegated to the Station House Officer.
Under Section 21 of the Arms Act, 1959,
a fire arms could be deposited under
certain conditions mentioned therein. The
arms licence can be suspended or
cancelled under the provision of Arms
Act by a competent authority and while
passing such an order, the authority could
direct the licence holder to deposit the
weapon. Even under Section 144 Cr.P.C.,
the competent authority has to apply his
mind and exercise its discretion before
issuing an order of restraint. Such power,
under the Arms Act or under any other
statutory provision is required to be
exercised by a competent authority and
such power cannot be delegated to
another person, especially to a Station
House Officer.

16. Undoubtedly, the arms licence is
issued under the Arms Act. There exists a
provision for the revocation, suspension,
cancellation and for the deposit of the fire
arms. Action, if any, for the deposit of the
fire arms is required to be taken under the
Arms Act. The District Magistrate or any
other authority could not seek the deposit
of the fire arms without initiating action
under the Arms Act.

17. Consequently, this Court is of
the opinion that the direction given by the
District Magistrate to the Station House
Officer for depositing the fire arms from
the licence holders was wholly illegal and
unwarranted.
The
said
direction
as
contained in paragraph No.10 of the order
of the District Magistrate, Allahabad
dated 6.3.2007 cannot be sustained.

18. In view of the aforesaid, these
writ petitions are being disposed of with
the following directions;

(i) The direction contained in the order
of the District Magistrate, Allahabad
dated 6.3.2007 to the Station House
Officer for the deposit of the fire
arms from the licence holders is
quashed.
(ii) A mandamus is issued to the
respondents
and
its
authorities,
including the Station House Officer,
not to compel the petitioners and
other licence holders to deposit their
fire arms unless,
(a) A
review
and
objective
assessment is made in individual cases by
the competent authority, as directed by
480 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the State Government in its order dated
11.2.2007 and
(b) if it is found by the competent
authority that there is a chance of the
misuse of the weapon, an appropriate
order in writing is required to be
passed by the competent authority
for the deposit of the fire arms.
(c) The order of the deposit of the
weapon made by the competent
authority
in writing should be
communicated to the licence holder.
(d) The directions contained aforesaid
will apply not only for this election
but for all elections.

19. A certified copy of this order
shall be made available to the parties on
payment of usual charges within four days
from today. The registry is also directed
to supply a certified copy of this judgment
to Sri J.K. Khanna, the learned Standing
Counsel within the same period, who
shall immediately forward it to the Chief
Secretary of the State of Uttar Pradesh,
for necessary communication to all the
authorities in the State of Uttar Pradesh,
for immediate compliance.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 35360 of 2003

Krishna Mohan Srivastava
...Petitioner
Versus
State of U. P. and others ...Respondents

Counsel for the Petitioner:
Sri D.K. Tiwari

Counsel for the Respondents:
S.C.

Arms Act-Section-14-Refusal to grant
arm
licence-No
reason
assigned
by
District Magistrate-only reason disclosed
for refusal that the application not
contains any reason for grant of licenceheld-order of refusal on the face of
record itself suffer from error of law by
quashing the impugned order-direction
issued for fresh consideration.

Held: Para 9

In view of the above, the order passed
by the District Magistrate, Allahabad
refusing to grant Arm's license to the
petitioner suffers from error of law
apparent on the face of record and the
order passed by the Appellate authority
affirming the same was also passed
without application of mind, though the
Appellate authority mentioned in its
order
that
the
petitioner
is
a
businessman and requires an Arm's
license for protection of his life and
property.

(Delivered by Hon'ble S.N. Srivastava. J.)

1. This writ petition is directed
against the order dated 9.10.2002, passed
by the District Magistrate, Allahabad and
the order dated 4.3.2003, passed by the
Commissioner,
Allahabad
Division,
Allahabad in Appeal affirming the order
passed by the District Magistrate refusing
to grant Arm's license to the petitioner.

2. Inspite of the order dated
4.10.2006 passed by this Court, neither
any counter affidavit has been filed by the
State nor original application of petitioner
has been produced before the Court.

Heard learned counsel for the parties.