# Upadhayay v. Collector, Ballia & Ors., 2008 (26) LCD

- **Citation:** (2009) 3 ILRA 781
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-08
- **Case number:** Civil Misc. Writ Petition No. 35367 of 1992
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upadhayay-v-collector-ballia-ors-2008-26-lcd-41456
- **Pages:** 3

## Headnote

Arms Act-Section-17- Cancellation of gun
licence
-on
ground
of
Solitary
involvement in Criminal Case-finalized
on basis of compromise-offence under
Section 107/117-not arises out of any
public disturbance-inspite of 17 years no
counter affidavit filed-held-cancellation
order wholly illegal.

Held: Para-7

Having considered the matter on facts as
well as in law, this Court finds that the
impugned orders dated 20.12.1988 and
26.08.1992 are unsustainable and are
accordingly set aside. The arms license
of the petitioner shall stand restored.
Case law discussed:
1986 AWC 1166, 1966 SC 740, 2003 (1) ACJ
124

## Text

3 All] Ashiq Hussain V. Commissioner and others

781
highest.
The
auction
sale
was
consequently confirmed by the Sub
Divisional Officer, Banda, the respondent
no.2, by its order dated 31st May, 1988.
The petitioner, being aggrieved by the
confirmation of the sale, has filed the
present writ petition.

3. Amongst the other grounds raised
by the petitioner, this Court is confining
the submission to only one ground,
namely, that the sale could not have been
confirmed by the Sub Divisional Officer
and could only have been confirmed by
the Collector, as contemplated under Rule
285-J of the U.P. Zamindari Abolition and
Land Reforms Rules.

4.

In
Ajay
Upadhayay
vs.
Collector, Ballia & Ors., 2008 (26) LCD
623, a Division Bench of this Court, after
analysing various Government Orders,
issued from time to time, held that the
Sub
Divisional
Officer/the
Deputy
Collector had no power to confirm or set
aside the sale, and was only given the
power to conduct the same. The Division
Bench held that the power to confirm or
aside the sale only lies with the Collector,
and to no other authority. Similar view
was again held by another Division Bench
in Ram Awadh Tiwari vs. Sudarshan
Tiwari & Ors., 2008(6) ALJ 24.

5. In View of the aforesaid, this
Court is of the opinion that the order of
the Sub Divisional Authority dated 31st
May 1988 confirming the sale is patently
illegal and cannot be sustained and is
quashed. The writ petition is allowed. The
matter is remanded to the Collector to
pass a fresh order on the alleged auction,
sale after hearing the objections raised by
the petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.09.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 35367 of
1992

Ashiq Hussain

...Petitioner
Versus
Commissioner and others ...Respondents

Counsel for the Petitioner:
Sri Subhash Kumar
Sri Subodh Kumar
Sri Udit Chandra
Sri Vijai Kumar Dixit

Counsel for the Respondents:
S.C.

Arms Act-Section-17- Cancellation of gun
licence
-on
ground
of
Solitary
involvement in Criminal Case-finalized
on basis of compromise-offence under
Section 107/117-not arises out of any
public disturbance-inspite of 17 years no
counter affidavit filed-held-cancellation
order wholly illegal.

Held: Para-7

Having considered the matter on facts as
well as in law, this Court finds that the
impugned orders dated 20.12.1988 and
26.08.1992 are unsustainable and are
accordingly set aside. The arms license
of the petitioner shall stand restored.
Case law discussed:
1986 AWC 1166, 1966 SC 740, 2003 (1) ACJ
124

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Shri Udit Chandra holding
brief of Shri Subhodh Kumar, learned
782 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

counsel for the petitioner and the learned
standing counsel.

2. This writ petition arises out of
proceedings under the Arms Act, whereby
the licensing authority has cancelled the
arms license of a D.B.B.L. gun of the
petitioner.

3. The appeal filed by the petitioner
has met the same fate. The ground for
challenge is that there is only a single
incident reported against the petitioner
and in the said incident the matter was
foreclosed after a compromise was
entered into between the parties. Learned
counsel for the petitioner contends that no
ground of disturbing peace and tranquility
was made out, and the question of
involvement in one criminal case, against
the petitioner, is a single incident of law
and order, which could not have been
made the basis for cancellation.

4. This petition was filed in the year
1992. Inspite of 17 years having lapsed,
no counter affidavit has been filed on
behalf of the State. In such a situation
there is no option for this Court except to
dispose of the writ petition finally at this
stage. The writ petition was entertained
and an interim order was passed on
23.09.1992, whereby the operation of the
impugned order was directed to remain
stayed for a certain period.

5. I have perused the order of the
District Magistrate as also the order of the
learned
Commissioner.
The
charges
levelled against the petitioner were
confined only to the involvement of the
petitioner in a solitary criminal case,
which has already been settled out side
Court and on the basis of the said
compromise the petitioner has been
discharged. Further the order under
Sections 107/116 Cr.P.C. had lapsed
keeping in view the period for such orders
can be passed and as such in that view of
the matter there was absolutely nothing
existing so as to warrant the authority to
proceed to cancel the license of the
petitioner. A perusal of the impugned
orders indicate that the petitioner had
allegedly used his fire arm to threaten his
opponents in a Gaon Sabha meeting. The
said incident indicated herein above has
already been compromised. In such
matters this Court has to find out as to
whether a license for a firearm can be
allowed to be retained if there is an
element of disturbance of public peace
and tranquility. In the case of Illam Singh
Vs. Commissioner, Meerut Division,
Meerut and others reported in 1986
AWC 1166, the distinction between law
and order and public order has been
explained. The ratio in the case of Ram
Manohar Lohia Vs. The State of Bihar
and another reported in AIR 1966 SC
740 and followed later on in a large
number of decisions by the Apex Court as
well as this Court also explain the said
distinction.

6. The mere involvement in a
solitary criminal case cannot be a ground
for cancellation of a firearm license as
held by this Court in case of Mohd.
Haroon Vs. The District Magistrate,
Siddharth Nagar reported in 2003 (1)
ACJ 124, unless and until it is shown on
the basis of material on record that there
was grave danger to public law and order.
In the instant case it is only a solitary
incident, which was not arising out of any
disturbance of public law and order, that
has been made the basis for ordering
cancellation.
3 All] Kishan Singh V. State of U.P. and others

783
7. Having considered the matter on
facts as well as in law, this Court finds
that
the
impugned
orders
dated
20.12.1988
and
26.08.1992
are
unsustainable and are accordingly set
aside. The arms license of the petitioner
shall stand restored.

8. The writ petition stands allowed
in the light of the aforesaid observations
made herein above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.71098 of 2006

Kishan Singh

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

Counsel for the Petitioner:
Sri G.P. Pal
Sri S.C. Dwivedi

Counsel for the Respondents:
Sri Q.H. Siddiqui
S.C.

Civil Services Regulation-424- Qualifying
period for pension-petitioner worked
from
1963
to
1997
as
Seasonal
Collection peon-substantive appointment
given on 31.1.96. retired on 28.02.05working of petitioner on substantive
basis less than 10 years-disentitled the
petitioner from pensionary benefits-case
relied
by
petitioner
quite
distinguishable-working on temporary
capacity
can
not
be
equated
with
seasonal working.

Held: Para-7

The
provisions
of
Civil
Service
Regulations have been held sub-served
to the statutory provision contained in
Fundamental
Rule
56
which
was
substituted by Legislative Act, i.e., U.P.
Act No. 24 of 1975 only to the extent the
regulations
inconsistent
with
the
legislative
provision
would
be
inoperative. This Court laid down that
the
provisions
of
Civil
Service
Regulations i.e., in respect to Article
361(1) (b), the word "substantive" and
"permanent" is redundant since after the
amendment made in Fundamental Rule
56 even a temporary Government was
entitled for pension and, therefore,
temporary
service
was
held
to
be
qualifying service for pension but rest of
the provision continued to be valid and
operative. A seasonal employee, cannot
be equated with a temporary employee.
This Court has not been shown any
provision where under even a seasonal
employee is entitled for pension.
Case law discussed:
2006(1) ESC 611, 1983 (1) SCC 305, 1989 ACJ
337.

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

1. Heard Sri G.P. Pal, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. It is not in dispute that the
petitioner was engaged as Seasonal
Collection
Peon
on
13.06.1963,
regularised
as
Collection
Peon
on
31.01.1996, confirmed on the post of
Collection Peon on 04.09.2000, attained
the age of superannuation on 28.02.2005
and
retired
from
the
said
post.
Considering his qualifying service of less
than 10 years, the respondents have not
paid any pension to him hence this writ
petition. Reliance is placed by learned
counsel for the petitioner on a Division
Bench decision of this Court in Board of