Judgment:
ORDER
K.K. Lahoti, J.
1. Petitioner has filed present petition challenging the order (Annexure P-1) passed by Commissioner, Bhopal Division, Bhopal dated 8-7-2003 in Appeal No. 65/2002-03, by which the learned Commissioner has declined to entertain the application for stay on the ground that the authority has no power under Section 18 of Arms Act, 1959 to stay the impugned order.
2. Learned Counsel for petitioner submits that the aforesaid application ought to have been considered by the authority under Section 18(6) of the Arms Act, 1959 (hereinafter referred to as 'Act' for short). The authority was empowered to pass any order conditional or unconditional in this regard and the authority has not considered the provision of Section 18(6) of the Act, while deciding the aforesaid application.
3. Section 18 of the Act reads as under :--
'18. Appeals.-- (1) Any person aggrieved by an order of the licensing authority refusing to grant a license or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as 'the appellate authority') and within such period as may be prescribed :
Provided that no appeal shall lie against any order made by, or under the direction of, the Government.
(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor :
Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period.
(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Indian Limitation Act, 1908, with respect to the computation to periods of limitation thereunder.
(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed.
(5) In disposing of an appeal the appellate authority shall follow such procedure as may be prescribed :
Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.
(6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order.
(7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.'
Section 18(6) provides that the order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal. This provision specifically empowers the appellate authority to pass interim order during the pendency of appeal. The discretion is vested with the appellate authority to consider the application in the facts and circumstances of each case and if the appellate authority finds that the circumstances exists, then it may pass appropriate orders, conditional or unconditional and in that circumstances, the impugned order shall be given effect, in accordance with the directions issued by the appellate authority. The aforesaid provision vests the powers in the appellate authority to consider the application for interim direction. Though there is no specific provision under the Act for grant of stay, but the authority has been vested with aforesaid powers. The aforesaid provision has been made to meet out the exigency arising in the case and so the powers are vested to the appellate authority to consider the case and pass interim order, as envisaged in the Act. Petitioner may invoke the aforesaid provision for interim relief in this regard by filing appropriate application before the authority.
4. Considering the aforesaid, this petition stands finally disposed of with following directions :--
(1) Petitioner may file a fresh application before the authority invoking powers under Section 18(6) of the Act.
(2) If such an application is filed by the petitioner, learned Commissioner will consider it, in accordance with law and will pass appropriate orders, considering the facts and circumstances of the case, without being prejudiced by the passing of impugned order dated 8-7-2003.
C.C. as per rules.