Bansilal Nanda S/O Brindawan Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - superintendent of police, by his report annexure-b gave the positive report in favour of the petitioner clearly stating that the petitioner bears good conduct and holds property. the superintendent of police recommended the grant. the sub-divisional magistrate called for the report of tahsildar and after receiving the report found that the petitioner is, having a good financial status, a respectable person and is entitled to hold the arms. he also recommended for grant of licence. true it is that to grant or refuse the licence is within the domain of the district magistrate, but a refusal can only be made on the grounds well described under section 14 or the grounds which are akin to it. there are variety of the reasons for which a person would like to hold an arm with him and the best of those is the self defence.orderr.s. garg, j.1. by this petition, under article 226/227 of the constitution of india, the petitioner challenges the correctness, validity and propriety of the orders annexure-f, dated 4-7-1984 passed by the district magistrate, satna and annexure-i, passed by the commissioner, rewa in appeal case no. 20/arms/84-85, dated 26-11-1984.2. the petitioner applied for grant of a licence of a revolver. according to the petitioner, the licence was required for defence of person and property. after the application was filed, various reports were called for. superintendent of police, by his report annexure-b gave the positive report in favour of the petitioner clearly stating that the petitioner bears good conduct and holds property. the superintendent of police recommended the grant. the sub-divisional magistrate called for the report of tahsildar and after receiving the report found that the petitioner is, having a good financial status, a respectable person and is entitled to hold the arms. he also recommended for grant of licence. the patwari also submitted his report in favour of the petitioner recommending that the licence can be given in favour of the petitioner. in view of all these certificates/reports, ordinarily a licence could have been granted in favour of the petitioner, but the learned district magistrate, satna by its order dated 4-7-1984 observed that in the township of maihar sufficient arms are available, the township is not infested by dacoits, therefore, the petitioner is not entitled to a licence. the said order was challenged by the petitioner before the commissioner but the said appeal proved to be futile. the additional argument of the petitioner, that as he has to carry cash with him, he is entitled to a revolver, was also rejected holding that if the firm's cash is being carried by the petitioner, then the firm could apply for the licence.3. shri dhande, learned counsel for the petitioner submits that application for grant of licence made under section 13 of the indian arms act can only be rejected if the foundation is available under section 14 of the act. he submits that the grounds for rejection must be germane or akin to the provisions of section 14 and a licence cannot be refused on the grounds on which it has been refused.4. shri khaskalam, learned deputy advocate general, on the other hand, submitted that reasonable reasons have been given by the district magistrate, satna, therefore, this court should refrain from making any interference in the said order.5. according to section 13 of the indian arms act, an application for grant of the licence shall be made to the licensing authority and shall be in such form and shall contain all such particulars and should be accompanied by such fees as may be prescribed. on receipt of such an application, after making such inquiries as are considered necessary, the licensing authority may grant the licence or refuse to grant the same. true it is that to grant or refuse the licence is within the domain of the district magistrate, but a refusal can only be made on the grounds well described under section 14 or the grounds which are akin to it. according to section 14, the licensing authority shall refuse to grant a licence in respect of any prohibited arms or prohibited ammunitions or it may be refused if the person seeking the licence has been prohibited by the arms act or by any other law for the time being inforce from acquiring such arms or ammunitions or the applicant is of unsound mind or he is unfit for any other reason or where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. according to section 14(2) of the act, the licensing authority shall not refuse to grant the licence merely on the ground that such applicant does not own sufficient property. the licensing authority in the instant case has rejected the application on two grounds. firstly that in the township of maihar sufficient arms are available and secondly the area is not infested by the dacoits or there is no intimidation by the dacoits. in my opinion, these two grounds were not sufficient to reject the application. for rejecting the application for grant of a license, the authority must act within section 14 of the act and if section 14 is not considered to be exhaustive then for a reason which is akin to the reasons given in section 14 of the act. it is unfortunate that despite recommendations of all concerned, the licensing authority thought it fit not to grant the licence. the appellate order also does not consider these aspects of the matter. according to para 4 of the appellate order, the learned district magistrate has given proper reasons. in para 5 the learned commissioner has considered the comments of the district judge whose order was under challenge before him. i do not understand the propriety of calling for the comments of the authorities whose order was under challenge before the appellate authority. the appellate authority should have decided the matter on its own merits without being influenced by the comments of the officer whose order was under challenge. it cannot be expected for a prospective licence holder that at the time of some attack upon him or where his person or property is in danger, he would go and ask for the arms from the others. the sufficiency of the arms in the township would be no reason for refusing the licence. whether an area is infested by dacoits or not would again be no reason because the person or the property of a person does not face the danger only from the dacoits. there are variety of the reasons for which a person would like to hold an arm with him and the best of those is the self defence. the grounds on which the application was rejected are absolutely illegal and contrary to provisions of law. the orders annexure f & i are quashed. the matter is remanded back to the licensing authority/district magistrate to decide the application afresh within three months from the date of production of this order, keeping in view the observations made by this court in this order.there shall be no orders as to cost. the amount of security, if any, be refunded to the petitioner after due verification.

Judgment:
ORDER

R.S. Garg, J.

1. By this petition, under Article 226/227 of the Constitution of India, the petitioner challenges the correctness, validity and propriety of the orders Annexure-F, dated 4-7-1984 passed by the District Magistrate, Satna and Annexure-I, passed by the Commissioner, Rewa in appeal case No. 20/Arms/84-85, dated 26-11-1984.

2. The petitioner applied for grant of a licence of a revolver. According to the petitioner, the licence was required for defence of person and property. After the application was filed, various reports were called for. Superintendent of Police, by his report Annexure-B gave the positive report in favour of the petitioner clearly stating that the petitioner bears good conduct and holds property. The Superintendent of Police recommended the grant. The Sub-Divisional Magistrate called for the report of Tahsildar and after receiving the report found that the petitioner is, having a good financial status, a respectable person and is entitled to hold the arms. He also recommended for grant of licence. The Patwari also submitted his report in favour of the petitioner recommending that the licence can be given in favour of the petitioner. In view of all these certificates/reports, ordinarily a licence could have been granted in favour of the petitioner, but the learned District Magistrate, Satna by its order dated 4-7-1984 observed that in the township of Maihar sufficient arms are available, the township is not infested by dacoits, therefore, the petitioner is not entitled to a licence. The said order was challenged by the petitioner before the Commissioner but the said appeal proved to be futile. The additional argument of the petitioner, that as he has to carry cash with him, he is entitled to a revolver, was also rejected holding that if the firm's cash is being carried by the petitioner, then the firm could apply for the licence.

3. Shri Dhande, learned counsel for the petitioner submits that application for grant of licence made under section 13 of the Indian Arms Act can only be rejected if the foundation is available under section 14 of the Act. He submits that the grounds for rejection must be germane or akin to the provisions of section 14 and a licence cannot be refused on the grounds on which it has been refused.

4. Shri Khaskalam, learned Deputy Advocate General, on the other hand, submitted that reasonable reasons have been given by the District Magistrate, Satna, therefore, this Court should refrain from making any interference in the said order.

5. According to section 13 of the Indian Arms Act, an application for grant of the licence shall be made to the licensing authority and shall be in such form and shall contain all such particulars and should be accompanied by such fees as may be prescribed. On receipt of such an application, after making such inquiries as are considered necessary, the licensing authority may grant the licence or refuse to grant the same. True it is that to grant or refuse the licence is within the domain of the District Magistrate, but a refusal can only be made on the grounds well described under section 14 or the grounds which are akin to it. According to section 14, the licensing authority shall refuse to grant a licence in respect of any prohibited arms or prohibited ammunitions or it may be refused if the person seeking the licence has been prohibited by the Arms Act or by any other law for the time being inforce from acquiring such arms or ammunitions or the applicant is of unsound mind or he is unfit for any other reason or where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. According to section 14(2) of the Act, the licensing authority shall not refuse to grant the licence merely on the ground that such applicant does not own sufficient property. The licensing authority in the instant case has rejected the application on two grounds. Firstly that in the township of Maihar sufficient arms are available and secondly the area is not infested by the dacoits or there is no intimidation by the dacoits. In my opinion, these two grounds were not sufficient to reject the application. For rejecting the application for grant of a license, the authority must act within section 14 of the Act and if section 14 is not considered to be exhaustive then for a reason which is akin to the reasons given in section 14 of the Act. It is unfortunate that despite recommendations of all concerned, the licensing authority thought it fit not to grant the licence. The appellate order also does not consider these aspects of the matter. According to para 4 of the appellate order, the learned District Magistrate has given proper reasons. In para 5 the learned Commissioner has considered the comments of the District Judge whose order was under challenge before him. I do not understand the propriety of calling for the comments of the authorities whose order was under challenge before the appellate authority. The appellate authority should have decided the matter on its own merits without being influenced by the comments of the officer whose order was under challenge. It cannot be expected for a prospective licence holder that at the time of some attack upon him or where his person or property is in danger, he would go and ask for the arms from the others. The sufficiency of the arms in the township would be no reason for refusing the licence. Whether an area is infested by dacoits or not would again be no reason because the person or the property of a person does not face the danger only from the dacoits. There are variety of the reasons for which a person would like to hold an arm with him and the best of those is the self defence. The grounds on which the application was rejected are absolutely illegal and contrary to provisions of law. The orders Annexure F & I are quashed. The matter is remanded back to the licensing authority/District Magistrate to decide the application afresh within three months from the date of production of this order, keeping in view the observations made by this Court in this order.

There shall be no orders as to cost. The amount of security, if any, be refunded to the petitioner after due verification.