M/s. MALWA BANDUK GHAR v. THE STATE OF MP

O R D E R ( 20/12/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 15/2/2011 by which the terms and conditions of the licence have been varied without hearing the petitioner at any point of time in the matter. Learned counsel for the petitioner has straightaway placed reliance on the judgment delivered on 17/3/2011 in the case of Smt. Sakina Bandookwala Vs. State of MP and others (WP NO. 11058 / 2010). The order passed by this court in the aforesaid case, reads as under : The petitioner before this Court, an arms dealer, has filed this present petition being aggrieved by order dt. 19/7/2010 by which the State Government has passed an order while renewing the license of the --- 2 --- petitioner upto 31/12/2012, by which the terms and conditions of the license have been varied. The contention of the petitioner is that he is carrying on a business in the name and style of M/s. Dewas Gun Palace, Ranipura Chouraha, Indore and in the year 1994 a license was granted to the petitioner under the provisions of The Arms Act, 1959 read with the provisions of The Arms Rules, 1962. The petitioner has also stated that as per the provisions of Sec. 15 of The Arms Act, 1959, the license of the petitioner was renewed from time to time and the petitioner submitted an application for renewal of the license in the year 2009 and 2010. Petitioner has further stated that his license has been renewed by the impugned order dt. 19/7/2010, however, while renewing the license of the petitioner, the State Government has varied the terms and conditions of the license meaning thereby has reduced the quota of the petitioner in respect of arms and ammunitions without recording any reason in writing, without furnishing reasons to the license holder and without granting any opportunity of hearing of whatsoever kind. Learned counsel for the petitioner has relied upon the provisions of Sec. 17 of The Arms Act, 1959 and his contention is that without hearing the petitioner and without recording reasons in writing, no such order could have been passed in the matter and while granting renewal, the variation in respect of the original terms and conditions of the license is bad in law and the same deserves to be quashed. A reply has been filed on behalf of respondent State and the contention of the State Government is that certain executive instructions were issued on 16/7/10 providing parameters for renewal and grant of license to arm dealers and keeping in view the executive instructions issued by the State Government, the license of the --- 3 --- petitioner has been renewed and terms and conditions of the license have been varied. Learned counsel for the respondent State has also argued before this Court that the action of the respondents is in consonance with the executive instructions dt. 16/7/10 as well as with the provisions of The Arms Act, 1959 read with The Arms Rules, 1962. It has also been stated that the State Government is competent to pass such an order in the matter and no interference is warranted in the peculiar facts and circumstances of the case and the writ petition deserves to be dismissed. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that the petitioner is an arms and ammunition dealer carrying out the business in the name and style of M/s. Dewas Gun Palace, Ranipura Chouraha, Indore and a license was issued in the year 1994. It is also not in dispute that the State Government is competent to issue a license and to renew the same in the present case. The petitioner, as his license was going to expire, submitted an application for renewal of the license as provided u/S. 15 of The Arms Act, 1959 and the same has also been renewed by the State Government vide order dt. 19/7/2010. It is also an admitted fact that the State Government while renewing the license of the petitioner has varied the terms and conditions of the license issued earlier and the sanctioned strength in respect of various weapons and ammunition has been reduced for the purposes of trade while renewing the license of the petitioner. Section 17 of The Arms Act, 1959 reads as under :

17. Variation, suspension and revocation of licences. (1) The licensing authority may vary the conditions subject to which a licence has been granted except such of --- 4 --- them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice. (2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed. (3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence- (a) if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or (b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or (c ) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or (d) if any of the conditions of the licence has been contravened; or (e) if the holder of the licence has failed to comply with a notice under sub- section (1) requiring him to deliver-up the licence. (4) The authority authority may also revoke a licence on the application of the holder thereof. licensing (5) Where the licensing authority makes an order varying a licence under sub- --- 5 --- section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence 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. (6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority. (7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence; Provided that if t he conviction is set aside on appeal or otherwise, the suspension or revocation shall become void. (8) An order of suspension or revocation under sub section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision. (9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licenses granted under this Act throughout India or any part thereof. (10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other --- 6 --- authority as may be specified in this behalf in the order of suspension or revocation. The aforesaid statutory provision of law makes it very clear that in case the licensing authority makes an order varying the license or varying any condition of the licence, has to issue a notice to the licence holder to deliver up the licence to the licensing authority. Not only this, it is obligatory on the part of the licensing authority as per the aforesaid statutory provision to record reasons for varying the terms and conditions of the licence and to furnish the same to the licence holder on demand a brief statement of the same unless the licensing authority is of the opinion that it is not possible to do so in public interest. In the present case, no reasons have been assigned while varying the conditions of the licence though the same is based upon some guidelines framed by the State Government dt. 16/7/10. In the return the State Government has not explained the basis of formulation of guidelines dt. 16/7/10 also. The guidelines framed by the State Government are certainly not at all a part of The Arms Rules, 1962 nor are based upon any statutory provision as contained in The Arms Act, 1959. No notification of any kind issued by the Government of India or by the State Government in exercise of powers conferred under The Arms Act, 1959 read with The Arms Rules, 1962 has also been brought on record along with the reply in support of the guidelines dt. 16/7/10. Resultantly, this Court is of the considered opinion that the respondents have passed the impugned order in clear violation of the provisions of Sec. 17 of The Arms Act, 1959 and therefore the impugned order dt. 19/7/2010 to the extent the conditions of the licence have been varied is quashed accordingly. the State Government shall be free to take appropriate However, --- 7 --- action in accordance with law, keeping in view the provisions of Sec. 17 of the The Arms Act, 1959 read with The Arms Rules, 1962 as well as the notifications issued by the State Government as well as Central Government from time to time on the subject. With the aforesaid this petition stands allowed. No order as to costs. Keeping in view the aforesaid judgment delivered by this court, and as the petitioner was not heard at any point of time, the impugned order has been passed in clear violation of the provisions of Sec. 17 of the Arms Act, 1959 read with Arms Rules, 1962 as well as the Notification issued by the Central Government on the subject. The impugned order dt. 15/2/2011 is accordingly set aside. The writ petition stands allowed. No order as to costs. KR (S. C. SHARMA) J U D G E