Shri C.R. Karnik v. Heard finally

counsel for the parties that all these writ petitions involve the same issue on the same fact situation. 1/ For convenience the facts have been noted from W.P. No.8715/2011. 2/ The petitioner has been granted license to sale, transfer or to keep for sale or transfer arms and ammunitions under the provision of the Arms Act, 1959 (for short “The Act”). He is aggrieved with the communication dated 30/9/2012 by which the respondents have imposed the condition on the petitioner to get the empty cartridges from the purchaser and to sale new cartridges in lieu of the deposit 2 of the empty cartridges only. The petitioner has no grievance as against the other requirements as contained in the impugned communication. 3/ Learned counsel appearing for the petitioner submitted that the license has been issued to the petitioner under the provisions of the Arms Act and the field is covered by the union list, therefore, the State or its authorities have no jurisdiction to impose any additional condition. He further submits that this issue has already been decided by the Single Bench in the Principle Seat. 4/ Learned counsel appearing for the respondents supporting the impugned action submitted that certain directions were issued by the Central Government, vide Annexure R-1. In pursuance to those direction, a circular was issued by the State on 26/3/2011 for imposing such a condition, therefore, in compliance with the said circular of the State the impugned condition no.2 by the order dated 30/9/2011 has been imposed. 5/ I have heard the learned counsel for the parties and perused the record. 6/ The petitioner has been granted the licence to sale, transfer or test and to keep for sale, transfer or test arms and ammunitions of specified categories in Form 12 of 3 the Arms Rule 1962. The conditions attached to the license have been specified in the Rules itself and no such condition, as imposed by the impugned order, has been mentioned in the statutory conditions attached to the license in Form 12. 7/ The petitioner has been granted the licence in question under Section 5 of the Arms Act, 1959 which is a Central legislation. Under Section 43 of the Act, the Central Government by notification in the official gazette can delegate certain powers and functions exercisable under the Act to the State government or Officers or Authorities subordinate to the State Government. In this background it has been submitted that State can not issue any instruction in this regard. The same issue in respect of the legality and validity of imposition of similar condition about deposit of empty cartridges shell at the time of purchase of ammunition had come up before the Single Bench of the Principle Seat in the matter of Surendra Kumar Yadav and others Vs. State of M.P. and others in W.P. No. 6265/2006 and the Single Bench by order dated 28/9/2006 by allowing the writ petition had set aside the order holding that the State can not trespass the field covered by the union list. 8/ Learned counsel for the respondents has relied upon the Annexure R-1 which is in the nature of instructions 4 issued by the Central Government to the State. Learned counsel for the petitioner has failed to point out any notification issued by the Central government under Section 43 of the Act delegating its power to the State. This Court in the matter of Surendra Kumar Yadav (supra) has examined this aspect of the matter and has held that such a condition cannot be imposed until and unless the power is delegated to the State. This Court in the matter of Surendra Kumar yadav (supra) has held as under:- “In this case though learned counsel appearing for the State relied on Section 43 of the Arms Act which empowers the Central government for delegation of the powers to the State Government, but is unable to point out any notification by which the Central Government had delegated its powers in respect of controlling sale and purchase of ammunition. In absence of any notification, the contention of respondents cannot be accepted that any such powers were delegated by the Central reference, section 43 of the Arms Act, 1959 reads thus:- government. For Section 43: Power to the Central delegate-(1) Government notification in the Official gazette, direct that any power or function which may be may, 5 exercised or performed by it under this Act other than the power under Section 41 or the power under Section 44 may, in relation to such matters and subject to such conditions, if any, as it may specify in th notification, be exercised or performed also by- (a) Such officer or authority subordinate to the Central Government, or (b) State Such Government or such officer or authority subordinate to the State government As may be specified in the notification. (2) Any rules made by the Central Government under this Act may confer powers or impose duties or authorize the conferring of powers or imposition of duties upon any State Government or any officer authority subordinate thereto.” From the perusal of the aforesaid provisions, it is apparent that by a rule or by a specific notification, the Central Government may delegate its power, other than powers under section 41 of the Act, to the State Government. But in this case in absence of any such rule or notification, the contention of the respondents has no merit that any such powers were delegated to the State 6 Government. Order Annexure P-1 has been issued restricting the sale and purchase of ammunition that until and unless empty cartridge shell is deposited neither licence holder nor licence dealer would have a right to purchase cartridges. When the ammunition is included in the List 1-Union List of Seventh schedule, then until and unless power is delegated to the State Government by the Central Government in this regard, such restriction cannot be imposed.” 9/ It is also worth noting that the respondent no.2 has issued the impugned order dated 30/09/2011 on the basis of the circular of the State dated 26/03/2011. This Court in the matter of Surendra Kumar Yadav (supra) has also examined the force of any such circular issued by the State without delegation of power by the Central Government by holding as under:- “8. Now the contention of learned counsel for the state may be seen, that, the instructions have been issued by the State Government exercising the power under Article 162 of the Constitution of India. Article 162 of the Constitution of India reads thus:- “Article 162: Extent of executive power of State :- Subject to the provisions of this Constitution, the executive power 7 of the State shall extend to the matters with respect to which the Legislature of the State has power to make laws. Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. Article 162 of the Constitution of India is very specific, which provides powers to the State Government to issue the executive orders is respect of the matters with respect to which the Legislature of the State has power to make laws. These powers relate to List II and Concurrent List III of Seventh Schedule. But in respect of the matters of List I of Seventh Schedule, the exclusive jurisdiction is of the Parliament. Even under Article 162 of the Constitution of India, the State by issuing executive orders cannot trespass the jurisdiction of the Central Government/Parliament in respect of the matters enumerated in List I of the Seventh Schedule. The executive power of the State extends to matters with respect to which the State Legislature has power to make laws.

9. Article 73 of the Constitution 8 of India provides extent of executive power of the Union and Article 162 provides extent of executive power of State. These provisions are concerned with the distribution of the executive power between the Union on the one hand and the State on the other. The language of Article 162 clearly indicates that the powers of executive do extend to matters upon the State Legislature to competent to legislate and does not empower to issue any executive order in respect of which the Parliament only can legislate. The Parliament has enacted Arms Act, 1959 and when there is no provision under the Act or the rules enacted, empowering the State Government to issue any executive orders in this regard by issuing a notification under Section 43 of the Arms Act, the State Government or the District Magistrate was having no authority to instructions the sale of regulating/controlling ammunition. Article 162 of the Constitution of India is very specific and gives power with respect of which the legislature of the State has power to make laws and if any executive orders issued exceeding to this provision, is not sustainable under the law. In view of the aforesaid discussion, the contention of the learned counsel for the State has no substance that the aforesaid order was issued by the executive under Entry I, List II of the Schedule Seventh. Apart from this, when there is a specific provision in respect of

10. 9 the ammunition under 'Union List', it cannot be trespassed even on the strength of Entry I list II of Schedule Seventh.” 10/ In view of the aforesaid, the State has not power to issue any executive order in respect of a subject on which the Parliament only can legislate. 11/ It is also worth noting that the learned counsel for the State has failed to point out any provision under the Arms Act 1959 or under the Arms Rules 1962 which empowers the Central Government to issue any general instruction as contained in Annexure R-1 to the State Government or empowers the State Government or its authority to impose any such condition as has been done by the impugned order. 12/ Keeping in view the aforesaid, the imposition of the impugned condition, vide order dated 30/09/2011, cannot be sustained and is hereby set aside. The writ petition is accordingly disposed of. The signed order be kept in the file of W.P. No.8715/2011 and a copy thereof be placed in the file of other connected writ petitions. (PRAKASH SHRIVASTAVA) JUDGE 10 Kratika