WWW.LIVELAW.IN 1 Reserved Case :- MISC. SINGLE No. - 1166 of 2014 Petitioner :- Mohd. Shakeel Respondent :- State Of U.P. Thru Prin. Secy. Deptt. Of Home & Others Counsel for Petitioner :- Anand Mani Tripathi Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J. Heard Sri Anand Mani Tripathi, learned counsel for the petitioner, Sri Manendra Nath Yadav, learned Standing Counsel for opposite parties and perused the record. By means of present writ petition, petitioner has challenged the order dated 03.10.2013 passed by opposite party no.4/ Additional District Magistrate (CityTransgomti), Lucknow by which his application for grant of arm license has been cancelled as well as the order dated 08.01.2014 passed by opposite party no. 2/ Commissioner,Lucknow Division, Lucknow dismissing the petitioner appeal. Fact, in brief, as submitted by the learned counsel for the petitioner are that petitioner is a leader of Kisan Union, there is danger to his life from Bhoo Mafia as such he moved an application for grant of license to the licensing authority/ Additional District Magistrate (City-Transgomti),Lucknow. By order dated 07.03.2006 petitioner’s arms license no. 393/PS Gudamba/Lucknow/ 06 NP Bore Rifle No. AB 05-13266 I.O.F. 315 Bore was granted to him. A show cause notice was issued to the petitioner by the competent authority in view of the complaint submitted to the Superintendent of Police, Lucknow on the basis of the report submitted by S.O Police Station, Gudamba, Lucknow. On 15.11.2008 petitioner has submitted his reply to the show cause notice denying the allegations levelled against him mentioned in the show cause notice. It is further stated in the reply that on 07.08.2008 petitioner has lodged an F.I.R. under sections 384/507 of I.P.C. , Police Station Gudamba, Lucknow against Irfan, Rafiq, Chotoo and Sharif due to which they had enmity with the petitioner, on their persuasion, a show notice for cancellation of petitioner’s arm licence has been issued, so the same is bad in law. After receiving the reply, to the show cause notice, Additional District Magistrate-City Transgomti, Lucknow/ Opposite party no. 4 on the basis of the material on record passed an order dated 03.10.2013 (Annexure No. 2 ) by which petitioner’s application for grant of arm license has been canceled on the ground that at a time of submitting of application for grant of arm license a Case Crime No. 209 of 1999 under Section 3/25 of the Arms Act was registered against the petitioner on 12.09.1999 at police-station Gudamba, District Lucknow but he concealed the said fact while filing/ submitting the application for grant of arm license, in Para 8 of the affidavit filed in support of said application and mentioned that no criminal case is pending against him. Accordingly, taking into consideration the said fact, arms license no. 393/PS Gudamba/Lucknow/ 06 NP Bore Rifle No. AB 05-13266 I.O.F. 315 Bore has been concealed and in the order dated 3.10.2013 passed by opposite party no.4 it was mentioned therein that license of the petitioner is being concealed as per the provisions of Section 17 (3) (b) of the Arms Act, 1959.

WWW.LIVELAW.IN 2 Aggrieved by the order dated 03.10.2013 passed by opposite party no. 4, petitioner filed an appeal bearing Appeal no. 388/2013-14 (Mohammad Shakeell Vs. District Magistrate, Lucknow) under Section 18 of the Arms Act, 1959 before opposite party no. 2/Commissioner, Lucknow Division, Lucknow, who upholded the finding given by opposite party no. 4 that he has concealed the material fact at time of filing of application for grant of arm licence. Shri Anand Mani Tripathi, learned counsel for the petitioner while challenging the impugned orders submits that even if the case is pending against the petitioner at a time of submitting of application for grant of arm licence but before granting the same petitioner has been acquitted from the said case . So the action taken by opposite parties for cancelling the arm license is illegal, contrary to law as laid down by this Court in the case of Ran Bahadur Singh Vs. Commissioner, Faizabad Division, Faizabad and another, 2016 (34) LCD, 2811, Ghanshyam Gupta Vs. State of U.P. and others, 2016 (34) LCD 3035 and Rakesh Kumar Vs. District Magistrate, Raebareli and others, 2013 (31) LCD 1313. Next argument advanced by learned counsel for the petitioner is that as no finding has been given by opposite party no.4 while cancelling the petitioner’s application for grant of arm license that in what manner there is breach of public peace and safety so section 17 (3) (c) of the Arms Act, 1959 rather the same is not applicable . He has submitted an application for grant of arm license in respect to protect his life so the same cannot be canceled merely on the pendency of the criminal case and the petitioner cannot disqualify from getting the arm license. In support of his arguments he has placed the following cases:1. Vishwanath Singh Vs. Commissioner, Lucknow Mandal Lucknow and others, decided on 22.7.2015 by this Court Writ Writ Petition no.735(MS) of 2010. 2. Thakur Prasad Vs. State of U.P. and others, 2013 (31) LCD 1460. 3. Rama Kushwaha Vs. State of U.P. and others, 2011 (29 LCD 1045. 4. Ram Krapal Singh Vs. Commissioner, Devi Patan Mandal, Gonda and others, 2006 (24) LCD 114. 5. Rajendra Singh Vs. Commissioner, Lucknow Division, Lucknow and others, 2011(29) LCD 1041. 6. Hiramani Singh Vs. State of U.P. and others, 2011 (29) LCD 829 7. Sahab Singh Vs. Commissioner, Agra Region, Agra and others, 2006 (24) LCD 374. Learned counsel for the petitioner also argued that in the application for grant of arm license there is no column for mentioning the fact that any case is pending against him. It is further submitted that after submitting the application for grant of arm license as per procedure police report is to be obtained but in the present case there is no report against the petitioner, the said formality was incumbent upon the police authorities . Once the Police authorities has not submit report, so his licence cannot be cancelled on the ground of breach of public peace and safety as per the provisions of Section 17 (3) (b) of Arms Act, 1959 as mentioned in the impugned order. Learned Counsel for the petitioner submits that no adequate opportunity has been provided to him to defend his case at the time of passing of order dated 03.10.2013 (Annexure 2 ) passed by opposite party no . 4 by which the application

WWW.LIVELAW.IN 3 for grant of arm license has been cancelled or at the appellate stage. Accordingly , the impugned orders is in violation of principle of natural justice, liable to be set aside. Shri Mahendra Nath Yadav, learned standing counsel while supporting the impugned order submits that when it came to the knowledge of authorities concerned that a criminal case is pending against the petitioner and the said fact has not been mentioned at the time of filing of application for grant of arm license. So in view of the said fact a show cause notice was issued to the petitioner and after taking into consideration the reply submitted by the petitioner, the order dated 03.10.2013 has been passed by opposite party no. 4, the same was also confirmed by opposite party no. 2 in appeal. So , the impugned orders are perfectly valid and in accordance with principle of natural justice. Learned Standing counsel further submits that in the present case in para 8 of the affidavit along with application for grant of arm licence has mentioned incorrect and wrong fact so his license was cancelled in view of the provision as provided under Section 17 (3) (c) of the Arms Act, 1959 and merely by mentioning in correct section, the validity of the order dated 03.10.2013 passed by opposite party no. 4 has not lost its efficacy and is in accordance with law so the writ petition filed by the petitioner liable to be dismissed. I have heard learned counsel for the parties and gone through the record. In the present case, arms licence no. 393/PS Gudamba/Lucknow/ 06 NP Bore Rifle No. AB 05-13266 I.O.F. 315 Bore was granted to the petitioner on 07.08.2008 and taking into consideration the report of S.O. Police-Station Gudamma forwarded by Superintendent of Police, licensing authority has issued notice inter alia stating therein that in para -8 of the affidavit filed in support of application for grant of arm license he has stated that no criminal case is pending against him rather the correct fact is that at a time of submitting of petitioner's application for grant of arm license a Case Crime No. 209/1999 under Section 3/25 of Arms Act, 1959 was registered at Police Station Gudamba, Lucknow on 12.09.1999 and after receiving reply submitted by the petitioner to the show cause notice dated 15.11.2008, the licensing authority / opposite party no.4 by order dated 3.10.2013 cancelled the arm license of the petitioner and the findings given by opposite party no.4 was confirmed by opposite party no. 2 in appeal. The fire arm license is liable to be cancelled under Section 17 (3) (c) of the Act if the same was obtained by suppression of material information or on the basis of wrong information provided at the time of making the application for grant of license. Section 17 (3) (c) is quoted below : "If the license was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the license or any other persons on his behalf at the time of applying for it." Even though the petitioner might have been acquitted in the criminal case registered against him much prior to the making of the application for grant of license, still it was incumbent upon him to have disclosed the details of the said cases in the affidavit filed along with the application for grant of fire arm license. The petitioner having failed to disclose the same in the affidavit and rather made false averments that no case has ever been registered against him, he obtained license by suppression of material information and by furnishing wrong information and thus, the license was liable to be cancelled in view of the provisions of Section 17 (3) (c) of

WWW.LIVELAW.IN 4 the Act because it is clearly established from the record that petitioner has concealed the facts regarding the criminal antecedent in the affidavit which is filed in support of the application for grant of arm license as such the said act will be treated as suppression of material facts, therefore, his application for grant of arm license has been correctly cancelled in view of the law laid down by Hon’ble the Apex Court in the judgment of Kandriya Vidyalaya Sansthan Vs. Ram Ratan Yadav, 2003(3) SCC 437 and subsequently in A.P. Public Service Commission Vs. Koneti Venkateswarulu and others, 2005 (7) SCC 177, has clearly held that if there is suppression of material fact, the candidature is liable to be cancelled. This Court in the case of Raju @ Tajuddin Vs. Divisional Commissioner, Kanpur Division and others, 2012(1) ADJ, 459 has held as under:“Allegation against the petitioner was that he had obtained the license fraudulently on a wrong address without disclosing his criminal antecedents. The petitioner has concealed the fact regarding the pendency of the criminal case. As the petitioner has never mentioned that he is a permanent resident of P.S. Bhognipur, District Kanpur Dehat, therefore, no inquiry by the concerned police station was made and it did not come to the knowledge of the authorities concerned regarding pendency of the criminal case while granting license to the petitioner. The said action of the petitioner is a concealment of fact for the purpose of obtaining the license. If at the time of obtaining the license the correct address had been mentioned, an inquiry by the concerned police would have been made. Such an enquiry would have lead to disclosure of antecedents of the present petitioner. By concealing this fact he obtained a license. It can safely be inferred that the petitioner in order to procure a license for achieving the oblique purpose concealed the fact that he did not belong to area where from he sought the license. The continuance of the license with such a person who has obtained the same by concealing the fact relating to his antecedents can amount to endangering the public peace and public safety. Such conduct of a person will amount to endangering the public safety and peace. Thus, I am satisfied that there was material before the licensing authority and on the said material the licensing authority has recorded its satisfaction for cancellation of arm licence. The order cancelling the licence and its confirmation in appeal thus cannot be said to be illegal or unjustified.” So for the arguments advanced by learned counsel for the petition in the instant matter that the arms license of the petitioner has been cancelled on that ground that he has concealed the true and correct fact in the affidavit filed in support of the application for grant of arm license invoking the provisions as provided under Section 17(3)(b) of the Arms Act that there is some likelihood of breach of public peace and safely , so it cannot be cancelled as per section 17(3) (c) of the Arms Act as submitted by learned counsel for the State that merely mentioning a wrong section the order does not vitiates , has got no force because Hon’ble the Apex Court in the case of Ram Sunder Ram Vs. Union of India( UOI) and others, (2007) 13 SCC 255 has held that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a

WWW.LIVELAW.IN 5 reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does not exist and can be traced to a source available in law ( see also : N. Mani Vs. Sangeetha Theatre and others, (2004) 12 SCC 278) . The same view has been reiterated by a Division Bench this Court in the case of Dr. V.S. Chauhan and another Vs. Director of Income Tax ( Investigations) and others, 2011(6) ADJ 117 wherein it has been held that it may be noted that the mentioning of a wrong section in an order will not vitiate it if the authority of the order can be traced to a statutory provision. A Division Bench of this Court in the case of of National Insurance Company Limited Lucknow Vs. Smt. Manju Devi and others, 2011(6) ADJ 555 has held as under:“ Comming to the first submission of the appellant’s counsel with regard to maintainability of the claim petition. A perusal of the original petition, moved before the tribunal as well as the impugned award indicates that it was filed under Section 166 of the Act. The tribunal has considered the claim petition under Section 166 of the Act and delivered the award. Merely because Section 163-A has been mentioned in a cursory manner and that too which was not taken note by the tribunal shall not render the award illegal or without jurisdiction.” Hon’ble the Apex Court in the case of MIG Cricket Club Vs. Abhihavd Shanker Education Society and others, (2011)9 SCC 97 has stated that It is trite that the validity of the order does not depend upon the section mentioned in the order, if it is found that order could be validly passed under any other provision. So the argument advanced by the learned counsel for the petitioner at a time of filing of application for arm license, no criminal case is pending against the petitioner because the case was registered in Case Crime No. 209 of 1999 under Section 3/25 of Arms Act, dated on 12.09.1999. In the instant case, the basis of initiating the proceedings for cancellation of arm license is that while submitting the application for grant of arm license in para-8 of the affidavit alongwith the application for grant of arm license he has incorrectly stated that no criminal case is pending. Thus, even if the petitioner was acquitted prior to considering the application for grant of arm license, does not render the impugned order incorrect as it is admitted fact that a criminal case in respect to Case Crime No. 209 of 1999 under Section 3/25 of the Arms Act registered at Police Station Gudamba on 12.09.1999 does not disclose in the affidavit filed in support of application for grant of arm license. Thus, quoting of wrong provision as Section 17 (3) (b) instead of section 17 (3) (c) in order to cancel the arm license of the petitioner does not invalidate the order as he has jurisdiction to pass order under Section 17 (3) (c) of the Arms Act. Last arguments which advanced by learned counsel for the petitioner no adequate opportunity has been given to the petitioner so the impugned orders are in violation of principle of natural justice, has got no force. As in the present case, the proceedings for cancellation of arm license on the basis of report of Superintendent of Police, Lucknow, petitioner was served a show cause notice to which he has submitted his reply on 15.11.2008 and after taking into consideration and material on

WWW.LIVELAW.IN 6 record the order dated 03.10.2013 was passed by the licensing authority and thereafter in appeal petitioner was given adequate opportunity of hearing and written arguments were filed on behalf of the petitioner at the appellate stage and after considering the same the appellate authority has passed an order dated 08.01.2014. So the argument advanced by the learned counsel for the petitioner that the impugned orders are in contravention of principle of natural justice, contrary to material on record. For the foregoing reasons, the writ petition lacks merit and is dismissed. Order Date :- 19.1.2017 dk/