Citation Codes

Equivalent Citations

citation codes

Case Number

Letters Patent Appeal No. 48 of 1998

Attorney(S)

For the Appellant : N.L. Raipuriya. For the Respondents : K.B. Chaturvedi.

Judges

S.P Srivastava
N.G Karambelkar, JJ.

Acts

Sub-section (1) or Sub-section (3) or Sub-section (6) of Section 17,
provisions contained in Rule 55 of the Rules
Rule 55 of the Arms Rules, 1962,
Section 17(3) of the Arms Act
Sub-section (2) of Section 18
Rule 55 of the Arms Rules
Rule 55 of the Rules
Rule 46 of the Rules

See more information ...

Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner-appellant held an arms licence for a twelve bore gun. The Licensing Authority suspended the licence under Section 17(3) of the Arms Act and subsequently cancelled it by an order dated 26-3-96, which was communicated to the appellant on 15-6-96. The appellant applied for a certified copy of the cancellation order on 3-7-96 and, upon receiving the certified copy on 10-7-96, filed an appeal with the Commissioner on 10-7-96 together with an application for condonation of delay.

The Commissioner dismissed the appeal on 3-11-97 as barred by limitation and rejected the condonation application, reasoning that the appellant ought to have known the relevant date (26-3-96) because he had attended an earlier proceeding on 15-1-96 where subsequent dates (including 11-3-96) were fixed and the licence was ultimately cancelled ex parte on 26-3-96. The Single Judge upheld the Commissioner's decision, framing the principal question as the meaning of the phrase "date of issue of an order" in Rule 55 of the Arms Rules and concluding that the period of limitation runs from the actual date the order is passed, not from the date of communication or knowledge.

Legal Issues Presented

What is the meaning of the expression "date of issue of an order" in Rule 55 of the Arms Rules — does it refer to the actual date of passing the order or the date on which the order is communicated/known to the licensee?
Whether the appeal filed by the petitioner was barred by limitation if the period is computed from the date of the order (26-3-96) as opposed to the date of communication/knowledge (when the appellant received the certified copy and learned the contents).

Arguments of the Parties

Appellant's Arguments

The limitation period should run from the date of knowledge or communication of the order (i.e., when the licensee actually received or became aware of the contents), not from the mere date of passing of the order.
Reliance was placed on the decision of the Apex Court in Rajah Harish Chandra Raj Singh v. Dy. Land Acquisition Officer (AIR 1961 SC 1500) to support the proposition that "making of the order" includes actual or constructive communication to the affected party.
He also relied on the Division Bench decision in Ramsevak v. State of M.P. which, while recognising Rule 55's language, emphasised that when a licence is revoked or suspended it becomes the duty of the authority to communicate the order to the licence-holder; hence limitation should be computed from communication.
Factual point: the appellant only learned the contents of the cancellation order when he received the certified copy (sought on 3-7-96 and supplied on 10-7-96), and therefore could not have validly filed an appeal earlier.

Respondent's / Authority's Arguments (as recorded by the Commissioner)

The Commissioner treated the starting point for limitation as the date of the order (26-3-96) and held that because the licensee had attended proceedings on 15-1-96 (when a subsequent date, 11-3-96, was fixed) he was to be presumed aware of the subsequent dates and of the ex parte cancellation on 26-3-96.
The Commissioner considered the appellant's claim that communication occurred on 15-6-96 to be unacceptable and reasoned that, since the licensee had not appeared on the date fixed and the authority had proceeded ex parte, the licensee ought to have applied immediately thereafter (within a day or two) to have the ex parte order set aside, which was not done.
On this basis the Commissioner dismissed the condonation application and the appeal as barred by limitation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rajah Harish Chandra Raj Singh v. Dy. Land Acquisition Officer, AIR 1961 SC 1500	Principle that where rights are affected by an order and limitation is prescribed "by reference to the making of said order", the making of the order must mean either actual or constructive communication of the order to the party concerned.	The Court relied on this ratio to support the proposition that limitation should run from the date of communication/knowledge of the order (actual or constructive), not merely from the date the order was passed.
Ramsevak v. State of M.P., Division Bench (M.P. No. 739/87), decided 5-10-87	The Division Bench considered Rule 55 of the Arms Rules and observed that when a licence is revoked or suspended it becomes the duty of the authority to communicate the order to the licence-holder; the period of limitation was made 30 days "from the date of issue of the order" and such order had to be communicated.	The Court treated Ramsevak as directly supportive of the view that communication of the order is integral and that limitation must be computed from the date the licence-holder is made aware of the contents; the decision was held to be attracted on the admitted facts.

Court's Reasoning and Analysis

The Court examined the statutory and rule provisions: Section 17(3) of the Arms Act, Rule 55 of the Arms Rules (which prescribes a 30-day period "from the date of issue of the order" for appeals), and Rule 46 (which requires the licensing authority, when deciding to suspend or revoke a licence, to inform the licence-holder in writing of the decision and certain consequences, including deposit of arms).

It noted the factual detail that a letter dated 20-3-96 from the District Magistrate to the Thana Prabhari only communicated the date of the cancellation order (26-3-96) but did not disclose the contents of that order; the licence-holder asserted that the Thana Prabhari served a copy on him on 15-6-96. The licence-holder only obtained the certified copy of the cancellation order on 10-7-96, which was the same date on which the appeal was filed.

The Commissioner and Single Judge had proceeded on the assumption that the limitation period began on the date the order was passed (26-3-96) and treated the appellant as having constructive awareness because of earlier attendance in proceedings. The Court disagreed with that approach. Relying on the Rajah Harish Chandra Raj Singh principle (that "making of the order" may mean actual or constructive communication) and the Division Bench's observation in Ramsevak (that Rule 55's 30-day period contemplates communication to the licence-holder), the Court held that the limitations framework under Rule 55 must be read together with Rule 46's communication requirement.

The Court emphasized that an appeal cannot be filed without knowledge of the contents of the order sought to be challenged. Because the appellant only learned the contents upon receipt of the certified copy (and not earlier), the appropriate starting point for computing limitation was the date on which the decision was communicated in writing to the licence-holder or the date of knowledge of the contents — not the date the order was passed. On the admitted and proved facts, the Court concluded that the appeal was not time-barred and that the Commissioner erred in refusing to consider the appeal on merits.

Holding and Implications

APPEAL ALLOWED; the impugned orders were set aside.

Direct disposition ordered:

The order passed by the learned Single Judge is set aside.
The order of the Commissioner (Annexure-P/1) is quashed.
The Commissioner is directed to restore the appellant's appeal to its original number and to consider and decide the appeal on merits in accordance with law.

Implications: The immediate consequence is that the appellant's statutory appeal is to be adjudicated on its merits; the Court applied existing precedent to clarify that, under the facts of this case and read alongside Rule 46, limitation under Rule 55 must be computed from the date the licence-holder is communicated with or acquires knowledge of the contents of the order. The opinion did not purport to lay down a novel legal doctrine beyond applying the cited authorities to the facts; its direct effect is the restoration and reconsideration of the appellant's appeal.

End of summary — based exclusively on content of the provided opinion.

Show full summary ...

Sher Khan v. State Of M.P And Others

1. Feeling aggrieved by an order dismissing his writ petition upholding the order passed by the Commissioner whereunder the petitioner's appeal directed against the order cancelling the fire arm licence issued to him, as having been filed beyond the period prescribed, he has now come up in Letters Patent Appeal seeking redress praying for the reversal of the impugned orders passed by the learned Single Judge as well as the Commissioner.

2. We have heard the learned counsel for the appellant as well as the learned Govt. Advocate representing the respondents and have carefully perused the record.

3. The facts in brief, shorn of details and necessary for the disposal of this appeal lie in a narrow compass : The petitioner-appellant had been granted an arms licence for keeping a twelve bore gun under the provisions of the Arms Act. This licence was suspended by the Licensing Authority acting under Section 17(3) of the Arms Act and was later on cancelled vide the order dated 26-3-96 which was communicated to the appellant on 15-6-96. An application for a certified copy of the order dated 26-3-96 was moved by the appellant on 3-7-96. On receiving the certified copy of the order, he had filed the appeal before the Commissioner on 10-7-96 alongwith an application seeking condonation of delay in filing the appeal.

4. The Commissioner vide the order dated 3-11-97 dismissed the appeal as having been presented beyond the prescribed period of limitation rejecting the application seeking condonation of delay in filing the same holding that the contention of the appellant to the effect that he had received the communication in regard to the cancellation of his arms licence on 15-6-96 was not acceptable. The Commissioner was of the view that in the proceedings relating to the cancellation of the licence on 15-1-96 the licensee had been informed about the next date fixed which was 11-3-96. In spite of this information, neither the licensee nor his counsel put in appearance on 11-3-96, with the result that the Licensing Authority proceeded ex parte and passed the order cancelling the licence on 26-3-96. The Commissioner came to the conclusion that although the aforesaid order was an ex parte order, yet since the licensee had not appeared on the date fixed in spite of having been provided an opportunity for the same, he ought to have moved an application on the next date or a day thereafter for getting the ex parte order set aside which was however not done. No application in this regard was filed by the licensee within a day or two of the date on which the licence had been cancelled. It was in the aforesaid circumstances that the Commissioner had come to the conclusion that the case of the licensee that he was given the information on 15-6-96 was not acceptable.

5. A perusal of the order passed by the Commissioner indicates that he had proceeded on the assumption that the starting point for computing the period of limitation prescribed for filing the appeal had to be taken as 26-3-96 i.e., the date of the order and since the licensee had attended the proceedings relating to the cancellation of his licence on 15-1-96 on which date 11-3-96 had been fixed, he was to be presumed to know the subsequent dates fixed in the case including 26-3-96, on which date the ex parte order cancelling the licence had been passed.

6. In the aforesaid view of the matter, according to the Commissioner, the fact that the information in regard to the order of cancellation dated 26-3-96 was communicated to the appellant on 15-6-96 was found to be wholly irrelevant and not sufficient for the condonation of delay in filing the appeal as sought for.

7. The petitioner-appellant had filed a copy of the communication dated 20-3-96 issued from the office of the District Magistrate, Gwalior addressed to the Thana Prabhari, P.S. Aaron, district Gwalior in connection with the cancellation of the licence of the petitioner wherein the Thana Prabhari been informed that the licence in question had been cancelled by the District Magistrate vide the order dated 26-3-96 and therefore he was directed to get the fire arm deposited in the police station and send the compliance report within a week. A copy of the aforesaid order was endorsed to the licensee with a direction to the Thana Prabhari to serve the said copy on the licensee for compliance. The licensee claimed that the Thana Prabhari, P.S. Aaron had served the said copy on him on 15-6-96 and it was from the said copy that he came to know about the date of the order cancelling his licence and thereafter he moved an application for certified copy of the same on 3-7-96 which was supplied to him on 10-7-96, on which date the appeal had been presented.

8. In the impugned order, the learned Single Judge has observed that the only question involved in the case was in regard to the meaning of the expression "date of issue of an order" as occurring in Rule 55 of the Rules framed under the Arms Act.

9. On a consideration of the provisions contained in Section 17(3) of the Act and the Rule 55 of the Rules framed under the Arms Act, the learned Single Judge came to the conclusion that the expression "issue of an order" referred to the actual date of the passing of the order and the date of the communication whereof was not relevant. In other words, what has been held is that the starting point for computing the period of limitation prescribed for an appeal invariably has to be the date of the order and not the date of the knowledge of the order. In these circumstances, it was observed that the Commissioner had not committed any error in dismissing the appeal.

10. Rule 55 of the Rules framed under the Arms Act is to the following effect :

"55. Appeal against the order of a licensing authority or an authority suspending or revoking a licence under Section 17(6)--In any case in which an authority issues an order--

(a) refusing to grant or renew a licence or to give a no-objection certificate for such grant or renewal, or

(b) varying any condition of a licence or suspending or revoking a licence under Sub-section (1) or Sub-section (3) or Sub-section (6) of Section 17, the person aggrieved by such order may, within thirty days from the date of issue of the order and subject to the proviso to Sub-section (2) of Section 18 prefer an appeal against that order, to the concerned appellate authority."

11. It may be noticed that the relevant portion of Rule 46 of the Rules provides as under :

"46. Deposit of arms and ammunition under Section 21-- (1) When a licensing authority decides to suspend or revoke a licence or to refuse to renew it, he shall, while communicating his decision in writing to the licensee, inform him that--

(a) under Section 21(1) he is required to deposit within such time as may be specified in the order suspending, revoking or refusing to renew the licence, the arms or ammunition covered by the licence, either with the officer-in-charge of the nearest police station forthwith a dealer holding a licence in Form XIV, or, in case he is a member of the armed forces of the Union, in the unit armoury;

(b) xxx xxx xxx xxx

12. Learned counsel for the appellant has strenuously urged that taking into consideration the implications arising under the aforesaid provisions the starting point for computing the period of limitation for filing an appeal could not be taken to be the date of the order but it ought to be the date of the knowledge of the contents of the order and the decision received either by communication of the said order or otherwise.

13. Reliance in this connection has been placed on the observations made by the Apex Court in its decision in the case of Rajah Harish Chandra Raj Singh v. Dy. Land Acquisition Officer, reported in AIR 1961 SC 1500 wherein it had been emphasised as under :

"Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of a remedy by the person aggrieved against the said order by reference to the making of said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned."

14. Heavily relying upon the ratio of the aforesaid decision it has been urged that the limitation in the present case had to be taken to run from the date of the knowledge of the decision/order and not the date of passing of the order.

15. It has further been urged that a Division Bench of this Court in its decision in the case of Ramsevak v. State of M.P., decided on 5-10-87 in M.P. No. 739/87 had considered in detail the implications arising under Rule 55 of the Arms Rules and had observed as under :

"...... On reading Rule 55 of the Arms Rules, 1962, we entertain no doubt at all that when the licence is revoked or suspended, it becomes the duty of the concerned authority to communicate the order to the licence-holder. This is writ large in the language of the provision because the period of limitation for preferring an appeal is made 30 days "from the date of issue of the order"......."

It was further emphasised by the Division Bench that such an order had to be communicated.

16. In the present case, what we find is that the letter dated 20-3-96 which had been sent to the Thana Prabhari, P.S. Aaron, by the District Magistrate only communicated the date of the order cancelling the licence. It did not disclose the contents of that order. The licensee had come to know of the contents of the order on receiving the certified copy of the same. No appeal could have been filed without knowing the decision/contents of the order sought to be appealed against. The implications arising under the provisions contained in Rule 55 of the Rules read together with Rule 46 thereof make it abundantly clear that the District Magistrate has to communicate the decision in writing affecting adversely the rights of licensee in the matter relating to the holding of a fire arm. The limitation for filing an appeal therefore had to be computed not from the actual date of the order but from the date of the communication of the decision in writing to the licensee. It could not be a date anterior to the date of such communication or the date of the knowledge of the decision/contents of the order.

17. We are of the considered opinion that the ratio of the decisions in the case of Rajah Harish Chandra Raj Singh (supra) and Ramsevak (supra) clearly stand attracted to the facts and circumstances of the present case on the admitted and proved facts. Therefore, the appeal filed by the petitioner-appellant could not have been held to be barred by time. The Commissioner has acted with manifest illegality in refusing to go into the merits of the appeal filed by the petitioner-appellant.

18. In the aforesaid view of the matter, sufficient ground has been made out for interference.

19. In the result, this appeal succeeds. The impugned order passed by the learned Single Judge is set-aside and the order passed by the Commissioner, Gwalior Division, Gwalior/respondent No. 2, a copy whereof has been filed as Annexure-P/1 to the Writ Petition, is hereby quashed with a direction to the Commissioner, Gwalior Division, Gwalior to restore the appeal of the petitioner-appellant to its original number and consider and decide the same on merits in accordance with the law.

Sher Khan v. State Of M.P And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's / Authority's Arguments (as recorded by the Commissioner)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sher Khan v. State Of M.P And Others

Comments