ORDER Virendra Saran, J.
1. Abdul Hameed s/o Late Ah Husain r/o Village Malak Harhar, P.S. Saraon, District Allahabad, by means of this writ petition, has challenged the order of the City Magistrate, Allahabad dated 29-8-1992, as confirmed by the order dated 1-11-1992 of the District Magistrate, Allahabad (Appellate Authority) refusing to grant licence for D.B.B.L. gun to the petitioner. It is stated in the writ petition that the petitioner belongs to a respectable family which has sufficient immovable property but of late unsocial elements have turned their evil eyes towards the life and property of the petitioner. The petitioner, therefore, made an application for the licence of a D.B.B.L. gun. It is further stated in the writ petition that the petitioner does not suffer from any disqualification for obtaining a gun licence, that the police of P.S. Saraon has recommended the grant of licence vide its report dated 23-7-1992. The order of the City Magistrate, dated 29-8-1992 is quoted in Para No. 6 of the writ petition. The only reason assigned for the refusal of the licence to the petitioner is that in the village of the petitioner there are 33 licences. Only for the above reason the learned City Magistrate has refused to grant licence to the petitioner.
2. On 3-2-1993 the learned Standing Counsel prayed for (and) was granted two weeks time to file a counter-affidavit. No counter-affidavit was filed vide office report dated 26-2-1993. The case came up before me on 29-3-1993. The learned Standing Counsel orally requested that further time be granted for counter-affidavit. The learned Standing Counsel, however, could not give any satisfactory explanation as to why the counter-affidavit was not filed even though sufficient time has elapsed. The case is of Allahabad District and even a week's time was more than sufficient for filing a counter-affidavit. It has become almost a practice for the concerned officials to take time without any reason and cases linger on indefinitely on this score. This sort of practice also breeds corruption, therefore, no further time was allowed.
3. I have heard the learned Counsel for the petitioner and the learned Standing Counsel on merits of the case.
4. The only ground, on which licence has been refused to the petitioner is that there are already 33 licences in the village of the petitioner. This is hardly a ground for refusal of licence to the petitioner because if the petitioner requires licence for protection of his life and property any number of fire arms in the village have no bearing on his need. It is a common knowledge that now a days no one dares to come out to protect others at the risk of ones ownself and further get involved in unnecessary proceedings before the police and ultimately in the court and at the same time earn the wrath of criminals. These days one has to protect his own self and cannot depend on others for this purpose, The ground for refusal of the licence to the petitioner is patently arbitrary and unreasonable. In a recent case of Sayed Mohd. Jafar Husain v. State of U.P., 1992 SCR D 81 (Writ No. 7437 of 1982 decided on 25-7-1991) Hon'ble D.P.S. Chauhan, J. has observed that the mere fact that there are other gun licences in the village does not disqualify the petitioner from obtaining a licence for himself. In Para Nos. 5, 6 and 7 the Court observed:
5. Under the Indian Arms Act, 1878 and the Arms Act 1959 the position is different. Indian Arms Act, 1878 was directed to disarm the nation, but the Arms Act, 1939 (hereinafter referred to as 'the Act') is directed to arm the citizens with a view to ensure their security.
6. Section 13 of the Act provides that the licensing authority after such enquiry, if any, as it may consider necessary, and after considering the report received under Sub-section (2), shall, subject to other provisions of this Chapter, by order in writing, either grant the licence or refuse to grant the same. The object of obtaining the report from the police is only to find out the antecedent of the person seeking licence. A person not having a bad antecedent is entitled to grant of the licence unless there is any thing against him which may desentitle him from holding the licence. The discretion conferred on the licensing authority is not an absolute discretion but is a guided one and he is required to record reasons in writing for refusal to grant the licence as the same has been made subject to scrutiny by the appellate authority.
7. The ground of refusal are enumerated in Section 14 of the Act and the same are that the person seeking licence is prohibited by the Act or by any other law from acquiring the fire arm or the person is of unsound mind or is a person unfit for licence under the Act and the last where the licensing authority considers it necessary to refuse the licence for the security of the public peace and public safety. In the present case, no such grounds for refusal exists. The refusal is on the ground that in the village of the petitioner there are already five fire arms licences. The ground is extraneous to law. The petitioner is not a person falling in the prohibited category provided under Section 9 of the Act as he was not the person who has not completed the age of 21 years and was not a person convicted for any offence of violence or moral turpitude and was not a person required to execute a bond under Chapter VIII of the Code of Criminal Procedure, 1973 for keeping peace or for keeping a good behaviour.
5. I am in respectful agreement with the view of law expressed by Hon'ble D.P.S. Chauhan, J. in the case of Saved Jatar Husain (supra) that a licence cannot be refused on extraneous considerations. In the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, (1990) 61 Fac LR 758 : (AIR 1991 SC 101), the Supreme Court has observed (at p. 173 of AIR):
There is need to minimise the scope of the arbitrary use of power in all walks of life, it is inadvisable to depend on the good sense of the individuals, however, highly placed they may be. It is all the more improper and undesirable to expose the precious rights like the right of life, liberty and property to the vagaries of the individual whims and fancies, and do not become wise because they occupy the high seats of power ....
6. In the premise the petitioner is entitled to a licence to hold a D.B.B.L. Gun.
7. Before I conclude I may refer to a recent decision of this Court in Civil Misc. Writ Petition No. 4723 of 1993, Ganesh Chandra Bhatta v. District Magistrate, Almorah, decided on 12-3-1993. In this case Hon'ble Mr. Katju, J. has observed :
In my opinion the right to bear arms is embedded in Art. 21 of the Constitution, and hence it is a fundamental right. No doubt this right, like all fundamental rights is subject to reasonable restriction.
8. The case of Ganesh Chandra Bhatta (supra), no doubt is a land mark and I am in respectful agreement with the view and law and the constitutional interpretation made by Hon'ble Markandey Katju, J. However, since the judgment of Markandey Katju, J. has been challenged in special appeal, I am not basing my conclusion on the case of Ganesh Bhatta (supra). At the same time, 1 must observe that it is unfortunate that the arms licensing has become almost irrelevant for the law abiding common man. It is common knowledge that hardened criminals and even convicts manage to obtain arms licence whereas respectable citizens of the society are refused licences on flimsy and fanciful grounds as in the present case.
9. In the result the writ petition is allowed. The order of the City Magistrate, Allahabad as confirmed by the District Magistrate, Allahabad are quashed. The City Magistrate, Allahabad is directed to issue a licence to the petitioner for a D.B.B.L. Gun within two weeks from the date of production of a certified copy of this order before him. No order regarding cost is made.