JUDGMENT Vineet Saran, J.
1. Heard learned Counsel for the petitioner as well as learned Standing Counsel appearing for the respondents. With the consent of the learned Counsel for the parties, this writ petition is being disposed of without calling for a counter affidavit.
2. By order dated 10.2.1998 passed by respondent No. 3, the arms licence of the petitioner was cancelled. Aggrieved by the said order, the petitioner filed an appeal before the Commissioner, Agra Division, Agra, respondent No. 2 which was dismissed in default on 27.1.1999 as the counsel of the petitioner was not present. The petitioner then filed a restoration application which has been rejected vide order dated 26.12.2005 on the ground that the same is not maintainable. Aggrieved by the aforesaid orders, the petitioner has filed this writ petition.
3. The contention of the learned Counsel for the petitioner is that the appeal of the petitioner ought to have been decided on merits as under Rule 56 of the Rules framed under the Arms Act the appellate authority is required to call for the record of the case and pass final orders after giving opportunity of hearing to the appellant. The submission is that the appellate authority was not right in dismissing the appeal in default, and not deciding the appeal on merits. The further submission of the learned Counsel for the petitioner is that the appellate authority had the power to restore the case on an application filed by the petitioner and the appellate authority has erred in law by rejecting the said application.
4. Having heard learned Counsel for the parties and considering the facts and circumstances of this case, in my view, this writ petition deserves to be allowed and the matter be remanded to the appellate authority for a fresh decision on merits.
5. The provisions of the Act and the Rules provide that the appeal filed ought to be decided on merits after calling for the records of the case from the authority who has passed the order appealed against. The said provisions of the Act and the Rules do not give any indication that the appellate authority has the power to dismiss the appeal in default of the appellant as has been held by a Division Bench of this Court in the case of Mohd. Hanif v. Commisioner 1979 A.W.C. 285. Since in the present case, the appellate authority has not considered the case on merits, in my view, such order deserves to be set aside.
6. Accordingly, the order dated 26.12.2005 passed by respondent No. 2 is set aside. The matter is remanded back to the appellate authority, respondent No. 2, the Commissioner, Agra Division, Agra to decide the appeal afresh on merits, in accordance with law, as expeditiously as possible, preferably within a period of two months from the date of filing of a certified copy of this order before the said respondent No. 2.
7. This writ petition stands partly allowed. No order as to costs.