Post
by pran80 » Tue Feb 07, 2012 1:08 pm
Nagarifle,
Tried sending you PM but without success. Looks like you just read the writ petition filed. I am pasting the full order below in case you had not read it. Think we can use it as a precedence in other states as well.
AFR
Court No. - 2
Case :- WRIT - C No. - 66401 of 2011
Petitioner :- Pawan Kumar Singh
Respondent :- State Of U.P. Thru Its Secy. And Another
Petitioner Counsel :- I.K. Mishra
Respondent Counsel :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard learned counsel for the petitioner and learned Standing
Counsel for the respondents. With the consent of learned counsel for
the parties, I proceed to decide this matter under the Rules of the
Court at this stage.
2. This is a simple case of real inaction and apathy on the part of
District Magistrate by not only failing to discharge his statutory
function within a reasonable time but also ignoring the order passed
by superior authority and keeping the matter pending for years
together.
3. The factual matrix given rise to the dispute is quite short and
simple. The petitioner applied for grant of firearm licence on
20.10.2008. It is said that police report submitted was in his favour but
the licencing authority namely District Magistrate Moradabad alleging
that there was some difference in date of birth mentioned in the
application form and affidavit, rejected the application by order dated
30.5.2009. The petitioner preferred Appeal No.92/08-09 under Section
18 of Arms Act, 1959 (hereinafter referred to as "Act 1959") before the
Commissioner, Moradabad Division Moradabad which was allowed by
order dated 24.5.2010. The Commissioner held that if there was any
confusion regarding date of birth, the District Magistrate could have
required the applicant to clarify the same but on that count the
application itself ought not have been rejected. The Appellate
Authority accordingly set aside the order dated 30.5.2009 of District
Magistrate, Moradabad and directed him to pass a fresh order by
considering petitioner's application on merits. The matter was
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remanded to the District Magistrate accordingly.
4. After this order of appellate authority, the District Magistrate
kept silence over the matter and sitting tight did not pass any further
order at all. The petitioner in the circumstances having waited for
almost one and a half years but of no result has come to this Court in
the present writ petition seeking a mandamus commanding
respondent No.2 to consider and pass appropriate order on his
application.
5. This Court when entertained the writ petition on 21.11.2011
required learned Standing Counsel to seek instructions as to why
District Magistrate has not passed any order on petitioner's
application and is keeping the matter pending despite the fact that
Commissioner passed appellate order on 24.5.2010 and has
remanded the matter to respondent No.2 with a direction to pass a
fresh order.
6. Learned Standing Counsel has produced before this Court a
letter dated 21.11.2011 sent by District Magistrate, Moradabad
addressed to the learned Standing Counsel stating that the petitioner
has submitted letter for reconsideration only on 12.11.2010 which was
received in his office by registered post on 26.3.2011. The
proceedings were initiated to take decision on his aforesaid letter by
seeking a report from Senior Superintendent of Police/Deputy
Inspector General of Police, Moradabad and the matter is pending. In
the meantime, by State Government's notification dated 28.9.2011, a
new District Bhimnagar was created hence entire record has been
forwarded to the newly created District Bhimnagar. A photocopy of this
letter with the consent of learned Standing Counsel is kept on record
and shall constitute part of the record of this writ petition.
7. A perusal of this letter shows that it says not even a single word
as to why no action was taken by District Magistrate after
Commissioner's order dated 24.5.2010 and why it remained pending
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without any further action at all for almost one year. It says that by
order dated 16.6.2011, police report has been sought but thereafter
also nothing has been said. Moreover, the alleged new district
Bhimnagar was constituted on 28.9.2011, but till date record of
present matter has not been forwarded to the District Magistrate of
newly constituted district and has remained with respondent No.2.
8. In fact the authorities' approach shows that pendency of
anything for several months or years make no difference to them.
They treat it their right and privilege not to discharge statutory duties
and functions for any length of time, without having any accountability
or responsibility to the sovereign, namely the people of this country.
The laxity on the part of respondent No.2 is obvious and evident.
When an official like a District Magistrate chose to remain inactive
showing apathy to his statutory function, a common man feels
extremely helpless. It also gives an impression as if the concerned
statutory authority is keeping the matter pending for reasons other
than bona fide. He is trying to encourage corrupt activities or
corruption itself. This is a kind or facet of corruption. Making
observations on various facets of corruption, this Court in Mithilesh
Kumari Vs. State of U.P. and others, Civil Misc. Writ Petition
No.45893 of 2008 decided on 18.11.2010 said in paras 52 to 55 of
the judgment as under: -
"52. In general the well accepted meaning of corruption is the act of
corrupting or of impairing integrity, virtue, or moral principle; the
state of being corrupted or debased; lost of purity or integrity;
depravity; wickedness; impurity; bribery. It further says, "the act of
changing or of being changed, for the worse; departure from what
is pure, simple, or correct; use of a position of trust for dishonest
gain."
53. Though in a civilised society, corruption has always been
viewed with particular distaste to be condemned and criticised by
everybody but still one loves to engage himself in it if finds
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opportunity, ordinarily, since it is difficult to resist temptation. It is
often, a kind, parallel to the word 'bribery', meaning whereof in the
context of the politicians or bureaucrats, induced to become
corrupt. The Greek Philosopher Plato, in 4th Century BC said, "in
the Republic that only politicians who gain no personal advantage
from the policies they pursued would be fit to govern. This is
recognised also in the aphorism that those who want to hold power
are most likely those least fit to do so." While giving speech before
the House of Lords William Pitt in the later half of 18th Century
said, "Unlimited power is apt to corrupt the minds of those who
possess it." Lord Acton in his letter addressed to Bishop Creighton
is now one of the famous quotation, "Power tends to corrupt and
absolute power corrupts absolutely."
54. Corruption is a term known to all of us. Precise meaning is
illegal, immoral or unauthorized act done in due course of
employment but literally it means "inducement (as of a public
official) by improper means (as bribery) to violate duty (as by
committing a felony)." It is an specially pernicious form of
discrimination. Apparently its purpose is to seek favourable,
privileged treatment from those who are in authority. No one would
indulge in corruption at all if those who are in authority, discharge
their service by treating all equally.
55. We can look into it from another angle. Corruption also violates
human rights. It discriminates against the poor by denying them
access to public services and preventing from exercising their
political rights on account of their incapability of indulging in
corruption, of course on account of poverty and other similar
related factors. Corruption is, therefore, divisive and makes a
significant contribution to social inequality and conflict. It
undermines respect for authority and increases cynicism. It
discourages participation of individuals in civilised society and
elevates self interest as a guide to conduct. In social terms we can
say that corruption develops a range bound field of behaviour,
attitude and beliefs. Corruption is antithesis of good governance
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and democratic politics. It is said, that when corruption is pervasive,
it permeates every aspect of people's lives. It can affect the air they
breathe, the water they drink and the food they eat. If we go further,
we can give some terminology also to different shades of corruption
like, financial corruption, cultural corruption, moral corruption,
idealogical corruption etc. The fact remains that from whatever
angle we look into it, the ultimate result borne out is that, and the
real impact of corruption is, the poor suffers most, the poverty
groves darker, and rich become richer. "
9. Learned Standing Counsel at this stage pointed out that the
present District Magistrate has come very recently namely he has
joined at District Moradabad on 16.7.2011. Prior thereto, in May, 2010,
when the order was passed by the Commissioner, Sri Raj Shekhar
was the District Magistrate who held office from 27.2.2010 to
14.7.2011. He further stated that the present District Magistrate
cannot be said to be at fault solely.
10. The system recognises the office and the incumbents coming
and going cannot claim immunity for their inaction. Whether 'A' was
holding the office or 'B', makes no difference since what has suffered
in this case is the trust and confidence of common man in the system.
When he applied, following the procedure prescribed in the statute,
had the confidence that within a reasonable manner and time his
matter would be considered and a final decision would be taken by
the appropriate authority within a reasonable time. His confidence got
shattered repeatedly. Earlier when for a petty reason his application
was rejected as if the licencing authority was finding something,
whether substantial or not, just to reject application. Again when this
approach of District Magistrate was disapproved by higher authority
namely the Commissioner in appeal, the licencing authority
maintained silence and kept the thing unattended. This later attitude
of respondent No.2, if not resulted in a complete loss but then must
have shaken severely the confidence of common person in the
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system. Holding a high office the respondent No.2 owe a duty and
obligation to keep the aspiration and confidence of a common man in
the system intact and unshaken for the reason that after centuries's
fight for freedom, the people of this country got independence and
gave to themselves a Constitution in the hope that the system in their
own Constitution would wipe out their tears but even after more than
six decades, the system is functioning unchanged, as if still these
authorities are king and common man is a downtrodden tiny Indian
having no voice or existence at all. This is really unfortunate that for
these petty matters and due to sheer inaction, apathy and
carelessness of not attending the statutory function by respondent
No.2, the petitioner had to involve himself in a litigation which could
have been avoided saving precious time of this Court also.
11. It is in these circumstances the writ petition, in my view, deserve
to succeed. It is accordingly allowed. The respondent No.2 and/or the
District Magistrate of newly created district i.e. District Bhimnagar,
within whose jurisdiction petitioner's application as alleged would fall
shall pass order on the petitioner's application for firearm licence
submitted on 20.10.2008 within a period of two months from the date
of production of a certified copy of this order before him. The petitioner
shall also be entitled to cost which I quantify to Rs.25,000/- against both
the respondents.
12. However, the cost at the first instance shall be paid by the
respondent No.1 but it shall have liberty to recover the same from
concerned official(s) holding the office of respondent No.2 responsible
for incurring such liability by the State. It is, however, made clear that
this liberty to recover the amount shall precede by such disciplinary
enquiry as permissible in law.
Order Date :- 23.11.2011
KA
