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Mir Sabir Ali Vs. Commissioner of Police, Hyderabad - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWP No. 10418 of 1998
Judge
Reported in1999(5)ALD123; 1999(4)ALT32
ActsArms Act, 1959 - Sections 13, 14(3) and 18; Constitution of India - Articles 226 and 227; Army Act, 1950
AppellantMir Sabir Ali
RespondentCommissioner of Police, Hyderabad
Appellant Advocate Mr. O. Manohar Reddy, Adv.
Respondent AdvocateGovernment Pleader for Home
Excerpt:
.....- petition filed seeking mandamus directions to respondent to reconsider application for grant of arms licence which was rejected without giving proper reasons - judicial, quasi-judicial or administrative orders cannot be sustained in judicial review if not supported by valid reasons - held, impugned order passed by respondent devoid of principles of natural justice as it constitutes a non-speaking order. - - it is well-settled that when a statutory order is passed by a duly constituted statutory authority, the order should disclose the reasons for the conclusion. otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validates by additional grounds later brought out. an important consideration which has weighed with the court for..........under sections 13 and 14 of the arms act, 1959 (hereinafter referred to as the act) seeking an arms licence. the same was rejected by the respondent by an order dated 8-8-1997. impugning the same, the petitioner filed this writ petition seeking a writ of mandamus directing the respondent to reconsider the application for grant of arms licence.2. the impugned order dated 8-8-1997 bearing no.l&o;/35/arms/hs.6/97 reads as follows:'government of andhra pradesh(police department)office of the commissioner of police, hyderabad-city.dated 8-8-1997. no.l & o/35/35/arms/hs6/97. memo sub: arms act and rules-grant of fresh arms licence-reg. ref: your application dated 23-5-1997. with reference to your application cited, your request for grant of fresh arms licence has been considered and.....
Judgment:
ORDER

1. The petitioner made an application to the respondent-Commissioner of Police, Hyderabad on 23-5-1997 under Sections 13 and 14 of the Arms Act, 1959 (hereinafter referred to as the Act) seeking an arms licence. The same was rejected by the respondent by an order dated 8-8-1997. Impugning the same, the petitioner filed this writ petition seeking a writ of mandamus directing the respondent to reconsider the application for grant of arms licence.

2. The impugned order dated 8-8-1997 bearing No.L&O;/35/Arms/Hs.6/97 reads as follows:

'Government of Andhra Pradesh

(Police Department)

Office of the Commissioner

of Police, Hyderabad-City.

Dated 8-8-1997.

No.L & O/35/35/Arms/HS6/97.

Memo

Sub: Arms Act and Rules-Grant of Fresh Arms Licence-Reg.

Ref: Your application dated 23-5-1997.

With reference to your application cited, your request for grant of Fresh Arms licence has been considered and 'Rejected'.

Sd/xxxxx

for Commissioner of Police,

Hyderabad-City.

To:

Sri Mir Sabir Ali,

R/o:H.No.22-1-611,

Noorkhan Bazar, Hyderabad'

3. Learned Counsel for the petitioner submits that Section 13 of the Arms Act empowers the respondent to grant licence and Section 14 deals with the conditions under which a request for grant of an arms licence can be rejected. The respondent, according to the learned Counsel for the petitioner, has not disclosed any reasons in the impugned order. Therefore, the impugned order is wholly unsustainable.

4. On the other hand, the learned Government Pleader for Home Sri Sadasiva Reddy, submits, on the strength of the counter-affidavit filed by the respondent-Commissioner of Police, that the petitioner is involved in a number of criminal cases and a rowdy sheet was opened against him and if an arms licence is issued to him, there is every likelihood of misusing the weapon by the petitioner and hence the respondent rejected the application of the petitioner for arms licence.

5. I have heard the Counsel for the petitioner and the learned Government Pleader.

6. On 24-4-1998, when the matter came up for admission, it was directed to be listed on 8-6-1998 and to-day the matter has come up before me. Both the learned Counsel requested me to dispose of the writ petition itself. Therefore, the writ petition is taken up for final hearing.

7. The learned Counsel for the petitioner contends that when an authority exercises statutory powers culminating in a decision such decision should be supported by reasons. There cannot be any dispute with this contention. In fact this legal position is not seriously disputed by the learned Government Pleader for Home. However, what is submitted is that in view of the reasons now disclosed in the counter-affidavit, the petitioner should be directed to avail the alternative remedy by way of appeal. I do not agree. It is well-settled that when a statutory order is passed by a duly constituted statutory authority, the order should disclose the reasons for the conclusion. The Supreme Court in Commissioner of Police v. Gordhandas, : [1952]1SCR135 , in similar context held:

'We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant tohave public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.'

The above view in Gordhandas case (supra), was followed by a Constitution Bench of Supreme Court in Mohinder Singh v. Chief Election Commissioner, : [1978]2SCR272 . While referring to Gordhandas case (supra) his Lordship Justice Krishna Iyer held:

'The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validates by additional grounds later brought out.'

8. The learned Government Pleader for Home contended that in view of Section 18 of the Act which provides for an appeal against an order refusing to grant licence, the petitioner's writ petition should be rejected. Before dealing with this contention, it is useful to note the law on the subject of an administrative order rendering itself invalid for want of reasons. Generally any order whether judicial, quasi-judicial or administrative/executive orders cannot be sustained in judicial review if they do not contain reasons. Whether the reasons are adequate, whether the reasons are correct or perverse and whether the reasons supporting the decision are relevant are different questions, a discussion about which is not necessary here. Whether an authority is exercising original jurisdiction or appeal jurisdiction or revision jurisdiction, the law obligates such an authority to record the reasons for the decision on the pain of rendering such a decision vitiated and invalid.In S.N. Mukherjee v. Union of India, : 1990CriLJ2148a , a Constitution Bench of the Supreme Court dealing with a case arising under Army Act, 1950, the question which fell for consideration before the Hon'ble Supreme Court was

'Is there any general principle of law which requires an administrative authority to record the reasons for its decision.'

The Supreme Court referred to the law on the subject as obtaining in the United States, England, Canada and Australia. After referring to leading authorities viz., Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunhunwala, : [1962]2SCR339 , Madhya Pradesh Industries Ltd. v. Union of India, 0044/1965 : [1966]1SCR466 , Bhagat Raja v. Union of India, : [1967]3SCR302 , Travancore Rayon Ltd v. Union of India, : 1978(2)ELT378(SC) , Mahabir Prasad Santosh Kumar v. State of Uttar Pradesh, : [1971]1SCR201 , Siemens Engineering & . v. Union of India, : AIR1976SC1785 , Tarachand Khatri v. Municipal Corporation of Delhi, : (1977)ILLJ331SC and Raipur Development Authority v. M/s. Chokhamal Contractors, AIR 1990 SC 1426, the Hon'ble Supreme Court pointed out the rationale behind the compelling an authority to record the reasons thus:

'An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of this Court under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which havealso weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making.'

9. Further, the Supreme Court in the above judgment held that except in cases where the requirement has been dispensed with either expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.

Therefore, it is settled law that every administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. In our case as can be seen from the one line order of the respondent extracted hereinabove, the said order does not disclose any reasons. Admittedly, the petitioner herein requested the office of the respondent to furnish a copy of reasons and the respondent did not respond in any manner to the request made by the petitioner. The petitioner presumably made such a request based on Section 14(3) of the Act. It is useful to extract the same:

'14(3): Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.'

10. In the absence of any communication by the respondent addressed to the petitioner regarding furnishing of reasons, it has to be held that the respondent acted contrary to law in rejecting the application for arms licence.

11. As already noted, the learned Government Pleader for Home contended that in view of remedy of appeal available to the petitioner, the petitioner may as well be directed to approach the appellate authority and agitate all these grounds. There is no force in the contention of the learned Government Pleader for Home.

12. The availability of alternative remedy to a citizen does not debar this Court from exercising the discretion under Article 226 of the Constitution of India in appropriate cases. In this connection, it is useful to refer to the latest ruling of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, : AIR1999SC22 , wherein their Lordships have held:

'Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficatious remedy is available the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires an Act is challenged.'

13. The Hon'ble Supreme Court referred to five Judgments of the Supreme Court rendered during the evolutionary era of the Constitutional law and in paragraph 20 held as under:

'Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which thoughold continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.'

In this context a question would arise as to whether an order passed by an authority without reasons amounts to violation of principles of natural justice. The doctrine of fairness which is slowly coming to be recognised as the only ground of judicial review, contemplates that every person whose rights are affected should be treated fairly, in that he should be supplied with reasons for the decision which affects his rights. A decision supported by reasons is part of doctrine of fairness and treatment with fairness is part of principle of natural justice. Therefore, if a decision culminating in an order is not supported by reasons, the same would be violating the principles of natural justice. In S.N. Mukherjee's case (supra), the Hon'ble Supreme Court dealt with this aspect of the matter and held:

'The object underlying the rules of natural justice 'is to prevent miscarriage of justice' and secure 'fair play in action'. As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power byadministrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority.'

Therefore, the impugned order passed by the respondent is in violation of the principles of natural justice. When the principles of natural justice are violated, the availability of alternative remedy is no bar for the exercise of this Court's jurisdiction under Article 226 of Constitution of India. Further as seen, Section 14(3) of the Act mandates that the licensing authority shall record the reasons while rejecting the application for arms and such reasons are to be furnished to the applicant on demand. As both these are absent, the impugned order is vitiated by illegality as well as by violation of principles of natural justice. Therefore, this writ petition is disposed of with a direction to the respondent to consider the application of the petitioner for grant of arms licence and pass appropriate orders keeping in view the observations made herein-above.

14. The writ petition is disposed of accordingly. No costs.


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