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Kailash Nath and ors. Vs. State of U.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. Nos. 9379 and 9394 of 1984
Judge
Reported inAIR1985All291
ActsArms Act, 1959 - Sections 3, 5, 14, 17, 17(5) and 18; Constitution of India - Article 21
AppellantKailash Nath and ors.
RespondentState of U.P. and anr.
Appellant AdvocateV.D. Ojha and ;Vijai Bahuguna, Advs.
Respondent AdvocateStanding Counsel
Excerpt:
(i) civil - licence - sections 3 and 5 of arms act, 1959 and article 21 of constitution of india - licence for acquiring and possession of firearms - it is privilege and not right under article 21 - held, audi alteram partem not applicable. (ii) revocation or suspension of licence - sections 14, 17 and 18 of arms act, 1959 - cancellation of licence - opportunity of being heard given to licence holder. - - however, if there is no such material before the licensing authority and il is not apparent to it that there is an immediate danger to public peace and safety and it, on some information being laid before it, proceeds to find out whether there is any likelihood of public peace and safety being affected at some future date, it cannot be said that there is any such urgency so as to.....order1. we allow the petitioners two weeks' time from today to file their representations or objections before the district magistrate, banda and order the district magistrate to decide the same within three weeks from the date of filing such representations or objections. it is not necessary to set aside the impugned order and we accordingly dispose of these writ petitions without passing any such formal order. there will be no order as to costs.m.n. shukla, c.j.these two cases involve important questions interlinked with the daily lives of people, abiding in a civilised society, the executive authorities entrusted with the sovereign duty of maintaining law and order, extending certain privileges to citizens of the state who actuated by a desire to protect themselves may desire to.....
Judgment:
ORDER

1. We allow the petitioners two weeks' time from today to file their representations or objections before the District Magistrate, Banda and order the District Magistrate to decide the same within three weeks from the date of filing such representations or objections. It is not necessary to set aside the impugned order and we accordingly dispose of these writ petitions without passing any such formal order. There will be no order as to costs.

M.N. Shukla, C.J.

These two cases involve important questions interlinked with the daily lives of people, abiding in a civilised society, the executive authorities entrusted with the sovereign duty of maintaining law and order, extending certain privileges to citizens of the State who actuated by a desire to protect themselves may desire to procure arms for themselves, the necessity of regulating and controlling such privileges by rules of law and procedure, and making them liable to be withdrawn, altered or abridged on the non-fulfilment of certain conditions or the supervention of new factors. The orders impeached in these cases are orders passed by the executive authorities, significantly purporting to have been passed under the legal sanction derived from a Full Bench decision of this Court in Chhanga Prasad Sahuv. State of U. P., 1984 All WC 145. That decision was rendered by a Full Bench of three Judges and consequently the hearing of the present writ petitions has necessitated constitution of a Full Bench of five Judges of this Court to decide the question of law canvassed before us. The thrust of the argument has been both on the interpretation arid validity of the law laid down in Chhanga Prasad Sahu's case (supra). In that judgment the following observations occur :

'As already explained, if there already is material before that licensing authority and it becomes apparent to it that possession of arms by the licensee is going to endanger public peace and safety, it can straightway and without holding any enquiry proceed to revoke/suspend the arms licence after recording reasons therefor and if the licensee is aggrieved by such orders, he will have a right lo ventilate his grievance before the appellate authority. However, if there is no such material before the licensing authority and il is not apparent to it that there is an immediate danger to public peace and safety and it, on some information being laid before it, proceeds to find out whether there is any likelihood of public peace and safety being affected at some future date, it cannot be said that there is any such urgency so as to justify the revocation/cancellation of the licence even before the licensing authority gets so satisfied. In the circumstances, considering the nature and the object of the enquiry which a licensing authority is required to make for finding out if the facts justifying passing of an order for revocation/suspension of licence exist, it cannot be said that non-conferment of the power to suspend an arms licence pending enquiry has the effect of defeating the object for which such a power has been conferred upon the licensing authority.'

This passage perhaps forms the bedrock of the assumption which the District Magistrates have made that the power resides in them, to cancel an arms licence without notice to the licensee.

2. The facts of the present cases which lie in a short compass may be briefly stated. Writ Petition No. 9379 of 1984 has been filed by six petitioners who have prayed for quashing of six orders respectively by which the District Magistrate, Banda cancelled their gun licence and directed them to deposit their weapons forthwith. Likewise the petitioner in Writ Petition No. 9394 of 1984 has prayed for quashing of the order passed by the DistrictMagistrate, Banda whereby the petitioner's gun licence was cancelled and he was directed to surrender his gun. The aforesaid order passed by the District Magistrate revealed that he felt satisfied that there was an immediate apprehension of breach of peace from the petitioner, that they were likely to use firearms for commission of crime and that with the object of preserving peace and preventing the petitioners from using the firearms for committing the crime, cancellation of their licences was essential. In both the writ petitions the orders have been challenged on the ground that they were passed without any notice to the petitioners or any opportunity of hearing being given to them prior to the cancellation of the licence. It has been vehemently urged that this was in flagrant violation of the principles of natural justice.

3. The law is well settled that before an action is proposed to be taken against an individual which affects his rights and involves civil consequences, he must be given an opportunity to show cause. This is the essence of the rule of 'audi alteram partem' which is the principal doctrine of natural justice. This rule, however, must be confined to a case in which the adjudication of right of a party arises and which involves civil consequences. A right is distinct from a mere privilege. The case of a licencee to possess or use firearm is materially different from a case of licence to deal in or sell firearms. Section 3 of the Arms Act, 1959 deals with acquisition and possession of firearmsor ammunition on the strength of a licence whereas Section 5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licence for acquisition and possession of firearms is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful. In my opinion the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the right of an individual nor does it entail civil consequences. I may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen, mayapply for grant of a licence of firearms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot: be comprehended within the ambit of Article 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras : 1950CriLJ1383 . Article 21 is attracted only is cases of deprivation in the sense of total loss and that accordingly has no application to the case of a mere restriction upon the right to move freely or to the grant of licence for possession and acquisition of firearms which stands on an entirely different footing from the licence to carry on a trade or 'occupation. The rule of natural justice cannot be invoked unless civil consequences ensue. A civil right being adversely affected is a condition precedent for attracting the 'audi alteram partem rule'. The cases of Ram Gopal Chaturvedi v. State of Madhya Pradesh : (1970)ILLJ367SC and Union of India v. J.N. Sinha : (1970)IILLJ284SC were decided on the basis that the action under challenge in those eases did not involve any civil consequences. Black's Law Dictionary, Fifth Edition, at page 222 contains the following definition of 'Civil' :--

'Relating to private rights and remedies sought by civil actions as contrasted with criminal proceedings.

The word is derived from the Latin civilis, a citizen. Originally, pertaining or appropriate to a member of a civitas or free political community; natural or proper to a citizen. Also, relating to the community, or to the policy and government of the citizens and subjects of a State.'

The term 'Civil rights' is also defined in Black's Law Dictionary at page 1190 as under :

'Civil rights are such as belong to every citizen of the State or Country, or, in a wider sense, to all its inhabitants, and are not connected with the organization or administration of government. They include the rights' of property, marriage, equal protection of the laws, freedon of contract, trial by jury, etc. Or, as otherwise defined, civil rights are rights appertaining to a person by virtue of his citizenship in a State or community. Such term may also refer, in its very general sense, to rights capable of being enforced or redressed in a civil action. Also, a term applied to certain rights secured to citizens of the United States by the Thirteenthand Fourteenth amendments to the Constitution, and by various acts of Congress (e.g. Civil Rights Acts) made in pursuance thereof.'

Thus, civil rights are capable of being enforced in a civil action. On the other hand, privileges are not amenable to such action. In such cases the action taken constitutes denial of a privilege and is distinct from interference with a right. The denial of civil rights is visited with civil consequences whereas no such result follows the withdrawal of privileges. In the case Ram Gopal Chaturvedi (supra) it was held by the Supreme Court that the termination of the service of a temporary Civil Judge did not involve any civil consequences and consequently no question of following the principles of natural justice arose. The consistent trend of judicial decisions has been that the official granting of the licence involves the exercise of discretionary licensing powers which are concerned with privileges and not rights. See Randall v. Northcote Council (1910) 11 CLR 100, 117-119, Metropolitan Meat Industry Board v. Finlayson (1916) 22 CLR 340; Ex. P. Macarthy, re The Milk Board (1935) SR (NSW) 47; Nakkuda Ali v. Jayaratne 1951 AC 66; R. v. Metropolitan Police Commr., ex p. Parker (1953) 1 WLR 1150; Modern Theatres (Provincial) Ltd. v. Peryman (1960) NZLR 191 See also Merchants Bank Ltd. v. Federal Minister of Finance (1961) 1 All NLR 598 (Nigeria) (revocation of licence). The decision in Nakkuda Ali v. Jayaratne 1951 AC 66 was to the effect that the Controller of Textiles in Ceylon had cancelled a textile dealer's licence in pursuance of a power to revoke a licence when he had 'reasonable grounds' for believing its holder to be unfit to continue as a dealer. It was held that the Controller was not determining a question affecting the rights of subjects but was merely taking executive action to withdraw a privilege. De Smith in his 'Judicial Review of Administrative Action', Fourth Edition (page 188-189) remarks:

'This conceptualist approach has been in large part abandoned in favour of a more sophisticated analysis towards the procedural duties of licensing authorities and a more realistic assessment of the economic effect upon the individual.'

In my opinion the above analysis cannol be legitimately extended to the exercise of such discretionary power or grant of privileges such as the initial issuing of a firearm licence. Theshift in the cases is reflected only where the question determined is one 'affecting the rights of subjects. The rights affected may be rights to the enjoyment of personal liberty, to the tenure of an office or pursuit of a profession or other calling, to the retention of unincumbered ownership and possession of property, to the carrying on of trade and the free negotiation of other contracts, to the receipt of compensation and social security benefits due under statute, or, in the case of the ex gratia awards of compensation to criminal injuries, authorised by a non-statutory administrative scheme, to immunity from fines, rates and other fiscal burdens, and to relief from such burdens. This catalogue is'by no means exhaustive.

4. But the orders refusing to renew a licence or withdrawal or cancellation of an existing licence share an entirely different legal complexion. They are more serious matters than mere refusal to grant a licence in the first instance. De Smith in his Judicial Review of Administrative Action (Fourth Edition) sums up the distinction in the following words :

'Unless the licensee has already been given to understand when he was granted the licence that renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss and perhaps cast a slur on his reputation. It may, therefore, be right to imply a duty to hear before a decision not to renew when there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant or refuse the licence.

To equate a decision summarily to revoke a licence with a decision not to, grant a licence in the first instance may be still more unrealistic. Here the 'privilege' concept may be peculiarly inapposite, and its aptness has not been enhanced by the manner in which it has been employed. There ought to be a strong presumption that prior notice and opportunity to be heard should be given before a licence can be revoked. It should be especially strong where revocation causes deprivation of livelihood or serious pecuniary loss, or is dependent on a finding of misconduct. The presumption should be rebuttable in similar circumstances to those in which summary interference with vested property rights may be permissible.'

5. Under Section 3 of the Arms Act, 1959provision is made for grant of licence for acquisition and possession of firearms and ammunition. It reads :

3. Licence for acquisition and possession of firearms arid ammunition. No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder;

Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.'

The considerations which would weigh with the licensing authority in the matter of grant of licence are set out in Sub-section (3) of Section 13 w hich provides :

(3) The licensing authority shall grant -- .

(a) A licence underS. 3 where the licence is required -

(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection;

Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or

(ii) in respect of point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;

(b) a licence under Section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.'

A licence granted under Section 3 unless revoked earlier may continue for a period of three years. This provision is contained in Section 17 which deals with variation, suspension and revocation of licences and may for the sake of convenience be quoted here :

'17. Variation, suspension and revocationof licences. -- (1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose, require the licence-holder by notice in writing to deliver up the licence to it within such time as may be specified in the notice.

(2) The licensing authority may, on the application of the holder of the licence, also vary the conditions of the licence except such of them as have been prescribed.

(3) The licensing authority may, by order in writing, suspend a licence for such period as it thinks fit or revoke a licence, --

(a) If the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or

(b) if the licensing authority deems it necessary for the security of public peace or for public safety to suspend or revoke the licence; or

(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person in his behalf at the time of applying for; or

(d) if any of the conditions of the licence have been contravened; or

(e) if the holder of the licence has failed to comply with a notice under Sub-section (1) requiring him to deliver up the licence.

(4) The licensing authority may also revoke a licence on the application of the holder thereof.

(5) Where the licensing authority makes an order varying a licence under Sub-section (1) or an order suspending or revoking a licence under Sub-section (3), it shall record in writing the reasons thereof and furnish to the holder of the licence 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.

(6) The authority to whom the licensing authority is subordinate may by order in writing, suspend or revoke a licence on any ground on which it may be suspended or revoked by licensing authority; and the foregoing provisions of this section shall, asfar as may be, apply in relation to the suspension or revocation of a licence by such authority.

(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence;

Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.

(8) An order of suspension or revocation under Sub-section (7) may also be made by an appellate Court or by the High Court when exercising its powers of revision.

(9) The Central Government may, by order in the official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof.

(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.'

Section 18 provides that any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence, may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed. Provided that no appeal shall lie against any order made by, or under the directions of the Government.

6. A perusal of Section 17 makes it manifest that before exercising the power of revocation etc. under that provision no notice is required to be given to the licence holder. Sub-section (5) merely requires that for passing an order suspending or revoking a licence the licensing authority shall record in writing the reasons thereof and furnish to the holder of the licence on demand a brief statement of the same. Even this requirement can be dispensed with in a case where the licensing authority is of the opinion that it will not be in public interest to furnish that statement. Thus, the Act or the Rules made thereunder do not contemplate anotice being given to the licence holder before cancelling or varying or suspending the licence of a licence holder. Nevertheless, the act of cancelling or refusing to renew a licence leads to grave consequences. The licence may have been presumably obtained by a person on satisfaction of the licensing authority about the circumstances of his individual ease and for his protection and the withdrawal or cessation of such privilege may adversely affect the licence holder's security or protection and may even be a slur on his reputation. The withdrawal or refusal to renew the subsisting licence is in my opinion intrinsically a quasi-judicial act and, therefore, it attracts the rules of natural justice. That is why the statute also insists on such action being taken in a most circumspect and cautious manner. Both Sections 14 and 17(5) make the recording in writing the reasons for such order mandatory and furnishing to the holder of the licence a brief statement of the same is also mandatory, unless in an exceptional case it is not found expedient to furnish such statement. In Province of Bombay v. Khushaldas S. Advani : [1950]1SCR621 Das, J. formulated two tests to find out whether a proceeding before an authority is a quasi-judicial proceeding. They are : -

(i) That if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising o ut of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other there is lis and prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act and

(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are no two parties apart from the, authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.'

Thus, in the matter of cancellation of a licence even though there are no two parties and the contest is only between the authority proposing to cancel the licence and the subject opposing it, the final determination by the authority will yet be a quasi-judicial act. The provisions about recording of reasons in writing indicatethat the authority is required by the slatut e to act judicially.

7. We eannot also overlook the fact that the niceties or subtle distinction between an administrative and quasi-judicial act have become nearly obsolete in view of the decision of the Supreme Court in A.K. Kraipak v. Union of India : [1970]1SCR457 . In that case the Supreme Court observed as follows :

'The aim of the rules of natural justice is to secure justice or to put negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely, (1) no one shall be judge in his own cause (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing taudi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made applicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry.'

Thus, the prevailing judicial norm of the concept of natural justice is the paramount duty to 'act fairly' according to the circumstances of the case. In other words, an all pervasive legal obligation is east on everyauthority which passes orders, which would adversely affect a person's enjoyment of an existing benefit and are fraught with grave consequences, irrespective of the question as to whether such act is administrative or quasi-judicial.

8. It is also not necessary that the duty to act judicially would depend entirely on express provision to that effect in a statute. It need not be shown to be superadded. It has to be spelt out from the very nature of the function to be performed. In State of Orissa v. Dr. (Miss) Binapani Dei : (1967)IILLJ266SC it was observed by the Supreme Court while discussing the principles of natural justice ;

'The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity.'

The dictum was still more clearly enunciated in the same case in these words :

'It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, (he evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence.'

Thus, before cancelling a licence for firearms the license holder must be given an opportunity of being heard.

9. The concept of 'fair hearing' in accordance with the principles of natural j ustice varies in different contexts. The precise requirement of procedural fairness would depend very much on the facts of the caseitself. As observed by the Supreme Court in Suresh Koshy George v. University of Kerala : [1969]1SCR317 :

'The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the tribunal and the rules under which it functions.'

The Supreme Court in Board of High School and Intermediate Education, U. P., Allahabad v. Ghanshyam Das Gupta : AIR1962SC1110 ruled :

'The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute.'

The powers to control or regulate activities by the licensing authority cover a vast spectrum. To thrust every licensing authority inside a standard procedural straight jacket would be absurd. The licensing procedures do, in fact, vary widely. Therefore, it is impossible to lay down a rigid formula as to the precise manner in which the rules of natural j ustice should be given effect to in every case. The circumstances would dictate their own pattern. One of the vital factors to be taken into account in this regard is that an emergency may require a precipitate action to deal with an extraordinary situation. Where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature, the meticulous observance of the rule of giving a prior notice would defeat the very object of the action proposed to be taken. After all, the rules of natural justice are not ends in themselves and if they fail to serve the ends of justice they can be suitably modified or adjusted. They should not be allowed to become the master instead of the servants of justice. As Lord Devlin remarked in Re K. (Infants) (1965) AC 201 (238) :

'In a child custody case the House of Lords refused disclosure of confidence reports made to the Court by the Official Solicitor becausetheir disclosure to the parents concerned might damage children whose welfare it was the paramount duty of the Court to protect; common-law duties to abide by the rules of natural justice were not ends in themselves, and where they did not serve the ends of justice, they could not be allowed to 'become the master instead of the servant of justice.'

Thus, for instance, the purpose of giving executive powers to detain security suspects in wartime or .grave emergency would plainly be frustrated if the suspect were entitled to prior notice of its intentions (See R. v. Halliday 1917 AC 260; Liversidge v. Anderson 1942 AC 206. It would not be inapt to refer to the following synopsis of the law on this point contained in De Smith's Judicial Review of Administrative Action, Fourth Edition (at pages 180-191) :

'Summary action for the maintainance of public security or public order in normal times may also be permissible. Orders may be made regulating the conduct of a public procession, or prohibiting the holding of all public processions or all public processions of a specified class for a period in a locality, if the police have reasonable grounds for apprehending serious public disorder. Although the point has not been tested, it is unlikely that a Court would hold that the organisers of processions affected were entitled to be notified of the intention to make an order or to make representations against it beforehand.

The interests of public safely or public health may similarly justify summary interference with property rights, as where an inspector from the Ministry of Agriculture destroys infected crops, or a dangerous nuisance is abated without notice in the exercise of common-law powers, or a public official deinfests verminous articles offered for sale, or an administrative order is made prohibiting smoking in a theatre. That urgency may warrant disregard of the audi alteram partem rule in other situations is generally conceded.'

Normally or ordinarily a notice before an action should be given to the person affected but in such extraordinary cases as mentioned above, the absence of hearing before the action can be adequately compensated for by a hearing 'ex post facto'. A prior hearing may be better than subsequent hearing, but a subsequenthearing is better than no hearing at all; and in some cases the Courts have held that statutory provisions for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original decision is made. See St. James and St. John, Clerkenwell, Vestry v. Feary, (1890) 24 QBD 703, R v. Randalph (1966) SCR 260 (interim mail stop order) see also Pearlberg v. Varty (1972) 1 WLR 534 (tax assessments); Furncl v. Whangarel High Schools Board, 1973 AC 660 (suspension of teacher pending full hearing); see also Maynard v. Osmond 1977 QB 240, 253 (right of legal representation on appeal a reason for not implying the same right in original proceedings). Likewise, a full judicial review on the merits has also been regarded as sufficient substitute for a hearing before the proposed action is taken. See Literature Board of Review v. H.M.H. Publishing Co. Inc. (1964) Qd. R. 261 (order prohibiting distribution of Playboy magazine); Twist v. Randwick Municipal Council (1976) 136 CLR 106. The rule is not inflexible. The ultimate test is whether in a particular context the procedure 'as a whole' afforded the individual an opportunity for hearing.

That is why it has been held that where the initial decision is only provisional in the sense that it does not take effect at all until a prescribed period for lodging objections has expired, the opportunities thus afforded to a person aggrieved are in substance a right to an antecedent hearding. See Re Dabar Motors Ltd. and Maccormac (1975) 50 DLR (3d) 641. The efficacy of post-decisional remedial hearing was underlined by the Supreme Court in Smt. Maneka Gandhi v. Union of India : [1978]2SCR621 , Bhagwati, J. observed (page 630) :

'The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of theorder and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his passport. A fair opportunity of being heard 'following immediately upon the order impounding the passport, would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Act. 21 and does not fall foul of that article.'

In the instant case the gun licences of the petitioners were cancelled without any prior notice to them and in Wrif Petition No. 9379 of 1984 the operation of the impugned order which directed the petitioners to surrender their guns was stayed by this Court. In Writ Petition No. 9394 of 1984 which was directed against a similar order the sole petitioner was directed to deposit his firearm with the dealer who would keep the same in safe custody during the pendency of the writ petition. The impugned order expressly recited that there was immediate apprehension of breach of peace from the petitioners if they were allowed to retain their firearms. Hence, cancellation of their firearms licences without any prior notice to them might be justified but the ingredients of natural justice would not be satisfied until the petitioners were subsequently afforded an opportunity of hearing and making representations against the impugned order. This being the legal aspect of the cast. I am of the opinion that the law laid down in para 16 in Chhanga Prasad Sahu's ease (1984 All WC 145)(FB) (supra) extracted in the earlier part of this judgment must be supplemented by the further observations that alter taking the provisional action of immediate revocation of the licence the licensing authority must issue notice to the licence holder giving him an opportunity to file objections against the preliminary order and after hearing him proceed to pass the final order which may either affirm or revoke the provisional order. In other words, it is incumbent upon the licensing authority to refrain from attaching finality to the order of cancellation until theaggrieved petitioner has been heard by such authority and his objections have been adjudicated. The licensing authority can also for the furtherance of his immediate remedial action exercise the incidental power of directing the licence holder to surrender his licence until the objections have been decided. It follows that in the event of the objections being allowed the licence as well as the firearm must be restored to the licence holder. In Smt. Maneka Gandhi's case : [1978]2SCR621 (supra) the Supreme Court in its final order did not set aside the impugned order of impounding the passport, instead it merely allowed the petitioner to make a representation and issued direction that the representation should be dealt with expeditiously by the Passport Authority.

10. In view of the law as stated above I allow the petitioners two weeks' time from today to file their representations or objections before the District Magistrate, Banda and order the District Magistrate to decide the same within three weeks from the dateof filingsuch representations or objections. It is not necessary to set aside the impugned order and I accordingly dispose of these writ petitions without passing any such formal order. There will be no order as to costs.

Wahajuddin, J.

I agree.

R.P. Shukla, J.

I agree.

A.N. Dikshita, J.

I agree.

H.N. Seth, J.

11. Each of the six petitioners in Writ Petition No. 9379 of 1984 (Kailash Nath, Husaina alias Hardayal, Bhaiya Lal, Moti Lal, Bhagwandin Singh and Bala Prasad) and Jham Singh petitioner in Writ Petition No. 9394 of 1984 held arms licences issued to them under the provisions of Arms Act. District Magistrate, Banda has, by various orders made by him on different dates in the month of July, 1984, cancelled arms licences of various petitioners on the ground that he felt satisfied that as there was, on the part of the petitioners, an immediate apprehension of breach of peace and that they were likely to use their firearms for committing crimes, it was necessary to cancel their licences with a view to preserve the public peace as also to prevent the petitioners from using their firearms for committing crimes. However, relying upon the observations made in paras 9 and 10 of a Full Bench decision of this Court in the case of C. P. Sahu v. State, 1984 All WC145, the District Magistrate did not, before cancelling the arms licences of the petitioners, afford them any opportunity to explain why such action be not taken against them. Aggrieved, the petitioners have approached this Court for relief under Article 226 of the Constitution and contend that the impugned orders having been made without complying with the principles of natural justice, are liable to be quashed.

12. The Bench before which the petition filed by Jham Singh came up for admission, felt that the point raised therein was of general importance and that some of the observations made by the Full Bench in C.P. Sahu's case (supra), referred to in the impugned order, appeared to be inconsistent with the decision of the Supreme Court in the case of The Purtabpur Company Ltd. v. Cane Commr. of Bihar : [1969]2SCR807 . It accordingly admitted the petition and referred the case for decision by a larger Bench. Inasmuch as the same controversy was involved in the petition filed by Kailash Nath and others, that petition too was admitted and connected with the writ petition filed by Jham Singh; and this is how the matter has now come up before us.

13. In the case of C.P. Sahu v. State, 1984 All WC 145 the questions that came up for consideration before a Full Bench were as to whether the licensing authority was empowered to suspend an arms licence pending inquiry into its cancellation or suspension; and whether, in view of the statutory provisions, was it incumbent upon the authority to afford an opportunity of hearing prior to suspension pending inquiry. So far as the first question was concerned, no specific provision in the Arms Act which empowered the licensing authority to suspend licence pending inquiry into its cancellation or suspension, was brought to the notice of the Bench. It was urged that having regard to the object and nature of the inquiry contemplated by the Arms Act in this, regard the authority to suspend an arms licence pending inquiry into its cancellation had, by necessary implication, to be conceded to the licensing authority. In order to deal with this submission it became necessary for the Bench to first determine the true nature of the inquiry that the licensing authority is under the Arms Act required to make before directing cancellation or suspension of an arms licence. The Bench, after noticing the provisions contained in Sections 17 and 18 of the Arms Act, observed thus : --

'A perusal of abovementioned provisions indicates that the licensing authority has been given power to suspend or revoke arms licence only if any of the conditions mentioned in Sub-clauses (a) to (e) of Sub-section (3) of Section 17 of the Act exists. Sub-section (5) of Section 17 makes it obligatory upon the licensing authority to, while passing the order revoking/suspending an arms licence, record in writing the reasons therefor and to, demand, furnish a brief statement thereof the holder of the licence unless it considers that it will not be in public interest to do so. According to this section, the stage of recording of the reasons for cancelling or suspending an arms licence is reached only when such an order is made and not before it. A brief statement of such reasons is to be communicated to the licensee only if;

(i) the licensee asks for it, and

(ii) the licensing authority does not consider disclosure of such reason to be against public interest.'

The Bench thereafter went on to conclude as follows : --

'The provision that the reason for revocation/suspension of an arms licence is to be recorded when the licensing authority makes the order and that a brief statement thereof is to be communicated only if the licensee demands it and that too only where the licensing authority does not consider disclosure of such reasons to be against public interest, makes the legislative intention that, if at all, the licensing authority is obliged to communicate to the licensee the grounds for revocation/suspension of the licence only after the order of revocation/suspension has been made, absolutely clean. This provision rules out any obligation on the part of the licensing authority to, before making such order, communicate the grounds for revoking or suspending the license, to the licensee. Accordingly, placing of any obligation on the licensing authority to notify the grounds of revoking or suspending the licence, to the licensee before the order for revocation or suspension of the license is made, would result in forcing the licensing authority to do something which the statute does not oblige it to do. Such compulsion flowing from any source whatsoever would not be in consonance with the provisions contained in Section 17 of the Act.'

The Court then went on to refute the submission that the licensing authority was, on the basis of principles of natural justice, bound to, beforecancelling or suspending an arms licence, afford an opportunity to the licensee to show cause against the proposed action, by observing that the rules of natural justice are not embodied rules, nor can they be elevated to the position of fundamental rights. Their aim is to secure justice and to prevent miscarriage of justice. They do not supplant the law but supplement it. If a statutory provision can be read in conformity with the principles of natural jusdce, the Courts should do so. But if a statutory provision either specifically or by necessary implication excludes the application of any rule of natural justice, then the Court cannot ignore the mandate of the legislature or the statutory authority and to read into the concerned provision the principles of natural justice. Whether or not the exercise of power conferred should be made in accordance with any of the principles of natural justice depends upon the express words of the provisions conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of exercise of that power. The Full Bench held that in view of the statutory provisions contained in Sections 17 and 18 of the Arms Act it was clear that the Legislature had in its wisdom thought that in such cases an opportunity of being heard should be afforded to the licensee at a stage following suspension/revocation of a licence and not prior to it. Thus the Legislature has, in its own way specified the stage at which the principles of natural justice are in such cases to become applicable and has thereby ruled out the application of such principles at any other stage.

Before us learned counsel appearing for the petitioners did not contend that the line of reasoning adopted by the Full Bench in C.P. Sahu's case (1984 All WC 145) (supra) to the effect that there was no scope for the applicability of principles of natural justice in a case where the Legislature clearly intended to exclude the same and that in case of suspension/revocation of an arms licence under the Arms Act the legislative intendment was absolutely clear, runs counter to any observation made by the Supreme Court in the case of Purtabpur Co. Ltd. v. Cane Commr. of Bihar : [1969]2SCR807 . Instead, the learned counsel strongly relied upon the decision of the Supreme Court in the case of Maneka Gandhi v. Union of India : [1978]2SCR621 and contended that the Full Bench was not justified in holding thatthe audi alteram partem rule of natural justice stood excluded by the statutory provision .contained in Sections 17 and 18 of the Arms Act and that the licensing authority could revoke/suspend an arms licence without affording any opportunity to the licensee to show cause against the proposed action.

14. In Maneka Gandhi's case (supra) the Central Government had made an order impounding Maneka Gandhi's passport under the provisions of the Passports Act without affording to her any opportunity of being heard in her defence. The Central Government had also declined to disclose the reasons for impounding the said passport on the pretext that it would not be in the interest of general public to do so, but then it was found that this action of the Government was wholly unjustified and illegal. The validity of the order impounding the passport was challenged before the Supreme Court inter alia on the ground that the impugned order had been made in contravention of the audi alteram partem rule of natural justice. While dealing with this question Mr. Justice Bhagwati delivering the leading majority judgment of the Court observed that under the Act, a passport can be impounded by the Passport Authority only on certain specified grounds set out in Sub-section (31 of Section 10 of the Passports Act and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists and would justify impounding of the passport. The Passport Authority is also required by Sub-section (5) of Section 10 to record in writing a brief statement of the reasons for making an order impounding a Passport and. save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. When the Passport Authority which has impounded the passport is other than the Central Government, a right of appeal against the order impounding the passport is given under Section 11, and in the appeal the validity of the reasons given by the Passport Authority for impounding the passport can be canvassed before the appellate authority. Aforementioned factors led the learned Judge to conclude that the test laid down by the Supreme Court in its various decisions for distinguishing between quasi-judicial powers and administrative powers were clearly satisfied and that the power conferred on the Passport Authority to impound a passportwas a quasi-judicial power and that it had to be exercised in accordance with the principles of natural justice. The learned Judge also observed that even if the said power was to be considered to be an administrative power, the principles of natural justice would, in view of the decision in Kraipak's case : [1970]1SCR457 still govern the exercise of such power.

15. Learned counsel for the petitioners urged that like the Passports Act the Arms Act also by Sub-section (3) of Section 17 lays down that a licensing authority can suspend/revoke an arms licence only if any of the conditions specified in Clauses (a) to (e) thereof exists. Sub-section (3) of Section 17 obliges the licensing authority to, while making an order revoking/suspending an arms licence, record in writing the reasons for taking the action and to, on demand, furnish to the licensee a brief statement of the same unless it be a case where the licensing authority feels that it would not be in public interest to furnish such statement. Section 18 then provides for an appeal by the aggrieved person against the order made by the licensing authority revoking/suspending the arms licence. He, therefore, contended that having regard to similarity of the procedures laid down in the Passports Act for impounding passport and that laid down in the Arms Act for revoking/suspending an arms licence, the ratio of Maneka Gandhi's case : [1978]2SCR621 (supra) becomes fully applicable to the instant case and it has to be held that the licensing authority, while taking action to suspend/revoke a licence under the Arms Act continues to be governed by the principles of natural justice. According to him the rule of audi alteram partem, that is, no decision shall be given against a party without affording him a reasonable hearing, is one of the essential ingredients of the principles of natural justice; and any order made by a licensing authority revoking the licence without affording a reasonable hearing to the licensee would, .therefore, stand vitiated.

16. In my opinion learned counsel for the petitioners is right in contending that in view of similarity of procedure for impounding passport under the Passports Act and that for revoking/suspending an arms licence under the Arms Act, the ratio of the decision of the Supreme Court in Maneka Gandhi's case fully applies and the conclusion is inevitable that the licensing authority has, while revoking/suspending an arms licence underthe Arms Act. necessarily to act in accordance with the principles of natural justice. However, the learned counsel is not right in submitting that as per principles of natural justice, the licensing authority is bound to afford an opportunity of hearing to the licensee before revoking/suspending his arms licence.

17. In Maneka Gandhi's case, while dealing with Attorney General's submission that having regard to the nature of the action involved in impounding of a passport, the audi alteram partem rule must be held to be excluded because if notice was given to the holder of the passport and an opportunity was afforded to him to show cause why the same be not impounded, the very object of impounding the passport may get frustrated, the Supreme Court pointed out that audi alteram partem rule which is a wholesome rule designed to secure the rule of law which is a rule of vital importance in the field of the Administrative Law must not be jettisoned, save in exceptional circumstances where compulsive necessity so demands, and that Courts should not be too ready to exclude it in its application to a given case. It ruled that merely because the traditional methodology of formulised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem rule should not be completely excluded. In such cases the Courts have to make every effort to salvage the cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. The audi alteram partem rule is not cast in a rigid mould and judicial decision establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be genuine hearing and not an empty public relations exercise. What opportunity may be regarded as reasonable would necessarily depend on practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be hearing which is very brief or minimal it may be a hearing prior to the decision or may even be post-decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations whichmay arise and that it would not be right to conclude that the audi alteram part em rule is excluded merely because the power to impound passport might be frustrated if prior notice and hearing were to be given to the person concerned before impounding the Passport. The Passport Authority could proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing remedial in aim must be given to him. so that he may present his case and controvert that of the Passport Authority and point out why his passport should not be impounded and the order impounding it be recalled.

18. Aforementioned observations made by the Supreme Court make it absolutely clear that the audi alteram partem rule of natural justice does not, in all cases, oblige the authority to give an opportunity of hearing to the concerned party before arriving at a decision adverse to it. If the exigencies and practical necessities of the case so require the rule would stand satisfied even if a post-decisional hearing remedial in aim is given. Certainly, the exigencies and practical necessities of the case mentioned above have to be assessed in the context of the statutory provisions as also the object of the legislation. It was in this context that Bhagwati, J., while holding in Maneka Gandhi's case : [1978]2SCR621 that the audi alteram partem rule of natural justice is applicable to and would stand satisfied in the case of proceeding for impounding of passport, if the Passport Authority gives to the concerned party post-decisional remedial hearing, observed thus : --

'This should not only be possible but also quite appropriate, because the reasons for impounding the passport are required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case andplead for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provisionrequiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness.'

19. Inasmuch as the provisions concerning revocation/suspension of arms licence contained in the Arms Act specifically require that the reasons for such revocation/suspension are required to be supplied by the licensing authority after the order of revocation/suspension is made, the affected person can be in a position to make a representation setting forth his case and plead for setting aside the order revoking/suspending his arms licence only after the said order is made; and reading the audi alteram partem rule of natural justice in the Arms Act in consonance with the statutory provisions of Sections 17 and 18 of the Arms Act, it would follow that the action of revoking/suspending an arms licence would be valid and be in accordance with law if the licensing authority, after making the order, affords to the concerned person an opportunity of making a representation setting forth his case and plead for its setting aside.

20. So far as the decision of the Full Bench of this Court in C.P. Sahu's case 1984 All WC 145 is concerned, it had to, for answering the question referred to it, discuss the question as to whether in view of the statutory provisions contained in the Arms Act a licensee was entitled to a hearing before an order revoking/suspending his arms licence is made. It held that having regard to the statutory provisions contained in the Arms Act the audi alteram partem rule of natural justice stood excluded at the stage prior to making of the order of revocation/suspension of the licence. This conclusion of the Full Bench does not, in any way fall foul with the decision of the Supreme Court in Maneka Gandhi's case : [1978]2SCR621 (supra). It was in paras 8 and 18 of the judgment of the Full Bench in C.P. Sahu's case observed thus : --

'8. Again a reading of the provisions contained in Sections 17 and 18 of the Act, as forming part of one integrated scheme, clearly brings out that the licensee is afforded ample protection when the statute obliges the licensing authority to give, reasons for revoking/suspending a license in writing and thereafter afford him an opportunity to be hoard by the appellate authority on all relevant aspects of the matter. It is evident that having regard to the fact that the licences involved in such cases are in respect of dangerous weapons, the Legislature in its wisdom, thought that an opportunity of being heard should be afforded to the licensee at a state following suspension/revocation of the licence and not prior to it. Thus the Legislature has, in its own way, specified the stage at which principles of natural justice are in such cases to become applicable and has thereby ruled out the application of such principles at any other stage.

xxxxx 18........ As already explained, if there alreadyis material before the licensing authority and it becomes apparent to it that possession of arms by the licensee is going to endanger public peace and safety, it can straightway and without holding any inquiry proceed to revoke/suspend the arms licence after recording reasons therefor and if the licensee is aggrieved by such orders, he will have a right to ventilate his grievance before the appellate authority.'

21. It was contended that aforementioned observations tend to indicate that according to the decision in C.P. Sahu's case (1984 All WC 145) (supra) a licensee aggrieved by an order revoking/suspending his arms licence can have his grievance redressed only by approaching the appellate authority and cannot get any hearing before the licensing authority and that this view of the Full Bench runs counter to the decision of the Supreme Court in Maneka Gandhi's case : [1978]2SCR621 .

22. In my opinion, the observations made in C.P. Sahu's case do not carry any such implication. What was intended to be laid down therein was that in view of the statutory provisions contained in the Arms Act the licensee could not, on the principles of natural justice, claim a right of hearing before the order of revocation or suspension of his armslicence was made and that it was open to him to have his grievances redressed by way of appeal wherein he was to get in accordance with principles of natural justice a full hearing to defend himself. The question whether in accordance with the principles of natural justice the party whose licence had been revoked/suspended was entitled to a post-decisional remedial hearing before the licensing authority and whether the question of principles of natural justice did not stand excluded to that extent was neither canvassed before, nor dealt with by the Full Bench. Accordingly, we are of opinion that nothing should be read in the Full Bench decision of this Court in C.P. Sahu's case which may imply that in cases of revocation/suspension of arms licence the licensee is not, on the principles of natural justice, entitled to post-decisional remedial hearing before the licensing authority itself. In such cases the licensee has at his option, two remedies, namely, one to apply for post-decisional remedial hearing to the licensing authority itself, and the other by going up in appeal against the order revoking/suspending his licence. It is open to the licensee to follow either of the two remedies or even to claim a post-decisional remedial hearing before the licensing authority followed by an appeal in accordance with the provisions of Section 18 of the Arms Act.

23. In view of the aforesaid discussion, I am clearly of the view that the impugned orders passed by the District Magistrate, Banda cancelling the arms licences of various petitioners without affording any hearing to them do not stand vitiated and no case has been made out for interfering with the same. However, as the petitioners apprehend that in view of the observations made by this Court in paragraphs 8 and 18 of its judgment in C.P. Sahu's case (1984 All WC 145) (FB) (supra), the District Magistrate may feel that the petitioners are not entitled to any hearing by him and that the only course open to the petitioners is to seek redress before the appellate authority, we make it clear that even after passing the order revoking petitioners' licences the District Magistrate is, in accordance with the principles of natural justice bound to, in case the petitioners approach him afford them an opportunity of showing that the orders directing cancellation of their licences were not justified and that they deserve to be set aside. In case thepetitioners make applications for the purpose within a period of two weeks from today's date, the District Magistrate must, after hearing them, dispose of these applications in accordance with law within three weeks of the receipt thereof.

24. Subject to the observations made above, both the petitions fail and are dismissed. In the circumstances, I direct the parties to bear their own costs.


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