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Moti Miyan Vs. Commissioner, Indore Division and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 10 of 1959
Judge
Reported inAIR1960MP157; 1960CriLJ613
ActsConstitution of India - Article 226; Arms Act, 1878 - Sections 17; Arms Rules - Rule 41 and 41B
AppellantMoti Miyan
RespondentCommissioner, Indore Division and ors.
Appellant AdvocateRatan Singh, Adv.
Respondent AdvocateH.L. Khaskalam, Addl. Govt. Adv.
DispositionPetition dismissed
Cases ReferredSardar Budhsingh v. State of M. P.
Excerpt:
.....act binds the subject and affects his rights or imposes liability on him just as effectively as a quasi-judicial act does. the exercise of an administrative or executive act may well be and is frequently made dependent by the legislature upon a condition of contingency which may involve a question of fact, but the question of fulfillment of which, may, nevertheless, be left to subjective opinion or satisfaction of the executive authority. the committee observed at page 81 of the report (cmd 4060 of 1932) as follows :decisions which are purely administrative stand on a wholly different footing from quasi-judicial as well as from judicial decisions and must be distinguished accordingly. it is well settled that the functions and powersof the reviewing or the appellate authority can at the..........to renew a licence but that in exercising this discretion the authority was required to act quasi-judicially and, therefore, the district magistrate should have held an enquiry for determining the suitability of the petitioner for holding a licence and should have given a notice of the enquiry to the petitioner; and that the district magistrate's action in refusing to renew the licence without giving any opportunity of hearing to the petitioner was, therefore, bad.it was said that the provision in rule 41 relating to an appeal against the order of refusal of the competent authority to his immediate official superior and the requirement of rule 41-b that the authority refusing to renew a licence shall record in writing its reasons for such refusal indicated that the authority was.....
Judgment:

Dixit, C. J.

1. By this application under Articles 226 and 227 of the Constitution of India the petitioner moves for the issue of a writ of certiorari for quashing an order of the District Magistrate, Nimar, refusing to renew for the year 1958 the gun licence held by the petitioner and for quashing the order of the Commissioner, Indore Division, upholding the order of the District Magistrate. The petitioner also seeks a writ of mandamus to the District Magistrate, Nimar, forthe renewal of his gun licence for the year 1958 and subsequent years.

2. The petitioner states that he comes of a very ancient, respectable and loyal family of Nimar; that ever since 1935 right up to 30-3-1957 he held a gun licence; and that in 1957 when he again applied for the renewal of the licence under Rule 41 of the Indian Arms Rules, 1951, the District Magistrate of Nimar without holding any enquiry and without giving him an opportunity of hearing refused to renew the licence by an order dated 27-4-1957. According to the petitioner, the order did not state the reasons for the refusal. The petitioner then preferred an appeal before the Commissioner, Indore Division, against the order of the District Magistrate, Nimar. The learned Commissioner upheld the District Magistrate's order of refusal.

3. The District Magistrate refused to renew the petitioner's licence after satisfying himself on the basis of a police report and enquiries made by himself that the petitioner was 'an ex-history sheeter and a notorious' person and that it would not be in the interests of the public to renew his licence. The Commissioner considered all these grounds as valid for refusal to renew the licence.

4. Shri Ratansingh, learned counsel appearing for the petitioner, argued that under Rule 41 of the Indian Arms Rules, 1951, it was no doubt in the discretion of the competent authority to renew a licence but that in exercising this discretion the authority was required to act quasi-judicially and, therefore, the District Magistrate should have held an enquiry for determining the suitability of the petitioner for holding a licence and should have given a notice of the enquiry to the petitioner; and that the District Magistrate's action in refusing to renew the licence without giving any opportunity of hearing to the petitioner was, therefore, bad.

It was said that the provision in Rule 41 relating to an appeal against the order of refusal of the competent authority to his immediate official superior and the requirement of Rule 41-B that the authority refusing to renew a licence shall record in writing its reasons for such refusal indicated that the authority was required to act in a quasi-judicial manner in exercising its discretion under Rule 41. Learned counsel proceeded to say that the order made by the District Magistrate was without jurisdiction inasmuch as he did not record his reasons for the refusal of the licence as required by Rule 41-B; and that on the material before him the District Magistrate was not justified in refusing to renew the licence.

5. We are unable to accede to the contentions advanced by the learned counsel for the petitioner. Having regard to the scheme and object of the Indian Arms Act and the Rules made thereunder, and to the provisions of Rules 41 and 41-B, we are clearly of the opinion that the order of the District Magistrate refusing to renew the licence is an administrative order. The question whether an order made by an authority is a quasi-judicial or an administrative order is not a general or abstract question of principle.

It has to be determined on a construction of the relevant provisions of the particular statutes under which the order in question is made by the authority concerned. The Supreme Court laid down in Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222, some of the tests to find out whether an authority making an order under an Act acts in a quasi-judicial or in an administrative capacity. In that case, the proposition that whenever there is adetermination of a fact which affects the rights of parties, the decision is quasi-judicial, was rejected by Kama C. J. in paragraph 7 of his judgment. He observed :

'Every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other. Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and arenot amenable to the writ of certiorari.

* * * It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed.'

Das J. (as he then was) pointed out that it is the duty to act judicially which distinguishes a quasi-judicial act from an administrative act and proceeded to observe :

'. . . that if a statute empowers an authority not being a Court in the ordinary sense, to decide disputes arising out 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 contending parties who are opposed to each other there is a 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 not 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.''

Later on, the learned Judge indicated the many common features of quasi-judicial and administrative acts by saying that :

'... a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power. He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person exercising a judicial or quasi-judicial function has to do. Both, have to act in good faith. A good and valid administrative or executive act binds the subject and affects his rights or imposes liability on him just as effectively as a quasi-judicial act does. The exercise of an administrative or executive act may well be and is frequently made dependent by the Legislature upon a condition of contingency which may involve a question of fact, but the question of fulfillment of which, may, nevertheless, be left to subjective opinion or satisfaction of the executive authority.'

It was then stressed by the learned Judge that the mere provision for an inquiry as a preliminary step in coming to a decision will not necessarily make the decision a quasi-judicial act, for the purpose of inquiry may only be to enable the deciding authorityto make up its mind to do what may be a purely administrative act.

6. In this connection, it would be pertinent to refer to the opinion expressed by the Committee on Ministers' Powers (Appointed in England in 1929 under the Chairmanship of the Earl of (enough-more) on the distinction between administrative and judicial decisions. The Committee observed at page 81 of the Report (Cmd 4060 of 1932) as follows :

'Decisions which are purely administrative stand on a wholly different footing from quasi-judicial as well as from judicial decisions and must be distinguished accordingly. Indeed, the very word 'decision' has a different meaning in the one sphere of activity and the other. When a person resolves to act in a particular way, the mental step may be described as a decision. Again when a Judge determines an issue of fact upon conflicting evidence, or a question of law, upon forensic argument he gives a 'decision. But the two mental acts differ. In the case of the administrative decision, there is no legal obligation upon the person charged with the duty of reaching the decision to consider and weigh submission and arguments, or to collate any evidence, or to solve any issue. The grounds upon which he acts, and the means which he takes to inform himself before acting, are left entirely to his discretion.'

7. It will thus be seen that a quasi-judicial decision is nothing but an administrative decision, some stage or some element of which possesses judicial characteristics. The decision, whether quasi-judicial or administrative, is taken by the competent authority in the exercise of its discretion. But the distinguishing feature of the two kinds of acts is the mode or manner in which the opinion on the basis of which the act is done by the authority in the exercise of its discretion, is formed. The decision would be quasi-judicial if in reaching that decision the authority is required first to ascertain certain facts by means of evidence and is then free to take such action as it may think fit on the facts so ascertained.

In such a case the authority must consider the representations and objections of the parties affected and give them an opportunity to adduce and examine the evidence. On the other hand, the decision would be purely administrative if in taking that decision the authority is free to base its opinion on whatever material it thinks fit and howsoever obtained ,in the course of its executive functions or derived from the evidence at an enquiry, if there is any. One must, therefore, look to the particular provisions of the statute in order to determine the question whether the authority acting under those provisions acts in an administrative or a quasi-judicial capacity.

8. Applying these tests, it is evident on a consideration of Section 17 of the Act and of Rules 41 and 41-Bof the Indian Arms Rules that the decision of thecompetent authority about the grant or refusal orcancellation of a licence is purely an administrativedecision. There is nothing in these provisions to indicate that the material and evidence on which theauthority bases its decision to renew or refuse torenew a licence must be obtained in a particularmanner and after hearing the representation of theperson concerned. No procedure has been laid downeither in the Act or in the Rules for securing thatthe licence-holder is to have a notice of the authority's intention to refuse the renewal or that theremust be any enquiry, public or private, before theauthority acts.

The provision of an appeal against the order of the competent authority refusing to renew a licence and the requirement of Rule 41-B that the authoritymust record in writing its reasons for the refusal are by no means decisive of the order being a quasi-judicial order. It is entirely erroneous to think that an order is quasi-judicial because it can be reviewed or is appealable. An administrative order can besubject to review or appeal by an administrative authority in much the same way as a judicial order is by the judicial authorities. The nut re or a order, which is purely administrative, and of the proceedingleading to it, is not changed when it comes upbefore the reviewing or the appellate authority.It is well settled that the functions and powersof the reviewing or the appellate authority can at the most be only those which the authority, passing the order sought to be reviewed or appealed from, would have itself exercised. The reviewing or the appellate authority would generally be guided by principles which should in its opinion have governed the proceedings under review or appeal. Thecontention, therefore, that as the order refusing to renew the licence is open to appeal, it is quasi-judicial, cannot be accepted.Likewise, the recording of the reasons for the refusal in the order 'is no way indicative of the order being a quasi-judicial order. As an appeal is provided against the order, the recording of the reasons in the order is necessary to enable the person aggrieved to state effectively his objection so the order in the petition or memorandum of appeal which he may prefer. The order of the District Magistrate being thus an administrative order cannot be assailed on the ground that the petitioner was not heard by the District Magistrate before the order was made by him.

9. The petitioner's contention that the order of the District Magistrate is bad and is without jurisdiction as it did not state the reasons for the refusal is without any substance. The giving of reasons for refusal of the licence, for holding a gun, is necessary for an effective exercise of the right of appeal and does not make the order of the competent authority as without jurisdiction. In this case, the petitioner can have no grievance at all about the omission on the part of the District Magistrate to state his reasons for refusing to renew the licence. Though the order did not contain any reasons, yet the petitioner preferred an appeal before the Commissioner raising all the objections that he could possibly have to the order and had a full and complete hearing before the Commissioner.

The matter would have been otherwise if instead of filing an appeal the petitioner would have come up to this Court complaining that he was unable to exercise his right under Rule 41 as the District Magistrate had omitted to record in writing his reasons for his refusal to renew the licence, andprayed that he be directed to state his reasons so that he may be in a position to exercise his right of appeal. The petitioner having appealed to the Commissioner and the order of the District Magistratehaving been upheld by him, the omission on the part of the District Magistrate to give his reasons forrefusal to renew the licence is of no consequence inthe instant case.

10. In regard in the petitioner's contention that on the material before the District Magistrate no clear case had been made out for refusing to renew the licence, it is sufficient to say that in proceedings tinder Article 226 of the Constitution this Court cannot examine the validity of the reasons and substitute its own judgment for the discretion of the District Magistrate in the matter of grant, or cancellation, orrefusal of the licence. Under the Indian Arms Act, the competent authority has to pay due consideration to the maintenance of law, order and public safety. The possession of arms is a matter intimately affecting the security of the State and the executive authorities are the proper persons to judge whether a particular person is or is not a fit and suitable person to possess arms.

It is not that in the present case the District Magistrate acted arbitrarily in refusing to renew the petitioner's licence. He acted on the basis of the police reports which showed that the petitioner was 'an ex-history sheeter' and under police surveillance. The District Magistrate himself made enquiries about the antecedents of the petitioner from the residents of the locality where the petitioner resides. In fact, the District Magistrate expressed a surprise that the petitioner was ever granted a licence. The grounds on which the District Magistrate was persuaded to refuse to renew the licence cannot be characterised as perverse or arbitrary.

11. The view taken by us is supported by several authorities. In Kishore Singh v. State of Rajasthan, AIR 1954 Raj 264, it was held that an order cancelling a licence under Section 18 of the Arms Act was only an administrative or executive order and was not open to review by a writ of certiorari. In Kshirode Chandra v. District Magistrate, Howrah, (S) AIR 1956 Cal 96, an order of a District Magistrate cancelling a licence without recording reason for the cancellation was not interfered with by the High Court on the ground urged, namely, that it was without jurisdiction.

The decisions in Chand Singh v. Commissioner, Burdwan, AIR 1958 Cal 420 and Godha Singh v. District Magistrate, Ferozepore, AIR 1956 Punj 33, are to the effect that the reasons on which the competent authority has to act in the matter of cancellation or grant or renewal of a licence are reasons of safety and desirability and that the High Court cannot under Article 226 of the Constitution examine whether the reasons are right or wrong. There are no doubt some cases in which the view has been taken that the competent authority should give an opportunity to the licence-holder before proceeding to cancel or refuse to renew his licence. But from what we have said above, this view does not seem to be correct.

12. Learned counsel for the petitioner referred us to the decision of a Division Bench of this Court in Sardar Budhsingh v. State of M. P., Misc. Petn. No. 350 of 1958, D/- 30-6-1959 (M.P.). That was a case in which a writ of mandamus was sought against a District Magistrate for compelling him to renew a gun licence. We do not see how that decision is of any assistance to the petitioner. The observations in that case that the reasons for refusal must be relevant to the matter of grant or refusal of a licence to possess arms and that this Court would not substitute its own discretion for the discretion of the District Magistrate in refusing to grant a licence do not in any way advance the petitioner's case.

13. For all these reasons, this petition is dismissed with costs. Counsel's fee is fixed at Rs. 75/-. The outstanding amount of the security deposit shall be refunded to the petitioner.


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