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Kukkila Narayana Naik Vs. the Additional District Magistrate, Cannanore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 5116 of 1968
Judge
Reported inAIR1971Ker162
ActsConstitution of India - Article 226; Arms Act, 1959 - Sections 17
AppellantKukkila Narayana Naik
RespondentThe Additional District Magistrate, Cannanore and ors.
Appellant Advocate K. Chandrasekharan and; T. Chandrasekara Menon, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Cases ReferredNarasimha Reddi v. Dt. Magistrate
Excerpt:
.....public peace and security, and that the police recommended the cancellation of the licenses. the counter-affidavit also states that the executive first class magistrate, after conducting personal enquiries and giving the petitioner a chance for personal hearing on 19-9-1967, agreed with the proposals of the police and recommended cancellation of the licenses of both the fire-arms, that the notice, ext. p-1, the first respondent was satisfied, on a perusal of the records of the enquiry and evidence given by witnesses, that it was not desirable to retain the licenses of the petitioner from the security point of view, and that the impugned order, ext, p-3 was accordingly passed. 17. (1) x x xx (2) x x x x (3) the licensing authority may by order in writing suspend a license for such..........this petition is the state of kerala. an assistant secretary to the state government has filed a counter-affidavit on behalf of the third respondent. though the allegations in the petition are against respondents 1 and 2, neither of them has chosen to deny them. the counter-affidavit of the assistant secretary states that shri m. k. venkatesh murthy submitted a petition on 11-7-1966 stating that himself and his coolies were objected and obstructed by the petitioner for doing work on a plot of land in r. s. no. 315/3 in maire village, which had been assigned to the said murthy, that the petitioner threatened murthy and his coolies by taking out a revolver and firing in the air, that enquiries conducted by thepolice revealed that the facts stated in the said petition were true, that the.....
Judgment:
ORDER

M.U. Isaac, J.

1. The petitioner has been holding two licenses under the Arms Act, 1959 (hereinafter referred to as the Act), one for possession of a gun and another for possession of a revolver. He received a notice Ext. P-1 dated 24-1-1968 from the first respondent, the Additional District Magistrate. Cannanore, calling upon him to show cause in writing within 15 days of its receipt as to why the above licenses should not be cancelled for the reasons mentioned in the said notice. Ext. P-1 stated that it had been brought to the notice of the first respondent thatat about 1-00 P. M. on 10-7-1966, the petitioner threatened with his revolver by firing in the air one Venkatesha Murthy and his two coolies, while they were working in a plot of land allotted to him on dharkast in R. S. No. 315/3 of Maire Village, stating that Venkatesha Murthy had no right over the property, that enquiries conducted in the matter revealed that the petitioner was a hot-tempered man and that his being in possession of the above fire arms was dangerous to public peace and tranquillity. The petitioner showed cause by his letter Ext. P-2 dated 1-3-1968, stating that the information against him was wholly unfounded, that he did not know a person by name Venkatesha Murthy, that he never made any claim at any time over the above said land, that he has been a calm and loyal person, and that one Sheni Janardhana Nayak who was on bitter inimical terms with the petitioner and who had influence with the local police was responsible for the information against him.

Sometime later, the second respondent passed an order Ext. P-3 dated 27-11-1968 cancelling the petitioner's licence in respect of the two fire-arms stating that it was revealed on enquiry that it was not desirable to retain the licenses from the security point of view. Ext. P-3 also directed the second respondent, the Circle Inspector of Police, Kasargod to seize the said weapons. This writ petition has been filed to quash Exts. P-1 and P-3 and to restrain respondents 1 and 2 from seizing the weapons from the petitioner as directed by Ext. P-3, The main ground of attack against Ext. P-3 is that the said order is violative of the principles of natural justice, as it has been passed without disclosing to the petitioner the materials, if any, for making the said order and without giving him an opportunity to meet the charges against him. It is also contended that the first respondent did not comply with the requirements of Section 17 of the Act in passing the above order.

2. The third respondent in this petition is the State of Kerala. An Assistant Secretary to the State Government has filed a counter-affidavit on behalf of the third respondent. Though the allegations in the petition are against respondents 1 and 2, neither of them has chosen to deny them. The counter-affidavit of the Assistant Secretary states that Shri M. k. Venkatesh Murthy submitted a petition on 11-7-1966 stating that himself and his coolies were objected and obstructed by the petitioner for doing work on a plot of land in R. S. No. 315/3 in Maire Village, which had been assigned to the said Murthy, that the petitioner threatened Murthy and his coolies by taking out a revolver and firing in the air, that enquiries conducted by thepolice revealed that the facts stated in the said petition were true, that the petitioner was a hot tempered man, and that his being in possession of a gun and a revolver was danger to public peace and security, and that the police recommended the cancellation of the licenses.

The counter-affidavit also states that the Executive First Class Magistrate, after conducting personal enquiries and giving the petitioner a chance for personal hearing on 19-9-1967, agreed with the proposals of the police and recommended cancellation of the licenses of both the fire-arms, that the notice, Ext. P-1, was issued by the first respondent on the basis of the report of the Executive First Class Magistrate, that though the petitioner denied all allegations in Ext. P-1, the first respondent was satisfied, on a perusal of the records of the enquiry and evidence given by witnesses, that it was not desirable to retain the licenses of the petitioner from the security point of view, and that the impugned order, Ext, P-3 was accordingly passed. The counter-affidavit further states that Ext. P-3 was passed not on the basis of the single incident alleged in the petition of Venkatesha Murthy; but the petitioner was reported to be at friction with his own brothers, and that the Bediadka Police Station has registered Crime No. 54 of 1968 against him for offences under Sections 147, 148 and 326 of the Indian Penal Code.

3. The petitioner has filed a reply affidavit denying the averments in the counter-affidavit, and also questioning the competency of the Assistant Secretary to the Government to swear to the facts stated in the counter-affidavit. The reply affidavit states among other things that the petitioner is not aware of any enquiry conducted by the police or the Executive First Class Magistrate, except that he appeared before the Executive First Class Magistrate on 19-9-1967 as required by him, when the petitioner was told that his licenses are going to be cancelled, that he was not given even a copy of the petition from Venkatesha Murthy, or copy of any report by the police or the Executive First Class Magistrate, or copies of the statements of witnesses against him, that the existence of none of these matters has been disclosed in the show cause notice, Ext. P-1, that he has been thus denied an opportunity to meet the case against him, and that Ext. P-1 is, therefore, defective and the order. Ext. P-3 is violative of natural justice. The reply affidavit specifically denies the allegation that the petitioner was at friction with his own brothers. It is further contended that Ext. P-3 is violative of natural justice also on the ground that such an allegation was taken into consideration in passing Ext. P-3 without giving the petitioner any notice of thesaid allegation or opportunity to meet it.

4. It is strange that, in the nature of the allegations in the petition, neither the first respondent nor the second respondent has chosen to file any counter-affidavit. The Assistant Secretary to the Government, who has filed the counter-affidavit on behalf of the third respondent, swears to the facts stated therein 'as disclosed by the relevant records.' But he has not chosen to produce any document in support of any of the statements in the counter-affidavit, though they are disputed by the petitioner. Apparently it is assumed that what he states to have been disclosed by the so-called relevant records should be accepted as such by the Courts. This is a total misconception. I have pointed out on several occasions with reference to counter-affidavits filed on behalf of the Government and by its officers that, if there is any dispute regarding the existence of an order or any other document, or its contents, the very order or the document, or a true copy of thereof should be produced along with the counter-affidavit. An assertion by a Government Servant that there is such an order or document, or that its contents are what he states does not serve any purpose. On the other hand, non-production of the documents may lead to an adverse inference. The rule relating to proof of disputed facts is the same both to an ordinary citizen and the State Government and its officers.

No documents have been produced in this case to show that the police or the Executive First Class Magistrate made any enquiries against him as alleged in the counter-affidavit. The Court is also not in a position to verify whether the alleged reports are based on any relevant materials. There is nothing to show that any enquiries were made with notice to the petitioner. These officers have not denied the allegation that they have not made any enquiry on any matter with notice to him. If the matter is justiciable, this is sufficient to quash the impugned order, as it is based on the enquiries said to have been made by the police and the Executive First Class Magistrate, and their reports, which were all done without notice to the petitioner. The show cause notice, Ext. P-1 was issued to the petitioner on the basis of a definite complaint by one Venkatesha Murthy, as already stated. The petitioner denied the whole incident; and he also stated that he had no claim whatsoever in respect of the land mentioned in the said notice. He was not given either a copy of the above complaint, nor was he informed of the materials, if any, in support of the allegations therein. The petitioner was not also given any opportunity to establish the falsity of the said allegations. The impugned order Ext. P-3,does not show that the above allegations were considered by the first respondent. nor is there anything in the said order to show that it was on the basis of the said allegations that his licences were cancelled. It is another matter for consideration whether on the basis of this solitary incident, the licenses can be cancelled. In answer to the contention raised by the petitioner in this writ petition that it cannot be so done, the counter-affidavit states that the impugned order was passed also on a consideration of other matters. There is no dispute that the existence of any such matter was never disclosed to the petitioner. This is also a sufficient ground which would vitiate the said order.

5. The counsel for the respondents seriously contended that the question, whether a person should be allowed to retain any fire arms is purely one for administrative determination, and the licensee is not entitled to be heard in the matter. He cited a number of decisions in support of the above contention. First, reference may be made to a Division Bench decision of the Rajasthan High Court in Kishore Singh v. State of Rajasthan, AIR 1954 Raj 264. In that case the licenses held by the applicant in respect of two fire arms were cancelled by the District Magistrate under Section 18 of the Arms Act, 1878, without giving him any hearing or an opportunity to appear and show cause against such order being-passed against him. The applicant moved the High Court under Article 226 of the Constitution to quash the order of cancellation on the ground that it was violative of principles of natural justice. The High Court dismissed the application, holding that the applicant had no right to be heard in the matter. The Court said :--

'A Perusal of Section 18 (a) shows that there is no duty cast on the authority cancelling a license to act judicially. The order under Section 18 (a) is not open to appeal or revision. It is enough if the authority concerned deems it necessary for the security of the public peace to cancel a license and in such a case all that it has got to do is to reduce the order into writing giving reasons for the cancellation. Such an order, in our opinion, is only an administrative or executive order and is not open to review by a writ of certiorari.' It also stated :-- 'Where, therefore an authority exercising administrative power under a statute acts within four corners of the statute, and does not exceed or abuse its powers, it seems to us unnecessary to introduce into the statute the principles of natural justice. After all, the Legislature is not unaware of the principles of natural justice, and if in a particular type of statute it is thought unnecessaryto provide for notice of hearing in an administrative matter the Courts should not introduce that in the law on the basis of principles of natural justice.'

The same view has been taken and the above decision has been followed by a Division Bench of the Madhya Pradesh High Court in Moti Miyan v. Commr-Indore Division, AIR 1960 Madh Pra 157. This decision has been followed by that Court in Ahmadnoor v. State of Madh Pra, AIR 1962 Madh Pra 133. Support can be found for the above view also in the decision of the Punjab High Court in Godha Singh v. District Magistrate, AIR 1956 Punj 33. The High Courts of Patna, Calcutta, Madras. Allahabad and Kerala have taken a different view. Vide the decisions in Sudhansu Kanta v. State of Bihar, AIR 1954 Pat 299, of the Patna High Court, Ha.ii Md. Vakil v. Commr. of Police, AIR 1954 Cal 157 and Kshirode Chandra v. District Magistrate, AIR 1956 Cal 90 of the Calcutta High Court, In re the State of Madras, AIR 1957 Mad 692, of the Madras High Court, Jai Narain v. District Magistrate, AIR 1966 All 265 and State v. Jaswant Singh, AIR 1968 All 333 of the Allahabad High Court, and Raman Nair v. Addl. District Magistrate, AIR 1968 Ker 65 of the Keraia High Court. The latter two decisions arise under the 1959 Act while all the other decisions arise under the Act of 1878.

It is unnecessary to quote from all the above decisions. I shall content myself by citing two passages from the Division Bench decision of the Madras High Court, AIR 1957 Mad 692, wherein Raja-mannar, C. J., has in a short 'judgment stated the proposition with great clarity and precision. The learned Chief Justice stated :

'It is incumbent on the officer purporting to cancel the gun licence to first inform the licensee the grounds on which the cancellation is proposed and also to record in writing the grounds on which the cancellation is eventually made. This order must be communicated to the licensee, particularly because he has got a right of appeal against the order of cancellation and he cannot properly put forward his contentions before the appellate tribunal, until he knows why the cancellation is made. The early decision of Subba Rao J. in Narasimha Reddi v. Dt. Magistrate, Cuddapah, 1953-1 Mad LJ 418 = AIR 1953 Mad 476, lays down the correct principle to be followed in passing orders of cancellation, and, so far as we are aware, that principle has never been doubted.'

The learned Chief Justice also added :--'We are surprised to find the Government setting up the plea that the order in question is not subject to interference under Article 226 of the Constitution. Evidently the argument is that thisis an administrative order. But it is obvious that this so called administrative order has interfered with the fundamental right of a citizen to hold property, namely, the gun.'

I respectfully agree with the above statement.

6. The position has been now made almost beyond controversy in the relevant provisions contained in the Arms Act of 1959. Section 17 of the Act deals with variation, suspension, and revocation of licenses. It is sufficient to read Subsections (3), (4), (5) and (6) of the above Section.

'17. (1) x x xx

(2) x x x x

(3) The licensing authority may by order in writing suspend a license 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 the public peace or for public safety to suspend or revoke the license; 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 on his behalf at the time of applying for it; or

(d) if any of the conditions of the licence has 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 therefor 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 the licensing authority; and the foregoing provisions of this section shall as far as may be apply in relation to the suspension of revocation of a licence by such authority.

(7) x x x x

(8) x x x x

(9) x x x x

(10) xxx x.'

Section 18 of the Act provides for an appeal from any order made under Section 17. Sub-section (4) of Section 18 reads:--

'18. x x x x x (4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed.

x x x x x x'.

There is no room for doubt that in thelight of the above provisions, the licensing authority has to act in a quasi-judicial manner in deciding whether a licensegranted to a person under the Act shouldbe cancelled or not. In the instant case,the first respondent has acted in violation of the principles of natural justice.I, therefore, set aside the impugnedorder, Ext. P-3. The first respondent willbe at liberty to take up the matter afreshand decide whether the petitioner'slicenses can be allowed to be retained,after giving him a reasonable opportunityof being heard in this matter. In thecircumstances of the case. I make noorder as to costs.


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