Skip to content


Harisingh Harnamsingh Khalsa Vs. E.F. Deboo and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 212 of 1969
Judge
Reported inAIR1969Guj349; (1969)GLR769
ActsConstitution of India - Articles 19(1), 19(6), 141 and 226; Arms Act, 1959 - Sections 2, 3, 4, 5, 13, 14, 14(1), 17, 17(1), 17(3), 17(5), 17(9), 18, 18(1), 21(1), 22(1) and 24; Code of Civil Procedure (CPC), 1908; Defence of India Act, 1962; Defence of India Rules - Rules 51, 52, 56 and 126AA(4); Indian Companies Act, 1956 - Sections 237; Calcutta Police Act, 1866
AppellantHarisingh Harnamsingh Khalsa
RespondentE.F. Deboo and anr.
Appellant Advocate N.H. Bhatt, Adv.
Respondent Advocate K.A. Dabu, Asst. Govt. Pleader and; M.G. Doshit, Addl. Govt. Pleader
DispositionPetition allowed
Cases ReferredIn Fedco (P) Ltd. v. S. N. Bilgrami
Excerpt:
constitution - licence - articles 19 (1), 19 (6), 141 and 226 of constitution of india, sections 2, 3, 4, 5, 13, 14, 14 (1), 17, 17 (1), 17 (3), 17 (5), 17 (9), 18, 18 (1), 21 (1), 22 (1) and 24 of arms act, 1959, code of civil procedure, 1908, defence of india act, 1962, rules 51, 52, 56 and 126aa (4) of defence of india rules, section 237 of indian companies act, 1956 and calcutta police act, 1866 - commissioner of police suspended petitioner's licence for firearm - petitioner challenged order passed by respondent - order passed by licensing authority vitiated by contravention of principles of natural justice - no notice given to petitioner of proposed grounds on which suspension of licence ordered - order of licensing authority and appellate authority quashed. - - (h) (an infant)......orderj.b. mehta, j. 1. the petitioner in this petition challenges under articles 226 and 227 the order of respondent no. 1, the commissioner of police, dated july 20, 1968, suspending the petitioner's licence for a firearm till the cases mentioned in his order were decided. 2. the petitioner was issued a licence for a revolver on may 15, 1949, which was from time to time renewed and it isvalid upto dec. 31, 1970. a show cause notice was issued to the petitioner on june 15, 1968, by respondent no. 1, informing him that on inquiry it was found that the petitioner was practising medicine without a certificate for carrying on medical profession and that he was giving threats to kill his landlord because of disputes with him and that it was learnt that in 1948 there was a case against him for.....
Judgment:
ORDER

J.B. Mehta, J.

1. The petitioner in this petition challenges under Articles 226 and 227 the order of respondent No. 1, the Commissioner of Police, dated July 20, 1968, suspending the petitioner's licence for a firearm till the cases mentioned in his order were decided.

2. The petitioner was issued a licence for a revolver on May 15, 1949, which was from time to time renewed and it isvalid upto Dec. 31, 1970. A show cause notice was issued to the petitioner on June 15, 1968, by respondent No. 1, informing him that on inquiry it was found that the petitioner was practising medicine without a certificate for carrying on medical profession and that he was giving threats to kill his landlord because of disputes with him and that it was learnt that in 1948 there was a case against him for dacoity between Abu and Marwar. The petitioner was, therefore, asked to show cause why his licence should not be suspended under Section 17(1) of the Arms Act, 1959, hereinafter referred to as 'the Act', as he was not a fit person for the above reason to hold a revolver. The petitioner submitted his explanation, dated June 24, 1968, pointing out that he was a M. E. B. S. of the Punjab Homeopathy University and he had obtained a degree of Bachelor of Medicines and Bachelor of Surgery in Biochemistry as per the University certificate, dated April 4, 1942. The petitioner also pointed out that his antecedents were verified by the police authorities when the licence was issued. The petitioner denied any such threat to the landlord as alleged. The petitioner pointed out how he helped the police authorities in many cases. The petitioner denied the alleged dacoity case against him. The respondent No. 1 has, however, passed the impugned order after reading the said reply as the petitioner was a complainant in Kagdapith Police Station Cr. R. No. 1090 of 1967 and as there was a chapter case against the petitioner, the said licence ' was suspended under Section 17(3) of the Act till those cases were decided. The petitioner appealed to the State Government on July 31, 1968. The respondent No. 2, the State, has dismissed the appeal as it found no reasons to change the order passed by the Commissioner of Police taking into account the grounds mentioned in the appeal. The petitioner has alleged that no hearing whatever was given before this appeal was disposed of by the State. The petitioner has, therefore, prayed for quashing the impugned order of respondent No. 1 and for other appropriate reliefs in this petition.

3. At the hearing Mr. Bhatt raised the following points:--

(1) That the order of respondent No. 1 being a quasi-judicial order, it could not be passed without complying with the essential principles of natural justice. The impugned order was, therefore vitiated as the petitioner was never informed of the new grounds on the basis of which the licence was suspended.

(2) That the reasons recorded by respondent No. 1 were no reasons at all in the eye of law.

(3) That, in any event, even the order was mala fide because the police authorities were biassed against the petitioner.

(4) That the appellate authority could not have disposed of this appeal without giving any personal hearing to the petitioner.

4. Before going into the relevant provisions of the Act, it would be proper at the outset to examine the settled legal tests for determining whether the function is purely an administrative function or a judicial or a quasi-judicial function, and whether the power is to be judicially or quasi-judicially exercised on certain objective tests or the discretion is to be an absolute discretion.

In P. L. Lakhanpal v. Union of India, A1R 1967 SC 1507 at p. 1512, their Lordships in terms held that even the function which is in its inception executive in character may not retain the executive character all throughout and it may become quasi-judicial at later or some intermediate stage during the course of its exercise. At the stage at which it attains the nature of a quasi-judicial function the authority entrusted with that function has to comply with the rules of natural justice and give an opportunity to the party concerned of presenting his case. At p. 1510 their Lordships set out the principles for distinguishing a quasi-judicial function from one which is merely ministerial. Where there was a lis, there was prima facie in the absence of anything in the statute to the contrary the duty of the authority to act judicially and the decision of the authority was a quasi-judicial act; and (2) even if there was no lis inter partes and the contest was between the party proposing to do the act and the subject opposing it, the final determination of the authority would yet be a quasi-judicial act, provided the authority was required by the statute to act judicially. Where the statute was, however, silent, the inference whether the authority acting under the statute had, therefore, duty to act judicially had to be arrived at keeping in mind five factors laid down in the case of Board of High School and Intermediate Education, U. P. v. Ghanshyam, AIR 1962 SC 1110, as under :--

'(1) the express provisions of the statute read along with the nature of rights affected;

(2) the manner of disposal provided;

(3) the objective criterion if any to be adopted,

(4) the effect of the decision on the persons affected,

(5) other indicia afforded by the statute.'

In State of Assam v. Bharat Kala Bhandar Ltd., AIR 1967 SC 1766 at p. 1773, their Lordships held that the question whether the power under a particular provision has to be exercised purely on the subjective satisfaction of Government or other authorities or has to be exercised subject to some objective tests depends upon a number of factors. The language of the provision, the nature of the power conferred, the circumstances and the manner of exercise of power, what things are affected by such exercise and how, and other relevant factors, in the context of the particular provision, may have to be considered in determining whether the power envisaged can be exercised merely on the subjective satisfaction of Government or other authority, or there are to be some objective tests before the power can be exercised. The intention of the legislature is primarily to be gathered from the language used and where the language used is plain and unambiguous, effect must be given to it and there is nothing more to be said. But where the language is not clear, all these factors must be weighed to arrive at the final conclusion whether the power conferred depends entirely on the subjective satisfaction of the Government or the authority concerned, or there have to be some objective tests before the power can be exercised. It is on these principles that it was held while construing the relevant provisions of emergency legislation under the Defence of India, Rule 126-AA(4) giving power to the Government to regulate wages and other conditions of service, that this power could not be exercised purely on subjective satisfaction of the Government. When the effect of the order passed under Sub-rule (4), can be so far-reaching and so wide in its impact on the industrial relations, this power could not be exercised merely on the subjective satisfaction of the Government, and even in the real emergency the procedure must be adopted by the Government to consult the interests concerned by giving a public notice to the particular interests affected, indicating what the Government intended to do and inviting representations and if necessary, calling for data from them and also giving oral hearing to the representatives of the interests concerned.

5. While applying these five factors, another important consideration must be borne in mind that a judicial element can be inferred from the nature of the power to determine questions which affect individual rights or when it relates solely to the treatment of a particular individual, and it is not necessary that there must be 'a superadded characteristic or something more to impose a duty to act judicially'. This wrong gloss of Lord Hewart C. J. on Lord Atkin's observations which was assumed even by thePrivy Council in Nakhuda Ali v. Jaiyaratne 1951 AC 66 to be 'a general principle beyond dispute', contrary to all settled decisions, stands now finally corrected by Lord Reid in the oft-quoted decision in Ridge v. Baldvin (1964) AC 40 (74-79), The rule of 'audi alteram partem' is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals. As Lord Reid ably pointed out there had been a twilight of these principles of natural justice, which had only a limited application in case of modern statutes which left matters to administrative discretion on policy considerations, or under war-time legislations, and particularly, because of the said wrong gloss of Lord Hewart C. J. on Atkin L. J.'s observations, due to which the Privy Council had been even under a serious misapprehension of the effect of the older authorities in Nakkuda Ali's case, 1951 AC 66, Lord Reid also pointed out that in modern legislations as policy played part in administrative decisions, the strict judicial process or full-fledged judicial inquiry was only inapplicable in that context, but still such administrative bodies performing quasi-judicial functions under statutes authorising administrative interference with private rights or where the administrative power related solely to the treatment of a particular individual as distinguished from a large scale exercise of power where treatment meted out to an individual was only one of many factors to be considered, at least the essentials of principles of natural justice had to be observed. These essential principles were engrafted by courts on to a host of such war-time provisions authorising such administrative interference with private rights. Besides, in war-time legislations an alternative safeguard was provided, which was more practicable in war time, the objective test that the officer must have reasonable cause to believe whatever was the crucial matter. Once the erroneous gloss of Lord Hewart C. J. was corrected of necessity of 'any superadded characteristic of a duty to act judicially,' Lord Reid further corrected (at p. 77) the approach o the Privy Council in Nakkuda Ali's case, 1951 AC 66 that review ability was excluded even when objective existence of the reasonable grounds was a condition precedent for a valid exercise of the administrative power to interfere with private rights. He observed that when an enactment expressly required an official to have reasonable grounds for his decision, the law was not so defective that a subject could not bring up such a decision for review, however, seriously he might have been affected, and, however, obvious it might be that the official acted in breach of his statutory obligation. Following this trend started by Lord Reid. Lord Parker C. J., in Re; K. (H) (an infant). (1967) 1 All ER 226 (231), even when he did not, like Solomon L. J. hold the function of an immigration officer to be quasi-judicial, in terms held that Nakkuda Ali's case, 1951 AC 66 only intended to say that there was no duty to invoke a judicial process or to have a full scale inquiry, unless there was a duty to act judicially, and therefore, the immigration officer must act honestlv and fairly, and if he failed to do so, the Court could interfere. The duty to act fairly would imply giving an opportunity to the immigrant of satisfying the officer of the matters in the enactment and for that purpose let the immigrant know what his immediate impression was so that the immigrant could disabuse him and to that limited extent, the so-called rules of natural justice do apply. Lord Denning M. R. in the Court of Appeal, in Hanif v. Secy., of State for Home, (1968) 2 All ER 145 (151) in terms approved this approach of Lord Parker C. J. as to the extent of the power of the Court to review decisions of immigration officers, by holding that if they acted dishonestly or unfairly, the decision could be questioned by a certiorari, and if they did not inquire into matters which they ought to inquire, they could be compelled to do so by a mandamus. Therefore, from the very nature of the statutory administrative power to make a decision affecting private rights or relating solely to the treatment of an individual, it is either held to be a quasi-judicial power, or such as to imply a statutory duty to act fairly in accordance with the essential principles of justice of at least a previous notice and reasonable opportunity of being heard before an impartial authority, and a further duty to come to as honest decision on the matter statutorily left to such authority by dispassionately and fairly applying its mind to matters which it was bound to consider. These facets of the statutory administrative power so coupled with the duty Would be ordinarily reviewable, unless there is a compelling necessity in the context of the statute to manifest a legislative intent to exclude all principles of natural justice and leave the entire matter to the arbitrary, absolute discretion of the executive. Except the peculiar case of Liversidge v. Anderson, 1942 AC 206. Where the laws of England had to be silenced amidst the clash of arms, by holding that even the existence of reasonable grounds even need not be objective but only a mental fact, so that no facet of the administrative power was open to review and the discretion was absolute, the area left to the executivewould not be so widely interpreted as to exclude a limited application of even essential principles of natural justice as distinguished from a full-fledged judicial inquiry, and as to the objective existence of the grounds being open to judicial review, although the opinion formed by the authority would be unreviewable.

6. A third important aspect which must also be borne in mind in the context of post constitutional enactments which bears the mandate of Article 141, Article 19(1) etc; as ably pointed out by Subba Rao J. (as he then was) in Nageshwarrao v. State of Andhra Pradesh, AIR 1959 SC 1376 (1379), is that in England the Parliament is supreme and, therefore, a statutory law, however repugnant _to the principles of natural justice is valid; whereas in India the law made by the Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution. It is, therefore, a settled principle of constitution, as adopted in Jagdish Pandey v. Chancellor, Bihar University, AIR 1968 SC 353 (357), to read every such statute consistently with the essential principles of natural justice, as any other reading may make it unconstitutional. In Mahammed Faruk v. State of M. P. (1969) 1 SCC 833 (857), it was in terms held that a law providing for the grant of a license or permit, which confers a discretion upon an administrative authority regulated by rules or principles in accordance with rules of natural justice, will be presumed to impose a reasonable restriction. However, if the power is entrusted to an administrative agency to grant or withhold a license or permit in its uncontrolled discretion, the law ex facie infringes the fundamental rights guaranteed under Article 19(1). In Purtabpore Co. v. Cane Commr. of Bihar, (1969) 1 SCC 308 (316), the Supreme Court even made a further distinction between an order revoking or modifying a license and a decision not to grant a license by in terms holding that the question in the former case was not one of a privilege as in the later case but of a right. The Courts should adopt a presumption that prior notice and opportunity to be heard should be given before a license can be revoked, which can be rebutted only in similar circumstances to those in which the summary interference with vested rights may be permissible.

7. The law in our country has kept abreast with this trend started by Lord Reid in England. In State of Orissa v. Binapani Dei, AIR 1967 SC 1269 (1271), His Lordship Shah, J. held:

'The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike tojudicial 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. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision' in any particular case.'

In Bharat Kala Bhandar's case, AIR 1967 SC 1766, as already considered, even the Rule 12G-AA (4) under the Defence of India Act, 1962, was construed even in a real emergency, not to Confer an administrative power to be exercised purely on the subjective satisfaction of the Government, but only after consulting the interests affected after some kind of previous notice of what the Government intended to do and after giving an oral hearing to the interests concerned, although it was not necessary to hold a full scale quasi-judicial enquiry. Finally, in Rohtas Industries Ltd. v. S. D. Agarwal, AIR 1969 SC 707 (718-19), the pertinent question, on which the learned judges were equally divided in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, as to the extent of reviewability of any of the facets of the discretionary power conferred under Section 237(b) of the Indian Companies Act, 1956, has been fully answered. After taking into account the fact that the statute in question was a post-constitutional statute, subject to the mandate of Article 19(1)(g) and as this was not a wartime legislation where there would be any special necessity not to fetter the executive discretion, it was held that the statute in question must be so interpreted as to hold that no arbitrary power was conferred on the Government, and that this power must be exercised in accordance with the restrictions imposed by law. Therefore, in these circumstances the Central Government on which the discretion was conferred was not held to be the sole judge of what were its powers as well as the sole judge of what was the way in which they could be exercised. The existence of circumstances in question on the basis of which the power could be exercised was held to be open to judicial review, though the opinion formed by the Government wasnot amenable to review by the Courts. Finally, in a very recent decision in A. K. Kraipak v. Union of India, (1969) 2 SC C. 264 (268) His Lordship Hegde J.speaking for the Constitutional Bench completed the process started by his Lordship Shah J. in Binapani Dei's case AIR 1967 SC 1269 (1271) by almost obliterating their dividing line between an administrative power and a quasi-judicial power, Following the trend of Lord Reid and Lord Parker C, J., our Supreme Court corrected the further error in the approach committed in Nakkuda All's case 1951 AC 66 by questioning the validity of the limitation that if there was no duty to act judicially, there was no room for application of the rules of natural justice, and that consequently there was no scope for the supervisory review by a certiorari or a mandamus. At page 272 it was in terms held that the purpose of the rules of natural justice being one to prevent miscarriage of justice by supplementing the law of the land, wherever there was a duty to arrive at a just decision even in an administrative inquiry the principles of natural justice would be applicable, at least in so far as they would be necessary to arrive ata just decision on the facts of the case.

8. In view of these settled principles, it is now well settled that while applying the aforesaid five factors in question in order to find out whether the function delegated to the administrative authority is purely administrative or quasi-judicial, the very nature of the administrative power to affect private rights or relating to the sole treatment of individuals will itself imply the statutory duty, to comply with' at least the essential principles o natural justice. Besides, in such a post-constitutional statute which has themandate of Article 19(1), which is not a war-time legislation, the licensing scheme especially in the context of the power to revoke or modify a license, must be interpreted on the presumption that in exercising this discretion, the authority must act fairly at least in accordance with essential principles of natural justice' of a prior notice and reasonable opportunity to be heard, and on the objective existence of the grounds on which the power is required to be exercised, and, therefore, both these facets of this discretionary power would ordinarily be reviewable, unless the scheme of this legislation compels us to hold that the Parliament intended to provide for an arbitrary power of summary interference with the vested rights of a licensee: which would ex facie amount to an unreasonable restriction on the fundamental right of the citizen to hold the fire-arm, which is a property right guaranteed to under the Constitution.

9. We would now turn to the relevant provisions of the Act under consideration. As it is mentioned in the statement of objects and reasons, the Indian Arms Act, 1878, was intended to disarm the entire nation at the time of the British rule in the country. After independence was achieved, the Arms Act, 1959, has been enacted which has liberalised the provisions by excluding certain arms like knives, spears, bows and arrows and the like from the licensing provisions and by classifying the firearms and other dangerous weapons so as to ensure that

(1) that dangerous weapons of military patterns are not available to civilians, particularly the anti-social elements;

(2) that weapons for self-defence are available for all citizens under license unless their antecedents or propensities do not entitle them for the privilege; and

(3) that firearms required for training purposes and ordinary civilian use are made more easily available on permits,

and to co-ordinate the rights of the citizens with the necessity of maintaining law and order and avoid fifth-column activities in the country. Section 2(c) defines 'arms' to mean articles of any description designed or adapted as weapons for offence or defence and includes firearms, sharp-edged and other deadly weapons, and parts of, and machinery for manufacturing, arms but does not include articles designed solely for domestic or agricultural uses such as a lathi or an ordinary walking stick and weapons incapable of being used otherwise than as toys or of being converted into serviceable weapons. Section 3 provides for licence for acquisition and possession of firearms and ammunition and it provides that 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 the Act and the rules made thereunder. Section 4 requires a licence for acquisition and possession of arms of specified description in certain cases. Sections 13 and 14 deal with applications for grant of licence and the grounds on which they can be refused. Under Section 14(1) the licensing authority shall refuse to grant:

(a) a licence under Section 3, section 4 or section 5 where such licence is required in respect of any prohibited armsor prohibited ammunition;

* * * * * (b) (i) where such licence is required by a person whom the licensing authority has reason to believe

(1) to be 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

(2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act: or

(II where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.

Sub-clause (3) requires that where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to the person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement. Section 17(3) deals with variation, suspension and revocation of licence as under:

'(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 the 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 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 Subsection (1) requiring him to deliver up the licence,'

Sub-clause (4) Jays down that the licensing authority may also revoke a licence on the application of the holder thereof. Under Sub-clause (5),

'Where the licensing authority makes an order varying a licence under Subsection (1) or an order suspending or revoking a licence under Sub-section (3), it shall record in writing the reasons therefore 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.'

Thereafter, the Sub-clause (9) confers a power on the Central Government by a gazetted order to suspend, revoke ordirect any licensing authority to suspend or revoke all or any licences granted under the Act throughout India or any part thereof. Section 18 provides for appeals. Under Section 18(1) 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 and within such period as may be prescribed: Provided that no appeal shall lie against any order made by, or under the direction of the Government. Under Clause (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. Under Clause (5) in disposing of an appeal the appellate authority shall follow such procedure as may be prescribed. Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard. Under Section 21(1) any person having in his possession any arms or ammunition the possession whereof has ceased to be lawful, shall without unnecessary delay deposit the same with the officer in charge of the nearest police station as required under that section. Section 22(1) provides that whenever any Magistrate has reason to believe that (a) any person residing within the local limits of his jurisdiction has in his possession any arms or ammunition for any unlawful purpose, (b) that such person cannot be left in the possession of any arms or ammunition without danger to the public peace or safety, the Magistrate may after recording reasons for his belief cause a search to be made of the house or premises occupied by any such person or in which the Magistrate has reason to believe that such arms or ammunition are or is to be found and may have such arms or ammunition seized and detain the same in safe custody for such period as he thinks necessary, although that person may be entitled by virtue of this Act or any other law for the tune being in force to have the same in his possession. Under Section 24, the Central Government is also entitled to seizure of any arm or ammunition in possession of any person notwithstanding that such person is entitled by virtue of this Act or any other law for the time being in force to have the same in his possession, and may detain the same for such period as it thinks necessary for the public peace and safety.

10. As far as the Arms Rules 1962, are concerned, Rule 6 provides that where a licensing authority is of the opinion that it will not be in the public interest to furnish reasons for the refusal, renewal, variation of conditions, revocation or suspension of a licence, to the applicant, the recorded reasons thereof and the facts of the case shall be communicated by him to the appellate authority. Under Rules 51 and 52 the application for licence and the form of licence are provided. Under Rule 51 Proviso (ii) the licensing authority may in respect of all or any class of firearms require the personal attendance of the applicant before granting or renewing the licence applied for. Under Rule 56 the procedure is prescribed to be followed by the appellate authority as under :--

'On receipt of an appeal, the appellate authority may call for the records of the case from the authority who passed the order appealed against and after giving the appellant a reasonable opportunity of being heard pass final orders'.

11. From the aforesaid scheme of the Act and the Rules, it is clear that for a firearm as in this case, licence under Section 3 is necessary for its acquisition and possession. Even at the time when the licence is granted under Sections 13 and 14, the authority can refuse to grant licence if he has reason to believe that it was required by a person who was under some legal prohibition from acquiring or having in his possession or carrying an arm or was of unsound mind or was for any reasons unfit for a licence or where the licensing authority deems it necessary for the security of public peace or for public safety to refuse to grant such licence. When a licence is refused reasons are to be recorded and the order is an appealable order under Section 18. Even where the licence is to be revoked or suspended under Section 17(3), the same two grounds which were to be taken into account at the time of refusal of initial licence are specified, viz., as to the unfitness of the person for a licence and because the licensing authority deems it necessary for the security of the public peace or for public safety. Three other grounds are also mentioned in Section 17(3) of the licence being obtained by suppression of material information or on the basis of wrong information or If the conditions of the licence have been contravened or the holder has failed to comply with the notice requiring him to deliver up the licence. Therefore, it is obvious that the discretion which is vested in the licensing authority to suspend or revoke a licence can be exercised even on those three specific grounds mentionedin Section 17(3) (c) (d) and (e), all of which are grounds which can be objectively demonstrated and they do not depend on the subjective opinion or subjective belief of the licensing authority. Even as to the other two grounds, as to the unfitness of the person and the necessity for securing public peace or for public safety, those circumstances can exist objectively and the authority would have to exercise only & judicial discretion to find out whether these grounds which are mentioned in Section 17(3) were established. In fact, the licensing authority is expected to record his reasons. It is true that under Section 17(5). he is to furnish a brief statement thereof to the licensee on demand unless he is of the opinion that it would not be in the public interest to furnish such statement. But even in that contingency he is bound to record his reasons and make them available under rule 6 for perusal by the appellate authority. It is this reasoned order read with the right of appeal under Section 18 w.hich makes these restrictions in the licensing scheme reasonable restrictions on the fundamental rights of a citizen to hold a firearm. Both in the provisions regarding the grant of licence and particularly. In the provisions regarding suspension or revocation of a licence, we find no indication whatever that the legislature wanted to depart from the essential principles of natural justice. The discretion which is vested in the licensing authority to refuse a licence or to suspend or revoke a licence cannot therefore be interpreted to be an arbitrary discretion which is not reviewable in any of its facets. In such a context the discretion must be a Judicial discretion to be exercised fairly and honestly in accordance with the essential principles of natural justice and on the objective existence of the grounds or circumstances envisaged in the relevant Section, which are to be set out in the speaking order of the licensing authority.

12. Unless, therefore, the concerned licensee is informed of the proposed grounds on which the licensing authority wants to exercise its power, he would not be in a position to render any explanation. If he is not given this notice or opportunity, the two salutary safeguards of a speaking order and of an appeal provided by the legislature would be completely illusory. Unless the licensee gets an opportunity to bring materials in his favour to satisfy the officer or to convince him of the non-existence of the grounds, these provisions would be meaningless as he would be hardly able to convince the appellate authority, when there is nothing on the record in his favour, even if such record would be called for by the appellate authority for its perusal under the relevant rules. Besides, the very fact that all the five grounds in Clauses (a) to (e) are lumped together in section 17(3), some of which are clearly capable of demonstration, would show in the light of this statutory scheme that the legislature intended that this discretion should be exercised only on all objective existence of all these grounds and therefore, even though the opinion formed as to the suitability of the person may not be reviewable the existence of the grounds and the procedure of prior notice and opportunity of hearing being given being complied with in accordance with elementary principles of natural justice would always be open to review. As the other two safeguards become illusory this is the only safeguard which would make such restriction a reasonable restriction maintaining a just balance between the Governmental interest and the citizen's fundamental right which would be affected to a minimal extent. Miss Dabu had in this context vehemently argued on behalf of the State that looking to the nature of the lethal weapons in respect of which the fundamental rights were sought to be restricted and the necessity of wide powers which must vest in the executive in the interest of maintenance of law and order and for securing public peace or public safety, on the doctrine of executive necessity a departure from the principles of natural justice should be implicit and no facet of this power vested in the licensing authority should be held to be justiciable. At first blush the argument is attractive. But we find no substance in the argument if we look to the provisions of the Act in which the legislature has provided ample safeguards to deal promptly and efficiently with such emergencies. Under Section 22 the Magistrate is empowered to search and seize arms if he has reason to believe that they are in possession of any person for any unlawful purpose or that they cannot be left in his possession without danger to the public peace or safety. The Magistrate can exercise his power whenever he has reason to believe that the grounds exist for exercise of the power and he can detain the arm in question from any person who was otherwise entitled to keep it in possession. Besides, there is a general power vested in the Central Government under Section 24 for seizure of any arms or ammunition in possession of any person if it thinks necessary for the public peace and safety. Section 17(9) also empowers the Central Government to 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. The Legislature has thus provided various provisions to deal promptly and efficiently with any emergency without losing any time. Even individual cases can be dealt with under Section 22 by the order of the Magistrate or by the order of the Central Government. In view of these special provisions, it would not be proper to give such a wide construction to the discretion left with the licensing authority under the licensing provisions so as to make it the sole judge of the extent of its powers and also of the way in which it is to be exercised, with the result that the fundamental rights would be at the mercy of arbitrary discretion of the executive. There is nothing compelling in, the context of this post-independence legislation which necessitates such unfettered discretion with the executive on the analogy of war-time measures by holding that the discretion vested in the licensing authority is not a judicial or a quasi-judicial discretion but purely an arbitrary, absolute discretion. Miss Dabu bad in this connection vehemently relied upon the decision of the Supreme Court in Virendra v. State of Punjab, AIR 1957 SC 896(901), where in the context of restrictions on the freedom of speech it was held that wide preventive powers must be left to the discretion of the State Government charged with maintenance of law and order or to its delegate to be exercised on their subjective satisfaction. To make exercise of the power justiciable and subject to judicial scrutiny would be to defeat the purpose of the enactment. This decision would not be helpful for, as I have already pointed out, when any expediency arises the Legislature has made another provisions in the Act and there is no compelling necessity in this statute to sanction departure from the principles of natural justice. Miss Dabu also relied upon the decision in Kishan chand v. Cornmr. of Police, AIR 1961 S'C 705, where the question was regarding the licence for conducting a tea house under the Calcutta Police Act, 1866. The majority decision at page 708 in terms lays down that if guidance for exercise of discretion to grant the privilege of a license could be found on a fair reading of the section, there would be no reason for striking it down simply because it has not been worded in a manner which would show immediately that the considerations arising from the provisions of Article 19(1)(g) and Article 19(6) were in mind, as naturally those considerations could not be in the mind of legislature in 1866. Besides, the decision in 1951 AC 66 which proceeded on a misconception of law, as already stated was heavily drawn upon for holding that the authority had no duty to act judicially, although it must act fairly. Their Lordships, however, pointed out that each statute had to be examined in its own setting and no general principles could be laid down.This decision was followed by our Division Bench in Jamnadas v. Ram Aiyar, 4 Guj LR 897= (AIR 1964 Guj 102), in the context of renewal of licence under the Bombay Police Act, 1951, when that function was held to be purely an administrative one where no question of compliance with principles of natural justice could arise. Such cases must now be judged in the light of the final tests which are now finally evolved by the Supreme Court after the misconception of law in Nakkuda Ali's case, 1951 AC 66 has been corrected, and in view of the mandate of Art. 19(1) in post-Constitutional statutes. It is, therefore, clear that in view of the mandate of Article 19(1), this power at least of suspension or revocation of an existing licence, which solely relates to the treatment of an individual citizen, must in view of the wide impact of the decision affecting his rights, and particularly, in view of the fact that the Legislature has given a perspective by laying down the area in which the discretion could be exercised, and the additional fact that the reasons are to be recorded and the right of appeal is provided, it must be held that the area which is left to the licensing authority is not an arbitrary, uncontrolled discretion but a judicial or a quasi-judicial discretion to be exercised in accordance with essentials of principles of natural justice. Therefore, in view of the settled principles, we must come to the conclusion that the licensing authority had a judicial or a quasi-judicial discretion to be exercised on objective existence of the grounds and, therefore, it was bound to observe the essential principles of natural justice by complying with at least two minimum safeguards of a notice of the proposed grounds and of a reasonable opportunity to the concerned licensee to enable him to convince the authority of the non-existence of the grounds, and both these facets of this discretionary power were clearly reviewable.

13. Turning to some of the authorities which were cited in this connection, in Narsimha v. District Magistrate. Cud-dapah, AIR 1953 Mad 476, Subba Rao J. in terms held that the discretion to give or refuse a licence must be a judicial discretion having regard to the facts that this licensing scheme was a restriction on the fundamental right of the citizen to acquire and hold a gun which was clearly a property right. In Jai Narain v. District Magistrate Azamgarh. AIR 1966 All 265 the Division Bench of the Allahabad High Court also, treated the right to possess firearms as a fundamental right and held that such a finding adverse to the licensee that it was necessary to cancel his license should not be arrived at without giving him an opportunity of showing that it was not so necessary. InNanappa v. Divisional Commr., AIR 1967 Mys 238, the Division Bench also took the same view in the context of revocation of a licence by holding that the licensee must be informed of the ground on which it was proposed to revoke the licence and he must be given an opportunity to show cause without which the right of appeal would be purposeless and meaningless. The Division Bench of the Madras High Court in In re State of Madras, AIR 1957 Mad 692, also took the same view following the earlier decision of Subba Rao J.

14. The other line of decisions which have taken the view that this function is in all its facets purely an administrative one is now fully considered and followed by the Full Bench of the Assam High Court in Hasan Ali v. Commr. of Plains Division, AIR 1969 Assam & Nagaland 50. The learned Chief Justice has considered the decisions of the Madhya Pradesh High Court and the Rajasthan High Court which have been mentioned by him which support this view. The learned Chief Justice based his decision on the ground that the discretion of the authority was controlled in two ways, as reasons were to be recorded and because an appeal lay, but otherwise it was to be exercised on the overall necessity of public security and maintenance of public order on the purely subjective satisfaction or opinion of the licensing authority. The peculiar decision of Lord Atkin in 1942 AC 206 was in terms followed for holding that in forming such subjective opinion the licensing authority did not act judicially and, therefore, there was no question of giving any opportunity of hearing before the licence was cancelled. With great respect to the learned Chief Justice Dutt C. J., I respectfully differ from this view which has also been taken in the authorities mentioned by the learned Chief Justice. These authorities proceed on the misconception found in Nakkuda All's case, 1951 AC 66 and on the analogy of Liversidge's case, 1942 AC 206 which was entirely in the context of a war-time measure, where departure from principles of natural justice had to be tolerated, and particularly, as the Parliament of England was also supreme, unlike our Parliament which is fettered by constitutional limitations, especially in the matter of fundamental rights where only reasonable restrictions can be imposed in public interest. Every such statute would have therefore to be read consistently with the principles of natural justice and unless there is compelling necessity to make a departure from the principles of natural justice, all attempt should be made consistently with the essential principles of natural justice to see that a just balance is struck between the Governmental interest and the citizen's fundamental right by the reasonable restrictions imposed by the statute. If, therefore, such a statute could be read consistently with the principles of natural justice, that construction must be the only one in such a post-Constitutional statute, where the legislature had the mandate of Article 19(1)(g) and where there was no question of any emergency or war-time measure, so that the departure from the principles of natural justice would have to be tolerated as the price to be paid by the citizens. Therefore, on the first question it must be held that the discretion of the licensing authority when it sought to suspend the petitioner's licence was a judicial or quasi-judicial discretion, and the authority had a duty to act judicially or quasi-judicially in the sense of at least informing the concerned licensee of the proposed grounds and of giving reasonable opportunity of being heard to show cause by showing non-existence of those grounds, or that they were ultra vires the Act, or no grounds at all. Even on the other question, the petitioner's grievance must be upheld because Section 18(5) in terms provides that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard. After the memorandum is received Rule 56 provides for the record being called from the authority which passed the order appealed against and the final order has to be passed after giving the appellant a reasonable opportunity of being heard. Therefore, it is futile to contend that the reading of the memo of appeal was a sufficient compliance. In Fedco (P) Ltd. v. S. N. Bilgrami, AIR 1960 SC 415, in the context of the cancellation of an import licence on the ground that it was obtained by fraud the Supreme Court considered the question of reasonable opportunity of being heard. At page 418 in the majority judgment it was pointed that the requirement that a reasonable opportunity of being heard must be given has two elements:-- (1) opportunity to be heard must be given and (2) this opportunity must be reasonable. Both these matters were held to be justiciable and it was for the Court to decide whether opportunity had been given and whether such an opportunity was reasonable. Subba Rao J. at page 422 in the minority opinion also pointed out that these were well known words and phrases viz. 'reasonable', 'opportunity' and 'of being heard'. They implied that when the charge was one of fraud the affected party was entitled to know the particulars of fraud alleged, to inspect the documents on the basis of which fraud is imputed to him and to a personal hearing to explain his case and to absolve himself of the charge made against him.Without these elementary safeguards provided by the authority, the opportunity to be heard given to the licensee becomes an empty formality. Therefore, it is obvious from this settled legal position that it is not a sufficient compliance with the scheme of these provisions that the appellate authority had read the memo of appeal and the petitioner must have been heard personally and given a reasonable opportunity to convince the appellate authority.

15. Applying these principles to the facts of this case, the original show cause notice mentioned the grounds that the petitioner was carrying on a medical profession without a proper certificate. This ground was completely given up when the petitioner came out with a plea that he possessed a proper degree certificate. The other ground as regards the dacoity case against him in 1948 is also dropped. Therefore, the only ground which remained and which was mentioned in the show cause notice was the threat given to the landlord of killing him because of some dispute. When we turn to the order of the licensing authority even though this ground of the show cause notice is recited, in the preamble, there is no finding whatsoever. The order on the contrary proceeds on two new grounds:--(1) that the petitioner is a complainant in one Kagdapith Police Station No. 1090/67 and (2) that there is a chapter case against him, and, therefore, the licence was suspended till these two cases were decided. These two grounds are nowhere mentioned in the notice of proposed grounds and, therefore, the order passed by the licensing authority is wholly vitiated by contravention of essential principles of natural justice. Mr. Bhatt is also right in his argument that being a complainant in a case is no ground at all. In fact the petitioner has averred in the petition that the complaint was made because landlord had cut off water supply and the electric connection was also cut off. This allegation has not been controverted. As regards the nature of the chapter case we get nothing on the record. Not only this was the new ground but there is no indication on the record as to the nature of the chapter case. As this ground is made out for the first time, the petitioner must succeed on the ground that no opportunity was given to him to meet this ground and, therefore, it is not necessary to consider whether this can be considered as a ground at all. Miss Dabu in this connection, however, sought to connect this chapter case with the alleged threat given to the landlord. No material whatever has been pointed out either by way of affidavit or otherwise to establish any such connection. Therefore, on this short ground that no notice whatever hasbeen given to the petitioner of the proposed grounds on which suspension of the licence has been ordered, the order of the licensing authority must be quashed. Even the appellate order must fall through as it would be only confirming the nullity and also on the ground that admittedly no personal hearing was given and the appellate order was passed merely on reading the grounds in the memo of appeal. Therefore, both these orders in the present case of the licensing authority as well as of the appellate authority must be quashed.

16. In the result this petition succeeds and the rule is made absolute with costs by quashing both the orders of the licensing authority as well as of the appellate authority. The authorities are restrained from enforcing the said orders against the petitioner. It is needless to mention that this order will not prejudice the rights of the authorities to take a fresh action, if they are so advised.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //