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Sudhir Chandra Ghosh Vs. the A.D.M., 24 Parganas and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 325 of 1978
Judge
Reported inAIR1980Cal275,84CWN873
ActsArms Act, 1959 - Sections 17(3), 18 and 18(5); ;Constitution of India - Article 226
AppellantSudhir Chandra Ghosh
RespondentThe A.D.M., 24 Parganas and ors.
Appellant AdvocateArun Kumar Dutt and ;Arun Kishore Dasgupta, Advs.
Respondent AdvocateAmar Nath Banerjee, Adv.
DispositionAppeal dismissed
Cases ReferredUnion of India v. J. N. Sinha
Excerpt:
- .....which the licence is proposed to be revoked. according to mr. dutt, in such a case principles of natural justice require such a notice to be given. mr. banerji appearing on behalf of the respondent, on the other hand, has strongly contested the pointthus raised by mr. dutt and it has been contended by him that an order under section 17(3) of the said act, being an administrative act there is no scope for application of the principles of natural justice and in any event on the scheme of the provisions of the act any requirement of a prior notice to show cause is ruled out.4. we have carefully considered the rival contentions put forward before us. though there exists some amount of divergence of views on the point as to whether an order of revocation under section 17(3) of the act is a.....
Judgment:

Anil K. Sen, J.

1. This is an appeal under Clause 15 of the Letters Patent. The appeal is directed against the judgment and order dated January 25, 1968, passed by a learned single Judge of the Court in a writ proceeding which was registered as Civil Rule No. 673 (W) of 1964. The point involved in this appeal is one of law and the point is whether a notice to show cause is necessary to be given by the licensing authority prior to revoking a gun licence under Section 17(3) of the Arms Act, 1959 (hereinafter referred to as the said Act). Such a point was not raised at the trial but has been raised in this appeal as a point of law by Mr. Dutt appearing in support of this appeal. The undisputed facts may be set out very briefly as follows.

2. The petitioner (appellant before us) was the holder of a gun licence bearing No. 2372 BH. In May 1962 over a certain incident a criminal case was started against the petitioner by a neighbour Byomkesh Chakrabarti who having seized the petitioner's gun deposited the same with the local police station along with some fired cartridges and some live cartridges. There was a counter case by the petitioner against the said Byomkesh. Eventually both the cases were compounded and the learned Magistrate directed the gun and the cartridges to be returned to the petitioner. The licence having been misplaced the petitioner applied before the licensing authority for issue of a duplicate licence. The licensing authority called for a report from a Deputy Magistrate Shri S. K. Gupta Roy, who was then the Officer-in-Charge of the Arms Department under the licensing authority. Shri Roy submitted a report on February 12, 1964, to the effect that the licensee does not appear to be a suitable person for possessing a fire-arm, and as such, his prayer for issue of a duplicate licence was recommended to be rejected along with a further recommendation that his licence be revoked. He recommended as such as he found that there is truth in the complaint made against the petitioner to the effect that he being armed with the gun formed an unlawful assembly andforcibly entered into the house of the complainant Byomkesh to take away the straw kept in his yard and there fired two rounds causing injury to three persons. On consideration of the report so submitted, the licensing authority revoked the licence by making an endorsement on the report 'as proposed'. That was the order which was challenged in the aforesaid writ proceeding. Before the learned trial Judge the only point that was raised was to the effect that the licensing authority not having himself recorded the order of revocation with his own reasons a mere endorsement of approval of the recommendation of Shri Roy does not constitute a valid order of revocation under Section 17 of the said Act. The learned trial Judge, however, overruled the point so raised when he observed:

'Where the order of the Magistrate indicates his approval of the reasons given in the report which is made a part of his order it cannot be said that he did not apply his mind to the matter; on the other hand it shows that he had adopted the reasons given by his delegate (vide Godha Singh v. D. M. Ferozepur, ), Approve is an acknowledged mode of discharge where the material upon which the approval takes place is otherwise valid.'

Mr. Dutt appearing on behalf of the appellant in his usual fairness has not challenged the correctness of the decision of the learned trial Judge on the aforesaid issue and we too fully agree with the learned trial Judge since reading the order of the licensing authority as a whole we find that having considered the reasons given by Shri Roy in support of his recommendation the licensing authority agreed thereto when he accepted and approved the recommendation for revocation of the licence.

3. Mr. Dutt, however, has raised a new point before us in this appeal. He has contended that an order of revocation under Section 17 (3) necessarily takes away the legal right of the licensee to hold the fire arm and, therefore, any order of revocation necessarily presupposes that the licensee must be given a show cause notice with reference to the reasons for which the licence is proposed to be revoked. According to Mr. Dutt, in such a case principles of natural justice require such a notice to be given. Mr. Banerji appearing on behalf of the respondent, on the other hand, has strongly contested the pointthus raised by Mr. Dutt and it has been contended by him that an order under Section 17(3) of the said Act, being an administrative act there is no scope for application of the principles of natural justice and in any event on the scheme of the provisions of the Act any requirement of a prior notice to show cause is ruled out.

4. We have carefully considered the rival contentions put forward before us. Though there exists some amount of divergence of views on the point as to whether an order of revocation under Section 17(3) of the Act is a judicial act or an administrative act, it is, however, now well settled by the Supreme Court that even in the administrative field application of the principles of natural justice is called for where the administrative order either abridges or takes away the right of a citizen. Such being the position, we are unable to accept the contention of Mr. Banerji that the order impugned being an administrative one there is no scope for application of the principles of natural justice. But in our view the other point raised by Mr. Banerji is of some substance. In considering the scope and applicability of the principles of natural justice, the Supreme Court in the case of Union of India v. J. N. Sinha, AIR 1971 SC 49 pointed out:

'Rules of natural justice are not embodied rules, nor can they be elevated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If statutory provisions can be read consistently with the principles of natural justice, the court should do so but if the statutory provision either specifically or by necessary implication excludes the application of any rule of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power'.

5. It is only in the aforesaid light that we should consider whether we should incorporate a requirement of a prior show cause notice into the provisions of the said Act in the matter of making of an order under Section 17(3) by the licensing authority. Section 17 and Section 18 make a detailed scheme as to how such an order is to be made and what is the remedy of a person against whom such an order is made. Though Section 18(5) in the proviso incorporates a mandatory provision that the appellant is to be given a reasonable opportunity of being heard before his appeal is disposed of, no such provision is made by the legislature in providing the procedure for revocation or suspension. Nor is there any provision requiring issue of any prior show cause notice for the purpose of making an order of suspension on revocation under Section 17(3). On the scheme of Sections 17 and 18 omission of such a provision appears to be the intention of the legislature and that again for obvious reasons. The licence to be suspended or revoked is with regard to possession of a dangerous weapon, namely, a fire arm. Situation may arise where the licence may be required to be suspended or revoked without any delay whatsoever. But nonetheless the legislature is quite conscious of the position that such an order would affect the holder of the licence and would deprive him possession and use of an useful instrument which may have its necessity for his own defence. Being conscious of such a consequence the legislature has incorporated an appropriate safeguard to ensure proper use of the powers when the legislature has specified the grounds on which such an order could be made having vested the powers in responsible authority, and further requiring such an authority to record his reasons for the order and further requiring him to furnish to the holder of the licence on demand a brief statement of the reasons for the order. Section 18 then provides for a right of appeal by the holder of the licence and further provides the detailed procedure for affording all reasonable opportunity to the holder of the licence to dispute the correctness of the order in the appeal. On the scheme of the Act, we are unable to hold that on the absence of any prior show cause notice, the licence holder is deprived of a reasonable opportunity to support his licence and oppose its suspension or revocation. The legislaturemade a scheme ensuring giving of such an opportunity at a stage following the suspension or revocation though not prior thereto obviously because the legislature was conscious of the position that the licence being in respect of a dangerous weapon its suspension or revocation may be an immediate necessity which cannot afford a confronted adjudication upon a prior notice to the licence holder. Since in our view the statute itself incorporates in its own ways the requirement of the principles of natural justice, it rules out by necessary implication any further application of such a principle in the manner contended for by Mr. Dutt. In this view, the only point raised in support of this appeal fails and is overruled.

6. The appeal, therefore, fails and is dismissed. There will be no order as to costs. Mr. Dasgupta, learned advocate for the appellant, prays for a certificate under Article 133(1) of the Constitution for leave to appeal to the Supreme Court. But, in our view, it is not a fit case for issue of a certificate and as such the prayer is refused.

B.C. Chakrabarti, J.

7. I agree.


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