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Section 18 in Arms Act
Arms Act
Article 226 in The Constitution Of India 1949
The Manipur Municipalities Act, 1994.
Article 19(1)(f) in The Constitution Of India 1949

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Rajasthan High Court
Kishore Singh vs State Of Rajasthan And Anr. on 26 October, 1953
Equivalent citations: 1954 CriLJ 1672
Author: Wanchoo
Bench: Wanchoo, Dave



JUDGMENT
 

 Wanchoo, C.J.

1. This is an application by Kishore Singh for the issue of an appropriate writ, direction or order against the State of Rajasthan, and the District Magistrate of Nagaur, after quashing an order under the Arms Act.

2. The case of the applicant is that he possessed a rifle and a 12 bore gun, and held licenses for the same under the law. On 19-5-1953, the District Magistrate of Nagaur ordered, under Section 18, Arms Act, that the two licenses be cancelled with immediate effect. This order was passed without giving any hearing whatsoever to the applicant, and without giving him an opportunity to appear and show cause against such an order being passed against him, and without informing him in any way of the proposed order. The applicant made an approach to the Commissioner, Jodhpur, in this connection, but got no redress. The applicant re- lied on the principles of natural justice that no man shall be dealt with by any authority to his material disadvantage without fair and adequate notice being given to him of what is alleged to be done to his detriment, and without giving him an opportunity of meeting the charge against him. As the District Magistrate passed the order in disregard of the principles of natural justice, the order should be quashed.

3. The application has been opposed on behalf of the State. It is urged that an enquiry into the conduct of the petitioner was made., and in the course of that enquiry the applicant was interrogated; but the law did not require that any notice should be issued to the applicant asking him to show cause why the license should not be cancelled under Section 18, and therefore that was not done. It was further urged that the principles of natural justice, on which the applicant relied did not apply to matter of a purely executive nature, specially when action has to be taken in the interest of public peace and security. It was further urged that the question of giving or refusing or cancelling licenses was a purely executive act within the discretion of the appropriate authorities, and therefore the- order cancelling the licenses was not open to challenge on any of the grounds set forth in the application.

4. The first question, that calls for consideration in this case, is whether there is any right in the applicant to enable him to maintain a writ petition. In the - State of Orissa v. Madan Gopal Rungta , it was held that the issuing of writs or directions by the High Court is founded only on its decision that a right of the-aggrieved party under Part III of the Constitution has been infringed. It can also issue writs or give similar directions for any other purpose. But, in any case, the existence of the right is the foundation of the exercise of jurisdiction of the Court under this article. It is urged on behalf of the State that the applicant has no right, and the grant of a license to him was a mere privilege which could be withdrawn at any moment without notice. Reliance in this connection was placed on - Nakkuda Ali v. M. F. De S. Jayaratne 54 Cal WN 883 (PC) (B). In that case, the Controller of Textiles, acting under Regulation 62 of Defence (Control of Textiles) Regulations of Ceylon, cancelled a. license for carrying on business in textiles; it was held that the Controller was merely taking executive action to withdraw a privilege. It was further held that that apart, no procedure was laid down by the Regulation for securing that the license-holder was to have notice of the Controller's intention to revoke the license, or that there must be any enquiry, public or private, before the Controller acts. On this view their Lordships of the Privy Council refused to interfere. We shall deal with the question whether it was necessary to hear the applicant in any form before cancelling the license later. The first question is whether the applicant has any right to hold and possess a gun or whether such holding or possession is only a privilege afforded under the Arms Act.

5. The view taken by their Lordships of the Privy Council as to privilege would, if we may say so with respect, not apply to present conditions, because the Constitution now gives a fundamental right to every citizen to acquire, hold and dispose of property under Article 19(1)(f). It cannot be doubted that a gun is movable property, and as such the applicant would have a right to acquire, hold or dispose of a gun subject to such restrictions as may be imposed by law. The Arms Act now must be treated as restricting the right to acquire, hold and dispose of guns, and not an Act conferring a privilege on the person to whom the licene under the Act is granted. In - Narasimha Reddy v. District Magistrate, Cuddapah , it was held that a gun was property within the meaning of Article 19(1)(f), and every citizen was entitled to acquire, hold and dispose it of, subject to the restrictions under the Arms Act and the rules. The applicant, therefore, has a right to apply to this Court under Article 226 and we shall have to see whether the provisions of the Arms Act and the rules made thereunder have been complied with in this case.

6. It has not been urged on behalf of the applicant that the restrictions imposed by the Arms-Act and the rules made thereunder are unreasonable. The contention on his behalf is that accepting Section 18 to be valid it is necessary before any arms licence is cancelled that the holder thereof should be given a hearing in consonance with the principles of natural justice. It was also urged that the order passed by the District Magistrate cancelling the licence was a quasi judicial order and was open to review by a writ of certiorari. Section 18(a), with which we are concerned, is as follows :

Any license may be cancelled or suspended by the officer by whom the same was granted, or by any authority to which he may be subordinate, or by any Magistrate of a district or Commissioner of Police in a presidency town, within the local limits of whose jurisdiction the holder of such license may be, when, for reasons to be recorded in writing, such officer, authority, Magistrate or Commissioner deems it necessary for the security of the public peace to cancel or suspend such license.

It was urged that as the person suspending the license has to give reasons for his action, he became a quasi-judicial tribunal whose orders were liable to be quashed under a writ of certiorari. We are, however, of opinion that this is not so, and the order passed under Section 18 is a purely executive or administrative order. A distinction between judicial and quasi-judicial order on the one side, and executive and administrative orders on the other was laid down in -- Province of Bombay v. Khushaldas S. Advani , and the following four conditions were held to be necessary before an order became a judicial order-

(i) there should be a body of persons;

(ii) this body of persons should have legal authority;

(iii) the legal authority should be to determine questions affecting rights of subjects or citizens;

(iv) this body of persons should have the duty to act judicially.

Now it is clear that three of these conditions would be present in most orders of an executive or administrative nature. It is only the fourth condition which will not be present in the case of executive orders, namely there should be a duty to act judicially. It is the presence of this condition which differentiates an executive order from a judicial or quasi-judicial order.

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.

7. Learned Counsel then urges that our powers under Article 226 are not confined to the well-known writs, and we can in an appropriate case give orders and directions in the interest of justice and for the protection of fundamental rights. He further urges that the applicant was never given a hearing of any kind when it was decided to cancel his licenses, and it is against principles of natural justice that such an order should be passed against the applicant without giving him any kind of hearing whatsoever. It is, therefore, urged that we should quash the order in these peculiar circumstances. Reliance is placed on certain eases where the High Courts have interfered under Article 226 in circumstances more or less similar. In - ' already cited, a license had been refused. Rule 43 of the Rules in force in Madras provided for an appeal from the order refusing the . grant or renewal of a license. The impugned order in that case was in these words-'"The gun license applied for will not be granted." No reasons were given for the refusal, and it was held that as there was provision for an appeal, the order was bad. It was, therefore, set aside, and the District Magistrate was directed to dispose of the application according to law. It is not clear from the judgment whether the appeal provided in Rule 43 had been made or not.

8. It may, however, be pointed out that the decision in this case was based entirely on the provisions of Rule 43, and has, therefore not much relevance on the facts of the case before us.

8a. The next case, on which reliance is placed, is - Beni Chand v. District Magistrate, Randa . In that case, it was held that Section 18(a), Arms Act, required that the authority suspending or cancelling a license must himself record the reasons for doing so, and it should appear from the order that it was passed because it was necessary for the security of the public peace to do so. Where none of the two essential ingredients mentioned in the section were found in the order, it was without jurisdiction and must be quashed. This case again is not directly applicable . to the facts before us, because the District Magistrate has, in this case, complied with the conditions mentioned in Section 18(a) and has given reasons for the order, and says that the license is being cancelled for the security of the public peace,

9. The main grievance of the applicant is that he was not heard before the order cancelling his licenses was passed, and that this is against the principles of natural justice, and this Court should, therefore, set aside the order. It may be pointed out that Section 18(a), Arms Act, does not require that the authority cancelling the license should give a hearing to the person whose license is cancelled. It is, however, urged that even though the section is silent on the point, principles of natural justice require that even where the order is an administrative order, the person concerned should be heard before the order is passed against him. Reliance in this connection is placed on - Bhikulal Balbhadrasao v. State of Madhya Pradesh AIR 1953 Nag 125 (F). That is a case under the Municipalities Act, and the President of the Municipality was removed from office of the President. Before the removal, the State Government had asked the President to show cause why he should not be treated as disqualified under the provisions of the law, and the President had submitted an explanation. The State Government, after consideration of that explanation, held that disqualification had been incurred, and the President ceased to be the President of the Municipality. The learned Judges held that though the applicant had been asked to give an explanation, as probably provided by the law, there was still a case for interference as the State Government had not given a hearing to the President before passing their order. The learned Judges added that there was no express provision in the Municipalities Act, which required such a hearing, but thought that it would be in consonance with the principles of natural justice to give a hearing to the person before a serious action of this kind was taken against him.

This case certainly supports the view urged by learned Counsel for the applicant. But, with all respect to the learned Judges, we feel that it is going too far to lay down that, even where the provisions of the statute have been complied with before an administrative order is passed, the principles of natural justice require that there should be a personal hearing even before an administrative order is passed in accordance with the provisions of a statute. There are well-defined limits within which the exercise of a discretionary power vested by the statute in an administrative authority can be disturbed by the Courts, These principles are-

(i) the authority for the exercise of the power depends on its being strictly within the limits of the statute, and the Court would not allow the power to be exercised for any collateral purpose,

(ii) there must be observance of the mandatory statutory procedure, and

(iii) there is existence of the basic facts with reference to which the power is vested, provided that the Legislature does not vest the determination of the basic facts in the authority itself.

In - Westminster Corporation v. London and North Western Railway Co. 1905 AC 426 (G) at p. 427 it was observed as follows :

Assuming the thing done to be within the discretion of the local authority, 110 Court has power to interfere with the mode in which it has exercised it. Where the Legislature has confided the power to a particular body, with a discretion how it is to be used, it is beyond the power of any Court to contest that discretion. Of course, this assumes that the thing done is the thing which the Legislature has authorized.

In the same case, Lord Macnaghten observed as follows at p. 430-

It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.

10. Examining Section 18(a), Arms Act, we find that discretion is vested in the District Magistrate, etc. to cancel a license subject only to two conditions (i) that reasons for the cancellation should be recorded in writing, and (ii) that the cancellation should take place for the security of the public peace. There is no provision in Section 18 for giving of any hearing to the person whose license is cancelled. It may be that the Legislature did not provide for giving any notice in a case of this kind, for it is possible that cases may arise in which giving of notice may frustrate the object with which Section 18(a) was enacted. Suppose the District Magistrate receives information that arms in the possession of a licensee are going to be used that very night in the commission of a dacoity or murder. He has obviously no time to call for an explanation from the licensee and give him a hearing before cancelling the license, and it is necessary in order that serious crime be prevented that the license should be immediately cancelled and the arms taken possession of. May be that these reasons might have impelled the Legislature, when enacting Section 18 (a), not to provide for any notice of hearing to the licensee.

Where, therefore, an authority exercising administrative powers under a statute acts within the 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 unnecessary to 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; reference may be made to - Madho Ram v. State in this connection. Where, therefore, as in this case, the District Magistrate has acted within the powers conferred on him under Section 18 (a), and has complied fully with the provisions of the statute, the fact that he did not give any notice to the applicant before cancelling the license would not invalidate the order because the statute does not provide for any notice of hearing. It may per-haps be advisable, before such action is taken, that the licensee should be heard, and we believe that generally licensees are heard before licenses are cancelled. In this case also, the licensee was questioned and his conduct, which led to the cancellation of the license, was investigated by the District Magistrate, though the applicant was not specifically asked to show cause why his license should not be cancelled.

As, however, the statute docs not specifically provide for hearing before cancellation of the license, the absence of a hearing would not invalidate the order under the circumstances. We may in this connection refer to the observations in -

54 Cal WN 883 (PC) (B)' at p. 890- "No procedure is laid down by the Regulation for securing that the license-holder is to have notice of the Controller's intention to revoke the license, or that there must be any inquiry, public or private, before the Controller acts. The license-holder has no right to appeal to the Controller or from the Controller.

It was, therefore, held in that case that the power in the Controller was an executive power. Another observation at p. 892 is as follows :

Nor did the procedure adopted fail to give the appellant the essentials that justice would require, assuming the respondent to have been under a duty to act judicially.

These observations would show that where there is a duty to act judicially, the principles of natural justice would normally apply. Where, however, the action of an executive authority is under the provisions of a statute, all that is required is that the provisions of tile statute should be strictly complied with, and the procedure provided in the statute should be followed, and there should be no exceeding or abuse of the authority for any collateral purpose. In the case before us, the procedure provided in the statute has been followed, and there is no exceeding of the power conferred by the statute, and no abuse of it for any collateral purpose. Under these circumstances, the mere fact that hearing was not given when no such hearing is provided by the statute could not vitiate the order in question.

11. We may refer to Section 18(b) which provides for cancellation of the license by any Judge or Magistrate before whom the holder of such license is convicted of an offence against this Act, or against the rules made under this Act. There is no provision in this part of the section also for any notice to the licensee to show cause why a license should not be cancelled. The power is given to the Judge or Magistrate to cancel the license if he convicts the licensee of an offence under the Act or under the rules framed under the Act. It can hardly be contended that hearing was necessary before action is taken under Section 18 (b), and it seems that the Legislature intended, in view of the peculiar nature of this statute, that there should be no hearing for the cancellation.

12. We, therefore, dismiss the application with costs to the State.