Gujarat High Court
Bhupatbhai Bhikhabhai Mankad vs State Of Gujarat & on 29 January, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/13886/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13886 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHUPATBHAI BHIKHABHAI MANKAD....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MS. SHIVANGI M RANA, ADVOCATE for the Petitioner(s) No. 1
MS MEGHA CHITALIYA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 29/01/2016
ORAL JUDGMENT
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1. Heard the learned advocates appearing for the respective parties.
2. Rule. Learned Assistant Government Pleader waives service of Rule on behalf of the State Government authorities. With the consent of the learned advocates appearing for the parties, the matter is taken up for final disposal forthwith.
3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus/certiorari or a writ in the nature of mandamus/certiorari or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 28.6.2012 by respondent No.2 in J/Arms/HTHP/Reg.No.103/2011 (at ANNEXUREB hereto) as well as order dated 9.7.2015 passed by respondent No.1 in Appeal No.752 of 2012 (at ANNEXUREA hereto) and be pleased to direct the respondent authorities to grant the license under the Arms Act to the petitioner, as applied for by the petitioner;
(B) During pendency and final disposal Page 2 of 12 HC-NIC Page 2 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT of the present petition, YOUR LORDSHIPS may be pleased to direct the respondent authorities, more particularly, respondent No.2 to consider the application of the petitioner for grant of license for possession of pistol for the purpose of selfprotection;"
4. The following facts emerge from the record of the petition: That, the petitioner is a resident of Post Dhank, Taluka Upleta, District Rajkot and is engaged in the business of agriculture and supply of milk to various milk dairies and possess buffaloes. It appears from the record that the petitioner has to travel to various places every day for supply of milk along with huge amount of cash. It further bornes out from the record that the petitioner submitted the application dated 8.9.2011 in a prescribed format for grant of licence for N.P. Bore Revolver/Pistol. It appears that respondent No.2 sought opinions/reports from the Mamlatdar, Police Inspector and Deputy Superintendent of Police. It further appears Page 3 of 12 HC-NIC Page 3 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT from the record that the Mamlatdar vide letter dated 16.12.2011, Police Inspector, Bhayavadar Police Station vide letter dated 3.10.2011 and Deputy Superintendent of Police, Jetpur vide letter dated 04.11.2011, recommended for grant of licence to the petitioner. It further appears that the Divisional Magistrate, Dhoraji vide letter dated 25.5.2012 and Superintendent of Police, Rajkot Rural vide letter dated 19.11.2011 have not recommended the grant of licence to the petitioner. It is also the case of the petitioner that the TalaticumMantri, Meravadar Gram Panchayat also vide certificate dated 1.6.2015 also recommended to grant of licence to the petitioner for possession of arms for selfprotection. However, respondent No.2 has rejected the aforesaid application of the petitioner vide order dated 28.6.2012. Being aggrieved by the said order, the petitioner preferred an appeal under Section 18 of the Arms Act before respondent No.1 being Appeal No.752 of 2012 which came to be rejected Page 4 of 12 HC-NIC Page 4 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT by respondent No.1 on 9.7.2015. The said orders dated 28.6.2012 and 9.7.2015 are impugned in this petition.
5. The learned advocate for the petitioner has taken this Court through factual matrix arising out of this petition. It was contended by learned advocate for the petitioner that the application of the petitioner has been rejected on total non germane grounds and the same has been mechanically accepted and approved by the appellate authority. It is contended that the respondent authorities have failed to take into consideration the recommendations made by the subordinate authorities after collecting necessary materials and evidences. It is further contended that the respondent No.2 being the licensing authority has failed to take into consideration the documents and materials on record on flimsy and incorrect grounds. It is contended that respondent No.2 is empowered under Section 13 of the Arms Act, 1969 to grant firearm licence. The learned Page 5 of 12 HC-NIC Page 5 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT advocate for the petitioner submitted that both the authorities have wrongly rejected the application and the appeal of the petitioner, inasmuch as, that such contention is beyond the scope and ambit of the provisions of Section 14(2) of the Arms Act. It is further submitted that the petitioner has sufficiently explained the necessity of having a arms license and even the assessment of threat is explained by the petitioner. The learned advocate for the petitioner also relied upon the judgment of this Court in the case of Sorab Jehangir Bamji Vs. State of Gujarat reported in 2011 (3) GCD 2621 as well as other judgments of this Court and contended that the case of the petitioner is squarely covered by the aforesaid decisions. It was therefore contended that the authorities below have committed an error apparent on the face of the record and the appeal is dismissed on the grounds which are nongermane. It is further submitted that denial of such right may put the life of the petitioner to danger and Page 6 of 12 HC-NIC Page 6 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT the impugned orders are therefore violative of Article 21 of the Constitution of India and thus, it is contended that the petition be allowed as prayed for.
6. Per contra, the learned Assistant Government Pleader for the respondent authorities has relied upon the affidavit filed by the respondent authority. The learned Assistant Government Pleader has also relied upon both the impugned orders and has submitted that the same are legal and proper and is based on instructions which are issued by the Central Government to the State Government and therefore, the petition is misconceived and deserves to be dismissed.
7. Considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the order impugned passed in appeal, it clearly bornes out that the appellate authority, after narrating the contents, which are raised before it, has just Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT reiterated the reasons, which are given by respondent No.2 while passing the order dated 28.6.2012. This Court in the case of Sorab Jehangir Bamji (supra) has examined and dealt with the contingencies under which a licence can be refused by the licensing authority as set out in Section 14 of the Act and has observed thus:
15. The contingencies wherein a licence may be refused by the licencing authority are set out in Section 14, which reads as below:
14. Refusal of licences. (1) Notwithstanding anything in section 13, 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 arms or prohibited ammunition;
(b) a licence in any other case under Chapter II,
(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.
(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property. (3) 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 that 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.
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C/SCA/13886/2015 JUDGMENT
Section 14 sets out the grounds on which a firearm licence may be refused. The reason for refusal to grant a firearm licence to the petitioner is not that he is prohibited by any provision of the Act or any other law from holding a licence, or that he has asked for a licence in respect of a prohibited firearm, or is of unsound mind or, is unfit for grant of licence under the Act for any other reason. Further, the application of the petitioner has not been rejected on the ground that such refusal would be necessary for the security of the public peace, or for public safety. The reason for rejection of the application is that the petitioner was aged 63 years, which does not find mention in Section 14 of the Act. There is no other provision in the Act that states that a licence cannot be granted to a person who attains a particular age.
17.In light of the statutory provisions and decisions referred to above, it would be necessary to revert to the impugned orders. A perusal of the impugned orders indicates that the sole reason for rejection of the application of the petitioner, is based upon the opinion of the Police authorities that the licence may not be granted as the petitioner is aged 63 years. Apart from that, the District Magistrate and the State Government have concluded in their respective orders, that no reasonable ground exists for granting a licence to the petitioner. As has been noticed hereinabove, Section 13(2A) vests the licencing authority with power to either grant a licence or refuse the same, as thought necessary, after considering the report of the officer in charge of the nearest Police Station, as provided under Section 13(1)(2). As per Section 14(1)(b)(ii), the licencing authority shall refuse to grant a licence, among other reasons mentioned in Section 14(1), if it is found necessary to refuse it for the security of the public peace or public safety. As already discussed above, the report of the Police authorities in the case of the petitioner, does not indicate that he has any criminal antecedents, or that granting the licence to him will endanger the security and safety of the public or hinder public peace. In fact, the Police authorities have not given any adverse opinion in the case of the petitioner. The only ground mentioned is that the petitioner is 63 years of age which, in the view of this Court, cannot be considered as being a prohibition, as it is nowhere so stated in the Act.
18.Though Section 9 prohibits a person, who has not completed the age of 21 years, from acquiring, possessing or carrying a firearm or ammunition, there is no prohibition regarding a person of any age above the age of 21 years from doing so. The grounds for refusal of a licence under Section 14 do not apply to the petitioner in any manner. The discretion for exercise of power vested in the licencing authority by virtue of Section 13(2A) is to be exercised in relation to, and in the context of, the provisions of the Act, in a reasonable and rational manner. The reasons for refusal of a licence would have to have a nexus to, and be in context with, the provisions of the Act. Merely refusing to issue a licence for a reason not prohibited by the Act, such as being aged 63 years, is unjustified and not in consonance with the provisions of the Act. It is stated in the impugned orders passed by the District Magistrate and the State Government, that there are no reasonable grounds for grant of licence to the petitioner. On the contrary, in view of the relevant provisions of the Act, it is evident that the respondents have failed to show any valid grounds for refusal of the licence.
8. Similarly, this Court in Special Civil Page 9 of 12 HC-NIC Page 9 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT Application No.1521 of 2015 by judgment and order dated 30.10.2015 has also taken a similar view while referring to Section 14(2) of the Act. Learned Assistant Government Pleader has not been able to point out anything from the record except the fact that some instructions have been given to the State Government by the Central Government. However, the fact remains that no such contingency is provided in Section 14 of the Act and more particularly, the reasons for which a licence can be refused does not exist in the case on hand. On the contrary, subsection (2) of Section 14 of the Act clearly provides that the licencing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own sufficient property. It clearly transpires that the appellate authority has not considered the vital aspect and has not even properly considered the assessment of threats.
9. In opinion of this Court therefore, the reliance placed for by the appellate authority Page 10 of 12 HC-NIC Page 10 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT on the income and the conclusion arrived at is de hors the provisions of Section 14 of the Act.
10. Considering the reasons given in the impugned orders, it clearly appears that the authority has not considered the documents which were produced by the petitioner and has also considered the aspect of income and property of the petitioner, which is exfacie in violation of Section 14(2) of the Act.
11. The appellate authority has also appreciated the opinion given by the Police authority in particular and come to the conclusion that there is no threat prospective upon petitioner without any basis.
12. In view of the above, the impugned order dated 9.7.2015 passed by appellate authority- respondent No.1 in Appeal No.752 of 2012 confirming the order dated 28.6.2012 passed by respondent No.2 are hereby quashed and set aside and the proceedings of the said appeal is Page 11 of 12 HC-NIC Page 11 of 12 Created On Sat Jan 30 01:47:12 IST 2016 C/SCA/13886/2015 JUDGMENT remanded back to the appellate authority for its rehearing on merits. The appellate authority shall consider all such contentions that may be raised by the petitioner and also the ratio laid down by this Court in the case of Sorab Jehangir Bamji (supra).
13. As the issue is pending since 2012, the appellate authority shall endeavour to dispose of the aforesaid appeal after giving an opportunity of being heard to the petitioner without in any manner being influenced by any of the observations made in the impugned order and shall decide the appeal de novo.
14. Accordingly, the petition is allowed in the above terms. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.
(R.M.CHHAYA, J.) mrp Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Jan 30 01:47:12 IST 2016