Gujarat High Court
Narendrasinh Kiritsinh Zala vs State Of Gujarat & 2 on 17 December, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/8628/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8628 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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NARENDRASINH KIRITSINH ZALA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SHUSHIL R SHUKLA, ADVOCATE for the Petitioner(s) No. 1
MR MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 17/12/2015
ORAL JUDGMENT
1. Heard Mr. Shushil Shukla, learned advocate for the petitioner and Mr. Manan Mehta, learned Page 1 of 11 HC-NIC Page 1 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT Assistant Government Pleader for the State Government authorities.
2. Rule. Mr. Manan Mehta, learned Assistant Government Pleader waives service of Rule on behalf of the State Government authorities. With consent of the learned advocates appearing for the parties and considering the issue involved in the matter, 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 challenged the order dated 5.2.2015 passed by the State Government in Appeal No.510 of 2012 filed by the petitioner under Section 18 of the Arms Act (hereinafter referred to as "the Act"), whereby the appellate authority confirmed the order dated 7.5.2012 passed by the District Magistrate, Surendranagar.
4. Following facts emerge from the record of the petition: Page 2 of 11 HC-NIC Page 2 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT The petitioner is residing at Dhrangadhra, District Surendranagar. It appears from the record that the petitioner is holding agricultural land at Nabi Morwad, Chuda Taluka, is engaged in the business of travels and owns a party plot and doing the business of money lending as well as he is a journalist attached to Gujarati Daily newspaper "Akila". It is the case of the petitioner that because of the business of travels and party plot and so also as the petitioner is a Press Reporter, there is risk to the life of the petitioner and therefore, the petitioner requires a licensed arm. The record reveals that the petitioner applied for licence of a Pistol before the District Magistrate on 8.12.2011. The said application was rejected. Being aggrieved by the said order, the petitioner preferred an appeal as provided under Section 18 of the Act before the State Government which came to be registered as Weapon Application No.510 of 2012. The said appeal also came to be rejected Page 3 of 11 HC-NIC Page 3 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT and hence, the present petition is filed.
5. Mr. Shushil Shukla, learned advocate for the petitioner contended that the conclusion arrived at by both the authorities, more particularly, the appellate authority is de hors the provisions of Section 14(2) of the Act. It is submitted that the authority has committed an error of fact as well as law in coming to the conclusion that the petitioner does not have sufficient income. It is further submitted that other reasons given by both the authorities are de hors the documents which were produced by the petitioner and even though the petitioner has sufficiently explained need of the arm licence before both the authorities, the same has not been considered. The learned advocate for the petitioner relied upon the decision of this Court in Sorab Jehangir Bamji Vs. State of Gujarat, reported in 2011 (3) GCD 2621 and it was contended that the appellate authority has erred in law and facts and Page 4 of 11 HC-NIC Page 4 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT therefore, has committed an error apparent on the face of record as well as in law and the appeal has been dismissed on nongermane grounds. It was further contended that the petitioner has right to protect himself and denial of such right on the grounds which are made basis of the impugned order passed by the authorities are per se violative of Article 21 of the Constitution of India and therefore, the petition deserves to be allowed as prayed for.
6. Per contra, learned Assistant Government Pleader for the respondent authorities has relied upon both the impugned orders and has submitted that the same are legal and proper and are 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 Page 5 of 11 HC-NIC Page 5 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT appeal, it clearly bornes out that the appellate authority has predominantly considered the income aspect of the petitioner. The other aspects which are considered by the appellate authority are also not in consonance with the facts of the case and the documents which are relied upon by the petitioner. 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 Page 6 of 11 HC-NIC Page 6 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT
(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. 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 Page 7 of 11 HC-NIC Page 7 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT 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."
It appears that the order passed by the appellate authority is also de hors the provisions of Section 14 of the Act.
8. Similarly, this Court in Special Civil 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 Page 8 of 11 HC-NIC Page 8 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT 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. Merely because there is some adverse opinion from the concerned District Superintendent of Police, the appellate authority cannot refuse a licence that too, without even providing a copy to the petitioner.
9. 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. It further appears that the appellate authority has not appreciated the fact that the petitioner is engaged in the business of travel agency, owns party plot as well as is a Reporter. It further appears from the order that the petitioner has not only filed affidavit, but has also produced Page 9 of 11 HC-NIC Page 9 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT relevant documents as regards holding agricultural land at Village Juni Morvad as a joint owner and has also produced R.C. Book and the press cuttings from the newspaper "Akila". In light of the aforesaid, the findings arrived at by the appellate authority are erroneous.
10. In view of the above, the impugned order dated 5.2.2015 passed by the Deputy Secretary, Home Department, State of Gujarat/the appellate authority in Weapon Appeal No.510 of 2012 confirming the order dated 7.5.2012 passed by District Magistrate, Surendranagar are hereby quashed and set aside and the proceedings of the said appeal is 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 opinion of concerned District Superintendent of Police.
11. As the issue is pending since 2012, the appellate authority shall endeavour to dispose Page 10 of 11 HC-NIC Page 10 of 11 Created On Wed Dec 23 00:44:51 IST 2015 C/SCA/8628/2015 JUDGMENT 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.
12. 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 11 of 11 HC-NIC Page 11 of 11 Created On Wed Dec 23 00:44:51 IST 2015