JUDGMENT
Nagendra Rai, J.
1. This writ application has been filed for quashing the notice dated 4-7-1991 (Annexure-2) issued by the Deputy Collector-in-Charge, Law Section, Rohtas, by which he has asked the petitioner to show cause as to why his licence for rifle, bearing No. 671/5-86 be not cancelled. The petitioner was also informed by the said notice that his licence has been suspended by the District Magistrate with immediate effect and he has been directed to deposit the rifle within a week in the police station or to the authorised arms dealers.
2. The necessary facts leading to the filing of the present Writ application are that the petitioner is a holder of licence for rifle granted by the District Magistrate, Sasaram. On 29-7-1989 one Krishnadeo Singh filed a written report before the Officer-in-charge of Baddi Police Station, stating, inter alia, that on the same day, i.e. 20-7-1989, the petitioner armed with rifle along with other five unknown persons armed with fire-arms came at his plot No. 215 and started ploughing the land by the Tractor in which paddy crops were transplanted. On protest made by him the petitioner filed rifle shot which passed by side of his left shoulder, as a result of which he fell down. His life was saved due to intervention of the person’s present there.
3. On the basis of the aforesaid written report Shivsagar (Baddi) P.S. Case No. 83/89 dated 2-8-1989 was instituted against the petitioner. During die investigation of the case, the Superintendent of Police directed the Investigation Officer to submit a proposal for the cancellation of the licence of the petitioner and thereafter the Officer-in-Charge, Baddi, sent a proposal on 12-3-1991 for cancellation of licence of the petitioner and the Superintendent of Police, Rohtas, forwarded the same to the District Magistrate. The District Magistrate after perusal of the same found that the petitioner has misused the fire-arm and has violated the terms and conditions of the licence and, accordingly, he passed an order on 1-7-1991 for issuance of a show cause notice to me petitioner for cancellation of his licence and suspended the licence with immediate effect and further directed the petitioner to deposit the rifle with the police or authorised dealers and in case of non-compliance of the said order by the petitioner the Officer-in-charge, Shivsagar was directed to seize the fire-arm of the petitioner and deposit the same in Malkhana. A true copy of the aforesaid order of the District Magistrate has been annexed as Annexure-D to the counter-affidavit filed on behalf of the State. Thereafter, the Deputy Collector issued the notice in pursuance of the same which has been made Annexure-2 to the Writ application.
4. Learned Counsel appearing for the petitioner contended that the suspension of the licence for rifle during the pendency of the proceeding for cancellation of the licence as well as the direction to deposit (he fire-arms is in violation of the principle of natural justice and as such the same is fit to be quashed. According to him though there is a power to suspend the licence Under Section 17(3) of the Arms Act but that power can be exercised only if the petitioner has been given an opportunity of hearing. The aforesaid provision does not authorise the licensing authority to arbitrarily suspend the licence and direct to deposit the arms during the pendency of a proceeding for cancellation of the licence.
5. Learned Advocate General appearing on behalf of the State, on the oilier hand, contended that the orders suspending or renewing the licence and directing the licensee to deposit the fire-arm can be passed in an emergent situation, like the present one, without observing the principles of natural justice and such power is implicit m Section 17(3) of the Arms Act. However, that order will be only a pro visional order and will attain the finality only when an opportunity of hearing is afforded to the licensee subsequently and his objection has been adjudicated In oilier words, a post decisional bearing is to be given in such a case, and after such hearing the (censing authority may either affirm its earlier order or recall the same.
6. It is not the fundamental right of a citizen to acquire, carry or possess the fire arm. The licence to carry or possess fire sum is granted under the provisions of the Aims Act and Rules made thereunder of the fulfilment of the conditions for the grant of licence as provided therein. No person can claim as a matter of right to hold the licence for fire-arms. Section 3 of the Arms Act provides for licence for acquisition and possession of fire-arms and ammunition and Section 4 provides for acquisition and possession of arms of specified descriptions in certain cases, Section 13 provides for the grant of licence and Section 14 provides for circumstances under which a licence can be refused.
7. A bare perusal of Section 14 will show that apart from other reasons for refusal on licence, the licence can also be refused by the licensing authority if it is of the opinion that for any reasons the citizen is unfit for a licence under this Act. Thus, it is clear that a wide discretion has been conferred, on the licensing authority to grant or not to grant licence under the Arms. Act. This does not mean that the licensing authority has to exercise power whimsically or arbitrarily, but this shows that the power is” to be exercised by the authority on fulfillment of the certain condition for grant of licence, as mentioned under the Arms Act and the Rules made thereunder. Thus, there is no difficulty in holding that the grant of licence cannot be claimed as a matter of right, on the other hand it is a privilege given to the citizens to hold to carry a licence accordance with the provisions of the Aims Act and Rules made thereunder. A full Bench of this Court in the case of Kapildeo Singh v. State of Bihar 1987 PUR 385): 1987 BUR 443 (F.B) has also held that under the Indian Law the right to carry arms is a privilege conferred by the Arms Act and other similar statutes which primarily leave the grant thereof in the discretion of the licensing authority.
8. The question for determination in this case is as to whether the licensing authority can suspend the licence and ask the licensee to deposit the fire arm without affording an opportunity of hearing during the pendency of the cancellation/revocation proceeding on the ground of the pendency of the criminal case. To wdecide the said question, it will be apt to quote the relevant part of Section 17 of the Arms Act.
17(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 nay 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 Sub-section (1) requiring him to deliver up (he licence.
(4) The licensing authority may also revoke a licence on the applicants Use holder thereof.
(5) Where the licensing authority makes an order varying a licence under Sub-section (1) or an order suspending or revoking a licence under Sub-section (3), it shall record in writing the reasons therefor 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.
….
(9) The Central Government may, by order in the official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licence granted under this Act throughout India or any part thereof.
(10) On the suspension or revocation of licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be. specified in this behalf in the order of suspension or revocation.
From perusal of the aforesaid provisions, it is clear that there is no specific provision authorising the licensing authority to cancel or suspend the licence during the pendency of a criminal case. However, that question is no longer res Integra and it has been held by this Court in the aforesaid Full Bench ease of Kapildeo Singh (Supra) that registration and pendency of a criminal case for major or capita offence may for adequate reasons justify the suspension or revocation of a licence Under Section 17(3)(a). The suspension or revocation of the licence on the said ground is permissible under Clause (a) of Sub-section (3) of Section 17 which warrants suspension or revocation a the licensing authority is satisfied that the holder of a licence is for any reason unfit for the licence under this Act. From perusal of Section 17 it is clear that there is no specific provisions in the said section requiring that a person should be heard before his licence is revoked or cancelled. The. only requirement in Sub-section (5) of Section 17, is that the licensing authority shall record in writing the reasons for cancellation or revocation of licence and furnish to the holder of licence on demand a brief statement of the same unless in any case (lie licensing authority is of the opinion that it will not be in the public interest to furnish such statement. In other words, the requirement of giving reasons for cancellation or revocation of the licence under the Act is mandatory. The question is as to what is die nature of the order at he stage of revocation or suspension, whether it is a quasi judicial order or purely are administrative order.
9. It is well settled that if a statutory authority has power to do any Act which adversely affect the citizen, then, although there are no two parties apart from the authority and the contest is between the authority deciding the matter and the person opposing it the final determination by the authority will be a quasi judicial Act provided the authority is required by the stature to Act judicially. See –Province of Bombay v. Khushaldas S. Advani), In other words an administrative proceeding will assume the nature of quasi judicial proceeding if the authority is required to adopt a judicial approach. However, it is not necessary to deal this issue in detail for the reason that the distinction between the quasi judicial proceeding and the administrative proceeding has practically obliterated. In this connection reference may be made to the case of A. K. Kraipak v. Union of India . In that case the Supreme Court observed as follows:-
The aim of the rules of natural justice is to secure justice or to put negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years; In the past it was thought that it included just two rules, namely, (1) no one shall be judge in his own cause (Nemo debet case judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alter am partem); Very soon thereafter a third rule was envisaged and that is that quasi judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the laws under which it functioned to Act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is not questioned? If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made applicable to administrative enquiries.
Often times it is not easy to draw the line that demarcates administrative enquiries from quasi judicial enquiries. Enquiries which were considered administrative at one time are not being considered quasi judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry.
Recently in the case of Km. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors. it has been held that :-
The shift now is to a broader notion of “fairness” or “fair procedure” in the administrative action. The administrative officers are concerned, the duty is not so much to Act judicially as to Act fairly…, For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a ‘lis’. There need not be resolution of ill inter parties. The duty to Act judicially or to Act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But when even such an administrative decision unless it affects one’s personal rights or one’s property rights, or the loss of or prejudicially affects something which would judicially be called at least a privilege does not involve the duty to Act fairly consistent with the rules of natural justice, We cannot discover any principle contrary to this concept.
Thus, from the aforesaid decisions it is clear that the shift in the present days is to adopt the notion of fair procedure in the administrative action and if an order, whether it is called quasi judicial or an administrative one affects the right of the parties or visits with civil consequences or affects even the privileges than a duty is cast on the authority to Act fairly consistent with the rules Of natural justice. No doubt, the rules of natural justice are not bodied rules. Application of these rules depends upon (lie statutory frame work under which a jurisdiction has been conferred upon the authority. It can operate, in an area not covered by any law validly made. Its application can be excluded either expressly or by implication in the public interest or in an emergent and urgent situation, As noticed above, lection 17 of the Arms Act itself does not provide for giving an opportunity of hearing before suspension or revocation of licence, but, from perusal of Sub-section (5) of Section 17 it is clear that recording of reasons is a must. The requirement of giving reason, in my opinion, inquires the authority to Act judicially or fairly in the matter and this requirement cannot be complied with unless the affected person is given an opportunity of hearing before passing lie order of suspension/revocation. Nobody can dispute the fact that the cancellation or suspension of licence leads, to a grave “consequence. The licence of arms is granted to the person for the protection of his life and property and withdrawal of the said privilege without observing the principles of natural justice will deprive the holder of the licence to carry arms or protection and safety of his life and property as well as the life and properties of others, permissible in law.
10. However, learned Advocate General relied upon two Full Bench decisions of Allahabad High Court, (Kailash Nath and Ors. v. State of U.P.) and 1989 All. L. J. 23 (Balram Singh v. State of U. P.) in support of his submission. In the case f Kailash Nath (Supra), the licensing authority cancelled the gun licence of the petitioners and directed them to deposit their weapons forthwith. The licences were cancelled as there /as immediate apprehension of breach of peace from the petitioners and if they would have been allowed to retain their fire-arms they might have used it for commission of crime. Dealing with the said matter it was held that for taking immediate action, the licence may be evoked/cancelled and thereafter the licensing authority will give an opportunity to the licence holder to file objection against the preliminary order and after hearing him will pass final order either affirming or revoking the provisional order. In this context it is useful to quote the following paragraph of the aforesaid judgment :-
The impugned order expressly recited that there was immediate apprehension of breach of peace from the petitioners if they were allowed to retain their fire-arms. Hence, cancellation of their fire-arms licence without any prior notice to them might be justified but the ingredients of natural justice would not be satisfied until the petitioners were subsequently afforded an opportunity of bearing and making representations against the impugned order. This being the legal aspect of the case, I am of the opinion that the law laid down in Para 16 in Chhanga Prasad Sahu ‘s case 1984 All WC 145(FB)(Supra) exacted in the earlier part of this judgment must be supplemented by the further observations that after taking the provisional action of immediate revocation of the licence the licensing authority must issue notice to the licence holder giving him an opportunity to file objections against the preliminary order and after hearing him proceeded to pass the final order which may either affirm or revoke the provisional order. In ether words, it is incumbent upon the licensing authority to refrain from attaching finality to the order of cancellation until the aggrieved petitioner has been heard by such authority and his objections have been adjudicated. The licensing authority can also for the furtherance of the immediate remedial action exercise the incidental power of directing the licence holder to surrender his licence until the objections have been decided. It follows that in the event of the objections being allowed the licence as well as the fire-arm must be restored to the licence holder….
11. It is to be noticed that even in that case in Paragraph 8 of the judgment, it was held before canceling the licence for fire-arms the licence holder must be given an opportunity of hearing.
12. In Balram Singh’s case (Supra) it was held that the power of the licensing authorities 10 suspend the fire-arms licence for the entire period during which the proceedings for its revocation is going on before him is implicit The power of suspension is necessary concomitant of power of revocation for effective control and regulation as also for security of public peace or public safety.
13. From bare perusal of the aforesaid two Full Bench judgments, it would appear that their Lordships were dealing with case where the licensing authority revoked the licence or suspend-.;. the licence and directed the licence-holders to deposit the fire-arm during the pendency of the revocation proceeding on being satisfied that it was necessary for the security of the public peace or for public safety to revoke or suspend the licence. I may mention here that in those cases it has not been held that the notice is not necessary before cancelling or suspending of the licence. It has only been held in the said cases that where emergent situation has arisen and the activities of the petitioner are prejudicial to the security public peace or public safety, the licence may be suspended or revoked and the said order will he mated as provisional one and finality will be attacked to the said orders only after an opportunity of hearing is given to the licence-holders:
14. Thus, in my considered opinion, before cancelling or suspending the licence of firearms, the licence holder must be given an opportunity of being heard. In other words, the licence should be suspended or cancelled after giving notice and hearing of the explanation of the licence-holder. The view taken by me finds support from the binding precedent. In the case of Kapildeo Singh (Supra) it was held by a Full Bench of this High Court that before cancellation/suspension of the licence notice to the licence holder and giving him opportunity of hearing is essential.
15. However, the aforesaid requirement of giving prior notice before cancellation or suspension of licence can be dispensed with in certain circumstances and the licensing authority after cancellation or suspension of the licence will afford subsequently an opportunity of hearing and making a representation against die order of cancelling or suspending the licence. After all, the rules of natural justice are not the ends in themselves, they are means to achieve ends of justice. Its object is to advance cause of justice and to keep the arbitrary actions within limits. It is well settled that in public interest and in emergent situation the observance of natural justice can be excluded absolutely or it can be regulated in such a way which would preserve the rule of law. It is equally well settled that the court has been circumvent in extending the rules of audi audi alteram partem a situation where it would cause more injustice than justice. If in an emergent situation where the activities of the licence holders of the fire-arms cannot be prevented otherwise than by taking recourse to cancel or revoke the licence and direct him to deposit the arms the licensing authority in such a situation would be justified in cancelling/revoking the licence and directing the licence-holder to deposit the arms even without affording a prior opportunity of hearing for the reason that giving of an opportunity of hearing prior to passing of the said order would not be possible in such a situation and giving prior notice will defeat the very object of the action proposed to be taken. However, the requirement of natural justice of affording an opportunity of hearing has to be complied with by the licensing authority subsequently by giving an opportunity of hearing and making representation against the order of cancellation or evocation and the licensing authority after affording an opportunity of hearing will either firm the earlier order or revoke the same, in ease of revocation of the earlier or provisional order of cancellation or suspension of the licence, the licence and the fire-arm shall be returned to licence holder. However, such’ emergent situations will arise in exceptional case and such cases would be far and few. For example, if the licence holder are determined to use (he arms in such a way which is likely to cause k serious breach of peace or where the licensing authority comes to the conclusion that it is necessary for the security of public peace or for public safety to suspend/revoke die licence, he may take recourse to the aforesaid extraordinary power for cancellation or revocation-before complying with the requirement of natural justice. However, he will subsequently comply with the requirement of natural justice as stated above, In the aforesaid situation, in my vie w. giving an opportunity of hearing prior to cancellation or revocation would cause more injustice than justice.
16. So far as the present case is concerned, it is covered by Section 17(3)(a) of the Act the during the pendency of the revocation proceeding the licence has been suspended and the petitioner had been directed to deposit the arms of the ground that the criminal case is ending. Admittedly, the licensing authority has passed the aforesaid order without observing the principles of natural justice and, accordingly, toe said order cannot stand in the eye of law and it has to be quashed.
17. So far the revocation proceeding is concerned, the same will continue and the licensing authority (District Magistrate) is directed to dispose of the revocation proceeding within a period of four months from the date of receipt/production of this judgment.
18. In the result, this application is allowed in part and the part of the orders, as contained n Annexures-1 and D, suspending the licence of the licence-holder and directing him o deposit the rifle are hereby quashed. The rifle of the petitioner should be returned to him.
Naresh Kumar Singh, J.
19. I agree.
