JUDGMENT
N.N. Mathur, J.
1. Rule.
2. Mr. D.C. Dave and Mr. Y.M. Thakkar, learned Assistant Government Pleaders waives service of Rule. Looking to the urgency of the matters the Rule is taken for hearing today.
3. The question for consideration which arises for consideration in this group of petitions can be formulated thus:
Whether the licensing authority under Section 17(3)(b) of the Arms Act, 1959, has power to suspend all licences granted under the Act, by general order?
4. FACTS:
Spl. C.A. Nos. 571 and 594 of 1995
In these two Special Civil Applications the respective petitioners have challenged the order dated 9-1-1995 passed by the Commissioner of Police, Surat City suspending the licence of the licence-holders and requiring them to surrender their licence of arms. The say of the petitioners is that they are the owners of the Industrial Unit, viz., Rajesh Silk Mills and said Industrial Unit is engaged in the business of manufacture of Art Silk etc. They further say that their Industrial Unit possess imported machineries worth crores of rupees and daily transaction in the said unit is in cash of about Rs. 2 lakhs. They are required to deal with large amount of cash daily. They furhther state that they made request to the respondent-Police Commissioner for providing police protection but the same has been refused. They need Revolver for their own safety as also to the property.
Spl. C.A. No. 590 of 1995
In this Special Civil Application the petitioner has challenged the order dated 9-1-1995 suspending the licence for acquisition, possession and carrying of arms or ammunition passed by the District Magistrate, Surat dated 9-1-1995. The say of the petitioner is that he is holding licence for the possession of the arm since 1959 which he is carrying for the protection of Crops and Cattle.
Spl. C.A. No. 570 of 1995
In this Special Civil Application the petitioner has challenged the order dated 12-1-1995 passed by the Commissioner of Police, Ahmedabad. The say of the petitioner is that he is practising Advocate of the Gujarat High Court. He is also having farm in Matar Taluka in Kheda District. He further says that there is another farm situate between Bareja and Kheda abutting National Highway No. 8. He is required to stay at the said farm upto night and he is also required to travel from his farm to his residence at Ahmedabad. Therefore, he needs licensed weapon for self-protection.
Spl. C.A. No. 323 of 1995
In this Special Civil Application the petitioner has challenged the order dated 13-1-1995 passed by the District Magistrate, Valsad. The say of the petitioner is that he is holding licence for acquisition, possession and carrying ammunitions for protection. He was Jagirdar of Nagrecha and the petitioner’s ancestors and family members have taken part in resisting aggression and defending the former State of Kutch. He says that his weapons are valued worth Rs. 3 lakhs to Rs. 4 lakhs. He is staying at Vapi and he is running industry known as Pranav Paper Mills and Pranav Raj Paper Mills Pvt. Ltd. at Vapi. He says that he is holding the arm under the licence for last more than 30 to 35 years and he has never misued the licence. He requires licence for defence of his person and property.
Spl. C.A. No. 998 of 1995
In this Special Civil Application the petitioner has challenged the order dated 10-1-1995 passed by the District Magistrate, Kheda, whereby the petitioner has been asked to surrender arm in his possession. The say of the petitioner is that he is active in public life of Anand. He is Municipal Councillor for last more than 25 years. He is President of the Nagarpalika for 15 years. He is also Vice-President of All India Institute of Local Self-Government. He is residing at Anand-Bankrol Road which is suburb of city of Anand and very sparsely populated. For his own safety and protection he needs arms.
5. Though different orders have been passed by the different authorities in purported exercise of power under Section 17(3)(b) of the Arms Act but all orders proceed on common ground of situation of law and order for maintaining peace and public safety in the forthcoming general election to the Gujarat Legislative Assembly in the month of February, 1995, and with reference to order dated 12-1-1994 passed by the Chief Election Commissioner of India under Article 324 of the Constitution of India.
In order to answer the question raised it would be convenient if one of the impugned orders is reproduced. The English translation of the order dated 9-1-1995 passed by the District Magistrate, Surat, has been made available to this Court which reads as under:
PUBLIC NOTICE FOR ARMS HOLDER OF SURAT DISTRICT.
No. HaThra/Pravana/Chatana/95
Surat Date 9-1-1995.
In the forthcoming month of February, 1995 general election to the Gujarat Legislative Assembly is held and counting of votes is to be in March 1995. As during that period, election is to be held in all legislative constituencies of Surat District, considering the situation of law and order, and for maintaining public peace and public safety and with reference to the order No. 464/94 (LNA) dated 12-1-1994 passed by Election Commissioner of India under the powers received under Article 324, it appears desirable to pass order for depositing arms and cartridges of all licence-holders of arms of the area mentioned in the Schedule with the nearest police station.
Hence, for maintaining public peace and public safety in Surat District, according to the provisions of Section 17(3)(b) of Arms Act, 1959, licences of licence-holders of the area mentioned in the Schedule are suspended fron 10th January, 1995 to 15th March, 1995 for public peace and safety. Hence all licence-holders of the area mentioned in the Schedule are hereby ordered to deposit their arms and cartridges immediately with the nearest police station.
Concerned Police Inspectors/Sub-Inspectors have to see that arms and cartridges of all licence-holders are immediately received and deposited with the police stations.
This order is to be followed strictly.
SCHEDULE
Whole Area of Surat District (Excluding Surat Police Commissioner’s Area) Exception: This order will not be applicable to On duty Government officers, police officers. Security guards kept for the protection of the nationalised and co-operative banks are permitted to hold arms during bank’s working hours for the protection of the bank.
Despatched by
Addl. District Magistrate,
Surat.
Sd/- P.V. Trivedi,
District Magistrate,
Surat.
6. In two Special Civil Applications reply has been filed by the respondents. In Special Civil Application No. 570 of 1995, Mr. M.M. Mehta, Commissioner of Police, Ahmedabad, has filed affidavit stating inter alia that on account of ensuing assembly election, upon consideration of the relevant facts and circumstances it was felt by him that with a view to maintain public peace and public safety it is desirable to summon all the concerned licence-holders falling under his jurisdiction as licensing authority under the Arms Act for the purpose of depositing their respective arms before the concerned police station. He has further stated that he arrived at the said decision by taking into consideration the past record of the City of Ahmedabad where the communal riots were a frequent phenomena. He has also stated that on account of bona fide mistake instead of Section 17(3) of the Arms Act, Section 24-A of the Arms Act was mentioned in the impugned order under challenge. He has reiterated that he passed order with laudable object of public safety and security in mind. He has further stated that public at large was informed that if any person genuinely requires arm even during the period contemplated by the said order Annexure-I, he may move application in this regard to him and the same will be considered on merits and if found fit a proper exemption from the said order would be granted to such licence-holder.
Mr. P.C. Pande, Commissioner of Police, Surat City, has filed affidavit-in-reply in Spl. C.A. No. 594 of 1995, stating inter alia that Election Commission had issued circular dated 21-9-1994 by virtue of which the District administration was directed to identify the sensitive areas with a view to precipitating appropriate action, if required for the purpose of withdrawal of fire-arms and weapons from all concerned licence-holders. He has further stated that after receipt of the said instructions from the Election Commission an action was precipitated in the entire State of Gujarat by concerned authorities for the purpose of identifying certain areas as sensitive areas. He has also stated that Surat being one of the most sensitive areas came to be recognised and identified as sensitive area for the purpose of precipitating appropriate action under the provisions of the Arms Act. Therefore, keeping in view the past record of Surat, more particularly the fact that in the month of December, 1992, there were communal riots in the City of Surat on large scale as well as the prevailing situation in the Surat City on account of ensuing Assembly Election he was satisfied that in order to secure the public safety and maintain public peace, it was necessary to call upon licence-holders in the City of Surat to deposit their respective arms and weapons. Accordingly, he exercised power as licensing authority under Section 17(3)(b) of the Arms Act. He has further submitted that there are about 18,000 persons holding licence for the purpose of keeping arms and weapons under the provisions of the Arms Act and thus, it was practically impossible to issue separate order suspending the licence in case of each licence-holder. He has also submitted that in response to the impugned notification the majority of the licence-holder complied with and deposited arms. It is also stated that on 13-1-1995 it was decided to constitute a Screening Committee to assess the need of those licence-holders who genuinely require arms during the period envisaged by the impugned notification. Screening Committee constitutes of Commissioner of Police, Deputy Commissioner of Police, Assistant Commissioner of Police and Police Inspector of the concerned Police Station. Further direction was issued to the effect that if any industrial units or any shop or establishment situated in Diamond Bazar of Surat City or any jewellery shop or any other organisation such as Bank, Corporation etc. is having its own private security and the persons concerned providing such private security are having requisite licence to hold an arm or weapon, such security personnel would be exempted from the purview of the said impugned order.
7. Before proceeding to deal with the arguments advanced it would be necessary to notice the relevant provisions of the Arms Act.
17. Variation, suspension and revocation of licences:
(1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as having been prescribed and may for that purpose, require the licence-holder by notice in writing to deliver up the licence to it within such time as may be specified in the notice.
(2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.
(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 the 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 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 any other person on his behalf at the time of applying for, 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 the licence.
(4) The licensing authority may also revoke a licence on the application of the 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), 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.
(6) The authority to whom the licensing authority is subordinate may by order in writing, suspend or revoke a licence on any ground on which, it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall as far as may be, apply in relation to the suspension or revocation of a licence by such authority.
(7) A Court convicting the holder of a licence of any offence under this Act or the Rules made thereunder may also suspend or revoke the licence:
Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.
(8) All orders of suspension or revocation under Sub-section (7) may also be made by an appellate Court or by the High Court when exercising its powers of revision.
(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 licences granted under this Act throughout India or any part thereof.
(10) On the suspension or revocation of a 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.
18. Appeals: (1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence, may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:
Provided that no appeal shall lie against any order made by, or under the direction of, the Government…
21. Deposit of arms, etc., on possession ceasing to be lawful: (1) Any person having in the possession any arms or ammunition the possession whereof has, in consequence of the expiration of the duration of a licence or of the suspension or revocation of a licence or by the issue of a notification under Section 4 or by any reason whatever, ceased to be lawful, shall without unnecessary delay deposit the same either with the officer-in-charge of the nearest police station or subject to such conditions as may be prescribed, with a licensed dealer or where such person is a member of the armed forces of the Union, in a unit armoury…
24-A. Prohibition as to possession of notified arms in disturbed areas etc.:(1) Where the Central Government is satisfied that there is extensive disturbance of public peace and tranquillity or imminent danger of such disturbance in any area and that for the prevention of offences involving the use of arms in such area it is necessary or expedient so to do, it may by notification in the Official Gazette…
8. Section 17 of the Act provides for variation, suspension and revocation of licences. However, this power is subject to the other provisions contained in Sub-sections (1) to (5) of Section 17 of the Act. Clauses (a), (b), (c), (d) and (e) of Section 3 provides grounds on which the licence can be suspended or revoked by the licensing authority. It is significant to notice expression ‘a licence’ employed in Sub-section (3) of Section 17, which provides that licensing authority may by order in writing, suspend “a licence” for such period as it thanks fit, for the grounds given in Sub-clauses (a) to (e). Sub-clause (a) provides for cancellation or revocation of licence in case where 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. Clause (c) provides that 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 any other person on his behalf at the time of applying for, or, Clause (d) provides if any of the conditions of the licence has been contravened, Clause (e) provides that if the holder of the licence has failed to comply with a notice under Sub-section (1) requiring him to deliver the licence. Thus, Sub-clauses (a) and (c) to (e) undisputedly provides ground of a individual case. In the present case, Sub-clause (b) which provides that if licensing authority deems it necessary for the security of public peace or for public safety to suspend or revoke the licence. Thus, in the line of Sub-clauses (a) and (c) to (e) Sub-clause (b) also provides ground of individual case, i.e., when the licensing authority is satisfied that the Act or activities of individual are such that suspension of his licence is necessary for security of public peace or public safety. Sub-clause (9) provides that 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 licences granted under this Act throughout India or any part thereof. Therefore, the power to suspend all licences is vested in Central Government, by virtue of Sub-clause (9) of Section 17 as against “a licence” under Sub-section (3) of Section 17. There is another provision under the statute, Section 24-A, which provides that where the Central Government is satisfied that there is extensive disturbance of public peace and tranquillity or imminent danger of such disturbance in any area that for the prevention of offences involving the use of arms in such area, it is necessary or expedient so to do, it may by notification in the Official Gazette prohibit to possession of arms in the said notified disturbed area. Section 24-A deals with the existing situation, whereas provision under Section 17(3)(b) and Sub-clause (9) are preventive measures. Therefore, Section 24-A. is not at all attracted in the present case. There is also no controversy that under Sub-clause (9) the Central Government has wide powers to suspend or revoke the licence by a general order. The only question remains to be answered if such a power to suspend licence by general order is also vested in the licensing authority under Section 17(3)(b)?
9. The contention of the Learned Counsel for the petitioners is that the licensing authority has no power under Section 17(3)(b) to suspend the licence by general order as such power is vested only with the Central Government under Clause (9). It is also argued that the licensing authority has limited power only to suspend licence on the ground mentioned under Clause (a) to (e) of Sub-section (3) of Section 17 in case of individual licence. In the alternative, it is also contended that even if such word ‘a licence’ is not there, still the licensing authority will have no authority to cancel the licence by a general order as this area to suspend “all” licence is occupied by the Central Government by virtue of specific provision of Section 13(9) of the Act.
It is contended by the learned Assistant Government Pleader Mr. Dhaval Dave that there is a well-known Rule that singular shall include the plural. He has referred to Section 13 of General Clauses Act, which provides that there is nothing repugnant in the subject or context the word singular shall include the plural and vice versa. He relied on decision of the Madhya Pradesh High Court , Bhupendra Kumar v. Y.S. Dharmadhikari. In that case, the petitioner had challenged the validity of election process of elections of the members of the Bar Council and there was no challenge to the validity of any particular candidate. It was contended that Rule 31(1) of Madhya Pradesh State Bar Council Election Rules (1968) had contemplated the election of a single candidate and hence no petition can be filed challenging the election of a number of candidates. The contention was based mainly on the use of the expression “the election of a candidate” in Sub-rule (1) of Rule 31. The contention was repelled on the reasoning that in Section 13 of the General Clauses Act, the words in the singular include the plural.
In order to appreciate the contention, it will be convenient to read Section 13 of the General Clauses Act.
13. Gender and number: In all Central Acts and Regulations unless there is anything repugnant in the subject or context –
(1) Word importing the masculine gender, shall be taken to include females; and
(2) words in the singular shall include the plural, and vice versa…
Sec. 13 opens with expression unless there is “anything repugnant in the subject or context”. All that Section 13 means is that the word need not be construed as “singular” under all circumstances but merely indicates the intention of the legislature that the word may be interpreted in the plural wherever the circumstances required that it should be so construed, determinable with reference to the context in which it may be used. In the present case, there is repugnancy under Sub-clause (9) of Section 17 of the Arms Act when the power of suspension or revoking the all licences is vested with the Central Government. Therefore, the contention raised by the respondent on the strength of Section 13 of the General Clauses Act, is not sustainable. Learned Assistant Government Pleader has further tried to justify the impugned order on the ground that in a case of suspension of licence on the ground of necessity for security of public peace or public safety, it is not possible to issue notice to every licensee. As stated in Surat itself, there are about 18,000 licensees. There is no substance in the contention. The legislature has provided various provisions for dealing with the different situations. Grounds (a) to (e) have been provided under Sub-section (3) of Section 17, under which the licensing authority may suspend or revoke the “a licence”. General power has been given to the Central Government under Sub-clause (9) of Section 17. In case of extensive disturbance the power has been given to the Central Government under Section 24-A. Therefore, if there is situation where large number of licences have to be cancelled the legislature has given such authority not to the licensing authority but to the Central Government. The Central Government has also been vested with power under Section 43 of the Act to delegate its powers. Section 43 provides that the Central Government by notification in the Official Gazette, direct that any power or function which may be exercised or performed by it under this Act other than the power under Section 41 or the power under Section 44 may, in relation to such matters and subject to such conditions, if any, as it may specify in the notification, be exercised or performed also by such officer or authority subordinate to the Central Government or such State Government or such officer or authority subordinate to the State Government as may be specified in the notification. Even under Sub-clause (9), Central Government may direct licensing authority to suspend all or any licences. It is not the case of the State Government that such power has been delegated to any authority subordinate to the State Government, viz., Commissioner of Police or District Magistrate. It may also be stated that even if the Central Government or its delegatee order suspends or revokes the licence in exercise of power under Sub-clause (9) of Section 17 of the Act, such order is required to be published in the Official Gazette. Therefore, it further appears that the legislature intended that when there has to be a general order of suspension of licence it has to be by an order published in Official Gazette. Such power of suspension or revocation which is required to be exercised by the Central Government or its delegatee by publication in Official Gazette cannot be considered to be concurrent power with the licensing authority by a simple notification. It is also well settled principle of law that when the Statute making provisions for exercising power, the power can be exercised only in that manner and all other manners and its exercise are forbidden. Therefore, the licensing authority has no power to suspend or revoke the licence by general order in purported exercise of power under Section 17(3)(b) of the Act.
10. It is next contended by learned Assistant Government Pleader that even if the impugned order is not found to be in strict conformity with the law, this Court may not grant relief to the petitioner in exercise of power under Article 226 of the Constitution of India as no serious injustice is caused to them. Learned Counsel places reliance on decision of this Court in Saurashtra Paper and Board Mills v. State and Anr., , and another decision reported in 1992(2) GLR 1521 in case of K.P. Chavda v. N.K. Chavda. In the Saurashtra Paper Mill’s case the notification issued under the Minimum Wages Act was found to be not in accordance with law. This Court, however, refused to quash it in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India on the ground that no substantial injustice was caused to the petitioner. In order to appreciate this contention, it will be necessary to look to the object of the Arms Act, 1959. Before the British came to India the situation in this country was that in almost every house there were some arms. Possession of arms was regarded as a sign of dignity and self-respect. When the British came to India they had to face armed resistence from the feudal Kings. Due to their technological and organisational superiority they gradually overcame this resistence and spread their rule in India. The first comprehensive arms legislation in India was brought in the year of 1959, with a view to co-ordinate the rights of the citizen. Unfortunately to-day the impression is that there are plenty of unlicensed arms with criminals and the feeling is that law and order enforcing authorities are not providing adequate protection to the citizens. The result is that the decent respectable and law abiding citizens are defenceless if gangster or criminal enters one’s house or office with a weapon or accosts them elsewhere. Thus, the suspension and revocation of licence entails serious consequences depriving the person of his valuable right to possess the fire-arm under the licence and this right can be taken away only in accordance with statutory powers conferred by the Arms Act. Thus, I find no substance in the contentions raised by the learned Assistant Government Pleader.
11. Another contention raised by the learned Assistant Government Pleader which, in fact, has been raised as preliminary objection that the present Special Civil Application is not maintainable as there is a statutory alternative remedy available under Section 18 of the Act of 1959. Alternative remedy cannot be said to be a bar in exercise of power under Article 226 where the authority has acted without jurisdiction or without authority of law. I have already held that the respective authorities in Special Civil Applications have issued the impugned orders cancelling the licences by a general order which is without jurisdiction and without authority of law. In view of it, the objection raised by the petitioner with respect to the maintainability of the writ petition is not sustainable.
12. The impugned orders passed in respective Special Civil Applications in exercise of powers under Section 17(3)(b) are thus declared to be illegal, ultra vires being without authority of law.
13. In view of the aforesaid discussions, this group of Special Civil Applications succeed. The impugned orders passed by the respondent authorities in respective petitions are hereby quashed and set aside.
14. Learned Assistant Government Pleader makes a prayer that this order may be kept in abeyance for a period of two weeks. Looking to the facts of the case, more particularly, when the elections are scheduled only a day after, the order of this Court shall not be carried out for a period of 10 days. However, the respondents are directed to consider and dispose of the application for exemption of the respective petitioners in the present Special Civil Applications latest by 26-2-1995. Rule made absolute accordingly. No costs. D.S. Permitted.
