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P. Narasimha Reddy v. District Magistrate Cuddapah
Factual and Procedural Background
These proceedings comprise two applications under Article 226 of the Constitution of India. C.M.P. No. 7676 of 1951 is an application for a writ of mandamus directing the District Magistrate, Cuddapah, to issue a licence applied for by the petitioner for possession of a single-barrel cartridge gun (12 bore). C.M.P. No. 7677 of 1951 is an application for certiorari to call for the District Magistrate's records and quash his order dated 9 March 1951 refusing the licence.
The petitioner is a citizen residing in Anantharajupet village, Cuddapah district. He stated that reserve and unreserved forests border his village and are infested with various wild animals causing damage to crops and cattle. He applied on 2 January 1951 for the gun licence for hunting and protection of crops. On 19 March 1951 the District Magistrate refused the licence by a laconic order: "The gun licence applied for will not be granted," without assigning reasons. The petitioner alleged that others in his village had been granted licences on similar grounds. In the respondent's counter-affidavit the District Magistrate stated he was satisfied the petitioner was not suitable to be entrusted with a firearm and that he refused the licence in bona fide exercise of his discretion.
Legal Issues Presented
- Whether the District Magistrate has power to refuse a licence under the Arms Act and the Rules (in particular, whether Rule 43 and Section 17 permit refusal).
- Whether the refusal of the licence violates the petitioner's fundamental right under Article 19(1)(f) of the Constitution (right to acquire, hold and dispose of property), and if so whether any such restriction is saved by Article 19(5).
Arguments of the Parties
Petitioner's Arguments
- The District Magistrate has no power to refuse a licence (contention based on construction of Section 17 of the Arms Act and Rule 43 of the Rules).
- The refusal to grant a licence to acquire and hold a gun infringes his fundamental right under Article 19(1)(f) of the Constitution.
- He alleged unequal treatment: licences were given to other persons in his village on similar grounds.
Respondent/Government's Arguments
- The right to acquire and hold a gun is not a right to hold "property" within the meaning of Article 19(1)(f); rather it is a right created by the Arms Act and so a licence is not an entitlement as of right.
- Assuming Article 19(1)(f) applies, the provisions of the Arms Act and the Rules impose only reasonable restrictions within the meaning of Article 19(5), and therefore the refusal is saved by that clause.
- The District Magistrate stated in his counter that he was satisfied the petitioner was not a suitable person to be entrusted with a firearm and that he refused the licence in bona fide exercise of his discretion.
- Reliance was placed on the licensing provisions of the Arms Act (Sections 5, 17, 19) and Rule 43 of the Rules, which expressly contemplate discretion (including refusal) and provide appeal avenues (appeal to the immediate official superior, which in Madras is the Board of Revenue).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Metropolitan Trust Co. v. Jones (149 A.L.R. 1416 U.S.) | Illustration of a general definition and scope of "property" (used to show property includes interests in things subject to ownership). | The court relied on this definition to support the view that a gun is a material object that can be acquired and owned and therefore is property within the ordinary meaning of the term. |
| Veerappa Pillai v. Raman & Raman Ltd (1952 M.W.N. 431) | Held that a permit to ply a motor bus under the Motor Vehicles Act is discretionary and not a matter of right; the Act provided a complete administrative scheme for permits. | The court considered and did not accept the argument that this principle should apply here; it distinguished the case because whenever a question of fundamental right arises, validity must be tested against the Constitution. |
| C.S.S. Motor Service v. State of Madras (1952 M.W.N. 913) | Clarified that observations in Veerappa Pillai should be confined to orders prior to the Constitution and that questions implicating fundamental rights must be tested by the Constitution. | The court relied on this authority to reject the submission that a licence under a statutory regime is never a matter of right when fundamental rights are engaged. |
| Chintaman Rao v. State of Madhya Pradesh (1950 S.C.R. 759) | Definition and test of "reasonable restriction" under Article 19(5): restrictions must not be arbitrary or excessive and must strike a balance between individual freedom and permitted social control. | The court applied this test to the Arms Act and its Rules, concluding that licensing restrictions are, in principle, reasonable and in the interest of the general public, but that the exercise of discretion must be judicial and supported by reasons. |
| W.P. No. 441 of 1951 (Rajamannar, C.J. & Venkatarama Ayyar, J.) — Essential Supplies (Temporary Powers) Act, 1946 | Held that an arbitrary discretion to grant or refuse licences without giving reasons offends fundamental rights; clause there allowed refusal without reasons. | The court distinguished that decision: Rule 43 under the Arms Act confers a judicial discretion (subject to appeal) rather than an arbitrary one, so while the principle about reasons was adopted, the earlier case could not be directly applied to invalidate r. 43. |
Court's Reasoning and Analysis
The court proceeded in a sequence of analytic steps derived from the statute, rules, constitutional text, and precedent as follows:
- Statutory interpretation of Section 17 of the Arms Act and Rule 43 of the Rules: The court rejected the narrow view that rule-making power was limited only to laying down the conditions for issue and did not include power to refuse. It reasoned that since Section 5 prohibits possession of arms except under licence, and Section 17 authorises rules determining officers and terms for granting licences, a power to grant a licence necessarily implies a power to refuse when the issuing officer is not satisfied of the conditions. Thus Rule 43 empowering the District Magistrate to refuse a licence is valid.
- Whether a gun is "property" under Article 19(1)(f): The court examined the meaning of "property", citing authorities and definitions, and concluded that a gun — being a material object that can be acquired and owned — is within the ordinary meaning of property. Consequently, the petitioner's claim falls within Article 19(1)(f).
- Whether restrictions are saved by Article 19(5): The court applied the Supreme Court's test of "reasonable restriction" from Chintaman Rao. It identified two conditions under Article 19(5): (1) restrictions must be reasonable; and (2) they must be in the interest of the general public. The court analysed public interest considerations specific to firearms (public security, public order, conservation of wildlife, prevention of crime) and accepted that regulation by licensing is a legitimate and reasonable mechanism to protect general public interests while not wholly destroying the fundamental right.
- Nature of discretion under Rule 43 and requirement of reasons: The court emphasized that the discretion conferred by Rule 43 is a judicial one (not arbitrary), because the District Magistrate's decisions are subject to appeal to the Revenue Board. Given the availability of an appeal, the Magistrate must furnish reasons when he refuses a licence so that the appellate tribunal can evaluate the correctness or reasonableness of the refusal. The court distinguished the case under the Essential Supplies Act where the statute expressly permitted refusal without reasons, noting that Rule 43 requires exercise of judicial discretion and therefore demands reasons.
- Application to the impugned order: The Magistrate's order was laconic and contained no reasons — simply stating the licence "will not be granted." The court found this to be arbitrary in character and contrary to the requirement that judicial discretion be exercised in a way that discloses the reasons for refusal so the appellate body can conduct meaningful review. Consequently, while the licensing regime itself is valid and can constitute a reasonable restriction under Article 19(5), the particular order at issue violated the petitioner's fundamental right because it lacked reasons.
Holding and Implications
The District Magistrate's order refusing the gun licence is set aside and the matter is remitted for reconsideration in accordance with law.
Implications drawn from the opinion (as stated by the court):
- The licensing machinery under the Arms Act and Rules (including Rule 43) is valid and may constitute a reasonable restriction under Article 19(5) when tested by the standards of public interest and reasonableness.
- The District Magistrate has power to refuse a licence; that power is part of the judicial discretion conferred by the rules and is not per se arbitrary.
- Because the District Magistrate's decisions are subject to appeal, he must exercise his discretion judicially and state reasons for refusal so that the appellate tribunal can evaluate the decision; failure to give reasons renders the refusal arbitrary and violative of Article 19(1)(f).
- Direct effect on the parties: the Magistrate's order is quashed and he is directed to dispose of the petitioner's application in accordance with law; the petitioner is awarded costs.
The opinion does not announce that it is laying down a novel binding precedent beyond these conclusions; it primarily applies established principles of statutory interpretation, constitutional protection of fundamental rights, and the requirement that judicial discretion be exercised with reasons where appellate review is available.
C.M.P No. 7676 of 1951 is an application under Art. 226 of the Constitution of India to issue a writ of mandamus directing the District Magistrate, Cuddapah to issue a licence applied for by the petitioner for the possession of a single barrel cartridge gun No. 12 bore (S.B.B.L). C.M.P No. 7677 of 1951 is an application by the same party for issue of a writ of certiorari to call for the records of the District Magistrate, Cuddapah and to quash his order dated 9th March 1951. The petitioner is a citizen of the Indian Union risiding in the village of Anantharajupet, Kodur firka, Cuddapah district. It is stated in the affidavit that both on eastern and southern sides of the village, where his lands are situated, there are reserve forests and also unreserved forests and that these forests are infested by wild animals of various types like deer, stag, sambur, wild pigs, cheetahs, bears and tigers As these animals cause considerable destruction of food crops and of cattle, the petitioner applied on 2-1-1951 to the respondent for a licence for a single barrel cartridge gun No 12 Bore (S.B.B.L) for the purpose of hunting and the protection of crops from wild animals. On the 19th March, 1951 the petitioner received an order of the respondent refusing the grant of a licence, without any reasons being assigned therefor. It is alleged that in his own village licences were given for other persons on similar grounds. The respondent in his counter states that he was satisfied that the petitioner was not a suitable person to be entrusted with a fire arm and that in bona fide exercise of his discretion he refused the licence to the petitioner.
Learned counsel for the petitioner raised before me the following points:
(1) The Magistrate has no power to refuse a licence.
(2) The refusal of the licence to acquire and hold a gun is a violation of his funda- mental right under Art. 19 (1) (f) of the Constitution of India.
Mr. Vepa Sarathy for the Government contended that a right to acquire and hold a gun is not a right to hold property within the meaning of the said article but is a right created by the Arms Act, and the petitioner cannot, therefore ask for a licence as of right. Assuming that Art. 19 (1) (f) applies, he argued that the provisions of the Arms Act and the Rules made thereunder impose only reasonable restrictions within the meaning of Art. 19 (5). The relevant provisions of the Arms Act and the Rules framed thereunder read as follows:
“S. 5 :—No person shall manufacture, convert or sell, keep, offer or expose for sale, any arms, ammunition or military stores except under a licence and in the manner and to the extent permitted thereby……
S 17:—Power to make rules as to licences. The Central Government may, from time to time by notification in the Official Gazette, make rules to determine the officers by whom, the form in which, and the terms and conditions on and subject to which, any licence shall be granted; and may……
S. 19:—For breach of sections 5, 6, 10, 13, to 17, whoever commits any of the following offences (namely):—
(a) manufactures, converts or sells, or keeps, offers or exposes for sale, any arms, ammunition or military stores in contravention of the provisions of section 5……shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.
Rule 43:—Discretion and control of authorities empowered to grant licences.— (1) Every authority empowered to grant or renew a licence or to give his previous sanction to such grant or renewal may, in his discretion.
(a) refuse to grant or renew such licence or to give such sanction, or
(b) where the authority is subordinate to Provincial Government, refer the application for orders to such Provincial Government:
Provided that in any case in which such authority refuses to grant or renew a licence, the applicant for such grant or renewal may appeal to the immediate official superior of the authority so refusing.
In the Province of Madras the Board of Revenue shall be considered to be the immediate official superior of the District Magistrates for the purpose of such appeals
(2) Every such authority shall exercise all powers and perform all duties centered or imposed by these rules, subject to the control of the executive authorites to whom he is subordinate.”
The schedule to the rules gives the forms of the application and that of the licence issued under the Act.
The first contention of the learned counsel turns upon the provisions of S. 17 of the Act and r. 43 of the Rules. It is said that the rule making power of the Government is limited only to the laying down of the conditions for the issue of a licence, not for the refusal of the same, and, therefore, the rule empowering the District Magistrate to refuse a license is invalid, being inconsistent with the provisions of the Act. Emphasis is laid on the following words in S. 17 of the Act:
“Rules to determine the officers by whom, the form in which, and the terms and conditions, on and subject to which, any licence shall be granted.”
To accept this contention is to take a very narrow view of the provisions of S. 17. Under S. 5 no person shall keep any arms except under a licence. The Government is authorised to make rules for issuing of such licences. A power to issue a licence necessarily carried with it the power to refuse the issue of a licence. When under S. 17 the Government authorises a particular officer to issue a licence if he is satisfied that certain conditions are complied with, it follows that if he is not satisfied he cannot issue a licence. I therefore hold that the provisions of r. 43 are not illegal and that under that rule the District Magistrate can either issue or refuse to issue a licence in his discretion.
The next question is whether the impugned order violates the fundamental right under art 19 (1) (f) of the Constitution and, if so, whether it is saved by Art. 19 (5) of the Constitution of India. Learned counsel for the Government contended that to hold a gun is not to hold a property within the meaning of the article. The word “property” has not been defined in the Constitution. The expression “property” includes “ every interest one may have in any and everything that is subject of ownership by man, together with the right to freely possess, enjoy and dispose of the same'. See Metropolitan Trust Co. v. Jones 149 A.L.R 1416 U.S. Coolley in his Constitutional Law at page 392 defines property as follows :— “Whatever a man produces by the labour of his hand or his brain, whatever he obtains in exchange for something of his own and whatever is given to him, the law will protect him in the uses, of enjoyment and disposition of it.”
There is no reason to assume that the makers of the Constitution did not use this word in its usual sense to take in everything that is subect of ownership by man. Whatever difficulty there may have been in other cases, I find it difficult to hold that a gun, which is a material object that can be acquired and owned, is not property. But the learned counsel relied upon the judgment of the Supreme Court in Veerappa Pillai v. Raman & Raman Ltd 1952 M.W.N 431 in support of his contention that a right to acquire and hold a gun is a right created by the Arms Act and, therefore, no one is entitled to a permit as of right even if, he satisfied all the prescribed conditions. The learned Judges in the aforesaid case were dealing with a person's right to get a permit as of right to ply a motor bus under the Motor Vehicles Act. After pointing out that the Act established a regular hierarchy of administrative bodies to deal with the regulation of transport by means of motor vehicle, the learned judges stated at page 812:
“Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revision from subordinate bodies to higher authorities.
The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had. As observed already the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right.”
But these observations were considered by a Bench of this court consisting of Rajamanar, C.J and Venkatarama Ayyar, J. in W.P No. 333 and 334 of 1951, C.S.S. Motor Service v. State Of Madras Since reported in 1952 M.W.N 913 wherein the learned Judges pointed out that the observations of the Supreme Court should be confined to an order prior to the making of the Constitution of India, and that whenever a question of fundamental right arises, the validity of the impugned order should be tested with reference to the provisions of the Constitution of India. I cannot therefore accept this contention.
It was then contended that the order is saved by the provision of Art. 19 (5) of the Constitution. Under Art. 19 (5) nothing in sub-cl. (f) shall affect the operation of an existing law in so far as it imposes, or prevent the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the ‘said sub-clause either in the interest of the general public or for protection of the interests of any Scheduled Tribe. The fundamental right, therefore, recognized under Art. 19 (1) (f) to acquire, hold and dispose of property can be restricted within the limits of the provision of Art. 19 (5). The restrictions that can be imposed on the said right are conditioned by the provisions of that clause:
(1) They should be reasonable, and
(2) They should be in the interest of the general public, not a denominational part of it.
The Supreme Court of India has defined the phrase “reasonable restriction” in Chintaman Rao v. State Of Madhya Pradesh 1950 S.C.R 759 at page 573 as follows:
“The phrase “reasonable restriction” connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of excessive nature beyond what is required in the interest of the public. The word ‘reasonable’ implies intelligent care and delibration, that is the choice of a course which the reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19 (1) (c) and the social control permitted by clause (b) of Art, 19, it must be held to be wanting in that quality.”
There cannot be a hard and fast rule on the question of what restrictions are reasonable. The reasonableness of a restriction depends upon the nature of the right claimed, the object to be achieved, the means employed and the limitations imposed. They should be fair and commensurate with the purposes aimed at. Their validity should also be tested by another yard stick, namely, whether they were conceived and enacted in the interest of the general public. They could be made from purposes such as public security, public order, public health and public morality. Judged by the aforesaid conditions, can it be said that tie restrictions imposed under the Arms Act and the Rules framed thereunder are unreasonable restrictions not aimed in the interests of the general public? The restric- tions on the free acquisition and user of fire-arms is certainly necessary in the interest of the general public. Many situations can be visualised when the uncontrolled user of fire arms may be detrimental to the interests of the general public-violent revolutions may be encouraged, wild game may be exterminated, murder and arson might be resorted to, and peaceful structure of society may be destroyed. At the same time possession of fire arms in the hands of desirable persons may be a protection and safeguard against unruly elements and wild animals. They may be also required by peaceful citizens for entertainment and recreation such as shooting exercises, mild game etc. The State therefore may well have to intervene and put restrictions on the user to protect the general public, without at the same time destroying the fundamental right. The machinery evolved to achieve the purpose is the licensing system. The application form gives all the particulars necessary for the officer to decide on the desirability of issuing or refusing to issue a licence. The officer empowered to issue the licence is a responsible officer of the Government, the District Magistrate. In his discretion he may give or refuse the licence. The discretion is obviously a judicial one as his order is subject to an appeal to the Revenue Board. When his order is subject to an appeal, it is his duty to give reasons for his refusal, for the appellate tribunal must be in a position to evaluate the correctness or reasonableness of his rejection. Having regard to the right claimed and its dangerous potentialities, I cannot say that the restriction imposed are not reasonable. But the necessary condition of the reasonableness is that the Magistrate should exercise judicial discretion disclosing his mind for the scrutiny of the appellate tribunal excluding the possibility of arbitrary action. Learned counsel for the petitioner relied upon a judgment of a bench of this court in W.P No. 441 of 1951. There the learned Judges, Rajamannar, C.J and Venkatrama Ayyar, J. were dealing with the sections of the Essential Supplies (Temporary Powers) Act, 1946. Under cl. 11 of the Act the Development Officer shall have discretion to grant or refuse a licence to any applicant. It shall not be necessary for the Development Officer to assign any reason for any decision taken by him under that clause. The learned Judges held that the arbitrary power envisaged in the said clause offends the fundamental rights of a citizen. But under r. 43 of the rules framed under the Arms Act, as interpreted by me, the District Magistrate cannot arbitrarily refuse to give the permit, but he must exercise a judicial discretion supported by reasons, subject to the scrutiny of an appellate tribunal. The scope of the two Acts and the mischief intended to be averted are not the same. Cl. 11 of the Essential Supplies (Temporary Powers) Act, 1946 embodies an arbitrary discretion: Rule 43 (1) confers a judicial discretion I cannot therefore apply that decision to the facts of this case.
The impugned order is a laconic one. It reads: ‘The gun licence applied for will not be granted.’ No reasons were given for the refusal. The order is of an arbitrary character, though under r. 43 it should be made in exercise of a judicial discretion. The necessary safeguard against an arbitrary refusal, i.e giving reasons for refusal, is ignored. As I hold that the licencing machinery established a reasonable restriction on the fundamental right only if the District Magistrate gave reasons for his order for the scrutiny of the appellate tribunal, I must hold that the order without giving such reasons offends the fundamental right of the petitioner to acquire and hold property. The order of the District Magistrate, therefore, is set aside and he is directed to dispose of the application of the petitioner in accordance with law. The petitioner will have his costs.
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