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Sudhir Chandra Ghosh v. The A.D.M 24-Parganas, & Ors.
Structured Summary of the Opinion (Anil K. Sen, J.; B.C. Chakrabarti, J. concurring)
Factual and Procedural Background
The appellant (petitioner below) was the holder of gun licence No. 2372 HH. In May 1962 a neighbour, Byomkesh Chakrabarti, started a criminal case against the petitioner and seized the petitioner's gun, depositing it with the local police together with some fired and some live cartridges. The petitioner filed a counter case. Both cases were eventually compounded and the learned Magistrate directed that the gun and cartridges be returned to the petitioner.
The petitioner had misplaced the licence and applied to the licensing authority for a duplicate licence. The licensing authority obtained a report dated 12 February 1964 from Deputy Magistrate Shri S.K. Gupta Roy (Officer-in-Charge of the Arms Department). The report stated that the licencee did not appear suitable to possess a firearm, recommended rejection of the duplicate licence application, and recommended revocation of the licence, recounting findings that the petitioner had formed an unlawful assembly, forcibly entered the complainant's house to take straw, and there fired two rounds causing injury to three persons.
The licensing authority endorsed the report with the words "as proposed" and thereby revoked the licence. That revocation order was challenged by the petitioner in a writ proceeding registered as Civil Rule No. 673(W) of 1964. A learned single Judge of the Court (judgment dated 25 January 1968) rejected the petitioner's challenge that the endorsement did not constitute a valid order because the licensing authority had not recorded his own reasons. The single Judge relied on the principle that approval of a delegate's reasons can amount to adoption of those reasons (citing Godha Singh v. D.M Ferozepur).
The present matter is an appeal under clause 15 of the Letters Patent from that single Judge's judgment. The principal legal point raised on this appeal is whether a licence-holder must be given a prior notice to show cause before revocation of a gun licence under S. 17(3) of the Arms Act, 1959.
Legal Issues Presented
- Whether a notice to show cause must be given by the licensing authority prior to revoking a gun licence under Section 17(3) of the Arms Act, 1959 (i.e., whether principles of natural justice require prior notice before revocation).
Arguments of the Parties
Appellant's Arguments (Mr. Dutt)
- An order of revocation under S. 17(3) takes away a legal right of the licensee to hold a firearm; therefore, principles of natural justice require that the licensee be given a show cause notice referring to the reasons for proposed revocation prior to the order being made.
Respondent's Arguments (Mr. Banerjee)
- The licensing authority's power under S. 17(3) is administrative in nature, and therefore there is no scope for application of principles of natural justice in the form contended by the appellant.
- On the scheme of the Arms Act, any requirement of a prior show cause notice is ruled out by the statutory provisions and the procedure the legislature has prescribed.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Godha Singh v. D.M Ferozepur, AIR 1956 Punjab 33 | The proposition that a superior authority's approval of reasons given in a delegate's report can amount to applying the mind and adopting those reasons (i.e., approval is an acknowledged mode of discharge). | The single Judge's ruling that the licensing authority had applied his mind by approving the Deputy Magistrate's report was supported by this authority; the bench in appeal agreed that the licensing authority had accepted and approved Shri Roy's recommendation. |
| Union of India v. J.N. Sinha, AIR 1971 SC 43 | Explains the scope of natural justice: rules of natural justice supplement but do not supplant statutory provisions; they apply where law does not otherwise cover the area; if statute excludes natural justice expressly or by necessary implication, the court cannot read it in. | The court applied this principle to analyze whether the Arms Act's scheme permits reading in a requirement of prior show cause notice; it held that because the statute provides its own scheme (recording reasons, furnishing reasons on demand, and appellate hearing with opportunity to be heard), the statute addresses natural justice concerns and excludes the requirement of a prior show cause notice. |
Court's Reasoning and Analysis
The court proceeded through a structured analysis:
- Recognition of general principle: The court acknowledged that there is divergence of view on whether revocation under S. 17(3) is judicial or administrative, but recalled the settled Supreme Court principle that principles of natural justice may apply even in the administrative field where an administrative order abridges or takes away a citizen's right.
- Application of the Sinha principle: The court invoked Union of India v. J.N. Sinha to emphasize that rules of natural justice operate only in areas not covered by valid statutory law; if statutory provisions either specifically or by necessary implication exclude natural justice rules, courts cannot import those rules.
- Examination of the statutory scheme (Sections 17 and 18): The court examined S. 17 and S. 18 together. It observed that the statute does not provide for a prior show cause notice in the procedure for suspension or revocation under S. 17(3). Section 18(5) (proviso) does, however, provide that an appellant must be given a reasonable opportunity of being heard before the appeal is disposed of.
- Legislative purpose and practical considerations: The court noted the legislature's likely intention in omitting a prior notice requirement — the licence concerns possession of a dangerous weapon and there may be circumstances requiring immediate suspension or revocation without delay for prior notice. Thus, omission of a prior-notice requirement appears deliberate and justified by public-safety considerations.
- Statutory safeguards taken as satisfying natural justice: Although there is no prior notice requirement, the court found that the Act incorporates safeguards that address the concerns of natural justice: the grounds on which orders may be made are specified, the licensing authority is required to record reasons for the order, the holder may be furnished a brief statement of reasons on demand, and Section 18 provides a right of appeal with procedures ensuring a reasonable opportunity to be heard at the appellate stage.
- Conclusion from statutory scheme: Because the statute itself provides these safeguards and a remedial appellate process where opportunity to be heard is expressly provided, the court held that the statute "incorporates in its own ways the requirement of the principles of natural justice" and that no additional implication of a mandatory prior show cause notice should be read into S. 17(3).
- Result on the point raised in the appeal: The court therefore rejected the appellant's contention that a prior show cause notice was required and overruled that point raised in the appeal.
Holding and Implications
Holding:
APPEAL DISMISSED. The court dismissed the appeal and upheld the licensing authority's revocation (by endorsement "as proposed") of the licence. There will be no order as to costs. The court also refused the appellant's request for a certificate under Article 133(1) of the Constitution for leave to appeal to the Supreme Court.
Implications:
- Direct effect on the parties: The revocation of the appellant's gun licence, as endorsed by the licensing authority and challenged in the writ proceeding, stands upheld. The appellant's prayer for a certificate to appeal to the Supreme Court was refused.
- On broader legal practice: The court held that the statutory scheme of the Arms Act (Ss. 17 and 18) supplies procedural safeguards (recording reasons, furnishing reasons on demand, and appellate opportunity to be heard) that satisfy the requirements of natural justice in the context of revocation or suspension of firearm licences; consequently, the court declined to read into the Act an additional requirement of a prior show cause notice before revocation.
- Precedential note: The opinion does not purport to set aside established principles but applies them to the statutory scheme. The decision resolves the point in this case by reference to the statutory provisions and the authorities cited; the opinion contains no separate declaration that it creates a new rule of law beyond the application described.
Judges: Anil K. Sen, J. (authoring opinion); B.C. Chakrabarti, J. (concurring).
1. Anil K. Sen, J.:— This is an appeal under clause 15 of the Letters Patent. The appeal is directed against the judgment and order dated January 25, 1968, passed by a learned single Judge of this court in a writ proceeding which was registered as Civil Rule No. 673(W) of 1964. The point involved in this appeal is one of law and the point is whether a notice to show cause is necessary to be given by the licensing authority prior to revoking a gun licence under S. 17(3) of the Arms Act, 1959 (hereinafter referred to as the said Act). Such a point was not raised at the trial but has been raised in this appeal as a point of law by Mr. Dutt appearing in support of this appeal. The undisputed facts may be set out very briefly as follows.
2. The petitioner (appellant before us) was the holder of a gun licence bearing No. 2372 HH. In May 1962 over a certain incident a criminal case was started against the petitioner by a neighbour Byomkesh Chakrabarti who having seized the petitioner's gun deposited the same with the local police station along with some fired cartridges and some live cartridges. There was a counter case by the petitioner against the said Byomkesh. Eventually both the casts were compounded and the learned Magistrate directed the gun and the cartidges to be returned to the petitioner. The licence having been misplaced the petitioner applied before the licensing authority for issue of a duplicate licence. The licensing authority called for a report from a Deputy Magistrate Shri S.K Gupta Roy who was then the Officer-in-Charge of the Arms Department under the licensing authority. Shri Roy submitted a report on February 12, 1964, to the effect that the licencee does not appear to be a suitable person for possessing a fire-arm, and as such, his prayer for issue of a duplicate licence was recommended to be rejected along with a further recommendation that his licence be revoked. He recommedded as such as he found that there is truth in the complaint made against the petitioner to the effect that he being armed with the gun formed an unlawful assembly and forcibly entered into the house of the complainant Byomkesh to take away the straw kept in his yard and there fired two rounds causing injury to three persons. On consideration of the report so submitted, the licensing authority revoked the licence by making an endorsement on the report “as proposed”. That was the order which was challenged in the aforesaid writ proceeding. Before the learned trial judge the only point that was raised was to the effect that the licensing authority not having himself recorded the order of revocation with his own reasons a mere endorsement of approval of the recommendation of Shri Roy does not constitute a valid order of revocation under S. 17 of the said Act. The learned trial judge, however, overruled the point so raised when he observed:
“Where the order of the Magistrate indicates his approval of the reasons given in the report which is made apart of his order it cannot be said that he did not apply his mind to the matter; on the other hand it shows that he had adopted the reasons given by his delegate (vide Godha Singh v. D.M Ferozepur, AIR 1956 Punjab 33). Approve is an acknowledged mode of discharge where the material upon which the approval takes place is otherwise valid.”
3. Mr. Dutt appearing on behalf of the appellant in his usual fairness has not challenged the correctness of the decision of the learned trial judge on the aforesaid issue and we too fully agree with the learned trial judge since reading the order of the licensing authority as a whole we find that having considered the reasons given by Shri Roy in support of his recommendation the licensing authority agreed thereto when he accepted and approved the recommendation for revocation of the licence.
4. Mr. Dutt, however, has raised a new point before us in this appeal. He has contended that an order of revocation under S. 17(3) necessarily takes away the legal right of the licensee to hold the fire arm and, therefore any order of revocation necessarily pre-supposes that the licensee must be given a show cause notice with reference to the reasons for which the licence is proposed to be revoked. According to Mr. Dutt, in such a case principles of natural justice require such a notice to be given. Mr. Banerjee appearing on behalf of the respondent, on the other hand, has strongly contested the point thus raised by Mr. Dutt and it has been contended by him that an order under S. 17(3)of the said Act, being an administrative act there is no scope for application of the principles of natural justice and in any event on the scheme of the provisions of the Act any requirement of a prior notice to show cause is ruled out.
5. We have carefully considered the rival contentions put forward before us. Though there exists some amount of divergence of views on the point as to whether an order of revocation under S. 17(3) of the Act is a judicial act or an administrative act, it is, however now well settled by the Supreme Court that even in the administrative field application of the principles of natural justice is called for where the administrative order either abridges or takes away the right of a citizen. Such being the position, we are unable to accept the contention of Mr. Banerjee that the order impugned being an administrative one there is no scope for application of the principles of natural justice. But in our view the other point raised by Mr. Banerjee is of some substance. In considering the scope and applicability of the principles of natural justice, the Supreme Court in the case of Union of India v. J.N Sinha AIR 1971 SC 43 pointed out:
“Rules of natural justice are not embodied rules, nor can they be elavated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If statutory provisions can be read consistently with the principles of natural justice, the court should do so but if the statutory provision either specifically or by necessary implication excludes application of any rule of natural justice then the court cannot signore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon express words of the provision conferring the power in the nature of the power concerned, the principles for which it is conferred and the effect of the exercise of that power.”
6. It is only in the aforesaid light that we should consider whether we should incorporate a requirement of a prior show cause notice into the provisions of the said Act in the matter of making of an order under S. 17(3) by the licensing authority. Section 17 and S. 18 makes a detailed scheme as to how such an order is to be made and what is the remedy of a person against whom such an order is made. Though S. 18(5) in the proviso incorporates a mandatory provision that the appellant is to be given a reasonable opportunity of being heard before his appeal is disposed of, no such provision is made by the legislature in providing the procedure for revocation or suspension. Nor is there any provision requiring issue of any prior show cause notice for the purpose of making an order of suspension or revocation under S. 17(3). On the scheme of Ss. 17 and 18 omission of such a provision appears to be the intention of the legislature and that again for obvious reasons. The licence to be suspended or revoked is with regard to possession of a dangerous weapon, namely, a fire arm. Situation may arise where the licence may be required to be suspended or revoked without any delay whatsoever. But nonetheless the legislature is quite conscious of the position that such an order would affect the holder of the licence and would deprive him of possession and use of an useful instrument which may have its necessity for his own defence. Being conscious of such a consequence the legislature has incorporated an appropriate safeguard to ensure proper use of the powers when the legislature has specified the grounds on which such an order could be made having vested the powers in responsible authority and further requiring such an authority to record his reasons for the order and further requiring him to furnish to the holder of the licence on demand a brief statement of the reasons for the order. Section 18 then provides for a right of a appeal by the holder of the licence and further provides the detailed procedure for affording all reasonable opportunity to the holder of the licence to dispute the correctness of the order in the appeal. On the scheme of the Act, we are unable to hold that in the absence of any prior show cause notice, the licence holder is deprived of a reasonable opportunity to support his licence and oppose its suspension or revocation. The legislature made a scheme ensuring giving of such an opportunity at a stage following the suspension or or revocation though not prior thereto obviously because the legislature was conscious of the position that the licence being in respect of a dangerous weapon its suspension or revocation may be an immediate necessity which cannot afford a confronted adjudication upon a prior notice to the licence holder. Since in our view the statute itself incorporates in its own ways the requirement of the principles of natural justice, it rules out by necessity implication any further application of such a principle in the manner contended for by Mr. Dutt. In this view, the only point raised in support of this appeal fails and is overruled.
7. The appeal, therefore, fails and is dismissed. There will be no order as to costs. Mr. Dasgupta, learned advocate for the appellant, prays for a certificate under Article 133(1) of the Constitution for leave to appeal to the Supreme Court. But, in our view, it is not fit case for for issue of a certificate and as such the prayer is refused.
8. B.C Chakrabarti, J.:— I agree.
Appeal dismissed.
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