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Kishore Singh v. State Of Rajasthan And Another Opposite Party.
Judgment Summary — Kishore Singh v. State of Rajasthan (summary of the provided opinion)
Factual and Procedural Background
The applicant, Kishore Singh, possessed a rifle and a 12-bore gun and held licences for both. On 19-5-1953 the District Magistrate of Nagaur cancelled both licences under Section 18 of the Arms Act. The cancellation was made, according to the applicant, without any prior hearing, without opportunity to show cause and without notice of the proposed order. The applicant sought redress from the Commissioner, Jodhpur, without success, and subsequently applied to the High Court for issuance of an appropriate writ, direction or order after quashing the order passed under the Arms Act. The State opposed the application, contending (inter alia) that an enquiry had been made and the applicant interrogated, but that the law did not require issuance of a prior show-cause notice before cancellation under Section 18; that the licensing function was a purely executive discretion; and that principles of natural justice did not apply to purely executive action taken in the interest of public peace and security.
Legal Issues Presented
- Whether the applicant has any right enabling him to maintain a writ petition under Article 226 (i.e., whether the licence/possession of arms is a right protected by Part III of the Constitution or merely a revocable privilege).
- Whether an order cancelling a licence under Section 18(a) of the Arms Act is a quasi‑judicial order subject to judicial review by certiorari, or an executive/administrative order.
- Whether, notwithstanding the statutory silence, principles of natural justice require that the licence‑holder be given a hearing before cancellation under Section 18(a).
- Whether the District Magistrate complied with the requirements of Section 18(a) (i.e., recording reasons in writing and cancellation for security of public peace) and, if so, whether absence of a prior hearing invalidates the order.
Arguments of the Parties
Applicant's Arguments
- The applicant held licences for the rifle and 12-bore gun and these licences were cancelled by the District Magistrate without any hearing or notice.
- The cancellation was in disregard of the principles of natural justice and so the order should be quashed.
- He relied on the principle that no person should be dealt with to his material disadvantage without fair and adequate notice and an opportunity to meet allegations against him.
State's Arguments
- An enquiry into the applicant's conduct was made and the applicant was interrogated during that enquiry.
- The law (Section 18) did not require issuance of any notice to show cause before cancellation of a licence, and therefore none was issued.
- The principles of natural justice do not apply to matters of a purely executive nature, particularly where action is taken for public peace and security.
- The grant, refusal or cancellation of licences is a purely executive act within the discretion of the appropriate authority and thus is not open to challenge on the grounds urged by the applicant if exercised within the statute.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| The State Of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 | High Court's power to issue writs under Article 226 is founded on the existence of a right under Part III of the Constitution; existence of the right is foundational to exercise of jurisdiction. | Used to frame and decide the initial question whether the applicant possessed a right (so as to invoke Article 226) rather than merely a revocable privilege. |
| Nakkuda Ali v. M.F. De S. Jayaratne, 54 Cal WN 883 (PC) | Controller's revocation of a licence under the Regulations was treated as executive withdrawal of a privilege; where regulation provided no procedure, no notice or inquiry was required and Privy Council refused to interfere. | Relied upon by the State to support the proposition that cancellation was executive and that no hearing was required; the Court referred to it when explaining circumstances where statute grants executive power without procedural requirements. |
| Narasimha Reddy v. District Magistrate, Cuddapah, AIR 1953 Mad 476 | Held that a gun is movable property within Article 19(1)(f), and a citizen is entitled to acquire, hold and dispose of it subject to statutory restrictions under the Arms Act and rules. | Cited to conclude that the applicant has a right to acquire, hold and dispose of the gun and therefore has standing to apply under Article 226; the Arms Act is a restriction on a constitutional right, not merely a conferral of a privilege. |
| Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222 | Laid down a four‑condition test distinguishing judicial/quasi‑judicial from executive/administrative orders (presence of a body; legal authority; authority to determine rights; and duty to act judicially). | Applied to analyze Section 18(a); Court held S.18(a) lacks the duty to act judicially and thus orders under it are administrative/executive rather than judicial/quasi‑judicial and not reviewable by certiorari on that basis. |
| Beni Chand v. District Magistrate, Banda, AIR 1953 All 476 | Section 18(a) requires that reasons be recorded and that the order show it was passed because necessary for the security of public peace; absence of those ingredients renders an order without jurisdiction. | Distinguished: in the present case the District Magistrate complied with S.18(a) by recording reasons and stating the public‑peace basis, so Beni Chand did not dictate quashing here. |
| Bhikulal Balbhadrasao v. State of Madhya Pradesh, AIR 1953 Nag 125 | In context of removal under Municipalities Act, Court held that even where statute did not expressly require a hearing, it would be consonant with natural justice to give a hearing before serious action. | Cited by applicant to support natural justice argument; Court noted it supported applicant's position but declined to adopt it as a rule requiring hearing in all administrative cancellations where statute is complied with. |
| Westminster Corporation v. London and North Western Railway Co., 1905 AC 426 | Where Legislature confers discretion to a body, Courts cannot interfere with mode of exercising that discretion provided the act is within the powers conferred; public body must act within authority, in good faith and reasonably. | Cited to support proposition that Courts should not contest statutory discretion if the statutory power has been properly exercised and not exceeded or abused. |
| Madho Ram v. State, A.I.R. 1953 Raj. 149 | Authority suggesting that Courts should not introduce principles of natural justice into statutes that are silent on such procedure where Legislature has omitted them. | Referred to when explaining that the Court should not supply a hearing requirement into Section 18(a) where the statute does not provide for one and the authority acted within statutory powers. |
Court's Reasoning and Analysis
The Court proceeded in a stepwise fashion. First, it addressed whether the applicant had a right enabling invocation of Article 226. Relying on Narasimha Reddy, the Court treated a gun as movable property falling within Article 19(1)(f) (a constitutional right to acquire, hold and dispose of property), and held that the Arms Act imposes restrictions on that right rather than being merely a statutory privilege. Consequently, the applicant had a right and could maintain a petition under Article 226.
The Court then examined the nature of orders under Section 18(a) of the Arms Act. It quoted the text of Section 18(a), which permits cancellation or suspension of any licence by the officer who granted it or by certain authorities "when, for reasons to be recorded in writing, such officer, authority, Magistrate or Commissioner deems it necessary for the security of the public peace." The applicant argued that because the cancelling authority must record reasons it thereby becomes quasi‑judicial and its orders should be subject to certiorari. The Court rejected this submission.
To distinguish executive/administrative from judicial/quasi‑judicial functions the Court relied on the four‑condition test from Province of Bombay v. Khushaldas S. Advani. It observed that although many conditions may be present in administrative orders, the key distinguishing factor is a duty to act judicially, which is absent in Section 18(a). Thus orders under Section 18(a) are administrative/executive.
The Court then turned to the core contention based on natural justice — that even if S.18(a) is administrative, principles of natural justice require notice and hearing before cancellation. The Court acknowledged authorities that supported hearing in some contexts (for example, Bhikulal Balbhadrasao), but cautioned against extending that principle where the statute does not provide for a hearing and the authority has acted within the statute. The Court set out limiting principles for judicial interference with statutory discretionary powers: (i) the authority must act strictly within statutory limits and not for collateral purposes; (ii) mandatory statutory procedure must be observed; and (iii) the basic facts on which the power is based must exist (unless legislature vested that determination in the authority).
The Court accepted that the Legislature may intentionally omit a hearing requirement in a statute like the Arms Act because in some situations prior notice could frustrate the object of immediate action (for example, urgent public‑safety situations). It observed that Section 18(a) imposes only two express requirements: recording reasons in writing and cancelling for security of public peace. Because Section 18(a) does not require a hearing, and because the District Magistrate had recorded reasons and stated the public‑peace basis, the Court found no statutory non‑compliance, no abuse or collateral purpose, and hence no ground to invalidate the cancellation for want of a prior hearing.
The Court also noted that in practice the licensee had been questioned and his conduct investigated, though not specifically asked to show cause. The Court relied on precedents (including Nakkuda Ali) to explain that where statute confers executive power without procedural requirements, failure to provide a hearing does not necessarily offend "essentials that justice would require" so long as statutory requirements are complied with.
Holding and Implications
Holding: The application is DISMISSED. The Court held that (i) the applicant possesses a right under Article 19(1)(f) to hold a gun and therefore could invoke Article 226; (ii) orders under Section 18(a) of the Arms Act are administrative/executive in character (not quasi‑judicial) because there is no duty to act judicially; and (iii) because Section 18(a) does not require a prior hearing and the District Magistrate had complied with the statutory conditions (reasons recorded and cancellation for public peace), the absence of a prior hearing did not invalidate the cancellation.
Implications / Consequences:
- Direct effect on the parties: the applicant's challenge to the cancellation was dismissed and the State was awarded costs; the cancellation was not quashed by the Court.
- On procedure: the Court refrained from importing a general requirement of prior personal hearing into Section 18(a) of the Arms Act where the statute is silent and the authority has acted within the four‑corners of the statute.
- The opinion applies existing principles distinguishing judicial/quasi‑judicial from administrative action and emphasizes that Courts should not read into statutory schemes requirements of natural justice where the legislature has omitted them and the statutory conditions have been satisfied. The Court did not purport to lay down a broader new precedent beyond applying those established principles to Section 18(a).
Order in the opinion: "Application dismissed." (Costs to the State.)
Wanchoo, C.J:— This is an application by Kishore Singh for the issue of an appropriate writ, direction or order against the State of Rajasthan, and the District Magistrate of Nagaur, after quashing an order under the Arms Act.
2. The case of the applicant is that he possessed a rifle and a 12 bore gun, and held licenses for the same under the law. On 19-5-1953, the District Magistrate of Nagaur ordered, under Section 18 of the Arms Act, that the two licenses be cancelled with-immediate effect. This order was passed without giving any hearing whatsoever to the applicant, and without giving him an opportunity to appear and show cause against such an order being passed against him, and without informing him in any way of the proposed order. The applicant made an approach to the Commissioner, Jodhpur, in this connection, but got no redress. The applicant relied on the principles of natural justice that no man shall be dealt with by any authority to his material disadvantage without fair and adequate notice being given to him of what is alleged to be done to his detriment and without giving him an opportunity of meeting the charge against him. As the District Magistrate passed the order in disregard of the principles of natural justice, the order should be quashed. The application has been opposed on behalf of the State. It is urged that an enquiry into the conduct of the petitioner was made, and in the course of that enquiry the applicant was interrogated; but the law did not require that any notice should be issued to the applicant asking him to show cause why the license should not be cancelled under S. 18, and therefore that was not done. It was further urged that the principles of natural justice, on which the applicant relied did not apply to matter of a purely executive nature, specially when action has to be taken in the interest of public peace and security. It was further urged that the question of giving or refusing or cancelling licenses was a purely executive act within the discretion of the appropriate authorities, and therefore the order cancelling the licenses was not open to challenge on any of the grounds set forth in the application.
3. The first question, that calls for consideration in this case, is whether there is any right, in the applicant to enable him to maintain a writ petition. In the — ‘The State Of Orissa v. Madan Gopal Rungta’, AIR 1952 SC 12 (A), it was held that the issuing of writs or directions by the High Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution has been infringed. It can also issue writs or give similar directions for any other purpose. But, in any case, the existence of the right is the foundation of the exercise of jurisdiction of the Court under this article. It is urged on behalf of the State that the applicant has no right, and the grant of a license to him was a mere privilege which could be withdrawn at any moment without notice. Reliance in this connection was placed on — ‘Nakkuda Ali v. M.F De S. Jayaratne’, 54 Cal WN 883 (PC) (B). In that case, the Controller of Textiles, acting under Regulation 62 of Defence (Control of Textiles) Regulations of Ceylon, cancelled a license for carrying on business in textiles; it was held that the Controller was merely taking executive action to withdraw a privilege. It was further held that apart, no procedure was laid down by the Regulation for securing that the license-holder was to have notice of the Controller's intention to revoke the license, or that there must be any enquiry, public or private, before the Controller acts. On this view their Lordships of the Privy Council refused to interfere. We shall deal with the question whether it was necessary to hear the applicant in any form before cancelling the license later. The first question is whether the applicant has any right to hold and possess a gun whether such holding or possession is only a privilege afforded under the Arms Act.
4. The view taken by their Lordships of the Privy Council as to privilege would, if we may say so with respect, not apply to present conditions, because the Constitution now gives a fundamental right to every citizen to acquire, hold and dispose of property under Article 19(1)(f). It cannot be doubted that a gun is movable property, and as such the applicant would have a right to acquire, hold or dispose of a gun subject to such restrictions as may be imposed by law. The Arms Act now must be treated as restricting the right to acquire, hold and dispose of guns, and not an Act conferring a privilege on the person to whom the licene under the Act is granted. In — ‘Narasimha Reddy v. District Magistrate, Cuddapah’, AIR 1953 Mad 476 (C), it was held that a gun was property within the meaning of Article 19(1)(f), and every citizen was entitled to acquire, hold and dispose it of, subject to the restrictions under the Arms Act and the rules. The applicant, therefore, has a right to apply to this Court under Article 226 and we shall have to see whether the provisions of the Arms Act and the rules made thereunder have been complied with in this case.
5. It has not been urged on behalf of the applicant that the restrictions imposed by the Arms Act and the rules made thereunder are unreasonable. The contention on his behalf is that accepting S. 18 to be valid it is necessary before any arms licence is cancelled that the holder thereof should be given a hearing in consonance with the principles of natural justice. It was also urged that the order passed by the District Magistrate cancelling the licence was a quasi judicial order and was open to review by a writ of certiorari. Section 18(a), with which we are concerned, is as follows;
“Any license may be cancelled or suspended by the officer by whom the same was granted, or by any authority to which he may be subordinate, or by any Magistrate of a district or Commissioner of Police in a presidency town, within the local limits of whose jurisdiction the holder of such license may be, when, for reasons to be recorded in writing, such officer, authority, Magistrate or Commissioner deems it necessary for the security of the public peace to cancel or suspend such license.”
6. It was urged that as the person suspending the license has to give reasons for his action, he became a quasi-judicial tribunal whose orders were liable to be quashed under a writ of certiorari. We are, however, of opinion that this is not so, and the order passed under S. 18 is a purely executive or administrative order. A distinction between judicial and quasi-judicial order on the one side, and executive and administrative orders on the other was laid down in — ‘Province of Bombay v. Khushaldas S. Advani’, AIR 1950 SC 222 (D), and the following four conditions were held to be necessary before an order became a judicial order—
(i) there should be a body of persons;
(ii) this body of persons should have legal authority;
(iii) the legal authority should be to determine questions affecting rights of subjects or citizens;
(iv) this body of persons should have the duty to act judicially.
7. Now it is clear that three of these conditions would be present in most orders of an executive or administrative nature. It is only the fourth condition which will not be present in the case of executive orders, namely there should be a duty to act judicially. It is the presence of this condition which differentiates an executive order from a judicial or quasi-judicial order.
8. A perusal of S. 18(a) shows that there is no duty cast on the authority cancelling a license to act judicially. The order under S. 18(a) is not open to appeal or revision. It is enough if the authority concerned deems it necessary for the security of the public peace to cancel a license and in such a case all that it has got to do is to reduce the order into writing giving reasons for the cancellation. Such an order, in our opinion, is only an administrative or executive order and is not open to review by a writ of certiorari.
9. Learned counsel then urges that our powers under Article 226 are not confined to the well-known writs, and we can in an appropriate case give orders and directions in the interest of justice and for the protection of fundamental rights. He further urges that the applicant was never given a hearing of any kind when it was decided to cancel his licenses, and it is against principles of natural justice that such an order should be passed against the applicant without giving him any kind of hearing whatsoever. It is, therefore, urged that we should quash the order in these peculiar circumstances. Reliance is placed on certain cases where the High Courts have interfered under Article 226 in circumstances more or less similar. In — ‘AIR 1953 Mad 476 (C)’ already cited, a license had been refused. Rule 43 of the Rules in force in Madras provided for an appeal from the order refusing the grant or renewal of a license. The impugned order in that case was in these words—“The gun license applied for will not be granted.” No reasons were given for the refusal, and it was held that as there was provision for an appeal, the order was bad. It was, therefore, set aside, and the District Magistrate was directed to dispose of the application according to law. It is not clear from the judgment whether the appeal provided in Rule 43 had been made or not.
10. It may, however, be pointed out that the decision in this case was based entirely on the provisions of Rule 43, and has, therefore not much relevance on the facts of the case before us.
11. The next case, on which reliance is placed, is — ‘Beni Chand v. District Magistrate, Banda’, AIR 1953 All 476 (E). In that case, it was held that Section 18(a) of the Arms Act, required that the authority suspending or cancelling a license must himself record the reasons for doing so, and it should appear from the order that it was passed because it was necessary for the security of the public peace to do so. Where none of the two essential ingredients mentioned in the section were found in the order, it was without jurisdiction and must be quashed. This case again is not directly applicable to the facts before us, because the District Magistrate has, in this case, complied with the conditions mentioned in S. 18(a) and has given reasons for the order, and says that the license is being cancelled for the security of the public peace.
12. The main grievance of the applicant is that he was not heard before the order cancelling his licenses was passed, and that this is against the principles of natural justice, and this Court should, therefore, set aside the order. It may be pointed out that Section 18(a) of the Arms Act, does not require that the authority cancelling the license should give a hearing to the person whose license is cancelled. It is, however, urged that even though the section is silent on the point, principles of natural justice require that even where the order is an administrative order, the person concerned should be heard before the order is passed against him. Reliance in this connection is placed on — ‘Bhikulal Balbhadrasao v. State of Madhya Pradesh’, AIR 1953 Nag 125 (F). That is a case under the Municipalities Act, and the President of the Municipality was removed from office of the President. Before the removal, the State Government had asked the President to show cause why he should not be treated as disqualified under the provisions of the law, and the President had submitted an explanation. The State Government, after consideration of that explanation, held that disqualification had been incurred, and the President ceased to be the President of the Municipality, The learned Judges held that though the applicant had been asked to give an explanation, as probably provided by the law, there was still a case for interference as the State Government had not given a hearing to the President before passing their order. The learned Judges added that there was no express provision in the Municipalities Act, which required such a hearing, but thought that it would be in consonance with the principles of natural justice to give a hearing to the person before a serious action of this kind was taken against him.
13. This case certainly supports the view urged by learned counsel for the applicant. But, with all respect to the learned Judges, we feel that it is going too far to lay down that, even where the provisions of the statute have been complied with before an administrative order is passed, the principles of natural justice require that there should be a personal hearing even before an administrative order is passed in accordance with the provisions of a statute. There are well-defined limits within which the exercise of a discretionary power vested by the statute in an administrative authority can be disturbed by the Courts. These principles are—
(i) the authority for the exercise of the power depends on its being strictly within the limits of the statute, and the Court would not allow the power to be exercised for any collateral purpose,
(ii) there must be observance of the mandatory, statutory procedure, and
(iii) there is existence of the basic facts with reference to which the power is vested, provided that the Legislature does not vest the determination of the basic facts in the authority itself.
14. In — ‘Westminster Corporation v. London and North Western Railway Co.’, 1905 AC 426 (G) at p. 427 it was observed as follows:
“Assuming the thing done to be within the discretion of the local authority, no Court has power to interfere with the mode in which it has exercised it. Where the Legislature has confided the power to a particular body, with a discretion how it is to be used, it is beyond the power of any Court to contest that discretion. Of course, this assumes that the thing done is the thing which the Legislature has authorized.”
15. In the same case, Lord Macnaghten observed as follows at p. 430—
“It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.”
16. Examining Section 18(a) of the Arms Act, we find that discretion is vested in the District Magistrate, etc. to cancel a license subject only to two conditions (i) that reasons for the cancellation should be recorded in writing, and (ii) that the cancellation should take place for the security of the public peace. There is no provision in S. 18 for giving of any hearing to the person whose license is cancelled. It may be that the Legislature did not provide for giving any notice in a case of this kind, for it is possible that cases may arise in which giving of notice may frustrate the object with which S. 18(a) was enacted. Suppose the District Magistrate receives information that arms in the possession of a licensee are going to be used that very night in the commission of a dacoity or murder. He has obviously no time to call for an explanation from the licensee and give him a hearing before cancelling the license, and it is necessary in order that serious crime be prevented that the license should be immediately cancelled and the arms taken possession of. May be that these reasons might have impelled the Legislature, when enacting S. 18(a), not to provide for any notice of hearing to the licensee.
17. Where, therefore, an authority exercising administrative powers under a statute acts within the four-corners of the statute, and does not exceed or abuse its powers, it seems to us unnecessary to introduce into the statute the principles of natural justice. After all, the Legislature is not unaware of the principles of natural justice, and if in a particular type of statute it is thought unnecessary to provide for notice of hearing in an administrative matter, the Courts should not introduce that in the law on the basis of principles of natural justice: reference may be made to — ‘Madho Ram v. State’, A.I.R 1953 Raj. 149 (H) in this connection. Where, therefore, as in this case, the District Magistrate has acted within the powers conferred on him under Section 18(a), and has complied fully with the provisions of the statute, the fact that he did not give any notice to the applicant before cancelling the license would not invalidate the order because the statute does not provide for any notice of hearing. It may perhaps be advisable, before such action is taken, that the licensee should be heard, and we believe that generally licensees are heard before licenses are cancelled. In this case also, the licensee was questioned and his conduct, which led to the cancellation of the license, was investigated by the District Magistrate, though the applicant was not specifically asked to show cause why his license should not be cancelled.
18. As, however, the statute does not specifically provide for hearing before cancellation of the license, the absence of a hearing would not invalidate the order under the circumstances. We may in this connection refer to the observations in — ‘54 Cal WN 883 (PC) (B)’ at p. 890—
“No procedure is laid down by the Regulation for securing that the license-holder is to have notice of the Controller's intention to revoke the license, or that there must be any inquiry, public or private, before the Controller acts. The license-holder has no right to appeal to the Controller or from the Controller.”
19. It was, therefore, held in that case that the power in the Controller was an executive power. Another observation at p. 892 is as follows:
“Nor did the procedure adopted fail to give the appellant the essentials that justice would require, assuming the respondent to have been under a duty to act judicially.”
20. These observations would show that where there is a duty to act judicially, the principles of natural justice would normally apply. Where, however, the action of an executive authority is under the provisions of a statute, all that is required is that the provisions of the statute should be strictly complied with, and the procedure provided in the statute should be followed, and there should be no exceeding or abuse of the authority for any collateral purpose. In the case before us, the procedure provided in the statute has been followed, and there is no exceeding of the power conferred by the statute, and no abuse of it for any collateral purpose. Under these circumstances, the mere fact that hearing was not given when no such hearing is provided by the statute could not vitiate the order in question. We may refer to S. 18(b) which provides for cancellation of the license by any Judge or Magistrate before whom the holder of such license is convicted of an offence against this Act, or against the rules made under this Act. There is no provision in this part of the section also for any notice to the licensee to show cause why a license should not be cancelled. The power is given to the Judge or Magistrate to cancel the license if he convicts the licensee of an offence under the Act or under the rules framed under the Act. It can hardly be contended that hearing was necessary before action is taken under S. 18(b), and it seems that the Legislature intended, in view of the peculiar nature of this statute, that there should be no hearing for the cancellation.
21. We, therefore, dismiss the application with costs to the State.
V.S.B
22. Application dismissed.
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