Gujarat High Court
Jamal Akhtar Salimuddin Rajput vs State Of Gujarat on 2 February, 2021
Bench: Vipul M. Pancholi
C/SCA/1885/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1885 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JAMAL AKHTAR SALIMUDDIN RAJPUT
Versus
STATE OF GUJARAT
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Appearance:
MR A R KADRI(7330) for the Petitioner(s) No. 1
MR HARDIK D MEHTA, ASSISTANT GOVERNMENT PLEADER/PP(99) for
the Respondent(s) No. 1-2
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 02/02/2021
ORAL JUDGMENT
1. Rule. Learned Assistant Government Pleader
Mr.Hardik D. Mehta waives service of notice of Rule
for the respondents.
2. Looking to the limited issue involved in the
present petition and with the consent of the learned
C/SCA/1885/2021 JUDGMENT
advocates appearing for the parties, this petition is
heard finally at admission stage.
3. This petition is filed under Articles 226 and
227 of the Constitution of India, in which, the
petitioner has challenged the order dated 22.07.2020
passed by the Additional Secretary, Home Department,
i.e. respondent No.1 herein in HVD/1020/202/M whereby
the application for condonation of delay of 102 days
in filing the appeal came to be dismissed.
4. Heard learned advocate Mr.A.R. Kadri for the
petitioner and learned Assistant Government Pleader
Mr.Hardik D. Mehta for the respondents.
5. Learned advocate for the petitioner submitted
that the petitioner filed an application for grant of
licence under the Arms Act, 1959 ("the Act" for
short) before respondent No.2 on 24.02.2019.
Respondent No.2 rejected the said application vide
order dated 10.02.2020. Aggrieved by the said order,
the petitioner filed an appeal under the provisions
of Section 18 of the Act before respondent No.1. As
there was a delay of 102 days in filing the appeal,
the petitioner filed a separate application for
condonation of delay on 12.06.2020. Copy of the said
application is placed on record at Page10 of the
compilation. It is the grievance of the petitioner
that without affording an opportunity of personal
hearing, respondent No.1 rejected the appeal filed by
the petitioner itself on the ground that there was a
C/SCA/1885/2021 JUDGMENT
delay of 102 days in filing the appeal. It is
submitted that separate application filed by the
petitioner for condonation of delay was not at all
considered by respondent No.1 and the impugned order
has been passed without giving an opportunity of
personal hearing to the petitioner.
5.1 At this stage, learned advocate for the
petitioner has referred the provisions contained in
Section 18 of the Act and, thereafter, pointed out
that powers are given to appellate authority by way
of proviso of subsection (2) of Section 18 of the
Act that if the appellant satisfies the authority
that he had sufficient cause for not preferring the
appeal within stipulated time, delay in filing the
appeal can be condoned and appeal can be admitted
after expiry of limitation period. Learned advocate
for the petitioner, therefore, urged that the
impugned order be quashed and set aside and the
matter be remanded back to respondent No.1 for
deciding the application for condonation of delay on
its own merits and if the delay is condoned, the
appeal can be decided on its own merits.
6. On the other hand, learned Assistant Government
Pleader, from the documents placed on record, is not
a position to dispute the fact that respondent No.1
has dismissed the appeal itself on the ground that
there is a delay of three months and six days that
has caused in preferring the appeal.
C/SCA/1885/2021 JUDGMENT
7. Having heard learned advocates appearing for the
parties and having gone through the material placed
on record, it would emerge that against the order
passed by respondent No.2, the petitioner has filed
an appeal under Section 18 of the Act before
respondent No.1. There was a delay of 102 days in
filing the said appeal and, therefore, the separate
application for condonation of delay of 102 days was
filed on 12.06.2020. If the impugned order dated
22.07.2020 passed by respondent No.1 is carefully
seen, it is revealed that respondent No.1 has
rejected the main appeal without considering the
averments made in the application filed for
condonation of delay. It is the specific case of the
petitioner that before passing the impugned order,
even opportunity of personal hearing was not afforded
to the petitioner. At this stage, relevant provisions
contained in Section 18 of the Act is required to be
referred, which provides as under:
"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.
(2) No appeal shall be admitted if it is
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preferred after the expiry of the period
prescribed therefor:
Provided that an appeal may be admitted
after the expiry of the period prescribed
therefor if the appellant satisfies the
appellate authority that he had sufficient cause
for not preferring the appeal within that
period.
(3) The period prescribed for an appeal shall
be computed in accordance with the provisions of
the Indian Limitation Act, 1908 (9 of 1908),
with respect to the computation of periods of
limitation thereunder.
(4) Every appeal under this section shall be
made by a petition in writing and shall be
accompanied by a brief statement of the reasons
for the order appealed against where such
statement has been furnished to the appellant
and by such fee as may be prescribed.
(5) In deposing of an appeal the appellate
authority shall follow such procedure as may be
prescribed;
Provided that no appeal shall be disposed
of unless the appellant has been given a
reasonable opportunity of being heard.
(6) The order appealed against shall, unless
the appellate authority conditionally and
unconditionally directs otherwise, be in force
pending the disposal of the appeal against such
order.
(7) Every order of the appellate authority
confirming, modifying or reversing the order
appealed against shall be final."
8. From the above provisions, it is clear that
Section 18(2) of the Act provides that no appeal
C/SCA/1885/2021 JUDGMENT
shall be admitted if it is preferred after expiry of
the prescribed period of limitation i.e. after thirty
days. However, proviso to subsection (2) of Section
18 of the Act is very clear, which provides that an
appeal may be admitted after expiry of limitation
period if the appellant satisfies the appellate
authority that he had sufficient cause for not
preferring the appeal within the said period.
9. Now, Rule 107 of the Arms Rules, 2016 ("the
Rules" for short) is also required to be referred,
which provides as under:
"107. Appeal against order of licensing
authority or an authority suspending or revoking
a licence under subsection (6) of section 17 of
the Act. In any case, in which an authority
issues an order
(i) refusing to grant or renew a licence or
to give a "no objection certificate" for
such grant or renewal; or
(ii) varying any condition of a licence or
suspending or revoking a licence under sub
section (1), or subsection (3) or sub
section (6) of section 17,
the person aggrieved by such order may, within
thirty days from the date of issue of the order,
and subject to the proviso to subsection (2) of
section 18, prefer an appeal against that order,
to the concerned appellate authority."
10. From Rule 107 of the Rules, it can be said that
against the order passed by the licencing authority,
aggrieved person can file an appeal against the said
order before the concerned appellate authority within
C/SCA/1885/2021 JUDGMENT
a period of thirty days from the date of issue of the
order and subject to the proviso contained in sub
section (2) of Section 18 of the Act.
11. Thus, from the aforesaid provisions contained in
the Act as well as the Rules, it can be said that the
appellate authority is empowered to condone the delay
if the appellant satisfies the appellate authority
that he had sufficient cause for not preferring an
appeal within prescribed timelimit. In the present
case, if the impugned order is carefully seen, it is
revealed that respondent No.1 has not at all observed
anything in the order that whether there is
sufficient cause for not preferring the appeal within
prescribed timelimit. Even respondent No.1 has,
while rejecting the appeal, not at all considered
the application for condonation of delay and even the
petitioner was not heard before passing the impugned
order.
12. In view of the aforesaid discussion, the
impugned order dated 22.07.2020 passed by respondent
No.1 herein in HVD/1020/202/M is quashed and set
aside. Matter is remitted to respondent No.1, who
shall first decide the application filed by the
petitioner for condonation of delay of 102 days that
has caused in preferring the appeal and then decide
the appeal filed by the petitioner, in accordance
with law and keeping in view the aforesaid provisions
contained in the Act and the Rules.
C/SCA/1885/2021 JUDGMENT
13. The petition is partlyallowed, accordingly.
Rule is made absolute accordingly.
Direct Service is permitted.
(VIPUL M. PANCHOLI, J)
piyush
