Khuramkhan Abadkhan Bihari vs State Of Gujarat
2021 Latest Caselaw 17879 Guj

      C/SCA/12097/2021                                 ORDER DATED: 30/11/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 12097 of 2021
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                          KHURAMKHAN ABADKHAN BIHARI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR MB RANA(2760) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 30/11/2021
                   ORAL ORDER

By the consent of the learned advocates appearing for the respective parties, the petition is taken up for final disposal.

2. Issue rule, returnable forthwith. Mr. Krutik Parikh, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent no.1.

3. The petitioner, is aggrieved by the order dated 5.6.2021 passed by the respondent no.3 - Additional District Magistrate, Banaskantha whereby, the license No.B.K.12/98 (UIN No.122610000202012013) of the petitioner, has been cancelled, inter alia, on the ground that the petitioner is possessing the license since last 20 years and at the relevant point of time, there was a threat to the life of the petitioner, however, presently, the petitioner has not been able to produce any document to substantiate that the petitioner has a threat to his life and he needs the license for self- protection.

4. Being aggrieved, the petitioner has filed the captioned writ petition under the following factual background:-

4.1 The petitioner is working as Secretary of the Nawab Sahib of Palanpur and for his personal security, had applied for the license of

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firearm being 22 bore rifle, which was granted in favour of the petitioner in the year 1999 and renewed from time to time, and lastly, renewed up to 31.12.2022. It is the case of the petitioner that the petitioner possesses the weapon for self-protection since the year 1999 and till date, there is not a single complaint of misuse of the said license.

4.2 On 5.11/12.2020, the respondent no.3 has issued a show cause notice, requiring the petitioner to show cause as to why the license shall not be cancelled considering the age. Apropos the show cause notice dated 5.11/12.2020, the petitioner submitted the reply, citing various judgments of the High Courts, so also the provisions of Section 17 of the Arms Act, 1959 (hereinafter referred to as the 'Act of 1959') and The Arms Rules, 1962 (hereinafter referred to as the 'Rules of 1962'). In the reply, the petitioner had also raised a contention that the license may not be cancelled only citing the reason of the age.

4.3 The respondent no.3, after considering the reply of the petitioner dated 22.12.2020, passed an order dated 5.6.2021, cancelling the license citing three reasons, namely, (i) that the petitioner has not produced any documentary evidence to substantiate that the petitioner has any threat to life or that the petitioner is dealing with the cash transactions and for which, the license is required to be continued for self-protection; (ii) that the petitioner has not received any threat and/or no incident has taken place of any attack for which also, the weapon is required; and (iii) that the license is in currency since last more than 20 years when, there was a threat to the life of the petitioner; however, in absence of any evidence produced, it is not desirable to continue the license. Being aggrieved, the petitioner has filed the captioned writ petition challenging the order dated 5.6.2021.

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5. Mr. M.B. Rana, learned advocate appearing for the petitioner submitted that the order dated 5.6.2021 has been passed, clearly against the provisions of the Act of 1959 as well as the Rules of 1962. It is submitted that there is no independent application of mind by the respondent no.3 inasmuch as, reliance has been placed on the communication dated 13.12.2017 issued by the Home Department, Gandhinagar.

5.1 It is also submitted that as is discernible from the contents of the show cause notice dated 5.11/12.2020, the same appears to have been issued for the purpose of issuance of the license. It is submitted that once the license has been issued, after the authority has satisfied, then, there is no provision in the law to review or reassess the cause of issuance of the license. It is submitted that the respondent authority, is under obligation to act as per the provisions of Section 17 of the Act of 1959 and not otherwise. It is also submitted that it is only if the parameters provided in sub- section (3) of Section 17 is present, that the license either can be revoked or cancelled or modified; however, so far the present case is concerned, the order has been passed revoking the license, considering the age of the petitioner as per the directions contained in the communication dated 13.12.2017 of the Home Department, Gandhinagar.

5.2 It is vehemently submitted that the said ground is also not available to the respondent in view of the judgment dated 24.3.2021 of the co-ordinate bench passed in the case of Ahmed Mustafa Sunsara vs. District Magistrate and Collector, Banaskantha rendered in Special Civil Application No.3225 of 2021. It is submitted that the issue before this Court, was cancellation of the license on the ground that the petitioner therein, was more than 55 years of

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age. This Court, while relying upon the judgment of the Division Bench rendered in Letters Patent Appeal No.290 of 2016 in the case of Ashokkumar Bhikhaji Thakor vs. State of Gujarat, so also the order dated 29.8.2011 rendered in Special Civil Application No.8691 of 2011 in the case of Sorab Jehangir Bamji vs. State of Gujarat, quashed and set aside the order and allowed the writ petition, remitting the matter back to the respondent authorities with a direction to decide the renewal application in terms of the principle laid down by this Court in the aforesaid two judgments. It is submitted that therefore, the issue of rejecting the license, considering the age, is no longer res integra.

5.3 It is also submitted that though the remedy of appeal is provided before the State Government against the order of the respondent no.3, however, considering the fact that the issue stands covered by the judgment of this Court in the cases of Ashokkumar Bhikhaji Thakor (supra), so also Sorab Jehangir Bamji (supra), the petitioner may not be relegated to avail of the alternative remedy. It is therefore, urged that the order dated 5.6.2021 passed by the respondent no.3, deserves to be quashed and set aside.

6. On the other hand, Mr. Krutik Parikh, learned Assistant Government Pleader for the respondent no.1 submitted that the order under challenge, was not passed only on the ground of the age of the petitioner, however, other factors weighed with the respondent authority which, is clearly recorded in the order and therefore, it is incorrect on the part of the petitioner to contend that the license of the petitioner has been cancelled considering the age, so also the communication dated 13.12.2017 of the Home Department, Gandhinagar. It is further submitted that against the order passed by the Additional District Magistrate, Banaskantha, an appeal under Section 18 of the Act of 1959 would lie before the

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State Government and therefore, in view of the availability of the alternative remedy, the petition may not be entertained.

6.1 It is therefore, urged that the order dated 5.6.2021 has been passed by the respondent no.3 and that no error can be said to have been committed in passing the said order. Therefore, the petition does not deserve to be entertained and be dismissed.

7. Heard the learned advocates appearing for the respective parties.

8. As is discernible from the record, the petitioner had applied for license of firearm being 22 bore rifle, which was granted in the year 1999 and thereafter, renewed from time to time and lastly, up to 31.12.2022. It is also not in dispute that there are no complaints filed against the petitioner for misuse of the said license which, he is possessing since the year 1999. It is also not in dispute that the petitioner, is working as a Secretary to the Nawab Sahib of Palanpur and for his personal security, had applied for the license.

9. In furtherance of the communication dated 13.12.2017 issued by the Home Department, Gandhinagar, the respondent no.3, issued a show cause notice dated 5.11/12.2020, requiring the petitioner to satisfy that the petitioner, is in need of the license considering the age. The show cause notice therefore, was limited to requiring the petitioner to satisfy that considering the age of the petitioner whether the petitioner is in need of the firearm.

10. The petitioner, apropos the show cause notice, has filed a detailed reply dated 22.12.2020, pointing out that for the purpose of self-protection, the age is immaterial. The provisions of Section 17 of the Act of 1959 was also brought to the notice of the respondent authority. The respondent no.3 thereafter, passed an order dated

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5.6.2021, cancelling the license on the three grounds, namely, (i) that the petitioner has not produced any documentary evidence to substantiate that the petitioner has any threat to life or that the petitioner is dealing with the cash transactions and for which, the license is required to be continued for self-protection; (ii) that the petitioner has not received any threat and/or not incident has taken place of any attack for which also, the weapon is required; and (iii) that the license is in currency since last more than 20 years on the ground that at the relevant point of time, there was a threat to the life of the petitioner.

11. Therefore, what essentially weighed with the respondent authority is the age of the petitioner in wake of the communication dated 13.12.2017 of the Home Department, Gandhinagar. So far as the said aspect is concerned, reliance placed on the judgment in the case of Ahmed Mustafa Sunsara (supra) is worth referring to wherein reference has been made by the co-ordinate bench upon the judgment in the case of Ashokkumar Bhikhaji Thakor (supra). Paragraphs 15 and 16 whereof read thus:-

"15. From the aforesaid provision, it is clear that the licensing authority is empowered to suspend or revoke the licence under the circumstances which are enumerated in aforesaid sub- section (3) of Section 17. As observed hereinabove the respondent No.3 has placed reliance upon the negative opinion given by the Superintendent of Police and pendency of the criminal proceedings against the petitioner. However, the respondent No.3 has not considered whether the registration of FIR against the petitioner and pendency of criminal proceedings for the offence of criminal breach of trust, forgery and under the provisions of the Prevention of Corruption Act in any way affect the public safety, security or public peace. Further, the respondent No.3 has also committed an error by observing that the petitioner has failed to produce any documentary evidence in favour of his claim that risk is involved in his business and therefore arms licence is required. It is required to be noted that the respondent No.3 was not for the first time issuing the licence in favour of the petitioner but he was exercising the powers under Section 17 of the Act for revocation of the licence and therefore also the order passed by the respondent No.3 is required to be set aside. From the order passed by the respondent No.3 it is not reflected that he has exercised the powers under

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Section 17(3) (a) of the Act on the ground that petitioner is unfit to have licence. Thus, the submission canvassed by learned AGP is misconceived.

16. Further, the respondent No.3 has revoked the licence of the petitioner on the basis of pendency of criminal proceedings as discussed hereinabove. However, arms licence of the coaccused of the same FIR against whom the criminal proceeding is still pending has been restored by the Appellate Authority."

Similarly, the case of Sorab Jehangir Bamji (supra) is also worth referring to. Paragraphs 17, 18 and 19 read thus:-

"17. In light of the statutory provisions and decisions referred to above, it would be necessary to revert to the impugned orders. A perusal of the impugned orders indicates that the sole reason for rejection of the application of the petitioner, is based upon the opinion of the Police authorities that the licence may not be granted as the petitioner is aged 63 years. Apart from that, the District Magistrate and the State Government have concluded in their respective orders, that no reasonable ground exists for granting a licence to the petitioner. As has been noticed hereinabove, Section 13(2A) vests the licencing authority with power to either grant a licence or refuse the same, as thought necessary, after considering the report of the officer in charge of the nearest Police Station, as provided under Section 13(1)(2). As per Section 14(1)(b) (ii), the licencing authority shall refuse to grant a licence, among other reasons mentioned in Section 14(1), if it is found necessary to refuse it for the security of the public peace or public safety. As already discussed above, the report of the Police authorities in the case of the petitioner, does not indicate that he has any criminal antecedents, or that granting the licence to him will endanger the security and safety of the public or hinder public peace. In fact, the Police authorities have not given any adverse opinion in the case of the petitioner. The only ground mentioned is that the petitioner is 63 years of age which, in the view of this Court, cannot be considered as being a prohibition, as it is nowhere so stated in the Act.

18. Though Section 9 prohibits a person, who has not completed the age of 21 years, from acquiring, possessing or carrying a firearm or ammunition, there is no prohibition regarding a person of any age above the age of 21 years from doing so. The grounds for refusal of a licence under Section 14 do not apply to the petitioner in any manner. The discretion for exercise of power vested in the licencing authority by virtue of Section 13(2A) is to be exercised in relation to, and in the context of, the provisions of the Act, in a reasonable and rational manner. The reasons for refusal of a licence would have to have a nexus to, and be in context with, the provisions of the Act. Merely refusing to issue a licence for a reason not prohibited by the Act, such as being aged 63 years, is unjustified and not in consonance with the provisions of

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the Act. It is stated in the impugned orders passed by the District Magistrate and the State Government, that there are no reasonable grounds for grant of licence to the petitioner. On the contrary, in view of the relevant provisions of the Act, it is evident that the respondents have failed to show any valid grounds for refusal of the licence.

19. The petitioner is, and has been, a member of Billimora Rifle Club since the year 1988, and has participated in a number of Rifle Shooting tournaments and won several certificates and awards. grant of the licence is for participation in sports activities, namely, Rifle Shooting. As per Section 13(3)(I), the licencing authority can grant a licence in respect of a smooth bore gun having a barrel of not less than twenty inches in length, for protection of crops or for sports. Apart from sports, the petitioner has cited the reason of self protection in his application for grant of the licence. As the petitioner was 63 years old at the relevant point of time, and is now aged about 67 years, it cannot be said that the reason of self protection is unjustified as older people would require to be more secure and to have a licenced firearm would provide such security. Both the grounds for which the petitioner has requested for the issuance of a firearm licence, cannot be said to be unreasonable or inadequate. It is not understandable on what premises the respondents have come to such a conclusion."

It has been held that reasons for refusal of a license would have to have a nexus to, and be in context with, the provisions of the Act. Merely refusing to issue a license for a reason not prohibited by the Act, such as being aged 63 years, is unjustified and not in consonance with the provisions of the Act. It has also been held that merely because the petitioner at the time of the making the application was 63 years, and at the time of renewal about 67 years, it cannot be said that the reason of self-protection is unjustified as older people would require to be more secure and to have a licensed firearm would provide such security.

Therefore, so far as the issue of revocation of the license on the ground of age is concerned, this Court has held that it would be unreasonable on the part of the respondent authorities to reject the application.

12. While adverting to the contention of Mr. Parikh, learned Assistant Government Pleader that the application has not been

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rejected only on the ground of age, however, there are other grounds for rejecting the application. At this stage, it is required to be noted that the show cause notice was issued, limited to the aspect that considering the age of the petitioner, why the license shall not be cancelled; however, the petitioner was not required to satisfy the authorities providing for the other reasons. The respondent no.3, has while passing the order, dealt with the other issues, namely, the risk involved in the business or that the petitioner has received any threat of life. Therefore, clearly, the order dated 5.6.2021 passed by the respondent no.3 authority, has travelled beyond the scope of the show cause notice and therefore, this Court is of the opinion that the order, is without jurisdiction.

13. Under the circumstances, the order dated 5.6.2021, deserves to be quashed and set aside on both the counts, namely, the erroneous rejection on the ground of age, so also travelling beyond the show cause notice dated 5.11/12.2020. Accordingly, the order dated 5.6.2021, is hereby quashed and set aside. The matter is remitted back to the respondent no.3 for reconsideration of the case of the petitioner in terms of the present order. The respondent shall take decision within a period of two weeks' from the date of the receipt of the copy of this order.

14. With the aforesaid observations and direction, the present present succeeds and is accordingly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

15. Direct service is permitted.

(SANGEETA K. VISHEN,J) BINOY B PILLAI