Mahavirsinh Vanrajsinh Gohil vs State Of Gujarat
2023 Latest Caselaw 2137 Guj

      C/LPA/119/2023                              ORDER DATED: 07/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 119 of 2023

           In R/SPECIAL CIVIL APPLICATION NO. 19840 of 2019

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                       MAHAVIRSINH VANRAJSINH GOHIL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MS. KRUTI M SHAH(2428) for the Appellant(s) No. 1
MR. SAHIL TRIVEDI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
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    CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
          JUSTICE A.J.DESAI
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 07/03/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1 This appeal under Clause 15 of the Letters Patent

challenges the oral order dated 22.09.2022 passed by the

learned Single Judge. By the aforesaid order, the learned

Single Judge dismissed the petition.

2 The appellant - original petitioner filed Special Civil

Application No. 19840 of 2019 challenging the orders

dated 03.10.2017 passed by the Collector & District

C/LPA/119/2023 ORDER DATED: 07/03/2023

Magistrate, Bhavnagar and the order dated 25.06.2019

passed in the Appeal by which the State of Gujarat

through the Home Department rejected the appeal.

3 Facts:

3.1 Since the appellant - petitioner, was engaged in the

business of transportation and construction, he applied

for an arms license on 29.09.2016. The Collector & the

District Magistrate, Bhavnagar, while considering his

application, relied on the opinion of the Police Authorities

at Bhavnagar and the Sub-Divisional Magistrate at

Shihor. The police authority was of the opinion that

though the appellant had to deal in cash transactions,

since internet banking facilities were available and as

there was no threat perception, the appellant was not

entitled to an arms license. The Sub-Divisional Magistrate

however opined positively in favour of the appellant. The

Collector, rejected the application on the ground that

rather than undertaking cash transactions, it was open

for the appellant to undertake operations through

C/LPA/119/2023 ORDER DATED: 07/03/2023

banking and also through courier services and as there

were modes of digital transactions available, the

appellant was not entitled to an arms license.

3.2 On the appellant filing an appeal before the

competent authority, by the order of 25.06.2019, the

appeal was rejected.

3.3 On a challenge to these orders before the learned

Single Judge, the learned Single Judge after recording the

submissions of the learned counsel for the appellant and

the Assistant Government Pleader, affirmed the order of

the authorities below on the ground that considering the

overall totality of facts and circumstances and the matter

being of the subjective satisfaction of the authorities,

there was no reason to interfere with the orders and the

petition was accordingly dismissed.

4 Ms.Kruti Shah, learned counsel for the appellant,

would submit that in several decisions, this Court has

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quashed the decisions of the authorities rejecting the

application for an arms license on the ground of filing low

income tax returns as well as on the ground of digitalized

mode of payments so as to avoid dealing in cash

transactions. She would rely on a decision in the case of

Vallabhbhai Ramjibhai Khagad vs. The Home

Department in Letters Patent Appeal No. 425 of

2022 in Special Civil Application No. 2959 of 2021.

5 Mr.Sahil Trivedi, learned Assistant Government

Pleader would support the order of the learned Single

Judge and rely on a judgment of the Single Judge on the

Allahabad High Court in the case of Indrajeet Singh vs.

State of U.P & Anr., in a Writ - C No. 4947 of 2019,

dated 22.10.2021. He would submit that considering the

provisions of the Arms Act, 1959, especially sections 13

and 14 thereof, the Court has held that it is the subjective

satisfaction of the licensing authority who is in the field

and who can assess the situation on the basis of material

which is before him. Such an assessment cannot be

C/LPA/119/2023 ORDER DATED: 07/03/2023

substituted by this Court and the Court cannot undertake

any exercise to determine the facts leading to such

subjective satisfaction.

6 Having heard learned counsels for the respective

parties, perusal of the impugned orders before the

learned Single Judge indicate that the only ground that

weighed with the authorities in rejecting the request of

the appellant for an arms license is that there were

options open for the appellant to deal through digitized

payment and avoid cash transactions and that there was

no threat perception.

7 Reading the provisions of the Arms Act, particularly

sec. 14 thereof indicates that such ground as the ones

advanced by the authorities are beyond the scope of

section 14 of the Act. This Court in the case of

Vallabhbhai Khagad (supra), when considering the

issue of refusal of license on the ground of low income tax

returns, held as under:

C/LPA/119/2023 ORDER DATED: 07/03/2023

" [6] In that view of the matter, the impugned order cannot be sustained. Yet another factor is, the fact that District Magistrate has arrived at a conclusion that income tax returns of the petitioner for the last three years would not disclose that petitioner having carried on substantial business in sand, the basis on which the petitioner had also pressed for grant of arms license. The moot question would be whether the financial aspect can be the yardstick for granting or refusal of an arms license? Answer will have to be necessarily in the negative, inasmuch as the financial grading of a person in the society cannot be the basis on which the arms license can be granted orrefused as such license is sought by an applicant apprehending danger to his life. It all depends on facts and circumstances obtained in each case. It is the subjective satisfaction, based on objective assessment the licensing authority will arrive at a conclusion to grant or refuse the grant of arms license and paramount consideration would be, whether there is danger to the life of the applicant which warrants grant of Arms License. Even according to the District Magistrate, the income tax returns do disclose that the petitioner was carrying on the business of sand. Be that as it may. The fact that the license having been refused on these two grounds apart from that petitioner can seek protection from jurisdictional police by itself is not a ground inasmuch as there may be myriad circumstances in which the petitioner may be placed and has to defend himself which may warrant such applicant to possess the license. In that view of the matter, we are of the considered view that impugned order cannot be sustained."

8 In light of the aforesaid, the oral order dated

22.09.2022 passed by the learned Single Judge by which

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the petition was dismissed, is set aside. Appeal is allowed,

accordingly.

(A.J.DESAI, ACJ)

(BIREN VAISHNAV, J) BIMAL