Sanjay Kumar Bansal vs State Of Uttarakhand And Another
2023 Latest Caselaw 1951 UK

     HIGH COURT OF UTTARAKHAND AT
               NAINITAL
            Writ Petition (M/S) No.324 of 2016
Sanjay Kumar Bansal                                      ....Petitioner

                                Versus

State of Uttarakhand and Another                     ....Respondents

Present:-
            Mr. S.K. Mandal, Advocate for the petitioner.
            Mr. Yogesh Pandey, Addl. C.S.C. for the State.

                              JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The petitioner is aggrieved by an action of the

respondents/State of Uttarakhand, by which the limit of stock

of arms and ammunition has been decreased on 22.05.2012.

Thereafter, the petitioner did file multiple writ petitions before

this Court. In those writ petitions, directions were issued for

fresh consideration, but finally, by the impugned order dated

28.01.2016, passed by the respondent no.1, the order of

reduction of stock dated 22.05.2012, has been confirmed. The

petitioner has challenged this order.

2. Heard learned counsel for the parties and

perused the record.

3. Facts, in brief, necessary to resolve the

controversy, briefly stated, are as follows; In the year 2000,

the petitioner was granted commercial arm license for sale,

storage and repair of arms and ammunition. The license was

renewed from time to time. The license had also prescribed

the limit of stock, which the petitioner could store at one time.

On 24.01.2011, the petitioner made an application for

increasing the limit of stock. When it was not considered, the

petitioner approached this Court, by way of filing WPMS

No.2304 of 2011, Sanjay Kumar Bansal Vs. State of

Uttarakhand and Another ("the first petition"). In the first

petition, the respondent no.1 was directed to take decision on

the report made by the Collector to increase the stock of

weapons as well as cartridges of the petitioner's license within

stipulated time. It was so increased by Government Order

dated 22.05.2012.

4. Subsequently, again, the limit of stock was

reduced on 22.05.2015. The reduction was challenged by the

petitioner by way of filing Writ Petition No.1274 of 2015,

Sanjay Kumar Bansal Vs. State of Uttarakhand and Another

("the second petition"). It was decided by this Court on

03.06.2015. The order dated 22.05.2015 was set aside and

the respondent-authorities were given liberty to issue

showcause notice to the petitioner and to pass fresh order,

after hearing the petitioner.

5. The petitioner was heard thereafter. But again,

by order dated 30.10.2015, the order reducing the stock has

been confirmed. This order dated 30.10.2015 has further

been challenged by the petitioner in WPMS No.316 of 2015,

Sanjay Kumar Bansal Vs. State of Uttarakhand and Another

("the third petition"). The third petition was decided on

22.12.2015. The Court directed the petitioner to move a fresh

representation with further directions to the respondent no.1

to reconsider and decide the same by a speaking reasoned

order. Post order dated 22.12.2015, passed by this Court in

the third petition, the impugned order dated 28.01.2016 has

been passed, which is impugned herein.

6. It is the case of the petitioner that after

increasing the stock, the respondent-authorities had no

occasion to decreased the stock. The basis for reduction is not

lawful because Government Order of 1974 issued by the State

of Uttar Pradesh has no application in the State of

Uttarakhand.

7. The respondents/State have filed their counter

affidavit. It is the case of the respondents/State that the

"Government Order No. 2828 R/Aa.-5-295/71 dated

08.05.1986 prescribing the limit under Performa 11/12 to

the Arm Vendor is applicable in the State of Uttarakhand,

under which the limit has been prescribed for the Arms

Dealer. The said Government Order mentioned that Arm

Dealers to whom permission has been granted to stock

the arms/cartridges more than the prescribed limit in the

year 1974 under Performa 11/12, they would maintain

the stock of arm cartridges upto the prescribed limit duly

and no permission granted for stocking the excess limit of

arms/cartridges."

8. Learned counsel for the petitioner would submit

that the petitioner is a licensed arms dealer; he has been

granted license; government had issued gun license to many

more persons in the area; Government of India has prescribed

the limit of cartridges, which a license holder may purchase

at one time. He would raise the following points in his

submission:-

(i) The petitioner has to purchase

arms/ammunition from arms factory, for which

a requisition is to be sent and the delivery is

made approximately after a year.

(ii) If in between any demand is received for delivery

of arms and ammunition, the petitioner has to

procure such arms/ammunition from private

parties outside the State. On the one hand, it

causes loss to the State revenue, and on the

other hand, it causes inconvenience to the

petitioner as well as to the armed license

holders.

(iii) The Government Order of 1974 of the State of

U.P. has no application in the State of

Uttarakhand.

(iv) The limit of stock has to be proportional to the

demand of the license holders.

(v) On 25.05.2012, when the stock limit was

increased, at that time, the respondents/State

had considered all the relevant materials

available.

(vi) By limiting the stock of arms and ammunition,

the respondents/State is infringing the Right to

Trade and Practice, as enshrined under Article

19(1)(g) of the Constitution of India.

9. On the other hand, learned State Counsel would

submit that limiting the stock of arms and ammunition is a

policy matter. He would also submit that the Government

Order of 1974 on the subject is still applicable in the State of

Uttarakhand The State of Uttarakhand has neither rescinded

it nor had issued any Government Order varying or modifying

it; the Government Order of the year 1986 of the State of U.P,

which is applicable, on this subject, prescribes that the limit

of the stock would be such, as is given in the Government

Order of 1974.

10. It is purely a policy matter. An administrative

decision has been taken by the State of Uttarakhand to limit

the stock of arms and ammunition with the arms dealer. It is

true that on 25.05.2012, on one of the representations made

by the petitioner on 24.01.2011, the limit of the stock qua the

petitioner had been increased. But, subsequently, it has been

recalled and reduced further. On subsequent representations

and orders passed by the respondent authorities, it is

categorically stated that post increase of the stock limit of the

petitioner, the request for such increase were received from

many other arms dealers. Thereafter, the issue was re-

examined and the order for reduction in the limit of stock was

passed.

11. It is true that Article 19 of the Constitution of

India protects certain rights including right to practise any

profession, or to carry on any occupation, trade or business.

But, this Right, which is enshrined under Article 19 (1) (g) is

subject to Article 19(6), which provides as follows:-

(6) Nothing in sub-clause (g) of the said clause shall

affect the operation of any existing law in so far as it

imposes, or prevent the State from making any law

imposing, in the interests of the general public,

reasonable restrictions on the exercise of the right

conferred by the said sub-clause, and, in particular,

nothing in the said sub-clause shall affect the operation

of any existing law in so far as it relates to, or prevent

the State from making any law relating to,-

(i) the professional or technical qualifications

necessary for practising any profession or

carrying on any occupation, trade or business,

or

(ii) the carrying on by the State, or by a corporation

owned or controlled by the State, of any trade,

business, industry or service, whether to the

exclusion, complete or partial, of citizens or

otherwise.

12. The Right under Article 19(1)(g) is not absolute.

This clause may not affect the operation of any existing law,

insofar as it imposes or prevents the State from making any

law, in the interest of general public, a reasonable restriction

on the exercise of the Rights conferred, etc.

13. The impugned Government Order dated

28.01.2016 is quite elaborate. It deals with every question

raised by the petitioner before the authorities concerned. In

the impugned order, notice has been taken to the Government

Order dated 08.05.1986, which, according to this Government

Order, provides that the stock limit would be such, as is given

in the Government Order of the year 1974.

14. The Government Order issued by the State of

U.P. is definitely applicable in the State of Uttarakhand

unless it is rescinded or modified. A statement has been given

that this Government Order is still applicable. Nothing has

been shown on behalf of the petitioner that there has been

any modification on the decision of the Government Order.

15. The scope of judicial review is well settled. The

Court, in such matters, is less concerned with the policy

decision. What the Court may intervene or examine is the

process of taking the decision.

16. Law, on this point, has been widely discussed in

various judgments of the Hon'ble High Court. In the case of

Gohil Visharaj Hanubhai and Others Vs. State of Gujarat and

Others, (2017) 13 SCC 621, the Hon'ble Supreme Court has

discussed the law on this subject. In fact, in Para 14, the

Hon'ble Supreme Court has posed two questions, which are

as hereunder:-

14. Two questions need to be examined:

14.1. (i) What are the principles which govern the

jurisdiction of the courts which exercise the power of

judicial review of administrative action in the context of a

situation like the one presented by the facts of these

appeals?;

14.2. (ii) Whether those legal principles are strictly

followed by the respondents while taking the impugned

decision?

17. Referring the judgment in the case of Associated

Provincial Picture House Ltd. v. Wednesbury Corpn., (1948) 1

KB 223 (CA) and Council of Civil Service Union Vs. Minister of

the Civil Service, 1985 AC 374, in Para 16 and 17 of the

judgment in the case Gohil Visharaj Hanubhai (supra), the

Hon'ble Supreme Court observed as hereunder:-

"16. Lord Diplock in his celebrated opinion in Council of

Civil Service Unions v. Minister for the Civil Service,

1985 AC 374 summarised the principles as follows:

"... Judicial review has I think developed to a

stage today when without reiterating any analysis of

the steps by which the development has come

about, one can conveniently classify under three

heads the grounds upon which administrative

action is subject to control by judicial review. The

first ground I would call "illegality", the second

"irrationality" and the third "procedural

impropriety". That is not to say that further

development on a case-by-case basis may not in

course of time add further grounds. I have in mind

particularly the possible adoption in the future of

the principle of "proportionality" which is recognised

in the administrative law of several of our fellow

members of the European Economic Community;

but to dispose of the instant case the three already

well-established heads that I have mentioned will

suffice.

By "illegality", as a ground for judicial review, I

mean that the decision-maker must understand

correctly the law that regulates his decision-making

power and must give effect to it. Whether he has or

not is par excellence a justiciable question to be

decided, in the event of dispute, by those persons,

the Judges, by whom the judicial power of the State

is exercisable.

By "irrationality" I mean what can by now be

succinctly referred to as

"Wednesbury unreasonableness (Associated

Provincial Picture Houses Ltd. v. Wednesbury

Corpn., (1948) 1 KB 223 (CA)). It applies to a

decision which is so outrageous in its defiance of

logic or of accepted moral standards that no sensible

person who had applied his mind to the question to

be decided could have arrived at it. Whether a

decision falls within this category is a question that

Judges by their training and experience should be

well equipped to answer, or else there would be

something badly wrong with our judicial system. To

justify the court's exercise of this role, resort I think

is today no longer needed to Viscount Radcliffe's

ingenious explanation in Edwards (Inspector of

Taxes) v. Bairstow, 1956 AC 14 of irrationality as a

ground for a court's reversal of a decision by

ascribing it to an inferred though unidentifiable

mistake of law by the decision-maker. "Irrationality"

by now can stand upon its own feet as an accepted

ground on which a decision may be attacked by

judicial review.

I have described the third head as "procedural

impropriety" rather than failure to observe basic

rules of natural justice or failure to act with

procedural fairness towards the person who will be

affected by the decision. This is because

susceptibility to judicial review under this head

covers also failure by an administrative tribunal to

observe procedural rules that are expressly laid

down in the legislative instrument by which its

jurisdiction is conferred, even where such failure

does not involve any denial of natural justice. But

the instant case is not concerned with the

proceedings of an administrative tribunal at all."

It can be seen from the above extract, Lord Diplock

identified three heads under which judicial review is

undertaken i.e. illegality, irrationality and procedural

impropriety. He also recognised the possibility of new

heads such as "proportionality" being identified in

future. He explained the concepts of the three already

identified heads. He declared that the head "irrationality"

is synonymous with "Wednesbury unreasonableness".

"17. The principle laid down in Council of Civil Service

Unions v. Minister for the Civil Service, 1985 AC 374

has been quoted with approval by this Court in Tata

Cellular v. Union of India, (1994) 6 SCC 651, and

Siemens Public Communication Networks (P)

Ltd. v. Union of India, (2008) 16 SCC 215."

18. Illegality, irrationality, procedural impropriety,

and proportionality are the factors, which are to be tested

against such decisions. In fact, the irrationality has been

considered as synonymous with the Wednesbury

unreasonableness.

19. It has not been the case of the petitioner that the

decision to reduce the stock is illegal. It is the case of the

petitioner that the policy decision is irrational, improper and

unreasonable. It is being argued that for one gun license

holder, 50 cartridges may be given. There are many gun

licenses in the area. The petitioner has been purchasing arms

and ammunition from outside the State. His tax and accounts

reveal it. Therefore, to restrict the limit may not be termed to

be reasonable, rational or proper.

20. This argument has less force for acceptance. It

cannot be said that the Government Order is unreasonable,

irrational or improper. A Government Order has been followed

keeping in view the Policy of the Government of India with

regard to arms that it should be within the restrictive domain.

21. The issue dealing with arm licensing and stock

storage is a sensitive issue, which, on the one hand, relates to

law and order in the State. On the other hand, in a State like

Uttarakhand, which has international borders, it may have

national security aspects as well. This Court, in a writ

jurisdiction, may not fix the limit of stock for arms and

ammunition in such situation. Therefore, this Court is of the

view that there is no reason to make any interference.

Accordingly, the writ petition deserves to be dismissed.

22. The petition is dismissed.

(Ravindra Maithani, J.) 28.07.2023 Ravi Bisht