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2022 DIGILAW 1690 (GUJ)

Ramjibhai Bhavanbhai Kanetiya v. State Of Gujarat

2022-12-02

BIREN VAISHNAV

body2022
ORDER : 1. RULE returnable forthwith. Mr.Rohan Shah learned AGP waives service of notice of Rule on behalf of the respondent State. 2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing. 3. By way of this petition under Article 226 of the Constitution of India, the challenge in this petition is to the order dated 09.05.2022 passed by the Appellate Authority confirming the order dated 07.12.2020 passed by the District Magistrate, Botad, by which, the petitioner’s application for Arms license has been rejected. 4. It is the case of the petitioner that he is maintaining his family and doing agricultural work and also doing vitrified tiles business at Morbi. He was issued an arms license in the year 2010. Renewal Application filed was rejected. The order was challenged by filing Special Civil Application No.173 of 2019. This Court by an order dated 14.02.2020 quashed the orders with a direction that on an application being made afresh, the same be considered. On a fresh application being made, by the impugned orders, the application has been rejected. 5. Mr.Harnish Darji learned advocate for the petitioner would submit that the impugned orders are bad inasmuch as the same have been rejected on the ground that the petitioner can deal with digital mode of payment. The other ground is on the basis of income tax returns and that there is no threat perception. 6. He would rely on the decision of this Court in case of Bhupatbhai Bhikhabhai Mankad v. State of Gujarat reported in 2016 JX (Guj) 88. 7. In case of Bhupatbhai Bhikhabhai Mankad (supra), the relevant paragraphs read as under: “7. Considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the order impugned passed in appeal, it clearly bornes out that the appellate authority, after narrating the contents, which are raised before it, has just reiterated the reasons, which are given by respondent No.2 while passing the order dated 28.6.2012. This Court in the case of Sorab Jehangir Bamji (supra) has examined and dealt with the contingencies under which a licence can be refused by the licensing authority as set out in Section 14 of the Act and has observed thus: 15. This Court in the case of Sorab Jehangir Bamji (supra) has examined and dealt with the contingencies under which a licence can be refused by the licensing authority as set out in Section 14 of the Act and has observed thus: 15. The contingencies wherein a licence may be refused by the licencing authority are set out in Section 14, which reads as below: 14. Refusal of licences. (1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant- (a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition; (b) a licence in any other case under Chapter II, (i) where such licence is required by a person whom the licensing authority has reason to believe- (1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or (2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act; or (ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence. (2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property. (3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement. Section 14 sets out the grounds on which a firearm licence may be refused. The reason for refusal to grant a firearm licence to the petitioner is not that he is prohibited by any provision of the Act or any other law from holding a licence, or that he has asked for a licence in respect of a prohibited firearm, or is of unsound mind or, is unfit for grant of licence under the Act for any other reason. Further, the application of the petitioner has not been rejected on the ground that such refusal would be necessary for the security of the public peace, or for public safety. The reason for rejection of the application is that the petitioner was aged 63 years, which does not find mention in Section 14 of the Act. There is no other provision in the Act that states that a licence cannot be granted to a person who attains a particular age. 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. 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 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. 8. Similarly, this Court in Special Civil Application No.1521 of 2015 by judgment and order dated 30.10.2015 has also taken a similar view while referring to Section 14(2) of the Act. Learned Assistant Government Pleader has not been able to point out anything from the record except the fact that some instructions have been given to the State Government by the Central Government. However, the fact remains that no such contingency is provided in Section 14 of the Act and more particularly, the reasons for which a licence can be refused does not exist in the case on hand. On the contrary, subsection (2) of Section 14 of the Act clearly provides that the licencing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own sufficient property. It clearly transpires that the appellate authority has not considered the vital aspect and has not even properly considered the assessment of threats. 9. It clearly transpires that the appellate authority has not considered the vital aspect and has not even properly considered the assessment of threats. 9. In opinion of this Court therefore, the reliance placed for by the appellate authority on the income and the conclusion arrived at is de hors the provisions of Section 14 of the Act. 10. Considering the reasons given in the impugned orders, it clearly appears that the authority has not considered the documents which were produced by the petitioner and has also considered the aspect of income and property of the petitioner, which is ex-facie in violation of Section 14(2) of the Act. 11. The appellate authority has also appreciated the opinion given by the Police authority in particular and come to the conclusion that there is no threat prospective upon petitioner without any basis. 12. In view of the above, the impugned order dated 9.7.2015 passed by appellate authority– respondent No.1 in Appeal No.752 of 2012 confirming the order dated 28.6.2012 passed by respondent No.2 are hereby quashed and set aside and the proceedings of the said appeal is remanded back to the appellate authority for its rehearing on merits. The appellate authority shall consider all such contentions that may be raised by the petitioner and also the ratio laid down by this Court in the case of Sorab Jehangir Bamji (supra). 13. As the issue is pending since 2012, the appellate authority shall endeavour to dispose of the aforesaid appeal after giving an opportunity of being heard to the petitioner without in any manner being influenced by any of the observations made in the impugned order and shall decide the appeal de novo. 14. Accordingly, the petition is allowed in the above terms. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.” 8. Having considered the submissions made by the learned counsels for the respective parties, and in view of the relevant paragraphs of the judgement quoted hereinabove, the petition is allowed. The order dated 09.05.2022 passed by the Appellate Authority and the order dated 07.12.2020 passed by the District Magistrate, Botad, are hereby quashed and set aside. The respondents are hereby directed to grant the application of the petitioner for arms license dated 20.07.2020. 9. Rule is made absolute accordingly. Direct service is permitted.