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2024 DIGILAW 116 (GUJ)

Meghubha Mulsangji Zala v. State Of Gujarat

2024-01-16

VAIBHAVI D.NANAVATI

body2024
ORDER : 1. By way of present writ-application filed under Article 226 of the Constitution of India, the writ-applicant herein has prayed for the following reliefs :- “(A) That the Hon'ble Court be pleased to issue a writ, order or direction to quash and set aside order dated 16.1.2023 Marked at Annex. “A” passed by the (I.A.S. ) District Magistrate, At Patan in Appeal No. 7 of 2022 and order dated 24.5.2022 Marked at Annex. “B” passed by The Sub-Divisional Magistrate, Patan in Application NO. MAG/VSHI/1133 to 1137/2022; (B) That the Hon'ble Court be pleased to direct the respondent authorities to renew fire-arm license no. 1/18 belonging to the petitioner Marked at Annex. “C” C) For such other and further reliefs as the Hon'ble Court may deem just and proper in the facts and circumstances of the case;” 2. Brief facts leading to the filing of the present writ-application read thus :- The writ-applicant is a retired Dy. S.P. Officer and is currently working as an agriculturalist. The writ-applicant also owns agricultural lands in Gujarat. It is submitted that the writ-applicant requires firearm license for protection of crop as lot of damage is caused to the crops by the animals. The writ-applicant made an application dated 18.12.2018 for renewal of firearm license. The license was renewed upto 31.12.2021. Thereafter again on 23.12.2021 the writ-applicant made an application for renewal of firearm license. The respondent No.3 – Sub Divisional Magistrate, Patan rejected the said application by order dated 24.5.2022. Being aggrieved by the said order the writ-applicant preferred Appeal being Appeal No.7 of 2022 which came to be rejected by order dated 16.1.2023 passed by the respondent No.2. Being aggrieved by the orders dated 24.5.2022 and 16.1.2023, the writ-applicant herein has preferred present writ-application. 3. Heard Mr. Parth Kikani, the learned advocate appearing for the writ-applicant and Mr. Rohan Raval, the learned AGP appearing for the respondent No.1 – State. 4. Mr. Parth Kikani, the learned advocate appearing for the writ-applicant submitted that the impugned orders are violative of the provisions of Sections 13 and 14 of the Arms Act. 3. Heard Mr. Parth Kikani, the learned advocate appearing for the writ-applicant and Mr. Rohan Raval, the learned AGP appearing for the respondent No.1 – State. 4. Mr. Parth Kikani, the learned advocate appearing for the writ-applicant submitted that the impugned orders are violative of the provisions of Sections 13 and 14 of the Arms Act. Reliance was placed on Section 14 of the Act and placing reliance on the same it was submitted that the reasons assigned by the competent authorities refusing to consider the application seeking renewal of the arm license held by the writ-applicant herein is against the said provisions of the Act and settled principles of law. 5. Placing reliance on the aforesaid submissions, it was submitted that the orders impugned be quashed and set aside by exercising extraordinary jurisdiction under Article 226 of the Constitution of India. 6. Considering the submissions advanced by the learned advocates appearing for the respective parties, it is apposite to refer to Sections 13 and 14 of the Arms Act, 1959 which read thus :- “SECTION 13 : Grant of licences:- (1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. 21 [(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time. 21 [(2) On receipt of an application, the licensing authority shall call for the report of the officer in charge of the nearest police station on that application, and such officer shall send his report within the prescribed time. (2A) The licensing authority, after such inquiry, if any, as it may, consider necessary, and after considering the reports received under sub-section (2), shall subject to the other provisions of his Chapter, by order in writing either grant the licence or refuse to grant the same : Provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.] (3) The licensing authority shall grant- (a) a licence under Section 3 where the licence is required- (i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection: Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or (ii) in respect of a 22 "firearm" to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government; (b) a licence under section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same. “14. “14. Refusal of licences.— (1) Notwithstanding anything in section 13, 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.” 7. At this stage, it is apposite to refer to the decision in the case of Sorab Jehangir Bamji vs. State of Gujarat through Deputy Secretary & Anr., reported in 2011(3) GCD 2621 , paragraphs 17 and 18 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. 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 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. 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. The writ-applicant herein was in receipt of firearm license bearing No.1 of 2018. The said license came to be renewed upto 31.12.2021. The writ-applicant thereafter again applied for renewal of firearm license on 23.12.2021 which came to be declined on the ground that the age of the writ-applicant is above 60 years and rather than considering the application of the writ-applicant it was held that the writ-applicant may avail the benefit of barbed wire scheme around the field for protection of crop. In the opinion of this Court, the reasonings in the impugned orders are not in line with the provisions of Sections 13 and 14 of the Arms Act and the position of law as referred above. The same are passed on subjective satisfaction of the competent authorities wherein the writ-applicant herein is refused renewal of firearm license considering the age of the writ-applicant and that the writ-applicant to avail benefit of Government Scheme. It is not the case of the State authorities that the writ-applicant has been found not worthy of the license on the grounds mentioned under Section 14 of the Arms Act. 9. In view of the aforesaid ground the impugned orders are required to be quashed and set aside. The impugned order dated 16.1.2023 Marked at Annex. “A” passed by the (I.A.S.) District Magistrate, at Patan in Appeal No. 7 of 2022 and order dated 24.5.2022 Marked at Annex. “B” passed by The Sub-Divisional Magistrate, Patan in Application No. MAG/VSHI/ 1133 to 1137/2022 are hereby quashed and set aside accordingly on the aforesaid ground. The matter is remanded back to the respondents No.2 and/or 3 to decide afresh within a period of four weeks after issuing notice and providing opportunity of hearing. 10. The present writ-application stands partly allowed accordingly.