KAILASH NATH Vs. STATE

JUDGEMENT

(1.) We allow the petitioners two weeks' time from today to file their representations or objections before the District Magistrate, Banda and order the District Magistrate to decide the same within three weeks from the date of filing such representations or objections. It is not necessary to set aside the impugned order and we accordingly dispose of these writ petitions without passing any such formal order. There will be no order as to costs. M.N. SHUKLA, C. J. (on behalf of himself and on behalf of WAHAJUDDIN and R.P. SHUKLA AND A.N. DIKSHITA, JJ.):- These two cases involve important questions interlinked with the daily lives of people, abiding in a civilised society, the executive authorities entrusted with the sovereign duty of maintaining law and order, extending certain privileges to citizens of the State who actuated by a desire to protect themselves may desire to procure arms for themselves, the necessity of regulating and controlling such privileges by rules of law and procedure, and making them liable to be withdrawn, altered or abridged on the non-fulfilment of certain conditions or the supervention of new factors. The orders impeached in these cases are orders passed by the executive authorities, significantly purporting to have been passed under the legal sanction derived from a Full Bench decision of this Court in Chhanga Prasad Sahu v. State of U. P., 1984 All WC 145. That decision was rendered by a Full Bench of three Judges and consequently the hearing of the present writ petitions has necessitated constitution of a Full Bench of five Judges of this Court to decide the question of law canvassed before us. The thrust of the argument has been both on the interpretation and validity of the law laid down in Chhanga Prasad Sahu's case (supra). In that judgment the following observations occur :

(2.) The facts of the present cases which lie in a short compass may be briefly stated. Writ Petition No. 9379 of 1984 has been filed by six petitioners who have prayed for quashing of six orders respectively by which the District Magistrate, Banda cancelled their gun licence and directed them to deposit their weapons forthwith. Likewise the petitioner in Writ Petition No. 9394 of 1984 has prayed for quashing of the order passed by the District Magistrate, Banda whereby the petitioner's gun licence was cancelled and he was directed to surrender his gun. The aforesaid order passed by the District Magistrate revealed that he felt satisfied that there was an immediate apprehension of breach of peace from the petitioner, that they were likely to use firearms for commission of crime and that with the object of preserving peace and preventing the petitioners from using the firearms for committing the crime, cancellation of their licences was essential. In both the writ petitions the orders have been challenged on the ground that they were passed without any notice to the petitioners or any opportunity of hearing being given to them prior to the cancellation of the licence. It has been vehemently urged that this was in flagrant violation of the principles of natural justice.

(3.) The law is well settled that before an action is proposed to be taken against an individual which affects his rights and involves civil consequences, he must be given an opportunity to show cause. This is the essence of the rule of 'audi alteram partem' which is the principal doctrine of natural justice. This rule, however, must be confined to a case in which the adjudication of right of a party arises and which involves civil consequences. A right is distinct from a mere privilege. The case of a licencee to possess or use firearm is materially different from a case of licence to deal in or sell firearms. Section 3 of the Arms Act, 1959 deals with acquisition and possession of firearms or ammunition on the strength of a licence whereas S.5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licence for acquisition and possession of firearms is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful. In my opinion the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the right of an individual nor does it entail civil consequences. I may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen may apply for grant of a licence of firearms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Art.21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras, 1950 SCR 88 . Art.21 is attracted only is cases of deprivation in the sense of total loss and that accordingly has no application to the case of a mere restriction upon the right to move freely or to the grant of licence for possession and acquisition of firearms which stands on an entirely different footing from the licence to carry on a trade or occupation. The rule of natural justice cannot be invoked unless civil consequences ensue. A civil right being adversely affected is a condition precedent for attracting the 'audi alteram partem rule'. The cases of Ram Gopal Chaturvedi v. State of Madhya Pradesh, AIR 1970 SC 158 and Union of India v. J. N. Sinha, AIR 1971 SC 40 were decided on the basis that the action under challenge in those cases did not involve any civil consequences. Black's Law Dictionary, Fifth Edition, at page 222 contains the following definition of "Civil":-