IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Sahab Singh Vs. Divisional Commissioner Kota & Others (S. B. Civil Writ Petition No.4727/2005) S.B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Date of Judgment: January 28th, 2009 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Anurag Sharma, for the petitioner. Mr. Ankur Rastogi. Addl. G.A. for respondents. BY THE COURT: The petitioner has challenged the order dated 19-10-2004, passed by District Collector, Karauli and the order dated 2-5-2005 passed by Divisional Commissioner Kota. By the former order, the learned Collector Karauli had cancelled the petitioner's arms licence. By the latter order the Divisional Commissioner has confirmed the Collector's order and has dismissed the appeal filed by the petitioner. 2. The brief facts of the case are that the petitioner is a resident of Karauli District—a district infested by the menace of dacoity. According to the petitioner, his family used to own certain stone quarries. From his childhood, his family was harassed by the dacoits and other criminals of the area. After reaching maturity, the petitioner applied for grant of arms licence. The arms licence was granted by the Collector, District Karauli. The same was renewed from time to time, after the petitioner deposited requisite fees. However, subsequently on 1-5-2000, the petitioner received a notice, wherein it was claimed that according to the Superintendent of Police, Karauli, the petitioner was involved in helping dacoits and other criminals of the area. Therefore, the Superintendent of Police, Karauli had written to the Collector, Karauli for cancelling the arms licence granted to the petitioner. Immediately, the petitioner replied to the said notice and denied the allegations levelled by the Superintendent of Police, Karauli. Vide order dated 26-6-2000, the learned District Collector, Karauli cancelled the arms licence owned by the petitioner. Since the petitioner was aggrieved by the order dated 26-6-2000, he filed an appeal before the Divisional Commissioner, Kota. Vide order dated 23-6-2003, the learned Divisional Commissioner, Kota remanded the case back to learned Collector, Karauli directing him to consider the evidence and pass necessary orders. After hearing the learned counsel for the petitioner, vide order dated 19-10-2004, the learned Collector, Karauli cancelled the arms licence granted to the petitioner. Aggrieved by the order dated 19-10-2004, the petitioner again preferred an appeal before the Divisional Commissioner, Kota. However, vide order dated 2-5-2005, the learned Divisional Commissioner Kota dismissed the appeal filed by the petitioner and confirmed the order dated 19-10-2004. Hence, this petition before this Court. 3. Mr. Anurag Sharma, learned counsel for the petitioner, has submitted a plethora contentions before this court: firstly, the petitioner is a law abiding citizen, who believes in peace and tranquility in the society. However, as the petitioner has been threatened by petty criminals and the dacoits of the area, as his life and property are under threat, therefore, the petitioner needs to keep an arm weapon with him. Therefore, the arm licence should have been renewed. Secondly, the petitioner has a right to defend his life and property and considering the fact that Karauli is dacoity infested area, he has a right to have arms. Thirdly, vide order dated 23-6- 2003, the Divisional Commissioner Kota while remanding the case back to the learned Collector, the Collector was directed to record evidence and to pass the order in accordance with law. However, the Collector has not recorded any evidence and has passed the impugned order dated 19-10-2004. Fourthly, the Collector could have looked into the evidence upto 1-5-2000, i.e. the date on which the notice for cancellation of arms licence was issued. Till 1-5-2000, no adverse report existed against the petitioner. The report of criminal activities relate to the post- 2000 period. Therefore, the same could not be considered by the Collector. Fifthly, the learned Collector has considered the letter dated 15-6-2004, written by the Superintendent of Police, Karauli, wherein cases which were pending, or decided against the petitioner were enumerated. However, neither a copy of the said letter was given to the petitioner, nor the petitioner was granted the liberty to rebut the contents of the said letter. Therefore, his rights under the principles of natural justice have been violated. Lastly, the Divisional Commissioner has mechanically dismissed the petitioner's appeal without applying his mind to the facts and circumstances of the case. Therefore, the impugned order dated 2-5- 2005 is also unsustainable. 4. Mr. Ankur Rastogi, the learned Addl. Government Advocate, has raised various contentions before this court: firstly, the petitioner cannot claim the right to bear arms. For, no such right exists in the form of civil right or a fundamental right. Therefore, the petitioner cannot claim that arms licence should be renewed as of right. The only right that the petitioner does have is the right of consideration. After duly considering the case, learned Collector has rejected the case of petitioner on cogent reasons and no illegality has been committed by the Collector. Secondly, it is the Collector's duty to maintain law and order situation within his district. Therefore, a large measure of discretion has to be granted to the Collector to decide whether arms licence should be issued or not. Thirdly, in order to consider whether arms licence should be renewed or not, learned Collector would be justified in examining the precedents or the prior conduct of the petitioner. There is no provision of law, which limits the power of Collector, to consider complete antecedents of the petitioner. Therefore, the Collector is not barred by considering the post-2000 conduct of the petitioner. Fourthly, the words "ूकरणमें साआ यलेकर" contained in the order dated 26-3-2003 do not imply that evidence needs to be recorded. But, merely imply that the Collector should look into the evidence produced by the concerned parties. Fifthly, the letter dated 15-6-2004 was, indeed, brought to the notice of petitioner's counsel. The petitioner's counsel, in fact, had denied the contents of the said letter. Therefore, the petitioner is not justified in claiming that the letter, containing adverse report against him, was not shown to him or that he was not confronted by the said letter. Therefore, the petitioner is pre-empted from raising the boggie of violation of principles of natural justice. Lastly, the Divisional Commissioner has passed a reasoned order agreeing with the order of learned Collector. Thus, the learned counsel has supported the impugned orders dated 19-10-2004 and 2-5-2005. 5. Heard learned counsel for the parties and perused the impugned orders and the relevant material available on record. With their consent, this petition is being decided at the admission stage itself. 6. It is the cardinal duty of the State to maintain peace and tranquility, law and order. Therefore, an onerous responsibility has been imposed upon them. The public officer is to maintain peace & tranquility. Needless to say, the more onerous the responsibility, greater the discretion vested in the authority. Of course, discretion does not mean arbitrary action, or one influenced by malafide, or ulterior motive, or cannot based on unreasonableness. The action of the Executive, undoubtedly, has to be fair, just and reasonable. But, simultaneously, a certain amount of flexibility, or “play at the joints” has to be granted to the public officer. After all, a person like the Collector is well aware of the reality at the grassroot level. Therefore, in a delicate matter like renewal of arms licence, this Court would be weary of interfering in the discretion. Unless and until, there are allegations of arbitrariness, malafide, unreasonableness, irrationality, undue influence, this Court would not interfere with the decision of the Collector. 7. Section 17 of the Arms Act,1959 dealing with variation, suspension and revocation of licences, reads as under:- 17. Variation, suspension and revocation of licences.- (1) The licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence-holder by notice in writing to deliver-up the licence to it within such time as may specified in the notice. (2) The licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed. (3) The licensing authority may by order in writing suspend a licence for such period as it thinks fit or revoke a licence,-- (a) if the licensing authority is satisfied that the holder of the licence is 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 is of unsound mind, or is for any reason unfit for a licence under this Act; or (b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or (c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or (d) if any of the conditions of the licence has been contravened; or (e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver- up the licence. (4) The licensing authority may also revoke a licence on the application of the holder thereof. (5) Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefor and furnish to the holder of the licence 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. (6) The authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority. (7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence: Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void. (8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers of revision. (9) The Central Government may, by order in the Official Gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licences granted under this Act throughout India or any part thereof. (10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation. 8. A bare perusal of above provisions clearly reveals that a licence can be cancelled if the licensing authority deems it necessary for the security of public peace or for public safety to suspend or revoke the licence. Thus, while considering the question of cancellation of licence, the appropriate authority is to see the impact on the public peace. Moreover, although Section 17 does not contain an elaborate procedure for granting an opportunity of hearing, but nonetheless, principles of natural justice would have to be read in the provision. Thus, an opportunity of hearing would have to be given to a person before his licence can be cancelled. But, an opportunity of hearing does not require that evidence needs to be recorded elaborately by the licensing authority. It is sufficient, if the documentary evidence adverse to the licence holder was brought to his notice, and the licence holder was given an opportunity to explain his position. Such a summary proceeding would fulfill the requirement of principles of natural justice. 9. Since Section 17 of the Arms Act does not require the recording of evidence, mere use of words "ूकरणमेंसाआ यलेकर", in order dated 23-6-2003, does not bind the learned Collector "to record the evidence". These words merely directed the Collector to consider the documentary evidence or oral evidence which may have been brought to his notice by the concerned authority, such as the police or others. Therefore, the contention of the petitioner that the Collector has failed to record the evidence is unsustainable. 10. A bare perusal of the impugned order dated 19-10-2004 clearly reveals that the petitioner was duly represented by his counsel Mr.Sunil Sharma. Undoubtedly, the impugned order makes a mention of the letter dated 15-6-2004 issued by Superintendent of Police, Karauli to the Collector, wherein numerous offences committed by the petitioner have been enumerated and details of cases have been given. But, the fact that learned counsel for petitioner had denied the veracity of the contents of the letter, clearly proves that this letter was shown to the petitioner's counsel. Therefore, the petitioner had knowledge about the existence of letter and about the contents of the letter. Hence, the petitioner is not justified in claiming that the Collector has considered a piece of evidence, with which he was not confronted. Since the document was well within the knowledge of the petitioner and the petitioner's counsel had argued before the Collector, the petitioner cannot plead the violation of principles of natural justice. 11. As stated above, it is the duty of public officer to consider the permission of grant of arms licence. Therefore, the Collector would be justified in considering the entire antecedents of the petitioner before renewing his licence. Law and order problem is a continuous problem faced by the Administration. Thus, the Collector would be justified in considering the entire record of the petitioner. Moreover, there is no prohibition in law, which limits the power of consideration by the Collector. Therefore, the contentions raised by the learned counsel for the petitioner that the Collector was prohibited from considering the conduct of the petitioner in the post-2000 period, is without any merit. Since, the petitioner has been convicted, according to learned counsel for petitioner himself, in two criminal cases, the Collector is justified in cancelling the arms licence of petitioner. For, a citizen who violates the law and causes disturbance in law and order situation, cannot claim the right to bear arms. 12. For the reasons, mentioned above, there is no merit in the instant writ petition. It is, hereby, dismissed, without any order as to costs. ( R.S. CHAUHAN ) J. arn