SCA/3638/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3638 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= BHUPENDRASINH AMBADAN GADHVI - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR AY KOGJE for Petitioner(s) : 1, MR HEMANG PARIKH, AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 13/08/2008 ORAL JUDGMENT 1. Rule. Mr. Hemang Parikh learned AGP waives service of notice of rule. 2. With the consent of the learned Counsel SCA/3638/2008 2/8 JUDGMENT appearing for both the sides, the matter is finally heard today. 3. The short facts of the case appear to be that the petitioner was holding licence for 12 Bore Gun vide No. 335/Naroda, as well as licence for Revolver vide No. 347/Naroda. As the Criminal Case was filed against the petitioner, the licence for 12 Bore Gun was suspended vide order dated 17.11.2004, whereas licence for Revolver was cancelled vide order 17.11.2004. As per the petitioner thereafter, the trial is concluded and the petitioner has been acquitted. The petitioner thereafter, moved authority for revocation of the order of suspension of the licence for 12 Bore Gun, which has been revoked. However, so far as the licence for Revolver is concerned, it was stated vide communication dated 7.11.2008, by Joint Police Commissioner to the Additional Chief Secretary that as the licence was cancelled, the period of thirty days of appeal was required to be mentioned in the order, which was not mentioned due to oversight and therefore, the appeal may be considered. As SCA/3638/2008 3/8 JUDGMENT per the petitioner, thereafter, appeal was preferred, which is registered as appeal No. 2 of 2008, and the State Government rejected the appeal on the ground that the same is time barred and no case is made out. Under these circumstances, the present petition before this Court. 4. Heard Mr. Kogje learned Counsel for the petitioner, and Mr. Hemang Parikh learned AGP for the State Authorities. 5. It is an admitted position that licence was cancelled on the ground that the Criminal Case was filed against the petitioner. It is also an admitted position that the petitioner has been acquitted in the said Criminal Case. Once, the licence was cancelled, it was required for the authority, to state in the very order, as per the usual practice that appeal can be preferred by the petitioner, if he is aggrieved by order for cancellation of the licence for Revolver. The communication Annexure-H, as well as the decision for cancellation of the licence dated 17.11.2004 Annexure A2, shows that such SCA/3638/2008 4/8 JUDGMENT communication for entitling the petitioner to prefer an appeal, in the event the petitioner is aggrieved by the order, was not mentioned and the same appears to be admitted position. Therefore, under these circumstances, only question to be considered is, whether the appellate authority was right in rejecting appeal, merely because it was preferred after period of two years or not. 6. Section 18 of the Arms Act, which is relevant for the purpose of this petition, reads as under: 18. Appeals-(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed: Provided that no appeal shall lie against any order made by, or under the direction of the Government. SCA/3638/2008 5/8 JUDGMENT (2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed thereof: Provided that an appeal may be admitted after the expiry of the period prescribed therefore if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period. (3) The period prescribed for an appeal shall be computer in accordance with the provision of the Indian Limitation Act, 1908 (9 of 1908), with respect to the computation of periods of limitation there under . (4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed. (5) In disposing of an appeal the appellate authority shall follow such procedure as may be prescribed : Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard. SCA/3638/2008 6/8 JUDGMENT (6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order. Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final. 7. The aforesaid section shows that there is power with the appellate authority to entertain appeal, if it is found that sufficient cause is made out for not preferring appeal within a period of limitation. If there is statutory right of the party to prefer an appeal against the decision of the first authority, and as per the practice, it is required to be communicated, was not communicated, which has resulted into a cause for not preferring appeal within a period of limitation, it could be said as one of the valid ground for condoning delay of preferring appeal. Therefore, as such the delay ought to have been condoned by the State Government while entertaining appeal. The aforesaid is with the SCA/3638/2008 7/8 JUDGMENT peculiar circumstance that so far as the licence for 12 Bore Gun is concerned, power was exercised for suspending the licence. Whereas for licence of Revolver, the licence was cancelled. The additional circumstances that the petitioner is acquitted by the competent Court in the Criminal Case on the basis of which earlier licence for Revolver was cancelled. Therefore, it can be said that there is a case to be considered by the appellate authority on merits. 8. It is by now well settled that if there is a good case on merits to be considered, normally the discretion vested to the authority for condonation of delay is to be leniently exercised, unless right of the authorities have altered during the period of delay, or any irreversible situation has arisen. Nothing has come on record, which may show the consequence of altering right of the party or any irreversible situation. 9. Under these circumstances, the order passed by the appellate authority for not condoning the SCA/3638/2008 8/8 JUDGMENT delay, and declining to entertain the appeal on merits cannot be sustained. Hence, the same is quashed and set aside with the direction that the appeal No. 2 of 2008 shall stand restored to the State Government for hearing on its merits, after giving opportunity of the hearing to all concerned including the petitioner herein. The appeal shall be decided as early as possible preferably, within a period of three months from the receipt of the order of this Court. 10.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to cost. Direct service is permitted. (JAYANT PATEL, J.) Suresh*