High Court Division :
(Special Original Jurisdiction)
Moyeenul Islam
Chowdhury J
Md Ashraful Kamal J
Hafizur Rahman Nafor
…………………….Petitioner
vs
Secretary, Ministry of Home Affairs and others………….Respondents
Judgment
March 2nd, 2015
Constitution of Bangladesh, 1972
Article 102(2)
Principle of Natural Justice-The memo does not indicate that the petitioner misused or abused the terms and conditions of the licence. No concrete materials are forthcoming on record that he posed any threat to the security of the public peace by abusing his gun. In the absence of any substantial and concrete materials on record, it is difficult for a man of ordinary prudence to place his reliance on annexure-‘3’ so far as it relates to the petitioner. The alleged material against the petitioner is vague, unspecific and nebulous. . ….. (27)
Bangladesh vs Md Azharul Islam, 13 BLT (AD) 166; Sk. Ali Ahmed vs Secretary Ministry of Home Affairs, Government of the People’s Republic of Bangladesh, 40 DLR (AD) 170; Reza-ul-Karim (Md) vs Secretary, Ministry of Home Affairs, 44 DLR 110; Lord Atkin in R vs Electricity Commissioners ([1924) 1 KB 171); Ridge vs Baldwin ([1964] AC 40); University of Dacca vs Zakir Ahmed, 16 DLR (SC) 722; Habibullah Khan .vs Shah Azharuddin Ahmed, 35 DLR (AD) 72; Hamidul Huq Chowdhury vs Bangladesh, 33 DLR 381; Farzana Haque vs University of Dhaka, 42 DLR 262; Re Infant H (K) ([1967] 1 All ER. 226); Council of Civil Service Union vs Minister for the Civil Service [1984] 3 All ER 935; Swadeshi Cotton Mills vs India, AIR 1981 SC 818; Chingleput Bottlers vs Majestic Bottlers, AIR 1984 SC 1030; Gonzalez vs Freeman, 334 F. 2d 570; Ram Chandra vs Secretary to the Government of WB, AIR 1964 Cat 265; Punjab vs Khanna, AIR 2001 SC 343; Associated Provincial Picture vs Wednesbury Corporation [1943]1 KB 223; Vide AIR 1956 Calcutta 96, AIR 1954 Rajasthan 264 and Reza-ul-Karim (Md) vs Secretary, Ministry of Home Affairs, 44 DLR 110 ref.
Md Eunus Ali Akond with Golam Mostofa Lasker, Advocates-For the Petitioner.
Md Motaher Hossain (Sazu), DAG with Purabi Rani Sharma, AAG and ABM Mahbub, AAC-For the Respondents.
Judgment
Moyeenul Islam Chowdhury J: On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioner, a Rule Nisi was issued calling upon the respondents to show cause as to why the Memo No. JM Gha-2/95/416(85) dated 14-5-2001 issued by the respondent No.2 so far as it relates to serial No.8 cancelling the petitioner’s Arms Licence No. 31/98 (Annexure-‘ A: to the writ petition) should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem-fit and proper.
2. The case of the petitioner, as set out in the writ petition, in short, is as follows:
The petitioner was elected as Chairman of Gobindapur Union Parishad, Muksudpur in the District of Gopalganj in 1998. Anyway, the petitioner made an application to the authority for an arms licence and deposited the required amount to the treasury vide challan No.6 dated 1-12-1998 and obtained licence No. 31/98 Gopalganj issued by the respondent No.2 on 1-12-1998. Accordingly, the petitioner purchased a single-barrelled gun on 15-12-1998 vide receipt No.1833 dated 15-12-1998. After expiration of the validity of the licence, the petitioner deposited the required sum of Taka 200 to the Sonali Bank, Gopalganj on 23-1-2001 for renewal of the said licence. But all of a sudden, the respondent No.2 cancelled the licence of the petitioner vide Memo No. 31/98 dated 14-5-2001 (Annexure-‘ A’ to the writ petition). Prior to cancellation of the licence of the petitioner, he was not given any opportunity of being heard. Because of the violation of the principle of natural justice, the impugned Memo No. JM Gha-2/95/416 (K5) dated 14-5-2001 is without lawful authority and of no legal effect.
3. In the supplementary affidavit dated 12-5-2014 filed on behalf of the petitioner, it has been stated that there is a trust in the name of the petitioner’s father under the name and style “Moulvi Abdul Hye Memorial Trust” and a school-cum-college in the name of Moulvi Abdul Hye Memorial School and College at his village. The petitioner is a life-member of the said trust and a teacher of the school and college. For the safety and security of his life and property, the licence of the single-barrelled gun was granted in his favour by the appropriate authority after proper verification. But some inimical quarters got the licence cancelled by the respondent No.2 with malafide intention and thereafter the petitioner deposited the licensed gun to the local Police Station on 17-6-2001. The petitioner did never misuse the terms and conditions of the licence and there was no complaint against the petitioner from any quarter in that regard and he was not a chargesheeted accused in any criminal case.
4. In the Supplementary Affidavit dated 4-12-2014 filed on behalf of the petitioner, it has been averred that being jealous of the reputation of the petitioner and his family, some interested person lodged an ejahar with Muksudpur Police Station against the petitioner and others on 26-7-1999 on the basis of which Muksudpur Police Station Case No.7 dated 26-7-1999 was registered which corresponded to GR Case No. 393 of 1999 under sections 143/323/324/326/ 307/379/114/34 of the Penal Code; but after investigation, final report was submitted in that case and eventually the final report was accepted by the learned Magistrate and the petitioner was discharged from the case on 25-4-2000. Besides, another ejahar was lodged against the petitioner and others with Muksudpur Police Station on 2-7-2000 whereupon Muksudpur Police Station Case No.2 dated 2-7-2000 was registered which corresponded to GR Case No. 73 of 2000 and after investigation, the petitioner was not sent up in the police report dated 8-11-2001 and the co-accused were acquitted of the charge levelled against them on 12-11-2003.
5. The respondent No.2 has contested the Rule by filing an Affidavit-in-Opposition. His I case, as set out therein, in short, runs as follows:
The Senior Assistant Secretary of the Ministry of Home Affairs wanted a detailed and specific opinion from the Deputy Commissioner of Gopalganj about the cancellation of licences of fire arms of the charge-sheeted accused by a Memo dated 23-4-2000. Thereafter the Deputy Commissioner, Gopalganj sent a letter to the Superintendent of Police, Gopalganj for submission of a report of the charge-sheeted accused on 5-7-2000 and the Superintendent of Police, District Special Branch, Gopalganj submitted a report that had about 11(eleven) charge-sheeted accused on 27-2-2001. On the basis of the report dated 27-2-2001 submitted by the Superintendent of Police, District Special Branch, Gopalganj, the District Magistrate, Gopalganj (respondent No.2) cancelled the licence of the petitioner on 14-5-2001 in public interest. The order of cancellation of the licence of the petitioner was justified in the facts and circumstances of the case. Hence, the Rule is liable to be discharged.
6. At the outset, Mr Golam Mostofa Lasker, learned Advocate appearing on behalf of the petitioner, submits that it is an admitted fact that prior to cancellation of the gun licence of the petitioner by the impugned Memo dated 14-5-2001, the petitioner was not given any opportunity of being heard and because of violation of the principle of natural justice, the impugned Memo dated 14-5-2001 cannot be sustained in law and that being so, the impugned Memo is liable to be struck down as being without lawful authority and of no legal effect. In support of this submission, Mr Golam Mostofa Lasker draws our attention to the decisions in the cases of Bangladesh vs Md Azharul Islam, 13 BLT (AD) 166; Sk. Ali Ahmed vs The Secretary Ministry of Home Affairs, Government of the People’s Republic of Bangladesh, 40 DLR (AD) 170 and Reza-ul-Karim (Md) vs Secretary, Ministry of Home Affairs, 44 DLR 110.
7. Per contra, Ms Purabi Rani Sharma, learned Assistant Attorney-General appearing on behalf of the respondent No.2, submits that though the petitioner was not accorded any opportunity of being heard prior to cancellation of the gun licence of the petitioner on 14-5-2001, yet the fact remains that in the facts and circumstances of the case, the cancellation of the licence was perfectly justified.
8. We have heard the submission of the leamed Advocate Mr Colam Mostofa Lasker and the counter-submission of the learned Assistant Attorney-General Ms Purabi Rani Sharma and perused the writ petition, supplementary affidavits, Affidavit-in-Opposition and relevant annexures annexed thereto.
9. Indisputably the principle of “Audi Alteram Partem” was not adhered to prior to revocation of the gun licence of the petitioner by issuing the impugned Memo dated 14-5-2001. Now a pertinent question arises: what legal consequences will ensue for not following the principle of “Audi Alteram Partem” in this regard? This question must be answered for proper and effectual adjudication of the Rule.
10. The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrariness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has to deal with. These principles are classified into two categories-(i) a man cannot be condemned unheard (audi alteram partern) and (ii) a man cannot be the judge in his own cause (nemo debel esse judex in propria causa). The contents of these principles vary with the varying circumstances and those cannot be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding ‘issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the ‘decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application.
11. Lord Atkin in R vs Electricity Commissioners ([1924]1 KB 171) observed that the rules of natural justice applied to ‘any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’. The expression ‘having the duty to act judicially’ was used in England to limit the application of the rules to decision-making bodies similar in nature to a court of law. Lord Reid, however, freed these rules from the bondage in the landmark case of Ridge vs Baldwin ([1964] AC 40). But even before this decision, the rules of natural justice were being applied in our country to administrative proceedings which might affect the person, property or other rights of the parties concerned in the dispute. In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. In this context, reliance may be placed on the cases of The University of Dacca vs Zakir Ahmed, 16 DLR (SC) 722; Sk. Ali Ahmed vs The Secretary, Ministry of Home Affairs, 40 DLR (AD) 170; Habibullah Khan vs Shah Azharuddin Ahmed, 35 DLR (AD) 72; Hamidul Huq Chowdhury vs Bangladesh, 33 DLR 381 and Farzana Haque vs The University of Dhaka, 42 DLR 262.
12. In England, the application of the principles of natural justice has been expanded by introducing the concept of ‘fairless’. In Re Infant H (K) ([1967)1 All ER. 226), it was held that whether the function discharged is quasi-judicial or administrative, .the. authority must act fairly. It is sometimes thought that the concept of ‘acting fairly’ and ‘natural justice’ are different things, but this is wrong as Lord Scarman correctly observes that the Courts have extend the requirement of natural justice, namely, the duly to act fairly, so that it is required of a purely administrative act (Council of Civil Service Union vs Minister for the Civil Service [1984J 3 All ER 935). Speaking about the concept, the ‘acting fairly’ doctrine has at least proved useful as a device for evading some of the previous confusions. The Courts now have two strings to their bow. An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore involves a duty to act judicially, in accordance with the classic authorities and Ridge vs Baldwin; or it may simply be held that in our modern approach, it automatically involves a duly to act fairly and in accordance with natural justice.
The Indian Supreme Court has adopted this principle holding ” …. this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands” (Swadeshi Cotton Mills vs India, AIR 1981 SC 818).
13. The English Courts have further expanded the horizon of natural justice by importing the concept of ‘legitimate expectation’ and holding that from promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right. To cite a few examples, not only in the case of cancellation of licence which involves denial of a right, but also in the case of first-time grant of licence and renewal of licence, the principle of natural justice is attracted in a limited way in consideration of legitimate expectation. An applicant for registration as a citizen, though devoid of any legal right, is entitled to a fair hearing and an opportunity to controvert any allegation levelled against him. An alien seeking a visa has no entitlement to one, but once he has the necessary documents, he does have the type of entitlement that should now be protected by due process, and the Government should not have the power to exclude him summarily.
14. In the case .of Chingleput Bottlers vs Majestic Bottlers reported in AIR 1984 SC 1030, the Indian Supreme Court has made certain observations which create an impression that the rules of natural justice are not applicable where it is a matter of privilege and no right or legitimate expectation is involved. But the application of the rules of natural justice is no longer tied to the dichotomy of right-privilege. It has been stated in “Administrative Law” by HWR Wade, 5th edition at page-465: “For the purpose of natural justice, the question which matters is not whether the claimant has some legal right, but whether the legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interests, but simply of the exercise of Governmental power in a manner which is fair … ” In the American jurisdiction, the right-privilege dichotomy was used to deny due process hearing where no right was involved. But starting with Gonzalez vs Freeman (334 F. 2d 570), the Courts gradually shifted in favour of the privilege cases and in the words of Professor Schwartz, “The privilege-right dichotomy is in the process of being completely eroded” (“Administrative Law”, 1976, Page-230). Article 31 of our Constitution incorporating the concept of procedural due process, the English decisions expanding the frontiers of natural justice are fully applicable in Bangladesh.
15. In English law, the rules of natural justice perform a function, within a limited field, similar to the concept of procedural due process as it exists in the American jurisdiction. Following the English decisions, the Courts of this subcontinent have held that the principle of natural justice should be deemed incorporated in every statute unless it is excluded expressly or by necessary implication by any statute.
16. The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford’ him a fair opportunity to answer the case against him and to put his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal, application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party.
(To be continued)
17. It is often said that malafides or bad faith vitiates everything and a malafide act is a nullity. What is malafides? Relying on some observations of the Indian Supreme Court in some decisions, Durgadas Basil J held, “It is commonplace to state that malafides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes: (i) that the authority making the impugned order did not apply its mind at all to the matter in question; or (ii) that the impugned order was made for a purpose or upon a ground other than what is mentioned in the order.” (Ram Chandra vs Secretary to the Government of WB, AIR 1964 Cal 265)
18. To render an action malafide, “There must be existing definite evidence of bias and action which cannot be attributed to be otherwise bonafide; actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act” (Punjab vs Khanna, AIR 2001 SC 343).
19. The principle of reasonableness is used in testing the validity of all administrative actions and an unreasonable action is taken to have never been authorized by the Legislature and is treated as ultra vires. According to Lord Greene, an action of an authority is unreasonable when it is so unreasonable that no man acting reasonably could have taken it. This has now come to be known as Wednesbury unreasonableness. (Associated Provincial Picture vs Wednesbury Corporation [1943J 1 KB 223).
20. Reverting to the case in hand, it is an indubitable fact that the principle of “Audi Alteram Partem” was not adhered to prior to revocation of the gun licence of the petitioner by the impugned Memo dated 14-5-200l.
21. It goes without saying that the impugned order of cancellation of the gun licence of the petitioner was made pursuant to Clause (a) of section 18 of the Arms Act, 1878. Section 18 (a) of the Arms Act contemplates that any licence may be cancelled or suspended-(a) by the officer by whom the same was granted or by any authority to which he may be subordinate, or by any Magistrate of a district within the local limits of whose jurisdiction the holder of such licence may be, when, for reasons to be recorded in writing, such officer, authority, Magistrate deems it necessary for the security of the ,public peace to cancel or suspend such licence. From the provisions of section 18(a) of the Arms Act, it is ex-facie clear that the principle of natural justice has not been excluded either expressly or by necessary implication before cancellation of any licence. In that view of the matter, the principle of natural justice should be deemed to have been incorporated in section 18 of the Arms Act.
22. In this connection, in the decision in the case of Sk Ali Ahmed vs The Secretary, Ministry of Home Affairs, Government of the People’s Republic of Bangladesh reported in 40 DLR (AD) 170, it has been held in paragraphs 15 &16:
“15. As to the question whether the appellant was entitled to a show cause notice/hearing before the decision to cancel his licence was taken, the High Court Division took the view that there is no such requirement under the Arms Act nor can such a requirement be imported into the statute because of the sensitive nature of the subject matter. This view seems to find support from some decisions in the Indian Jurisdiction (Vide AIR 1956 Calcutta 96, AIR 1954 Rajasthan 264). It must, however, be pointed out that there is a long line of decisions from the Pakistan Jurisdiction, (The University of Dhaka vs Zakir Ahmed, PLD 1965 SC 90 =16 DLR (SC) 722) which have consistently taken the view that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting “the person or properly or other right of the parties concerned.” This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases, this requirement is to be implied into it as the minimum requirement of fairness.
16. We are in respectful agreement with the above principle, but like to add a rider that so far as exercise of power under section 18 of the Arms Act is concerned, the absence of a prior notice/hearing may not always invalidate the order passed there- ‘ under, the subject matter being directly related to the security of the public peace. It may not be possible or advisable to adhere to the principle of natural justice of a prior show cause in every case because of the exigencies of situation. Each case has to be examined on its own merit to see whether a prior notice was required to be given. It may be pointed out that Wanchoo CJ in the aforesaid Rajasthan case, while holding that absence of hearing would not invalidate the order, observed that “It may perhaps be advisable, before such action is taken, that the licensee should be heard and we believe that generally licensees are heard before licences are cancelled.”
23. In the present case before us, undeniably the petitioner was condemned unheard. Now a pertinent question arises: Did the respondent No. 2 think it advisable or necessary in the interest of the security of the public peace to cancel the licence of the petitioner without giving him any prior show cause notice? In this respect, the impugned Memo dated 14-5-2001 may be adverted to. From a plain reading of the impugned Memo dated 14-5-2001, it transpires that the petitioner was a charge-sheeted accused in some criminal cases and that being so, for the security of the public peace, the respondent No.2 deemed it necessary to cancel the licence of the petitioner and accordingly he did so by the impugned Memo dated 14-5-2001.
24. In the decisions in the case of Bangladesh vs Md Azharul Islam, 13 BLT (AD) 166 and Rezaul-Karim (Md) vs Secretary, Ministry of Home Affairs, 44 DLR 110 for violation of the principle of natural justice, the impugned orders were found to be without lawful authority and of no legal effect.
25. In the case in hand, we do not find any exigency of the situation in order to deprive the petitioner of a show cause notice before cancellation of his gun licence. Given this scenario, we hold that the impugned Memo dated 14-5-2001 so far as it relates to the petitioner at serial No. 8 cannot be sustained in law and hence the same is liable to be interfered with.
26. From Annexures-‘E’ and ‘F’ to the supplementary affidavit dated 4-12-2014, it appears that the petitioner was not sent up in the police reports. As per Annexure-‘E’ the final report as true was accepted on 25-4-2000 and the petitioner was discharged from the case (GR Cases No. 393 of 1999 arising out of Muksudpur Police Station Case No.7 dated 26-7-1999 under sections 143/323/324/326/307/379/114/34 of the Penal Code) on that very date, that is to say, prior to issuance of the impugned Memo dated 14-5-2001. However, it is evident from Annexure-‘F’ that the petitioner was not sent up in the police report dated 8-11-2001 in connection with GR Case No. 73 of 2000 arising out of Muksudpur Police Station Case No.2 dated 2-7-2000 and ultimately all the co-accused were acquitted on 12-11-2003. So it is manifestly clear that at the time of issuance of the impugned Memo dated 14-5-2001, the investigation of the GR Case No. 73 of 2000 was in progress. In any view of the matter, it cannot be said that the petitioner was a charge-sheeted accused in the two criminal cases referred to above at the time of cancellation of his gun licence by the impugned Memo dated 14-5-2001.
27. The impugned Memo date 14-5-2001 does not indicate that the petitioner misused or abused the terms and conditions of the licence. Precisely speaking, no concrete materials are forthcoming on record that he posed any threat to the security of the public peace by abusing his gun, though a mere reference thereto is found in Annexure-‘3’ to the affidavit-in-opposition. In the absence of any substantial and concrete materials on record, it is difficult for a man of ordinary prudence to place his reliance on Annexure-‘3’ so far as it relates to the petitioner. The alleged material in Annexure-‘3’ appearing against the petitioner according to us, is vague, unspecific and nebulous.
From the foregoing discussions and regard being had to the facts and circumstances of the case, we find merit in the Rule. The Rule, therefore, succeeds. Accordingly, the Rule is made absolute without any order as to costs. The impugned Memo No. JM Gha-2/95/416(85) dated 14-5-2001 (Annexure-‘A’ to the writ petition) so far as it relates to serial No.8 cancelling the gun licence of the petitioner is declared to be without lawful authority and of no legal effect.
(Special Original Jurisdiction)
Moyeenul Islam
Chowdhury J
Md Ashraful Kamal J
Hafizur Rahman Nafor
…………………….Petitioner
vs
Secretary, Ministry of Home Affairs and others………….Respondents
Judgment
March 2nd, 2015
Constitution of Bangladesh, 1972
Article 102(2)
Principle of Natural Justice-The memo does not indicate that the petitioner misused or abused the terms and conditions of the licence. No concrete materials are forthcoming on record that he posed any threat to the security of the public peace by abusing his gun. In the absence of any substantial and concrete materials on record, it is difficult for a man of ordinary prudence to place his reliance on annexure-‘3’ so far as it relates to the petitioner. The alleged material against the petitioner is vague, unspecific and nebulous. . ….. (27)
Bangladesh vs Md Azharul Islam, 13 BLT (AD) 166; Sk. Ali Ahmed vs Secretary Ministry of Home Affairs, Government of the People’s Republic of Bangladesh, 40 DLR (AD) 170; Reza-ul-Karim (Md) vs Secretary, Ministry of Home Affairs, 44 DLR 110; Lord Atkin in R vs Electricity Commissioners ([1924) 1 KB 171); Ridge vs Baldwin ([1964] AC 40); University of Dacca vs Zakir Ahmed, 16 DLR (SC) 722; Habibullah Khan .vs Shah Azharuddin Ahmed, 35 DLR (AD) 72; Hamidul Huq Chowdhury vs Bangladesh, 33 DLR 381; Farzana Haque vs University of Dhaka, 42 DLR 262; Re Infant H (K) ([1967] 1 All ER. 226); Council of Civil Service Union vs Minister for the Civil Service [1984] 3 All ER 935; Swadeshi Cotton Mills vs India, AIR 1981 SC 818; Chingleput Bottlers vs Majestic Bottlers, AIR 1984 SC 1030; Gonzalez vs Freeman, 334 F. 2d 570; Ram Chandra vs Secretary to the Government of WB, AIR 1964 Cat 265; Punjab vs Khanna, AIR 2001 SC 343; Associated Provincial Picture vs Wednesbury Corporation [1943]1 KB 223; Vide AIR 1956 Calcutta 96, AIR 1954 Rajasthan 264 and Reza-ul-Karim (Md) vs Secretary, Ministry of Home Affairs, 44 DLR 110 ref.
Md Eunus Ali Akond with Golam Mostofa Lasker, Advocates-For the Petitioner.
Md Motaher Hossain (Sazu), DAG with Purabi Rani Sharma, AAG and ABM Mahbub, AAC-For the Respondents.
Judgment
Moyeenul Islam Chowdhury J: On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioner, a Rule Nisi was issued calling upon the respondents to show cause as to why the Memo No. JM Gha-2/95/416(85) dated 14-5-2001 issued by the respondent No.2 so far as it relates to serial No.8 cancelling the petitioner’s Arms Licence No. 31/98 (Annexure-‘ A: to the writ petition) should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem-fit and proper.
2. The case of the petitioner, as set out in the writ petition, in short, is as follows:
The petitioner was elected as Chairman of Gobindapur Union Parishad, Muksudpur in the District of Gopalganj in 1998. Anyway, the petitioner made an application to the authority for an arms licence and deposited the required amount to the treasury vide challan No.6 dated 1-12-1998 and obtained licence No. 31/98 Gopalganj issued by the respondent No.2 on 1-12-1998. Accordingly, the petitioner purchased a single-barrelled gun on 15-12-1998 vide receipt No.1833 dated 15-12-1998. After expiration of the validity of the licence, the petitioner deposited the required sum of Taka 200 to the Sonali Bank, Gopalganj on 23-1-2001 for renewal of the said licence. But all of a sudden, the respondent No.2 cancelled the licence of the petitioner vide Memo No. 31/98 dated 14-5-2001 (Annexure-‘ A’ to the writ petition). Prior to cancellation of the licence of the petitioner, he was not given any opportunity of being heard. Because of the violation of the principle of natural justice, the impugned Memo No. JM Gha-2/95/416 (K5) dated 14-5-2001 is without lawful authority and of no legal effect.
3. In the supplementary affidavit dated 12-5-2014 filed on behalf of the petitioner, it has been stated that there is a trust in the name of the petitioner’s father under the name and style “Moulvi Abdul Hye Memorial Trust” and a school-cum-college in the name of Moulvi Abdul Hye Memorial School and College at his village. The petitioner is a life-member of the said trust and a teacher of the school and college. For the safety and security of his life and property, the licence of the single-barrelled gun was granted in his favour by the appropriate authority after proper verification. But some inimical quarters got the licence cancelled by the respondent No.2 with malafide intention and thereafter the petitioner deposited the licensed gun to the local Police Station on 17-6-2001. The petitioner did never misuse the terms and conditions of the licence and there was no complaint against the petitioner from any quarter in that regard and he was not a chargesheeted accused in any criminal case.
4. In the Supplementary Affidavit dated 4-12-2014 filed on behalf of the petitioner, it has been averred that being jealous of the reputation of the petitioner and his family, some interested person lodged an ejahar with Muksudpur Police Station against the petitioner and others on 26-7-1999 on the basis of which Muksudpur Police Station Case No.7 dated 26-7-1999 was registered which corresponded to GR Case No. 393 of 1999 under sections 143/323/324/326/ 307/379/114/34 of the Penal Code; but after investigation, final report was submitted in that case and eventually the final report was accepted by the learned Magistrate and the petitioner was discharged from the case on 25-4-2000. Besides, another ejahar was lodged against the petitioner and others with Muksudpur Police Station on 2-7-2000 whereupon Muksudpur Police Station Case No.2 dated 2-7-2000 was registered which corresponded to GR Case No. 73 of 2000 and after investigation, the petitioner was not sent up in the police report dated 8-11-2001 and the co-accused were acquitted of the charge levelled against them on 12-11-2003.
5. The respondent No.2 has contested the Rule by filing an Affidavit-in-Opposition. His I case, as set out therein, in short, runs as follows:
The Senior Assistant Secretary of the Ministry of Home Affairs wanted a detailed and specific opinion from the Deputy Commissioner of Gopalganj about the cancellation of licences of fire arms of the charge-sheeted accused by a Memo dated 23-4-2000. Thereafter the Deputy Commissioner, Gopalganj sent a letter to the Superintendent of Police, Gopalganj for submission of a report of the charge-sheeted accused on 5-7-2000 and the Superintendent of Police, District Special Branch, Gopalganj submitted a report that had about 11(eleven) charge-sheeted accused on 27-2-2001. On the basis of the report dated 27-2-2001 submitted by the Superintendent of Police, District Special Branch, Gopalganj, the District Magistrate, Gopalganj (respondent No.2) cancelled the licence of the petitioner on 14-5-2001 in public interest. The order of cancellation of the licence of the petitioner was justified in the facts and circumstances of the case. Hence, the Rule is liable to be discharged.
6. At the outset, Mr Golam Mostofa Lasker, learned Advocate appearing on behalf of the petitioner, submits that it is an admitted fact that prior to cancellation of the gun licence of the petitioner by the impugned Memo dated 14-5-2001, the petitioner was not given any opportunity of being heard and because of violation of the principle of natural justice, the impugned Memo dated 14-5-2001 cannot be sustained in law and that being so, the impugned Memo is liable to be struck down as being without lawful authority and of no legal effect. In support of this submission, Mr Golam Mostofa Lasker draws our attention to the decisions in the cases of Bangladesh vs Md Azharul Islam, 13 BLT (AD) 166; Sk. Ali Ahmed vs The Secretary Ministry of Home Affairs, Government of the People’s Republic of Bangladesh, 40 DLR (AD) 170 and Reza-ul-Karim (Md) vs Secretary, Ministry of Home Affairs, 44 DLR 110.
7. Per contra, Ms Purabi Rani Sharma, learned Assistant Attorney-General appearing on behalf of the respondent No.2, submits that though the petitioner was not accorded any opportunity of being heard prior to cancellation of the gun licence of the petitioner on 14-5-2001, yet the fact remains that in the facts and circumstances of the case, the cancellation of the licence was perfectly justified.
8. We have heard the submission of the leamed Advocate Mr Colam Mostofa Lasker and the counter-submission of the learned Assistant Attorney-General Ms Purabi Rani Sharma and perused the writ petition, supplementary affidavits, Affidavit-in-Opposition and relevant annexures annexed thereto.
9. Indisputably the principle of “Audi Alteram Partem” was not adhered to prior to revocation of the gun licence of the petitioner by issuing the impugned Memo dated 14-5-2001. Now a pertinent question arises: what legal consequences will ensue for not following the principle of “Audi Alteram Partem” in this regard? This question must be answered for proper and effectual adjudication of the Rule.
10. The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrariness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has to deal with. These principles are classified into two categories-(i) a man cannot be condemned unheard (audi alteram partern) and (ii) a man cannot be the judge in his own cause (nemo debel esse judex in propria causa). The contents of these principles vary with the varying circumstances and those cannot be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding ‘issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the ‘decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application.
11. Lord Atkin in R vs Electricity Commissioners ([1924]1 KB 171) observed that the rules of natural justice applied to ‘any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’. The expression ‘having the duty to act judicially’ was used in England to limit the application of the rules to decision-making bodies similar in nature to a court of law. Lord Reid, however, freed these rules from the bondage in the landmark case of Ridge vs Baldwin ([1964] AC 40). But even before this decision, the rules of natural justice were being applied in our country to administrative proceedings which might affect the person, property or other rights of the parties concerned in the dispute. In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. In this context, reliance may be placed on the cases of The University of Dacca vs Zakir Ahmed, 16 DLR (SC) 722; Sk. Ali Ahmed vs The Secretary, Ministry of Home Affairs, 40 DLR (AD) 170; Habibullah Khan vs Shah Azharuddin Ahmed, 35 DLR (AD) 72; Hamidul Huq Chowdhury vs Bangladesh, 33 DLR 381 and Farzana Haque vs The University of Dhaka, 42 DLR 262.
12. In England, the application of the principles of natural justice has been expanded by introducing the concept of ‘fairless’. In Re Infant H (K) ([1967)1 All ER. 226), it was held that whether the function discharged is quasi-judicial or administrative, .the. authority must act fairly. It is sometimes thought that the concept of ‘acting fairly’ and ‘natural justice’ are different things, but this is wrong as Lord Scarman correctly observes that the Courts have extend the requirement of natural justice, namely, the duly to act fairly, so that it is required of a purely administrative act (Council of Civil Service Union vs Minister for the Civil Service [1984J 3 All ER 935). Speaking about the concept, the ‘acting fairly’ doctrine has at least proved useful as a device for evading some of the previous confusions. The Courts now have two strings to their bow. An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore involves a duty to act judicially, in accordance with the classic authorities and Ridge vs Baldwin; or it may simply be held that in our modern approach, it automatically involves a duly to act fairly and in accordance with natural justice.
The Indian Supreme Court has adopted this principle holding ” …. this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands” (Swadeshi Cotton Mills vs India, AIR 1981 SC 818).
13. The English Courts have further expanded the horizon of natural justice by importing the concept of ‘legitimate expectation’ and holding that from promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right. To cite a few examples, not only in the case of cancellation of licence which involves denial of a right, but also in the case of first-time grant of licence and renewal of licence, the principle of natural justice is attracted in a limited way in consideration of legitimate expectation. An applicant for registration as a citizen, though devoid of any legal right, is entitled to a fair hearing and an opportunity to controvert any allegation levelled against him. An alien seeking a visa has no entitlement to one, but once he has the necessary documents, he does have the type of entitlement that should now be protected by due process, and the Government should not have the power to exclude him summarily.
14. In the case .of Chingleput Bottlers vs Majestic Bottlers reported in AIR 1984 SC 1030, the Indian Supreme Court has made certain observations which create an impression that the rules of natural justice are not applicable where it is a matter of privilege and no right or legitimate expectation is involved. But the application of the rules of natural justice is no longer tied to the dichotomy of right-privilege. It has been stated in “Administrative Law” by HWR Wade, 5th edition at page-465: “For the purpose of natural justice, the question which matters is not whether the claimant has some legal right, but whether the legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interests, but simply of the exercise of Governmental power in a manner which is fair … ” In the American jurisdiction, the right-privilege dichotomy was used to deny due process hearing where no right was involved. But starting with Gonzalez vs Freeman (334 F. 2d 570), the Courts gradually shifted in favour of the privilege cases and in the words of Professor Schwartz, “The privilege-right dichotomy is in the process of being completely eroded” (“Administrative Law”, 1976, Page-230). Article 31 of our Constitution incorporating the concept of procedural due process, the English decisions expanding the frontiers of natural justice are fully applicable in Bangladesh.
15. In English law, the rules of natural justice perform a function, within a limited field, similar to the concept of procedural due process as it exists in the American jurisdiction. Following the English decisions, the Courts of this subcontinent have held that the principle of natural justice should be deemed incorporated in every statute unless it is excluded expressly or by necessary implication by any statute.
16. The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford’ him a fair opportunity to answer the case against him and to put his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal, application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party.
(To be continued)
17. It is often said that malafides or bad faith vitiates everything and a malafide act is a nullity. What is malafides? Relying on some observations of the Indian Supreme Court in some decisions, Durgadas Basil J held, “It is commonplace to state that malafides does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes: (i) that the authority making the impugned order did not apply its mind at all to the matter in question; or (ii) that the impugned order was made for a purpose or upon a ground other than what is mentioned in the order.” (Ram Chandra vs Secretary to the Government of WB, AIR 1964 Cal 265)
18. To render an action malafide, “There must be existing definite evidence of bias and action which cannot be attributed to be otherwise bonafide; actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act” (Punjab vs Khanna, AIR 2001 SC 343).
19. The principle of reasonableness is used in testing the validity of all administrative actions and an unreasonable action is taken to have never been authorized by the Legislature and is treated as ultra vires. According to Lord Greene, an action of an authority is unreasonable when it is so unreasonable that no man acting reasonably could have taken it. This has now come to be known as Wednesbury unreasonableness. (Associated Provincial Picture vs Wednesbury Corporation [1943J 1 KB 223).
20. Reverting to the case in hand, it is an indubitable fact that the principle of “Audi Alteram Partem” was not adhered to prior to revocation of the gun licence of the petitioner by the impugned Memo dated 14-5-200l.
21. It goes without saying that the impugned order of cancellation of the gun licence of the petitioner was made pursuant to Clause (a) of section 18 of the Arms Act, 1878. Section 18 (a) of the Arms Act contemplates that any licence may be cancelled or suspended-(a) by the officer by whom the same was granted or by any authority to which he may be subordinate, or by any Magistrate of a district within the local limits of whose jurisdiction the holder of such licence may be, when, for reasons to be recorded in writing, such officer, authority, Magistrate deems it necessary for the security of the ,public peace to cancel or suspend such licence. From the provisions of section 18(a) of the Arms Act, it is ex-facie clear that the principle of natural justice has not been excluded either expressly or by necessary implication before cancellation of any licence. In that view of the matter, the principle of natural justice should be deemed to have been incorporated in section 18 of the Arms Act.
22. In this connection, in the decision in the case of Sk Ali Ahmed vs The Secretary, Ministry of Home Affairs, Government of the People’s Republic of Bangladesh reported in 40 DLR (AD) 170, it has been held in paragraphs 15 &16:
“15. As to the question whether the appellant was entitled to a show cause notice/hearing before the decision to cancel his licence was taken, the High Court Division took the view that there is no such requirement under the Arms Act nor can such a requirement be imported into the statute because of the sensitive nature of the subject matter. This view seems to find support from some decisions in the Indian Jurisdiction (Vide AIR 1956 Calcutta 96, AIR 1954 Rajasthan 264). It must, however, be pointed out that there is a long line of decisions from the Pakistan Jurisdiction, (The University of Dhaka vs Zakir Ahmed, PLD 1965 SC 90 =16 DLR (SC) 722) which have consistently taken the view that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting “the person or properly or other right of the parties concerned.” This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases, this requirement is to be implied into it as the minimum requirement of fairness.
16. We are in respectful agreement with the above principle, but like to add a rider that so far as exercise of power under section 18 of the Arms Act is concerned, the absence of a prior notice/hearing may not always invalidate the order passed there- ‘ under, the subject matter being directly related to the security of the public peace. It may not be possible or advisable to adhere to the principle of natural justice of a prior show cause in every case because of the exigencies of situation. Each case has to be examined on its own merit to see whether a prior notice was required to be given. It may be pointed out that Wanchoo CJ in the aforesaid Rajasthan case, while holding that absence of hearing would not invalidate the order, observed that “It may perhaps be advisable, before such action is taken, that the licensee should be heard and we believe that generally licensees are heard before licences are cancelled.”
23. In the present case before us, undeniably the petitioner was condemned unheard. Now a pertinent question arises: Did the respondent No. 2 think it advisable or necessary in the interest of the security of the public peace to cancel the licence of the petitioner without giving him any prior show cause notice? In this respect, the impugned Memo dated 14-5-2001 may be adverted to. From a plain reading of the impugned Memo dated 14-5-2001, it transpires that the petitioner was a charge-sheeted accused in some criminal cases and that being so, for the security of the public peace, the respondent No.2 deemed it necessary to cancel the licence of the petitioner and accordingly he did so by the impugned Memo dated 14-5-2001.
24. In the decisions in the case of Bangladesh vs Md Azharul Islam, 13 BLT (AD) 166 and Rezaul-Karim (Md) vs Secretary, Ministry of Home Affairs, 44 DLR 110 for violation of the principle of natural justice, the impugned orders were found to be without lawful authority and of no legal effect.
25. In the case in hand, we do not find any exigency of the situation in order to deprive the petitioner of a show cause notice before cancellation of his gun licence. Given this scenario, we hold that the impugned Memo dated 14-5-2001 so far as it relates to the petitioner at serial No. 8 cannot be sustained in law and hence the same is liable to be interfered with.
26. From Annexures-‘E’ and ‘F’ to the supplementary affidavit dated 4-12-2014, it appears that the petitioner was not sent up in the police reports. As per Annexure-‘E’ the final report as true was accepted on 25-4-2000 and the petitioner was discharged from the case (GR Cases No. 393 of 1999 arising out of Muksudpur Police Station Case No.7 dated 26-7-1999 under sections 143/323/324/326/307/379/114/34 of the Penal Code) on that very date, that is to say, prior to issuance of the impugned Memo dated 14-5-2001. However, it is evident from Annexure-‘F’ that the petitioner was not sent up in the police report dated 8-11-2001 in connection with GR Case No. 73 of 2000 arising out of Muksudpur Police Station Case No.2 dated 2-7-2000 and ultimately all the co-accused were acquitted on 12-11-2003. So it is manifestly clear that at the time of issuance of the impugned Memo dated 14-5-2001, the investigation of the GR Case No. 73 of 2000 was in progress. In any view of the matter, it cannot be said that the petitioner was a charge-sheeted accused in the two criminal cases referred to above at the time of cancellation of his gun licence by the impugned Memo dated 14-5-2001.
27. The impugned Memo date 14-5-2001 does not indicate that the petitioner misused or abused the terms and conditions of the licence. Precisely speaking, no concrete materials are forthcoming on record that he posed any threat to the security of the public peace by abusing his gun, though a mere reference thereto is found in Annexure-‘3’ to the affidavit-in-opposition. In the absence of any substantial and concrete materials on record, it is difficult for a man of ordinary prudence to place his reliance on Annexure-‘3’ so far as it relates to the petitioner. The alleged material in Annexure-‘3’ appearing against the petitioner according to us, is vague, unspecific and nebulous.
From the foregoing discussions and regard being had to the facts and circumstances of the case, we find merit in the Rule. The Rule, therefore, succeeds. Accordingly, the Rule is made absolute without any order as to costs. The impugned Memo No. JM Gha-2/95/416(85) dated 14-5-2001 (Annexure-‘A’ to the writ petition) so far as it relates to serial No.8 cancelling the gun licence of the petitioner is declared to be without lawful authority and of no legal effect.
