(From previous issue) :
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.
(Concluded)
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.
(Concluded)
