- (1.) We allow the petitioners two weeks' time from today to file their representations or objections before the District Magistrate, Banda and order the District Magistrate to decide the same within three weeks from the date of filing such representations or objections. It is not necessary to set aside the impugned order and we accordingly dispose of these writ petitions without passing any such formal order. There will be no order as to costs. M.N. SHUKLA, C. J. (on behalf of himself and on behalf of WAHAJUDDIN and R.P. SHUKLA AND A.N. DIKSHITA, JJ.):- These two cases involve important questions interlinked with the daily lives of people, abiding in a civilised society, the executive authorities entrusted with the sovereign duty of maintaining law and order, extending certain privileges to citizens of the State who actuated by a desire to protect themselves may desire to procure arms for themselves, the necessity of regulating and controlling such privileges by rules of law and procedure, and making them liable to be withdrawn, altered or abridged on the non-fulfilment of certain conditions or the supervention of new factors. The orders impeached in these cases are orders passed by the executive authorities, significantly purporting to have been passed under the legal sanction derived from a Full Bench decision of this Court in Chhanga Prasad Sahu v. State of U. P., 1984 All WC 145. That decision was rendered by a Full Bench of three Judges and consequently the hearing of the present writ petitions has necessitated constitution of a Full Bench of five Judges of this Court to decide the question of law canvassed before us. The thrust of the argument has been both on the interpretation and validity of the law laid down in Chhanga Prasad Sahu's case (supra). In that judgment the following observations occur : "As already explained, if there already is material before that licensing authority and it becomes apparent to it that possession of arms by the licensee is going to endanger public peace and safety, it can straightway and without holding any enquiry proceed to revoke/suspend the arms licence after recording reasons therefor and if the licensee is aggrieved by such orders, he will have a right to ventilate his grievance before the appellate authority. However, if there is no such material before the licensing authority and it is not apparent to it that there is an immediate danger to public peace and safety and it, on some information being laid before it, proceeds to find out whether there is any likelihood of public peace and safety being affected at some future date, it cannot be said that there is any such urgency so as to justify the revocation/cancellation of the licence even before the licensing authority gets so satisfied. In the circumstances, considering the nature and the object of the enquiry which a licensing authority is required to make for finding out if the facts justifying passing of an order for revocation/suspension of licence exist, it cannot be said that non-conferment of the power to suspend an arms licence pending enquiry has the effect of defeating the object for which such a power has been conferred upon the licensing authority." This passage perhaps forms the bedrock of the assumption which the District Magistrates have made that the power resides in them to cancel an arms licence without notice to the licensee.
(2.) The facts of the present cases which lie in a short compass may be briefly stated. Writ Petition No. 9379 of 1984 has been filed by six petitioners who have prayed for quashing of six orders respectively by which the District Magistrate, Banda cancelled their gun licence and directed them to deposit their weapons forthwith. Likewise the petitioner in Writ Petition No. 9394 of 1984 has prayed for quashing of the order passed by the District Magistrate, Banda whereby the petitioner's gun licence was cancelled and he was directed to surrender his gun. The aforesaid order passed by the District Magistrate revealed that he felt satisfied that there was an immediate apprehension of breach of peace from the petitioner, that they were likely to use firearms for commission of crime and that with the object of preserving peace and preventing the petitioners from using the firearms for committing the crime, cancellation of their licences was essential. In both the writ petitions the orders have been challenged on the ground that they were passed without any notice to the petitioners or any opportunity of hearing being given to them prior to the cancellation of the licence. It has been vehemently urged that this was in flagrant violation of the principles of natural justice.
(3.) The law is well settled that before an action is proposed to be taken against an individual which affects his rights and involves civil consequences, he must be given an opportunity to show cause. This is the essence of the rule of 'audi alteram partem' which is the principal doctrine of natural justice. This rule, however, must be confined to a case in which the adjudication of right of a party arises and which involves civil consequences. A right is distinct from a mere privilege. The case of a licencee to possess or use firearm is materially different from a case of licence to deal in or sell firearms. Section 3 of the Arms Act, 1959 deals with acquisition and possession of firearms or ammunition on the strength of a licence whereas S.5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licence for acquisition and possession of firearms is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful. In my opinion the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the right of an individual nor does it entail civil consequences. I may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen may apply for grant of a licence of firearms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Art.21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras, 1950 SCR 88 . Art.21 is attracted only is cases of deprivation in the sense of total loss and that accordingly has no application to the case of a mere restriction upon the right to move freely or to the grant of licence for possession and acquisition of firearms which stands on an entirely different footing from the licence to carry on a trade or occupation. The rule of natural justice cannot be invoked unless civil consequences ensue. A civil right being adversely affected is a condition precedent for attracting the 'audi alteram partem rule'. The cases of Ram Gopal Chaturvedi v. State of Madhya Pradesh, AIR 1970 SC 158 and Union of India v. J. N. Sinha, AIR 1971 SC 40 were decided on the basis that the action under challenge in those cases did not involve any civil consequences. Black's Law Dictionary, Fifth Edition, at page 222 contains the following definition of "Civil":- "Relating to private rights and remedies sought by civil actions as contrasted with criminal proceedings. The word is derived from the Latin civilis, a citizen. Originally, pertaining or appropriate to a member of a civitas or free political community; natural or proper to a citizen. Also, relating to the community, or to the policy and government of the citizens and subjects of a State." The term 'Civil rights' is also defined in Black's Law Dictionary at page 1190 as under: "Civil rights are such as belong to every citizen of the State or Country, or, in a wider sense, to all its inhabitants, and are not connected with the organization or administration of government. They include the rights of property, marriage, equal protection of the laws, freedon of contract, trial by jury, etc. Or, as otherwise defined, civil rights are rights appertaining to a person by virtue of his citizenship in a State or community. Such term may also refer, in its very general sense, to rights capable of being enforced or redressed in a civil action. Also, a term applied to certain rights secured to citizens of the United States by the Thirteenth and Fourteenth amendments to the Constitution, and by various acts of Congress (e.g. Civil Rights Acts) made in pursuance thereof." Thus, civil rights are capable of being enforced in a civil action. On the other hand, privileges are not amenable to such action. In such cases the action taken constitutes denial of a privilege and is distinct from interference with a right. The denial of civil rights is visited with civil consequences whereas no such result follows the withdrawal of privileges. In the case Ram Gopal Chaturvedi (supra) it was held by the Supreme Court that the termination of the service of a temporary Civil Judge did not involve any civil consequences and consequently no question of following the principles of natural justice arose. The consistent trend of judicial decisions has been that the official granting of the licence involves the exercise of discretionary licensing powers which are concerned with privileges and not rights. See Randall v. Northcote Council (1910) 11 CLR 100, 117-119, Metropolitan Meat Industry Board v. Finlayson (1916) 22 CLR 340; Ex. P. Macarthy, re The Milk Board (1935) SR (NSW) 47; Nakkuda Ali v. Jayaratne 1951 AC 66; R. v. Metropolitan Police Commr., exp. Parker (1953) 1 WLR 1150; Modern Theatres (Provincial) Ltd. v. Peryman (1960) NZLR 191 See also Merchants Bank Ltd. v. Federal Minister of Finance (1961) 1 All NLR 598 (Nigeria) (revocation of licence). The decision in Nakkuda Ali v. Jayaratne 1951 AC 66 was to the effect that the Controller of Textiles in Ceylon had cancelled a textile dealer's licence in pursuance of a power to revoke a licence when he had 'reasonable grounds' for believing its holder to be unfit to continue as a dealer. It was held that the Controller was not determining a question affecting the rights of subjects but was merely taking executive action to withdraw a privilege. De Smith in his 'Judicial Review of Administrative Action', Fourth Edition (page 188-189) remarks : "This conceptualist approach has been in large part abandoned in favour of a more sophisticated analysis towards the procedural duties of licensing authorities and a more realistic assessment of the economic effect upon the individual." In my opinion the above analysis cannot be legitimately extended to the exercise of such discretionary power or grant of privileges such as the initial issuing of a firearm licence. The shift in the cases is reflected only where the question determined is one "affecting the rights of subjects. The rights affected may be rights to the enjoyment of personal liberty, to the tenure of an office or pursuit of a profession or other calling, to the retention of unincumbered ownership and possession of property, to the carrying on of trade and the free negotiation of other contracts, to the receipt of compensation and social security benefits due under statute, or, in the case of the ex gratia awards of compensation to criminal injuries, authorised by a non-statutory administrative scheme, to immunity from fines, rates and other fiscal burdens, and to relief from such burdens. This catalogue is by no means exhaustive.;