Gianoba and anr. Vs. the Collector (Additional District Magistrate) - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - the following two licences are hereby cancelled as-recommended by the superintendent of police, medak district. the order does not give reasons for the cancellation, apart from the fact that it was recommended by the superintendent of police. all that appears from the order is that the licence was cancelled as recommended by the superintendent of police, and no reasons have been given for accepting that recommendation. 10. it is made clear that if the district magistrate is of opinion that even to-day in the interests of public peace, it is not safe to allow the petitioners to remain in possession of the fire arms, it is open to him to follow the procedure laid down in the act, and take the necessary action.ordervenkatesam, j.1. this is a petition under article 226 of the constitution for the issue of a writ of certiorari or other appropriate writ or direction for quashing the order of the collector, medak at sangareddy, d/- 25 7-1962 cancelling the gun licences issued to the two petitioners who are-brothers.2. it is averred in the affidavit that a head, constable of the police station at jagipet came and made enquiries on certain petitions said to have been filed by one yadhav rao and maha. rudrappa before the circle inspector, that the petitioners submitted their explanation in writing to the circle inspector, and that after sometime when they were informed that an adverse order was passed they applied for a copy of the order. they received a memo from the collector-medak, stating that a copy of the endorsement could not be given.3. this order is impugned firstly on the-ground that it is based solely on the recommendation of the superintendent of police; secondly that the order aces not disclose reasons for the cancellation; and thirdly that on principles of natural justice, a notice should have been given to the petitioners and heard before their licences are cancelled.4. this is opposed by the district magistrate contending that there were two parties in the village of chapta, the petitioners being the leaders of one of the parties, some criminal cases were pending for offences under sections 147, 323 and 354, i.p.c. against the petitioner and his party members, and the relations between the two groups were strained and as there was imminent danger of breach of peace in the village, cases were also registered under section 107, criminal p. c. in these circumstances on the report of the superintendent of police, sangareddy, the licences were cancelled.it was also averred that the petitioners had not made a request for a copy of the reasons for cancellation of the licences. it is urged that the petitioners have alternative remedy by way of appeal as provided for by section 18 of the indian arms act, and the petition should, therefore, be dismissed.5. the order of the collector, medak d/- 25-7-1962 which is impugned is in the following terms:the following two licences are hereby cancelled as-recommended by the superintendent of police, medak district.the order does not show that notices were served on the petitioners or that they were heard before the licences were cancelled. the order does not give reasons for the cancellation, apart from the fact that it was recommended by the superintendent of police.6. the indian arms act, 1887 is now repeale and repealed by the arms act, 1959 which according to both the parties governs this case, and section 17 of this act lays down the provisions for the revocation of the licences for fire arms under the act and corresponds to section 18 of the indian arms act, 1887. i section 17 of the present act is more exhaustive and deals with variation, suspension and revocation of licences, while section 18 of the previous act dealt only with cancellation and suspension of licences. section 17(5) makes it clear that where the licensing authority makes an order varying, suspending, or revoking a licence, it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same, except where it is not in public interests to furnish such statement. there can, therefore, be no doubt that the order cancelling the licence must be a speaking order, and must indicate the reasons in writing as to why the district magistrate thought it necessary to cancel the gun licence, and also show that cancellation was necessary in the interests of public peace. it is needless to state that the order must indicate that the authority cancelling the licence had applied its mind to the question, and come to its own conclusion.7. in the instant case, the impugned order buffers from several defects. for one thing, it does not show that the district magistrate, medak had applied his mind to the question whether the gun licence should be cancelled in the circumstances or not. all that appears from the order is that the licence was cancelled as recommended by the superintendent of police, and no reasons have been given for accepting that recommendation.8. in kakku venkantaramaiah v. state of andhra pradesh : air 1960 ap420 , which was a case under section 18 of the old act, it was held by basi reddy, j. that an order cancelling fire-arm licence, which does not satisfy the requirements of the act, is liable to be set aside in exercise of the powers of this court under article 226. it was laid down that the reason given by the district magistrate that the licence was cancelled on administrative grounds was not a reason contemplated by section 18 of the old act, and that the order must specify the grounds on which action was taken and, must show, at least prima facie, how the possession of the fire-arm by the licensee could endanger public peace. in view of the fact that a right of appeal is also provided against that order, it is necessary that it should be a speaking order. the learned judge held that once a person has been granted a licence, and he acquires a gun, he has a fundamental right under article 19(1)(f) to hold that property subject only to the restrictions imposed by the act and the rules, and that the procedural safeguards cannot toe disregarded by the administrative agency to the prejudice of the subject. the question whether a notice should be given before the order of cancellation is passed was not decided by the 4 learned judge in that case, though he noticed a difference of judicial opinion on that question between the high courts of rajasthan and madras.9. in the instant case, it is evident from the endorsement of the district magistrate dated 6-9-1962 that the petitioner supplied with the endorsement which he wanted in his petition dated 29-8.1962. the result therefore is, that even if any reasons were given by the district magistrate, they are not communicated to the petitioner. for all these reasons, i hold that the impugned order is arbitrary and initiated on account of an error apparent on the face of the record. the order is, accordingly, quashed.10. it is made clear that if the district magistrate is of opinion that even to-day in the interests of public peace, it is not safe to allow the petitioners to remain in possession of the fire arms, it is open to him to follow the procedure laid down in the act, and take the necessary action.11. the writ petition is allowed, but, in the circumstances, there will be no order as to costs.

Judgment:
ORDER

Venkatesam, J.

1. This is a petition under Article 226 of the Constitution for the issue of a writ of certiorari or other appropriate writ or direction for quashing the order of the Collector, Medak at Sangareddy, D/- 25 7-1962 cancelling the Gun licences issued to the two petitioners who are-brothers.

2. It is averred in the affidavit that a Head, constable of the Police Station at Jagipet came and made enquiries on certain petitions said to have been filed by one Yadhav Rao and Maha. rudrappa before the Circle Inspector, that the petitioners submitted their explanation in writing to the Circle Inspector, and that after sometime when they were informed that an adverse order was passed they applied for a copy of the order. They received a memo from the Collector-Medak, stating that a copy of the endorsement could not be given.

3. This order is impugned firstly on the-ground that it is based solely on the recommendation of the Superintendent of Police; secondly that the order aces not disclose reasons for the cancellation; and thirdly that on principles of natural justice, a notice should have been given to the petitioners and heard before their licences are cancelled.

4. This is opposed by the District Magistrate contending that there were two parties in the village of Chapta, the petitioners being the leaders of one of the parties, some Criminal cases were pending for offences under Sections 147, 323 and 354, I.P.C. against the petitioner and his party members, and the relations between the two groups were strained and as there was imminent danger of breach of peace in the village, cases were also registered under Section 107, Criminal P. C. In these circumstances on the report of the Superintendent of Police, Sangareddy, the licences were cancelled.

It was also averred that the petitioners had not made a request for a copy of the reasons for cancellation of the licences. It is urged that the petitioners have alternative remedy by way of appeal as provided for by Section 18 of the Indian Arms Act, and the petition should, therefore, be dismissed.

5. The order of the Collector, Medak D/- 25-7-1962 which is impugned is in the following terms:

The following two licences are hereby cancelled as-recommended by the Superintendent of Police, Medak District.

The order does not show that notices were served on the petitioners or that they were heard before the licences were cancelled. The order does not give reasons for the cancellation, apart from the fact that it was recommended by the Superintendent of Police.

6. The Indian Arms Act, 1887 is now repeale and repealed by the Arms Act, 1959 which according to both the parties governs this case, and Section 17 of this Act lays down the provisions for the revocation of the licences for Fire Arms under the Act and corresponds to Section 18 of the Indian Arms Act, 1887. i Section 17 of the present Act is more exhaustive and deals with variation, Suspension and revocation of licences, while Section 18 of the previous Act dealt only with cancellation and suspension of licences. Section 17(5) makes it clear that where the licensing authority makes an order varying, suspending, or revoking a licence, it shall record in writing the reasons therefor and furnish to the holder of the licence on demand a brief statement of the same, except where it is not in public interests to furnish such statement. There can, therefore, be no doubt that the order cancelling the licence must be a speaking order, and must indicate the reasons in writing as to why the District Magistrate thought it necessary to cancel the gun licence, and also show that cancellation was necessary in the interests of public peace. It is needless to state that the order must indicate that the authority cancelling the licence had applied its mind to the question, and come to its own conclusion.

7. In the instant case, the impugned order Buffers from several defects. For one thing, it does not show that the District Magistrate, Medak had applied his mind to the question whether the gun licence should be cancelled in the circumstances or not. All that appears from the order is that the licence was cancelled as recommended by the Superintendent of Police, and no reasons have been given for accepting that recommendation.

8. In Kakku Venkantaramaiah v. State of Andhra Pradesh : AIR 1960 AP420 , which was a case under Section 18 of the old Act, it was held by Basi Reddy, J. that an order cancelling fire-arm licence, which does not satisfy the requirements of the Act, is liable to be set aside in exercise of the powers of this Court under Article 226. It was laid down that the reason given by the District Magistrate that the licence was cancelled on administrative grounds was not a reason contemplated by Section 18 of the old Act, and that the order must specify the grounds on which action was taken and, must show, at least prima facie, how the possession of the fire-arm by the licensee could endanger public peace. In view of the fact that a right of appeal is also provided against that order, it is necessary that it should be a speaking order. The learned Judge held that once a person has been granted a licence, and he acquires a gun, he has a fundamental right under Article 19(1)(f) to hold that property subject only to the restrictions imposed by the Act and the Rules, and that the procedural safeguards cannot toe disregarded by the administrative agency to the prejudice of the subject. The question whether a notice should be given before the order of cancellation is passed was not decided by the 4 learned Judge in that case, though he noticed a difference of judicial opinion on that question between the High Courts of Rajasthan and Madras.

9. In the instant case, it is evident from the endorsement of the District Magistrate dated 6-9-1962 that the petitioner supplied with the endorsement which he wanted in his petition dated 29-8.1962. The result therefore is, that even if any reasons were given by the District Magistrate, they are not communicated to the petitioner. For all these reasons, I hold that the impugned order is arbitrary and initiated on account of an error apparent on the face of the record. The order is, accordingly, quashed.

10. It is made clear that if the District Magistrate is of opinion that even to-day in the interests of public peace, it is not safe to allow the petitioners to remain in possession of the fire arms, it is open to him to follow the procedure laid down in the Act, and take the necessary action.

11. The Writ Petition is allowed, but, in the circumstances, there will be no order as to costs.