Jamal Akhtar Salimuddin Rajput vs State Of Gujarat

Vipul M. Pancholi, J

Rule. Learned Assistant Government Pleader Mr.Hardik D. Mehta waives service of notice of Rule for the respondents.

Looking to the limited issue involved in the present petition and with the consent of the learned advocates appearing for the parties, this petition is

heard finally at admission stage.

This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioner has challenged the order dated 22.07.2020

passed by the Additional Secretary, Home Department, i.e. respondent No.1 herein in HVD/1020/202/M whereby the application for condonation of

delay of 102 days in filing the appeal came to be dismissed.

Heard learned advocate Mr.A.R. Kadri for the petitioner and learned Assistant Government Pleader Mr.Hardik D. Mehta for the respondents.

Learned advocate for the petitioner submitted that the petitioner filed an application for grant of licence under the Arms Act, 1959 (“the Actâ€

for short) before respondent No.2 on 24.02.2019. Respondent No.2 rejected the said application vide order dated 10.02.2020. Aggrieved by the said

order, the petitioner filed an appeal under the provisions of Section 18 of the Act before respondent No.1. As there was a delay of 102 days in filing

the appeal, the petitioner filed a separate application for condonation of delay on 12.06.2020. Copy of the said application is placed on record at

PageÂ10 of the compilation. It is the grievance of the petitioner that without affording an opportunity of personal hearing, respondent No.1 rejected

the appeal filed by the petitioner itself on the ground that there was a delay of 102 days in filing the appeal. It is submitted that separate application

filed by the petitioner for condonation of delay was not at all considered by respondent No.1 and the impugned order has been passed without giving

an opportunity of personal hearing to the petitioner.

5.1 At this stage, learned advocate for the petitioner has referred the provisions contained in Section 18 of the Act and, thereafter, pointed out that

powers are given to appellate authority by way of proviso of subÂsection (2) of Section 18 of the Act that if the appellant satisfies the authority that

he had sufficient cause for not preferring the appeal within stipulated time, delay in filing the appeal can be condoned and appeal can be admitted after

expiry of limitation period. Learned advocate for the petitioner, therefore, urged that the impugned order be quashed and set aside and the matter be

remanded back to respondent No.1 for deciding the application for condonation of delay on its own merits and if the delay is condoned, the appeal can

be decided on its own merits.

On the other hand, learned Assistant Government Pleader, from the documents placed on record, is not a position to dispute the fact that respondent

No.1 has dismissed the appeal itself on the ground that there is a delay of three months and six days that has caused in preferring the appeal.

Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that against the

order passed by respondent No.2, the petitioner has filed an appeal under Section 18 of the Act before respondent No.1. There was a delay of 102

days in filing the said appeal and, therefore, the separate application for condonation of delay of 102 days was filed on 12.06.2020. If the impugned

order dated 22.07.2020 passed by respondent No.1 is carefully seen, it is revealed that respondent No.1 has rejected the main appeal without

considering the averments made in the application filed for condonation of delay. It is the specific case of the petitioner that before passing the

impugned order, even opportunity of personal hearing was not afforded to the petitioner. At this stage, relevant provisions contained in Section 18 of

the Act is required to be referred, which provides as under:

“18. Appeals.Â(1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or

by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an

appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed:

Provided that no appeal shall lie against any order made by, or under the direction of the Government.

(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor:

Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had

sufficient cause for not preferring the appeal within that period.

(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Indian Limitation Act, 1908 (9 of 1908), with

respect to the computation of periods of limitation thereunder.

(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order

appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed.

(5) In deposing of an appeal the appellate authority shall follow such procedure as may be prescribed;

Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard.

(6) The order appealed against shall, unless the appellate authority conditionally and unconditionally directs otherwise, be in force pending the disposal

of the appeal against such order.

(7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.â€​

From the above provisions, it is clear that Section 18(2) of the Act provides that no appeal shall be admitted if it is preferred after expiry of the

prescribed period of limitation i.e. after thirty days. However, proviso to subÂsection (2) of Section 18 of the Act is very clear, which provides that an

appeal may be admitted after expiry of limitation period if the appellant satisfies the appellate authority that he had sufficient cause for not preferring

the appeal within the said period.

Now, Rule 107 of the Arms Rules, 2016 (“the Rulesâ€​ for short) is also required to be referred, which provides as under:

“107. Appeal against order of licensing authority or an authority suspending or revoking a licence under subÂsection (6) of section 17 of the

Act.Â​ In any case, in which an authority issues an orderÂ​

(i) refusing to grant or renew a licence or to give a “no objection certificateâ€​ for such grant or renewal; or

(ii) varying any condition of a licence or suspending or revoking a licence under sub section (1), or subÂsection (3) or sub section (6) of section 17,

the person aggrieved by such order may, within thirty days from the date of issue of the order, and subject to the proviso to subÂsection (2) of section

18, prefer an appeal against that order, to the concerned appellate authority.â€​

From Rule 107 of the Rules, it can be said that against the order passed by the licencing authority, aggrieved person can file an appeal against the

said order before the concerned appellate authority within a period of thirty days from the date of issue of the order and subject to the proviso

contained in subÂ​ section (2) of Section 18 of the Act.

Thus, from the aforesaid provisions contained in the Act as well as the Rules, it can be said that the appellate authority is empowered to condone

the delay if the appellant satisfies the appellate authority that he had sufficient cause for not preferring an appeal within prescribed timeÂlimit. In the

present case, if the impugned order is carefully seen, it is revealed that respondent No.1 has not at all observed anything in the order that whether

there is sufficient cause for not preferring the appeal within prescribed timeÂlimit. Even respondent No.1 has, while rejecting the appeal, not at all

considered the application for condonation of delay and even the petitioner was not heard before passing the impugned order.

In view of the aforesaid discussion, the impugned order dated 22.07.2020 passed by respondent No.1 herein in HVD/1020/202/M is quashed and

set aside. Matter is remitted to respondent No.1, who shall first decide the application filed by the petitioner for condonation of delay of 102 days that

has caused in preferring the appeal and then decide the appeal filed by the petitioner, in accordance with law and keeping in view the aforesaid

provisions contained in the Act and the Rules.

The petition is partlyÂ​allowed, accordingly. Rule is made absolute accordingly.