Jayesh Bhimji Sheraji vs State of Gujarat and Another

Abhilasha Kumari, J.—Rule. Mr. Rashesh Rindani, learned Assistant Government Pleader waives service of notice of Rule on behalf of the Respondents. On the facts and in the circumstances of the case, and with the consent of the learned Counsel for the respective parties, the petition is being heard and finally decided, today.

This petition under Article 226 of the Constitution of India has been preferred, inter-alia, with a prayer to quash and set aside the impugned order dated 28.06.2011, passed by Respondent No. 1, in Weapon Dispute Application No. 674/2008.

The brief facts of the case, relevant for the decision of the petition are that Respondent No. 2, District Magistrate, Porbandar, cancelled the Arms Licence of the Petitioner, by order dated 29.11.2008. Aggrieved thereby, the Petitioner approached Respondent No. 1 by filing an appeal. The appeal of the Petitioner has been rejected by Respondent No. 1 vide the impugned order, on the ground that the Petitioner did not remain present on the four dates mentioned in the said order. Aggrieved thereby, the Petitioner has approached this Court by filing the present petition.

Mr. Hashim Qureshi, learned Counsel for the Petitioner has submitted that the impugned order is erroneous, illegal and arbitrary, as the fact that the Petitioner had preferred two applications for adjournment of the dates for two hearings, have not been taken into consideration by Respondent No. 1. The appeal of the Petitioner has been rejected only on the ground of his remaining absent on the said four dates. The Petitioner had valid reasons for adjournment, as mentioned in the applications, which have not been taken into consideration or even referred to, while passing the impugned order. It is contended that it is only on one occasion that the Petitioner could not remain present. One oneoccasion, the hearing of the appeal was adjourned at the behest of the Appellate Authority, and not at the behest of the Petitioner. It is further contended that though the appeal has been rejected on the ground of absence of the Petitioner on the said four dates, it is stated in the impugned order that the decision has been taken after considering the merits of the case. That the rejection of the appeal of the Petitioner, without giving him an opportunity of hearing, is violative of the principles of natural justice, therefore, the impugned order may be quashed and set aside.

Mr. Rashesh Rindani, learned Assistant Government Pleader has submitted that the Petitioner did not remain present on four dates of hearing, as mentioned in the impugned order, therefore, the Appellate Authority has rightly rejected the appeal.

Having heard the learned Counsel for the respective parties and upon perusal of the averments made in the petition and the documents annexed thereto, the following admitted facts emerge:

(a) Respondent No. 1 issued notice dated 21.10.2010 to the Petitioner asking him to remain present at Gandhinagar for the hearing of the appeal on 10.11.2010, at 3:00 p.m. The Petitioner preferred an application for adjournment dated 08.11.2010, requesting that the hearing of the appeal that was scheduled for 10.11.2010, may be adjourned, as he was sick, and because he wanted to engage the services of an Advocate.

(b) Thereafter, a second notice dated 02.12.2010 was issued by Respondent No. 1, calling upon the Petitioner to remain present on 30.12.2010. Before the said date, the Petitioner was informed, by notice dated 23.12.2010, that the hearing of the appeal would now take place on 03.01.2011, instead of on 30.12.2010. Admittedly, No. hearing took place on 30.12.2010.

(c) On 03.01.2011, the Petitioner did not remain present. Another notice was issued by Respondent No. 1 on 24.05.2011, calling upon the Petitioner to remain present on 06.06.2011. The Petitioner preferred an application for adjournment dated 03.06.2011, requesting Respondent No. 1 to adjourn the hearing of the appeal that was to take place on 06.06.2011, on the ground that he had to attend a wedding in his family.

From the above sequence of events supported by material on record, it is clear that the Petitioner had preferred an application dated 08.11.2010, for adjournment of the hearing that was to take place on 10.11.2010. This fact does not find mention in the impugned order at all. No. hearing took place on 30.12.2010, as the Appellate Authority had adjourned the hearing for 03.01.2011 by giving notice dated 23.12.2010. In spite of this, it is stated in the impugned order that the Petitioner did not remain present on 30.12.2010. It is not disputed that the Petitioner did not remain present one oneoccasion, when the hearing was held on 03.01.2011. As regards the hearing that was to be held on 06.06.2011, the Petitioner had preferred an application for adjournment dated 03.06.2011, as mentioned hereinabove. This application also does not find mention in the impugned order. It is, therefore, evident that out of the four dates that are mentioned in the impugned order, the Petitioner did not remain present only on one occasion, that is, on 03.01.2011. As regards the hearings to be held on 10.11.2010 and 06.06.2011, respectively, the Petitioner had preferred applications for adjournment, and No. hearing took place on 30.12.2010, which is the fourth date mentioned in the impugned order. The appeal of the Petitioner has been rejected solely on the ground that he was not present on 10.11.2010, 30.12.2010, 03.01.2011 and 06.06.2011. In view of the fact that the applications for adjournment were preferred on two occasions and the hearing of the appeal was never took place on 30.12.2010, the only date on which the Petitioner did not remain present was 03.01.2011, therefore, the ground for rejection of the appeal by the Appellate Authority is erroneous and is not supported by the material on record. It deserves mention that the Appellate Authority has stated in the impugned order that the appeal has been rejected after scrutinizing the merits of the matter. The order does not contain any findings on merits, and considering the facts of the case, the appeal could not have been rejected on merits without hearing the Petitioner. In effect, the appeal of the Petitioner has been rejected without affording him any opportunity of hearing, which constitutes a violation of the principles of natural justice. The grounds for rejection are neither supported by the material on record, nor are sustainable in law. The impugned order, therefore, cannot be permitted to stand.

For the aforestated reasons, the impugned order dated 28.06.2011 is quashed and set aside. The matter is remanded to the Appellate Authority, to consider and decide, in accordance with law, after issuing a fresh notice to the Petitioner and giving him an adequate and reasonable opportunity of hearing.

The Appellate Authority shall not be influenced by the factum of filing of this petition, or passing of this order.

The petition is partly-allowed. Rule is made absolute, to the above extent. There shall be No. orders as to costs.