P L D 1961 Supreme Court 178 (PLP)

HAMOODUR RAHMAN, J.‑This is a certificated appeal from the judgment and order of a Division Bench of the High Court of West Pakistan commanding by a mandamus the District Magistrate of Lahore to issue an arms licence as prayed for by the respondent herein. The respondent, who is an Advocate of the High Court of West Pakistan as also of this Court, complained that the District Magistrate had arbitrarily and without assigning any reason refused to grant him a licence for the keeping of a revolver which he required for his protection, as he often had to go outside Lahore by car in connection with his professional duties. He maintained that there was no valid reason for such refusal, as he already held a licence for a rifle ; he had not previously 'been refused any licence for a firearm ; he had paid Rs. 445 as income- tax in the previous year and he had never been convicted in any criminal case. He presumed, however, that the refusal might have been "on account of his having been associated with active political work during the years 1948 to 1951." If so, then this was neither a sufficient nor a reasonable ground for the refusal of the licence. He had also preferred an appeal against the said order of refusal to the Commissioner, Lahore Division, in accordance with rule 43 (1) of the Arms Rules, 1924, but the same had not been disposed of or even fixed for hearing, although six and a half months had elapsed since the filing of the said appeal. In these circumstances the respondent claimed that he was entitled to an order in the nature of mandamus directing the District Magistrate, Lahore, to issue the necessary licence. This application was filed on the 18th November 1957 and the right sought to be asserted therein was the fundamental right to property guaranteed by the late Constitution and it was claimed that this fundamental right had been totally denied to him by the alleged illegal and arbitrary refusal of the said licence. According to the respondent this right could only be subjected to reason able restrictions imposed by law. No such restrictions could be imposed by rules. In so far, therefore, as the Arms Act, 1878, purported either to totally take away this right or to restrict it by rules framed by a body other than the legislature, it was violative of the provisions of Article 11 of the late Constitution and to that extent void. In any event, section 17 of the said Act was ultra vires the legislature in so far as it purported to delegate to the Central Government legislative functions without laying down any policy or fixing any criterion for the guidance of the rule making authority. The validity of rule 43 of the Arms Rules, 1924, was also challenged on the ground that it was in excess of the rule making powers granted by section 17 in so far as it purported to vest the licensing authority with the absolute discretion to refuse a licence. The respondent further maintained that since a fundamental right was involved, it was incumbent on the licensing authority to apply its mind judicially and to communicate reasons for its refusal. The appellants before us opposed the said application and submitted that the respondent had been refused the licence on valid and sufficient grounds after due application of the mind of the licensing authority to all the relevant facts and circumstances of the case and after proper enquiry from the Senior superin tendent of Police who reported that the respondent was "a political suspect". The appellants further contended that it was in the interests of public peace and tranquillity to impose restrictions on the possession of firearms and, as such, the restrictions imposed by the executive in accordance with the provisions of the Rules framed under the Arms Act and the instructions of the appropriate Government issued from time to time were in no way unreason able restrictions. The discretion to refuse to grant a licence had been validly vested in the District Magistrate by rule 43 of the Arms Rules, 1924, made in exercise of the powers given by section 17 of the Arms Act and the same were neither ultra vires nor violative of the provisions of the late Constitution. In any event, it was urged, since the respondent himself had filed an appeal before the Commissioner and the said appeal was still pending, the application for the writ was premature. Furthermore, that since the respondent himself admitted that he was associated with active political work, the refusal was neither arbitrary nor unreasonable, for it would not be in the public interest to grant licences for handy weapons to political suspects. The High Court by its judgment of the 27th of May, 1958, however, took the view that firearms constituted property within the meaning of Article 11 of the late Constitution and proceeded to consider the constitutionality of the Arms Act. Although it was appreciated "that the control of firearms is a wholesome measure and is in the public interest and this can be done only by a system of licensing, for, it would be unwise to provide arms to criminals or to persons with shady antecedents," the High Court, never theless, felt "constrained to hold that in making the Arms Act the legislative body of the time delegated its function of declaring its policy to the executive Government", for, no policy was discoverable from the Act itself and the legislative intent was totally absent. In so far as it had left the restrictions to be imposed by rules, it was held that fundamental rights could not be restricted by rules. Rule 43 of the Arms Rules was also held to be clearly in excess of the power granted by section 17 of the Act itself, in so far as it purported to make it discretionary for the licensing authority to refuse the grant of a licence. The High Court was further of the opinion that since the respondent was a member of an honourable profession and had already been allowed to hold a rifle, the Police report characterising him as "a political suspect" was not a sufficient ground for the refusal of a licence. The meaning of such a classification was said to be not clear and "may well be in the spirit of old imperialism, where in a political suspect was an anarchist, a revolutionary, :dangerous criminal." According to the High Court such "reasons of State" had become "alien to the present political context" and, as such, the District Magistrate was held to have "not acted with responsibility" in accepting the note put up by his office "which reproduces the opinion of the Senior Superintendent of Police, which in itself is not an opinion but a reproduction of the opinion of a Sub- Inspector". In these circumstances, the writ was directed to be issued and the District Magistrate was commanded "to issue a licence as prayed for by the petitioner". The appellants now contend that these proceedings in relation to a writ sought on the ground that a fundamental right had been violated must be declared to have abated by reason of the provisions of Article 2 (7) of the Laws (Continuance in Force) Order, 1958, and relies for this purpose on the decision of this Court in the case of State v. Dosso and another. ((1958) 2 P S C R 180 : P L D 1958 S C (Pak.) 533) Mr. Raza Kazim, the respondent herein, who appears in person, concedes that his application has abated to that extent but contends that notwithstanding such abatement he is entitled to maintain his application for the writ on the ground that rule 43 of the Arms Rules, 1924, was in excess of the powers granted by section 17 of‑the Arms Act to make rules. Apart from this, he also maintains that the Laws (Continuance in Force) Order, does not deprive him of the right to contend that de hors the provisions of the late Constitution, section 17 of the Arms Act was itself bad because it purported to delegate legislative functions to the Central Government. This could not be done either by the Indian Legis lature or by the Governor‑General in Council, even at the time that the Arms Act was enacted. Although a legislature can, as a part of its functions, confer powers to make rules and regulations for carrying an enactment into operation and effect by laying down the policy and principles, upon which the delegatee may act, it cannot divest itself of its principal function of legislation in such a way as to amount to an abdication on its part or the creation of a different legislature. The argument is that in so far as section 17 of the Arms Act purports to give to the Central Government the power to make any rules for laying down the terms and conditions on, and subject to, which licences may be granted without indicating anything more or laying down any criterion for the guidance of the rule making authority or defining any general policy for the grant or the refusal of such licences, it amounts to giving‑ to the executive authority the power of itself legislating and this could not be done. In support of this contention reliance is placed on certain observations made by the then Chief Justice of Pakistan in the case of the East and West Steamship Company v. Pakistan ((1958)1 PSCR 19 at p.31 PLD1958SC(Pak.)41), which have also been quoted in the judgment of the High Court. This argument, however, overlooks that at page 36 of the said Reports his Lordship himself indicated that "an exception has always been recognised in the case of situations which require the vesting of discretion in public boards or officials where it is difficult or impracticable to lay down a definite comprehensive rule, or the discretion relates to the administration of licensing requirements to protect the general welfare." Once it is conceded, as indeed it was both in the High Court and before us, that the control of firearms is a "wholesome measure", that it is necessary in the public interest and that it can be done "only by a system of licensing", we fall to appreciate why a legislation of this nature should not fall within this exception. Firearms are by their very nature dangerous weapons capable of being put to various improper uses even by responsible persons in moments of desperation or morbid depression. In irresponsible hands they may well cause a grave threat to the general welfare. But without speculating further as to the many considerations that might legitimately exist, including political considerations, of which we cannot constitute ourselves the judges, it is enough for our present purposes to say that manifestly firearms are just the subjects in respect of which the legislature may legitimately think it fit to give a wide discretion to those entrusted with the administration of its licensing, parti cularly having regard to the fact that it is impracticable in such a case to "lay down a definite comprehensive rule", as different conditions might well be prevailing in different districts with which the local licensing authorities would be more likely to be conversant. The test by which the validity of such a legislative measure is to be judged, was laid down by the Judicial Committee of the Privy Council as long ago as 1878 in the case of the Queen v. Burah (5 I A 178). The Indian legislature, it was held when acting within the limits of the powers given to it by the Act of the Imperial Parliament creating its Legislative powers had "plenary powers of legislation, as large, and of the same nature as those of Parliament itself". Thus whilst it could not create "anew legislative power" it could within the limits of its own sphere legislate "either absolutely or conditionally" and in the latter case leave it to some external authority to determine in its discretion the time at which it is to come into operation, the area over which it is to extend and the manner in which it is to be carried into effect. If this could be validity done, we see no reason why discretion could not similarly be given to provide for subsidiary or ancillary matters by rules or regulations for giving effect to the provisions of the statute, which is all that has been done in the present case: This view was re‑iterated by the Privy Council again in the case of King‑Emperor v. Benoari Lal Sarma and others (72 I A 57), and it was pointed out that such legislation was "merely an example of the not uncommon legislative arrangement by which the local application of the provision of a statute is determined by the judgment of the local administrative body as to its necessity". In the latter case the Courts in India had held that in so far as the legislative measure under consideration in that case had left it to the "absolute and unrestricted discretion" of the local Government or some officer of that Government empowered in that behalf, to direct what offences or classes of offences and what cases or classes of cases should be tried by the special Courts set up by that legislation, "without any legislative provision or direction laying down the policy or conditions with reference to which that power is to be exercised", the legislation was invalid as in effect it had thereby delegated the legislative power of repealing the Code of Criminal Procedure. The Privy Council, however, pointed out that "the question whether the Ordinance is. intra vires or ultra vires does not depend on considerations of jurisprudence or of policy" and went on to hold that they found nothing in the Government of India Act to invalidate such a statute nor was there any principle "underlying the written Constitution of India which debars the executive authority, though specially authorised by the statute", from exercising such discretion. We see no reason to depart from this long established rule of interpretation of statutes enacted prior to the coming into force of the late Constitution, for, we should avoid, if possible, casting a doubt on a long course of legislation wherein similar provisions have been made. Applying this test in the present case we find on examining the language of the Indian Councils Act, 1861, and comparing the legislative powers of the Governor‑General in Council under the said Act with the provisions of the Arms Act, that in enacting section 17 of the latter Act that legislative authority could, in sense of the term, be said to have abdicated or effaced itself or created a new legislative body or legislated beyond its competence. Having regard to the nature of the object sought to be achieved by the legislation it was impossible for the legislature to attempt to provide for every detail and machinery to carry it into effect, hence, the legislature, whilst retaining its legislative powers intact and maintaining its full legislative control authorised the executive merely to determine the manner of carrying it into effect by rules framed in that behalf. It is clear from the examination of the provisions of sections 13 to 18 of the Arms Act that the policy of the legislation clearly discernible therein is that no one should have any right to possess or carry any kind of arm or ammunition except when permitted to do so by the appropriate authority and even then upon such terms and conditions as the said authority might consider it necessary to prescribe by rules having regard to the conditions prevailing in a given area where the arm in question was to be possessed or carried. The arguments relating to the unfettered discretion said to have been given by rule 43 of the Arms Rules to the executive authority to refuse a licence appear in this context to be no longer pertinent. Once it has been found that the legislature was competent to make the legislation concerned and had not thereby created a subordinate legislature or abdicated its powers, the Courts are precluded from enquiring any further or as observed by Lord Selborne in the case of Queen v. Burah "to enlarge construc tively those conditions and restrictions". The legislature could, therefore, in the absence of any constitutional provision or other superior legislation restricting the powers of such a legislature validity give a discretion of this nature within the limits indicated above. Rule 43 is not also, in our view, in excess of the powers given by section 17 for the power to refuse was inherent in the power to grant the licence in the absence of any words in the statute limiting or restricting the discretion which we have already held was validly vested in the executive. The said rule merely' gave expression to the intent necessarily implied in the provisions of the Act itself. Now, having regard to the limited scope of the powers vested in the High Courts and this Court by the Laws (Continuance in Force) Order to issue writs only of habeas corpus mandamus, prohibition, quo warranto and certiorari, we have to point out that the foundation for an application for a writ of mandamus which alone is applicable in the present case as the function of the licensing authority is purely administrative is that there must exist a legal right in the person seeking the writ to insist upon a clear duty being performed by some public officer or authority respect of that right. In the present case, this foundation does not exist, for, in our opinion, on a plain reading of the provisions of the Arms Act no one has a right to possess or carry a gun. The legal right to do so is created only after the licence is granted. The grant of a licence amounts, in these circumstances, for all practical purposes to the conferment of a privilege. Hence the respondent cannot in our opinion, maintain all application for writ of mandamus in the absence of any such clear right in him to possess a revolver. There are other good reasons, too, upon which this application for a writ of mandamus must fail. The accepted conditions for the grant of a writ of this nature are that it must be preceded by a demand of justice and the refusal thereof and that there should be no other equally expeditious, in expensive and efficacious remedy available to the person seeking this extraordinary remedy. In the present case it appears that the respondent had upon the refusal by the District Magistrate to issue the licence actually preferred an appeal, in accordance with the provisions of rule 43 of the Arms Rules, to the Commissioner and that the said appeal is still pending. In the reply filed by the Government it is states that appeals are taken up in due course in the order of priority in which they have been filed. Having availed of this alternative remedy he cannot now be allowed to again ask for a mandamus against the authority from whose order he has preferred the appeal. Having elected to adopt the special procedure of redress provided under the Arms Act he must first exhaust his remedies thereunder. There is again nothing on the record to show that the respondent ever called upon the Commissioner to dispose of the said appeal or that the Commissioner ever refused to do so. Hence the delay of six and a half months complained of by the respondent cannot by itself amount to a denial of justice. There is also no substance in the contention that the refuse` of the licence in the present case was either arbitrary or unreason able. The respondent has himself conceded before us that if he~ was a genuine "political suspect" the refusal would be justified Active political work spread over several years is admitted by him in his petition and this, in our opinion, is sufficient to indicate that there were grounds upon which he could be treated as a political suspect and, in the circumstances, the licensing authority cannot be said to have exercised its discretion either in an arbitrary or capricious manner. It is not for us in proceedings of this nature to substitute our decision for the decision of the public officer or authority concerned. The Courts cannot dictate by mandamus as to the manner in ‑which the discretion or power ‑conferred by law should be exercised or any matter decided nor can they go into the merits of a case and decide the question involved as if sitting in appeal. We are unable also to accept the finding of the High Court that the District Magistrate had, in the facts and circumstances of this case, not acted with responsibility. The fact that his order on the files shown to the Court "consists of a mere signature based on the report of a clerk, which reproduces the opinion o the Senior Superintendent of Police, which in itself is not an opinion but a reproduction of the opinion of a Sub‑Inspector" does not by itself disclose a want of responsibility nor rebut the presumption of regularity attached bylaw to official acts. The District Magistrate who was a responsible officer, must be taken to have applied his mind to the facts of the case and being satisfied as to the correctness and reliability of the previous notings contained therein appended his signature thereto in evidence of his agreement with the facts mentioned in the said notings. In the present case, there was no evidence of any kind whatsoever adduced by the respondent which could be said to have rebutted that presumption. Hence it is difficult to appreciate how this finding could have been arrived at. For the reasons given above we allow this appeal with costs, set aside the order of the High Court, dismiss the respondents, petition and recall the writ issued by the High Court. B. Z. KAIKAUS, J.‑I agree that this appeal be accepted, but my line of reasoning is not quite the same. It will be convenient to reproduce here the relevant provisions of the Arms Act:- Section 14.‑No person shall have in his possession or under his control any cannon or firearms, or any ammunition or military stores, except under a licence and in the manner and to the extent permitted thereby. Section 11.‑The Central Government may from time to time, by notification in the official Gazette, make rules to determine the officers by whom, the form in which, and the terms and conditions on and subject to which any licence shall be granted; and may by such rules among other matters :‑ (a) Fix the period for which such licence shall continue in force ; (b) Fix a fee payable by stamp or otherwise in respect of any such licence . . . . . (c) . . . . . . . . . (d) Empower any officer of Government to enter and inspect any premises . . . . (e) Direct that any such person shall exhibit the entire stock of arms, etc., to any officer of Government so empowered ; and (f) Require the person holding any licence to produce the same at such place. Section 18.‑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, if, for reasons to be recorded in writing, such officer, authority or Magistrate deems it necessary for the security of the public pace to cancel or suspend such licence ; or (b) By any Judge or Magistrate before whom the holder of such licence is convicted of an offence against this Act, or against the rules made under this Act ; and the Central Government may by a notification in the official Gazette cancel or suspend all or any licence throughout the Province or any part thereof and the Capital of the Federation. Rule 33.‑A licence for the possession of arms and ammunition in reasonable quantities and for going armed for the purposes of sport, protection or display may be granted in Form XVI or Form XVI‑A, by the District Magistrate or by any Sub -Divisional Magistrate specially empowered by the Local Government in that behalf. Rule 43.‑(1) Every authority empowered to grant or renew a licence or to give his previous sanction to such grant or renewal may in his discretion (a) Refuse to grant or renew such licences or to give such sanction, or (b) Where the authority is subordinate to a Local Govern ment, refer the application for orders to such Local Government Provided that in any case in which such authority refuses to grant or renew a licence, the applicant for such grant or renewal may appeal to the immediate official superior of the authority so refusing. The first question I will consider is whether r. 43 is intra vires. This rule has been interpreted by the parties as wall as by the High Court to mean that by it an unfettered discretion to grant or refuse a licence has been conferred on the authority empowered by rule

33. Another interpretation of this rule was not impossible, namely, that the discretion mentioned in it related to the choice of one of the two alternatives mentioned in clauses (a) and (b) of the said rule, and not that the discretion to refuse or to grant licence was conferred by the rule itself. However, as there is no contest on the point, I will accept the interpretation put upon it by the parties and the learned Judges of the High Court. On this interpretation it is not possible for me to agree that this rule is within the power granted by section

17. In the High Court, it had been urged on behalf of the Government, and the argument had been accepted, that the power of the Central Government to prescribe "the terms and conditions on, and subject to, which any licence shall granted" included the power to provide for the grounds on which licences may be granted or refused. To me it appears that the power to prescribe the terms and conditions on which a licence is to be granted is something different from the power of giving directions as to the cases in which a licence shall be granted or refused. The power granted to the Central Government by section 17 authorizes the Govern ment only to prescribe the conditions to which the licence, if granted, would be subject. While I hold that rule 43 is not covered by section 17, I do not see what effect this would have on the decision of the case. According to section 14, the possession or control of arms is prohibited excepting under a licence. By section 17 the Central Government can determine the officers who shall grant licences. Even if rule 43 did not exist the officers who are empowered to grant licence would have the power to refuse them, such power being inherent in the power to grant a licence. As regards section 17, on the interpretation that I put on the words "the terms and conditions on and subject to which any licence shall be granted", the question of its vires does not arise in this case, for we are not concerned here with the conditions of which a licence was granted. However, if I were to accept the interpretation put upon section 17 and rule 43 in the High Court by the parties themselves, namely, that section 17 authorizes the Central Government to prescribe the grounds on which licence may be granted or refused and by rule 43 the Government conferred unfettered discretion on certain officers to grant of refuse such licences. I would not agree that judging by the ordinary principles applicable to delegation of legislative power section 17 or rule 43 were intra vires. According to such principles, delegated legislative power will be valid only if the policy and framework are provided by the legislature and the Government is only to fill in the details. Learned counsel, who appeared on behalf of the Government, accepted this principle, but contended that there are two exceptions mentioned in East & West Steamship Co. v. Pakistan ((1958) 1 P S C R 19 : P L D 1958 S C (Pak.) 41), on the basis of which it should be held that section 17 and rule 43 are not ultra vires. These two exceptions are :‑ (i) where it is not possible to lay down any definite com prehensive rule ; and (ii) where the policy of the legislature though not expressly stated is implicit in the enactment. It does not appear to have been realized by learned counsel for the Government that his reliance upon both these exceptions would make his argument self‑inconsistent. His contention that the policy was implicit in the provisions of the Act would imply that the policy on this point was clear even without enunciation, but then in the very next breath he said that this was a matter in which it was not possible to lay down any definite policy. If the policy be clear even without enunciation then surely it will not be difficult of enunciation. I cannot accept the argument that it was difficult to lay down a policy in this case. It could very well have been said that licences were to be granted with due regard to the defence of the State, maintenance of public order and prevention of crime. As a matter of fact, it would be quite sufficient to say, even without reference to defence of the State and public order that licence may not be granted where there was an apprehension of the arm being used for commission of an offence. I find myself in agreement with the learned Judges of the High Court when they say that the real reason for the omission to state the policy in the firms Act was that a part of the policy was such as the Government did not want publicly to acknowledge. In accordance with the policy which the Government wanted to pursue, licences could be refused even on the ground that the applicant had not rendered sufficient service to the State to be entitled to what was regarded as a reward for services. Nor am I prepared to accept that the policy is in this case implicit in the provisions of the Act. In order that delegated legislation should be valid the whole of the policy within which rules are to be framed by the Government has to be stated and not merely a fragment of it. At the most reference can be made to the provisions in section 18 (a) relating to the security of State. But does that exhaust the policy in accordance with which licences were to be granted? This provision refers to only one reason for refusing a licence. It does not provide the policy within which all reasons for refusal have to be included. Suppose the Govern ment framed rules providing for refusal of licence on the ground that I have mentioned above, namely, failure to render services to the State or on the ground that the applicant belonged to a political party which is in the opposition. Could it be said that such a rule was invalid because it was not included in the policy which is implicit in the provisions of the Act? I do not think the rule could be held invalid on that ground. The Arms Act does not provide a policy so as to place a limitation on the power of the Government to frame rules, and it is necessary that the Act should provide a framework within which rules are to be framed. If the boundaries of the exercise of legislative power do not appear from the Act then the Act does not conform to the principles applicable to delegated legislation. However, although I do not agree that on the interpretation of section 17 which has been accepted by the High Court the delegation of legislative power would be in accord with the accepted principles, I cannot see how the partial invalidity of the rule making power would benefit the respondent. Even if no rules are framed the necessity of a licence would be there on account of section

14. At the same time, there is an aspect of this delegated power to which I would refer. As I read the provisions of the Arms Act the intention is to confer absolute power on the Central Government in the matter of grant, refusal, suspension and cancellation of licences. So far as cancellation or suspension is concerned, there is a clear provision in section

18. So far as grant or refusal is concerned, the power is to be exercised by officers appointed by the Central Government, but those officers too would have to exercise it in accordance with the directions given by the Central Government, for it is a case where they would be exercising the powers as officers of the Government and not as public functionaries who have to exercise their own discretion and whose acts would be invalid if they acted under the direction of some other person. If then the whole discretion in respect of licence vests in the Central Government and the rules which are to be farmed relate only to the exercise of such discre tion can the principles relating to delegated legislation be invoked at all? It is not necessary to decide the question in the present case, but it does appear to me that a case where an authority frames rules which are to operate as laws binding other persons and a case where the rules are simply to regulate the exercise of its own otherwise unfettered discretion do not stand on the same footing. Quite apart from all that has been said above, it appears to me that the Writ Petition should fail because even if rule 43 and section 17 were held to be ultra vires the respondent could not become entitled to have a direction issued to the District Magistrate to grant a licence to him. If rule 43 were held to be invalid so that conferment on the District Magistrate of the power to refuse or grant a licence was unauthorized the result could not be that he would be bound to issue a licence and that is the relief which has been granted in this case. The result of rule 43 and section 17 being ultra vires could only be that the District Magistrate would not be entitled to act at all. The learned Judges of the High Court have not explained how they have reached the confusion that because rule 43 and section 17 were not intro vices the respondent became entitled to a licence. They have issued a direction to the District Magistrate to grant the respondent a licence. I have discussed the matter even on the basis of interpreta tion accepted by the High Court. My own conclusions are that by the Arms Act an absolute power had been granted to the Central Government in the matter of grant, refusal, suspension and cancellation of licences, that section 17 did not provide for the framing of rules as to the grounds on which licences were to be granted, and that the power of the District Magistrate to refuse or grant licences was derived not from the rule but from the Act itself. Rule 43 is not within section 17 but its invalidity does not affect the decision. I would accept this appeal and dismiss the writ petition. A. H. Appeal accepted.