Madras High Court
M.Muthuramalingam vs The Principal Secretary on 12 January, 2011
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/01/2011 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.14513 of 2010 M.Muthuramalingam ... Petitioner Vs. 1.The Principal Secretary, Commissioner of Revenue Administration, Ezhilagam, Chennai. 2.The District Collector, Madurai District. 3.The Revenue Divisional Officer, Madurai District, Madurai. ... Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order passed by the first respondent in RA.5(1)/31957/2008 A.A.No.33/08, dated 27.10.2010 and quash the same as illegal and consequently, direct the second respondent to grant an Arms licence in favour of the petitioner to possess a revolver for the petitioner's protection. !For Petitioner ... Mr.D.Muruganantham ^For Respondents ... Mr.S.C.Herold Singh Government Advocate ******** :ORDER
****** Challenge in this Writ Petition is to the order dated 27 October 2010 on the file of the first respondent, confirming the order dated 4 April 2008 on the file of the District Magistrate/Collector, Madurai, whereby and whereunder the application filed by the petitioner for grant of arms licence to possess revolver for self-protection was rejected.
FACTS IN BRIEF:
2. The petitioner was a member of the Tamil Nadu Legislative Assembly from Thirumangalam Constituency. He is an active member of a political party. He also unsuccessfully contested the by-election to elect a representative from Thirumangalam Legislative Constituency in the year 2009. He was a witness in a sensational murder case which was tried before the Sessions Court at Andhra Pradesh.
3. The petitioner having found that there was a threat to his life made an application before the District Collector -cum- District Magistrate, Madurai on 11.01.2007, requesting for grant of a gun licence. The application was processed by the District Magistrate and ultimately, it was rejected as per proceedings dated 4 April 2008.
4. The petitioner preferred a statutory appeal before the first respondent. Before the appellate authority, the petitioner contended that he is an active politician and he joined the opposition party after resigning from the ruling party and as such, there is a serious threat to his life.
VIEWS OF THE APPELLATE AUTHORITY:
5. The first respondent found that the Superintendent of Police, Maudrai, did not recommend the grant of licence and there were no records to show that there was a threat to the life of the petitioner at any point of time.
According to the first respondent, in the absence of any proof of threat perception to life and property, the request of the petitioner for a gun licence for self-protection does not appear to be genuine. The appeal was dismissed accordingly. Feeling aggrieved, the petitioner is before this Court.
SUBMISSIONS:
6. The learned counsel for the petitioner contended that the application submitted by the petitioner before the District Magistrate as well as the appeal filed before the first respondent were not considered objectively and it was rejected on flimsy reasons. According to the learned counsel, the first respondent was not justified in rejecting the appeal solely on the ground that the petitioner has not produced any proof of threat perception to his life and property.
7. The learned Government Advocate justified the order passed by the original authority as well as the appellate authority.
ANALYSIS:
8. The petitioner is a member of a political party. He was originally a member of the present ruling party and after resigning, he joined the opposition party. The petitioner was the member of Legislative Assembly from Thirumangalam Constituency in the district of Madurai. Subsequently, he contested the by-election for Thirumangalam Legislative Constituency in the year 2009. There was a murder case relating to the death of a former Minister of Tamil Nadu. The trial of the said murder case was transferred to the State of Andhra Pradesh on allegation that the witnesses were threatened. The petitioner was a witness in the said murder case. According to the petitioner, the accused in the said case are residing in and around his locality. The petitioner is also a spokesperson of his political party and in the said capacity, he used to travel throughout the State of Tamil Nadu.
9. The application submitted by the petitioner was for the purpose of granting a gun licence. The application was submitted before the District Magistrate, as the said authority was functioning as the licensing authority.
The application was forwarded to the Superintendent of Police, Madurai, Revenue Divisional Officer and the District Forest Officer. The Superintendent of Police submitted a report before the Collector stating that the enquiry revealed that the petitioner was a short tempered person. He was involved in a simple injury case and later, he was acquitted. The Superintendent of Police was of the view that there was no danger to his life and property. The Revenue Divisional Officer, in his report dated 04.05.2007, reported that the petitioner requires the revolver for his self-protection and accordingly, recommended the grant of licence. The District Forest Officer informed the licensing authority that there were no adverse remarks against the petitioner and accordingly, recommended the grant of licence.
10. The District Collector, acting on the report submitted by the Superintendent of Police, rejected the application for gun licence. The District Collector was of the view that there was no serious threat to the life of the petitioner. However, the fact remains that it was basically the report of the Superintendent of Police, which made the Collector to arrive at a conclusion that there was no necessity to issue a gun licence to the petitioner.
11. The matter was taken up before the first respondent in his capacity as the appellate authority. The appellate authority reiterated the very same reasons, which made the original authority to reject the application. The appellate authority opined that there was no proof of threat perception to the life and property of the petitioner and as such, his application does not appear to be genuine.
12. The core question is as to whether the authorities below were justified in rejecting the application for grant of gun licence to the petitioner.
THE STATUTE:
13. The Arms Act 1959 was enacted to regulate the acquisition, possession or carrying of firearms and ammunition and to provide punishment for contravention of the statutory provisions. The statement of objects and reasons appended to the Act indicates that the rigours of the Arms Act, 1878 and rules thereunder continue to make it difficult for law abiding citizens to possess firearms for self-defence whereas terrorists, dacoit-gangs and other anti-social or anti-national elements were using not only civilian weapons but also bombs, hand-grenades, bren-guns, sten-guns, 303 bore service rifles and revolvers of military type, for perpetrating heinous crimes against society and the State. Therefore, it was only to codify the law relating to the possession of arms that the Act was enacted.
14. Section 3 of the Arms Act, 1959 [hereinafter referred to as "the Act"] provides that no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds a licence issued in accordance with the Act. Section 13 of the Act deals with submission of application and grant of licence. Section 13(2) provides that on receipt of an application from a person, the licensing authority shall call for the report of the officer in charge of the nearest police station and such officer shall send his report within the prescribed time. Sub section 2-A of Section 13 provides that the licensing authority, after such enquiry, if any, and after considering the report received from the officer in charge of the nearest police station, shall, by order in writing, either grant the licence or refuse to grant licence. The proviso added to Section 13(2-A) gives an indication that in case the officer in charge of the nearest police station fails to submit a report, it will be open to the licensing authority to pass appropriate orders without further waiting for the report.
15. Section 14 provides the circumstances under which an application for licence could be refused. The said provision reads thus:
"14. Refusal of licences.- (1) Notwithstanding anything in section 13, the licensing authority shall refuse to grant-
(a) a licence under section 3, section 4 or section 5 where such licence is required in respect of any prohibited arms or prohibited ammunition;
(b) a licence in any other case under Chapter II,-
(i) where such licence is required by a person whom the licensing authority has reason to believe-
(1) to be prohibited by this Act or by any other law for the time being in force from acquiring, having in his possession or carrying any arms or ammunition, or (2) to be of unsound mind, or (3) to be for any reason unfit for a licence under this Act; or
(ii) where the licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such licence.
(2) The licensing authority shall not refuse to grant any licence to any person merely on the ground that such person does not own or possess sufficient property.
(3) Where the licensing authority refuses to grant a licence to any person it shall record in writing the reasons for such refusal and furnish to that person on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement."
16. It is true that the report submitted by the Superintendent of Police, Madurai dated 19.02.2008 was not favourable to the petitioner. The Superintendent of Police opined that the petitioner was a short tempered person and he was also involved in a case under Sections 147, 355, 341 and 323 of the Indian Penal Code, which later ended in acquittal. Though there were no materials, the District Police Officer reported that there was no danger to the life and property of the petitioner.
17. The Revenue Divisional Officer, who was functioning as the immediate subordinate of the District Collector, submitted a detailed report, wherein it was indicated that the petitioner was a constant traveller throughout the State of Tamil Nadu in connection with his political life and as such, he requires revolver for self-protection and accordingly, recommended for granting the licence. The District Forest officer also recommended his case.
18. Section 13(2) requires only the report of the officer in charge of the nearest police station. The report of the police officer is only a material to be considered by the licensing authority. The report is not binding on the licensing authority. This is evident by the fact that the proviso to Section 13(2-A) gives authority to the Licensing authority to grant licence even without waiting for a report of the officer in charge of the police station, in case such report is not furnished within the time granted. Therefore, it was not open to the licensing authority to reject the application solely on the ground that the report of the Police Officer was not favourable.
19. The Superintendent of Police informed the licensing authority that the petitioner was a short tempered person. There is nothing on record as to how the Superintendent of Police has arrived at such a conclusion. The temperament of a particular person cannot be a sole criteria to decide the application for licence. The Superintendent of Police has not produced any material before the licensing authority to show that the petitioner behaved in an intemperate manner on earlier occasions. Though the petitioner was in active politics for the last many years, there was only one case charged against him and that too, relating to a simple injury case. The petitioner was a key witness in a sensational murder case. The case was so sensitive that the trial was shifted to a different State. The petitioner has clearly stated that the accused are all from his village. The respondents have not denied any of the averments as contained in the affidavit filed in support of the Writ Petition.
20. Neither the first respondent nor the second respondent examined the matter in an objective manner. The existence of serious threat cannot be proved in the manner suggested by the respondents. The necessity for a gun licence has to be considered, in the light of the facts and circumstances of a given case.
21. The first respondent appears to be under the impression that only in case a person was attacked, he would qualify himself for making an application for gun licence. The respondents 1 and 2 proceeded on a wrong basis and that resulted in passing an order, which was more in the nature of a subjective order.
22. In Commissioner of Police v. V.P.Kalairajan [2009(3) MLJ 1295], a Division Bench of this Court considered the jurisdiction of the licensing authority under the Arms Act in the matter of granting gun licence. In the said case, the respondent was functioning as a member of the Legislative Assembly. His application for arms licence was rejected on the ground that he was involved in several criminal cases. The matter was considered only in a subjective manner and it was ultimately rejected. The Writ Petition filed against the order of rejection was allowed by the learned Single Judge. When the matter was taken up in appeal, the Division Bench considered the scope and ambit of Sections 14 and 18 of the Arms Act and observed that the satisfaction of the licensing authority cannot be subjective. The following observation of the Division Bench would make the position clear:
"20. This Court is of the opinion that when exercise of power of a statutory authority has to be based on certain reasons which such authority must believe to exist, such exercise of power cannot be left to the subjective satisfaction of the authority. Therefore, an erroneous stand has been taken by the Licensing Authority in his counter affidavit by saying in paragraph-9 "the subjective satisfaction of this respondent based on sound reasoning cannot be questioned by the petitioner". This stand is totally wrong. First of all, the satisfaction of the Licensing Authority cannot be subjective and secondly, the applicant for such licence has always the right to question it, and the right of appeal under Section of the said Act recognizes such a statutory right of an applicant to question the exercise of power by the Licensing Authority. Therefore, it is clear that the Licensing Authority has proceeded on an erroneous basis in the exercise of his power under Section 14 of the said Act.
23. The petitioner was apprehending danger to his life. He has demonstrated that there were sufficient reasons justifying his claim for gun licence. Merely because he was not attacked earlier, it cannot be said that he was not eligible for a gun licence. Section 13(3)(b) provides that if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same, he has to grant licence. Therefore, the word "good reason" assumes significance. The Arms Act does not contain a provision that the applicant has to demonstrate that there was a serious threat to his life and property and the pressing necessity for keeping a weapon for effective protection. The "good reasons" cannot be assessed in a subjective manner. The materials produced by the petitioner should be considered in an objective manner and a finding of fact should be recorded about the bona fides of the claim.
24. Section 14(3) clearly mandates that in case the licensing authority refuses to grant licence, reasons should be recorded in support of such orders. Therefore, the provisions of the Act clearly indicates that only on valid reasons, application for gun licence could be rejected. The subjective satisfaction arrived at by the licensing authority or appellate authority cannot be a valid reason to deny the gun licence. Therefore, I am of the view that the original authority as well as appellate authority were not justified in rejecting the application for gun licence.
25. In the result, the impugned order dated 27.10.2010 is set aside and the matter is remitted to the second respondent for fresh consideration. It is open to the petitioner to produce materials to substantiate his case regarding the necessity for granting a licence to possess gun. The second respondent is directed to consider the matter in an objective manner in accordance with the Arms Act, 1959 and pass appropriate orders on merits and as per law as expeditiously as possible and in any case, within a period of two months from the date of receipt of a copy of this order.
26. The Writ Petition is allowed as indicated above. No costs.
SML To
1.The Principal Secretary, Commissioner of Revenue Administration, Ezhilagam, Chennai.
2.The District Collector, Madurai District.
3.The Revenue Divisional Officer, Madurai District, Madurai.