Madras High Court
V.Lingam vs The Special Commissioner And on 1 April, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01/04/2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P(MD)No.8408 Of 2006
and
M.P(MD)No.1 of 2006
V.Lingam ..Petitioner
vs
1. The Special Commissioner and
Commissioner of Revenue Administration,
Chepauk,
Chennai.
2. The District Revenue Officer,
Ramanathapuram District,
Ramanathapuram. ..Respondents
PRAYER
Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus calling for the records of
the first respondent relating to the R.C.No.R.A5(1)95368 of 2005, dated
09.08.2006 and to quash the same and consequently to direct the second
respondent to re-register the D.B.B.L 12, Bore Gun of the petitioner in
Ramanathapuram District within a specified time fixed by this Court.
!For Petitioner ... M/s.S.Viswalingam
^For Respondents ... Mr.B.K.Rajendran
Addl. Govt.Pleader
:ORDER
The petitioner was an Ex-service man. While he was in Indian Army at Jammu, he was granted D.B.B.L 12 Bore Gun by the Additional District Magistrate, Kathua for self-protection and the same is valid upto 12.02.2008. After he was discharged from Indian Army, he came to his native village Muthukulathur. He applied to the second respondent for re-registration of his weapon in Ramanathapuram District. The second respondent passed the impugned order, dated 03.10.2005 refusing to re-register his weapon on the ground that Ramanathapuram District is communally sensitive area and there has been clashes between the Scheduled Castes and caste Hindus and that therefore, his application for re-registration was rejected. Therefter, he filed an appeal under Section 18(1) of the Arms Act to the first respondent. The appellate authority passed the order dated 09.08.2006 confirming the order of the second respondent.
2. According to the petitioner, the local police station issued certificae, dated 16.10.2005 that the petitioner has no adverse report in Muthukulathur Police Station and its limits. He applied for re-registration for self-protection. But, the first respondent rejected his appeal by the impugned order, dated 30.10.2005 reiterting the same reason that was given by the original authority. The Writ Petitioner has filed the present Writ Petition to quash the impugned order, dated 09.08.2006 and for a direction to the second respondent to re-register the D.B.B.L.12 Bore Gun of the petitioner in Ramanathapuram District.
3. The respondent filed the counter affidavit refuting the allegations made in the affidavit filed in support of the writ petition. It is reiterated that the re-registration was declined on the ground that Muthukulathur is communaly sensitive area.
4. The learned counsel for the petitioner submits that the respondents could not refuse to re-register his weapon in Ramanathapuram District on the ground that Muthukulathur is prone to communal disturbances, since so many persons have been issued licences in Muthukulathur area. Furthermore, Arms Act,1958 recognizes the right of every citizen to possess arms for self-defense and he has brought to my notice the objects and reasons for enacting the aforesaid statute. He has also heavily relied on the Judgement of the Allahabad High Court in Ganesh Chandra Bhatt .vs. District Magistrate, Alora and others reported in AIR 1993 Allahabad 291.
5. On the other hand, the learned Additional Government Pleader appearing for the respondents strenuously opposes the contentions so raised by the learned counsel for the petitioner and seeks dismissal of the writ petition.
6. I have considered the submissions made on either side.
7. The second respondent refused to re-register the weapon of the petitioner in Ramanathapuram District on the only ground that Muthukulathur is prone to communal disturbances. Para 4 and 5 of the order of the second respondent is extracted hereunder:
4. khtl;l fhty; fz;fhzpg;ghsh; jdJ fojj;jpy; kDjhu; trpf;Fk; KJFsj;J]:h;
kw;Wk; mij Rw;wpa[s;s gFjpfspy; Mjp jpuhtplh; ndj;jth;fs; mjpfkhf trp;j;J tUtjhYk; ng;gFjpapy; mof;fo ndf;fytuA;fs; Vw;gLtjhYk; rl;l xGA;F eyd; fUjp gilf;'fy chpkj;ij kPsg; gjpt[ bra;a fhty; Jiwiag; bghWj;jkl;oy; ghpe;Jiuf;fftpy;iy, vd mwpf;if mDg;gpa[s;shh;.
5. bghJthf fle;j fhy:A;fspy; nk;khtl;lj;jpy; mjpYk; Fwpg;ghf KJFsj;J]h; gFjpfspy; epfH;e;Js;s ndf;fytuA;fis fUj;jpw; bfhz;L fhty;Jiw ghpe;Jiuf;fhj epiyapy; kDjhupd; chpkj;ij 1959-Mk; Mz;L gilf;fyr;rl;lk; gphpt[ 14(3)d;go kPsg;gjpt[ bra;a kWj;J njd; Kyk; Miz gpwg;gpf;fg;gLfpwJ.
8. When the petitioner preferred an appeal before the first respondent, the first respondent confirmed the order passed by the second respondent. Para 5 of the order of the first respondent is extracted hereunder:
"5. .....Possession of a weapon cannot be claimed as a matter of right. The issue of arms licence should be done with great care and caution with greater circumspection and fuller realization of the changed times. The public safety and peace are of paramount importance. I am of the opinion that the appellant has not come up with satisfactory and convincing reasons as to the necessity of a weapon. In these circumstances, I see no reason to interfere with the orders of the Additional District Magistrate and the District Revenue Officer, Ramanathapuram and accordingly reject the appeal as devoid of merits."
9. In my view, the learned counsel for the petitioner is perfectly correct in his submission that the first respondent has failed to consider the relevant materials, namely, the report of the local police and on the other hand, considered irrelevant materials.
10. Likewise, the order of the first respondent is against the very objects and reasons for enacting the Arms Act 1959 and the statement of objects and reasons of the Act is given below:
"statement of objects and reasons.-- The Indian Arms Act, 1878, was intended to disarm the entire nation. Even after independence, the law declaring "swords, daggers, spears, spear-heads, bow and arrows" as "arms" has been allowed to continue unaltered on the statute book. The rigours of the Arms Act 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 are using not only civilin weapons but also bombs, hand-grenades, Bren-guns, Sten-guns, 303 bore service rifles and revolvers of military type for prepetrating heinous crimes against society and the State.
The Indian Arms (Amendment) Bill(49 of 1953) was introduced in the Lok Sabha on the 27th November, 1953 to focus Parliament's attention on this vital subject. It was discussed in the House on 20th March, 1954 and was circulated for public opinion.
Opinions were received from all the State Governments which contained not only their own views but also those of many legal luminaries, Bar Associations, Judges, Collectors, Senior Police Officers and Local Bodies of their respective States. On the basis of those opinions, this Bill has been drafted.
The objects of this Bill are:--
(a) TO exclude knives, spears, bows and arrows and the like from the definition of "arms".
(b) to classfy firearms and other prohibited weapons so as to ensure--
(i) that dangerous weapons of military patterns are not available to civilians, particularly the anti-social elements.
(ii) that weapons for self-defence are available for all citizens under licence unless their antecedents or propensities do not entitle them for the privilege; and
(iii) that firearms required for training purposes and ordinary civilian use are made more easily available on permits:
(c)to co-ordinate the rights of the citizen with the necessity of maintaining law and order and avoiding fifth column activities in the country;
(d) to recognize the right of the State to requisition the services of every citizen in national emergencies. The licensees and permit holders for firearms, shikaris, target shooters and rifle-men in generl(in appropriate age groups) will be of great service to the country in emergencies, if the Government can properly mobilise and utilise them."
11.Clause b(ii) of the objects of the Bill that is extracted above makes it clear that it is the privilege of the Indian Citizen to possess arms and they are entitled to have licence. Licence could be denied only when the antecedent is bad.
12. Here, the local police has categorically certified that he does not have any adverse record. The certificate is enclosed in the typed-set of papers. The same was not considered and on the other hand, the communal disturbance in the entire area is stated as the only reason and even no details are given except simply stating that Muthukulathur is a communaly sensitive area. It is not sufficient to decline the arms licence which the petitioner is entitled to have under the Arms Act 1959.
13. As rightly contended by the learned counsel for the petitioner, the judgment of the Allahabad High Court in Ganesh Chandra Bhatt .vs. District Magistrate, Almora and others reported in AIR 1993 Allahabad 291 squarely applies to the facts of the present case. That judgment has traced the entire history relating to possession of arms by Indians. Para 4 to 15 of the said judgement are extracted hereunder:
"4.In my opinion, the right to carry arms for self-defence is a part of Article 21 of the Constitution, and hence the petitioner is entitled for grant of the licence. To substantiate this view I would like to discuss the matter at some length.
5. Before the British came to India the situation in our country was that in almost every house there were some arms. Possession of arms was regarded as a sign of dignity and self respect. Even today in our country in many communities on dussehra day arms are worshipped, which is symbolic of the respect given to arms in earlier times.
6. The Mahabharat, which is the longest and greatest of the epics of the whole world, is full of the use of arms. Thus, Arjun goes to divya-lok to get arms from the Gods (which he subsequently used in the Mahabharat War). Thus, in our culture the value of arms for leading a life of self-respect and dignity has been accepted.
7. When the British came to India they had to face armed resistance from the feudal kings. Due to their technological and organisational superiority they gradually overcame this resistance and spread their rule in India. It was only after putting down the Mutiny of 1857 that the British decided to disarm the Indian people. Having been shocked by the sudden, widespread uprising against them they decided that to avoid such revolts in future they must (1) disarms the Indian people (2) divide the Indian people. This policy was implemented so effectively that up to 1947 there was hardly any significant militant uprising against them.
8. The first comprehensive arms legislation in India was Act 28 of 1857 enacted on 11.09.1857. This Act was a temporary measure, and it only regulated the import, manufacture, sale, possession and use of arms for two years. It was passed when the Mutiny was still going on, and it was a hurriedly drafted law with the obvious aim of seeking to put down the revolt. The Act of 1857 was replaced by Act 31 of 1860. This later Act differed from the 1857 Act in two important respects (1) It provided for the disarming of any State, district or place and made it unlawful for any one in any disarmed state, district or place to possess Arms and ammunition without licence (2) It prohibited the purchase of arms and ammunition from unlicensed persons.
9. On 01.10.1878 Act 11 of 1878 came into force. This was mainly a consolidation of the earlier law with some alterations. It provided for a stricter regulation of the importation, transport and possession of arms and ammunition.
10. Finally, the present Arms Act of 1959 was enacted which came into force on 01.10.1962. The Arms Rules, 1962 were promulgated on 01.10.1962, and they repealed the earlier rules.
11. The Statement of Objects and Reasons of the Arms Act, 1959 reads as follows:-
"The Indian Arms Act, 1878, was intended to disarm the entire nation. Even after independence, the law declaring "swords daggers, spears, spear-heads, bow and arrows" as "arms" has been allowed to continue unaltered on the statute book. The rigours of the Arms Act 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 are 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.
12. The Indian Arms (Amendment) Bill (No.49 of 1953) was introduced by the undersigned in the Lok Sabha on the 27th November, 1953 to focus Parliament's attention on this vital subject. It was discussed in the House on 26th March, 1954 and was circulated for public opinion.
13. Opinions were received from all the State Governments which contained not only their own views but also those of many legal luminaries, Bar Associations, Judges, Collectors, Senior Police Officers and local Bodies of their respective States. On the basis of those opinion, this Bill has been drafted.
14. The objects of this Bill are:-
(a) to exclude knives, spears, bow and arrows and the like from the definition of "arms".
(b) to classify firearms and other prohibited weapons so as to ensure -
(i) that dangerous weapons of military patterns are not available to civilians, particularly anti-social elements;
(ii) that weapons for self-defence are available for all citizens under license unless their antecedents or propensities do not entitled them for the privilege; and
(iii) that firearms required for training purposes and ordinary civilian use are made more easily available on permits;
(c) to co-ordinate the rights of the citizen with the necessity of maintaining law and order and avoiding fifth-column activities in the country;
(d) to recognize the right of the State to requisition the services of every citizen in national emergencies. The licensees and permit holders for firearms, shikaris, target shooters and rifle-men in general (in appropriate age groups) will be of great service to the country in emergencies, if the Government can properly mobilize and utilise them"- Gaz. of India 20.02.1959, Pt. II-S.2, Extra p. 107.
15. Since the avowed object of the 1959 Act (as mentioned in the Statement of Objects and Reasons) is to do away with the British policy or keeping the Indian nation disarmed, we must give an interpretation to the provisions of the said Act which is in conformity with the above object. However, the unfortunate fact is that the authorities often interpret the 1959 Act as if it is not materially different from the 1878 Act, and hence applications for arms licences are as readily and arbitrarily rejected as before."
14. In para 15 of the judgement, the High Court has held that it is unfortunate that the authorities often interpret the 1959 Act as if it is not materially different from the 1878 Act and hence, applications for arms licences are as rightly and arbitrarily rejected.
15. The same attitude is shown by the respondents herein also as held by the above referred judgment of the Allahabad High Court.
16. Hence, I am of the view that the impugned order of the first respondent is liable to be set aside and accordingly set aside. The second respondent is directed to re-register the weapon in Ramanathapuram District as sought for by the petitioner, according to law and to pass appropriate orders within six weeks from the date of receipt of a copy of this order.
17. The writ Petition is disposed of in the above terms. Consequently, connected Miscellaneous Petition is closed. No costs.
vsn To
1. The Special Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai.
2. The District Revenue Officer, Ramanathapuram District, Ramanathapuram.