Madras High Court
K.Syed Khaja Salemudeen vs The Additional Chief Secretary To ... on 10 September, 2019
Author: M.Sundar
Bench: M.Sundar
W.P(MD)No.15649 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.SUNDAR
W.P(MD)No.15649 of 2018
and
W.M.P(MD)No.14050 of 2018
K.Syed Khaja Salemudeen ... Petitioner
vs.
1.The Additional Chief Secretary to Government,
Home (Pol.XIII) Department,
Secretariat, Fort St. George,
Chennai.
2.The District Collector,
Collectorate,
Thanjavur District,
Thanjavur.
3.The Superintendent of Police,
O/o.Superintendent of Police,
Thanjavur District.
4.The Revenue Divisional Officer,
O/o.Revenue Divisional Officer,
Thanjavur,
Thanjavur District.
5.The Inspector of Police,
East Police Station,
Thanjavur District. ... Respondents
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W.P(MD)No.15649 of 2018
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned order in G.O(D)No.250, Home (Pol.XIII)
Department dated 14.03.2018 on the file of the first respondent and quash
the same as illegal and consequently direct the respondents to issue Arms
licence to the petitioner to possess a pistol for self-protection within the
time stipulated by this Court.
For Petitioner : Mr.I.Pinaygash
For Respondents : Mr.Aayiram K.Selvakumar,
Additional Government Pleader.
ORDER
Mr.I.Pinaygash, learned counsel on record for writ petitioner and Mr.Aayiram K.Selvakumar, learned Additional Government Pleader on behalf of all five respondents are before this Court.
2.With consent of learned counsel on both sides, main writ petition is taken up, heard out and is being disposed of.
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3.Short facts shorn of elaboration are that writ petitioner made an application for acquisition and possession of a fire arm under the Arms Act, 1959 (54 of 1959) (hereinafter 'said Act' for brevity) and the Arms Rules, 2016 thereunder (hereinafter 'said Rules' for brevity, clarity and convenience); that the application was processed; that the fourth respondent / Revenue Divisional Officer vide proceedings dated 20.07.2016 bearing reference No.Na.Ka.No.2995/2016/A3, after examining all the documents as well as after recording the statement of writ petitioner, recommended favourably to the District Collector saying that there is a threat to the life of the writ petitioner; that it would be appropriate for the writ petitioner to possess fire arm for self-defence; that notwithstanding such a recommendation, the second respondent (this Court is informed that the second respondent /District Collector is the licensing Authority) rejected writ petitioner's application for acquisition and possession of fire arm inter alia by stating that the fourth respondent / Revenue Divisional Officer has not stated with clarity and specificity that there is threat to writ petitioner's life; that the second respondent went only on the basis that third respondent / Superintendent of Police has reported that there is no direct or indirect threat to the life of the writ petitioner; that there is no disputation or disagreement that writ petitioner's father was murdered on 23.10.1994; 3/12 http://www.judis.nic.in W.P(MD)No.15649 of 2018 that there is a property dispute inter alia with some family members of the writ petitioner, details of which have been alluded to in the report of the Revenue Divisional Officer; that there was a specific attempt on the life of the writ petitioner on 04.01.2015 for which complaint was made in the jurisdictional police station pursuant to which a Criminal Original Petition was also filed before this Court for further prosecution; that order of rejection made by the second respondent being order dated 19.09.2016 bearing reference No.Mu.Mu.No.13480/E3/2015 was carried in appeal to the first respondent by way of appeal under Section 18 of the said Act; that the appeal was dismissed by the first respondent vide order dated 14.03.2018 bearing reference No.G.O(D)No.250 (hereinafter 'impugned order' for brevity, clarity and convenience) and that the impugned order has now been called in question in the instant writ petition on various grounds articulated in the affidavit and submissions made before this Court.
4.In response to aforesaid facts articulated by the writ petitioner, learned State Counsel submitted that the appeal to the first respondent is under Section 18 of the said Act. Section 18, sub-Section (5) mandates that in disposing of an appeal, the appellate authority shall follow the procedure prescribed and also give a reasonable opportunity of being heard; that the 4/12 http://www.judis.nic.in W.P(MD)No.15649 of 2018 procedure prescribed is adumbrated in Rule 108 of the said Rules; that the said Rules have been scrupulously followed; that there is no disputation that writ petitioner was given a personal hearing on 19.09.2016 and therefore, there is no infirmity qua the impugned order.
5.In the light of the aforesaid facts and in the light of rival contentions captured and set out supra, this Court now embarks upon the exercise of considering the material and setting out its discussion and dispositive reasoning.
6.From the case file placed before this Court and the arguments advanced at the hearing, it comes to light that two main points fall for consideration and they are as follows:
(a) The rejection of the recommendation of the fourth respondent / Revenue Divisional Officer by the licensing authority / District Collector - second respondent on the ground that it lacks clarity and specificity has not been examined by the first respondent / Appellate Authority though a ground in this regard has been raised in the appeal petition.5/12
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(b) a similarly placed person wherein the applicant's father was murdered due to enmity / property dispute and where applicant has property dispute has been granted arms licence vide an order made by the first respondent being order dated 09.08.2017 bearing G.O.(D)No.1050.
7.In the aforesaid backdrop, this Court carefully examined the case file that has been placed before this Court. With regard to first point which turns on recommendation of the fourth respondent / Revenue Divisional Officer, a perusal of the recommendation of the Revenue Divisional Officer dated 20.07.2016 brings to light that the Revenue Divisional Officer has noticed that the writ petitioner's father was brutally murdered and there is a sessions case pending. It has also been noticed that there was an attempt on the life of the writ petitioner on 04.01.2015 and that specific names of the relatives have also been mentioned with regard to the property feud.
8.This Court deems it appropriate to extract the relevant portion of the order of the Revenue Divisional Officer, dated 20.07.2016 and the same reads as follows:
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http://www.judis.nic.in W.P(MD)No.15649 of 2018 'kDjhuhpd; je;ij taYf;F bry;Yk; BghJ g[d;idey;Yhh; khhpak;kd; Bfhtpy; mUBf bfh^ukhf bfhiy bra;ag;gl;lhh; vdt[k;, nt;tHf;F Fk;gBfhzk; Tljy; khtl;l ePjpkd;wj;jpy; SCS.199/95 epYitapy; cs;sJ vdt[k; bjhptpj;Js;shh;. njidj; bjhlh;e;J kDjhuhpd; FLk;gj;jpw;F bjhlh;e;J bfhiy kpul;ly; te;jjhft[k;, 04.01.2015 md;W kDjhuh; jdJ gz;iz tPl;oy; nUe;j bghGJ nut[ Rkhh; 1.00 kzpastpy; kDjhuhpd; gz;iz Bfl;il cilj;J bfhiy bra;a Kaw;rpj;jjhft[k;, mjd; Bghpy; kDjhuh; nuBt jq;ir fpHf;F fhty; epiyaj;jpw;F bjhiyBgrpapy; jfty; bjhptpj;J mjdog;gilapy; g[fhh; kD mspj;J 15/15 vd;w FIR Bghlg;gl;lJ vd;Wk; Twpa[s;shh;. mjd; gpwF Bkw;fz;l rk;gtk; bjhlh;ghf ve;jtpj eltof;fifa[k; fhty;Jiw vLf;ftpy;iy vd brd;id cah;ePjpkd;w fpis kJiu fpisapy; Crl.O.P.M.P.No.3009/2015-d; go tHf;F bjhlh;e;J mjd; jPh;g;gpd; mog;gilapy; tHf;F FIR gjpt[ bra;a Miz gpwg;gpj;jJ. BkYk; ntuJ je;ijf;F Mhpgh rkPdh Bgfk; (1) ghh;fhdh ghj;jpkh (2) iraj; fh$h rhyP %jPd; (3) mq;Rk; Ufpdh (4) Mfpa ehd;F thhpRfs; vdt[k;, njpy; Kd;W thhpRfs; jpU.irj; fh$h ryp%jPd; vd;gtUf;F jhd; kl;LBk xBu thhpR vd;gjhYk; jdJ capUf;F ve;BeuKk; Mgj;J nUg;gjhft[k; mr;rj;Jld; nUg;gjhft[k; jdJ Ra ghJfhg;g[fhf gp!;ly; gilfyk; chpkk; ju thf;FKyk; mspj;Js;shh;.
vdBt, kDjhuh; jpU.iraj; fh$h ryp%jPd; vd;gthpd; thf;FKyk; kw;Wk; nju MtzA;fspd; mog;gilapy; kDjhuhpd; capUf;F Mgj;J Vw;glf;Toa R{H;epiy cs;sjhy; mthpd; Ra ghJfhg;g[f;fhf gp!;ly; gilf;fyd; chpkk; tHA;fpl ghpe;Jiu bra;fpBwd; vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpBwd;.'
9.While dealing with this recommendation of the Revenue Divisional Officer, the second respondent / District Collector has held as follows: 7/12
http://www.judis.nic.in W.P(MD)No.15649 of 2018 'tUtha; Bfhl;l mYtyUk; jdpahpd; capUf;F ve;j tpjj;jpy; vt;thwhd Mgj;J vd;gjid bjspthf Fwpg;gplhjjhy; mg;ghpe;Jiuapid Vw;f naytpy;iy. kDjhuiu 06.09.2016 ny; tprhuiz bra;j tifapy; jdf;F ahuhy; vt;thW capUf;F Mgj;J Vw;gl tha;g;g[s;sJ vd;gij Fwpg;ghf vLj;Jiuf;ftpy;iy. Mgj;J Beh;e;JtpLBkh vd;Wk;, mr;rkhf cs;sJ vd;gjhfBt Fwpg;gpl;Ls;shh;. ne;j tifapy; mtuJ Bfhhpf;if a{fj;jpd; mog;gilapy; mike;Js;sjhf fUj Btz;oa[s;sJ.'
10.This Court is of the considered view that the observation of the second respondent / District Collector (licensing authority) that the Revenue Divisional Officer has not mentioned with clarity and specificity the nature of threat for the writ petitioner deserves to be revisited. This Court refrains from expressing any opinion on that in the light of the nature of the order, which this Court now proposes to pass. Suffice to say that this aspect of the matter requires to be considered by the Appellate Authority.
11.With regard to the second point ie., a similarly placed person being granted licence to acquire and possess fire arm, complete facts of this case are not before this Court, but a prima facie perusal of the order being order dated 09.08.2017 G.O(D)No.1050 reveals that it was also a case where the applicant's father was murdered and the applicant apprehended threat to 8/12 http://www.judis.nic.in W.P(MD)No.15649 of 2018 his life qua property feud.
12.To be noted, writ petitioner has obtained a copy of this order by making a query in the Right to Information Act and has placed the same before this Court. Therefore, whether a similarly placed person has been granted licence to acquire and possess fire arm also requires to be gone into. In this context, this Court is reminded of the age-old adage 'sauce to Goose is sauce to Gander too'.
13.A perusal of the counter affidavit filed by the second respondent / District Collector reveals that the aspect of the recommendation of the Revenue Divisional Officer not being accepted by the second respondent on the ground it lacks clarity and specificity has not been adverted to.
14.A perusal of the impugned order made by the first respondent reveals that this aspect of the matter ie., Revenue Divisional Officer's recommendation on the same being not accepted by the second respondent / District Collector (licensing Authoirty) on the ground that it lacks clarity and specificity has not been adverted to, though it has been raised as a 9/12 http://www.judis.nic.in W.P(MD)No.15649 of 2018 ground on appeal before the first respondent.
15.It is in these circumstances and owing to the facts that have been set out supra, this Court is of the considered view that it is fit case to remand the matter back to the first respondent with a direction to consider the aforesaid two aspects which have been set out in this order ie., aspects pertaining to recommendation of the Revenue Divisional Officer, clarity and specificity of the same as well as the complaint of the writ petitioner that a similarly placed person has been granted licence. Besides these two aspects, it is open to the writ petitioner to raise any other grounds available to him in the personal hearing.
16.The impugned order is set aside and the matter is remanded back to the first respondent with a direction to the first respondent to dispose of the appeal of the writ petitioner under Section 18 of the said Act being appeal dated 24.09.2016 on its own merits and in accordance with law more particularly in tune with the procedure prescribed for disposal of appeal vide Rule 108 of the said Rules read with Section 18(5) of the said 10/12 http://www.judis.nic.in W.P(MD)No.15649 of 2018 Act and in any event within a period of twelve weeks from the date of receipt of a copy of this order. It is open to the writ petitioner to raise any other point / ground available to the writ petitioner in the personal hearing post remand. The order of the first respondent post remand shall be communicated to the writ petitioner under due acknowledgement within a fortnight from the date of the order.
17.Instant Writ Petition is disposed of with the above directions. No costs. Consequently, connected Miscellaneous Petitions are closed.
10.09.2019 Index : Yes / No Internet : Yes / No ps 11/12 http://www.judis.nic.in W.P(MD)No.15649 of 2018 M.SUNDAR,J.
ps To
1.The Revenue Divisional Officer, Tiruchirappalli District.
2.The Thasildar, Trichy East, Tiruchirappalli District.
W.P(MD)No.15649 of 2018
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