Madras High Court
K.Ramasamy vs The Principal Secretary/ on 10 July, 2012
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2012 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.2366 of 2011 K.Ramasamy ... Petitioner vs. 1. The Principal Secretary/ Commissioner of Revenue Administration, Disaster Manager and Mitigation Department, Ezhilagam, Chepuak, Chennai 6. 2. The District Magistrate and District Collector, Salem District, Salem. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified mandamus to call for the records pertaining to the order made in R.A.5 (2)/33407/2007-AA No.81/07 dated 25.11.2009 on the file of the 1st respondent confirming the order in Mu.Mu.C4/8742/2005 dated 02.04.2007 on the file of the 2nd respondent, quash the same, and consequently direct the 2nd respondent to re-consider the petitioner's request for grant of licence to have Revolver. For Petitioner : Mr.N.Manokaran For Respondents : Mrs.A.Srijeyanthi, Special Government Pleader O R D E R
Seeking to quash the order dated 25.11.2009 passed by the 1st respondent vide proceedings in R.A.5 (2)/33407/2007-AA No.81/07 confirming the order dated 02.04.2007 passed by the 2nd respondent vide proceedings in Mu.Mu.C4/8742/2005 and for a consequential direction to the 2nd respondent to re-consider his request for grant of licence to have Revolver, the petitioner has filed this Writ Petition.
2. Facts of the case as put forth in the affidavit would run thus:
2.1. The petitioner, who is residing at Thirunagar Colony, Sankari, Salem District, owns lands worth about 10 lakhs and is also having a house situated in a remote area of his Village. He is also doing business in the name and style of 'C.K.R. Finance' from the year 2000 and is also running a Textile shop in the name and style of 'Dinesh Garments' at Sankari. He is actively cultivating sugarcane and turmeric crops in his land measuring an extent of 5 = acres situated at Poochapatti, Sankari Taluk and in order to carry on business activities and agricultural operation, he always used to carry liquid cash with him. He is living with his wife and children and one of his sons is physically challenged and his wife used to accompany him. In such circumstances, the petitioner submitted an application dated 24.04.2004 to the 2nd respondent to grant Revolver licence to him for self protection.
2.2. The said application dated 24.04.2004 has been processed and reports have been called for from the Revenue Divisional Officer (RDO), Sankari and the Superintendent of Police, Salem. Accordingly, the petitioner appeared before them and explained the necessity to get the Revolver Licence for self protection. But, the RDO, Sankari, in his Report dated 17.01.2005 and the Superintendent of Police, Salem, in his proceedings dated 17.01.2005 did not recommend for grant of licence.
2.3. The 2nd respondent did not appreciate the grievance of the petitioner properly and refused to grant licence vide his order dated 02.04.2007 made in Mu.Mu.C.4/8742/2005 on the ground that the RDO Sankari and the Superintendent of Police, Salem has not recommended for grant of licence. Aggrieved by the said order dated 02.04.2007, the petitioner filed an appeal before the 1st respondent on 04.05.2007 on various grounds. The said appeal was taken on file in A.A.No.81 of 2007 on the file of the 1st respondent and the matter was argued at length on 02.11.2009. The said appeal was also dismissed on the ground that the Superintendent of Police, Salem did not recommend the grant of licence.
2.4. As both the respondents did not consider the imminent possibility of danger to his life, the petitioner, being aggrieved by the order dated 25.11.2009 passed by the 1st respondent confirming the order dated 02.04.2007 passed by the 2nd respondent, has approached this court by way of the present writ petition, seeking to quash the same and to re-consider his request for grant of Revolver Licence.
3. The 2nd respondent has filed counter affidavit and has stated as follows:
(i) The petitioner, residing at No.1/17/10/2-Thiruchengode Road, Thirunagar Colony, Sankari, Salem District applied for a revolver gun licence for self-protection to the Collector, Salem on 20.04.2004. The Collector, Salem has called for a report from the Tahsildar, Sankari; Revenue Divisional Officer, Sankari and the Superintendent of Police, Salem. The Tahsildar, Sankari, in his Report in K.Dis/3420/2004/J dated 19.11.2004 has rejected his request, as there are so many facilities available nowadays viz., Credit Card, ATM, Demand Drafts, Transfer of Money, etc. from one account to another. The RDO, Sankari, in his report in L.Dis.No.4605/2004 dated 17.01.2005 has re-directed the Tahsildar Report and rejected the petitioner's request for issuance of Gun Licence (Revolver). The Superintendent of Police, Salem, in his report in ROC G1/20591/2004 dated 17.01.2005, has stated that there are so many persons similar to the petitioner doing various businesses and the petitioner has not mentioned any specific incident faced by him for his life danger. As there are no complaints filed by him relating to insecurity of his life, the Superintendent of Police, Salem has also rejected his request.
(ii) The Collector, Salem heard the petitioner on 26.03.2007 and being not satisfied with the reasons adduced by him, rejected his request for grant of licence in K.Dis.5742/2005/C4 dated 02.04.2007. Aggrieved by the Collector's order, the petitioner made an appeal before the Principal Commissioner and Commissioner of Revenue Administration, Chennai on 04.05.2007. The appeal petition was also dismissed on 25.11.2009. Aggrieved by the order passed in the Appeal, the petitioner has filed the present writ petition.
4. The 2nd respondent, in his counter, admits that the petitioner is running Textile business, Finance and lorry business in Sankari Village, Sankari Taluk, Salem District and is also having above 5 acres of land in Sankari Taluk. But, he denies the contents of the writ petition stating that there are so many facilities available for transfer of money from one account to another viz., ATM, Credit Card, Mail Transfer, etc. to avoid carrying money in hand. Moreover, the petitioner has not made any complaint before the police citing any danger to his life. Therefore, he would submit that the refusal of grant of Revolver licence by the Collector, Salem is in accordance with law.
5. Mr.N.Manokaran, learned counsel for the petitioner would submit that the petitioner is an Income Tax Assessee and there is no case or bad antecedents against him and that the respondents have simply rejected his application without taking note of the necessity and the circumstances prevailing in and around Sankari area. He would point out that Section 7 of the Arms Act, 1951 makes it clear that there is no absolute prohibition against giving a licence for a prohibited arms, and whenever an application is made, the concerned authorities must consider the relevant circumstances and should not act arbitrarily in disposing the same.
5a. In support of his case, learned counsel for the petitioner has relied on the following:
(i) a decision of this Court reported in (2009) 3 MLJ 1295 in the case of The Commissioner of Police, Egmore vs. V.P.Kalairajan "18. It is nobody's case that the petitioner has made an application for grant of licence for prohibited arms or prohibited ammunition. Prohibited arms and prohibited ammunition are defined under Section 2(h) and 2(i) of the said Act. The petitioner's application is for a licence for a revolver. It is a non-prohibited arms, and the said licence has been asked by the petitioner for his personal safety. Prayer for such a licence can be refused by the Licensing Authority in accordance with the provisions under Section 14(1)(b) of the said Act. In Section 14(1)(b), there are sub-clauses (i) and (ii). Sub-clause (i) is further divided into (1), (2) and (3). Before any application for licence can be refused by the Licensing Authority under these categories, the Licensing Authority must have reasons to believe that the applicant falls in any of those categories of Clauses (1), (2) and (3) of Section 14(1)(b)(i). The concept of reasons to believe will govern cases of refusal of licence under Section 14(1)(b)(ii). "
(ii) yet another decision of this Court reported in (2007) 1 MLJ (Crl.) 339 in the case of K.Mani vs. District Revenue Officer, Madurai and another "8. On a perusal of the impugned order, it reveals that the appellate authority, after carefully examining the appeal and perusing the connected records, was of the view that there is no necessity for the appellant to possess SBML Gun for crop/cattle/self protection and that crop/cattle protection also does not require a gun.
9. As rightly contended by the learned counsel for the petitioner, the view taken by the appellate authority is against the provisions under sub-section (3) to Section 13 of the Arms Act, 1959 which reads as under:
"(3) The licensing authority shall grant -
(a) a licence under Section 3 where the licence is required
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection."
10. When the above said provision says that the licensing authority shall grant licence to possess gun, if the same is to be used for bona fide crop protection, the licensing authority cannot refuse the same on the ground that crop/cattle protection does not require a gun and therefore, this Court is of the view that the order of the second respondent is quite contrary to the said provision of law and therefore, it is liable to be set aside. Accordingly, the order of the second respondent dated 14.11.2000 is set aside."
(iii) a decision of the Kerala High Court reported in 2005 MLJ (Crl.) 727 in the case of Ganesh Prasad vs. Board of Revenue (L.R.) "7. ... It is not understood as to what is meant by the appellate authority when it said that all relevant aspects have been considered, when a perusal of the order passed by the District Collector would show that the only reason for rejection of the application filed by the petitioner is that the Superintendent of Police has not recommended the issue of licence. Each application for the licence has necessarily to be considered on its own individual merits. He must bear in mind the relevant facts and must refuse to be guided by irrelevant facts. He has to act bona fide. He cannot abuse his discretionary power, no doubt. It is essential that he applies his mind when any application comes up before him to the individual facts present by the applicant before he takes a decision as to whether the application should be granted or refused. In this context, I draw support from what is stated in Wade on Administrative Law.
"The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void."
If one peruses the order of the District Collector, it can be seen that the only reason stated is that the Superintendent of Police had not recommended issue of licence. I would take the view that this is a case where the authority has virtually declined to act without the consent of the Superintendent of Police and it amounts to the exercise of discretion by the wrong authority. The said order has been upheld by Ex.P2 order. As I have already stated, it is stated that the decision has been arrived at after due consideration of all relevant aspects which is itself incorrect."
(iv) a decision of the Allahabad High Court reported in 2012 (1) ALJ 135 in the case of Brij Nandan Singh vs. State of U.P. and others "7. A fire arm licence cannot be denied only on conjectures and surmises and without appreciating the objective of statute under which the power is being exercised. Right to life and liberty which includes within its ambit right of security and safety of a person and taking, adopting and pursuing such means as are necessary for such safety and security, is a fundamental right of every person. Keeping a fire arm for the purpose of personal safety and security is a mode and manner of protection of oneself and enjoyment of fundamental right of life and liberty under Article 21 of the Constitution. In the interest of maintenance of law and order certain reasonable restrictions have been imposed on such right but that would not make the fundamental right itself to be dependant on the vagaries of executive authorities. It is not a kind of privilege being granted by Government to individual but only to the extent where grant of fire arm licence to an individual would demonstratively prejudice or adversely affect the maintenance of law and order including peace and tranquility in the society, ordinarily such right shall not be denied. It is in these circumstances, this Court has observed that grant of fire arm licence ordinarily be an action and denial an exception. In Vinod Kumar Shukla vs. State of U.P. and others, (Writ Petition No.38645 of 2011), decided on 15.07.2011, this Court has said:
"When a fire arm licence is granted for personal safety and security, it does not mean that in the family consisting of several persons, only one fire arm licence is to be granted. Moreover, this cannot be a reason for denial of arm licence. Fire arm licence can be denied only if the reason assigned by applicant or details given by him in application are not found to be correct but merely because there are one fire arm licence already possessed by one of the family member, the same cannot be denied. Grant of fire arm licence should ordinarily be an action and denial should be an exception. The approach of authorities below is clearly arbitrary and illegal. It also lacks purpose and objective of the statute."
8. The authorities empowered to grant licence under the Act ought not to behave as if they are part of the old British sovereignty and the applicant is a pity subject whose every demand deserved to be crushed on one or the other pretext. The requirement of an Indian citizen governed by rule of law under the Indian Constitution deserved to be considered with greater respect and honour. The authorities thus shall have considered the requirement of applicant with more pragmatic and practical approach. Unless they find that in the garb of safety and security, applicant in fact intend to use the weapon by obtaining a licence for a purpose other than self defence, it ought not to have been denied such licence. I am not putting the statutory power of authority concerned in a compartment since there may be more than one reasons for exercising statutory discretion against applicant but then that must justify in the context of purpose and objective of statute and necessarily ought not be whimsical."
(v) another decision of the Allahabad High Court reported in 2012 (111) AIC 283 in the case of Akash Kumar Singh vs. State of U.P. And others "5. The reason for conferring the power of grant of licence to the District Magistrate is that he is in a better position to ascertain the antecedents of the applicant through its various agencies including Police Station concerned and other reliable sources. The grant of license is subject to the satisfaction of the District Magistrate. This satisfaction is to be derived by the District Magistrate from various factors : (a) general conduct of the applicant, (b) probability of misuse of the licence, (c) involvement in criminal activities. It may also be noted that grant of licence is not dependant upon any condition which is not enumerated under sections 13 and 14 of the Act. However, the applicant is required to satisfy the licensing authority that he does not fall in any of category contained in Section 14(1)(a) and (b). The grounds for rejecting licence contained in Section 14(i)(ii) of the Act which empowers the licensing authority to refuse licence in case he deems it necessary for safety and security of the public. This is an area where satisfaction of the District Magistrate is essentially required.
6. In view of the requirement as provided under Section 14 of the Act, it is obligatory upon the District Magistrate/Licensing Authority to record the reasons in writing, in case he refuses to grant a licence and communicate the same to the applicant. One of the grounds enumerated under Section 14 of the Act is that the District Magistrate can refuse to grant the licence if he is satisfied that grant of licence to the applicant will disturb the peace and tranquility of the area. Various factors including registration of the criminal can also be a ground for rejecting the application provided the satisfaction is arrived on the basis of objective material collected from various agencies. The grant of licence is statutory right unless and until the person satisfies the requirement of statute, license cannot be granted.
7. The satisfaction of the District Magistrate on the basis of material has to be specific and not vague. He cannot rely on generalized accusation against the applicant unless there are specific allegations certifying character and conduct of the applicant and also its effect on the society at large."
6. Per contra, Mrs.A.Srijeyanthi, learned Special Government Pleader would submit that the petitioner has not made out the existence of any serious threat to his life and property and the rejection of grant of licence by the respondents is in accordance with law.
7. Heard the learned counsel on either side and perused the relevant materials available on record.
8. A circumspection of the facts would reveal that the petitioner is a resident of Sankari village in Salem District and he is doing finance business in the name and style 'C.K.R. Finance' from the year 2000, in addition to textile business in the name and style 'Dinesh Garments' at Sankari. He also owns lands worth about 10 lakhs and has a house situated in a remote area of his Village. It is claimed by the petitioner that in the course of his business, he has to travel to many places and carry liquid cash with him. Therefore, he has applied for a revolver licence on 24.04.2004 to the second respondent, namely, the District Collector, Sankari. Based on the application of the petitioner, the second respondent called for reports from the Tahsildar, Sankari; Revenue Divisional Officer (RDO), Sankari and the Superintendent of Police, Salem. Following the reports from the said authorities, who did not recommend for grant of licence to the petitioner, the second respondent rejected the application of the petitioner vide the proceedings, dated 02.04.2007. Aggrieved over the said order, the petitioner preferred an appeal before the first respondent and it came to be dismissed by the impugned order, dated 25.11.2009.
9. At this stage, the point that arises for consideration is, whether the order under challenge, confirming the order of the original authority, rejecting the request of the petitioner for grant of revolver licence, is valid in law ?
10. For deciding the said question, it is worth to refer to relevant provisions viz., Sections 13 and 14 of the Arms Act,1959, which provisions read as under :
"13. Grant of licences.(1) An application for the grant of a licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
(2) On receipt of an application, the licensing authority shall call for the report of the officer-in-charge of the nearest police station on that application, and such officer shall send his report within the prescribed time.
(2-A) The licensing authority, after such inquiry, if any, as it may consider necessary, and after considering the report received under sub-section (2), shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same:
Provided that where the officer-in-charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.
(3) The licensing authority shall grant
(a) a licence under Section 3 where the licence is required
(i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection:
Provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or
(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government;
(b) a licence under Section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same."
"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."
11. Section 13 provides for grant of licence. As per the said Section, the competent authority to grant lincence is the District Magistrate-cum-District Collector. Sub-section (1) states that an application for the grant of a licence shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed. Sub-section (2) provides that on receipt of an application, the licensing authority shall call for the report of the officer-in-charge of the nearest police station on that application, and such officer shall send his report within the prescribed time. Thereafter, under Clause (2-A), there shall be an enquiry, if any, as the licensing authority may consider necessary, and after considering the report received under sub-section (2), the licensing authority shall, by an order in writing either grant the licence or refuse to grant the same, provided that where the officer-in-charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report. As per Sub-section (3), the licensing authority shall grant (a) a licence under Section 3 where the licence is required (i) by a citizen of India in respect of a smooth bore gun having a barrel of not less than twenty inches in length to be used for protection or sport or in respect of a muzzle loading gun to be used for bona fide crop protection, provided that where having regard to the circumstances of any case, the licensing authority is satisfied that a muzzle loading gun will not be sufficient for crop protection, the licensing authority may grant a licence in respect of any other smooth bore gun as aforesaid for such protection, or (ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognised by the Central Government; (b) a licence under Section 3 in any other case or a licence under Section 4, Section 5, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.
12. Section 14 deals with how licence can be refused. As per Sub-section (1) thereof, 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. Sub-section (2) states that 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 and Sub-section (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.
13. A perusal of the records would reveal that the second respondent/the licensing authority has called for reports from the nearest police station; the Tahsildar, Sankari; Revenue Divisional Officer, Sankari and the Superintendent of Police, Salem. The Tahsildar, Sankari, in his Report in K.Dis/3420/2004/J dated 19.11.2004, has rejected the request of the petitioner for gun licence, as there are so many facilities available viz., Credit Card, ATM, Demand Drafts, Transfer of Money etc. from one account to another. The RDO, Sankari, in his report in L.Dis.No.4605/2004 dated 17.01.2005 has re-directed the Tahsildar Report and rejected the petitioner's request for issuance of Gun Licence (Revolver). The Superintendent of Police, Salem, in his report in ROC G1/20591/2004 dated 17.01.2005, has stated that there are so many persons similar to the petitioner during various businesses and the petitioner has not mentioned any specific incident faced by him for his life danger. As there are no complaints filed by him relating to insecurity of his life, the Superintendent of Police, Salem has also rejected his request. As the said authorities have not recommended for granting licence, the second respondent, accepting their reports, rejected the request of the petitioner and refused to grant licence to the petitioner.
14. A reading of the order of the second respondent makes it crystal clear that except to state that as there are no recommendations by the Tahsildar, RDO and Superintendent of Police, no other reason has been adduced for refusing to grant the licence. The said order though appears to have been passed with non-application of mind without assigning any reasons, the appellate authority, namely, Principal Secretary/Commissioner of Revenue Administration, on the appeal filed by the petitioner against the order of the second respondent/licensing authority, after giving an opportunity of hearing to the petitioner on 02.11.2009 and on hearing the arguments of the counsel for the petitioner, by his order dated 25.11.2009, rejected the appeal, stating that though the petitioner applied for a revolver licence for self protection, the Superintendent of Police, Salem, did not recommend for grant of licence; that the petitioner did not face any threat to his life or property at any point of time; that the existence of serious threat to life and property and the pressing necessity for keeping a weapon for effective protection have not been made out and that in the absence of any proof of threat perception to life and property, the request of the petitioner for gun licence for self protection does not appear to be genuine.
15. In view of the merger of the original authority's order with that of the appellate authority and the appellate authority having gone into each and every factor for consideration with regard to the claim of the petitioner for grant of licence and confirmed the order of the original authority, even if the original authority's order has resulted in rejection of the request of the petitioner for gun licence based on the reports of the revenue and police officials, the reasoning of the appellate authority would give a clear position that the order of the original authority has been rightly analysed by the appellate authority before passing the impugned order.
16. Since the petitioner did not face any threat to his life or property at any point of time so also there was no pressing necessity for keeping a weapon for effective protection and in the absence of any proof of threat perception to life and property, the request of the petitioner for gun licence for self protection, in my considered opinion, was rightly rejected by the appellate authority/first respondent, confirming the order of the licensing authority/second respondent. In addition, the ingredients for grant of licence under Section 13 and refusal to grant licence under Section 14 are followed by the appellate authority, by giving an opportunity of hearing to the petitioner and also hearing the arguments of the counsel for the petitioner as well as following the procedure contemplated under Section 13(2A) of the Act.
17. Therefore, finding no need to interfere with the orders of the authorities below, this Writ Petition is dismissed. No costs.
dixit To :
1. The Principal Secretary/ Commissioner of Revenue Administration, Disaster Manager and Mitigation Department, Ezhilagam, Chepuak, Chennai 6.
2. The District Magistrate and District Collector, Salem District, Salem