P. BALAN v. ADDITIONAL DISTRICT MAGISTRATE, KANNUR & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 19TH DAY OF JUNE 2017/29TH JYAISHTA, 1939** **WP(C).No. 16837 of 2017 (D)** **----------------------------** **PETITIONER: ----------** **P.BALAN, S/O. CHANTHUKUTTY,AGED 67 YEARS, OLAYANBADI P.O, KUTTOOR VILLAGE, TALIPARAMBA TALUK, KANNUR** **BY ADV. SRI.B.PREMNATH (E)** **RESPONDENT(S):** **--------------** **1. ADDITIONAL DISTRICT MAGISTRATE, KANNU PIN 670 001** **2. THE DISTRICT POLICE CHIEF, KANNUR PIN 670 001** **3. THE STATION HOUSE OFFICER, PERINGOME POLICE STATION,PERINGOME, KANNUR PIN 670 354** **4. THE TAHSILDAR,** **TALIPARAMBA, KANNUR PIN 670 001** **BY GOVERNMENT PLEADER SRI SURIN GEORGE IPE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2017, THE COURT ON 19-06-2017 DELIVERED THE FOLLOWING:** **K.V.** **WP(C).No. 16837 of 2017 (D) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE COPY OF THE LICENSE ISSUED BY THE 1ST RESPONDENT, WHICH WAS VALID UP TO 10-05-2016 EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF PHYSICAL FITNESS BY THE ASSISTANT SURGEON KERALA HEALTH SERVICES, DATED 18-04-2017 EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY DR. SREEKUMAR K NAYANAR, REGISTER NO 21147 OF EYE CLINIC AT GOVERNMENT HOSPITAL ROAD, PAYYANNUR, DATED 21-04-2017 EXHIBIT P4 TRUE COPY OF THE POLICE CLEARANCE CERTIFICATE NO 72/P2/PCC/17 DATED 12-04-2017 EXHIBIT P5 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT NO D.DIS 2016/10193/13/B3 DATED 10-03-2017 RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/** **P.S.TO JUDGE** **K.V.** **C.R.** ## **P.B.SURESH KUMAR, J. ----------------------------------------------W.P.(C) No.16837 of 2017 ----------------------------------------------Dated 19[th] June, 2017.** ## **J U D G M E N T** The short issue that falls for consideration in this writ petition is whether an order refusing to renew a licence issued under the Arms Act, 1959 (the Act) is appealable under Section 18 of the Act. 2. The petitioner is a farmer holding a large extent of property. He is cultivating rubber, coconut, arecanut, plantain, tapioca etc. According to him, animals like pig, porcupine etc. are a constant threat to the activity of the petitioner as they often destroy the crops. Faced with this situation, it is stated that the petitioner had applied for, and obtained a gun licence under the Act during 1983 for a period of three years and the same was being renewed from time to time till 10.5.2016. It is also stated that when the petitioner preferred an application for renewal of the licence for a further WPC No.16837 of 2017 2 period of three years from 10.5.2016, the same was rejected by the licensing authority, as per Ext.P5 order, holding mainly that the petitioner is aged and he cannot, therefore, handle the weapon safely. It is also stated in Ext.P5 order that the tensed political situation and Maoist sightings within the station limits are matters of concern and therefore, the chances of misuse of the weapon by anti-social elements cannot also be ruled out. The petitioner is aggrieved by Ext.P5 order and hence, this writ petition. 3. When the writ petition came up for admission, a doubt arose as to whether an appeal would lie against the order impugned in the writ petition. As the said question was relevant for taking a decision as to whether the writ petition should be entertained, the learned counsel for the petitioner was requested to make his submissions on the said question. The learned counsel for the petitioner as also the learned Government Pleader were, accordingly, heard on that question. 4. Sub sections (1), (2) and (2A) of Section 13 of the Act dealing with the grant of licences, read as follows: WPC No.16837 of 2017 3 **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. (2A) 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. Section 14 of the Act dealing with refusal of licences, reads as follows : “ **14. Refusal of licences** – (1) Notwithstanding anything in section 13, 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, - WPC No.16837 of 2017 4 (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.” ## Section 15 of the Act dealing with duration and renewal of licence reads as follows: **15. Duration and renewal of licence** – (1) A licence under section 3 shall, unless revoked earlier, continue in force for a period of three years from the date on which it is granted: Provided that such a licence may be granted for a shorter period if the person by whom the licence is required so WPC No.16837 of 2017 5 desires or if the licensing authority for reasons to be recorded in writing considers in any case that the licence should be granted for a shorter period. (2) A licence under any other provision of Chapter II shall, unless revoked earlier, continue in force for such period from the date on which it is granted as the licensing authority may in each case determine. (3) Every licence shall, unless the licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which the licence was originally granted and shall be so renewable from time to time, and the provisions of sections 13 and 14 shall apply to the renewal of a licence as they apply to the grant thereof.” No doubt, applications for grant as also renewal of licences issued under the Act are to be considered in accordance with the provisions of the Act. Unlike Section 14 of the Act, Section 15 of the Act dealing with renewal of licences does not enumerate any specific grounds for refusal. On the other hand, Section 15(3) of the Act categorically provides that every licence shall, unless the licensing authority for reasons to be recorded in writing otherwise decides in any case, be renewable for the same period for which the licence was originally granted and shall be so renewable from time to time, and the provisions WPC No.16837 of 2017 6 of Sections 13 and 14 shall apply to the renewal of a licence as they apply to the grant thereof. A combined reading of Sections 13, 14 and 15 of the Act indicates that once a licence is granted under the Act, the same shall be renewed from time to time, unless there exists a ground for refusal as enumerated under Section 14 of the Act. In other words, the scheme of the Act is that an application for renewal of licence is also an application for grant of licence, for, the grounds for rejection of both application for grant as also application for renewal are one and the same. One has to examine the question posed for decision in the above background. 5. Section 18 of the Act dealing with appeals, reads thus : ## **18. Appeals** (1) Any person aggrieved by an order of the licensing authority refusing to grant a licence or varying the conditions of a licence or by an order of the licensing authority or the authority to whom the licensing authority is subordinate, suspending or revoking a licence may prefer an appeal against that order to such authority (hereinafter referred to as the appellate authority) and within such period as may be prescribed : Provided that no appeal shall lie against any order made by, or WPC No.16837 of 2017 7 under the direction of the Government. (2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor. Provided that an appeal may be admitted after the expiry of the period prescribed therefor if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within that period. (3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Indian Limitation Act, 1908(9 of 1908), with respect to the computation of periods of limitation thereunder. (4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a brief statement of the reasons for the order appealed against where such statement has been furnished to the appellant and by such fee as may be prescribed. (5) In disposing of an appeal the appellate authority shall follow such procedure as may be prescribed : Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of being heard. (6) The order appealed against shall, unless the appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order. (7) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final. While Section 18 of the Act categorically provides for an appeal WPC No.16837 of 2017 8 against an order refusing to grant a licence or varying the conditions of a licence or against an order suspending or revoking a licence, the Section does not provide categorically that an appeal would lie against an order refusing to renew a licence. As noted above, the scheme of the Act is that an application for renewal is also an application for grant of licence. If that be so, an order rejecting an application for renewal is also an order refusing to grant a licence. If the provisions contained in the statute is understood in that fashion, there is no difficulty in coming to the conclusion that such an order is also appealable under Section 18 of the Act, for, the said provision specifically provides for an appeal against an order refusing to grant a licence. I am fortified in this view also by the provisions contained in Rule 107 of the Arms Rules, 2016 (the Rules) dealing with the time limit within which an appeal provided for under Section 18 of the Act is to be instituted. Rule 107 of the Rules reads thus : “ **107. Appeal against order of licensing authority or an authority suspending or revoking a licence under sub-** WPC No.16837 of 2017 9 **section (6) of section 17 of the Act.** --In any case, in which an authority issues an order-- (i) refusing to grant or renew a licence or to give a “no objection certificate” for such grant or renewal; or (ii) varying any condition of a licence or suspending or revoking a licence under sub-section (1), or sub-section (3) or sub-section (6) of section 17, the person aggrieved by such order may, within thirty days from the date of issue of the order, and subject to the proviso to subsection (2) of section 18, prefer an appeal against that order, to the concerned appellate authority.” The contents of the extracted rule clarifies the position that an order refusing to renew a licence is an order refusing to grant a licence, as otherwise, there was no reason for the rule makers to prescribe a time limit for preferring an appeal against an order refusing to renew a licence. 6. Relying on the provision contained in Rule 24(5) of the Rules, the learned counsel for the petitioner vehemently contended that an order rejecting the application for renewal of licence cannot be treated at par with an order rejecting an application for grant of licence. I am unable to accept this argument. Rule 24 of the Rules reads thus : 24. **Renewal of licences** . (1) Every licence may, at its WPC No.16837 of 2017 10 expiration and subject to the same conditions (if any) as to the grant thereof, be renewed by the authority mentioned in Schedule II as renewing authority within a period of thirty days of receipt of the police report: Provided that the licence so renewed may be signed in the appropriate column of the licence by such officer as may be specifically empowered in this behalf by the State Government under rule 5. (2) An application for renewal of a licence for arms or ammunition shall be filed in the Form wherein specified at least sixty days prior to the expiry of the said licence with the licensing authority along with the documents wherein specified in the Form: Provided that in the case of arms and ammunition deposited under sub-rule (1) of rule 48, the renewal application may be filed either by the depositor, or where it is not practicable to make the application direct, through the dealer or any other person authorised by him in writing in this behalf, while the arms or ammunition continue to be so deposited. (3) The authority issuing a licence shall ordinarily be responsible for watching all future renewals of the licence: Provided that where a licensee notifies a change of his place of residence, permanently or temporarily for a period of more than six months, to the licensing authority of the district in which the renewal is sought, the licensing authority of that district shall thence-forth become responsible for watching all future renewals of his licence. (4) The new renewing authority shall, in respect of a licensee who notifies a change of his place of residence under sub-rule (3), register the licensee under its own jurisdiction in WPC No.16837 of 2017 11 accordance with the provisions specified in rule 17 and carry out the renewal thereof and forthwith, inform the original issuing or last renewing authority. (5) The licensing authority may consider an application for renewal of a licence, if the period between the date of its expiry and the date of application is not, in his opinion, unduly long with due regard to the circumstances of the case, and all renewal fees are paid; otherwise the application may be treated as one for grant of a fresh licence. (6) The licensing authority may, in accordance with any instructions issued by the State Government in respect of all or any class of firearms, require the personal attendance of the applicant before renewing the licence under this rule. Rule 24(2) of the Rules provides that an application for renewal of the licence shall be filed at least 60 days prior to the expiry of the licence. Rule 24(5) of the Rules provides that the licensing authority may consider an application for renewal of a licence, if the period between the date of its expiry and the date of application is not, in his opinion, unduly long with due regard to the circumstances of the case, and all renewal fees are paid; otherwise the application will be treated as one for grant of a fresh licence. A reading of the aforesaid rule would indicate that sub-rule(5) deals only with the procedure to be WPC No.16837 of 2017 12 followed while considering the applications for renewal submitted belatedly. It is difficult to infer from the said provision that an order rejecting an application for renewal of licence cannot be treated at par with an order rejecting an application for grant of licence. 7. Relying on the decision of the Apex Court in **Nalinakhya Bysack** v. **Shyam Sunder Haldar and others (** AIR 1953 SC 148), the learned counsel for the petitioner contended that it is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. It is pointed out that the Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature, it is contended that the Court cannot aid the Legislature's defective phrasing of an Act or add and amend or by construction, make up deficiencies which are left in the Act. The argument of the learned counsel is that since Section 18 of the Act does not specifically provide for an appeal against an order refusing to renew a licence, the court must proceed on the footing that the WPC No.16837 of 2017 13 Legislature never contemplated an appeal against such an order. I am unable to agree with this contention also, as I have found that the scheme of the Act is such that an order refusing to renew a licence is also an order refusing to grant a licence. 8. In the light of the finding that an order refusing to renew a licence issued under the Act is appealable under Section 18 of the Act, I do not find any reason to entertain this writ petition challenging the impugned order. The writ petition, in the circumstances, is disposed of without prejudice to the right of the petitioner to challenge the impugned order in appeal under Section 18 of the Act. ## **Sd/-** ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)