SAMSON, S/O VARGHESE vs. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937** **WP(C).NO. 15125 OF 2011 (M)** **----------------------------** ## **PETITIONER:** - **------------** **SAMSON, S/O.VARGHESE, AGED 60 YEARS, PADATH HOUSE, VALIYAPARAMBU BAZAR, KUNNAMKULAM, THRISSUR DISTRICT.** **BY ADV. SRI.RAJIT** ## **RESPONDENT(S):** - **----------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** **2. THE DISTRICT COLLECTOR, THRISSUR, COLLECTORARTE, AYYANTHOLE, THRISSUR-680001** **3. ADDITIONAL DISTRICT MAGISTRATE/ REVENUE DIVISIONAL OFFICER, THRISSUR, COLLECTORATE AYYANTHOLE, THRISSUR-680001** **4. THE SUPERINTENDENT OF POLICE, THRISSUR, COLLECTORATE, AYYANTHOLE, THRISSUR-680001** **5. SUB INSPECTOR OF POLICE, KUNNAMKULAM POLICE STATION, KUNNAMKULAM THRISSUR DISTRICT.** **BY ADV. GOVERNMENT PLEADER, SMT. V.P. SATHI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).NO. 15125 OF 2011 (M)** ## **----------------------------** ## **APPENDIX ========** ## **PETITIONER'S EXHIBITS: ======================** |**EXT.P1**|**TRUE COPY OF THE ARMS LICENCE ISSUED BY THE 3RD RESPONDENT**| |---|---| |**EXT.P2**|**TRUE COPY OF THE RECEIPT ISSUED BY THE OFFICE OF THE 2ND**| ||**RESPONDENT DT. 14.12.09.**| |**EXT.P3**|**TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER**| ||**BEFORE THE 2ND RESPONDENT.**| |**EXT.P4**|**TRUE COPY OF THE INFORMATION SEND BY THE OFFICE OF THE**| ||**2ND RESPONDENT TO THE PETITIONER DT. 05.04.11.**| |**EXT.P5**|**TRUE COPY OF THE CIRCULAR DT. 31.03.10.**| |**EXT.P6**|**TRUE COPY OF THE CIRCULAR NUMBER 76689/F.1/09/HOME DT.**| ||**14.09.10 ISSUED BY THE 1ST RESPONDENT.**| |**EXT.P7**|**TRUE COPY OF THE MINUTES BY THE 2ND RESPONDENT.**| |**EXT.P8**|**TRUE COPY OF THE ORDER NO.L.R.A5-26650/08 DT.27.02.10**| ||**ISSUED BY THE LAND TRIBUNAL COMMISSIONER.**| |**RESPONDENTS EXHIBITS:**|**NIL**| |---|---| |**=====================**|| **//TRUE COPY//** **P.A. TO JUDGE** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = = = W.P. (C) No. 15125 of 2011 - - - - - - - - - -- - - - - - - - - - -** Dated this the 10th day of March, 2016 ## **J U D G M E N T** The petitioner is the holder of an arms licence issued, as per Section 13 of the Arms Act, 1959 _(hereinafter referred to as 'the Act')_ . He was granted licence for possession of a 30.6 bore rifle along with 50 cartridge, as early as on 30.01.1981. Ext.P1 is the true copy of the arms licence issued by the 3[rd] respondent. The licence granted to the petitioner has been renewed every year, as evidenced by endorsement in Ext.P1. The petitioner applied for his fire arm on two grounds. Firstly, he was a member of the National Rifle Association of India and was a good shooter. Secondly, for personal protection, as he is a wholesale grocery ## **W.P.(C) No. 15125 of 2011** ## **-: 2 :-** businessman, in Kunnamkulam Bazar and there is a high risk of threat perception to the petitioner, while carrying money for the purpose of business. The petitioner submitted an application for renewal of his arms licence before the 2[nd] respondent, as stipulated in Section 15 of the Act, as early on 14.12.2009 and the same is evidenced by Ext.P2 receipt issued, by the 2[nd] respondent. But, the application has not been considered so far, despite the long lapse of more than six years. When the petitioner sought for the status of his application, under the Right to Information Act, 2005, the 2[nd] respondent replied by Ext.P3, stating that as per circular dated 14.09.2010 of the 1[st] respondent the application has been forwarded to the 4[th] respondent for enquiry and report. But, the report has not been ## **W.P.(C) No. 15125 of 2011** **-: 3 :-** received so far, from the office of the 4[th] respondent. Unless and until, the report has been received from the office of the 4[th] respondent, the petitioner's application cannot be considered. The inaction on the part of the 2[nd] respondent, in not considering the application in accordance with law and the reason stated in Ext.P4 for not considering the application, are under challenge in this writ petition. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. Going by Ext.P2, it stands undisputed that the petitioner had submitted the renewal application, as early on 14.12.2009 and going by Ext.P4, it is seen that the office of the 2[nd] respondent admitted that the 2[nd] respondent has not ## **W.P.(C) No. 15125 of 2011** ## **-: 4 :-** considered the renewal application, in the absence of the report from the 4[th] respondent. 4. The point to be considered is, whether the 2[nd] respondent can be justified in withholding the application, for the reason that the report from the 4[th] respondent has not been received so far, despite the long lapse of more than six years. This Court is of the opinion that proviso to Sub-Section 2(a) of Section 13 of the Act, provides the remedy to deal with the situation, where the Police Authority fails to sent report, within the prescribed time. The above proviso provides 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_ ## **W.P.(C) No. 15125 of 2011** **-: 5 :-** _prescribed time, without further waiting for that report._ 5. In view of the above provision, the 2[nd] respondent is not justified in withholding the application, awaiting the report from the 4[th] respondent, despite the long lapse of more than six years. In the above context, the decision of this Court in _**Chandran Nair v. Additional District Magistrate**_ [2015(1)KLT 41], where this Court considered the circumstances, where a person seeks for arms licence, are relevant. _“A learned Single Judge of this Court in Chandran Nair v. Additional District Magistrate (:2015(1)KLT 41) has observed that a combined reading of Sections 14 and 15 of the Arms Act, 1959 would indicate that once a license is granted under the Act, the same shall be renewed from time to time unless there exists a ground for refusal as enumerated under S.14 of the Act. It was further observed that the protection to life and_ ## **W.P.(C) No. 15125 of 2011** ## **-: 6 :-** _property of a citizen is the responsibility of the State; and it is only when a person apprehends that the machinery of the State may not come to his aid to protect his life and property, he/she applies for a license under the Act. It was further observed that the subjective satisfaction of the authorities under the Act that there is no threat to the life and property of the applicant may or may not be correct; and when the applicant feels that there is threat to his life and property, there is no reason for the State to risk his life and property. “_ 6. The learned Government Pleader heavily relied on Ext.P5 Circular, issued by the Central Government and Ext.P6 Circular issued by the State Government. The learned Single Judge of this Court in W.P.(C) No.4603 of 2014, considered the legality, implication and reliability of Exts.P5 and P6, in view of Section 14 of the Act and held as follows: _“The learned Government Pleader heavily relied on the Circular No.V-11016/16/2009 Arms dated 31.3.2010 issued by the Central Government and Circular No.76689/F1/09/Home_ ## **W.P.(C) No. 15125 of 2011** ## **-: 7 :-** _dated 14.9.2010 issued by the State Government imposing restrictions on the renewal of arms license. The argument of the State cannot be countenanced as it is trite that executive orders cannot override the express provisions of a statute. Therefore, I do not see any justifiable reason not to follow the decision in Chandran Nair's case (cited supra). The impugned order does not reflect whether any of the grounds made mention of Section 14 of the Act was there for refusing the license. The license was refused solely for the reason that the petitioner was not facing any imminent threat or danger to his life.”_ 7. In view of the proposition laid down by this Court in the above decision, the circumstances brought out in this writ petition, warrant interference of this Court, under Article 226 of the Constitution of India. Consequently, the 2[nd] respondent is directed to consider Ext.P2 application, for renewal of the petitioner's licence, in view of the decision in _**Chandran**_ ## **W.P.(C) No. 15125 of 2011** ## **-: 8 :-** _**Nair's case(Supra)**_ and the observations made above, within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner. This writ petition is disposed of accordingly. DST Sd/- **K. HARILAL,** //True copy// P.A. To Judge **JUDGE**