W.P.(C) No.4144 of 2011 (P) - B. Seetharama Kadamannaya v. Land Revenue Commissioner and District Collector, Kasaragod

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** **WP(C).No. 4144 of 2011 (P) --------------------------PETITIONER(S): ----------------------B. SEETHARAMA KADAMANNAYA, S/O.B. RAMACHANDRA KADAMANNAYA, KARKULA HOUSE, BOMBRANA VILLAGE P.O., BOMBRANA, KUMBLA (VIA), KASARAGOD DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN. RESPONDENT(S): -------------------------1. THE LAND REVENUE COMMISSIONER, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM, PIN-695 001. 2. THE DISTRICT COLLECTOR, KASARAGOD, REP. BY THE ADDITIONAL DISTRICT MAGISTRATE, KASARAGOD, PIN-673 001. BY GOVT. PLEADER SRI.MANZOOR ALI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 4144 of 2011 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE APPLICATION DATED 19/07/2008 FOR RENEWAL OF GUN LICENCE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P2 COPY OF THE ORDER REF.D2-2008/28331/14 DATED DECEMBER, 2009 ISSUED BY THE 2ND RESPONDENT REJECTING EXT.P1 APPLICATION. EXT.P3 COPY OF THE STATUTORY APPEAL AGAINST EXT.P2 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P4 COPY OF THE ORDER NO.LR(A5)4331/10 DATED 28/09/2010 ISSUED BY THE 1ST RESPONDENT DISMISSING EXT.P3 APPEAL.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **P.V.ASHA J.** **-------------------------------------------W.P.(C) No.4144 of 2011 ---------------------------------------------** Dated this the 25[th ] day of May, 2016 ## **J U D G M E N T** Petitioner challenges the rejection of his application for renewal of arms license and cancellation of license, on the ground that he is not residing in the address given in the application and that the extent of his property is not sufficient. 2. The petitioner submits that he and his family members are agriculturists and he is working as a Lecturer, in Mangalore University Sub Centre at Madikari in Karnataka State. According to him, he himself looks after the agricultural properties and he comes home every week and perform agricultural activities. His property is situated in a remote village, bordering the Karnataka State and near to forest land. In order to protect the crops from wild animals and birds, the petitioner had applied for **W.P.(C) No.4144 of 2011** 2 a licence and accordingly licence was issued to him on 05.07.1993 to possess a Model SBBL gun 12 bore. This licence was being renewed and was valid up to 31.07.2008. As per Ext.P2, the 2[nd] respondent, the Additional District Magistrate rejected Ext.P1 application for renewal of license and cancelled the license and directed the petitioner to deposit the weapon at Kumbala Police Station and produce the receipt for the same. The reason stated was that the petitioner was not residing in the address furnished in the license and he was not in need of a weapon to protect the agricultural crops. He filed Ext.P3 appeal stating that though he is employed in Karnataka, his property is in the border of Karnataka and Kerala and there is threat for the crops from wild animals and birds. It was stated that he was working as a Lecturer in Mangalore University but his family is permanently settled in the address given by him and he was holding a post which is transferable to the University College, Konaje or University Campus or University College, Madikari. He stated that he was working at Madikari as a **W.P.(C) No.4144 of 2011** 3 Lecturer and he is visiting his native place every week where his children study. He pointed out that he was not involved in any crime and the report of the Tahsildar was in his favour and the licence was cancelled without looking into material aspects. 3. The Land Revenue Commissioner rejected his appeal after hearing him, again on the ground that he was staying in Karnataka State in connection with his employment and he has only a limited area of property. The petitioner challenges the orders Exts.P2 and P4, pointing out that the report of Tahsildar was one recommending renewal. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The learned counsel for the petitioner argued that the rejection is contrary to the provisions in Sections 14 of the Arms Act, 1959 (hereinafter referred to as 'the Act') and contrary to the settled law including the judgments of this Court in **Ganesh Prasad v. Board of Revenue** [2015 (2) KLT 645), judgment dated 18.11.2014 **W.P.(C) No.4144 of 2011** 4 in W.P.(C).No.31100 of 2010, etc. 6. In this case one of the reasons stated for rejection/cancellation of license is that petitioner is not residing in the address given by him. He was staying in Karnataka State in connection with his employment. According to the petitioner his permanent residence continues to be in the address given by him and he continues to visit his house every week; perform his agricultural activities almost every week. There was yet another ground saying that the petitioner does not have sufficient property. The refusal on that ground is illegal, being contrary to Subsection 2 of Section 14 of the Act. 7. In view of the judgments relied on by the petitioner, it is necessary to consider whether change of residence is a ground for refusing renewal or for cancellation. Section 14 of the Act does not provide for cancellation of license on the ground of change of residence. However it is necessary to examine whether residence of a person has any relevance in grant/cancellation of license under the Act or Rules. **W.P.(C) No.4144 of 2011** 5 8 _._ Section 3 of the Act which provides for License for acquisition and possession of firearms and ammunition reads as follows: ## **3. License for acquisition and possession of firearms** **and ammunition** .— [1] No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in this behalf a license issued in accordance with the provisions of this Act and the rules made thereunder: Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority, of the holder of the license for repair or for renewal of the licence or for use by such holder. Section 4 providing for acquisition and possession of arms of specified categories read as follows: ## **4. License for acquisition and possession of arms** **of specified description in certain cases** .—If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification, and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a license issued in accordance with the provisions of this Act and the rules made thereunder. **W.P.(C) No.4144 of 2011** 6 9. Section 5 provides that no person shall sell or transfer any fire arms without license for the same. Subsection 2 thereof provides that no firearm which requires license under section 3 or 4 shall be sold or transferred except after intimation to the District Magistrate or officer in charge of the nearest police station. Transfer is defined under Section 2(k) to include lending, giving and parting with possession. 10. As per Section 13 of the Act, an application for license is to be made before the licensing authority in the prescribed form. As per the Schedule II to the Rules, licensing authority for acquisition/possession/carrying and use for protection, is the District Magistrate. Rule 51 of the Arms Rules 1962 (hereinafter referred to as 'the Rules') provides that application shall be in form A, which is to be presented before the licensing authority having jurisdiction over the place where the applicant ordinarily resides or has his occupation. Rule 51A provides that applicant shall not suppress any factual information or furnish any false or information in the application form. **W.P.(C) No.4144 of 2011** 7 Proviso (iii) to Rule 52 provides that the licensee may, if he changes the place of residence, produce the license or arms or both before the licensing authority of the new place of residence. Rule 53 provides for extension of the area of license also, in case the licensing authority has jurisdiction over such area. 11. Under Subsection 2 of Section 13 the licensing authority shall after conducting such inquiry as it may consider necessary, and after considering the report to be obtained from the nearest police station, grant or refuse license. Subsection 3 provides that the licensing authority shall grant license when it is required by a citizen of India in respect of a gun to be used for crop protection. Section 14 provides for the conditions under which the licensing authority can refuse license: i.e., when the license required is in respect of prohibited arms or ammunitions; when the license is required by a person who is liable to be prohibited by any law from acquiring or carrying arms; or found to be of unsound mind or for any reason unfit for a license under the Act; when the **W.P.(C) No.4144 of 2011** 8 licensing authority deems it necessary for the security of the public peace or for public safety to refuse to grant such license. Subsection 2 of Section 14 provides that the licensing authority shall not refuse to grant any license to any person merely on the ground that such person does not own or possess sufficient property. 12. The petitioner was granted licence on certain conditions, as prescribed in the Rules. As per these conditions in the licence he shall not transfer the arms covered by the license to any person who is not lawfully entitled to possess the same. Going by the definition of transfer under Section 2(k) of the Act he cannot lend it or give or part with its possession, except to a person who is having such authority. Petitioner is admittedly working in Karnataka. It was open for him to submit application under Rule 13 of the Rules to get the name of anybody else as retainer or to seek extension of the area of license, if necessary. 13. In these circumstances I do not find any reason to interfere with the decision of the authorities in rejecting **W.P.(C) No.4144 of 2011** 9 his application on the basis of change of residence. 14. In none of the judgments relied on by the learned counsel for the petitioner, i.e in **Ganesh Prasad V Board of Revenue** [2005(2) KLT 645] or in the judgment dated 18.11.2014 in W.P.(C).No.3110 of 2010, the rejection of applications were not on the ground of change of residence, as in this case. True that the licensing authority found that the extent of cultivation was insufficient, which cannot be accepted in view of Subsection 2 of the Section 14 of the Act. It is true that Section 14 of the Act provides for the conditions under which a license can be refused and cases where applications shall not be refused. It is also true that there is no criminal antecedents and the Tahsildar has recommended in favour of petitioner. The impugned orders are not passed merely on the basis of the report of Superintendent of Police. But both the authorities found that petitioner is not residing in the address given and is employed in Karnataka. The rejection on account of change in residence cannot be said to be illegal. ## **W.P.(C) No.4144 of 2011** 10 15. However, it is seen that the petitioner was having licence for the past 17 years until the impugned orders were passed. He has no criminal antecedents; and he was holding license without giving room to any complaints or threats to any one and he has not incurred any disqualification for being granted licence. The Superintendent of Police objected to the renewal of license on an irrelevant ground that it is not necessary for the petitioner to protect crops. At the same time the Tahsildar recommended his application. The application was rejected in the year 2008 and the appeal was rejected in the year 2010. Petitioner's contention is that he is in a transferable post and the crops are in the border of the two states. It is quite possible that the circumstances have changed. Therefore, rejection of the application for renewal and cancellation of license by the impugned orders cannot stand in the way of a fresh application being considered by the authorities in accordance with law. Therefore in case the petitioner approaches the authorities again with a fresh application for licence, the ## **W.P.(C) No.4144 of 2011** **==> picture [12 x 9] intentionally omitted <==** competent authority shall consider the same, having regard to his clean track records and pass orders thereon in accordance with law, after affording an opportunity of being heard to the petitioner, without any delay. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS/26/5/16