BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
02. 09.2014 CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P(MD)No.11346 of 2013 S.Subramaniam ... Petitioner Vs. 1.The Chief Secretary/ Commissioner of Revenue, Board of Revenue, Chennai 5. 2.The District Collector, Kanyakumari District, Nagercoil. ... Respondents Prayer Writ petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records relating to the Appeal No.32/2010 (Appeal proceedings of the 1st appellant in Na.Ka.No.Va.Ni.5(2)/19005/2013 dated 27/05/2013 confirming the order of the 2nd respondent in his proceeding in O.Mu.No.25200/2011(C1) dated 08/03/2013 and to quash the same consequently direct the second respondent who is the licensing authority to grant gun license to the petitioner to possess SBBL gun. !For Petitioner : Mr.M.Suri ^For Respondents : Mr.M.Rajarajan G.A., :ORDER
The petitioner challenges the order passed by the first respondent, dated 27.05.2013, rejecting the appeal filed by the petitioner as against the order passed by the second respondent, dated 08.03.2013, by which, the petitioner's request for arms license for his SBBL gun German make, was rejected.
2. The petitioner's father Thiru. Sastha inherited two weapons from his father, namely, SBBL gun and a revolver. The petitioner's father was possessing license for both the weapons. Due to old age, the petitioner's father gifted the revolver to the petitioner's elder brother Thiru S.Nagamony and SBBL gun to the petitioner. This was to be preserved by them as memento, as it was the priced possession of the family. Since the petitioner is an Advocate by profession and also landlord and he has owning lands in Karungulam village, and Kalakkadu village in Tirunelveli District, apart from the lands in Kanyakumari District. The petitioner's brother S.Nagamony was granted license by the second respondent for the revolver. When the petitioner applied for the license, the second respondent, by order dated 08.03.2013, rejected the application on the ground that the petitioner's lands were situated within the radius of eight kilometres from the forest land and therefore, the petitioner has to obtain 'No Objection Certificate' from the Wild Life Warden as required under Section 34(3) of the Wile Life (Protection) Act, 1972. Challenging the said order, he preferred an appeal to the first respondent. After setting out the factual details, the petitioner raised several legal grounds also stating that the estate land available in the name of the petitioner is nor near any notified wild life line and the order of rejection of the Licensing Authority on the ground of not obtained the No Objection Certificate from the Wild Life Warden without any basis.
3. Further it was stated that the weapon was not involved in any criminal activity and it is seen with the family for over fifty years and apart from use for self protection and proper cattle protection. The weapon is a memorabilia of the petitioner's family. Further it is submitted that the Licensing Authority, namely, the second respondent without conducting any enquiry merely proceeded to accept the report of the Forest Department and rejected the petitioner's application, which is illegal and unreasonable. On the above grounds, the petitioner sought for setting aside the order passed by the Licensing Authority.
4. The Licensing Authority, by critic order, dated 27.05.2013, virtually rejected the appeal petition in a single line order stating that the petitioner should comply with the direction issued by the District Collector. It is unfortunate that the First Appellate Authority did not independently examine the appeal petition. The petitioner had raised grounds to state that the Licensing Authority was not justified in insisting upon a 'No Objection Certificate' from the Forest Department. However, without considering any of the points, the first respondent rejected the petitioner's application. Challenging the same, the writ petition has been filed.
5. The learned counsel appearing for the petitioner submitted that the impugned proceedings passed by the second respondent is on a thorough misconception of a legal position. By referring to Section 34(3) of the Wild Life (Protection) Act, 1972, it is submitted that no new license under Arms Act 1959 shall be granted within a radius of ten kilometres of a sanctuary without the prior concurrence of the Chief Wild Life Warden. Sanctuary has been defined under Section 2(26) of the Act to mean an area declared as a sanctuary by notification under the provisions of chapter IV of the Act and shall also include a deemed sanctuary under Section 66(4) of the Act.
6. Chapter IV of the Act deals with protected areas and Sections 18 to 38 of the Act contained in Chapter IV. Section 18(1) of the Act speaks about the manner in which an area to be declared as a sanctuary, Section 18-A deals with protection of sanctuaries and under Section 18-B the power of the State Government to appoint the officer to act as Collectors under the Act. In terms of Section 19 of the Act, when a notification has been issued under Section 18 declaring an area as a sanctuary, the collector has appointed under Section 18-B of the Act shall inquire into and determine the existence, nature and extent of the rights of any person in or over the land comprised within the limits of the sanctuary. This is the view to protect a person such as native of the area, who are living within the sanctuary.
7. Section 34 also falls under Chapter IV, which deals with protected area. Such of those persons, who are holding a license granted in the Arms Act residing within ten kilometres of any sanctuary shall apply within a period of three months from the date of such declaration for possession of the Arms or excepting from the provisions of the Act and such application shall be made along with requisite fee to the Chief Wild Life Warden or the authorized officer for the registration. On receipt of such application under Section 34(1), the Chief Wild Life Warden or the authorized officer shall register the name of the applicant in such a manner as may be prescribed. In terms of sub-Section 3 of the Section 34 no new licenses under the Arms Act shall be granted within a radius of ten kilometres of a sanctuary without the prior concurrence of the Chief Wild Life Warden. Therefore, the statute does not absolutely bar a person from applying for a license under the Arms Act, despite the fact that the land situated within a radius of ten kilometres of the sanctuary, but the requirement is prior concurrent of the Chief Wild Life Warden.
8. As noticed above sub-Section 1 of the Section 34 deals with cases where a person, who already in possession of license and the area having been declared as sanctuary, is empowered to apply to the authority to retain the license as excepting from the provisions of the Act. Therefore, on analysis of the scheme of the Act as more particularly as contained in Chapter IV, it is with a view to impose certain restrictions for bearing in mind the object of the Wild Life Protection Act, which has been enacted to provide for protection of wild animals, birds and plants and for matters connected therewith or ancillary therewith, thereto with a view to ensuring the ecological and environmental security of the country.
9. The case of the petitioner is that the petitioner's property are not situated within the prohibited distance of ten kilometres of a sanctuary as defined under Section 2(26) of the Act. The impugned order also does not state that the petitioner's land is situated within the prohibited distance of the land shown as forest land. Therefore, prima facie, it is clear that Section 34(3) of the Act would not apply since even as per the impugned order, there is no reference to any sanctuary as declared under the provisions of the Act in terms of Section 18 of the Act. Therefore, the Licensing Authority also did not apply his mind to the application submitted by the petitioner and mechanically returned the same stating that without 'No Objection Certificate' it cannot be processed.
10. The counter affidavit is no way better and all has been stated that the District Forest Officer, Nagercoil is in a fearful mood and that the if the license is granted to the petitioner, there is every chance to kill the forest animals by using the gun, as the petitioner's patta land is lying within 8 kilometres from the reserve forest area. Even in the counter affidavit, the terms of sanctioning has not been mentioned.
11. In any event, the petitioner is entitled to seek for license under the Arms Act, though it is not a vested right to obtain a license. But such application has to be considered in accordance with law and not on the basis of apprehension of the Forest Officer. The Licensing Authority has to apply his mind to the request made and thereafter, decide the issue.
12. Furthermore, there is no record placed to show that the area said to be a forest land, is deemed to be a sanctuary under Section 66(4). In such circumstances, Section 34(3) of the Act would have no application. The other issue that the weapon has been in the family for 50 years and there is no criminal records have been taken note of the Licensing Authority, which are the normal factors to be taken note of by the Licensing Authority before grant or renewal of a gun license. Thus, the entire proceedings has been misdirected and out come of total non-application of mind.
13. The learned counsel for the petitioner placed reliance on the decision of the Honourable Division Bench of this court in the case of the Commissioner of Police, Egmore, Chennai 8 vs. E.V.Kalairajan reported in 2008-4 L.W.
702. The said decision arose out of an appeal filed by the Commissioner of Police, Chennai City challenging an order passed by the learned Single Judge of this Court, which was filed challenging the order passed by the Licensing Authority refusing to grant arms license to the respondent therein on the ground that three criminal cases were pending. The respondent therein is the Member of Legislative Assembly and for certain reasons, he had applied for a gun license.
14. The Honourable Division Bench, after taking note of the facts and scenario of the cases, which are said to be against the respondent therein, took into consideration, section 14 of the Arms Act which deals with power to refuse license and interpreting in the exceptional reason to believe, being the governing words in the statutes, relied on the decisions of the Honourable Supreme Court observed that since public safety and public peace is equated with the equate public order, so the Licensing Authority must have reasons to believe that by allowing the respondent therein the license to possess a revolver, public order will be disrupted and further observed that the cases against the respondent therein were petty cases and most of them bailable and held that the entire perception of the Licensing Authority and the exercise of power was contrary to the statutory scheme of the license and violation of the principles of natural justice. Therefore, the appeal filed by the Government was dismissed and the order passed by the Licensing Authority was quashed and the Licensing Authority was directed to consider the application for grant of license afresh and if there is no other criminal case except the one mentioned before the Court and respondent application for license must be favourably considered on merits within a period of four weeks. As noticed above, in the instant case also, the impugned proceedings is the out come of total non-application of mind and violation of principles of natural justice. Further, the first appellate authority also passed non- speaking and critic order.
15. For all the above reasons, the impugned order is set aside and the matter is remanded to the second respondent for fresh consideration and after affording of personal hearing to the petitioner, the first respondent shall take a decision on the petitioner's application for grant of license bearing in mind to the observations made by this Court regarding the applicability of Section 34(3) of the Act. In the event of the second respondent calls for any report from the Forest Department, copy of that report shall be submitted to the petitioner before a decision has to be taken. The second respondent shall comply with the above direction within a period of four weeks from the date of receipt of a copy of this order.
16. With the above directions, this Writ Petition is disposed of. No costs. To 1.The Chief Secretary/ Commissioner of Revenue, Board of Revenue, Chennai 5. 2.The District Collector, Kanyakumari District, Nagercoil.