CWP No.8412 of 2008 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARAYANA AT CHANDIGARH CWP No.8412 of 2008 Date of Decision: July 18, 2011 Kirpal Singh Randhawa Petitioner Versus Union of India and another Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present: Mr.R.S. Bains, Advocate for the petitioner. Mr. D.S. Bishnoi, Advocate for Union of India. Mr. N.S. Pawar, Addl. Advocate General, Punjab 1. Whether reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the reporters or not ? Yes 3. Whether the judgment should be reported in the digest ? Yes K. KANNAN, J.(ORAL)
1. The petitioner challenges the order of rejection of claim for Prohibited Bore Licence(PB Armed Licence). The purported reason for rejection stated in the impugned order is that the request is not covered under the "Policy of the Government". It is a matter of fact that the Government through the District Magistrate had recommended the grant of PB Armed Licence to the petitioner and this is evident from a communication of the Home Secretary, Government of Punjab in its letter dated 27.03.2002.
2. The only issue is whether the Government had properly applied its mind before it chose to reject the application for the necessary licence. Before the petition was filed before this Court, the petitioner has sought for details of the Policy under which claim for grant of licence made was rejected. The Government of India had sent a letter of communication dated 22.06.2006 (Annexure P-12) which sets out the circumstances under which the consideration for the grant of licence could be made:-
"i) When the licence expires, the weapon is transferred to legal heir on sentimental ground subject to fulfillment of certain conditions.
ii) Defence personnel are granted such licence provided the weapon was allotted before June, 1982 and also after fulfillment of certain conditions.
iii) To individuals who face grave and imminent threat to their lives"
The same letter also states in para No.3 as follows:
"3. The policy guidelines in respect of (i) and (ii) above is enclosed. No specific policy guideliens for (iii) above have been issued because grant of Prohibited Bore Arms Licences under this category are issued in very rare cases.
3. This letter itself betrays the complete non-application of mind at the time when the impugned order was passed. We have already noticed that the rejection as made on the ground that his request was not covered by the Policy of the Government. In the letter dated 22.06.2006, the Under Secretary explains that no Policy Guidelines have been set forth for appraising the grave and imminent threat to the life of an individual. If there was no policy guideline it could not have been stated that the request was rejected because it was not covered under the policy. In the letter dated 07.06.2007 addressed to the Secretary, Government of Punjab by the Union of India, it is again reiterated that the request for the licence could not be acceded as it has not covered under the existing policy of the Government. It is one thing to state that there exists no policy guideline but quite another to say that request does not come within the existing policy. The rejection in the impugned order pre- supposes the existence of a policy. Apart from a transfer of licence to a legal representative or a licence to a Defence Personnel, the only other consideration/category would be to consider the request for persons who faced grave and imminent threats. If the request had been rejected on the ground that the petitioner's perception of grave and imminent threat to his life was not true, then the order could have been supported. But the rejection was on the ground that his request did not fall within the policy. Later an explanation has been given through a response that policy guidelines have not been made for ascertaining the grave and imminent threat and still later, the explanation given in the reply statement would show that the Government has been shifting its stand from time to time. What is stated in the reply is wholly new. It is stated:
"i) The applicant already held .12 bore DBBL weapon, which he surrendered in 2003 apparently to claim that he was not having licensed arm for selt-protection and later made a request for PB Arm licence.
ii) That he has already been provided security cover by the Government for his protection.
iii) The applicant is involved in a property dispute with his elder brother and there is a possibility that an arm licence is being sought by him to overawe his elder brother and in that case, PB Arm being misused by the applicant for settling dispute with his brother."
4. None of these reasons is set out in the impugned order. It has been laid down by the decision of the Hon'ble Supreme Court of India in case of M.S. Gill, Vs. The Chief Election Commissioner- AIR 1978 Supreme Court 851, that an order which is impugned must be supported by the reasoning in what order itself contains and cannot be supported through subsequent averments in the affidavit or counter filed before the Court. If the impugned order set out that the request did not come within the policy guidelines it could only be explained in the reply about how the threat perception assessed by the authority was not the same as perceived by the petitioner himself. It cannot be on the ground that he already had a .12 Bore BBP weapon which was surrendered or that he had security cover from the Government or that there was a likelihood of misuse of licence. All these have not been set forth in the impugned order itself and I only see this only as an attempt to bring a new justification which did not actually exist.
5. At the time of filing the petition, the petitioner had also brought out information of the fact that within the same district about 156 persons had been given PB Arms Licences and out of them only 25% had been Army Personnel. The attempt of the petitioner was therefore to show that if there was a justification in the policy that made possible the grant of licences to such a large number of persons, there was no justification for denial on a specious ground that there was no specific policy guideline for assessing the grave and imminent threat to the life of the individual. On a previous occasion, after the notice had been issued to the Government, this Court directed on 13.02.2009 to explain the circumstances under which the licences had been issued to list of persons which the petitioner had given under Annexure P-17. The Government has taken nearly two years' time but still it is groping for reasons. The impugned order cannot therefore be sustained in the eyes of law.
6. The first-respondent shall take a decision on the basis of the recommendations already given by the State Government and policy spelt through letter dated 22.06.2006. The appraisal shall be undertaken on objective materials, without offending at the same time the constitutional precept enshrined through Article 14 and pass appropriate orders in accordance with law within a period of six weeks from the date of receipt of the order. The writ petition is allowed and direction given in the light of what is stated above.
18.07.2011 (K. KANNAN) vcgarg JUDGE