IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 WP(C).No. 24281 of 2007(N) -------------------------- PETITIONER(S): --------------- S.SASTHANANDAN, S/O SIVARAMAKRISHNAN, MUKKRAMKADU HOUSE, KOTTEKKAD P.O., PALAKKAD. BY ADV. SRI.A.R.GANGADAS SRI.K.R.RAJKUMAR RESPONDENT(S): --------------- 1. THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM. 2. THE ADDITIONAL DISTRICT MAGISTRATE, PALAKKAD. GOVERNMENT PLEADER SRI. M.R. SABU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24281 of 2007(N) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE LICENCE NO.236/H/PKD DATED 15.6.1967 EXT.P2 COPY OF THE ORDER OF THE R2 DATED 9.10.2006. EXT.P3 COPY OF THE ORDER OF THE R1 DATED 18.6.2007. /TRUE COPY/ P.S. TO JUDGE cl P.R.RAMACHANDRA MENON, J. .............................................. W.P(C).NO.24281 OF 2007 ............................................. Dated this the 26th day of September, 2011. JUDGMENT Rejection of the application for gun licence preferred by the petitioner, is under challenge. 2. The case of the petitioner is that his father had applied for and obtained a 12 Bore Double Barrel Gun licence as early as in 1976, as borne by Ext.P1 dated 15.6.1967 for agricultural purposes. The petitioner's father took his last breath on 19.10.2003 and in the said circumstance, after obtaining necessary consent from the other legal heirs, the petitioner applied for 'transfer' of the gun licence in his name. However, since it was revealed that there was no provision for 'transfer' of the licence, the applier applied for the licence in Form No.3, for self protection and so also for agricultural purposes; though the licence originally sought for and obtained by the deceased father of the petitioner was in Form No.5 solely for 'agricultural' purposes. 3. The application was considered and rejected by the second respondent vide Ext.P2, referring to the objection W.P(C).NO.24281 OF 2007 : 2 : raised by the authorities of the Forest Department, in view of close proximity to the forest area and the probable threat to the wild life. Being aggrieved by Ext.P2, the petitioner preferred a statutory appeal before the first respondent; wherein interference was declined as per Ext.P3 order dated 18.6.2007; which forms subject matter of challenge in this writ petition. 4. The first respondent has filed a counter affidavit seeking to sustain the impugned orders, referring to the factual and legal position. It is stated that the aforesaid orders have been passed in conformity with the statutory prescription and as such, they are not assailable under any circumstances. 5. Heard the learned Government Pleader as well. 6. The learned counsel for the petitioner submits that version of the Forest Officials is only that there was a 'chance of threat', if licence was issued; while all the other authorities concerned have given necessary recommendation in favour of the petitioner. It is also stated that there is no case of the respondents, that the petitioner has been W.P(C).NO.24281 OF 2007 : 3 : involved in any criminal case, particularly involving forest offence or that the father of the petitioner had misused the licence while in possession for more than four decades. It is stated that there is no independent application of mind while disposing the application for licence. It is further pointed out that the petitioner was not actually given an effective opportunity of hearing before the proceedings were finalised. 7. On going through the materials on record, there is an observation in Ext.P3 order passed by the first respondent that though the petitioner was informed of the date of hearing by sending notice under registered post, he had not turned up when the appeal was taken up for hearing. But there is a specific averment in para-2 of the writ petition that the matter was actually posted for hearing on 5.6.2007 as borne by the notice issued in this regard, whereas the said notice sent by registered post was actually served to the petitioner only on 5.6.2007 ie the date on which the proceedings were taken up and finalised as per Ext.P3. The above averment has not been specifically rebutted by the W.P(C).NO.24281 OF 2007 : 4 : respondents anywhere in the counter affidavit. 8. The appeal contemplated under the statute requires to be considered and disposed of in the manner as specified therein, which is more so in view of sub section (5) of Section 18 of the Arms Act, 1959 which reads as follows: “18(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 appellate authority conditionally or unconditionally directs otherwise, be in force pending the disposal of the appeal against such order”. Admittedly since the specific pleading raised by the petitioner that no effective hearing was given to the petitioner when the appeal was finalised by the appellate authority by passing Ext.P3 order, is not rebutted, adverse inference has necessary to be drawn in this regard. 9. In the said circumstances Ext.P3 is set aside and the matter is remanded for fresh consideration by the first respondent, to be inconformity with the stipulations under Section 18(5). The first respondent is directed to consider W.P(C).NO.24281 OF 2007 : 5 : the appeal preferred by the petitioner afresh and to pass a 'speaking order' in accordance with law, after giving an effective opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. P.R.RAMACHANDRA MENON, JUDGE. cl