HIGH COURT OF JUDICATURE AT ALLAHABAD (AFR) Court No. - 2 Case :- WRIT - C No. - 21674 of 2011 Petitioner :- Arvind Kumar Respondent :- State Of U.P. And Others Petitioner Counsel :- S.P. Shukla Respondent Counsel :- C.S.C. Hon'ble Sudhir Agarwal, J.
1. This writ petition is directed against order dated 10.08.2009 passed by District Magistrate, Allahabad cancelling firearm licence of petitioner on the ground that he has not given correct information in his application inasmuch as at Item No. 5 and 6 of the application, i.e., information relating to current and permanent address, the petitioner has disclosed same address in both columns, namely, 224/18 C Beniganj, Post G.T.B. Nagar, P.S. Kareli, Allahabad whereas his permanent address is Village Makdoompur (Doksaha), P.S. and District Kaushambi and, therefore, he is guilty of contravening Rule 51 which is punishable under Section 30 of Arms Act for giving wrong information and as such his application is liable to be rejected.
2. The said order has been confirmed in appeal by Commissioner vide order dated 15.02.2011.
3. Learned counsel for the petitioner submitted that he is presently residing at 224/18 C Beniganj, Post G.T.B. Nagar, P.S. Kareli, Allahabad and has been issued a driving licence, ration card as well as domicile certificate and, therefore, address given by him satisfies the requirement of "permanent address" and his application ought not have been rejected for this reason.
4. Learned Standing Counsel on the contrary submitted that petitioner's forefathers belong to Village Makdoompur (Doksaha), P.S. and District Kaushambi and since the petitioner has not broken relations with the place of his forefathers, his permanent address would be that of his forefathers and since this was not disclosed by him, he was guilty of non-disclosure of correct information/or concealment of correct information hence violated Rule l51 and his application has rightly been rejected.
5. The only question up for consideration in this case is what is "permanent address"? Whether it is distinct from current address and if so, in what manner ?
6. The application form is at page 16 (Annexure-1 to the writ petition). Columns 5 and 6 reads as under:
^^5- orZEkku irk% [email protected] lh csuhxat iks0 th0Vh0ch0 uxj bykgkckn ¼v½ fudV dk Fkkuk & Fkkuk djsyh 6- LFkkbZ irk% [email protected] lh csuhxat iks0 th0Vh0ch0 uxj bykgkckn fudV dk Fkkuk & Fkkuk djsyh**
7. There is also a caution at the bottom of application form which says that any concealment of information or misstatement would be contrary to Rule 51 and shall be punishable under Section 30 of Arms Act. It is not in dispute that petitioner's ancestors are resident of Village Makdoompur (Doksaha), P.S. and District Kaushambi.
8. The requirement in Clauses 5 and 6 is "current address" and "permanent address". The word 'address' though by itself may have different connotations but in the context in which requirement is to be read in the form prescribed in Rule 51 is the place of residence where the applicant is residing presently and another is place of permanent residence. It has to be seen when a residence can be termed as present place of residence other than permanent residence and when both the terms namely, present residence and permanent residence constitute one and the same thing. A person may be resident of a place presently with a clear intention of shifting therefrom on occurrence of certain events or after a specified time known from very beginning to person concerned or for some other reason. Entire gamut of circumstances cannot be illustrated for the reason that the current address, i.e., the place of present residence though temporary but has to be distinguished from short visit to a particular place for some time i.e., few hours, few days and may be few weeks. For example, if a person has gone to a city for his business or purpose for professional assignment and stays there in a hotel for one, two or more days or even for one or more weeks, it cannot be said to be current address in the context in which it is required in the present case for the reason that it shall not qualify requirement of present residence of the person concerned. The current address, to my mind cannot be read so as to include such an address which has occasioned due to visit of the person concerned outside the place of his residence in connection with some work or otherwise and he had no intention to stay there after completion of the job. In wider sense though even in such a case address of hotel or other place of boarding may constitute and fulfil the requirement of "current address" but looking in the context for which such requirement is provided in the form under Rule 51, it shall not qualify.
9. In Flowers v. Flowers, (1910) 1. L . R. 32, the word 'resides' came to be considered by a Full Bench of this Court and it was held that a mere casual residence in a place for a temporary purpose with no intention of remaining is not covered by the word "resides". Similarly in Balakrishna v. Sakuntala Bai, A.I.R. 1942 Mad. 666 the Court said that the expression "resides" implies something more than "stay" and implies some intention to remain at a place and not merely to pay it a casual visit.
10. In Charan Das v. Surasti Bai, A1R 1940 Lah. 449, the Court said that the sole test on the question of residence would be whether a party had animus manendi, or an intention to stay for an indefinite period, at one place.
11. In Jagir Kaur & Another vs Jaswant Singh, 1963 AIR 1521=1964 SCR (2) 73 the Court observed that a person would be said to reside at a place when it is not a flying visit to or a casual stay in a particular place. There shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. The Apex Court defines the word "resides" as under :
"a person resides in a place if he through choice makes it his abode permanently or even temporarily. Whether a person has chosen to make a particular place his abode depends upon the facts of each case.
12. Some illustrations were also considered which would be useful to refer at his stage. There may be following cases :
(i) A, living in a village, goes to a nearby town B to attend a marriage or to make purchases and stays there in a hotel for a day or two.
(ii) A, a tourist, goes from place to place during his peregrinations and stays for a few days in each of the places he visits,
(iii) A, a resident of a village, who is suffering from a chronic disease, goes along with his wife to a town for medical treatment, takes a house and lives there for about 6 months.
(iv) A, a permanent resident of a town, goes to a city for higher education, takes a house and lives there, alone or with his wife, to complete his studies.
In the first two cases, A makes only a flying visit and he has no intention to live either permanently or temporarily in the places he visits. It cannot, therefore, be said that he "resides" in the places he visits. In the last two illustrations, though A has a permanent house elsewhere, he has a clear intention or animus manendi to make the places where he has gone for medical relief in one and studies in the other, his temporary abode or residence.
13. The difference between current residence or current address and permanent residence or permanent address may exist visibly in some cases but may not exist at all in some other cases. Permanent residence may be place of resident of ancestors but not always. The place of residence of forefathers may or may not satisfy the requirement of permanent residence. This all depend on a particular facts of the case. Sometimes the permanent address or permanent residence both being interchangeable, for the purpose of present case, looking to context in which required it may equate with the term 'domicile' but in different situation it may not also.
14. "Domicile" does not mean always the place of ancestors or place of residence of forefathers of the incumbent concerned. Albeit in a different context the Apex Court in Central Bank of India Vs. Ram Narain AIR 1955 SC 36 referred to the Writers on "Private International Law" and said that generally they are agreeable that absolute definition of "domicile" is impossible to day down. The simplest definition of this expression is said to have been given by Chitty, J. in Cragnish v. Craignish [1892] 3 Ch. 18o, observing "that place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom." This definition, however cannot be said to be absolute one. The term 'domicile' lends itself to illustrations but not to definition. In English Law most of the jurists agrees that two constituent elements for existence of domicile are (1) a residence of a particular kind, and (2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside for ever in the country where the residence has been taken up. It is also a well established proposition that a person may have no home but he cannot be without a domicile. The law may attribute to him a domicile in a country where in reality he has not. In other words, one of the constituents giving birth to domicile of a person is the place where he was born.
15. A Division Bench of this Court in Fatima Begam vs Sakina Begam And Another, (1875) ILR 1 All 51 held as under :
"The words dwelling or residence are synonymous with domicile or home, and mean that place where a person has his fixed permanent home, to which, whenever he is absent, he has the intention of returning. In Lord v. Colvin 4 Drew 366: 28 L.J. Chanc. 361 it was held "that place is properly the domicile of the person in which he has voluntarily fixed the habitation of himself and family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home unless and until something (which is unexpected or uncertain) shall occur to induce him to adopt some other permanent home."
16. Following the authority of Central Bank of India Vs. Ram Narain (Supra); in a later decision, the Apex Court in Abdul Samad v. State of West Bengal, AIR 1973 SC 505 said that a person cannot have two simultaneous domiciles. It denotes connection with the territorial system of law. Every person must have a domicile. Mere residence is not domicile.
17. Recognizing difference in the meaning of word 'domicile' in the context of admission in Medical Colleges in a particular State vis a vis Private international Law, in Pradeep Jain Vs. Union of India AIR 1984 SC 1420 the Court said that domicile used in the rules regulating admissions to medical colleges framed by some of the States may be interpreted in the loose sense of "permanent residence in the State" in which the medical college is situated and not in the technical sense in which it is used in private international law.
18. In Union of India Vs. Dudh Nath Prasad AIR 2000 SC 525 =2000 (2) SCC 20 the question of residence and domicile was considered in the context of the question, whether Dudh Nath belong to Scheduled Caste or not. Dudh Nath Prasad was born in State of Bihar (Siwan District) and belong to Nunia community which a scheduled caste in the Presidential Notification for the State of West Bengal but not in the State of Bihar. He was selected in Indian Administrative and Allied Services against a reserved vacancy of Scheduled Caste and appointed as such based on caste certificate issued by Sub Divisional Officer Howrah, State of West Bengal on the basis of Presidential Notification of State of West Bengal. The question to be considered was, whether for the purpose of caste certificate the petitioner would be treated to be resident of Bihar or West Bengal. The relevant instructions in this regard use the words "District in which the parents of the candidate ordinarily reside." Dudh Nath contended that his parents were not ordinarily residing in District Siwan (Bihar) and therefore, he had rightly been issued caste certificate by the officer at Howrah. It was upheld. In order to construe the words "ordinarily resident" reliance was placed on Section 20 of the Representation of the People Act 1950 which provides the meaning of "ordinarily resident". The Court first of all rejected the meaning of the word "ordinarily resident" as defined in Section 20 of Representation of Peoples Act, observing that the said definition is for a particular purpose and not applicable in general. Referring to various definitions given in Oxford English Language Dictionary and Black's Law Dictionay and some other authorities vis a vis the word 'domicile'. It was held that etymologically. "residence" and "domicile" carry the same meaning, inasmuch as both refer to the permanent home, but under Private International law, "domicile" carries a little different sense and exhibits many facets. In spite of having a permanent home, a person may have a commercial, a political or forensic domicile. 'Domicile' may also take many colours; it may be domicile of origin, domicile of choice, domicile by operation of law or domicile of dependence. Domicile and residence are different and yet are related concepts and have to be understood in the context in which they are used having regard to nature and purpose of statute in which these words are used. The Court held that Dudh Nath's parents were residing in State of West Bengal since long and for all intents and purpose, they were entitled to be treated as "ordinarily residing" in the State of West Bengal.
19. Commenting upon the word "residence'" in D.N. Chanchala Vs. The State of Mysore, 1971(2) SCC 293 with reference to Rule 3 of Mysore Medical Colleges (Selection for Admission) Rules 1970 the Court observed that 'residence' contemplated therein must prima facie have an element of continuity or regularity in residence and would not mean intermittent stay such as during the vacations.
20. In Smt. Jeewanti Pandey vs Kishan Chandra Pandey, 1981 SCC (4) 517=1981 SCALE (3) 1641 the Court said that in its ordinary sense "residence" is more or less of a permanent character. The word 'resides' means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or abode. If there is fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his wife and children, in an established home, his legal and actual place of residence is the same. If a person has no established home and is compelled to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides. It means the actual place of residence and not legal constructive residence. It certainly does not correlate the place of origin. The word 'resides' is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation
21. The term address has been defined in Black's Law Dictionary 5th Edition, at page 36 as under:
"Address. Place where mail or other communications will reach person. . . . . . . . . . Generally a place of business or residence."
22. The term "domicile" is also defined in Black's Law Dictionary 5th Edition, at page 435. Besides others it says, that "Citizenship" "habitancy," and "residence" are severally words which in particular cases may mean precisely the same as "domicile." while in other uses may have different meanings.
23. "Residence", as per Black's Law Dictionary, signifies living in particular locality while "domicile" means living in that locality with intent to make it a fixed and permanent home. It also defines different kinds of "domicile" as under:
"Commercial Domicile. A domicile acquired by the maintenance of a commercial establishment.
Corporate domicile. Place considered by law as center of corporate affairs and place where its functions are discharged.
Domicile of choice. The essentials of "domicile" of choice are the fact of physical presence at a dwelling place and the intention to make that place home.
Domicile of origin. The home of the parents. That which arises from a man's birth and connections. The domicile of the parents at the time of birth, or what is termed the "domicile of origin." constitutes the domicile of an infant, and continues until abandoned, or until the acquisition of a new domicile in a different place.
Domicile of succession. As distinguished from a commercial, political, or forensic domicile, means the actual residence of a person within some jurisdiction, of such a character as shall, according to the well-established principles of public law, give direction to the succession of his personal estate.
Domicile of trustee. Jurisdiction which appoints trustee is domicile of trustee.
Elected domicile. The domicile of parties fixed in a contract between them for the purposes of such contract.
Foreign domicile. A domicile established by a citizen or subject of one sovereignty within the territory of another.
Matrimonial domicile. The place where a husband and wife have established a home, in which they reside in the relation of husband and wife, and where the matrimonial contract is being performed.
Municipal Domicile. One which as distinguished from "national domicile" and "quasi national domicile" (see those titles, infra), has reference to residence in a county, township, or municipality.
National domicile. The domicile of a person, considered as being within the territory of a particular nation, and not with reference to a particular locality or subdivision of a nation.
Natural domicile. The same as domicile of origin or domicile by birth.
Necessary domicile. That kind of domicile which exists by operation of law, as distinguished from voluntary domicile or domicile of choice.
Quasi national domicile. One involving residence in a state. See also National domicile, Supra"
24. Defining the word "address" in the context of purpose and intention in R. v. Bishop, (1959) 2 All ER 787, it was said that the word "Address" is not referring to postal address, but refers to a reasonable identification of such a place, not necessarily a postal address but something which describes or identifies the place with reasonable identity.
25. In State Vs. Abdullah Khan AIR 1965 Rajasthan 11, with reference to Article 5 of the Constitution, the Court said that the 'domicile' means the permanent place of dwelling, or home of the person concerned.
26. I may also look into the word "permanent" so as to have much wider view of the matter.
27. In The New Lexicon Webster's Dictionary, Deluxe Encyclopedic Edition (1987) the word 'permanent' is defined as "continuing and enduring without change."
28. In P. Ramanatha Aiyar's The Law Lexicon 2nd Edition (2007) the word 'Permanent' is defined as under:
"Permanent" is defined to mean not temporary, or subject to change : abiding, remaining fixed, or enduring in character, state or place.
The meaning of the word 'permanent' according to lexicographers, is continuing in the same state, or without any change that destroys form or character, remaining unaltered or unremoved, abiding, durable, fixed, lasting, continuing ; as a permanent impression, permanent institution.
29. Black's Law Dictionary, Fifth Edition defines the word "permanent" as under:
"Permanent. Continuing or enduring in the same state, status, place or the like, without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; lasting; abiding; stable; not temporary or transient."
30. From the above discussion, I am inclined to follow the meaning of the words "present address" and "permanent address" looking into the objective and purpose for which the two addresses are required in items 5 and 6 under Rule 51, instead of giving any hypertechnical or or superficial or otherwise meaning thereto. The purpose obviously is to obtain information regarding antecedents of the person concerned. His antecedents can be obtained if he gives information about the place where he resides presently and if his permanent residence is something else, then the present residence must be the address of that place. The term "permanent address" necessarily cannot always be equated with the address or the place of residence of forefathers or ancestors of the person concerned unless something is found out to show that the place of origin or the place of ancestors or forefather is the place of permanent residence or permanent address of the applicant also. We can understand the things from another angle.
31. Two things are clear. "Permanent address" in common parlance would be address which is not likely to change ordinarily and would remain in-tact identifying the person concerned. "Current address" is the place at which for the time being one is residing. Meaning of the word 'permanent' as above clearly shows that there may or may not be a marked distinction between a "permanent address" and "current address". In a given case, "permanent address" may be current address also but it is difficult to assume vice-versa in all cases. One may not have any confusion with requirement of "current address" and "permanent address" vis a vis place of birth or the place of domicile. The place of birth is where the incumbent is born but it may be his permanent or current address or may not. Word 'domicile' covers within its ambit the place of "current address" inasmuch as if a person is presently residing at a place for certain required period, he may be issued a certificate of domicilation but by itself it may not equate in all cases with "permanent address". The person who has migrated or shifted to a place other than a place of his forefathers for the purpose of job, profession, occupation etc. may say that place where he is presently residing would satisfy requirement of "current address" but may not satisfy the requirement of "permanent address" which would be his place of his forefathers where he has and stakes the property of his father and forefathers, his relations and connection in various manners. It also cannot be disputed that in certain circumstances, one may shift from place of his forefathers to another in a whole hog manner breaking his all connections and in such a case the permanent address would be different. The two are having different shades and nuances and would depend on peculiar facts of particular case. There cannot be any hard and fast rule in such matters.
32. In the case in hand, it is not disputed by the petitioner that his forefathers/grandfather belong to village Makdoompur (Doksaha), P.S. and District Kaushambi. In para 14 of the writ petition the petitioner however, says that he has given address where he actually resides. He has not stated that he has severed all connections and relations with the place of his forefathers and has settled permanently at Allahabad. No details have been given to show and to ascertain whether the petitioner has permanently settled at Allahabad. Neither the place of birth nor property details at Allahabad nor any other fact is on record to demonstrate that he has permanently settled at Allahabad. Actual place of address obviously would satisfy the requirement of "current address" but whether it can satisfy the "permanent address" or not would depend on case to case. In the present case, no such material has been brought on record to show that "current address" of the petitioner can be treated to be his "permanent address". It is in these circumstances, I do not find any error apparent on the face of record in the orders impugned in the writ petition passed by the authorities below.
33.. Learned counsel for the petitioner drew my attention to Arun Kumar Singh Vs. State of U.P. and others 2006(1) UP Cr.R. 415 and Takdeer Singh, Prabhu Dayal Vs. Commissioner, Jhansi Division and others 2005 (TLS) 316893 (writ petition no. 32033 of 2004 decided on 19.10.2005). I have gone through the aforesaid judgments and do not find the same applicable to the facts of the present case. In Arun Kumar Singh (supra) the judgment shows that this Court took the view that the petitioner cannot be said to be guilty of misrepresentation which may form basis of cancellation of firearm licence. Same was the view in Takdeer Singh (supra). In both the cases, firearm licence was already granted and thereafter proceedings were initiated for cancellation thereof. The circumstances in which the firearm licence was cancelled is specified in Section 17 but here is a case where question of grant of firearm licence under Section 13 has to be considered. In such a case where information is not given in the application form in the manner it is required, the authorities are quite competent to reject application for such lapses. The reason being that in such a case the petitioner would not be deprived of moving fresh application furnishing correct details and information. It is always open to an applicant whose application has once been rejected for one or the other shortcoming or incomplete information, to move another application fulfilling requirements of Form prescribed under Rules.
34. For what has been stated above, I am of the definite opinion that this writ petition is devoid of merits.
35. Dismissed.
36. No costs.
Dated: 4.11.2011 Akn.