Jammu & Kashmir High Court
Vikram Dusgotra vs Union Territory Of Jammu & Kashmir ... on 9 October, 2023
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
WP(C) No.1878/2023
CM No.4354/2023
Reserved on: 06.10.2023
Pronounced on: 09.10.2023
1. Vikram Dusgotra, age 43 years
S/O Late Sh. Kunj Lal Dusgotra .....Petitioner(s)
R/O MCJ-284 Street No.17
Rajpura Mangotrian, Jammu.
2. Rajesh Gupta, age 52 years
S/O Late Sh. Om Parkesh Gupta
R/O 197, Bakshi Nagar, Jammu.
3. Anil Sharma, age 54 years
S/O Sh. Makhan Lal Sharma
R/O Village Dandesar
Tehsil Nowshera, District Rajouri
At present: 31-D, Police Lines, Jammu.
4. Makhan Lal Sharma, age 84 years
S/O Late Sh. Nain Chand
R/O Village Dandesar,
Tehsil Nowshera District Rajouri
At present: 31-D, Police Lines, Jammu.
(Joint Licensee with Petitioner No.3)
5. Dushant Kumar, age 39 years
S/O Sh. Devi Dayal
R/O H. No. 512-D, Jeewan Nagar
Opposite Industrial Estate, Jammu.
6. Nishchal Khajuria, age 47 years
S/O Sh. Devi Dayal Khajuria
R/O 512, Jeewan Nagar, Jammu.
7. Sartaj Ahmed Shah, age 46 years
S/O Muzair Hussain Shah,
R/O Masjid Mohalla, Chinore, Jammu City
8. Mohinder Kotwal, age 74 years
S/O Sh. Jeewan Lal Kotwal
R/O Municipal Plot No. 3 Pacca Danga, Jammu.
9. Devinder Kumar Sharma, age 53 years
S/O Late Sh. Goverdhan Lal Sharma
R/O 415, Digiana Ashram, Jammu
10.Varinder Kumar, age 48 years
S/O Late Sh. Goverdhan Lal Sharma
R/O 415, Digiana Ashram, Jammu
(Joint License with Petitioner no.9)
11.Lavinder Kumar Sharma, age 43 years
S/O Late Sh. Goverdhan Lal Sharma,
R/O 415, Digiana Ashram, Jammu
(Joint License with Petitioner No.9)
12.Kamaljit Kour Kalsee, age 74 years
W/O Late Sh. Jasbir Singh
2 WP(C) No.1878/2023
R/O H. No. 181, Section No.4
Ext. Sanjay Nagar, Gangyal, Jammu.
13.Vikrant Khurmi, age 48 years
S/O Sh. Gurcharan Khurmi
R/O 65 D/C, Gandhi Nagar, Jammu.
14.Surat Singh, age 68 years
S/O Late S. Sadha Singh
R/O 26-A/D, Gandhi Nagar, Jammu
15.Amrit Pal Kour, age 61 years
W/O Sh. Surat Singh
R/O 26-A/D, Gandhi Nagar, Jammu.
16.Chranpreet Singh, age 47 years
S/O S. Kuldeep Singh
R/O H. No. 96/97 Sector-10,
Nanak Nagar, Jammu.
17.Sumit Dusgotra, age 37 years
S/O Late Sh. Jagdish Kumar
R/O Lane No.9, Greater Kailash, Jammu.
18.Brij Mohan, age 64 years
S/O Late Sh. Krishan Lal
R/O H. No. 85/4, Mohalla Naryania
Kachi Chowani, Jammu.
19.Bhanu Partap Singh, age 33 years
S/O Late Smt. Hardeep Kour
R/O 748-A, Last Morh Gandhi Nagar, Jammu.
Through :- Mr. Rahul Pant, Senior Advocate with
Mr. Anirudh Sharma, Advocate.
v/s
1. Union Territory of Jammu & Kashmir through
Financial Commissioner/Additional Chief
Secretary to Government,
Home Department, Jammu & Kashmir Govt.
Civil Secretariat, Jammu/Srinagar.
2. Deputy Commissioner (District Magistrate)
Jammu.
.....Respondent(s)
Through :- Mrs. Monika Kohli, Senior AAG
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. All the petitioners, having been licensed as arms and ammunition dealers in terms of the Arms Act, 1959 read with Arms Rules, 1962, pleading 3 WP(C) No.1878/2023 identical and joint cause of action based on same facts and grounds, have moved this petition seeking following writs:
a. Certiorari quashing the Circular No.01-Home of 2023 dated 10.04.2023 issued by the Respondent No.1 whereby the directions have been issued to the District Magistrates that arms and ammunition dealers be not allowed to carry on their trades and transactions in absence of valid Arms License in Form VIII as prescribed under the Arms Rules, 2016 till the licensing process in favour of the intending prospective licensees is completed in terms of the Arms Rules, 2016 along with other directions contained in the said circular;
b. Certiorari quashing the Circular No.61-67/Arms/DMJ/23 dated 12.07.2023 issued by the Respondent No.2 in compliance to the Circular No. 01-Home of 2023 dated 10.04.2023 issued by the Respondent No.1; and c. Mandamus commanding the respondents to allow the petitioners to operate their licenses till such time, respondents complete the process of conversion of the licenses of the petitioners in pursuance to the process initiated in the year 2017 as per the recommendations of the District Magistrate, Jammu, made in the year 2017 vide his communication bearing File No.1423/DMJ/2016 dated 23.03.2017".
2. It has been pleaded that the petitioners, having been issued licenses as arms and ammunition dealers, are aggrieved of the Govt. Circular No. 01-Home of 2023 dated 10.04.2023 issued by the Home Department whereby the valid license holders of arms sale in Form XI and having been issued the Unique 4 WP(C) No.1878/2023 Identification Numbers (UINs) have been asked to halt their operations and they are also further aggrieved of Circular No.61-67/Arms/DMJ/23 dated 12.07.2023 issued by respondent no.2, whereby directing the petitioners to halt their operations. The petitioners have asserted that as per the Arms Act, 1959 and Arms Rules 1962, the dealers were being issued licenses in Forms XI, XII, XIII and XIV depending upon the nature of the weapons to be dealt with, as also the service to be provided by the dealer. The licenses in favour of the petitioners herein were issued on different dates and thereafter the same were being renewed after every three years as the license once issued was to remain valid for three years and thereafter it was required to be renewed further for a period of three years; that however, in the year 2018, Ministry of Home Affairs, Government of India issued a Notification providing for renewal of the licenses for a period of five years instead of three years; that in the year 2016, new Rules known as Arms Rules 2016 were framed by the Ministry of Home Affairs, Government of India framed under Section 44 of the Arms Act, 1959 superseding the Arms Rules 1962.
3. Petitioners pleaded next that after the enforcement of new set of Arms Rules 2016, every licensee was required to be registered with the Ministry of Home Affairs, Government of India and it was required to be issued Unique Identification Number (UIN); in terms of the Arms Rules 2016, it was specifically provided that the arms and ammunition dealers would be issued composite licenses in Form VIII for dealer license and for deposit of arms and ammunition, as prior to these rules, separate licenses were being issued for arms and ammunition dealers, for sale and keep and for repair; that the existing license holders in Form XI to XIV were required to submit an application in Form A-8 for arms license and in Form VIII by signing a declaration. 5 WP(C) No.1878/2023
4. It was claimed that the petitioners herein were already having the licenses, as such, they submitted their applications to District Magistrate Jammu for conversion of their licenses into Form VIII under the new arms rules and also complied with the requirements of the rules as prescribed in Form A-8; that the petitioners were issued UINs and they were permitted to carry on their activities but the licenses in Form VIII were not issued to them on one pretext or the other; that though the licenses in Form VIII were not issued in their favour, nonetheless, the existing licenses were renewed by the concerned District Magistrate from time to time; that the District Magistrate on receipt of the applications from the petitioners and having been satisfied with respect to the compliance of the conditions by the petitioners had recommended the cases of 56 licensees including the petitioners herein to the Government of Jammu & Kashmir, as the licenses in Form VIII have to be issued by the Government, vide communication dated 23.03.2017; that pursuant to the communication of the District Magistrate Jammu, all the petitioners were issued UINs. After coming into force of the Arms Rules 2016, National Database of Arms Licenses ('NDAL' for short) was established in the Ministry of Home Affairs, Government of India and all the licensees were registered there and issued the Unique Identification Numbers(UINs).
5. It has further been asserted by the petitioners that they had been permitted to up-date their licenses, however, the Government of Jammu & Kashmir in the Home Department through its Additional Chief Secretary, Home vide impugned circular dated 10.04.2023 issued instructions to the District Magistrates directing them that no arms and ammunition dealer be allowed to carry on trade/transactions till the licensing process in favour of the intending prospective licensees is completed in terms of the new rules. It has been alleged 6 WP(C) No.1878/2023 that vide impugned order dated 12.07.2023 issued by respondent-District Magistrate, the petitioners have been asked to halt their operations till they get valid licenses in Form VIII.
6. Pursuant to the notice, respondents filed objections asserting therein that the petitioners have raised disputed questions of facts which cannot be decided in a writ petition and that they cannot take recourse to the remedy under the writ jurisdiction and the petition is liable to be dismissed; that in order to obtain Arms And Ammunition Dealer License, an applicant is required to submit an application in Form A-8 accompanied by the required documents as prescribed in the Arms Rules, 2016 subject to satisfaction of certain other conditions with regard to facilities available of a strong room, undertaking with specific reference to the steps taken in connection with safe custody of the firearms and ammunition, including provision for access control, closed circuit television system, security guards, fire fighting devices, etc.; that the petitioners had been issued earlier licenses as per repealed Arms Rules of 1962, in absence of these conditions and therefore it becomes mandatory that all the above required formalities are obtained from the licensees who were in possession of the licenses granted under the repealed rule, for trade in arms and ammunition, as such, the District Magistrates had been requested to recommend the cases of such dealers after fulfilling all the formalities so that licenses in favour of such dealers can be issued on the prescribed format under new rules 2016.
7. It has been finally it was pleaded in the objections that the petitioners who had contended that they fulfilled the requirements contained in 2016 Rules, based on which they should be allowed to continue with their business activities, if that be the case the petitioners ought to submit their cases through the District Magistrates addressing the observations raised by the Home Department vide 7 WP(C) No.1878/2023 communication dated 20.06.2017 and 03.08.2018 so that their cases are processed as per new rules and in absence of a valid license under Arms Rules 2016, the petitioners cannot be allowed to operate as has been impressed upon in terms of the impugned circular/order.
8. Learned counsel for the petitioners submitted that the petitioners who were licensed dealers in terms of repealed rules of 2016 had fulfilled all the conditions which were required under the New 2016 Rules and that they had been registered under 'NDAL' and issued 'UINs', which cannot be issued without satisfaction of the requirements of the new rules. He has drawn the attention of this court towards the details of the dealers including the petitioners whose licenses have been extended even after the issuance of Rules of 2016 with their UINs. He has further argued that the plight of the petitioners can be well understood, from the fact that immediately after coming into force of the Arms Rules 2016, they had applied for conversion of their licenses /issuance of licenses in their favour in Form VIII by completing all the formalities prescribed, however, till date, neither their applications have been rejected nor the license have been issued in their favour and in the meantime they have been asked to shut down their businesses. He has drawn the attention of this court towards the fact that similar position arose in the arms manufacturers who had been issued license under the Arms Rules 1962 in Form XI and they had also applied for fresh licenses under the Arms Rules to the Ministry of Home Affairs, Government of India as the gun manufacturing licenses cannot be issued by the State Government and the Ministry have not been able to issue licenses for the reasons best known to them, nonetheless, they had allowed the gun manufacturers to continue with their gun manufacturing activity in pursuance to gun manufacturing licenses issued in their favour in terms of the repealed Rules 8 WP(C) No.1878/2023 of 1962 vide communication dated 19.12.2018; it has been submitted that there is no denying the fact, that as is clear from the communication of District Magistrate Jammu sent by him to the Government in the year 2017 that all the petitioners had applied for issuance of arms licenses in Form A-8 by completing all formalities and had recommended their cases for conversion of arms licenses in terms of the new rules as also for generation of UINs, however, their cases have been kept pending when they had already completed all the requirements and a duty has been cast upon the licensing authority under 'NDAL' and in terms of Schedule V, the timeline had been prescribed for various requirements to be fulfilled by the licensing authority. He has further argued that the petitioners had been made to suffer for the last five years. Finally, it was prayed by the learned counsel for the petitioners that the respondents be directed to issue licenses as per new rules in favour of the petitioners as they had completed all the formalities much earlier and till then the respondents be directed not to interfere with the business activities of the petitioners.
9. Learned Sr. AAG while appearing for the respondents argued that the petitioners had been issued licenses in terms of the repealed rules of 2016 and they want their licenses to be updated / renewed / issued afresh in terms of the new rules on the same terms and conditions, whereas, the fact of the matter is that as per the new rules of 2016, certain other conditions are required to be satisfied by such persons for obtaining licenses. She has further argued that fulfillment of the criteria set up under the new rules is sine qua non and prerequisite for issuance of the licenses. She has further submitted that the respondents shall not be averse to consider and grant licenses in favour of the petitioners in case they satisfy the criteria specified in the new rules. 9 WP(C) No.1878/2023
10. On a consideration of the pleadings and rival submissions made at the Bar by learned counsel for both the sides, it comes out that, in fact there is no dispute which requires determination by this court on legal parameters. The petitioners' case is that despite having satisfied all the conditions required under the new rules, they have not been issued/renewed the licenses of the dealership of arms and ammunition as per the new format VIII, provided in terms of the new Arms Rules 2016, despite the fact that their licenses even after coming into force of the new rules had been renewed by District Magistrate Jammu. The learned Sr. AAG also submits that the respondents are not averse to granting of the licenses in favour of the petitioners provided they satisfy the criteria fixed as per the new rules of 2016.
11. In this aforesaid backdrop of the matter, the respondents are directed to consider the plea raised by the petitioners for issuance of the arms/ammunition dealership in terms of the new rules as per Form VIII, provided they have completed all the formalities. The respondents shall consider the cases of the petitioners on 'case to case' basis, within a period of four weeks form the date a certified copy of this judgment is supplied to them for compliance. Meanwhile, the petitioners, subject to satisfaction of the requisite conditions, required under new Rules, be permitted to carry on their businesses.
12. The writ petition along with connected application(s) is thus disposed of.
(M A Chowdhary) Judge JAMMU 09.10.2023 Raj Kumar Whether the order is speaking: Yes Whether the order is reportable: Yes