Jammu & Kashmir High Court
Dharam Pal vs Union Of India (Uoi) And Ors. on 26 May, 1995
Equivalent citations: AIR1996J&K39, AIR 1996 JAMMU AND KASHMIR 39
ORDER S.M. Rizvi, J.
1. By medium of this writ petition, a direction is sought to be issued to the respondents to substitute the name of the petitioner in the Arms Licence Number 4/ix/80/F. No. 11020/55/75-GPA-ll(v) dated 20-9-1980, issued under Section 5 of Arms Act, read with Rule 51 of the Arms Rules, and allow him to exercise all the powers of licencee for the purpose of managing and owning Shiva Gun Factory, and to have physical possession of the premises along with all stores, workshop, equipments and other allied items.
2. In the petition, it is stated that the late Shri Dharindra Brahamchari invested 87.5% of the total capital for the running of Shiva Gun Factory, and for this purpose, a partnership deed was effected by him with one Dharam Chand. Dherindra Brahamchari is said to have become one of the licencees in the licence issued under the Arms Act and the Rules made thereunder, whose name also exists therein. He however, bequeathed his share to the petitioner in the said Gun Factory and for his purpose made a Will in favour of the petitioner on 8-6-1994. The Brahamchari on the following day died in an air accident.
3. In order to effectuate the will the petitioner moved a petition under the Probate and Letters of Administration Act 1959, before the learned District Judge, Jammu. The District Judge after following the procedure as established by law, has issued a certificate' of Probate with letter of administration in favour of the petitioner, holding him entitled to all the interests in the Shiva Gun Factory, Digiana, Jammu along with licence.
4. It is further stated that the partnership between Dharam Chand and late Braham-chari came to be executed on 23-1-1982, wherein inter alia it is provided that the licence shall be the property of the partnership business and that the death of the partner shall not operate as dissolution of the same and that the legal representative or heir of the deceased partner shall be substituted in his place, on the same terms and conditions.
5. It is submitted that on the basis of Will dated 8-6-1994 by the deceased and the probate with letter of Administration dated 9-11-1994, issued by the District Judge in favour of the petitioner, he is legally entitled to succeed to and step into the shoes of late Brahamchari, and inherit all the legal rights together with interests of the business of M/s Shiva Gun Factory and the licence. As the business activities for manufacture, sale etc. of the arms are governed under the Indian Arms Act and the rules made thereunder, it has become the legal and statutory obligation of the respondents No, 1, 2 and 5 to incorporate necessary changes in the licence by way of substitution incorporation of the name of the petitioner as licencce in place of late Dharindar Brahamchari.
6. The petitioner is stated to have approached the respondent No. 5 for taking necessary steps in this regard and has even made a representation to him in this behalf. Allegedly the respondent No. 5, refused to take any action in the matter, and instead directed him to approach the Divisional Commissioner, who has been assigned the functions of Nodel Officer by the State Government, after the said Factory was closed down by the authorities of the State Government.
7. It is also submitted that the respondents are under legal obligation to process the case of the petitioner and 'to substitute his name in the licence, and make him a co-licencee with Dharam Chand.
8. The respondent No. 1, Union of India has filed its counter, wherein it is admitted that Brahamchari died in air accident on 9-6-1994. It is stated that the petitioner has obtained a probate with letter of administration from the District Judge on the basis of a Will allegedly executed by the deceased in his favour, a hush hush manner. Allegedly the District Judge has not applied his mind to the facts and law while issuing the probate and letter of administration. The said probate has been challenged by the heirs of the deceased. It is stated that the licence in Form IV for manufacture of arms and ammunition is granted/renewed in accordance with the provisions of Sections 5, 13, Hand 15 of the Arms Act 1959, and Rules 51 and 54 of the Arms Rules 1962.
9. It is further stated in the counter that merely being a legal heir of the deceased licencee, it does not ipso facto entitled him to grant of licence or substitution of his name in the licence. Allegedly, the petitioner has not submitted any application in the prescribed form to the Central Government, which is the licencing authority for consideration of the matter. It is submitted that the petitioner shall have no right or interest in the gun manufacturing licence held by late Brahamchari till he gets his name incorporated in the said licence from the competent authority.
10. The respondents 2 to 5, have also filed a counter wherein it is stated that the late Brahamchari was a co-licencee with Dharam Chand in the licence in question. It is admitted that Brahamchari died in air accident on 9-6-1994. It is further stated that the petitioner has propounded a Will allegedly executed by the late Brahamchari in his favour and on the basis of the same has obtained a probate and letter of administration from the District Judge Jammu. Alllegedly, the District Judge, did not fulfil all the legal formalities before issuing of probate. It is also stated that vide Government order No. 722-GDA of 1994 dated 10-8-1994, the Divisional Commissioner, Jammu was appointed as Nodel Officer for the purpose of obtaining factual details and documents in respect of all the properties held by various trustees, established by the late Brahamchari in the State of Jammu and Kashmir.
11. The counter further states that in order to preserve the property of M/s. Shiva Gun Factory, the District Magistrate, Jammu has constituted a committee of two Additional District Magistrates to prepare a complete inventory of the arms and ammunition, stocks and accounts of receipts and other documents lying in the factory. It is submitted that the licence for manufacture of arms is granted in accordance with the provisions of Section 5 of the Indian Arms Act read with Rule 51 of the Arms Rules. It is stated that even where the name of an admitted legal heir of a licencee is to be included in the licence, he has to submit an application in form (A) to the Authority under the Arms Act and the same is to be processed at various levels.
12. It is, however, admitted in the counter, that the late Brahamchari was a co-licencee with Dharam Chand and had a share of 87 1/2% in the Shiv Gun Factory. It is also stated that the genuiness of the Will in question and the probate issued by the District Judge is under challenge before the said court. Allegedly the District Judge has stayed the operation of probate.
13. It is further submitted that the respondent No. 5, was not competent to take any action on the application of the petitioner unless so directed by the Secretary to Government of India, Ministry of Home Affairs. It is stated that the petitioner has yet to make an application to the competent authority for grant of licence or for substituting his name in the licence. Allegedly, the petitioner shall have no right or interest in the Gun manufacturing licence held by late Brahamchari till his name is included in the licence by the comeptent authority.
14. I have heard the learned counsel for the parties and have also gone through the file.
15. Before dealing with the merits of the case, it may be stated at the very outset that with the consent of the learned counsel for the parties, I am disposing of the writ petition itself. The pleadings are already complete in the case and therefore, instead of taking up the stay matter for consideration and disposal, it would be just and proper to decide the main petition. No doubt the Division Bench had, while disposing of the LPA, against the interim stay dated 29-11-1994, desired to decide the said matter on or before 8th of May, 1995, but I thought it proper to decide the main petition on its merits. The State of J. & K. as also the Union of Inida, the respondents in the petition, have filed their reply affidavits, because the petition was admitted to hearing at the very outset, when it was taken up for consideration. Nothing more therefore is required to be done for taking up the case for hearing.
16. It would be however pertinent to mention here that for the first time the case was partly heard on 10-4-1994. When it was again taken up for final hearing on 17-4-1995, on that day Mr. J.P. Singh appeared for one Dharam Chand for the first time. He submitted that he has filed an application for intervenation on behalf of said Dharam Chand, which the Registry has not listed before the Court for consideration. Mr. D.C. Raina learned counsel for the petitioner however, submitted that he has not received any copy of such application and therefore, the case should not be adjourned on that count. According to him Mr. Singh wanted to protract the hearing of the case.
17. After seeking some clarification from Mr. Singh about the right of Dharam Chand in the matter, I thought it just and proper to hear him as an intervener, though his application for intervention was not before the court. That was done because Dharam Chand is admittedly having some share in the M/s. Shiva Gun Factory. He is a partner in the said concern and a co-licencee with late Shri Brahamchari in the licence for gun manufacturing.
18. Mr. Singh argued that Dharam Chand was the original licencee and it was in 1982 that late Brahamchari became his partner in the concern, and a partnership deed was effected in this regard. According to him Dharam Chand and the late Brahamchari became co-licencees for the manufacture of guns of M/s. Shiva Gun Factory in terms of the said partnerhip deed. He argued that with the death of the late Brahamchari, Dharam Chand has become the sole-licencee of the M/s. Shiva Gun Factory.
19. I have given my thoughtful consideration to the arguments of Mr. Singh. From the perusal of partnership deed entered into between Dharam Chand and late Brahamchari on 23-1-1982, it appears that Dharam Chand had entered into a Finance agreement with the late Brahamchari on 4-7-1968 in connection with the business relating to manufacture of guns on the basis of his licence. On the basis of said agreement, the Government of India has admitted in his licence the late Brahamchari as a partner. In the partnership deed it is provided that the share of the parties in profit and loss shall be 12 1/2% for Dharam Chand and 87 1/2% for Brahamchari. As regards licence it is provided " that if shall be the property of the partnership business. As regards the death of a party, it is provided therein that the death of a partner shall not operate as a dissolution of the partnership. The legal representative or heir of the deceased partner shall be substituted in his place in that eventuality on the same terms and conditions of the deed.
20. Keeping in view the terms and conditions as incorporated in the partnership deed with regard to the death of a partner, and their share in the concern etc. it appears that the argument of Mr. Singh is without any force. He is not correct in saying that Dharam Chand has become the sole licencee for the manfacture of guns of M/s. Shiva Gun Factory after the death of late Brahamchari. As a matter of fact in terms of the partnership deed, the death of a partner is not going to dissolve the partnership. Similarly in case of death of a partner, the legal representatives , for heir of the deceased partner is to be substituted in his place.
21. Amittedly the partnership has not been dissolved so far by its partners. It is very much in existence and survives for all practical purposes interms of the deed. If there is any legal repreentative or heir of the deceased Brahamchari or if any one is declared as such by a competent court, he shall succeed him to the extent of his share to the legacy left behind by him.
22. It is however manifest that Dharam Chand is one of the partners in the Shiva Gun Factory and a co-licencee for the manufacture of guns of the said factory. He may or may not be arrayed as a party in the petition, the court has to protect his share in the said concern. The copies of partnership deed as also the licence are on the file, and therefore, his rights in the concern shall have to be legally safe guarded to the extent of his share as given herein. The share of Dharam Chand is specified in the partnership deed, and the petitioner has not denied the same in his petition and therefore, his rights are not in any way adversely effected in these proceedings. When his share is not challenged by the petitioner, why should be made him a party.
23. In these circumstances the decision of this petition need not be kept in abeyance merely because Dharam Chand has allegedly file an application for being arrayed as a party respondent. Moreover, without being arrayed as a party respondent, I have heard his counsel at great length as an intervener, and the court will certainly protect his interests in the business concern to the extent of his share.
24. Now coming to the merits of the case, admittedly late Brahamchari was a partner in the M/ s. Shiva Gun Factory as is reflected in the partnership deed. He was also a co-licencee for the manufacture of guns of the said factory. There is no doubt that he has died without leaving any issue behind him. He had not married during his life time and therefore, the question of leaving any issue behind him does not arise. If he has however, left any heirs behind him, they may succeed to the property left behind by him in accordance with law. However, if the deceased Brahamchari has executed any Will in favour of the petitioner for any portion of his property, it also cannot be brushed aside.
25. The petitioner in clear terms claims to be the person in whose favour the deceased Brahamchari executed a will on 8-6-1994, when he was admittedly alive, and admittedly that was his last will. He met an accident on 9-6-1994, and died as a result of that accident. In the Will the deceased has bequeathed all his rights and interest in respect of M/s. Shiva Gun Factory, its assets etc. including the licence in favour of the petitioner. The petitioner, therefore, moved a petition before the District Judge, Jammu under the Probate and Letters of Administration Act 1959, to get all the rights and interests pursuant to the Will executed by the deceased in respect of M/s. Shiva Gun Factory and its assets etc. The learned District Judge, after taking all necessary steps as prescribed in the Act including publication of proclamation and calling of objections to the same, issued a certificate of probate with letter of administration on 9-11-1994, in favour of the petitioner, holding him entitled to all interests in Shiva Gun Factory, Digiana, and also the licence which the late Brahamchari held.
26. After obtaining the probate with letter of administration, the petitioner made a . representation to the District Magistrate, Jammu to get his name substituted in the licence in place of late Brahamchari and hand over to him the Shiva Gun Factory and its assets, to enable him to run the business. As the Government of J&K had appointed the Divisional Commissioner as the Nodel Officer and the District Magistrate had sealed the said factory, the did not allow the petitioner to do anything.
27. The case of the State Government and its functionaries, as reflected in the counter filed by them, is that the District Judge has not issued the probate and letter of administration in accordance with law. They have admitted to have sealed the factory and ppepared an inventory of the things lying there, in order to preserve the same. According to them it is the central Government which is competent to substitute the name of the petitioner in the licence, in place of the deceased Brahamchari. The case of the Union of India, as reflected in their counter, is that the probate and letter of administration has 'been issued by the District Judge in favour of the petitioner without application of mind. It is also stated that the petitioner has not made any application to the licencing authority for substituting his name in place of the deceased. Moreover, according to them the issuing of probate and letter of administration in favour of the petitioner is not itself sufficient to entitle him to be a licencee for the manufacture of guns unless other formalities under law are also fulfilled.
28. I have given my serious consideration to the rival contentions of the parties as raised by them in their pleadings as also during the course of arguments.
29. Admittedly, the learned District Judge, Jammu has issued a probate and letter of administration in favour of the petitioner with regard to the rights and interests of late Brahamchari in the Shiva Gun Factory and its licence. So long as the said probate and letter of administration is in force, this Court in its writ jurisdiction cannot throw it to winds. It has been issued by a competent authority in accordance with law and shall have to be presumed as a legal command for all intents and purposes in terms of the Will.
30. Allegedly the said probate and letter of administration has been challenged before the same District Judge on various grounds and its operation also stayed. It is also alleged that a revision was also filed in High Court against it and its operation stayed.
31. The learned counsel for the parties however, admitted during the course of arguments that the order of the learned District Judge staying the probate was stayed by the High Court in a revision petition.
32. After the case was reserved for judgment, the learned counsel for the petitioner appeared before me, and filed an application to place on record the copy of judgment of the learned District Judge dated 25-4-1995, whereunder he has dismissed the application of Dharam Chand for revocation of letter of administration, issued in favour of the petitioner on 2-11-1994. He was allowed to produce the copy of the judgment which is placed on record. The learned District Judge appears to have set at naught the controversy that the probate and letter of administration was not issued in accordance with law. He has upheld the correctness of the probate and letter of administration issued by him in favour of the petitioner. In his judgment dated 25-4-1995, it has been held that Dharam Chand has no locus standi to seek revocation of the probate and fetter of administration in question. It has also been held by him in the said judgment what by issuing a probate and letter of administration in favour of the petitioner, the petitioner can claim title to the property of the testator.
33. In this background of the case, I would now deal with the legal position, as to whether the name of the petitioner can be substituted in place of the deceased Braham-chari in the licence for the manufacture of guns in the Shiva Gun Factory, and whether he is entitled to the property of the testator interms of the probate and letter of administration issued by District Judge in his favour.
34. The learned counsel for the parties submitted that admittedly the issuance of licence for manufacture of guns is governed by Section 5 of the Indian Arms Act and Rule 51 of the Arms Rules of 1962.
35. I have throughly examined the Indian Arms Act 1959 and the Arms Rules of 1962. Section 5 of the Act is reporduced below:
"5. Licence for manufacture, sale, etc. of arms ammunition:--
l. 'No person shall:
(a) manufacture, sell, transfer, convert, repair, test or prove or
(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof, any firearm or any other arms of such class or description as may be prescribed or any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under:
(2) Notwithstanding anything contained in sub-section (1) a person may, without holding a licence in this behalf, sell or transfer any arms or ammunition which he lawfully possesses for his own private use to another person who is entitled by virtue of this Act to have or is not prohibited by this Act such other law from having in his possession such arms or ammunition:
Provided that no firearm or ammunition in respect of which a licence is required under Section 3 and no arms in respect of which a licence is required under Section 4 shall be sold or transferred by any person unless.
(a) he has informed in writing the district magistrate having jurisdiction or the officer in charge of the nearest police station of his intention to sell or transfer such firarms, ammunition or other arms and the name and address of the person to whom he intends to sell or transfer such firearms, ammunition or the other arms, and
(b) a period of not less than forty five days has expired after the giving of such information."
No doubt in terim of Section 5, no person can manufacture, sell, transfer, convert, repair, test or prove any firearm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of the Act and the rules made thereunder. Section 13 of the Arms Act deals with the matter of grant of licences. For the sake of facility Section 13 of the Act is also reproduced as under:--
13. Grant of licences: (1) An application for the grant of licence under Chapter II shall be made to the licensing authority and shall be in such form, contain such particulars and be accompanied by such fee, if any, as may be prescribed.
(2) On receipt of an application, the licencing authority shall call for the report of the officer in charge of the nearest police station on that application and such officer shall send his report within the prescribed time.
2-A) The licensing authority, after such inquiry if any, as it may consider necessary and after considering the report received under sub-section (2) shall, subject to the other provisions of this Chapter, by order in writing either grant the licence or refuse to grant the same provided that where the officer in charge of the nearest police station does not send his report on the application within the prescribed time, the licensing authority may, if it deems fit, make such order, after the expiry of the prescribed time, without further waiting for that report.
3. The licensing authority shall grant;
(a) a licence under Section 3 where the licence is required.
(i) by a citizen of India in respect of a smooth bore gune having a barrel of not less than twenty inches in length to be used for protection or sport, or in respect of a muzzle loading gun to be used for bona fide crop protection; provided that where having regard to the circumstances of any case, the licensing authority as satisfied that a muzzle loading gun will not be sufficient may grant a licence in respect of such other smooth bore gun as aforesaid for such protection, or
(ii) in respect of a point 22 bore rifle or an air rifle to be used for target practice by a member of a rifle club or rifle association licensed or recognized by the Central Govt.;
(b) a licence under Section 3 in any other case or a licence under Section 4, Sections, Section 6, Section 10 or Section 12, if the licensing authority is satisfied that the person by whom the licence is required has a good reason for obtaining the same.
Section 17 of the Act deals with variation, suspension and revocation of licences. For the sake of facility, it is also reproduced as under:--
17. Variation, suspension and revocation of licences-
(i) the licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose, require the licence-holder by notice in writing to deliver up the licence to ti within such time as may be specified in the notice.
2. The licensing - authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.
(a) if the licensing authority is satisfied that the holder of the licence is prohibited by this Act or by any other law for the time being in force, from acquiring, "having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this Act; or
(b) if the licensing authority deems it necessary for the security of public peace or for public safety to suspend or provoke the licence; or
(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for; or
(d) if any of the conditions of the licence has been contravened; or
(e) If the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver up the licence.
4. The licensing authority may also revoke a licence on the application of the holder thereof.
5. Where the licensing authority makes an order varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefore, and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.
(6) The authority to whom the licensing authority is subordinate may be order in writing suspect or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall as far as may be, apply in relation to the suspension or revocation of a licecne by such authority.
(7) A court convicting the holder of a licence of any offence under this Act or the rules made thereunder may also suspend or revoke the licence.
Provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.
(8) An order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the High Court when exercising its powers or revision.
(9) the Central Government may, by order in the official gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licence granted under this Act throughout India or any part thereof.
(10) On the suspension or revocation of a licence under this section the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked of to such other authority as may be specified in this behalf in the order of suspension or revocation.
Rule 51 01 the Arms Rules 1962 is also reproduced below for the sake of facility:
51. Application for licence -- Every application for the grant of a licence under these rules-
(a) shall be submitted in form 'A'
(b) may be presented by the applicant in person or sent through the medium of post office or otherwise, to the licensing authority, as far as possible, having jurisdiction in respect of the place where he ordinarily resides or has his occupations,
(c) shall contain all such information as is necessary for the consideration of the application, and in particular-
(i) where the application is for a licence for the acquisition, possession and carrying of arms and ammunition for crop-protection, shall specify details of the land and cultivation requiring protection and area within which the arms or ammunition are required to be carried.
(ii) where the application is for a licence for import or for transport or for export and re-import, or for import, transport and reexport, of arms or ammunition, shall specify the place of destination, the route the time likely to be occupied in the journey and the quantity, description and price of each kind of arms or ammunition in respect of which the licence is required and the purpose for which they are intended.
(d) where the grant of licence requires a certificate of no objection from some other authority as provided in Rule 50, shall state whether such certificate has been obtained and, if so shall be supported by evidence thereof;
(e) where an application is for the grant of licence in Form II, Form HI, Form III-A, Form V, or Form VI, from a person other than a bona fide tourist as defined in Section 101(B) of the Act it shall be accompanied by two passport size copies of the latest photograph of the applicant.
Provided that -
(i) an application by a member of the armed forces of the Union shall be made through his commanding officer to the licensing authority having officer to the licensing authority having jurisdiction in respect of the place to which he is for the time being posted; and
(ii) the licensing authority may, in accord-ance with the instructions issued by the State Government in respect of all or any class of firearms require the personal attendance of the applicant before granting of renewing the licence applied for.
Rule 54 deals with renewal of licence and is reproduced below:--
54. Renewal of licences-- (1) Every licence may at its expiration and subject to the same conditions (if any) as to the grant thereof, be renewed by the authority mentioned in schedule II as renewing authority.
Provided that the licence so renewed may be signed in the appropriate column of the licence by such officer as may be specially empowered in this behalf of the State Government under Rule 4.
(2) The authority issuing a licence shall ordinarily be responsible for watching" all future renewals of the licence. Where alicence is renewed by an authority other than the authority who granted it, the former shall forthwith inform the latter of the fact of renewal and the period for which such renewal is valid. The applicant for the renewal of a licence under this rule shall always be required to state his permanent residence, and, if he notices a change in his permanent residence to the district in which the renewal is sought, the licensing authority of such district shall henceforward become responsible for watching all future renewals of his licence and shall inform the original issuing authority accordingly. The procedure shall be repeated on each subsequent occasion of renewal of the licence, the necessary intimation being sent by the renewing authority to the original issuing authority or to the authority who last renewed the licence on a permanent change of residence, as the case may be.
(3) An application for renewal of a licence for arms or ammunition deposited under sub-rule (1) of Rule 47 may be made by the depositor or where it is not practicable to make the application direct, through the dealer or any other person authorised by him in this behalf while the arms or ammunition continue to be so deposited.
(a) The licensing authority may consider an application for renewal of a licence, if the period between the date of its expiry and the date of application is not, in his opinion, unduly long with the regard to the circumstances of the case, and all renewal fees for the intervening period are paid; otherwise, the application may be treated as one for grant of a fresh licence.
From the perusal of Section 13, it is clear that for grant of licence, an application is to be made to the licensing authority and the authority and the authority may by order in writing either grant the licence or refuse to grant the same.
36. The perusal of Section 17 shows that the licensing authority may vary the conditions subject to which a licence has been granted, or it may suspend or revoke a licence.
37. The perusal of Rule 51 shows that every application for the grant of a licence under the rule is to be submitted in form-A. It is to be presented to the licensing authority and shall contain all such information as is necessary for the consideration of the application.
38. The perusal of Rule 54 shows that every licence at its expiration may be renewed by the authority concerned.
39. The conjoint and close reading of Sections 5, 13 and 17 shows that only a licence holder can manufacture, sell, transfer ....... any firearm, and for obtaining such licence an application is to be made to the licensing authority, and also that the conditions thereof can be varied by the licensing authority, who also has the power to suspend and revoke the same. These sections do not say anything about the successor-in-interest of a licence holder, when the licence holder died. I have not been able to get any assistance from these sections as to what is to be done when a licence-holder or a co-licencee dies leaving behind an heir or a legal representative. They speak of fresh licences and for making of any variations in the conditions of a licence or its suspension and revocation. Nothing is said of such like a case as is presently at my hand. In the instan case the deceased was admittedly a licence holder and a co-licencee with the surviving partner, and the said deceased has bequeathed his rights and interests as a whole to the petitioner, not only in respect of the Gun manufacturing factory but also in its licence, so far as his share is concerned. As a matter of fact the learned counsel for the respondents could not give a convincing reply when this question was put to them by the Court during the course of arguments. They only submitted that even an heir of a deceased licencee has to apply to the licensing authority for substituting his name in the licence and the same procedure is to be followed as is done for grant of fresh licence. They could not however, show me anything from the Act or the rules made thereunder as to what procedure is to be followed in case of death of a licencee.
40. Mr. Gupta, representing Union _of India, however, referred me to some instructions issued by Government of India (Ministry of Home Affairs) under its No. 21/5/71-GPA 11, dated 27-3-1971, which also forms an annexure to his counter. For the sake of facility the circular / instructions is reproduced below:--
"Government of India, Ministry of Home Affairs.
To All State Governments, All Union Territory Administrations, Advisor to the Government of Assam, Shilong New Delhi-1, the 27th of March, 1971/6 Chaitra 1893.
Sub; Arms Act and Rule -- Manufacture of arms and ammunition in the private sector-policy regarding admission of partners in the licensed unit. Sir, I am directed to refer to this Ministry's letter No. 21/62/66. Police IV, dated the 16th Feb, 1967, on the subject and to say that according to the instructions contained therein, only the son (s) of an existing manufacture or a partner in a licensed firm can be admitted as additional partner (s) during the life time of the latter. Requests have, however, been received from such individuals for admission of some other relation (e.g. son-in-law, etc) as additional partner on the ground that they have no son (s).
2. The basic police underlying the instructions issued in the past on the subject was to regulate the entry of other persons in the existing licensed units so as to safeguard the legitimate interest of the successor-members of the family of the existing manufatures and to prevent mala fide trading in such licences or their transfer to outsiders through backdoor methods. The Government of India have considered the requests mentined in para one above in the light of this basic policy and have accordingly decided that in the case of an existing manufacturer or a surviving partner of a licensed unit, besides his son (s) his wife or wives may also be admitted as additional partners. It has also further been decided that where a manufacturer or a partner of the firm has or had no son (s) or wife, only his legal succeeor (s) would be entitled to be admitted as partner (s) or additional partner (s) as the case may be. The instructions contained in this Ministry's letter No. 21/02/66-P. IV. dated the 16th of February, 1967 should be considered to have been modified to the above extent. Yours faithfully, Athorised for issue.
M. M. Kapur, Section Officer.
Sd/ -
(T. V. Ramayan) Dy. Secy to the Govt.
of India.
41. The perusal of this circular shows that the Government of India also has faced some problems regarding, admission of partners and sons of existing manufacturers as also their sons-in-law etc. To overcome to the said difficulties they have issued instructions from time to time. In the present circular it has been decided that where a manufacturer or a partner of the firm has or had no son (s) or wife, only his legal successor (s) would be entitled to be admitted as partners (s) or additional partner (s), as the came may be.
42. The very issuance of instructions goes to show that even in presence of Indian Arms Act and the rules made thereunder, the Government of India felt a necessity to find a way to overcome the difficulties in particular cases. This is but natural that some contingencies do arise during the course of time and some way is to be found out, moreso, ' when the Act of the rules made thereunder are silent. In any case it is now established that the Indian Arms and the rules made thereunder are silent in some respects and the Government of India, therefore, has issued instructions to make the running of manufacturing units smooth and convenient in case of death of a licence holder or a partner. So far as Sections 5, 13 and 17 are concerned, they do not cover all the eventualities and no bar is contained therein for admitting the legal successor of a 'deceased licence-holder. As a matter of fact the instructions referred to above, have cleared the way for the legal successors of a deceased-licence-holder to be admitted as partners or additional partners in an existing licence. In the light of the instructions, it would be clear that the petitioner being the success"or-in-interest of late Swami Dharindra Brahamchari, he has every right of getting his name substituted in the licence, in his place.
43. So far as the Arms Rules of 1962 are concerned, there too nothing is said about a contingency when a licence-holder dies without leaving behind any issue or wife. Rule 51 only given the procedure for grant of fresh licences. It does not say anything about the successors-in-interest of a licence-holder when he dies. The silence of Act and the rules made there under about a matter should not make the very manufacturing units idle. After all the establishment of a manufacturing unit is a stupendous task and involves the national wealth, besides the employment of thousands and thousands of people in it. Moreover, it visits the successors-in-interest of the deceased-licence-holders with all civil consequences, and affects their fundamental rights as enshrined in the Constitution. Their statutory and legal rights cannot be jeopardised by any authority. They have a right to conduct their business which is guaranteed under Article 19 of the Constitution. The authorities of the State cannot be permitted to infringe any such right. Besides, that, even the State exchequer is effected by the closure of such units as the recovery of income-tax arid sales tax is effected. It is not in the public interest also to close such units which give revenue to the State and employment to people. The only object of licencing such units is to obviate its misuse. For that the Arms Act and the rules made thereunder provide sufficient safeguards if implemented by the functionaries of the State with dedication and sense of duty.
44. The petitioner's right on the basis of 'Will' executed in his favour by the deceased and consequent thereupon issuance of probate and letter of administration by the Court of competent jurisdiction, entitles him to consequential relief i.e. right to administer the estate of the deceased to the extent the deceased had a fight in the Industrial concern, namely, Shiva Gun Factory. The State of J and K, or its functionaries do not fall within the purview of either the necessary or proper party, and therefore, cannot claim to have a 'just cause', as defined under section 50 of the Probate and Administration Act, 1977. As long as the 'Will' followed by Probate and Letter of Administration holds the fieldy the respondent-State, particularly, Nodel Officer and District Magistrate, have no right to question the validity of the same. As a matter of fact they have no locus stand! to question the letter of administration or probate. It is a matter inter se between the petitioner and the intervener" Dharam Chand. The said inter-v'ener also has no right to call in question the right of the petitioner to succeed to the estate of i he deceased. He is bound by the terms and conditions of the partnership deed which continues to hold its field under law. Therefore, the intervener Dharam Chand also has no locus standi at this stage.
45. So far as the right to operate the licence is concerned, the licence being the property of the partnership business, the first party to the partnership deed (i.e. Dharam Chand) cannot challenge the right of the second party to the same. It is thus established that what ever rights the deceased had in the property and the licence in question, the same have devolved upon the petitioner. In terms of the 'Will' followed by probate and letter of administration in favour of the petitioner, there remains no doubt that he'has succeeded to the estate of the deceased and has stepped into his shoes, and therefore, the respondents have rio right to deny or deprive him of his legitimate right to hold the property in question.
46. Now as regards the order dated 8-10-1994 passed by the respondent-District Magistrate, it is not referable to any of the provisions under the Indian Arms Act or the rules made thereunder. This has been even conceded by Mr. Kotwal appearing for the said respondent. The purport of the said order as appears from its perusal was to prepare a complete inventory of the machinery and the arms and ammunition stored in the factory. The said job has since been done by two Additional District Magistrates, who were deputed for the said purpose. After preparation of the inventory, the purpose of the said order has been fulfilled, and the said respondents have no right to hold the said property indefinitely depriving its rightful owners their right to hold the same.
47. It may be worthwhile to mention that in the order dated 8-10-1994, it is stated by the District Magistrate-respondent, that some persons under suspicious circumstances entered into the premises of M/s. Shiva Gun Factory, on 6-10-1994, and even replaced some locks, and therefore, he has reason to believe that some guns manufactured and stored within the factory could have been taken out and disposed of unauthorisedly and in contravention of the Arms Act and the rules made thereunder.
48. The said respondent has not stated in his counter as to what action was taken by him for making an investigation into the matter. Whether he had got any FIR registered with the concerned police to bring the culprits to book or it was just a lame excuse to seal the factory. It appears that no FIR was registered and the respondents 2 to 5, only wanted to deprive the rightful owners from having access to the premises of the factory. They have kept the factory idle since 8-10-1994 and, therefore, they may be liable for damages for the same.
49. The respondent-District Magistrate has taken a clear stand in his reply affidavit that he has no competence to grant the licence for manufacture of arms or substitute the petitioner's name in place of late Brahamchari in the licence. It is stated that he could take no action on the application of the petitioner unless so directed by the Secretary to Government of India, Ministry of Home Affairs.
50. If the District Magistrate was aware of the legal position, then why did he continue with the closure of the factory causing colossal loss to its rightful owners, moreso, after a probate and letter of administration was issued in favour of the petitioner and there was also the surviving partner. Accordingly, he has no power to close the factory in such circumstances to the detriment of its rightful owners, who had approached him to allow them to enter into its premises for running of the same.
51. Mr. Kotwal appearing for respondents 2 to 5, has admitted that the said respondents have no power either under the Indian Arms Act or the rules made thereunder to close the factory. According to him, however, it was done for the preservation of property and to obviate misuse of fire-arms lying in the factory.
52. The respondent No. 1 has taken the stand in his counter that even a successor-in-interest of a deceased-licensee is not ipso facto entitled to operate the licence unless he applies for the same to the licencing authority. As already stated no such bar is imposed in the Arms Act or the rules made thereunder. In terms of the instructions issued by the Government of India, as already referred to above, a legal successor would be entitled to be admitted as partner or additional partner in the existing licensed unit, when a manufacturer or a partner of the firm has/had no son or wife. It appears, therefore, that there is absolutely no legal impediment or bar for admitting a successor-in-interest of a deceased-licencee in the existing licensed unit.
53. If there is any requirement of filing an application for admitting the successors-in-interest in the existing licensed unit, it is just a formality. The petitioner has already filed an application to the District Magistrate concerned in this behalf, copy whereof has been annexed with the petition and the same could be submitted by him to the licencing authority for doing the needful. Not only that, the petitioner has even placed on the file a certificate of the Superintendent of Police concerned as to his good moral character. The petitioner has also placed on the file the letters addressed to him by the Tax Recovering Officer (Income-tax), Jammu, in his capacity as a partner in the Shiva Gun Factory, asking him to pay the arrears amounting to Rupees 21,25,917/-. He has also received a letter from the Assessing Authority, Sales Tax Circle-C, Jammu asking him to deposit arrears amounting to Rs. 71,97,450.90.
54. In these circumstances of the case, I allow the writ petition and direct the respondent No. 1, to incorporate/substitute the name of the petitioner in the Arms Licence No. 4/ix/80/F No. 11020/55/75/-GPA-l11(V), dated 20-9-1980, issued under section 5 of the Indian Arms Act, read with Rule 51 of . the Arms Rules, in place of late Dharindra Brahamchari, and to hold the same with all consequential benefits. The respondents are also directed to allow the petitioner to exercise all the powers of licencee for the purpose of managing and owning Shiva Gun Factory to the extent of the share of the late Dharindra Brahamchari. They shall allow the petitioner to have physical possession of the premises of the said factory along with all stores, workshop, equipments and all other allied items to the same extent, in terms of the partnership deed, entered into between Dharam Chand and late Dharindra Brahamchari.
55. In the peculiar circumstances of the case, I pass no order as to costs.