Jammu & Kashmir High Court
Union Of India (Uoi), Bomrah Gun Works ... vs Khurmi Gun Works, Amar Workshop, Bomrah ... on 30 October, 2002
Equivalent citations: 2003(2)JKJ101
JUDGMENT V.K. Jhanji, J.
1. This shall dispose of all the abovementioned six Letter Patent Appeals.
2. All the Letter Patent Appeals arise out of the writ petitions filed by the persons manufacturing guns, cartridges, gun powder etc. The licence to manufacture arms etc. was granted by the Govt. of India on the recommendation of the State Govt. permitting them to manufacture certain quantity of guns, cartridges, gun powder etc. per year. The Govt. of India has been issuing policy regarding issuance of arms licence from time to time. The first policy in this regard is the Industrial Policy Resolution of 1956. The said policy was noticed by the Supreme Court of India in Ranjit Singh v. Union of India, AIR 1981 SC 461, wherein it was observed as under:-
"Purporting to implement the Industrial Policy Resolution, the Government issued instructions that the quota fixed should be such that the market is not flooded with arms and ammunition. No Objection can be raised to that. It is as it should be. But with that primary consideration defining the outer limits there are other factors which govern the fixation of the actual quota. There is the production capacity of the factory, the quality of guns produced and the economic viability of the unit. There is need to remember that the manufacture of arms has been the business of some of these units for several years and the Industrial Policy Resolution contains a specific commitment to permit the continuance of those factories. On the other side, the Government is entitled to take into consdideration the requirements of current administrative policy pertinent to the maintenance of law and order and internal security."
3. The Government of India for laying down the criterion regarding issuance of licence to manufacturers of arms and ammunition issued instructions dated 8-3-1957 to all the States and Administrators informing them that till final decision is taken in the matter, the Government of India will have no objection to the continuance of manufacture of arms and ammunition by the existing units in the private sector, who were already licenced for such manufacture and are already doing business provided that:--
(a) revolvers, pistols, refilled weapons and ammunition used in such weapons are not to be manufactured, and
(b) the strictest security precautions are observed so as to prevent any diversion of the products of such factories to unauthorised hands.
(c) the operations of such units should be strictly restricted to the items already manufactured by them.
(d) no expansion of their activity through widening the range of their productions and/or increasing the capacity of the items already produced by them is to be undertaken without the prior sanction of the Government of India; and
(e) the weapons manufactured should be proof tested as per approved regulations, as communicated to the State Government vide letter No. 9/44/55-P, IV dated 13-2-1956.
4. The 1956 Instructions further provided that no licence for the manufacture of arms and ammunition will be granted. The State Governments were requested that at the time of renewing licences for private manufacturers a suitable quota should be fixed by the State Government for the items to be manufactured, so that the market is not flooded with such arms and ammunition.
5. Pursuant to instructions issued by the Government of India, the State Government in the case of all the manufacturers of arms and ammunition reduced the quota, which led to filing of two writ petitions (i.e. W.P. No. 419/83 and 420/83) in the Supreme Court of India under Article 32 of the Constitution of India. On behalf of Government, it was urged before the Hon'ble Supreme Court of India that there is no fundamental right under Article 19(1)(g) of the Constitution of India to carry on the-manufacture of arms. The Supreme Court, however, observed that procedure for grant of quota is provided in the Statute. The other contention on behalf of the Govt. of India that petitioners are guilty of laches did not find favour and the Supreme Court observed that the licences are granted for specific period, with the right of renewal. Each renewal further authorises right to the manufacturer to avail the quota fixed for the prescribed period, which was liable to be revised from time to time. Accordingly, writ petitions were allowed and the Supreme Court directed the Govt. of India to reconsider the manufacturing quota fixed in case of each petitioner after allowing reasonable period to said petitioners to produce any document as they may chose to produce before it.
6. After the decision of the Supreme Court in Ranjit Singh v. Union of India (Supra), the Govt. of India issued another Instruction dated 11-12-1985 informing all the Chief Secretaries of all the States/U.T. Administrations, that the Government of India have been receiving number of applications from the existing licenced manufacturers to permit enhancement/restoration/revision or refixation etc. of gun manufacturing quota, either on the ground of economic viability, production capacity, quality of guns produced etc. or because their original licenced quota was at some point of time reduced or refixed at a lower level. The Government of India, after taking comprehensive view of the requirements of maintenance of law and order, internal security, existing capacity of the Ordnance Factories to manufacture arms for civilian use as well as the availability of firearms through imports, in public interest decided that as a matter of policy no request for enhancement or restoration or revision or refixation of quota for manufacture of arms will be considered on any ground, including economic viability, production capacity and the quality of guns produced etc.
7. It appears that before the above-mentioned Instructions came to be issued by the Govt. of India, the aforesaid two writ petitions (i.e. WP 419/83 and WP No. 420/83) had already been filed before the Supreme Court of India under Article 32 of the Constitution of India, in which grievance had been made regarding fixation of quota to the manufacturers of arms and ammunition, for restoration of original quota which was reduced and also for the enhancement of quota. On 23-4-1992, when these writ petitions came up for hearing before the Supreme Court, the counsel appearing on behalf of the writ-petitioners submitted that the Govt. of India has issued fresh instructions vide Government order No. V-11018/2/91-Arms (Pt) dated 1-10-1991 regarding the manufacture of arms and ammunition and as such, permission was sought to withdraw the writ petitions for making application to the concerned authority for enhancing quota for manufacture of arms and ammunition etc. The Supreme Court recorded the submission of counsel for the petitioners and disposed of the writ petitions to enable the writ petitioners to make an application to competent authority.
8. The 1991 Instructions which have been referred to in the order of the Supreme Court of India dated 23-4-1992 were issued in furtherance to Government Instructions of 1957 and 1985 and vide 1991 instructions the Government of India reviewed the manufacturing policy of arms and ammunition by making following modifications in the existing policy.
(1) Henceforth ML gun manufacturers may be allowed to manufacture BL guns within the existing licensed capacity, as per the recommendations of the State Government;
(2) The existing blank fire cartridge manufacturers may be allowed to manufacture live cartridges upto 20% of their existing quota within the overall limit;
(3) 20% increase of the existing quota in the matter of manufactures of arms and ammunition of the permissible type may be allowed subject to the recommendations of the State Government.
9. It appears, that writ petitioners of these Letters Patent Appeals also made representation to the Government of India in terms of 1991 instructions. In some cases the Government of India granted relief but in some cases representations were rejected. However, in all cases, the representation regarding restoration of original quota, was rejected. However, in some cases where 20% increase was made, it was renewed on the reduced quota. This action of the Government led to another round of litigation, i.e. the present one in almost all the present cases, either the prayer made is for restoration of original quota or enhancement of quota or for giving benefit of the backlog.
10. In OWP No. 1055/93, Khurmi Gun Works v. Union of India and Ors., the writ Court, taking into consideration the case of some manufacturers of arms and ammunition, who were allowed to manufacture arms and ammunition by the Government of India not only on the initial installed capacity but even on the enhanced quota, has directed that the writ petitioner too be permitted to manufacture arms and ammunition according to its initial capacity and the Govt. of India has been directed to consider their case for enhancement of the quota as was done in the case of other manufacturers.
11. OWP No. 48/97 titled Mehar Singh and Sons v. Union of India and Ors., and OWP No. 92/98 titled Amar Workshop v. Union of India and Ors. have been disposed of in the same terms and anology of OWP No. 1055/93 meaning thereby that said writ petitioners have also been permitted to manufacture arms and ammunition on the capacity on which they were initially permitted and for which the licence was granted to them. Their cases are also to be considered for enhancement of quota.
12. OWP No. 16712000 titled Standard Gun Works v. Union of India and Ors. however has been dismissed and it observed that denial of enhancement of quota does not amount to violation of any fundamental right and the right asserted is not enforceable in the Court of Law.
13. In Bumrah Gun Works v. Union of India and Ors. (OWP. No. 31/97) licence was originally issued in favour of one person, but subsequently the licence was renewed in the name of partnership. Subsequently, the quota was reduced from 880 guns to 300 guns. It appears that dispute arose between the partners and matter remained pending in the court and as a result of arbitration, the matter was settled between the partners. As per settlement the quota of 300 guns was bifurcated into two licences, in the ratio of 150 : 150 guns each. In one case the Govt. of India allowed the manufacturer to manufacture back-log for the period dispute remained under litigation between the partners, but in another case this was not done and that led to the filing of OWP No. 30/97 titled Bumrah Gun Works v. Union of India and Ors. in which prayer was made to allow manufacture of back-log quota for the period the litigation was pending between the partners, as had been allowed to other partners in OWP No. 31/97, which was filed by writ petitioners for enhancement and restoration of original quota. OWP No. 30/97 has been allowed and Govt. of India has been directed to treat the case of writ petitioners at par with the erstwhile partners. However, OWP No. 31/97 has been disposed of with the direction to the respondents to reconsider the matter for enhancement of the quota. However, Govt. of India has been given liberty to hold that the claim made by the writ petitioners is belated.
14. The directions in all the afore-stated writ petitions have given rise to present Letters Patent Appeals.
15. We have heard the learned counsel appearing for the parties at length and have carefully gone through the record of the case.
16. It cannot be denied that no person has any right whatsoever, either under the Constitution of India or the Arms Act or any other law to demand, as a matter of right, any increase in the quota to manufacture Arms and Ammunition. The Industrial Policy Resolution of 1956 relating to manufacture of arms and ammunition and other instructions issued by the Govt. of India from time to time makes it very clear that manufacture of arms and ammunition is the exclusive monopoly of the Central Govt. and the licensed manufacturers of arms and ammunition etc. are entitled to seek renewal of their licences in accordance with the terms of the statutes and the Industrial Policy Resolution 1956 as well as the other Instructions issued from time to time. The writ petitions in which the Court has allowed restoration of original quota and consideration by the Government of India for enhancement of quota are filed solely on the basis that in some cases the Govt. of India has not only allowed the restoration of initial quota but has also permitted enhancement in the quota.
17. The stand of the Government of India is that in the said cases the direction of the Hon'ble Court in regard to restoration of initial quota was carried out and also the benefit of enhancement was given because of the Court orders. The stand of the Govt. of India in this regard does not appear to be correct.
18. At this stage, it would be expedient to point out some other cases in which initial quota has been restored and benefit of enhancement was given in view of the Court Orders.
19. In Dogar Nath Bhargav and Ors. v. Union of India and Ors. (W.P. No. 602/1981) writ petitioners manufactured 294 guns per month, besides manufacturing cartridges, gun powder, and percussion caps. On 4-9-1963, the manufacturing quota was reduced from 294 guns to 25 guns per month. Besides this reduction, the licence for manufacture of cartridges, gun powder and percussion caps had also been changed into one for stocking the same for sale and the licence for repair of firearms of all kinds did not find any mention in the licence renewed. Aggrieved by this act of the Government, the petitioners therein filed aforesaid writ petition. Vide order of this court dated 29-3-1985, the writ petition was allowed and respondents therein were directed to allow the quota which was disallowed to the writ petitioners, after giving reasonable opportunity to them to set forth their case on merits as well as considering their capacity to manufacture Arms and Ammunition. Further the Court also directed to adjust the quota and decide representation of the writ petitioners accordingly. It appears that the representation of the writ petitioners was not decided and that led to filing of contempt petition (i.e. COA90/92) and vide order dated 15-10-1992. Contempt petition was disposed of with the observation that representation of the petitioners be decided by the competent authority within a period of four months from the date the order is served upon the said authority.
20. The Government of India has not placed on record the order, if any, which it has passed on the representation of the petitioners but on record a copy of licence has been placed. Reading of one of the column of said licence shows that the quota of manufacture of B.L and M.L guns was fixed as 2400 per annum and that was purported to have been done in pursuance to the decision of the High Court. There is no such order of the High Court on the record of these files, whereby direction was given to the Government of India to restore the original quota or to give benefit of enhancement. The only direction given was to consider case of the writ petitioners on merits but as noted earlier, decision, if any, given by the Government of India in this regard has not been placed on record.
21. Likewise in Harjinder Singh v Union of India and Anr. W.P. No. 522/1980), writ petitioner was granted licence to manufacture 1080 guns per annum and in April 1963 the said quota was reduced to 600 guns per annum. The said writ petition was allowed by directing the Government of India to consider the recommendation of the State Government dated 14-10-1978 for restoration of the original quota of the petitioner for manufacture of 1080 guns per annum. In this case also, the decision, if any, taken by the Government of India on the representation of the petitioner has not been placed on record nor it has been shown from any document what consideration prevailed with the Government of India for restoration of the original quota which had been, reduced. Perusal of last column of the copy of licence produced on record shows that the manufacturing quota was restored from 600 M.L. Guns to 1080 M.L. Guns per annum on the basis of the order of the High Court dated 31-5-1990.
22. We have already noted that by order dated 31-5-1990 the only direction given by the High Court to the Government of India was to consider the recommendation of the State Government dated 14-10-1978 for restoration of the original quota. However, we do not have copy of the decision, if any, taken by the Govt. of India in this regard,
23. In Khajuriya Gun Works v. Union of India and Ors.(OWP No. 199/93) order of the court dated 27-02-1993 shows that counsel for the writ petitioner produced before the writ court an extract copy of the order passed by the Hon'ble Supreme Court of India dated 11-10-1988 whereby their Lordships of the Apex Court in the writ petition No. 5212 and 5220 of 1993 had disposed of two petitions in the first instance by issuing the solicited direction to the Govt. of India to consider the representation. On the basis of the said extract copy of the order of the Supreme Court, the writ petition was disposed of by directing the Secretary, Home Department, Govt. of India to consider the representation of the petitioner. As to what decision was taken on the said representation and what consideration prevailed on the Govt. of India to restore the quota, is not forthcoming. However, copy of licence produced on record shows that the quota was restored on 1080 guns per annum and that too on the basis of order dated 27-02-1993 passed by the High Court. We fail to understand that how the quota was restored when there was no direction by the writ Court for restoration of the quota. The only direction was to consider representation of the writ petitioner.
24. In Union of India v. Uttam Singh and Anr. (LPA(W) No. 33 of 1986), writ petitioners were allowed to manufacture 360 guns per annum, but the quota was reduced to 180 guns per annum. Petitioners came before the court seeking restoration of the quota and enhancement in the same. The learned Single Judge allowed the writ petition by directing the Govt. of India to consider representation of the writ petitioners. Union of India came up in appeal but the same was dismissed on April 2, 1993 affirming the judgement of the learned Single Judge, whereby direction was given to re-consider the case of the writ petitioners for allowing them backlog of the manufacture of guns etc. till quota was restored. In this case as well, quota was restored to 360 guns per annum but that too on the basis of court order and backlog was also permitted though there was no positive direction either by the writ court or LPA Bench, that the quota was to be restored and manufacture of backlog has to be permitted.
25. It has thus become abundantly clear that in the cases of all the aforesaid manufacturers of Arms and Ammunition not only the quota to manufacture Arms and Ammunition was restored but they were also permitted to manufacture the backlog quota. This was done taking shelter under the court orders. But as noticed earlier, there was no positive direction by the court for allowing the request of the writ petitioners for enhancement/restoration/revision/re-fixation/grant of backlog quota for the manufacture of Arms and Ammunition.
26. The learned counsel appearing for the Govt. of India, before us, has contended that illegality committed in one case will not give a right to the writ petitioner in another case to claim the relief on the basis of illegal order because, if it is so permitted then it would give right to another illegality. There is no dispute with this proposition of law. However, one cannot lose sight of the fact that the policy of the Government of India in regard to all the manufacturers of Arms & Ammunition in the State has to be uniformally applied. In case it decided to give benefit of restoration of quota to some manufacturers on some consideration, which of course is not placed on the record of this case, then the same consideration will have to be applied in the cases of others.
27. In absence of the reasons which have prevailed with the Government of India in allowing the request of some of the manufacturers of Arms and Ammunition for enhancement/restoration/revision/refixation or grant of backlog quota, we are not in a position to give positive direction to the Government of India that the writ petitioners in the cases in hand too be allowed restoration of original quota or even be permitted to manufacture backlog quota. However, one direction which this Court can give to the Government of India is to consider the cases of all the writ petitioners in all the present appeals afresh in-the light of the considerations which have prevailed with the Government of India in the cases of writ-petitioners referred to in earlier part of this judgment. The recommendation of the State Government already made, would also be taken into account while considering the cases of writ petitioners in the present appeals. However, we further make it clear that in case the Government India finds that either the Industrial Policy Resolution of 1956 or the Government Instructions issued there-after from time to time in this regard for the manufacture of arms and ammunition in the private sector do not permit enhancement /restoration/revision/re-fixation or grant of backlog quota for the manufacture of arms and ammunition and further if it would not be possible to accede to the request of the writ petitioners, then the Govt. of India shall take corrective steps in the cases of all those manufacturers of arms and ammunition, in whose cases request for enhancement/restoration/revision /refixation or grant of backlog quota was acceded to, either purported to have been done in terms of Court orders or otherwise. We have already noted that no positive direction by any Court was given whereby Government of India was directed to enhance/restore/refix/revise or grant backlog quota in regard to manufacture of arms and ammunition. The only direction given by the Supreme Court as well as by this Court was to consider representation of the manufacturers of arms and ammunition.
28. Accordingly, we dispose of these six Letters Patent Appeals and modify the judgment of the learned Single Judge in the manner indicated above. The Government of India shall decide the matter as directed above, within a period of four months from the date certified copy of this order is made available to the comptent authority.
29. LPAs are disposed of without any order as to costs. Registrty to place copy of this judgment on each file.