Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 360 (JK)

Dharam Chand v. Dharam Paul

2017-07-18

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. Both these intra Court appeals arise out of a common order dated 24.12.2004 passed by the learned Single Judge in OWP No.932/2002, by which the writ petition preferred by the deceased respondent No.1 has been allowed and the official respondents have been directed to incorporate the name of the deceased-respondent No.1 as co-licensee in place of Late Shri Dhirendra Brahmchari in the Arms license of M/S Shiva Gun Factory. In order to appreciate the appellant’s grievance, relevant facts need mention, which are stated infra. 2. A Gun manufacturing license to manufacture one gun at a time was granted in favour of deceased Dharam Chand in the year 1950. On 20.09.1980, he was granted a fresh license as sole proprietor of M/S Shiva Gun Factory, Jammu Tawi to manufacture 3000 ML/BL Guns per annum. On 24.01.1982, name of Late Shri Dhirendra Brahmchari was added as a partner in the said license. However, in the license, no individual share of the each partner was reflected. Late Dhirendra Brahmchari died in a plane crash on 09.06.1994. The deceased respondent No.1 on the basis of a will, which was executed one day prior to the death of the deceased Dhirendra Brahmchari i.e. 08.06.1994 started claiming himself to be the legal heir of deceased Dhirendra Brahmchari and filed a petition for grant of probate/letter of administration on the basis of will, allegedly executed in his favour. The Court thereupon issued notice inviting objections. However, the notice inviting objections was got published in the local Urdu Newspaper “Such” and not in any leading Hindi or English Daily having circulation in Jammu and Delhi where Late Dhirendra Brahmchari had a fixed abode. Since no wide publicity was given to the notice inviting objections, no objections were preferred and letter of administration/probate was issued in favour of respondent No.1. 3. Thereupon the deceased Dharam Chand filed an application before the District Judge, Jammu seeking revocation of the letter of administration dated 02.11.1994 on the ground that no letter of administration could be granted in respect of arms license dated 20.09.1980, which stands in favour of the deceased Dharam Chand and deceased Swami Dhirendra Brahmchari had no transferable interest in it as the arms license is not an Estate. Application preferred by the deceased Dharam Chand was disposed of vide order dated 25.04.1995 with the following observation by the District Judge :- “So even on the basis of the Will probated by this court the applicant (the respondent No.1 herein, Dharam Paul) as successor of the license holder is entitled only to a consideration by the Licensing Authority. There is no direction by this Court to grant Licence to him. This Court has only probated the Will on the basis of which he can claim title to the property of the testator and no more”. In the meanwhile, deceased Dharam Paul filed a writ petition (SWP No.848/1994) on 29.11.1994 before this Court in which he had sought a direction to respondent-Union of India to substitute his name in the Arms License dated 20.09.1980 and to allow him to exercise all the powers of licensee for the purpose of managing and owning M/S Shiva Gun Factory and to have physical possession of the premises. The writ petition was filed on the basis of letter of administration dated 02.11.1994 granted by the District Judge, Jammu in favour of Late Dharam Paul. In the aforesaid writ petition, respondent No.1 did not deliberately implead the deceased-appellant, namely Dharam Chand as respondent. However, when the deceased-Dharam Chand came to know about filing of the aforesaid writ petition, he moved an application seeking intervention. The writ petition was disposed of by order dated 26.05.1995 with a direction to Union of India to incorporate/substitute the name of respondent No.1, deceased Dharam Paul in the arms license in place of Late Shri Dhirendra Brahmchari. The aforesaid order dated 26.05.1995 was challenged by the deceased-appellant, Dharam Chand in LPA(OW) No.251-A/95, inter alia, on the ground that since Government of India was licensing authority, right with regard to incorporation/substitution of the name in the arms license ought to have been left to the discretion of the licensing authority. The aforesaid order dated 26.05.1995 was challenged by the deceased-appellant, Dharam Chand in LPA(OW) No.251-A/95, inter alia, on the ground that since Government of India was licensing authority, right with regard to incorporation/substitution of the name in the arms license ought to have been left to the discretion of the licensing authority. The Division Bench by order dated 06.11.2001, with the consent of the parties modified the order passed by the learned Single Judge and directed that the Government of India while considering the incorporation of the name of the deceased respondent No.1 in place of Late Dhirendra Brahmchari in accordance with the Arms Act, Rules and Notification, shall not be influenced by any direction or observation made by the learned Single Judge in the impugned order and shall decide the issue independently of any of the observation made by the learned Single Judge in the impugned order. Union of India was directed to decide the issue within six months. Accordingly, the LPA was disposed of. 4. Union of India thereafter by order dated 02.09.2002, declined the request of the deceased respondent No.1-Dharam Paul for incorporation/substitution of his name in the arms License in place of Late Shri Dhirendra Brahmchari on the ground that deceased Shri Dhirendra Brahmchari had not sought inclusion of deceased-respondent No.1 as an additional partner during his life time. While passing the aforesaid order reference was made to two letters dated 16.02.1967 and 27.03.1971. 5. The deceased respondent No.1 challenged the order dated 02.09.2002 passed by the Union of India in OWP No.932/2002. In this round of litigation also deceased appellant, namely, Dharam Chand was not impleaded as party but subsequently on an application having been made, he was impleaded as respondent No.6 by order dated 24.11.2003. 5. The deceased respondent No.1 challenged the order dated 02.09.2002 passed by the Union of India in OWP No.932/2002. In this round of litigation also deceased appellant, namely, Dharam Chand was not impleaded as party but subsequently on an application having been made, he was impleaded as respondent No.6 by order dated 24.11.2003. Learned Single Judge by order dated 24.12.2004 allowed the writ petition preferred by the deceased respondent No.1 and quashed order dated 02.09.2002 by which claim of deceased respondent No.1 for substitution of his name in the arms manufacturing license was rejected and inter alia, held that since deceased respondent No.1 had acquired the status of a legal successor-in-interest of Late Dhirendra Brahmchari based on a Will followed by a Probate and letter of administration granted in his favour by a competent Court, he is entitled to succeed to all the rights of the testator and the respondents were directed to incorporate the name of the deceased respondent as co-licensee in place of Late Shri Dhirendra Brahmchari in the arms license of M/S Shiva Gun Factory. In the aforesaid factual background, the deceased appellant as well as Union of India filed these intra court appeals. 6. Mr. U.K. Jalali, learned senior counsel appearing for the appellant in LPAOW No.27/2005 submitted that the District Judge, Jammu vide order dated 25.04.1995 while disposing of the application for revocation filed by the deceased appellant had held that the Court has only probated the Will on the basis of which he can claim title to the property of the testator and no more. It is further submitted that respondent No.1 on the basis of Will dated 08.06.1994 executed one day prior to the death of late Shri Dhirendra Brahmchari in a plane crash, cannot claim incorporation of his name in the license. It is further submitted that the directions issued by the learned Single Judge have been issued in violation of the directions issued by the Division Bench in previous round of litigation, which have been issued with the consensus of the parties. It is further submitted that the License is not a property but only a privilege and same cannot become subject matter of a Will. It is further submitted that the License is not a property but only a privilege and same cannot become subject matter of a Will. Lastly it is urged that even on the basis of the Will probated by the District Judge, deceased respondent No.1 was entitled only to consideration by the licensing authority and no direction could have been issued for incorporation of his name in the license. Mr. N.A. Choudhary, learned counsel appearing for the appellant in LPAOW No.42/2007 submitted that the order passed by the Union of India was a reasoned and speaking order and was passed in terms of circulars dated 16.02.1967 and 27.03.1971, therefore, no interference was called for with the order which was passed by the Union of India. 7. On the other hand, learned counsel for respondent No.1 while referring to Communication/Circular dated 27.03.1971 submitted that in view of the letter of administration issued in favour of deceased respondent No.1on the basis of Will dated 08.06.1994, deceased respondent No.1 was a legal successor of deceased Dhirendra Brahmchari and therefore, was entitled for incorporation of his name in the arms license. It is further submitted that the order passed by the learned Single Judge is perfectly just and legal and does not call for any interference. 8. We have considered the submissions made by learned counsel for the parties and have perused the records. 9. Before proceeding further, it is apposite to take note of Communications dated 16.02.1967 and 27.03.1971, relevant extract of which reads thus:- Relevant extract of letter dated 16.02.1967 …….“2. Of late, the Government of India have been receiving applications from the existing licensed manufacturers to permit taking in of new partners or changes in the existing partnership and to amend the manufacture licence, accordingly, the Government of India have considered the matter carefully and have decided that having regard to the intention behind the instructions issued in 1957, requests for making additions/alterations in the partnership in the following circumstances only may be agreed to; namely (a) Where the existing manufacturer or one of the partners of the firm dies and is to be succeeded by his son or widow and (b) Where the existing manufacturer or a partner of the firm wishes to take during his life time, his own son as additional partners. All other requests seeking to take a new partner or to substitute one partner for another should be refused. Similarly, it has been decided that conversion of partnership of the existing manufacturing units into private Limited companies, etc. should not be encouraged and accordingly, requests for amending the licence so as to allow such conversion should also be refused. In this connection, it may be mentioned that it has been held that while a licence can be kept alive by the surviving partners in the event of death of one of the partners in case there is more than one partner duly entered in the licence, the licence granted to the sole proprietor of a firm expires ipso facto on the both the licensee. In the latter circumstances, sons or widow may prefer an application for the grant of fresh licence to him/her which will be considered by the Government of India in pursuance of their decision referred to at (a) above. Prior approval of this Ministry is, however, necessary before making any change in a licence in pursuance of the decision communicated in this letter. It is requested that suitable instructions may be issued to the authorities concerned.” Relevant extract of letter dated 27.03.1971 …….“ 2. The basis policy 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 manufacturers 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 mentioned 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 sons, 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 sons or wife, only, his legal successors would be entitled to be admitted as partners or additional partners as the case may be. The instructions contained in this Ministry’s letter No.21/52/66-P.IV, dated the 16th February, 1967 should be considered to have been modified to the above extent.” 10. The instructions contained in this Ministry’s letter No.21/52/66-P.IV, dated the 16th February, 1967 should be considered to have been modified to the above extent.” 10. If both the aforesaid communications are read conjointly, it is evident that objective of issuing subsequent communication dated 27.03.1971 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 manufacturers and to prevent mala fide trading in such liciences or their transfer to outsiders. The subsequent communication dated 27.03.1971 provides that in case of an existing manufacturer or a surviving partner of a licenced unit, besides his sons, wife or wives may also be admitted as additional partners. It was further decided that where a manufacturer or a partner of the firm has no sons or wife, only his legal successors would be entitled to be admitted as partners or additional partners, as the case may be. It is well settled in law that when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified (see State of Karnataka v. Kempaiah; AIR 1998 SC 3047 ). This Rule of interpretation, which is known as ejusdem generis reflects an attempt to reconcile incompatibility between the specific and general words in view of the other Rules of interpretation that all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute are presumed to be superfluous. We are conscious of the fact that Rule of ejusdem generis applies to interpretation of statute and in the instant case, we are concerned with the interpretation of the communications issued by the Government of India. We are conscious of the fact that Rule of ejusdem generis applies to interpretation of statute and in the instant case, we are concerned with the interpretation of the communications issued by the Government of India. However, on the basis of the principle of ejusdem generis, in our considered opinion, the word legal successor has to be given a restricted meaning bearing in mind the objective/basic policy behind issuance of the subsequent communication to safeguard the legitimate interest of the successor-members of the family of the existing manufacturer and to prevent mala fide trading in such licences or their transfer to outsiders through backdoor methods, to mean that person who is in some way related to the licensee and would succeed in the absence of wife or son. In the instant case, deceased respondent No.1 was in no way even remotely related to deceased Late Shri Dhirendra Brahmchari and the Will in his favour was executed one day prior to the death of the deceased Late Shri Dhirendra Brahmchari in a plane carsh i.e. on 09.06.1994. Besides that it is pertinent to note that licence is a personal privilege and not an interest in the property and therefore, cannot be made subject matter of a Will. (see Chandavarkar Site Ratna Rao v. Ashalata S. Guarm; (1986) 4 SCC 447 ) . 11. For yet another reason the impugned order passed by the learned Single Judge cannot sustain in law as the question of eligibility of deceased respondent No.1 for incorporation/ substitution of his name in the arms licence was to be considered by the competent authority under the Arms Act and the Court in this regard could not have issued positive mandate. 12. In view of the preceding analysis, order impugned dated 24.12.2004 passed in OWP No.932/2002 is hereby quashed and set aside. In the result both the appeals succeed and are hereby allowed.