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2017 DIGILAW 590 (JK)

Mond Afzal v. Rajeev Mehishi

2017-08-09

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. This contempt petition has been filed for non-compliance of order dated 22.11.2012 passed by this Court in OWP No. 1148/2004 and OWP No. 1192/2004, clubbed with LPA (OWP) No. 17/2010. 3. The facts giving rise to the filing this contempt petition briefly stated are that the petitioner is the Managing partner of "M/s Khair-ud-Din Sons and Co." which deals with the manufacturing of guns and cartridges. The petitioner filed OWP No. 1148/2004, in which he sought restoration of quota of manufacturing of guns with 20% increase in terms of the policy and in OWP No. 1192/2004, the petitioner sought restoration of quota of gun cartridges with 20% increase in terms of the policy. The aforesaid writ petitions were dismissed by the learned Single Judge vide order dated 28.08.2009 and 31.12.2007 respectively. Being aggrieved, the petitioner filed LPA (OWP) No. 47/2009 and LPA (OWP) No. 17/2010. The aforesaid appeals were decided vide judgment dated 22.11.2012. The operative portion of the judgment dated 22.11.20012 reads as under: "The contention of the appellant on proper scrutiny of the records and position of law is found to be of prevailing force. Accordingly, we allow this Letters Patent Appeal. The judgment impugned dated 31.12.2007 passed in OWP No. 1192/2004 and OWP No. 1148/2004 and order dated 28.08.2009 passed in Review (OWP) No. 03/2008 and order dated 13.11.2009 passed in Review (OWP) No. 04/2008 are set aside. The directions granted vide order dated 30.12.2002 while disposing of various LPAs by the Division Bench of this Court as quoted above shall also govern the case of the appellant." The aforesaid direction has to be read in conjunction with Division Bench judgment dated 30.12.2002, the relevant extract whereof reads as under: “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/re-fixation 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 of India finds that either the Industrial Policy Resolution of 1956 or the Government Instructions issued thereafter 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 manufactures of arms and ammunition, in whose cases request for enhancement/ restoration/revision/re-fixation 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 where Government of India was directed to enhance/restore/re-fix/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. 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 competent authority.” 4. In the case of the petitioner, the directions issued by this Court have not been complied with. In the aforesaid factual matrix, this contempt petition has been filed. 5. In the case of the petitioner, the directions issued by this Court have not been complied with. In the aforesaid factual matrix, this contempt petition has been filed. 5. Learned counsel for the petitioner submitted that the judgment dated 30.10.2002 rendered by the Division Bench in a batch of Letters Patent Appeals, headed by LPA (OW) No. 473/1998, was complied with in the cases of similarly situated Gun Manufacturers, namely, M/s Khurmi Gun Works, M/s Mehar Singh and Sons and M/s Amar Workshop, inasmuch as, Manufacturing quota was enhanced more than 20% in view of extant policy. However, the same benefit was not extended in favour of the petitioner. It is further submitted that order dated 05.08.2007, by which the claim of the petitioner has been rejected, does not tantamount to compliance of the directions issued by the Division Bench, therefore, the respondents have willfully disobeyed the order passed by this Court and made themselves to be dealt in accordance with law. 6. On the other hand, Mrs. Sindhu Sharma, learned ASGI, submits that the directions issued to the respondents was to consider the claim of the petitioner, which has been considered and the petitioner has been informed that the Arms Rules 2016 have been notified on 15.07.2016, which contained elaborate provision for applying for enhancement of quota for existing arms/ammunition manufacturers as well as for new license for manufacturing of arms/ammunition under Chapter V. Accordingly, the petitioner was advised to apply for enhancement of quota for his license for manufacturing of arms/ ammunition as per the provisions of the Arms Rules, 2016. It is submitted that no positive direction was contained in the order dated 22.11.2012. Since the petitioner was not a similarly situated manufacturer with all other manufacturers as the petitioner had not applied within the time limit when the policy of enhancement of quota by 20% was in force, therefore, no decision in respect of the petitioner could be taken. It is also submitted that in any case the respondents are not guilty of willful disobedience of lawful authority of this Court. 7. We have considered the submissions made by the learned counsel for the parties and have perused the record. It is also submitted that in any case the respondents are not guilty of willful disobedience of lawful authority of this Court. 7. We have considered the submissions made by the learned counsel for the parties and have perused the record. In pursuance of the policy dated 01.10.1991, 20% of the manufacturing capacity of the similarly situated arms manufacturers was enhanced, however, if the petitioner as asserted by him had applied in pursuance of the policy, his claim also deserved to be allowed. The fact remains that the validity of the aforesaid action cannot be examined in this proceeding. Therefore, we refrain ourselves from expressing any opinion in this regard. 8. From the perusal of the directions contained in order dated 22.11.2012, we find that there is no positive direction in favour of the petitioner, therefore, respondents are not guilty of willful disobedience of lawful authority of this Court. Therefore, we are not inclined to proceed further with the contempt petition. 9. Since the Arms Rules, 2016 have come into force, we have no manner of doubt, in case petitioner files an application under Rule 60 of the Arms Rules, 2016 for restoration/ enhancement of manufacturing quota of arms/ammunition, the competent authority shall decide the same by a speaking order within a period of two months from the date of making of such an application. 10. With the aforesaid directions, the contempt petition is disposed of.