R.A.Sharma - (1.) -Petitioners are holding licences in Form XII of Rules framed under the Arms Act. 1959 for sale and purchase of arms and ammunitions. Petitioner No 1 was granted this licence in 1923 while petitioner No 2 is holding the licence from 1953. These licences of the petitioners have been renewed from time to time. It appears that in 1986 petitioners again applied for renewal of their licences through the District Magistrate, who seat the papers to the State Government. Government of U. P While granting renewal reduced the quota of arms and ammunitions for the purpose of sale and repairs by making necessary amendment in the licences. it is against these orders that the petitioners have filed this Writ Petitfon.
(2.) AT the admission stage the Government filed a counter affidavit and the learned counsel for the petitioners has stated that he does not propose to file any rejoinder affidavit in reply to the counter affidavit. I have heard learned counsel for the petitioners and learned Standing Counsel and the Writ peition is being disposed of in accordance with the Rules of the Court Grievance of the petitioners is that the State Government does not have any power to reduce the quota and even if the Government has such a power, it has acted mechanically on the basis of its policy decision contained in its order dated 8-5-1986 without giving any notice and reasonable opportunity of being heard to the petitioners. Learned Standing counsel on the other hand has argued that the State Government, being licensing authority inrespect of dealers licence in Form XII, has implied power to increase or reduce the quota of arms and ammunitions for sale and repairs and as the Government has already issued an order dated 8-5-1986, Government was fully justified to reduce the quota on the basis of the aforesaid order and it is not necessary to consider individual cases It has further been argued that there is no provision in the Arms Act or Rules for giving any opportunity to the petitioners before reducing the quota of arms and ammunitions. In this connection learned standing counsel has invited my attention to paragraphs 5, 7, 9 and 22 of the counter affidavit. Learned counsel for both the parties bace agreed that there is no specific provision under the Arms Act and Rules except Rule 24 empowering the Government to fix the quota of arms and ammunitions for dealers licence in Form XII. Rule 24 bow ever, does not deal with fixation of quota as It merely enables the State Government to authorise licencees holding licence in Form XII to sell or keep for sale a specified amount of ammunitions of category 1 (C) and prohibits them from selling arms and ammunitions of category 1 (b) or 1 (c) to any person unless ft is expressly permitted by the licence or certificate of exemption Rule 24 operates in different field and does not deal with fixation of quota of arms and ammunitions for purchase, sale or repairs. However, State Government being the licensing authority, has the power to fix the quota as the power to fix the quota is incidental to its power of granting licence. Whatever may reasonable be regarded as incidental to the power conferred by a law is to be treated within the jurisdiction of the authority on whom the power has been conferred by the law. Everything necessary to the exercise of a power is included in the grant of the power. In this connection it is appropriate to refer to the following passage from de Smith's Judical Review of Administrative Action (Fourth Edition at page 95) The House of Lords has laid down the principle that 'whatever may fairly be regarded as incidental to, or consequent upon, those things which the Legislature has authorised ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires. This principle has been applicable to the statutory powers of all public bodies, and a high corportion of the reported cases involving the vires of administrative action have been concerned with the question whether a transaction is to be regarded as reasonably incidental to the exercise of statutory powers expressly conferred. Power to grant licence without fixing a limit of arms and ammunitions may frustrate the very purpose for which the licences are granted and the Government as such, has implied power by virtue of being licensing authority to fix quota of the arms and ammunitions for the licensees holding licences in Form XII. The contention of the learned counsel for the petitioners that the Government has no power to fix such quota, cannot be accepted
(3.) LICENCES in Form XII are granted to individuals and their quota of arms and ammunitions is liable to be fixed on the basis of various relevant considerations What should be the quota depends on the demand which may differ from place to place A locality where there are more persons holding arms licences may require mere quota than a locality where the arms licences are issued to the limited persons. One and the same quota cannot be fixed for all dealers holding licences in Form XII. Although, the G. O dated 8-5-1986 on the basis of which the quota of the petitioners has been reduced has been claimed to be a secret document by the Government; but its copy has been filed by the petitioners before this court as Annexure VI to the writ petition and form its perusal it appears that the Government by its earlier order dated 25-1 -1974 has fixed the quota for the dealers holding licences in Form XI and XII and has directed the District Magistrates to send to the Government the licences of those dealers, who are entitled to keep more quantity of arms and ammunitions than that fixed by the aforesaid Government order of 1974. It is thus, apparent that for the whole State of U P one uniform quota has been fixed nor these dealers. It is open to the Government to have general policy inregard to matters. Which are relevant to the exercise of its power, but it cannot impose fetters on its power or discretion by applying it rigidly to all cases coming before it. Even if the Government has laid down a general policy each case should be decided according to its own merit after considering as to whether general policy may or may not be applied to a particular case In this connection reference may be made to the following passage from Halsbury Laws of England (Vol I 4th Edn.) para 33 at page 35). A public body endowed with a statutory discretion may legitimately adopt genera! rules or principles of policy, to guide itself as to the manner of exercising its own discretion in individual cases, provided that such rules or principles are legally relevant to the exercise of its powers, consistent with the purpose of the enabling legislation and not arbitrary or capricious. Nevertheless, it must not disable itself from exercising a genuine discretion in a particular case directly involving individual interests, hence it must be prepared to consider making an exception to the general rule if the circumstances of the case warrant special treatment. To the same effect is the law laid down in the case of British Oxygen Co. Ltd. v. Minister of Technology, (1970) 3 All Er 165 relevant extract of which is quoted below. The general rule is that anyone who has to exercise a statutory discretion must not shut (his) ears to the application (to quota from Bankes, 1. J.) I do not think that there is any great difference between a policy and a rule, there may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitule of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that provided the authority is always willing to listen to anyone with something new to say; of course I do not mean to say that there need be an oral hearing.;