Durga Prashad Vs. Chief Controller of
Imports & Exports & Ors [1968] INSC 288 (22 November 1968)
22/11/1968 SIKRI, S.M.
SIKRI, S.M.
HEGDE, K.S.
CITATION: 1970 AIR 769 1969 SCR (2) 596 1969
SCC (1) 185
ACT:
Constitution of India, Art. 226-Mandamus seeking
import licence-Delay in filing writ petition-Relief if should be given.
HEADNOTE:
The appellant who carried on the business of
export and import applied for an import licence to import certain goods. The
licence was issued in 1959 for only a part of the value applied for. He filed
appeals and exhausted all the remedies under para 85 of the order relating to
the Export Promotion Scheme, as a result of which finally in March 1962 he was
granted a supplementary licence to import a small part of the goods. In April
1964, the appellant approached the Minister, and he was informed that no
further licence would be issued to him. Thereupon, the appellant filed a
petition under Art. 226 of the Constitution seeking a mandamus for the issue of
the import licence. The High Court dismissed the petition in limine but granted
certificate Under Art. 133(1)(a) of the Constitution. ' HELD: The appeal must
fail.
The petition under Art. 226 of the
Constitution was filed after great delay. No explanation was given in the petition
for the delay in filing the petition and it was not explained what the
appellant was doing between March 6, 1962, when the supplementary licence was
issued, and April 1964. The exchange position of this country and the policy of
the Government regarding international trade, varies from year to year and it
would be rather odd for this Court to direct that an import licence be granted
in the year 1968 in respect of alleged default committed by the Government in
1959 or 1962. In these matters it was essential that persons who were aggrieved
by orders of the Government should approach the High Court after exhausting the
remedies provided by law, rule or order with utmost expedition. Even in the
case of alleged breach of fundamental rights the matter must be left to the
discretion of the High Court. [864 G, 865 B] Smt. Narayani Debi Khaitan v.
State of Bihar, C.A. No.
140 of 1964 judgment dated, September 22,
1964, Maharashtra State Road Transport Corporation v. Shri Balwant Regular
Motor Service, Amravati, [1969] S.C.R. 808 and Moon Mills v. Industrial Court,
A.I.R., 1967 S.C. 1450, 1453, 1454, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1116 of 1965.
Appeal from the order dated August 26, 1964
of the Punjab High Court in Civil Writ No. 498-D of 1964.
M.C..Chagla, Sardar Bahaclur, Ajit Prasad
Jain, Vishnu B. Saharya ,and Yougindra Kaushalani, for the appellant.
V.A. Seyid Muhammad and S.P. Nayar, for the
respondents.
862 The Judgment of the Court was delivered
by Sikri, J. The appellant, Durga Prashad, filed a petition under Art. 226 of
the Constitution against the respondents.
The High Court of Punjab, Circuit Bench,
Delhi, dismissed the petition in limine. Thereupon the appellant applied for a
certificate under Art. 133 (1)(a) of the Constitution. The High Court gave this
certificate on the ground that the value of the subject-matter directly
involved in the petition exceeds Rs. 20,000/-.
In our opinion this appeal must fail on the
ground that the petition under Art. 226 of the Constitution was filed after
great delay. The relevant facts are as under. The appellant was carrying on
business of export and import, and exported goods of the value of Rs.
8,10,325/-, F.O.B. value Rs. 8,03,530.45, during the period August 25, 1958, to
September 29, 1958. On November 12, 1958, the appellant applied for an import
licence for art silk yarn of the f.o.b. value of Rs. 8,03,530.45 nP under the
Export Promotion Scheme. The Export Promotion Scheme was discontinued with
effect from March 6, 1959. On October 9, 1959, import licence of the value of
Rs. 3,27,841/- only was issued to the appellant by the Joint Chief Controller
of Imports and Exports, Bombay. His appeal against this order was rejected by
the Joint Chief Controller on March 4, 1960.
It is alleged by the appellant that he was
not given a hearing. The appellant filed a second appeal to the Chief
Controller of Imports and Exports, and this was dismissed on April 22, 1961.
Here again it is alleged that no' hearing was given to the appellant. He filed
a representation against the order dated April 22, 1961, and on that
representation a supplementary import licence for import of art silk yarn of
the value of Rs. 30,000/- was issued to the appellant. This exhausted all the
remedies he had under para 85 of the order relating to the Export Promotion
Scheme, but he instead of filing a writ chose to wait. The appellant apparently
approached the Minister of International Trade by letter dated April 6, 1964-
this is the letter referred to in the letter of the Private Secretary to the
Minister of International Trade-and the Private Secretary, vide his letter
dated April 16, 1964, wrote to him saying that his letter had been passed on to
the Chief Controller of Imports and Exports, New Delhi, and if so desired the
appellant may see him in the matter.
Apparently the Chief Controller invited him
and on June 22, 1964, he was informed that no further licence would be issued
to him. On August 24, 1964, the appellant filed the petition above-mentioned in
the High Court. No explanation has been given in the petition for the delay in
filing the petition and it has not been explained what the appellant was doing
between March 863 5, 1962, when the supplementary licence was issued, and April
6, 1964.
It is well-settled that the relief under Art.
226 is discretionary, and one ground for refusing relief under Art.
226 is that the petitioner has filed the
petition after delay for which there is no satisfactory explanation.
Gajendragadkar, C.J., speaking for the
Constitution Bench, n Smt. Narayani Debi Khaitan v. The State of Bihar(1),
observed.
"It is well-settled that under Art. 226,
the power of the High Court to issue an appropriate writ is discretionary.
There can be no doubt that if a citizen moves the High Court under Art. 226 and
contends that his fundamental rights have been contravened by any executive
action, the High Court would naturally like to give relief to him; but even in
such a case, if the petitioner has been guilty of laches, and there are other
relevant circumstances which indicate that it would be inappropriate for the
High Court to exercise its high prerogative jurisdiction in favour of the
petitioner, ends of justice may require that the High Court should refuse to
issue a writ. There can be little doubt that if it is shown that a party moving
the High Court under Art. 226 for a writ is, in substance, claiming a relief
which under the law of limitation was barred at the time when the writ petition
was filed, the High Court would refuse to grant any relief in its writ
jurisdiction. No hard and fast rule can be laid down as to when the High Court
should refuse to exercise its jurisdiction in favour of a party who moves it
after considerable delay and is otherwise guilty of laches. That is a matter
which must be left to the discretion of the High Court and like all matters
left to the discretion of the Court, in this matter too discretion must be
exercised judiciously and reasonably." Relying on the judgment of this
Court in Maharashtra State Road Transport Corporation v. Shri Balwant Regular
Motor service, Amravati(2) the learned counsel for the appellant contends hat
the delay should not debar him from seeking relief because he respondents have
not suffered in any manner because of the delay. In this case Ramaswami, J.,
speaking for the Court, referred to an earlier decision in Moon Mills v.
Industrial Court(a).
(1) C.A. No. 140 of 1964; judgment dated
September 22, 1964.
(2) [1969] 1 S.C.R. 808.
(3) A.I.R. 1967 S.C. 1450, 53, 54. Sup CI/69-
4 864 In that case Ramaswami, J.,..speaking for the Court, observed:
"It is true that the issue of a writ of
certiorari is largely a matter of sound discretion. It is also true 'that the
writ will not be granted if there is such negligence or omission on the part of
the applicant to assert his right as, taken in conjunction with the lapse of
time and other circumstances, causes prejudice to the adverse party. The
principle is to a great extent, though not identical with, similar to the
exercise of discretion in the Court of Chancery." It would be noticed that
Ramaswami, J., had first examined the question of delay and came to a finding
that in fact there was n delay. Ramaswami, J., observed:
"On behalf of the respondent Mr. B. Sen,
however, pointed out that the conduct of the appellant does not entitle it to
the grant of a writ, because it has been guilty of acquiescence or delay. It
was pointed out that the award of Mr. What was given on April 25, 1958, but an
application to the High Court for grant of a writ was made long after on
November 16, 1959. We do not think there is any substance in this argument,
because the second respondent had made an application, dated August 19, 1958 to
the Labour Court for enforcement of the award and the appellant had contested
that application by a Written Statement, dated September 15, 1958. The Labour
Court allowed the application on August 4, 1959 and the appellant had preferred
an appeal to the Industrial Court on August 31, 1959. The decision of the
industrial Court was given on October 24, 1959 and after the appeal was
dismissed the appellant moved the High Court for grant of a writ on November
16, 1959." The appellant in this case had claimed a mandamus or direction
to the respondents to issue to the appellant import licence for art silk yarn
of the value of Rs.
8,03,530.45. It is well-know that the
exchange position of this country and the policy of Government regarding
International trade varies from year t year and it would be rather odd for this
Court to direct that a Import licence be granted in the year 1968 in respect of
allege,, default committed by the Government in 1959 or 1962. In these matters
it is essential that persons who are aggrieved by order of the Government
should approach the High Court after exhausting the remedies provided by law,
rule or order with utmost expedition.
865 The learned counsel for the appellant
contends that this matter involved fundamental rights and this Court at least
should not refuse to give relief on the ground of delay. But we are exercising
our jurisdiction not under Art. 32 but under Art. 226, and as observed. by
Gajendragadkar, C.J., in the passage extracted above, even in the case of
alleged breach of fundamental rights the matter must be left to the discretion
of the High Court.
In the result the appeal fails. Parties will
bear their own costs.
Y.P. Appeal dismissed.
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