Andhra Industrial Works, A. P. Vs.
Chief Controller of Imports & Ors [1974] INSC 104 (26 April 1974)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION: 1974 AIR 1539 1975 SCR (1) 327 1974
SCC (2) 348
CITATOR INFO :
R 1975 SC1208 (28,29) RF 1980 SC1285 (48) R
1989 SC2138 (99)
ACT:
Import trade Control policy-Application for
licence to import-Rejected-If order of rejection can be challenged, under Art.
32.
HEADNOTE:
The petitioner-firm made four applications
between November 1969 and November 1970 for April 1969 to March, 1970. for the
grant of licences to import stainless steel sheets and electrolytic copper wire
bars for the manufacture, of automobile parts. The Deputy Chief Controller of
Imports and Exports. received some complaints that the firm had been
misutilising imported material, and criminal proceedings were started against
the firm. Since the applications, were not disposed of within the usual time of
three weeks, the petitioner filed writ petitions in the High Court and the High
Court directed the respondents. to dispose of the applications as expeditiously
as possible. In September 1972, instructions were given by the Chief Controller
of Imports and Exports that the import trade control policy had been amended
and that the import of the materials in question for utilisation in automobile
parts was prohibited.
In November, 1972 the Deputy Chief Controller
of Imports and Exports informed the petitioner ',hat its applications have been
rejected.
Dismissing the writ petitions filed under
Art. 32 in this Court, alleging violation of the petitioner's fundamental
rights under Arts. 14 and 19,
HELD : (1) Since the firm stands for all the
partners and the petitions must be deemed to have been filed by all the
partners who are citizens of India, the writ petitions on behalf of the firm
were maintainable. [329H] (2) But no relief could be granted to the petitioner.
The jurisdiction of this Court under Art. 32, can be invoked only for the
enforcement of fundamental rights. L330A-B] (a) An applicant has no vested
right to an import licence in terms of the policy in force at the time of the
application, and in accordance with the amended import trade control policy the
licences applied for could not be granted. The Import and Export Control Act,
1947, or any Order or rule made thereunder is not ultra vires; and the validity
of the Import control Policy Statement had not been impeached. No person can
merely on the basis of such a statement claim a right to the grant of an import
licence, enforceable at law. The policy can be changed or rescinded by mere
administrative orders or executive instructions issued at any time. [330E-G;
331C] (b) There is no substance in the contention that the instructions or orders
made in pursuance of the Import and Export Control Act place unreasonable
restrictions on the petitioners' right to carry on trade, or business. These
restrictions obviously have been imposed in the interest of general public and
national economy. [331G] (c) The Deputy Chief Controller did not lack inherent
jurisdiction to deal with and decline the applications for the grant of
licences. In view of the supervening criminal proceedings against the
petitioner the Deputy Chief Controller might have thought that it was better
for him to defer decision on the application till the termination of those
proceedings. There was thus delay in dealing with the application, but the
delay could not be said to be undue or motivated by bad faith. [331A-B, F] (d)
There is no question of violation of Art. 14 of the Constitution as no
particulars have been given of any other applicant, similarly situated, of
having been given an import licence in similar circumstances. [332-B-C] 322
Smt. Ujjam Bai v. State of U.P. [1963] 1 S.C.R. 781 and Deputy Assistant Iron
and Steel Controller and anr. v.Manickchand Proprietor, Katrella Metal Corpn.
Madras, [1972] 3, S.C.R. 1, followed.
ORIGINAL JURISDICTION : Writ Petitions Nos,
122 to 125 of 1973.
Under Art. 32 of the Constitution of India.
Y. S. Chitale, and K. Rai Choudhury, for the
appellant.
S. N. Prasad and S. P. Nayar, for the
respondents.
The Judgment of the Court was delivered by-
SARKARIA, J.-.In these four writ petitions under Article 32 of the
Constitution, the parties and the basic questions for determination are the
same. They will therefore be disposed of by a common judgment.
The petitioner-firm is dealing in the
manufacture of automobile parts, wires and cables. The petitioner made four
applications on November 5,1969, March 23,1970, November 5, 1970 and November
6,1970, for the grant of licences to import stainless steel sheets and
electrolytic copper wire bars, for the period April-March 1970 and April- March
1971. At the time of the receipt of the first application dated November 5,
1969, Respondent 3 (Deputy Chief Controller of Imports and Exports, Hyderabad)
received some complaints that the petitioner-firm was mis-utilizing the
imported material. After a preliminary investigation made by the C.B.I., a
First Information Report was registered on December 12, 1969 with the police
against them.
petitioner-firm and some others in respect of
the commission of offences under s.5 of the Imports (Control) Act, 1947 read
with clause 5 of the Imports (Control) Order, 1948. In the normal course, such
applications should have been disposed of within three weeks of the dates on
which they were received. Since the respondents did not dispose of the
applications, the petitioner-firm filed four writ petitions (Nos. 3526-3529 of
1971) in the High Court of Madras praying for the issue of writ of Mandamus
directing the respondents to issue the :import licences applied for.
Before the High Court, no counter-affidavit
was filed by the Respondents. The High Court, instead of issuing a writ of Mandamus,
directed the Respondents to consider and dispose of the applications in
accordance with law as expeditiously as possible. The applications were however
not disposed of for another five months. On September 20,1970, the petitioner
moved the High Court for proceeding against the authorities for contempt of its
order. Thereafter, on October 22, 1972, the petitioner caused a notice by
registered post to be served on the respondents.
Respondent No. 3 then informed the
petitioner-firm by his communication dated November 7, 1972, that its
applications bad been rejected. The reasons set out in the impugned orders
were: (1) Stainless steel-sheets are not allowed for the manufacture of the end
product of automobile parts as their import has been prohibited in terms of the
32 3 existing in instructions; (2) Since the petitioner-firm was a manufacturer
of automobile parts "import of Electrolytic copper wire bars for end use
of 'automobile parts' is not permissible".
The petitioners challenge the aforesaid
orders 'of November 7, 1972 passed by the 3rd Respondent, on the ground that in
view of the Import Policy contained in the Red Book for the relevant period,.
they were entitled to the grant of these import licences, and that the
"existing instructions" on the basis of which their applications were
rejected, could not override that Import Policy. In any case, these
instructions are unconstitutional; they do not amount to 'reasonable
restrictions' within the contemplation of Article 19 of the Constitution on the
petitioners' right to carry on their trade. The petitioners pray that the
impugned orders, dated November 7, 1972, be declared void and a Mandamus
directing the respondents to issue the licences for the import of the materials
in question for the licensing period, April 1969-March 1970, in favour of the
petitioners.
At the outset, Mr. Prasad, appearing on
behalf of the respondents, has raised these objections: (1) Article 19 (1) (g)
on which the petitioners stake their claim can be availed of only by a citizen
of India; the writ petition filed by the firm is therefore not maintainable;
(2) Since the petitioners had no fundamental right to the grant of the licences
in question and the law in pursuance of which Respondent 3 passed the impugned
order, was intra vires, the procedural irregularity or error, if any, committed
by the Respondent in the exercise of his jurisdiction, not having resulted in
violation of or threat to any fundamental right of the petitioners, cannot be
impeached by way of a petition under Article 32 of the Constitution. Reference
has been made to Smt. Ujjam Bai v. State of U.P. (1) : (3) No Mandamus or other
relier as prayed for by the petitioners, can be granted because the petitioners
had no specific legal right to the licences, nor was the Respondent under a
corresponding legal obligation to grant the same; (4) In any case, no import
licences for the year 1969-70 in respect of the materials in question can now
be granted because of the restrictions subsequently imposed by import Control Policy
of the year 1972.
In reply, Mr. Chitale submits that the
Respondents have not followed the mandatory procedure prescribed in the Import
Trade Control Hand Book, contravention of which entitles the petitioners to the
issue of a writ of Certiorari or any other appropriate order or direction from
this Court. This contravention, it is added, has, in effect, violated the
fundamental rights of the petitioners under Articles 14 and 19 of the
Constitution.
We find no merit in the preliminary objection
that the writ petition on behalf of the "firm" is not maintainable.
Since "firm" stands for all the partners collectively, the petition
is to be deemed to have been filed by all the partners who are citizens of
India. We, therefore,.
negative this objections (1) [1963] 1 S. C.
R. 781.
324 We however, find force in the other
contentions canvassed by the learned Counsel for the Respondents.
It must be remembered that the jurisdiction
of this Court under Article 32 can be invoked only for the enforcement of the
fundamental Tights guaranteed 'by the Constitution, and not any other legal
right. A petitioner will not be entitled to relief under this Article, unless
he ,establishes that his fundamental right has been violated or imminently
threatened. Such violation, actual or potential may arise in a variety of ways,
and it is not possible to give their exhaustive classification. But on the
analogy of Ujjam Bai's case (supra) instances, most usual, in relation to laws
regulating the citizen's right to carry on trade or business guaranteed by
Article 19(1)(g) may be catalogued as ,under:
(a) Where the impugned action is taken under
a statute which itself is ultra vires any provision of part III of the
Constitution.
(b) Where the statute concerned is intra
vires but the impugned action is without jurisdiction on account of a basic
defect in the constitution of the authority or tribunal or owing to the absence
of a preliminary jurisdictional fact i.e. a condition precedent to the exercise
of jurisdiction;
(c) Where the impugned action is based on a
misconstruction of the ultra vires statute or is so contrary to the established
procedure or rules of natural justice that it results in violation of a
fundamental right.
The instant case is clearly not covered by
any of the categories.
Herein, it is not contended that the Import
and Export (Control) Act, 1947 or any Order or rule made thereunder is ultra
vires. Nor is the validity of the Import Control Policy Statement (for the
period April-March 1969) known as Red Book impeached. Indeed, this Policy
statement is the sheet-anchor of the petitioners' claim. Such a Policy
Statement, as distinguished from an Import or Export Control order issued under
s.3 of the said Act, is not a statutory document. No person can merely on the
basis of such a Statement claim a right to the grant of an import licence,
enforceable at law. Moreover, such a Policy can be changed, rescinded or
altered by mere administrative Orders or executive instructions issued at any
time.
From the counter-affidavit filed on behalf of
the Respondents, it is clear that the Import Trade Control Policy (Red
Book-Vol.1) had been amended and the import of the materials in question for
utilization in the end products of most 'automobile parts' was prohibited as
per instructions conveyed by Chief Controller of Imports & Exports in his
letter No. IPC(Gen. 33)/73/72/3499, dated September 29, 1.972 although general
notice of this amendment was published later on August 18, 1973 (Vide Annexure.
R-5). The result was that in accordance with the amended Import Trade Control
Policy, the Respondent could not, in November 1972, grant the licences applied
for to the petitioners in respect of the past period, April 1969-March 1970.
325 It is nobody's case that Respondent 3
lacked inherent jurisdiction to deal with and decline the application for the
grant of the licences. Serious complaints of the commission of criminal
offences arising out of the mis- utilization of materials previously imported
under import licences, were pending investigation by the C.B.I. against the
petitioners. Subsequently, a criminal complaint has also been made in court for
trial of the petitioners and others for those offences. In these circumstances,
it could not be said that the disposal of the applications, was delayed by
Respondent 3 due to ulterior motives, or that the refusal to grant the licences
was violative of the rules of natural justice.
So that as it may, on the basis of an Import
Trade Policy an applicant has no absolute right, much less a fundamental right,
to the grant of an import licence. The nature of such a claim came up for
consideration before this Court in Deputy Assistant Iron and Steel Controller
and anr. v. L.Maneckchand, Proprietor, Katrella Metal Corpn., Madras. (1) That
was an appeal by special leave against the judgment of tile High Court rendered
in exercise of writ jurisdiction under Art. 226. The writ-petitioner asked for
the issue of a Mandamus requiring the authorities to consider his application
for licence to import stainless steel in terms of 1968-69 Policy and not in
accordance with 1970-71 Policy when the application was made. This Court held
that in view of s.3(1)(a) of the Imports and Exports Control Act, 1947 and cl.6
(1) (a) of the Imports (Control) Order, 1955, an applicant has no vested right
to an import licence in terms of the policy in force at the time of the
application. No case for the Mandamus prayed had been made out, particularly
when the delay in disposing of the application for licence was not due to the
fault of the Licensing Authority.
The ratio of Maneckchand's case (supra), is
applicable with greater force to the present petitions which have been made
under Article 32 of the Constitution. The instant case is no doubt one of delay
on the part of the authority, but this delay could not be said to be 'undue' or
motivated by bad faith. In view of the supervening criminal proceedings against
the petitioners, the Respondent might have thought that it was better for him
to defer decision on the applications till the termination of the criminal
proceedings.
Nor do we find any substance in the
contention that the "existing instructions" or the orders made in
pursuance of the Import & Export Control Act place "unreasonable
restrictions" on the petitioners' right to carry on trade or business.
These restrictions obviously have been imposed in the interests of the general
public and national economy.
Again, in this connection the observations
made by this Court in Maneckchand's case (supra) are relevant and ,nay be
extracted "....it has to be borne in mind that in the present stage of our
industrial development imports requiring foreign exchange have necessarily to
be appropriately controlled and regulated. Possible abuses of import quota have
also to be (1) [1972] 3 S.C.R. 1.
326 effectively checked and this inevitably
requires proper scrutiny of the various applications for import licence. In
granting licences for imports, the authority concerned has to keep in view
various factors which may have impact on imports of other items of relatively
greater priority in the larger interest, of the overall economy of the country
which has to be the supreme consideration".
Lastly, there is no question of the violation
of Article 14 of the Constitution. Excepting a nebulous allegation in the rejoinder,
the petitioners have not set up any plea of hostile discrimination. They have
not given any particulars whatever, of any other applicant, similarly situated,
who' might have been granted such an import licence in like circumstances.
For all the reasons aforesaid, the petitions
fail and are dismissed, but, in the circumstances of the case, without any
order as to costs.
V.P.S. Petitions dismissed.
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