Diamonds & Ors Vs. Union of India & Ors  INSC 1 (2 January 1989)
M.N. (J) Venkatachalliah, M.N. (J) Pathak, R.S. (Cj)
1989 AIR 674 1989 SCR (1) 13 1989 SCC (2) 356 JT 1989 (1) 7 1989 SCALE (1)1
of India, 1950: Articles 32 and 226---Imports and Exports Controller--Declining
to revali- date and endorse six Imprest licences--Unexplained and inordinate
delay in filing writ petition-Court--Whether can decline to interfere.
a recognised Export House for purposes of the Import-Export Policy, 1982-83
were granted six imprest licences for the import of uncut and unset diamonds
with the obligation to fulfil certain export commitment for the export of India, of cut and polished diamonds. They
did not seek the revalidation and endorsement for OGL items within the time
prescribed under Paragraph 185(4) of the Import- Export Policy 1982-83 (AM
1983). Only in the year 1986, after a lapse of several years from the
completion of their export-obligations, they sought such revalidation and en- dorsement.
The Joint Chief Controller of Imports and Ex- ports, by two orders dated
5.8.1986 and 9.4.1986, declined the request, on grounds of inordinate delay in
seeking revalidation and endorsement, and on merits and permissibil- ity of the
Writ Petition, the petitioners challenged these orders contending that in view
of the grant of revalidation of imprest licences of two other Export Houses,
consequent upon their writ petitions being allowed by the High Court and the
Special Leave Petitions of the Government against the decision being dismissed
by the Supreme Court, rejection by the authorities of the petitioners' claim
for similar revalidation, and endorsement of their imprest licences, was
discriminatory and violative of Article 14 of the Constitu- tion inasmuch as
the grounds for refusal put forward by the authorities in those cases were
exactly similar to those preferred in the case of the petitioners, and those
grounds had been found to be insufficient in law to support the refusal, and
that there was no basis for any distinction to be made in the case of
petitioners who had made their demand for revalidation after the High Court's
decision in one of those cases.
the Writ Petition, 14
Petitioners are re-agitating claims which they had not pursued for several
years. They were not vigilant but were content to be dormant and.close to sit
on the fence till somebody else's case came to be decided. Their case cannot be
considered on the anology of one, where a law had been declared
unconstitutional and void by a Court, so as to enable persons to recover monies
paid under the compulsion of a law later so declared void. There is also an unex-
plained, inordinate delay in preferring this writ petition which is brought
after almost a year after the first rejec- tion. [18B-C] Apart altogether from
the merits of the other grounds for rejection, the inordinate delay in
preferring the claim before the authorities as also the delay in filing the
writ petition before this Court does not pursuade this Court to interfere in
this matter. [18E] The rejection to this Writ Petition shall not prejudice
petitioners' case in the appeal, if such a right of appeal is available under
the appeal procedures in the policy.
Prasad v. Chief Controller, I & E, 1969(2) SCR 861, referred to.
JURISDICTION: Writ Petition No. 411 of 1987.
Article 32 of the Constitution of India.
Mehta, A. Subba Rao, P. Parmeshwaran, Harish N. Salve, N.D. Garg, Rajiv K. Garg,
P.H. Parekh, Ms. Ayesha Misra and M.N. Shroff for the appearing parties.
Judgment of the Court was delivered by VENKATACHALIAH, J- By this petition
under Art. 32 of the Constitution, Messrs. Rup Diamonds, a Registered Export
House, assail the validity of the decisions dated 9.4.1986 and 5.8.1986 of the
Joint Chief Controller of Imports and Exports declining to re-validate and
endorse six Imprest Licenses for import of Open General Licence items upon the
fulfillment by the petitioners of their export obligations under the Imprest-Licences.
Petitioners seek issue of appro- priate writs to the Authorities to re-validate
the six Imprest Licences, with appropriate endorsement for the import of open
General items under the Import Export Policy of 1982-83 (A.M. 1983).
This writ petition came up for preliminary heating along with Special Leave
Petition (Civil) Nos. 2579 of 1987 and 2580 of 1987 preferred by the Union of
India seeking leave to appeal from two Judgments of the Division Bench of the
High Court of Judicature at Bombay in two other cases.
are a recognised Export-House for purposes of the Import-Export Policy,
1982-83. They applied for, and were granted, six imprest licences:
2932347 dated 31.7.1982 for CIF value of Rs.65,28,500;
293259 dated 20.8.1982 for Rs.1,14,49,263;
0470538 dated 11.5.1982 for Rs.1,43,76,770;
0449604 dated 12.5.1981 for Rs.1,32,39,130;
0468397 dated 16.4.1982 for Rs.5,21,747; and
2927607 dated 29.4.1980 for Rs. 1,47,16,238, for the import of uncut and unset
diamonds with the obligation to fulfill certain export commitment for the
export, out of India, of cut and polished diamonds of
the FOB value, stipu- lated in each of the imprest--licences. Petitioners claim
that, pursuant to the said imprest licences, they had im- ported uncut and
unset diamonds and had also discharged their export obligations by exporting
cut and polished diamonds of the requisite value as evidenced by the Redemp- tionCertificates
which are annexed as annexure V to the memorandum of writ petition.
Petitioners claim that in terms of para 185(4) of ImportExport Policy, 1982-83,
they were entitled to the facility for the import of OGL items as is available
in the case of replenishment licences issued to export houses under clauses (1)
and (3) of para 185 of A-M 1983 policy. Para-
graph 185(4) of the AM 1983 provided:
The facility for import of OGL items available in subpara (3) above, may also
be allowed, on merits, to Export Houses against their advance/imprest licences
on account of which they are rendered ineligible to obtain REP licence. In such
cases, however, the value upto which the OGL import may be allowed, will not
exceed the value to which the Export House would have been eligible to the REP licence,
had he not obtained advance/imprest licence in question. This facility will be
available to the Export House after he has discharged the export obligation
imposed on the ad vance/imprest licence. Therefore, if by the time, the Export
House becomes eligible to this facility, the advance/imprest licence has
expired, or, if the original 16 validity left unused by that time is less than
six months, the licensing authority will revalidate the licence simultaneously
so as to give to the licence-holder a time of six months for the purpose of
importing OGL item under this facility.
the petitioners did not bestir themselves to seek the revalidation and
endorsement for OGL items for quite some time thereafter. It was only in the
year 1986 they sought such revalidation and endorsement. That was after a lapse
of several years from the completion of their export-obligations. The Joint
Chief Controller of Imports and Exports by his two decisions, one dated
5.8.1986 per- taining to the Imprest Licence 2927607 dated 29.4.1980 and the
other dated 9.4.1986, pertaining to the other five Imprest--Licences declined
the request. These two orders are challenged in the writ petition.
grounds for refusal in both the decisions are simi- lar, except for the
reference to certain relevant dates. The grounds are, broadly, on two aspects.
The first pertains to the inordinate delay in seeking revalidation and endorse-
ment. On this the communication says:
are surprised to have received your letter No. nil dated 21.4.1986 forwarding
therewith Imprest Licence No. 2927607 dated 29.4.1980 (exchange control copy)
for the period AM 83 for grant of revalidation and endorsement for import of
OGL items without debiting the licence in terms of para 1985 of Import Policy
for the period 1982-83 after 5 years of the expiry of the licence for which the
export obligation period was discharged on 25.10.80, 22/25.10.80, 29.10.80,
19.5.81, 5.5.81, 22.6.81, 5.5.81, 20.5.81, 29.6.81, & 22.9.81.
other words, you have made a request for revalidation and endorsement under para
185 of AM 83 Policy after 4 years and 7 months from the discharge of the export
obligation. It is, therefore, obvious that you have not cared to apply
immediately after discharge of export obligation and as such your request is
grossly time-barred ...... " The second aspect is as to the merits and
permissibility of the claim. The communication says:
" ...... More-over, in terms of para 185(7) to AM 83 Import Policy, Import
of OGL items by Export houses under the provisions to sub- paras (4) and (5) of
para 185 of the said policy is subject to the condition that the shipments of
goods shall take place within the validity of the OGL i.e. 31.3.86 or within
the validity period of the Import Licence itself (within grace period)
whichever date is earli- er. Since this date is over and the request has been
made after 4 years and 7 months after the discharge of export obligation,
question of permitting facility under the aforesaid provision does not arise.
Besides, there is no provision in the Import-Export procedures for the period
1985-86 for grant of revalidation, in which period your request has been re- ceived.
Para 73 of the said procedures states
that no revalidation of import licences of emergency licences for CCPs will be allowed
....... " The present writ petition challenge these orders. The
petitioners allege that their claims are similar to those made by M/s. Ripal
Kumar & Co., and M/s. H. Patel & Co. who had filed writ petitions No. 2477
of 1984 and No. 1465 of 1984 respectively in the High Court of Judicature at
Bombay for the issue of appropriate writs to the authorities to revalidate the Imprest-Licences,
that those writ petitions were allowed by the learned Single Judges of the High
Court, whose decisions came to be affirmed in appeal by the Divi- sion Bench;
that Special Leave Petitions 4670 of 1986 and 7389 of 1985, respectively,
preferred by the Union of India, against the said two judgments of the Bombay
High Court were dismissed by this Court and that, therefore, the rejection by
the authorities, of the petitioners' claim for similar revalidation of the six Imprest-Licences
and endorsement for OGL items would, in view of grant of revalidation and en- dorsement
in those cases, be discriminatory and violative of Article 14. It is contended
for the petitioners that the grounds for refusal put-forward by the authorities
in the case of M/s. Ripal Kumar & Co., and M/s. H. Patel & Co., were
exactly similar to those proffered in the case of petitioners also and that
those grounds had been found by the courts to be insufficient in law to support
say that they made the demand for revalidation immediately after the decision
of the Bombay High Court in M/s. Ripal Kumar & Co. 's case and that the
rejection of the petitioners' claim is wholly discriminatory, as there was no
basis for any distinction to be made in petitioners' case.
altogether from the merits of the grounds for rejec- tion-- 18 on which it
cannot be said that the mere rejection of the Special Leave Petitions in the
cases of M/s. Ripal Kumar & Co., and M/s. H. Patel & Co., could by
itself, be construed as the imprimatur of this Court on the correctness of the
decisions sought to be appealed against--there is one more ground which
basically sets the present case apart. Peti- tioners are re-agitating claims
which they had not pursued for several years. Petitioners were not vigilant but
were content to be dormant and chose to sit on the fence till somebody else's
case came to be decided. There case cannot be considered on the anology of one
where a law had been declared unconstitutional and void by a Court, so as to
enable persons to recover monies paid under the compulsion of a law later so
declared void. There is also an unex- plained, inordinate delay in preferring
this writ petition which is brought after almost an year after the first rejec-
tion. From the orders in M/s. Ripal Kumar & Co. 's case and M/s H. Patel
& Co. 's case it is seen that in the former case the application for
revalidation and endorsement was made on 12.3.1984 within four months of the
date of the redemption certificate dated 16.11. 1983 and in the latter case the
application for revalidation was filed on 20.6.1984 in about three months from
the Redemption Certificate dated 9.3.1984.
a consideration of the matter we think that, apart altogether from the merits
of the other grounds for rejec- tion, the inordinate delay in preferring the
claim before the authorities as also the delay in filing the writ peti- tion
before this .Court should, by themselves, pursuade us to decline to interfere.
Prasad v. Chief Controller, I & E,  2 SCR 861 this Court observed:
..... It is well known that the exchange position of this country and the
policy of the Government regarding Interna- tional 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 defaults committed by the Government
in 1959 or 1962. In these matters it is essential that persons who are
aggrieved by orders of the Government should approach the High Court after
exhausting the remedies provided by law, rule or order with utmost
expedition." It is stated in the two communications rejecting the claim of
the 19 petitioners that petitioners are entitled to an appeal as laid down in
the appeal-procedures in the policy. If any such a right of appeal is
available, this order rejecting the writ petition shall not prejudice
petitioners' case in any such appeal.
accordingly, decline to interfere and reject this writ petition.