D. Navtnchandra And Company. , Bombay vs Union Of India

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(SC) 428

SUPREME COURT OF INDIA
R.S. PATHAK, CJI., SABYASACHI MUKHARJI AND RANGANATH MISRA, JJ.
Civil Writ Petns. Nos. 1483, 1494 and 1544 of 1986 (with CMP Nos. 34075-76, 34233-36 of 1986 and 932-33 and 2689-92 of 1987), D/- 15-4-1987.
M/s. D. Navinchandra and Co., Bombay and another etc., Petitioners
Versus
Union of India and others, Respondents.

Headnote:
Canalised Items - Banned - Diamond Exporters - Petitioner filed a writ petition before High Court - Rule absolute holding that canalised items were not banned items and there was no reason why first petitioner should not be compelled to approach canalising agency for import of same - For sake of convenience, party has chosen to describe as Rajnikant Bros. & Ors. case allowing diamond exporters same and holding that merely canalising an item could not be regarded as import of that item being absolutely banned - Whether canalised or otherwise in accordance with relevant rules - Whether non-canalised items could be imported directly, and not through canalised agency, was not in issue in either of these two cases, nor decided or adjudicated - Whether items were sought to be imported by diamond merchants were canalised, would not be an impediment to import directly by them – Held, Canalised items are those items which are ordinarily open to import only through a public sector agency - Although generally these are importable through public sector agencies, it is permissible for any import policy to provide an exception to rule and to declare that an importer might import a canalised item directly - It is in that sense and that sense only that Court could have intended to define entitlement of diamond exporters - Diamond exporters and dry fruit exporters have their full round in this Court - Speaking entirely for, conscience protests that when thousands remediless wrongs await in queue for this Courts intervention and solution for justice, petitions at behest of diamond exporters and dry fruit exporters where large sums are involved should be admitted and disposed of by this Court at such a quick speed - Neither justice nor equity nor good conscience deserves these applications to be filed or entertained - It has been prayed that clear-cut date must be fixed where contracts had been entered into and in which letters of credit have been entered into, there should be no prosecution - It has been further prayed that where however contracts have been entered into but no letters of credit have been opened, such parties should not be penalised in facts and circumstances of case - No direction is necessary by this Court on this aspect - Authorities concerned will decide same in taking into consideration all facts and circumstances and taking into consideration case of petitioners and alleged claim of bona fide on their part - Government in exercise of its governmental, public or executive functions and doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat applicability of doctrine of promissory estoppels - But in this case no such case of promissory estoppel has been made out - Intervention applications filed in this connection are allowed and submissions contrary to what court had stated hereinbefore are rejected – Order accordingly.

Judgement

SABYASACHI MUKHARJI, J.:- Writ Petition No. 1483 of 1986 is directed against the Show Cause Notices dated 21st August, 1986, 11th September, 1986 and 26th September, 1986 issued to the petitioners Messrs D. Navinchandra & Company, a partnership firm and Dilipkumar Dalpatlal Mehta, a partner of the said firm. In order to appreciate this challenge, it is necessary to refer to certain facts. This petition raises the question of the rights of the petitioners and other diamond exporters who were entitled to Export House Certificates and additional licences under import policy of 1978-79 and who were granted the same pursuant to the judgment and order of this Court dated 18th April, 1985. As we shall explain later, there is no conflict with this decision of a Bench which consisted of a Bench of three Judges and the subsequent decisions of this Court which we shall presently refer. It is necessary also that in order to make out a case, the petitioners have sought to emphasise on the point that the decision dated 18th April, 1985 was a decision of three learned Judges, in order to spin out a case of some sort of conflict with this decision and certain subsequent decisions of this Court consisting of Benches of two learned Judges. It appears that the import policy issued by the Government of India for the year 1978-79 by paragraph 176 provided for additional licences. On 29th April, 1979, the first petitioner, diamond exporter, was refused Export House Certificate. The said petitioner filed a writ petition before the High Court of Bombay being Misc. Petition No. 1293/1979. By his order and judgment, Pendse, J. made the rule absolute holding that canalised items were not banned items and there was no reason why the first petitioner should not be compelled to approach the canalising agency for import of the same. On 7th April, 1983, the Delhi High Court delivered a judgment in Civil Writ Petition No. 1501 of 1981 which for the sake of convenience, the party has chosen to describe as Rajnikant Bros. & Ors. case allowing the diamond exporters the same and holding that merely canalising an item could not be regarded as import of that item being absolutely banned. Against these judgments special leave petitions were filed in this Court.

2. Appeal was also filed on 27th March, 1984 by the Import Control Authorities and Union of India against the judgment dated 11th November, 1983 mentioned hereinbefore passed by Pendse, J. and the said appeal was dismissed on that date. Against the same, the Export Control authorities and Union of India filed Special Leave Petition No. 7190 of 1984 in this Court. Similar special leave petitions were filed in this Court against similar judgments of the Bombay High Court.

3. On 18th April, 1985, by a common judgment, the special leave petitions were disposed of. As much has been made out of this judgment and order, it is necessary to refer to the same. The matter was disposed of by the order in Civil Appeal No. 1423 of 1984 by a Bench consisting Fazal Ali, J., Varadarajan, J. and one of us (Sabyasachi Mukharji, J.). It was held by the said order that there was no requirement of diversification of exports as a condition for the grant of Export House Certificate in the Import Policy for 1978-79. Therefore, while confirming the High Courts judgment, quashing the order impugned in the writ petitions in the High Court, this Court directed the appellants namely Union of India and Import Control Authorities to issue necessary Export House Certificates for the year 1978-79. It was further directed that Export House Certificates should be granted within three months from that date. The order stated that save and except items which are specifically banned under the prevalent import policy at the time of import, the respondents shall be entitled to import all other items whether canalised or otherwise in accordance with the relevant rules. The appeals were disposed of accordingly with no order as to costs.

4. Pursua