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IN THE HIGH COURT OF BOMBAY
V.S. Kotwal, J.
American Dry Fruit Stores.... Petitioners.
Versus
Union of India others .... Respondents.
Writ Petition No. 3422 of 1986, decided on 3-4-1990.
Advocates appeared :
F.H.J. Taleyarkhar with J.C. Patel instructed by C.R. Patel Co., for petitioners.
M.A. Shringarpure, Government Pleader, for respondents.
This doctrine can equally be applicable against the Government and further clarified that when the Government makes a promise knowing that
it shall to acted upon and, in fact acts on it and thus alters its position, the Government is bound by its and the promise would be enforceable against the Government at the instance of the promise, which can be even notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract and as such the Government cannot claim immunity from the applicability of this principle. However, no doubt the Supreme Court has enunciated and clarified in favour of the promiser such as when the Government can establish that having regard to subsequent events it would be unequitable to bind the Government by the promise the Court may not raise an equity in favour of the promises and enforce the promise and such a situation would arise when the Government establishes that the public interest would be prejudiced if the Government is bound by the promise. However, there is a rider that for this purpose Government must place all the relevant materials as the onus is rigorous on the Government and they cannot get away from the liability on some indefinite and undisclostd ground of necessity nor can the Government decide on its own that such a action is necessary. the Government, therefore must disclose to the Court all the necessary material for all these subsequent conduct on account of which this exemption is sought for and more claim of change of policy would not be sufficient because it is for the court to decide whether public interest lies and what the equity of the case demands and it is only in such cases where overriding public interest requires that the Government should not be bound when the Court can decide upon it, though the Court would not act on the mere ipse dixit of the Government, because it is the privilege of the Court to decide whether the Government would get exemption.
HYDERABAD TENANCY AND AGRICULTURAL LANDS ACT, 1950.
Section. 5 - Expression family in Section 5 It is not to be continued narrowly to mean only a member of Hindu Joint family-Act applicable to all tenants irrespective of their personal law-Held, cultivation by nephew can be treated as cultivation for and behalf of uncle.
In S.L. Sudalaimuthu Chettiar v. Palaniyandavar, AIR 1966 SC 469, similar question is considered by the Supreme Court, though under Madras Cultivating Tenants Protection Act, 1955. The ratio laid down by the Supreme Court would squarely apply in the present case. What is observed by the Supreme Court in this case is :
"Before an heir can be given the benefit of the definition of carry on personal cultivation it is necessary for him to establish that some one is contributing his physical labour in the cultivation of the land and that someone is a member of his family. A son-in-law can be regarded as a member of the family, because the word family is not to be construed in a narrow sense or meaning only a member of a Hindu Joint family because the Act applies to all tenants irrespective of the personal laws, which govern them. A person can, therefore, be property regarded as being a member of his wifes family and not merely of his fathers family."
In view of the ratio, laid down by the Supreme Court, in the case cited above, there is no force in the contention that the Hindu joint family concept has no application for considering the property relations of the Muslims. So far as the question of deemed tenancy under Section 5 of the Hyderabad Tenancy and Agricultural Lands Act is concerned, the cultivation by a nephew will be the cultivation for and on behalf of the uncle, irrespective of the character of joint-ness of family.
2. The petitioners are a firm registered under the Partnership Act and they carry on business of manufacturing, exporting and delaing in food products and importing for their business raw materials and other goods for stock and sale. The second respondent in the Chief Controller of Imports and Exports at New Delhi; the 3rd Respondent is the Joint Chief Controller of Imports and Exports at Bombay while the 4th Respondent is the Collector of Customs at Bombay and the 1st Respondent is the Union of India.
3. An order of April 1, 1986 is the starting point which ultimately generated the disputes and the controversies. Such an order was passed under sections 3 of the Imports Exports (Control) Act, 1947 (shortly the Act) and it was issued by the 1st Respondent styled as Import Trade Control Order (the Order) No. 49/85-88 dated April 1, 1986 whereby the 1st Respondent gave general permission to import into India goods of the description specified in the Schedule annexed to the said order subject to the conditions specified therein. This Order is also designated as Open General Licence No. 15/86 (OGL). Item No. 8 in the said Schedule to that Order is the pivot around which revolve the whole structure of the controversy. Under that item Crude Drugs which were required for Ayurvedic and Unani medicines, as appearing in List No. 4 in Appendix 6 of the Import and Export Policy for 1985-88 (the Policy), were permitted for the import under the Order with certain conditions and what is more relevance and utmost important in the wake of the controversy is that the said commodity could be imported by any person for stock and sale purposes. List 4 of Appendix 6 relates to two items at Srl. Nos. 47 and 48 i.e. Darchini (bark) and Lavang, Laung (Flower bud).
4. In pursuance of the grant of the OGl and the general permission thereunder, as available under the Order, the petitioners, on October 4, 1986 entered into a contract with the Dipak Trading Co. Pvt. Ltd. of Singapore, through their Bombay Agents Messrs Mukesh Gopaldas Dattani for the purchase and import of 10 Metric Tonnes of Lavang or Laung and 13 Metric Tonnes of Darchini referrable to these Items 47 and 48 respectively. According to the petitioners the said contract was a concluded one as parties have confirmed the transaction and thus allowed themselves to be bound by the said contract. A letter of confirmation has been issued by the other party on the same day i.e. October 4, 1986. As a follow up action and in pursuance of the said contract, two days thereafter, i.e. October 6, 1986, the State Bank of India, Bombay, at the instance of the petitioners, established an irrevocable and transferable Letter of Credit No. 86/46/Matunga in favour of the said other party Dipak Trading Co. Pvt. Ltd. of Singapore.
5. However, the petitioners had to face a rough tide thereafter. On October 22, 1986 the petitioners learnt that a Trade Notice No. 251/85-88 dated 4th October, 1986 was issued by the office of the 3rd Respondent in which attention was drawn of the Trade to the Public Notice No. 121 ITC(PN)/85-88 dated 6th October, 1986 issued by the 2nd Respondent. It is significant that by the said public notice, the import policy for 1985-88 came to be amended by deletion of these two very Items Nos. 47 and 48 from List 4 of Appendix 6 with the inevitable result that the said two Crude Drugs i.e. Darchini and Lavang, were sought to be tak
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