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2006 (8) TMI 370 - HC - FEMAWrit jurisdiction - Territorial jurisdiction - EXIM - Pulses export - Foreign Trade Policy - Change in Policy - Interpretation of Statute
Issues Involved:
1. Authorization of the deponent of the supporting affidavit. 2. Territorial jurisdiction of the court. 3. Validity of the Notification dated 4-7-2006 under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992. 4. Entitlement of the petitioners to proceed with the export of Chick Peas. Detailed Analysis: Issue 1: Authorization of the Deponent of the Supporting Affidavit The respondents raised a preliminary objection regarding the authorization of the deponent of the supporting affidavit. The petitioners produced a resolution dated 17-7-2006 by the Directors of Petitioner No. 2 authorizing Shri Pradeep Jindal to take necessary steps, including legal action. The court was satisfied with the authorization provided and found no merit in the respondents' objection. Thus, this issue was resolved in favor of the petitioners. Issue 2: Territorial Jurisdiction The court examined whether it had territorial jurisdiction based on the pleadings. The notifications in question were issued by the DGFT in Delhi, and representations were made to the DGFT in Delhi. The court held that the facts pleaded in the writ petition showed an integral part of the cause of action arose in Delhi. Therefore, the court had jurisdiction to entertain the writ petition, resolving this issue in favor of the petitioners. Issue 3: Validity of the Notification dated 4-7-2006 The petitioners challenged the retrospective effect of the notification dated 4-7-2006, arguing it was ultra vires Section 5 of the Act. The court examined the statutory provisions and judicial precedents, concluding that Section 5 did not confer the power to issue retrospective notifications. The court held that the notification dated 27-6-2006 was effective from its date of publication, not from an earlier date announced in the media. Consequently, the notification dated 4-7-2006, which sought to make the ban effective from 22-6-2006, was declared ultra vires and invalid. Issue 4: Entitlement to Proceed with Export The court noted that the petitioners' transactions satisfied the requirements of Para 1.5 of the Foreign Trade Policy, as irrevocable LCs were established before the restriction date. However, the court refrained from issuing a mandamus to permit the shipments, as the Central Government had not yet rendered a decision on the petitioners' request under Para 1.5. The court expected the government to consider the petitioners' request urgently and render a decision without delay. Conclusion The court struck down the notification dated 4-7-2006 as ultra vires Section 5 of the Act and allowed the writ petition. The court expected the government to consider the petitioners' request under Para 1.5 of the Policy promptly.
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