9911796707
TMI Blog1991 (1) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... gnised export house within the meaning of Import Policy from April to March 1982-83 issued by the Government of India. Under the Import Policy various kinds of licences known as replenishment licence, advance licence and imprest licence are issued to the exporters. The replenishment licences are issued for the purpose of replenishment of imported items against exports already made. An advance licence is issued where the import is allowed under the duty exemption scheme, while the imprest licence is issued when the import is allowed outside the duty exemption scheme. Under the relevant policy the export houses were given facility of importing OGL items against replenishment licences without debit to the value of the licence. As far as the advance and imprest licences are concerned, the same were issued for the import of certain items meant for export. Paragraph 185(4) of the Import-Export Policy April 1982 to March 1983, inter alia, provided that the facility for import of OGL items available in sub-para (3) may also be allowed to Export Houses against their advance/imprest licence to the extent to which they are rendered ineligible to obtain REP licence. It further provides that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1982-83 and the ground given was not correct. The authorities sent a reply on January 21, 1985 reiterating the rejection of the endorsement. The two grounds on which the authority placed reliance for refusing the application were : (a) the provision for OGL endorsement was available in 1981-82 and 1982-83 Policy period and that the same should have been availed of during these policy periods; and (b) that there is no provision for OGL endorsement in 1983-84 or 1984-85 Policy period. 4. The respondents feeling aggrieved by the rejection of the application by the authorities, filed Writ Petition No. 416 of 1985 on the original side of this Court on February 18, 1985. The respondents pointed out that in Writ Petition No. 1465 of 1984 decided by the Single Judge on September 18, 1984 the rejection of the application on identical grounds was set aside and the authorities were directed to make the requisite endorsement. The petition was resisted by the authorities inter alia, claiming that though the decision of the Single Judge of this Court in W.P. No. 1465 of 1984 was upheld by the Division Bench in appeal on March 19, 1985 the authorities had moved the Supreme Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en specifically banned under the current policy but with a cut to the extent of 25% of the c.i.f. value mentioned in Column 6 of the said licence. (c) This licence will be non-transferable. The respondents paid the costs as directed by the learned Judge and sought the endorsement but the appellants preferred the appeal and secured interim relief of stay of the operation of the order of the learned Judge. 5. Shri Bhabha, learned counsel appearing on behalf of Government of India, very fairly stated at the outset that the respondents are entitled to the relief on merits as sought in the petition, in view of catena of decisions of the Supreme Court. The learned counsel also very fairly stated that it was not accurate to reduce the accrued benefits to the respondents, but urged that the learned Single Judge should have dismissed the petition on the ground of delay. Shri Bhabha submitted that the ground of delay should be examined from two different angles, first there was a delay on the part of the respondents in applying for revalidation of the imprest licence and requisite endorsement on OGL. Secondly, the respondents were guilty in approaching this court in writ jurisdiction b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of securing premium on import of those items during the subsequent policy. It was urged by the learned counsel that the exchange position of the country and the policy of the Government regarding International Trade varies from year to year and it would not be proper for the Court to direct revalidation of imprest licence and OGL endorsement when the respondents had deliberately delayed making application for revalidation with an ulterior purpose. It is not possible to accede to the submission of the learned counsel for more than one reason. 7. In the first instance it is not open for the appellants to raise the contention that the relief sought in the petition should be refused on the ground that application for revalidation of imprest licence and endorsement of OGL items was made after a considerable delay. As mentioned hereinabove the redemption certificate was issued on October 20, 1983 and the application for revalidation and OGL endorsement was filed by the respondents on November 30, 1984. The complaint that the respondents did not file the application almost for a year and therefore should be deprived of the advantage because by delaying process of applying, the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not permissible for the appellants to supply fresh grounds in the return filed in answer to the petition filed by the respondents and claim that the order can be sustained also on the ground that the respondents did not apply forthwith for revalidation of imprest licence and OGL endorsement thereon. The second reason for not acceding to the submission of Shri Bhabha is that the appellants have not brought on record any material to indicate as to how the respondents secured advantage by delaying in making application for revalidation and OGL endorsement on the imprest licence. We repeatedly inquired from the learned counsel as to how the respondents would gain any benefit by delaying the process of making application and we were unable to get any positive answer. It is undoubtedly true that the Courts would be slow in granting relief in respect of grant of import licence when problems of conflicting policy considerations arise. The delay in making application may lead in a given case to an undue advantage to the licensee, but it cannot be assumed in every case that mere failure to apply forthwith for revalidation and the endorsement should automatically deprive the licensee from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a period of one year from the date of grant of redemption certificate. For these reasons we are unable to accede to the submission of Shri Bhabha that the learned Single Judge should have dismissed the petition refusing to grant any relief to the respondents on the ground that the respondents are guilty of laches in making application for revalidation and OGL endorsement on the imprest licence. 8. The second limb of the submission of Shri Bhabha on the ground of delay is that the learned Single Judge should not have entertained petition under Article 226 of the Constitution, which confers discretionary jurisdiction on the High Court, when the respondents approached the High Court after a considerable delay. It was urged by the learned counsel that the two decisions of the Supreme Court referred to hereinabove and reported in AIR 1989 SC 674 = 1989 (40) E.L.T. 226 (SC) (supra) and AIR 1989 SC 690 = 1989 (39) E.L.T. 503 (SC) (U.O.I. Ors. v. M/s. Suksha International Anr.) clearly support the submission that inordinate delay in filing the writ petition should lead to refusal of the relief. There cannot be any debate on the principle that the writ court should be slow in assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st contention urged by Shri Bhabha is that the operative order passed by the learned Single Judge is not in accordance with the directions given by the Supreme Court in several matters. The grievance of the learned counsel is in respect of the directions given in Clause (b)(ii) of the operative order. The learned Judge directed that the endorsement should be valid for import of OGL licence under Paragraph 185 (excluding sub-para 7 thereof) of the AM 1983 Policy except any item, the import of which has been specifically banned under the current policy. Shri Bhabha submits, and in our judgment with considerable merit, that this direction of the learned Single Judge requires modification and the respondents would be entitled to import items permissible under the OGL list in the Import Policy of the year 1982-83 and which items are also permissible for import under the OGL list at the time of actual import. The learned counsel invited our attention to the order passed by the Supreme Court in Civil Appeal No. 5619 of 1990 on November 27, 1990 (Union of India v. Premchand Somchand Shah) where an identical direction was given. In our judgment, the operative part in Clause (b)(ii) of the , ..... X X X X Extracts X X X X X X X X Extracts X X X X
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