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TMI Blog1993 (6) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner to export the sandalwood chips and powder in order to fulfill the seven contracts as per Annexures F and F-1 to F-6. (d) To issue a writ order or direction in the nature of mandamus directing the respondents to pay and compensate all the losses suffered by the petitioner. 2. The brief facts leading to this writ petition are as follows : The petitioner has been carrying on business dealing in sandalwood and sandalwood chips for the last over 15 years earning foreign exchange to the country. The main sandalwood growing States in the country are Karnataka and Tamilnadu. There is a great demand for sandalwood in almost all the countries and the same is exported from this country earning foreign exchange. The petitioner has been carrying on the said business after taking necessary permission and licence from the concerned authorities. The petitioner has been participating in the auctions conducted by the Department of Forest from time to time by depositing earnest money deposits, which amounts to lakhs of rupees for purchasing the sandalwood in the said auctions. The petitioner exports the sandalwood chips on the basis of pre-existing orders from the countries after obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting traders individually. Accordingly, the petitioner pursuant to Clause 21 made seven applications requesting the respondents to consider the grievances of the petitioner in the light of the hardship faced. The copies of the said letters are filed at Annexures C and C l. In the meanwhile, the petitioner has filed W. P. No. 16383/92 in this Court questioning the legality, propriety and validity of the new Export Policy-Annexure B. This Court issued Rule and granted an interim order on 28-5-1992, which reads: That the operation of the Export and Import Policy (1-4-1992 to 31-3-1997) Chapter XVI, Part I, Page 65 under the Negative List of Export No. 158 - prohibited items - Sl. No. 7 (Annexure C 2 to the writ petition), issued by the respondent No. 1 in so far as it relates to the petitioner be and the same is hereby stayed . The respondents failed to implement the said interim order on the ground that there was no specific direction to the respondents to permit the petitioner to export the sandalwood and therefore the petitioner sought clarification. This Court was pleased to clarify the position on 10-7-1992. Thereafter, the petitioner made several requests pleading hardsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking delivery of the quantity of the auctioned sandalwood : (a) The petitioner will be liable for payment of interest at the rate of 13% per annum for the value of the sandalwood. (b) The petitioner is liable to pay a sum of Rs. 35/- per tonne per day as demurrage, if auctioned sandalwood is not taken delivery within 75 days from the date of confirmation of sale. (c) The petitioner will be black-listed. It is needless to state that the petitioner is also liable to pay the difference in price and all losses and expenses, if the balance quantity is re-auctioned as per Condition Nos. 9 and 30 of Annexure-G1A. The District Forest Officer, Tirupattur, has issued a letter demanding a sum of Rs. 29,29,779 /- from the petitioner being the sales tax, which was exempted on the strength of the pre-existing foreign contracts under the provisions of the Central Sales Tax. Copy of the said communication is filed at Annexure G2. Similar is the position in respect of auctions conducted by the Department of Forests of Karnataka and Kerala. Annexures H, H1, J, J1 and J2 indicate the hardship the petitioner is put to. When the Forest officials of Kerala State did not permit the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export of sandalwood. This statement is supported by Annexure L. Thus, because of several commitments made by the petitioner in view of the Policy-Annexure A, if it is not allowed to fulfil the contractual obligations, it will have to pay heavy damages besides losing reputation in the International market. In spite of the petitioner having brought to the notice of the respondents all the facts and the hardship suffered by it, the respondent No. 2 without application of mind and without considering the same issued the communication dated 12-8-1992 stating that the request made by the petitioner was not found possible to accede. The copy of the said communication is produced at Annexure N. The efforts made by the petitioner with other authorities at the highest level in the Union of India were also in vain. Hence, this writ petition. 3. The statement of objections is filed on behalf of the respondents contending that the order dated 12-8-1992 Annexure N cannot be quashed, as it does not suffer from any illegality or error apparent on the face of the records; the petitioner is not entitled to seek for relaxation of the ban on the export of sandalwood and its products as a matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition. 4. Smt. Nalani Chidambaram, learned Counsel for the petitioner urged that the impugned order - Annexure N dated 12-8-1992 is unsustainable on the face of it for more than one reason. They are: (1) In view of the judgment of the Division Bench of this Court passed on 14-7-1992 in W. A. No. 1349/92 the respondent No. 2 ought to have considered the request of the petitioner for relaxation of ban under Clause 21 of the new Policy - Annexure B. (2) There is total non-application of mind in passing the impugned order - Annexure N besides it being arbitrary. (3) Clause 21 of the new policy contained in Annexure B is plainly applicable to the facts of the case pleaded by the petitioner and relaxation ought to have been given to it. Failure to do so, has resulted in great injustice and hardship to the petitioner and loss of foreign exchange and revenue to the Union of India and State Governments. The learned Counsel further contended that when respondents did not consider the repeated requests and representations of the petitioner seeking permission to export sandalwood chips/products covered by contracts Annexures-F and F-1 to F-6 it had to file writ petition No. 16383/92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h right nor he can claim it as a matter of right. He found it difficult to support the impugned order-Annexure-N, as it does not show consideration or application of mind of respondent No. 2 to the facts of the case, in that view he submitted that at best, respondent No. 2 may be directed again to consider the case/representation of the petitioner and pass appropriate orders on merits. 6. I have considered the submissions made by the learned Counsel for the parties. 7. I do not find any serious dispute on the facts of this case. 8. The question centers round is : Whether the petitioner has made out a case for relaxation under Clause-21 of the Policy-Annexure-B and if so whether its case should be considered and appropriate orders be passed by this Court itself or respondent No. 2 be directed again to consider its case when the impugned order-Annexure-N does not show the consideration of the case of the petitioner or application of mind of respondent No. 2 in passing the said order-Annexure-N? 9. I think it is appropriate to extract the relevant portions from the judgment of the Division Bench of this Court dated 14-7-1992, passed in W.A. No. 1349/92 in order to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that would be caused to them by enforcing the new policy. Sri Shylendra Kumar, learned Central Government Standing Counsel for the appellants also placed reliance on a decision of the Supreme Court in Collector of Customs, Calcutta v. M/s. M. Shashikant and Company [A.I.R. 1992 S.C. 696 = 1992 (57) E.L.T. 684 (S.C.)]. That decision relates to the Import Policy of 1978-79 and 1985-88. The decision has been correctly summed up in the Head Note thus: Where the earlier Supreme Court order made it clear that additional licence holders under Export House, would be entitled to import items which were only permitted under Import Policy of 1978-79 and also policy at time of import and the item imported was banned under import policy at time of import i.e. Import Policy of 1985-88, such import would be unauthorised and order of confiscation of such goods would be justified. In such a case, the licence holder would not also be entitled to advantage of subsequent Supreme Court order which provided that exporters who pursuant to issue of Additional Licences under Import Policy of 1978-79 have opened and established irrevocable Letters of Credit before Oct. 18, 1985 would be permitted to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary for disposal of that application within two weeks from today", (emphasis supplied) 10. It is clear from what is extracted above that respondents 1 to 4 herein who were the appellants in the said writ appeal were directed to consider and decide the application filed by the petitioner on 21-5-1992 seeking relief under Clause 21 of Chapter IV of the Export and Import Policy for the year 1st April, 1992 to 31st March, 1997 on or before 20th of August, 1992. Further, it is to be noticed that the learned Senior Standing Counsel for the Central Government for the respondents herein submitted that the said application dated 21-5-1992 will be considered and decided within four weeks on the basis of the records or documents that may be produced by the petitioner. In view of the aforesaid specific direction and the submission of the learned Senior Central Government Standing Counsel made in the writ appeal I do not think there was any scope or choice to respondent No. 2 in not considering the application of the petitioner dated 21-5-1992 under the said Clause 21 of the new Policy-Annexure B when in the writ appeal it was not the case of the respondents that Clause 21 of Annexure B did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sandalwood chips. These are the orders secured when the old Policy - Annexure A was in force. Thus, it is clear that they were the orders received by the petitioner prior to 1-4-1992 from which date the new Policy -Annexure B was made effective. 15. Annexure G1 is the letter dated 6-4-1992 of the District Forest Officer addressed to the petitioner to take delivery of the sandalwood within 15 days, failing which action would be taken. It is stated that since the balance of the sale amount is not paid on the due dates, earnest money deposit paid by the petitioner was liable to be forfeited to the Government and that the sandalwood would be sold in auction at the risk of the petitioner. Annexure G2 is another letter of District Forest Officer, Tirupattur Division, demanding sales tax from the petitioner for having not produced the records to export the sandalwood purchased with a view to export. Annexure H is the letter dated 1-4-1992 addressed by the petitioner to the Principal Chief Conservator of Forests II, Government of Kamataka, Bangalore, seeking refund of the earnest money deposit and to withdraw the offers in view of the new Government Policy. Annexure H1 is the reply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and may defeat the very purpose of Clause 21 of Annexure B for which it is made. 17. The Supreme Court in Comptroller and Auditor General of India, Gian Prakash, New Delhi and Another v. K.S. Jagannathan and Another [AIR 1987 S.C. 537] having discussed in paras 18 and 19 of the said judgment in regard to the power of High Court to issue writ of mandamus, in para 20 has stated thus: There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 = 1992 (57) E.L.T. 684 (S.C.) (Collector of Customs, Calcutta v. M/s. M. Shashikant Company). The first of the decisions states that concession cannot be claimed as a matter of right and a writ of mandamus cannot be issued in such a case. The facts of the said case are entirely different. In the case on hand the petitioner was entitled for consideration of his case for relief under Clause 21 of the new Policy - Annexure B and respondent No. 2 failed to exercise discretion conferred on him in spite of the direction. The second case deals with the unauthorised import of goods and confiscation of such goods. The above said decisions do not help the case of the respondents. 21. Thus, in the result, for the reasons stated above, I pass the following order: (1) The Writ Petition is allowed. (2) The impugned order Annexure N dated 12-8-1992, passed by respondent No. 2 is quashed. (3) Issue a writ in the nature of mandamus directing respondent No. 2 to issue necessary permission/licence in favour of the petitioner to export sandalwood chips and powder in order to fulfil the seven contracts as per Annexures F and F-1 to F-6 giving relaxation under Clause 21 of new Policy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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