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TMI Blog1995 (4) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... lity for issuance of such a certificate, as laid down in the Long Term Policy for 1988-91, Volume I, Para 217. The petitioner applied to respondent No. 3 on April 11, 1990 and on April 16, 1990 for renewal of the said certificate till March 31, 1993, as laid down in the policy. Para 217 which is relevant in this regard reads as follows : 217. Export/Trading House Certificates issued prior to 1-4-1988 would continue to be valid till the date of their expiry but it will be open to the concerned Export House/Trading House to apply for fresh certificate, if they fulfil the eligibility conditions laid down in this policy. However, requests for further recognition may still be considered in cases where these certificates are expiring on 31st March, 1988, and the applicants do not fulfil the eligibility conditions for recognition laid down in this policy, provided they fulfilled the conditions for renewal of these certificates, as laid down in the Import Policy, 1985-88; but in such cases, recognition will be granted for a period of one year only. Requests for further recognition would be considered only if the applicants fulfilled the conditions laid down in this Policy. 3. There w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 1990-93 incorporated vide Public Notice No. 15/90-93 dt. 21-5-1990. 4. The concerned department/authorities are being informed separately Yours faithfully Sd/- (C.V.L.N. Prasad) Controller of Imports Exports for Chief, Controller of Imports Exports" 4. The petitioner has impugned this Communication to the extent that it only extended the Certificate on the basis of the revised Import Export Policy for a period of one year instead of three years w.e.f. April 1, 1990 as it is contended that on the basis of the earlier policy for 1988-91, the petitioner was entitled to the issuance of EHC for a period of three years. The action, accordingly, has been challenged as illegal and invalid as the respondents could not change the policy in the midstream and to make it operative retrospectively. The respondents are estopped from denying the Certificate to the petitioner for a further period of three years as acting on the assurance of the respondents for the continuance of this Policy, the petitioner had changed its position in respect of quality, manufacturing activity, better FOB value/profits. The counsel for the petitioner has further contended that in the Preface da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Committee that the Central Government has the power to change the Import-Export policy from time to time. The Import-Export Policy for 1990-93 made by the Central Government with the approval of the Commerce Minister after relevant detailed Inter-ministerial consultations was in the interest of promotion of exports and general public interest, taking into account the needs of industrial development, import requirement, foreign exchange management, and was made in exercise of the Central Government s powers to formulate policies for the purpose, in public interest. Accordingly, the Committee held that the facts of the case under consideration, examined in the light of the Supreme Court s views mentioned above, do not attract the principles of Promissory Estoppel. The Committee also noted that para 1(2) of the Import and Export Policy for 1988-91 states : This Import and Export policy will remain in force for period of three years from the 1st April, 1988 till 31st March, 1991. The introduction of three-year policy has brought in stability and continuity to the trade regime and export promotion measures and, therefore, it has been considered appropriate to continue the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Authority for rejecting the claim of the petitioner is that the Government reserved the right to make amendments/changes in the Policy which may become necessary in public interest from time to time during the above period of 1988-91. 8. The learned counsel for the petitioner has invoked the rule of Promissory Estoppel as well as relied upon the rule of legitimate expectation which the petitioner entertained in view of the Policy for 1988-91 on the basis of which the petitioner was entitled to Export House Certificate valid till March 31, 1993. 9. The learned counsel for the respondents, on the other hand, has argued that during the subsistence of a particular Policy, the Government has a right to modify/alter/rescind the Policy and in case the Policy is changed the Doctrine of Promissory Estoppel is not applicable. The petitioner in the present case has notice of change. The representations made by the Government must be clear, unambiguous and not tentative or uncertain and, therefore, the Doctrine of Promissory Estoppel will not apply if no such representation was made by the Government. He has placed reliance on the judgment of this Court as reported in Bansal Exports (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in England is paragraph 33 of the judgment, which may be reproduced as follows : The State, however, contended that the doctrine of promissory estoppel had no application in the present case because the appellant did not suffer any detriment by acting on the representation made by the Government; the vanaspati factory set up by the appellant was quite a profitable concern and there was no prejudice caused to the appellant. This contention of the State is clearly unsustainable and must be rejected. We do not think it is necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment. What is necessary is only that the promissee should have altered his position in reliance on the promise. This position, was impliedly accepted by Denning, J. in the High Trees Case when the learned Judge pointed out that the promise must be one which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact acted on." (emphasis supplied). If a promise is acted on , suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party who acts on the belief suffer any detriment. It is not a detriment, but a benefit to him to have an extension of time or to pay less, or as the case may be. Nevertheless, he has conducted his affairs on the basis that he has had that benefit and it would not be equitable now to deprive him of it. We do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise. But we may make it clear that if by detriment we mean injustice to the promisee which would result if the promisor were to recede from his promise, then detriment would certainly come in as a necessary ingredient. The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise......" 11. The doctrine of Promissory Estoppel has come to stay and it is applicable against the Government in exercise of its Governmental, public or executive functions and the doctrine of executive necessity or equipment or future executive action cannot be invoked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssory estoppel enunciated by the Supreme Court in the Indo-Afghan case AIR 1968 SC 718 and elaborated in the M.P. Sugar Mills case AIR 1979 SC 621. Our attention is also invited to the recent decision of a Full Bench of this Court in Bansal Exports P. Ltd. v. Union of India, AIR 1983 Delhi 445 explaining the scope of the application of this doctrine in matters of import-export policy and law. 13. With this background on the settled position of law, reference may now be made once again to the facts of the present case. The petitioner is claiming Export House Certificate on the basis of Import Export Policy for 1988-91. The learned counsel for the respondents does not deny that he was entitled to the same as a result of the policy. He only contends that the Government in the Policy itself reserved the right to make amendment/changes which may become necessary in public interest from time to time. Therefore, the period of three years to which the petitioner was entitled was curtailed to one year as the Government had laid down new conditions for the grant of the Certificate. The Annual Average Net Foreign Exchange which was earlier fixed at Rs. one crore for Small Scale Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fetters - this is what promissory estoppel amounts to - have no place where public interest is the dominant consideration. The rights of the individual should be protected - but it is the individual right to be favoured against all public interest. The answer to the question is clearly, No. The question comes into prominence when the dispute is between the individual and the State. 62. As Bhagwati J. pointed out in M.P. Sugar Mills, AIR 1979 SC 621, the burden would be upon the Government to show that the public interest in the Government acting otherwise than in accordance with the promise is so overwhelming that it would be inequitable to hold the Government bound by the promise and the court would insist on a highly rigorous standard of proof in the discharge of this burden. It is only if the court is satisfied, on proper and adequate material placed by the Government, that overriding public interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the court would refuse to enforce the promise against the Government. The Court would not act on the mere ipse dixit of the Government, for it is the Court which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the promise which is made by the Government. 4. The detriment which is to be suffered is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee if the promissor were allowed to go back on the promise. 5. The guidelines and the Hand Book of Import Export Procedures as well as Import and Export Policy, referred to by learned counsel in this case, cannot be regarded as statutory though the Import and Export (Control) Orders issued under the Import and Export (Control) Act are statutory. Policies are framed by the Government in exercise of power other than statutory or legislative power. Likewise, procedures and guidelines for the benefit of importers and exporters as also the administrative departments are issued in administrative capacity, which cannot be regarded as exercise of any statutory or legislative power. 16. Reference may be made to the judgment of the Karnataka High Court as reported in Garments International Pvt. Ltd. and Others v. Union of India and Another, AIR 1991 Karnataka 52 to reiterate the proposition that the Government cannot take a unilateral action by issuing the impugned circular den ..... X X X X Extracts X X X X X X X X Extracts X X X X
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