9911796707
TMI Blog1972 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... etition no. 933 of 1970 filed by the respondent praying for a writ of mandamus directing the Licensing Authority under the Imports Exports (Control) Act, 1947 to do his public duty and consider the applications for import licence made by the respondent. More than 200 writ petitions were heard together and disposed of by a common judgment of the learned single Judge, the facts in the respondent s writ petition No. 933 of 1970 being, by common consent, treated as illustrative of all the other cases as well. On December 7, 1968 Lala Manickchand, proprietor of Messrs Katrella Metal Corporation, Madras, respondent in this Court, submitted an application, as a new unit, for the licensing period,1968-69 for the grant of an import licence for ₹ 9,900/for importing stainless steel as an actual user for manufacturing. hospital requisites. The registration certificate dated December 31, 1968 issued to the respondent as a small scale industry by the Additional Assistant Director of Land Commerce, District Madras North, reads : DEPARTMENT OF INDUSTRIES COMMERCE SMALL SCALE INDUSTRIES DIVISION S. No. 571 Registration No. MS.N.SSI/506/033 CERTIFICATE This is to cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1-1969 1. It has come to the notice of the Iron Steel Controller that a large number of applications have been received for import of Stainless Steel Sheet plates and strips from newcomer units during 1968-69. As a measure of precaution, the Regional Office and Licensing section were requested to suspend further issue of licence vide Iron Steel Controller s telegram dated 9th January, 1969. 2. The position has been reviewed, in consultation with the Department of Iron Steel, and it has been decided that the applications for Stainless Steel Sheets, plates and strips received from newcomer units during 1968-69 should be scrutinised by the Directors of Industries and the Regional Offices and Licensing Sections very carefully, before import licences are granted, with a view to ensuring that new units which are not well-equipped do not get away with import licences of this sensitive item. 3. For the purpose of scrutinising the applications, it is necessary to call for the following data from the .applicant : (1) Date of registration of the unit. (2) Date on which power connection was obtained. (3) Details of the machinery installed. (4) Value of the machinery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 2 it was stated that some Licensing Authorities were treating the manufacture of hospital equipment as priority industry under the general heading medical and surgical equipment and appliances . It was pointed out that all types of hospital equipment and hospital appliances were not classified as priority industries and it was added by way of illustration that lotion bowls, kidney trays, instrument trays, wash bowls, measuring jugs, ointment jars and medicine cups as end-products were in non-priority category. The sponsoring authorities were accordingly directed to ensure that only those hospital equipment and appliances were to be treated as priority industries which would appropriately be classified as medical and surgical equipment and appliances . On May 29, 1969 the Chief Controller of Imports and Exports issued General Licensing Instruction No. 31 of 1969 on the subject of grant of import licence to units engaged in the manufacture of hospital equipment . After inviting attention to the earlier G.L.I. No. 29/69 dated May 19, 1969 it was stated in this instruction that after further consideration in consultation with the D.G.T.D. a list had been prepared in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his applications considered. According to para 10 of the counter-affidavit on which the learned single Judge of the High Court, disposing of the writ petition, relied, it was stated inter alia : in the case of units engaged in the manufacture of nonpriority end-products, as in the case of the petitioner, the Chief Controller of Imports and Exports had advised the department to keep the applications pending until the completion of the examination. The petitioner s application could not therefore be disposed of. However, instructions have since been received vide the Chief Controller of Imports and Exports, New Delhi letter dated 8-4-1970, which inter alia provides that applications received by the sponsoring authorities in time may be considered irrespective of the date on which they were forwarded to the licensing authorities and in terms of the licensing policy for 1970-71. It was added in this para of the counter-affidavit According to policy for 1970-71, the material stainless steel sheets is a canalised item for non-priority industries and release orders are to be issued on Minerals and Metals Trading Corporation. In the judgment of the learned single Judge it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the High Court, could not take advantage of the delay in disposing of the applications for licence made earlier and then take the plea that they should be disposed of only in accordance with the current policy and instructions given as to canalisation. On this view the appeal was dismissed but time for granting the import licence was extended by a further period of three months from the date of the order viz. March 25, 1971. In this Court the question canvassed at the bar is a very narrow one, namely, whether the application for the import licence in question should be considered in accordance with the policy in force when the licence is granted or when the application is made. No point of mala fides or arbitrariness was argued in the High Court and no serious attempt was made on behalf of the respondent to sustain the impugned order of the High Court on that basis, as indeed, it is not possible for this Court to entertain and adjudicate upon such a plea in this appeal in the absence of a considered opinion of the High Court. The appellants learned counsel Shri V. S. Desai at the outset drew our attention to s. 3 (1) (a) of the Imports Exports (Control) Act, 18 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption of the item(s) in question by the applicant, actual production during the preceding period, estimated production and other factors considered relevant and necessary. (3) In case where the applications for licences are not disposed of during the licensing period concerned or before the close of the monetary ceiling on account of delay on the part of the sponsoring authority or the licensing authority or any other Government Department the value of the licences issued in such cases will be treated as first charge on the monetary ceiling to be allocated for the next licensing period and the necessary intimation in this regard will be given to the sponsoring authority. According to Shri Desai the entire position of monetary ceiling, availability of good-, applied for from indigenous sources, essentiality of the goods applied for and other relevant factors have to be seen for considering the question of issuing import licences to actual users for back periods. These considerations, said Shri Desai, indicate that if availability of the goods applied for, from indigenous sources, improves or the position in regard to foreign exchange deteriorates or there is a chance in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Singhvi on behalf of the respondent controverted the appellant s argument by strongly relying on the letter dated February 23, 1 970 from the Director of Industries to the Deputy Assistant Iron and Steel Controller in which reference was made to the respondent s assurance to manufacture only surgical equipments like sterlisers, operation tables, autoclaves etc. and it was recommended that import of stainless steel sheets for the period 1968-69 be treated as priority industry and licence issued to the respondent on this basis. As canalising policy was introduced only on April 1, 1970, when the respondent s case, according to Shri Singhvi s argument, had already been completed Is a result of the assurance contained in the letter of February 23, 1970, the respondent s industry was not governed by this policy and was entitled to get the import licence. Shri Singhvi placed strong reliance on r-. 7(2) contained in the Import Trade Control Handbook of Rules and Procedure of 1968 and contended that the applications for licences must be considered in tern-is of the relevant policy in force at the time of making the application. Reference in this connection was also made to r. 81 (c) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd filed in the High Court in support of the writ petition in which it was asserted that licences had been issued in March, 1969 to 163 applicants for the value of ₹ 9,900 each. These licences, according to the assertion in this paragraph, had been granted without any basis, though a little lower down it was added that those applicants were similarly placed as the respondent and, therefore, the issue of import licence to them showed discriminatory conduct violative of rules of natural justice and equality. It was also added that according to the respondent s information another 321 applicants were going to get licences without any proper basis or criteria. The counsel also made a reference to that part of the respondent s affidavit in the High Court where it was stated that if, as the respondent had reliably learnt, the 300 applicants who had asked for import licences were to be granted their prayers then the ceiling limit allotted for the year would be exhausted and the respondent would not get any relief. It was for this reason that prayer was made in the High Court for restraining the Joint Chief Controller of Imports and Exports from issuing any licence to any other pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot lend much assistance in dealing with the facts before us. The unreported decision of this Court in The Municipal Corporation for Greater Bombay v. The Advance Builders India (Pvt.) Ltd.(1), also relied upon by Shri Singhvi merely lays down that where a statute imposes a duty the performance or non-performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done (Halsbury s Laws of England, Third edn. Vol. II, p. 90) . Quite clearly, this decision only reiterates the recognised rule in regard to the grant of mandamus and is of little help to the respondent. In our view the plea of arbitrariness and mala fides having not been pressed in the High Court it is not possible for this Court to consider it. The material on the existing record to which our attention was drawn is not enough to make out a prima facie case of either mala fides or arbitrariness to justify any further scrutiny. Indeed, in the High Court the State had agreed to consider the respondent s application and the only controversy there was as to the year of which the import policy was to govern the respondent s application. For this pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt enquiry slip has been discontinued. (b) The licensing authorities will make every effort to dispose of the applications as quickly as possible. If an application for an import licence is not disposed of within one month from the date of its receipt in the licensing section the licensing authority will issue an interim reply to the applicant. If an applicant does not receive an interim reply even after this time limit, he can bring the matter to the notice of the Public Relations Officer in the import trade control office concerned or book an interview with the officer concerned through the Enquiry Officer in order to know the reasons for the delay in the disposal of his application. (c) Where a licensing authority calls for certain documents or information from the applicant or any deficiencies in the application are communicated to the applicant, and the applicant has furnished the required documents or information or made good the deficiencies but does not receive any further communication from the licensing authority within 15 days thereafter, he can bring the matter to the notice of the Public Relations Officer or book an interview with the Officer concerned to know th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and we are assuming without holding, that the respondent s application had reached the appropriate authority during ;the 1968-69 period. It is not possible for us, on the material on the record and on the arguments advanced at the bar, to hold that there was any undue delay, laches or dilatoriness on the part of the Department in disposing of the respondent s application during 1968-69. The history of the correspondence between the respondent and the Department, as already noticed, clearly shows that the respondent s application included items of manufacture which were not covered by the priority list and as a result of a large number of new applicants for the sensitive item of stainless steel, the Department was compelled to hold a proper scrutiny in the larger interests both of the healthy growth of industry and of the balanced economy of the country. Fresh instructions for this purpose issued on June 4, 1969 became operative and the respondent was naturally required to comply with these instructions. Since the respondent s application contained items which were nonpriority end-products this application was kept pending until the completion of its examination, and in our opin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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