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TMI Blog2024 (12) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... er published in the Official Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods or services or technology. The stand taken by the respondents that under the FTP-2023, since authorization is not a right, the petitioner can only be granted authorization for 2,000 Metric Tonnes to import Pop Corn/ Maize Corn cannot be said to be substantiated based on exercise of statutory powers, rather such restrictions imposed by the respondents by granting authorization for only 2,000 Metric Tonnes of import of Maize Corn is without authorization under Section 9A of the Act of 1992 and also in absence of statutory provision to import Maize Corn - The exercise of discretion in the case in hand which is sought to be justified based on the examination of capacity of the petitioner is also not recognized under any of the statutory provisions or the rules framed under the provisions of the Act of 1992 or the FTP-2023. Admittedly, there are no principles to guide the Licensing Authority in the matter of grant of authorization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import 10,000 Metric Tonnes of Pop Corn/Maize Corn from Brazil-South came to be partially allowed whereby the permission to import only 2000 Metric Tonnes is granted, which has prompted the petitioner to question the decision of the said respondent in the present writ petition. 4. In exercise of the provisions of Section 5 of the Act of 1992, the Central Government has notified the Foreign Trade Policy-2023 (for short, the FTP-2023 ) which is in relation to the Export-Import of Goods and Services and the same was brought into operation with effect from April-2023. Though India which is the major producer of Maize claimed to be exporting Two Million Metric Tonnes of Maize per year, the import of Pop Corn Maize is very miniscule as compared to the exports. The import of Pop Corn/Maize Corn is mainly from the United States of America, Brazil, South Africa and Argentina as experienced in the Foreign Trade Policy under the Act of 1992. 5. The petitioner claims to have applied for Restricted Import Authorization vide application dated June 05, 2023 seeking license for import of 10,000 Metric Tonnes of Pop Corn/Maize Corn. The petitioner accordingly submitted all the requisite details, v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Import Policy. He would claim that the aforesaid fact can be inferred from the contents of the notification dated September 29, 2014 published in the official gazette of India by the Ministry of Commerce Industry. According to him, vide Circular dated July 26, 2019, even though the High Court of Judicature at Hyderabad in Writ Petition No. 23102 of 2018 had directed not to clear the imports of maize corn (popcorn) for the importers who are not holding such authorization, the condition mentioned in the said order was duly satisfied by the petitioner. According to him, he fits into Clause 9.03 of the FTP which defines Actual User . In the aforesaid background, he would urge that though the Central Government under Section 3 of the Act of 1992 is conferred with the power to make provisions relating to imports and exports, there are no restrictions imposed on the import of Maize Corn/Pop Corn. So as to substantiate such contention, he would draw support from sub-Sections 1 and 2 of Section 3 of the Act of 1992 which read thus :- 3. Powers to make provisions relating to imports and exports . (1) The Central Government may, by Order published in the Official Gazette, make provision for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culars and the public notice issued by DGFT, in fact, nullify the express provisions of the EXIM Policy framed by the Central Government. Power to amend the policy being within the exclusive domain of the Central Government the said powers cannot be usurped by the DGFT in the guise of laying down regularly measures. By prohibiting import of natural rubber under the advance licence in the Hand Book of procedures, the DGFT has encroached upon the powers of the Central Government and purported to amend the EXIM policy 2002-2007 which power is not conferred upon the DGFT. As stated hereinabove section 6(3) of the Act expressly prohibits the DGFT from exercising the power of amending the EXIM Policy. Therefore, in the absence of any power under the statute, the A.L.C. circulars and the public notice dated 20th May, 2002 to prohibit import of natural rubber under Advance licence could not be issued by the DGFT. The said circulars and public notice being wholly contrary to the police provisions of the Central Government, cannot be sustained and are liable to be quashed and set aside. 15. The procedures to be prescribed by an authority in implementing the policy must be in consonance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. 8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reasons for such action. The object of inviting tenders for disposal of a commodity is to procure the highest price while giving equal opportunity to all the intending bidders to compete. Procuring the highest price for the commodity is undoubtedly in public interest since the amount so collected goes to the public fund accordingly, inadequacy of the price offered in the highest tender would be a cogent ground for negotiating with the tenderers giving them equal opportunity to revise their bids with a view to obtain the highest available price. The inadequacy may be or several reasons known in the commercial field. Inadequacy of the price quoted in the highest tender would be a question of fact in each case. Retaining the option to accept the highest tender, in case the negotiations do not yield a significantly higher offer would be fair to the tenderers besides protecting the public interest. A procedure wherein resort is had to negotiations with the tenderers for obtaining a significantly higher bid during the period when the offers in the tenders remain open for acceptance and rejection of the tenders only in the event of a significant higher bid being obtained during negotiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provincial Government or Central Government may direct. Neither the length of the film nor the period of time for which it may be shown is specified in the condition and the Government is vested with an unregulated discretion to compel a licensee to exhibit a film of any length at its discretion which may consume the whole or the greater part of the time for which each performance is given. The exhibition of a film generally takes 2 hours and a quarter. Now if there is nothing to guide the discretion of the Government it is open to it to require the licensee to show approved films of such great length as may exhaust the whole of the time or the major portion of it intended for each performance. The fact that the length of the time for which the approved films may be shown is also unspecified leads to the same conclusion, in other words, the Government may compel a licensee to exhibit an approved film, say for an hour and a half or even 2 hours. As the condition stands, there can be no doubt that there is no principle to guide the licensing authority and a condition such as the above may lead to the loss or total extinction of the business itself. A condition couched in such wide l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of India has further claimed that the respondents are required to have fair playing field so as to cater to the requirement of all the importers and in such an eventuality reasonable restrictions on the quantity of import as imposed by the respondents cannot be faulted with. In addition to above, he would urge that this Court cannot issue mandamus in favour of the petitioner to permit import of balance 8,000 Metric Tonnes of Maize and as such, he has sought for dismissal of the present writ petition. 11. In rejoinder, Shri Sahil Dewani, counsel for the petitioner would urge that the quantity of 2,000 Metric Tonnes granted by the respondents vide license dated March 04, 2024 is already exhausted and the same can be inferred from the additional affidavit dated June 17, 2024 to which the respondents have not submitted any counter, thereby accepting the said position. That being so, he would claim that the order impugned is required to be quashed and set aside to the extent of not granting authorization to import balance 8,000 Metric Tonnes of Pop Corn/Maize Corn. As such, he would claim that a declaration needs to be issued that the petitioner has the authorization to import balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y quantitative restrictions. 15. In such an eventuality, the stand taken by the respondents that under the FTP-2023, since authorization is not a right, the petitioner can only be granted authorization for 2,000 Metric Tonnes to import Pop Corn/ Maize Corn cannot be said to be substantiated based on exercise of statutory powers, rather such restrictions imposed by the respondents by granting authorization for only 2,000 Metric Tonnes of import of Maize Corn is without authorization under Section 9A of the Act of 1992 and also in absence of statutory provision to import Maize Corn. Even if the counsel for the respondents has drawn support from paragraph 2.13 of the FTP-2023 so as to claim that authorization is not a right however, complete reading of the said clause further provides that while dealing with the issue of authorization, the respondents have to be within the framework of the Act of 1992, the rules framed thereunder and the FTP-2023. Merely because the respondents are clothed with power to deal with the request of authorization for import that by itself cannot give leverage to restrict or refuse grant of authorization for the quantity of Pop Corn/Maize Corn which is soug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d import of 2,000 Metric Tonnes by actually consuming the same. As such, the petitioner rightly so, legitimately expected from the respondents that it will have the import authorization of 10,000 Metric Tonnes as prayed in absence of there being any adverse provision relating to import of Maize or an embargo under Section 9A of the Act of 1992 viz. putting quantitative restrictions on the import of Maize from foreign country. As such, the restrictions imposed on the petitioner are also hit by the principle of legitimate expectation as the petitioner has every right to legitimately expect that it will be entitled for the import of 10,000 Metric Tonnes of Maize Corn. 18. Admittedly, there are no principles to guide the Licensing Authority in the matter of grant of authorization and in such an eventuality, the expectation from the Licensing Authority or the Authority granting authorization is to act fairly and to adopt a procedure which can be said to be fairplay in action . In M/s Kamdhenu Cattle Feed Industries (supra), the Apex Court has held that due observance of the statutory obligation as a part of good administration raises a reasonable or legitimate expectation in fairly trea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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