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TMI Blog2003 (12) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the aforesaid order dated 18th June, 1996 the Deputy Director General of Foreign Trade with a prior notice dated 9th July, 1996 took up the application for hearing of the application on 15th July, 1996. 3.It appears the learned Lawyer on behalf of the writ petitioners on that date, had appeared before the aforesaid Director. It is the case of the petitioners that on that date the learned Lawyer for the petitioners made preliminary submissions and also produced and submitted a sample of the product for export. He explained about the reasons for delay and asked for time to produce necessary documents namely lorry challans showing despatch of input material from Calcutta and to various places in the states of Rajasthan and Gujarat where the manufactures of the finished product carry on business. That apart he wanted to produce the export documents namely copies of the letter of credit and export order. The aforesaid documents could not be produced in view of shortage of time as the notice for hearing was given on 9th July, 1996 and hearing took place on 15th July, 1996. The relevant documents were lying at the registered office of the petitioners at Guwahati whereas the hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96 when the matter was mentioned before the Court there was no whisper of passing of the aforesaid impugned order on 15th July, 1996 rather an impression was given to the Court even by the respondent and it was indeed real fact, that the matter would be heard on future date again and as such extension of time was accordingly obtained by both the parties. Even on 18th July, 1996 at the instance of the respondents order dated 16th of July, 1996 was got to be modified and/or corrected. On that date too, there was no whisper of passing of the aforesaid order dated 15th of July, 1996. On 22nd July, 1996 the aforesaid order of the Court dated 18th of July, 1996 was communicated by the petitioners to the respective departments. Despite receipt of the same, the respondents did not reply to the said letter nor divulged about the passing of the order on 15th July, 1996. According to Mr. Mullick this impugned order dated 15th July, 1996 was an afterthought and it is a product of arbitrary and high-handed action. Therefore, the aforesaid order should be set aside and direction be given to hear out the matter afresh. 9.Mr. Bishwanath Sommadar, learned Counsel while opposing this prayer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respective affidavits and examined the documents annexed thereto, I think in this case at present, the question is whether the order of Deputy Director General (Foreign Trade) (hereinafter referred to as DDGFT in short) said to have been passed on 15th July, 1996 is liable to be set aside on the ground that the petitioners were not given reasonable opportunity of being heard or not. On factual aspect of this matter the petitioners contend that on 15th July, 1996, in presence of their learned Counsel, adjournment was granted till 31st of July, 1996, to enable the petitioners to produce necessary documentary evidence. 15.On the other hand the Revenue contends that no adjournment was granted, rather considering the submission and representation made by the petitioners and hearing the Revenue the DDGFT disposed of the matter with reasons. In support of the statement and averment of the revenue the DDGFT has himself sworn in an affidavit stating and explaining what happened on the date of hearing, namely on 15th of July, 1996. In no uncertain terms he has said that adjournment was not ultimately granted and he had disposed of the matter on that date itself. Therefore the question i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a subsequent date even the same might have been passed on 18th of July, 1996 as on that date the impugned order was communicated. It is surprising how the respondent could instruct the learned Counsel on 18th of July, 1996 to mention for modification on the one hand and on the other hand the purported order dated 15th July, 1996 could be sent though not signed on that date itself. 19.I find another material in the supplementary affidavit in support of the version of the petitioners that the said order dated 15th of July, 1996 could not lawfully be passed, as the hearing on the said date was not concluded. From a contemporaneous letter of the then Lawyer of petitioner Mr. Sunil Chatterjee since deceased, dated 16th of July, 1996 written in ordinary course of business I find that the learned lawyer recorded fact of deferment of hearing and instructing his client that the relevant documents were to be made available to him before the next date of hearing that is 31st of July, 1996. This statement has been made by a learned Lawyer who is no more and in fact he was not in contemplation of his death and such a statement in my view is valuable piece of evidence and the same is quite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that day, or it was passed ex parte and behind his back. 22.Now coming to the question of the statement and averment made in the affidavit of the DDGFT, who says that the ground of prayer for adjournment on 15th of July, 1996 was depending upon the consent of the department representative who was not present when Mr. Chatterjee was present at the time of hearing. Mr. Chatterjee is alleged to have been asked by DDGFT to wait till the said officer came but he left his Chamber and thereafter this impugned order was passed. 23.I have scrutinized the statements and averment with a closed look in juxtaposition of the impugned order and the story made by him in his affidavit. This fact in the impugned order is not reflected. As I read his impugned order it appears, the sequence of events reflect therefrom as if usual hearing was taken and everything was placed before him and he has considered the matter. In the impugned order it is recorded as if both the authorized representatives were present before him, whereas in the affidavit it is mentioned that Mr. Chatterjee, since deceased had left before the Department representative arrived. Mr. Chatterjee's departure in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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