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PETITIONER: UNION OF INDIA AND OTHERS

       Vs.

RESPONDENT: OSWAL WOOLLEN MILLS LTD. AND OTHERS

DATE OF JUDGMENT27/03/1984

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1984 AIR 1264            1984 SCR  (3) 342  1984 SCC  (2) 646        1984 SCALE  (1)568  CITATOR INFO :  F          1985 SC 330  (1,4)  RF         1986 SC 614  (6)

ACT:      Import Control  Order, 1955 Clause 8-B-Writ petition by company impugning  order under  Clause 8-B-grant  of exparte interim stay by High Court whether valid and legal.      Practice &  Procedure-Statutory Orders-Grant of exparte interim stay by Courts-Validity of.      Petitioner company  situated  in  Punjab-Relief  sought against Union  of India  situated in New Delhi-Writ petition in Calcutta High Court-Filing of whether valid-

HEADNOTE:      The respondents filed a writ petition in the High Court of Calcutta  against an  order made  under Clause 8-B of the Import Control  order 1955,  in respect  of a consignment of beef tallow  which arrived  at the  Calcutta Port.  A Single Judge issued a rule and granted an interim order restraining the Union  of India  and the Chief Controller of Imports and Exports from  filing  any  criminal  complaint  against  the respondent-firm or  its Directors  and also  a direction  to permit the  respondents  to  re-export  the  consignment  of tallow. An  application was  made by  the Union  of India to vacate the  interim order.  In the meanwhile the respondents sent letters and telegrams to the department intimating that the interim order of the High Court had not been obeyed, and threatening action  for contempt of Court. An application to commit the  Chief Controller  of Imports  and  Exports,  and others for contempt of court was filed by the company. Over- ruling the  request made  on behalf  of  the  Department  to vacate the  interim order,  the court  issued a  rule in the application  for   contempt  and   directed  the  Department officials to appear in person.      Being aggrieved  by the  order, the  Department filed a Special Leave  Petition against  the interim  order and  the rule for contempt.      Allowing the  appeal, vacating  the interim  order  and quashing the rule for contempt of Court; ^      HELD: 1. Writ petitions are often deliberately filed in

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distant High  Courts, as  part of  a manoeuvre  in  a  legal battle, so as to render it difficult for 343 the officials  at Delhi  to move applications to vacate stay where it  becomes necessary  to file  such applications.  An inevitable result  of the filing of writ petitions elsewhere than at  the place  where  the  concerned  offices  and  the relevant records  are located  is to delay prompt return and contest. [345B-C, A]      In the  instant case the writ petition was filed in the Calcutta High Court when the office of the company is in the State of  Punjab and  all the  principal respondents  are in Delhi.      2. A  statutory order  such as the one under Clause 8-B of the  Import Control  Order purports  to be  made  in  the public interest  and unless  there are even stronger grounds of public  interest an  ex-parte interim  order will  not be justified. The  only appropriate order to make in such cases is to issue notice to the respondents and make it returnable within a  short period. This should particularly be so where the  offices  of  the  principal  respondents  and  relevant records lie  outside the ordinary jurisdiction of the Court. To grant  interim relief  straight away  and leave it to the respondents to have the interim order vacated may jeopardise the public interest. [346G-347A]      3. If an interim order is once made by a court, parties employ every device and tactic to ward off the final hearing of the  application. It  is  therefore,  necessary  for  the courts to  be circumspect  in the matter of granting interim relief, more  particularly so  where the  interim relief  is directed against.  orders or  actions  of  public  officials acting in  discharge of their public duty and in exercise of statutory powers. [347B]      In the instant case, no interim relief should have been granted by the High Court. The interim order is of a drastic character with  a great  potential for  mischief and has the effect of  practically allowing  the writ  petition  at  the stage of  admission without  hearing the  opposite  parties. [347C, 346D]      4.  The  application  to  commit  the  authorities  for contempt of  court appears  to be a device to exact licences from them. [349B]      In the  instant case,  the stay of the operation of the ’abeyance’ order merely meant that the writ petitioners were entitled to  have their  applications  disposed  of  by  the concerned authorities.  The High  Court not  having set  any limit of  time for  the disposal of the applications, it was not for  the writ  petitioners to  impose a  time limit  and demand  that   their  applications  should  be  disposed  of forthwith. If  the writ  petitioners were  aggrieved by  the failure of  the authorities to dispose of their applications expeditiously, it  was  open  to  them  to  seek  a  further direction from the court fixing a limit of time within which the applications were to be disposed of. [348G-349A] 344

JUDGMENT:          CIVIL APPELLATE JURISDICTION: Civil Appeal                       No. 1972 of 1983      From the  Judgment and  Order  dated  22.11.83  of  the Calcutta High  Court in  Civil Rule  No. 10933 W of 1983 and order issuing  contempt notice dated 3.2.84 being Civil Rule No. 571 W of 1984.

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    Milon K.  Banerjee, Additional  Solicitor General, A.K. Ganguli and R.N. Poddar for the appellants.      Soli  J.   Sorabjee,  Mrs.   Manik  Karanjawala,  Ratan Karanjawala, Kuldeep  Pablay, Sumit  Kachawha and Dr. Roxana Swamy for the respondents.      A.Subba Rao for STC.      The Order of the Court was delivered by      CHINNAPPA REDDY  J. We  grant special leave and proceed to dispose of the appeal.      M/S. Oswal  Woollen Mills Limited having its registered office at  Ludhiana in  the State  of Punjab  and  a  branch office at  Calcutta, and  Narayan Das Jain, Secretary of the Company have  filed a  writ petition  in the  Calcutta  High Court seeking  various reliefs  against the  Union of  India (through the  Secretary, Ministry  of Commerce,  New Delhi), the Chief  Controller of Imports and Exports, New Delhi, the Deputy Chief  Controller of  Imports and  Exports, Amritsar, the Collector  of Customs,  Calcutta and  the State  Trading Corporation of  India, New  Delhi. The primary prayer in the writ petition  is to  prevent or  to quash an apprehended or purported action  under clause  8-B of  the  Import  Control Order. All  the other  reliefs sought  in the  writ petition revolve round  the principal  relief regarding clause 8-B of the Import  Control Order.  The  other  prayers  are  either ancillary or incidental to the principal prayer or are of an interlocutory character.  Having regard to the fact that the registered office  of the  company is  at Ludhiana  and  the principal respondents  against whom  the primary  relief  is sought are  at New Delhi, one   would have expected the writ petition to  be filed either in the High Court of Punjab and Haryana or  in the  Delhi High  Court. The  writ petitioners however have  chosen the  Calcutta High  Court as  the forum perhaps because  one of  the interlocutory  reliefs which is sought is  in respect  of a consignment of beef tallow which has arrived at the 345 Calcutta Port.  An inevitable  result of  the filing of writ petitions elsewhere  than at  the place  where the concerned offices and  the relevant  records are  located is  to delay prompt return and contests We do not desire to probe further into the  question whether  the writ  petition was  filed by design or  accident in  the Calcutta  High  Court  when  the office of  the Company is in the State of Punjab and all the principal respondents are in Delhi. But we do feel disturbed that such  writ petitions  are often  deliberately filed  in distant High  Courts, as  part of  a manoeuvre  in  a  legal battle, so  as to  render it  difficult for the officials at Delhi to  move applications  to vacate stay where it becomes necessary to file such applications. More about this later.      It appears that an order under clause 8-B of the Import Control Order  had been made against the company on November 9, 1983, but the writ petition was filed as if the order was in the  offing and  might be  made at  any  time.  The  writ petition was apparently filed in professed or real ignorance of the  order made  under clause  8-B of  the Import Control Order.      On November  22, 1983,  a learned  single judge  of the Calcutta High  Court issued  a  rule  Nisi  and  granted  an interim order in the following terms.           "There will be an interim order of stay/injunction      in terms  of prayers  (j), (k), (I) and (n) of the writ      petition till  the disposal  of the  rule.  Liberty  is      given to  the respondents  to  apply  for  vacation  or      variation".      The rule  was made  returnable  on  January  31,  1984.

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Prayers (j),(k)(I)  and (n)  of the  petition were  for  the grant of:-           "(J)-Injuction restraining  the respondents  their      servants  and/or   agents  from   filing  any  criminal      complaint  against   the  petitioners  or  any  of  its      director or  employees from initiating any departmental      proceedings under  the Import and Export (Control) Act,      1947 and  Import  (Control)  Order,  1955  against  the      petitioners or  any of  its Directors of Employees till      the disposal of the Rule;           (k)-Injuction  restraining  the  respondents  from      issuing an  order of  abeyance under  clause 8-B of the      Import Control 346      Order, 1955  and/or from  taking any  action under such      order of abeyance till the disposal of the rule;           (1)-Mandatory order  directing the respondent No.5      Collector of  Customs to  permit the petitioners to re-      export the consignment of inedible Beef Tallow in terms      of I.T.G. Public Notice No.37 of 1983 dated 1.9.83 with      respect to the consignment weighing 456.316 MT which is      lying at Calcutta under section 49 of the Customs Act;           (n)-An order  that pending  the hearing  and final      disposal of  this  writ  petition  the  petitioners  be      permitted to  re-ship and/or  re-export the consignment      of 456.216  MT of inedible Beef Tallow which arrived at      Calcutta as  more particularly  mentioned  in  Annexure      ‘I."      It is  obvious that  the interim  order is of a drastic character with a great potential for mischief. The Principal prayer in  the writ  petition is  the challenge to the order made or  proposed to  be made under clause 8-B of the Import Control order. The interim order in terms of prayers (j) and (k) has the effect of practically allowing the writ petition at the  stage of  admission  without  hearing  the  opposite parties. While  we do not wish to say that a drastic interim order may  never be  passed  without  hearing  the  opposite parties even  if the  circumstances justify  it, we are very firmly of the opinion that a statutory order such as the one made in  the present  case under  clause 8-B  of the  Import Control order ought not to have been stayed without at least hearing those  that made  the order. Such a stay may lead to devastating consequences  leaving no  way  of  undoing,  the mischief Where  a  plenitude  of  power  is  given  under  a statute, designed  to meet a dire situation, it is no answer to  say   that  the   very  nature  of  the  power  and  the consequences  which   may  ensure  is  itself  a  sufficient justification for the grant of a stay of that order, unless, of course,  there are  sufficient circumstances to justify a strong prima  facie inference  that the  order was  made  in abuse of  the power  conferred by  the statute.  A statutory order such  as the  one under clause 8-B purports to be made in the  public interest  and unless  there are even stronger grounds of public interest an exparte interim order will not be justified.  The only  appropriate order  to make  in such cases is  to issue  notice of  the respondents  and make  it returnable within  a short  period. This should particularly be so  where the  offices of  the principal  respondents and relevant records lie outside 347 the ordinary  jurisdiction of  the court.  To grant  interim relief straight away and leave it to the respondents to move the court  to vacate  the interim  order may  jeopardise the public interest.  It is notorious how if an interim order is once made by a court, parties employ every device and tactic

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to ward  off the  final hearing  of the  application. It is, therefore, necessary for the courts to be circumspect in the matter of  granting interim  relief,  more  particularly  so where the  interim relief  is  directed  against  orders  or actions of  public officials  acting, in  discharge of their public duty  and in  exercise of  statutory powers.  On  the facts  and   circumstances  of  the  present  case,  we  are satisfied that no interim relief should have been granted by the High Court in the terms in which it was done.      Orders under  clause 8-B  of the  Import Control order, similar to the one made against Oswal Woollen Mills Limited, were made  against various  import-export houses and others. Some of  these orders  have been  questioned by the affected parties in different High Courts and, in some cases, interim orders have also been obtained. One such writ petition filed by Liberty  Oil Mills  Pvt. Limited  has been transferred to this court from the Bombay High Court at the instance of the Union of  India. The  case is  now pending in this Court and has  in  fact  been  heard  in  part  by  this  vary  Bench. Apparently, under the impression that the questions at issue will be  finally determined by this court in the case of the Liberty  oil  Mills,  the  Union  of  India  and  the  other authorities do  not seem  to  have  moved  expeditiously  to contest the  writ petitions  filed in the High Courts and to have the  interim orders  vacated. In  the present  case, an application to  vacate the  interim order  was filed  in the Calcutta High  Court on  February 1, 1984. In the meanwhile, oswal Woollen  Mills Limited  went on  writing  letters  and sending telegrams complaining that the interim orders of the High Court  had not  been obeyed  and threatening action for contempt of  Court. On  January 6,  1984, an  application to commit the  Chief Controller  of  Imports  and  Exports  and others for  contempt of  court was  filed  by  the  company. Notice to the respondents was ordered on the same day and on February 3,  1984, overruling  the request made on behalf of the respondents  that the  petition to  vacate  the  interim order may  be heard  first, the  High Court issued a rule in the application  for contempt  of court  against  the  Chief Controller  of  Imports  &  Exports  and  the  Deputy  Chief Controller of  Imports and  Exports  and  directed  them  to appear in  person on  March 6,  1984, Thereupon the Union of India, the Chief Controller of Imports & Exports, etc. 348 have filed  the present  special leave  petition against the interim order  dated November  22, 1983 of the Calcutta High Court in  Civil Rule  No.10933 W  of 1983  and the  rule for contempt of  court issued  on February 3, 1984 in Civil Rule No. 571  W of  1984. We  have  heard  Shri  Milon  Banerjee, learned Additional Solicitor General for the petitioners and Shri  Soli   Sorabjee,  learned   senior  Advocate  for  the respondents.      We have  already mentioned  that the High Court was not right in  granting interim  relief in  the terms in which it had done  so. We,  therefore, vacate the interim order dated November 22,  1983 made  by the  Calcutta High Court. It has been pointed  out to us that the Chief Controller of Imports & Exports  has himself  issued a  Public  Notice  dated  1st September, 1983  permitting re-shipment/re-export  of import consignment which  could not  be cleared consequent upon the Ministry of  Commerce Import  Trade Control  order No  27/83 dated the  24th August, 1983. The Public Notice empowers the customs  authority  to  allow  re-shipment/re-export  having regard to  the extent  to which  foreign exchange  spent  on import will  be  earned  back  and  subject  to  such  other conditions relating  thereto as  the Customs  authority  may

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impose. We  wish to  make it  clear that the vacating of the interim order  will not disentitle the writ petitioners from seeking and  taking advantage  of the  public  notice  dated September 1, 1983.      In regard to the rule for contempt of court, we find it difficult to  sustain the  same. Though  ordinarily we would have left  the matter  to be  decided by  the High Court, we think it  unnecessary to  do so  in the  present case having regard to  the elaborate  arguments addressed  to us by both parties. The  complaint of  the writ  petitioners in seeking the rule  for contempt of court was that the authorities had not dealt with their applications for licences, etc. despite the ‘abeyance’  order having been stayed. It is obvious that the stay  of the  operation of  the ‘abeyance’  order merely meant that  the writ petitioners were entitled to have their applications disposed  of by  the concerned authorities. The High Court not having set any limit of time for the disposal of the  applications, it was not for the writ petitioners to impose a  time limit  and  demand  that  their  applications should be  disposed, of  forthwith. If  the writ petitioners were aggrieved  by  the  failure  of  their  authorities  to dispose of  their applications expeditiously, it was open to them to  seek a further direction from the court to fixing a limit of time within which the 349 applications were  to be disposed of. We fail to see how the Chief Controller  of Imports  & Exports  or the Deputy Chief Controller of  Imports &  Exports  could  be  said  to  have committed any  contempt of court, even prima facie, by their mere failure to take action in the matter of the disposal of the   applications   of   the   writ   petitions.   In   the circumstances, we  perceive the  application to  commit  the authorities for  contempt of  court to  be a device to exact licences from them.      We accordingly  allow the  appeal, vacate  the  interim order dated  November 22, 1983 of the Calcutta High Court in Civil Rule  No. 10933  W of  1983 and  quash  the  rule  for contempt of  court issued  on February 3, 1984 in Civil Rule No. 571 W of 1984.      Before we  part with  the  case,  we  may  refer  to  a statement made  by Shri J.P. Sharma, Deputy Chief Controller of Imports  and Exports, New Delhi in the affidavit filed by him before  us to  the effect  that ‘in  the  larger  public interest Government was unable to obey the interim order and had taken  the question  to  this  Hon’ble  Court  which  is pending decision  shortly’. Torn out of the context in which it was  made, the  unhappy language  in which  it  has  been expressed is  suggestive of  contumaciousness on the part of J.P. Sharma. However, he has filed further affidavits before us explaining  the context  in which  the statement was made and  expressing   his  unqualified  regret.  We  accept  his explanation and  expression of regret. We are satisfied that Shri J.P.  Sharma did not mean what the language employed by him  suggested.   However,  we   do  wish   to  express  our disapproval of  the language  employed  which  is  certainly suggestive of contumaciousness. N.V.K.                                       Appeal allowed. 350