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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: SUKSHA INTERNATIONAL AND NUTAN GEMS & ANR.

DATE OF JUDGMENT02/01/1989

BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) PATHAK, R.S. (CJ)

CITATION:  1989 AIR  690            1989 SCR  (1)   1  1989 SCC  Supl.  (1) 422 JT 1989 (1)    10  1989 SCALE  (1)4

ACT: Imports and Exports (Control) Act 1947 Section 3.     Import   Export  Policy  1983.  Paragraph   185(4)   and (7)--Interpretation  of--Export Houses--Having  imprest  Li- cences--To  import  goods  from  abroad  with  corresponding obligation  attached to export goods--Fulfilling  conditions and   applying   for   revalidation   and   endorsement   of licence--Held clauses (4) and (7) form an integrated  policy scheme and to be read together.     Constitution      of    India.     Article     226--Writ petition--Plea of unexplained delay in filing of writ  peti- tion raised--Held--High Court should specifically deal  with such plea.     Statutory Interpretation. Beneficial provision of  stat- ute--Not  to  be interpreted so as to  unduly  restrict  the beneficial scope of the policy of the law.

HEADNOTE:     The  respondents in the appeals were  recognised  Export Houses  which  had  been granted Imprest  licences  for  the import  of ’uncut’ and ’unset’ diamonds with certain  export obligations attached to them. After the due discharge of the export  obligations,  the  respondents  became  entitled  to revalidation and endorsement of the said Imprestlicence  for import of OGL items.     The said Export Houses applied under paragraph 185(4) of AM83 policy for revalidation and endorsement of the  Imprest Licences.  The  appellant  No. 3, the  Chief  Controller  of Imports and Exports, rejected this claim of the respondents.     Being  aggrieved  by the aforesaid order  of  rejection, respondents filed writ petitions in the High Court assailing the legality of the orders 2 rejecting their claims, and seeking a mandamus to the appel- lants to endorse the Imprest Licences.     Single  Judge of the High Court allowed the  writ  peti- tions, and the order was affirmed in appeal by the  Division Bench.     In  the appeals by the Union of India to this Court,  it was  contended on behalf of the appellants that: (a) in  the Import-Export Policy 1982-83, the entitlement of  Registered

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Export  Houses to the facility of revalidation and  endorse- ment  of  OGL items under paragraph 184 is  subject  to  and conditioned upon the express limitations contained in clause (7) of paragraph 185 of the Policy, and that the High  Court was  in  error  in directing  revalidation  and  endorsement without reference to the mandatory prescription provided  in the said clause, and (b) that the High Court was in error in ignoring the contentions of the appellants that the respond- ents  had rendered themselves disentitled to relief  on  the ground of the inordinate and unexplained delay of one and  a half years in the filing of the writ petitions. Disposing of the Appeals, the Court,     HELD:  l(a) Para 185(4) was intended to provide  certain incentives  to  the Export Houses which, upon grant  of  Im- prest-Licences,  fulfil their countervailing obligations  in the matter of export commitments. The provision is a benefi- cial one. [8H; 9A]     1(b)  Clauses  (4)  and (7), no doubt,  on  their  plain wording present certain constructional difficulties, and  it is possible to take the view that the said clauses are  part of an integrated policy scheme, providing for certain incen- tives  to export houses and have to be read  together.  This view, however, will unduly restrict the scope of the benefi- cial provision. [9A, C]     1(c)  That the conditions in para 185(4) of  the  Policy would  not be attracted to the case of Export  Houses  which are  granted  Imprest Licences, would be a  harmonious  con- struction  of clauses  (4) and (7) which appears to  advance and  promote the objects of the policy in  Paragraph  185(4) and  is, at all events, not an unreasonable view to take  of the matter. [9B]     1(d)  An interpretation which would unduly restrict  the beneficial  scope of the policy in para 185(4),  would  take away with one hand what the policy of the law gives with the other. [9C] 3     2(a)  If appellants had raised a specific plea of  delay as  a  bar  to the grant of relief--and the  delays  in  the present  cases, having regard to the nature of the  subject- matter,  were not inconsiderable--it was  perhaps  necessary for  the  High  Court to have specifically  dealt  with  the plea..  The aspect of delay adverted to by the Single  Judge was  a different one viz. the delay in seeking  revalidation and  endorsement after the issue of the redemption  certifi- cate and not the delay in the filing of the writ  petitions. [11D]     2(b)  It would therefore he appropriate that the  appel- lants’  appeals  before the High Court are remitted  to  the Appellate Bench of the High Court. If the Appellate Bench is persuaded to view that the delay is satisfactorily explained it  may  proceed to confirm the orders of the  Single  Judge subject  to  the  question that the  permissibility  of  the importable  items  be determined in the light  of  the  pro- nouncements  of this Court in Rajprakash Chemicals  Ltd.  v. Union  of India, AIR 1986 SC 1621 and D. Navinchandra &  Co. v. Union of India, AIR 1987 SC 1794. If the delay is held by the Appellate Bench to be such as to disentitle the respond- ents  to  relief, it will proceed to allow the  appeals  and dismiss the writ petitions. [11F-H]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8 & 9 of 1989.

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   From  the  Judgment  and Order dated  17.2.1987  of  the Bombay High Court in Appeal No. 179 and 149 of 1987.     T.U.  Mehta,  A. Subba Rao, P. Parmeshwaran,  Harish  N. Salve,  N.D.  Garg, Rajiv K. Garg, P.H. Parekh,  Ms.  Ayesha Misra and M.N. Shroff for the appearing parties. The Judgment of the Court was delivered by     VENKATACHALIAH. J. By these two special leave  petitions under  Article 136 of the Constitution, the Union  of  India and the Chief and the Joint Chief Controllers of Imports and Exports  seek  special leave to appeal  from  two  appellate Judgments of the Division Bench of the High Court of Judica- ture  at Bombay--Both dated 17.2.1987 in appeal Nos. 179  of 1987  and 149 of 1987 affirming in appeal orders of  learned Single Judges dated 5.9.1985 in W.P. 1125 of 1985 and  dated 19.9.1985  in W.P. 1918 of 1986, respectively, by which  the writ  petitions filed by M/s. Suksha International and  M/s. Nutan  Gems, respondents in these appeals, were allowed  and appellants directed to revalidate 4 the imprest licences of the respondents and endorse them for import  of OGL items, under paragraph 185[4] of the  Import- Export Policy of 1982-83 [AM 1983.]     2. Special leave, in both the-petitions, is granted  and the  appeals taken-up for final hearing, heard and  disposed of  by  this common judgment. We have heard  Shri  Subbarao, learned  counsel for the appellants and Shri  Harish  Salve, learned counsel for the respondents who were the writ  peti- tioners before the High Court.     3. M/s. Suksha International, respondent in SLP 2579  of 1987, is a diamond exporter and is a registered Export House for  the  purposes  of the Import Export  Policy.  The  said export  house  was granted an Imprest  Licence  No.  0451365 dated  15.6.1981 of a value of (Rs. 1,53,80,000) for  import of  ’uncut’ and ’unset’ diamonds with  corresponding  export obligations.     Respondent claimed that upon the due fulfilment by it of its  export-obligations it became entitled  to  revalidation and  endorsement  for export of OCM items  of  the  imprest, Accordingly, on 3.8.1983 the said Export-House applied under paragraph 185(4) of AM/83 policy, for such revalidation  and endorsement  of its imprest licence. Appellant No. 3 by  his decision  dated  21.9.1983, rejected this claim of  the  re- spondent.  Aggrieved by this rejection, respondent filed  in the  High  Court  under Article 226 of  the  Constitution  a writ-petition  assailing  the legality of  the  order  dated 21.9.1983  and seeking a mandamus to the appellants  to  en- dorse the Imprest-Licence. Learned Single Judge of the  High Court by his order dated 5.9. 1986 allowed the writ petition and issued the direction preyed for. This order was  carried up in appeal before the Division Bench of the High Court  in appeal  No. 179 of 1987. The appeal came to be dismissed  on 17.2. 1987.     4. M/s. Nutan Gems, respondent in SLP 2580 of 1987 is  a recognised  Export-House which had, similarly, been  granted an Imprest Licence dated 24.2. 1983 for the import of  uncut and unset diamonds with certain export obligations  attached to it and that after the due discharge of the export obliga- tions,  Respondent  became entitled to  a  revalidation  and endorsement of the Imprest-Licence for import of DGL  items. The  application dated 19.1.1984 made in this behalf by  the respondent  was  rejected by appellant No. 6  by  his  order dated  19.3. 1984. M/s. Nutan Gems filed writ  petition  No. 1813  of 1985 in the High Court for issue of an  appropriate writ  quashing  the said order of  rejection  and  directing appellants to revalidate and endorse the

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5 Imprest Licence. On 19.9.1985. Learned Single Judge  allowed the writ petition. This Order was affirmed in appeal No. 149 of 1985 by the Division Bench on 17.2. 1987.     5.  These  appellate-judgments  of the  High  Court  are assailed  in these appeals. Though a number  of  contentions are raised in the Memorandum of Special Leave Petition,  the points,  however,  pressed  at the hearing  admit  of  being formulated thus:               (a) that in the Import-Export Policy,  1982-83               the entitlement of Registered Export Houses to               the  facility of revalidation and  endorsement               of OGL items under paragraph 185(4) is subject               to and conditioned upon the express limitation               in  clause (7) of paragraph 185 of the  Policy               and  that the High Court was in error  in  di-               recting  revalidation and endorsement  without               reference  to  the mandatory  prescription  in               clause (7).                         (b) that the High Court was in error               in  ignoring the contention of the  appellants               that   respondents  had  rendered   themselves               disentitled to relief on ground of the inordi-               nate  and  unexplained  delay  in  filing  the               writ-petitions.                        In W.P. 1125 of 1985 (from which  SLP               2579  of  1987 arises) the  rejection  of  the               prayer for revalidation was on 21.9. 1983  and               the  writ petition was filed in  April,  1985;               and in WP 1813 of 1985 (from which SLP 2580 of               1987  arises) the rejection of the prayer  was               on  18.3.1984 and the writ petition was  filed               on 10.9.1986, after a lapse of one and a  half               years in each case.                        (c)  that, at all events, the  direc-               tions  issued  for  the  endorsement  must  be               limited  only to items as limited by the  pro-               nouncement of this Court in Rajprakash  Chemi-               cals Ltd. v. Union of India, AIR 1986 SC  1021               and  D. Navinchandra & Co. v. Union of  India,               AIR  1987 SC 1794 and other cases  bearing  on               the question; and not in terms now directed by               the High Court.     6. We may first dispose of contention (c) on which there does  not  appear  to be much controversy.  Shri  Subba  Rao submitted that the High Court was in clear error in brushing aside  this argument and affirming the learned Single  Judge on the basis that the S.L.P. filed by 6 the appellants in Ripal Kumar & Co.’s case had been rejected by  this Court. Shri Harish Salve, however,  submitted  that the  decisions of this Court in Indo-Afgan Chamber  of  Com- merce v. Union of India, AIR 1986 SC 1567; Rajprakash Chemi- cals  Ltd.  v. Union of India, AIR 1986 SC  1021;  Union  of India  v. Godrej Soaps (Pvt.) Ltd., AIR 1987 SC 175  and  D. Navinchandra & Co. v. Union of India, AIR 1987 SC 1794.  etc do not have any direct beating on the question of the  enti- tlement of the Export Houses to revalidation and endorsement for  OCL  items  under para 185(4) of A-M  1983  Policy  but relate to the question as to the limitations on the  permis- sibility of the items of import, consequent upon the changes in  the  policy. This question becomes relevant,  says  Shri Salve,  at a stage which is subsequent to  the  revalidation and endorsement of the Imprest-Licence and that the position in the present cases has not yet reached that stage.  Howev-

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er, he submitted that as to the choice of items  permissible for  import, the matter would of course, have to  be  deter- mined the guided by these pronouncements. As Contention  (c) is not in controversy it is not necessary to dwell on it any further.  What,  however, remain to be  considered  are  the contentions (a) and (b).               7. Re: Contention (a):               Clauses  (3), (4), (5) and (7) of para 185  of               the policy provide:                        (3) Where REP licence has been issued               to  the Export House on its own  exports,  the               facility  of  importing OGL items  under  sub-               para(1) above will be allowed without debit to               the  value of such REP licence,  provided  the               value  of  such imports does  not  exceed  the               value of the REP licence.                        (4)  The facility for import  of  OGL               items  available  in sub-para (3)  above,  may               also  be allowed, on merits, to Export  Houses               against  their  advance/imprest  licences   on               account of which they are rendered  ineligible               to obtain REP licence. In such cases, however,               the  value  upto which the OGL import  may  be               allowed,  will not exceed the value  to  which               the  Export House would have been eligible  to               the   REP   licence,  had  he   not   obtained               advance/imprest  licence  in  question.   This               facility will be available to the Export House               after he has discharged the export  obligation               imposed on the advance/imprest licence. There-               fore, if by the time, the Export House becomes               eligible to this facility,               7               the  advance/imprest licence has expired,  or,               if  the original validity left unused by  that               time  is less than six months,  the  licensing               authority will revalidate the licence simulta-               neously so as to give to the licence-holder  a               time of six months for the purpose of  import-               ing OGL item under this facility.                        (5)  Export Houses who wish  to  take               advantage  of this facility of import  of  OGL               items  should get the licences  concerned  en-               dorsed by the licensing authority as under:                        "This licence will also be valid  for               import of OGL items under para 125 of  Import-               Export Policy, 1982-83, subject to the  condi-               tions     laid    down,    and    shall     be               nontransferable."                        (7)  Import  of OGL items  by  Export               Houses under these provisions shall be subject               to the condition, inter alia that the shipment               of goods shall take place within the  validity               of  the OGL i.e. 31st March, 1983.  or  within               the  validity  period of  the  import  licence               itself  (without any grace period),  whichever               date  is earlier. This restriction  will  also               apply  to licences issued before  1.4.1982  in               respect  of items which continue to be on  OGL               in 1982-83 policy. (The restriction  regarding               grace period will not, however, apply in cases               where shipment can be made within the  permis-               sible grace period on or before 31.3.1981). Appellants’  contention is that clauses (4) and (7) of  para 135  are part of an integrated policy-scheme, providing  for

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certain  incentives  to export-houses and have  to  be  read together  and that the import of OGL items is strictly  sub- ject  to the specific condition that the shipment  of  goods shall  take  place  within  the validity  of  the  OGL  i.e. 31.3.1983  or  within  the validity period  of  the  licence itself which ever date is earlier. If this condition is held to  be  attracted to the case of  an  Imprest-Licence  also, then, quite obviously, the claim in the writ petitions would have to fail, as the application for revalidation is  beyond the outer-most time limit set for the import itself. Indeed, this  question was left open by this Court while  dismissing SLP 7389 of 1985 (Union of India v. Messrs H. Patel &  Co.). In its order dated 19.7.1985 this Court said:                     "  .......   We, however, make  it  very               clear that we express               8               no  opinion on the validity of the above  said               contention based on paragraph 185(7)  referred               to  above. The true effect of the said  provi-               sion  is  left  open to be  considered  in  an               appropriate case when an occasion arises to do               so."     8.  Sri Salve, submitted that in the very nature of  the procedures and exercises inherent in the effectuation of  an imprest-licence,  as  distinguished from  Replenishment  Li- cence,  the Export-House has first to import the  uncut  and unset diamonds and thereafter fulfill its export obligations of  cut and polished diamonds as a necessary antecedent  for the  effectuation of its entitlement to a  revalidation  and endorsement  for  OGL  items. The very nature  of  the  time consuming transactions that are required to be gone  through preceding the very creation of the right to revalidation and endorsement are inconsistent with the feasibility of compli- ance with the time-schedule in para 185(7). Learned  Counsel says  that  the  view that should commend  itself,  both  on construction  and  in equity, is that having regard  to  the innate  differences  in the nature of  the  obligations  and conditions  to be fulfilled between the holders of  imprest- licences  on the one hand and the replenishment-licences  on the  other and having regard, further, to the  circumstances that  export-houses,  which, under  Imprest  Licences,  have first  to  import uncut and unset  diamonds  and  thereafter fulfill their export obligations before becoming entitled to the  import of OGL items, it would be a wholly  unreasonable exercise  in construction to import the condition in  clause (7)  into clause (4) and that clause (4) should,  therefore, be treated on its true construction, as a special  provision constituting an exception to the generality of the provision in clause (7). Otherwise, says counsel, the resulting  posi- tion would be that the satisfaction of the cumulative condi- tions  in  clauses (4) and (7) by an Export-House  under  an Imprest Licence would well nigh be impossible.     This way of hormonising clauses (4) and (7) of para 185, it  is submitted, has commended itself to the High Court  in several other writ-petitions involving the interpretation of clauses (4) and (7) of paragraph 185 of the AM 1983  policy. Sri  Salve submits that it is reasonable to exclude  imprest licences from the requirement of clause (7).     9.  We  have  considered the rival  contentions  on  the point.  Para 185(4) was intended to provide  certain  incen- tives  to  the Export Houses which, upon grant  of  Imprest- Licences,  fulfill their countervailing obligations  in  the matter of export commitments. The provision 9 is a beneficial one. Clauses (4) and (7), no doubt, on their

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plain  wording present certain  constructional  difficulties and  the view sought to be put across by Shri Subba Rao  for the  appellant, on the plain language of clause (7), is  not without  possibilities. However, the basis of  a  harmonious construction  which  commended itself to the High  Court  in other similar cases appears to us to advance and promote the objects  of  the policy in paragraph 185(4) and is,  at  all events,  not an unreasonable view to take of the matter.  In some  of  these cases this Court has declined  to  interfere with this interpretation by rejecting petitions for  special leave.  Acceptance of the interpretation suggested  by  Shri Subba  Rao would, in our opinion, unduly restrict the  scope of  the  beneficial provision and, in many  instances  which would  otherwise  fall within the beneficial  scope  of  the policy  in  para 185(4), take away with one  hand  what  the policy  gives with the other. We think we should accept  the submissions  of Shri Harish Salve which is  consistent  with the  view  taken of the matter by the High  Court  in  other cases  and  hold that the conditions in para 185(4)  of  the policy  would not be attracted to the case of Export  Houses which are granted Imprest Licences.     Accordingly  we hold and answer contention  (a)  against the appellants. (10) Re: Contention (b):     This  pertains to appellants’ plea of delay as a bar  to relief. Appellants have aired a serious grievance over  this aspect.  Shri Subba Rao streneously contended that  the  re- spondents had approached the High Court after an  inordinate and  unexplained delay of over one and a half years in  each of  these  cases and that appellants’ objection  as  to  the disentitlement of the respondents to relief on the ground of delay  was  not even so much as adverted to by  the  learned Single Judge or the Division Bench. Learned counsel  submit- ted that promptitude and vigilant pursuit of legal  remedies with diligence is basic to the entitlement to relief in  the jurisdiction under Article 226, which is both  extraordinary and discretionary and that in the present cases the delay of one  and a half years in moving the Court should  have  been held  crucial particularly where grant of import licence  is cancelled.      The pleadings in the writ petitions are not before  us. We will proceed on the assumption that appellants had  taken this  objection before the learned Single Judge of the  High Court  and raised the plea as to the bar of delay  in  their appeals before the Division Bench of the High Court. If this point had been taken, we are afraid the High Court 10 was  not  justified  in ignoring it or  brushing  it  aside. Indeed  the learned Single Judge of the High  Court  allowed the  writ petitions in both these cases by short  orders  in similar  terms,  relying  upon  an  earlier  decision  dated 19/20th August, 1985, in writ petition No. 2477 of 1984. The relevant part of the order reads:                        "Relevant facts and circumstances  of               this  petition  are similar  to  the  relevant               facts  and circumstances in Writ Petition  No.               2477 of 1984 decided by this Court on  19/20th               August,   1985. Besides, as in the  said  Writ               Petition No. 2477 of 1984, in the present case               also there is no such delay as to preclude the               petitioners  from the relief claimed.  In  all               the  circumstances and for reasons  stated  in               Writ  Petition No. 2477 of 1984 the  following               order is passed on this Writ Petition.               2.  The  petition  succeeds and  the  same  is

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             allowed." Thereafter,  the learned judge proceeded to  issue  specific directions.     11.  Shri Subba Rao would say that the reference in  the order by learned Single Judge to the contention on the point of delay as bar to relief had nothing to do with the specif- ic  contention of the appellants’ that there was  inordinate and  unexplained  delay  in  approaching  the  Court.  This, learned  counsel submits, would be clear, by a reference  to the aspect of the delay dealt with and considered in WP 2477 of 1984, on which the learned Single Judge relied. The order of  the  same learned Single Judge in WP 2477  of  1984,  in which  the  particular aspect of delay is considered  is  at para  8 of that order. That para in the order in WP 2477  of 1984 reads:                         "Mr. Joshi, learned counsel for  the               respondents,  submitted that  the  petitioners               were not entitled to relief because of  delay.               It is not possible to agree. After the redemp-               tion  certificate  on  16th  November,   1983,               application for revalidation and OGL  endorse-               ment was made within four months therefrom  on               12th  March,  1984. There is, in  the  circum-               stances,  no  such  delay as  to  warrant  its               ejection  on that ground. The contention  thus               fails and is rejected."     Shri Subba Rao submits that the delay referred to in the above  paragraph  is the delay in seeking  revalidation  and endorsement after 11 the  issue  of redemption certificate and not the  delay  in filing the writ petition and that in both the present  cases the  plea  of  delay in filing the writ  petitions  has  not received due consideration by the High Court. Shri Subba Rao referred  to  a number of pronouncements of this  Court,  to substantiate  that  such unexplained delay  particularly  in matters  dealing with import licences would bar  relief  and that  un-explained delay, by itself and without more,  is  a factor  disentitling a person to relief. He  submitted  that absence of prejudice to the opposite party, by itself, would not justify delay and that in the context of grant of import licences  passage of time brings with it, as here,  problems of conflicting policy considerations. Where change of policy would  impart  crucial significance to the  delays,  Courts, learned  counsel  says,  should insist upon  even  a  higher degree  of promptitude. He, accordingly, submitted that  the writ  petitions should be dismissed on the ground  alone  of delay in filing them.     This  contention  of  the appellant  cannot  be  brushed aside. If appellants had raised a specific plea of delay  as a bar to the grant of relief--and the delays in the  present cases,  having regard to the nature of  the  subject-matter, were  not inconsiderable--it was perhaps necessary  for  the High  Court  to have specifically dealt with the  plea.  The aspect  of delay adverted to by the learned Single Judge  in the course of the order was a different one.     However,  we think it would be somewhat unfair  for  the respondents, who have succeeded in the High Court, to decide this question without an opportunity to them to satisfy  the Court as to the reasons, if any, for the delay and as to the sufficiency  of  such reasons. We assume that the  plea  had been  taken before the High Court by the appellants as  this submission of the learned counsel for the appellant was  not controverted.  We  think it would be  appropriate  that  the appellants’  appeals before the High Court are  remitted  to

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the High Court for such consideration as the Appellate Bench may now bestow on this contention of the appellants. If  the appellate  bench  is  persuaded to view that  the  delay  is satisfactorily  explained  it  may proceed  to  confirm  the orders  of the learned Single Judge, subject, of course,  to the question of permissibility of the importable items to be determined in the light of the pronouncements of this  Court referred  to  at contention (c). If, on  the  contrary,  the delay is held by the Division Bench to be such as to  disen- title respondents to relief, the Division Bench may  proceed to  allow  the appeals and dismiss the  writ-petitions.  All other controversies in the appeal shall be held to have been concluded in favour of the respondents. 12     Accordingly,  the appellate-judgments of the High  Court under  appeal are set aside and the appeals 149 of 1987  and 179  of 1987 before the High Court are remitted for a  fresh disposal  as  indicated  above. The High  Court  might  also consider  the desirability of a very early disposal  of  the appeals.  These appeals are disposed of  accordingly.  There will, however, be no order as to costs in these appeals. N.V.K.                              Appeals disposed of. 13