J. Fernandes & Co. v. the Deputy Chief Controller of Imports & Exports and Ors.

Judgment

ORIGINAL JURISDICTION : Writ Petition No. 615 of 1970. Petition under Art. 32 of the Constitution of India. Y. S. Chitale, H. N. Ramachandra and B. R. Aganwria, petitioners. P. f .. Rao and S. P. Nayar, for the respondents. The Ju:igment of the Court was delivered by for the RA[Y., C. J.--This writ petition is for a mandamus directing the r:~spondents to cancel for orders mentioned in the petition and to issue quota certificate to the petitioners in respect of their past irniports. The petitioners are a partnership firm. The petitioners are successors to J. Fernandes & Compa•11y of, which Joshino Fernandes was the sole proprietor, hereinafter referred to as the original concern. In the month of October, 1961 the original concern booked orJcrs for purchase of Surveyi1,1g & Mathematical Instrume11ts and Surgical & Scientific Instruments with a German firm. The orders were accepted by the German firm, as will appear from the letter dated 7 November, 1961.

On 19/20 December, 1961 Go>a was liberated. Prior to the liberation of Goa import licences were granted to the citizens of Goa by a Government Department known as "Junta do Comercio Externo" which means the Board of External Trade. The original concern is alleged to be an importer registered with the Junta priior to the month of December, 1961. After the liberation of Goa the representatives of Goa Chamber of Commerce and Industry saw the Administrator of Goa wiith regard to applications for import. On 18 January, 1962 the original concern applied to the Administrator of Goa for issuing an import licence for £ 32,652.10 for Surveying anJ Mathematical Instruments and Surgical and Laboratory Equipments, along with necessary papers for firm commitments. The original concern obtained a licence on 12 February, 1962. Thi~ licence was No. 47. The original concern was allowed to import J, EERNANDES & CO. V. DY.

CHIEF CONTROLLER (Ray, C.J.) instruments, microscopes, laboratory apparatus and utensils all worth £32,652-10-0. The original concern opened a letter of credit on 21 February, 1962 for 50 per cent of the licence. The Central Government on 21 February, 1962 informed the Administrator, Goa, that the Central Govem.ment withheld action on all pending cases where import had been authorised. The Central Government gave two reasons. First, the Government were of the view that any relaxation o~ import would result in serious drain on foreign exchange, and second that it was difficult for any :;.uthority to be satisfied about the firm commitments and some abuse was possible. Pursuant thereto. the Administrator, Goa issued direcfrons to suspend issue of letter of credit and all cases relating to firm commitments entered into before 18 December, 1961 which were till then, not disposed of, should be frozen.

On 2 April, 1962 the Administrator of Goa issued a Press Note that imports into Goa, Daman and Diu would be governeJ by three principles. First, import would be allowed in cases (a) where letters of credits had been opened with the· Banco National Ultra Marines 01,1 or before 18 December, 1961; (b) where go'Ods were shipped on or before 20 December, 1961. · Second, imports of certain specified items were banned. Third, imports would be allowed of certain goods to the extent of 50 per cent of imports actually made in the quarter of September, Octuber and November, .1961. The petitioner's licence No. 47 was revalidated on 28 May, 1962 for £ 16,000 for which the petitioner had not till then opened letter of credit. 27 February, 1962 is the date when the Administrator of Goa had suspended to issue fresh letter of credit. In the month of July, 1962 the petitioner effected imports of goods for the full value.

The Imports and Exports Control Act, 1947 was applied to Goa, Daman & Diu from 1 Oct~ber, 1963. In October, 1964 the original concern was mken over by the petitioner. In 1967 the Hand Book for the year 1967 declared the peri'od 1 April, 1961 to 31 March, 1966 as the bask period and any one year during the period could be selected as the basic import by the concerned party who would become the established importers. On 15 May, 1967 the petitioner applied to the licensing authorities for recognising the change in the constitution of the firm and fixation of quota for which they could import the goods. The Iicens-. ing authorities recognised the change in the constitution but refused to fix the quota on the ground that the original licence No. 47 granted to the original concern on 12 February, 1962 was not issued h1 accordance with the procedure followed for the issue of licence at that time. The petitioner filed an appeal against the order. The appeal was rejected.

The petitioner filed a review application which was rejected. [19751 3 s.c.R. The petitioner's grievances are these: First, licence No. 47 d'ated 12 February, 1962 was a licence issued in accordance with the proc;edure followed for the issue of licence at that time. The directions of the Central Government were illegal. The Central Government was not competent to issue directions to the Administrator of Goa except through the President in view of Articles 239 and 240 of the Constitution. Second, the provisions of the Goa, Daman, Diu Administration Ordinance No. 2 of 1961, hereinafter referred to as lthe Ordinance and Goa, Daman, Diu Administration Act 1 0£ 1962 hereinafter referred to as the Act cured all irregularities of the State, li! any, for the grant of licence. Third, refusal to consider the applicat10n affects the fundamental right of the petitioner to carry ota trade and. bu~iness.

Fourth, the petitioner's fundamental right under Article 1_4 1s v1~lated because the responde_nts discriminated against the petitroner. fhe respondents granted hcences to six parties. It is said that the conditions, namely, shipping . before 20 December 1961 and opening of letters of credit before 18 December 1961 'could only operate in respect of licences issued by the Portu'guese Government. When by reason of policy, ~hese were the conditions applied, the same sh·ould have been applied even to those who were given licences under the old laws by the Portuguese Government or those who were given licences by the AJministrator of Go:1 under the operation of the old laws. There is no distinction between the cases of the petitioner and the case of six traders mentioned in Annexure R-4 at page 169. The contention of the petitioner tlrnt six traders have been granted licences whereas the petitioner was not, and, there was violation under Article 14 is unacceptable.

These six licences were issued· before liberatio!l between the period 12 February, 1961 and 4 December, 1961. TI1c six licences were issued prior to the liberation of Goa. The liberation 'Of Goa was on 19 December, 1961. On 20 December, 1961 Goa became a Union Territory. The licence on which the petitioner bases the claim was dated 12 February, 1962. The petitioner was not admittedly issued any licence before the liberation of Goa. Between the liberation of Goa and the application of the petitioner for licence, the Government of India issued on 3 January, 1962 to the Chief Civil Administrator, Goa certain directions regarding the issue of import licence. The original concern had not opened letter of credit before 18 December, 1961 and the goods in question were not shipped prior to 20 December, 1961.

The application of the petitioner was subsequent to the issue of directions dated 3 January, 1962 by the G.:ivernment of India that imports would be allowed if letter of credit had been opened before 18 December, 1961 or shipment had taken place before 20 December, 1961. The classification of per:;ons with reference to the grant of import licence depending on whether it was granted before the liberation or after the liberation of Goa is a valid classification based on intelligible differentia having a rational nexus with the object of import licence policy. There is no violation of' Article 14. 'The petitioner stands on a different footing and docs not belong to the class of pers:ons who were given import lic:ences during the Portuguese Rule before the liberation of Goa. J. FERNANDES & CO. V. DY. CHIEF CONTROLLER (Ray, C.J.) 873 The petitioner challenges the orders doate~ 28 September, 196~ rejecting the petitioner's applicati?n for the issue of ~ quota certificate.

The Government rejected rt on the ground that hcence No. 4 7 dated 12 February, 1962 was not issued in acc?rdance with the procedure prescribed for issue of licences, at that time. The Government relied on paragraph 33 (n ) of the Hand Book ?f Rules, 1968. In shor.t, that paragraph is that licence would be given only for the ?as1c period between 1 April 1961 and 31 March, 1966 to establlshe<l importers. The Governrhent took. th~ stand t~at the ~titioner is not eligible because there was ,no valid hcence. fhe petitioner does not challenge the validity of any provision of the Imports and B~ports (Control) Act, 194 7, oc any provision of any statutory. orders issued thereunder. The petitioner does not challenge the vahd1ty of para· graph 33 (n) of the Hand Book of Rules of Procedure. There is no challenge to the authority of the Deputy Chief Controller of Imports and Exports to pass an .order in the light of paragraph 33(n) of the Hand Book.

Reoally, the petitioner's contention is that the licensing authorities misapplied or wrongly applied the Imports and Exports Ce1,1trol Act. A petition under Article 32 will not be competent to challenge any erroneous decision of an authority. (See Gulabdas & Co. v. Assistant Collector of Customs(!) and State of Jammu & Kashmir v. Mh· Gulam Rasul). (2) A wrong application of Jaw would not amount to a violation of fundame\1tal right. Das, C.J. said in the case of Gulabdas & Co. (supm) that ;f the provisions of Jaw are good and the orders passed are within the jurisdiction of the authorities there is no infraction of fundamental right if the authorities are right or wrong on facts. In the case of Gulabdas & Co. (supra) the petitioners challenged the order of the Assistant Collector of Customs. The· Customs authorities assessed duty under Item 45 ( 4) of the Indiaf,1 Customs Tariff. The petitioners in that case contended that the duty should have been assessed under Item 45 (a).

This Court held that there was neither any violation of fundamental right under Article 19 or any unequal treatment and the petition was not maintainable. This Comt in the case of Smt. Ujjam Bai v. State of U.P.( 3) as also in the case of Bhatnagars & Co. Ltd. v. Union of India,(4 ) held the same view that any erroneous decision would not be a violation of fundamental rights .. The petitioner relied 01,1 sections 3, 4 and 7 of the Goa, Daman & Diu (Administration) Ordinance 1962. Section 3 of the Ordinance in short stated that authorities who immediately before the commencement of this Ordin•ance were exercising lawful fu 1.1ctions in connection with the Administratio11 of Goa, Daman and Diu or any part thcreofl shall, unless otherwise directed continue to exercise in connection with such administration thei't' respective functions. Section 4 or the Ordinance speaks of continuance of existi'ng laws and their adaptation l until amended or repealed by a competent legislature.

Section 7 says -ihat all things done and all actions taken on or 11.fter the appointed day (I) A.l.R. 1957 S.C. 733. (2) [1961] 3 S.C.R. 969. (3) [1963] l S.C.R. 778. (4) [1957] S.C.R. 701 at 712. 8 74 [19751 3 s.c.R. which was 20 December, 1961 and before the commencement of the on: nance, viz., 5 March, 1962 by the Administrator. or any other offkcr which have been done or taken in good faith and in a reasonable belief that they were necessary for the peace and good Government of Goa, Daman and Diu, shall be as valid and operative as if they had been done or taken in accordance with Jaw. The petitio~1er also relied on sections 4, 5 and 9 of the Act. Section 4 speaks of officers who before the commencement of the Act were exercising lawful functions would continue to exercise their rnspective functions. Section 5 of the Act speaks of continuance of existing. laws and their adaptation until a.mended or altered by the competent Legislature.

Sectioi.1 9 of the Act speak~ of validation of ce:rtam action and indemnity of officers for certain acts similar to section 7 of. the Ordina.nce .. Sections 3 and 4 of the Goa, Daman and Diu (Administration) Ordianance No. 2 of 1961 and Sections 4 and 5 of the Goa, Dama1,1 and Diu (Administration) Act No.1 of 1962 do not support the case of the petitioner. These provisions in the Ordinance and the Act came into force on 5 March, 1962. The import licence was i1:sued on 12 Febmary, 1962 which is prior to the comi'ng into force of the provisions of the Ordinance and the Act. After the liberation of Goa the Portuguese laws were not in force and, therefore, the petitioner cannot take recourse to the Portuguese laws for the validity of the licence which was issued en 12 February, 1962. The Chief Civil Administrator was su·bordinate authority to the Government of India a.nd was boirad to obey the directions of the Central Government.

The Chief Civil Administrator had no authority to issue a licence in disregard of the directions of the Central Government. Such a Iicenct~ would not confer any right on the petitioner (See State of Punjab v. Jagdip Sm&h) ((I). The petitioner cannot draw a'ay sustenance either from section 7 of th·~ Ordinance or section 9 of the Act for three reasons. First, the scope of validation is limited to such acts which were done in· good faith and with the reasonable belief that they were necessary for peace and good Government. The licence was issued in cO'ntravention of lawful directions given by the Government. of India. The licence was not issued in good faith or in a reasonable belief that the:y were necessary for the peace and good Government of Goa, Dama~1 and Diu. Second, the validation was not intended to protect breaches of directions issued by the new sove~eign. (See Pama Chibar v. Union of India) (2).

If the licence dated 12 February, 1962 was validated by section 7 of the Ordinance that validatida would be an answer to any move on the part of the responde11ts to cancel that particular licence. What was deemed to be valid by legal fiction for a certain purpose, notwithstanding the infirmity in granting it, cannot confer any right ml the petitioner to claim in future as a matter of right, any import quota. (I) [1964] 4 S.C.R.. 964. (2Hl966] 1 S.C.R. 357. J. FERNANDES & CO. V. DY. CHIEF CONTROLLER (Ray, C.J.) 8 75, The validation would be only in respect of past transactions. Third, in the year 1967 the Govemment of India laid down the conditions that imports made under licences issued through inadvertence or mistake in the past would not be considered for issuing the import quota l.!ertificate. This is a matter of policy. Normally, courts do not go into such policy decision. The policy decision is also not challenged by the petitioner.

If the policy is followed and in a given case a liceace was issued contrary to the procedure or by mistake or inadvertence, the decision in the year 1968 in the light of the policy enunciated in 1967 cannot be regarded erroneous simply on the ground that the original licence erroneously issued in 1962 might be validated under section 7 of the Ordinance. A1,1y revalidation of the licence on 28 May, 1962 by the Administra· tor would not assist the petitioner in regard to obtait1ing CjUOla dghto;. On 12 April, 1962 the Administrator himself issued a Press Note specifying the conditions subject to which imports would be allowed. • Revalidation was in violation of the terms and conditions set out by the Chief Civil Administrator in his Press Note dated 2 April, 1962. It is not correct to say that the Chief Civil Administrator revalidated the licence dated 12 February, 1962 on 28. May, 1962.

The Chief Civil Admi~1istrator merely extended the validity of the licence for a further period of 90 days. It is not a case of revalidation of a d~fec­ tive licence but a case of extension of the duration of the licence. If the original licence was defective mere extension of the duratio1a of the licence could not cure the defect. In any event, the protection, if any, of the validating section in the Ordinance would not extend beyond 4 March, 1962 because the acts validated u'nder section 7 of the Ordinance must have been done between 20 December, 1961 and 4 March, 1962. The directions issued by the Central Government 'are impeached by the petitioner to be in violation of Articles 239 and 240 of the Constitution. Under Article 1 (3) (c) of the Constitution, Goa, Daman and Diu became part of the territory of India by acquisition. Goa, Daman and Diu became a Union Territory on and from the date of their acquisition by the Government of India.

Under Article 239 ( 1) a Union Territory shall be administered by the President acting through an Administrator. Article 240 empowers the President to make regulations for the peace, progress and good Government of the l~ 1nion Territory. In the present case no Presidential Regulation was relied on by either side. Parliament has power under Article 246 ( 4) to make laws with respect to any Union Territory. The executive power of the Union under Article 73 (1) (a) shall extend to the matters with respect to which Parliame'nt has power to make laws. The Union Government has, therefore, power to issue executive directions to the Administrator of a Union Territory. So long as there is no conflict between a direction issued by the Central Government and a Presidential Regulation made under Article 240, the Administrator of a Union Territory is boul1d to carry out the orders and directions given by the Central Government. The decision of this Court in Shamsher Singh v. State U 97 51 3 s.c.R. of Punjab & Anr.(I) is that the powers conferred on the Pr~sident by Article 239 are to be exercised by him on the aid and advice of the Cabinet.

Therefore, the directions issued by the Central Government are valid because of the combined effect of Article 73 and Atricle 246 which CO'a.fers power on the Union executive to exercise powers in respect of matters with respect to which Parliament has competence to make laws. ln the present case, ihe Chief Civil Administrator himself declared in a Press Note dated 2 April, 1962 the terms and conditions subject to which import licence would be grante.d .. The alleged revalidation of licence No. 47 in the month of May, 1962 took place subsequent to tl~e Press Note a.nd contrary to the terms a·nd conditions. It was really not a revalidation of the licence but an extension of the period, If the licence itself was defective, there could not be any validation of the licence as was c:ontended for by the petitioner. There is no par1:icular statute or Portuguese law which confers a!ay right on the petitioner to get an import licence in the circumstani~es . in which it was issued to him.

Even if pre-liberation laws continued to be in force with effect from 5 March, 1962 that would not take away power of the Central Government to modify or alter the preexisting procedure for issuing import licences, after liberation, in exercise of its exei::utive powers under Article 73 (1) of the Constituti<Jl11. The: petitioner contended that the original concerh was an importer registered with t:he Ju1ata prior to December, 1961. The respondents denied th•at allegation. The petitioner in the rejoinder alleged that it is to be presumed that the original importer must have been registered wiith the Ju'nta, prior to the liberation. No materials were shown to establish that thi~ original concern was a regular registered importer.

The contu1tion on behalf of the respondents that tbe licence was issued without following the regular procedure and by inadvertence or misrake is borne by the facts and circumstances of the case particularly because the Chief Civil Administrator had no authority to issue a11y import licences in contravention of the directions of the Central Government issued on 3 January, 1962. The petitioner relied on the decision of this Court in M/s. Andhra Industrial Works v. Chief Controller of Imports and others(2) in support of t_he proposition appearing at page 1542 of the Report. The proposition stated there in that one of the instances in relation to laws regulating the citizen's right to carry on trade or business guarantef:d by Article l 9(1) (g) may be catalogued as where the impugned acticin. is based on a misconstruction of the intra vires statute or is so contrary to the established procedure or rules of natural justice that it resul:ts in violation of •,1 fundamental right.

In the case of M /s. A ndhra Industrial Works (supra) the proposition which was extracted from Ujjmnhai's case (supra) is that an order of assessment made by an . authority under a taxing statute which is intra vires, cMnot be challenged under Article 32 as repugnant to Article 19(1) (g) on the sol~ (l) A.LR.1974 S.C. 2192. (2)A.I.R. 1974 S.C. 1539, J. FERNANDES & CO. V. DY. CHIEF CONTROLLER (Ray, C.J.) 877 ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder. fa Ujjambai's case (supra) it was said that when assessment proceedings are repugnant to rules of natural justice there is an infringement of the right guaranteed under Article 19 (1 )(f) and 19 (1 )(g). In support of that proposition reference was .made to Tata lrO,n and Steel Co. Ltd. v. S. R. Sarkar('), K. T. Moopil Nair v. The State of Kerala( 2 ) and Shn Madan. · lal Arora v. The Excise and Taxation Officer(8 ).

In the case of Andhra Industrial Works (supra) an objectfon was raised on behalf of the res~ondents that the petition was not compe· tent because there was no violation of fundame111tal rights. This Court upheld that objection and said that neither the Imports and Exports (Control) Act nor any order thereunder was alleged to be ultra vires nor was the Import Control Policy impeached. A policy statement was held to be not a statutory document. No person can dn. the basis of a policy statement claim a right to the grant of an import licence. This Court. also held that there is no absolute right much less a fundamental right, to the grant of an import licence. This Court in Deputy Assistant Iron and Steel Controller v. L Manickchand, Proprietor, Katrella Metal Corporation, Madras(') held that no one has any vested right to an import licence in terms of the policy in force at the time of his application. There is no misconstrue· tion of any statutory provision in the present case.

In the present case, it cannot be said that there is no authority of law to reject ·an application for import licence. For these reasons, the petition fails and is dismissed. Parties will pay and bear their own costs. V.M.K. (1) [1961] 1 S.C.R. 379. (3) [196211 S.C.R. 823. Petition dismissed. (2) [1961] 3 S.C.R. 77. (4) [197l] 3 S.C.R. 1.