PETITIONER:
DURGA PRASHAD
Vs.
RESPONDENT:
CHIEF CONTROLLER OF IMPORTS & EXPORTS & ORS.
DATE OF JUDGMENT:
22/11/1968
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
HEGDE, K.S.
CITATION:
1970 AIR 769 1969 SCR (2) 596
1969 SCC (1) 185
ACT:
Constitution of India, Art. 226-Mandamus seeking import
licence-Delay in filing writ petition-Relief if should be
given.
HEADNOTE:
The appellant who carried on the business of export and
import applied for an import licence to import certain
goods. The licence was issued in 1959 for only a part of
the value applied for. He filed appeals and exhausted all
the remedies under para 85 of the order relating to the
Export Promotion Scheme, as a result of which finally in
March 1962 he was granted a supplementary licence to import
a small part of the goods. In April 1964, the appellant
approached the Minister, and he was informed that no further
licence would be issued to him. Thereupon, the appellant
filed a petition under Art. 226 of the Constitution seeking
a mandamus for the issue of the import licence. The High
Court dismissed the petition in limine but granted
certificate Under Art. 133(1)(a) of the Constitution. '
HELD: The appeal must fail.
The petition under Art. 226 of the Constitution was
filed after great delay. No explanation was given in the
petition for the delay in filing the petition and it was not
explained what the appellant was doing between March 6,
1962, when the supplementary licence was issued, and April
1964. The exchange position of this country and the policy
of the Government regarding international trade, varies
from year to year and it would be rather odd for this Court
to direct that an import licence be granted in the year
1968 in respect of alleged default committed by the
Government in 1959 or 1962. In these matters it was
essential that persons who were aggrieved by orders of the
Government should approach the High Court after exhausting
the remedies provided by law, rule or order with utmost
expedition. Even in the case of alleged breach of
fundamental rights the matter must be left to the discretion
of the High Court. [864 G, 865 B]
Smt. Narayani Debi Khaitan v. State of Bihar, C.A. No.
140 of 1964 judgment dated, September 22, 1964, Maharashtra
State Road Transport Corporation v. Shri Balwant Regular
Motor Service, Amravati, [1969] S.C.R. 808 and Moon Mills
v. Industrial Court, A.I.R., 1967 S.C. 1450, 1453, 1454,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1116 of 1965.
Appeal from the order dated August 26, 1964 of the Punjab
High Court in Civil Writ No. 498-D of 1964.
M.C..Chagla, Sardar Bahaclur, Ajit Prasad Jain, Vishnu
B. Saharya ,and Yougindra Kaushalani, for the appellant.
V.A. Seyid Muhammad and S.P. Nayar, for the respondents.
862
The Judgment of the Court was delivered by
Sikri, J. The appellant, Durga Prashad, filed a petition
under Art. 226 of the Constitution against the respondents.
The High Court of Punjab, Circuit Bench, Delhi, dismissed
the petition in limine. Thereupon the appellant applied
for a certificate under Art. 133 (1)(a) of the
Constitution. The High Court gave this certificate on the
ground that the value of the subject-matter directly
involved in the petition exceeds Rs. 20,000/-.
In our opinion this appeal must fail on the ground that
the petition under Art. 226 of the Constitution was filed
after great delay. The relevant facts are as under. The
appellant was carrying on business of export and import, and
exported goods of the value of Rs. 8,10,325/-, F.O.B. value
Rs. 8,03,530.45, during the period August 25, 1958, to
September 29, 1958. On November 12, 1958, the
appellant applied for an import licence for art silk
yarn of the f.o.b. value of Rs. 8,03,530.45 nP under
the Export Promotion Scheme. The Export Promotion Scheme was
discontinued with effect from March 6, 1959. On October 9,
1959, import licence of the value of Rs. 3,27,841/- only was
issued to the appellant by the Joint Chief Controller of
Imports and Exports, Bombay. His appeal against this order
was rejected by the Joint Chief Controller on March 4, 1960.
It is alleged by the appellant that he was not given a
hearing. The appellant filed a second appeal to the Chief
Controller of Imports and Exports, and this was dismissed on
April 22, 1961. Here again it is alleged that no’ hearing
was given to the appellant. He filed a representation
against the order dated April 22, 1961, and on that
representation a supplementary import licence for import of
art silk yarn of the value of Rs. 30,000/- was issued
to the appellant. This exhausted all the remedies he had
under para 85 of the order relating to the Export Promotion
Scheme, but he instead of filing a writ chose to wait. The
appellant apparently approached the Minister of
International Trade by letter dated April 6, 1964- this is
the letter referred to in the letter of the Private
Secretary to the Minister of International Trade-and the
Private Secretary, vide his letter dated April 16, 1964,
wrote to him saying that his letter had been passed on to
the Chief Controller of Imports and Exports, New Delhi, and
if so desired the appellant may see him in the matter.
Apparently the Chief Controller invited him and on June 22,
1964, he was informed that no further licence would be
issued to him. On August 24, 1964, the appellant filed the
petition above-mentioned in the High Court. No explanation
has been given in the petition for the delay in filing the
petition and it has not been explained what the appellant
was doing between March
863
5, 1962, when the supplementary licence was issued, and
April 6, 1964.
It is well-settled that the relief under Art. 226 is
discretionary, and one ground for refusing relief under Art.
226 is that the petitioner has filed the petition after
delay for which there is no satisfactory explanation.
Gajendragadkar, C.J., speaking for the Constitution
Bench, n Smt. Narayani Debi Khaitan v. The State of
Bihar(1), observed.
“It is well-settled that under Art. 226,
the power of the High Court to issue an
appropriate writ is discretionary. There can
be no doubt that if a citizen moves the High
Court under Art. 226 and contends that his
fundamental rights have been contravened by
any executive action, the High Court would
naturally like to give relief to him; but even
in such a case, if the petitioner has been
guilty of laches, and there are other relevant
circumstances which indicate that it would be
inappropriate for the High Court to exercise
its high prerogative jurisdiction in favour of
the petitioner, ends of justice may require
that the High Court should refuse to issue a
writ. There can be little doubt that if it is
shown that a party moving the High Court under
Art. 226 for a writ is, in substance, claiming
a relief which under the law of limitation was
barred at the time when the writ petition was
filed, the High Court would refuse to grant
any relief in its writ jurisdiction. No hard
and fast rule can be laid down as to when the
High Court should refuse to exercise its
jurisdiction in favour of a party who moves it
after considerable delay and is otherwise
guilty of laches. That is a matter which must
be left to the discretion of the High Court
and like all matters left to the discretion of
the Court, in this matter too discretion must
be exercised judiciously and reasonably.”
Relying on the judgment of this Court in Maharashtra
State Road Transport Corporation v. Shri Balwant Regular
Motor service, Amravati(2) the learned counsel for the
appellant contends hat the delay should not debar him from
seeking relief because he respondents have not suffered in
any manner because of the delay. In this case Ramaswami,
J., speaking for the Court, referred to an earlier decision
in Moon Mills v. Industrial Court(a).
(1) C.A. No. 140 of 1964; judgment dated September 22,
1964.
(2) [1969] 1 S.C.R. 808.
(3) A.I.R. 1967 S.C. 1450, 53, 54. Sup CI/69- 4
864
In that case Ramaswami, J.,..speaking for the Court,
observed:
“It is true that the issue of a writ of
certiorari is largely a matter of sound
discretion. It is also true ‘that the writ
will not be granted if there is such
negligence or omission on the part of the
applicant to assert his right as, taken in
conjunction with the lapse of time and other
circumstances, causes prejudice to the adverse
party. The principle is to a great extent,
though not identical with, similar to the
exercise of discretion in the Court of
Chancery.”
It would be noticed that Ramaswami, J., had first examined
the question of delay and came to a finding that in fact
there was n delay. Ramaswami, J., observed:
“On behalf of the respondent Mr. B. Sen, however,
pointed out that the conduct of the appellant does not
entitle it to the grant of a writ, because it has been
guilty of acquiescence or delay. It was pointed out that the
award of Mr. What was given on April 25, 1958, but an
application to the High Court for grant of a writ was made
long after on November 16, 1959. We do not think there is
any substance in this argument, because the second
respondent had made an application, dated August 19, 1958 to
the Labour Court for enforcement of the award and the
appellant had contested that application by a Written
Statement, dated September 15, 1958. The Labour Court
allowed the application on August 4, 1959 and the appellant
had preferred an appeal to the Industrial Court on August
31, 1959. The decision of the industrial Court was given on
October 24, 1959 and after the appeal was dismissed the
appellant moved the High Court for grant of a writ on
November 16, 1959.”
The appellant in this case had claimed a mandamus or
direction to the respondents to issue to the appellant
import licence for art silk yarn of the value of Rs.
8,03,530.45. It is well-know that the exchange position of
this country and the policy of Government regarding
International trade varies from year t year and it would be
rather odd for this Court to direct that a Import licence be
granted in the year 1968 in respect of allege,, default
committed by the Government in 1959 or 1962. In these
matters it is essential that persons who are aggrieved by
order of the Government should approach the High Court after
exhausting the remedies provided by law, rule or order with
utmost expedition.
865
The learned counsel for the appellant contends that this
matter involved fundamental rights and this Court at least
should not refuse to give relief on the ground of delay. But
we are exercising our jurisdiction not under Art. 32 but
under Art. 226, and as observed. by Gajendragadkar, C.J., in
the passage extracted above, even in the case of alleged
breach of fundamental rights the matter must be left to the
discretion of the High Court.
In the result the appeal fails. Parties will bear their own
costs.
Y.P. Appeal dismissed.
366