{"id":207823,"date":"1987-04-15T00:00:00","date_gmt":"1987-04-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/d-navinachandra-co-bombay-vs-union-of-india-ors-on-15-april-1987"},"modified":"2017-12-25T21:38:41","modified_gmt":"2017-12-25T16:08:41","slug":"d-navinachandra-co-bombay-vs-union-of-india-ors-on-15-april-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/d-navinachandra-co-bombay-vs-union-of-india-ors-on-15-april-1987","title":{"rendered":"D. Navinachandra & Co., Bombay & … vs Union Of India & Ors on 15 April, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
D. Navinachandra & Co., Bombay & … vs Union Of India & Ors on 15 April, 1987<\/div>\n
Equivalent citations: 1987 AIR 1794, \t\t 1987 SCR (2) 989<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nD. NAVINACHANDRA & CO., BOMBAY & ANR. ETC.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT15\/04\/1987\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nPATHAK, R.S. (CJ)\nMISRA RANGNATH\n\nCITATION:\n 1987 AIR 1794\t\t  1987 SCR  (2) 989\n 1987 SCC  (3)\t66\t  JT 1987 (2)\t141\n 1987 SCALE  (1)790\n CITATOR INFO :\n RF\t    1989 SC 690\t (5,6)\n\n\nACT:\n    Import Policy, 1978-79--Diamond Exporters granted Export\nHouse  Certificates  and  Additional  Licences\tpursuant  to\norders of Court dated April 18, 1985--Entitlement for import\nof  items  under the Import Policy current at  the  time  of\nimport--Effect\tof  subsequent\tdecisions  rendered  by\t the\nCourt.\n\n\n\nHEADNOTE:\n    By a common order dated April 18, 1985 in C.A. No.\t1423\nof  1984, etc., Union of India v. Rajnikant Bros. the  Court<\/a>\nhad  directed issue of Export House Certificates  and  Addi-\ntional Licences to the petitioners and other diamond export-\ners  under  the\t Import Policy 1978-79\tstating:  \"Save\t and\nexcept items which are specifically banned under the  preva-\nlent  Import Policy at the time of import,  the\t respondents\nshall  be entitled to import all other items  whether  cana-\nlised  or otherwise in accordance with the relevant  rules\".\nThe petitioners, who were issued Additional Licences  pursu-\nant  to this order, imported several consignments  of  items\nfalling\t under\tAppendices  2B, 3 and 5\t of  Import  Policy,\n1985-88,  and, while clearing them, the Customs\t Authorities\nimposed\t a  fine of Rs.45,000 in respect  of  certain  items\nfailing\t in  Appendix 2B and issued show  cause\t notices  in\nrespect of certain other items failing in Appendices 2B\t and\n5.  The petitioners challenge was directed not only  against\nthese  orders, but extended to certain subsequent  decisions\nof  the\t Court which, according to them, had  cut  down\t the\neffect of the Court's earlier order dated April 18, 1985  in\nUnion of India v. Rajnikant Bros.\nDismissing the<\/a> petitions,\n    HELD: The decisions rendered subsequent to the  decision\ndated April 18, 1985 in Union of India v. Rajnikant Bros.<\/a> do\nnot  take any different or contrary view. Indeed, they\tgive\neffect to the letter and spirit of that decision. The  basic\nbackground in which the decision in Union of India v. Rajni-\nkant  Bros.  was rendered was that Export  Houses  had\tbeen\nrefused\t Export House Certificates on the ground  that\tthey\nhad  not  diversified their exports. It was found  that\t was\nwrong.\tThe  wrong was undone by directing issue  of  Export\nHouse Certificates for\n990\nthe year 1978-79 though the order was passed in April, 1985.\nThat  was  a measure of restitution, but  the  Court,  while\ndoing  so,  ensured that nothing illegal was done. It  is  a\npresumption of law that the courts act lawfully and will not\nask  any authority to do anything which is illegal.  It\t was\ndirected  that\texcept those items which  were\tspecifically\nbanned\tunder  the prevalent import policy at  the  time  of\nimport, the respondents therein were entitled to import\t all\nother items whether canalised or not canalised in accordance\nwith  the  relevant rules. Analysing the said order,  it  is\napparent: (1) that the importation that was permissible\t was\nof  goods which were not specifically banned, (2) that\tsuch\nbanning\t must  be under the prevalent import policy  at\t the\ntime  of import. and (3) whether items which were  canalised\nor  uncanalised\t would be imported in  accordance  with\t the\nrelevant  rules. These conditions had to be  fulfilled.\t The\ncourt never did and could not have said that canalised items\ncould  be imported in any manner not permitted nor it  could\nhave given a go-bye to the canalisation policy. [1000C-H]\n    (ii).  In Raj Prakash Chemicals v. Union of\t India,,<\/a>  it\nwas  explained\tthat only such items could  be\timported  by\ndiamond\t exporters under the Additional Licences granted  to\nthem  as  could have been imported under the  Import  Policy\n1978-79\t and  were also importable under the  Import  Policy\nprevailing at the time of import. These were the items which\nhad  not  been\t'specifically banned'  under  the  prevalent\nImport\tPolicy.\t The items had to pass\tthrough\t two  tests,\nfirstly,  they should have been importable under the  Import\nPolicy\t1978-79\t and, secondly, they should also  have\tbeen\nimportable under the Import Policy, 1985-88 in terms of\t the\nOrder  dated  18th April, 1985 and if one may add,  in\tsuch\nterms  'in accordance with the import rules'  whether  cana-\nlised or not canalised. The Court had no occasion to consid-\ner  in\tthat  case the significance of\tthe  words  'whether\ncanalised  or otherwise' mentioned in the Order\t dated\t18th\nApril,\t1985 in Union of India v. Rajnikant  Bros.,<\/a>  because\nthat point did not arise there. [1000H; 1001A-D]\n    (iii) What did the court then intend by the words 'whet-\nher  canalised\tor otherwise' used in the order\t dated\t18th\nApril, 1985 in Union of India v. Rajnikant Bros<\/a>? The diamond\nexporters could import the items which they were entitled to\nimport\tunder the Import Policy 1978-79 provided  they\twere\nimportable  also under the Import Policy ruling at the\ttime\nof  import.  These are items which were open  to  import  by\nExport\tHouses holding Additional Licences for Sale  to\t the\nActual\tUsers (Industrial). These are items which  were\t di-\nrectly\timported,  for example, items in Part II List  8  of\nAppendix  6 of Import Policy 1985-88. These are items  which\nare not canalised. Canalised items are those\n991\nitems  which  are ordinarily open to import only  through  a\npublic\tsector agency. Although generally these are  import-\nable  through public sector agencies, it is permissible\t for\nany Import Policy to provide an exception to the rule and to\ndeclare\t that  an  importer might import  a  canalised\titem\ndirectly.  It is in that sense and that sense only that\t the\nCourt  could  have  intended to define\tthe  entitlement  of\ndiamond\t exporters.  They would be entitled to import  items\nwhich were canalised or not if the Import Policy  prevailing\nat the time of import permitted them to import items failing\nunder such category. [1001D-G]\n    (iv)  In  the Order dated 18th April, 1985 in  Union  of\nIndia  v. Rajnikant Bros.,<\/a> this Court did not do  away\twith\ncanalisation. That was not the issue before this Court. This\nexpression  'whether  canalised\t or not\t canalised'  was  to\ninclude\t both. This Court did not say that  canalised  items\ncould  be  imported directly by the importers  ignoring\t the\ncanalisation process. High public policy, it must be  empha-\nsised,\tis  involved  in the scheme  of\t canalisation.\tThis\npurpose of canalisation was examined by.this Court in Daruka\nJUDGMENT:\n<\/pre>\n
of  this  Court\t observed that the policies  of\t imports  or
\nexports\t were fashioned not only with reference to  internal
\nor  international  trade, but also on monetary\tpolicy,\t the
\ndevelopment  of agriculture and industries and even  on\t the
\npolitical  policies  of the country and rival  theories\t and
\nviews may be held on such policies. If the Government decid-
\ned  an economic policy that import or export should be by  a
\nselected  channel  or through selected agencies,  the  court
\nwould proceed on the assumption that the decision was in the
\ninterest  of  the  general public unless  the  contrary\t was
\nshown.\tTherefore, it could not be collaterally\t altered  in
\nthe manner suggested. The policy of canalisation which is  a
\nmatter of policy of the Government was not given a go-bye by
\nthe  observations  referred to in the Order of\t18th  April,
\n1985.  Indeed, it is possible to read the Order in a  manner
\nconsistent  with  canalisation\tscheme in the  way  we\thave
\nindicated.  If that is so, then it should be so\t read.\tWhen
\nthis Court observed that the fact whether items were  sought
\nto  be imported by diamond merchants were  canalised,  would
\nnot  be\t an impediment to the import directly by  them,\t the
\nCourt  meant to say that this could be imported directly  by
\nthem  through  the canalisation organisation. The  need\t for
\ncanalisation stands on public policy and that need cannot be
\nlightly\t or inferentially given a go-bye. It should  not  be
\npresumed that collaterally the court had done away with\t the
\nsystem of canalisation based on sound public policy. We have
\nfound nothing in the different authorities on this  subject,
\nwhich  militate\t against  the above  views.  Therefore,\t the
\naction taken by the Customs Authorities in issuing adjudica-
\ntion notice and proceeding in
\n992<\/span>
\nthe manner they did we are of the opinion that they have not
\nacted  illegally or without jurisdiction. This must  proceed
\nin accordance with law as laid down by this Court which, in.
\nour  opinion  is clear enough. The fact that  in  subsequent
\ndecision,  the\tpetitioner is not a party is  not  relevant.
\nGenerally  legal positions laid down by the court  would  be
\nbinding\t on all concerned even though some of them have\t not
\nbeen  made  parties nor were served nor any notice  of\tsuch
\nproceedings given. [1001H; 1002A-G]
\n    Union of India v. Rajnikant Bros., C.A. No.<\/a> 1423 of 1984
\ndecided on April 18, 1985; Raj Prakash Chemicals Ltd. & Anr.
\nv.  Union  of India & Ors.,<\/a> [1986] 2 S.C.C. 291;  M\/s.\tIndo
\nAfghan Chambers of Commerce &Anr., etc. v. Union of India  &
\nOrs.,  etc., [1986] 3 S.C.C. 352; Union of India  v.  Godrej
\nSoaps  Pvt. Ltd. &<\/a>Anr., [1986] 4 S.C.C. 260; and  M\/s.\tStar
\nDiamond Co. India v. Union of India & Ors.,<\/a> [1986] 4  S.C.C.
\n246,  discussed, explained and reiterated. Daruka &  Co.  v.
\nUnion of India & Ors.,<\/a> [1974] 1 SCR 570, referred to.\n<\/p>\n
&
\n    ORIGINAL JURISDICTION: Writ Petition Nos. 1483, 1494 and
\n1544 of 1986 etc.
\nUnder Article 32 of the Constitution of India.
\n    Dr:\t Y.S. Chitale, Satish Chandra, P.K.  Banerjee,\tS.N.
\nKacker,\t K.C.  Agarawal,  S.S. Rathore,\t L.K.  Garg,  M.K.D.
\nNamboodiary,  P.M.  Amin, Ashok\t Grover,  Bulchandani,\tM.N.
\nShroff, P.H. Parekh and Sohail Dutt for the Petitioners.
\n    K. Parasaran, Attorney Genera1, G. Ramaswamy  Additional
\nSolicitor  General, G. Subramaniam, A.S. Rao, Ms. Relan\t and
\nP.P. Parmeshwaran for the Respondents.\n<\/p>\n
    R.S..Nariman,  (Indo Afghan Chamber of Commerce).  Kapil
\nSibal,\t(M\/s Raj Prakash Chemicals) and Rajiv Dutta for\t the
\nInterveners.\n<\/p>\n
The Judgment of the Court Was delivered by
\n    SABYASACHI\tMUKHARJI, J. Writ Petition No. 1483 Of\t1986
\nis  directed.  against ‘the Show Cause\tNotices\t dated\t21st
\nAugust, 1986, 11th September, 1986 and 26th September,\t1986
\nissued to the petitioners–Messrs.D. Navinchandra & Company,
\na partnership firm and Dilip Kumar Dalpatlal Mehta, a  part-
\nner’of\tthe  said firm. In order to ‘appreCiate\t this  chal-
\nlenge;,\t it  is necessary to refer to  certain\tfacts.\tThis
\npetition raises the question of the rights of the  petition-
\ners and
\n993<\/span>
\nother  diamond exporters who were entitled to  export  house
\ncertificates and additional licences under import policy  of
\n1978-79 and who were granted the same pursuant to the  judg-
\nment  and ‘order of this Court dated 18th April,1985. As  we
\nshall explain later, there is no conflict With this decision
\nof  a Bench which consisted of a bench of three\t judges\t and
\nthe  subsequent\t decisions of this Court  which\t We.   Shall
\npresently refer. It is necessary also that in order to\tmake
\nout. a case, the petitioners have sought to emphasise on the
\npoint  that the decision dated 18th April, 1985 was a  deci-
\nsion of three learned Judges, in Order to spin out a case of
\nsome sort of conflict with this decision and certain  subse-
\nquent decisions of this Court consisting of benches of\ttwo’
\nlearned judges. It appears that the import policy issued  by
\nthe  Government of India for the year 1978-79  by  paragraph
\n176 provided for, additional licences. On 29th April,  1979,
\nthe  first  petitioner,\t a diamond  exporters,\twas  refused
\nExport House Certificate. The said. petitioner filed a\twrit
\npetition before the High Court of Bombay. being Misc.  peti-
\ntion  No. 1293\/1979. By his order and judgment, Pendse ,  J.
\nmade the rule absolute holding that canalised items were not
\nbanned\titems, and there was no reason why the\tfirst  peti-
\ntioner should not be compel-” led to approach the canalising
\nagency for import of the same. On 7th April, 1983, the Delhi
\nHigh  Court delivered a judgment in Civil writ Petition\t No.
\n1501  of 1981 (which for the sake of convenience, the  party
\nhas chosen to describe as Rajnikant Bros. & Ors. case allow-
\ning  the diamond exporters the same and holding that  merely
\nCanalising  an item could not be regarded as import of\tthat
\nitem  being  absolutely\t banned.  Against`  these  judgments
\nspecial leave petitions were filed in this Court,
\n    Appeal was also filed on 27th March. 1984 by the  Import
\nControl Authorities and Union of India against the  judgment
\ndated  11th November, 1983 mentioned hereinbefore passed  by
\nPendse,\t J. and the said appeal as dismissed on\t that  date.
\nAgainst the’ same, the, Export Control authorities and Union
\nof  India filed special leave petition No. 7190 Of  1984  in
\nthis  Court. Similar special leave petitions were  filed  in
\nthis  Court  against similar judgments of  the\tBombay\tHigh
\nCourt.\n<\/p>\n
    On\t18th April, 1985, by a common judgment, the  special
\nleave. petitions were disposed of. As much has been made out
\n‘of this judgment and order, it is necessary to refer to the
\nsame.  The  matter  was disposed of by the  order  in  Civil
\nAppeal\tNo, 1423 of 1984’ by a bench consisting\t Fazal\tAli,
\nJ., Varadarajan, J. and one of us (Sabyasachi Mukharji, J.).
\nIt was held by the said order that there was no\t requirement
\nof  diversification of exports as a condition for the  grant
\nof Export
\n994<\/span>
\nHouse  Certificate in the Import Policy for 1978-79.  There-
\nfore,  while confirming the High Court’s judgment,  quashing
\nthe order impugned in the writ petitions in the High  Court,
\nthis Court directed the appellants namely Union of India and
\nImport\tControl authorities to issue necessary Export  House
\nCertificates  for the year 1978-79. It was further  directed
\nthat  Export  House Certificates should\t be  granted  within
\nthree months from that date. The order stated that ‘save and
\nexcept items which are specifically banned under the  preva-
\nlent  import policy at the time of import,  the\t respondents
\nshall  be entitled to import all other items  whether  cana-
\nlised  or otherwise in accordance with the relevant  rules’.
\nThe appeals were disposed of accordingly with no order as to
\ncosts.\n<\/p>\n
    Pursuant  to  the aforesaid order, on 29th\tJuly,  1985,
\nimport\tlicence\t was  issued, it is claimed,  to  the  first
\npetitioner. of the c.i.f. value of Rs.71,15,900. Pursuant to
\nthe  said  import  licence, the\t first\tpetitioner  imported
\nseveral consignments of items failing either under  Appendix
\n3 (List of Limited Permissible Items), Appendix 2B (List  of
\nRestricted Items) or Appendix 5 (Canalised Items). According
\nto  the petitioner, in the matter of clearance of such\tcon-
\nsignments  different  standards were applied by\t the  Custom
\nauthorities.\n<\/p>\n
    On\t18th  October, 1985, in special leave  petition\t No.
\n11843 of 1985–In the case of Raj Prakash Chemicals Ltd.  v.
\nUnion of India<\/a> this Court directed that Acrylic Ester  Mono-
\nmors  would  not be permitted to be  cleared  until  further
\norders\tunless they had already been cleared. Similarly,  on
\n31st January, 1986, interim order was passed in the case  of
\nM\/s Indo-Afghan Chambers of Commerce v. Union of India (Writ
\nPetition  No.<\/a>  199  of 1986) directing that  Dry  Fruits  in
\nrespect\t of  which Custom clearance had been  obtained\ttill
\n30th  January,\t1986 would be allowed to be cleared  and  no
\nclearance  of  Dry fruits from 31st  January,  1986  onwards
\nwould  be made by the Custom authorities until\tfurther\t or-
\nders.\n<\/p>\n
    On\t5th March, 1986, judgment was delivered in the\tcase
\nof Raj Prakash Chemicals Ltd. and Another v. Union of  India
\nand Others,<\/a> [1986] 2 SCC 297 by a bench consisting of  three
\nlearned\t Judges-Tulzapurkar, J. and two of us (R.S.  Pathak,
\nJ.  as the Chief Justice then was, and Sabyasachi  Mukharji,
\nJ.).  This Court held that additional licence  holders\twere
\nentitled to import items permissible to Export Houses  under
\nImport\tPolicy 1978-79 excluding those items which  fell  in
\nAppendix  3  (List  of Banned Items) of\t the  Import  Policy
\n1985-88. This Court observed that diamond exporters who were
\ngranted Addi-\n<\/p>\n
995<\/span><\/p>\n
tional\tLicences  had formed a bona fide  belief  that\tthey
\ncould  import  all the items accessible to them\t under\tOpen
\nGeneral\t Licence under the Import Policy of  1978-79  except
\nthose  placed in Appendix 2 Part A of the Banned List  under
\nthe  Import  Policy 1985-88. This belief was formed  on\t the
\nbasis of consistent orders of the High Courts and consistent
\nmanner\tin which Import Control authorities construed  those
\norders.\t In  view of such a belief, it was further  held  by
\nthis Court, in the interest of broad principles of  justice,
\nequity\tand  fair  play and to\tavoid  undeserved  hardship,
\nwithout going to the legal technicalities that those diamond
\nexporters  who\twere granted Additional Licences  under\t the
\nImport Policy 1978-79 and had opened and established irrevo-
\ncable  letters of credit before 18th October, 1985 i.e.\t the
\ndate on which the interim order was passed by this Court  in
\nRaj  Prakash’s\tcase as mentioned  hereinbefore,  should  be
\npermitted,  notwithstanding the construction placed by\tthis
\nCourt on the order dated 18th April, 1985 of this Court,  to
\nclear the goods imported, or to be imported by them pursuant
\nto  such irrevocable letters of credit. In other words,\t all
\nimports\t effected pursuant to such letters of credit  should
\nbe deemed to have been legally and properly made, and should
\nentail\tno adverse consequences whatsoever. This Court\tfur-
\nther  reiterated  that the Court must be  presumed  to\thave
\ngiven  effect to law–That presumption can be rebutted\tonly
\nupon  evidence\tshowing a clear intention to  the  contrary,
\neither\texpressly  or by necessary implication.\t This  Court
\nnoted  that the order dated 18th April, 1985 which  we\thave
\nset  out  hereinbefore\tused  the  expression  “specifically
\nbanned”\t and the controversy before this Court in  Raj\tPra-
\nkash’s\tcase was on the meaning of the expression  ‘specifi-
\ncally  banned’ and the controversy between the parties\tcen-
\ntered round the meaning of the words ‘specifically  banned’.
\nIt was mentioned that Appendix 3 is the list of items  which
\ncould  not  be\timported by an Export  House  on  additional
\nlicence,  it  was a ban with reference to  the\tcategory  of
\nimporters.  Appendix 4 is the list of items which could\t not
\nbe imported by anyone whosoever. This Court, therefore,\t was
\nof  the\t view that when regard is had to the  Import  Policy
\n1984-85,  reference must necessarily be made to\t the  corre-
\nsponding  Appendix  3,\tformerly described as  the  List  of
\nBanned\tItems and now described as the List of Limited\tPer-
\nmissible Items, and Appendix 2 Part A which is now the\tlist
\nof  Banned  Items replacing Appendix 4 (List  of  Absolutely
\nBanned Items). In other words, said the Court, the Addition-
\nal Licences to be issued to diamond exporters entitled\tthem
\nto  import  items permissible to Export\t Houses\t under\tsuch
\nlicence\t under\tthe Import Policy  1978-79  excluding  those
\nitems  which  fell within Appendices 3 and 4 of\t the  Import
\nPolicy 1978-79 and also excluding items which fell in Appen-
\ndix 3 and Appendix 2 Part A of the Import
\n996<\/span>
\nPolicy 1984-85. This Court was of the view that this is\t the
\nmeaning which must be given to the terms of the order  dated
\n18th April, 1985. This Court noted that when this Court made
\nthe  previous  order  on 18th April, 1985  when\t the  Import
\nPolicy\tof 1985-88 was in force. there were only  two  items
\nwhich  were absolutely banned. and these were animal  tallow
\nand animal cannot. That was also Substantially the  position
\nunder the Import Policy 1984-85.\n<\/p>\n
    This  Court was of the view that in the Import  Policies
\nof  1984-85 and 1985-88 the items open to import under\tOpen
\nGeneral\t Licence  were then set forth,\twhen  Raj  Prakash’s
\njudgment was delivered i.e. in Appendix 6. A perusal of Part
\nI1  of List 8 in Appendix 6 indicated that it enumerated  in
\nfairly\tlong detail the items allowed to be imported by\t the
\nExport Houses holding Additional Licences for sale of  those
\nitems  to  eligible  Actual Users  (Industrial)\t subject  to
\nActual\tUser  conditions. That was the\tentitlement  of\t the
\nholder\tof an Additional Licence under paragraph  265(4)  of
\nthe Import Policy 1985-88.\n<\/p>\n
    It\tis  necessary  to set out in  detail  the  aforesaid
\njudgment and also to refer to the order of 18th April.\t1985
\nto  emphasise  that  whether non-canalised  items  could  be
\nimported directly. and not through canalised agency, was not
\nin issue in either of these two cases. nor decided or  adju-
\ndicated upon.\n<\/p>\n
    In\tthe judgment in Raj Prakash’s case (supra),  it\t was
\nheld that Additional Licence holders were entitled to import
\nitems  permissible to Export Houses under the Import  Policy
\n1978-79 excluding those items which fell in Appendix 3 (list
\nof banned items) of the Import Policy 1985-88.
\n    On\t17th  March, 1986, letter was written by  the  Joint
\nChief  Controller of Imports to Messrs. B. Vijay  Kumar\t and
\nCo. stating that against Additional Licences issued in terms
\nof  this  Court’s Order dated 18th April,  1985,  import  of
\nitems  permissible against Additional Licences in  terms  of
\nPolicy for 1978-79 would be allowed even if such items\twere
\nin the list of canalised items in Policy for 1978-79..
\n    On\t3rd April, 1986, there was a meeting with Member  of
\nC.B.E.C. and Principal Collector where the minutes  recorded
\nthat items which were under O.G.L. during 1978-79 and subse-
\nquently canalised in Policy for 1985-88 would be allowed  to
\nbe imported. On 23rd April, 1986, a circular was issued from
\nthe  Under  Secretary  to the Government of  India  to\tport
\nauthorities stating that canalised items
\n997<\/span>
\nwere not covered within the purview of this Court’s decision
\nin  Raj Prakash’s case and Additional Licence holders  would
\nbe allowed to import canalised item. By a letter on  14\/15th
\nMay,  1986  from Principal Collector  to  Chairman,  Western
\nRegion, Federation of Indian Export Organisation, the matter
\nhad been clarified and clearance of canalised items  against
\nAdditional Licences was unconditionally allowed.
\nThis Court again dealt with the question in the case of\t M\/s
\nIndo  Afghan Chambers of Commerce and Another etc. v.  Union
\nof India and Other  etc., [1986] 3 SCC 352. In that decision
\ntwo of us (R.S. Pathak, J. as the learned Chief Justice then
\nwas  and Sabyasachi Mukharji, J.) were parties. It was\theld
\nthat under the import policy of 1978-79 dry fruits  (exclud-
\ning  cashewnuts) could be imported by all persons under\t the
\nOpen General Licence. There was no need to obtain any  Addi-
\ntional Licence\tfor importing items in the year 1978-79\t and
\ntherefore,  the\t wrongful denial of Additional\tLicences  to
\ndiamond exporters in the year 1978-79, could not justify any
\nrestitution  subsequently  in regard to the  import  of\t dry
\nfruits (other than cashewnuts). It was further observed that
\nunder  the  Import  Policy 1985-88,  dry  fruits  (excluding
\ncashewnuts  and dates) were no longer open to  import  under
\nthe  Open General Licence. The sanction for  importing\tthem
\nmust  be  found\t under some other provision  of\t the  Import
\nPolicy.\t The diamond exporters, it was held,’ could  not  be
\nregarded  as  dealers engaged in the trade of  stocking\t and
\nselling\t dry fruits (excluding cashewnuts and  dates).\tThey
\nwere, therefore, not entitled to the advantage of  paragraph
\n181  (3)  of the Import Policy 1985-88. Dry fruits,  it\t was
\nfurther held, must be regarded as consumer goods of agricul-
\ntural origin. The words “agricultural origin” in Item 121 of
\nAppendix 2 Part B are used in the broadest sense. The  words
\n‘consumer goods’ in item 121 referred to dry fruits imported
\nfor supply to Actual Users (Industrial). It was further held
\nthat dry fruits do not appear in Appendix 3 Part A and 5 nor
\ncan  be\t imported under the Open General Licence  under\t the
\nImport Policy 1985-88, Inasmuch as they fail within Item 121
\nof  Appendix  2 part B they are excluded from the  scope  of
\nItem 1 of Appendix 6, and cannot be imported as raw  materi-
\nals  and consumables for sale to Actual Users  (Industrial).
\nAppendix  2 Part B (List of Restricted Items) was also\tsuc-
\ncessor of Appendix 4 (List of Absolutely Banned Items) under
\nthe Import Policy 1978-79. This Court reiterated, and it was
\nimportant  to emphasise, that On the reasoning\twhich  found
\nfavour\twith  this Court in Raj Prakash’s case, it  must  be
\nheld that diamond exporters holding Additional Licences were
\nnot entitled to import goods enumerated in Appendix 2 Part B
\nof the Import Policy 1985-88. As held in that case,  holders
\nof Additional Licences were
\n998<\/span>
\nentitled  to import only those goods which were included  in
\nAppendix  6 Part 2 List 8 of the Import Policy 1985-88.\t Dry
\nfruits\twere  not included in that list and  therefore\tthey
\ncould not be imported under Additional Licences.
\n    It is stated that on 20th May, 1986, there was an  order
\nof  adjudication in respect of one consignment of the  first
\npetitioner  in this case i.e. Messrs. D. Navinchandra &\t Co.
\nof items falling in Appendix 2B (List of Restricted Items) (
\n10  Bills of Entry) imposing fine aggregating to  Rs.45,000.
\nThen on 21st August, 1986, a show cause notice was issued to
\nthe first petitioner in this petition in respect of consign-
\nment  falling in Appendix 5 (Canalised Items) of the  Policy
\nfor 1985-88. Reply was duly given on 9th September, 1986 and
\na  show cause notice was issued on 11th September,  1986  to
\nthe  first petitioner in respect of one consignment  falling
\nin  Appendix  2B (List of Restricted Items)  of\t Policy\t for
\n1985-88. In the meantime, this Court had occasion to examine
\nsome  passage of this decision. This question  was  examined
\nand  it\t is necessary to refer to the  said  two  subsequent
\ndecisions of this Court.\n<\/p>\n
    The\t first\tone  is the decision in Union  of  India  v.
\nGodrej\tSoaps Pvt. Ltd. and Another,<\/a> [1986] 4 SCC.  260\t and
\nthe second one is the decision in M\/s Star Diamond Co. India
\nv. Union of India and Others,<\/a> [1986] 4 SCC 246. It is neces-
\nsary first to refer to Godrej Soaps’ case. It was held\tthat
\na diamond exporter could import the items he was entitled to
\nimport\tunder the Import Policy 1978-79 provided  they\twere
\nimportable  also under the Import Policy ruling at the\ttime
\nof  import. These are items which are open to import  by  an
\nExport\tHouse  holding\tan Additional Licence  for  sale  to
\neligible  Actual Users (Industrial). These are\titems  which
\ncould be directly imported, for example, the items enumerat-
\ned  in Part 2 of List 8 of Appendix VI of the Import  Policy
\n1985-88.  These are items which are not ‘canalised’.  ‘Cana-
\nlised’\titems are those items which are ordinarily  open  to
\nimport only through a public sector agency. There is, howev-
\ner,  nothing to prevent an Import Policy from  providing  in
\nthe  future that an Export House holding an  Additional\t Li-
\ncence  can directly import certain canalised items also.  In
\nthat  event, an Export House holding an\t Additional  Licence
\nwould  be  entitled to import items  “whether  canalised  or
\notherwise”, meaning thereby items open ordinarily to  direct
\nimport\t(non-canalised\titems)\tas well\t as  items  directly
\nimportable  although  on the canalised list. It is  in\tthat
\nsense that the Court had intended to define the\t entitlement
\nof a diamond exporter by using the words “whether  canalised
\nor otherwise” in its order dated 18th April, 1985.\n<\/p>\n
999<\/span><\/p>\n
    In\tthat case this Court found that in respect  of\tPalm
\nKernel Fatty Acid which was a canalised item listed as\tItem
\n9(v)  in  Appendix V Part B of the  Import  Policy  1985-88,
\nthere  is  no provision in that policy which  permitted\t the
\nimport of such item by an Export House holding an Additional
\nLicence. Therefore, both on grounds of equity and  construc-
\ntion  the  claim of the diamond exporters, or,\tas  in\tthat
\ncase, a purchaser from the diamond exporter, was held to  be
\nnot  maintainable. As importation of canalised\titems,\tthis
\nCourt reiterated, directly by holders of additional licences
\nwas banned, it should not be construed to have been  permit-
\nted  by\t virtue\t of the order of this Court  and  the  items
\nsought to be imported do not come within List 8 of Part 2 of
\nAppendix 6 of the Import Policy of 1985-88 against addition-
\nal  licences. It was found that the goods were purchased  by
\nthe  respondents in that case after they were aware  of\t the
\nposition of law as enunciated in Raj Prakash’s case as\twell
\nas  Indo Afghan Chambers of Commerce’s case. No question  of
\nany restitution of rights, therefore, arose. Goods in  ques-
\ntion  being specially banned goods, these could not  be\t im-
\nported\tunder  Item I of Appendix 6 (Import of\titems  under
\nOpen General Licence) of Import Policy, 1985-88, more so the
\nimport\tbeing  not by the Actual User  (Industrial)  but  by
\nsomebody else from whom the respondent purchased the  goods.
\nThis position was reiterated in the case of M\/s Star Diamond
\nCo. India v. Union of India and others<\/a> (supra).
\n    This  Court further reiterated that a decision  of\tthis
\nCourt is binding on all.\n<\/p>\n
    To complete the narration of events, reply was given  by
\nthe  first  petitioner to the show cause notice\t dated\t11th
\nSeptember, 1986 on 18th September, 1986.\n<\/p>\n
    On\t26th September, 1986, another show cause notice\t was
\nissued\tto the Petitioner in respect of another\t consignment
\nfalling in Appendix 2B (List of Restricted Items) of  Policy
\nfor  1985-88. Personal hearing was given to the first  peti-
\ntioner\tthereafter.  The petitioner moved this\tCourt  under
\nArticle 32 of the Constitution, for quashing the show  cause
\nnotices\t dated 21st August, 1986, 11th September,  1986\t and
\n26th  September,  1986 and the order of\t adjudication  dated
\n20th May, 1986 and for consequential relief.
\n    We are, however, unable to find any merit in this appli-
\ncation either in law or in equity.\n<\/p>\n
 1000<\/span><\/p>\n
    One of the points on which an argument was sought to  be
\nbuilt  up was that the Bench of two judges of this Court  in
\nthe  subsequent\t decisions had cut down the  effect  of\t the
\ndecision of this Court dated 18th April, 1985 in the case of
\nUnion of India v. Rajnikant Bros. It<\/a> has been stated that in
\nsubsequent  decisions referred to hereinbefore,\t this  Court
\nhad deviated and indeed differed from the view expressed  in
\nthat case. It was urged that in Rajnikant Bros. case a bench
\nof  three judges categorically stated that  the\t respondents
\nwould  be entitled “to import all other items whether  cana-
\nlised  or  otherwise” except those which  were\tspecifically
\nbanned\tunder  the prevalent import policy at  the  time  of
\nimport, with the relevant rules. In our opinion, the  subse-
\nquent  decisions  referred to hereinbefore do not  take\t any
\ndifferent  or contrary view. Indeed it gives effect  to\t the
\nletter\tand spirit of the said decision. It has to be  borne
\nin  mind, that the basic background under which\t the  Rajni-
\nkant’s\tdecision  was rendered, the Export Houses  had\tbeen
\nrefused\t Export House Certificates because it  was  insisted
\nthat they should have diversified their export and that\t was
\na condition for the grant or entitlement of an export  house
\ncertificate..It\t was found and it is common ground now\tthat
\nthat  was wrong. Therefore, the wrong was undone. Those\t who
\nhad  been  denied Export House Certificates  on\t that  wrong
\nground\twere put back to the position as far as it could  be
\nif  that wrong had not been done. To do so, the\t Custom\t au-
\nthorities  and\tGovt.  authorities were\t directed  to  issue
\nnecessary  Export  House certificates for the  year  1978-79
\nthough\tthe  order  was passed in April, 1985.\tThis  was  a
\nmeasure\t of  restitution, but tile Court,  while  doing\t so,
\nensured\t that nothing illegal was done. It is a\t presumption
\nof  law\t that the courts act lawfully and will not  ask\t any
\nauthority  to do anything which is illegal.  Therefore,\t the
\ncourt  directed\t that except those which  were\tspecifically
\nbanned\tunder  the prevalent import policy at  the  time  of
\nimport,\t the  respondents shall be entitled  to\t import\t all
\nother items whether canalised or not canalised in accordance
\nwith  the  relevant rules. Analysing the said order,  it  is
\napparent, (1) that the importation that was permissible\t was
\nof  goods which were not specifically banned, (2) such\tban-
\nning  must be under the prevalent import policy at the\ttime
\nof  import,  and (3) whether items which were  canalised  or
\nun-canalised  would  be\t imported in  accordance  _with\t the
\nrelevant  rules. These conditions had to be  fulfilled.\t The
\ncourt never did and could not have said that canalised items
\ncould  be imported in any manner not permitted nor it  could
\nhave given a go-bye to canalisation policy.
\n    It\tmust be emphasised that in the case of\tRaj  Prakash
\n(supra),  this\tposition has been explained by\tsaying\tthat
\nonly such items could
\n1001<\/span>
\nbe  imported by diamond exporters under the  Additional\t Li-
\ncences granted to them as could have been imported under the
\nImport\tPolicy of 1978-79. the period during which the\tdia-
\nmond exporters had applied for Export House Certificates and
\nhad been wrongly refused and were also importable under\t the
\nimport policy prevailing at the time of import which in\t the
\npresent\t case would be during the import policy of  1985-88.
\nThese  were  the  items which  had  not\t been  ‘specifically
\nbanned’ under the prevalent import policy. The items had  to
\npass to two tests. firstly, they should have been importable
\nunder  the  import policy 1978-79 and secondly\tthey  should
\nalso have been importable under the import policy 1985-88 in
\nterms  of  the Order dated 18th April. 1985 and if  one\t may
\nadd.  in  such terms  in accordance with the  import  rules’
\nwhether\t canalised or not canalised. It must  be  emphasised
\nthat in this case also. the CoUrt had no occasion to consid-
\ner  the\t significance  of the words  ‘whether  canalised  or
\notherwise’  mentioned  in the Order dated 18th\tApril.\t1985
\nbecause that point did not arise in the case before it. What
\ndid the court then intend by these words used by the  court?
\nWe  have seen that diamond exporters could import the  items
\nwhich  they were entitled to import under the Import  Policy
\n1978-79 provided they were importable also under the  import
\npolicy\truling at the time of import. These are items  which
\nwere  open  to import by Export\t Houses\t holding  Additional
\nLicences  for sale to the Actual Users\t(Industrial).  These
\nare  items which were directly imported, for example,  items
\nin  Part  2 List 8 of Appendix 6 of Import  Policy  1985-88.
\nThese are items which are not canalised. Canalised items are
\nthose items which are ordinarily open to import only through
\na public sector agency. Although generally these are import-
\nable  through public sector agencies, it is permissible\t for
\nany import policy to provide an exception to the rule and to
\ndeclare\t that  an  importer might import  a  canalised\titem
\ndirectly.  It is in that sense and that sense only that\t the
\nCourt  could  have  intended to define\tthe  entitlement  of
\ndiamond\t exporters. They would be entitled to  import  items
\nwhich were canalised or not if the import policy  prevailing
\nat the time of import permitted them to import items falling
\nunder  such category. This was also viewed in that light  in
\nthe case of Indo Afghan Chambers of Commerce (supra).
\n    It\tmust  be  emphasised that in the  Order\t dated\t18th
\nApril,\t1985, this Court did not do away with  canalisation.
\nThat  was  not the issue before this Court.  The  expression
\n‘whether  canalised or not canalised’ was to  include  both.
\nThis Court did not say that canalised items could be import-
\ned  directly  by  the importers\t ignoring  the\tcanalisation
\nprocess.  We are of the opinion that this Court did not\t say
\nthat canalisation
\n1002<\/span>
\ncould be ignored. That was not the issue. High public  poli-
\ncy,  it\t must be emphasised, is involved in  the  scheme  of
\ncanalisation.  This purpose of canalisation was examined  by
\nthis Court in Daruka & Co. v. Union of India & Ors.,<\/a>  [1974]
\n1  SCR\t570 where the Constitution Bench of this  Court\t ob-
\nserved\tthat the policies of imports or exports\t were  fash-
\nioned  not only with reference to internal or  international
\ntrade,\tbut  also  on monetary policy,\tthe  development  of
\nagriculture  and industries and even on the political  poli-
\ncies of the country and rival theories and views may be held
\non  such  policies. If the Government  decided\tan  economic
\npolicy that import or export should be by a selected channel
\nor through selected agencies the court would proceed on\t the
\nassumption  that  the decision was in the  interest  of\t the
\ngeneral\t public unless the contrary was shown. Therefore  it
\ncould  not be collaterally altered in the manner  suggested.
\nThe  policy of canalisation which is a matter of  policy  of
\nthe  Government was not given a go-bye by  the\tobservations
\nreferred  to in the Order of 18th April, 1985. Indeed it  is
\npossible  to  read  the Order in a  manner  consistent\twith
\ncanalisation scheme in the way we have indicated. If that is
\nso, then it should be so read. When this Court observed that
\nthe fact whether items were sought to be imported by diamond
\nmerchants were canalised, would not be an impediment to\t the
\nimport\tdirectly by them, the Court meant to say  that\tthis
\ncould be imported directly by them through the\tcanalisation
\norganisation.  The  need for canalisation stands  on  public
\npolicy\tand  that need cannot be  lightly  or  inferencially
\ngiven a go-bye. It should not be presumed that\tcollaterally
\nthe  court  had done away with the  system  of\tcanalisation
\nbased, on sound public policy. We have found nothing in\t the
\ndifferent  authorities\ton  this  subject,  which   militate
\nagainst the above views. Therefore, the action taken by\t the
\nCustom\tauthorities in issuing adjudication notice and\tpro-
\nceeding\t in the manner they did, we are of the opinion\tthat
\nthey have not acted illegally or without jurisdiction.\tThis
\nmust  proceed  in accordance with law as laid down  by\tthis
\nCourt which, in our opinion, is clear enough. The fact\tthat
\nin subsequent decision, the petitioner is not a party is not
\nrelevant.  Generally legal positions laid down by the  court
\nwould  be binding on all concerned even though Some of\tthem
\nhave not been made parties nor were served nor any notice of
\nsuch proceedings given.\n<\/p>\n
    As\theld in Star Diamond’s case (supra), the meaning  of
\nthe expression “whether canalised or otherwise” used by this
\nCourt  in Rajnikant Bros’ case as explained in Godrej  Soaps
\nPvt.  Ltd. case and reiterated and followed in\tthe  present
\ncase is applicable to the present petitioner.\n<\/p>\n
1003<\/span><\/p>\n
    We see no substance in the submission made in the  peti-
\ntion and reiterated before us in this Court for a  reconsid-
\neration of this question by a larger Bench. In the aforesaid
\nview  of  the matter, we are unable to sustain\tthe  grounds
\nurged in support of this petition. We are, therefore, of the
\nopinion that proceedings must go in accordance with law. The
\ngovernment’s  understanding  of the matter at one  point  of
\ntime is irrelevant.\n<\/p>\n
    There  are several applications for\t impleadment.  These
\nare  allowed, and they are impleaded. Their  statements\t are
\ntaken on record.\n<\/p>\n
    Before  parting with this case, certain factors must  be
\nnoted.\tThe diamond exporters and dry fruit  exporters\thave
\ntheir  full round in this Court. Speaking entirely  for\t my-
\nself,  my  conscience  protests to me  that  when  thousands
\nremediless wrongs await in the queue for this Court’s inter-
\nvention\t and  solution\tfor justice, the  petitions  at\t the
\nbehest\tof diamond exporters and dry fruit  exporters  where
\nlarge  sums are involved should be admitted and disposed  of
\nby  this  Court at such a quick speed. Neither\tjustice\t nor
\nequity nor good conscience deserves these applications to be
\nfiled  or  entertained. There is no  equity  of\t restitution
\nagainst\t the  law declared categorically and  repeatedly  by
\nthis  Court and no principle of estoppel involved  in  these
\napplications.\n<\/p>\n
    The\t Writ  petition is dismissed and in  the  facts\t and
\ncircumstances  of this case, we direct that  the  petitioner
\nmust pay cost of this application.\n<\/p>\n
    It\thas  been prayed that clear-cut date must  be  fixed
\nwhere  contracts had been entered into and in which  letters
\nof credit prior to 15th April, 1986 have been entered  into,
\nthere  should be no prosecution. It has been further  prayed
\nthat  where however contracts have been entered into but  no
\nletters of credit have been opened, such parties should\t not
\nbe penalised in the facts and circumstances of the case.  No
\ndirection  is  necessary by this Court on this\taspect.\t The
\nauthorities  concerned will decide the same in\ttaking\tinto
\nconsideration  all  the facts and circumstances\t and  taking
\ninto  consideration  the  case of the  petitioners  and\t the
\nalleged claim of bona fide on their part.\n<\/p>\n
    A  submission  was made on the principle  of  promissory
\nestoppel and reliance was placed on the several observations
\nof  several cases including the case in Union of  India\t and
\nOthers\tetc.  v. Godfrey Philips India Ltd. etc.,  AIR\t1986
\nS.C. 806. It is true that the doctrine of
\n1004<\/span>
\npromissory estoppel is applicable against the Government  in
\nthe  exercise of its government, public or  executive  func-
\ntions and the doctrine of executive necessity or freedom  of
\nfuture\texecutive  action cannot be invoked  to\t defeat\t the
\napplicability of the doctrine of promissory estoppel. But in
\nthis case no such case of promissory estoppel has been\tmade
\nout. The intervention applications filed in this  connection
\nare  allowed  and the submissions contrary to  what  we\t had
\nstated hereinbefore are rejected.\n<\/p>\n
    As the points involved in Writ Petition No. 1494 of 1986
\nare same, this is also dismissed with costs. Interim orders,
\nif any, are vacated forthwith. The proceedings will  proceed
\nas expeditiously as possible in accordance with law. For the
\nsame  reasons, Writ Petition No. 1544 of 1986 is  also\tdis-
\nmissed with costs with the same observations.\n<\/p>\n
H.L.C.\t\t\t\t\t     Petition\tdis-\nmissed.\n\t\t\t\t1<\/span>\n?1005\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India D. Navinachandra & Co., Bombay & … vs Union Of India & Ors on 15 April, 1987 Equivalent citations: 1987 AIR 1794, 1987 SCR (2) 989 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: D. NAVINACHANDRA & CO., BOMBAY & ANR. ETC. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-207823","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nD. 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