- (1.) The Court : A good number of writ petitions have been moved in the Original Side of the Constitutional Writ Jurisdiction of this Court challenging a Public Notice bearing No. 122-ITC(PN)188-91 dated 28th of April, 1989 issued by the Ministry of Commerce, Government of India, New Delhi and an Import Trade Control Order No.52188-91 dated 28th of April, 1989 issued by the Ministry of Commerce, Government of India. The present case has been heard by this Bench patiently considering lengthy submissions advanced by the learned counsel appearing for the respective parties. The petitioners Kalindi Woollen Mills (P) Limited, a Company and the petitioner No.2 being one of its shareholders have come to this Court seeking reliefs by way of issuance of a Writ of Mandamus commanding and directing the respondents to revoke, rescind and cancel the order and/or the Public Notice dated 28th of April, 1989 copy of which is Annexure "D" to the present writ petition and also the Public Notice No. 122- ITC(PN)188-91 dated 28th April, 1989 copy of which is Annexure "E" to the writ petition and restraining them from giving effect to or taking any step in terms thereof or thereunder and to grant consequential reliefs thereof. Annexure 'D' indicates inter alia that in exercise of the powers conferred by section 3 of the Imports and Exports (Control) Act, 1947 (18 of 1947), the Central Government makes the following amendment in the Open General Licence No. 1/88 dated 30th March, 1988, published under the Notification under the Government of India in the Ministry of Commerce No. 329 (E) dated 30th March, 1988 viz: In the said Open General Licence No. 1/88, in condition Number 14, after sub-clause (iii), the following shall be inserted, namely:- (iv) Imports of Woollen rags/synthetic rags/Shoddy Wool will be allowed through two ports only viz, Bombay and Delhi, ICD."
(2.) Similarly, Annexure "E" is quoted verbatim as it is:-- JUDGEMENT_75_CALLT2_1991Html1.htm
(3.) The petitioners allege in details that the Company has a factory at Village Dhoom Manikpur, in the District of Gaziabad in the State of Uttar Pradesh and the principal raw material required for running the said factory by the petitioners, is rags, both Woollen and synthetic as well as Shoddy Wool. The availability of the said goods in the country being inadequate the same are allowed to be imported under the Open General Licence Scheme of the Government of India contained in the Import Policy 1988-91, and the importation of the said goods was allowed under the Import Policy subject to the conditions imposed regarding, inter alia, importation through canalising agency and/ or importation under specific licences, by the Import Licensing Control Authorities. It is further stated in detail that under the said Import Policy, the Government of India in exercise of powers conferred upon it under section 3 of the Imports and Exports (Control) Act, 1947 issued on the 30th March, 1988 an order being Open General Licence No. 1/88 whereby the said goods were allowed to be imported under the Open General Licence Scheme subject to the conditions contained in the said Control Order. The Import Policy contained appropriate provisions of Appendix-IV thereof. It is placed on record that one of the conditions under which the said goods are allowed to be imported by an Actual User thereof is that the contract for importation of such goods has to be registered prior to importation of the said goods with the Textile Commissioner of the Government of India and it is only after the contracts are registered with the said textile Commissioner and appropriate registration number is granted by the said Authority, one can import the subject consignment accordingly. The allegation of the petitioners is that the petitioner Company acting on the basis of the representation made by the respondents under the Open General Licence Control Order No. 1/88 dated 30th March, 1988 entered into six several contracts during the period January, 1989 to April, 1989 with foreign sellers for purchase and importation of consignments of the goods required to be used at its factory as raw materials on the terms and conditions and/or of quantity and specification as contained in the respective indents thereof. In or about May, 1989, the petitioners have, however, come to learn that the Control Order bearing No. 52/88/91 dated 28th of April, 1989 has been issued to the said Open General Licence and the same is referred by way of Annexure "D" to the present writ petition. The petitioners have also found the change of the import policy in view of the Public Notice copy of which is Annexure "E" as detailed above. Meanwhile, however, on or about 16th of June, 1989 a Public Notice was issued by the Collector of Customs, Calcutta allowing importation through Port of Calcutta of the said goods if the shipments of the goods covered by the Import Contracts prior to the issuance of the Public Notice were effected within 60(sixty) days from 28th April, 1989 i.e. within 27th of June, 1989. Since certain steps have been taken by Customs Authorities at Calcutta by way of redemption fines, the petitioners have challenged to quash the 'same also.- Mainly, the aforesaid Annexure "D" and "E'. to the writ petition as detailed above have been very seriously challenged on the grounds that there is no provision in the Imports and Exports (Control) Act, 1947 whereby the respondents can restrict importation of good's which are otherwise importable into the country on, inter alia, the terms and conditions if contained in the Import Policy and/ or the Open General Licence governing such importation through anyone or two ports in the country to be picked and chosen at the whims and fancy of the respondents. Any attempt to restrict importation of the goods only to the Port of Bombay and Delhi ICD are therefore, illegal, invalid, null and void. It is highlighted that section J of the aforesaid Act enables the Central Government to, in the manner provided in the said section, prohibit or restrict import and export of goods of any specified description. The power under section 3 of the said Act is general in nature and hence any restriction or prohibition imposed under the said section has to be applicable in all parts of the country for the public interest. The power under the said section 3 of the said Act cannot by any stretch of imagination be construed to enable the Central Government to pick and choose at its whims and fancy, particular ports through which only certain goods can be imported into the country and restricting and/ or prohibiting importation of such goods from other Ports in the country. Any prohibition or restriction or control of any kind whatsoever under section 1 of the said Act has to be applicable to the entirety of the country, if the said goods are allowed to be imported into the country under the Open General Licence Scheme of the Government of India. There can be no legal valid basis of justification whatsoever to restrict their importation in the country only through the Port's of Bombay and Delhi ICD. Accordingly, the petitioners have made a case that the purported order and/ or the purported Public notice is discriminatory and arbitrary and violative of Article 14 of the Constitution of India and by issuance of the said Order and/or the Public Notice, the respondents are seeking to discriminate between persons similarly situated and the owners of the factories which are situated in the Western and North-Western parts of the country would now be able to import the goods at a much lesser price than owners of factories which are situated inter alia, the Eastern and North-Eastern part of the country as the additional cost of transportation of goods from Bombay and Delhi to their respective destination's would have to be borne by them for no fault of theirs and the order and the Public Notice are alleged to have been issued in gross abuse of the powers conferred upon the respondents under section 3 of the said Act and those are discriminatory in nature and the same should be quashed by issuing an appropriate writ of this Court. The petitioners have, however, given the details of their inconveniences and extra-costs to be incurred for the restrictions as several complications have arisen to import the goods through the two Ports viz. Bombay and Delhi ICD.;