RAYMOND WOOLLEN MILLS LTD Vs. JOINT CHIEF CONTROLLER OF IMPORTS

JUDGEMENT

(1.) [His Lordship after dealing with points not material to this report, proceeded.] Against the background of woollen industry and the relevant rules which governed the grant of actual users' licences before the impugned new policy came into force in November 1967, I may now deal with the various contentions raised on behalf of the petitioners. Their first contention is that they are entitled to a licence for import of raw materials under the Import and Export (Control) Act and the Import (Control) Order, 1955, read together with the rules of the Import Trade Policy for the financial year 1967 -68 contained in the Red Book and the Hand Book for the said year. It is urged by the petitioners that the provisions contained in the Red Book and the Hand Book are law or have the force of law, and that as actual users of raw wool/wool tops the right to import licences accrued to them upon the publication of the said import trade policy in the Gazette of India (Extraordinary) dated May 1, 1967 and as the impugned policy of canalisation and distribution is not valid, refusal of respondent No. 3 as licensing authority to grant actual users' licence to them is wrong. They contend that whereas the said public notice dated November 25, 1967, exh. E to the petition, was duly gazetted the rules for distribution of imported raw material contained in the said letter dated November 22, 1967, exh. H to the petition, were not notified in the Gazette of India as required by Section 3 of the Import and Export (Control) Act, and therefore the canalisation of imports simpliciter and the impugned policy of distribution are not valid. Respondents Nos. 1 to 4, No. 5 and Nos. 7 and 8 deny petitioners' above contentions and submit that the provisions of Red Book and the Hand Book are not law nor have they the force of law.

(2.) THE first question, therefore, is whether the provisions of the Red Book and the rules and regulations in the Hand Book for the year 1967 -68 are law or have the force of law. In support of this contention Mr. Parpia relied upon two unreported decisions of this Court, first by the Division Bench in Bhojraj D. Gurnani v. N. Swami (1961) Miscellaneous Application No. 76 of 1960, decided by V.S. Desai and Abhyankar JJ., on April 18, 1061 (Unrep.) and the other in Lalchand Daulatram Mehra v. N. Swami. (1964) Miscellaneous Petition No. 340 of 1960, decided by Mody J., on December 16/17, 1964 (Unrep,). On the other hand, respondents Nos. 1 to 4, 5, and 7 and 8 in support of their contention relied upon the following decisions of the Supreme Court, viz., East India Commrl. Co. v. Collector of Customs : 1983(13)ELT1342(SC) , Ramchand Jagadish Chand v. Union of India : [1962]3SCR72 , J.C.C. of Imports and Exports v. Aminchand : [1966]1SCR262 , and Union of India v. Angle Afghan Agencies. A.I.R.[1968] S.C. 718 Further, in course of reply Mr. Porus Mehta, learned Counsel on behalf of the petitioners, also urged that Mr. Justice Mody had considered in Lalehand Daulatram's case the effect of the Supreme Court case in East India Commercial Co. on the said Division Bench case and the learned Judge took the view that the decision in the said Supreme Court case, namely, that the public notice published in the Gazette of India dated July 29, 1948, containing principles governing issue of Import licences for the period July -December 1948 had no statutory force, could not. be read to mean that the Supreme Court had held that the said notice Was not law or had not the force of law, and, therefore, the said decision had not rendered the Division Bench case as not good law. He, therefore, submitted that East India, Commercial Co.'s case had not even impliedly overruled the said Division Bench case and that even if I were of the opinion that the said Supreme Court case was plainly inconsistent with and had impliedly overruled the Division Bench case of the Court, still I was bound by the view Mr. Justice Mody had taken of East India Commercial Co.'s case in Lalchand Daulatram's case. Messers Advani, Buch and Zaiwalla on behalf of the contesting respondents, however, submitted that in any event the Division Bench case of Bhojraj Dhanrajmal was inconsistent with the later decisions of the Supreme Court in Aminchand Mutha's case and Afghan Agencies' case and I was not bound to follow the said Division Bench case or Lalchand Daulatram's case.

(3.) ARTICLE 13(3) defines 'law' as including ordinance, order, bye -law, rule, regulation, notification, custom or usage having the force of law. This definition of law is wider than the ordinary construction of law, i.e. enacted law or legislation, and includes subordinate legislation made in exercise of powers conferred by statute. Now, it is apparent from the passage quoted above that the Division Bench, took the view that the rules, procedures, conditions and regulations in. the Hand Book and the Red Book were referable to the powers conferred on the Central Government by the Imports and Exports (Control) Act, 1947 and the Import (Control) Order, 1955, and as such were laws within the meaning of Article 13 and on this basis the Court granted relief to the petitioners.