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Ratilal Tribhovandas and Sons Vs. Union of India (Uoi), Chief Controller of I and E and anr. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1124 of 1985
Judge
Reported in1992(39)LC324(Bombay)
AppellantRatilal Tribhovandas and Sons
RespondentUnion of India (Uoi), Chief Controller of I and E and anr.
Excerpt:
itc - imprest licence--delay in revalidation and o.g.l. endorsement--authorities directed to revalidate and make o.g.l. endorsement by reducing accrued benefits by twenty five per cent. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under..........petition no. 1465 of 1984 (dispute wherein reached the supreme court) was not contested on any ground of delay. it is only now, in reply to the present petition, that the said ground is, for the first time, raised. there is also some substance in the contention that it is not open to the respondents to support the impugned order on a ground which is not a ground of rejection by the authority.5. this is thus a case of circumstances in favour of as also against the petitioners and likewise a case of circumstances in favour of as also against the respondents. in this amalgam of pros and cons, to refuse in toto the benefit which the petitioners have legitimately earned and consequently deny the relief which, but for delay, they well deserve and are entitled to, would be akin to manifest.....
Judgment:

S.C. Pratap, J.

1. On the main dispute and the merits, the relevant facts and circumstances in this petition are similar to the relevant facts and circumstances in Writ Petition No. 2477 of 1984 decided on 19th/20th August, 1985. The petitioners would, therefore, be entitled to relief similar to the one granted in the said petition.

2. However, there is, in this case, considerable delay between the date of the redemption certificate and the date of the application for revalidation and o.g.l. endorsement on the imprest licence. In its jurisdiction-which is basically discretionary-under Article 226 of the Constitution the Court is not always bound to grant relief unless an infraction of fundamental right (not so here) is involved. The Court will consider all the relevant factors including delay while deciding whether relief should be granted and, if so, to what extent.

3. Now, after obtaining redemption certificate, the petitioners did not move their little finger till after considerable lapse of time for revalidation and o.g.l. endorsement on the imprest licence. In the context of this delay, Court cannot shut its eyes to changes in import-export policy as also in the need to protect indigenous industries as also in the balance of trade and foreign exchange position all of which, in the very nature of things, depend upon venous fluctuating circumstances, some of which being beyond the control even of the government.

4. At the same time, Court will not lightly overlook the fact that the authority rejected the petitioners' application not on the ground of any delay but upon altogether different grounds found to be not sustainable by this Court with the Supreme Court also finding no point of substance in moist of them. Still further, the earlier Writ Petition No. 1465 of 1984 (dispute wherein reached the Supreme Court) was not contested on any ground of delay. It is only now, in reply to the present petition, that the said ground is, for the first time, raised. There is also some substance in the contention that it is not open to the respondents to support the impugned order on a ground which is not a ground of rejection by the authority.

5. This is thus a case of circumstances in favour of as also against the petitioners and likewise a case of circumstances in favour of as also against the respondents. In this amalgam of pros and cons, to refuse in toto the benefit which the petitioners have legitimately earned and consequently deny the relief which, but for delay, they well deserve and are entitled to, would be akin to manifest injustice. On the other hand, declining to put any price on delay would, equally so, not be just and fair. The need, therefore, is to balance the interests of the petitioners with those of the State. Taking an overall view, a reduction or cut of twenty-five per cent in the accrued benefit and the corresponding relief together with payment of costs quantified (Rs. 2500/-) of these proceedings to the respondents as condition precedent to revalidation and o.g.l. endorsement would meet the ends of justice.

6. On instructions, the petitioners' learned Counsel states that the petitioners agree to accept the aforesaid cut.

6A. Hence order.

7. In the result, this petition succeeds and the same is allowed.

(a) The impugned orders dated 19th July 1984 (Exhibits D, D-1, and D-2) are set aside and quashed.

(b) On the petitioners paying to the respondents Rs. 25001- as costs quantified of these proceedings, the respondents are directed to:

(i) revalidate for a period of six months from the date of revalidation the petitioners' imprest licence; and

(ii) endorse the said licence to be valid for import of o.g.l. items under paragraph 185 (excluding sub-para 7 thereof) of the AM 83 Policy except any item the import of which has been specifically banned under the current policy but with a cut to the extent of twenty-five per cent of the c.i.f. value mentioned in column 6 of the said licence.

(c) this licence will be non-transferable.

8. Rule is made absolute in absolute in terms aforesaid with order of costs as directed above.

9. At the request of the respondents' learned Counsel Mr. RJ. Joshi, final orders on this petition are stayed till and inclusive of 15th October, 1985. Thereafter and unless in the meanwhile these orders are further stayed, the respondents will comply therewith within a period of three weeks therefrom but only after receiving from the petitioners the amount of costs supra.


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