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Madras Steelware Industry, Madras Vs. Joint Chief Controller of Imports and Exports, Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberWrit Appeal No. 7 of 1976
Judge
Reported inAIR1977Mad377
ActsConstitution of India - Article 226
AppellantMadras Steelware Industry, Madras
RespondentJoint Chief Controller of Imports and Exports, Madras and ors.
Excerpt:
constitution - release order - article 226 of constitution of india - appeal against order passed by single judge dismissing petition for give back release order with due cancellation of columns 7 and 9 - release order erroneously issued by 1st respondent without prior verification - issuance of certificate was in contravention of express provisions of 'red book' - no justiciable or enforceable right vested in petitioner - no reason to interfere with order passed by single judge - appeal liable to be dismissed. - .....was the writ petitioner in w. p. no. 993 of 1975 on the file of the court. he sought for a writ of mandamus directing the joint chief controller of imports and exports madras, to give back to him the release order no. p/s/r/m/933304/33-34 dated 30-3-1974, with the due cancellation of columns 7 and 9 in the release order.2. the relevant facts are as follows: the petitioner is engaged in a small industry since 1971. he, for the purpose of manufacturing hospital and surgical instruments and dairy and chemical instruments, used to obtain licences for the import of raw materials from the appropriate licensing authorities. but in view of the channellisation of such imports through the minerals and metals trading corporation the import policy, was changed and the result was that the.....
Judgment:

Ramaprasada Rao, J.

1. The appellant was the writ petitioner in W. P. No. 993 of 1975 on the file of the court. He sought for a Writ of Mandamus directing the Joint Chief Controller of Imports and Exports Madras, to give back to him the release order No. P/S/R/M/933304/33-34 dated 30-3-1974, with the due cancellation of columns 7 and 9 in the release order.

2. The relevant facts are as follows: The petitioner is engaged in a Small Industry since 1971. He, for the purpose of manufacturing hospital and surgical instruments and dairy and chemical instruments, used to obtain licences for the import of raw materials from the appropriate licensing authorities. But in view of the channellisation of such imports through the Minerals and Metals Trading Corporation the import policy, was changed and the result was that the petitioner could only obtain what is known as a release order in lieu of the licence for import. There was no difficulty upto the period 1970-71. But for the subsequent period, to wit. 1971-72, and thereafter the petitioner could obtain release orders superimposed by certain conditions. The licensing authority issued the release order for the periods 1971-72 stating that under the column 7 in the said order that the unit must produce the S. S. I. Certificate to show their existence and under column 9 calling the unit to produce the Income-tax verification certificate. Though the release order was issued on 30-3-1974, the petitioner could not submit the necessary certificate till 24-1-1975. After due submission of the said certificate, he called upon the first respondent to issue to him a clean release order cancelling the conditions imposed so that he could take delivery of the raw materials from the second respondent which by then was ready and willing to issue a sale not to enable the petitioner to take delivery of the raw materials. The petitioner could not get a clean release order in spite of his request to the first respondent. Hence this application for the issue of the appropriate writ of mandamus under Art. 226 of the Constitution of India.

3. The primary contention of the first respondent is that in accordance with the policy laid down in what is known as 'Red Book' the release order ought not to have been issued without a prior ascertainment as to the possession of a machinery by the Unit during the licensing period 1971-72. According to the first respondent, it was found that most of the machines of the petitioner have been acquired only after the licensing period and in August 1973, and therefore the petitioner was not entitled to any release order at all as claimed by him for the period 1971-72. It was in those circumstances that it is stated that the release order was erroneously issued by the first respondent without prior verification and as the issuance of such a certificate would contravene the express provisions of the 'Red Book' under which only the first respondent acts, a writ of Mandamus cannot issue. Further the case of the first respondent is that if the petitioner is followed to operate upon the release order which was issued inadvertently it would cause irreparable loss to them.

4. The learned single Judge, in a very detailed order regarding the import trade control policy and having viewed the subject matter in the light of the disclosed facts, held that the petitioner was not entitled to the extraordinary writ of Mandamus. It is as against this order that the present appeal has been filed.

5. It is an established theory in law that Writs of Mandamus which are of a high prerogative nature, are not issued by the mere asking for it. But it is left to the discretion of the courts which are called upon to exercise their extraordinary jurisdiction in the issuance of such writs and if the court finds that by such exercise of discretion, there will be some imbalance resulting in the violation of an accredited import trade policy or such other policies set by the executive then the court is not to encourage such issuance merely on facts which prima facie are attractive and appealable. It is common ground that two conditions were imposed by the first respondent when he issued the release order. The first respondent discovered that when he issued the said order, there was no strict verification of the essential requirements which should precede the issue of such an order. The argument is, however, based on equitable estoppel. The doctrine of equitable estoppel in so far as it affects the executive has to a considerable extent, been excluded and the learned Judge therefore was right in having negatived the contention that after the release order was issued by the first respondent in the manner stated supra, he cannot wriggle out of it but to carry it through in spite of the discovery of some material by him that the very issuance of such a release order was based on misapprehension and unverified facts.

6. The next contention before the learned single Judge was that in the absence of a power conferred on the licensing authority to correct a mistake committed by it, even conceding for argument sake that such a mistake resulted in the passing of the order, the authority cannot suo motu or otherwise, correct its mistake. There is a fallacy in this contention. The power exercised by the licensing authority does not slope from statute, but from an accredited policy which in turn has impact upon national economy. From time to time policies are laid down by the executive and it is the executive alone can lay down such policies and it is for the judiciary normally to accept such policies, unless it affects certain rights which are justiciable.

7. The general argument of the Counsel for the appellant that the licensing authority cannot be said to derive the power of correcting its mistake from any known provision of law and therefore cannot correct it, was rightly rejected by the single Judge.

8. The entire concept has to be viewed and high-lighted by the policies laid down. In this case, paragraph 292 of the Import Trade Control, Handbook of Rules and Procedure, 1974-75 is the appropriate paragraph which touches upon the subject in question. On a reading of the release order, it cannot be said that it is final and workable. The only point that was pressed before us is that there is no ambiguity in the said order and therefore it is executable. We are, however, afraid that the order of the Joint Chief Controller which is admittedly subject to certain conditions, cannot be said to be an order which is executable. The learned Judge was therefore right when he said that it was an inchoate or a tentative order. Certain conditions were imposed and the petitioner was confronted with the fact that on the date of the issuance of the release order, he could not have fulfilled at least one of those conditions, namely, the installation of the machinery, etc. Now the petitioner's case is that he produced evidence about it after the lapse of the licensing period. It is at this juncture that the question comes whether the inadvertent omission on the part of the first respondent in having issued a release order without proper verification of merits can be corrected by him or not. We have already expressed that the doctrine of permissive estoppel in the matters concerning the executive is normally excluded, that the power to issue such release orders depends upon the policy laid down from time to time by the State and that if such a release order issued runs counter to the spirit and letter of such a policy, then it cannot be said that the authority which issued that order has no power to correct it. The learned Judge therefore accepted the averments made by the first respondent that it was by mistake that the release order was issued.

9. If on a total appreciation of the relevant facts it is found that the petitioner did not have a right much less an enforceable right, for the enforcement of which he can invoke the extraordinary Jurisdiction of the High Court, under Art. 226 of the Constitution, then it is easy to comprehend that the request for the issue of a writ of mandamus is a misconceived remedy. He cannot ask an authority to do a thing which that authority admits that it would be beyond his power to do so and that what he did earlier which provoked the petitioner to seek for such enforcement of that order, was based on a mistaken appreciation of facts.

10. As there is no justiciable or enforceable right vested in the petitioner and as this can only be the foundation to ask for a writ of Mandamus, the learned single Judge rightly held that the petitioner cannot ask for a writ of Mandamus and dismissed the writ petition. The appeal also therefore fails and is dismissed. No costs.

11. Appeal dismissed.


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