MAHALAKSHMI FLOUR MILLS Vs. UNION OF INDIA

JUDGEMENT

(1.) the petitioner in this writ petition has sought for the following reliefs: (a) to issue a writ, order or direction in the nature of certiorari and quash the order passed by the 2nd respondent dated 12-8-1992 as per an- nexurc-n. (b) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent no. 2 to exercise his powers under clause 21 of the export and import policy for the period 1-4-1992 to 31-3-1997 in accordance with law and pass an order relaxing the ban on export of sandalwood in favour of the petitioner with reference to the seven contracts as per annexures-f and f-1 to f-6. (c) to issue a writ of mandamus or any other writ, order or direction, directing the respondent-2 to issue necessary permission/licence in favour of the petitioner to export the sandalwood chips and powder in order to fulfil the seven contracts as per annexures-f and f-l to f-6. - (d) to issue a writ order or direction in the nature of mandamus directing the respondents to pay and compensate All the losses suffered by the petitioner.

(2.) the brief facts leading to this writ petition are as follows: the petitioner has been carrying on business dealing in sandalwood wood and sandalwood chips for the last over 15 years earning foreign exchange to the country. The main sandalwood growing states in the country are Karnataka and tamil nadu. There is a great demand for sandalwood in almost All the countries and the same is exported from this country earning foreign exchange. The petitioner has been carrying on the said business after taking necessary permission and licence from the concerned authorities. The petitioner has been participating in the auctions conducted by the department of forest from time to time by depositing earnest money deposits, which amounts to lakhs of rupees for purchasing the sandalwood in the said auctions. The petitioner exports the sandalwood chips on the basis of pre-existing orders from the countries after obtaining necessary permission from the authorities. The export is done under 'open general licence-iii' (o.g.l.-iii) scheme under the import and export policy of the union of india. The petitioner has invested crores of rupees in the said business. The union of India with a view to earn foreign exchange has liberalised the import and export policy and has allowed to export sandalwood and sandal- wood chips. During the year 1990 a new policy was introduced called 'import and export policy' for the period from april 1990 to march 1993, wherein it is allowed to export sandalwood from 1-4-1990 to 31-3-1993. Copy of the said policy is filed at annexure-a. Looking to annexure-a, the petitioner has participated in the auction of sandalwood conducted by the states of Karnataka, tamil nadu, Kerala and Andhra Pradesh and after successful bid the petitioner used to export the same under the pre-existing orders from the foreign countries. The petitioner learnt that after meeting the domestic need of sandalwood there would be accumulated stock of 4,000 metric tonnes (m.t.) in the State of Karnataka and about 6,000 m.t. in tamil nadu. Thus, 10,000 m.t. of sandalwood has to be disposed of by these states. The union of India All of a sudden introduced a new export and import policy for the period from 1-4-1992 to 31-3-1997 with effect from 1-4-1992 overriding the previous policy, which was upto 31-3-1993. Copy of the said policy is produced at annexure-b. Consequent upon the introduction of the new policy, the ministry of environment and forests, government of India, held a meeting on 9-4-1992. A detailed discussion took place in the said meeting particularly on the subject of sandalwood. The states of tamil nadu and Karnataka requested respondent no. 1 to relax the ban imposed on export of sandalwood, as it caused general hardship besides adversely affecting the sandalwood business, has the following consequences: (a) it would involve a loss of revenue around Rs. 40 crores to the state governments; (b) loss of about 18 million of u.s. dollars towards foreign exchange equal to about Rs. 55 crores; (c) provides incentives and impetus to increase international smuggling of sandalwood. On the strength and advise of the export faculty, the respondent no, 1 has introduced a clause wherein a power has been conferred on the authorities to consider the hardship faced by the existing traders individually. Accordingly, the petitioner pursuant to clause 21 made seven applications requesting the respondents to consider the grievances of the petitioner in the light of the hardship faced. The copies of the said letters are filed at annexures-c and c-1. In the meanwhile, the petitioner has filed W.P. no. 16383 of 1992 in this court questioning the legality, propriety and validity of the new export policy annexure-b. This court issued rule and granted an interim order on 28-5-1992, which reads:

(3.) the statement of objections is filed on behalf of the respondents contendingthat the order dated 12-8-1992 annexure-n cannot be quashed, as it does not suffer from any illegality or error apparent on the face of the records; the petitioner is not entitled to seek for relaxation of the ban on the export of sandalwood and its products as a matter of right and chief controller of imports and exports having regard to the facts and circumstances of the case has rejected the request for relaxing the ban and allowing them to export sandalwood products in the light of the new policy. It is stated that no person has an absolute right to seek for export or import licence. Grant of such licence is always regulated by the policy of the government at the relevant point of time, even the licence or permission granted earlier may be annulled or rendered ineffective with a change of the policy and that there is no estoppel against the statute. In the instant case the petitioner is seeking licence in respect of the prohibited goods and as such the question of issuing direction to the authorities to grant licence does not arise at all. The prayer for mandamus is without any merits and is liable to be rejected. The respondents further contend that even under the policy annexure-a for the period 1990-93 export of sandalwood was not allowed. However, sandalwood only in the form of dust, chips, flakes and powder was allowed to be exported under o.g.l.-iii subject to the condition that chips shall be rough, irregular in size and shape and of different sizes with a weight not exceeding 50 grams each. Thereafter, a condition of certificate of origin was also imposed with effect from 4-6-1991 for export of sandalwood chips only. The respondents have not traversed the averments made in the writ petition in regard to the participation of the petitioner in auction to purchase the sandalwood from forest departments of different states and with regard to the loss that the petitioner would be put to. They have only stated that the petitioner may be put-to strict proof of the same. It is stated that in writ appeal the interim order granted by the learned single judge was vacated with a direction that the request of the petitioner may be considered in the light of the provisions contained in clause 21 of the new export policy annexure-b. It is stated that since the petitioner did not fulfil the conditions of pre-ban commitment, its request for relaxation under clause 21 of annexure-b was rejected. It is also stated that the petitioner could not produce the valid letter of credit in support of its claim, which is essential condition to honour the pre-ban commitment. Thus, the respondents, prayed for the dismissal of the writ petition.