VISANJI VELJI SOMAYS Vs. UNION OF INDIA

JUDGEMENT

(1.) This judgment will dispose of Civil Writ Petitions Nos. 237-D to 241-D of 1962 and 249-D to 251-D of 1961 as the learned counsel agree that the questions of law and fact arising in all these writ petitions are the same. These cases were heard on 27/4/1967, but the judgment was reserved because the learned counsel for the respondents wanted time to obtain instructions whether or not the Government was willing to issue licence to the petitioners. Disinclination of the Government to issue such licences was communicated to me on the day I was leaving Delhi to work at the Circuit Bench at Simla.

(2.) In view of the common questions arising in all the writ petitions, I am reciting the facts of Civil Writ Petition No. 237-D of 1962 only. An Open General Licence dated 27/1/1952 was issued by the Central Government giving permission to all persons to import by country craft from certain places in middle East and East Africa, set out in the licence, all or any of the goods specified therein, including cloves, provided the goods were shipped or dispatched or consigned to India on or before 30/6/1952. The period of validity of the said Open General Licence was extended from time to time by various notices up to 30/9/1957, so that the articles covered by the said licence were imported freely by country crafts without any special licence or permission. On 8/8/1957, the Assistant Controller of Imports wrote to the African Trading Company (Private) Limited that the concession for import of certain goods by sailing vessels from East African countries without import trade control restrictions was valid up to 30/9/1967, and "the date '30/9/1957' refers to the date of arrival of goods at an Indian Port and not the date of shipment from countries abroad." On 13/8/1957, the Bombay Clove Merchants Association Limited, of which the petitioner claims to be a member, made a written representation to the Chief Controller of Imports that on account of certain practical difficulties the import of goods by country craft should be allowed in all cases in which the goods had been put in the country craft before 30/9/1957, irrespective of the date or dates on which the goods arrived at the Indian ports. On 23/8/1957, a letter was issued to Messrs Jamna Dass Haridas on behall of the Joint Chief Controller of Imports that in partial modification of the letter dated 25/7/1957, it had been decided that clearance would be allowed for such goods without a licence even if the goods arrive after 30/9/1957, provided the shipment was made on or before that date. A letter to the same effect was also addressed on behalf of the Joint Chief Controller of Imports and Exports to the Honrary Secretary of the Bombay Clove Merchants Association Limited on 23/9/1957. In October 1957 the period of validity of Open General Licence was extended till 31/12/1957, and information to this effect was sent to the Bombay Clove Merchants Association Limited by letter dated 14/10/1957. On 15/11/1957, however, the Joint Chief Controller of Imports and Exports issued Trade Notice No. 112/57 in which it was inter aha stated that import made by country crafts from certain countries was allowed under Open General Licence which was cancelled on 30/6/1952; that subsequently the position was reviewed and the concession of importing certain goods by country crafts from certain countries was extended from time to time and it expired on 31/12/1957; and that "enquiries have been received as to whether this date i.e. 31/12/1957 should be taken as the date of shipment or the date of arrival of goods at Indian ports. It is, therefore, clarified that the date of arrival of the goods in India should be the crucial date and that consignments of the goods referred to above arriving at Indian Ports on or before the 31/12/1957, would alone be eligible for the concession." It has been alleged by the petitioner, and this allegation is not denied on behalf of the respondents in their counter-affidavit, that aforementioned Trade Notice was issued without affording any opportunity to the petitioner of being heard in the matter. The petitioner further alleges that relying on previous precedents and the communications dated 23/9/1957, and 14/101957, he entered into firm contractual obligations about the middle of October 1957 with his foreign suppliers in Zanzibar for the import of 1000 bundles of cloves to be shipped by country craft on or before 31/12/1957. Copies of the said contracts have been annexed to the petition and this fact also has not been denied in the counter-affidavit. One of the conditions in both the contracts is that the buyer will open confirmed irrevocable letters of credit for the full value of the invoice. The said contracts show that the suppliers agreed to ship the goods by a reliable country craft on or before 31/12/1957. Having entered into the said contracts, the petitioner by letter dated 18/10/1957, instructed his bankers, the Mercantile Bank of India Limited, Bombay, to open an irrevocable letter of credit in favour of the suppliers whereupon the said bank applied to the Reserve Bank of India for necessary approval and the said approval was granted by the Reserve Bank of India on 28/10/1957, in the following words-

(3.) The petitioner alleges that the said letter of credit opened in favour of his suppliers was communicated to the latter. On 20/11/1957, the petitioner addressed a letter to the Joint Chief Controller of Imports and Exports informing him about the aforesaid commitments entered into by him in the bonafide belief that the extension of period of concession announced on 14/10/1957 related to the period of shipment of goods up to the end of December 1957 irrespective of the date of arrival of the goods and requested the Joint Chief Controller of Imports to take note of the said commitment and issue necessary instructions to the Department to allow clearance of the said goods even though the vessels carrying the goods might arrive after December 1957. By letter dated 16/12/1957, the Joint Chief Controller of Imports declined to issue any such instructions and said that the concession would be available only if the goods arrived at the Indian ports before December 1957. Thereafter, the petitioner by letter dated 30/12/1957, informed the Joint Chief Controller of Imports that 300 bundles out of 1000 bundles, agreed to be purchased by the petitioner, had already arrived at Indian port before 31/12/1957, and that his request to the bankers for cancelling the letter of credit with respect to the remaining 700 bundles had been declined by the bank according to whom the foreign suppliers having shipped the goods had already utilised the irrevocable letter of credit and received the amount thereof. The remaining 700 bundles were shipped on 23/12/1957, but arrived in Bombay on 15/4/1958. The petitioner has annexed to his petition certificates from various authorities at the despatch station in support of his plea that country crafts left for India before 31/12/1957. By three separate orders dated 27/5/1958, the Additional Collector of Customs, Bombay, ordered confiscation of the said goods but gave to the petitioner an option under, section 183 of the Sea Customs Act to pay fines of Rs. 29,000.00, Rs. 19,500.00 and Rs. 19,500.00 in lieu of confiscation and clear the goods for home consumption. Three separate orders were made because there were three separate bills of entry though the consignments were the same. The Additional collector found :