NARENDRA MAFATLAL MEHTA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is carrying on business in the name and style of M/s. N. Mehta & Company and importing rought and exporting cut and polished diamonds. The respondents are the officers conferred with statutory responsibilities for granting of licences including licences for Export Houses under Imports and Exports (Control) Act, 1947 read with Imports (Control) Order, 1955. The relevant Import Export Policy for the period AM-81 made provisions pertaining to the registration of export contracts and recited that in order to provide stability for growth of export scheme came to be introduced for registration of contracts. The petitioner is a recognised Export House and enjoys facilities for import in terms of paragraph 174 of the said AM-81. One of the facility is of import replenishment licences as also of import of items placed on Open General Licence in the manner laid down therein.

(2.) On March 26, 1984, the licensing authority issued licence dated March 26, 1984 of the value of Rs. 2,05,800 authorising the import of "Diamonds unset and uncut". The said licence was issued with the incorporated conditions at the reverse thereof and condition No. 2 read as under : "Not eligible for the facility of import of items which are under OGL on the date of contract." The petitioner complained that the incorporation of condition No. 2 is in absolute contradiction of condition No. 1 and the effect of condition No. 2 is to deny certain rights and facilities available to Export House as mentioned in paragraph 174 of the Policy AM-81. The petitioner, accordingly, addressed letter dated August 2, 1984 to the Joint Chief Controller of Imports and Exports requesting that the licence should be amended by deleting condition No. 2. The petitioner received reply on August 14, 1984 informing that the request could not be considered as condition no. 2 is included in the licence as per the existing instructions. The action of the respondents is under challenge in this petition filed on September 3, 1984.

(3.) The petition was admitted on September 12, 1984 and the hearing was expedited and the respondents waived service. On behalf of the respondents, affidavit sworn by R. C. Chaturvedi, Deputy Chief Controller, on March 6, 1985 was filed in the Court on March 29, 1985, but curiously, a copy of this affidavit was not served on the petitioner, nor the petitioner was informed of the filing of such affidavit. Subsequently, in August 1985, a copy of the affidavit sworn by Capt. Shafat Ahmed, Deputy Chief Controller, was forwarded to the petitioner. The affidavit of Shafat Ahmed was never filed in the Court. The petitioner, under the impression that the respondents would rely upon the affidavit of Shafat Ahmed, prepared an affidavit-in-rejoinder on September 4, 1985 and filed it in Court on January 10, 1986 after giving the copy of the same to the respondents. The petition was called out for hearing in the last week and was adjourned on the application of Shri Desai, learned counsel appearing on behalf of the respondents. At no stage the respondents informed the petitioner or the Court that the Affidavit of Shafat Ahmed is not filed or affidavit of Chaturvedi is filed without giving copy of the same to the petitioner. When the hearing of the petition commenced, the fact that the affidavit of Shafat Ahmed was not filed came to my attention and when I enquired with Shri Desai, he had no answer to give as to where is the original affidavit and why a copy was forwarded to the petitioner when there was no desire to file the original affidavit in Court. Shri Desai also could not explain as to how the affidavit of Chaturvedi came to be filed without furnishing the copy thereof to the petitioner. The impression left is that the respondents are taking the entire matter in a casual fashion and are not serious to defend their action. As the copy of the affidavit of Chaturvedi is not given to the petitioner, it cannot be read in these proceedings and as the original affidavit of Shafat Ahmed is not filed, the hearing of the petition must proceed on the basis that the respondents have not filed any return.