UNION OF INDIA Vs. INDIA GEM HOUSE

JUDGEMENT

(1.) UNION of India and others have filed this appeal against the order of Vimadalal J. inter alia issuing a writ of mandamus directing the appellants to withdraw and cancel a circular dated January 11, 1967 and granting other ancillary reliefs. Indian Gem House, the respondents, (original petitioners) are the members of an association known as 'The Precious Stone Importers' and Exporters' Association'. They were registered as exporters under the Gem and Jewellery Export Promotion Scheme notified by the Government from time to time. The import trade control policy for the year April 1966 to March 1967 was published in the Gazette of India Extraordinary on March 30, 1966. Appendix 23 is the said import trade control policy containing provisions about Export Promotion Scheme. On June 6, 1966 a public notice was published in the Gazette of India, Extraordinary, Part I, Section I under the signature of the Chief Controller of Imports and Exports informing the public that it is decided to abolish with immediate effect the Export Promotion Scheme contained in appendix 23 of the Import Trade Control Policy Book for April 1966 to March 1967. It was also decided to abolish with immediate effect all other special export promotion schemes providing for grant of import entitlement licences whether operated through the export promotion councils and commodity boards or otherwise. On July 5, 1966, a public notice was issued by the Chief Controller of Imports and Exports whereby alternative measures were considered to meet the requirements of the exporters of gem and jewellery items in respect of imported materials and it was decided to grant import licences to such exporters to enable them to replenish the import content in the exported' goods. The type of the goods in respect of which such import licences for replenishment were to be given was specified in the said notice. Applications for issue of import licences and custom clearance permits were to be made to the licensing authority concerned and such applications were to be routed through the Gem and Jewellery Export Promotion Council, Commerce Centre, Tardeo, Bombay 34. The applicants were advised to contact the said Council for detailed information regarding the form of application, the evidence to be produced in regard to completion of sales and other connected matters. An omnibus provision was made through this public notice that the registered exporters under the previous scheme would be considered as having been registered for purposes of this revised policy. On January 11, 1967 a circular letter was addressed by the Chief Controller of Imports and Exports to all Export Promotion Councils and to all Export Promotion Officers at Ports. The said circular letter inter alia provided as under: It has now been decided that for the purpose of considering the requests for registration, the application will be entertained only from those who have been enrolled as members of the concerned Export Promotion Councils. Exporters who are already registered or who have already applied for registration with E.P. Councils will also be required to become members to be eligible for availing of benefits under the Import Policy for registered exporters and/or grant of cash assistance against their exports. All other conditions regarding registration and de -registration as laid down in Enclosure III will remain unaltered. If a registered exporter has ceased to be a member of the E.P. Council concerned or his membership has been discontinued for any reason whatsoever his registration as exporter will automatically lapse and he will not be eligible for grant of licences under the policy for registered exporters and/or cash assistance against his exports. These provisions were made applicable by the said circular in regard to the applications for grant of import licences and/or cash assistance to be received by the licensing authorities on or after April 1, 1967. Other ancillary directions were given by the said circular for the purpose of guiding the persons dealing in particular trades and the office bearers of the Export Promotion Councils. This circular was not published in the Government Gazette. The respondents (petitioners) who are exporters of gem and jewellery have challenged the validity of this circular of the various grounds.

(2.) AS summarised by the learned trial Judge the following contentions were raised before him: 1. The impugned circular dated January 11, 1967 is without the authority of law and, since it operates prejudicially to the petitioners, it is void as being violative of the rule of law as embodied in Article 14 of the Constitution. 2. The said circular restricts the petitioners' right to trade and business without the authority of law and is therefore violative of Articles 19(1)(f) and (g) of the Constitution.

(3.) THE amount of Rs. 500 which is the annual subscription for membership of the Council does not satisfy the legal ingredients of a fee and, in any event, is not a fee authorised by the Imports and Exports (Control) Act, 1947 (hereinafter referred to as 'the Act'), or the Imports (Control) Order, 1955 (hereinafter referred to as 'the Order').