Nirmal Exports And Ors. vs Union Of India And Ors.
1990 Latest Caselaw 391 Del

JUDGMENT

Usha Mehra, J.

(1) The petitioners by the present writ petition have sought directions against respondents to grant them additional licenses, cash incentive and replenishment licenses on the basis of their export for the year 1978-79 and further these benefits be given to them in accordance with the scheme of incentive issued under import policy for the year 1978-79 on the basis of export for the year 1978-79. They have also sought directions against respondent no. 2 to renew the export house certificate for a further period of three years w.e.f. 1st July, 1983 and for quashing the show cause notice dated 31st May, 1984 issued by the respondents to petitioner no. 1.

(2) Very briefly stated the petitioners. a partnership firm had been dealing in exports of drugs and Chemicals. It was registered with Basic Chemical and Pharmaceutical Export Promotion Council.

(3) Petitioner No. 1 entered into a contract on 23rd March, 1979 with M/s. Compagnie Das Paris for the sale and export of 1,000 Kgs. Argenti Nitrus. On 24th March, 1973 contract was sent for registration to respondent no. 3 as required under the provision of law. The said contract with the foreign buyer was registered by the petitioner no. 1 with Corporation Bank Ltd. on 26th March, 1979. Another contract was entered into by petitioner no. 1 on 28th March, 1979 with M/s. Pinstrips Ltd. of Manchester for sale and export of 15,000 Kgs. of Argent Nitrus. So far as petitioners no. 2 is concerned, it entered into a contract with M/s. Pinstrips Ltd. for supply of 120 tonnes of Argeni Nitrus. The contract with M/s. Pinstrips Ltd. was registered with Corporation Bank Ltd. M/s. Pinstrips Ltd. opened irrevocable letter of credit for a sum of Rs. 1,00,000 for the export of 620 Kgs. Argenti Nitrus.

(4) The Import and Export Control Act (hereinafter called 'the Act' war promulgated with the object of enabling the Central Government to continue to exercise powers to the prohibit, restrict or otherwise control the import and/or export which had till then been controlled and governed by orders issued in exercise of the powers conferred by Rule 84 of the defense of India Rules, 1939.

(5) On 30th March, 1979 a public notice No. 30/ETC (PM) was issued by respondent No. 2 by which the provision of Para 316 of the Handbook of Export aad Import Procedure 1979-79 were not to be applicable to and precan commitments. It was further ordered that the pre-ban commitments cases would be decided on merits individually. Some items of the exports were transferred from Part B to Part A of Schedule 1. It was ordered that export of those items would not be normally allowed, but would, be allowed only in exceptional cases on an application to respondent no. 3.

(6) On 30th March, 1979 Export Control Order 1977 was amended, by virtue of which Silver Salts, Silver Compounds were removed from (Schedule I Part B) and were placed under "banned" category (under Schedule I Part A).

(7) On account of the public notice the petitioners, as required by the export promotion scheme, intimated to the respondent no. 2 on 9th April, 1979 about the contracts entered by them with the foreign buyers. According to petitioners, Argenti Nitrus was a drug and, therefore, would not fall under the category of "banned" items. Clarification was sought from the Export Council about the effect of the public notice on the existing contracts, particularly when the petitioners had explained that Argenti Nitrus was a known drug.

(8) The respondent no. 3 vide letter dated 24th April, 1979 intimated to the petitioners that Argenti Nitrus was not a drug but a silver Chemical compound which would fall under the item "Silver Salts, Silver Chemicals and Compounds with more than 50% of Silver Contents". Hence its export was banned. As regards pre-ban commitments, those would be decided on merits in term of the public notice.

(9) Being aggrieved with the order conveyed by respondent no. 3 vide letter dated 24th April. 1979, the petitioners filed a writ petition in the High Court of Judicature Bombay bearing Civil Writ No. 11 14/J979, in which they sought permission to export Argenti Nitrus pursuant to contracts of export already entered into.

(10) The learned Single Judge of Bombay High Court by way of interim relief allowed the petitioners to export Argenti Nitrus to the foreign buyers in pursuance to the existing contracts. In terms of the said interim orders, the petitioners exported Argenti Nitrus. Writ of the petitioners was accepted by the Single Judge. Being aggrieved by the order of the Single Judge, respondents filed appeal. The Division Bench of the Bombay High Court in appeal set aside the order of the learned Single Judge. While setting aside the order the Division Bench held that Argeni Nitrus falls within the entry "Silver Salts and Silver Compound", the export of which was banned. As regards the pre-ban contracts the Department was to decide but we are not concerned was the aspect of individual cases on merits. Petitioners being aggrieved by the order of the Division Bench have filed a petition for Special Leave to Appeal in the Supreme Court of India, which is pending.

(11) The petitioners had been granted export house certificate on the basis of the export of Argenti Nitrus during the period 1979-80. On its expiry on 30th June, 1983 the same was not renewed by the respondents. According to the respondents the previous certificate was obtained by misrepresenting the facts. Argenti Nitrus was exported after the public notice dated 30th March, 1979 hence the export house certificate could not be renewed. Respondents further urged that petitioners could not be allowed benefits of export as it was made in violation of export policy. Petitioners actually exported Argenti Nitrus in the year 1979-80. Hence they feel they should be given cash incentive, equivalent to 20% of f.o.b. value of export as well as replenishment license of a value equivalent to 15% of the f.o.b value of export. Petitioner no. I, it is claimed, is also entitled to an additional license with regard to the same export as recognised export house, for the value of 33'/3% of the f.o.b. value of the export of select products made in 1978-79 and manufactured by Small Scale and Cottage Industries plus 5% of the f.o.b. value of the other exports of select products made in the same year.

(12) The petitioners have alleged that the rejection (by the respondent no. 3) to grant them additional licenses, cash incentives and replenishment license in respect of the exports actually effected is vindictive and in the nature of reprisal against the petitioner because the invoked the jurisdiction of the High Court.

(13) The question for consideration is what is the effect of interim orders passed by the Single Judge pursuance to which petitioners exported Argenti Nitrus ? Can petitioners claim further relief taking advantage of those interim orders ?

(14) Mr. Pinaki Mishra, Senior Advocate appearing for petitioners conceded that the reliefs sought in the present writ petition are based solely on the interim orders passed by the learned Single Judge of Bombay High Court. In our view, since the interim orders are no more in existence, therefore, petitioners cannot take any shelter nor can use the interim orders as anchor to seek further relief.

(15) Interim orders are passed to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue and do not, of course, put an end to it even in part As these orders do not impinge upon the legal rights of parties, hence the relief sought on the same basis after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process of court By allowing the reliefs as sought by the petitioners would amount to reopening of those interim orders which were ultimately set aside in appeal It means relegating the parties to an earlier stage, In that sense, this court would be justified in refusing the petitioners to set the clock back These interim orders merged with the final order which was ultimately set aside by the Division Bench of the Bombay High Court. The exports made by the petitioners was not under any provision of the export policy but under the interim orders. The interim orders having come to an end, no further relief in pursuance to the same can be granted to the petitioners. Having taken the advantage of the interim orders which ultimately were set aside by the Division Bench, the petitioners cannot in the garb of present writ petition ask this court to perpetuate the advantages which they were deprived due to ban imposed by respondents. This would amount to rendering Division Bench Judgment of Bombay High Court inoperative and making the Special Leave to Appeal infructuous.

(16) There is no violation of fundamental rights as alleged by the petitioner. The petitioners have not been able to make out any ground of vindictiveness on the part of the respondents. In fact the respondents are implementing the export policy which they are bound to do. Even otherwise matter pertaining to public notice banning Argenti Nitrus is subjudice before the Hon'ble Supreme Court.

(17) Mr. Pinaki Mishra, counsel for the petitioner however contended that the Division Bench of the Bombay High Court while setting aside the order of the learned Single Judge had left tee issue open regarding the benefit accruing for the export made in pursuance to the interim orders.

(18) We find no merits in this argument of the petitioners. The interim orders merged in the final order and the final order has already been set aside by the Division Bench. Hence there exist no order as of today in favor of the petitioners. Since the interim orders came to an end with the passing of final order and are no more in existence, therefore, the present reliefs based on these interim orders cannot be maintained. The benefits claimed by petitioners must flow from the subsisting orders or be based on some law, but in this case it is not so.

(19) The Writ of Mandamus is not a writ of right. In fact the entire writ jurisdiction of the High Court in extraordinary which cannot be put to use in an ordinary way. It constitutes the court as a trustee of high power for the high purpose of maintaining equilibrium between the two antithetical off springs of Jus Nationale, the sumum Imperium of the State and the Jura Naturalia absolute. So it does not authorise a court to issue writs, directions and orders as a matter of course. But in this case as already observed above no right of the petitioners has been infringed nor any legal right as prayed is created in their favor on account of the interim orders passed by the Single Judge. The petition has no merit and is accordingly dismissed. Rule is discharged. There shall be no orders as to costs.