Ujjwal Apparels Company Pvt. Ltd. vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 702 Del

JUDGMENT

Badar Durrez Ahmed, J

1. In this petition, the petitioner has challenged the order dated 23.11.2002 passed by the 2nd Appellate Committee constituted under the Garment Export Entitlement Policy.

2. The brief facts are that the petitioner was allotted a revalidated quota obligation in the year 1996 whereunder he was under an obligation to fulfilll a certain export obligation. It is an admitted fact that the export obligation has not been met. However, the petitioner sought to invoke the force-majeure clause for the non-fulfillment of the export obligation as a ground for setting aside the forfeiture of earnest money deposit/legal undertaking to the tune of Rs. 7,38,126/- The procedure prescribed under the Garment Export Entitlement Policy is that a speaking order is passed by the Apparel Export Promotion Council (AEPC) in cases of non-fulfillment of export obligation. The aggrieved party has a right to appeal before the Textile Commissioner being the First Appellate Authority. Thereafter, there is recourse to the 2nd Appellate Committee constituted under the said policy. The impugned order dated 23.11.2002 has been passed by the 2nd Appellate Committee in the second appeal preferred by the petitioner. In this case, the AEPC, the Textile Commissioner as well as the 2nd Appellate Committee held the forfeiture to be valid and on a finding of facts have indicated that the force-majeure condition would not apply.

3. The learned counsel Mr. Chatterjee appearing on behalf of the petitioner has put forward two grounds of challenge of the impugned order. First of all, he submits that the impugned order is bad on account of the fact that the constitution of the 2nd Appellate Committee was not as per the policy and, therefore, the decision taken would have no effect in law. The second contention is that certain documents filed by him with regard to the heavy rainfall in Tamil Nadu and, particularly, in Tripur region were not taken account of and not considered by the Appellate Authority. He further submitted that his quota was buyer specific and if the buyer backed out then that would also amount to force-majeure and this aspect has not been fully considered by the Authority.

4. Taking up the first question of constitution of the 2nd Appellate Committee, it appears that in the Garment Export Entitlement Policy for 1994-96, para 11 provides for appeals. In that paragraph, the constitution of the 2nd Appellate Committee is not specified. The petitioner's export quota was for the year 1996. However, learned counsel for the petitioner submits that in the Garment Policy for 1997-99 paragraph 13 thereof provides for appeals and the constitution of the 2nd Appellate Committee has been prescribed as under:

  "1.  Joint Secretary (Exports), Ministry of Textiles          :  Chairman
 2.  An officer of the Ministry of Law & Justice as           :  Member
     nominated by that Ministry
 3.  Export Commissioner                                      : Member
 4.  Director/Deputy Secretary (Exports),
     Ministry of Textiles                                     :Member Secretary"

 

5. Learned counsel says that the Committee so constituted ought to have decided his 2nd appeal whereas in fact what has happened, as would be apparent from the impugned order at page 65 of the paper book, is that in place of the Export Commissioner, the Joint Director General of Foreign Trade has been introduced as a member of the 2nd Appellate Committee. This, according to him would be a violation of the express provision of para 13 of the 1997-99 policy. In reply to this, Mr. Kuljeet Rawal, the learned counsel appearing on behalf of respondent No. 2, submits that the second appeal was disposed of on 23.11.2002 at which time the Garment Export Entitlement Policy 2002 would be relevant. In view of para 13 of the policy for 2000-2004, it would be clear that in place of the Export Commissioner, the Joint Director DGFT has been specified as a member of the 2nd Appellate Committee and therefore it is his submission that there is no infirmity in so far as the constitution of the Committee is concerned. It is further noted that in the policy 2000-2004, a quorum has also been prescribed which was earlier not prescribed. The quorum being the chairman and any two of the members. Learned counsel for the petitioner has placed reliance on the decision in the case of R. Kapilnath (dead) through Lr. v. Krishna JT 2002 (10) 5 SC 273. In particular, he has placed reliance on paragraph 4 of the said judgment. However, upon a reading of the said judgment, it appears that it would not apply to the facts and circumstances of the present case inasmuch as the forum itself has not been changed. The forum continues to be the 2nd Appellate Committee. The only change that has been brought about is in the constitution thereof. This is a minor procedural change which does not affect the right of the petitioner qua second appeal. It would have been a different matter if the right of second appeal had been taken away by an amendment. In that event, he may have been in a position to argue that a vested right under the original policy has been taken away which he might then be in a position to challenge. That is not the case here. As such, the aforesaid decision of the Supreme Court which has being cited by him is not applicable to the facts and circumstances of the present case. In this view, the first ground of challenge falls.

6. Insofar as the second ground is concerned, the petitioner states that the meteorological report and data supplied by him have not been considered. However, it is pointed out that the 2nd Appellate Committee in paragraph 4 of the impugned order itself has noted that the Committee considered the appeal in detail during the meeting and went through the evidence produced in support of the evidence. On a pointed question being put to the learned counsel for the petitioner as to whether he argued and made submissions with regard to the question of rainfall and the order being buyer specific, he fairly stated that these averments were clearly made in the appeal. This court, sitting in writ jurisdiction, does not sit as a court of appeal and does scrutinise impugned orders on facts as well as on law as it would do in appeals. The only question that has to be considered under writ jurisdiction is whether the decision making process has been proper and that the petitioner has not been dealt with arbitrarily and unreasonably. From a consideration of the facts and circumstances as well as the submissions of the parties, it appears the 2nd Appellate Committee has considered all the questions raised by the petitioner and after deliberating thereupon has concluded on facts that heavy rains are a normal feature in Tamil Nadu during November and December and that the force-majeure condition would not apply. I do not find any reason to interfere with the merits of the decision taken by the 2nd Appellate Committee.

7. In view of the aforesaid discussions, the writ petition is dismissed. 8. No order as to costs.