TMI Blog1988 (10) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... aw materials i.e. Carbon Steel, Re-rollable Scrap, which is comprehensive terminology and covers in its purview rails, structural, plate cutting, billet cutting etc. The commodity in question, namely, Carbon Steel Re-rollable Scrap was a canalised item, which means that, those commodities can only be imported into India through the Canalising Agency. In this case the Canalising Agent is the respondent No. 2, Metal Scrap Trade Corporation Limited. Since the raw material is not normally available indigenously, the Central Government has been making policy from time to time so as to permit the Actual Users like the petitioners to import such raw materials through the Canalising Agent and ; use such raw materials for their manufacturing activities. For the purpose of assessment of the requirements of any manufacturer, the Central Government appoints Assessment Committee, known as Technical Committee to assess the requirement of such of the Units, including the petitioners whose capacity was assessed to the tune of 16,700 Metric Tonnes per annum. 3. It may be mentioned that for similar relief on identical facts the petitioners moved a writ application, one before the Delhi High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt over the matter. When the respondents did not make any attempt or try to meet the registered requirement from indigenous sources, it is well established that under such circumstances, silence or inaction constitutes a representation inasmuch as positive language or conduct for the purpose of any estoppel. When the respondents have discarded the course of action as provided under Para 218, it cannot refuse to follow the other course of action as provided under another para 223 of the said procedure. Further in the instant case the respondents did not intimate to the petitioners when the petitioners made application for registering the requirements that the items in question were available from indigenous sources and when the petitioners made repeated requests and representations for issuing of 'No Objection Certificate' in terms of para 223(1)(a), then only after lapse of several months and that too after the expiry of the licensing period made out a case that the same was available from indigenous sources and for that purpose asked the petitioners to approach the Steel Authority of India which in its turn refused to accept any responsibility in the matter. It is clear es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for making deposit of earnest money was not admittedly done and that there was no whisper about making of any financial arrangement for supply by a letter dated 21st of June, 1986. Secondly, in the instant case the licensing period is from 1st of April, 1986 to 31st March, 1987 and that the date according to the rules for registering the requirements and making financial arrangement is the month of Feb., 1987. So the reasons and/or the grounds disclosed by the respondent asked for not issuing of 'No Objection Certificate' by the letter dated 8-12-1986 are wholly untenable and unacceptable in the facts and circumstances of the case and in view of the statutory provision made in this behalf. Accordingly I have no other alternative but to hold that the reasons and/or grounds for issuing of 'No Objection Certificate' that the respondent No. 2 was not tenable under the law and in my view, the respondent No. 2 had acted in the matter in a manner which is contrary to the law, and failed to discharge its statutory duty imposed under the law. The petitioners cannot be made to suffer because of a lapse and negligence on the part of the respondents concerned After all every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retation sought to be put forth by the respondent is accepted that would stultify, purpose of the statute and would definitely produce injustice, absurdity, anomaly and in such circumstances, we have to give a meaning which will make some sense of the enactment otherwise it would result injustice and frustrate the very purpose of such a provision and deny a party of legitimate claim on account of inaction and arbitrary action on the part of the respondent. If the literal meaning is given, the same would lead a plain and clear contradiction of the apparent purpose of the rules (sic) and would result of some culpable and evidence absurdity. It is also one of the basic canons of interpretation of statute that if one interpretation leads to an absurdity and the other does not, the Court will conclude, the legislature did not intend to an absurdity and will adopt an interpretation which will not lead to an absurdity. Accordingly, in my view, the failure on the part of the respondent No. 2 to register the application and/or to make any demand for security money did not and could not disentitle the petitioners to claim the benefit of the 'No Objection Certificate'. 5. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvise you to procure the said materials from the indigenous source, viz.....Jessop and Company Limited.... to meet your requirements. '' (e) By the letter dated, 3rd Oct., 1987, the petitioners approached, M/s. Jessop and Company Limited, Calcutta for the purpose of ascertaining whether the said concern would be in a position to supply the said materials as advised by the respondent No. 2 in this behalf. (f) Apart from M/s. Jessop and Company Limited, the petitioners moved 11 other authorities as specified by the respondent No. 2 in their letter dated 14th Sept., 1987, but all the authorities who were directed to be approached by the petitioners by the respondent No. 2 remained significantly silent, and did not indicate that they were in a position to supply the said commodity from indigenous sources at all or not, (g) On 3rd of Oct., 1987 the petitioners also wrote a letter to the respondent No. 2 i.e. M/s. Metal Scrap Trade Corporation Limited pointing out that as per advice of the said authority, the petitioner company had approached all the authorities specified by them for the purpose of obtaining this commodity from the indigenous sources. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners would arrange the Letter of Credit on hearing from the respondent No. 2 regarding the details of tonnage allotted, rate per metric tonne etc. 6. At that point of time, namely, 6th Feb., 1988, Guidelines for import of Carbon Steel Re-rollable Scrap through Metal Scrap Trade Corporation Limited for the year 1987-88 was issued and in the said Guidelines it was inter alia laid down that - Actual users will be allowed to import to the extent of quantity covered by their I/C submitted to MSTC, within a limit of 10% of their licensed capacity or 1500 tonnes whichever is less. The actual import is however subject to availability of foreign exchange. 7. It may be mentioned that the Guidelines issued on 6th Feb., 1988 is the only additional point over and over above the points already decided by me in the above case referred to above for the earlier year and that it is necessary to decide the scope and effect of the Guidelines issued in this behalf, and it is also necessary to decide whether it is open for the respondents to refuse registration or otherwise ask the petitioners and whether the rights of the petitioners in this behalf could be interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein the Supreme Court held (at p. 973) : It is significant to note that para 138(1) was not mentioned in para 140 of the Import Policy, 1981-82. It is also significant to note that in the Import Policy for the subsequent year 1982-83 the said words against their Exports of products manufactured by them have been actually inserted in para 138(1) after the words REP Licences issued to manufacturers exporter and before the words will be valid within the overall value for import of any items of raw materials, components, consumables, spares and packing materials required by them for use in their factories subject to 'Actual User' condition. In view of the respondents' contention that the Circular dated August 31, 1981 is only clarificatory of para 138(1) of the Import Policy, 1981-82 and does not amend or modify that paragraph it is unnecessary for us to go into the question whether the Circular issued by the Joint Chief Controller of Imports and Exports can validly amend the Import Policy 1981-82. Ona perusal of the relevant paragraphs of the Import Policy, 1981-82 mentioned above we agree with Mr. Soli J. Sorabjee, Senior Advocate for the appellants that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the expiry of few months of the date of accrual of the statutory orders or statutory provisions of the Import Policies. Such administrative orders cannot also interfere with the fundamental rights of the citizens to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution of India. 11. Administrative orders and/or circulars cannot have any retrospective effect. Only law could be made retrospectively if it was expressly provided by the legislature in the statute. 12. It is the established principles of interpretation that unless contrary intention appears, an enactment is presumed not to be initiated to have retrospective operation. This is the position regarding enactment. In this case, on the basis of an administrative circular, the rights of the petitioners cannot be denied by the respondents which had accrued long before the issue of such a circular. 13. In my view, on the basis of the guidelines, being administrative in nature, issued in this behalf, only few days before the expiry of the period, the petitioners' right accrued in this behalf could not be taken away or interfered with. Accordingly I hold that the said guid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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