TMI Blog1990 (5) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ms clearance, or (b) when they are covered by the Savings Clause 11 of the Order, or (c) when they are covered by an Open General Licence, subject to such conditions as may be stipulated therein. 2. The Import and Export Policy for the period April, 1988 to March, 1991, declared by the authority concerned, is published by the Ministry of Commerce in two Volumes, Volume I containing the Imports and Exports Promotion Policy and Volume II contain the policy and procedure in respect of Items under Export licensing. As would appear from paragraph 1(2) of Chapter I of Volume I, the Government reserves the right to make amendments/changes in this Policy, which may become necessary in public interest from time to time during the above period of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils/sheets in seconds/defectives condition of thickness 0.27 mm and thinner." 4. The conditions governing Imports under Open General Licence are noted in Appendix 6 - Volume I, pages 165-171, and one such condition being No. 31 (at page 169) is hereunder:- "In the case All NON-ALLOY STEEL AND ALLOY STEEL ITEMS, importable under Open General Licence, the eligible importers - Actual Users (Industrial) and others - shall be required to register their import contracts with the Development Commissioner for Iron Steel, Calcutta or with any of his regional offices, within thirty days from the date of entering into any such contract, or, the date of shipment of goods, whichever is earlier. Imports shall be made only after the connected contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the respondents and after giving the matter such consideration as it deserves, I am of the view that the stand taken by the Respondents in Annexure E of the petition cannot be countenanced and the order of the Regional Development Commissioner declining registration of the import contracts cannot be maintained and that for more reasons than one. 6. As I have already noted, in accordance with the provisions of the "Import and Export Policy, April 1988 - March 1991, declared by the Government, the petitioner is entitled to import defectives I seconds under Open General Licence as per Entry No. 849(i) of Appendix-6, List-8, Part I. If on such declaration/representation being made by the Government, the petitioner has acted there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or relieved of its liability to act according to the representation made by it as to its future action. 7. I must, however, note that Mr. Sen for the petitioner has not based his argument precisely on this principle of Promissory Estoppel, the main brunt of his argument being that under the provisions of paragraph 31, extracted hereinbefore, the Development Commissioner has no discretion, but is under an obligation to register the import contracts and as such his order declining the registration of the contract must be struck down. While it is true that absolute discretion is anathema to our jurisprudence, an absolute obligation is also not to be readily inferred unless the text and the context of a provision in question warrant such inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction to which the documents relate. The Development Commissioner may decline registration if, as clearly provided in paragraph 31, the contracts are not presented for registration within the period specified therein or copies in duplicate are not lodged. But otherwise, it is not for the Development Commissioner to decide at that stage, when the goods might have already been shipped about a month back, as to whether the importers are entitled to import and to refuse registration on that score. 10. Notwithstanding our resolve in the Preamble to the Constitution to constitute India into a Socialist State, the right to carry on any private trade or business is still a Fundamental Right guaranteed under Article 19(l)(g) of the Constitution. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such right, but only by clear legislative provisions. The provisions of paragraph 31, assuming them to be law, do not expressly, or even by necessary implication, provide for refusal of registration of contracts, if the requisite formalities are complied with. Therefore, there being no such clear provisions providing for refusal of registration, refusal to register the import contracts would be clearly ultra vires. 12. The reasons put forward by the Regional Development Commissioner in Annexure "E" to the petition dated 27th June, 1989, for declining to register the import contracts is that "it has been decided by the Office of the Development Commissioner for Iron Steel, Calcutta, that import of defectives/seconds as per Item under Sl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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