Sawhney Export House vs Union of India (UOI) and Others

Sanjiv Khanna, J.—Petitioner, M/s.Sawhney Export House had filed the present Writ Petition 1996 for issue of Writ of Mandamus to the respondent-Union of India to disburse/pay 45% premium for failure to issue replenishment licences and to release Cash Compensatory support (CCS, for short) and Additional CCS benefits against export documents. The petitioner has also claimed compensation/damages for non-release of incentives in terms of the Import and Export Policy. The third prayer made in the Writ Petition is for issue of Writ of Certiorari to quash Orders, mentioned in para 8 of the Writ Petition, rejecting the petitioner''s claim for issue of replenishment licences, CCS and Additional CCS benefits.

Replenishment licences, CCS or Additional CCS are payable as per the Export Import Policy and other policies/guidelines prevalent from time to time. In para 8.1, the petitioner has given details of his claim in respect of 12 applications made by him for issue of replenishment licences. As per the petition itself, applications at serial numbers 2, 3, 4,5, 6,7 and 8 have been rejected with the appeal clause or the case closed for failure on the part of the petitioner to respond and furnish documents. Petitioner has not stated that he had filed any appeal against the orders which were passed rejecting the application for issue of replenishment licences with the appeal clause. In the Writ Petition, the petitioner has also not stated and given details why the respondents should not have closed the case for failure to submit documents. Petitioner in the rejoinder has stated that he had in some cases furnished details and removed deficiencies in other cases which were closed. However, copies of the said letters have not been enclosed with the rejoinder also. List of applications at serial numbers 2 to 8 show that these relate to the period between October-December, 1987 till October-December, 1989. Without any firm evidence in support of the petitioner that he had furnished documents and removed the deficiencies, I do not think any Writ or direction can be issued in favour of the petitioner.

Claim at serial No. 1 has been rejected as per the Writ Petition itself. Petitioner has also enclosed letter dated 25/28th August, 1989 rejecting his application and the petitioner claims that he had filed first appeal. Petitioner thereafter filed a review application which was dismissed. The period in question relates to October-December, 1987. The respondents in their counter affidavit have stated that they have not been able to trace out the file and the decision made by the First Appellate Authority. The petitioner has not placed on record any letter or correspondence to show that he had protested against non-adjudication and failure to take up the First Appeal from 1989 onwards till 1996 when the Writ Petition was filed.

With regard to the application at serial No. 9, the petitioner has admitted that his application was rejected and he was asked to file first appeal. The respondents in their counter affidavit have stated that the file of the First Appeal is not traceable but have pointed out that as per the petitioner, the First Appeal was rejected and thereupon the petitioner had filed Second Appeal in 1994. The petitioner has not filed any correspondence or details with regard to Second Appeal.

With regard to application at serial Nos. 10 and 11, respondents in their counter affidavit have stated that the applications were rejected as the petitioner did not reply to objections and remove deficiencies. It is further stated that the replenishment licences themselves were withdrawn w.e.f. 3rd June, 1995 and therefore no replenishment licences can be issued. With regard to claim No. 12, the respondents have stated that the Appellate Authority had passed the Order and the case was being processed in consultation with Reserve Bank of India. During the course of argument, learned Counsel for the petitioner could not state whether replenishment licence was issued.

It may be noted that replenishment licences are no longer being issued. Presently, most of the goods are under open category for which no licence is required. Moreover, the petitioner''s claim for damages that if the licences had been issued, they would have earned 45% premium in the open market and their claim for interest @ 24% p.a. quarterly rests, is presumptuous and is not based on material or evidence on record. No material has been enclosed with pleadings to justify the said statement and claim for compensation/damages. As a Writ Court, it is not possible to adjudicate the petitioner''s claim for damages/compensation even if it is presumed that in some cases appeals were not processed and adjudicated upon. In these circumstances, no finding or order can be passed awarding damages and compensation in the present Writ Petition. However, it is open to the petitioner to file a civil suit or other proceedings, if advised and establish their claim for damages. If required, the petitioner can move an application u/s 14 of the Limitation Act, 1963, for exclusion of period during which the writ petition has remained pending.

With regard to the claim for CCS, the petitioner in the Writ Petition states that three claims were rejected. Respondents, have stated that the CCS claims were rejected in view of para 309(3)(IV) of the Export Import Policy. The said Clause reads as under:

Para 309(3)(IV) the application received after a period of 24 months from the last month of the export period will be summarily rejected as time barred.

It is also pointed out that in respect of application No. 1 for CCS claim, the petitioner had filed First Appeal but the same was rejected. In respect of application No. 2, again the petitioner had filed a First Appeal which was rejected. Similarly, in the case of third application, the First Appeal was rejected.

With regard to the applications for Additional CCS, the petitioner himself has stated that his second application was rejected with the appeal clause. It is not stated whether the petitioner had filed any appeal or not. With regard to the first application, the petitioner has stated that he had filed a Second Appeal on 3rd December, 1991 almost five years before the Writ Petition was filed. The claims pertain to the period January-March, 1989. Respondents in their reply have stated that they are not able to trace out the relevant file. The petitioner has not filed on record any letter/correspondence after 1991 till 1996 in respect of the said appeal. Even in the rejoinder affidavit, it is not stated that steps have been taken by him from 1991 onwards. It is not possible for this Court to examine whether the Second Appeal was decided or not. It will be open to the petitioner to approach the Office of Director General of Foreign Trade. Director General of Foreign Trade will examine the said request and the documents and if the submission of the petitioner is found to be correct then a suitable order will be passed. In case the petitioner is aggrieved by any Order passed by the respondent, he will be entitled to redress his grievance in accordance with law. Writ Petition is accordingly disposed of. No costs.