Madras High Court
P.S. Tandon vs Union Of India (Uoi) And Chief ... on 25 April, 1990
Equivalent citations: 1991(33)ECR419(MADRAS)
ORDER S.R. Halingam, J.
1. By consent of parties, the writ petition itself is taken up today for final disposal.
2. That petitioner is an actual user of synthetic rags with an office at Madras. He has plans to start a spinning unit at Tuticorin. For his spinning unit, the raw material is synthetic and woollen rags which may be imported under Open General Licence.
3. The Import and Export Policy 1988-91, in paragraph 25(1) states that the import of woollen rags/shoddy wool/synthetic rags will be allowed only when they are imported in completely pre-mutilated condition. Sub-paragraph (e) of paragraph 25 states that the mutilation must conform to the requirements specified by the customs authorities in the notification. According to the petitioner, he has been carrying on the business of spinning unit the raw material synthetic rags, imported by him in a mutilated condition and he was importing them through Tuticorin & Madras Ports.
4. While so by an amendment made on 28.4.1989 paragraph 25 was amended and the amended paragraph read as follows:
Import of woollen rags/synthetic rags/shoddy will be allowed through two ports only Bombay and Delhi ICD.
The petitioner contends that by reason of this amendment, his business is adversely affected since he could not import the raw material through the Tuticorin & Madras ports as he has been hitherto doing and he had to make arrangements for effecting import through Bombay and Delhi which, according to him, would involve extra expenditure besides putting him to inconvenience. It is the case of the petitioner that this restriction to import only through two ports viz., Bombay and Delhi, is arbitrary and discriminatory. When for all ages import could be affected through all ports, including Bombay and Delhi according to the petitioner there is no justification to restrict the imports only through the ports at Bombay and Delhi. This writ petition was admitted and after service of notice the respondents have appeared through counsel.
5. In the counter-affidavit filed in the writ petition in paragraph 9, it is staled as follows:
...An examination of samples of different enterprises of rags that were being imported showed that some unscrupulous importers were trying to import either serviceable garments as such or out of garments which could easily be stitched for use as serviceable garments. Many of the importers were either bogus or were only weavers and could not be considered as 'Actual users'. Furthermore it was found there was considerable accumulation of uncleared consignments at ICD Delhi and the Collector of Customs, Delhi had no machinery available to ensure the destination of the consignments or to ensure mutilation before allowing clearance to the importers. With a view to curb the abuse, it was decided by the Government to restrict the import of rag consignments to two ports only i.e. Bombay and Delhi 1CD.
Again in paragraph 12 it is stated as follows:
...In the instant case, the import policy permitted import of woollen rags only in pre-mutilated condition and facilities for this purpose were available only at the two ports of Bombay and Delhi through which the import was restricted.
For the foregoing reasons, the respondents state that the contention of the respondent based on Article 14 of the Constitution of India is not sustainable.
6. Since the import of mutilated rags is permissible under Open General Licence and so the fundamental right to carry on trade, business and occupation is available to the petitioner, if his trade is in any manner interfered with by imposition of restrictions, such restrictions must stand the test of Article 14 and 19(6) of the Constitution of India. It is not the case that the petitioner has committed violation of the import regulations. Merely because some unscrupulous imports under the guise of mutilated rags. It would not enable the respondents to impose a restriction, which is not warranted. The respondent have enough machinery, resources, and manpower to devise ways and means of checking the import of any unauthorised item. When the respondents have provided such facilities in Bombay and Delhi, nothing prevented them from providing similar facilities in the recognised ports like Madras and Tuticorin, When it is the case of the petitioner that he would be put to grave and irreparable loss if ho is compelled to import the raw material through Bombay and Delhi, the respondents can question their orders only if they could give a rational and reasonable explanation as to why the ports at Bombay and Delhi alone could be given special status. It is not as if Madras has not been a recognised port. It is a fact which this Court can take judicial notice of that the port in Madras is as much equipped as any other port in the country, in the matter of handling of cargoes. When such is the position, merely because the respondents are not willing to provide the facilities up to Madras and Tuticorin for destruction of the consignments or to ensure mutilation before allowing clearance to the importers, the citizens cannot be put to unreasonable factritions. Therefore, there will be a writ as prayed for. No costs.