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Necessary facts are, that according to the petitioner, in exercise of powers conferred by section 5 of Foreign Trade (Development and Regulation) Act, 1992, the concerned Ministry published Foreign Trade Policy 2004- 2009, incorporating the provisions, relating to export and import of goods and service. Then, the Director General of Foreign Trade, New Delhi has issued annual supplement for the year 2007-08 and 2008-09, and the said Director General issued a Policy Circular No.1 (RE-2007) dt. 26.7.2007, issuing guidelines for import of rough marble blocks/slabs for the year 2007-08, laying down the entitlement or quota of import of rough marble blocks, subject to ceiling provided therein, however, out of the said quota, individual importers were allocated their share of total quantity of import. Accordingly, the petitioner has been availing the quota. This licence was issued to the petitioner for import, under Special Import Licences (SIL). It is alleged, that till the year 2007-08, the import licences have been issued, only under SIL, and there was no policy for entrepreneurs, other than those availing licence under SIL.

It is then alleged, that for the year 2008-09, the Director General issued Policy Circular No.12 dt. 27.6.2008, laying down guidelines for import of rough marble blocks for the year 2008-09, and the upper ceiling of the total import was fixed at 1.40 lacks metric ton. This Circular has been produced as Annexure-3. Then, the said Director also issued a Policy Circular No.13 dt. 30.6.2008, in addition to the previous guidelines, according to which, units, who have been granted import licences under SIL, or who are eligible for avail licences, in the current year, under the SIL, have been excluded. It is also alleged, that quantity of licence or entitlement of licence thereunder, is in accordance with gang saw machines installed in the premises. This Circular No.13 has been produced as Annexure-4.

The precise challenge, for the above relief, is on the ground, that according to Annexure-4, the eligibility is based on the criteria being, units, who have installed marble gang saw machine, and the units should have been in operation since prior to 31.3.2001, and from out of this category, 100% EOU's, units in SEZ, and units who have been granted marble block import licence under previous licensing years, or are eligible to avail licence in the current licensing year (2008-09), under SIL category, has been excluded. Then, it has also been provided, that all eligible units as above, should have indigenous sales turn over of marble slabs/tiles of Rs.1.00 crore and above in each of three financial years 2004-05, 2005-06, 2007-08 (2006-07). According to the petitioner, exclusion of those units, who have been granted licence under SIL, or who are eligible to avail licence in the current licensing year under SIL, is highly arbitrary and contrary to Foreign Trade Policy, unjust and unwarranted, particularly in wake of the fact, that in the Policy Circular No.13, total entitlement for import licence is 3000 metric ton marble blocks/slabs for the first gang saw machine, and 1500 metric ton for additional gang saw machine. It is contended, that once the Central Government decides to permit import of such a huge quantity, based on manufacturing capacity, exclusion of the units obtaining import licence under SIL, is highly arbitrary and illegal. It is also contended, that the Government could and should have provided an option, to be exercised by an individual entrepreneur, either to apply and avail licence under Annexure-3, or Annexure-4. It is next contended, that Annexure-4 has been issued to give benefit to the particular sect of entrepreneurs, excluding the existing licence holders, under SIL category.

Thereafter, we have heard learned counsels on the merits of the matter. 
            At    the    outset,     it     may    be    observed     that    by

Annexure-4,      the    persons    like     petitioner,       who    have    been
enjoying, and are availing, import licences under the SIL, have not been, altogether excluded from their entitlement to get import licence, rather they continue to remain entitled to avail the licence under the SIL. Therefore, it cannot be said, that by issuing the policy scheme Annexure- 4, the persons including the petitioner have been deprived to do their business or profession, within the meaning of Article 19(1)(g).