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15. Saving - Nothing in this Order shall apply to

(j) products manufactured in and exported from the respective Free Trade Zones and approved 100 per cent Export Oriented Units except textile items covered by bilateral arrangements;

7. The aforesaid Export (Control) Order 1988 was amended by an order dated 14th October, 1991 so as to include in Part-C in Schedule I in List II a number of items including non-basmati rice. As a result of this amendment non-basmati rice was allowed to be exported subject to the following conditions "exports shall be allowed against registration-cum-al-location certificate issued by the Agricultural and Processed Food Product Export Development Authority (herein alter referred to 'APEDA') - appellant herein". This amendment was followed by a Trade Notice dated 15th October, 1991, issued by the appellant by which procedure was laid down for allotment of quota which envisaged that the minimum export price of non-basmati rice, which was fixed, was US $ 231 FOB per MT. This was followed by a letter dated 15th October, 1991 from Government of India to APEDA, inter alia, stating that additional quota of non-basmati rice for export subject to minimum export price of US $ 231 per MT had been released and it was stated that the Highest unit value realisation, and not cornering of quota by any party, should be the priority for allowance of export.

10. It will be appropriate, at this stage, to consider the points arising in these two cases, the Delhi case dealing with the case of export of rice and the Punjab case relating to the export of edible rice bran oil, separately.

11. The case relating to export of lice. The writ petition was filed in the Delhi High Court because vide letter dated 7th January, 1992, the Assistant Collector of Customs, Kandla, did not allow the export of rice and in fact, directed Oswal Agro to unload the rice which had been loaded. It appears that the action by the customs authorities had been taken when the appellants herein had informed the Assistant Collector of Customs, Kandla, that export of non-basmati rice could be allowed only when registration-cum-allocation certificates arc issued. Inasmuch as Oswal Agro wanted to export the non-basmati rice without, any registration-cum-allocation certificate from the appellant and below the minimum price which had been fixed, the aforesaid action was taken by the Customs Authorities of stopping Oswal Agro from exporting rice. In the writ petition filed by the respondents in the Delhi High Court it was contended that being a 100 per cent export oriented unit, it was exempted from any trade restriction, inter alia, by virtue of the saving Clause 15(j) of the Export (Control) Order 1988. Another contention which was raised was that the fixation of minimum price by the appellant herein was without any power and authority. Further contending that Oswal Agro had entered into a number of con-tracts for the export of rice, it was submitted that the appellants herein were estopped from stopping the said export. According to Oswal Agro it had entered into contracts dated 16th October, 1991, 18th October, 1991 and 21st October, 1991, whereby it was under a contractual obligation to supply 1,07,000 M.T. of non-basmati rice to M/s Continental Grain Company, New York. It is an admitted case that the price at which Oswal Agio wanted to export the non-basmati rice, without any registration or authorisation from the appellant was US $ 213 per M.T., i.e., below the minimum price fixed by the appellant herein.

14. The High Court also held that there was no provision in the Export (Control) Order 1988 for fixing the minimum price for non-basmati rice. By taking note of the fact that vide letter dated 15th October, 1991, of the appellants herein, the last date for exporting the entire quantity of non-basmati rice was 31st March, 1992, the High Court while allowing the writ petition granted three months' time to export the balance quantity of 83800 M.T. of non-basmati rice.

15. On 15th May, 1992, in Special Leave Petition (c) No. 6854 of 1992, filed by the appellant, from which Civil Appeal No. 3785 of 1992 arises, this Court while directing the petition to be listed on 8th September, 1992 gave Oswal Agro the liberty to export the rice in question on the undertaking that in the event of the Court holding that the item was a canalised item and Oswal Agro was not entitled to export the same, then it would make good the difference, as determined, in dollars.

29. It was also contended by Mr. Jethamalani that even if it be assumed that the High Court has taken an erroneous view and had wrongly concluded that Oswal Agro could export non-basmati rice, this Court, in exercise of its discretionary jurisdiction under Article 136 of the Constitution, should not interfere.

30. The facts as stated hereinabove, on the other hand, show that the High Court ought not to have exercised its jurisdiction under Article 226 of the Constitution, for more than one reason, and, therefore, it would be incumbent upon this Court to interfere under Article 136 of the Constitution and not to allow Oswal Agro to take advantage of an obviously wrong decision of the High Court. Firstly the High Court misconstrued Clause 15(j) of the Order and held that because Oswal Agro was an export oriented unit, therefore, it could export any item manufactured by it, which conclusion is wholly incorrect. Secondly the High Court ought not to have entertained the writ petition because of Oswal Agro's conduct. It had filed an earlier writ petition in the Punjab and Haryana High Court dealing with the same issue, namely, its obligation and right to export its products under the licence and in term of the Export (Control) Order. It is possible that the Delhi High Court may not be aware of the pendency of the writ petition in the Punjab and Haryana High Court, regarding the export of edible rice bran oil, because there is no reference to the filing of the said case in the writ petition filed in the Delhi High Court. Oswal Agro is guilty of suppression of this very important fact. It was contended in the Punjab and Haryana High Court that it was under no obligation to export the edible rice bran oil and its only obligation was to export Furfural while, in the writ petition filed in the Delhi High Court, a somewhat contrary contention was raised, namely, that being an export oriented unit, it was entitled to export non-basmati rice, in addition to Furfural. Had Oswal Agro indicated in the writ petition filed in the Delhi High Court that it had also filed a petition in the Punjab and Haryana High Court which was still pending, relating to export of edible rice bran oil, then Delhi High Court most probably would not have entertained the petition because the proper course which should have been followed by Oswal Agro was to raise this contention, regarding export of non-basmati rice, in the writ petition filed in the Punjab and Haryana High Court or to file a new petition there.