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(6) The Challenge: The present writ petitions challenge the validity of the amendment of the Export Control Order, dated 30th March, 1979, by which item 77(ii) was deleted from Part B of Schedule I, as also of the Public Notice issued by the Chief Controller of Imports and Exports on that date which was as follows : Public Notice No. 30-ETC(PN)/79 "SUB: Export Policy for the period ending 31st March, 1979. Attention is invited to the Department of commerce Public Notice No. 17-ETC(PN)/78 dated 3-4-1978, announcing the policy for the year April, 78 March, 79 and the Exports (Control) Amendment Order No. E(C) 0, 1977/AM(106) dated the 30th March, 1979 on the above subject. 2. The Policy for export of different items to be followed for the period ending 31st March, 1980 is indicated against each item in the Policy Statement enclosed with this Public Notice. 3. This comes into force with immediate effect. 4. The provisions of Para. 316 of the Hand Book of Import Export Procedures 1978-79 will not be applicable to any pre-ban commitments consequent to this Public Notice. All such cases will be decided "on merits" only. "5. In respect of items allowed for export "On Merits", no person should enter into any commitment before obtaining necessary permission for export. Applications in respect of such items should be subnutted to the Chief Controller of Imports and Exports, New Delhi."

(7) Mr. P. R. Mridul forcefully put forward the following contentions in support of the petitions : (1) Argenti Nitras was a drug defined according to Indian and foreign pharmacopoeias. It is true that it consisted of more than 63 per cent of silver, but it was not a silver salt or silver Chemical or silver compound within the meaning of item 77(ii) of Part B of Schedule 1. The deletion of the item from part B of Schedule I, therefore, do not affect the export of the drug. Such export was completely free as it was not mentioned in any part of the Export Control Order at all. It could, therefore, be done without any license and free from all conditions ; (2) Assuming that Argenti Nitras is a silver salt or silver Chemical or a silver compound with 63.5 per cent silver contents within the meaning of item 77(ii), the contracts were entered into by the petitioners on the representation made by the Export Policy 1978-79' that such an item was normally to be exported. The change of policy by which the export of the item is not to be allowed from 30th March, 1979 should not affect the pre-ban commitments made by the petitioners in View of the provisions contained in para 316 of the Hand Book of Import- Export Procedures, 1979-80. The relevant part of this provision is as follows : "UNLESSotherwise provided, the following types of pre-ban (including pre-control) commitments will be ordinarily honoured for export control purposes : Copies of pre-ban commitments......should be sent to the licensing authority by Registered Post A.D. within a period of 15 days from the date of public notice/Trade Notice or Notification announcing the ban on exports of the concerned commodity. The submission of such evidence shall not, however, confer any right on the person concerned to the grant of any export license or permission to export."

(21) Representation not unconditional : The Export Policy April 1978 March 1979, was as usual a policy framed for that particular year. There is no complete free trade anywhere in the world. Every country regulates its imports and exports. This is a sovereign function of the Government. It is a policy like the framing of the annual budget which is discussed only in Parliament leading to the annual Finance Act, which can be passed by Parliament and changed only at the instance of the Government. No individuals have any right to have such a policy framed in any parttcular way. Paragraph 8 of the opening Chapter of Export Control Policy, 1978-79 announces that "any change in this policy will be duly notified by a Public Notice or by a Trade Notice." The Public Notice of 30th March, 1979 is in pursuance of this announcement. Paragraph 316 of the Handbook of Import-Export Procedure statina that ordinarily pre-ban commitments of exporters will be honoured by the Government is also a part of this policy. Like the rest of the policy, it is also subject to change and even those who have entered into pre-ban commitments are told vide sub-para (6) of para 316 that a pre-ban commitment shall not confer any right on the person concerned to the grant of any export license or permission to export. This is the representation of policy which is held out by the Government. What could the petitioners reasonably understand by it ? In our view, it would be reasonable for the petitioners to understand that hopefully the policy would continue to be the same throughout the year, but the Government would have always the power and duty to change it if circumstances of the international trade and the need of the country to conserve silver necessitates any change in item 77 including item 77(ii). The petitioners must have also understood that even a pre-ban commitment did not give them an absolute right to export. Further, the Government had a discretion to withdraw even the usual concession to the pre-ban commitments in view of the changeability of the whole policy including para 316 of the Hand Book of Import-Export Procedures. If the Government would be the offerer and the petitioners were to be the acceptors of that offer, could a contract have resulted from such an offer and acceptance assuming that it was for consideration ? In our view, the declaration in the policy that the representation or the offer would not confer any right on the acceptor to the issue of an export license made it clear that no resulting in promissory estopped ? The answer to this question Is a representation. If so, could such a representation be acted upon resulting in promissory estoppel ? The answer to this question is in the negative as would appear from the following statement of law and the decision of the House of Lords referred to therein : "WHENpromissory estoppel is invoked, the promise or assurance necessary to support it is inevitably less than a promise finding upon the parties in contract it would not be necessary to invoke the doctrine of promissory estoppel at all if the promise had contractual force. But nevertheless the promise supporting a promissory estoppel is closely analogous in many respects to a promise having contractual effect. One of its essential attributes is the the same degree of unequivocality which, if the same assurance had been given full-consideration would have clothed it with contractual effect. This was the rock upon which the plea of promissory estoppel foundered. both in the Court of Appeal and in the House of Lords In his judgment in the Court of Appeal [(1971) I All E.R. 665], Lord Denning M.R. referred to the 'extraordinary consequences' of holding that an assurance ineffectual (by reason of its indefiniteness) to vary a contract was yet definite enough to support a promissory estoppel bringing about the same result."

(27) That "the defense of executive necessity is of limited scope. It only avails the Crown where there is an implied term to that effect or that is an implied term to that effect or that is the true meaning of the contract."

(28) The distinction made by Lord Denning is in substance the distinction between 'the Government dealing with an individual under its ordinary contratual powers (Artiles 298 and 299 of the Constitution) when it would be bound by the private law of contracts, and the Government acting de hors its ordinary contractual power and, therefore, governed only by the public law such as Articles 53 and 73 of the Constitution. The representation was held binding on the Government in para 10, because "The defense of executive necessity was not relied upon in the present case in the affidavit filed on behalf of the Union of India. It was also not pleaded that the representation in the Scheme was subject to an implied term that the Union of India will not be bound to grant the import certificate for the full value of the goods exported if they deem it inexpedient to grant the certificate". On the contrary, in the present case, the Government has filed a counter affidavit, in paragraph 15 of which the following statement is made: "THATin any case it is submitted that the Export Control Order in question was issued on 30th March, 1979 and the Government of India issued a Public Notice No. 54- ETC(PN)/79 and respect of the export of manufacture of products containing 50 per cent or less Silver on. 13th August, 1979. This public notice contains the conditions as to how the export is to be allowed in respect of title pre-ban commitments of such products. The policy announced in the said Public Notice has been adopted in respect of the export of Silver Salts, Silver Chemicals and Compound with more than 50 per cent Silver which was also banned on the same date 30th March, 1979 vide a public notice No. 61-ETC(PN)/79 dated 6th Septem- ber, 1979 a copy annexed as Annexure."