Cc
UNION OF INDIA AND OTHERS
¢ - ve * OSWAL WOOLLEN MILLS LTD. AND,OTHERS es March 27, 1984 ‘{0. CHINNAPPA Reppy, AP. SEN AND E.S. VENKATARAMIAH, JJ.J
Import Control Order, 1955. Clausé 8- B—Writ petition by company. impug-
- ning order under Clause 8-B.- grant of exparte interim stay by High Court whether valid and degal.
Practice ‘& Procedure-Statytory Orders—Grant of exparte interim n stay by Courts—Validity of.
"Petitioner company situated in Punjab—Relief sought against Union Of Indie - situated in New Dethi—Writ petition in Calcutta High Court—Filing of whe~ ther valid- .
’ The respondents filed.a writ petition in the High Court. of Calcutta against an order made under Clause 8-B of the Import Control order 1955, in respect of a consignment of beef tallow which arrived at the Caleutta Port. A Single Judge issued a rule-and granted an interim order restraining ‘the Union of India and the Chief Controller of Imports and Exports from filing any criminal complaint against the respondent-firm ‘or its Directors and also a direction to permit the
_tespendents to re-export the consignment of tallow. An application was made by the-Union of India to vacate the interim order, In the meanwhile the respondents sent letters and telegtams tothe department, intimating that. the ‘interim order of the High Court had not been obeyed, and threatening action for contempt of Court, An: application to commit the Chief Controller of
‘Imports and Exports, and others for contempt of court was filed by the company, Over-ruling the request made on behalf of the Department to vacate the interim order, the court issued a rule in the application for contempt and directed the Department officials to appear in person. : .
Being aggrieved by the order, the Department filed a Special Leave Petition against the interim order and the rule for contempt. . .
Allowing the appeal, vacating the interim order and quashing the rale for contempt of Court ;- .
HELD: 1. Writ’ petitions are often. deliberately filed in distant High
» Cots, as part of a manoeuvre in'a legal battle, so as to render it difficult for ae
”
~ necessary to file such applications. ‘An inevitable ‘result of the filing | of writ’
petitions elsewhere than at dhe place where the concerned offices and the rele- a
"vant records are located is to 0 aelay prompt return and contest. t [S45BH -C, AT te . fone
Do - Tn the instant ease, the writ petition v was fled. in the ‘Calcutta High Court 5 et “when the office of. the company is in the State of Punjab a and all the principal
| Fespondents are in ‘Delhi, ee a ce
“eyen: Stronger grounds ‘of ‘public | interest an ex-parte interim ‘order will not be “justified. Tee only appropriate ‘order to’ make in'such cases is. ‘to issue notice to » the respondents, and make it returnable within a short- -period. ‘This should parti- +. \*eulary be so where the Offices of the principal respondents and relevant records vacated may jeopardise the Public. interest. B6G- 347A] -
. cna eT en Sos hoe cae. an intetint order. is once madé by ‘a court, patties ‘employ every,
‘fore, necessary for ‘the courts to be circumspect in the matter of granting pre in exercise of statutory powers. (347B] « re .
In the instant case, no interim relief should have been granted by the High Coit. The interim:order is of a drastic character witha great potential for.
; of admission without hearing the opposite Parties, [347¢, 346D1 ow yt ars. to be a device to exact licences from them. [349B]° oe nn ys as
‘
. ‘time for the disposal of the applications, it was not for the writ petitioners to y» : impose a time limit and demand that their applications should ‘be dispased ‘of
| ties to dispose of their applications expeditiously, it was open to them to seek a
. tions wére to be © disposed of. fs [348G-349A)
gins tt ** UNION Y, OSWAL. WOOLLEN MILLS, BABS the “officials at Dzthi to move : applications ‘to vacate: “stay where it becomes po _.. 20: AC statutory otter such as the one under Clause 8-B of the Import © "Control Orde? purports to be made in the public interest’ and unless | there, are lie outside -the ordinary jurisdiction of the ‘Court. ‘To grant-interim relief pO “straight away .and leave it. to the. respondents to have, the interim order .
device and tactic to ward off the final hearing of the application... It is therer -
: . interim relief, more particularlyso where the interim relief is directed against.” , — eo orders ‘or actions of public officials acting in discharge of their Public duty and :
. mischief and. ‘has the effect of practically allowing the writ petition at the stage. “4, The application to commit the authorities f for contempt of. ‘court appe- a
. Un the’ instant, cases the stay of the. operation of the ‘abeyance’ order merely _ bo meant that the writ petitioners were entitled -to haye their applications disposed we > of by the concerned ‘authorities. The High Court not having: set any limit of on forthwith. If the writ petitioners were aggrieved by the failure of the authori- :°¥ farther direction from the cdurt fixing a limit of. time within which the applica. .
° S44 SUPREME COURT REPORTS [1984] 3.5.0.
Af Ot Cwva APPELLATE JURISDICTION : Civil Appeal No. 1972 of 1983
° High Court i in Civil Rule No. 10933 W-of 1983 and order issuing. contempt notice dated 3.2. 84 being Civil Rule No, 571 Was of 1984.
* Milon- K Banerjee, Additional Solicitor Genera, A. K. Gangult and R. N. Poddar for the appellants. - ,
_ Soli J. Sorabjee, Mrs. Manik Karanjawala, Ratan Karanjawala, c Kuldeep Pablay, Sumit Kachawha and Dr. Roxana Swamy for the -
, respondents. | A Subba Raofor STC, . - ‘The Order of the Court was delivered by.
to dispose of the appeal.
‘M/S. Oswal Woollen Mills Limited having its registered office at Ludhiana in the State of Punjab and a branch office «at Calcutta, EE sand Narayan Das Jain, Secretary of the Company have filed a writ petition in the Calcutta High Court seeking various reliefs against ~ the Union of India (through the Secretary, Ministry of Commerce,
New Delhi), the Chief Controller of Imports and-Exports, New
* Delhi, the Deputy Chief Controller of Imports and Exports, Amritsar,
. the Collector of Customs, Calcutta and the State Trading Corpora-_ tion of India, New Delhi. The’primary prayer in the writ petition *
_ is to prevent or to quash an apprefiended or purported action under .
clause 8-B of the Import Conftol Order. All the other reliefs sought in the writ petition revolve round the principal relief regarding clause 8-B.of the Import Control Order. The other prayers are either ancillary or incidental to the principal prayer or are of an inter-.
locutory charactor. Having regard to the fact that the registered. office of the company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi, one
_ + would Have expected the writ petition to be filed either in the High Wi —Céopetiitioners however have chosen the Calcutta High Court as’ the . forum perhaps because one of the interlocutory reliefs which is sought is in respect of a consignment of beef tallow which has arrived at the
From the Judgment and Order dated. 22.11.83 of the Calcutta
-. CHINNAPPA Reppy J. We. grant . special leave and’ “proceed.
Court of Punjab and Haryana or in the Delhi High Court. The writ —
~ fs
UNION ¥., OSWAL WOOLLEN MILLS (Chinnapa Reddy, J.) 345
Calcutta Port. An inevitable result of the filing. of writ petitions elsewhere than at the place whiere the concerned offices and the relevant records are located is to delay prompt return and contest.
We do not desire to probe further into the question whether the writ petition was filed by design or accident in the Calcutta High Court when the office of the company is in the State of Punjab and all the principal respondents are in,Delhi’ But we do feel disturbed that such writ petitions are often delibetately filed in distant High
. Courts, as part of a manoeuvre ‘in a legal battle, so as to render it difficult for the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications. More about. this later.
’ It appears that an order under clause 8-B of the Import Control | Order had been made against the company on November 9, 1983, but the writ petition was filed as if the order was in the offing and might be made at any time. The writ petition was apparently filed - -. in professed or real ignorance of the order made under clause 8-B of — the Import Control Order.
On November 22, 1983, a- learned single judge: of the Calcutta High Court issued a rule Nisi and granted an interim order in the following terms:. 4
“There will be an interim order of stay/injunction in _ terms of prayers (j), (k), (i) and (nm) of the writ petition till . the disposal of the rule. Liberty is given to the respondents to apply for vacation or variation’. The rule was made returnable on January 31, 1984. Prayers
(j), (k), (1) and (n) Of the petition were.for the grant of:- —
‘(j)—Injuction restraining the respondents their servants and/or agents from’ filing any criminal complaint against the petitioners or any of its director or employees from initiating any departmental proceedings under the Import and Export (Control) Act, 1947 and Import (Control) Order, 1955 against the petitioners or any of its Directors or Employees till the disposal of the Rule; ~
~ (k)—Injuction restraining the respondents from issuing an order of abeyance under clause 8-B ofthe Import Control | t
346 2 | SUPREME COURT REPORTS : [1984] 3 S.C:Re
~
Order, 1955 and/or from taking any“action under such order of abeyance till the disposal of the rule ; a
(1)—Mandatory order directing the respondent .No.5 Collector of Customs to permit’ the petitioners to -re-export the consignment of inedible Beef Tallow in terms of LT.G: Public: Notice No.37 of 1983 dated 1.9.83 with respect to the consignment weighing 456.316 MT which is.lying at Calcutta under section ’49 of the Customs Act;
; (n)—An. order that pending the hearing and final disposal of this writ petition the petitioners be permitted to reship and/or re-export the consighnent of 456.216 MT of
“inedible Beef Tallow which arrived at Calcutta as mare particular:y, mentiohed in Annexure ‘I’,”” -
- Tt is obvious that’ the interim order‘is of a drastic character ‘with a great potential for mischief. The principal prayer in the writ petition is the challenge to the order made or proposed to be made under Clause 8-B of the Import Control Order. The interim oder.
~ in terms of prayers (j) and (k) has the effect of practically allowing
“offices of the principal respondents and relevant records lie outside the writ petition at the stage of admission without hearing the oppo- 7 site parties. While we do not wish to. say that a drastic interim order may never be passed without hearing the opposite parlics even, ~ if the circumstances justify it, we are very firmly of the opinion that a statutory order such as the one made in the present case under
~ clause 8-B of the Import Control Order ought not to have been stayed ‘without at least hearing those that made the order. Such astay may lead tq devastating consequences leaving’no way of undoing the
~ mischief. Where a plentitude of power is given under.a statute, designed to meet a dire situation, it is no. answer to say that the very nature of. the power and the consequences which may ensue is itself a Sufficient justification for.the grant of a stay of that order, unless, of course, there are sufficient circumstances to justify a strong prima facie inference that the otder was made in abuse of the power conferred by the statute. A statutory order such as the one under
. clause 8-B purports to be aiade in the public interest and unless there are even stronger grqunds of public interest an exparte interim order will not be justified. The only appropriate. order to make in such’. © cases is to issue notice to the respondents and make. it returnable within a short period. This should particularly be so where the yos
UNION ¥. OSWAL WOOLLEN MILLS (Chinnappa Reddy, J.) 347 tthe ordinary jurisdiction of the court. To grant interim relief . Straight away and leave it to the respondents to move the court to ‘vacate the interim order may jeopardise the public interest. It is Notorious how if an interim order is once made by a court, parties . employ every device and tactic to ward off the-final hearing of the application. It is, therefore, necessary for the courts to be circum- “spect in the matter of granting interim relief, more particularly so. where the interim relief isedizected against orders or actions of public officials acting in discharge of their public duty and in exercise of “statutory powers. On the facts.and circumstances of the present case, we are satisfied that no interim relief should have been granted ‘by the High Court in the terms in which it was done.
Orders, under clause 8-B of the Import Control Order, similar to the. one made against Oswal Woollen Mills Limited, were made against various import-export houses and others. Some of these orders have been questioned by’ the, affected parties in different High
Courts and, in some cases, interim orders have also’ been obtained. ‘One such writ petition filed by Liberty Oi! Mills Pvt. Limited has been. transferred to this court from the Bombay High Court at the instance of the Union of India. The case is now pending in this -court and has in fact been heard’ in part by this vary Bench, Apparently, under the impression that th: “questions at issue will be finally. determined by this court in the c Ase, of the Liberty Oil Mills, ‘the Union of India and the other authoritfes do not seem to have moved expeditiously to contest the writ petitions filed in the High ‘Courts and to have the interim orders vacated. In the present case, -an application to vacate the interim order was filed in the Caicutta | High Courf.on February 1, 1984, In the meanwhile, Oswal Woojlen Mills Limited went on writing letters and sending telegrams compla-
. ining that the interim orders of the High Court had not been obeyed and threatening action for contempt of Court. Oa January 6, 1984, .
“can application to commit the Chief Controller of Imperts and Exports and others for contempt of court was filed by the company.
‘ Notice to the respondents was ‘ordered on the same day and on ‘February 3, 1984,- overruling the request made on behalf of the ‘respondents that the petition to vacate the interim order may be | ‘heard first, the High Court issued a rule in the application for contvempt of court against the Chief Controller of Imports & ‘Exports cand the Deputy Chief Controller of Imports and Exports and directed them to appear in person on March 6, 1984. Thereupon the Union of India, the Chief Controller of Imports & Exports, etc.
- 348 my SUPREME couRT REPORTS 984] 380m:
“have filed the present special leave petition against the interim order: a dated November 22, 1983 of the Calcutta High Court in Civil Rule.
No.10933 W of 1983 and the rule for contempt -of court issued on.
” Februrary 3, 1984 in Civil-Rule No.:571 W of 1984, $ We have heard: _ ~, Shri Milon Banerjee, learned Additional Solicitor General for the~ ° ._ petitioners and Shri Soli Sorabjee, learned senior Advocate. for the respondents, . . ;
“We have already mentioned, that the High Court was not right: ‘ .
in granting interim relief in the terms in which it had done so. We, ~ therefore, vacate the interim order dated November 22, 1983 made ' by the Calcutta High Court. It has been pointed out to us that the Chief Controller of Imports & Exports has himself issued a Public’
-. Notice dated: 1st September, 1983 permitting re-shipment/re-export of import consignment which gould not be cleared consequent upon the Ministry of Commerce Import Trade Control Order No 27/83-
: dated the 24th August, 1983. The. Public .Notice empowers the.
. customs authority to allow re-shipment/re-export having regard to-
’ the extent to which foreign exchange spent-on import will bz earned. ~ back and subject to such other conditions relating | thereto as %he Customs authority may impose.’ We wish to make jit clear that, the:
vacating of the interim order will not disentitle’ the writ petitioners.
from seeking and taking advantage of the Public n notice ‘dated: September 1, 1983. .
“In regard to ‘the rute for contempt of court, we find it difficult. to sustain the same. Though ordinarily we would have. left the
" matter to be decided by the High Court, we think it’ unnecessary to-
: do so in “the present case having regard to the elaborate arguments addressed to us by both parties. The complaint of the writ peti- .
‘tioners in’ seeking the ‘rule for contempt of court ‘was that the:
authorities had not dealt with’ their applications for licences, etc... ~ despité the ‘abeyance’ order having been stayed. It is obvious that. . the stay of the operation of the ‘abeyance’ order merely meant that. . the writ petitioners were ‘entitled to have their applications ‘disposed. of by the concerned authorities. - The High Court not having set any limit of time for the disposal of the applications, it was not for the. ” writ petitioners to impése a time‘limit and dtmand that their applica---
- tions should be disposed of forthwith. If the writ Petitioners were
“ - aggrieved - by the failure of” their authorities to’ dispose of their applications expeditiously, it was open to them to-seek a further .- direction from the court to fixing a limit of time ‘within. which. . the
°
&
UNION vy. OSWAL WOOLLEN MILLS (Chinnappa Reddy, J.) 349 applications were to be disposed‘of. We fail to see how the Chief Controller of Imports & Expozts or the Deputy Chief Controller of Imports & Exports could be said to have committed any contempt of court, even prima facie, by their mere failure to take action, in
_ the matter of the disposal of the applications: ‘of the writ petitions.:
In the circumstances, we perceive’ the application to commit the _ authorities for contempt of court to be a device to exact licences from them. .
We accodingly allow the appeal, vacate the interim order dated
. November 22, 1983 of the Calcutta High Court in Civil Rule No. °
10933 W of 1983 and quash the rule for contempt of court issued on February 3, 1984 in Civil Rule No. 571 W of 1984,
Before we part t with the case we may refer toa statement made by Shri J.P. Sharma, Deputy Chief Controller of Imports and Ex-
~ports, New Delhi in the affidavit filed by him before us to the effect that ‘in the larger public interest Government was unable to obey the interim order and had-taken the question to this Hon’ble Court which is pending decision shortly’. Torn out of the context in which it was made, the unhappy language in which it has been expressed is suggestive of contumaciousness on the. part of J.P. Sharma. However, he-has filed further affidavits before us explaining the context in which the statement was made and © “oxpresting his | unqualified regret. We accept his explanation and expression of © regret. We are satisfied that Shri J.P. Sharma did not mean what the language employed by him suggested. Howevér, we. do wish to express our disapproval of the language employed which i is certainly
: suggestive of contumaciousness,
. ' od
- NV.K, Appeal allowed,