# DURGA PRASHAD v. CHIEF CONTROLLER OF IMPORTS & EXPORTS & ORS

- **Citation:** [1969] 2 S.C.R. 861
- **Court:** Supreme Court of India
- **Decided:** 1968-11-22
- **Case number:** Civil Appeal No. 1116 of 1965
- **Bench:** S. M. Sikri, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/durga-prashad-v-chief-controller-of-imports-exports-ors-4598
- **Pages:** 5

## Headnote

Constitution of India, Art. 226---Mandamus seeking import licenceDe/ay in filing writ petition-Relief if should be given.
The appellant who carried on the business. of export and import applied
'for an import licence to import certain goods.
The licence was issued in
1959 for only a part of the value applied for.
He filed appeals and exhausted all the remedies under para 85 of the order relating to the Export
Promotion Scheme, as a result of which finally in March 1962 he was
granted a supplementary licence to import a small part of the goods. In
April 1964, the appellant approached the Minister, and he was informed
that no further licence would be issued to him. Thereupon, the appellant
filed a petition under Art. 226 of the Constitution seeking a mandamus for
the issue of the import licence.
The High Court dismissed the petition
in limine but granted certificate under Art. 133(J)(a) of the Constitution.
HELD : The appeal must fail.
The petition under Art. 226 of the Constitution was filed after great
delay. No explanation was given in the petition for the delay in filing
the petition and it was not explained what the appellant was doing between
March 6. 1962, when the supplementary licence was issued, and April
J 964. The exchange position of this country and the policy of the Government regarding international trade, varies
from year to
year and it
would be rather odd for this Court to direct that an import licence be
granted in the year 1968 in respect of allegecl default committed by the
Government in 1959 or 1962.. In these matters it was essential that persons
who were aggrieved by orders of the Government should approach the High
Court after exhausting the remedies provided by law, rule or order with
utmost expedition.
Even in the case of alleged breach of fundamental
rights the matter must be left to the discretion of the High Court. [864 G,
865 BJ
Smt. Narayani Debi Khaitan v. State of Bihar, C.A. No. 140 of 1964
judgment dated September 22, 1964, Maharashtra State Road Transport
Corporation
v.
Shri Balwant Regular Motor Service, Amravati,
[1969]
1 S.C.R. 808 and Moon Mills v. Industrial Court, A.LR., 1967 S.C. 1450,
1453, 1454, referred to.

## Text

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861
DURGA PRASHAD
v.
CHIEF CONTROLLER OF IMPORTS & EXPORTS & ORS.
November 22, 1968
[S. M. SIKRI AND K. S. HEGDE, JJ.J
Constitution of India, Art. 226---Mandamus seeking import licenceDe/ay in filing writ petition-Relief if should be given.
The appellant who carried on the business. of export and import applied
'for an import licence to import certain goods.
The licence was issued in
1959 for only a part of the value applied for.
He filed appeals and exhausted all the remedies under para 85 of the order relating to the Export
Promotion Scheme, as a result of which finally in March 1962 he was
granted a supplementary licence to import a small part of the goods. In
April 1964, the appellant approached the Minister, and he was informed
that no further licence would be issued to him. Thereupon, the appellant
filed a petition under Art. 226 of the Constitution seeking a mandamus for
the issue of the import licence.
The High Court dismissed the petition
in limine but granted certificate under Art. 133(J)(a) of the Constitution.
HELD : The appeal must fail.
The petition under Art. 226 of the Constitution was filed after great
delay. No explanation was given in the petition for the delay in filing
the petition and it was not explained what the appellant was doing between
March 6. 1962, when the supplementary licence was issued, and April
J 964. The exchange position of this country and the policy of the Government regarding international trade, varies
from year to
year and it
would be rather odd for this Court to direct that an import licence be
granted in the year 1968 in respect of allegecl default committed by the
Government in 1959 or 1962.. In these matters it was essential that persons
who were aggrieved by orders of the Government should approach the High
Court after exhausting the remedies provided by law, rule or order with
utmost expedition.
Even in the case of alleged breach of fundamental
rights the matter must be left to the discretion of the High Court. [864 G,
865 BJ
Smt. Narayani Debi Khaitan v. State of Bihar, C.A. No. 140 of 1964
judgment dated September 22, 1964, Maharashtra State Road Transport
Corporation
v.
Shri Balwant Regular Motor Service, Amravati,
[1969]
1 S.C.R. 808 and Moon Mills v. Industrial Court, A.LR., 1967 S.C. 1450,
1453, 1454, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1116 of
1965.
Appeal from the order dated August 26, 1964 of the Punjab
High Court in Civil Writ No. 498-D of 1964.
H
M. C. Chag/a, Sardar Bahadur, Ajit Prasad lain, Vishnu B.
Saharya and Y ougindra Kaushalani, for the appellant.
Vi A. Seyid Muhammad and S. P. Nayar, for the respondents.
862
SUPREME COURT REPORTS
(1969) 2 S.C.R.
The Judgment of the Court was delivered by
Sikri, J. The appellant, Durga Prashad, filed a petition ~er
Art. 226 of the Constitution against the respondents. The ~gh
Court of Punjab, Circuit Bench, Delhi, d~smissed the
IJ<'.tltlon
in limine.
Thereupon the appellant applied for a certificate
under Art.
133 (l)(a) of the Constitution. The High C?Uit
gave this certificate on the ground that the value of the sub1ectmatter directly involved in the petition exceeds Rs. 20,000/·.
In our opinion this appeal must fail on the ground that the
petition under Art. 226 of the Constitution was filed after great
delay. The relevant facts are as under. The appellant was carrying on business of export and import, and exported goods of
the value of Rs. 8,10,325/-, F.O.B. value Rs. 8,03,530.45, during the period August 25, 1958,
to September 29,
1958.
On November 12,
1958,
the appellant applied for an
import licence for art silk yarn of the f.o. b. value of Rs.
8,03,530.45 nP under the Export Promotion Scheme. The Export
Promotion Scheme was discontinued with effect from March 6,
1959.
On October 9, 1959, import licence of the value of
Rs. 3,27,841/- only was issued to the appellant by the Joint Chief
Controller of Imports and Exports, Bombay. His appeal against
this order was rejected by the Joint Chief Controller on March
4, 1960. It is alleged by the appellant that he was not given a
hearing. The appellant filed a second appeal to the Chief Controller of Imports and Exports, and this was dismissed on April
22, 1961. Here again it is alleged that no hearing was given
to the appellant. He filed a representation against the order dated
April 22, 1961, and Of! that representation a supplementary
import licence for import of art silk yarn of the value of
Rs. 30,000/- was issued to the appellant. This exhausted all the
remedies he had under para 85 of the order relating to the Export
Prqmotion Scheme, but he instead of filing a writ chose to wait.
The appellant apparently approached the Minister of International
Trade by letter dated April 6, 1964--this is the Jetter referred to
in the letter of the Private Secretary to the Minister of International Trade-and the Piivate Secretary, vide his Jetter dated
April 16, 1964, wrote to him saying that his letter had been
passed on to the Chief Controller of Imports and Exports, New
Delhi, and if so desired the appellant may see him in the matter.
Apparently the Chief Controller invited him and on June 22.
1964, he was informed that no further licence would be issued
to him.
On August 24, 19.64. the appellant filed the petition
above-mentioned in the High Court.
No explanation has been
given in the petition for the delay in filing the petition and it has
not been explained what the appellant was dc>ing between March
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DURGA PRASHAD V. CONTROLLER IMPORTS & EXPORTS (Sikri, J.)8 63
5, 1962, when the supplementary licence was issued, and April
6, 1964.
It is well-settled that the relief under Art. 226 is discretionary,
and one ground for refusing relief under Art. 226 is that the pe~
tioner has filed the petition after delay for which there is no satisfactory explanation.
Gajendragadkar, C. J., speaking for the Constitution Bench,
in Smt. Narayani Debi Khaitan v.
The State of Bihar('),
observed.
"It is well-settled that under Art. 226, the power
of the High Court to issue an appropriate writ is discretionary.
There can be no doubt that if a citizen
moves the High Court under Art. 226 and contends that
his fundamental rights have been contravened by any
executive action, the High Court would naturally like
to give relief to him; but even in such a case, if the
petitioner has been guilty of !aches, and there are other
relevant circumstances which indicate that it would be
inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends
of justice may require that the High Court should refuse to issue a writ.
There can be little doubt that if
it is shown that a party moving the High Court under
Art. 226 for a writ ;,s, in substance, claiming a relief
which under the law of limitation was barred at the time
when the writ petition was filed, the High Court would
refuse to grant any relief in its writ jurisdiction.
No
hard and fast rule can be laid down as to when the High
Court should refuse to exercise its jurisdiction in favour
of a party who moves it after considerable delay and
is otherwise guilty of !aches. That is a matter which
must be left to the discretion of the High Court and
like all matters left to the discretion of the Court in
this matter too discretion must be exercised judicidusly
and reasonably."
Relying on the judgment of this Court in Maharashtra State
Road Transport Corporation v. Shri Ba/want
Re{fu/ar
Motor
Service, Amravati(2 ) the learned counsel for the appellant contends
that the delay should not debar him from seeking relief because
the respondents have not suffered in any manner because of the
delay. In this case Ramaswami, J., speaking for the Court referred to an earlier decision in Moon Mills v. Industrial Court(").
(!) C.A. No. 140 of 1964; judgment dated September 22, 1964.
(2) [1969] 1 S.C.R. 818.
(3) A.I.R. 1967 S.C. 1450, 53, 54 .
L 6 Sup CI/69- 4
864
SUPREME COURT REPORTS
[1969] 2 s.c.R.
In that case Ramaswami, J., speaking for the Court, observed :
"It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also tru~ that
the writ will not be granted if there is such negilgence
or omission on the part of the applicant to assert his
right as, taken in conjunction with the lapse of time
and other circumstances, causes prejudice to the adverse
party. The principle is to a great extent, though not
identical with, similar to the exercise of discretion in the
Court of Chancery."
It would be noticed that Ramaswami, J., had first examined the
question of delay and came to a finding that in fact there was no
delay.
Ramaswami, J., observed:
"On behalf of the respondent Mr. B. Sen, however,
pointed out that the conduct of the appellant does not
entitle it to the grant of a writ, because it has been
guilty of acquiescence or delay. It was pointed out that
the award of Mr. Bhat was given on April 25, 1958,
but an application to the High Court for grant of a writ
was made long after on November 16, 1959. We do
not think there is any substance in this argument, because the second respondent had made an application,
dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that
application by a Written Statement, dated September 15,
1958. The Labour Court allowed the application on
August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The
decision of the Industrial Court was given on October
24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November 16, 1959."
The appellant in this case had claimed a mandamus or a
direction to the respondents to issue to the appellant import licence
for art silk yarn of the value of Rs. 8,03,530.45. It is well-known
that the exchange position of this country and the policy of the
Government regarding International trade varies 'from year to
year and it would be rather odd for this Court to direct that an
import licence be granted in the year 1968 in respect of alleged
default committed by the Government in 1959 or 1962. In these
matters it is essential that persons who are aggrieved by orders
of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost
expedition.
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DURGA PRASHAD V. CONTROLLER IMPORTS & EXPORTS (Sikri, f,) 86 5
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The learned counsel for the appellant contends that this matter involved fundamental rights and this Court at least should
not refuse to give relief on the ground of delay. But we are exercising our jurisdiction not under Art. 32 but under Art. 226, and
as observed by Gajendragadkar, C.J., in the passage extracted
above, even in the case of alleged breach of fundamental rights
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the matter must be left to the discretion of the High Court.
In the result the appeal fails.
Parties will bear their own
costs.
Y.P.
Appeal dismissed.