judgement:
ivil Appeal Nos. 1181 to 1186 (NT) of 1974 From the Judgment and order dated 16th February, 1973 of the Calcutta High Court in Matter No. 198 of 1968.
C S.C. Manchanda, K.C. Dua and Miss A. Subhashini for the Appellant.
D.N. Gupta, (not present) for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
These appeals by certificate granted by the High Court of Calcutta are directed against a judgment of the High Court disposing of six wealth tax references on the following questions of law: E "I.
Whether on the facts and in the circumstances of the case, the Tribunal is right in holding that the assessee who has a life interest in the testamentary trust estate of late C.H. Kinnison comprising inter alia of the shares in an Indian company and commission from the managing agency of an Indian Company can be said to have an interest in such shares and commission and that such interest is property located in India so as to be taxable under the Wealth Tax Act? 2.
Whether on the facts and in the circumstances of the case, the Tribunal is right in holding that the life interest of the assessee in the testamentary trust estate of late C.H.Kinnison is not an annuity which is exempt under Section 2(e)(iv) of the Wealth Tax Act?" Heilgers & Co. were managing agents of the Kinnison Jute Mills H 678 Co. Ltd and the Naihati Jute Mills Co. Ltd, both Indian companies, for several years Heilgers & Co. entered into a sub partnership from time to time with James Alexander Kinnison under which the two shared equally the emoluments from the managing agency.
The last of such sub partnership agreements was entered into on December 16, 1907 Kinnison died on April 13, 1916 leaving a will dated June 2, 1916 under which he gave all his property to his wife Helen.
Helen Kinnison executed two deeds of assignment dated December 12, 1927 assigning her share of the emoluments under the sub partnership in favour of her son Clive Hastings Kinnison.
Thereafter the son began to receive the half share of emoluments from the managing agency.
On February 25? 1935 Clive Hastings Kinnison executed a will appointing his wife, olive Kinnison, and one William John Collyer, a solicitor, as executors and trustees, and under the terms of the will be gave a pecuniary legacy of f 5000 to his wife and devised and bequeated his real and personal estate to the trustees upon trust to apply the income from the trust estate in accordance with the provisions of the will, Clive Hastings Kinnison, who was domiciled in England, died on March 9, 1943.
The High Court of Justice in England granted probate of the will on June 1, 1943.
The net value of the personal estate was determined at 7, 73, 978 and the estate duty payable in the United Kingdom amounted to 5, 34, 544 l0 section 5 d. Letters of Ad ministration were obtained in India on August 23. 1944 and the stamp duty paid at the time of obtaining the Letters of Administration amounted to Rs.4,44,258.
The widow, olive Kinnison, was non resident and not a citizen of India.
The question arose whether she was liable to wealth tax on her interest in the Indian assets in the hands of the trustees.
The average income dervied by her during the three years preceding the date of valuation, March 9, 1957 relevant to the assessment year 1957 58 totalled Rs.3,25,585.
She was then 63 years of age.
Taking the average income into account and applying the appropriate multiplying factor in order to arrive at the capital value of the assets in her hands, the Wealth Tax officer computed the net wealth at Rs.20,34,906.
Adopting the assessment year 1957 58 as typical of these years, similar wealth tax assessments were made for the assessment years 1958 59 to 1962 63.
The assessee appealed against the wealth tax assessments before 679 the Appellate Assistant Commissioner and contended that she was a non resident and that the value of the assets located outside India should be excluded in computing the total wealth.
The corpus of the trust consisted of certain shares in an Indian company and the income from the managing agency of the Indian Companies.
The contention was repelled by the Appellate Assistant Commissioner, who held that the assessee possessed rights and interest in the shares and the managing agency which were tangible moveable properties located in India and, therefore, subject to wealth tax under the Wealth Tax Act.
He rejected also the contention regarding the valuation of the assets.
The assessee then appealed for all the six assessment years to the Appellate Tribunal.
She contended that the assets held by her were situated outside India, and being a non resident she was not taxable thereon.
Alternatively.
she urged that she was entitled to exemption under sub clause (iv) of clause (e) of section 2 of the Wealth Tax Act.
The Appellate Tribunal did not accept either contention and dismissed the appeals.
At the instance of the assessee the Appellate Tribunal referred the two questions of law set out earlier to the High Court of Calcutta for each of six assessment years.
By its judgment dated February 16, 1973 the High Court answered the first question in favour of the assessee and against the Revenue and the second question in favour of the Revenue and against the assessee.
Thereafter the Revenue obtained a certificate under section 29 of the Wealth Tax Act to enable it to prefer an appeal to this Court against the judgment of the High Court on the first question.
In this appeal we are concerned solely with the question whether the assessee is entitled to the benefit of cluase (i) of section 6 of the Wealth 1: Tax Act.
Clause (i) of section 6 provides: "6.
In computing the net wealth of an individual who is not a citizen of India, or of an individual or a Hindu undivided family not resident in India or resident but not ordinarily resident in India, or of a company not resident in India (i during the year ending on the valuation date (i) the value of the assets and debts located outside India; (ii) xx xx xx 680 shall not be taken into account.
" The clause provides for the exclusion of the value of the assets and debts located outside India when computing the net wealth of an individual who is not a citizen of India or not resident in India or resident but not ordinarily resident in India.
It is not disputed that the assessee is a non resident, and therefore, the only question is whether during the year ending on the valuation date her life interest in the testamentary estate of her husband Clive Hastings Kinnison consisting of the Indian shares and the commission from the managing agency of the India companies could be said to constitute an asset located outside India.
To resolve the question it is necessary to advert to some of the provisions of the will executed by Clive Hastings Kinnison.
After setting forth certain bequests, including one of a pecuniary legacy to the assessee in the sum of 5000 to be paid to her upon his death, the testator devised and bequeated all his real and personal estate to two trustees upon trust that they would at such time and in such manner as they thought fit sell, call in and convert into money such parts of this estate as may not consist of money, postponing such sale and conversion for such period as they thought proper, but all this without diminishing or abridging their statutory power of appropriation and without affecting the treatment and application of the income accruing from the estate for the time being remaining unsold from the time of the testator 's death as if it was income from investments directed under the will.
The trustees were enjoined, after meeting the funeral and testamentary expenses and debts and legacies, to invest the residue of the ready monies arising from such calling in and conversion of the estate, with the consent of the assessee during her life and afterwards at the discretion of the trustees, in the investments authorised under the will and to transpose such investments into others, and to stand possessed for the residue of such monies and all investments and the income thereof upon trust subject to the further powers and provisions declared under the will.
It was provided that the trustees would pay .
the income of the residuary trust fund to the assessee during her life.
After the death of the assessee the trustees would stand possessed of the residuary trust fund in trust for the benefit of the testator 's children in accordance with the further provisions of the will.
The trustees were also empowered to exercise the power of appropriation conferred upon a personal representative by section 41 of the Administration of Estate Act, 1925.
They were also empowered to determine what articles 681 would pass under any specific bequest contained in the will and to A determine whether any monies were to be considered as capital or income, and whether and in what manner any expenses or other payments ought to be borne or paid out of capital or income or apportioned between capital and income and how valuations were to be made for any purpose of hotchpot advancement or appropriation or otherwise.
The High Court observed that ordinarily, as the shares and managing agency were both located in India, the right of the assessee to receive income out of such trust property from the trustees would have constituted an asset located in lndia for the purposes of the Wealth Tax Act, but it held that having regard to the nature and character of that right considered together with the provisions relating to the intervention of the trustees and the special directions and powers given to them the asset must be regarded as located outside India.
That conclusion, said the High Court, arises from the nature and extent of the powers conferred on the trustees to deal with the estate before the assessee could be said to have any right to the residual income.
The High Court observed that the testator intended that his property should be converted into personalty and he gave the necessary directions to the trustees to dispose of the estate or part thereof by sale.
It was pointed out that the testator never intended that the assessee should have any share in the trust properties, including the managing agency and the shares of the Indian companies, nor could the assessee in her capacity as beneficiary enter into possession of any of the trust properties nor claim any right of ownership in any of the trust properties, including the managing agency and the share.
In the opinion of the High Court, the right which the assessee acquired under the trust was a right to have the trust administered in accordance with the provisions of the will.
While the legal ownership of the trust properties including the shares and the managing agency vested in the trustees and remained so vested, the beneficial interest of the assessee did not extend to any right in any of the trust properties in specie and did not confer upon her any right of ownership over any property.
Having regard to the fact that the settlement under the will was an English settlement, created by the will of a testator who was an Englishman and resident of England, and the will being an English will which was proved in England, and the trustees to the settlement being residents of England, and the assessee, the beneficiary, was an English woman who resided in England, the appropriate forum for the administration of the trust estate and for enforcement of the rights of the beneficiary under the will were the 682 appropriate courts in England.
The High Court observed that the right of the assessee was a right in the nature of a chose in action enforceable in the appropriate courts of England, that the nature and character of the asset must be considered to be foreign in quality, and that the assets of the assessee must be regarded as foreign assets and therefore not located in India.
In conclusion, the High Court held that the assesses was entitled to the benefit of cluase (i) of section 6 of the Wealth Tax Act.
It will be evident from a perusal of the judgment under appeal that in reaching its conclusions the High Court relied principally on Attorney General vs Johnson, In that case the testator, who at the time of his death was entitled to a certain tea estate in Upper Assam, executed a will appointing two executors and trustees, and after bequeathing certain legacies he left the residue of his real and personal estate to the trustees upon trust to sell the residuary estate (as did not already consist of money) and, after paying the legacies enumerated in the will, to invest the residue of the net moneys in the investments mentioned in the will.
The trustees were directed to apply the annual income arising from the residuary estate and investments thereof to the payment of life annuities to certain persons, including one Marie Graf.
The remainder, if any, of the annual income was to be distributed between a number of persons, including Henry James Reeves and the said Marie Graf.
The trustees were also directed that until the sale of the estate they were to carry on the trade or business of a tea planter (which had been carried on by the testator), and for that purpose to employ the existing capital and such additional capital as they considered fit to draw from the residuary estate.
Henry James Reeves and Marie Graf died a few years after the death of the testator, and the tea estate remained unsold when the proceedings commenced which have rise to the litigation.
The King 's Bench Division of the High Court held that the share of the deceased beneficiaries, Henry James Reeves and Marie Graf, in the surplus income and in the annuities constituted property not situate out of the United Kingdom and, therefore, liable to estate duty and succession duty under the English law.
Bray, J., who delivered the judgment, held that it was the intention of the testator that his property should be converted into personality, and he had given a direction to his trustees to sell, that he had never intended that the beneficiaries named in the will should have any share of his real estate or of his business, and that therefore, they could never enter into possession.
The learned Judge emphasised that the testator wished the estate to be dealt with and 683 managed by his trustees, and not by the beneficiaries.
The testator A merely gave the latter the right of having the trusts of the will administered in the proper forum, namely, in the Courts of England, and the net surplus divided amongst them.
He pointed out that it was an English chose in action.
In reaching this conclusion, the learned Judge relied on the observations of Lopes L.J., in Attorney General vs Lord Sudeley, [1896] I Q.B. 354 and Romer, J. in in re Smyth [1898] I Ch.
The former of the two cases was affirmed in appeal by the House of Lords in Sudeley (Lord) vs Attorney General, [1897].
Appeal Cases 11.
As that case was the subject of considerable comment in the Courts in England, reference may be made appropriately to what was said there.
The testator executed a will in which, after bequeathing various legacies and annuities, he gave all the residue of his real and personal estate to two executors upon trust to pay the income to his wife and after her death to distribute it between his brother and certain other persons.
The executors and trustees were to leave the residuary personal estate invested as they found it at the time of the testator 's death unless they considered it proper to change any investment.
By a codicil he revoked the gift to his brother and gave that share to his wife absolutely.
The testator was domiciled in England, and upon his death the will and codicil were proved in England by his executors, who were themselves domiciled in England, but the testator 's estate included mortgages of real estate in New Zealand.
The wife died in 1893, and her will likewise was proved in England by her executors (the appellants), two of whom were also her husband 's executors.
In estimating the probate duty payable upon her one fourth share of her husband 's residuary personal estate, the appellants excluded the value of the New Zealand mortgages.
The Attorney General claimed that one forth of the value of the New Zealand mortgages ought to have been included for the purposes of probate duty.
In resisting the claim the appellants stated that at the time of the wife 's death her husband 's personal estate had not been fully administered and was in the course of administration, that one legacy given by the will then remained unpaid, and that the amount of the clear residue had not yet been ascertained but it was envisaged that there would be a large residue excluding the New Zealand mortgages over and above the debts and legacies.
It asserted that no appropriation had been made of the New Ci Zealand mortgages, nor of any securities or portions of securities to particular shares of the net ultimate residue.
The House of Lords held that the right of the wife 's executors did not extend to one fourth or any part of the mortgages in specie but consisted of the right to require her husband 's executors to administer his personal estate and to receive from them a one fourth part of the clear residue, and that this H 684 was an English asset of the wife 's estate, and therefore, probate duty was payable under her will upon one fourth part of the value of the New Zealand mortgages.
Lord Halsbury, L.C. Observed: "Now, if the only things that the legatee is entitled to is the fourth share of an ascertained residuary estate, I say that to 13 my mind it is impossible to maintain that the character of any part of that estate can be ascertained so as to make it possess a specific locality until that has happened; it is a condition precedent to know what the residuary estate is, and until that has been ascertained you cannot tell of what it will consist.
The right of the person to bring an action or to insist upon the performance of the trust may be one thing; but I want to know what the things is, and until I ascertain that, and until the thing comes into existence, it appears to me the question does not arise.
Well, if that is right, then the thing that the legatee is entitled to, call it a debt, call it something that must be administered either by trustee or executor, the character of that, the local charac ter, is fixed by the persons, call them debtors or call them trustees, I do not care which.
Under these circumstances it appears to me there can be but one answer to the question, and that is that the debtors are here and have to administer here.
The fixing of the character of the asset by the presence of the debtor may or may not have been logical, but it is so; and if it is a debt and the debtor is here, that is the character of the asset as fixed by the residence of the debtor, and the asset is English.
" To the same effect, Lord Herschell pointed out: " . . until the estate is fully administered it is impossible to say of what assets the residuary estate will consist; we do not know how much the amount of the debt remaining unpaid was in the present case, and there was only one legacy unpaid.
In truth, the right she had was to require the executors of her husband to administer his estate completely, and she had an interest to the extent of one fourth in what should prove to be the residuary estate of the testator, Algernon Tollemache.
Well, where was that situate? It seems to me that it can only be said to have been situate in this country." 685 Lord Macnaghten and Lord Shand were of the same opinion.
Lord A Davey pointed out that at the time of the lady 's death the testator 's personal estate had not been fully administered and the amount of the clear residue had not been ascertained, and that the lady "at the time of her death had no right of property in or right to claim any part of the mortgages in specie, and that the appellants, her executors, acquired only a right to have the estate duly administered and to enforce that right by an action for the purpose." In Philips on Stow and others vs Inland Revenue Commissioners [1961] Appeal Cases 727 the House of Lords doubted the correctness of Attorney General vs Johnson (supra), and in Skinner and others vs
Attorney General, and in In re SMITH,.
Deed, Executor Trustee and Agency Company of South Australia Ld.
Inland Revenue Commissioners [1931] I Ch 360 considerable difficulty was expressed by the Court in following Sudeley (Lord) vs Attorney General (supra).
But subsequently the Judicial committee of the Privy Council in Commissioner of Stamp Duties (Queensland) vs Hugh Duncan Livingston, [1965] Appeal Cases 694 pointed out that Sudeley (Lord) vs Attorney General (supra) had been reaffirmed by the House of Lords in Dr. Barnardo 's Homes vs Special Incomc Tax Commissioner [1921] 2 Appeal Cases 1 and that it was in no way qualified by Skinner and others vs Attorney General (supra).
In our own country, the Madras High Court has held in A. & F. Harvey Ltd. as Agents to Executors of the Estate of late Andrew Harvey vs Commissioner of Wealth Tax, [19771 a case where under the terms of a will executed and probated in England, the beneficiary, who was a resident in England, was to be paid by the executors who were also in England, the dividends on certain shares of a company in India, that the right which the beneficiary had was merely a right to proceed against executors for the purpose of claiming the income referable to the shares in question, and that such right could not be regarded as an asset situated in India, and therefore, the value thereof could not be brought to tax under the Wealth Tax Act.
ln the present case, it does not appear that on the relevant valuation dates the estate of the testator had been completely and finally administered and that the trustees had proceeded to the point where it could be said that there was a clear and ascertained residue from which the income payable to the assesee as a beneficiary under the will could be known, and whether the assessee was entitled to income arising from the Indian shares and the managing agency of the Indian com H 686 panies.
All that the assessee was entitled to on the valuation dates was the right to have the trust administered and, as the High Court has observed, having regard to the several considerations patent in this case that the settlement was an English settlement, created by, an Englishman who was resident in England, that it was an English will proved in England and the trustees were residents in England.
and moreover that the assessee, the beneficiary, was an English woman who was also residing in England, therefore the proper forum for the enforcement of the rights of the beneficiary under the will was the appropriate Court in England.
We agree with the High Court that asset in question was a right in the nature of a chose in action enforceable in England.
The right of the assessee was a right enforceable in that Court and, therefore, must be regarded as a foreign asset, an asset not located in India.
We affirm the answer returned by the High Court to the first question referred to it, and agree that the question must be answered in the negative, in favour of the assessee and against the Revenue and that the appeal must, therefore, be dismissed.
As the respondent has not entered appearance in this appeal there is no order as to costs.
P.S.S. Appeals dismissed.

summary/full:
'A ', a company, the managing agents of two Indian companies entered into a sub partnership with one 'B ' in 1907 and shared equally the emoluments from the managing agency. 'B ' died in 1316 leaving a Will bequeathing all his property to his wife 'C '. 'C ' executed two deeds of assignment in 1927 assigning her share of the emoluments under the sub partnership in favour of her son 'D ', who began to receive the half share of the emoluments from the managing agency. 'D ' executed a Will in 1935 appointing his wife and a solicitor as executors and trustees upon trust of his real and personal estate. 'D ' who was domiciled in England died in 1943.
The High Court in England granted probate of the Will in June, 1943.
Letters of Administration were obtained in India in August, 1944.
The widow of 'D ' was a non resident and not a citizen of India.
The Will inter alia empowered the two trustees to sell, call in and convert into money such parts of the estate as may not consist of money, at such time and in such manner as they thought fit, postponing such sale and conversion for such period as they thought proper.
They were enjoined after meeting the funeral and testamentary expenses, and debts and legacies to invest the residue of the ready monies arising from such calling in and conversion of the estate, with the consent of the assessee during her life and afterwards at the discretion of the trustees, in the investments authorised under the Will and to transpose with investments into others, and to stand possessed of the residue of such monies and all investments and the income thereof upon trust subject to the further powers and provisions declared under the Will.
It was provided that the trustees would pay the income of the residuary trust fund to the assessee during her life.
After the death of the assessee the trustees would stand possessed of the residuary trust fund in trust for 675 the benefit of the testator 's children in accordance with the further provisions of the Will.
The corpus of the trust consisted of certain shares in an Indian company and the income from the managing agency of the Indian companies.
The question that arose was whether the widow of 'D ' was liable to wealth tax on her interest in the Indian assets in the hands of the trustees.
The Wealth Tax officer assessed her to tax for the assessment years; 1957 58 to 1962 63.
The appeals filed against the assessments were dismissed by the Appellate Assistant Commissioner, who held that the assessee possessed rights and interest in the shares and the managing agency which were tangible moveable properties located in India and, therefore, subject to wealth tax under the Act.
In appeals before the Appellate Tribunal it was contended by the assessee that the assets held by her were situated outside India and being a non resident she was not taxable thereon.
Alternatively it was urged that she was entitled to exemption under sub cl.
(iv) of cl.
(e) of s.2 of the Wealth Tax Act.
The Tribunal held that the assessee who has a life interest in the testamentary trust estate comprising inter alia of the shares in an Indian Company and commission from the managing agency of an Indian Company can be said to have an interest in such shares and commission and that such interest is property located in India so as to be taxable under the Wealth Tax Act.
It further held that the life interest of the assesee in the testamentary trust estate is not an annuity which is exempt under section 2(e)(iv) of the Wealth Tax Act.
The matter was referred to the High Court at the instance of the assessee.
It took the view that the right which the assessee acquired h under the trust was a right to have the trust administered in accordance with the provisions of the Will.
While the legal ownership of the trust properties including the shares and the managing agency, vested in the trustees and remained so vested, the beneficial interest of the assessee did not extend to any right in any of the trust properties in specie and did not confer upon her any right of ownership over any property.
(, Having regard to the nature and character of the right considered with the nature and extent of the powers conferred on the trustees to deal with the estate before the assessee could be said to have any right to the residual income, and the fact that the appropriate forum for the administration of the trust estate and for enforcement of the rights of the beneficiary under the Will were the appropriate courts in England, I I 676 the High Court held that the assets of the assessee must be regarded as foreign assets and, therefore, not located in India.
The Revenue obtained a certificate under section 23 of the Act and preferred appeals to this Court On the question whether during the year ending on the valuation date the assessee 's life interest in the testamentary estate of her husband consisting of the Indian shares and the commission from the managing agency of the Indian companies could be said to constitute an asset located outside India, and whether the assessee was entitled to the benefit of cl.
(i) of section 6 of the Wealth Tax Act.
Dismissing the Appeals, ^ HELD: The asset in question of the assessee was a right in the nature of a chose in action enforceable in an appropriate Court in England and, therefore, must be regarded as a foreign asset, an asset not located in India.
The assessee was, therefore, entitled to the benefit of cl.
(i) of section 6 of the Wealth Tax Act.
[686C] On the relevant valuation dates the estate of the testator had not been completely and finally administered and the trustees had not proceeded to the point where it could be said that there was a clear and ascertained residue from which the income payable to the assessee as a beneficiary under the Will could be known, and whether the assessee was entitled to income arising from the Indian shares and the managing agency of the lndian Companies.
All that the assessee was then entitled to was the right to have the trust administered.
[685G H; 686A] Having regard to the several considerations patent in this case that the settlement was an English settlement created by an Englishman who was resident in England, that it was an English Will proved in England, and the trustees were residents in England and moreover that the assessee, the beneficiary, was an English woman, who was also residing in England, the High Court rightly held that the right of assessee was in the nature of chose in action enforceable in England.
[686B C] Attorney General vs Johnson, ; In re Smyth, [1898] 1 Ch. 89; Sudeley (Lord) vs Attorney General, [1897] Appeal Cases 11; Philipson Stow and others vs Inland Revenue Commissioners, [1961] Appeal Cases 727; Skinner and others vs Attorney General, ; In re Smith, Decd.
Executor Trustee and Agency 677 Company of South Australia Ld.
vs Inland Revenue Commissioners, A [1951] I Ch 360; Commissioner of Stamp Duties (Queensland) vs Hugh Duncan Livingston, [1965] Appeal Cases 694; Dr. Barnardo 's Homes vs Special Income Tax Commissioners, [1921] 2 Appeal Cases 1; A. & F. Harvey Ltd. as Agents to Executors of the Estate of late Andrew Harvey vs Commissioner of Wealth Tax, , referred to.


judgement:
Civil Misc.
Petitions Nos.
20021 22 of 1986.
in Civil Appeal No. 2924 of 1984.
From the Judgment and order dated 22.7.1983 of the Delhi High Court in W.P. No. 963 of 1982.
S.N. Kacker, P.M. Amin, Atul, B. Munim and Ashok Grover for the Applicant.
A.K. Ganguli, Miss Sushma Relan and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These two Civil Misc.
Petitions are by Star Diamond Company India.
The applicant has referred to the judgments of this Court in Raj Prakash 's case dated 5th March, 1986 and Indo Afghan Chamber of Commerce 's case ; dated 15th May, 1986.
The applicant states that the applicant was neither a party nor was served with any notice of the said proceedings resulting in the.
said two decisions.
According to the applicant, it was not bound by the directions therein.
We are unable to accept the said contentions.
Such decisions of Court laying down the position in law are laws binding on all.
In the order of this Court dated 18th April, 1985, the question of 783 entitlement under certain circumstances came up for consideration.
The Government had wrongfully refused to allow Export House Certificates to those who had not diversified their exports.
It was held by this Court following the decisions of several High Courts that this was wrong.
This Court in the order dated 18th April, 1985 in Civil Appeal No. 1423 of 1984, (a) confirmed the orders of the High Court, quashed the impugned orders of the Government and directed the Government to issue necessary Export House Certificates for the year 1978 79; (b) It was further directed that Export House Certificates should be granted within three months from this date.
(c) Save and except items which are 'specifically banned under the prevalent import policy at the time of import ', the parties the merchants would be entitled to import all other items whether canalised or uncanalised, and in accordance with the relevant rules.
Both canalised and uncanalised items could be imported in accordance with the relevant rules except those which were specifically banned under the prevalent import policy at the time of import.
The effect of this direction came to be considered in Raj Prakash Chemicals Ltd. vs Union of India (supra).
We have this date explained the effect of the same in Union of India vs M/s Godrej Soaps Pvt. Ltd & Anr., (Civil Appeal No. 3418/86 arising out of SLP (Civil) No. 8144 of 1986).
This question further came up for examination in the case of M/s Indo Afghan Chamber of Commerce & Ors.
vs Union of India, (Writ Petition No. 199 of 1986) (supra).
This day we have also in the judgment in M/s Godrej Soap 's case explained the true purport of the said decision.
The respondents have not permitted, according to the applicant clearance of the goods in view of the said two decisions referred to hereinbefore.
The case of the applicant is that it is not bound as the applicant was neither a party to any of the aforesaid proceedings nor any notice was given.
We are unable to accept this position.
For what we held in the said two decisions, we crave leave to refer to the said two decisions.
We reiterate as we have mentioned in M/s Godrej Soaps ' case whether importation of canalised items would be covered by the order was not adverted to in the first order dated 18th April, 1985.
Use of the expression "whether canalised or not" was intended to convey that both canalised and non canalised items would be covered within the ambit of the order.
The position has been clarified by the letter dated 18th June, 1986 written by the respondent which appears at page 132 of the Paper 784 Book.
It has been mentioned that the holders of additional licence issued for 1978 79 would be entitled to import only those goods which are included in Appendix 6 Part 11 of AM 85 88.
The fact that the Additional Secretary to the Government of India, Ministry of Finance (Department of Revenue) on 23rd April, 1986 wrote a letter which is not in consonance with the subsequent direction would not in any way affect the position or create any estoppel.
Nor can such a letter be used as an argument that that was the government 's understanding of the matter.
That is irrelevant.
In the premises the interim order prayed for in these applications is refused.
The applications are thus disposed of.
There will be no order as to costs.

dataset_name: IN-Abs

summary/full:
This Court by its order dated 18th April 1985 in Union of India vs Rajnikant Bros. (Civil Appeal No. 1423 of 1984) directed that save and except items which were specifically banned under the prevalent Import Policy at the time of import, parties would be entitled to import all other items whether 'canalised ' or 'uncanalised ' and in accordance with the relevant rules.
The effect of this direction came to be considered in Raj Prakash Chemicals Ltd. vs Union of India, , and M/s. Indo Afghan Chamber of Commerce & Ors.
vs Union of India, (AIR The effect has also been explained in Union of India vs M/s. Godrej Soaps Pvt. Ltd., (S.L.P.No. 8144 of 1986).
The applicant was neither a party nor was served with any notice of the aforesaid proceedings.
The respondents having not permitted clearance of its goods in view of the decisions in Prakash 's case and Indo Afghan Chamber of Commerce 's case the applicant filed petitions contending that it was not bound by the directions contained therein.
Disposing of the petitions, the Court, ^ HELD: Decisions of this Court laying down the position in law, are laws binding on all.
[782 G] 782 Whether importation of canalised items would be covered by the order was not adverted to in the first order dated 18th April, 1985.
Use of the expression "Whether canalised or not" was intended to convey that both canalised and non canalised items would be covered within the ambit of the order.
[783 G] The position has been clarified by the respondent 's letter dated June 18, 1986.
The Government of India 's letter dated April 23, 1986 which is not in consonance with the subsequent direction, would not in any way affect the position or create any estoppel.
Nor can such a letter be used as an argument that that was the Government 's understanding of the matter.
[783 H: 784 A B]


judgement:
Special Leave Petition No. 8862 of 1986 From the Judgment and order dated 26.3.1986 of the Karnataka High Court in C.R.P. 3084 of 1985.
Padmanabha Mahale, K.K. Gupta and Mrs. Leelawati Mahale for the Petitioner.
The order of the Court was delivered by SEN, J.
In this special leave petition the short point involved is whether by reason of sub r.
(2) of r. 92 of order XXI of the Code of Civil Procedure, 1908, the deposit required by r. 89 not having been 736 made within thirty days from the date of sale, the application made by the judgment debtor was not maintainable.
Sub r.
(2) of r. 92 has been amended by section 72 of the Code of Civil Procedure (Amendment) Act, 1976 by adding the words "the deposit required by that rule is made within thirty days from the date of sale", the following ' 'or in cases where the amount deposited under rule 89. within such time as may be fixed by the Court" to prevent any controversy as to the power of the Court to extend the time to make good the deficit.
Unfortunately, the words added speak of the deficiency owing to 'any clerical or arithmetical mistake ' on the part of the depositor.
The amended r. 92(2) now reads: "92(2).
Where such application is made and allowed, and where, in the case of an application under rule 89, the deposit required by that rule is made within thirty days from the date of sale, or in cases where the amount deposited under Rule 89 is found to be dificient owing to any clerical or arithmetical mistake on the part of the depositor and such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale: Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
" The failure to deposit the amount entails confirmation of sale under O.XXI, r. 91(1) and thereupon the sale becomes absolute.
The limitation prescribed for an application under O.XXI, r. 89 was thirty days from the date of sale under Schedule I, article 166 of the Limitation Act, 1908, now replaced by article 127 of the .
The words "may apply to have the sale set aside on his depositing in Court" etc.
show that not only the application, but also the deposit, should be made within thirty days from the date of sale.
It is not enough to make the application within thirty days.
Nor is it enough to make the deposit within thirty days.
Both the application and the deposit must be made within thirty days from the date of sale.
article 127 of the has now been amended by Act 104 of 1976 and the words 'sixty days ' have now been substituted for the words 'thirty days '.
As a result of the amendment, the limitation for an application to set aside a sale in execution of a decree, including any such application by a judgment debtor under O.XXI, r. 89 or r. 90 is therefore sixty days now.
Such being the law, there is need for an appropriate amendment of sub r.
737 (2) of r. 92 of the Code.
Under O.XXI, r. 89 as it now exists, both the application and the deposit must be made within thirty days of the sale.
The failure to make such deposit within the time allowed at once attracts the consequences set forth in sub r.
(2) of r. 92.
This is an unfortunate state of things and Parliament must enact the necessary change in law.
In the present case, the auction was held on July 26, 1985.
The decree holder brought to sale in execution of a money decree for Rs.21,948.45p., the property of judgment debtor No. 1 comprised of a house and open site appurtenant thereto.
The highest bid of Rs.22,500 offered by the auction purchaser was accepted and the bid was knocked down in his favour.
The executing Court fixed the case for confirmation of sale on September 30, 1985.
In the meanwhile, judgment debtor No. 1 deposited Rs.22,000 on August 29, 1985 towards payment of the decretal amount together with an application under O.XXI, r. 90 read with section 151 of the Code for setting aside the sale.
Again, on September 6, 1985 he made another application purporting to be under O.XXI, r. 89 read with section 151 of the Code and made a deposit of the balance amount.
The auction purchaser objected to the entertainment of the application contending inter alia that the deposit required by r. 89 not having been made within thirty days of the date of sale as required by r. 92(2) of the Code, the sale was liable to be confirmed under sub r.
(1) thereof.
It is undisputed that the judgment debtor has deposited the entire decretal amount together with 5% of the purchase money by way of commission to the petitioner auction purchaser.
The Principal Munsif, Dharwar by his order dated October 4, 1985 overruled the objection raised by the petitioner.
A learned Single Judge (Kulkarni, J.) by his judgment dated March 26, 1986 declined to interfere with the order of the learned Munsif setting aside the sale.
The learned Judge relying upon the decision of the Madras High Court in Thangammal & Ors.
vs K. Dhanalakshmi & Anr., AIR 1981 Mad.
254 held that the provisions of O.XXI, rr. 89 and 92(2) of the Code and that of article 127 of the should receive a harmonious construction.
In that view, the learned Judge held that the judgment debtor No. 1 having deposited the decretal amount together with 5% of the purchase money and having made the application under O.XXI, r. 89 of the Code within sixty days of the sale i.e. within the period as provided by article 127 of the , the sale was liable to be set aside.
The learned Single Judge has brought about the inconsistency between sub r.
(2) of r. 92 of O.XXI of the Code and article 127 of the Limitation 738 Act and suggested that steps should be taken to remove this inconsistency.
We fully endorse the view expressed by the learned Single Judge.
In the result, the special leave petition must fail and is dismissed.
A.P.J. Petition dismissed.

summary/full:
The auction of the property of judgment debtor No. 1, in execution of a money decree, was held on July 26, 1985.
The highest bid of Rs.22,000 offered by the auction purchaser was accepted.
The case for confirmation of sale was fixed on September 30, 1985.
In the mean while, judgment debtor No. l deposited the bid amount on August 29, 1985 together with an application under O,XXI,r.90 read with section 151 of the Civil Procedure Code for setting aside the sale.
On September 6, 1985, he made another application under O.XXI r. 89 read with section 151 of the Code and made a deposit of the balance amount.
The objection raised by the auction purchaser that the deposit required by r. 89 not having been made within 30 days of the date of the sale as required by r. 92(2) of the Code, the sale was liable to be con firmed under sub r.
(1) thereof, was overruled by the Principal Munsif.
This order was upheld by the High Court.
Dismissing the SLP, this Court, ^ HELD: 1.
Under O.XXI, r. 89 as it now exists, both the application and the deposit must be made within 30 days of the sale.
The failure to make such deposit within the time allowed at once attracts the consequences set forth under sub r.
(2) of r. 92.
[737 A B] 2.
The limitation prescribed for an application under O.XXI, r. 735 89 was 30 days from the date of sale under Schedule I, article 166 of the Limitation Act, 1908, now replaced by article 127 of the . article 127 has now been amended by Act 104 of 1976 and the words 'sixty days ' have been substituted for the words 'thirty days '.
[736 F G] 3.
As a result of this amendment, the limitation for an application to set aside a sale in execution of the decree including any such application by a judgment debtor under O.XXI, r. 89 or r.90 is, therefore, sixty days now.
[736 G] 4.
Sub r.
(2) of r. 92 of O.XXI of the Code is inconsistent with article 127 of the .
The Parliament must enact the necessary change in law for an appropriate amendment of sub r.
(2) of r. 92 of the Code.
[737 A B] In the instant case, the judgment debtor No. 1 having deposited the decretal amount together with 5% of the purchase money and having made the application under O.XXI, r. 89 within sixty days of the sale i.e. within the period as provided by article 127 of the , the sale was liable to be set aside.
[737 G H] 5.
The provision of O.XXI, rr. 89 and 92(2) of the Code of Civil Procedure and that of article 127 of the , should receive harmonious construction.
[737 F G] Thangammal & Ors.
vs K. Dhanalakshmi & Anr., AIR 1981 Mad.
254, approved.


judgement:
Civil Appeal No. 2987 of 1986 From the Judgment and order dated 31.7.1986 of the Allahabad High Court in C. Misc.
Writ Petn.
No. 83 l0 of 1986.
G Shanti Bhushan.
S.P. Gupta.
H.K. Puri and Sunil Gupta for the Appellants.
B.D. Agarwala, M. Mudgal and Sunil Ambwani for the Respondents.
H 690 V.M. Tarkundeand R.B. Mehrotraforthe Intervencr.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Special Leave granted.
This appeal by special leave is directed against a judgment of the Allahabad High Court quashing a resolution dated May 6, 1986 by which it was proposed to hold an Entrance Test for admission to the Degree Courses in Arts, Science and Commerce of the Allahabad University, while at the same time recording a finding that 'the entrance test for admission to Degree Courses of Arts, Science and Com merce of the University cannot be characterised as arbitrary, illegal orirrational in view of the fact that the standard of students passing Intermediate Examination or equivalent examinations thereto is deteriorating now a days. ' The principal ground on which the High Court struck down the resolution was that there was no emergency to justify the Vice Chancellor having recourse to the provisions of s.13(6) of the Uttar Pradesh State Universities Act for the action taken by him; the legitimate thing to do was to constitute an Admissions Committee as contemplated by section 28 of the Act to consider the matter and to give an opportunity to the Academic Council to approve or disapprove the new policy.
It is now practically conceded that the resolution dated May 6, 1986 was that of the Admissions Committee, whether properly constituted or not, and not that of the Vice Chancellor and there was therefore, no question of the Vice Chancellor taking recourse to the provisions of section 13(6) of the Act.
However Shri Srivastava, learned Counsel for the Student Federation of India and Shri Tarkunde, learned Counsel for some of the members of the Academic Council supported the conclusion of the High.
Court on several grounds which we shall presently consider.
Shri Shanti Bhushan and Shri Gupta, learned Counsel for the University assailed the judgment of the High Court.
We may now state a few relevant facts.
The Uttar Pradesh State Universities Act was enacted in 1973.
Section 12 of the Act prescribes the mode of appointment and the conditions of service of the ViceChancellor and section 13 prescribes his powers and duties.
In particular s.13(6) enables the Vice Chancellor to take such action as he may deem fit if any matter is of an urgent nature requiring immediate action and the same cannot immediately be dealt with by any officer or authority or other body of the University empowered by or under the Act to deal MANOHAR 691 with it.
The Vice Chancellor, however, is required to forthwith report A the action taken by him to the Chancellor and also to the officer, authority or other body who would have dealt with the matter in the ordinary course, Section 19 designates the authorities of the University among whom are the Executive Council, the Academic Council and the Admissions Committee.
Section 20 provides for the constitution of the Executive Council and section 21 prescribes the powers and duties of the Executive Council.
Section 21(1)(iii) enables the Executive Council to make, amend or repeal Statutes and ordinances.
Section 25 provides for the constitution and the powers and duties of the Academic Council, who is to be the principal academic body of the University.
It is expressly provided that it shall have the control and general regulation of, and be responsible for the maintenance of standard of instruction, education and research carried on or imparted in the University and that it may advise the Executive Council on all academic matters including matters relating to examinations conducted by the University.
Section 28 provides for the constitution of the Admissions Committee and its powers and duties.
The Constitution of the Admissions Committee is to be such as may be provided for in the ordinances.
Subject to the Superintendence of the Academic Council, the Admissions Committee is required by section 28(3) "to lay down the principles or norms governing the policy of admission to various courses of studies in the University".
Section 28(4) also enables the Committee to issue directions "as respects criteria or methods of admission (including the number of students to be admitted) to constituent colleges maintained by the State Government and affiliated or associated colleges" and prescribes that such directions shall be binding on such colleges.
45 deals with 'admission of students ' and prescribes "No students shall be eligible for admission to the course of study for a degree unless (a) he has passed (i) the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or of any University or Board incorporated by any law for the time being in force; or (ii) any examination, or any degree conferred by any other University, being an examination or degree rec 692 ognized by the University as equivalent to the Inter mediate Examination or to a degree of the University; and (b) he possesses such further qualifications, if any, as may R be specified in the ordinances: Provided that the University may prescribe by ordinance any lower qualifications for admission to a degree in Fine articles" Section 51(2) stipulates that an ordinance shall provide for, among other things, 'the admission of students of the University and their enrolment and continuance as such '.
Section 52 enables the Executive Council to make, from time to time, 'new or additional ordinances ' or 'amend or repeal ' the first ordinances of existing Universities.
Proviso(a) to sec.
52(2) prescribes that no ordinance shall be made.
"affecting the admission of students, or prescribing examinations to be recognized as equivalent to the University examinations or the further qualifications mentioned in sub section(1) of section 45 for admission to the degree courses of the University, unless a draft of the same has been proposed by the Academic Council.
" Section 72(1) requires the authorities of the Universities to be constituted as soon as may be after the commencement of the Act and prescribes that every person holding office as member of such authority immediately before the commencement of the Act shall cease to be such member on the commencement of the Act.
Section 72(2) enables the State Government to direct who may discharge what powers, duties and functions under the Act until the Constitution of new authorities.
For sometime after the enactment of the Uttar Pradesh State Universities Act most of the University Bodies were not constituted though an Administrative Committee had been appointed by the Government under section 67 of the ordinance which preceded the Act.
As there was no Executive Council and since, it was not possible to call a meeting of the Administrative Committee, the Vice Chancellor proceeded to act under section 13(6) of the Act to constitute an Admissions Committee consisting of the Vice Chancellor, all the Heads of the 693 Departments, the Dean, Students Welfare, the University Proctor and A the Registrar.
This was done on July 12, 1973.
Sometime thereafter, the Executive Council was constituted and on September 3, 1973 the Executive Council by a resolution approved the action of the Vice Chancellor in constituting an Admissions Committee consisting of the Vice Chancellor.
the Pro Vice Chancellor.
the Deans of the faculties of Arts, Science, Commerce and Law, all the Heads of Departments the Dean, Student Welfare, the University Proctor and the Registrar.
It will be seen that the Members of the Admissions Committee are all educationists who hold their membership Ex officio.
The Admissions Committee which was constituted in 1973 has been functioning ever since, without question.
The Admissions Committee at its meeting held on May 6, 1986 resolved to introduce an Entrance Test for admission to the degree courses in Arts, Science and Commerce and adopted a detailed scheme for that purpose.
We are told that pursuant to the Resolution of the Admission Committee, an entrance test has been held and the results have been tabulated but not yet published.
Meanwhile the Student Federation of India and some students filed a writ petition challenging the introduction of the Entrance Test on the ground that the Resolution dated May 6, 1986 had no authority in law.
The High Court held that the Resolution was without authority of law and therefore, quashed the same.
As already mentioned by us at the outset the primary ground on which the Resolution was quashed by the High Court was that there was no emergency such as that contemplated by section 13(6) to justify the Vice Chancellor passing the Resolution dated May 6, 1986.
We have already pointed out that the Resolution dated May 6, 1986 was that of the Admissions Committee and not that of the Vice Chancellor.
However, the Resolution has been attacked on several other grounds which we shall now proceed to consider It was argued that the Admissions Committee was not legally constituted as there was no emergency such as that contemplated by section 13(6) to enable the Vice Chancellor to constitute the Admissions Committee.
The very order constituting the Admissions Committee recites that it had become necessary for the Vice Chancellor to have recourse to section 13(6) as there was no Executive Council in existence and as it was not possible to call the Administrative Committee.
Those were good enough reasons for the action of the Vice Chancellor and 694 we do not think that anyone can be permitted to question the Constitution of the Admissions Committee at this stage after the Committee as constituted in 1973 had been functioning for over a dozen years.
It was next argued that the Vice Chancellor was competent to invoke the power under section 13(6) if an authority of the University was in existence but was unable to discharge its duties but not if such authority was not m existence at all.
It was said that the existence of the authority and its inability to act were the conditions precedent to action by the Vice Chancellor under section 13(6).
This argument has only to be stated to be rejected.
Under section 13(6) the condition precedent to the Vice Chancellor 's action is the necessity for action and the failure to take such action by the authority competent to take action.
It does not mean that if the failure to take action is the result of the non existence of the authority, the Vice Chancellor cannot have recourse to section 13(6).
Another submission was that the Admissions Committee which took the present decision was not the same as that constituted originally.
This argument was sought to be spelt out from the circumstance that notice of the meeting of the Admissions Committee was given to several persons who were not members of the Committee as originally constituted.
The circumstance that many others were invited to be present at the meeting does not mean that they were invited as members of the Admissions Committee.
They do not become members of the Admissions Committee by the mere fact of being invited to attend a meeting of the Committee.
They appear to have been invited to assist the Committee in its deliberations.
It was suggested that they were invited to provide support to the Vice Chancellor in large numbers.
We do not attach any importance to this suggestion.
It was also commented that only six members of the Admissions Committee attended the meeting on May 6, 1986 and that all the others who attended the meeting were not members.
But notice of the meeting was given to all the members and if some of them, for their own reasons, refrained from attending the meeting, their failure to attend the meeting cannot invalidate the deliberations of the Committee.
The principal submission on behalf of the respondents was that any proposal for entrance examination should originate from the Academic Council and thereafter take the form of an ordinance by the Executive Council.
It was argued that this was the net effect of section 45(1)(b), section 51(2)(a) and proviso(a) to section 52(3).
It was said that section 28 did not enable the Admissions Committee to prescribe any Entrance Test for admission to the degree courses.
We are unable to agree with the submissions of the learned counsel for the respondents.
We do not 695 see why the expression "the principles or norms governing the Policy of admission to various courses of studies in the University" should be interpreted in so narrow a fashion as to exclude the prescription of an Entrance Test.
Sub section 4 of section 28 enables the Admissions Committee to issue directions regarding 'the criteria or methods of admissions (including the number of students to be admitted) to constituent colleges maintained by the State Government and affiliated or associated colleges. ' This provision which enables the Admissions Committee to issue directions to constituent colleges, affiliated or associated colleges in the matter of criteria or methods of admission also indicates that the principles or norms governing the policy of admission to various courses of studies in the University must necessarily include the criteria or methods of admission.
We are of the view that sec.
28(3) empowers the Admissions Committee to provide for an entrance test for admission to the University degree courses.
It was suggested that such an interpretation would bring it in conflict with secs.
45, 51 and 52 of the Act and that there will be duality of authority in the matter of regulating admission to University degree courses.
As we shall presently point out there is no conflict between sec.
28 and the other sections nor are there dual authorities under the Act.
These provisions have to be construed harmoniously so as to eliminate any conflict and without rendering any provision of the Act or any authority created by the Act, superfluous.
45(1) lays down the rules of eligibility for admission to a course of study in the university.
Clause (a) prescribes the passing of the Intermediate or equivalent examination or a degree of a university as the basic qualification for admission and clause (b) enables the prescription of further qualifications by ordinance.
Section 51(2)(a) authorises the making of ordinances to provide for "the admission of students to the university and their enrolment and continuance as such".
But any ordinance that may be made for the purpose of sec.
45(1)(b) or for that matter any ordinance affecting the admission of students shall not be made unless the draft of the same has been proposed by the Academic Council.
It is so provided by the proviso to sec.
52(3).
What must be noticed here is that the Executive Council, of its own motion, cannot make an ordinance affecting the admission of students to the university.
It can only be done at the instance of the academic council by its proposal.
We have already seen that under sec.
28(3), the Academic Council has the power of superintendence over the power of the Admissions Committee to lay down the principles or norms governing the policy of admission to various courses of study in the University.
The scheme of the Act in regard to admissions to the degree courses of the university, therefore, 696 appears to be like this: The Admissions Committee prescribes the principles or norms governing the policy of admission to the various courses of study.
This is subject to the superintendence of the Academic Council.
The Academic Council may exercise its powers of superintendence, among other ways, by proposing an ordinance which may have the effect of reversing or modifying the action of the Admissions Committee.
Thereafter the Executive Council may make an ordinance if it so thinks fit.
Once an ordinance is made, it will not naturally be open to any of the university bodies, including the Admissions Committee to act contrary to it.
This appears to be the scheme of the Act in so far as it relates to admissions.
It follows that the Admissions Committee has the power to prescribe an Entrance Test.
The Academic Council has the power to overrule the decision of the Admissions Committee in exercise of its power of superintendence.
The Executive Council such as has no power to overrule the decision of the Admissions Committee except by making an ordinance on a proposal made by the Academic Council.
The learned counsel for the respondents submitted that the scheme for the proposed entrance test ought to have been brought before the Academic Council so as to enable the Academic Council to exercise its power of superintendence by approving or disapproving the scheme.
We do not think that there is any statutory requirement that any action taken by the Admissions Committee under sec.
28 is not to be effected until the Academic Council is provided with an opportunity to exercise its power of superintendence.
It is up to the Academic Council to exercise its power of superintendence.
If as is claimed the Vice Chancellor does not take the initiative to call a meeting of the Academic Council, the members of the Academic Council desiring to call a meeting of the Academic Council are free to take recourse to the provisions of the Act, the ordinances and the Statutes to requisition a meeting.
We are, therefore, unable to hold that the Resolution of the Admissions Committee dated May 6, 1986 is tainted by any illegality.
We set aside the judgment of the High Court, dismiss the writ petition filed in the High Court, and further direct the University to forthwith announce the names of the candidates selected for admission to the various courses.
We leave it upon to the Academic Council to take such action as it may think fit in regard to the future years.
We do not also express any opinion regarding the soundness of the scheme of the Entrance Test.
There will be no order as tn costs.
M.L.A. Appeal allowed.

summary/full:
The Uttar Pradesh State Universities Act was enacted in 1973.
Section 19 designates the authorities of the University among whom are the Executive Council, the Academic Council & the Admissions Committee.
By section 28(3) the Admissions Committee is required to lay down the principles or norms governing the policy of admissions to various courses of studies in the University.
Section 13(6) of the Act enables the Vice Chancellor to take such action as he may deem fit if any matter is of an urgent nature requiring immediate action and the same cannot easily be dealt with by an officer or authority or other Body of the University empowered by or under the Act to deal with it.
For some time after the enactment of the Uttar Pradesh State Universities Act most of the University Bodies were not constituted though an Administrative Committee had been appointed by the Government.
As there was no Executive Council and since it was not possible to call a meeting of the Administrative Committee, the Vice Chancellor in the year 1973 proceeded to act under section 13(6) of the Act to constitute an Admissions Committee consisting of the Vice Chancellor, all the Heads of the Departments, the Dean, students welfare, the University Proctor and the Registrar.
The Admissions Committee at its meeting held on May 6, 1986 resolved to introduce an Entrance Test for admission to the Degree courses in Arts, Science and Commerce and adopted a detailed scheme for that purpose.
Pursyant to the Resolution of the Admissions Committee, an entrance test was held and the results were tabulated but not yet published.
Meanwhile the respondents students filed a writ petition 688 in the High Court challenging the introduction of the Entrance Test on the ground that the aforesaid Resolution had no authority in law.
l he High Court upheld the contention of the respondents and quashed the Resolution.
Allowing the appeal by the appellant University, ^ HELD: 1.1 The resolution of the Admissions Committee dated May 6, 1986 is not tainted by any illegality.
The resolution was that of the Admissions Committee, whether properly constituted or not, and not that of the Vice Chancellor and there was, therefore, no question of the Vice Chancellor taking recourse to the provisions of section 13(6) of the Act.
Therefore, the judgment of the High Court is set aside and the University is directed to forthwith announce the names of the candidates selected for admission to the various courses.
However, it is open to the Academic Council to take such action as it may think fit in regard to the future years.
[696F G] 1.2 The very order constituting the Admissions Committee re cites that it bad become necessary for the Vice Chancellor to have re course to section 13(6) as there was no Executive Council in existence and as It was not possible to call the Administrative Committee.
Those were good enough reasons for the action of the Vice Chancellor and no one can be permitted to question the constitution of the Admissions Committee at this stage after the Committee as constituted in 1973 had been functioning for over a dozen years.
Since notice of the meeting was given to all the members and if some of them, for their own reasons refrained from attending the meeting, their failure to attend the meeting cannot invalidate the deliberations of the Committee.
[693G H;694A;F] 2.1 Section 28(4) of the Act which enables the Admissions Committee to issue directions to constituent colleges, affiliated or associated colleges in the matter of criteria or methods of admission also indicates that the principles or norms governing the policy of admission to various courses of studies in the University must necessarily include the criteria or methods of admission.
The expression "the principles or norms governing the policy of admission to various courses of studies in the Universty" in section 28(3) should not be interpreted in so narrow a fashion as to exclude the prescription of an Enterance Test.
Therefore, it empowers the Admissions Committee to provide for an enterance test for admission to the University degree courses.
[695B B] 2.2 There is no conflict between section 28 and the other sections nor 689 are there dual authorities under the Act.
Sections 45, 51 and 52 of the A Act have to be construed harmoniously so as to eliminate any conflict and without rendering any provision of the Act or any authority created by the Act, superfluous.
The scheme of the Act in regard to admissions to the degree courses of the University, therefore, appears to be like this; the Admissions Committee prescribes the principles or norms governing the policy of admission to the various courses of study.
This is subject to the superintendance of the Academic Council.
The Academic Council may exercise its powers of superintendence, among other ways, by proposing an ordinance which may have the effect of reversing or modifying the action of the Admissions Committee.
Thereafter the Executive Council may make an ordinance if it so thinks fit.
Once an ordinance is made, it will not naturally be open to any of the University bodies, including the Admissions Committee to act contrary to it.
This appears to be the scheme of the Act in so far as it relates to admissions.
It follows that the Admissions Committee has the power to prescribe an Entrance Test.
The Academic Council has the power to over rule the decision of the Admissions Committee in exercise of its power of superintendance.
The Executive Council as such has no power to over rule the decision of the Admissions Committee except by making an ordinance on a proposal made by the Academic Council.
[695D H: 696A D] 3.
There is no statutory requirement that any action taken by the Admissions Committee under section 28 is not to be effected until the Academic Council is provided with an opportunity to exercise its power of superintendance is up to the Academic Council to exercise its power of superintendanee.
If as is clauied the Vice Chancellor does not take the initiative to call a meeting of the Academic Council, the members of the Academic Council desiring to call a meeting of the Academic Council are free to take recourse to the provisions of the Act, the ordinances and the statutes to requisition a meeting.
[696E F]


judgement:
ition (Civil) Nos.
15466 67 of 1984 Etc.
(Under Article 32 of the Constitution of India.) M.K. Ramamurthi, P. Gaur and Jitendra Sharma for the Petitioners.
G.B. Pai, O.C. Mathur, Miss Deepa Sabra and Mrs. Meera Mathur for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
All these applications under Article 32 of the Constitution are by officers called the Management Staff employed under the Respondent No. 1 and challenge in all the Writ Petitions is to the age of superannuation at 58 years.
The principal ground of attack is discrimination between the clerical staff for whom the age of retirement is 60 years and the management staff in whose case such terminal point is 58 years.
It is also the claim of the petition 741 ers that in keeping with the current trend in the commercial field such age should be fixed at 60.
Each of the petitioners in Writ Petition Nos.
15466 and 15467 of 1984 and 2745 of 1985 is a recent recruit for the management staff while each of the petitioners in the remaining cases was an employee under the Burmah Shell oil Storage and Distributing Company of India Limited and after the take over of that Company under the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, has become an officer of respondent No. 1.
In Som Prakash Rekhi vs Union of India & Anr., ; this Court has held Respondent No. 1 to be "State" within the meaning of Article 12 of the Constitution.
There has, therefore, been no dispute before us that the petitioners would be entitled to invoke the protection of Article 14 in case there indeed be any discrimination.
This Court in Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay vs Bharat Petroleum Corporation Ltd. and another; , directed the retirement age of the clerical staff of the Refinery Division of Respondent No. 1 to be fixed at 60 years.
Petitioners have contended that the disparity in the age of retirement between two groups of employees gives rise to discriminatory treatment.
This stand is not tenable for more than one reason.
Clerical staff and officers of the management staff belong to separate classifications and no argument is necessary in support of it.
Petitioners have not contended and perhaps could not legitimately contend, that the two classes of officers stand at par.
In the Workmen 's case itself, this Court did not extend the benefit of superannuation at the age of 60 to all clerical staff but limited the same to that category of employees working in the Refinery Division, Bombay.
Classification on the basis of reasonable differentia is a well known basis and we are of the view that the petitioners are not entitled in the facts of the case to seek support from Article 14 for their claim.
The claim of the clerical staff arose in an industrial dispute.
The scope of such an adjudication is wide and broad based.
The Tribunal has expansive jurisdiction to exercise when a reference is made to it.
This court in appeal against the Award was exercising the same jurisdiction in that case.
We do not think, it would be appropriate for this Court to exercise that jurisdiction in dealing with an application under Article 32 of the Constitution.
It must also be remembered that officers of the management staff are not workmen.
742 It is true that this Court in Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay; , quoted with approval its earlier observations in M/s. British Paints (India) Ltd. vs Its Workmen, ; where it was said: "But time in our opinion has now come considering the improvement in the standard of health and increase in longevity in this country during the last fifty years that the age of retirement should be fixed at a higher level, and we consider that generally speaking in the present circumstances fixing the age of retirement at 60 years would be fair and proper, unless there are special circumstances justifying fixation of a lower age of retirement." Again in G.M. Talang and others vs Shaw Wallace and Co. & Anr., this Court referred to the Report of the Norms Committee where it was said: "After taking into consideration the views of the earlier Committees and Commissions including those of the Second Pay Commission the report of which has been released recently, we feel that the retirement age for workmen in all industries should be fixed at 60." A distinction in the treatment on the point in issue between workmen and officers is clearly discernible in judicial thinking as also expert opinion.
Besides, the petitioners have not brought before the Court all the material relevant to the making of a claim as made from which support could be had.
On the other hand, the Respondent No. 1 in its affidavit in opposition has placed various aspects to justify fixation and continuation of the present age of retirement.
It may be that some day, in keeping with the trend of the times, a claim of the type as laid in these applications may nave to be examined.
We, however, hope that adjudication will be required to be made on more cogent and appropriate material than now.
If this Court is moved, it has then to be considered whether an application under Article 32 is the proper remedy for it.
We are, however, of the view that the petitioners are not entitled to their claim in these applications.
The Writ Petitions are dismissed but without costs.
A.P.J. Petitions dismissed.

summary/full:
The age of superannuation of the clerical staff employed under the Respondent No. 1 is 60 years while in the case of the management staff the terminal point is 58 years.
The officers of the management staff in their petitions under Article 32 alleged that the disparity in the age of retirement between two groups of employees gives rise to discriminatory treatment.
They also claim that in keeping with the current trend in the commercial field such age should be fixed at 60.
Dismissing the petitions, the Court, ^ HELD: 1.
Classification on the basis of reasonable differentia is a well known basis.
Clerical staff and officers of the management staff belong to separate classifications.
Therefore, the petitioners, in the fact of the case, are not entitled to seek support from Article 14 for their claim.
[741 F] 2.
The claim of the clerical staff arose in an industrial dispute.
The scope of such adjudication is wide and broad based.
The Tribunal has expansive jurisdiction to exercise when a reference is made to it.
This Court in appeal against the Award was exercising the same jurisdiction in that case.
It would not be appropriate for this Court to exercise that Jurisdiction in dealing with an application under Article 32 of the Constitution.
The officers of the management staff are not workmen.
[741 G H] 3.
The petitioners have not brought before the Court all the mate 740 rial relevant to the making of a claim as made from which support could be had.
On the other hand, the Respondent No. 1 in its affidavit in opposition has placed various aspects to justify fixation and continuation of the present age of retirement.
[742 E F] 4.
In keeping with the trend of the times, a claim of the type as laid in the instant applications may have to be examined.
However, that adjudication will be required to be made on more cogent and appropriate material than now.
If this Court is moved, it has then to be considered whether an application under Article 32 is the proper remedy for it.
However, the petitioners are not entitled to their claim in these applications.
[742 F G] Som Prakash Rekhi vs Union of India & Anr., ; , followed.
Workmen of the Bharat Petroleum Corporation Ltd. (Refining Division) Bombay vs Bharat Petroleum Corporation Ltd. and another; , , M/s. British Paints (India) Ltd. vs Its Workmen, ; and G.M. Talang and others vs Shaw Wallace and Co. & Anr., , referred to.


judgement:
Civil Appeal No. 3418 of 1986 774 From the Judgment and order dated 22/23.7.1986 of the Bombay High Court in Appeal No 565 of 1986.
A.K. Ganguli and Sushma Relan for the Appellant.
Soli J. Sorabjee, J.B Dadachanji, R Narain, Mrs. A.K.Verma, D.N.Mishra, Aditya Narayan and Harish N. Salve for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application for special leave to appeal against the order of the Division Bench of the Bombay High Court dated 22nd/ 23rd July, 1986 filed on behalf of the Union of India.
M/s Godrej Soaps (P) Limited, and a shareholder and Director of the said company, Mr A.B. Godrej who were petitioners went before the Bombay High Court in Writ Petition No. 1665 of 1986.
The said petitioners who are respondents herein (hereinafter described as respondents) purchased 544.860 Metric Tonnes of Palm Kamel Fatty Acid on high sea basis imported under an additional licence.
They challenged the action of the Customs authorities refusing to permit the clearance of the said Palm Karnel Fatty Acid in view of the decision of this Court in Raj Prakash Chemical 's case and Indo Afghan Chamber of Commerce 's case ; It may be mentioned that one Messrs. Dimexon a firm carrying on business of importing rough diamonds and exporting cut and polished diamonds were issued Export House Certificate under the import policy for the period 1978 79 and certain additional licences in or about the month of July, 1986 covered by the licensing period AM 79.
The said licence was claimed to have been issued in compliance with the order of this Court dated 18th April, 1985.
As the purport of that order was the subject matter of two subsequent decisions of this Court and the genesis of the right of the present respondents was claimed from the said decision, it may not be inappropriate to refer to the said decision.
The said decision was given in Civil Appeal No. 1423 of 1984.
This Court held that there was no requirement of diversification of exports as a condition for the grant of Export House Certificates in the Import Policy for the year 1978 79.
In that appeal, this Court confirmed the High Court 's judgment quashing the order whereby the Government had refused Export House Certificates 775 on the ground that the petitioners in those cases had not diversified its export and as such were not entitled to Export House Certificates.
The High Court quashed that order.
This Court confirmed that direction of the High Court and further directed the Union of India and its employees to issue the necessary Export House Certificates for the year 1978 79 within a period of three months from the date This Court further directed as follows: "Save and except items which are not specifically banned under the prevalent import policy at the time of import, the respondents shall be entitled to import all other items whether canalised or otherwise in accordance with the relevant rules.
Appeals are disposed of accordingly with no order as to costs." (Emphasis supplied in view of the contentions now sought to be raised in these proceedings).
This direction was given by a Bench of three learned judges consisting of section Murtaza F. Ali, A. Varadarajan and one of us (Sabyasachi Mukharji, J.) According to the petitioners before the Bombay High Court in pursuance of the order of this Court, Import Trade Control Authority issued diverse additional licences expressly covered by the licensing period AM 79 where under the description of the goods was as under: "This licence is valid for import of items permissible to export houses under additional licence category as per para 176 of Import Policy for 1978 79 excluding those items which were banned in the Policy for the period 1978 79 and which have been banned in the Import Export Policy volume 1, 1985 88.
The additional licence category import shall be subject to the provisions of para 176 of the import policy for 1978 79.
" It was the contention of the petitioners before the Bombay High Court that it was absolutely clear that the holders of the said licences would be entitled to import items permissible to export houses under the additional licence category as per para 176 of the Import Policy for 1978 79.
It may be mentioned that the said direction of this Court came up for consideration before this Court again in Civil Appeal No. 4978 of 1985 Raj Prakash Chemicals Ltd. & Anr.
vs Union of India & Ors. 776 (supra) This Court clarified the decision in that case which was rendered by a bench of three learned judges consisting of V Tulzapurkar, J. and both of us (R.S. Pathak and Sabayasachi Mukharji, JJ).
As this Court has observed in M/s Indo Afghan Chambers of Commerce and another vs Union of India and other (supra) the order dated 18th April.
1985 has been considered by this Court in Raj Prakash Chemicals Ltd. and another vs Union of India & others (supra) to mean that: "only such items could be imported by diamond exporters under the Additional Licences granted to them as could have been imported under the Import Policy 1978 79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongfully refused, and were also importable under the Import Policy prevailing at the time of import, which in the present case is the Import Policy 1985 88.
These were the items which had not been 'specifically banned ' under the prevalent Import Policy.
The items had to pass through two tests.
They should have been importable under the Import Policy 1978 79.
They should also have been importable under the Import Policy 1985 88 in terms of the order dated April 18, 1985.
" The Court had no occasion to consider the significance of the words "whether canalised or otherwise" mentioned in the order dated April 18, 1985 because that point did not arise in the case before it The respondents rely on those words in this case in order to justify the import of the commodity under consideration.
What did the Court intend by those words? We have seen that a diamond exporter can import the items he was entitled to import under the Import Policy 1978 79 provided they are importable also under the Import Policy ruling at the time of import They are items which are open to import by an Export House holding an Additional Licence for sale to eligible Actual Users (Industrial).
These are items which could be directly imported, for example, the items enumerated in Part 2 of List 8 of Appendix.
Vl of the Import Policy 1985 88.
These are items which are not 'canalised ' 'Canalised ' items are those items which are ordinarily open to import only through a public sector agency.
Now although generally they are importable through a public 777 sector agency only, it is permissible for the Import Policy to provide an exception to that rule, and to declare that an importer may import a canalised item directly.
For instance, paragraph 75(1) of the Import Policy 1985 88 entitles a Trading House holding an Additional Licence to directly import canalised items in Appendix V Part A to the extent laid down in that Policy.
There is nothing to prevent an Import Policy from providing in the future that an Export House holding an Additional Licence can directly import certain canalised items also.
In that event, in view of the aforesaid discussion, an Export House holding an Additional Licence will be entitled to import items open ordinarily to direct import (non canalised items) as well as items directly importable although on the canalised list.
It is in that sense that the Court could have intended to define the entitlement of a diamond exporter.
He would be entitled to import items "whether canalised or not", if the Import Policy prevailing at the time of import permitted him to import items falling under each category.
The Court would not know whether in the future certain canalised items could be imported directly by an Export House holding an Additional Licence.
The possibility of a policy being framed in the future enabling an Export House holding an Additional Licence to directly import items which are 'non canalised ' and also items which are 'canalised ' cannot be ruled out It is in this light that the Court can be said to have used the words "whether canalised or otherwise" in its order dated 18th April, 1985.
The point from a slightly different angle was considered in writ petition No. 199 of 1986 in Indo Afghan Chambers of Commerce with Civil Appeal No. 664 of 1986 (supra) dated 15th May, 1986 by a bench consisting of both of us (R.S. Pathak & Sabyasachi Mukharji, JJ).
There Indo Afghan Chambers of Commerce and its President aggrieved by the grant of additional licences to the respondents, M/s Rajnikant Brothers and M/s Everest Gems for the import of dry fruits came to this Court.
This Court examined some of the contentions This Court reiterated that by the order dated 5th March, 1986, this Court has construed its order dated 18th April, 1985 referred to hereinbefore to mean that only such items could be imported by diamond exporters under the Additional Licences granted to them as could have been imported under the Import Policy 1978 79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongfully refused, and were also importable under the Import Policy prevailing at the time of import which in the present case was the Import Policy 1985 88, i e, it meant to say that those importable at the time when licence was refused and must continue to be importable at the time when import is sought, i.e., 1985 88.
These were the items 778 which were not specifically banned under the prevalent Import Policy That is the construction.
The items had to pass through two tests.
These should have been importable under the Import Policy 1978 79.
These should have been importable under the Import Policy 1985 88 in terms of the order dated 18th April, 1985.
The Court examined the facts of that case.
Regarding dry fruits, this Court observed as follows: "In our opinion the respondents diamond exporters are not entitled to import dry fruits under the Import Policy 1985 88 under the Additional Licences possessed by them.
They are also not entitled to the benefit extended by the judgment of this Court dated 5th March, 1986 to those diamond exporters who had imported items under irrevocable letters of credit opened and established before 18th October, 1985.
It appears from the record before us that the respondents diamond exporters opened and established the irrevocable letters of credit after that date.
" Bearing in mind the aforesaid enunciation of law, we have to examine this case.
It is the case of the respondents, Godrej Soaps Co Ltd. and its Director that they have purchased 544.860 Metric Tonnes of palm karnel fatty acid (now called 'the said acid ') on highseas basis from M/s Dimexon.
M/s Dimexon had imported the said acid on the strength of an additional licence issued to it pursuant to the order of this Court dated 18th April, 1985 in Civil Appeal No. 1423 of 1984 Union of India vs Rajnikant Brothers.
The Customs authorities, according to the said respondents, refused to permit clearance of the said acid on the ground that the canalised items could not be imported even under such additional licence.
The respondents, therefore, filed a writ petition in this Court requiring the Union of India and the Customs authorities to permit clearance of the said acid.
It may be mentioned, the said acid was not a canalised item under the Import Policy 1978 79.
It is a canalised item under the current Import Policy 1985 88.
As the Government refused to permit clearance of the said goods because the said goods were canalised, the learned single judge of the Bombay High Court by its order dated 10th July, 1986 permitted the clearance of the goods in question.
Aggrieved by the said order, Union of India preferred an appeal before the Division Bench of the Bombay High Court.
The Division 779 Bench was pleased to, by its order dated 23rd July 1986, allow clearance of the goods.
It is the submission of the Union of India that this direction was contrary to the directions given in Raj Prakash 's case (supra) and Indo Afghan Chamber 's case (supra).
In respect of Palm Karnel Fatty Acid which is a canalised item listed as item 9(v) in Appendix V Part of the Import Policy 1985 88, 13 there is no provision in that Policy which permits the import of such item by an Export House holding an Additional Licence.
Therefore, the claim of the diamond exporters, or, as in this case a purchaser from the diamond exporter, must fail because it is not open to import by the diamond exporter under any provision of the Import Policy 1985 88.
Therefore, we are unable to accept the contentions of the respondents and both on grounds of equity and construction, we are of the opinion that this appeal must be allowed and decision of the High Court of Bombay impugned in this appeal must be set aside.
As importation of canalised items directly by holders of additional licences are banned, it should not be construed to have been permitted by virtue of the order of this Court and the items sought to be imported do not come within List 8 of Part 2 of Appendix 6 of the Import Policy of 1985 88 against additional licences.
The goods in question which were sought for by the respondents fall under item 9 Part of Appendix 5 which is the canalised item and such cannot be allowed to be imported against additional licence granted pursuant to the order of this Court dated 18th April, 1985.
As we have mentioned hereinbefore the respondents were fully aware of the position in law and they purchased goods on 27th June, 1986, there is no equity in their favour.
In this case no injustice would be done by this order.
The goods were purchased by the present petitioners only on 27th June, 1986 after they were aware of the judgment of this Court in Raj Prakash 's case (supra) as well as Indo Afghan Chambers of Commerce 's case (supra).
No question of any restitution of rights arises.
It was further submitted that in any event under item 1 of Appendix 6 (import of items under open General Licence) of the Import Policy, 1985 88, raw materials, components and consumables (non iron and steel items) other than those included in the Appendices 2, 3 Part A, S and 8 will be permissible by the actual user (industrial).
It was submitted that the respondents herein were actual users (industrial) because these were used by them for their production.
This contention cannot be accepted firstly because it comes within specific 780 prohibition of Item 9 in Part B of Appendix S being fatty acid and acid oil which were importable only by the State Trading Corporation of India under open General Licence on the basis of foreign exchange released by the Government in its favour.
Secondly the actual importation was not by the petitioners but by somebody else is mentioned hereinbefore, being M/s Dimexon Co.
In the premises, the view of the Bombay High Court cannot be sustained.
In that view of the matter special leave is granted.
The appeal is allowed.
The order of the High Court under challenge is set aside.
The appellant is entitled to the costs.
A.P.J. Appeal allowed.

summary/full:
The respondents purchased certain quantity of palm kernel fatty acid on high seas basis from a firm which had imported it on the strength of an additional licence issued to it pursuant to the order of this Court dated 18th April 1985 in C.A. No. 1423 of 1981 Union of India vs Rajnikant Brothers.
The Customs authorities refused to permit clearance of the goods on the ground that they were canalised items and could not be imported even under such additional licences.
The respondents filed a petition under article 226 challenging the action of the Customs authorities.
A Single Judge of the High Court permitted the clearance of the goods, which order was affirmed by the Division Bench.
In the appeal to this Court on behalf of the appellant Union of India it was contended that the direction given by the High Court was contrary to the directions given by this Court in Raj Prakash 's and Indo Afghan Chamber 's cases.
On behalf of the respondents it was contended: (1) that the holders of the additional licences would be entitled to import items permissible to export houses under the additional licence category as per para 176 of the Import Policy for 1378 73; (2) that in any event under Item 1 of Appendix 6 (import of items under open General Licence) of the Import Policy 1985 88, raw materials, components and consumables (non iron and steel items) other than those included in the Appendices 2, 3 Part A, 5 and 8 will be permissible by the actual user 772 (industrial); and (3) that the respondents were actual users (industrial) because these were used by them for their production.
Allowing the appeal of the Union of India, ^ HELD: 1.
A diamond exporter can import the items he was entitled to import under the Import Policy 1978 79 provided they are importable also under the Import Policy ruling at the time of import.
They are items which are open to import by an Export House holding an Additional Licence for sale to eligible Actual Users (Industrial).
These are items which could be directly imported, for example, the items enumerated in Part 2 of List 8 of Appendix Vl of the Import Policy 1985 88.
These are items which are not `canalised '.
[776 F H] 2.
`Canalised ' items are those items which are ordinarily open to import only through a public sector agency.
Now although generally they are importable through a public sector agency only, it is permissible for the Import Policy to provide an exception to that rule, and to declare that an importer may import a canalised item directly.
[776 H; 777 A] 3.
Paragraph 75(1) of the Import Policy 1985 88 entitles a Trading House holding an Additional Licence to directly import canalised items in Appendix V Part A to the extent laid down in that Policy.
There is nothing to prevent an Import Policy from providing in the future that an Export House holding an Additional Licence can directly import certain canalised items also.
In that event an Export House holding an Additional Licence will be entitled to import items open ordinarily to direct import (non canalised items) as well as items directly importable although on the canalised list.
It is in that sense that the Court could have intended to define the entitlement of a diamond exporter.
He would be entitled to import items "whether canalised or not", if the Import Policy prevailing at the time of import permitted him to import items falling under each category.
The Court would not know whether in the future certain canalised items could be imported directly by an Export House holding an Additional Licence.
The possibility of a policy being framed in the future enabling an Export House holding an Additional Licence to directly import items which are 'non canalised ' and also items which are 'canalised ' cannot be ruled out.
It is in this light that the Court can be said to have used the words "whether canalised or otherwise" in its order dated 18th April, 1985.
[777 B E] Raj Prakash Chemical 's case, and Indo Afghan Chamber of Commerce 's case; , , followed.
773 4.
Only such items could be imported by diamond exporters under the Additional Licences granted to them as could have been imported under the Import Policy 1978 79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongfully refused, and were also importable under the Import Policy prevailing at the time of import which is the present case was the Import Policy 1985 88.
These were the items which were not specifically banned under the prevalent Import Policy.
That is the construction.
The items had to pass through two tests.
These should have been importable under the Import Policy 1978 79.
These should have been importable under the Import Policy 1985 88 in terms of the order dated 18th April, 1985.
[777 G H; 778 A B] 5.
In respect of Palm Kernel Fatty Acid which is a canalised item listed as item 9 (v) in Appendix V Part of the Import Policy 1985 88, there is no provision in that Policy which permits the import of such item by an Export House holding an Additional Licence.
[779 B C] 6.
As importation of canalised items directly by holders of additional licences are banned, it should not be construed to have been permitted by virtue of the order of this Court and the items sought to be imported do not come within List 8 of Part 2 of Appendix 6 of the Import Policy of 1985 88 against additional Licences.
The goods in question which were sought for by the respondents fall under item 9 Part of Appendix 5 which is the canalised item and such cannot be allowed to be imported against additional licence granted pursuant to the order of this Court dated 18th April, 1385.
[779 D F] 7.
The goods were purchased by the respondents only on 27th June, 1986 after they were aware of the judgment of this Court in Raj Prakash 's case as well as Indo Afghan Chambers of Commerce 's case.
No question of any restitution of rights arises.
[779 F] 8.
The acid in question comes within specific prohibition of Item 9 in Part B Appendix 5 being fatty acid and acid oil which were importable only by the State Trading Corporation of India under open General Licence on the basis of foreign exchange released by the Government in its favour.
The actual importation was not by the respondents but by somebody else.
[780 A B]