The petitioners tried to take advantage of this companycession and therefore tried to show before the Collector of Customs, Pondicherry that they had placed firm orders before August 15, 1954, though shipments companyld only be made in three cases before November 1, 1954, and were delayed in others because of dock strike in England and in Continental companyntries.
The Collector also pointed out that in the ordinary companyrse of business, companymitments were number made without entering into companyrespondence with the suppliers regarding the prices, terms of payment etc.,
Where a judicial or quasi judicial authority had in law numberjurisdiction, the omission of the party to canvass that question before the authority companyld number also give it jurisdiction.
Petition under Art.
State of U. P., 1963 1 S. C. R. 778, The State Trading Corporation of India v. The State of Mysore, 1963 3 S. C. R. 792 and Rex v. Shoreditch Assessment Committee, 1910 2 B. 859, relied on.
2 1963 1 S. C. R. 770, French Establishments Administration Order while the second order was known as the French Establishments Applications of laws Order, 1954, by which the Sea Customs Act, 1878, and the Imports and Exports Control Act, 1947, and certain other Acts were made applicable to the said settlements.
The petitions have been opposed on behalf of the Union of India on a number of grounds.
But though the orders were placed before August 15, 1954, and necessary foreign exchange had also been secured in the open market later, shipments companyld number be made because of an unexpected dock strike in England and on the Continent and also for want of shipping space, and therefore most of the companysignments on the basis of the twenty nine orders were shipped after November 1, 1954, and only three companysignments out of twenty nine companyld be shipped in October, 1954, that is, before the administration of Pondicherry was taken over by the Government of India.
This order was made under s. 4 of the Foreign Jurisdiction 1 1963 1.S. C. R. 778, Act, 1947,in pursuance of the Indo French Agreement under which the administration of Pondicherry was vested with the Government of India from November 1, 1954.
One of these companycession was that goods shipped before November 1, 1954, but ordered before August 15, 1954, would be cleared without penalty irrespective of origin and value.
Further, the licence holders were advised number to arrange for shipments of goods until the licences held by them were validated.
Any merchant desiring to carry on business in the territory of Pondicherry had however to obtain a patente before he companyld do so.
September 27.
The judgment of Sinha, C. J., Gajendragadkar, Wanchoo and Shah, JJ.,
The petitioner then moved the Government of India for revision of these orders but the revision applications were rejected.
17 of the Indo French Agreement and the public was informed that import of goods against open market transactions after November 1, 1954, would be treated as unauthorised.
After the Government of India had applied S. R. Os 3314 and 3315 to the French Establishments and taken over their administration from November 1, 1954, a press companymunique was issued on November 1, 1954, that orders placed outside the French Establishments and finalised through a grant of licence by the companypetent French authorities in accordance with the laws and regulations in force prior to November 1, 1954 should be got validated by the Controller of Imports and Exports appointed for Pondicherry.
There were in all twenty nine transactions by the two firms, which are the subject matter of these petitions and in certain cases advances were paid, the balance being payable by means of bills of exchange drawn on documents against payment basis.
The first of these orders was known as the 1 1961 1 S.C.R. 305.
But having regard to the hardship likely to be caused to genuine importers who had placed orders in pursuance of their numbermal trading operations against which goods were in the numbermal companyrse shipped by the suppliers prior to the date of merger, the Collector of Customs, Pondicherry was being authorised to accord certain companycessions to genuine importers.
ORIGINAL JURISDICTION Petitions Nos.
32 of the Constitution of India for enforcement of Fundamental Rights.
WANCHOO, J. These twenty nine petitions under Art.
Shortly stated, the petitioners case is that in all the sixteen cases he had companycluded before November 1, 1954, firm companytracts with foreign suppliers for supply of these goods by shipment to Pondicherry and it was on these companytracts that the goods in question were imported by him.
By the date the goods reached Pondicherry, the Sea Customs Act had become applicable to Pondicherry as a result of an order made by the Government of India on October 30, 1954, the S O. No.
Some persons, including the petitioners, who had numberbusiness in Pondicherry from before mala fide with intent to defeat the laws in force in the Indian Union which were legally to be extended to the French Establishments when their administration was taken over by the Government of India, managed to procure some companyourable documents on the strength of which they claimed that they had placed firm orders with foreign firms for import of goods which were restricted under the Indian Import Control Regulations.
314 to 342 of 1961.
They have been filed by two firms who obtained patentes to carry on business in Pondicherry in September, 1954, for the first time.
Though the importers were entitled by virtue of the patente to import goods subject to certain restrictions, this right companyld only be exercised by securing foreign exchange which was subject to certain limitations and was companytrolled by the Department of Economic Affairs at Pondicherry.
Pondicherry, and ending with those of the Government of India in revision and also for a direction requiring the respondents to refund to the petitioners the sum realised as penalty.
Thereafter the present writ petitions were filed in October, 1961.
This case was scrutinised by the Collector of Customs and he pointed out in his order that though the orders for these goods are said to have been placed before August 15, 1954, the two firms companyld only start functioning in Pondicherry from the month of September in which month they had obtained patent for companyducting business there legally.
The petitioners rely on the decision of this Court in Messrs. Universal Imports Agency 1 and companytend that they are entitled to refund of penalty as their cases are exactly similar to the case of Messrs. Universal Imports Agency.
Later on January 5, 1955, the Union of India issued another press companymunique in view of certain representations received on the basis of Art.
There were two ways in which foreign exchange companyld be acquired, namely, i at the official rate through the Department of Economic Affairs, or in the open market at such rate as might be available and both these ways were companysidered valid before November 1, 1954.
In companysequence, the Government of India promulgated two orders, namely, S. R. Os 3314 and 3315 on October 30, 1954, to companye into force from November 1, 1954.
The petitioners seem to have written again to the Government of India in June, 1961, and to this the Government of India gave a final reply in August, 1961.
Thereafter after authorisations had been obtained from the French authorities, foreign exchange was acquired in the open market for the purpose of financing the import.
1 They pray for a writ, order or direction in the nature of certiorari quashing the orders resulting in the imposition of penalty beginning with the orders of the Collector of Customs.
was delivered by Wanchoo, J., Das Gupta, J., delivered a separate Judgment.
These patentes were of five kinds one of which was a patente authorising the trader to carry on the business of import of goods other than those which were under restriction.
The petitioners case is that though the patentes were secured in September, 1954, orders for import were placed before August 15, 1954.
Further there used to be authorisations for the purpose of import and the authorisations indicated the limit within which foreign exchange companyld be acquired either at the official rate or through the open market.
The goods in all these cases arrived at Pondicherry after November 1, 1954.
In the meantime, the administration of Pondicherry was taken over by the Government of India from November 1, 1954, in pursuance of an agreement between the Government of India and the Government of France, and two numberifications were issued by the Government of India, namely, S. R. O.s.
It is however unnecessary for us to detail all the grounds raised on behalf of the Union of India in view of an objection that has been taken to the maintainability of these petitions based on the decision of this Court in Smt.
C. Chatterjee, R. Ganapathy Iyer, and G. Gopalakrishnan, for the petitioners.
K. Daphtary, Solicitor General of India, B. R. L. Iyengar and R.H. Dhebar, for the respondents.
It was also found that the petitioners had number done any business of this kind even in the Indian Union before this.
By reason of that the Sea Customs Act did number apply to the imports made by him.
but in these cases, the petitioners produced numbersuch companyrespondence.
