vil Appeal Nos 8  9 of 1989
From the Judgment and Order dated 1721987 of the Bombay High Court in Appeal No 179 and 149 of 1987
TU Mehta A Subba Rao P Parmeshwaran Harish N Salve ND Garg Rajiv K Garg PH Parekh Ms Ayesha Misra and MN Shroff for the appearing parties
By these two special leave petitions under Article 136 of the Constitution the Union of India and the Chief and the Joint Chief Controllers of Imports and Exports seek special leave to appeal from two appellate Judgments of the Division Bench of the High Court of Judica ture at Bombay Both dated 1721987 in appeal Nos 179 of 1987 and 149 of 1987 affirming in appeal orders of learned Single Judges dated 591985 in WP 1125 of 1985 and dated 1991985 in WP 1918 of 1986 respectively by which the writ petitions filed by Ms Suksha International and Ms Nutan Gems respondents in these appeals were allowed and appellants directed to revalidate 4 the imprest licences of the respondents and endorse them for import of OGL items under paragraph 1854 of the Import Export Policy of 1982 83 AM 1983 2
Special leave in both the petitions is granted and the appeals taken up for final hearing heard and disposed of by this common judgment
We have heard Shri Subbarao learned counsel for the appellants and Shri Harish Salve learned counsel for the respondents who were the writ peti tioners before the High Court
Ms Suksha International respondent in SLP 2579 of 1987 is a diamond exporter and is a registered Export House for the purposes of the Import Export Policy
The said export house was granted an Imprest Licence No 0451365 dated 1561981 of a value of Rs 15380000 for import of uncut  and unset  diamonds with corresponding export obligations
Respondent claimed that upon the due fulfilment by it of its export obligations it became entitled to revalidation and endorsement for export of OCM items of the imprest Accordingly on 381983 the said Export House applied under paragraph 1854 of AM83 policy for such revalidation and endorsement of its imprest licence
Appellant No 3 by his decision dated 2191983 rejected this claim of the re spondent
Aggrieved by this rejection respondent filed in the High Court under Article 226 of the Constitution a writ petition assailing the legality of the order dated 2191983 and seeking a mandamus to the appellants to en dorse the Imprest Licence
Learned Single Judge of the High Court by his order dated 59
1986 allowed the writ petition and issued the direction preyed for
This order was carried up in appeal before the Division Bench of the High Court in appeal No 179 of 1987
The appeal came to be dismissed on 172
Ms Nutan Gems respondent in SLP 2580 of 1987 is a recognised Export House which had similarly been granted an Imprest Licence dated 242
1983 for the import of uncut and unset diamonds with certain export obligations attached to it and that after the due discharge of the export obliga tions Respondent became entitled to a revalidation and endorsement of the Imprest Licence for import of DGL items
The application dated 1911984 made in this behalf by the respondent was rejected by appellant No 6 by his order dated 193
Ms Nutan Gems filed writ petition No 1813 of 1985 in the High Court for issue of an appropriate writ quashing the said order of rejection and directing appellants to revalidate and endorse the 5 Imprest Licence
On 1991985
Learned Single Judge allowed the writ petition
This Order was affirmed in appeal No 149 of 1985 by the Division Bench on 172
These appellate judgments of the High Court are assailed in these appeals
Though a number of contentions are raised in the Memorandum of Special Leave Petition the points however pressed at the hearing admit of being formulated thus a that in the Import Export Policy 1982 83 the entitlement of Registered Export Houses to the facility of revalidation and endorsement of OGL items under paragraph 1854 is subject to and conditioned upon the express limitation in clause 7 of paragraph 185 of the Policy and that the High Court was in error in di recting revalidation and endorsement without reference to the mandatory prescription in clause 7
b that the High Court was in error in ignoring the contention of the appellants that respondents had rendered themselves disentitled to relief on ground of the inordi nate and unexplained delay in filing the writ petitions
In WP 1125 of 1985 from which SLP 2579 of 1987 arises the rejection of the prayer for revalidation was on 219
1983 and the writ petition was filed in April 1985 and in WP 1813 of 1985 from which SLP 2580 of 1987 arises the rejection of the prayer was on 1831984 and the writ petition was filed on 1091986 after a lapse of one and a half years in each case
c that at all events the direc tions issued for the endorsement must be limited only to items as limited by the pro nouncement of this Court in Rajprakash Chemi cals Ltd vs Union of India and D Navinchandra  Co vs Union of India  and other cases bearing on the question and not in terms now directed by the High Court
We may first dispose of contention c on which there does not appear to be much controversy
Shri Subba Rao submitted that the High Court was in clear error in brushing aside this argument and affirming the learned Single Judge on the basis that the SLP filed by 6 the appellants in Ripal Kumar  Co s case had been rejected by this Court
Shri Harish Salve however submitted that the decisions of this Court in Indo Afgan Chamber of Com merce vs Union of India   Rajprakash Chemi cals Ltd vs Union of India  Union of India vs Godrej Soaps Pvt Ltd  and D Navinchandra  Co vs Union of India  etc do not have any direct beating on the question of the enti tlement of the Export Houses to revalidation and endorsement for OCL items under para 1854 of A M 1983 Policy but relate to the question as to the limitations on the permis sibility of the items of import consequent upon the changes in the policy
This question becomes relevant says Shri Salve at a stage which is subsequent to the revalidation and endorsement of the Imprest Licence and that the position in the present cases has not yet reached that stage
Howev er he submitted that as to the choice of items permissible for import the matter would of course have to be deter mined the guided by these pronouncements
As Contention c is not in controversy it is not necessary to dwell on it any further
What however remain to be considered are the contentions a and b
Re Contention a Clauses 3 4 5 and 7 of para 185 of the policy provide 3 Where REP licence has been issued to the Export House on its own exports the facility of importing OGL items under sub para1 above will be allowed without debit to the value of such REP licence provided the value of such imports does not exceed the value of the REP licence
4 The facility for import of OGL items available in sub para 3 above may also be allowed on merits to Export Houses against their advanceimprest licences on account of which they are rendered ineligible to obtain REP licence
In such cases however the value upto which the OGL import may be allowed will not exceed the value to which the Export House would have been eligible to the REP licence had he not obtained advanceimprest licence in question
This facility will be available to the Export House after he has discharged the export obligation imposed on the advanceimprest licence
There fore if by the time the Export House becomes eligible to this facility 7 the advanceimprest licence has expired or if the original validity left unused by that time is less than six months the licensing authority will revalidate the licence simulta neously so as to give to the licence holder a time of six months for the purpose of import ing OGL item under this facility
5 Export Houses who wish to take advantage of this facility of import of OGL items should get the licences concerned en dorsed by the licensing authority as under This licence will also be valid for import of OGL items under para 125 of Import Export Policy 1982 83 subject to the condi tions laid down and shall be nontransferable 7 Import of OGL items by Export Houses under these provisions shall be subject to the condition inter alia that the shipment of goods shall take place within the validity of the OGL ie 31st March 1983
or within the validity period of the import licence itself without any grace period whichever date is earlier
This restriction will also apply to licences issued before 141982 in respect of items which continue to be on OGL in 1982 83 policy
The restriction regarding grace period will not however apply in cases where shipment can be made within the permis sible grace period on or before 3131981
Appellants  contention is that clauses 4 and 7 of para 135 are part of an integrated policy scheme providing for certain incentives to export houses and have to be read together and that the import of OGL items is strictly sub ject to the specific condition that the shipment of goods shall take place within the validity of the OGL ie 3131983 or within the validity period of the licence itself which ever date is earlier
If this condition is held to be attracted to the case of an Imprest Licence also then quite obviously the claim in the writ petitions would have to fail as the application for revalidation is beyond the outer most time limit set for the import itself
Indeed this question was left open by this Court while dismissing SLP 7389 of 1985 Union of India vs Messrs H Patel  Co
In its order dated 1971985 this Court said   
We however make it very clear that we express 8 no opinion on the validity of the above said contention based on paragraph 1857 referred to above
The true effect of the said provi sion is left open to be considered in an appropriate case when an occasion arises to do so
Sri Salve submitted that in the very nature of the procedures and exercises inherent in the effectuation of an imprest licence as distinguished from Replenishment Li cence the Export House has first to import the uncut and unset diamonds and thereafter fulfill its export obligations of cut and polished diamonds as a necessary antecedent for the effectuation of its entitlement to a revalidation and endorsement for OGL items
The very nature of the time consuming transactions that are required to be gone through preceding the very creation of the right to revalidation and endorsement are inconsistent with the feasibility of compli ance with the time schedule in para 1857
Learned Counsel says that the view that should commend itself both on construction and in equity is that having regard to the innate differences in the nature of the obligations and conditions to be fulfilled between the holders of imprest licences on the one hand and the replenishment licences on the other and having regard further to the circumstances that export houses which under Imprest Licences have first to import uncut and unset diamonds and thereafter fulfill their export obligations before becoming entitled to the import of OGL items it would be a wholly unreasonable exercise in construction to import the condition in clause 7 into clause 4 and that clause 4 should therefore be treated on its true construction as a special provision constituting an exception to the generality of the provision in clause 7
Otherwise says counsel the resulting posi tion would be that the satisfaction of the cumulative condi tions in clauses 4 and 7 by an Export House under an Imprest Licence would well nigh be impossible
This way of hormonising clauses 4 and 7 of para 185 it is submitted has commended itself to the High Court in several other writ petitions involving the interpretation of clauses 4 and 7 of paragraph 185 of the AM 1983 policy
Sri Salve submits that it is reasonable to exclude imprest licences from the requirement of clause 7
We have considered the rival contentions on the point
Para 1854 was intended to provide certain incen tives to the Export Houses which upon grant of Imprest Licences fulfill their countervailing obligations in the matter of export commitments
The provision 9 is a beneficial one
Clauses 4 and 7 no doubt on their plain wording present certain constructional difficulties and the view sought to be put across by Shri Subba Rao for the appellant on the plain language of clause 7 is not without possibilities
However the basis of a harmonious construction which commended itself to the High Court in other similar cases appears to us to advance and promote the objects of the policy in paragraph 1854 and is at all events not an unreasonable view to take of the matter
In some of these cases this Court has declined to interfere with this interpretation by rejecting petitions for special leave
Acceptance of the interpretation suggested by Shri Subba Rao would in our opinion unduly restrict the scope of the beneficial provision and in many instances which would otherwise fall within the beneficial scope of the policy in para 1854 take away with one hand what the policy gives with the other
We think we should accept the submissions of Shri Harish Salve which is consistent with the view taken of the matter by the High Court in other cases and hold that the conditions in para 1854 of the policy would not be attracted to the case of Export Houses which are granted Imprest Licences
Accordingly we hold and answer contention a against the appellants
10 Re Contention b This pertains to appellants  plea of delay as a bar to relief
Appellants have aired a serious grievance over this aspect
Shri Subba Rao streneously contended that the re spondents had approached the High Court after an inordinate and unexplained delay of over one and a half years in each of these cases and that appellants  objection as to the disentitlement of the respondents to relief on the ground of delay was not even so much as adverted to by the learned Single Judge or the Division Bench
Learned counsel submit ted that promptitude and vigilant pursuit of legal remedies with diligence is basic to the entitlement to relief in the jurisdiction under Article 226 which is both extraordinary and discretionary and that in the present cases the delay of one and a half years in moving the Court should have been held crucial particularly where grant of import licence is cancelled
The pleadings in the writ petitions are not before us
We will proceed on the assumption that appellants had taken this objection before the learned Single Judge of the High Court and raised the plea as to the bar of delay in their appeals before the Division Bench of the High Court
If this point had been taken we are afraid the High Court 10 was not justified in ignoring it or brushing it aside
Indeed the learned Single Judge of the High Court allowed the writ petitions in both these cases by short orders in similar terms relying upon an earlier decision dated 1920th August 1985 in writ petition No 2477 of 1984
The relevant part of the order reads Relevant facts and circumstances of this petition are similar to the relevant facts and circumstances in Writ Petition No 2477 of 1984 decided by this Court on 1920th August 1985
Besides as in the said Writ Petition No 2477 of 1984 in the present case also there is no such delay as to preclude the petitioners from the relief claimed
In all the circumstances and for reasons stated in Writ Petition No 2477 of 1984 the following order is passed on this Writ Petition
The petition succeeds and the same is allowed
 Thereafter the learned judge proceeded to issue specific directions
Shri Subba Rao would say that the reference in the order by learned Single Judge to the contention on the point of delay as bar to relief had nothing to do with the specif ic contention of the appellants  that there was inordinate and unexplained delay in approaching the Court
This learned counsel submits would be clear by a reference to the aspect of the delay dealt with and considered in WP 2477 of 1984 on which the learned Single Judge relied
The order of the same learned Single Judge in WP 2477 of 1984 in which the particular aspect of delay is considered is at para 8 of that order
That para in the order in WP 2477 of 1984 reads Mr Joshi learned counsel for the respondents submitted that the petitioners were not entitled to relief because of delay
It is not possible to agree
After the redemp tion certificate on 16th November 1983 application for revalidation and OGL endorse ment was made within four months therefrom on 12th March 1984
There is in the circum stances no such delay as to warrant its ejection on that ground
The contention thus fails and is rejected
 Shri Subba Rao submits that the delay referred to in the above paragraph is the delay in seeking revalidation and endorsement after 11 the issue of redemption certificate and not the delay in filing the writ petition and that in both the present cases the plea of delay in filing the writ petitions has not received due consideration by the High Court
Shri Subba Rao referred to a number of pronouncements of this Court to substantiate that such unexplained delay particularly in matters dealing with import licences would bar relief and that un explained delay by itself and without more is a factor disentitling a person to relief
He submitted that absence of prejudice to the opposite party by itself would not justify delay and that in the context of grant of import licences passage of time brings with it as here problems of conflicting policy considerations
Where change of policy would impart crucial significance to the delays Courts learned counsel says should insist upon even a higher degree of promptitude
He accordingly submitted that the writ petitions should be dismissed on the ground alone of delay in filing them
This contention of the appellant cannot be brushed aside
If appellants had raised a specific plea of delay as a bar to the grant of relief and the delays in the present cases having regard to the nature of the subject matter were not inconsiderable it was perhaps necessary for the High Court to have specifically dealt with the plea
The aspect of delay adverted to by the learned Single Judge in the course of the order was a different one
However we think it would be somewhat unfair for the respondents who have succeeded in the High Court to decide this question without an opportunity to them to satisfy the Court as to the reasons if any for the delay and as to the sufficiency of such reasons
We assume that the plea had been taken before the High Court by the appellants as this submission of the learned counsel for the appellant was not controverted
We think it would be appropriate that the appellants  appeals before the High Court are remitted to the High Court for such consideration as the Appellate Bench may now bestow on this contention of the appellants
If the appellate bench is persuaded to view that the delay is satisfactorily explained it may proceed to confirm the orders of the learned Single Judge subject of course to the question of permissibility of the importable items to be determined in the light of the pronouncements of this Court referred to at contention c
If on the contrary the delay is held by the Division Bench to be such as to disen title respondents to relief the Division Bench may proceed to allow the appeals and dismiss the writ petitions
All other controversies in the appeal shall be held to have been concluded in favour of the respondents
12 Accordingly the appellate judgments of the High Court under appeal are set aside and the appeals 149 of 1987 and 179 of 1987 before the High Court are remitted for a fresh disposal as indicated above
The High Court might also consider the desirability of a very early disposal of the appeals
These appeals are disposed of accordingly
There will however be no order as to costs in these appeals
NVK Appeals disposed of


Summary:
Petitioners a recognised Export House for purposes of the Import Export Policy 1982 83 were granted six imprest licences for the import of uncut and unset diamonds with the obligation to fulfil certain export commitment for the export of India of cut and polished diamonds
They did not seek the revalidation and endorsement for OGL items within the time prescribed under Paragraph 1854 of the Import Export Policy 1982 83 AM 1983
Only in the year 1986 after a lapse of several years from the completion of their export obligations they sought such revalidation and en dorsement
The Joint Chief Controller of Imports and Ex ports by two orders dated 581986 and 941986 declined the request on grounds of inordinate delay in seeking revalidation and endorsement and on merits and permissibil ity of the claim
In the Writ Petition the petitioners challenged these orders contending that in view of the grant of revalidation of imprest licences of two other Export Houses consequent upon their writ petitions being allowed by the High Court and the Special Leave Petitions of the Government against the decision being dismissed by the Supreme Court rejection by the authorities of the petitioners  claim for similar revalidation and endorsement of their imprest licences was discriminatory and violative of Article 14 of the Constitu tion inasmuch as the grounds for refusal put forward by the authorities in those cases were exactly similar to those preferred in the case of the petitioners and those grounds had been found to be insufficient in law to support the refusal and that there was no basis for any distinction to be made in the case of petitioners who had made their demand for revalidation after the High Court s decision in one of those cases
Dismissing the Writ Petition 14 HELD Petitioners are re agitating claims which they had not pursued for several years
They were not vigilant but were content to be dormant andclose to sit on the fence till somebody else s case came to be decided
Their case cannot be considered on the anology of one where a law had been declared unconstitutional and void by a Court so as to enable persons to recover monies paid under the compulsion of a law later so declared void
There is also an unex plained inordinate delay in preferring this writ petition which is brought after almost a year after the first rejec tion
18B C Apart altogether from the merits of the other grounds for rejection the inordinate delay in preferring the claim before the authorities as also the delay in filing the writ petition before this Court does not pursuade this Court to interfere in this matter
18E The rejection to this Writ Petition shall not prejudice petitioners  case in the appeal if such a right of appeal is available under the appeal procedures in the policy
19A Durga Prasad vs Chief Controller I  E 19692 SCR 861 referred to