ishwar Dayal JaIn Vs. Chief Controller of Imports and Exports - Court Judgment

Excerpt:
- section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - 2/86-87, dated 6th may, 1986 (annexure 'c') provided that export will be allowed to the established exporters on pro-rata basis to the extent of their entitlement on the basis of 'best year's exports'.2. the grievance of the petitioner is that his 'best year's export' was in 1985-86 when he exported 1,60,180 pieces of peacock tail feathers and consequently for the year 1986-87 he was entitled to the allocation of quota on the basis of the said export. it was not disputed that the quota to the established exporters was to be allocated no pro-rata basis to the extent of their entitlement on the basis of 'best year's exports'.it was, however, contended that the criteria for working out 'best year's exports' was laid in export instruction no. according to these instructions the best year's exports to be taken into consideration were the exports made by an applicant during one of the three basic years ending september, 1987, namely (i) october, 1964-september, 1965; (ii) october, 1965-september, 1966; and (iii) october, 1966-september, 1967. according to these guidelines best year's exports of the petitioner were 87,600 pieces as against the total quantity of 35,49,400 pieces. 4. learned counsel for the petitioner contended that the term 'best year's exports' can in no way be interpreted as exports made in the three years preceding the year ending september, 1967 and the interpretation adopted by the respondents was palpably wrong. 4, export will be allowed to established exporters on pro-rata basis taking into account the best year's export of the last three licensing years'.on the basis of these trade instructions, argued the learned counsel for the petitioner, the best year's exports were the exports made during any of the three years preceding the year ending september, 1986. 5. we have carefully examined this contention but we do not find much merit in the same. 24/68, dated april 25, 1968 (copy annexure r-1) provides :basis for working out the best year's exports by joint chief controllers of imports and exports would be the exports made by an applicant during any one of the three basis years ending september, 1967 selected by him i. (a) october, 1964 -september, 1965; (b) october, 1965 -september, 1966; and (c) october, 1966 -september, 1967'.these instruction, which are still in force, made it clear that 'best year's exports' mean best exports made in any of the three years ending september, 1967. it was urged on behalf of the petitioner that this basis was laid down in april, 1968 and could not govern the allocation for future exports. in this letter the association stated 'there are 27 members of this association who are getting quota of peacock tail feathers and articles made there from regularly since 1968-69 on pro-rata basis of their best year's exports selected by them out of the prescribed basic period fixed by the government. our member-exporters had selected best year out of the prescribed basic period of three years ending 30th september, 1967 and this fact is verified by the concerned port licensing authority from the documentary evidence such as bill of lading etc. produced by the established exporters'.7. this letter shows that it was the case of the association itself, of which the petitioner was a member, that the term 'best year's exports' meant the best exports made in any of the three years ending 30th september, 1967, as is the plea of the respondents. in presence of this letter the contention of the petitioner that the 'best year's exports' meant the best exports made in any of the preceding three years could not be accepted. 41/85, dated 1st june, 1985 (annexure a) it was stated that 'export would be allowed to established exporters on pro-rata basis taking into account the best year's export of the last three licensing years'.as contended by learned counsel for the respondents, the words 'of the last three licensing years' appear to have crept in by inadvertence or due to some mistake. it is clear from the letter dated 19th june, 1986 addressed by the petitioner to the joint chief controller of imports and exports, new delhi (annexure e). in this letter the petitioner himself had stated that the export was to be allowed to the established exporters on pro-rata basis to the extent of their entitlement on the basis of best year's exports. it was not his case that the best year's exports were exports of the last three years.g.c. jain, j.1. the petitioner, shri ishwar dayal jain (since deceased), was an established exporter of peacock tail feathers. he was carrying on this business for the last 20 years in the name and style of m/s. jain traders, sadar bazar, delhi. the ministry of commerce prescribed a ceiling for the export of this item each year. on the basis of the said ceiling a quota for exporting this item was allocated to the established exporters and other categories by the chief controller of imports and exports/joint chief controller of imports and exports, new delhi, bombay, calcutta and madras. the allocation was made on the basis of 'export instructions'. relevant export instruction no. 2/86-87, dated 6th may, 1986 (annexure 'c') provided that export will be allowed to the established exporters on pro-rata basis to the extent of their entitlement on the basis of 'best year's exports'. 2. the grievance of the petitioner is that his 'best year's export' was in 1985-86 when he exported 1,60,180 pieces of peacock tail feathers and consequently for the year 1986-87 he was entitled to the allocation of quota on the basis of the said export. the respondents, however, had allowed quota on the basis of the export during the year 1981-82 which act was arbitrary, illegal and vocative of his fundamental rights under article 14 and 19(1)(g) of the constitution of india. on these averments he seeks a writ of mandamus directing the respondents to modify the allotment letter dated 30th may, 1986 allocating the ceiling limit to which the petitioner was entitled to export peacock tail feathers in the year 1986-87 and to determine the ceiling limit with reference to the export made by the petitioner in the year 1985-86. 3. the respondents resisted the claim of the petitioner. it was not disputed that the quota to the established exporters was to be allocated no pro-rata basis to the extent of their entitlement on the basis of 'best year's exports'. it was, however, contended that the criteria for working out 'best year's exports' was laid in export instruction no. 24/68, dated 25th april, 1968 which was still in force and had not been withdrawn. according to these instructions the best year's exports to be taken into consideration were the exports made by an applicant during one of the three basic years ending september, 1987, namely (i) october, 1964-september, 1965; (ii) october, 1965-september, 1966; and (iii) october, 1966-september, 1967. according to these guidelines best year's exports of the petitioner were 87,600 pieces as against the total quantity of 35,49,400 pieces. the petitioner had been allocated quota on this basis throughout and for the year 1986-87 also the quota had been allocated to him on that basis. 4. learned counsel for the petitioner contended that the term 'best year's exports' can in no way be interpreted as exports made in the three years preceding the year ending september, 1967 and the interpretation adopted by the respondents was palpably wrong. our attention was drawn to the export instruction no. 41/85, dated 1st june, 1985 (annexure a) relevant portion of which reads : 'as regards category no. 4, export will be allowed to established exporters on pro-rata basis taking into account the best year's export of the last three licensing years'. on the basis of these trade instructions, argued the learned counsel for the petitioner, the best year's exports were the exports made during any of the three years preceding the year ending september, 1986. 5. we have carefully examined this contention but we do not find much merit in the same. the export instruction no. 24/68, dated april 25, 1968 (copy annexure r-1) provides : 'basis for working out the best year's exports by joint chief controllers of imports and exports would be the exports made by an applicant during any one of the three basis years ending september, 1967 selected by him i.e. (a) october, 1964 - september, 1965; (b) october, 1965 - september, 1966; and (c) october, 1966 - september, 1967'. these instruction, which are still in force, made it clear that 'best year's exports' mean best exports made in any of the three years ending september, 1967. it was urged on behalf of the petitioner that this basis was laid down in april, 1968 and could not govern the allocation for future exports. this, however, cannot be accepted. there is no material on the record to show that this criteria was ever withdrawn. the respondents have produced a chart (annexure r2) showing that the petitioner was always allocated the quota worked out at 87,600/35,49,400 of the ceiling prescribed by the ministry of commerce i.e. on the basis of the criteria laid down in the export instruction no. 24/68, dated 25th april, 1968. 6. the respondents have also produced on record copy of a letter dated 18th september, 1985 (annexure r-3) from the (established shippers) association of peacock tail feathers to chief controller of imports and exports, new delhi. the petitioner is admittedly a member of this association. in this letter the association stated 'there are 27 members of this association who are getting quota of peacock tail feathers and articles made there from regularly since 1968-69 on pro-rata basis of their best year's exports selected by them out of the prescribed basic period fixed by the government. the prescribed basic period fixed by the government was three years ending 30th september, 1967 as up to the year 1967 the licensing year for peacock feathers was from 1st october to 30th september of the subsequent year. our member-exporters had selected best year out of the prescribed basic period of three years ending 30th september, 1967 and this fact is verified by the concerned port licensing authority from the documentary evidence such as bill of lading etc. produced by the established exporters'. 7. this letter shows that it was the case of the association itself, of which the petitioner was a member, that the term 'best year's exports' meant the best exports made in any of the three years ending 30th september, 1967, as is the plea of the respondents. in presence of this letter the contention of the petitioner that the 'best year's exports' meant the best exports made in any of the preceding three years could not be accepted. 8. no doubt, in export instruction no. 41/85, dated 1st june, 1985 (annexure a) it was stated that 'export would be allowed to established exporters on pro-rata basis taking into account the best year's export of the last three licensing years'. as contended by learned counsel for the respondents, the words 'of the last three licensing years' appear to have crept in by inadvertence or due to some mistake. it is clear from the letter dated 19th june, 1986 addressed by the petitioner to the joint chief controller of imports and exports, new delhi (annexure e). in this letter the petitioner himself had stated that the export was to be allowed to the established exporters on pro-rata basis to the extent of their entitlement on the basis of best year's exports. it was not his case that the best year's exports were exports of the last three years. the statement contained in export instruction no. 41/85, dated 1st june, 1985, thereforee, is of not much consequence. 9. moreover, the quota for 1986-87 has already been allocated to all established exporters on the basis of the criteria laid down in export instruction no. 24/68, dated 25th april, 1968. we find no justification for upsetting all these allocations. 10. in conclusion we find no merit in the petition and dismiss the same. the parties are, however, left to bear their own costs.