SECRETARY TO THE TREASURY AND 2 OTHERS
COURT OF APPEALDR. R.B. RANARAJA, J.
C.A. 39/96JUNE 24, 1996.
Imports & Exports (Control) Act – S. 21 Customs Ordinance – Licence to Im-port Motor Vehicle – Duty Waiver – Policy decision of the State – Public Ad-ministration Circular 24/93 of 1.10.93.
The petitioner was a member of the 9th Parliament which was dissolved on26.6.94. He was not returned to Parliament at the Election that followed. Hemade an application for a Licence to import a Motor Vehicle, and was issuedwith a licence dated 1.7.94, with an endorsement; that the liability to payimport duty or other dues have to be settled with the Director General ofCustoms and other relevant Authorities, and further indicated that the licenceis valid, subject to certain limits in value and cylinder capacity. The licencewas valid till 1.1.95, however it was not shipped by 1.1.95, but the licencewas amended on 5.1.95 extending the validity of shipment. The vehicle waslanded on 19.2.95.
The Director General, Fiscal Policy & Economic Affairs, informed the peti-tioner that Her Excellency the President- as the Minister of Finance – hadrefused a waiver of duty on the vehicles imported by Members of the 9thParliament who have not been re-elected to the present parliament andwho have obtained licenses after 24.6.94 but before 1.8.94 and who haveopened letters of Credit before 1.9.94.
The petitioner contends that the said decision is un-reasonable in breachof the petitioner's legitimate Expectation; and therefore should be quashed.
(1) The licence was valid for shipment of the vehicle upto 1.1.95. The vehi-cle was not shipped before that date therefore the validity of the licenseexpired on 1.1.95. This was "amended" on 5.1.95 extending the validity ofshipment. The date of issue of the 'Amended license' was 5.1.95. A license,the validity of which has expired is of no force, and cannot be suspended orcancelled; it also cannot be amended.
Therefore the purported Amendment is not valid in law. The petitioner didnot held a valid license to import a vehicle on the day it landed, thus thepetitioner has no enforceable legal right.
(2) The petitioner has breached both conditions with regard to the Cylindercapacity and value of the vehicle by opening Letter of Credit (P3A) – thepetitioner who has by his own conduct breached the conditions of the "Li-cense" cannot claim its benefit as of right. He has forfeited any benifit hemay have been entitled to. Neither can be claim that he had a legitimateExpectation to a benefit, when he himself had breached its conditions.
APPLICATION for a Writ of Certiorari.
Case referred to:
1. Risley v. Gough (1953) Tas. S.R. 78.
Faiz Musthapha, P.C. with Hemasiri Withanachchifor Petitioner.
S. Sri Skandarajah, SSC for Respondent.
July 16, 1996.
DR. RANARAJA, J.
The petitioner was a member of the 9th Parliament which was dis-solved on 26.6.94. He was not returned to Parliament at the Electionthat followed. He made an application for a Licence to import a motorvehicle to the Controller of Imports and Exports. He was issued withLicence No. 177416 dated 1.7.94 (P2), in terms of Public Administra-tion Circular No. 24/93 of 01.10.93. The Licence bore the endorsement"The issue of this import Licence has no relevance to the liabilityto pay import duty or other dues which matters have to be settledwith the Director General of Customs and other relevant authori-ties". A further condition which had to be included in the Licence wasthat the engine capacity of the vehicle to be imported should not ex-ceed 1500 cc for Petrol vehicles and 2000 cc for Diesel vehiclesand the value for Diesel vehicles not to exceed US $ 10,000 (videP1). The Licence was valid for shipping up to 01.01.95. It is al-leged, the Acting Controller of Imports and Exports informed the Man-ager, People's Bank by letter P3 dated 23.11.94, that a letter of creditmay be opened on the conditions stated in the Licence P2. The letter
of credit P3A was opened on 23.9.94. The letter of credit is in respectof the shipment of "One Unit Brand New Mitsubishi TurboIntercooler Pajero 2800 cc Diesel with all std fittings and acces-sories" costing J.Y. 3,350,000/-. The funds for the importation ofthe said vehicle was admittedly provided by the People's Bank. Thevehicle was not shipped by 01.01.95. It is alleged that the Licencewas 'amended' on 5.1.95 extending the validity of shipment. Thevehicle was landed at the Colombo Port on 19.2.95.
The complaint of the Petitioner is that,
The Deputy Secretary to the Treasury by his letter P6 refused togrant a duty waiver on the vehicle in terms of the Cabinet decisiondated 14.12.94.
The Deputy Secretary to the Treasury by letter P12 dated 5.7.95,reiterated his position that no duty waiver could be granted in view ofthe policy decision taken by the Government.
The Director General, Fiscal Policy and Economic Affairs, of theMinistry of Finance by his letter P17 dated 18.01.96, informed thepetitioner that Her Excellency the President, in her capacity as theHon Minister of Finance, had refused a waiver of duty on the vehiclesimported by inter alia, Members of Parliament of the 9th Parliament,who have not been re-elected to the present Parliament and who haveobtained import Licences after 24.6.1994, but before 01.08.94, ie:the date of suspension of the issue of import Licences and who haveopened irrevocable letters of credit before 01.09.1994.
It is the contention of the petitioner that the said decision in P6, P12and P17 are, (a) unreasonable, (b) in breach of the petitioner's legiti-mate expectation. He submits that the decisions conveyed by P6,P12 and P17 should be quashed by a mandate in the nature of a writ ofcertiorari.
Before looking into the submissions of the Petitioner, it is necessaryto consider whether he has the right to invoke the extraordinary rem-edies by way of prerogative writs.
The petitioner has based his right to relief on Public AdministrationCircular No. 24/93 (P1) and Licence P2 as "amended" by P4.
Under the provisions of the Imports and Exports (Control) Act, theController may issue a Licence subject to any conditions as he maydeem necessary, which have to be set out in the Licence. The granteeof the licence is then authorised to import into Sri Lanka goods ofsuch value and quantity subject to the conditions set out in the Li-cence. The Controller has the power by order in writing to amend,suspend or cancel a Licence issued by him.
Licence P2 was valid for shipment of the vehicle upto 01.01.95. Ad-mittedly, the vehicle was not shipped before that date. Therefore, thevalidity of the Licence expired on 01.01.95. It is averred that theLicence was 'amended' by P4. The date of issue of P4 is 5.1.95. Thequestion arises whether P2 could have been validly 'amended' on5.1.95? As section 9 (1) of the Imports and Exports (Control) Act stands,it cannot for the reason, just as much as a Licence, the validity ofwhich has expired and is of no force, cannot be suspended or can-celled, it also cannot be amended. Thus, the purported amendment ofP2 by P4 is of no validity in Law. Therefore the Petitioner did not holda valid Licence to import a vehicle on the day it landed. Thus thepetitioner has no enforceable legal right.
This view is supported by the observation of Gibson J. in Risley vGougft1> where he stated, "I cannot construe the word "amended” otherthan to mean the perfecting or ameliorating an existing thing – Notsupplying a vacuum with something that should be there".
As at 01.01.95, P2 became a "vacuum" which could not have beenclothed with validity by the purported amendment P4.
Section 21 of the Imports and Exports (Control) Act, provides that theprovisions of the Act shall be read and construed as one with theCustoms Ordinance. P2 bore the endorsement that it had no relevanceto the liability of the petitioner to pay import duty or other dues whichhad to be settled with the Director General of Customs. However,condition (f) in Public Administration Circular P1 provided that vehiclesimported are free from all duties and taxes under section 19 (a) of the
Customs Ordinance but an amount equivalent to 25% of the C.I.F.value will be recovered as a fee by the Controller of Imports or Ex-ports. Since P2 also bore the endorsement that "This Licence is is-sued in terms of Public Administration Circular No. 24/93 of 01.01.93,it is assumed for the purpose of this order that the petitioner wouldhave been entitled to that concession provided he complied with theother conditions of P1.
' Part 1 of P1, which refers to the importation of new vehicles andimportation of vehicles less than 3 years old on concessionary terms,states that this concession is subject to the following limits in valueand cylinder capacity.
Petrol vehicles 1500 cc US $ 8,000.
Diesel vehicles 2000 cc US $ 10,000.
The Petitioner has not annexed any document to prove that theseconditions have been varied. Thus, P2 could have been issued toimport a vehicle which satisfied those conditions. The letter of creditP3A has been opened for the shipment of "One Brand New MitsubishiTurbo Intercooler Pajero 2800 cc Diesel", which exceeds the cylindercapacity of a vehicle that is entitled to the concession (f) in P1. Simi-larly, the value Japanese Yen 3,350,000/* also exceeds the limit ofUS $ 10,000/-. The Petitioner has breached both conditions with re-gard to the cylinder capacity and value of the vehicle by opening letterof credit P3A. The Petitioner has not averred, either in his originalpetition or amended petition, that the vehicle which was landed at theColombo Port complied with those conditions in P1. The Petitionerwho has by his own conduct breached the conditions of P1, whichentitled him to the benefit of importing a vehicle on concessionaryterms, cannot claim its benefit as of right. In fact, he has forfeited anybenefit he may have been entitled to. He has also forfeited any legalright to remedy by way of certiorari.
The reasons given above would be sufficient to dispose of thisapplication. However, the Petitioner argued that by P1 he was givena benefit and he had a legitimate expectation that he would not besummarily disappointed. The Petitioner obtained Licence P2 on01.07.94. He has a period of six months to import the vehicle. He
failed to make use of the Licence till it expired. He has obtained therecommendation of the Secretary General of Parliament for dutywaiver on 6.2.95, after the expiry of P2. He had therefore no right toapply for a duty waiver to the Secretary to the Treasury on the basisof P2. The Petitioner has not produced a copy of the agreemententered into by him in terms of condition 3 (b) of P1, before he madethe application for the duty waiver. The 1 st Respondent Secretarytherefore had every right to reject his application to import a vehiclein terms of Circular P1 alone.x
The Petitioner cannot therefore claim that he had a legitimateexpectation to a benefit under Circular P1 when he himself hadbreached its conditions. The mere fact that the 1st Respondent hadprima facie refused to grant a waiver on the basis of the change ofGovernment policy would not have precluded him from refusing thatbenefit for reasons listed above.
In the circumstances of this application, Court cannot grant therelief claimed. The application is dismissed without costs.
GALAPPATHTHY v. SECRETARY TO THE TREASURY AND 2 OTHERS