Delhi High Court
Association Of Agro Importers And ... vs Union Of India & Ors on 13 October, 2015
Author: Rajiv Sahai Endlaw
$~5.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.3386/2012
ASSOCIATION OF AGRO IMPORTERS AND ORS .... Petitioners
Through: Mr. Rudra Nath Sinha, Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms. Gunjan Bansal for Mr. Arun
Bhardwaj, CGSC for R-1&2.
Mr. Satish Kumar, Sr. Standing
Counsel for R-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 13.10.2015
1. The petition is ripe for hearing.
2. The counsel for the petitioners however seeks adjournment on the
ground that the senior engaged by the petitioners is engaged out station
today.
3. The counsel for the respondent no.3 Ministry of Finance through
Chairman, Central Boards of Excise and Customs states that the petitioners
are unnecessarily keeping this petition pending and an official of the
respondent no.3 travels from Poonch in Jammu & Kashmir on each date of
hearing to give instructions in the matter.
4. In my view, the petitions cannot be kept pending in this manner and
especially on the ground urged. The petitioners ought not to have briefed a
senior counsel who was not available for today. The counsel for the
petitioners has been given an opportunity to argue but he has not availed of
the same. With the assistance of the counsel for the respondent no.3 and the
W.P.(C) No.3386/2012 page 1 of 4
counsel for the respondents no.1&2 Union of India and Ministry of
Commerce, Government of India, the records have been perused and they
have also been heard.
5. The three petitioners namely Association of Agro Importers, Indo
Foreign Chamber of Commerce and Vipul Aggarwal have filed this petition,
(i) seeking a direction to the respondents to take immediate steps and
requisite measures to implement the Policy of Line of Control (LoC) trade
and in particular take measures to ensure that items are not illegally imported
in contravention to LoC trade Policy; and, (ii) seeking a direction to the
respondents to exclude import of Almonds from the Policy of LOC trade.
6. It is the case of the petitioners that, (i) they represent the Almond
Traders of the city of Delhi and of the State of Punjab; (ii) with a view to
initiate the trade between India and Pakistan, a Policy was introduced in
October, 2008 for trade across the LoC between the two countries; (iii) the
purport of the said Policy was to improve the relationship between the two
countries and to make available across the LoC commodities / items grown
in the vicinity of LoC; (iv) with that object in mind, a list of items was
prepared in which trade across the LoC is permitted and which list included
Almonds; (v) however in the garb of trading Almonds across the LoC,
Californian Almonds are being brought into India from Pakistan affecting
the petitioners; and, (vi) Pakistan is not known much as an Almonds growing
country and from the value of trade it is evident that the Almonds being
brought to India from Pakistan under the said Policy are not the Almonds
grown in Pakistan but Californian Almonds.
W.P.(C) No.3386/2012 page 2 of 4
Accordingly, claiming the reliefs aforesaid, this petition has been
filed.
7. The respondent no.3 Chairman Central Board of Excise & Customs in
its counter affidavit has pleaded that, (i) the Government of India in
consultation with the Government of Pakistan decided to have cross LoC
trade between two parts of Jammu & Kashmir without levy of duty on goods
to be traded; (ii) Standard Operating Practices (SOP) for cross LoC trade
were issued; (iii) no case has come to notice as yet of the said trade having
been hijacked by unscrupulous elements; (iv) trade of Almonds is being
allowed as per serial no.10 (Dry Fruits including walnuts) of Appendix-B to
SOP; and, (v) Almonds are grown in and produced in Jammu and Kashmir
and Pakistan Occupied Kashmir and are as such being allowed to be traded
across LoC under the category of Dry Fruits and no third country origin
goods are allowed to be traded across LoC.
8. The counsel for the respondent no.3 has today also argued that the
petitioners, instead of making any specific complaints of violations of the
said Policy, have filed this petition making vague allegations. It is stated that
if any specific complaints are made, action would be taken.
9. I am of the view that this Court in exercise of powers of judicial
review cannot enter into the domain of Policy making. The Competent
Authority of the Government of India having taken a decision to allow trade
across LoC in some items and having further decided to include Almonds in
the list of items in which the said trade is permitted, it is not for this Court to
intervene and to decide whether the trade across LoC in Almonds should be
permitted or not. Moreover, the petitioners have not made out any ground
W.P.(C) No.3386/2012 page 3 of 4
for interference with the said Policy decision of the respondents. The
grievance of the petitioners is of misuse of the Policy. The counsel for the
respondent no.3 is correct in his contention that the remedy for such
grievance is by making complaints against the said specific individuals and
with respect to specific transactions of items not entitled to be traded being
traded in the garb of the Policy.
10. The settled principle that the mere possibility of abuse of a provision
of law does not per se invalidate a legislation and that it must be presumed,
unless contrary is proved that administration and application of a particular
law would be done not with an evil eye and unequal hand (as reiterated in
Sushil Kumar Sharma Vs. Union of India (2005) 6 SCC 281) can be
applied to executive policies also. Supreme Court, in In Re: Natural
Resources Allocation (2012) 10 SCC 1 held that a potential for abuse of
methods other than auction for allocation of natural resources cannot be the
basis for striking down the same as ultra vires the constitution. It was held
that it is the actual abuse itself which must be brought before the Court for
being tested on the anvil of constitutional provisions.
11. There is thus no merit in the petition. The petition is dismissed.
However the same would not come in the way of the petitioners making
complaints to the respondents of violations of the Policy and in which case
the respondents are expected to expeditiously deal with the same and to take
preventive steps to prevent the violations in future.
No costs.
RAJIV SAHAI ENDLAW, J
OCTOBER 13, 2015/'pp'..
W.P.(C) No.3386/2012 page 4 of 4
