Delhi High Court
Association Of Agro Importers & ... vs Union Of India & Ors. on 9 May, 2017
$~12
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 899/2015 & CM No.30620/2015
% Date of decision : 9th May, 2017
ASSOCIATION OF AGRO IMPORTERS
& ANR. ..... Appellants
Through: Mr. Tanmaya Mehta,
Ms. Swati Gupta and
Ms. Mudita Sharda, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms. Suparna Srivastava, Adv.
for R-1 to 3.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. The present appeal challenging an order dated 13th October,
2015 in WP (C) No.3386/2012 has been filed by the Association of
Agro Importers and the Indo Foreign Chamber of Commerce
purporting to be a duly registered body representing the almond
traders of the city.
M/s Indo Foreign Chamber of Commerce has been arrayed as
appellant no.2 which is described as a body representing the traders of
State of Punjab, represented before us by Mr. Vipul Aggarwal,
(petitioner No.3 in WP(C)No.3386/2012) who is one of the traders of
the almonds in the city.
2. The writ petition was filed complaining of certain violations
and illegalities in the working of the LoC Border Trade Policy which
was being implemented by the respondents in the state of Jammu and
Kashmir. Premised on violations which stand detailed in the writ
petition, the appellant had made the following prayers by way of
WP(C)No.3386/2012:
" (a) To issue appropriate writ direction or order
under Article 226 of the Constitution to the
respondent to take immediate steps and requisite
measures to implement the policy of LoC trade and
in particular to take measures to ensure that items
are not illegally imported in contravention to Loc
trade policy.
(b) To issue appropriate writ direction or order
under Article 226 of the Constitution directing the
respondents to exclude import of Almonds from
the policy of LoC trade."
3. This writ petition came to be rejected by the ld. Single Judge by
the order dated 13th October, 2015 holding that the appellants had not
made any specific complaints of violation of the policy and that the
issues raised by the appellant were in the domain of policy making
and that the court could not possibly interfere in the same. For want of
material, it was held that the appellant had not made out any ground of
interference with policy decision of the Government.
4. So far as prayer for striking down the LoC trade policy was
concerned, placing reliance on the pronouncement of the Supreme
Court reported at (2005) 6 SCC 281 Sushil Kumar Sharma v. Union
of India it was held that 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 the administration and
application of a particular law would be done not with evil eye and
unequal hand. The ld. Single Judge placing reliance on (2012) 10
SCC 1 Re : Natural Resources Allocation has further 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 is the actual abuse itself which must be
brought before the Court for being tested on the anvil of constitutional
provisions.
5. It appears that while the writ petition was pending, based on
certain additional information, an application dated 9th October, 2015
by the appellant was filed before the ld. Single Judge in the Registry.
Before this application could be registered and place before this court,
the writ petition itself came to be disposed of by the impugned order
dated ______. This application therefore, is being placed before us
along with the appeal paper book.
6. Mr. Tanmaya Mehta, learned counsel for the appellant also
submits that apart from the response dated 19th August, 2015 to the
RTI query made to the respondent, which was filed along with the
aforesaid application, the appellant had made a further query and
received a communication dated 16th November, 2015 whereby, the
respondents have informed the appellant regarding the quantum of
Almond Badam Giri imported during the period 2001-07 into India as
well as for the period 2008 - 2015 under the Barter System under
Cross LoC Trade between Jammu and Kashmir (India) and PoK
(Pakistan occupied Kashmir).
7. The writ petition was dismissed by the order dated 13th
October, 2015 by the ld. Single Judge which has been assailed by way
of present appeal.
8. We are informed by Ms. Suparna Srivastava, learned counsel
for the respondents that she has been instructed by communication
dated 19th December, 2016 by the Ministry of Home Affairs that the
Government of India has decided to initiate an investigation into the
matter by the National Investigation Agency regarding the import of
Almond Badam Giri by the Cross LoC mechanism through trade
facility centre in Jammu and Kashmir and that the investigation is in
progress.
9. It therefore, appears that the matter raised by the appellant by
way of WP(C) No.3386/2012 has received attention of the
Government at the highest level.
10. In view of the submissions made by Ms. Suparna Srivastava,
learned counsel noted hereinabove, Mr. Tanmaya Mehta, learned
counsel for the appellant makes a prayer that he would not press the
appeal, if it is directed that the appeal as well as the application filed
by the appellant be treated as a representation to the respondent who
may consider the same while taking a view regarding the matter under
investigation.
This request is reasonable.
11. In view of the above, this appeal is disposed of with a direction
that the respondent shall treat the appeal and the application filed by
the appellant as representation made to them and shall consider the
material placed by the appellant before taking a final view in the
matter in the pending investigation as well as while formulating a
policy with regard to the matter of Cross Border Trade Policy.
The appeal and application are disposed of in the above terms.
Dasti.
ACTING CHIEF JUSTICE
ANU MALHOTRA, J
MAY 09, 2017
mk
