Karnataka High Court
All India Hdpe/Pp Woven Fabric ... vs The Secretary on 8 January, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 05.01.2024
Pronounced on : 08.01.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.287 OF 2024 (GM - RES)
BETWEEN:
ALL INDIA HDPE/PP WOVEN FABRIC
MANUFACTURERS' ASSOCIATION
AN ASSOCIATION REGISTERED
UNDER SOCIETIES ACT
KPL COMPOUND, 7TH MILE,
BANNERGHATTA ROAD,
BENGALURU - 560 076
BY ITS SECRETARY GENERAL
SHRI NARESH BHANDIA.
... PETITIONER
(BY SRI N.RAGHAVENDRA RAO, ADVOCATE)
AND:
1 . THE SECRETARY
GOVERNMENT OF INDIA
COMPETITION COMMISSION OF INDIA
9TH FLOOR, OFFICE BLOCK-1
KIDWAI NAGAR (EAST)
NEW DELHI - 110 023.
2
2 . THE SECRETARY
GOVERNMENT OF INDIA
MINISTRY OF MICRO, SMALL AND
MEDIUM ENTERPRISES
UDYOG BHAWAN,
RAFIQ MARG
NEW DELHI - 110 011.
3 . THE SECRETARY
GOVERNMENT OF INDIA
DEPARTMENT OF CHEMICALS AND
PETRO CHEMICALS
236A, A-WING, 2ND FLOOR,
SHASTRI BHAWAN,
NEW DELHI - 110 001.
... RESPONDENTS
(BY SRI H.SHANTHI BHUSHAN, DSGI A/W
SMT.SADHANA DESAI, CGC)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER NO.S.O.1625(E) DTD. 15.04.2021 IN THE GAZETTE OF
INDIA, EXTRAORDINARY, (PART-II-SEC.3(ii)), VIDE ANNX-C AND
QUALITY CONTROL ORDER BEARING NO. S.O. 4235(E), NEW DELHI
DTD. 26.09.2023, IN THE GAZETTE OF INDIA, EXTRAORDINARY,
(PART-II-SEC.3(ii)), AS AT ANNX-G TO THE WRIT PETITION, BOTH
PASSED BY THE R-3 AND GRANT SUCH OTHER RELIEFS AS THIS
HONB'LE COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES
OF THE CASE, INCLUDING THE COSTS.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 05.01.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioner is before this Court calling in question a
Notification dated 15-04-2021 issued by Government of India which
imposes quality control on import of plastic into the shores of the
nation to become effective from 05-01-2024.
2. Shorn of unnecessary details, facts in brief, are as follows:-
The petitioner is said to be an Association of Manufacturers
and suppliers of high density polyethylene, low density polyethylene
and other allied products. It is the case of the petitioner/Association
that high density polyethylene is a plastic polymer which is
commonly used by variety of consumers including industrial units.
It is more resistant to cracking and less likely to suffer from stress
induced failure. The low density polyethylene is widely used in
packaging like foils, trays and plastic bags for both food and non-
food purposes. The petitioner and its members were importing raw
material required for manufacture and supply of high density
polyethylene and low density polyethylene products and after such
import were supplying finished goods all over the country not
restricted to domestic consumption but were also exporting and
claims to be contributing to the economy of the country. It is the
averment that the industries coming under the Association are
feeding over 25 lakh families as they have employed that many
persons in their respective industries.
3. The third respondent/Department of Chemicals and Petro
Chemicals of the Union of India issues a quality control order on
15-04-2021 seeking to impose certain restrictions on low density
polyethylene, linear low density polyethylene and high density
polyethylene. The quality control was that the aforesaid
polyethylenes should confirm to the corresponding Indian standard
and shall bear the standard mark under a licence from the Bureau
of Indian Standards ('BIS' for short) as per Schedule I and
Schedule-II of the Bureau of Indian Standards (Conformity
Assessment) Regulations, 2018. The petitioner claims that
imposition of such a clause on the supply of raw material will
restrict free movement and sale of the said raw materials and
would create a monopoly in the hands of a few in the industry. It is,
therefore, the Association submitted certain representations to
respondents 2 and 3 to have a look at the conditions imposed in the
quality control order insofar as it necessitates the quality to pass
through the BIS with the seal of BIS. That is not acceded to. On
26-09-2023 the 3rd respondent issues another notification directing
that the earlier notification which imposed quality standard would
be coming into effect on 05-01-2024. It is, therefore, the petitioner
claiming to be aggrieved by the imposition of conditions for import
of plastic is before this Court in the subject petition.
4. Heard Sri N.Raghavendra Rao, learned counsel appearing
for the petitioner and Sri H. Shanthi Bhushan, learned Deputy
Solicitor General of India appearing for the respondents.
5. The learned counsel appearing for the petitioner would
vehemently contend that the notification is aimed at one single
purpose, to help Reliance Industries, as according to the petitioner
Reliance Industries has a monopoly in the manufacture of linear
and a particular ingredient 'granule' that is necessary for production
of plastic. It is his contention that there is no other player in the
market and all the plastic manufacturers have to line up to Reliance
Industries only. The learned counsel would further contend that
there is no nexus with the production of plastic, for imposition of
the aforesaid conditions, he would contend such conditions are
imposed on raw material. But, such conditions ought to have been
imposed on a finished product and not on raw material. It is his
submission that if on finished product quality control is imposed, it
would be in tune with law and not the raw material imported as is
done in the case at hand. He would take this Court through a
communication from the Under Secretary in the Department of
Commerce to the 3rd respondent directing that the Government
itself is in doubt about its implementation and, therefore, it should
not be given effect to by an order of the Court. He would seek
quashment of the notification, which brings in such quality
standards.
6. On the other hand, the learned Deputy Solicitor General of
India Sri H.Shanthi Bhushan, appearing along with Smt. Sadana
Desai, has on war footing secured complete instructions and would
contend that members of the petitioner/Association are not wanting
to bring in quality into the country. If any interference is shown, it
would lead to cheap raw material being imported, as was done
earlier, which would lead to several hazardous issues including
environmental. What the Government of India has done is to bring
in certain quality measures by way of a policy decision. He would
submit that this Court would not interfere with a policy decision
particularly, economic policy or a policy to regulate quality, in
exercise of its jurisdiction under Article 226 of the Constitution of
India. He would, in reply to the allegation that there is only one
player in the market, contend that it is a false submission that there
is one player in the market. He would seek to place on record that
there are about 50 players in the market including the ones that are
outside the country and insofar as granules are concerned there are
12 players in the market and not only the Reliance Industries. He
would, therefore, seek dismissal of the petition.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts, though not in dispute, would
require little elaboration. The status of the petitioner is not in
dispute, that it is an Association of manufacturers and suppliers of
high density polyethylene, low density polyethylene and linear low
density polyethylene products. These products are used to make
plastic material and they are commonly known as plastic polymer in
various consumer and industrial products. They are two types - a
low density polyethylene which has low resistance to cracking and
would suffer from stress induced failure and the other being a high
density polyethylene which is more resistant to cracking and less
likely to suffer stress induced failure which is used in variety of
packaging material, containers, pipes of good strength. High
density polyethylene is also resistant to fatigue and has also low
coefficient of friction. Therefore, the entire issue is with regard to
raw material in the name of high density polyethylene; linear low
density polyethylene or low density polyethylene being used in the
plastic industry.
9. The plastic which is commonly used in packaging was
imported as a mode of packaging in 1940. It was then polymerized
from ethylene which was different from what it is today. Then
emerged a low density polyethylene with low cost to make many
flexible packaging applications. Low density polyethylene became
popular as it was flexible, odorless, transparent with 100%
recyclable thermoplastic polymer. This became a part of human life
as it was being packaged in grocery shops and all other walks of
day-to-day human life. The members of the petitioner, is a procurer
of raw material both within and outside the shores of the nation
having supply chain of manufacture and distribution. The
Government of India, faced with several problems shrouded with
usage of plastic, thought it fit to impose certain conditions
concerning its quality.
10. Bureau of Indian Standards Act, 2016 was promulgated to
provide for establishment of a National Standards Body for the
harmonious development of the activities of standardization,
conformity assessment and quality assurance of goods, articles,
processes, systems and services and matters connected therewith
or incidental thereto. Therefore, in exercise of powers conferred
under the Bureau of Indian Standards Act, 2016, Government
issued a notification on 15-04-2021 bringing in Polyethylene
Material for Moulding and Extrusion (Quality Control) Order, 2021.
The notification reads as follows:
"ORDER
New Delhi, the 15th April, 2021
S.O. 1625(E). -- In exercise of the powers conferred by
section 16 of the Bureau of Indian Standards Act, 2016 (11 of
2016), (hereinafter referred to as the said Act), the Central
Government, being of the opinion that it is necessary or
expedient so to do in the public interest after consultation with
the Bureau of Indian Standards, hereby makes the following
order, namely:-
1. Short title, commencement and application. - (1)
This order may be called the Polyethylene Material for
Moulding and Extrusion (Quality Control) Order, 2021.
(2) It shall come into force on the expiry of one
hundred and eighty days from the date of its publication
in the Official Gazette.
(3) It shall apply to goods or articles specified in column
(1) of the Table below, but shall not apply to such goods or
articles meant for export.
2. Conformity to standards and compulsory use of
Standard Mark. - Goods or articles specified in column (1) of
the Table below shall conform to the corresponding Indian
Standard given in column (2) of the said Table and shall bear
the Standard Mark under a licence from the Bureau of Indian
Standards as per Scheme-I of Schedule-II of the Bureau of
Indian Standards (Conformity Assessment) Regulations, 2018.
3. Certification and enforcement authority. - The
Bureau of Indian Standards shall be the certifying and enforcing
authority in respect of the goods or articles specified in column
(1) of the Table.
4. Penalty for contravention. - Any person who
contravenes the provisions of this order shall be punishable
under the provisions of the said Act.
TABLE
Goods or article Indian Title for Indian
Standard Standard
Polyethylene Material for IS Specification of
moulding and extrusion 7328:2020 Polyethylene
(i) Low Density Polyethylene Material for Moulding
(LDPE) and Extrusion
(ii) Linear Low-Density
Polyethylene (LLDPE)
(iii) High Density
Polyethylene (HDPE)
[F.No.PC-II 46016/6/2020-Tech.CPC-Pt I]
(Emphasis supplied)
This again was superseded in the year 2022. The conformity to
standards and compulsory use of standard mark from Bureau of
Indian Standards was brought in. The said notification reads as
follows:
"ORDER
New Delhi, the 5th April, 2022
S.O. 1647(E).--In exercise of the powers conferred
by section 16 of the Bureau of Indian Standards Act, 2016
(11 of 2016), (hereinafter referred to as the said Act),
and in supersession of the Polyethylene Material for
Moulding and Extrusion (Quality Control) Order, 2021,
the Central Government, after consulting the Bureau of
Indian Standards, is of the opinion that it is necessary or
expedient so to do in the public interest, hereby makes
the following Order, namely:-
1. Short title, commencement and application. -- (1)
This order may be called the Polyethylene Material for Moulding
and Extrusion (Quality Control) Order, 2022.
(2) It shall come into force on the 3rd October,
2022.
(3) It shall apply to goods or article specified in column
(1) of the Table below and shall not apply to such goods or
article meant for export.
2. Conformity to standards and compulsory use of
Standard Mark. - Goods or article specified in column (1) of
the Table below shall conform to the corresponding Indian
Standard given in column (2) of the said Table and shall bear
the Standard Mark under a licence from the Bureau of Indian
Standards as per Scheme-I of Schedule-II of the Bureau of
Indian Standards (Conformity Assessment) Regulations, 2018.
3. Certification and enforcement authority. - In
respect of the goods or article specified in column (1) of
the said Table, the Bureau of Indian Standards shall be
the certifying and enforcing authority.
4. Penalty for contravention. - Any person who
contravenes the provisions of this Order shall be punishable
under the provisions of the said Act.
TABLE
Goods or article Indian Title for Indian
Standard Standard
(1) (2) (3)
Polyethylene Material for IS 7328:2020 Specification of
moulding and extrusion Polyethylene
(i) Low Density Polyethylene Material for Moulding
(LDPE) and Extrusion
(ii) Linear Low-Density
Polyethylene (LLDPE)
(iii) High Density
Polyethylene (HDPE)
[F.No.PC-II 46016/6/2020-Tech.CPC-Pt I]
(Emphasis supplied)
Several notifications come to be issued depicting the date on which
every notification earlier issued would come into force. What is
germane is a notification that is issued on 26-09-2023 and it reads
as follows:
"NOTIFICATION
New Delhi, the 26th September, 2023
S.O. 4233(E).--In exercise of the powers conferred by
section 16 and sub-section (3) of section 25 of the Bureau of
Indian Standards Act, 2016 (11 of 2016), the Central
Government, after consulting the Bureau of Indian standards is
of the opinion that it is necessary so to do in the public interest,
hereby makes the following order further to amend the
Polyethylene Material for Moulding and Extrusion (Quality
Control) Order 2022, namely:--
1. Short title and commencement.- (1) This Order
may be called the Polyethylene Material for Moulding and
Extrusion (Quality Control) Order 2023.
(2) It shall come into force on the date of its publication
in the Official Gazette.
2. In the Polyethylene Material for Moulding and extrusion
(Quality Control) Order, 2022 in paragraph 1, sub-paragraph
(2), the following subparagraph shall be substituted, namely: --
"(2) It shall come into force on the 05th day of
January, 2024."
[F. No. PC-II 46016/6/2020-Tech.CPC Pt-I]"
(Emphasis supplied)
The aforesaid notification directs that the quality control orders
issued from time to time, with particular reference to 2022 order
would come into effect from 05-01-2024. The coming into effect on
05-01-2024 has driven the petitioner to this Court in the subject
petition. The submission that there is no nexus, with the production
sought to be achieved by imposing quality standard on a raw
material, is noted only to be rejected as, to say the least, is
preposterous. If quality is not in the raw material, it is
ununderstandable as to how it can be found in a finished product.
If raw material lacks quality it is trite that the finished product
would be sub-standard. Therefore, the said submission is sans
countenance, as it is fundamentally flawed.
11. The learned counsel for the petitioner places heavy
reliance upon a communication dated 14-03-2023. It reads as
follows:
"Dated: 14th March, 2023.
Sub: DOCOM/E/2023/0000465 dated 25-02-2023 filed
by Shri Naresh Bhandla, Karnataka received in EP
(CAP) Division on 27-02-2023.
- -
The undersigned is directed to refer to the subject
mentioned above and to forward herewith grievance petition
filed by Shri Naresh Bhandla, All India HDPE/PP Woven fabric
Manufacturers Association referring to Notification No.CG-DL-E-
16042021-226663 dated 15th April 2021 Imposing BIS
Standards & Markings on the imported Polyethylene Materials
for Moulding and Extrusion.
2. The members of Association are MSME manufacturers
of different kind of HDPE/PP Woven Fabrics & Sacks used as
packing material by industries all over India and exported across
the world. It has been mentioned by the complainant that all the
Indian Manufacturers of HDPE/PP/LDPE/LLDPE Granules keep
the local selling prices much above the ruling International
prices of the same items. With every change in price, all the
manufacturers revise the prices in tandem. Further, it has been
stated that all the domestic Petrochemical Producers have
formed an Informal Cartel to keep the prices far above the
international rates and are now trying to curb import of more
competitively priced materials from other countries by creating
hurdles that discourage sale of these products to Indian
customers. Imposition of the BIS Licensing and Marking is
another step in this direction.
3. All India HDPE/PP Woven Fabric Manufacturers
Association has requested that if the domestic industry can get
raw material at internationally competitive prices, the domestic
industry can become efficient in the international arena and
start exporting Indian products worldwide.
4. Plastic Export Promotion Council, an EPC
mandated with export promotion of plastic products is of
the view that BIS standard on import of polymers like
PVC, PP, ABS, HDPE, LDPE, LLDPE, PC, etc. will have
serious ramifications. Domestic Processing industry will
become non-competitive as India is not yet self-reliant in
polymers and imports of polymers is inevitable. Such
type of imposition of Non-Tariff Barrier (NTB) will
increase the price of polymers for Indian import4ers
making domestic plastic processors non-competitive. It
will make it difficult for MSME polymer processors to
compete with imports of cheap finished articles of
plastics which will not be governed under any Quality
Control order and since they will be substantially cheaper
in prices and will garner a large market share of India.
Further, to produce finished goods, several additives are
added with polymers. So imposition of mandatory BIS on
polymers cannot ensure a good quality finished product
at hands of the consumer. Plexconcil is also of the
opinion that mandatory imposition of BIS on import of
Polymers should not be imposed.
5. DCPC being the nodal department is requested to
examine the said grievance and take appropriate action t their
end for disposal of the said grievance."
(Emphasis added)
The learned counsel for the petitioner taking que from the afore-
quoted communication seeks to project that it is the opinion of the
Government of India that implementation of the project should not
be done and therefore, this Court should interfere based on the said
communication. The submission is unacceptable, as it is not word-
perfect. A perusal at the communication would indicate that it is
not the opinion of Government of India, but a narration of two
factors, one the grievances projected by the petitioner/Association
or its members and the opinion of the Plastics Export Promotion
Council. The aforesaid can by no means be construed to be the
opinion of the Government of India. Therefore, heavy reliance
placed upon the said communication turns so light that it flies off
and would not render any assistance to the contention of the
petitioner.
12. The other submission is that the notification leads to
monopolization in the hands of dominant manufacturer in polymer -
the Reliance group. Though this Court would not consider the said
submission unless there is adequate evidence of such cartelization,
which is not placed before the Court by the petitioner, the learned
Deputy Solicitor General of India has placed a chart of 50
manufacturers in the same industry, which includes manufacturers
in India and abroad and 12 manufacturers of raw material.
Reliance, is not the only but, five among the 12. The chart of
manufacturers reads as follows:
"Sl Name & Address District
No
1. Brahmaputra Cracker and Polymere Dibrugarh
Limited
2 Bihani Manufacturing Co. (P) Ltd. Alwar
3. Hyundai Engineering Plastics India Tirupati
Pvt.Ltd.
4 Indian Oil Corporation Limited Panipat
5. Haldia Petrochemicals Limited Purba Medinpur
6 Reliance Industries Limited Raigarh
7. Reliance Industries Limited Jamnagar
8. Reliance Industries Limited Bharuch
9. Reliance Industries Limited Surat
10 ONGC Petro additions Ltd. Bharuch
11 GAIL (India) Limited Auraiya
12 Reliance Industries Limited Vadodara"
Therefore, the contention that it would lead to cartelization or
monopoly by one industry is farther from truth.
13. The Notification impugned, seeks to achieve a seal of
Bureau of Indian Standard ('BIS seal') in every raw material that is
brought in, to the manufacture of a final product. The Bureau of
Indian Standards, as observed hereinabove, is a national standards
body which permits the development, standardization and quality
certification of goods and the certification will be through BIS
standard mark. If this is sought to be achieved by the Union of
India, through the Notification as a policy decision, this Court
exercising its jurisdiction under Article 226 of the Constitution of
India would be loathe to interfere with such a policy decision of
Government, particularly of economic and quality standards. This
Court does to sit over the decision of Government of India, to
assess the quality and direct that such steps should not be taken.
14. It is trite law that policies which are in the realm of
regulatory, economic and quality when questioned before the Court
seeking judicial review, the Court exercising its jurisdiction under
Article 226 of the Constitution would not interfere by sitting in the
arm chair of experts, as the authority statutory or otherwise is
entitled to choose the course of action, that it thinks fit or
necessary and expedient in public interest. The Courts have always
exercised judicial restraint and circumspection over the wisdom of
policies of the Government or statutory authorities, save in certain
circumstances, where the policy is palpably or demonstrably in
flying foul of the tenets of Article 14 of the Constitution of India.
This is the only parameter that would permit the constitutional
Courts to tinker with any policy, more particularly a policy of the
kind that is impugned in the case at hand.
15. Reference being made to the judgment of Frankfurter J.
of the U.S. Supreme Court in the case of TROP v. DULLES1,
becomes apposite. The learned Judge, in his dissenting opinion, has
observed as follows:
"57. ......All power is, in Madison's phrase, "of an
encroaching nature". Judicial Power is not immune
against this human weakness. It also must be on guard
against encroaching beyond its proper bounds, and not
356 US 86 (1958)
the less so since the only restraint upon it is self-
restraint.........
58. Rigorous observance of the difference between limits
of power and wide exercise of power - between questions of
authority and questions of prudence - requires the most alert
appreciation of this decisive but subtle relationship of two
concepts that too easily coalesce. No less does it require a
disciplined will to adhere to the difference. It is not easy to
stand aloof and allow want of wisdom to prevail to
disregard one's own strongly held view of what is wise in
the conduct of affairs. But it is not the business of this
Court to pronounce policy. It must observe a fastidious
regard for limitations on its own power, and this
precludes the Court's giving effect to its own notions of
what is wise or politic. That self-restraint is of the
essence in the observance of the judicial oath, for the
Constitution has not authorized the judges to sit in
judgment on the wisdom of what Congress and the
executive Branch do".
(Emphasis supplied)
In yet another view Lord Justice Lawton in LAKER AIRWAYS v.
DEPARTMENT OF TRADE2 has held as follows:
"In the United Kingdom aviation policy is determined by
ministers within the legal framework set out by Parliament.
Judges have nothing to do with either policy-making or the
carrying out of policy. Their function is to decide whether a
minister has acted within the powers given to him by statute or
the common law. If he is declared by a Court, after due process
of law, to have acted outside his powers, he must stop doing
what he has done until such time as parliament gives him the
powers he wants. In a case such as this I regard myself, as
a referee. I can blow my judicial whistle when the ball
goes out of play; but when the game restarts I must
neither take part in it nor tell the players how to play".
(Emphasis supplied)
(1977)2 ALL ER 182
16. The afore-quoted judgments are relied on in plethora of
cases by the Apex Court when faced with identical circumstances of
judicial review of a policy, be it administrative, economic or pricing.
A three Judge Bench of the Apex Court in the case of RAJEEV
SURI v. DELHI DEVELOPMENT AUTHORITY3 has held as
follows:
"188. We may usefully borrow the dictum of Frankfurter,
J. in Morey v. Doud [Morey v. Doud, 1957 SCC OnLine US SC
105: 1 L Ed 2d 1485: 354 US 457 (1957)], noted with approval
by this Court in R.K. Garg [R.K. Garg v. Union of India, (1981) 4
SCC 675, para 8: 1982 SCC (Tax) 30] (at SCC p. 691, para 8):
"that the Courts have only the power to destroy,
not to reconstruct. When these are added to the
complexity of economic regulation, the uncertainty, the
liability to error, the bewildering conflict of the experts,
and the number of times the Judges have been
overruled by events -- self-limitation can be seen to be
the path to judicial wisdom and institutional prestige
and stability."
In Premium Granites [Premium Granites v. State of T.N., (1994)
2 SCC 691, para 54], even this Court restated that it is not
the domain of the Courts to embark upon unchartered
ocean of public policy in an exercise to consider as to
whether a particular public policy is wise or a better
public policy can be evolved. Such exercise must be left
to the discretion of the executive and legislative
authorities, as the case may be. The Court may interfere
only when the case involves infringement of fundamental
rights guaranteed by the Constitution or any other
statutory right.
(2022) 11 SCC 1
189. A priori, the prescription of procedure to be
deployed by the administration in taking their decisions in the
ordinary course of their business is not for the Court to decide.
More particularly, in cases where decisions are taken in tune
with a duly enacted statutory scheme, it is not open to a court
of law to disregard the same on the specious reasoning that the
governing statutory scheme is deficient for the nature of or
significance of the project. Even if a Court finds it debatable,
that can be no ground for the Court to quash an action taken
strictly in accord with the prescribed procedure.
... ... ...
202. A policy decision goes through multiple stages
and factors in diverse indicators including socio-economic
and political justice, before its final culmination. As per
the nature of the project, the Government executes the
project by taking certain steps -- legislative,
administrative, etc. and it is this which comes under the
radar of the Court. The increasing transparency in
Government functioning by means of traditional and
modern media is reducing the gap between citizens and
Government and Government actions are met with a
higher level of scrutiny on a real-time basis.
203. In a democracy, the electors repose their faith in
the elected Government which is accountable to the legislature
and expect it to adopt the best possible course of action in
public interest. Thus, an elected Government is the repository of
public faith in matters of development. Some section of the
public/citizens may have another view point if not complete
disagreement with the course of action perceived by the elected
Government, but then, the dispensation of judicial review
cannot be resorted to by the aggrieved/dissenting section for
vindication of their point of view until and unless it is
demonstrated that the proposed action is in breach of procedure
established by law or in a given case, colourable exercise of
powers of the Government. Therefore, it is important for the
Courts to remain alive to all the attending circumstances and
not interfere merely because another option as in the perception
of the aggrieved/dissenting section of public would have been a
better option.
204. As noted earlier, the Courts do not sit in appeal over
the decisions of the Government to do merit review of the
subjective decision as such. In Natural Resources
Allocation [Natural Resources Allocation, In re, Special
Reference No. 1 of 2012, (2012) 10 SCC 1, paras 149 and 184]
, this Court noted that Government decisions concerning public
resources have an "intricate economic value" attached with
them and to elevate the standard of review on the basis of a
subjective understanding of the subject-matter being
extraordinary would be dehors the review jurisdiction.
205. In Narmada Bachao Andolan v. Union of
India [Narmada Bachao Andolan v. Union of India, (2000) 10
SCC 664] , this Court observed that : (SCC p. 762, para 229)
"229. It is now well settled that the courts, in the
exercise of their jurisdiction, will not transgress into the
field of policy decision. Whether to have an
infrastructural project or not and what is the type of
project to be undertaken and how it has to be executed,
are part of policy-making process and the courts are ill-
equipped to adjudicate on a policy decision so
undertaken. The court, no doubt, has a duty to see that
in the undertaking of a decision, no law is violated and
people's fundamental rights are not transgressed upon
except to the extent permissible under the Constitution.
Even then any challenge to such a policy decision must
be before the execution of the project is
undertaken. Any delay in the execution of the project
means overrun in costs and the decision to undertake a
project, if challenged after its execution has
commenced, should be thrown out at the very threshold
on the ground of laches if the petitioner had the
knowledge of such a decision and could have
approached the court at that time. Just because a
petition is termed as a PIL does not mean that ordinary
principles applicable to litigation will not apply. Laches is
one of them."
(emphasis supplied)
206. The Government may examine advantages or
disadvantages of a policy at its own end, it may or may
not achieve the desired objective. The Government is
entitled to commit errors or achieve successes in policy
matters as long as constitutional principles are not
violated in the process. It is not the Court's concern to
enquire into the priorities of an elected Government.
Judicial review is never meant to venture into the mind of
the Government and thereby examine validity of a
decision.
207. In Shimnit Utsch India [Shimnit Utsch India (P)
Ltd. v. W.B. Transport Infrastructure Development Corpn. Ltd.,
(2010) 6 SCC 303], this Court, in para 52, observed thus: (SCC
p. 325)
"52. ... The courts have repeatedly held that the
government policy can be changed with changing
circumstances and only on the ground of change, such
policy will not be vitiated. The Government has a
discretion to adopt a different policy or alter or change
its policy calculated to serve public interest and make it
more effective. Choice in the balancing of the pros and
cons relevant to the change in policy lies with the
authority. But like any discretion exercisable by the
Government or public authority, change in policy must
be in conformity with Wednesbury [Associated Provincial
Picture Houses Ltd. v. Wednesbury Corpn.,(1948) 1 KB
223: (1947) 2 All ER 680 (CA)] reasonableness and free
from arbitrariness, irrationality, bias and malice."
(emphasis supplied)
208. In State of M.P. v. Narmada Bachao Andolan [State
of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639, paras
36: (2011) 3 SCC (Civ) 875], the Court was dealing with an
issue of rehabilitation of persons displaced due to the
construction of the dam. It went on to observe that judicial
interference in a policy matter is circumscribed, in the following
words : (SCC pp. 670-71, paras 36-37)
"36. The Court cannot strike down a policy
decision taken by the Government merely because
it feels that another decision would have been
fairer or more scientific or logical or wiser. The
wisdom and advisability of the policies are
ordinarily not amenable to judicial review unless
the policies are contrary to statutory or
constitutional provisions or arbitrary or irrational
or an abuse of power. (See Ram Singh Vijay Pal
Singh v. Stateof U.P. [Ram Singh Vijay Pal
Singh v. State of U.P., (2007) 6 SCC 44], Villianur
Iyarkkai Padukappu Maiyam v. Union of India [Villianur
Iyarkkai Padukappu Maiyam v. Union of India, (2009) 7
SCC 561] and State of Kerala v. Peoples Union for Civil
Liberties [State of Kerala v. Peoples Union for Civil
Liberties, (2009) 8 SCC 46] .)
37. Thus, it emerges to be a settled legal
proposition that the Government has the power and
competence to change the policy on the basis of ground
realities. A public policy cannot be challenged through
PIL where the State Government is competent to frame
the policy and there is no need for anyone to raise any
grievance even if the policy is changed. The public
policy can only be challenged where it offends some
constitutional or statutory provisions."
(emphasis supplied)
209. In TISCO [TISCO Ltd. v. Union of India, (1996) 9 SCC
709, para 68] , in para 68, the Court noted that whenever the
issues brought before the Court are intertwined with those
involving determination of policy and a plethora of technical
issues, the Courts are very wary and must exercise restraint
and not trespass into policy-making. Similarly, in Narmada
Bachao Andolan v. Union of India [Narmada Bachao
Andolan v. Union of India, (2000) 10 SCC 664, paras 226 to
235] , in para 228, the Court noted that a project may be
executed departmentally or by an outside agency as per the
choice of the Government, whilst ensuring that it is done
according to some procedure or set manner. Further, the Court
should be loath to assume that the authorities will not function
properly and that the Court should have no role to play.
210. Later in 2007, the Court restated the position
in Directorate of Film Festivals [Directorate of Film
Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737, para 16] ,
as follows : (SCC p. 746, para 16)
"16. The scope of judicial review of governmental
policy is now well defined. Courts do not and cannot act
as appellate authorities examining the correctness,
suitability and appropriateness of a policy, nor are
courts advisors to the executive on matters of policy
which the executive is entitled to formulate. The scope
of judicial review when examining a policy of the
Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the
provisions of the Constitution, or opposed to any
statutory provision or manifestly arbitrary. Courts
cannot interfere with policy either on the ground
that it is erroneous or on the ground that a better,
fairer or wiser alternative is available. Legality of
the policy, and not the wisdom or soundness of
the policy, is the subject of judicial review
[vide Asif Hameed v. State of J&K [Asif Hameed v. State
of J&K, 1989 Supp (2) SCC 364: 1 SCEC 358], Shri
Sitaram Sugar Co. Ltd. v. Union of India [Shri Sitaram
Sugar Co. Ltd. v. Union of India, (1990) 3 SCC
223], Khoday Distilleries Ltd. v. State of
Karnataka [Khoday Distilleries Ltd. v. State of
Karnataka, (1996) 10 SCC 304], BALCO Employees'
Union v. Union of India [BALCO Employees' Union
v. Union of India, (2002) 2 SCC 333], State of
Orissa v. Gopinath Dash [State of Orissa v. Gopinath
Dash, (2005) 13 SCC 495: 2006 SCC (L&S) 1225]
and Akhil Bharat Goseva Sangh (3) v. State of
A.P. [Akhil Bharat Goseva Sangh (3) v. State of A.P.,
(2006) 4 SCC 162] ].
(emphasis supplied)"
(Emphasis supplied)
In terms of what is laid down in the afore-quoted judgments,
what would unmistakably emerge is, for a Judge in terms of his
inputs, cannot assume the role of a supreme adviser to the
administration on policies governing innumerable activities of the
State, particularly in today's context of over-expanding horizons
which come into the ken of such policy making.
17. In the light of what is held hereinabove and the reason for
which quality standard is insisted at the stage of raw material, it
becomes unmistakably clear that this Court in exercise of its
jurisdiction under Article 226 of the Constitution of India would not
tinker with a Notification which wants to bring in quality usage, by
necessitating a seal of the BIS at the stage raw material itself. The
submission made to the contrary by the learned counsel for the
petitioner is de hors merit. Even the communication by the Plastics
Export Promotion Council, to the 3rd respondent would not be of any
avail, as it is not the opinion of the Government, as the Plastics
Export Promotion Council is not the wing of the Government. It is
at best created to promote plastic export, in the nation.
18. Therefore, if the quality emerges right from the word go,
till the finished product, under the 'Make in India programme' it is
only then that the country would be able to compete with others. A
step towards that will not be interfered with by this Court except,
that if the step towards that, depicts palpable and demonstrable
arbitrariness, which is neither pleaded nor present. Except
contending cartelization and nexus, there is no other submission
made. These submissions are held to be untenable. Quality control
in plastic manufacturing always refers to process of monitoring and
inspecting various stages of manufacturing process to ensure that
the final plastic products meet certain standards of quality.
Therefore, every raw material now that is sought to be brought
under BIS is only to make it a quality final plastic product, for it
would not become hazardous to the environment and be of use to
the general public and meet health and safety standards including
food conduct regulations, as they are widely used in every walk of
human life. If the product under the programme "Make in India" is
sought to be exported under the tag "Made in India" quality
insistence from the threshold would ensure that the final product
would meet all the necessary global standards.
19. For the aforesaid reasons, finding no merit in the petition,
the petition stands rejected.
Sd/-
JUDGE
bkp
CT:MJ
