Madras High Court
M/S. Best Timbers vs The Union Of India on 6 September, 2021
WP No. 18405 of 2019 etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.09.2021
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
Writ Petition No. 18405, 18424, 18436, 19212, 19977, 20044, 22127,
22129, 24019, 29156, 29385, 32381 and 32386 of 2019
Writ Petition Nos. 4486, 11667 and 17164 of 2020,
Writ Petition Nos. 12950, 14183, 15906, 17705 and 17716 of 2021
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WP No. 18405 of 2019
M/s. Best Timbers
represented by its Partner
Mr. C.R. Krishna
Son of Chavala Udayavarlu
New No.15, Old No.274
Nehru Timber Market
Sydenhams Road
Choolai, Chennai .. Petitioner
Versus
1. The Union of India
represented by its Under Secretary
Ministry of Agriculture and Farmers Welfare
Department of Agriculture
Krishi Bhavan, New Delhi
2. The Plant Protection Officer
Plant Quarantine Station
Door No.101, Plot No.110
Second Street, C.E.O. Colony
Tuticorin District
https://www.mhc.tn.gov.in/judis/
WP No. 18405 of 2019 etc., batch
3. The Plant Protection Officer
Plant Quarantine Station
Chennai .. Respondents
WP No. 18405 of 2019:- Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorari calling for the
records relating to Condition No.3 of Office Memorandum in O.M. No.8/131/
2016-PP.II dated 27.12.2018 issued by the first respondent and quash the same
as illegal.
WP No. 18405 of 2019
For Petitioner : Mr. A. Selvendiran
For Respondents : Mr. J. Madhanagopal Rao
Central Government Standing Counsel
COMMON ORDER
WP No. 18405 of 2019 is filed questioning the validity and/or
correctness of the condition No. (iii) of the Office Memorandum dated
27.12.2018 issued by the first respondent in and by which penal fee was levied
for those consignments covered under the bills of lading in the country of
export, before 30th June 2019.
2. Similar condition was imposed by the first respondent by issuing
various other Office Memorandum and they are the subject matter of the other
writ petitions.
https://www.mhc.tn.gov.in/judis/
WP No. 18405 of 2019 etc., batch
3. The petitioners in these writ petitions are importers, importing
timbers and other goods from various countries across the world. Earlier,
wooden logs were procured from local resources within the country.
However, felling of spontaneous trees for industrial purpose has been
prohibited by virtue of the judgment of the Honourable Supreme Court in the
case of T.N. Godavarman Thirumalpad vs. Union of India. Therefore, the
importers like the petitioners have resorted to import wooden logs from
countries like Latin America, Western Africa etc., It is contended that the
wood required for the Industry has to be fumigated/treated with "Methyl
bromide" but it is prohibited in the European Countries and therefore, the
wooden logs could not be subjected to fumigation at the port of Boarding.
Taking note of the difficulties faced by the importers, the first respondent in
exercise of the power conferred under Order 14 of the Plant Quarantine
Regulation of Import into India Order, 2003, granted relaxation of fumigation
norms at the port of Boarding and permitted fumigation at the Port of
discharge. Having relaxed the fumigation norms for some time, the first
respondent imposed certain conditions for importing timber/wooden logs. One
of the conditions being imposition of penalty for fumigation of the wooden
logs Contending that the Plant Quarantine Regulations of Import into India
Order, 2003 does not provide any power or authority to the first respondent to
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WP No. 18405 of 2019 etc., batch
levy any penalty, the petitioners are before this Court with this batch of writ
petitions.
4. The learned counsel for the petitioner would vehemently contend
that the Plant Quarantine (Regulation of Import into India) Order 2003 framed
under Sub-Section (1) of Section 3 of the Destructive Insects and Pests Act,
1914 (2 of 1974) regulates the import of various agricultural articles including
wooden logs into India. In Para No.9, Chapter VI of the said Regulation,
timber can be imported into India only if it is appropriately fumigated/treated
and is accompanied by a phytosanitary certificate issued at the country of
export. It is contended that such fumigation is prohibited in European
Countries. However, the first respondent relaxed such condition periodically
and permitted import of wooden logs and other products. While so, by the
impugned Office Memorandum dated 27.12.2018, which is impugned in WP
No. 18405 of 2019 as well as by issuing similar other Office Memorandum,
the first respondent imposed certain conditions for relaxing the off shore
fumigation. One of conditions is that the consignment will be charged with
penalty/inspection fee. According to the petitioners, while granting relaxation
earlier, the first respondent did not impose any such penalty or levy. The first
respondent also did not assign any new reason for imposition of penalty in the
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WP No. 18405 of 2019 etc., batch
Office Memorandums, which are impugned in these writ petitions. Therefore,
challenging the condition No.3 of the Office Memorandum issued by the first
respondent, the petitioners have filed the present writ petitions.
5. The learned Central Government Standing Counsel appearing for
the respondent in WP No. 18405 of 2019 as well as the other counsel
appearing for the respondents, in unison, would oppose the prayers sought for
in these writ petitions. By placing reliance on the counter affidavit filed by the
respondents in WP No. 18405 of 2019, it is contended that the Plant
Quarantine Regulatory Measures in India formed the basis for enactment of
The Destructive Insects and Pests Act, 1914. Section 3 of the said Act
provides the power to the Central Government to regulate or prohibit import of
articles which are likely to cause infection. The Plant Quarantine Order, 2003
was issued in exercise of the powers conferred under The Destructive Insects
and Pests Act, 1914. to regulate import and prohibit import of plants and plant
products into India. It is in this direction, the Office Memorandums, which are
impugned in these writ petitions, were issued to act as a deterrent to import of
woods without fumigation. At the same time, taking note of the need for wood
in the Country, it was decided to enhance the inspection fee on import of all
agricultural commodities including timber as they are imported in violation of
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WP No. 18405 of 2019 etc., batch
the Plant Quarantine Order, 2003. Above all, it is contended that the
importing Country has a right to impose conditions to safe guard its bio-
security and it cannot be called in question by the petitioners. It is stated that
when any consignment from India reaches the other country without
complying with the formalities or requirements, the importing country would
either destroy or deports the consignment. In the present case, with the object
of protecting bio-security of the Country, restricted use of Methyl Bromide is
resorted to. It is further stated that initially, relaxation was granted for those
bills of lading issued by the country of Export upto 31.12.2019 and thereafter,
it was decided to allow fumigation at the port of discharge with penalty.
However, the petitioners have not challenged the Office Memorandum fixing a
cut off date as 31.12.2019. In any event, the office memorandums were issued
in exercise of the powers provided under Clause 14 (2) of Chapter VI of the
Plant Quarantine Order, 2003 wherein it is specifically provided that in the
event of grant of relaxation by the competent authority, the consignment shall
be released after charging the fee for import permit and fee for plant
quarantine inspection at five times of normal rates. While so, it is futile on the
part of the petitioners to contend that penalty was imposed by the first
respondent without any authority of law. Therefore, the learned counsel for
the respondents prayed for dismissal of these writ petitions.
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WP No. 18405 of 2019 etc., batch
6. Heard the learned counsel appearing for the respective petitioners
as well the learned counsel for the respondents and perused the materials on
record. The main contentions putforth on behalf of the petitioners in these
writ petitions is that the penalty clause incorporated in the Office
Memorandums issued by the first respondent is arbitrary and the first
respondent is not empowered to impose any penalty or fee while granting
relaxation of the fumigation norms. Such a contention urged on behalf of the
petitioners in these writ petitions cannot be countenanced inasmuch as Clause
14 (2) of Chapter VI of the Plant Quarantine Order, 2003 empowers the first
respondent to impose levy as a condition precedent for permitting the import
of the wooden logs. Thus, a discretion has been conferred to the first
respondent to impose levy and it cannot be called in question by the
petitioners. In such view of the matter, this Court is not inclined to grant the
relief, as prayed for in these writ petitions.
7. At this stage, the learned counsel for the respective petitioners
prayed this Court to permit the petitioners to challenge the vires of the Plant
Quarantine Order, 2003 or any other Rules which empower the first
respondent to levy penalty, if they are so advised.
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WP No. 18405 of 2019 etc., batch
8. Granting such liberty to the petitioners, all these writ petitions are
disposed of. No costs. Consequently, all the connected miscellaneous
petitions are closed.
06.09.2021
Index : Yes/No
Internet : Yes/No
rsh
To
1. The Union of India
represented by its Under Secretary
Ministry of Agriculture and Farmers Welfare
Department of Agriculture
Krishi Bhavan, New Delhi
2. The Plant Protection Officer
Plant Quarantine Station
Door No.101, Plot No.110
Second Street, C.E.O. Colony
Tuticorin District
3. The Plant Protection Officer
Plant Quarantine Station
Chennai
https://www.mhc.tn.gov.in/judis/
WP No. 18405 of 2019 etc., batch
R. MAHADEVAN, J
rsh
WP No. 18405 of 2019 etc., batch
06.09.2021
https://www.mhc.tn.gov.in/judis/
