Madras High Court
Association Of Synthetic Fibre ... vs Sree Kaderi Ambal Mills (P) Ltd on 1 November, 2023
W.A.(MD) Nos.1901 and 1931 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.11.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD) Nos.1901 and 1931 of 2023
and C.M.P.(MD) No.14561 of 2023 in W.A.(MD) No.1901 of 2023
Association of Synthetic Fibre Industry,
Registered Address: D-15, F-18-19,
2nd Floor, NDSE Part – II, New Delhi – 110 049,
Through its Director General,
Mr.S.C.Kapur ... Appellant/3rd Petitioner in
W.A.(MD) No.1901 of 2023
1.The Secretary to Government of India,
Ministry of Chemicals and Fertilizers
(Department of Chemicals & Petro Chemicals),
New Delhi.
2.The Director General,
Bureau of Indian Standards,
Manak Bhavan,
9, Bahadur Shah Zafar Marg,
New Delhi - 110 002.
3.The Secretary,
Ministry of Textiles,
Government of India,
Udyog Bhavan,
New Delhi – 110 011.
4.The Secretary,
Ministry of Commerce & Industry,
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W.A.(MD) Nos.1901 and 1931 of 2023
Udyog Bhavan,
New Delhi - 110 011.
5.The Secretary,
Ministry of Consumer Affairs,
Udyog Bhavan,
New Delhi. ... Appellants in W.A.(MD) No.
1931 of 2023 and Respondents
2 to 6 in W.A.(MD) No.1901
of 2023
-Vs.-
Sree Kaderi Ambal Mills (P) Ltd.,
R.O. - Super B-3, Industrial Estate,
K.Pudur, Madurai - 625 007.
Represented by its Managing Director,
S.V.Petha Perumal ... 1st Respondent in W.A.(MD)
No.1901 of 2023/Respondent
in W.P.(MD) No.1931 of 2023
COMMON PRAYER:- Writ Appeals filed under Clause 15 of Letters
Patent Act, to set aside the order dated 27.09.2023 made in W.P.(MD)No.
20421 of 2023 on the file of this Court.
For Appellant in W.P.(MD) : Mr.Sathish Parasaran
No.1901 of 2023 Senior Counsel
for M/s.Dominic S.David
For Appellants in W.P.(MD) : Mr.AR.L.Sundaresan
No.1931 of 2023 and Additional Solicitor General of India
Respondents 2 to 6 in Assisted by Mr.K.Govindarajan
W.P.(MD) No.1901 of Deputy Solicitor General of India
2023
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W.A.(MD) Nos.1901 and 1931 of 2023
For 1st Respondent in W.P. : Mr.Issac Mohanlal
(MD) No.1901 of 2023 and Senior Counsel
Respondent in W.P.(MD) for Mr.K.Rajasekaran
No.1931 of 2023
****
COMMON JUDGMENT
(Judgment of the Court was delivered by S.M.SUBRAMANIAM, J.)
W.A.(MD) No.1931 of 2023 has been instituted by the
Government of India, Ministry of Chemicals and Fertilizers, Department
of Chemicals and Petro Chemicals, and W.A.(MD) No.1901 of 2023 has
been instituted by Association of Synthetic Fibre Industry/third party,
questioning the validity of the order dated 27.09.2023, passed in W.P.
(MD) No.20421 of 2023.
2. The respondent in W.A.(MD) No.1931 of 2023 - Sree Kaderi
Ambal Mills (P) Ltd., filed the Writ Petition, praying for a direction to
the respondents to expedite the certification process to issue the
mandatory certification to the petitioner's overseas suppliers for
supplying the raw materials i.e., polyester synthetic fibre and
consequently, to forbear them from insisting on the quality control order
i.e., the Mandatory Certification from BIS for importing the polyester
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W.A.(MD) Nos.1901 and 1931 of 2023
synthetic fibre till BIS disposes of all the applications filed by the
petitioner's overseas suppliers.
3. The respondent / writ petitioner mill is a spinning mill and is
in existence for about 40 years. The respondent exports synthetic yarn /
thread and sewing thread to various countries, including Sri Lanka,
Morocco, Bangladesh and Nigeria etc. The respondent mill is procuring
their major raw materials i.e., polyester synthetic stable fibres from
foreign suppliers in China through their importing sourcing company
M/sT Expert. The Synthetic (Polyester fibre) is to be imported.
4. It is not in dispute that the Government of India has taken a
policy decision and a notification was issued on 15th April, 2021. The
policy decision was taken by the Government of India in exercise of the
powers conferred by Section 16 of Bureau of Indian Standards Act, 2016
(Act 11 of 2016) and the following are the decisions:-
1. Short title, commencement and application. –
(1) This order may be called the Polyester Staple Fibres
(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
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W.A.(MD) Nos.1901 and 1931 of 2023
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 Indian Title for Indian
article Standard Standard
(1) (2) (3)
Polyester S I Textile-
Staple Fibres 17263:2 Polyester Staple
(PSF) 019 Fibres -
Specification
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W.A.(MD) Nos.1901 and 1931 of 2023
[F. No. PC-II 46016/ 6/2020-Tech.CPC – Pt-1 ]
KASHI NATH JHA, Jt. Secy.”
5. Admittedly, none of the parties before this Court has
challenged the policy decision of the Government of India published in
exercise of the powers conferred by Section 16 of Bureau of Indian
Standards Act, 2016. Policy being not in question, let us consider the
relief sought for in the Writ Petition by the respondent before the learned
Single Judge.
6. Pertinently, the respondent mill has not submitted any
application before the Government of India seeking exemption and the
cause established by the respondent in the writ proceedings would reveal
that their Chinese raw material suppliers submitted an application to the
Government of India seeking certification from the notification dated 15th
April, 2021.
7. Learned Single Judge considered the issues raised between
the parties and formed an opinion that the respondent mill is in existence
for about 40 years and thousand and odd employees are working in the
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mill and their livelihoods are in stake and consequently, directed the
appellants in W.A.(MD) No.1931 of 2023 to consider the application
submitted by the respondent's suppliers as expeditiously as possible,
preferably within three months and further directed the appellants to
consider the plight of the workers who are depending on the respondent's
mill and exempt the mandatory requirement of BIS certification on
Polyester Staple Fibres for a further period of three months enabling
them to open their units.
8. In this backdrop, the learned Additional Solicitor General of
India appearing on behalf of the appellants solicited our attention with
reference to the policy decision of the Government of India, which
remains unchallenged. The Government of India has no objection for
processing the application submitted by any foreign supplier, including
Chinese suppliers in accordance with law. However, the learned
Additional Solicitor General of India impressed upon us that the
direction issued by the learned Single Judge under Para 9(ii) is running
counter to the policy decision and more so such exemption if granted
would open the pandora's box and many such foreign suppliers will seek
exemption for mandatory requirement of BIS Certification and in such
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circumstances, the policy itself would be defeated. More so, it will be
violative of Sections 15 and 31 of Bureau of Indian Standards Act, 2016.
9. Section 31 of Bureau of Indian Standards Act, 2016
enumerates that
“Compensation for non-conforming goods.—Where
a holder of licence or certificate of conformity or his
representative has sold any goods, article, process, system or
service, which bears a Standard Mark not conforming to the
relevant standard, or with colourable imitation, the certified
body or licence holder or his representative shall be liable to
compensate the consumer for the injury caused by such non-
conforming goods, article, process, system or service in such
manner as may be prescribed.”
Section 15 of Bureau of Indian Standards Act, 2016 enumerates that
“15. Prohibition to import, sell, exhibit, etc.—(1) No
person shall import, distribute, sell, store or exhibit for sale,
any goods or article under sub-section (1) of section 14, except
under certification from the Bureau.
(2) No person, other than that certified by the
Bureau, shall sell or display or offer to sell goods or articles
that are notified under sub-section (3) of section 14 and marked
with the Standard Mark, including Hallmark and claim in
relation to the Standard Mark, including Hallmark, through
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W.A.(MD) Nos.1901 and 1931 of 2023
advertisements, sales promotion leaflets, price lists or the like.
(3) No certified jeweller or seller shall sell or display
or offer to sell any notified goods or articles, notwithstanding
that he has been granted certification, with the Standard Mark,
including Hallmark, or any colourable imitation thereof, unless
such goods or article is marked with a Standard Mark or
Hallmark, in a manner as may be specified by regulations, and
unless such goods or article conforms to the relevant standard.”
10. Relying on the above provisions, the learned Additional
Solicitor General of India contended that the Writ Petition itself is not
entertainable since the Government has not received any application
from the respondent / writ petitioner. Thus, the respondent failed to
establish any cause for entertaining the Writ Proceedings and in respect
of the application submitted by the Chinese suppliers the respondent has
no locus to approach the High Court seeking an direction to dispose of
the application submitted by a foreign company.
11. Learned Senior Counsel appearing on behalf of the
respondent / writ petitioner mainly contended that the respondent mill is
running for about four decades and thousand and odd workers are
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W.A.(MD) Nos.1901 and 1931 of 2023
employed and their livelihoods are in peril and considering those factors,
the learned Single Judge issued a direction granting exemption atleast for
a period of three months, enabling the respondent mill to import the raw
materials.
12. It is further contended that there is no impediment for the
Government of India to dispose of the application submitted by the
foreign supplier and the respondent also, in support of the application,
sent representation to look into the application and decide the same on
merits considering the facts and circumstances. Thus, the Writ Petition is
entertainable and the respondent being an aggrieved person on account of
restrictions imposed to import raw materials from Chinese Suppliers, the
contentions raised in this regard by the Government of India is untenable.
13. Learned Senior Counsel appearing for the appellant / third
party in the other Writ Appeal filed in W.A.(MD) No.1901 of 2023 made
a submission that the Writ Petition filed by Sree Kaderi Ambal Mills (P)
Ltd., is not maintainable since they cannot be construed as an aggrieved
person. The policy decision of the Government of India having not been
challenged and more so the Government of India based on the policy of
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W.A.(MD) Nos.1901 and 1931 of 2023
self reliance considering the national interest issued the notification
under the provisions of Bureau of Indian Standards Act, 2016 Act. The
respondent mill has an opportunity to purchase raw materials from
various other Indian Companies, who all are supplying adequately as per
the Bureau of Indian Standards Act, 2016 Act. When there are
availability of raw materials within the country, there is no necessity to
consider the relief as such sought for by the first respondent mill in the
Writ proceedings, which would offend the policy decision taken by the
Government of India encouraging the national level suppliers.
14. Government of India in this context issued the notification
with an object of fixing standards and sustaining self reliance policy. It is
useful to remind the philosophy of Bertrand Russel who had elaborately
articulated about the polices of Regionalism, Nationalism and
Internationalism. The renowned philosopher Russel supported
Nationalism, contemned Regionalism and said Internationalism is an
utopian idea. Nationalism being the consideration deliberated by the
Government of India while taking the present policy decision, Courts in
exercise of Power of Judicial Review are not expected to subscribe the
contrary view, if any, submitted. When the Government of India
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W.A.(MD) Nos.1901 and 1931 of 2023
encourages the national suppliers to supply raw materials by fixing
standards and maintaining the quality, there is no reason for the
Constitutional Courts to grand exemption for the purpose of importing
the very same raw materials from the foreign suppliers without
certification, which would offend the national interest and its policy.
15. The relief granted by the learned Single Judge in para 9(i)
has not been seriously opposed by the Additional Solicitor General of
India, but with a rider to consider the applications submitted by the
foreign suppliers independently and on its own merits and in accordance
with law. However, the directions issued by the learned Single Judge in
para 9(ii) is concerned, we found it is beyond the scope of powers of
judicial review and in violation of Sections 15 and 31 of Bureau of
Indian Standards Act, 2016.
16. Thus, we set aside the order dated 27.09.2023, passed in
W.P.(MD) No.20421 of 2023 and the submissions of the learned
Additional Solicitor General of India is recorded to the extent that the
Government of India will process and consider the applications
submitted by the foreign suppliers on its own merits and in accordance
with law.
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W.A.(MD) Nos.1901 and 1931 of 2023
17. Accordingly, W.A.(MD) No.1923 of 2023 stands allowed
and the other Writ Appeal filled by Association of Synthetic Fibre
Industry in W.A.(MD) No.1901 of 2023 is closed. No costs.
Consequently, connected Writ Miscellaneous Petition in W.A.(MD) No.
1901 of 2023 is closed.
[S.M.S.J.,] & [V.L.N.J.,]
NCC :Yes/No 01.11.2023
Index :Yes/No
SJ
To
1.The Secretary to Government of India,
Ministry of Chemicals and Fertilizers
(Department of Chemicals & Petro Chemicals),
New Delhi.
2.The Director General,
Bureau of Indian Standards,
Manak Bhavan,
9, Bahadur Shah Zafar Marg,
New Delhi - 110 002.
3.The Secretary,
Ministry of Textiles,
Government of India,
Udyog Bhavan,
New Delhi – 110 011.
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W.A.(MD) Nos.1901 and 1931 of 2023
S.M.SUBRAMANIAM, J.
AND
V. LAKSHMINARAYANAN, J.
SJ
4.The Secretary,
Ministry of Commerce & Industry,
Udyog Bhavan,
New Delhi - 110 011.
5.The Secretary,
Ministry of Consumer Affairs,
Udyog Bhavan,
New Delhi.
W.A.(MD) Nos.1901 and 1931 of 2023
01.11.2023
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