Kerala High Court
Union Of India vs Synthite Industries Ltd on 20 December, 2011
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934
WA.No. 644 of 2012 ()
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AGAINST THE JUDGMENT IN WPC.23646/2011 DATED 20-12-2011
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APPELLANT(S)/RESPONDENTS:
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1. UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA
MINISTRY OF ENVIRONMENT AND FORESTS
PARYAVARAN BHAVAN, NEW DELHI-110003.
2. THE SECRETARY, MINISTRY OF COMMERCE AND INDUSTRY
NEW DELHI-110003.
3. THE DIRECTOR GENERAL OF FOREIGN TRADE
UDYOG BHAVAN, NEW DELHI-110011.
4. CITES MANAGEMENT AUTHORITY, PARYAVARAN BHAVAN
MINISTRY OF ENVIRONMENT AND FORESTS NEW DELHI-110003.
BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
RESPONDENT(S)/PETITIONER:
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SYNTHITE INDUSTRIES LTD.,
HAVING REGISTERED OFFICE AT 39/2031, AJAY VIHAR
M.G.ROAD, COCHIN, PIN 682016, REPRESENTED BY ITS DIRECTOR,
SRI.GEORGE PAUL, S/O.LATE SRI.E.J.PAULOUSE, AGED 61 YEARS,
RESIDING AT EMBASSERY HOUSE, BANERJI ROAD, COCHIN-682018.
BY ADV. SRI.M.R.HARIRAJ
BY ADV. SRI.SURAJ.S
BY ADV. SRI.P.A.KUMARAN
BY ADV. SMT.VINEETHA B.
BY ADV. SRI.NIRMAL V NAIR
BY ADV. SRI.ANISH JAIN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25-05-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
W.A. NO.644/2012
APPENDIX
PETITIONER'S ANNEXURES
A1:- COPY OF THE DOCUMENTS SUMMARY RECORDS AND RECOMMENDATION OF
CITES 59TH STANDING COMMITTEE MEETING.
A2- COPY OF THE ITC (HS) CLASSIFICATIONS OF EXPORT AND IMPORT ITEMS.
A3:- COPY OF THE OFFICE MEMORANDUM NO.4-11/2007 WL-1(PT) DTD. 31.1.2011.
RESPONDENT'S ANNEXURES
NIL
//TRUE COPY//
P.S. TO JUDGE
tss
MANJULA CHELLUR, Ag.C.J
&
A.M.SHAFFIQUE, J.
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W.A.No. 644 of 2012
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Dated this the 25th day of May, 2012
JUDGMENT
Manjula Chellur, Ag.C.J. Heard the learned Additional Solicitor General of India and also the learned counsel representing the respondent on merits.
2. The appellants before us were the respondents in a Writ Petition initiated by the private respondent herein. It is not in dispute that the Government of India issued Exhibits P1 and P2 in March, 2006 for sale of 354.98 MTs of Red Sanders Wood to the petitioner after a major portion of the same was permitted to be exported in log form by the Government of Andhra Pradesh. At the relevant point of time, the Forest Department of Andhra Pradesh had entered into an agreement to sell the Red Sanders Wood to Kyoel Trading Company. In response to the action taken by the Government of Andhra Pradesh, two foreign purchasers and one local purchaser, i.e., the present private respondent participated. We are not concerned with the permission so far as granted to other two foreign purchasers, who were permitted to WA.644/12 2 export the Red Sanders Wood in log form. After the so called auction of the Red Sanders Wood, the Government of India specifically mentioned in its order that the quantity of the wood purchased by the private respondent herein cannot be allowed to be exported in log form and it will have to be converted as value added products and then only the products could be exported after taking necessary licence in terms of the Foreign Trade Policy.
3. As a matter of fact, in public notice at Exhibit P3, this was notified in explicit terms including the condition that the respondent can only export value added products and not in log forms. It is not in dispute that the respondent/petitioner by paying huge money, more than Rs.4 Crores purchased the Red Sanders Wood. It is also not in dispute that subsequently, the petitioner manufactured extract of Red Sanders Wood, a value added product and exported about 45000 Kgs. of products. Apparently, it is not the case of the appellant that on an earlier occasion by misrepresentation the respondent got permission to export the value added products. In other words, there is no challenge so far as such permissions being legally obtained by the respondent herein.
WA.644/12 3
4. When the respondent/writ petitioner approached the authorities for the export of 11167 Kgs and 12105 Kgs of extracts of Red Sanders Wood with applications at Exhibits P4 and P6, the authorities concerned turned down the applications as per endorsements at Exhibits P10 and P12 indicating that there is a study conducted by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
5. Learned counsel for the respondent/writ petitioner approached the learned Single Judge challenging Exhibits P10 and P12. It is not the stand of the appellant herein that after granting aforesaid licences to export value added products of Red Sanders Wood of the respondent, there was a change in the policy of the Government. As a matter of fact, according to him, he has complied with all the relevant conditions of the Foreign Trade Policy. The only ground on which it was rejected was a study being conducted by a Non Departmental Finding Committee regarding the Fauna and Flora impact so far as the Red Sanders Wood is concerned. As noticed from the submissions of the learned Assistant Solicitor General of India, the study is completed and report is submitted to the CITES. As early as 2006 the auction was conducted and the private respondent had WA.644/12 4 purchased Red Sanders Wood in a public auction by investing huge amount as stated above. Subsequently, more than 50% of the extract was exported by him by obtaining necessary licence. It is not in dispute that the study is undertaken by the Ministry for Environment and it took nearly two years for the said study. At the earlier point of time, when the respondent/writ petitioner was allowed to export value added products, existence of the Ministry for Environment was very much there and there was no such restriction or condition imposed by the department while issuing either Exhibit P1 or Exhibit P2. In that view of the matter, the learned Judge was justified in saying, there was no justification for the appellant authority to ask the respondent/writ petitioner to wait for completion of the study by the committee concerned and then submit his applications. Even otherwise, the party is not asking for the export of the Red Sanders Wood in log form and he has already extracted oil from the Red Sanders Wood, which he intends to export.
6. In that view of the matter, the learned Judge was justified in saying that the appellant authorities have adopted an unrealistic approach in considering the applications of the appellants by issuing endorsements at Exhibits P10 and P12. WA.644/12 5
We are of the opinion, the appellants are not able to convince the Court that there is any valid reason to interfere with the judgment of the learned Single Judge and accordingly, the Writ Appeal is dismissed. The appellant authorities are directed to do the needful as directed by the learned Single Judge within six weeks from the date of receipt of a copy of this judgment.
MANJULA CHELLUR, ACTING CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE vgs25.05