Karnataka High Court
M/S. A.K.Traders vs Union Of India on 19 April, 2022
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
WRIT PETITION No.3617/2022 (GM-RES)
BETWEEN:
M/S. A.K.TRADERS
SHOP NO.S-9, 2ND FLOOR
(OLD NO.298)
OLD THARAGUPET
BANGALORE-560 053
REP. BY ITS PROPRIETOR
SRI KIRAN KUMAR M.
...PETITIONER
(BY SRI P.S.RAJAGOPAL, SR.COUNSEL A/W
SRI P.N.RAJESWARA, ADV.)
AND:
1. UNION OF INDIA
REP. BY ITS SECRETARY
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
(CENTRAL BOARD OF INDIRECT
TAXED AND CUSTOMS)
NORTH BLOCK
NEW DELHI-110001.
2. THE CENTRAL BUREAU OF NARCOTICS
REP. BY ITS SECRETARY
19, THE MALL, MORAR
GWALIOR-474006
MADHYA PRADESH.
2
3. THE NARCOTICS COMMISSIONER
19, THE MALL, MORAR
GWALIOR-474006
MADHYA PRADESH.
4. AJIT EXIM
BORA AGRO FOODS COLD STORAGE
GAT NO.272/4
JAWAJIBUWACHI WADI
PUNE-SOLAPUR ROAD
KASURDI, PUNE DISTRICT
MAHARASHTRA-412214
REP. BY ITS PARTNER
MS. SWAPNA NIKHIL NAHATA.
5. AMRUT IMPEX
GAT NO.272/5
JAWAJIBUWACHI WADI
DAUNDA TALUK, PUNE DISTRICT
MAHARASHTRA-412214
REP. BY ITS PARTNER
MR.AMRUT RAJENDRAKUMAR BORA.
6. BORA AGRI TECH
GAT NO.272/4
JAWAJIBUWACHI WADI
PUNE-SOLAPUR ROAD
DAUNDA TALUK, PUNE DISTRICT
MAHARASHTRA-412214
REP. BY ITS PARTNER
SATISH KESHARCHAND BORA.
7. KANHAIYALAL & COMPANY
GAT NO.272
JAWAJIBUWACHI WADI
DAUNDA TALUK, PUNE DISTRICT
MAHARASHTRA-412214
REP. BY ITS PARTNER
MR. SATISH KESHARCHAND BORA.
3
8. SANGEETA IMPEX, GAT NO.272/4
JAWAJIBUWACHI WADI
BORA AGRO FOODS COLD STORAGE
PUNE SOLAPUR ROAD
KASURDI, PUNE DISTRICT
MAHARASHTRA-412214
REP. BY ITS PARTNER
MR. HITESH NAVLAKHA.
9. SANKET IMPEX, GAT NO.272/5
JAWAJIBUWACHI WADI
DAUNDA TALUK, PUNE DISTRICT
MAHARASHTRA-412214
REP. BY ITS PARTNER
MR. SANKET AJIT BORA.
10. TRUPTI IMPORT, S.NO.50/1
NARHE GAON, PUNE DISTRICT
MAHARASHTRA-411041
REP. BY ITS PROPRIETOR
MR.TRUPTI NILESH BOR A.
11. SHANUGA SPICES PVT. LTD.,
THROUGH ITS DIRECTOR
BHARATH SHAH
S/O SRI VIRCHAND DHARAMCHAND SHAH
NO.603, MUDRA SOCIETY
C WING, SY.NO.685, SATARA ROAD
BIBEWADI, PUNE - 411037.
....RESPONDENTS
(BY SRI MADHUKAR DESHPANDE, ADV. FOR R1 TO R3
SRI DHYAN CHINNAPPA, SR.COUNSEL A/W
SRI AJAY J NANDALIKE, ADV. FOR R4-R10
SRI GOUTAM S BHARADARAJ, ADV. FOR R11)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
PUBLIC NOTICE DATED 07.01.2022 READ WITH GUIDELINES
DATED 25.06.2019 ISSUED BY THE RESPONDENTS MARKED
AS ANNEXURE-A AND A1.
4
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 24/03/2022 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner, who is in the trade of import and export of spices is before this Court under Article 226 of the Constitution of India praying for a writ of certiorari to quash the Public Notice (Annexure-A) bearing No.PS-02/2022 dated 07.01.2022 and Guidelines (Annexure-A1) dated 25.06.2019.
2. Brief facts of the case are that, 2nd respondent- Central Bureau of Narcotics issued public notice dated 07.01.2022 fixing the country cap at 17,500MTs for import of poppy seeds from Turkey for the year 2021-22. The public notice also requires persons intending to register sales contract for import of poppy seeds from Turkey to apply to the 2nd respondent in terms of the guidelines dated 25.09.2019. Cut off date for making application was 31.03.2022. Annexure-B dated 5 25.06.2019 lays down the guidelines for registration of sales contract for import of poppy seeds from Turkey. Clause (1) of the guidelines provides for determination of country cap by the Department of Revenue on the basis of the recommendation by a committee comprising Narcotic Commissioner, one representative of Directorate General of Foreign Trade (for short 'the DGFT') and one representative from the Department of Revenue. Clause (2) provides for application of sales contract and clause (3) provides for procedure.
3. The 1st respondent-Union of India entered into Memorandum of Understanding (for short 'the MOU') with the Government of Republic of Turkey to ensure quick and transparent processing of quota allocation and prior authorization for poppy seeds export from Turkey to India. Clause (2) of Article 3 of the MOU provides for determining the quantity of poppy seeds, which shall be imported to India from Turkey and the same shall be decided by Government of India in consultation with the 6 Government of Turkey, taking into account production of poppy seeds in Turkey in a crop year, balance from previous crop years and domestic or other export requirement of Republic of Turkey. Clause (3) would state that the Turkish Grain Board (for short 'the TMO') not to register sales contract in excess of the quantity determined under clause (2) of the MOU. The petitioner with an intent to register himself for sales contract for import of poppy seeds entered into sales contract with a firm at Turkey as at Annexure-D2 and D3. It is the grievance of the petitioner that he had time up to 31.03.2022 to register himself for sales contract to import poppy seeds in terms of Annexure-A dated 07.01.2022. Since the country cap of 17,500MTs quota was fully subscribed, the petitioner could not register himself for import of poppy seeds. Hence, challenging the country cap fixed at 17,500MTs and guidelines for import of poppy seeds, the petitioner is before this Court in this writ petition.
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4. Heard Sri P.S. Rajagopal, learned Senior Counsel for Sri Rajeshwar P.N., learned counsel for the petitioner, Sri Madhukar Deshpande, learned counsel for respondents 1 to 3, Sri Dhyan Chinnappa, learned Senior Counsel for Sri Ajay Nandalike, learned counsel for the 4th respondent and Sri Goutam S. Bharadwaj, learned counsel for the respondent Nos.5 to 11. Perused the entire writ petition papers.
5. Sri P.S. Rajagopal, learned Senior Counsel referring to impugned Public Notice dated 07.01.2022 at Annexure-A submits that fixing of country cap at 17,500MTs for import of poppy seeds from Turkey is wholly unreasonable, violative of Articles 14, 19(1)(g) and 253 of the Constitution of India. He submits that Annexure-A fixing of country cap is contrary to the treaty entered into between the Republic of India as well as Government of Republic of Turkey. Inviting attention of this Court to clause (2) of the MOU (Annexure-B), he submits that quantity of poppy seeds that could be 8 imported to India from Turkey shall be decided in consultation with the Government of Turkey, taking into account the quantity in a crop year, balance from previous crop years and domestic or other requirements of Republic of Turkey. It is submitted that there was no consultation as required under clause (2) of the MOU. He submits that fixing of country cap of 17,500MTs by the 3rd respondent is without any basis and contrary to the treaty at Annexure-B. Due to the unilateral fixation of country cap at 17,500MTs without any consultation as required, the right of the petitioner is curtailed. In that, even though the petitioner had time up to 31.03.2022 to register himself, since the registration of sales contract had reached 17,500MTs, the TMO closed registration on 31.01.2022 itself. Hence, the petitioner could not register himself. The treaty between the two countries has been entered into after taking into account all aspects i.e., administrative as well as legal aspects. While deciding the country cap, relevant facts have not been taken into 9 consideration. Clause (2) provides for capping and its mechanism. Without following the mechanism as provided under clause (2), the 3rd respondent could not have fixed the country cap at 17,500MTs. Referring to Annexure-E, learned Senior Counsel submits that Turkey had made available and indicated that 29,598 Metric Tons of poppy seeds are available for export. But the Committee, which was constituted to fix the country cap without consultation and without taking note of the availability of poppy seeds with the Turkey Government, fixed the country cap at 17,500MTs, by which the petitioner's right to register himself for import of poppy seeds was taken away.
6. Learned Senior Counsel referring to clause (2) of MOU submits that there is no meaningful consultation between the two countries while fixing the country cap. He submits that consultation means conference of two or more persons in respect of the 10 issue in question, to examine the material facts and to arrive at a conclusion. According to the learned Senior Counsel, consultation is an essential requirement and ultimately based on the said consultation it is for the consultee to take an appropriate decision. But capping import of poppy seeds at 17,500MTs is without any consultation and thus he submits that the impugned Public Notice Annexure-A requires to be quashed. With regard to his contention that there is no meaningful or proper consultation, he places reliance on the decisions in CHANDRAMOULESHWAR PRASAD Vs. THE PATNA HIGH COURT AND OTHERS reported in 1969(3) SCC 56 and RAM TAWAKYA SINGH Vs. STATE OF BIHAR AND OTHERS reported in (2013) 16 SCC 206.
7. Learned Senior Counsel referring to Article 253 of the Constitution of India submits that fixing of country cap, if it is taken as a policy decision, the same would be contrary to the treaty between the two countries. In such a situation, this Court could interfere with such policy 11 decision. It is his submission that decision of respondents 1 to 3 to cap import of poppy seeds at 17,500MTs, is to be exercised in accordance with the treaty. Referring to National Policy learned Senior counsel submits that the respondents could not have avoided consultation, while fixing the country cap. In view of fixation of unreasonable country cap, the petitioner's right to trade was affected.
8. Further, it is submitted that country cap could be fixed in consultation with the 1st respondent-Union of India and the country cap fixed by the 3rd respondent on the recommendation of the Committee constituted by it, is wholly illegal and is not in accordance with the treaty entered into between India and Turkey. Thus he submits that public notice as well as the guidelines issued in respect of import of poppy seeds are contrary to the Foreign Trade Policy. The MOU entered into between Government of India and Government of Turkey is in 12 violation of Articles 14 and 253 of the Constitution of India. Thus he prays for allowing the writ petition.
9. Sri Madhukar Deshpande, learned counsel for respondents 1 to 3 referring to statement of objections submits that the petitioner has no vested right to import without any restriction. Fixing of country cap or quantity restriction is economic policy and the decision of the respondents 1 to 3 to cap the import of poppy seeds at 17,500MTs neither suffers from illegality or irregularity or is unreasonable as contended by the petitioner. Further the learned counsel would submit that consultation between two countries i.e., Government of India and Government of Turkey has taken place and in support of his contention he refers to Annexure-E to the writ petition. He would submit that consultation in the matter of import or export would be in the light of economic policy of the country. He submits that consultation by correspondence between two countries has taken place and country cap 13 has been fixed taking note of various factors and need of poppy seeds in the country. It is submitted that under Annexure-E to the writ petition, the Government of Turkey had indicated the availability of quantity of poppy seeds and on the basis of available quantity with the Turkey Government, based on the need and other relevant economic factors, country cap of 17,500MTs was fixed, which according to the learned counsel is proper and correct.
10. Further Sri Madhukar Deshpande, learned counsel referring to clause (2) of the MOU submits that it provides for deciding the country cap by the Government of India in consultation with Government of Turkey, taking into account the availability of poppy seeds with the Turkey Government. According to him clause (3) of the MOU states that once the country cap is reached, it would stop the registration of sales contract. Thus he submits that even though according to the petition averments the petitioner entered into trade contract with one of the firm 14 in Turkey, he had not come forward immediately for registration of sales contract. After entering into sales contract, the petitioner having kept quiet, cannot complain that his right to Trade was curtailed. Further the learned counsel would submit that, in order to fix the country cap, not only the availability of quantity of poppy seeds in Turkey is the criteria, but the domestic production; import from other countries and the country's needs are relevant factors. Thus he submits that fixing of country cap is the sovereign decision and the policy decision of the 1st respondent-Union of India. Learned counsel would submit that fixing of country cap for the previous years was the subject matter of the writ petition before the High Court of Delhi and Delhi High Court upheld the capping holding that, it is the policy decision of the Government of India. Further he submits that Annexure-A1 guidelines for import of poppy seeds dated 25.06.2019 was the subject matter of the writ petition before the Bombay High Court and the Division Bench of 15 the Bombay High Court upheld the said guidelines. Thus the learned counsel would submit that no right of the petitioner is violated, more so his fundamental right under Articles 14 and 19(1)(g) of the Constitution of India and that the capping of quantity of import of poppy seeds is a reasonable restriction. Thus he prays for dismissal of the writ petition.
11. Sri Dhyan Chinnappa, learned counsel appearing for private respondents referring to Section 3 of the Foreign Trade (Development and Regulation) Act, 1992 (for short 'the 1992 Act') submits that imports are regulated under the provisions of the Act. It is for the Central Government or the Union, to put quantitative restriction or reasonable restrictions on import or export of any commodity. Further referring to clause (2) of Annexure-B treaty, he submits that it would not give any right to the petitioner or can the petitioner enforce clause (2) to the petitioner's advantage. It is his submission that consultation referring to clause (2) of the MOU would mean contractual 16 consultation, which the Central Government according to him has complied. Further the learned Senior Counsel would submit that there is no bonafide in the writ petition. The petitioner's intention is only to stop the import of poppy seeds. If the intention of the petitioner was to be clean, the petitioner ought to have asked for a direction to the respondents 1 to 3 to enhance the country cap from 17,500MTs to 29,800MTs, which the Turkey Government had indicated. Thus he submits that the petitioners only intention is to stall the import of poppy seeds, since the petitioner had already imported poppy seeds from China. Further he submits that it is not the case of the petitioner that, only to exclude the petitioner with malafide intention, country cap is fixed at 17,500MTs. Referring to clause (3) Annexure-B treaty, he submits that once the country cap is achieved, the TMO stops registration of traders. Thus after country cap of 17,500MTs is achieved, the petitioner could not register himself in terms of Annexure-A dated 07.01.2022. It is his submission that it 17 is his own making and none of the respondents are responsible for denial of registration of petitioner for import of poppy seeds.
12. Article 19(1)(g) of the Constitution of India provides citizens a right to carry on any trade or business, but the said right is not absolute. Article 19(2) of the Constitution empowers the State to impose reasonable restrictions on the right conferred under Article 19(1) of the Constitution. Reasonable restrictions should not be arbitrary or excessive, but which is required in the interest of public.
13. Import and export trade is regulated or controlled by the 1992 Act. Chapter II Section 3 of the 1992 Act empowers to make provisions relating to imports and exports. Chapter III A Section 9A of the Act provides power to the Central Government to impose quantitative restriction on import of such goods.
14. No person has absolute right to import. Right to export or export goods is with certain restrictions. 18 Imposing reasonable restriction is a policy decision of the State. Normally Court would not interfere with the policy decision of the State unless it is shown that it is totally arbitrary or unreasonable. Judicial review would be to examine the decision making process and not the decision itself. Sometimes in the interest of public, a decision taken in the matter of business or commercial background may affect an individual. Reasonable restrictions imposed by the State may affect business interest of an individual, but that cannot be a reason to interfere with reasonable restrictions, if it is in the public interest.
15. Import of poppy seeds between the Government of Republic of Turkey and Government of Republic of India is governed by the MOU entered into between two countries as at Annexure-B. The objective of the MOU is to ensure quick and transparent processing of quantitative allocation and prior authorization for poppy seeds export from Turkey to India. Clause (2) of Article 3 of the MOU 19 provides for determining the quantity for import of poppy seeds from Turkey. Clause (2) reads as follows :-
"2. Each year the quantity of poppy seeds which shall be imported by India from Turkey shall be decided by Government of India in consultation with Government of Turkey taking into account the production of poppy seeds in Turkey in a crop year, balance from previous crop years and domestic or other export requirement of Republic of Turkey."
A careful reading of the above clause makes it clear that, quantity of poppy seeds, which shall be imported from Turkey to India each year shall be decided by the Government of India in consultation with Government of Turkey, taking into account the production of balance from the previous crop years and their domestic or other export requirement. While Clause (3) of Article 3 of the MOU reads as follows :-
"3. The exporting companies shall get registered with the TMO. Each sales contract entered into by the exporting company with Indian importer shall be registered with TIMO through the online system referred to in sub clause (1) above. It shall be the 20 responsibility of TMO not to register sales contract in excess of the quantity referred to in sub clause 2 of this article."
It is the responsibility of the TMO not to register sales contract in excess of the quantity determined under Clause (2) above.
16. The determination of quantity of poppy seeds for import by the Government of India shall be determined in consultation with the Government of Turkey taking into account the availability of poppy seeds in Turkey and the requirement or need by the Government of India. The Government of India has to determine the quantity of import of poppy seeds based on various factors including the import need, the availability of poppy seeds within India and the import of poppy seeds from other countries. The consultation referred to in clause (2) was the main focal point by the learned Senior Counsel for the petitioner. It is contended that there is no consultation between the Government of Turkey and Government of 21 India while determining the country cap of 17,500MTs. The said contention cannot be appreciated in the wake of the material available on record. Consultation means consultation in the background of the Import Policy of the Government of India. It is only a contractual or commercial consultation. Consultation is with regard to determination of quantity based on the requirement of Government of India and the availability of quantity of poppy seeds for import from the Turkey Government. The Government of Turkey in its letter at Annexure-E has communicated to the Ministry of Commerce, Export General Directorate that as on 28.07.2021 availability of 29,598 tons of poppy seeds for export from Turkey. Based on the quantity made available by the Turkey Government, the Indian Government fixed the cap of 17,500MTs for import of poppy seeds from Turkey Government. The consultation is by correspondence. Consultation by correspondence is also a recognized consultation. Consultation means seeking information or 22 advise or aid or instructions as held by the Hon'ble Apex Court in the decision SUPREME COURT ADVOCATES ON RECORD ASSOCIATION AND OTHERS v/s UNION OF INDIA reported in (1993) 4 SCC 441. The object of consultation is to render its process meaningful, so that it may serve its intended purpose. The intended purpose in the present case, based on the MOU entered into between the Government of India and Government of Turkey, is to determine the quantity of poppy seeds for import from Turkey to India. Based on the consultation by correspondence, the Government of India through the 2nd respondent determined the quantity at 17,500MTs, which cannot be found fault with. Clause (3) of Article 3 of MOU requires the TMO not to register sales contract in excess of quantity determined in accordance with clause (2) of Article 3 of MOU.
17. Annexure-A1 Guidelines provides for Registration of Sales Contracts for import of poppy seeds from Turkey.
23
Determination of country cap is approved by the
Department of Revenue on the basis of the
recommendation by a Committee comprising Narcotics Commissioner, one representative of Directorate General Foreign Trade (DGFT) and one representative of Department of Revenue. Clause (1) of guidelines provides for fixing the country cap based on stock and production of poppy seeds as communicated by the TMO or Turkish Embassy in India. Based on the communication of TMO, the availability of quantity of 29,598 Tons of poppy seeds, the Government determined the country cap at 17,500MTs based on the recommendation of the Committee. Moreover quantitative restriction is an economic policy.
18. Learned Senior Counsel Sri.P.S.Rajgopal with regard to Consultation placed reliance on the decision of the Hon'ble Apex Court in CHANDRAMOULESHWAR PRASAD v/s THE PATNA HIGH COURT AND OTHERS reported in 24 (1969) 3 SCC 56. It was a case of appointment of District Judges to the Bihar Higher Judicial Services. The Hon'ble Apex Court was considering Article 233 of the Constitution of India wherein the appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court. While interpreting consultation appearing in Article 233 of the Constitution, rejecting State's contention of consultation or deliberation, at paragraph 7 it is held as follows:
"7. ........................................... ............................................ Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their view. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after in consultation. In our opinion, the notification of October 17, 1968 was not in compliance with Article 25 233 of the Constitution. In the absence of consultation the validity of the notification of October 17, 1968 cannot be sustained."
CHANDRAMOULESHWARA case (supra) was involving consultation as appearing in Article 233 of the Constitution and in that background, the Hon'ble Apex Court held that the consultation or deliberation is not complete or effective before the parties thereto to make their respective points of view known to other or others and discuss and examine the relative merits of their views. But, in the instant case, this Court is concerned with the contractual consultation or commercial consultation arising out of the MOU between the Republic of Turkey and Republic of Government of India. The consultation as appearing in Article 233 of the Constitution cannot be compared with the consultation appearing in a treaty between the Government of Turkey and Government of India. Consultation stands on a different footing where it involves constitutional appointments. Whereas, 26 consultation stands on a different footing in contractual and commercial matters. Therefore, the decision in CHANDRAMOULESHWAR case (supra) would not assist the case of the petitioner.
19. Learned Senior Counsel relies upon yet another decision in the case of RAM TAWAKYA SING v/s STATE OF BIHAR AND OTHERS reported in (2013)16 SCC 206. In this case, the Hon'ble Apex Court was dealing with the appointment of Vice-Chancellor under Section 10(2) of the Bihar State Universities Act, 1976. Rule 10(2) of Bihar State Universities Act, 1976 provides for appointment of Vice-Chancellor by the Chancellor in consultation with the State Government. The consultation in the appointment of Vice-Chancellor is statutory consultation. The requirement of statutory consultation cannot be equated or compared with the commercial or contractual consultation. The level of consultation either under Constitution or a Statute either to the Constitutional 27 Office or Statutory Office is different from the consultation required in commercial matters. Thus, RAM TAWAKYA SINGH case (supra) also would not assist the case of the petitioner.
20. Learned Senior Counsel nextly contended that action of the respondents in fixing the Country Cap as well as laying down the guidelines dated 25.06.2019 (Annexure-A1) is contrary to Article 253 of the Constitution of India. In that, he submits that Annexure-B (MOU) entered into between the Republic of Turkey and Republic of Government of India is to be given effect to as the same is binding on the Government of India.
21. Article 253 of the Constitution of India reads as follows:
"253. Legislation for giving effect to international agreements.- Notwithstanding anything in the foregoing provisions of this Chapter, 28 Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."
A reading of the above Article makes it abundantly clear that the Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other Country or Countries or any decision made at international conference, association or other body. In the instant case, no law enacted by the Parliament is pointed out for implementing treaty or agreement between the Government of Turkey and Government of India. Without there being any law in pursuance of the treaty or agreement, the petitioner, as an individual cannot seek for enforcement of the clauses of treaty or agreement. The privity of contract is between two Countries i.e., Government of Turkey and Government of India. A non- 29 party to the agreement cannot enforce the covenants or clauses of the agreement. Exception is that under certain circumstances a beneficiary of the contract could approach the Court for enforcement of terms of the contract or agreement, on certain conditions or qualifications. The covenants of MOU (Annexure-B) between the Government of Turkey and Government of India cannot be enforced by an individual in the absence of enactment of any law in pursuance of the MOU. In the absence of any such law, the Court cannot enforce individual right in terms of the MOU.
22. A Division Bench of this Court in CIVIL RIGHTS VIGILANCE COMMITTEE, S.L.R.S.C. COLLEGE OF LAW, BANGALORE v/s UNION OF INDIA AND OTHERS reported in 1982 SCC Online Kar 05 was examining the following question:
Whether obligations of Government of India under the Gleneagles Accord, the obligations attached to its (India's) membership of the United 30 Nations, can be enforced against it (Government of India) by Courts of this Country at the instance of any of its citizens or association of citizens?
23. It was a case as to whether the Government of India should allow English Cricket Team which included Boycott and Cook to visit India and to play cricket matches, despite their links with South Africa which was practicing policy of apartheid became the subject matter of controversy both in India and outside. However, the Government of India allowed that English cricket team including those two players to come to the country and to play matches as scheduled. In that circumstances, it was contended that the Government of India which is a party to the Gleneagles Accord should have prevented the entry of those two players into this country by invoking its authority under para 2 of the Exemption Order. It was contended that action of the Government of India in permitting those two cricket players who had been blacklisted to enter into India and to play cricket in this 31 country, was in breach of its (this country's) obligations under the Gleneagles Accord and obligations attached to its (this country's) membership of the United Nations. Further, it was contended that as the Government of India failed to fulfill its obligations attached to its (India's) membership of United Nations, this Court, in exercise of its jurisdiction under Article 226 of the Constitution, should issue a mandamus directing the Government of India to act according to such obligations. While answering the above question and contention, this Court at paragraph 10 answered as follows:
"10. The provisions in Part-IV of the Constitution contain the directive principles of State policy. The provision in Article 51, occurring in that part, provides, inter alia, that the State shall endeavour to foster respect for international law and treaty obligations in dealings of organised peoples with one another. The provision in Article 37 occurring in the same part, though it declares that the directive principles in part-IV are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making 32 laws, states that the provisions in that part shall not be enforceable by any court. From this it follows that the provision in Article 51 is not enforceable by any court and if Parliament does not enact any law for implementing the obligations under a treaty entered into by the Govt. of India with foreign countries. courts cannot compel Parliament to make such law. In the absence of such law, court cannot also, in our view enforce obedience of the Government of India to its treaty obligations with foreign countries."
24. The Hon'ble Apex Court in a recent decision reported in 2020 SCC Online (SC) 675 in the case of UNION OF INDIA AND OTHERS v/s AGRICASE LLP AND OTHERS was considering writ petitions challenging the imposition of restrictions on import of peas and pulses on various grounds, including the impugned notifications, which are in the nature of quantitative restrictions under Section 9A of the 1992 Act. One of the contentions was that the quantitative restriction is without following the procedure prescribed under Safeguard Measures (Quantitative Restrictions) Rules 2012. The Court was also examining 33 obligations of the contracting party and effect of International Treaty, namely, GATT-1994 on the Domestic Law. While dealing with the above at paragraphs 32, 34, 37, 41, and 44 it is held as follows :-
"32. Most jurists draw distinction between 'direct application' of treaties in domestic law, and national legal systems that mandate and require 'act of transformation' for an international treaty to apply and be a part of domestic law. 'Direct application' means and mandates that the treaty norms, either wholly or to some extent, are directly treated as norms of domestic law and enjoy the statutory law status by default in the domestic legal system. The term 'direct application' will also cover situations in which government or different levels of government utilise treaty norms as part of domestic jurisprudence and is not limited to situations in which private parties can sue on the basis of the treaty norms. As explained below, there is distinction between direct application and 'invocability'. 'Act of transformation' principle means and implies that an international treaty is not directly applicable in the domestic law system and requires provision in the domestic rules before it is applied. 'Transformation' is a word of wide amplitude and does not refer to 34 mere implementation as it includes the right of the country to adopt, amend or modify the treaty language into domestic jurisprudence. The 'act of transformation' is different from 'direct application' as in the former the treaty is not received and treated as part of domestic jurisprudence until it is published and made part of the domestic jurisdiction in the same manner as other law.
34. United Kingdom, being a parliamentary democracy, the treaties generally do not have direct statute like application, though they may have other internal effects. United Kingdom and other parliamentary democracies, like Canada and Australian systems, are generally considered as prime example of a dualist system. In United Kingdom, the Crown is the constitutional authority to enter into treaties and this prerogative power cannot be infringed by the courts. Further, treaties cannot operate by themselves and require passing off an enabling statute. Lord Oliver in the House of Lords decision in Maclaine Watson & Co. Ltd. v. Department of Trade and Industry had noted:
"...as a matter of the constitutional law of the United Kingdom, the royal prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights 35 on individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation."
37. The law in India is not very different from other Common wealth Countries. Article 73 of the Constitution delineates the extent of executive power of the Union which extends to all matters with respect to which the Parliament has the power to make laws and it extends to the exercise of such rights, authority and jurisdiction as are exercisable by the Central Government by virtue of any treaty or agreement. Proviso to the Article deals with limitation of the executive power under sub-clause
(a) with which we are not concerned. Chapter I of Part XI of the Constitution, captioned 'Relations between the Union and the Sates' vide different Articles stipulates that in respect of List 1 of the 7th Schedule the Parliament has exclusive power to make laws for the whole or any of the territory of India; in respect of List II (State List) the legislatures of the States have exclusive power to 36 make laws for the whole or any part of the States; and in respect of List III (Concurrent List) the Parliament and the State Legislatures have the power to make laws. For the purpose of the present case, Article 253 of the Constitution is important as it states that notwithstanding anything in the foregoing provisions of this Chapter, the Parliament has the power to make laws for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or decisions made at any international conference, association or body.
41. It was also clarified that Article 253 deals with the legislative power of the Parliament and thereby confers power on the Parliament which it may not otherwise possess. This provision does not seek to circumscribe the extent of power conferred under Article 73. In other words, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation; where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power. The dictum in Maganbhai Ishwarbhai Patel (supra) can be summarised as under: 37
"(i) The stipulations of a treaty duly ratified by the Central Government, do not by virtue of the treaty alone have the force of law.
(ii)Though the Executive (Central Government) has power to enter into international treaties/agreements/ conventions under Article 73 (read with Entries 10 & 14 of List I of the VII Schedule to the Constitution of India) the power to legislate in respect of such treaties/ agreements/conventions, lies with Parliament. It is open to Parliament to refuse to perform such treaties/ agreements/ conventions. In such a case, while the treaties/agreements/conventions will bind the Union of India as against the other contracting parties, Parliament may refuse to perform them and leave the Union of India in default.
(iii) Though the applications under such treaties/agreements/conventions are binding upon the Union of India (referred to as "the State" in Maganbhai's case) these treaties/agreements/ conventions "are not by their own force binding upon Indian nationals".
(iv) The making of law by Parliament in respect of such treaties/ agreements/ conventions is 38 necessary when the treaty or agreement restricts or affects the rights of citizens or others or modifies the law of India,
(v) If the rights of citizens or others are not affected or the laws of India are not modified then no legislative measure is needed to give effect to such treaties/agreements conventions."
44. Afore-quoted decisions are on the legal effect of international treaties in the domestic law in India. The ratio of these decisions primarily relates to and is confined to the requirement and mandate of the need for 'act of transformation' to be a part and parcel of domestic law, which confers a right to invocability. The ratio of the above decisions has to be distinguished from decisions interpreting domestic law after the 'act of transformation' consequent to which portions of GATT-1994 stand enacted thereby conferring right of invocability to parties. The decisions referred to in paragraphs 41 to 44 and relied upon by the importers fall in the second category."
A cumulative reading of the decision of the Hon'ble Apex Court makes it abundantly clear that treaties cannot operate by themselves and require passing of an enabling 39 statute. In the instant case, as there is no enabling statute in pursuance to Annexure-B Treaty between the Government of Turkey and Government of India, the petitioner as an individual, even if a citizen, cannot enforce clauses in the treaty.
25. The contention of the petitioner that 2nd respondent could not have issued public notice dated 07.01.2022 restricting country cap at 17,500MTs. has no merit. The Guidelines at Annexure-A1 dated 25.06.2019 provides for determination of country cap. Clause 1 of guidelines reads as follows :-
"1. Determination of Country Cap:
The country cap for the purpose of import of poppy seeds from Turkey shall be approved by Department of Revenue on the basis of recommendation by a Committee comprising Narcotics Commissioner, one representative of Directorate General of Foreign Trade (DGFT) and one representative of Department of Revenue. The country cap will be based upon stock and production of poppy 40 seeds as communicated by the Turkish Grain Board (TMO) or Turkish Embassy in India."
A reading of the above clause makes it clear that country cap for the purpose of import of poppy seeds from Turkey shall be approved by the Department of Revenue on the basis of recommendation by a Committee consisting of Commissioner of Narcotics, Representative of Directorate General of Foreign Trade and Representative of Department of Revenue. Based on the recommendation of the Committee the 2nd respondent fixed the country cap for import of poppy seeds under Annexure-A dated 07.01.2022. The petitioner has failed to establish how Annexure-A1 guidelines dated 25.06.2019 is bad in law and moreover, the guidelines dated 25.06.2019 is upheld by the Division Bench of the High Court of Bombay in the case of CHAIL BIHARI TRADING PVT. LTD., AND ANOTHER VS. UNION OF INDIA AND ANOTHER reported in 2019 SCC Online BOM. 1691.
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26. From the discussion and for the reasons recorded above, I am of the view, that the petitioner has not made out any ground to grant the prayer sought in the writ petition. Accordingly, the writ petition stands rejected.
Sd/-
JUDGE NG*/mpk/-* CT:bms