Calcutta High Court (Appellete Side)
Shri Arun Kumar Ganeriwala vs Union Of India & Ors on 10 March, 2014
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10.03.2014
Sl. No.7
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W.P 4164(W) of 2014
Shri Arun Kumar Ganeriwala
Vs.
Union of India & Ors.
Mr. Kishore Datta,
Mr. Shakeel Mohammed Akhter.........For the petitioner
Mr. Ashim Kumar Dutta .........For respondent nos.1 & 2
The writ petition has been filed by the petitioner by way of public interest litigation to withdraw, rescind, cancel and/or revoke the impugned notifications dated 24th October, 2013 and 3rd December, 2013 as also the impugned Public Notice No.42 (RE-2013) 2009/2014 dated 3rd December, 2013 as they are not in accordance with the provisions contained in Foreign Trade (Development & Regulation) Act, 1992 (hereinafter referred to as the Act of 1992). Prayer has also been made that respondent no.3 be restrained from granting export authorisation for export of Red Sanders Wood in terms of the purported Public Notice in question.
Petitioner has submitted that the Notification dated 24th October, 2013 is in contravention of Sections 5 and 6 of the Act of 1992 and the Notification had not been issued in the name of President also. It was also submitted as a matter of fact that the ban should not have been lifted only for the State of Andhra 2 Pradesh. Thus, the notification has been issued in arbitrary exercise of power and is a discriminatory one violating the provisions under Art. 14 of the Constitution.
Learned counsel appearing on behalf of the respondents has submitted that earlier same petitioner had filed a writ petition with respect to the auction before the High Court at Madras before amendment was made by the Central Government. In fact, amendment has been made by the Central Government and notification has not been placed on record. Submission made that President has not issued the amendment notification cannot be entertained and it cannot be said discriminatory as it was only with respect to the confiscated and seized goods from the State of Andhra Pradesh and considering the case this decision has been taken only for the State of Andhra Pradesh where the confiscated and seized materials are situated.
First coming to the submission raised by Mr. Kishore Datta, learned counsel, appearing for the petitioner that the notification dated 24th October, 2013/3rd December, 2013 is violative of the provisions contained in Sections 5 and 6(3) of the Act of 1992, we are of the view that the same is totally devoid of merits as it is stated in the notification itself that in exercise of power under Section 5 of the Act of 1992 as amended, read with paragraph 1.3 of the Act of 1992, the Central Government has 3 made the amendment with respect to Serial No.188 of Schedule 2 of ITC (HS) Classifications of Export and Import items. The relevant portion of the aforesaid notification is stated below:
"Subject: Relaxation in export policy for export of Red Sanders Wood.
S.O.(E) In exercise of powers conferred by Section 5 of the Foreign Trade (Development & Regulation) Act, 1992, as amended, read with paragraph 1.3 of the Foreign Trade Policy, 2009-14 of the Central Government hereby makes the following amendments in respect of Sl. No.188 of Schedule 2 of ITC(HS) Classifications of Export and Import Items as Under:
The condition stipulated in Column 5 against S. No. 188 of Chapter 44 of Schedule 2 of the ITC(HS) Classifications of Export and Import Items shall be relaxed to allow export of 9784.1363 MT of Red Sanders wood, in the form of log obtained out of confiscated/seized stock from the Government of Andhra Pradesh & Directorate of Revenue Intelligence (DRI)".
(emphasis supplied) It is apparent that the aforesaid notification has not been issued by the Director General under Section 6(3) of the Act of 1992 which provides for the Central Government may, by Order published in the Official Gazette, direct that any power exercisable by it under this Act (other than the powers under sections 3, 5, 15, 16 & 19) may also be exercised, in such cases and subject to such conditions, by the Director General or such other officer subordinate to the Director General, as may be specified in the Order. Power of the Central Government under section 5 of the Act of 1992 cannot be delegated to the Director General. However, 4 as the amendment has been made by the Central Government it cannot be said that amendment made is ultra vires the provisions of the Act of 1992.
Since main amended notification has not been placed before us, it is presumed that the same has been made after following due process and consequently we do not find any violation of the provisions contained in Sections 5 and 6(3) of the Act of 1992. Submission is hereby repelled.
Coming to the question of permitting export in general from all the states, submission is equally untenable. Considering the peculiarity of the present case and having considered the fact that State of Andhra Pradesh has been allowed to export 8584.1363 MTs of Red Sanders wood in log form, which had been confiscated or seized, either by itself or through any entity/entities so authorized, it cannot be said that there was whole sale lifting of ban or embargo upon general export. It was confined to the export of the confiscated/seized goods by the Government of Andhra Pradesh and Director of Revenue Intelligence. Such classification which had been made cannot be said to be discriminatory as there is no general lifting of ban even for the State of Andhra Pradesh. The aforesaid amendment has been made pursuant thereto the auction has been undertaken.
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We are not satisfied that the petitioner has any locus to question the amendment made with respect to the export of confiscated/seized goods by the Government of Andhra Pradesh and the Director General of Intelligence. The relief prayed for by the petitioner before us is mainly that general export should be permitted from all other States. The petitioner cannot be said to be an aggrieved person with respect to confiscated/seized goods. We do not find any locus standi to the petitioner to question the aforesaid modification on the said ground. Discrimination is not borne out. Classification made is reasonable one and with an objective. Thus, we find no ground to entertain this writ petition, which is accordingly dismissed.
Urgent photostat certified copy of this order be supplied to the applicants.
(Joymalya Bagchi J.) (Arun Mishra,C.J)