Kerala High Court
South Indian Green Cardamom Company Ltd vs Union Of India on 26 September, 2018
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940
WP(C).No. 23925 of 2018
PETITIONER:
SOUTH INDIAN GREEN CARDAMOM COMPANY LTD.
D.NO.III/505A AND 505B, KUMILY MUNNAR ROAD,
PAMPUMPARA P.O., IDUKKI - 685551. REPRESENTED
BY ITS DIRECTOR.
BY ADV. SRI.SANTHOSH MATHEW
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF COMMERCE AND INDUSTRY, NEW DELHI
- 110001.
2 SPICES BOARD,
SUGANDHA BHAVAN, N.H.BY-PASS, P.B.NO.2277,
PALARIVATTOM P.O., COCHIN - 682025, REPRESENTED
BY ITS SECRETARY.
3 THE CHAIRMAN,
SPICES BOARD, SUGANDHA BHAVAN, N.H. BY-PASS,
P.B. NO.2277, PALARIVATTOM P.O., COCHIN -
682025.
4 SECRETARY,
SPICES BOARD, SUGANDHA BHAVAN, N.H. BY-PASS,
P.B. NO.2277, PALARIVATTOM P.O., COCHIN -
682025.
W.P.(C).No.23925/18& con cases.
2
5 M/S.CARDAMOM PLANTERS ASSOICATION,
8/14, CPA BUILDING, KUMILY ROAD, SANTHANPARA -
685619.
6 M/S.IDUKKI DISTRICT TRADITIONAL CARDAMOM
PRODUCER COMPANY LIMITED,
DOOR NO.147, 6TH MILE, CHAKKUPALLAM, VANDANMEDU
- 685551.
7 M/S.HEADER SYSTEMS (INDIA) LIMITED,
KUMILY MUNNAR ROAD, VANDANMEDU, IDUKKI -
685551.
8 M/S.VANDANMEDU GREEN GOLD CARDAMOM PRODUCER
COMPANY LIMITED,
171/XVIII-VGCPC BUILIDNG, VANDANMEDU.
9 M/S.THE CARDAMOM PLANTERS MARKETING CO-
OPERATIVE SOCIETY LIMITED,
KUMILY, SPICE HOUSE, THEKKADY P.O., IDUKKI -
685 536.
10 M/S.SUGANDHAGIRI SPICES PROMOTERS AND TRADERS
PRIVATE LIMITED,
BUILDING NO.119/5, POOPPARA P.O., SANTHANPARA -
685619.
11 M/S.THE KERALA CARDAMOM PROCESSING AND
MARKETING COMPANY LIMITED,
SPICE HOUSE, THEKKADY P.O., IDUKKI - 685536.
12 M/S.THE STATE TRADING CORPORATION OF INDIA
LIMITED,
K.S.H.B. OFFICE COMPLEX, 4TH FLOOR, PANAMPILLY
NAGAR, KOCHI - 682036.
13 M/S.GREEN HOUSE CARDAMOM MARKETING INDIA
PRIVATE LIMITED,
KOMBANAMTHOTTAM BUILDING, PULIYANMALA - 685515.
14 MS.SPICE MORE TARDING COMPANY
KP XIV-11, VETTATHARA BUILDING, MUNNAR ROAD,
KUMILY - 685509.
W.P.(C).No.23925/18& con cases.
3
15 MAS ENTERPRISES LTD.
P.B. NO.1, VANDANMEDU, IDUKKI (DIST), KERALA -
685551
16 ADDL.R16. THE CARDAMOM GROWERS FOREVER PRIVATE
LIMITED
552B TO 552H, THANNIMOODU ROAD, NEDUMKANDAM -
685553, IDUKKI DISTRICT. (ADDL.R16 IMPLEADED AS
PER ORDER DATED 07.08.2018 IN IA 13676/2018.)
17 ADDL.R17. VALLAKKADAVU ELAM ULPADAKA SANGAM
REG NO.IDK/TC/173/2015, KADAMAKKUDY P.O.,
VALLAKKADAVU, KTTAPPANA, IDUKKI, PIN - 685 515,
REPRESENTED BY ITS PRESIDENT.
18 ADDL.R18. THE SECRETARY
VALLAKKADAVU ELAM ULPADAKA SANGAM, REG
NO.IDK/TC/173/2015, KADAMAKKUDY P.O.,
VALLAKKADAVU, KATTAPPANA, IDUKKI, PIN - 685515.
(ADDL.R17 AND R18 IMPLEADED AS PER ORDER DATED
07.08.2018 IN IA 13686/2018.)
19 ADDL.R19. SIBY JOSEPH
AGED 49 YEARS
S/O.JOSEPH, NAMBUDAKATHU HOUSE, VAGATHANAM
P.O., PALAPARA, KANGIRAPPALLY - 686 506.
(ADDL.R19 IMPLEADED AS PER ORDER DATED
07.08.2018 IN IA 13687/2018.)
20 ADDL.R20. P.AJITHKUMAR
JAYALAKSHMI VILASM, BALAGRAM, P.O KALLAR -
685552, IDUKKI DISTRICT, PRESIDENT, BALAGRAM
ELAM ULPADAKA SANGHAM, BALAGRAM, P.O KALLAR -
685552, IDUKKI. (ADDL.R20 IMPLEADED AS PER
ORDER DATED 07.08.2018 IN IA 13688/2018.)
21 ADDL.R21. GREEN CARDAMOM TRADING COMPANY,
BUILDING NO.32-W/45-1, RAILWAY STATION ROAD,
BODINAYAKANUR, THENI, TAMIL NADU - 625513,
REPRESENTED BY ITS MANAGING PARTNER M.SANKAR.
(ADDL.R21 IMPLEADED AS PER ORDER DATED
07.08.2018 IN IA 13950/2018.)
W.P.(C).No.23925/18& con cases.
4
22 ADDL.R22. THE CARDAMOM GROWER'S ASSOCIATION
VANDAMEDU P.O., IDUKKI DISTRICT, REPRESENTED BY
ITS GENERAL SECRETARY MR.SHINE VARGHESE.
23 ADDL.R23. ANTONY MATHEW
S/O.MATHEW, PRESIDENT, THE CARDAMOM GROWER'S
ASSOCIATION, VANDAMEDU P.O., IDUKKI DISTRICT.
24 ADDL.R24. SHINE VARGHESE
S/O.P.T.VARGHESE, GENERAL SECRETARY, THE
CARDAMOM GROWER'S ASSOCIATION, VANDAMEDU P.O.,
IDUKKI DISTRICT (ADDL.R22 TO R24 ARE IMPLEADED
AS PER ORDER DATED 07.08.2018 IN IA
13816/2018.)
25 ADDL.R25 - VALIYAKANDAM CARDAMOM GROWERS SANGH
IDK/TC/233/2015, RAJAKKAD, IDUKKI, REPRESENTED
BY ITS PRESIDENT V.V.BABU, S/O.VARGHESE, AGED
56 YEARS, VETTIKKATTU, PONMUDY P.O., IDUKKI-
686 563.--------------------------------
(ADDITIONAL R25 IS IMPLEADED AS PER ORDER DATED
04.09.2018 IN I.A.NO.13605 OF 2018).
26 ADDL.R26-V.P.RAJENDRAN,
AGED 56 YEARS
S/O.PRABHAKARAN, VILLONICKAL, CHEMMANNUR P.O.,
IDUKKI- 685 554.
(ADDITIONAL R26 IS IMPLEADED AS PER ORDER DATED
04.09.2018 IN I.A.NO.13608 OF 2018).
BY ADVS.
SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
SRI.ABRAHAM JOSEPH MARKOS
SMT.ASHA K.SHENOY
SRI.C.ANIL KUMAR
SRI.DIPU JAMES
SRI.GEORGE MATHEW
SRI.ISAAC THOMAS
SRI.K.S.HARIHARAPUTHRAN
SRI.MATHEW DEVASSI
SRI.MATHEW JOHN (K)
SRI.M.D.SASIKUMARAN
SRI.P.G.CHANDAPILLAI ABRAHAM
W.P.(C).No.23925/18& con cases.
5
SRI.PRATAP ABRAHAM VARGHESE
SRI.CHANDY JOSEPH
SRI.PRAVEEN.H.
SMT.PREETHI RAMAKRISHNAN (P-212)
SRI.P.S.SIDHARTHAN
SMT.RACHEL ABRAHAM
SRI.RENJITH RAJAPPAN
SRI.ANTONY MUKKATH, SC, SPICES BOARD
SRI.SUNIL KUMAR A.G
SRI.T.C.KRISHNA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ALONG
WITH WPC NOS. 24196/18 & 25592/2018 ON 4.09.2018, THE COURT
ON 26.09.2018 DELIVERED THE FOLLOWING:
W.P.(C).No.23925/18& con cases.
6
W.P.(C).Nos.23925,
24196 & 25592 of 2018
= = = = = = = = = = = = = = =
JUDGMENT
1. Heard Sri.Santhosh Mathew, learned counsel appearing for the petitioner in W.P.(C).Nos.23925 of 2018 and W.P. (C).No.26740 of 2018, Smt.A.K.Preetha, learned counsel appearing for the petitioner in W.P.(C).No.24196 of 2018, Sri.G.Hariharan, the learned counsel appearing for the petitioners in W.P.(C).No.25592 of 2018, Sri.N.Nagaresh, the learned Assistant Solicitor General of India, Sri.Antony Mukkoth, learned counsel appearing for the Spices Board, Sri.Mathew John, Sri.K.S.Hariharaputhran, Sri.Abraham Markos, Sri.Chandy Joseph, Sri.Liji J. Vadakkedom, Sri.Vincent Panikulangara and Sri.P.Ramakrishnan, the learned counsel appearing for the contesting respondents. The facts and documents are being referred to as in W.P.(C).No. 23925 of 2018, unless otherwise specified.
2. W.P.(C).No.23925 of 2018 is filed challenging Exhibits P6 and P8 orders of the Spices Board revising the schedule for W.P.(C).No.23925/18& con cases.
7conduct of cardamom auctions by licensed auctioneers. The essential contention of the writ petitioner is that the Spices Board is the authority competent to prepare and revise schedules for the conduct of auctions and that Exhibits P6 and P8 orders are incompetent inasmuch as they are issued by the Secretary of the Board, who is not empowered to do so. It is further contended that the Spices Board had considered the request for revision of the system of auction and the schedule pursuant to Exhibit P3 judgment after giving notice to all the stakeholders in the issue and had taken an informed decision as evidenced by Exhibit P5, finding that the request for full day auction by the auctioneers does not merit favourable consideration. The change in schedule now effected is therefore challenged as being vitiated by extraneous consideration apart from being an order passed without jurisdiction.
3. The learned counsel for the petitioners in W.P.(C).Nos.23925 and 24196 of 2018 would contend that the change in the schedule of auction is completely unwarranted and that the W.P.(C).No.23925/18& con cases.
8Secretary of the Board is totally incompetent to make such revision in terms of the provisions of the Spices Board Act, 1986, Spices Board Rules, 1987 and the Cardamom (Licencing & Marketing) Rules, 1987.
4. A detailed counter affidavit has been filed on behalf of the Board contending that Exhibit P5 decision was taken by the Secretary due to the request made by the Cardamom Growers and Auctioneers that the half day system of auction is creating serious prejudice to the Growers participating in the auction. It is stated that the decision in Exhibit P5 was taken since the block period was due to expire on 31.8.2017 and therefore it was felt that there was no necessity for revision near the end of the block period. It is stated that since the prevailing block year had already expired, the Secretary was well within his powers to revise the schedule of auction. It is further stated that the Spices Board had received representation dated 15.5.2018 from Cardamon Growers Associations, namely, Bharatiya Cardamom Growers Sangh and representation dated 15.4.2018 from Bharathiya Janatha Kissan Morcha, W.P.(C).No.23925/18& con cases.
9Kattapana against half day auctions. The representations are produced as Exhibits R-2(b) and R-2(c) respectively. It is stated that after examining the same, the Secretary decided to revert to the full day auctions which were in vogue before 2010. Relying on the provisions of Rule 14(B)(v) of the Spices Board Rules 1987, it is submitted that the Secretary has the power combined with duty to take a decision in respect of matters that cannot wait disposal by the Board or a Committee, as the case may be.
5. It is submitted by the learned counsel for the 21 st respondent that the contention raised against grant of fresh auctioneers licences applies equally to renewal of licences as well. Since no prayer is sought as against the 21 st respondent in the writ petition, the said aspects do not require consideration in this writ petition, it is submitted.
6. An affidavit has been filed on behalf of respondents 2 to 4, as directed by this Court, stating that the 12 th respondent in this writ petition is a licensed auctioneer from 2014 onwards and W.P.(C).No.23925/18& con cases.
10had been conducting auction regularly during the last block period. It is stated that non-conduct of auction for the period February, 2018 does not render them incompetent for conducting auctions or for consideration for renewal of auctioneer licence.
7. Sri.G.Hariharan, the learned counsel appearing for the petitioners in W.P.(C).No.25592 of 2018 submits that the writ petition is filed by Cardamom Grower's Association seeking continued implementation of Exhibit P3 circular, since it has resulted in no difficulty to anybody and only two auctioneers have submitted complaints against the same. It is stated that Section 39 of the Spices Board Act empowers the Union of India to make regulations to carry out the purposes of the Act. It is further stated that Ext.P4 report submitted to the respondent Board highlights deficiencies in the identification of auctioneers and the defects pointed out in the report are liable to be addressed. It is contended that the system of full day auction is working to the advantage of the growers and should be allowed to continue.
W.P.(C).No.23925/18& con cases.
11
8. The learned counsel appearing for the 4 th respondent in W.P. (C).No.25592 of 2018 would contend that the writ petition itself has become infructuous, since the prayer is to implement Exhibit P3 which is an auction schedule which has worked itself out. It is contended that the petitioner in the writ petition had made no request for change of auction in schedule. It is stated that any decision on Exhibit P4 can be taken only by the Spices Board and no decision by the Secretary would be competent.
9. I have perused the pleadings and considered the arguments of the learned counsel appearing for all the parties. It is clear that pursuant to Exhibit P3 judgment of this Court the issue of change of schedule of auctions had been considered in detail by the Spices Board and Exhibit P5 decision had been rendered. It is on record that the term of the Board expired on 2.2.2017. Ext.P5 decision was taken by the Chairman on 4.8.2017. Though it is submitted by the learned counsel appearing for the 17th respondent in W.P.(C).No. 23925 of 2018 W.P.(C).No.23925/18& con cases.
12that the revision of schedule had been made on the basis of a representation preferred by M/s.Header Systems (India) Ltd., which is a licenced auctioneer pursuant to direction of this Court in W.P.(C).No.15585 of 2015, the counter affidavit of respondents 2 to 4 is categoric that it is on the basis of Exhibit R2(b) and R2(c) representations that the revision was effected. The reply of the respondents to the legal contention raised by the petitioner that the Secretary of the Board is not empowered to take a policy decision in the nature of the revision of schedule is only that the Secretary has emergency powers in terms of Rule 14(B)(v). In view of the fact that Exhibit P5 order had considered the specific contentions with regard to the complaints against the half day auction system and had rejected the same, I fail to see any emergent requirement for the present revision effected exercising such emergency powers without hearing any of the stakeholders. This is more so in view of the fact that the 12 th respondent, though a licenced auctioneer, has not been conducting any of the auction scheduled from February 2018 onwards. In the above circumstances I am of the opinion that the urgent need W.P.(C).No.23925/18& con cases.
13cited is essentially a nonexistent fact. Even in case of any perceived urgent need for revision of schedule in public interest.
10.A decision in the nature of change in the schedule of auctions cannot be unilaterally taken by the Secretary of the Spices Board, without hearing the major stakeholders, including the representatives of the Cardamom Growers and the licenced auctioneers.
11.The prayers sought for in W.P.(C).No.25592 of 2018 cannot be granted. Any decision on matters like implementation of Exhibit P4 report as sought for can be taken only by the Spices Board and not by the Secretary in exercise of his emergency powers.
12.In the above view of the matter, Exhibits P6 and P8 orders impugned in W.P.(C).No.23925 of 2018 are set aside. There will be direction to the respondents to immediately convene a meeting of all the stakeholders, including all sections of W.P.(C).No.23925/18& con cases.
14Cardamom Growers and all the licenced auctioneers and to take an informed decision in the matter with notice to all concerned and after considering the contention of all the stakeholders, especially the cardamom growers. A decision shall be taken by the respondents at the earliest, after giving due notice to all concerned by public notice, if necessary, within a period of one month from the the date of receipt of a copy of this judgment. Till orders are passed as directed above, auctions shall be conducted in accordance with the present schedule in force.
In the result, W.P.(C).Nos.23925 and 24196 of 2018 are ordered as above. W.P.(C).No.25592 of 2018 is dismissed.
sd/-
Anu Sivaraman, Judge sj W.P.(C).No.23925/18& con cases.
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APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1- TRUE COPY OF THE LICENSE NO.MKT-
AUC/CS/S1421/0009/2018 DATED 29/6/2018 EXHIBIT P2- TRUE COPY OF THE ORDER OF THE SPICES BOARD DATED 16/9/2011 EXHIBIT P3- TRUE COPY OF THE JUDGMENT DATED 27/6/2017 IN WP(C) 13718 OF 2016.
EXHIBIT P4- TRUE COPY OF THE NOTICE DATED 18/7/2017 ISSUED TO THE PETITIONER BY THE SPICES BOARD.
EXHIBIT P5- TRUE COPY OF THE ORDER NO.KT-AUC/2012- MARKETING/1434 DATED 4/8/2017 ISSUED BY THE SPICES BOARD.
EXHIBIT P6- TRUE COPY OF THE CIRCULAR DATED 17/5/2018 ALONG WITH THE REVISED SCHEDULE INDICATING THE DATE, TYPE AND VENUE FOR CONDUCTING THE CARDAMOM AUCTIONS.
EXHIBIT P7- TRUE COPY OF THE CARDAMOM (LICENSING AND MARKETING) AMENDMENT RULES, 2014.
EXHIBIT P8- TRUE COPY OF THE CIRCULAR DATED 28/6/2018 ISSUED BY THE SECOND RESPONDENT.
EXHIBIT P9- TRUE COPY OF THE LETTER DATED 29/6/2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P10- TRUE COPY OF THE REPRESENTATION DATED 3/7/2018 SUBMITTED BY THE PETITIONER.
EXHIBIT P11- TRUE COPY OF THE CIRCULAR DATED 26.7.2018 ISSUED BY THE 4TH RESPONDENT W.P.(C).No.23925/18& con cases.16
EXHIBIT P12 TRUE COPY OF THE PRINTOUT OF THE PAYMENT DECLARATION SUBMITTED BY THE CARDAMOM AUCTIONEERS FROM THE WEBSITE OF THE SPICES BOARD OF INDIA.
RESPONDENT'S EXHIBITS:
ANNEXURE I THE COPY OF THE CERTIFICATE OF REGISTRATION DATED 06.05.2015 ISSUED TO THE PETITIONER BY THE REGISTRAR OF SOCIETIES, IDUKKI.
ANNEXURE II THE COPY OF THE MEMORANDUM OF ASSOCIATION OF VALLAKKADAVU ELAM ULPADAKA SANGHAM.
ANNEXURE III THE COPY OF THE CERTIFICATE OF ENROLLMENT DATED 10.12.2015 OF THE VALLAKKADAVU ELAM ULPADAKA SANGAM AS SPICE PROCDUCERS' SOCIETY ISSUED BY THE SPICES BOARD, MINISTRY OF COMMERCE AND INDUSTRY.
EXHIBIT R16(A) TRUE COPY OF E-MAIL DATED 18.06.2018 RECEIVED FROM THE 3RD RESPONDENT.
EXHIBIT R16(B) TRUE COPY OF MAIL DATED 18.07.2018 RECEIVED FROM THE 3RD RESPONDENT.
EXHIBIT R2 A PHOTOCOPY OF THE ORDER DATED 06.07.2018 IN WP(MD)NO.14505 AND 14506 OF 2018 OF THE HON'BLE MADURAI BENCH OF MADRAS HIGH COURT.
EXHIBIT R2 B PHOTOCOPY OF THE REPRESENTATION DATED 15.05.2018 OF THE BARADIYA CARDAMOM GROWERS SANGH.
EXHIBIT R2 C PHOTOCOPY OF THE REPRESENTATION DATED 15.04.2018 OF THE BHARATIYA JANATA KISSAN MORCHA.
EXHIBIT R2 D PHOTOCOPY OF THE E-MAIL DATED 19.05.2018 BY THE CARDAMOM GROWERS ASSOCIATION, VANDENMETTU.
W.P.(C).No.23925/18& con cases.
17EXHIBIT R2 E PHOTOCOPY OF THE AMENDED THE CARDAMOM (LICENSING AND MARKETING) RULES, 1987 BY ISSUING CARDAMOM (LICENSING AND MARKETING) AMENDMENT RULES, 2014 AS PER GSR NO.816(E) DATED 18.11.2014 OF THE GOVERNMENT OF INDIA, MINISTRY OF COMMERCE AND INDUSTRY, DEPARTMENT OF COMMERCE.
EXHIBIT R2 F PHOTOCOPY OF THE SPICES BOARD (AMENDMENT) RULES, 2018 NOTIFICATION DATED 02.02.2018 G.S.R 157(E).
EXHIBIT R2 G PHOTOCOPY OF THE CARDAMOM (LICENSING AND MARKETING) AMENDMENT RULES, 2018, NOTIFICATION DATED 08.03.2018 G.S.R. 215(E). EXHIBIT R2 H PHOTOCOPY OF THE LICENCE NO.MKT-
AUC/CS/S1421/0009/2018 DATED 29.06.2018 OF THE DIRECTOR (MKTG), SPICES BOARD.
EXHIBIT R2 I PHOTOCOPY OF THE LETTER NO.MKT-
AUC/0009/2018 DATED 29.06.2018 OF THE DIRECTOR (MKTG), SPICES BOARD.
TRUE COPY PS TO JUDGE