Gujarat High Court
My Own Eco Energy Private Ltd. Through ... vs State Of Gujarat, Food ,Civil Supplies ... on 7 October, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/7880/2022 ORDER DATED: 07/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7880 of 2022
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MY OWN ECO ENERGY PRIVATE LTD. THROUGH SATESHKUMAR
KISHORILAL MADAAN
Versus
STATE OF GUJARAT, FOOD ,CIVIL SUPPLIES AND CONSUMER AFFAIRS
DEPARTMENT
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Appearance:
G H VIRK(7392) for the Petitioner(s) No. 1
MR. AYAAN PATEL, AGP for the Respondent(s) No. 1,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/10/2023
ORAL ORDER
1. By way of present petition, under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"39. In view of the aforesaid facts and circumstances, the petitioner humbly prays as under:
(a) Your Lordships be pleased to issue a writ of certiorari to quash order dated 29.10.2021 issued by respondent no. 6 for calling upon the petitioner to produce permission letter authorising it to sell its product "Indizel" and thereby permit the petitioner to operate and sell its product "Indizel" from the said outlet,
(b) Your Lordships be pleased to issue a writ of certiorari to quash the seizure and sealing orders dated 17.12.2021 issued by respondent no. 6; 22.01.2022 issued by respondent no. 5;Page 1 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023
NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined 02.02.2022 issued by respondent no. 8 and 05.03.2022 issued by respondent no. 9 for seizing the product under the brand name "Indizel" manufactured and sold by the petitioner and thereby sealing the outlets;
(c) Your Lordships be pleased to issue a writ of mandamus or any other appropriate writ, order or direction for restraining the respondents from preventing and/or in any manner interfering with the activity of the petitioner in manufacturing, transporting and sale of its product under the brand name "Indizel" in open market within the State of Gujarat,
(d) Your Lordships be pleased to declare that the product manufactured and sold by the petitioner under the brand name "Indizel" is made from non-fossil resources and not from fossil resources and therefore is outside the purview of the Essential Commodities Act, 1955; Gujarat Essential Articles Dealers (Regulation) Order, 1977; Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981; Motor Spirit and High Speed diesel (Regulation of Supply and Distribution and Prevention of Malpractice) Order, 1998; Petroleum Rules, 2002 read with Notification dated 30.04.2019 issued by Ministry of Petroleum and Natural Gas; letter dated 29.09.2020 issued by Food, Civil Supplies and Consumer Affairs Department, letter dated 31.12.2021 issued by Home Department, State of Gujarat, letter dated 01.02.2022 issued by Food, Civil Supplies and Consumer Affairs Department and therefore no action can be taken by the respondents under any of the above Acts, Rules, Notifications, etc...
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(e) Your Lordships be pleased to issue a writ of mandamus commanding the respondents herein not to seize nor take any coercive steps against the petitioner and/or its dealers/operators selling the product under the brand name "Indizel" across the State of Gujarat without leave of the Hon'ble High Court of Judicature at Mumbai;
(f) Pending admission, final disposal and final hearing of present petition, Your Lordships be pleased to stay the operation, implementation and execution of order dated 29.10.2021 issued by respondent no. 6 for calling upon the petitioner to produce permission letter authorising it to sell its product "Indizel" and thereby permit the petitioner to operate and sell its product "Indizel" from the said outlet,
(g) Pending admission, final disposal and final hearing of present petition. Your Lordships be pleased to permit the dealers of the petitioner to sell and operate the outlets by staying the operation, implementation and execution of the seizure and sealing orders dated 17.12.2021 issued by respondent no. 6; 22.01.2022 issued by respondent no. 5; 02.02.2022 issued by respondent no. 8 and 05.03.2022 issued by respondent no. 9 for seizing the product sold under the brand name "Indizel" and for sealing the outlets;
(h) Pending admission, final disposal and final hearing of present petition, Your Lordships be pleased to restrain the respondents from preventing and/or in any manner interfering with the activity of the petitioner in manufacturing. transporting and sale of its product under the Page 3 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined brand name "Indizel" in open market;
(i) Pending admission, final disposal and final hearing of present petition, Your Lordships be pleased to issue appropriate, order, directions or instructions declaring that product manufactured, transported and sold by the petitioner under the brand name "Indizel is made from non-fossil resources and not from fossil resources and therefore the same is outside the purview of the Essential Commodities Act, 1955; Gujarat Essential Articles Dealers (Regulation) Order, 1977; Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981; Motor Spirit and High Speed diesel (Regulation of Supply and Distribution and Prevention of Malpractice) Order, 1998; Petroleum Rules, 2002 read with Notification dated 30.04.2019 issued by Ministry of Petroleum and Natural Gas; letter dated 29.09.2020 issued by Food, Civil Supplies and Consumer Affairs Department; letter dated 31.12.2021 issued by Home Department, State of Gujarat, letter dated 01.02.2022 issued by Food, Civil Supplies and Consumer Affairs Department and so no action can be taken by the respondents under any of the above Acts, Rules, Notifications, etc...;
(j) Your Lordships be pleased to pass such other and further orders may kindly be passed in favour of the petitioner, which the Hon'ble Court deems fit in the interest of justice".
2. Heard Mr. G.H. Virk, the learned advocate appearing for the petitioner and Mr. Ayaan Patel, the learned AGP appearing for the respondent Nos. 1 to 9. Page 4 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023
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3. Brief facts leading to the filing of the present petition read thus:
3.1 The petitioner herein has challenged the orders of seizure dated 17.12.2021 issued by respondent no. 6;
dated 22.01.2022 issued by respondent no. 5; dated 02.02.2022 issued by respondent no. 8 and dated 05.03.2022 issued by respondent no. 9, by exercising their powers under Essential Commodities Act, 1955; Gujarat Essential Articles Dealers (Regulation) Order, 1977; Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981; Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractice) Order, 1998; Petroleum Rules, 2002 read with Notification dated 30.04.2019 issued by Ministry of Petroleum and Natural Gas; letter dated 29.09.2020 issued by Food, Civil Supplies and Consumer Affairs Department; letter dated 31.12.2021 issued by Home Department, State of Gujarat; letter dated 01.02.2022 issued by Food, Civil Supplies and Consumer Affairs Department and communication dated 02.02.2022 Page 5 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined issued by the District Supply officer, despite the fact that the product sold by the petitioner under the brand name "Indizel" is manufactured from non-fossil resources and not from fossil resources.
3.2 The petitioner by way of present petition is seeking issuance of writ of certiorari to quash the order dated 09.11.2021 issued by the Joint Secretary to the Controlling officer in respondent No. 1 for restraining the petitioner to undertake stamping exercise for renewable diesel/Drop-in-fuel/HVO outlets without ascertaining the products sold at such outlets. A copy of the order dated 29.10.2021 issued by respondent no. 6 and seizure orders dated 17.12.2021, 22.01.2022, 02.02.2022 and 05.03.2022 along with order dated 09.11.2021 are duly produced at Annexure-"A" Colly.
3.3 It is the case of the petitioner herein that the petitioner herein is a manufacturer of bio-fuel under the brand name of "Indizel" which is produced from biomass. The product of the petitioner is a drop-in-fuel, which can Page 6 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined be sold as stand-alone fuel. The petitioner herein is aggrieved by the action on the part of the respondent authorities passing order for seizing the product of the petitioner which is a bio-fuel.
4. To substantiate the aforesaid, reliance is placed on the Notifications issued from time to time, more particularly, the Notification dated 04.06.2018, issued by the Ministry of Petroleum & Natural Gas, Government of India declaring the National Policy on Bio-fuels, 2018. It is the case of the petitioner that as per the said policy, Clause No. 3.1(i) defines Biofuels as fuels produced from renewable resources and used in place of or in blend with, diesel, petrol or other fossil fuels for transport, stationary, portable and other applications and whereas, Clause no. 3.2 identifies 5 categories of bio-fuels. The case of the petitioner falls under Clause (d) of the said Notification dated 4.6.2018 wherein 'drop-in fuels' are any liquid fuel produced from Biomass, agri-residues, wastes such as Municipal Solid Wastes (MSW), Plastic wastes, Industrial wastes etc. which meet with the Indian Page 7 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined Standards for MS, HSD and jet fuel, in pure or blended form, for its subsequent utilization in vehicles without any modifications in the engine systems and can utilize existing petroleum distribution system. 4.1 It is the case of the petitioner that being covered under the aforesaid Notification dated 4.6.2018, the product manufactured by the petitioner is bio-fuel, which is in turn a 'drop-in-fuel' in terms of Clause-3.1(i) and 3.2(d). Placing reliance on the same, it is the case of the petitioner that the product being included as a bio-fuel and drop-in-fuel, brand 'Indizel' is made from non-fossil resources and not from fossil resources and, therefore, outside the purview of the Essential Commodities Act, 1955; Gujarat Essential Articles Dealers (Regulation) Order, 1977; Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981; Motor Spirit and High Speed diesel (Regulation of Supply and Distribution and Prevention of Malpractice) Order, 1998; Petroleum Rules, 2002 read with Notification dated 30.04.2019 issued by Ministry of Petroleum and Natural Page 8 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined Gas; letter dated 29.09.2020 issued by Food, Civil Supplies and Consumer Affairs Department, letter dated 31.12.2021 issued by Home Department, State of Gujarat, letter dated 01.02.2022 issued by Food, Civil Supplies and Consumer Affairs Department.
4.2 It is the case of the petitioner that coercive steps against the petitioner and / or its dealer selling the product under the brand name 'Indizel', the same being bio-fuel which is produced from biomass, the provisions of the Essential Commodities Act, 1955, not being applicable to the petitioner. In view therefore, the exercise undertaken by the respondent authorities to seize the product manufactured by the petitioner and its dealers being a colourable exercise at the end of respondent authorities, the said exercise is required to be interfered with and respondent authority be restrained from interfering with the activities undertaken by the petitioner in manufacturing, transporting and sale of its product under the brand name "Indizel" in open market. Page 9 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023
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5. Being aggrieved by the aforesaid action undertaken by the respondent authority , the petitioner herein has approached this Court seeking reliefs, as referred hereinabove.
6. Heard Mr. G.H.Virk, the learned advocate appearing for the petitioner. Mr. Virk, the learned advocate submitted that the petitioner herein is manufacturer of a non-fossil fuel, branded as "Indizel" and it is not generated from any fossilized resource and, therefore, it is not "Petroleum". It was submitted that the petitioner's Website - "My Own Eco Energy" states that the product "Indizel" is recognized as a drop-in-fuel, as per National Policy on Bio-fuels, 2018 and is manufactured, processed and tested.
6.1 Reliance was placed on the website of My Own Eco Energy Pvt Ltd., describing "Indizel" product, in which, in Section 3, Composition/Information on ingredients of "Indizel" product is given. Following ingredients are contained in "Indizel":
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(i) Fatty Acids, Vegetable Oil, Methyl Esters
(ii) Renewable Hydrocarbons (Diesel Type Fraction)
(iii) Fuels.
It was submitted that the aforesaid ingredients used by the petitioner being renewable Hydrocarbons (Diesel type Fraction) would not be a Hydrocarbon, as the same would not fall within the definition of Petroleum and therefore, the product falls under the definition of bio- fuel, in turn it is a drop-in-fuel.
6.2 Placing reliance on the aforesaid, it was submitted that the exercise undertaken by the respondent authority is required to be quash and set-aside.
6.3 Mr. Virk, the learned advocate appearing for the petitioner submitted that the petitioner had approached the competent authority for having the product checked by FSL, which came to be declined by the said authority on the ground that there are no parameters with respect to the product in question are not available and, therefore, it was declined. The petitioner was declined Page 11 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined with respect to re-assessment of the said product. 6.4 Placing reliance on the same, Mr. Virk the learned advocate submitted that in absence of availability of laboratory to check the product, prima-facie case would shift in favour of the petitioner. Mr. Virk, the learned advocate submitted that the FSL, Gandhinagar does not have facility for determination of Bio-based content and fossil content in liquid hydrocarbon using radio carbon analysis method ASTM 6866 or DIN 51637 then FSL could not come to the conclusion that "Indizel" is petroleum product.
6.5 Reliance was also placed by Mr. Virk, the learned advocate for the petitioner on the order dated 16.3.2023 passed by the Commissioner of Customs (Appeals), Mumbai. Placing reliance on the same, it was submitted that Para-14 of the said order records the findings that the petitioner's goods that were confiscated were "Renewable Hydrocarbon" or "Neste Renewable Diesel with Additive".
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NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined 6.6 Placing reliance on the same, it was submitted that the goods in question came to be released on the ground that same product does not fall within the definition of petroleum product. It was submitted that the said definition be considered by this Court wherein the product of the petitioner is considered as a renewable hydrocarbons or Neste Renewable Diesel with Additives, as stated in the Website of the petitioner and that the products cannot be termed as a "Petroleum" product. 6.7 In view thereof, in absence of the product being termed Petroleum product, the respondent authorities could not have seized the product "Indizel" and the said exercise undertaken by the respondent authorities is required to be quashed and set-aside, on the aforesaid ground alone.
7. Per Contra, Mr. Ayaan Patel, the learned AGP submitted that the product in question was sent for examination and FSL reports with respect to same are on record. Reliance was also placed on those FSL reports, Page 13 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined duly placed on record at Annexure "X" (Colly), page-284, wherein the said report states that "Indizel" is a hydrocarbon. Thus, there is "presence of Hydrocarbons", and the same would fall within the domain of definition of "Petroleum". Placing reliance on the same, Mr. Patel, the learned AGP submitted that once the FSL reports indicate the "presence of hydrocarbons", Indizel is a type of petroleum product and, therefore, "governed by Essential Commodities Act, 1955" and various other circulars/ notifications/ orders issued by the Central and State Government from time to time.
7.1 Mr. Patel, the learned AGP substantiating the aforesaid contention, submitted that the petitioner has not placed on record the details of manufacturing unit and requisite licences like Gujarat Pollution Control Board etc. required to carry out the manufacturing of aforesaid product.
7.2 It was submitted that reliance placed by the petitioner on the order passed by the Hon'ble High Court Page 14 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined of Bombay in Writ Petition No. 1556 of 2016, wherein ad- interim relief came to be granted, it was submitted that the product against whom the said relief was granted was a "Bio-diesel" as stated in the said order itself. It was submitted that the "petitioner's product "Indizel" is intended to be used in automobiles" and necessary permissions and authorizations are required to be procured from the Central Government, as prescribed under Clause 5 and 6 of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 as well as Government Resolution dated 8.11.2019 issued by the Central Government.
7.3 It was submitted that the Central Government has issued Notification dated 10.8.2015 amending the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 whereby vide Clause 6-A, the direct sale of Bio-diesel (B
100) was permitted to bulk consumers like Railways, Shipping and State Road Transport Corporations. Page 15 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023
NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined Thereafter, the Central Government issued another notification dated 29.6.2017 whereby the earlier Clause 6A of the (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, came to be substituted and thereby permitting the direct sale of Bio- Diesel (B 100) for blending with high speed diesel to all, in accordance with specified blending limits and standards specified by the Bureau of Indian Standards. 7.4 It was submitted that thereafter the Central Government further amended the (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 vide Resolutions dated 30.4.2019 as well as 30.5.2019, whereby further guidelines have been provided for sale of Bio-diesel Fuel (B 100).
7.5 It was submitted that the State Government also issued Circular dated 28.7.2021, whereby it is resolved not to permit sale of Bio-diesel through retail outlets, as the implementation of the guidelines issued by the Central Government is pending consultation with the Page 16 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined Central Government. It was submitted that the aforesaid instructions have also been issued in the said Circular for curbing the unauthorised sale of bio-diesels in the name of petroleum products.
7.6 It was submitted that the Central Government issued communications dated 27.8.2020 and 7.10.2020, whereby it was intimated to take firm action against unscrupulous elements selling spurious bio-diesel in the States and the same is a cause of concern for the consumer and environment as well as causing loss to the Oil Marketing Companies.
7.7 Placing reliance on the aforesaid, it was submitted that the State Government issued Circular dated 31.8.2021, whereby instructions have been issued to various local authorities in the State, to check, inspect and seize such spurious products.
7.8 It was submitted that considering the business of petitioner, the petitioner is required to comply with the Page 17 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined requirements of the provisions of aforesaid resolutions and obtain authorization for marketing the transportation fuels and the provisions of the Essential Commodities Act, 1955, the Petroleum Act, 1934, the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 and such orders issued by the Central and State Government from time to time and cannot seek any exemption from the compliance thereof. It was submitted that the petitioner has not placed on record any details with respect to authorization of the marketing of "Indizel" from the Central Government.
7.9 It was submitted that the samples were drawn from the outlets of MEE which failed to fulfill the requirement and presence of petroleum was found in the said sample. The dispute is, however, not related to determine the source of hydrocarbon liquid i.e. fossil or non-fossil source but it is related to marketing of petroleum hydrocarbon which requires fulfillment of statutory laws. Page 18 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023
NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined 7.10 Placing reliance on the same, it was submitted that the respondent authority has undertaken the aforesaid action of seizing the product in question, after following due procedure and after the report from FSL. Placing reliance on the aforesaid submissions, Mr. Patel, the learned AGP submitted that no interference is called for in the present proceedings and that the petitioner be relegated to avail appropriate remedy in accordance with law.
8. At this stage, it is apposite to refer to the following definitions:
8.1 The definition of "Petroleum" as per Section 2(a) of the Petroleum Act, 1934 reads thus:
"Petroleum" means any liquid hydrocarbon or mixture of hydrocarbons, and any inflammable mixture (Liquid, Viscous or Soli) containing any liquid hydrocarbon".
8.2 The definition of "Petroleum" as per Chapter 1, Rule 3(K), in the Petroleum and Natural Gas Rules, 1959, substituted by way of Ministry of Petroleum and Natural Gas, Government of India's Notification dated 24.7.2018 Page 19 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined which reads thus:
"Petroleum" means naturally occurring hydrocarbons whether in the form of natural gas or in a liquid, viscous or solid form, or a mixture thereof, but does not include coal, lignite and helium occurring in association with petroleum or coal or shale"
8.3 Definition of "Biodiesel", as per point 3.2, sub clause
(ii) of National Policy on Biofuels, 2018, Government Notification dated 4th June, 2018, Ministry Of Petroleum And Natural Gas, effective from 16-05-2018, reads thus:
"Biodiesel": Amethyl or ethyl ester of fatty acids produced from non-edible vegetable oils, acid oil, used cooking oil or animal fat and bio-oil.
8.4 Definition of "Drop- in- Fuels" as per point 3.2, sub clause (iv) of National Policy on Biofuels, 2018 -
Government Notification Dated 4th June, 2018, Ministry Of Petroleum And Natural Gas, effective from 16-05-2018 reads thus:
"Drop-in Fuels" : Any liquid fuel produced from Biomass, agri - residues, wastes such as Municipal Page 20 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined Solid Wastes (MSW), plastic wastes, industrial wastes etc. which meet the Indian standards for MS, HSD and Jet fuel, in pure or blended form, for its subsequent utilization in vehicles without any modifications in the engine systems and can utilize existing petroleum distribution system".
9. Considering the aforesaid definitions and having heard the learned advocates appearing for the respective parties, undisputed facts arising for adjudication in the present petition for this Court read thus:
9.1 The petitioner herein is the manufacturer of "Indizel". It is the case of the petitioner that "Indizel" is a bio-fuel and in turn falls under Clause-3.2(d) of the Notification dated 4.6.2018 wherein it is a drop-in-fuel. In view of thereof, the case of the petitioner does not fall within the definition of "Petroleum" and, therefore, Essential Commodities Act is not applicable to the petitioner and once the Essential Commodities Act is not applicable, the question of seizure invoking Essential Commodities Act does not arise.Page 21 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023
NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined 9.2 On the other hand, the respondent State has vehemently submitted that the analysis by FSL determined the presence of Hydrocarbons in the petitioner's product. Once the presence of Hydrocarbons is found in any product, the same would fall within the definition of "Petroleum" and in view thereof, the Essential Commodities Act would apply. 9.3 It is the case of the petitioner that hydrocarbon which is found in the petitioner's product is renewable hydrocarbon and that the same would not fall within the definition of "Petroleum" and in view thereof, the question of invoking Essential Commodities Act would not arise. This Court has considered FSL Reports placed on record by the respondent authority. Report dated 31.8.2021 at page-326, Report dated 30.11.2021 at page- 327 to 331 and Clause 4 of the Opinion at page-331 reads thus:
"4. Petroleum Hydrocarbon is found in the sample liquid which is generally found in the Petroleum Page 22 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined product or its mixture."
Report dated 29.3.2022 from page 373 to 377 and the Opinion of the Scientific Officer is at Page-377. 9.4 Considering the FSL reports, in the opinion of this Court, the competent authority has seized the product in question and formed an opinion, placing reliance on the FSL Reports therein it is indicated / recommended that product "Indizel" is a hydrocarbon. The present petition raises the aforesaid dispute wherein it is the case of the petitioner that the product in question is a renewable Hydrocarbon, however, the FSL reports indicate the presence of hydrocarbon in the sample of the product manufactured by the petitioner.
10. At this stage, it is apposite to refer to the ratio laid- down by the Hon'ble Apex Court in case of Dr. M.C. Gupta and Ors v. Dr. Arun Kumar Gupta and Ors., reported in (1979) 2 SCC 339, para-7 reads thus:
"7. Before the rival comments are probed and analysed, it would be necessary to keep in view the twilight zone of Page 23 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined Court's interference in appointment to posts requiring technical experience made consequent upon selection by Public Service Commission, aided by experts in the field, within the framework of Regulations framed by the Medical Council of India under Section 33 of the Indian Medical Council Act, 1956, and approved by the Government of India on 5th June 1971. When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching/research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under r Article 226. Even then the Court, while enforcing the rule of law, should give due weight to the opinions expressed by the experts and also show due regard to its recommendations on which the State Government acted. If the recommendations made by the body of experts keeping in view the relevant rules and regulations manifest due consideration of all the relevant factors, the Court should be very slow to interfere with such recommendations (see, The University of Mysore and Anr. v. C.D. Govinda Rao and Anr., . In a more comparable situation in State of Bihar and Anr. v. Dr. Asis Kumar Mukherjee, and Page 24 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined Ors., this Court observed as under:
Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court could not usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different construction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant factors had influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under Article 226. True, no speaking order need be made while appointing a government servant. Speaking in plaintitudinous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments because somehow it displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of a fundamental right, illegality or a skin error of law which vitiates the appointment.
11. In the opinion of this Court, no interference is called for in the impugned order dated 29.10.2021. Once there is formation of expert opinion, as referred above, this Court would not sit in appeal over the decision of the expert to substitute its own view over the said opinion till that expert opinion is tested further or set-aside by the Page 25 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023 NEUTRAL CITATION C/SCA/7880/2022 ORDER DATED: 07/10/2023 undefined competent authority. The opinion arrived at by the competent authority and the seizure undertaken by the competent authority is pursuant to the FSL reports. While not interfering with the impugned order dated 29.10.2021, deems it fit to relegate the petitioner to competent authority, and put up before the competent authority, what is stated in the present petition and it is also open for the petitioner to place reliance on the order dated 16.3.2023 passed by the Commissioner of Customs (Appeals), Mumbai.
11.1 If the petitioner were to approach the competent authority, the same be considered, taking into consideration various orders issued by the Central Government and the State Government, in accordance with law.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 26 of 26 Downloaded on : Fri Oct 13 20:33:14 IST 2023