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The petitioners in both these writ petitions are aggrieved by the moratorium issued by the 2 nd respondent, Marine Products Export Development Authority (MPEDA), for registration of new Fish Meal and Fish Oil units with effect from 01.01.2020. The moratorium also applies to the endorsement of enhancement of production capacity for existing Fish Meal and Fish Oil units registered with MPEDA with effect from 01.01.2020. The impugned order authorises the Chairman, MPEDA, with powers to lift the moratorium as and when required, in the interest of export trade, subject to the recommendation of the committee constituted by the Chairman for the purpose. The reason stated in the impugned order is that unabated juvenile fishing, especially for Fish Meal and Fish Oil production has become a major concern, resulting in stagnating catches of commercially important species and risk the depletion of the food fish resources from the marine capture sector causing danger to the livelihood of traditional/artisanal fishermen W.P.(C). Nos.18633 & 18634 of 2022 2025:KER:117 and the availability of human protein source from sea catch.

30. Power to delegate.--The Central Government may, by order notified in the Official Gazette, direct that any power exercisable by it under this Act (not being the power to make rules under Section 33) may also be exercised, in such cases and subject to such conditions, if any, as may be specified in the order, by such officer or authority as may be specified therein."

9. The first question that is to be considered is whether the 2nd respondent has any authority to issue the Ext.P13 office order and Ext.P14 circular, whereby a moratorium is imposed on the registration of new fish meal and fish oil units. The 2nd respondent is a creature of the 1972 Act. The functions of the 2nd respondent W.P.(C). Nos.18633 & 18634 of 2022 2025:KER:117 are statutorily prescribed in Section 9 of the 1972 Act. A reading of Section 9 would show that the authority is to take measures for developing and regulating offshore and deep-sea fishing and undertaking measures for the conservation and management of the offshore and deep-sea fisheries. Another function is to register processing plants for marine products, which would include the registration of fish meal and fish oil units. The authority may fix standards and specifications for the product, inspect the processing plants or storage premises, regulate the export of marine products, register exporters of marine products, etc. The functions do not in any manner speak about the power to refuse to register or to refuse to accept applications for registration. Regulation cannot mean a total prohibition. Section 11 of the 1972 Act provides for the registration of a processing plant. A reading of the provision would show that registration is a requirement for running a processing plant. When there is a statutory requirement to register, one fails to see how a circular can be issued prohibiting the registration itself. Section 20 of the 1972 Act specifically says that the power to prohibit or control imports and exports of marine products is vested with the Central Government. The Act, which created the 2nd respondent itself, thus speaks of only a power W.P.(C). Nos.18633 & 18634 of 2022 2025:KER:117 available in the Central Government for the issuance of such prohibitions. Section 30 of the 1972 Act says that the Central Government may delegate any of the powers that are exercisable by it under the Act. However, nothing is produced before this Court to show that the power to prohibit the export of a marine product has been delegated to the 2nd respondent. Rule 34 of the MPEDA Rules deals with the grant of a registration certificate. The Rule specifies the procedure that is to be followed on receipt of an application for registration preferred under Rule 33 of the Rules. A reading of Rules 33 and 34 also does not in any manner suggest the availability of a power to refuse applications for registration on the grounds of a moratorium.

10. Contrasted with the provisions of the 1992 Act, powers to make provisions relating to imports and exports are vested in the Central Government. Section 3 of the 1992 Act says that the Central Government may, by order published in the official Gazette, make provision for the development and regulation of foreign trade by facilitating imports and increasing exports. Section 3(2) says that provision can also be made for prohibiting, restricting, or otherwise regulating the import and export of goods or services or technology. Section 5 of the 1992 Act says that the Central W.P.(C). Nos.18633 & 18634 of 2022 2025:KER:117 Government may, from time to time, formulate and announce by notification in the official Gazette the foreign trade policy and may also, in a similar manner, amend the policy. The counsel for the petitioners submits that there is no Gazette notification issued by the 1st respondent restricting/prohibiting the export of fish meal/fish oil. This contention is not disputed by the respondents. It is also an admitted fact that a registration-cum-membership certificate is a requirement under the foreign trade policy. As already stated, paragraphs 2.93 to 2.95 of the handbook of procedures deal with the manner in which the registration is to be applied for and granted. Admittedly, the petitioners have been granted an EPCG license for the import of machinery for the manufacture of fish meal, which again is a part of the EXIM policy regarding which the 2nd respondent has no say. It is in the light of the above provisions, that the validity of Ext.P13 and P14 must be considered.

11. It is an admitted fact that there are registered units involved in the manufacture of fish meal/fish oil. What is sought to be prohibited is the registration of fresh units. Admittedly, the export of such products is not prohibited. The effect of Exts.P13 and P14 is, hence, to stop new players from entering the market W.P.(C). Nos.18633 & 18634 of 2022 2025:KER:117 and to allow the existing manufacturers to monopolize the activity. When the 2nd respondent has no power to impose a ban on the exports of products like fish meal and fish oil, they cannot do the same indirectly by refusing registration to new units and, in effect, stopping competition in the field. Exts.P13 and P14 do not specify the source of the power for issuing such a moratorium. Even if it is to be conceded that they have power, such power cannot be extended over several years even without any re-look into the situation that had prompted the issuance of such a moratorium. It is settled law that legislation, as well as subordinate legislation, can be challenged on the ground of manifest arbitrariness, which includes within its fold, unfairness in action. A circular that has been issued without any reference to any statutory provision cannot be treated as even delegated legislation. It can, at best, be an administrative order.