M/S.V.S.Timbers PVT.LTD. vs. The Union Of INDIA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUE AY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941 WP(C).No.13763 of 2019 PETITIONER/S: M/S.V.S.TIMBERS PVT.LTD., NO.VI/1, V.S.BUILDING, PERUMATTOM, PUTHUPPADY P.O., MUVATTUPUZHA - 686 673, REPRESENTED BY V.S.SHEHIN, MANAGER. BY ADV. SRI.P.A.AUGUSTIAN RESPONDENT/S: 1 THE UNION OF INDIA, REPRESENTED BY UNDER SECRETARY, DEPARTMENT OF AGRICULTURE CO-OPERATION AND FARMERS WELFARE, MINISTRY OF AGRICULTURE AND FARMERS WELFARE, ROOM NO.238, KRISHI BHAVAN, NEW DELHI - 110 001. 2 THE PLANT PROTECTION OFFICER, THE PLANT QUARANTINE STATION (RPQS), WILLINGTON ISLAND, COCHIN - 682 003. BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA OTHER PRESENT: CGC SRI. SUVIN R. MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No. 13763/2019 -2- J U D G M E N T Heard Sri P.A. Augustian learned counsel for petitioner and Sri Suvin R. Menon, the learned Central Government Counsel for the respondents.

W.P.(C) No. 13763/2019 -3- Act') and the Plant Quarantine (Regulation of Import into India) Order 2003 (for short 'Order-2003').

W.P.(C) No. 13763/2019 -4- Subject: Relaxation of fumigation regulations for import of agricultural commodities - regarding Reference is invited to Department of Agriculture, Cooperation and Farmers Welfare letter No.8-65/2012-PP II dated 30th October, 2014 and Office Memorandum of even number dated 30.3.2017, 28.6.2017, 29.12.2017 and 25.6.2018 regarding relaxation in fumigation regulations for import of agricultural commodities into India. The competent authority in the Department of Agriculture, Cooperation and Farmers Welfare has decided to extend the relaxation of fumigation regulations for import of agricultural commodities for which fumigation treatment with Methyl Bromide is stipulated in the Plant Quarantine (Regulation of Import into India) Order, 2003 (PQ Order, 2003) till 30th June, 2019 on the following conditions - (i) The date of Bill of Lading in the country of export may be 30th June, 2019 or before. (ii) If fumigation treatment with Methyl Bromide is stipulated for that commodity in the PQ Order, 2003, it will be allowed without offshore Methyl Bromide fumigation from those countries, which certify discontinuance of this chemical for Phytosanitary measure; (iii) Penal fee in respect of those consignments will be charged as prescribed in the PQ Order, 2003; (iv) The other conditions mentioned in the OM No.8- 65/2012-PP II dated 30th October, 2014 will remain unchanged. (v) Non compliance will be dealt as per the provisions of PQ Order, 2003” (emphasis applied)

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W.P.(C) No. 13763/2019 -6- fumigated by Methyl Bromide a chemical agent by the exporter. Ext.P5 is Phytosanitary Certificate issued by Co-operative Republic of Guyana. As per Ext.P5 the subject timber logs are fumigated by Phostoxin chemical. In other words, the subject goods is not fumigated by chemical agent Methyl Bromide. The respondents have not accepted Ext.P4 Bill of Entry or cleared the timber logs. The petitioner therefore was constrained to represent to the second respondent through Exts.P8 and P9 for consideration and clearance of goods imported and reported though Exts.P4 Bill of Entry. The inaction is continuing and the goods is not cleared. Hence, the writ petition is filed, for the respondents firstly did not move in the matter pursuant to Exts.P8 and P9. According to petitioner, the petitioner is not under obligation to pay penal fee for customs clearance demanded by the respondents for clearing the goods.

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W.P.(C) No. 13763/2019 -8- clearance without paying penal charges as stipulated in Ext.P6. The petitioner contends that condition no.iii in Ext.P6 stipulating penal charges as per Order-2003 is completely arbitrary, illegal, unjust and unsustainable. The view held by second respondent by referring to condition no.iii of Ext.P6, if is accepted the petitioner pays penal fees of Rs.3,54,700/- instead of Rs.88,300/- against B/E No.3131024 dated 07.05.2019, Rs.91,500/- against Rs.22,500/- under B/E No.3130308 dated 07.05.2019 and Rs.2,16,300/- instead of Rs.53,700/- under B/E No.3130502 dated 07.05.2019. Imposing huge penalty is illegal and unsustainable. According to petitioner, Ext.P6 is an executive order, does not have statutory backing, further ultra vires the Constitution and liable to be set aside. The petitioner refers to Ext.P10 and complains discrimination in import of pulses and import of timber. It contends that imposing penal fee while importing timber is violative of Article 14 of

W.P.(C) No. 13763/2019 -9- Constitution of India. The petitioner therefore prays for setting aside condition no.iii of Ext.P6 and consequently prays for a direction to permit entry of imported goods in Ext.P4 by accepting nominal penal fee.

W.P.(C) No. 13763/2019 -10- who knowingly contravenes the provisions of section 4B shall be punishable with fine which may extend to two hundred and fifty rupees and, upon any subsequent conviction, with fine which may extend to two thousand rupees.”

W.P.(C) No. 13763/2019 -11- writ of mandamus does not lie, assuming without admitting that both the circumstances on which the petitioner is relying on are substantially true and correct, for this Court in exercise of its juri iction under Article 226 of Constitution of India is concerned with protection of the right, either constitutional or statutory, and the resolution of a dispute arising under the statutory scheme of Indian laws, but not protect a right or procedure followed elsewhere. The writ prayers are unavailable from any stand point and writ liable to be dismissed. To demonstrate the scheme in Order-2003 he refers to the following clauses therein: “2(vii) “grain” means seeds intended for processing or consumption and not for sowing or propagation. … 2(xix) “phytosanitary certificate” means a certificate issued in the model format prescribed under the International Plant Protection Convention of the Food & Agricultural Organization and issued by an authorized officer at the

W.P.(C) No. 13763/2019 -12- country of origin of consignment or re-export; … (xxx) (xxviii) “seeds” means seeds intended for sowing or propagating and not for consumption or processing; … (xxxii) “timber” means a form of dead wood, log and lumber cut from plants, with or without bark or sawn and sized, which is used for manufacturing veneer, plywood, particle or chip board and making building material, furniture, packages, pallets, sports goods and handicrafts; …. …. 3.Permits for Import of plants, plant products etc. (4) Import of consignments of seeds of coarse cereals, pulses, oil seeds and fodder seeds and seeds/stock material of fruit plant species for propagation shall only be permitted based on the recommendations of EXIM Committee of Department of Agriculture, Cooperation & Farmers' Welfare (DAC&FW), except the trial material of the same is specified in Schedule-XII of Plant Quarantine Order. ….... …....

W.P.(C) No. 13763/2019 -13- shall be brought into India unless such consignment fulfils the following conditions, namely: (S.O.2286(E), dated 04.06.2018)- (i) No consignment of timber and wood/bamboo species other than those listed under Schedule-VI & VII shall be imported into India unless the provisoins of Clause 3(7) are fulfilled. (ii) The timber/wood with or without bark and bamboo shall be fumigated prior to export with Methyl bromide at 48g/m3 for 24 hrs at 21O C or above or equivalent thereof or any other treatment duly approved by the Plant Protection Adviser and the treatment shall be endorsed on the Phytosanitary Certificate issued thereof at the country of export or re-export. (iii) The timber or sawn or sized wood with or without bark prior to export shall be either fumigated as per Clause 9(2)(ii) or kiln dried at 560C for 30 minutes (core temperature of wood) or heat treated at 560C for 30 minutes (core temperature of wood) and the treatment shall be endorsed on the phytosanitary Certificate issued thereof at the country of export or re-export. (iv) Wood/Bamboo based products such as manufactured / finished/ handicrafts/ furniture/ joinery and articles

W.P.(C) No. 13763/2019 -14- from carpentry (windows/ doors/ shutters/ photo frames/ curtain rods/ boxes/ thatch etc)/ conveyances (row boats, vehicle decks, trailers etc)/ garden items/ house hold articles/ musical instruments/ sporting equipments/ tools/ toys/ flower vase/ wood fiber/ woody dry branches without bark/ cones/ baskets etc/ shall be fumigated/ treated prior to manufacturing/ crafting/ finishing process etc, with methyl bromide at 48g/m3 for 24 hrs at 210C or above at NAP of kiln dried or heat treated at 560C for 30 minutes (core temperature of wood) or Gamma irradiation at 25kGray or equivalent thereof or any other treatment duly approved by the Plant Protection Adviser and the treatment shall be endorsed on the Phytosanitary Certificate issued thereof at the country of export or re-export; (2) xxxx (3) xxxx (4) The provision of this Order shall not apply to consignments of processed wood material such as plywood, particleboard, oriental strand board and veneer that have been manufactured by using glue, heat and pressure or combination thereof. …...

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W.P.(C) No. 13763/2019 -16- Acts or Order related to imports.” (emphasis applied) The counsel argues that Order-2003 has separate and distinct definition for various products; the procedure, requirement etc for importing such goods is specified by Order-2003. What is applicable to pulses through judicial interpretation or review ought not to be extended to timber logs as well.

W.P.(C) No. 13763/2019 -17- the goods involved is an import from one country to another country. In other words, Section 5A deals with only export of goods from a State to another State in contravention of a notification issued under Section 4A of transportation of article from one State to another. He finally contends that Ext.P7 interim order is not binding on this Court; that the interim order does not refer to a provision of law or the circumstances under which the direction to order entry of goods is permitted by the Madras High Court. Learned counsel for respondents finally states that keeping in view the statement of objects and reasons of the Act and notifications issued by the Central Government on expert advice and this Court ought not to consider substituting essential requirement for clearance of timber under judicial review and grant any relief to petitioner. Therefore, he prays for dismissing the writ petition.

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W.P.(C) No. 13763/2019 -19- scientific or other technical reasons the Union of India has accepted a changed chemical agent for fumigation as an acceptable norm and in line with such changed policy amended the applicable clauses in Order-2003. Clause 9, which is already excerpted, stipulates the requirement of import of wood and timber into the country fumigated by Methyl Bromide treatment and not any other chemical agent. Therefore, the petitioner, if imports wood or timber logs contrary to applicable Order-2003 the requirement in force as on date certainly results in breach of requirement. Alternatively the petitioner at least will have to follow the procedure stipulated under Ext.P6 which is again issued under Clause 14 of Order-2003 if the petitioner wants customs clearance. In the case on hand neither of these situations exists. The petitioner, on its own showing, imported timber contrary to an applicable requirement but does not want to pay penalty as well. This

W.P.(C) No. 13763/2019 -20- Court if accepts the prayer against challenge to condition no.iii in Ext.P6 and sets aside the penal fee prescribed in Ext.P6 the same would be in violation of the very power of relaxation provided under clause 14 of Order-2003. In other words, the relaxation power could be exercised subject to the penalty stipulated in clause 14. This Court is of the view that Ext.P6 refers to a condition which deals with the maximum amount of penalty levied for granting relaxation from compliance with a condition required by Order-2003. This stand-alone challenge to condition no.iii in Ext.P6 does not merit examination as long as clause 14 of Order-2003 is active on Statute Book. Except the above contention no other ground is canvassed challenging condition no.iii of Ext.P6. Further as rightly pointed out by the counsel for the respondents the first condition or requirement an importer is required to satisfy is that the importer of seeds, wood, timber, agricultural products etc complies with all the

W.P.(C) No. 13763/2019 -21- requirement of Order-2003 and in the event goods is imported contrary to a requirement of Order-2003, the importer, as in the case on hand, wants to avail the relaxation provided for under Order-2003 must conform to the penal consequences provided under Order-2003. The argument of petitioner if is accepted then the import of goods is not compliant with the per- requisites of import and still allowed to enter the country without paying penal fees as well. In other words, this Court is of the view that the pleas of petitioner amount to a situation where the petitioner is not complying with the requirements and still is allowed to get the goods cleared without paying the penal fee, which is otherwise provided for under a notification issued by the respondents. The petitioner cannot have the issue resolved completely on its terms and requirements. The Act and Order-2003 have the object of putting in place regulatory mechanism for prohibition of import of objectionable goods and

W.P.(C) No. 13763/2019 -22- implementation of precautionary and penal principles. This Court is not persuaded by the grounds of challenge to condition no.iii of Ext.P3 and may add that these are policy decisions made by the Executive with the aid and assistance of experts from all fields. Therefore the challenge to condition no.iii must fail and accordingly it is answered.

W.P.(C) No. 13763/2019 -23- railway or inland steam vessel station who knowingly contravenes the provisions of Section 4B shall be punishable with fine which may extend to two hundred and fifty rupees and upon any subsequent conviction, with fine which may extend to two thousand rupees. The other contingency in Section 5A is a person who knowingly transports any article or insect from one State to another in contravention of a notification issued under Section 4A. Therefore Section 5A is not applicable to the goods imported from another country. The simple language of Section 5A deals with State-to-State transfer or movement of articles etc in the country but not to import of goods from outside the country. Therefore, this contention is also untenable and accordingly rejected.

W.P.(C) No. 13763/2019 -24- with Methyl Bromide but timber is subjected to five times penalty. Firstly, these are not matters for consideration of this Court and there could certainly be some object by reference to which the classification of pulses, seeds, timber etc under different clauses in Order-2003 is made. Likewise Ext.P10 is a singular notification dealing with pulses and a notification issued while considering pulses cannot be relied upon by this Court for the purpose of granting exemption to fumigation of Methyl Bromide and permit the petitioner to import the timber logs and relax requirement without penalty. The writ prayer is for mandamus. The petitioner failed to establish either a statutory right and/or constitutional right for enforcement, likewise breach of a right is established. The interim order granted by the Madras High Court, as rightly contended by the counsel for the respondents, is not binding on this Court and by referring to interim order the petitioner ought not to be allowed to pass customs check in breach of applicable Order- 2003. W.P.(C) No. 13763/2019 -25-

W.P.(C) No. 13763/2019 -26- referring to the Rules made in 2003 either further prohibiting or imposing penalty is unsustainable in law.

W.P.(C) No. 13763/2019 -27- power under which the said order is issued by the Central Government. The petitioner by referring to the Treaty complains that levy and demand of penal charges from the petitioner is unsustainable. This aspect has already been considered under the head whether the right as claimed by the petitioner is enforceable through the instant writ prayer or that the petitioner is successful in establishing before this Court that a constitutional right or a statutory right is breached by the respondents while restricting the movement of goods pursuant to Ext.P4 .

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W.P.(C) No. 13763/2019 -29- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE EXPORTER IMPORTER CODE. EXHIBIT P2OF THE FORM GST-REG-06 REGISTRATION CERTIFICATE. EXHIBIT P3 TRUE COPIES OF THE B/L NOS.COSU8021101370, COSU802110060 BOTH DATED 15/02/19 AND COSU8021100120 DATED 21/02/19. EXHIBIT P4 TRUE COPIES OF THE B/E NOS. 3130520, 310308 AND 3131024 ALL DATED 07/05/19. EXHIBIT P5 TRUE COPIES OF THE PHYTOSANITARY CERTIFICATES. EXHIBIT P6OF THE OFFICE MEMORANDUM DATED 27/12/18. EXHIBIT P7OF THE ORDER DATED 26/04/19 IN WPC (MD) NO.10401 OF 2019. EXHIBIT P8OF THE LETTER DATED 30/05/19. EXHIBIT P9OF THE LETTER DATED 09/05/19. EXHIBIT P10OF THE OFFICE MEMORANDUM F.NO.99- 1/2007-PQD (PT.II) DATED 05/04/17.