Sriven Marketing vs Union of India

Goda Raghuram, J.—The appellant is the writ petitioner and the appeal is directed against the order dated 22-6-2011 of the learned Single Judge declining grant of interim relief.

The challenge in the writ petition is to the notification of the respondent published in the Gazette dated 18-5-2011; to the extent that "Actual User Condition" is declared not mandatory under the Tariff Rate Quota (TRQ) scheme.

The appellant claims to be a large scale cultivator of Maize (corn) in large quantity and to have taken up extensive agricultural operations for the purpose and to representing several small and medium farmers involved in the cultivation of Maize, as well. The appellant complains that as a consequence of the notification impugned in the writ petition, the appellant and other farmers, small or medium, would be prejudicially affected as Maize could now be imported without restricting such import for the purposes of Actual Use of the importer; and this would bring down the price of the Maize in Country and thereby render the substantive occupation of the appellant and other farmers unviable economically. The lending cost of imported Maize is asserted to be much lower than the cost of cultivating Maize locally.

The learned Single Judge declined to interfere by suspending the operation of the impugned notification on the ground that the notification is the product of a policy decision by the Government of India and the respondent and no interdiction of such policy seems is prima facie, justifiable.

Shri D.V. Seetharama Murthy, learned Senior Counsel for the appellant would strenuously contend that the impugned has disastrous and pejorative consequences for cultivators and producers of Maize within the country; that the notification is unauthorized, since it is purported to have been issued in exercise of powers conferred under Para 2.4 of the Foreign Trade Policy, 2009-14 and Para 1.1 of the Handbook of Procedures (Vol. 1), 2009-14 and that neither of these provisions enable withdrawal of the condition limiting the import of Maize (covered by the conditions of Tariff Rate Quota (TRQ)) for the purpose of Actual Users. The learned Senior Counsel has drawn our attention to para 1.1 of the Handbook of Procedures, which is marginally titled "Foreword". It however requires to be noticed that Para 2.8 of the Handbook of Procedures (Vol.1) enumerates Terms and Conditions of Licence/Certificate/Permission/Authorisation that may be incorporated in a licence granted under the framework of the Foreign Trade Policy and qua, the Handbook of Procedures. Para 2.8 states that "every authorization shall be valid for prescribed period of validity and shall contain such terms and conditions as may be specified by RA (Regional Authority) which may include :

(a) Quantity, description and value of goods;

(b) Actual User Condition;

(c) Export obligation;

(d) Value addition to be achieved; and

(c) Minimum export/import price.

Sl. No. (b) enumerates : "Actual User Condition". On a true and fair construction of the provisions of Para 2.8, it is clear that "Actual User Condition" may be specified in the authorization by the Regional Authority while granting licence, Expression "may" connotes grant of a facilitative or enabling power and includes the power to eschew the Actual User Condition, if it so persuades the decision making authority. The Regional Authority is thus conferred with wide swathe of discretion in the matter of imposing one, more, all or none or even other conditions, while granting a licence. Prima facie, the incorporation of "Actual User Condition" while granting licence under the TRQ is a policy choice and a matter normatively within the discretion of the competent authority. In the scheme of separation of powers we derive under the Indian Constitutional Scheme; matters of policy are essentially within the domain of the legislature or the authorized Executive authority as the case may be; the Government of India and the respondent. In the absence of a demonstrable and clear transgression of law or of other Constitutional limitations, exercise of power within the spectrum of policy inhering in the legislature or the Executive, as the case may be, the judicial branch would not interdict.

For the aforesaid reasons, we are in respectful agreement with the prima facie view of the learned Single Judge, on the basis of which interim relief has been declined. We accordingly see no reason to interfere with the order passed by the learned Single Judge. The appeal is accordingly dismissed.

Sri D.V. Seetharama Murthy, learned Senior Counsel urged that as the appellant submitted a representation dated 26-5-2011 to the 4th respondent, the 4th respondent be directed to consider and dispose of the representation before issuing fresh trade licences on the basis of the impugned notification dated 18-5-2011 whereby and whereunder "Actual User Condition" is eschewed from the raft of conditions incorporated in a licence granted under TRQ. This court is not in doubt that the 4th respondent, a public authority, will consider the representation of the petitioner dated 26-5-2011, if made as asserted, expeditiously. We are however not inclined to interdict exercise of discretion and power of the 4th respondent in granting licences or renewing licences, till the representation of the appellant is disposed of as that would unduly impede the discretion and operational efficacy of the 4th respondent in a manner not authorized by law, as at present advised.