TMI Blog2019 (6) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... Transport of Animal Rules by setting up a number of check posts (though neither the Prevention of Cruelty to Animals Act nor the Transport Rules envisage setting up of check posts) and to keep a round the clock vigil, it is evident that the object behind such instructions is to create hurdles in the export of livestock from Tuna Port. Right from August, 2018, under one pretext or the other, the State authorities have been attempting to prevent export from Tuna Port; the communications addressed by the Chief Minister to the Central Minister as well as the letter of the Director of Animal Husbandry which show that both have requested that exports may not be permitted till ACQS facilities are provided; it is only the Superintendent of Police Kutch (West) who has been instructed to set up check posts to ensure compliance of the provisions of the Prevention of Cruelty Act and the Animal Transport Rules; all of which make it manifest that the object behind the issuance of the impugned notification as well as the impugned communications is to prevent export from Tuna Port as the State Government does not have any power to directly prevent exports, export and import being a subject fall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted earlier and in pursuance to the order dated 30.11.2018 passed by this Hon'ble Court in Special Civil Application No.17433 of 2018 and order dated 6.12.2018 passed in Special Civil Application No.17424 of 2018. ( F) THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondent No.5-Home Department to make sure through the Superintendent of Police, Kuchchh (West) Gandhidham, that the transporters of the livestock are not harassed by the so-called animal right activist and officers of the Directorate of Animal Husbandry. 2. This petition arises in the backdrop of the following facts:- 2.1 The petitioners and other exporters are engaged in the business and since even prior to independence they have been exporting livestock regularly from Tuna Port, Taluka Anjar, District Kutch. The petitioners export livestock, that is, goats and sheep to Middle East Asian countries through country crafts (Mechanized Sailing Vessels) on traditional routes. Such export is carried out from the Tuna Port managed by the Deendayal Port Trust. It is the case of the petitioners that they have obtained necessary Import Export Code (IEC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various representations made by the petitioners to the Traffic Manager of Deendayal Port Trust, on 29.10.2018, the petitioners made an application being Civil Application No. 2 of 2018 in Special Civil Application No.12462 of 2018 for further orders and directions against the respondents therein including the Traffic Manager of the Deendayal Port Trust. In view of the filing of the civil application, the Traffic Manager of Deendayal Port Trust acceded to the request of the petitioners and granted permission to export the livestock as per the directions of this court in its order dated 18.9.2018. Accordingly by an order dated 27.11.2018, the civil application came to be disposed of. 2.5 After the Traffic Manager of Deendayal Port Trust granted permission to gate in the livestock, on 13.11.2018, the petitioners filed shipping bills for export of livestock before the Superintendent of Customs, Old Tuna Port. The petitioners also submitted copies of invoices and EDF Form issued by the Reserve Bank of India, purchase order, valid veterinary health and vaccination certificate, fumigation and pest control certificate, copy of the agreement with the buyers and affidavit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the same day, by a letter dated 14.12.2018, the Director of Animal Husbandry, Gujarat State, informed the Commissioner of Customs that the Government of Gujarat has decided to withdraw the services provided for health checkup of live animals with immediate effect as they are not as per the norms prescribed in the letters referred to therein. That, they are also requesting the Government of India for setting up of required quarantine facility at Tuna, Kandla Port at the earliest. He further urged the Commissioner of Customs not to allow export of live animals from Tuna, Kandla Port of Gujarat, until specified facility for Animal Quarantine and Certification is established by the Department of Animal Husbandry, Dairying and Fisheries, Government of India. 2.9 On the same day, that is, 14.12.2018, the Under Secretary, Home Department, addressed a communication to the Superintendent of Police, Kutch (West), Gandhidham, informing her to strictly comply with the provisions of the Prevention of Cruelty to Animals Act, 1960 and the Transport of Animal Rules, 1978, by setting up check posts at various places which would be manned by police officers, employees, representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the issue of quarantine of live animals is concerned, the same is not mandatory as the country of export, that is, UAE does not mandate any quarantine certification as they themselves carry out the same and it has also been contended that as far as quarantine certification is concerned, it is only mandatory for the import of live animals as per the circular dated 2.3.2007 issued by the Central Board of Excise and Customs, and that if the notifications and communications Annexures A, B and C are permitted to be operated, it would adversely affect the interest of those involved in the activity of export of live animals, that is, sheep and goats which are freely exportable under the provisions of Foreign Trade (Development and Regulation) Act, 1992 and Foreign Trade Policy, 2015-2020. 3.2 It is stated that insofar as the impugned notification (Annexure-A) is concerned, the Department always carries out a comprehensive exercise to come to a conclusion of declaring a particular area as a drought affected area and the said exercise is carried out and the Government has taken into account the conditions such as rainfall deficiency, decline in availabilities of grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms and the same falls under the authority of the Union of India. It is further averred that since the specified and required facilities prescribed in the above communication for export of live animals are not available for animal quarantine and certification services either at Tuna- Kandla Port or anywhere in Gujarat State, the Government of Gujarat decided to withdraw the services provided for health check up with immediate effect. 3.4 It is further averred that in terms of the communication dated 10.9.2018 of the Ministry of Agriculture and Farmers 'Welfare through its Department of Animal Husbandry, Dairying, Fisheries (Trade Unit) Delhi addressed to the Animal Husbandry Department, as many as eight requirements are required to be fulfilled for the purpose of export of live animals which includes the international guidelines standards OIE (Office International Des Epizooties, Paris) and most importantly at serial No.6 in the said communication, proper medical examination certification by proper designated authorities is highlighted. The Terrestrial Animal Health Code has been formally adopted by the World Assembly of OIE delegates, which is the highest decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1960 especially section 32 thereof which empowers search and seizure and, therefore, also, the said communication can also not be termed as contrary to law as the powers are vested under the said Act. Reliance has also been placed upon the decision of the Supreme Court in the case of Animal Welfare Board of India v. A Nagraja, (2014) 7 SCC 547 . 4. In response to the affidavit-in-reply, the petitioners have filed a rejoinder, wherein it has been inter alia stated that health certificates/fit to travel certificate of animals are issued under rule 2(a) and rule 65(a) of the Transport of Animals Rules, 1978 framed under the Prevention of Cruelty to Animals Act, 1960 and under section 30(c) of the Indian Veterinary Council Act, 1984. Moreover, the same are issued for transport of livestock through road or train and, therefore, are not at all relevant in the instant case of export of livestock to another country through mechanized sailing vessels but would be relevant only for transport of livestock up to Tuna Port. Furthermore it is a matter of record that there has not been even a single incident of any contravention of the aforesaid laws by the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the interval of every five years. At present, the Foreign Trade Policy 2015-2020 is in force, whereas the latest Export Policy 2018 has been notified on 31.1.2018 and the same is required to be adhered to and followed. It is the case of the petitioners that the notifications dated 19.9.1983 and 19.7.1985 under Export Trade Control in Import and Export Policy 1983-84 under the provisions of the now repealed Imports and Exports (Control) Act, 1947 being obsolete, redundant and inconsistent with the present Foreign Trade (Development and Regulation) Act, Foreign Trade Policy of 2015-2020, Export Policy 2018 are not all relevant and the provisions contained therein are of no consequences. 4.2 It is further averred that the fifth respondent Home Department has directed the Superintendent of Police, Kutch (West), Gandhidham to set up check points to enable and facilitate the animal right activists and officers of the Directorate of Animal Husbandry to inspect the vehicle transporting the livestock. According to the petitioners, the forceful and illegal acts of the so-called animal rights activists of inspecting the vehicles without any authority of law is being orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Anjar having jurisdiction over the Tuna Port and, therefore, clearance of past consignments cannot be compared with the present situation when the respondent No.7 has withdrawn the quarantine and health checkup services for want of adequate facilities. 6. An additional affidavit has been filed on behalf of the respondent No.6, wherein a copy of the guidelines framed by the Bureau of Indian Standards for Transport of Livestock called Transport of Livestock Code of Practice 2007, a copy of Transport of Animal Rules, 1978 framed by the Central Government under section 38(2)(h) of the Prevention of Cruelty to Animals Act, 1960, a copy of the Prevention of Cruelty to Animals Act, 1960, a copy of the decision of the Supreme Court in the case of Animal Welfare Board v. A. Nagaraja (supra) and relevant guidelines with reference to certification by OIE have been placed on record. It is averred that even if the importing country does not insist upon such Animal Quarantine Certificate, India being signatory to OIE, it is mandatory for the State Government and the authorities to follow the same. That, India is signatory to World Trade Organisation (WTO) and, therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rminal point whereas in case of the petitioners, the livestock are only required to pass through and, therefore, the State cannot rely upon the impugned notification to stop exports. It was argued that the Cattle Control Act notification can have no application to restrain exports as it would amount to giving extra territorial jurisdiction. 7.2 It was pointed out that by the impugned communication dated 14.12.2018 of the Directorate of Animal Husbandry, Gujarat State, the services delegated by the Central Government to the State authority have been withdrawn to create a situation whereby certificates cannot be issued and, therefore, exports cannot be made. It was submitted that the withdrawal of animal quarantine and certification services (AQCS) is deliberate, with a view to create a situation to block exports without authority. It was submitted that the delegate withdrawing the power vested in him is unknown. It was contended that the sudden withdrawal of certification facilities without affording an alternative impedes exports and is prima facie intended to block the exports. It was submitted that quarantine of livestock before export is not mandatory in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government and the State Government has no authority to regulate exports. It was, accordingly, urged that the impugned notification as well as the impugned communications having been issued in colourable exercise of powers are required to be set aside and the petition deserves to be allowed. 8. Vehemently opposing the petition, Mr. P.K. Jani, learned Additional Advocate General appearing on behalf of the respondent State authorities, submitted that the State Government under section 4(1)(b) of the Cattle Control Act has taken a conscious decision that there is shortage of fodder and drinking facility. Satisfaction is recorded that movement of cattle from area outside the drought affected area to the drought affected area should be prohibited. It was submitted that by virtue of the said notification there shall be no entry of cattle to the drought affected area, which would mean even by way of transportation. It was submitted that the petition calls in question the notification dated 14.12.2018 issued under section 4(1)(b) of the Cattle Control Act as well as the decision of the Director of Animal Husbandry withdrawing veterinary certification facilities. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are satisfied, the maintenance of cattle and availability is part of section 4(1)(b). It was submitted that if there is concentration of large number of animals in the drought affected area, it would strain fodder and drinking water as well as other things, and, therefore, entry of such cattle into drought affected area is restricted. It was submitted that the submission of the petitioner that it is a transit route cannot be accepted for the reason that fifty one talukas of the State have been declared drought affected and it is not possible to supervise, manage or administer the entry and exit points to determine transit with entries from all corners being open. 8.3 It was urged that the State Government notification dated 14.12.2018 is issued because of drought and scanty rainfall and is not a permanent prohibition but for a limited period of time till the drought situation improves. Such regulatory measures are intended for maintaining cattle in drought affected areas of fifty one talukas of different districts in the State. It was contended that such power having been exercised by the State Government in exercise of delegated legislation, the parameters to tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t whether there could be more appropriate or better alternatives. Once the parameters of article 14 are satisfied, there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review. The court concluded that in a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. 8.7 It was submitted that while judicially reviewing the validity of the notification, the same may be considered in the light of delegated legislation and not administrative action. 8.8 It was submitted that insofar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted or brought within the limits of any customs area for the purpose of being exported, contrary to any prohibition imposed by or under that Act or any other law for the time being in force. According to the learned Additional Advocate General, any other law for the time being in force would include a law of the State as well as the notification dated 14.12.2018 issued in exercise of powers under section 4(1)(b) of the Cattle Control Act. It was urged that the exercise of powers by the State Government is in accordance with law, though the same may incidentally affect the petitioners. It was submitted that the impugned notification has not been issued to prevent export of livestock but to prevent movement of cattle into drought affected areas. Therefore, even export is subject to section 113 of the Customs Act, which does consider prohibition and restriction of other laws. If other law prohibits then the goods attempted to be exported can be confiscated. 8.12 As regards the contention that the impugned communication has been issued in colourable exercise of powers, it was submitted that consequent to the notification dated 30.10.2018 for declaring drought affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, Mr. Mihir Joshi, learned counsel for the petitioners, submitted that if the exports are governed by the new policy, the substantial issue in the petition regarding requirement or otherwise of quarantine certificate would not survive. It was submitted that as per the procedure prescribed by the Government, there is no requirement of quarantine certificate and certificate as required can be given by a qualified veterinarian. No other customs or import export procedure seems to be mandatory. It was submitted that in viewof the Foreign Trade Policy 2015-2020, the earlier notifications are rendered non-operative and it is only the requirement of importing country which is required to be seen inasmuch as AQCS is not mandatory unless the importing country requires the same. It was submitted that insofar as phyto-sanitary and sanitary measures are concerned, the same are required to be complied with wherever they are required and that AQCS may not be considered as an impediment to export of livestock. 10.1 Dealing with submissions advanced by the learned Additional Advocate General, it was submitted that according to the petitioners, the notification dated 14.12.2018 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment issues foul weather area notification for the period 1st June to 31st August under Schedule IV of MS (Sailing Vessels) Rules, 1997. It was submitted that in effect and substance, exports would be blocked till 31st August, 2019. 10.5 As regards the contention that the action of the State is in consonance with the Directive Principles of State Policy, it was submitted that by virtue of article 162 of the Constitution, the executive power of the State is co-terminus with the legislative power. It was submitted that Entry 41, List I of the Seventh Schedule to the Constitution of India which relates to import and export finds place in the Union List and, hence, it is the Parliament which has exclusive power to legislate in that regard and therefore, the executive power in respect of import and export vests in the Central Government. It was contended that by resorting to the Directive Principles of State Policy, the State Government cannot encroach upon the power of the Central Government. 10.6 As regards the decisions on which reliance has been placed by the learned Additional Advocate General, it was submitted that the same would have no applicabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese extra-judicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic. The tumultuous dark clouds of vigilantism have the effect of shrouding the glorious ways of democracy and justice leading to tragic breakdown of the law and transgressing all forms of civility and humanity. Unless these incidents are controlled, the day is not far when such monstrosity in the name of self-professed morality is likely to assume the shape of a huge cataclysm. It is in direct violation of the quintessential spirit of the rule of law and of the exalted faiths of tolerance and humanity. 19. Mob vigilantism and mob violence have to be prevented by the Governments by taking strict action and by the vigil society who ought to report such incidents to the State machinery and the police instead of taking the law into their own hands. Rising intolerance and growing polarisation expressed through spate of incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. Good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease of supply of cattle. It was emphatically argued that the timing of the notification read with the press note issued by the Chief Minister (Annexure-D) and the letter dated 14.12.2018 written by the Chief Minister to the Union Minister, Ministry of Commerce and Industry, clearly establish that the impugned notification has not been issued for the purpose stated therein but for the oblique purpose of preventing exports, which makes it clear that the impugned notification has been issued in colourable exercise of powers. 12.1 On behalf of the respondents, the learned Additional Advocate General submitted that the State Government under section 4(1)(b) of the Cattle Control Act has come to a conscious decision that there is shortage of fodder and drinking facility and has recorded satisfaction that movement of cattle from outside area to the drought affect area should be curtailed. It was submitted that when the notification says that cattle are at stake, it means that maintenance of cattle is at stake due to short availability of fodder which would affect the maintenance of cattle. It was further submitted that the State Government has issued the notification date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion that it is necessary or expedient so to do for maintaining or increasing the supply, or for securing the equitable distribution and availability at fair prices, of any essential commodity or cattle, it may, by order provide- ( a) for regulating or prohibiting the production, supply and distribution of, or trade and commerce in, such essential commodity, ( b) for regulating or prohibiting movement, supply and distribution of or trade and commerce in, or for regulating the maintenance of cattle. 12.7 On a perusal of sub-section (1) of section 4 of the Cattle Control Act, it emerges that a condition precedent for the purpose of exercise of powers thereunder is that the State Government has to form an opinion that for maintaining or increasing the supply, or for equitable distribution and availability at fair prices of an essential commodity or cattle, it is necessary and expedient to do so. Upon forming such opinion, in case of essential commodities, the provisions of clause (a) can be resorted to, and in case of cattle, the provisions of clause (b) can be resorted to. 12.8 Since this case relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional Advocate General has contended that clause (b) of sub-section (1) of section 4 of the Cattle Control Act, provides for making an order inter alia for regulating the maintenance of cattle and that when the notification says that cattle are at stake it means that maintenance of cattle is at stake due to short availability of fodder which would affect the maintenance of cattle. In the opinion of this court, the said contention does not merit acceptance for the reason that subsection (1) of section 4 of the Cattle Control Act requires the State Government to first form an opinion that it is necessary and expedient so to do for maintaining or increasing the supply, or for equitable distribution and availability at fair prices of cattle, whereafter it can pass an order for regulating the maintenance of cattle. Without recording an opinion as envisaged in sub-section (1) of section 4 of the Cattle Control Act, the question of making an order regulating the maintenance of cattle does not arise. Therefore, while the notification provides for regulating the maintenance of cattle, the condition precedent for making such order has not been satisfied, which renders the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, it may, by notification, declare the area to be a free area in respect of that disease in relation to the particular species of animal. ( 6) Where a notification has been issued under subsection (5), no animal of the species or of any other susceptible species with regard to which it is a free area shall be allowed to enter the free area unless duly immunized by vaccination against that particular disease. 7. Prohibition of movement of animals from controlled area.- ( 1) Where a notification has been issued under subsection (1) of section 6 declaring any area as a controlled area in relation to any disease affecting any species of animals, no animal belonging to that species shall be moved from the place where it is kept. ( 2) The Director may, for the purpose of control, prevention or eradication of any scheduled disease, in respect of any area, by order published in the Official Gazette, prohibit the movement of all animals belonging to any species specified therein, from the place where it is kept, to any other place. ( 3) Nothing contained in sub-sections ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als even by way of transit, as is sought to be suggested on behalf of the respondents, is consonant with the general interest of the public. The impugned notification, therefore, is also not in consonance with section 8 of the Cattle Control Act. Whether the notification dated 14.12.2018 issued under section 4(1)(b) of the Cattle Control Act would be applicable to cattle in transit? 13. Examining the applicability of the impugned notification to the facts of the present case, on behalf of the petitioners, it was submitted that in any case the impugned notification would not cover passing through and cannot control inter-State movement. According to the petitioners, what the impugned notification prohibits is movement of any cattle from outside into the drought affected area, which would mean that cattle cannot be brought into the drought affected area if such area is the terminal point where the cattle are to be kept, but since the petitioners are bringing livestock in the drought affected area during the course of transit and the terminal point is not within the drought affected area, the impugned notification would not be applicable to them. Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derived from transire, bearing a meaning similar to transport ie. to go across. The dictionary meaning of the words import and export is not restricted to their derivative meaning but bear other connotations also. According to Webster s lnternational Dictionary the word import means to bring in from a foreign or external source; to introduce from without; especially to bring (wares or merchandise) into a place or country from a foreign country in the transactions of commerce; opposed to export. 7. Similarly export according to Webster s lnternational Dictionary means to carry away; to remove; to carry or send abroad especially to foreign countries as merchandise or commodities in the way of commerce; the opposite of import. The Oxford Dictionary gives a similar meaning to both these words. 8. The word transit in the Oxford Dictionary means the action or fact of passing across or through; passage or journey from one place or point to another: the massage or carriage of persons or goods from one place to another: it also means to pass across or through (something) to traverse, to cross. Even according to the ordinary meaning of the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be drought affected areas from other areas is prohibited irrespective of the fact as to whether the person intends to do business within Gujarat. The submission of the petitioner that it is a transit route cannot be accepted inasmuch as it is not possible to supervise entry and exit points to determine transit. 13.3 Insofar as the notification not being applicable to animals in transit is concerned, this court finds substance in the submission made by the learned counsel for the petitioners. As can be seen from the impugned notification, it has been issued on the ground that in the drought affected areas the cattle is at stake on account of short availability of fodder and because the cattle have become prone to infectious diseases. 13.4 In this regard, reference may be made to the provisions of Chapter VI of the Transport of Animals Rules, 1978, which have been made in exercise of powers conferred by clause (k) of sub-section (2) of section 38 of the Prevention of Cruelty to Animals Act, 1960, which apply to transport of sheep and goats. These rules are applicable to the transport of sheep and goats by rail or road involving journeys of more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be avoided. For the purpose of maintaining or increasing the supply of cattle, transport of cattle in transit would have no relevance as the same has nothing to do with the maintenance or increase in the supply of cattle within the drought affected area. The contention that the impugned notification would not apply to cattle in transit, therefore, merits acceptance. Whether the i mpugned notification dated 14.12.2018 under section 4(1)Ib) of the Gujarat Essential Commodities and Cattle (Control) Act, 2005 has been issued in colourable exercise of powers? 14. Insofar as the notification having been issued in colourable exercise of powers is concerned, on behalf of the petitioners reference was made to the history of the case to point out that continuous efforts have been made by the State to prevent export of animals from Tuna Port and that under the guise of the notification, the movement of livestock for the purpose of export is curtailed. It was submitted that import and export across customs frontiers and trade and commerce with foreign countries are matters which fall under entry 41 of List I of the Seventh Schedule to the Constitution of India, namely, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Trust did not permit to gate in the livestock and, therefore, Let Export Orders could not be issued and livestock could not be exported. It was only after the petitioners filed a civil application in Special Civil Application No. 12462 of 2018, that the Traffic Manager acceded to the request of the petitioners. Thereafter when the petitioners filed bills of entry, the Superintendent of Customs kept them on hold in view of representations received by his office. The petitioners were, therefore, constrained to approach this court by way of writ petition being Special Civil Application No. 17433 of 2018 which came to be decided by a judgment and order dated 30th November, 2018, whereby the court set aside the communication of the Superintendent of Customs keeping the shipping bills on hold and directed him to process the shipping bill of the petitioner in accordance with law without any further delay. Pursuant to the said judgment the Superintendent of Customs assessed the shipping bills and permitted export of livestock. However, the trial and tribulations of the petitioners and similarly situated persons did not end there. Soon thereafter, on 14.12.2018 the Chief Minister address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Minister, it has been requested that the Central Government bring an immediate resolution in this regard. Instructions have also been issued to the Customs Superintendent at Tuna Port that till the Government of India gives appropriate guidance, he may not permit such exports. 14.3 On the same day, the Chief Minister, Gujarat State also addressed a letter dated 14.12.2018 to the Union Minister, Ministry of Commerce and Industry inter alia informing him that there is no specified and required facility for Animal Quarantine Certification Services (AQCS) at Tuna, Kandla Port or anywhere in Gujarat State. The certification services were rendered by local government veterinary officer only for the health point of view which is not sufficient as per the Government of India rules and regulations in this regard. Earlier, Director of Animal Husbandry, Gujarat State has made several written requests for establishment of a new quarantine station in Gujarat State but no response has been received from the Government of India till date. In pursuance to the advisory issued by Department of Animal Husbandry, Dairying and Fisheries, Government of India v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed in above letters. We are also requesting Government of India for setting up of required quarantine facility at Tuna, Kandla Port at the earliest. I urge upon, therefore, not to allow export of the live animals from Tuna, Kandla Port of Gujarat until specified facility for Animal Quarantine and Certification is established by Department of Animal Husbandry, Dairying and Fisheries, Government of India. Noncompliance of the guidelines of the Government of India in this regard can amount to disrepute to the image of the country and can adversely impact the interest of the country as a whole. I will be grateful for your prompt action and reply. 14.4 Thus, the Directorate of Animal Husbandry, which had been delegated the task of rendering certification services by the Ministry of Commerce by its notification dated 19th July, 1985 has refused to further render such services. The matter does not end there, inasmuch as, the Director has further requested the Customs Commissioner not to allow export of live animals from Tuna Kandla Port of Gujarat until specified facility for Animal Quarantine and Certification is established by Department of Ani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertinent to note that upon a query being raised by this court as to whether such letters had been addressed to the Superintendents of Police of all the districts, the learned Additional Advocate General had, after taking instructions, informed the court that such letter was addressed only to the Superintendent of Police, Kutch (West). 14.6 Thus from the sequence of events noted hereinabove, it is evident that under one pretext or the other the State authorities have been making attempts to prevent export of livestock from Tuna Port, all of which were foiled as the petitioners approached this court and pursuant to the orders passed by this court from time to time, each hurdle came to be removed. Lastly by a judgment and order dated 30th November, 2018, the letter dated 16.11.2018 of the Superintendent of Customs, Old Tuna Port whereby he had kept on hold the shipping bills of the petitioner on the ground that he had received various representations, came to be quashed and set aside. Thereupon, the petitioners were able to make some exports. However, such relief was short lived, as immediately thereafter, the State authorities came out with other ways to prevent exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Animal Husbandry which show that both have requested that exports may not be permitted till ACQS facilities are provided; it is only the Superintendent of Police Kutch (West) who has been instructed to set up check posts to ensure compliance of the provisions of the Prevention of Cruelty Act and the Animal Transport Rules; all of which make it manifest that the object behind the issuance of the impugned notification as well as the impugned communications is to prevent export from Tuna Port as the State Government does not have any power to directly prevent exports, export and import being a subject falling in the Union List, this court is of the considered view that the impugned notification has been issued in colourable exercise of powers to do indirectly what cannot be done directly. 15. For the reasons recorded hereinabove, this court is of the opinion that the impugned notification does not meet with the requirements of section 4(1)(b) of the Cattle Control Act as it has not been issued on the ground that it is expedient or necessary to do so for maintaining the supply or increasing the supply of cattle of for securing equitable distribution and availability at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reign buyers have specifically contracted for export without quarantine formalities. Exporters shall produce contract (in original) to this effect to the licensing authority. Paragraph 8 thereof provides that export of live goats shall continue without any quarantine and vaccination formalities and would be subjected to general veterinary inspection and certification as hitherto. 16.2 Insofar as the conventions, guidelines etc. on which reliance has been placed on behalf of the State Government are concerned, the same are not mandatory in nature and are more particularly concerned with ingress of animals and not export of animals. 16.3 Moreover, from the communication dated 31.12.2018 of the Assistant Commissioner of Customs, Old Tuna Port, it appears that the above public notice and other notices were issued in respect of the export policy prevailing at the relevant time but the current export policy does not stipulate such condition. The said officer has also issued a communication dated 5.2.2009 to the Regional Officer inter alia requesting him to inform him whether the quarantine of sheep and goats prior to export has been made mandatory under an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EXPORT PROCEDURES This programme envisages provision of an Internationally acceptable certification service for the export of livestock livestock product to other countries from India confirming to the health requirements of the importing country and the health regulations prescribed in the International Zoo Sanitary Code. 1. Documents required cum check list with Application Form for EXPORT OF LIVESTOCK 1. Copy of valid Import/Export Licence or Permit as the case may be. If no permit/licence is required then undertaking from the exporter/owner in this regard. 2. Official health requirement/format of the importing country. If no prescribed health requirement/format then undertaking from the exporter/owner in this regard. 3. Fulfilled health requirement of importing country including testing, treatment, vaccination etc. (if applicable). 4. Self certified copies of present health documents including vaccination record of the animal. 5. Undertaking and declarations as per requirement. 6. Documents of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The impugned letter dated 14.12.2018 deserved to be set aside to that extent. Validity of the communication dated 14.12.2018 of the Under Secretary, Home Department addressed to the Superintendent of Police, Kutch (West). 18. Insofar as the communication dated 14.12.2018 issued by the Under Secretary, Home Department to the Superintendent of Police, Kutch (West) is concerned, it is an admitted position that such communication has been issued only in respect of Kutch district and not in any other district. As already discussed hereinabove, transport of animals takes place throughout the State of Gujarat and hence, if the provisions of the Prevention of Cruelty to Animals Act and the Transport of Animals Act are required to be strictly complied with it has to be all over the State. The fact that such instructions have been issued only to the Superintendent of Police Kutch (West), that too, on the same day when the Chief Minister addressed the press informing that exports from Tuna Port were being prohibited, indicates that the same has not been issued bona fide, but under the guise of compliance of the provisions of the Prevention of Cruelty to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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