TMI Blog2008 (2) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petitions were entertained, such restriction was extended to all ports in Kerala. That notification is under challenge in WP(C).218/2008. 2.Thereafter, WP(C).35648/2007 was filed espousing the cause of the agriculturists, particularly coconut farmers, seeking the issuance of a writ of mandamus directing the Central Government and the Director General of Foreign Trade, hereinafter referred to as the DGFT , to give effect to the recommendations of the Coconut Development Board, hereinafter referred to as the CDB , for short, and impose ban on import of palm oil through Chennai, Mangalore, Tuticorin and Beypore ports, in addition to Kochi Port. 3.The State of Kerala, the Director of Agriculture, the CDB, different organizations of the farmers, All Kerala Bread Manufacturing Association and Kerala Karshaka Union (Joseph) were impleaded as additional respondents in WP(C).31397/2007. 4.The challenge to the impugned notifications is on the plea that there is no power to issue such notifications prohibiting the import of goods through any particular port and the imposition of the ban on import, initially in Kochi and later on, through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to trade or carry on business in that commodity, which right includes the right to import raw materials and the commodity itself through a port of their choice. It is argued that such right is ancillary to the enjoyment of the fundamental right to trade or to carry on business in that commodity. It is further argued that this is all the more so in a situation where the import of the commodity in question is permitted into the country under the Foreign Trade Policy. The impugned notifications are, thus, criticized as those resulting in arbitrarily picking out the commodity in which the business is carried on, for discriminatory treatment in the matter of import by the imposition of the impugned ban. Articles 301 to 304 of the Constitution are also violated, it is contended. 6.Though when the first among the captioned matters was filed there was a plea that the materials do not disclose any ground for picking Kochi Port alone to impose the ban, that question does not continue to be relevant after the second notification was issued imposing the restriction through all ports in the State of Kerala. 7.In support of the submissions on behalf of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CDB and the State Government; the competence to frame a policy being with the State, the executive authority of the State has to frame it and unless it is absolutely capricious and arbitrary, it could not be interfered with in judicial review. It was also pointed out that the mere business interests of a person or persons cannot be the criteria for upholding the plea as to classification, including unreasonable classification, particularly when there is no plea of malafides pleaded against it and that the courts cannot issue directions that would result in amendment of the existing Government policy and there is always a presumption in favour of administration that it exercises powers in good faith and for public benefit. 9.The learned Additional Advocate General Sri.Venganoor K. Chandrasekharan Nair relying on Liberty Oil Mills v. Union of India AIR 1984 SC 1271, argued that foreign trade policy is one where expertise in public and political, national and international economy is necessary before one may emerge in the making or in the criticism of an import policy and that courts may not possess the expertise and therefore, may be incompetent to pass judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate Sri.John Varghese, supporting the notifications, referred to Andhra Industrial Works v. Chief Controller of Imports (1974) 2 SCC 348, Pankaj Jain Agencies v. Union of India 1994 (72) E.L.T.805(S.C.) and S.B.International Ltd. v. Asstt. Director General of F.T. 1996(82) E.L.T. 164( S.C.), to argue that an applicant has no absolute right, much less a fundamental right, to the grant of an import licence on the basis of an import trade policy. Reference was made to D.Navinchandra and Co. v. Union of India (1987) 3 SCC 66 rendered relying on Daruka and Co. v. Union of India (1973) 2 SCC 617, to state that policies of imports or exports are fashioned with reference to internal and international trade, as also on monetary policy and other relevant facts and if the Government decides an economic policy regarding import or export, the court would proceed on the assumption that the decision was in the interest of the general public unless the contrary is shown. Subhash Photographics v. Union of India 1993 Supp (3) SCC 323 was cited to argue that the domestic industry is also to be protected and encouraged in certain situations and such a consideration can also weigh with the formulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ground referable to any factual disputes in the matter. Accordingly, it was argued that the impugned notifications cannot be found fault with. 13.Relying on the recommendations of the CDB and the request of the State of Kerala, Advocate Sri.George Mecheril argued that ban similar to that contained in Ext.P1 notification needs to be extended to other South Indian port as well. He states that the materials on record contain an overwhelming thrust in favour of a finding that there is an immediate requirement to impose such ban and that the Central Government and the DGFT are liable to be directed to issue notifications banning import of palm oil through the other South Indian ports. 14.On the basis of the materials on record and the arguments advanced, the issues that arise for decision are as to whether the impugned notifications resulting in the ban of import of palm oil through the ports in Kerala are sustainable and whether the Central Government and the DGFT are liable to be directed to impose similar restriction in the ports of Chennai, Mangalore, Tuticorin and Beypore. 15.By the notification dated 16-10-2007, import was not perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing exports from, India and for matters connected therewith or incidental thereto. The preamble of the F.T.Policy discloses the context, objectives and strategy for the Policy. Paragraph 1.3 reiterates the availability, with the Central Government, the right to make any amendments to the Policy, in public interest, in exercise of powers conferred by Section 5 of the Act. The thrust of the Act, as is discernible from Section 3, as also its preamble, is the facilitation of import and increasing exports. While the aim is to increase exports, the Act, as a whole, does not disclose any intention to increase and enhance import. The predominant economic policy underlying the F.T.Policy is to ensure that trade is a means to economic growth and national development by stimulation of greater economic activity. The F.T.Policy is rooted on such an objective and is built around two major objectives as discernible from the Policy Document. 19.The power to regulate import cannot but be conceded. The power to issue a notification or order includes the power to rescind or modify it. - See Kasinka Trading (supra). Even without the support of any precedent in that regard, the statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantly monitoring its behaviour. While deciding on a foreign trade policy, the domestic situations like industries, agriculture etc. are matters about which the policy framers would be concerned with. It was held by the Apex Court in Employees' Welfare Association v. Union of India38 that the courts have to consider the nature, objects and scheme of the instrument as a whole, and on the basis of that examination, it has to consider what exactly was the area over which, and the purposes for which, power has been delegated by the governing laws. In dealing with statutes which govern trade, including foreign trade, fiscal impositions and also statutes like the Customs Act and Customs Tariff Act, it has to be borne in mind that such legislations can be properly administered only by constantly adjusting it to the needs of the situation. This, therefore, calls for a good amount of discretion being allowed to the delegate. Profitable reference could be made in this regard to the judgment in Subhash Photographics(supra). Thus, the conferment of power and the broad spectrum of such power is constitutionally and legislatively conceived and provided for. 24.The impugned no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Import surge in vegetable oil economy is a subject dealt with in that article. It criticizes the indiscriminate import of vegetable oils, particularly palm oil. In that article, contrasting the market rate, it is pointed out that such import contributes to the sudden fall in the market price of coconut oil. The argument in support of the challenge to the notifications that the Government have not imposed ban on import of coconut oil, in spite of the views of the Chairperson of the CDB, is factually true but that is not sufficient to dislodge a policy decision already taken in relation to palm oil. Even if this Court assumes, in its wisdom, that having banned palm oil, the materials on record disclose that it was necessary that import of coconut oil is also banned, it would not be within the domain and province of this Court to embark upon coining an economic policy in that regard and directing the executive to enforce such policy. But the fact remains that the maker of Ext.R1(a) recommendation, namely, the Chairman of the CDB, going by Ext.P5 document, is clearly demonstrated to have had sufficient material within her command to make the recommendation contained in Ext.R1(a) which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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