TMI Blog2020 (12) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... licence from the DGFT/Union of India . Neither the State of Telangana nor the State of Andhra Pradesh have any business to intrude into the field occupied by the Union of India in relation to foreign trade and interfere with exercise of discretionary power by the Union of India and the Director General of Foreign Trade in matters of export policy. The issuance of Certificate of Origin to another business entity by the Principal Chief Conservator of Forests of State of Telangana, who also, like the petitioner,wanted to export in log form after allotment on condition of export in value added form the discriminatory treatment given to petitioner. Thus notwithstanding that the applicant M/s.Rocky Red Sanders Wood Musical Instruments Exports Limited had also been allotted Red Sanders for export in value added products form, its application for Certificate of Origin of stock in log form was approved and was issued by the Principal Chief Conservator of Forests, State of Telangana - We are unable to understand why the Principal Chief Conservator of Forests of the States of Telangana and the State of Andhra Pradesh have applied a different standard when it comes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Justice M.S. Ramachandra Rao And Honourable Sri Justice K. Lakshman For the Petitioner : Vedula Srinivas For the Respondent : Namavarapu Rajeshwar Raoassgi ORDER: PER HON BLE SRI JUSTICE M.S. RAMACHANDRA RAO In this Writ Petition, the petitioner assails proceedings No.16795/2019/Prod.1 dt.06.12.2019 of the Principal Chief Conservator of Forests (Head of Forest Force) (FAC) of the State of Telangana and also Principal Chief Conservator of Forests (Head of Forest Force) (FAC) of the State of Andhra Pradesh refusing to issue Certificate of Origin to the petitioner in respect of Red Sanders wood stock of 1067.751 M.T. sold to the petitioner on 18.03.2013 by the then A.P. Forest Development Corporation Limited (of the composite State of Andhra Pradesh) to enable the petitioner to export the same after obtaining permission/export licence for such export from the Directorate General of Foreign Trade, Ministry of Commerce and Industry, Union of India (for short DGFT /2nd respondent). The background facts 2. The petitioner is a partnership firm based in Hyderabad. It is engaged in the business of purchasing Red Sanders wood in the auctions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Companies M/s.Sunday Sun Pet Limited and M/s.Istanbul Trading. 9. The petitioner then applied for issuance of Certificate of Origin for export of Red Sanders wood [as per the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flaura (for short CITES ), an International Body which controls the trade in Red Sanders wood through out the world] to the CITES Management Authority of India for sale to its Singapore buyers by enclosing the relevant documents. The bifurcation of the composite State of Andhra Pradesh into the new State of Telangana and the residuary State of Andhra Pradesh w.e.f.2.6.2014 : 10. In the meantime, the composite State of Andhra Pradesh was divided into the new State of Telangana (3rd respondent) and the residuary State of Andhra Pradesh (4th respondent) pursuant to the A.P. Reorganisation Act, 2014 w.e.f. 02.06.2014. W.P.No.21397 of 2019 and the order dt.30.9.2019 passed therein 11. Since the petitioner s application for issuance of Certificate of Origin of the Red Sanders wood had not been disposed of by the respective Principal Chief Conservator of Forests of both these States, petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has entered the same in the register and got verified by the concerned DFO, Yadadri-Bhuvanagiri. 15. The petitioner was requested by the 3rd respondent to furnish the said information in 15 days. W.P.No.24532 of 2019 and the order dt.28.11.2019 passed therein 16. Challenging the same, the petitioner filed W.P.No.24532 of 2019 in this Court. In this Writ Petition, he impleaded the Principal Chief Conservator of Forests (HoFF) of the State of Telangana and also the Principal Chief Conservator of Forests (HoFF) of the State of Andhra Pradesh. 17. Petitioner pointed out that it was facing a deadline of 31.12.2019 for exporting the stock lying with him, that permission had not been given to the team of the State of Andhra Pradesh Forest Department by the State of Telangana to inspect the stock lying with the petitioner; and unless such inspection is done, Certificate of Origin would not be issued by the Telangana Forest Department. He also contended that Certificate of Origin has to be given by the State Forest Department under whose jurisdiction the stock is presently kept; and it is not for the Forest Departments of either State to decide whether the Red San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The important finding at para 18 in the impugned order of the genuineness of stock in custody of petitioner and it s legal transporting to the State of Telangana 21. However, in para-18 of the said order, it was recorded that as per report dt.04.12.2019 of the Principal Chief Conservator of Forests (HoFF), Andhra Pradesh State: (i)The permits through which the said logs were transported by the petitioner to his depot are genuine . (ii) The Red Sander wood stacked in the depot is genuine . (iii) The dimensions and weight of the logs are tallying with the one recorded in the permits with minor variations which can be attributed to dryage breakage during transport etc. (iv) The entire Red Sander wood is tacked in the depot in log form only as no conversion of the said wood of Value Added Product Form has been done by the petitioner so far. The instant Writ Petition 22. Assailing the validity of the proceedings No.16795/2019/Prod.I dt.06.12.2019 passed by the Principal Chief Conservator of Forests (HoFF) of the States of Telangana and Andhra Pradesh, the present Writ Petition is filed. Events after filing of the Writ Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and Forests filed counter-affidavit on 16.11.2020 and the Director General of Foreign Trade (DGFT) filed counter-affidavit on 11.11.2020. 30. The Principal Chief Conservator of Forests (HoFF), State of Telangana had filed one counter-affidavit in December, 2019 and an additional counter-affidavit on 12.10.2020. The Principal Chief Conservator of Forests (HoFF), State of Andhra Pradesh had filed counter-affidavit on 20.12.2019. 31. The petitioner filed additional material documents on 11.12.2019 and a memo on 16.11.2020 enclosing three documents. 32. Oral submissions of Sri V.Srinivas, the learned counsel for petitioner, learned Assistant Solicitor General for the Union of India and the Director General of Foreign Trade (respondent Nos.1 and 2), the learned Government Pleader for Forests, State of Telangana and learned Special Government Pleader for State of Andhra Pradesh in the High Court for the State of Telangana were heard on 20.11.2020. 33. To avoid repetition, we shall refer to the respective contentions of the parties and also consider the same simultaneously. Consideration by the Court 34. We shall first begin by stating that we are disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. 44. There is no dispute that petitioner paid the agreed full consideration, that the stock was delivered to the petitioner which the petitioner had transported to its godown in Thoopranpet village, Yadadri Bhuvanagiri District in the present State of Telangana from the State of Andhra Pradesh. 45. In the preamble of the agreement, it is mentioned that the petitioner is aware that the requests of the Government of Andhra Pradesh to the Government of India to permit export of Red Sanders wood in log form was refused. 46. That was why Clause (1) of the agreement dt.18.3.2013 mentioned that the petitioner agreed to convert into value added product form, the Red Sanders wood sold to it in log form . Even clause 8(i) of the Agreement mentioned that export process of value added product form of Red Sanders wood materials would begin only after obtaining the necessary permission /clearance from the Government of India; and clause-8(ii) permitted the petitioner to prepare the export application along with all documents for the Red Sanders wood in value added product form for issue of export licence by Government of India, Ministry of Commerce; that the A.P. Forest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counter-affidavit stating in para-4 that the Government of Andhra Pradesh had sold 1067.786 M.T. of Red Sanders wood to the petitioner in 2011 subject to the condition that it will convert the same into value added product form if it wishes to export the same; and the export of confiscated Red Sanders wood in log form was not allowed by the DGFT/Central Government when the petitioner was allocated the quantity. (It thus explained the reason why the agreement dt.18.3.2013 mentioned that petitioner would export in value added products form) It is stated that subsequently on 24.10.2013, the DGFT notified relaxation in export of Red Sanders wood in log form through notification No.47(RE-2013)/2009-2014 dt.24.10.2013 which was filed as Annexure-II to its counter. (This shows that there was a change in policy by the Union of India/DGFT to also permit export of Red Sanders wood in log form subsequently w.e.f. 24.10.2013, shortly after the agreement dt.18.3.2013 was executed in favor of the petitioner) It further stated that on specific request of the Government of Andhra Pradesh, the DGFT also issued public notice No.42 dt.03.12.2013 notifying quantity for export of 1998.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2019. Our consideration of above facts/events 50. Once the Government of India/DGFT had changed its policy of prohibiting export of Red Sanders wood in log form after 24.10.2013 when Notification No.47(RE-2013)/2019-2014 dt.24.10.2013 was issued permitting export of Red Sanders Wood in log form, and that policy continued even thereafter for considerable length of time even upto 31.12.2019, the Principal Chief Conservator of Forests of both States cannot continue to insist that that petitioner should convert the Red Sanders Wood into value added product form as agreed by the petitioner in the Agreement Ex.P4 dt.18.03.2013, and that unless he does so, they will not grant him a Certificate of Origin with regard to the Red Sanders Wood purchased by it. 51. We may also point out that essentially the sale of the Red Sanders Wood to the petitioner is governed by the provisions of the Sale of Goods Act, 1930. 52. The said statute contemplates conditions and warranties in Sec.12 of the said Act, which states: 12. Condition and warranty: (1) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Change of the Union of India had stated the following in respect of export of Red Sanders wood from a State other than the State of Andhra Pradesh: the Certificate of Origin of the material, whether it is of confiscated origin or artificially propagated , must be issued by the Principal Chief Conservator of Forests from where the export is to take place based on the documents of procurements and custody of stocks available with the applicant. 57. In the instant case, the Principal Chief Conservator of Forests of both States had certified in para-18 of the impugned order dt.06.12.2019 itself that the Red Sanders wood stacked in the Depot of the petitioner is genuine and the permits through which the said logs were transported by the petitioner to his Depot are also genuine. 58. There is no dispute thus about how the petitioner procured the stock in its custody and its genuineness. So they cannot now create new grounds, not within their purview , for refusing to issue the Certificate of Origin. 59. In our opinion, it is not within the jurisdiction of the Principal Chief Conservator of Forests of both States to decide whether or not petitioner, who seeks s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate of Origin for export in either log form or value added product form is issued by the Principal Chief Conservator of Forests, Government of Telangana, and the petitioner files an online application with the DGFT along with required documentation which can be forwarded to the 1st respondent for seeking NOC, and if such NOC is issued by the 1st respondent, export licence can be issued to the petitioner. 66. Thus the DGFT does not rule out grant of export licence to the petitioner for export even in log form, if a Certificate of Origin is issued by the Principal Chief Conservator of Forests, State of Telangana. The issuance of Certificate of Origin to another business entity by the Principal Chief Conservator of Forests of State of Telangana, who also, like the petitioner,wanted to export in log form after allotment on condition of export in value added form the discriminatory treatment given to petitioner 67. In this regard, the petitioner had relied upon the Certificate of Origin issued to a sister concern of the petitioner by name M/s.Rocky Red Sandalwood Musical Instruments Exports vide Certificate No.RS/TS/0002/2020 dt.13.11.2020 issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for issuance of a Certificate of Origin by insisting that they will consider such request only after the petitioner agrees to convert the logs into value added product form. They cannot discriminate against the petitioner and apply a different rule to the petitioner, which was not applied by them to M/s.Rocky Red Sanders Wood Musical Instruments Exports Limited. 72. We are of the opinion that both of them have to confine themselves to their jurisdiction of issuing Certificate of Origin after verifying the procurement document and the custody document alone (which have been certified to be genuine at para-18 of the impugned order dt.06.12.2019 by both of them). 73. They cannot transgress into the jurisdiction of the DGFT and take into consideration whether export licence in log form would be issued by the DGFT to the petitioner or not, while deciding whether or not to issue a Certificate of Origin to the petitioner, which they cannot otherwise deny to the petitioner. 74. We may here refer to the decision in Indian Rly. Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579 , where the Supreme Court had pithily explained the parameters of judicial review o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires. 14. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties etc. The distinctive features of some of these recent cases signify the willingness of the courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is entitled to the benefit of any change in policy of the Government of India/DGFT and cannot be prevented from taking advantage of the same by exporting in log form if the Government of India/DGFT grant permission to the petitioner to do so; and the State of Andhra Pradesh or the State of Telangana cannot refuse to issue Certificate of Origin to the petitioner by taking such untenable pleas. 79. Coming to the stand taken by the State of Telangana and its Principal Chief Conservator of Forests, Telangana at Hyderabad is concerned, the said State has been carved out of the erstwhile composite State of Andhra Pradesh w.e.f. 02.06.2014 under the A.P. Re-organization Act, 2014. 80. The Red Sanders stock sold to the petitioner was confiscated in the area which now falls in the residuary State of Andhra Pradesh, and the only reason why the State of Telangana and its Principal Chief Conservator of Forests, Telangana at Hyderabad has been involved in the process of issuance of Certificate of Origin to the petitioner is on account of the letter F.No.05-03/2012-SU issued by the Ministry of Environment, Forests and Climate Change, Government of India, on 11.10.2018 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above conduct while showing discrimination to the petitioner, who is also similarly placed. 83. In Urban Improvement Trust, Bikaner V.Mohanlal (2010) 1 SCC 512 the Supreme Court has held that statutory authorities have to discharge functions in public interest, that they should act as responsible litigants; and that they cannot raise frivolous and unjust objections by behaving like private litigants. It criticized the attitude of Government officials in deliberately delaying taking crucial decisions affecting citizens and then contesting the same on technical pleas without justification. It declared: 5. Statutory authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They can not behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) SCC 176 this Court held: (SCC p. 177, para 2) 2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. 9. In a three-Judge Bench judgment of Bhag Singh v. UT of Chandigarh 1985 (3) SCC 737 this Court held: (SCC p. 741, para 3) 3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
