TMI Blog2022 (8) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... clause(6) of Article? HELD THAT:- Article 19(1)(g) of the Constitution of India guarantees right to practice any profession, occupation or trade or business. However, the freedom is not unrestricted or uncontrolled in view of clause (6) of the article which authorizes the legislation to (a) impose reasonable restrictions on this right in the interest of general public, (b) prescribes technical or professional qualifications necessary for carrying on any profession, trade or business; and (c) enables the state to carry on any trade or business to the exclusion of the private citizens, wholly or partially - While imposing reasonable restrictions, the nature of the business or trade is the necessary element in deciding the reasonable restrictions. The petitioners are dealing in a trade which uses a chemical harmful to the ozone. Methyl Bromide is listed as Ozone Depleting Substance (ODS) under the Montreal Protocol of United Nations. The Union of India is a signatory member since 19.06.1992. As per the said protocol the developing countries will have to phase out use of Methyl Bromide from the fumigation treatment. It is also an undisputed fact that as on today there is no other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... want to restrict the use of Methyl Bromide (which is being already used for exports) and imports or after granting approval and relaxation to the petitioners for import, the respondents want to restrict such import after their consignment is fumigated both off-shore and on-shore. The action of the respondents in levying fine or penalty will amount to reasonable restrictions having direct impact on their right guaranteed under Article 19(1)(g) of the Constitution of India, since the petitioners cannot carry on with their trade unless they pay such fine or penalty. The respondents before imposing fine or penalty should have deliberated on the issue and the adversity faced by the petitioners, since the issuance of phytosanitory certificate is beyond their sphere or ambit. They cannot insist the exporting country to issue phytosanitory certificate as per the requirement of Indian parameters. Without resolving the issue at the ends of NPPOs of each country, the petitioners are being penalised. Thus, such an action of the respondents is arbitrary and invades their right to trade, hence the same calls for interference. Whether this Court, while exercising its powers conferred under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT 1. Since the captioned writ petitions are premised on common facts and the issue involved is also common, they are heard and decided analogously by this common judgment and order . FACTS: 2. All the petitioners are dealing with the import of timber wood and have to treat such wood with fumigation process for pest control. The petitioners are constrained to file the present petitions against the action of demand of additional fine/ charge/ penalty 5 times of regular fees by the respondents from the petitioners purportedly under Clause 14 (2) of Chapter VI of the Plant Quarantine Order (Regulation of Import into India), 2003 (hereinafter referred to as the PQ Order, 2003). The petitioners also seek to challenge the condition/s imposed by the respondents by way of Office Memorandum No.8-131/2016-PP.II dated 28.06.2017 and Office Memorandum No.8-131/2016-PP II dated 27.12.2018, thereby demanding the above referred penalty/ additional charges. 3. All the aforementioned OMs refer to the fumigation process undertaken for the imports of timber by using Methyl Bromide (with 48 g/ m3 for 24 hours at 21 degree Celsius). It is an admitted fact that all the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for phytosanitary measures. However, the condition no.3 of the impugned Office Memorandum refers that penal fees in respect of those consignments will be charged as prescribed in PQ Order, 2003. 7. While placing reliance on the Regulation 14(2) of PQ Order, 2003, it is contended that the same is in contradistinction with Regulation 9 since the said Regulation 9 permits fumigation with any other equivalent chemical and relaxation is also conferred vide Memorandum 28.06.2017 for import of commodities from such countries which certify discontinuance of use of Methyl Bromide. It is submitted that the petitioners are issued phytosanitory certificates by exporting countries which undertake fumigation by any other equivalent agent to Methyl Bromide, hence the petitioners cannot be faulted for exporting timber fumigated with other chemical. It is submitted that the Government cannot give by one hand and take away from another. It is submitted that right to be engaged in the trade/business of importing timber is protected by virtue of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India and such freedom can be restricted only by valid law made by the Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... national Plant Protection Convention, 1997 was executed by the member countries of the World Trade Organization for the purpose of providing common and effective action to prevent the spread and introduction of pests of plants and products. It is submitted that though it was decided by all of the countries of UN to phase out Methyl Bromide in UNEP (United Nations Environmental Program), the respondents, under the guise of Regulation 14 of PQ Order, permitted local fumigation by Mehtyl Bromide but with a penalty/fine of five times inception charges which is arbitrary and unreasonable. SUBMISSIONS OF RESPONDENTS: 13. In response, learned Advocate Mr.Bhatt appearing on behalf of the respondent authority has vehemently opposed the writ petition. It is submitted that the Montreal Protocol on Substances that Deplete the Ozone Layer is a global agreement to protect the Earth's ozone layer by phasing out the chemicals that deplete. It is submitted that as per Montreal Protocol, the use of Methyl Bromide is allowed worldwide for Quarantine and Pre- Shipment (QPS) purpose. It is submitted that, however, a few countries unilaterally phased out/discontinued the use of Methyl Bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tine Order and hence the impugned OMs have been passed in order to create a deterrent by enhancing the penalties in import of the commodities in violation of PQ Order. 16. It is submitted that in absence of an order relaxing the condition in Clause-9, the petitioners cannot claim any relaxation in respect of import without fulfilling the stipulated conditions. Hence, it is submitted that the writ petitioners have got no legal right to approach this Court seeking to alter the terms of import and the permit and order, on terms more favorable to them. 17. Learned advocate Mr.Bhatt has submitted that as per PQ Order, 2003, when any consignment of timber / wood is imported in India, the same is inspected by the Plant Protection Officer at Port. If the Timber is fumigated with Methyl Bromide at exporting port, the officer will examine whether again fumigation is required or not, and if it is not required then no charges are required to be paid for fumigation. However, in case fumigation is required in India under following circumstances i.e. (1) Fumigation is done at exporting country with Methyl Bromide but still it is required for any reason; (2) Fumigation is not done at all at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable. NPPOs shall use the model phytosanitary certificates of the IPPC. A) ISPM-1 2.13 Dispute settlement Contracting parties should be open to consultation regarding their phytosanitary measures, when requested by other contracting parties. If there is a dispute regarding the interpretation or application of the IPPC or its ISPMs, or if a contracting party considers that an action by another contracting party is in conflict with the obligations of the IPPC or guidance provided in its ISPMs, the contracting parties concerned shall consult among themselves as soon as possible with a view to resolving the dispute. (Article XIII.1) If the dispute cannot be resolved in this way, then the provisions of Article XIII relating to the settlement of disputes or other means of dispute settlement may be applied. I.14 Avoidance of undue delays When a contracting party requests another contracting party to establish, modify or remove phytosanitary measures, when conditions have changed or new facts have become available, this request should be considered without undue delay. Associated procedures, which include, but are not limited to, pest risk analysis, recognition of pest free a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with a phytosanitary certificates issued by National Plant Protection Organisation (NPPO) of the exporting country. Such certificates are issued after undertaking necessary fumigation by other equivalent chemical to Methyl Bromide or by Methyl Bromide. c) On arrival of such timber, the respondent authorities after granting relaxation for such import do not accept the phytosanitary certificates issued by the exporting country for the reason that the timber is not fumigated as per the Indian standards. d) They are allowed to import and collect the consignment after the timber is fumigated again as per Indian standards. e) The petitioners pay regular charge for such fumigation, but at the same time they are asked to pay five times fine or penalty as a deterrent measure for importing timber from such countries which do not issue phytosanitary certificates as per the Indian standards. f) The petitioners are paying all the necessary charges for fumigation. 22. The aforementioned facts indicate that the petitioners have to process their timber twice, once in the exporting country and again in India. The first process is undertaken by the exporting country and accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laxation by competent authority, the consignment shall be released after charging the fee for import permit and fee for plant quarantine inspection at five times of normal rates. 24. Pursuant to the aforesaid Plant Quarantine Order (PQ), the respondent authority has issued the OMs dated 28.07.2017, 27.12.2018 and 19.6.2020. These OM s are issued with regard to levy of penalties as prescribed in the PQ Order, 2003. 25. The entire case of the respondent authorities hinges on two aspects (a) in order deter the petitioners from importing timber from such countries which do not meet with the parameters of fumigation as per Indian standards; and (b) for restricted use of Methyl Bromide in India which is a threat to environment of the country. 26. It is the case of the petitioners, that imposition of penalty will amount to restricting their trade and is in violation of Article 19(1)(g) of the Constitution of India, hence the provision, which enables the authority to levy penalty may be quashed. 27. The petitioners are being penalised for the act of the exporting countries in issuing phytosantory certificates which are not in rhyme with the Indian standards. Vide OM dated 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attest that plants, plant products or other regulated articles meet the phytosanitary import requirements of importing countries and are in conformity with the certifying statement. Phytosanitary certificates may also be issued to support re-export certification to other countries. Phytosanitary certificates should be issued only for these purposes. 1.2 Types and forms of phytosanitary certificates In the Annex to the IPPC, there are two types of certificates: a phytosanitary certificate (see Annex 1 of this standard) for export purposes and a phytosanitary certificate for re-export (see Annex 2 of this standard) for reexport purposes.3 A phytosanitary certificate for export is usually issued by the NPPO of the country of origin. A phytosanitary certificate for export describes the consignment and, through a certifying statement, additional declarations and treatment records, declares that the consignment meets phytosanitary import requirements. A phytosanitary certificate for export may also be issued in certain re-export situations for plants, plant products and other regulated articles originating in countries other than the country of reexport if compliance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be issued by the NPPO of the country of origin. As per Article 3 the NPPOs of importing countries may require phytosanitory certificates for regulated articles. In the present cases, timber is recognised as a regulated article. It is also prescribed that for certain plant produces the importing countries should not require such certificate if the products are processed to the point where they have no potential for introducing regulated pest. Article 3 further clarifies that NPPOs should consult bilaterally when there are differences between their views regarding the technical justification for requiring phytosanitory certificates, and requirement for such certificates should respect the principles of transparency, non-discrimination, necessity and technical justification . Article 3.1 prohibits the acceptance of phytosanitory certificate, if the importing countries determine them as invalid or fraudulent and the NPPO of the declaring country should be notified at the earliest regarding unacceptability or suspect phytosanitory certificates. The Article further cautions that if the NPPO of the importing country suspects that phytosanitary certificates may be unacceptable, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nables the state to carry on any trade or business to the exclusion of the private citizens, wholly or partially. The expression 'in the interest of general public' is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects, mentioned in Part-IV of the Constitution. (vide Municipal Corporation Of The City Of Ahmedabad vs. Jan Mohammed Usmanbhal, 1986 (3) S.C.C. 20). Such expression will encompass the bio-security of the Country which has the direct impact on the environment and public health. 33. While imposing reasonable restrictions, the nature of the business or trade is the necessary element in deciding the reasonable restrictions. The petitioners are dealing in a trade which uses a chemical harmful to the ozone. Methyl Bromide is listed as Ozone Depleting Substance (ODS) under the Montreal Protocol of United Nations. The Union of India is a signatory member since 19.06.1992. As per the said protocol the developing countries will have to phase out use of Methyl Bromide from the fumigation treatment. It is also an undisputed fact that as on today there is no other alternative treatment of fum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untry. It is also an undisputed fact that as on today no rules or guidelines or regulations are framed by the Government of India mandating the use of any other chemical except Methyl Bromide for fumigation process. 35. At this stage, I may with profit refer to the few observations made by the Constitution Bench of the Apex Court which will facilitate in understanding the expression reasonable restrictions. In the case of Cooverjee B.Bharucha vs. Excise Commissioner And The Chief Commissioner, Ajmer , AIR 1954 SC 220 has held thus: Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot beheld to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be prescribed. It can not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. It is well settled that the test of reasonableness, wherever prescribed, should be applied to each individual statute, and each case has to be examined on its own facts and generalised standards cannot be adopted. The Court, while examining the purpose of restrictions imposed has to evaluate the extent of evil which is sought to be remedied by imposing such restrictions. The Apex Court has emphasised that phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. It is held that legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitory certificate is beyond their sphere or ambit. They cannot insist the exporting country to issue phytosanitory certificate as per the requirement of Indian parameters. Without resolving the issue at the ends of NPPOs of each country, the petitioners are being penalised. Thus, such an action of the respondents is arbitrary and invades their right to trade, hence the same calls for interference. 38. Since this Court has held the action of the respondents in levying fine or penalty as arbitrary and violates the fundamental rights, the cardinal question of law which necessitates to be addressed is whether this Court, while exercising its powers conferred under Article 226 of the Constitution, set aside the impugned Regulation and subsequent OMs which are in form of delegated legislation. In this regard, it may be apposite to refer to pertinent observations of the Supreme Court made in recent decision : In case of Rachna vs. Union Of India, 2021 (5) SCC 638, the Apex Court has held thus: Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different. It is within the realm of the executive to take a policy deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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