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2020 Supreme(Guj) 223
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, BHARGAV D. KARIA , JJ.
A.D. Enterprise Through Proprietor Azam Mansur Patel – Appellant
Versus
Union Of India – Respondent
R/Special Civil Application No.16588 of 2019
Decided on : 16-01-2020
Advocate Appeared:
For the Appellant : MR JAY N SHAH, MR JAIMIN R DAVE. MS NAMRATA J SHAH, Adv
For the Respondent: MR DEVANG VYAS, MR NIRZAR S DESAI
Point of Law:
There is a fundamental flaw in the first-come-first-served policy inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of first-come-first-served policy has inherently dangerous implications.
Headnote:
Constitution of India - Articles 226 - Writ Petition - Writ-applicant seeks to challenge the guidelines dated 13th September 2019 for the registration of the sales contract for the import of the poppy seeds from Turkey to India issued vide Public Notice. The practice 'first come first serve basis' adopted in distributing the State largesse is violative of Article 14 of the Constitution of India. The conduct of the respondents itself suggest that they have devised the impugned policy with a view to favour few players and also to ensure ouster genuine first-time importers. Held - In our opinion, adopting a methodology of first-come-first-serve has inherent flaws and anybody having access to the power corridor at some level is likely to secure unfair advantage at the cost of the other applicants who may not have similar access. In such circumstances, it is suggested that the respondents should device a better mechanism/policy for the allotment of quota so as to make the process much more competitive, transparent, fair and reasonable- Petition disposed of. (Para 9)
Facts of the Case:
Writ-applicant seeks to challenge the guidelines dated 13th September 2019 for the registration of the sales contract for the import of the poppy seeds from Turkey to India issued vide Public Notice.
Finding of the Court:
It is suggested that the respondents should device a better mechanism/policy for the allotment of quota so as to make the process much more competitive, transparent, fair and reasonable.
Result: Petition disposed of.
JUDGMENT :
J.B.PARDIWALA, J.
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a proprietary firm, through its proprietor, has prayed for the following reliefs :
“...that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order and be pleased to :
(a) Quash and set aside Public Notice No.PS-11/2019 dated 13th September 2019 at Annexure-F;
In the alternate
(b) Direct Respondent No.2 herein to streamline the procedure for Import of Poppy Seeds in India from Turkey pursuant to Public Notice No.PS-11/2019 dated 13th September 2019 so as to ensure that procedure is fair, reasonable, transparent and open to all the importers;
(c) Pending the hearing and final disposal of the petition, stay implementation and operation of Public Notice No.PS-11/2019 dated 13th September 2019 and direction to not register contracts or issue permits to import of Poppy Seeds (WPS) from Turkey to India in accordance with Public Notice No.PS-11/2019 dated 13th September 2019.
(d) Any other relief as may be deemed fit in the interest of justice.
(e) To provide for the cost of this petition.”
2. The writ-applicant seeks to challenge the guidelines dated 13th September 2019 for the registration of the sales contract for the import of the poppy seeds from Turkey to India issued vide Public Notice No.PS-11-2019. The challenge is substantially on the following three grounds :
1. The amended policy dated 25.6.2019 which is now substituted by the policy dated 13.9.2019 is manifestly unjust and handmade for the purpose of favouring few big players.
2. The practice 'first come first serve basis' adopted in distributing the State largesse is violative of Article 14 of the Constitution of India.
3. The conduct of the respondents itself suggest that they have devised the impugned policy with a view to favour few players and also to ensure ouster genuine first-time importers.
3. The writ-applicant has made available in writing for the convenience of this Court the relevant dates and events, which are as under :
| Date | Event |
| 2016 | Condition No.(c) came to be introduced in Chapter No.12 of the Import Policy whereby the Respondent No.1 was granted the power to regulate the import of the poppy seeds in India. |
| July, 2016 | That in accordance with the above-mentioned conditions, the Respondent No.2 decides country cap, quantitative restriction, etc. for the import of the poppy seeds from different countries. Such country cap, quantitative restrictions, etc. are notified by way of issuing Public Notices from time to time. Under the said public notices, the Respondent No.2 herein also lays down a procedure for the import of the poppy seeds in India from different countries. Under the public policy, between 2016 to 2019, the procedure that was followed for the import of the poppy seeds in India from different countries was broadly as under: The applicants desirous to import the poppy seeds from Turkey shall apply in the prescribed proforma to register their sales contract with the Respondent No. 2. Each applicant could register sales contracts for the quantity applied for or 90 Mts, whichever is less. Furthermore, when the quantity available for allocation to the applicants was insufficient to allocate to all the applicants, selection of the application was done on the basis of draw of lots. The applicants who did not receive allocation due to the country cap getting exhausted were kept in the wait-list. The applicants put in the wait-list due to exhaust of the country cap were allowed in the order of the priority list drawn at the time of the allocation of country cap. Furthermore, a |
