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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
M/s. N.D. Timbers - Petitioner
Versus
Union Of India – Respondent
R/SPECIAL CIVIL APPLICATION NO. 16280 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 2555 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 1347 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 1310 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 1312 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 1396 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 1364 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 1389 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 1291 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 1818 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 2261 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 3569 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 3667 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 3349 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 3746 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 4235 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 4613 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 4605 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 4615 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 4737 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 4256 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 5419 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 5302 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 4779 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6697 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 6771 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 5964 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 7764 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 7794 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 7825 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 7740 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 7717 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 8073 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 8085 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 8258 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 8907 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 10016 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 10465 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 10482 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 11222 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 10007 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 16282 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16283 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16284 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16287 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16289 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16291 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16292 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16294 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16295 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16297 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16298 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16299 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16300 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16303 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16305 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16307 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16310 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16312 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16449 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16450 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16445 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16447 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16448 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16451 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 16730 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18217 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 17729 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18226 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18479 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18339 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18477 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18324 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18468 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18478 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18467 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18190 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 18278 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 20092 of 2021 With R/SPECIAL CIVIL APPLICATION NO. 336 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 335 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 11439 of 2022.
Decided On : 28-06-2022
Methyl Bromide - Import of Timber Wood - Plant Quarantine Order (Regulation of Import into India), 2003 - Regulation 14(2), Regulation 9(1)(ii) - The court discussed the imposition of penalty for importing timber from countries not meeting Indian fumigation standards. It highlighted the conflict between regulations, the use of Methyl Bromide, and international obligations. The court found the penalty to be arbitrary and in violation of Article 19(1)(g) of the Constitution of India.
Fact of the Case:
The petitioners imported timber wood and were penalized for not meeting Indian fumigation standards, despite having valid certificates from the exporting country. They challenged the penalty as arbitrary and in violation of their right to trade.
Finding of the Court:
The court found the penalty to be arbitrary and in violation of the petitioners' right to trade, as it conflicted with regulations and international obligations. It held that the penalty imposed was unreasonable and violated Article 19(1)(g) of the Constitution of India.
Issues: The issues involved the imposition of penalty for importing timber not meeting Indian fumigation standards, the conflict between regulations, and the violation of the petitioners' right to trade.
Ratio Decidendi: The court held that the penalty imposed on the petitioners for importing timber not meeting Indian fumigation standards was arbitrary and violated their right to trade, as it conflicted with regulations and international obligations.
Final Decision: The court quashed and set aside Regulation 14(2) of the Plant Quarantine (Regulation of Import into India) Order, 2003, and subsequent Office Memorandums imposing the penalty, to the extent of charging fees at five times the normal rates.
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 petitioners have the requisite certificate of fumigation issued by the officials of the exporting country, but the respondent authority treat the same as invalid for the reason that they do not meet with the standards or parameters as prescribed by India. Hence, the petitioners are asked again to treat the timber with fumigation by Methyl Bromide as per the Indian standards, and accordingly are issued such certificates. In view of such objection, the petitioners are asked to pay the charge of fumigation and the penalty also.
SUBMISSIONS OF THE PETITIONERS:
4. Learned Advocate Mr.Bharat Raichandani appearing for learned advocates Mr.Sharma and Mr.Patel has submitted that, the respondent authorities are granting relaxations in insistence upon the Methyl Bromide as fumigation chemical agent, but levying the penal fees of 5 times than the normal charges for inspection fees under the provisions of Regulation 14 (2) of the PQ Order, 2003, which is illegal and unconstitutional. It is further urged that as per Regulation 9 itself, when the treatment with equivalent fumigation chemical agent is permissible, then the insistence to demand fumigation by Methyl Bromide or otherwise to impose fine is in violation of PQ Order 2003 itself.
5. It is submitted that the respondent No.1 gave permission to import the agricultural commodities without Methyl Bromide fumigation from those countries who certify discontinuation of this chemical for Phytosanitary Measure by way of Office Memorandum dated 02.01.2017. It is also submitted that the action of the respondents is discriminatory since by virtue of office memorandum/ order dated 25.04.2018, the respondent no.1 authority has permitted to import the consignment of chickpeas and pulses shipped from USA that are duly covered by phytosanitary certificates on basis of fumigation by Methyl Bromide at the port of arrival in India, with one time inspection fee. Reliance is placed in this regard on the judgment of the Apex Court in case of Union Of India vs N.S.Rathnam & Sons, 2015 (10) S.C.C. 681.
6. It is also contended by learned advocate Mr.Raichandani that the respondent no.1 has also issued two office memorandums dated 28.06.2017 and 27.12.2018. It is stated that as per impugned Office Memorandums, the fumigation treatment with Methyl Bromide is given go-bye if the exporting countries have discontinued use of the same 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 confer
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