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2015 Supreme(Mad) 2908
IN THE HIGH COURT OF JUDICATURE AT MADRAS
V.RAMASUBRAMANIAN and T.MATHIVANAN, JJ.
Marine Products Exporters Association, rep. by its Vice President S.J.Ramnath – Appellant
Vs.
The Union of India – Respondent
W.P.No.12311 of 2015 and M.P.No.1 of 2015
Decided On : 16.9.2015
Advocate Appeared:
For Petitioner: Mr. S.Murugappan
For Respondents 1 to 4: Mr. S.Makesh, ACGSC
For Respondent-5: Mr. Sundareswaran
For Respondent-6: Mr. M.T.Arunan
Headnote:
Foreign Trade (Development and Regulation) Act, 1992 – Section 5 – Export of Shark fins – Petitioner has come up with the above writ petition challenging the Notification issued by the Director General of Foreign Trade, prohibiting the export of Shark fins of all species of Shark – Held, an association of exporters has come up with the above writ petition. – They have not given any details as to who are their members, who had export orders, what was the duration of time within which they were expected to fulfil the obligations under those orders, etc. – In the written submissions circulated after the hearing was over, it is claimed that about 25 tonnes of shark fin worth Rs.12 crores was waiting to be exported. – But these details were not furnished in the writ petition. – Therefore, we do not have any details as to how the export orders that were pending execution on the date of issue of the impugned notification were affected. – Hence, this ancillary contention cannot be accepted. – Inviting our attention to a stay order granted by the Kerala High Court to the very same impugned notification, it was contended by Mr.S.Murugappan, learned counsel for the petitioner that when someone in the neighbouring State has obtained the benefit of a stay of the notification, it has to be treated as though the notification is not in force. – But, unfortunately for the petitioner, the Kerala High Court has not decided finally, the validity of the notification. – The writ petition there is still pending. – Here, the pleadings are complete and court have heard arguments on the main relief relating to the validity of the notification. – Therefore, the stay granted by another High Court is of no relevance to test the validity of the notification. – Writ Petition Dismissed
V.RAMASUBRAMANIAN, J
The petitioner has come up with the above writ petition challenging the Notification dated 06.02.2015 issued by the Director General of Foreign Trade, prohibiting the export of Shark fins of all species of Shark.
2. Heard Mr.S.Murugappan, learned counsel for the petitioner, Mr.S.Makesh, learned Additional Central Government Standing Counsel appearing for respondents 1 to 4, Mr.V.Sundareswaran, learned counsel appearing for the 5th respondent and Mr.M.T.Arunan, learned counsel appearing for the 6th respondent.
3. The petitioner is an Association of Exporters of Dried Marine Products. It is registered as a Society under the Tamil Nadu Societies Registration Act, 1978.
4. The petitioner has come up with the above writ petition challenging a Notification bearing No.110(RE-2013)/2009-2014 dated 06.02.2015, issued by the Director General of Foreign Trade which is the second respondent herein. The Notification has been issued actually by the Central Government in exercise of the powers conferred by Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with para 1.3 of Foreign Trade Policy 2009-2014. By the said Notification, the Central Government has banned the export of Shark fins of all species of Shark.
5. The case of the petitioner is that India, which has a long coastal line of about 7500 Kms., has thousands of fishing villages along the coastal line. Though Shark meat is consumed only by a very small percentage of the Indian population, Shark fins are used extensively by the Chinese, who consider the same to have medicinal effect. Therefore, several countries export Shark fins to China. It appears that the export of Shark fins from India was to the value of Rs.3,439.37 lakhs in 2012-13, but it rose to Rs.3,857.20 lakhs in 2013-14. According to the petitioner, there are 480 species of Shark, out of which only 18 species are protected by an International Convention to which 180 countries including India are signatories.
6. The petitioner challenges the impugned Notification primarily on the following grounds:-
(i) that under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, known in brief as CITES, only 18 species out of 480 species of Shark are protected and hence, a total ban on export is contrary to the Convention;
(ii) that even under Schedule I to the Wild Life Protection Act, only 6 species of Shark and 3 species of Ray are prohibited of being hunted and hence, the Notification issued under the Foreign Trade Policy is contrary to law;
(iii) that the decision to impose a total prohibition was taken in a meeting convened by the Secretary to Government in the Ministry of Commerce and Industry, wherein a proposal was mooted by one member whose credentials are not known and especially when the proposal made by the member was without any basis or factual details justifying the ban; and
(iv) that when the hunting of Shark for domestic consumption is not prohibited, the total prohibition of export of Shark fins, is irrational, arbitrary and unjustified.
7. The Deputy Director General of Foreign Trade has filed a counter affidavit on behalf of the second respondent as well as the others. It is stated in the counter affidavit that Section 5 of the Foreign Trade (Development and Regulation) Act, 1992, confers power upon the Central Government to formulate and announce the Foreign Trade Policy and also to amend the policy from time to time. In paragraphs 10 and 11 of the counter affidavit, the second respondent has stated the rationale behind the imposition of the ban. Therefore, paragraphs 10 and 11 are extracted as follows:
"10. The respondent humbly submits that based on representation from different quarters on preventing cruelty to animals and request to Department of Commerce to ban export of shark fins, a meeting was held under the Chairmanship of Commerce Secretary on 13.01.2015 which was attended by the representatives of Department of Commerce,
