Case Law Details
Nrapen Shanker Acharya son of Shri Narbada Shanker Acharya Vs Union of India (Rajasthan High Court)
The Rajasthan High Court dismissed a Public Interest Litigation (PIL) filed by an advocate seeking directions relating to the Foreign Trade Policy (FTP), 2023 and the Hand Book of Procedure (HBP), 2023. The petitioner claimed that the petition was filed in the interest of exporters and importers after conducting research to facilitate relaxation of the provisions of the FTP and related procedures. The Court observed that these statements themselves were sufficient to dismiss the writ petition.
The petitioner contended that the Foreign Trade (Development and Regulation) Act, 1992 empowers the Union of India to formulate the FTP and that the FTP notified on 01.04.2023 provides for Duty Exemption/Remission Schemes, including Advance Authorisation and Duty Free Import Authorisation under Chapter 4. The grievance was that the Director General of Foreign Trade (DGFT) had not issued a notification imposing pre-import conditions under Clause 4.13 of the FTP, nor prescribed a procedure for notifying the Actual User Condition under Clause 4.26 of the FTP through the Hand Book of Procedure.
The petitioner sought directions to empower or authorise the DGFT to impose pre-import and Actual User Conditions through public notices and further sought a declaration that Paragraph 4.25 of the Hand Book of Procedure was not mandatory, so that the Norms Committee would not be required to call for and examine trade data before reviewing the Standard Input Output Norms (SIONs).
After examining the relevant provisions of the FTP and the Hand Book of Procedure, the High Court held that the reliefs sought could not be granted. The Court observed that policy matters are not ordinarily open to judicial directions under Article 226 of the Constitution, and that it was beyond the jurisdiction of the writ court to direct the Union of India to empower or authorise the DGFT to impose pre-import conditions or Actual User Conditions by way of public notice.
The Court held that the Union of India and authorities under the FTDR Act are required to act strictly in accordance with the Act, the FTP, and the Hand Book of Procedure, all of which have binding force. It observed that courts cannot issue a writ of mandamus directing statutory authorities to act contrary to the prescribed statutory procedure. Referring to the Supreme Court’s decision in Bhavnagar University v. Palitana Sugar Mill (P) Ltd., the Court reiterated that where a statute prescribes that a particular act must be done in a particular manner, it must be done only in that manner or not at all.
While examining Clause 4.13 of the FTP, the Court held that the expression “may” has to be read consistently with the powers of the Union of India. It observed that pre-import conditions can be imposed only through a notification issued by the Ministry of Commerce and Industry, and the DGFT’s power to issue notifications under Clause 4.13 remains subject to such notification by the Union Government. The Court further held that imposition of the Actual User Condition is also a policy matter and can only be notified through an official Gazette notification.
Regarding the challenge to Paragraph 4.25 of the Hand Book of Procedure, the Court held that the Norms Committee is entrusted with reviewing Standard Input Output Norms (SIONs) and that the requirement for exporters to furnish production and consumption data forms the foundation for such review. It held that the DGFT cannot review SIONs unilaterally without calling for the required data and information, and therefore rejected the prayer seeking to declare Paragraph 4.25 as non-mandatory.
The High Court also observed that the petitioner had produced no material except copies of the FTP and the Hand Book of Procedure, both of which were already publicly available. It held that no public interest was involved, that the reliefs sought would run contrary to public interest, and that granting them would exceed the jurisdiction of the writ court. The Court further held that the petitioner failed to establish bona fides or demonstrate that he satisfied the requirements applicable to a PIL petitioner under the Rajasthan High Court Rules framed pursuant to the Supreme Court’s decision in State of Uttaranchal v. Balwant Singh Chaufal.
Accordingly, the Public Interest Litigation was dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF RAJASTHAN HIGH COURT
In this writ petition labeled as Public Interest Litigation, the petitioner, an advocate by profession and claiming himself a resident of Jodhpur, states that he has approached this Court after conducting proper research to further the interest of export/import entities and to help them in getting the provisions of the Foreign Trade Policy and procedures relaxed. In our opinion, these very statements are sufficient to dismiss this writ petition.
2. The petitioner states that the Foreign Trade (Development and Regulation) Act 1992 (in short, ‘the FTDR Act’) was enacted for the development and regulation of foreign trade by facilitating imports into, and augmenting exports from India and for the matters connected therewith or incidental thereto. According to the petitioner, the Union of India through the Secretary of the Ministry of Commerce and Industry has powers to make and publish the Foreign Trade Policy (in short, ‘the FTP’) and, in exercise of powers under section 5 of the FTDR Act, the FTP was notified vide Notification No.1/2023 on 01st April 2023. The petitioner further pleads that the FTP so notified provides for “Duty Exemption/Remission Scheme” which includes “Advance Authorisation” and “Duty Free Import Authorisation” under Chapter 4. The grievance of the petitioner is that the Director General of Foreign Trade (in short ‘DGFT’) did not issue a Notification for imposition of pre-import condition(s) as provided under clause 4.13 of the FTP. Another grievance of the petitioner is that no procedure has been prescribed for notifying the Actual User Condition under the “Hand Book of Procedure”, as provided under clause 4.26 of the FTP.
3. Mr. Jay Salwa the learned senior counsel who is appearing through virtual mode submits that there is inaction on the part of the Union of India in not authorising the DGFT to impose pre-import condition(s) for inputs under Chapter 4 of the FTP by way of public notice and, that, this is not in the public interest that the goods are not made subject to the Actual User Condition for the purpose of Chapter 4 of the FTP.
4. In this writ petition, the petitioner has made the following prayers :-
“10. RELIEF (S) PRAYED FOR:
That the petitioner most respectfully prays that this Hon’ble Court may be pleased to pass to the following orders:
(i) To Issue an appropriate Writ, Order or Direction more particularly a writ of mandamus or in the nature of mandamus or any other appropriate writ, order directing the Respondent No. 1 to empower/authorize the Respondent No. 2 to impose pre-import and actual user condition by way of public notice;
(ii) To declare that the provisions of paragraph 4.25 of the Hand Book of Procedure are not mandatory and Norms Committee is not bound to call for and examine the data and information from the trade to review the standard output and inputs norms;
(iii) and/or pass any other or further orders which Your Lordships may deem fit and proper in the interest of justice”
5. After having gone through the relevant portions of the FTP vide Annexure-1 and the Hand Book of Procedure vide Annexure-2, we have formed an opinion that the aforementioned prayers made by the PIL-petitioner cannot be granted by this Court. This is well settled that in the policy matters the Courts should not exercise the powers under Article 226 of the Constitution of India and issue direction(s) to the State authority to do a certain act. This shall really not be within the powers of the writ Court to issue a direction to the Union of India to empower and authorise the DGFT to impose pre-import and Actual User Condition by way of public notice. The Union of India and the authorities under the FTDR Act shall be bound by and need to act in accordance with the provisions of the Act. The FTP and the Hand Book of Procedure shall have binding force and the writ Court shall have no jurisdiction to pass an order contrary to the policy decision(s) incorporated thereunder, more particularly, because the decision pertains to fiscal matters. This is too well settled that if a procedure has been prescribed in law that must be followed by the authorities thereunder and the Courts cannot issue mandamus to any statutory authority to act contrary to the procedures laid down thereunder. In “Bhavnagar University v. Palitana Sugar Mill (P) Ltd. & Ors.” (2003) 2 SCC 111, the Hon’ble Supreme Court held that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The Hon’ble Supreme Court further observed that the State and other authorities being the creature of the statute are required to act within the four corners of the statutory provisions.
6. Under Chapter 4 of the Duty exemption/remission scheme which enables duty free import of the inputs for export production including replenishment of inputs or duty remission, a detailed procedure has been laid down. The schemes thereunder consist of Advance Authorisation and Duty Free Import Authorisation; Duty Remission Scheme; Scheme for Rebate of State and Central Taxes and Levies etc. Clause 4.03 deals with Advance Authorisation and clause 4.05 talks of eligible applicant/export/supply. There are also provisions for the Self-Ratification Scheme (4.06), Value Addition (4.08) and Minimum Value Addition (4.09). The learned senior counsel appearing for the petitioner referred to clause 4.13 which provides for “pre-import condition in certain cases” to support the prayer made under clause (i) of the present writ petition. However, we are of the opinion that the pre-import condition for inputs under Chapter 4 can be issued only by the Ministry of Commerce and Industry subjecting the import items under appendix 4-J to pre-import condition. The expression “may” occurring under clause 4.13 has to be read in consonance with the powers of the Union of India to issue a Notification and the powers of DGFT shall remain confined to issue a Notification under clause 4.13 only in tune with the Notification, if any, issued by the respondent no.1 imposing pre-import conditions for inputs. As to imposition of Actual User Condition by way of public notice, this is well remembered that such an exercise shall also be touching upon the policy decision and, therefore, can be notified only through a Notification in the official Gazette.
7. As regards the prayer made in clause (ii) of the present writ petition in respect to the provisions under paragraph no.4.25 of the Hand Book of Procedure, this needs to be indicated that this is within the domain of the Norms Committee to identify the Standard Input Output Norms (in short, ‘SIONs’) which in its opinion are required to be reviewed. Paragraph no.4.25 clearly mandates that the exporters are required to submit revised data in ANF 4B and the industry/exporter(s) shall provide production and consumption data etc. The requirement regarding production of data and information would be the foundation for taking a decision for review of SIONs and no exception can be taken to such a requirement of calling for data and information by the Norms Committee and the respondent no.2 cannot review SIONs unilaterally without calling the data and information. Therefore, the prayer made at clause (ii) of the present writ petition that the provisions under paragraph no.4.25 of the Hand Book of Procedure should be declared not mandatory is liable to be rejected.
8. The petitioner who claims that he made proper research has failed to produce any material on record except the FTP (2023) and the Hand Book of Procedure (2023) which according to the PIL-petitioner himself are easily available on the website of the respondent no.2. There is no public interest involved in this matter and, in fact, the prayers made in the writ petition if granted would go against the public interest and any such exercise if undertaken by this Court would be beyond the jurisdiction and powers of the writ Court. The PIL-petitioner has also failed to establish his bonafide. There is no material on record to suggest that the petitioner qualifies as a PIL-petitioner as laid down in the Rajasthan High Court Rules which have been framed in compliance of the judgment in “State of Uttaranchal v. Balwant Singh Chaufal & Ors.” (2010) 3 SCC 402.
9. D.B. Civil Writ Petition No. 17806 of 2024 is dismissed.
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