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2025 DIGILAW 467 (RAJ)

Nakul Agro v. Union of India

2025-02-20

MUNNURI LAXMAN

body2025
JUDGMENT : MUNNURI LAXMAN, J. This order disposes of the following writ petitions: A. SBCWP No.2502/2024 : 1) This writ petition has been filed challenging the Public Notice dated 08.06.2023 and also subsequent Public Notice dated 14.02.2024. The petitioner herein is the one of the applicant enlisted in the provisional list No.II, which was uploaded on 23.06.2023 B. SBCWP Nos. 9155/2023, 9119/2023, 9156/2023, 9157/2023, 9158/2023, 9159/2023, 9160/2023, 9161/2023, 9162/2023, 9163/2023, 9164/2023, 9166/2023 & 7747/2024: 1) The aforementioned writ petitions have been filed by the petitioners, who are the applicants for grant of permission to import watermelon seeds. Their names could not be found in the provisional list uploaded on 23.06.2023 and they are assailing the Public Notice dated 08.06.2023. The petitioner in S.B. Civil Writ Petition No.7747/2024 also challenged the subsequent third Public Notice dated 09.04.2024. C. FACTS AND SUBMISSIONS: 1) The main grievance of the petitioner in S.B.Civil Writ Petition No.2502/2024 is that even though his name is found in the provisional list No.II, an unfair treatment was given by the respondents in finalizing the import licence vis-a-vis the provisional selected applicants among 217 whose names are found in the provisional list No.I. 2) The learned counsel appearing for the petitioner submitted that the petitioner could not get import permission because of unfair treatment of the persons found in the provisional list No.II vis-a-vis persons found in the provisional list No.I. According to him, in the provisional list No.II, even though he was provisionally selected subject to verification of credentials with regard to processing capacity, they were not allotted any kind of quantity and they were unfairly treated, and no immediate action was taken in pursuance of inspection, which was found to be in favour of the petitioner and thereby intervening circumstance of stay order was passed by this Court in another writ petition. As a result, the petitioner though provisionally selected but for the unfair treatment and delay in action, the petitioner deprived of the benefit under the Import Policy dated 08.06.2023. 3) The petitioners in S.B. Civil Writ Petition Nos.9155/2023, 9119/2023, 9156/2023, 9157/2023, 9160/2023, 9161/2023, 9163/2023, 9166/2023 & 7747/2024 , have challenged the Public Notice dated 08.06.2023. The petitioners are the applicants for grant of permission for importing watermelon seeds and they made applications in compliance of Public Notice No.13/2023 dated 08.06.2023. 3) The petitioners in S.B. Civil Writ Petition Nos.9155/2023, 9119/2023, 9156/2023, 9157/2023, 9160/2023, 9161/2023, 9163/2023, 9166/2023 & 7747/2024 , have challenged the Public Notice dated 08.06.2023. The petitioners are the applicants for grant of permission for importing watermelon seeds and they made applications in compliance of Public Notice No.13/2023 dated 08.06.2023. The petitioners’ claim is that they were holding Food Safety and Standards Authority of India (FSSAI) licence and they are involved in import of watermelon seeds for the past many years. Further, they also have own processing capacity and they fulfill all the conditions of the Public Notice dated 08.06.2023. In spite of fulfilling all the conditions, the petitioners’ names were not found in the provisional list, which was uploaded on 23.06.2023. On the said background, they have filed the present writ petitions, in which interim orders were passed on 07.07.2023 and on subsequent dates staying the further action based on the provisional list, which was uploaded on 23.06.2023. 4) The main contention of the learned counsel appearing for the petitioners is that they imported watermelon seeds for the years 2020-2021, 2021-2022, 2022-2023. Further, they have own processing capacity. Therefore, they are entitled for weightage as prescribed under Condition No.3 of the Public Notice. In spite of having such eligibility, their names were not found in the provisional list. 5) Mr. R.D.Rastogi, learned Additional Solicitor General assisted by Mr. B.P. Bohra, Sr. CGPL, Mr. Devesh Yadav, CGC and Mr. Vaibhav Bhansali, Adv. appearing for the respondents contended, in S.B.Civil Writ Petition No. 2502/2024, that the prayer in the writ petition has become infructuous since the Policy period has expired and new policies were also brought in and there was a Free-Policy from 05.04.2024 upto 30.06.2024 whereunder maximum unlimited permissions were given for importation of watermelon seeds. According to him, the persons who had missed the benefit under the impugned Public Notice, could have imported the watermelon seeds under the Free-Policy, dehor the previous entitlement on account of intervening circumstance not attributable to the respondents. 6) It is also his submission that the respondents have put one of the petitioner’s name among 6 persons, who were enlisted under the provisional list No.II uploaded on 23.06.2023 and no quantity could be allotted on account of verification of credentials with regard to processing capacity of the petitioner. 6) It is also his submission that the respondents have put one of the petitioner’s name among 6 persons, who were enlisted under the provisional list No.II uploaded on 23.06.2023 and no quantity could be allotted on account of verification of credentials with regard to processing capacity of the petitioner. After verification, the credentials were found to be correct and meanwhile, interim orders passed on 07.07.2023 were communicated, thereby they could not proceed further by granting appropriate permission for importation of watermelon seeds unlike 217 petitioners, whose names were found in the provisional list No.I. 7) The contentions of learned counsel appearing for the petitioners in S.B.Civil Writ Petition Nos.9158/2023, 9159/2023, 9162/2023 and 9164/2023 are that the petitioners have fulfilled all the criteria for importation of watermelon seeds in terms of Public Notice dated 08.06.2023 and their names were also found in provisional list No.I. However, the quantity allotted were less than entitlement and the same was fixed without considering the actual user basis and the processing capacity. According to learned counsel, such applicants are entitled for more quantity of watermelon seeds. 8) Learned Additional Solicitor General contended in S.B. Civil Writ Petition Nos.9155/2023, 9119/2023, 9156/2023, 9157/2023, 9160/2023, 9161/2023, 9163/2023, 9166/2023 & 7747/2024 , that ex parte orders were obtained even without impleading the persons whose names were found in the provisional list as party-respondent in the writ petitions. Without hearing them, no interim orders could have been passed. 9) It is the further contention of learned Additional Solicitor General that some of the applicants were ineligible for 30% weightage for the year 2020-2021, 2021-2022, 2022-2023 as no satisfactory material was placed, showing such consecutive importation of watermelon seeds. The next contention of the learned ASG is that in the scrutiny the authorities found that FSSAI licence is not clear with regard to the processing capacity of watermelon seeds and that licence was consolidated licence, which cannot be said to be indicative of separate capacity of watermelon, which is required to be submitted for fulfilling the condition of Public Notice. 10) The learned ASG also submitted that since the Policy has not existing, even the claim of the writ-petitioners found to be sustainable, no direction can be given to issue permission beyond the time-limit prescribed under the policy then existing. 10) The learned ASG also submitted that since the Policy has not existing, even the claim of the writ-petitioners found to be sustainable, no direction can be given to issue permission beyond the time-limit prescribed under the policy then existing. He also submitted that some of the petitioners have availed the benefit of free importation and watermelon seeds, which were introduced subsequently and any requirement, which they have got from the impugned Public Notice, had an opportunity to avail the benefit of free importation. In fact, such opportunities were availed and therefore, no question of interference at this stage by giving direction to re-frame the policy by extending the time-limit arises. 11) The learned ASG refuted the contention of the learned counsel appearing for the petitioners whose names were found in the provisional list No.I. According to him, the quantity has been prescribed proportionate to the actual user basis as well as the processing capacity and also number of applicants. The quantity was proportionately allotted. There is no illegality in the allocation of watermelon seeds. 12) The petitioners in all the writ petitions are seeking directions to quash the Public Notice dated 08.06.2023 and in one of the petitioner’s case i.e. SBCWP No.2502/2024, the Public Notice issued subsequently dated 14.02.2024 was also assailed. In another SBCWP No.7747/2024 apart from challenging of above two Notifications, the subsequent third Public Notice dated 09.04.2024 was also challenged. 13) The issue in S.B.Civil Writ Petition No.2502/2023 is that the petitioner’s name was found in the provisional list No.II and no quantity was allotted in the said provisional list unlike 217 persons, who were allotted quotas under the provisional list. The difference in two lists is that in the first list, credentials were verified in advance. Whereas, in the second list, credentials could not be verified at the time when the list was prepared. However, they were provisionally enlisted, subject to verification of credentials with regard to processing capacity. 14) The learned counsel appearing for the petitioners, whose names were not found in both the provisional lists have submitted that they have fulfilled all the conditions of Public Notice. However, their names were not found in the provisional list and according to learned counsel, exclusion of the petitioners’ name is contrary to requirements and is unsustainable. 14) The learned counsel appearing for the petitioners, whose names were not found in both the provisional lists have submitted that they have fulfilled all the conditions of Public Notice. However, their names were not found in the provisional list and according to learned counsel, exclusion of the petitioners’ name is contrary to requirements and is unsustainable. He further submitted that on account of stay, the provisional list No.II could not be finalized and quantity left thereunder can be directed to be proportionately distributed in the event of success of the petitioners in the writ petition. Alternative submission of the learned counsel for the petitioners is that in the event this Court is not inclined to interfere in the matter, at least the respondents may be directed to refund their licence fee. 15) The learned Additional Solicitor General appearing for the respondents in all writ petitions, has submitted that since the policy was expired, 217 persons were already granted final import permission and they have imported, the permission could not be issued to only 6 persons who were found in the provisional list No.II on account of intervening circumstance of the order passed by this Court on 07.07.2023 and subsequent interim orders in other writ petitions. 16) It is also his submission that the petitioners whose names were not found in the provisional list, they did not fulfill the criteria of weightage of 30% as they were not having any data of importation for the relevant three consecutive years prior to the year of Public Notice. It is also his submission that FSSAI licence was not indicative of bifurcation of processing capacity. D. CONCLUSIONS: 17) I have considered the contentions and claims made in all the writ petitions. All the petitioners have made an application under the Public Notice dated 08.06.2023 and that policy was vogue upto 31.10.2023. The Policy conditions require production of FSSAI licence to determine the processing capacity of the applicants. Apart from that, a C.A. certificate with regard to overall turnover of the applicants and also turnover of watermelon seeds are required to be provided. The petitioners in all the writ petitions, whose names were not found in the provisional list, have submitted the FSSAI licence. Apart from that, a C.A. certificate with regard to overall turnover of the applicants and also turnover of watermelon seeds are required to be provided. The petitioners in all the writ petitions, whose names were not found in the provisional list, have submitted the FSSAI licence. According to the learned ASG appearing for the respondents, the petitioners’ name could not be found in the provisional list on account of two reasons: the first reason is that they are not getting weightage of 30% since they do not have three consecutive years’ criteria of importation; secondly, as such, they are also not fulfilling the criteria of 70% weightage, which was based on the processing capacity since FSSAI licence was not indicative of individual processing capacity of watermelon seeds. 18) It appears from the material on record that the petitioners are not having any data with regard to importation of watermelon seeds for three consecutive years immediate to the Public Notice year. Therefore, they cannot be said to be entitled for 30% weightage. 19) The second ground for non-inclusion was attributable to non-indicative of processing capacity of watermelon in FSSAI licence. The persons, whose names were enlisted, have submitted the certificate from the Chartered Accountant with regard to overall turnover and turnover of the watermelon seeds and their FSSAI licences are non-indicative of separate processing capacity for watermelon seeds. They were similarly fulfilling the conditions like the petitioners and they were selected in the provisional list. Therefore, rejection of the petitioners’ claim for consideration of 70% weightage basing on the processing capacity was not correctly done. Though they may not have been entitled for 30% weightage on account of lack of material showing the importation of watermelon seeds for three consecutive years, their claim for licence of import cannot be completely rejected, at least, they fall under the 70% weightage and they could not have some quantity of the seeds in proportionate to the number of candidates applied for importation. In this regard, action of the respondents for non-inclusion of the petitioners is required to be declared unsustainable. 20) The fact remains that the Policy was in force upto 31 st October, 2023. For one reason or another, the matters could not be taken up before the Policy period was expired. In this regard, action of the respondents for non-inclusion of the petitioners is required to be declared unsustainable. 20) The fact remains that the Policy was in force upto 31 st October, 2023. For one reason or another, the matters could not be taken up before the Policy period was expired. Once Policy period expired, even though the action of the respondents were found to be unsustainable in not including the petitioners in the provisional list, however, no direction can be granted to the respondents to re-frame policy by extending the cut-off date for importation. Therefore, no such relief can be granted to the petitioners even they are able to establish that they are eligible to be included in the provisional list for the quantity proportionate to their entitlement basing on the weightage. 21) Similarly, the petitioner whose name was found in the second provisional list but for delay and on account of the intervening circumstance of stay, though he was eligible for importation within the Policy period, is deprived on account of unfair treatment by the respondents vis-a-vis 217 candidates. On account of unfair treatment due to the delay in verifying the credentials of processing capacity and the intervening circumstances intervened thereby, the respondents were unable to process for grant of import licence on account of interim orders passed by this Court. In the similar line, the petitioner is though successful in demonstrating his entitlement under the Policy, however, no direction can be issued to the respondents to re- frame the policy by extending the condition of policy. Therefore, such relief cannot be granted. 22) In S.B.Civil Writ Petition Nos. 9158/2023, 9159/2023, 9162/2023 and 9164/2023 , the petitioners, who are seeking more quantity than allotted quantity though they were claiming for more quantity, but they are not able to demonstrate how they are entitled for more quantity than allotted quantity and the contention of learned ASG clearly indicates that the quantity has been allotted basing on the actual user basis processing capacity. There is no clear ground in the entire writ petitions indicating how they are entitled for more quantity. They have only relied upon quantities mentioned in C.A. report and they are not able to give any clear indication about actual processing capacity. There is no clear ground in the entire writ petitions indicating how they are entitled for more quantity. They have only relied upon quantities mentioned in C.A. report and they are not able to give any clear indication about actual processing capacity. Further, the petitioners have not impleaded other allotees of provisional list No.I as party-respondents in the writ petition, even though they are affected parties if any variations in the quantities are to be considered. Therefore, the prayer for seeking extra allotment cannot be well sustained and the same is rejected. 23) The other fact is that in the subsequent policy, which has come into force from 05.04.2024 and valid upto 30.04.2024, the free importation was allowed. The aggrieved persons, who have been deprived of impugned policy, could have availed the benefit of free importation to set off the loss caused to them. Some of the petitioners seem to have availed. 24) The contention of the petitioners’ in S.B. Civil Writ Petition Nos.2502/2024, 9155/2023, 9119/2023, 9156/2023, 9157/2023, 9160/2023, 9161/2023, 9163/2023, 9166/2023 & 7747/2024 is that at least, the respondents may be directed to refund the licence fee. Since the Import Policy do not allow them to return the licence fee because the fee was only for processing. In spite of their success in demonstrating their entitlement under the Policy, if no relief is granted at least they cannot be deprived of getting back their licence fee. If the licence fee is not returned, there would be double penalty for no fault of the petitioners. In the said circumstances, this Court finds justification in the claim made by the petitioners. Admittedly, the petitioners demonstrate that they were entitled to importation under the said Policy but for unfair action of the respondents, they lost opportunities to import and the action of the respondents found to be at fault. If such is a case, the petitioners cannot be double penalized on the one hand by not allowing the importation though entitled and on the other hand by forfeiting their licence fee. Therefore, the aforesaid petitioners are held to be entitled for the licence fee, even though import Policy do not allow the respondents to refund the same. If such is a case, the petitioners cannot be double penalized on the one hand by not allowing the importation though entitled and on the other hand by forfeiting their licence fee. Therefore, the aforesaid petitioners are held to be entitled for the licence fee, even though import Policy do not allow the respondents to refund the same. 25) In the aforesaid circumstances, the writ petitions are disposed of as follows:- (i) The prayer to quash the Public Notices dated 08.06.2023, 14.02.2024 and 09.04.2024 is dismissed; (ii) The respondents are directed to refund the licence fee to the petitioners except petitioners in SBCWP Nos.9158/2023, 9159/2023, 9162/2023 and 9164/2023. 26) In the circumstances, no order as to costs. 27) Pending interlocutory applications, if any, shall stand disposed of.