RAJAN CASHEW COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) By this common order we propose to dispose of four connected Writ Appeals bearing Nos. 1635, 1637, 1707 and 1768 of 2005 as they emanate from a common impugned judgment rendered by a learned single Judge in W.P. (C) No. 648 of 2004 and connected cases Rajan Cashew Co., Maranadu and Ors. v. Union of India and Ors. dated 24.6.2005. Learned Counsel for the parties also suggested likewise. The brief facts that, however, need necessary mention have been extracted from W.A. No. 1635 of 2005 emanating from W.P. (C) No. 648 of 2004.

(2.) The appellants, as per the case set up by them, are engaged in the export of cashew kernels. Raw cashew nuts are processed in the factories and converted into kernels. This processing involves roasting raw cashew nuts at a very high temperature, shelling, drying in hot chamber, peeling and grading. Thousands of workers are stated to be engaged in the process and the processing is being done in the factories situated at different locations in Kollam, Pathanamthitta and Thiruvananthapuram districts. Appellants are stated to be earning substantial foreign exchange for the country by the export of cashew kernels. More than 80% of the raw cashew nuts required for the processing in the factories are imported from African countries and Indonesia whereas only 20% is produced from domestic markets. The first appellant is stated to have recently entered into a Sale and Purchase agreement with M/s. Ste B.P.S. (Corte D'lvoire) SA Limited for the import of 200 Metric tones of raw cashew nuts of Tanzanian origin of the crop of the year 2003. Pursuant to the application preferred by the first appellant a permit for the import of raw cashew nuts of Tanzanian origin has been issued by the Ministry of Agriculture. As laid down in Section 3(21) of the Plant Quarantine (Regulation of Import into India) Order, 2003 (hereinafter referred to as Order of 2003), a Phytosanitary Certificate issued by the authorized officer at the country of origin of the consignment has also been obtained. Other appellants have also entered into contracts with foreign sellers for the purchase of raw cashew nuts. As required by the Regulation relating to import, the requisite permits and Phytosanitary certificates relating to those consignments have been obtained by them. The Destructive Insects & Pests Act, 1914 (hereinafter referred to as Act of 1914) was promulgated by the Indian Government to prevent the introduction into India and the transport from one State to another of any insect, fungus or other pests which is or may be destructive to crops. Section 3 of the Act of 1914 empowers the Union of India-first respondent herein to prohibit or regulate subject to such restrictions and conditions concerning the import into India of any article likely to cause infection to any crop. Section 3(3) of the Act of 1914 also empowers the Central Government to issue notification to levy and collect such fees at such rates and in such manner as may be specified therein for making an application for permit to import or for making inspection, fumigation, disinfection, disinfestation or supervision of any article or class of articles or any insect or class of insects. Section 4(d) of the Act of 1914 also empowers the Central Government to issue notification-making rules prescribing the nature of the documents which would accompany any article the export or transport thereof, is subject to conditions imposed under Section 4A of the Act of 1914 or which shall be held by the consignor or consignee thereof, the authorities which may issue such documents and the manner in which the documents shall be employed. The first respondent had, in purported exercise of the power under Section 3(1) of the Act of 1914, promulgated the Plants, Fruits and Seeds (Regulation of Import to India) Order, 1984 (hereinafter referred to as Order of 1984) which was substituted by the Plants. Fruits and Seeds (Regulation of Import into India) Order, 1989 (hereinafter referred to Order of 1989). The Order of 1989 was repealed in the year 2003 by the promulgation of the Plant Quarantine (Regulation of Import into India) Order, 2003 (hereinafter referred to as Order of 2003). Clause 2 of the Order of 2003 deals with the definitions of certain words and expressions including 'Fruit', 'Pest', 'Seed' etc. Clause 3 of the Order of 2003 stipulates the general condition for import including application for permits, issue of permits, consignments imported to be accompanied by an official Phytosanitary Certificate issued by the competent authority of the exporting country etc. Other procedures to be complied with are stipulated in Clause 3 including payments to be made towards inspection, fumigation, disinfection by the Plant Protection Advisor or any other duly authorized officer and further that the importer shall pay to the Plant Protection Advisor, the fees prescribed in Appendix IX. The case of the appellants is that the Order of 2003 cannot be made applicable to the import of raw cashew nuts, since raw cashew nuts do not come under the definition of 'plant', 'seed' or 'fruit'. Appellants, it is stated, have been complying with the requirements for the purpose of taking delivery of the consignments with the least possible delay. It is further the case of the appellants that the Order of 2003 and the provisions contained therein do not apply to raw cashew nuts. In Clause 2(xix) 'plant' is defined as follows:

(3.) On the facts as narrated above what was urged before the learned Single Judge and which has been repeated and reiterated before us is that Section 3 of the Act of 1914 authorizes the Government of India to prohibit or regulate by notification import into India any article or class of articles likely to cause infection to any crop. The appellants are importing raw materials for their industry which has nothing to do with agricultural or other crop and, therefore, the import of cashew nuts for processing in the cashew factories will in no way cause any infection to any crop. Thus if the Rules are made applicable to cashew nuts it will be ultra vires to Section 3 of the Act of 1914. The appellants also relied upon the definition of 'seed' under Rule 2(1) and raised a contention that the said definition will not take in cashew nuts. Rule 2(1) of the Rules reads as follows: