VIC NIVAS AGENCY Vs. UNION INDIA

JUDGEMENT

(1.) By consent of all the parties main writ petition itself is taken up for disposal. Aggrieved by the Office Memorandum dated 18-11-2002 of the second respondent, fixing fresh guidelines, the petitioner has filed the above Writ Petition to quash the same and direct the respondents to follow the guidelines issued in the Office Memorandum of the second respondent dated 6-9-2002.

(2.) The case of the petitioner is briefly stated hereunder: The petitioner firm is a registered partnership firm carrying on business as handling Agents for Metal and Minerals Trading Corporation Limited ('MMTC' in short), a Central Government company for Tuticorin and Visakapattinam Ports. The petitioner handles wheat exports on behalf of MMTC Ltd. As per the contract entered into by the petitioner with MMTC, the petitioner has to collect the wheat sent by them to Visakapattinam and Tuticorin ports from the Railway yard and load the same in ships. Since wheat is an agricultural produce, any export requires clearance from the 2nd respondent. The clearance certificate issued by the 2nd respondent for the said purpose is called phytosanitary Certificate. This is done to ensure that the wheat meant for export is free from insects. In order to ensure that the cargo is free of insets, the cargo is fumigated on board the vessel. Aluminium phosphide is used to fumigate the wheat cargo. In order to regulate as board fumigation, the 2nd respondent issued guidelines on 6-9-2002 whereby the 2nd respondent allowed on board fumigation of the cargo subject to certain conditions. It is clear that fumigation should be done only once and it should be done on board the vessel. This is also clear from the letter of the importer. As per the guidelines issued by the 2nd respondent, 3rd and 4th respondents were allowing on board fumigation of the wheat meant for export. By proceedings dated 18-11-2002, the second respondent issued a fresh set of guidelines. As per clause 3 of the guidelines issued by the 2nd respondent, a certificate to the effect that the entire quantity of the grain is fumigated at the place of procurement with aluminium phosphide not more than 8-10 days just prior to procurement, should be produced to enable on board fumigation of wheat. The said clause 3 is wholly un-workable and cannot at all be complied with by the exporter or its agent. The entire purchase and sale of wheat meant for export is handled by Food Corporation of India and the wheat meant for export is in the custody of the Food Corporation of India till it is delivered to the petitioner at the Railway yards either at Vishakapattinam or at Tuticorin as the case may be. As such it is not humanly possible for the petitioner or its principal MMTC Ltd., to produce such certificate contemplated in clause 3 of the guidelines issued by the 2nd respondent; hence the present writ petition.

(3.) On behalf of the respondents, Deputy Director (Entomology), Government of India, Regional Plant Quarantine Station, Meenambakkam, Chennai-27, has filed a counter affidavit disputing various averments made by the petitioner wherein it is stated that Phytosanitary Certificates are issued for export of agricultural commodities only after necessary inspection/treatment of the commodity to ensure it is free from pest infestation. The said certificates are issued in accordance with the quarantine requirements of the importing country so as to meet the international obligation as required under the International Plant Protection Convention. The Ministry of Agriculture has notified various functionaries of the Directorate of Plant Protection, Quarantine and Storage (PPQ&S) for undertaking inspection and issuance of the Phytosanitary Certificates. They have major responsibility of not only preventing the exotic plant pests/diseases into India but also ensuring that certified plants and plant materials exported are free from the pests of concern to the importing country. The samples of grain drawn are subject to visual inspection to ensure free from quarantine pests, if any and also subject to x-ray examination to detect hidden infestation. Only stocks that are conforming to quarantine regulations of importing country are fumigated and permitted for loading into the vessel. It is prime concern to ensure that the stocks are presented insect-free condition prior to loading of the consignment and this can be achieved only through the initial fumigation of the cargo at the place of procurement. Subsequently, on-board fumigation of cargo is carried out as additional safeguard measure to prevent escape of cross-infestation. It is done in the best national interest and to meet the requirement of pest-free export of wheat which is in conformity with international agreements such as WTO agreements. The guidelines issued by the Directorate of PPQ and S dated 18-11-2002 are valid and self-contained in each respect and the same are to safeguard the interests of the country's export and its standard in International market.