2019 (6) TMI 798 - HC - Customs

Applicability of Notification dated 14.12.2018 issued by the State Government - section 4(1)(b) of the Gujarat Essential Commodities and Cattle (Control) Act, 2005 - prohibition on the export of Livestock - HELD THAT - It is evident that under the guise of exercise of powers under section 4(1)(b) of the Cattle Control Act, the State Government in effect and substance seeks to prevent export of livestock from Tuna Port. This fact is further fortified by the fact that the communication to strictly implement the provisions of the Cruelty to Animals Act and the Transport of Animals Act has been issued only to the Superintendent of Police, Kutch (West). It is not as if in the ordinary course animals would be being transported only in Kutch district, except that insofar as export of livestock is concerned it is only from Tuna Port that such exports take place in the State of Gujarat. Therefore, when it is only the Superintendent of Police, Kutch (West) is instructed to take steps to ensure strict compliance of the provisions of the Transport of Animal Rules by setting up a number of check posts (though neither the Prevention of Cruelty to Animals Act nor the Transport Rules envisage setting up of check posts) and to keep a round the clock vigil, it is evident that the object behind such instructions is to create hurdles in the export of livestock from Tuna Port. Right from August, 2018, under one pretext or the other, the State authorities have been attempting to prevent export from Tuna Port; the communications addressed by the Chief Minister to the Central Minister as well as the letter of the Director of Animal Husbandry which show that both have requested that exports may not be permitted till ACQS facilities are provided; it is only the Superintendent of Police Kutch (West) who has been instructed to set up check posts to ensure compliance of the provisions of the Prevention of Cruelty Act and the Animal Transport Rules; all of which make it manifest that the object behind the issuance of the impugned notification as well as the impugned communications is to prevent export from Tuna Port as the State Government does not have any power to directly prevent exports, export and import being a subject falling in the Union List, this court is of the considered view that the impugned notification has been issued in colourable exercise of powers to do indirectly what cannot be done directly. This court is of the opinion that the impugned notification does not meet with the requirements of section 4(1)(b) of the Cattle Control Act as it has not been issued on the ground that it is expedient or necessary to do so for maintaining the supply or increasing the supply of cattle of for securing equitable distribution and availability at fair prices of cattle - The impugned notification, therefore, clearly has been issued in colourable exercise of powers and deserves to be struck down. Petition allowed.

Issues Involved:
1. Validity of the Notification Dated 14.12.2018 Issued Under Section 4(1)(b) of the Gujarat Essential Commodities and Cattle (Control) Act, 2005.
2. Applicability of the Notification to Cattle in Transit.
3. Allegation of Colorable Exercise of Powers.
4. Requirement of Quarantine Certificate for Export of Livestock.
5. Validity of the Communication Dated 14.12.2018 of the Directorate of Animal Husbandry.
6. Validity of the Communication Dated 14.12.2018 of the Under Secretary, Home Department Addressed to the Superintendent of Police, Kutch (West).

Detailed Analysis:

1. Validity of the Notification Dated 14.12.2018 Issued Under Section 4(1)(b) of the Gujarat Essential Commodities and Cattle (Control) Act, 2005:
The court found that the notification did not meet the requirements of Section 4(1)(b) of the Cattle Control Act, as it did not form an opinion that it was necessary or expedient to regulate the movement of cattle to maintain or increase the supply of cattle. The notification was issued on the grounds that cattle were at stake due to a shortage of fodder and were prone to infectious diseases. The court noted that the Prevention and Control of Infectious and Contagious Diseases in Animals Act, 2009, specifically addresses infectious diseases, making the notification under the Cattle Control Act inappropriate.

2. Applicability of the Notification to Cattle in Transit:
The court held that the notification would not apply to cattle in transit. The Supreme Court's decision in Central India Spg., Wvg. & Mfg. Co. Ltd. v. Municipal Committee was cited, which held that goods in transit could not be considered as imported into or exported from a particular area. The court noted that the Transport of Animals Rules, 1978, requires sufficient food and fodder to be carried during the journey, making the notification's application to cattle in transit unnecessary.

3. Allegation of Colorable Exercise of Powers:
The court found that the notification and related communications were issued in colorable exercise of powers. The history of the case showed continuous efforts by the State to prevent the export of livestock from Tuna Port. The court noted that the Chief Minister's press conference, letters, and the timing of the notification indicated an intention to prevent exports indirectly, which the State could not do directly as import and export are subjects under the Union List.

4. Requirement of Quarantine Certificate for Export of Livestock:
The court noted that the requirement of quarantine certificates is not mandatory unless required by the importing country. The customs authorities confirmed that no statutory provision mandates quarantine for export. The court emphasized that the State Government has no concern with the import-export policy, which falls under the Union List.

5. Validity of the Communication Dated 14.12.2018 of the Directorate of Animal Husbandry:
The court found that the communication from the Director of Animal Husbandry withdrawing certification services was within the State's domain. However, the request to the Commissioner of Customs not to allow export until quarantine facilities were established was beyond the Director's authority and was set aside.

6. Validity of the Communication Dated 14.12.2018 of the Under Secretary, Home Department Addressed to the Superintendent of Police, Kutch (West):
The court held that the communication was issued in colorable exercise of powers with an oblique intention to prevent export from Tuna Port. It was discriminatory as it only targeted Kutch (West) and was not issued for other districts. The court found it violative of Article 14 of the Constitution of India and set it aside.

Conclusion:
The court quashed and set aside the impugned notification and communications, finding them issued in colorable exercise of powers with the intention to prevent export of livestock from Tuna Port. The petition was allowed with no order as to costs. The request to stay the order was declined.

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