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TMI Blog2016 (3) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no public interest involved. It appears that the impugned notice is only an attempt to distribute the country cap in view of the large number of applications. Therefore, the object is only commercial. It could be seen that even an importer, who continuously imports for a period of two years, would be in a disadvantageous position than the one who did it for the preceding three financial years out of the total five financial years. Therefore, even though there was no import for two financial years out of five financial years, such an importer will gain predominant position as against others. By applying the decision of the Division Bench of Madras High Court in the case of Hotel & Bar (FL.3) Association of Tamil Nadu Vs. The Secretary to Government & another [2015 (5) TMI 138 - MADRAS HIGH COURT] and the decision of Apex Court in the case of Subramanian Swamy Vs. Director, Central Bureau of Investigation and another [2014 (5) TMI 783 - SUPREME COURT] and Reliance Energy Ltd. Vs. Maharashtra State Road Development Corporation Limited [2007 (9) TMI 409 - SUPREME COURT OF INDIA], the impugned public notice cannot be sustained in the eye of law. While there is a permissibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory 'A' and Category 'B' of importers in the last 5 financial years. Other importers shall be categorized under Category 'B' and allotted the balance amount of provisional quota after the allocation is done to the category A as aforesaid. 4. As per the said public notice No.PS-7/2015 issued from File No. F.No.XVI/13/13/N/PS/CC/2015 dated 14.09.2015, applicants in category 'A' shall be allowed to register sale contracts for the quality applied for or two hundred and seventy MT (270 MT), which ever is less, whereas an applicant in Category 'B' shall be allowed to register sale contracts for the quantity applied for, or one hundred and eighty MT (180 MT) which ever is less. All the applicants are requested to register by submitting their sale contracts in original to the Central Bureau of Narcotics along with applications for the quantities applied for. It was made clear that the registration of sales contract will be only issued for import to the extent of provisional country cap fixed for the financial year 2015-16. If the quantity available for allocation to applicants under category 'A' is insufficient, the selection would be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import. Even in Category 'B', more imports have been made as against category 'A' in many cases. In other words, some of the importers in Category 'A' have imported less over the years as against the others in Category -B. Thus, merely based upon number of years of import, the classification made cannot be sustained. In the above said decision, The Karnataka High Court has not considered the scope of Article 14. In support of his contention, the learned Senior Counsel has made reliance upon the following citations: 1. Delhi Development Authority Vs. Joint Action Committee, Allottee of SFS Flats and others, ((2008) 2 SCC 672); 2. Subramanian Swamy Vs. Director, Central Bureau of Investigation and another, ((2014) 8 SCC 682); 3. Union of India Vs. N.S.Rathnam and Sons, ((2015(322) E.L.T. 353 (SC) and 4. Reliance Energy Ltd. Vs. Maharashtra State Road Development Corporation Limited, ((2007) 8 SCC 1). 7. Mr.Rajnish Pathiyal, learned Senior Central Government Standing Counsel appearing for respondents No.1 to 3, Mr.G.Rajagopal, Additional Solicitor General appearing for respondent No.4 and the learned counsel appearing for the private res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting for more number of years that will not go as an added advantage. They would not become a regular traders as against the others. Such a classification as regular traders against non-regular on such a basis cannot stand to scrutiny of law. A new entrant may not even dream of going into the category 'A' and he is not even sure of getting an allotment of Category 'B' before getting an entry into Category 'A'. There is no concept of merit come in the classification merely based upon the years of import. Such a classification cannot be termed as a valid discrimination. There is no difficulty in appreciating the decision to fix the country cap. In the impugned order, majority of the importers would be under the mercy of the few. The classification sought to be made would lead to monopoly, which in turn, would create an atmosphere of hostile discrimination. The impugned notice also does not reveal any reasons. There is no material to hold that there is a proper distribution of poppy seeds only through category 'A' exporters. Therefore, there is no public interest involved. It appears that the impugned notice is only an attempt to distribute the country ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are permissible classifications. An objective must be a just one. It is a sine qua non for classification. A valid classification is a valid discrimination. A classification without reference to the object sought to be achieved would be hit by Article 14. Such a classification should not be arbitrary, artificial or evasive. In other words, it must confine to rationality. 20. While dealing with the classification qua the constitutional validity of a statute, a Court of law is required to deal with the facts which made the legislation in classifying a group. However, when the object of the classification itself is discriminatory, then there is no need to go into the classification. Court are required to afford larger latitude to the legislature in its exercise of classification. In other words, what is reasonable is a question of practical approach. While testing the policy underlying the statute, the intended object is to be ascertained.'' 13. In Subramanian Swamy Vs. Director, Central Bureau of Investigation and another, ((2014) 8 SCC 682), the Apex Court has held as follows: ''58. The Constitution permits the State to determine, by the process of cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f level playing field is an important doctrine which is embodied in Article 19(1)(g) of the Constitution. This is because the said doctrine provides space within which equally-placed competitors are allowed to bid so as to subserve the larger public interest. Globalization , in essence, is liberalization of trade. Today India has dismantled licence-raj. The economic reforms introduced after 1992 have brought in the concept of globalization . Decisions or acts which results in unequal and discriminatory treatment, would violate the doctrine of level playing field embodied in Article 19(1)(g). Time has come, therefore, to say that Article 14 which refers to the principle of equality should not be read as a stand alone item but it should be read in conjunction with Article 21 which embodies several aspects of life. There is one more aspect which needs to be mentioned in the matter of implementation of the aforestated doctrine of level playing field . According to Lord Goldsmith - commitment to rule of law is the heart of parliamentary democracy. One of the important elements of the rule of law is legal certainty. Article 14 applies to government policies and if the policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted by the respondents, but it cannot be characterized as illegal or arbitrary.'' 18. Therefore, this Court is unable to persuade itself to accept the decision rendered therein. While there is a permissibility of latitude, it cannot be said that exclusion of importers on artificial classification can be justified in the eye of law. It is further to be seen that the very purpose of classification itself is for the reason that it is impossible to satisfy all the importers. This Court is also of the considered view that the decision aforesaid has not taken into consideration of the concept of ''level playing field''. 19. Having found that the impugned notice cannot be sustained in the eye of law, this Court is not inclined to undertake the role of the 4th respondent. It is for the said respondent to evolve a better procedure, which could be sustained in the eye of law, providing for a level playing field to the importers. It is further to be seen that the impugned notice in effect puts an end to the agreement entered between the importers and the exporter from Turkey and therefore a better policy is certainly needed as it involves civil consequences. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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