Imposing Penalty of Five Times of Regular Fee on Non-Fumigation of Timber with Methyl Bromide under PQ Order, 2003 is Unconstitutional: Gujarat HC [Read Judgment]

The Gujarat High Court has recently, while allowing a writ petition, held that imposing penalty of 5 times the regular fees upon the appellants, under Clause 14 (2),Chapter VI of the Plant Quarantine Order (Regulation of Import into India), 2003, is arbitrary, unreasonable and violate of the fundamental rights guaranteed under Article 19(g) of the Constitution of India.

The aforesaid observation was made by the court when writ petitions were filed by the petitioners, a group of timber wood importers, against the action of demand of penalty of 5 times the regular fees by the respondent officials, by way of an Office Memorandum demanding the same, on account of the fumigation process to be undertaken by using Methyl Bromide for the imports of timber.

The petitioners submitted before the court that despite the admitted fact of all the petitioners having the requisite certificate of fumigation issued by the officials of the exporting country, the respondent authority treats the sameto be invalid, for the reason that they do not meet with the standards or parameters as prescribed by India. and hence that

The claim of the respondent authority, on the other hand, is that the petitioners failing to meet the prescribed Indian standard,are to once again treat the timber with fumigation by Methyl Bromide,andin the view of such objection, pay the charges of fumigation as well as the penalty.

Opposing the same, it was argued by the petitioners that the right to be engaged in the trade/business of importing timber,being protected by virtue of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India, the same can be restricted only by a valid law made by the legislature, not by an executive fiat in the nature of the impugned memorandum.

“It is the solemn and constitutional obligation of the Court to examine that in the framing of a policy, no law is violated and that people's fundamental rights are not transgressed upon, except to the extent permissible under the Constitution. Unquestionably, in the present case, the impugned Regulation and the subsequent OMs do not satisfy the principles of rationality and they infract the fundamental rights of the petitioners guaranteed under Article 19(g) of theConstitution of India. Hence this Court, in exercise of powers conferred under Article 226, has the explicit authority to set aside the same.

The impugned Regulation 14(2) of the Plant Quarantine (Regulation to Import into India) Order, 2003 of Chapter-VI is thus declared as arbitrary and unreasonable, and in violation of fundamental rights guaranteed under Article 19(g) of the Constitution of India to the extent it stipulates charging of fees of five times of normal rates, and the same is quashed and set aside to the said extent”- Justice A. S. SUPEHIA commented, allowing the writ petitions.

To Read the full text of the Order CLICK HERE

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