Allowed

A.S. Impex v. M/S.Shree Durga Traders

Karnataka HC7 Nov 2019WA/100538/2019

Case brief

AI extract

What is this about?

This appeal concerned the locus standi of an appellant whose application for registration of a sales contract was stayed via an ex parte interim order. Distinguishing a previous precedent, the Court held that since the appellant was not impleaded and was affected adversely by the order passed without hearing, the appeal was allowed. The interim order was quashed regarding the appellant, and they w

What did the court decide?

The interim order dated 24.10.2019 was quashed insofar as it pertains to the appellant; appellant was directed to be impleaded as a respondent.

A.S. Impex Vs M/S.Shree Durga Traders — Constitutional and Fundamental Rights | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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Dated this the 7^th day of November 2019

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Present

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THE HON’BLE MR.JUSTICE ALOK ARADHE

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and

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THE HON’BLE MR.JUSTICE P.G.M. PATIL

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Writ Appeal No.100538 of 2019 (GM-RES)

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BETWEEN

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A.S. IMPEX, SOLE PROPRIETORSHIP OF MR.RUTUPARNA DOLE, S/O DHANANJAY DOLE, AGED ABOUT: 40 YEARS, HAVING OFFICE AT GAT NO.440 AND 450/1, POST SAHAJPUR, TQ: DAUND, DIST: PUNE, MAHARASHTRA. ...APPELLANT

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(BY SRI. DHYAN CHINNAPPA, SENIOR COUNSEL AND SMT. SUMANGALA A.CHAKALABBI, ADVOCATE)

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A N D

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M/S. SHREE DURGA TRADERS P. BLOCK, PLOT NO.51, APMC AMARGOL, HUBLI-580025, REPRESENTED BY ITS PARTNER, SRI.MUKESH MAHAJAN. S/O SITARAM MAHAJAN, AGE: 46 YEARS.

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UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110001.

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THE DIRECTOR DIRECTORATE GENERAL OF FOREIGN TRADE (DGFT), UDYOG BHAVAN, H-WING, GATE NO.02, MAULANA AZAD ROAD, NEW DELHI-110011.

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THE NARCOTICS COMMISSIONER CENTRAL BUREAU OF NARCOTICS, 19, THE MALL, MORAR, GWALIOR-474006. ...RESPONDENTS

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(BY SRI. M.I. ARUN, ADVOCATE FOR SRI VIDYASHANKAR G.DALAWAI, ADVOCATE FOR C/R1 SRI. M.B.KANAVI, CGSC FOR R2 TO 4)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING THIS HON'BLE COURT TO CALL FOR RECORDS PERTAINING TO W.P. NOS.114748-114750/2019; AND TO SET ASIDE THE ORDER DATED 24.10.2019 PASSED IN W.P.NOS.114748-114750/2019 (IMPUGNED ORDER), IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING, ALONG WITH I.As., THIS DAY, ALOK ARADHE, J, MADE THE FOLLOWING:

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ORDER

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Heard on I.A. No.1 of 2019, an application

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seeking permission to file the appeal.

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Learned Senior Counsel for the appellant submitted that the appellant is the person aggrieved by the ad-interim order dated 24.10.2019 passed by the learned single Judge in W.P. Nos.114748-114750 of 2019 and therefore, the appellant ought to have been impleaded. However, the learned single Judge, in the absences of the appellant and, without realising the fact that the writ petition suffers from the vice of non-joinder of necessary parties, has passed the interim order restraining the respondents from registering the sales contract for import of Poppy seeds from China pursuant to the public notice dated 04.10.2019. It is submitted that the respondent No.1 himself has annexed the list of persons whose applications for registration were pending pursuant to

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the impugned advertisement and therefore, in all fairness, the respondent No.1 should have impleaded the aforesaid persons as the interim order operates to the prejudice of the appellant.

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Learned Senior Counsel for the appellant has further submitted that Section 4 of the Karnataka High court, 1961 enables a person who is aggrieved by an order passed by the learned single Judge to file an appeal and since the appellant is a person aggrieved by the impugned order passed by the learned single Judge, the appellant should be permitted to file an appeal.

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Resisting the aforesaid submission made by

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learned Senior Counsel for the appellant, learned counsel for the respondent No.1 has invited the attention of this Court to a Division Bench decision of this Court in Jestmal Vs. Deputy Commissioner, Bengaluru, and has submitted that a person, who is not a party to a writ petition, cannot file an appeal

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against the order passed in the writ petition and therefore, the appellant has no locus to challenge the ad interim order passed by the learned single Judge.

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By way of rebuttal, learned Senior Counsel for the appellant submits that the aforesaid decision relied upon by the learned counsel for the respondent No.1 has no application to the fact situation of the case.

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We have considered the submissions made on both sides and have perused the record. Admittedly, from perusal of the application filed by the respondent No.1 before the learned single Judge and in particular Annexure-V annexed with it, it is evident that it contains the list of the persons whose applications for registration in response to the public notice dated 04.10.2019 are pending consideration. Thus, the respondent No.1 was fully aware with regard to the persons who are likely to be affected by the

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impugned order. By the impugned order passed by the learned single Judge, the process of registering sales contract for import of Poppy sees from China in response to the public notice has been stayed. Thus, the appellant has been adversely affect by the impugned order. The appellant has not been impleaded as a party in the writ petition and the impugned order has been passed without affording an opportunity of being heard to him.

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Since the impugned order has been passed

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without affording any opportunity of hearing to the appellant, therefore, in our considered opinion, the appellant being aggrieved person has right to challenge the impugned order in this appeal. It is pertinent to mention here that in the case of Jestmal (supra), challenge was made to Government Order and the writ petition was disposed of. Thereafter, the persons who were not parties to the case file an appeal against the order passed in the writ petition on the

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ground that the disposal of the site in question by the government in favour of respondent No.3 was injurious to public interest and as citizens they are entitled to question the legality of the Government order. In the aforesaid context, a Division Bench of this Court in the aforesaid case has observed that the appellants in that appeal had no locus to file an appeal against the judgment in question in which the nature of cause of action pleaded by each of the petitioner was personal. The aforesaid decision is clearly distinguishable in the fact situation of the case and since the appellant is aggrieved person and the impugned order has been passed without affording an opportunity of hearing to it, we are inclined to allow I.A. No.1/2019. Accordingly, the appellant is permitted to file this appeal.

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The appeal is admitted for hearing. With the consent of the parties, the same is heard finally.

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Learned Senior Counsel for the appellant submitted that in response to the public notice dated 04.10.2019, the appellant had submitted an application for registration of the sales contract. It is further submitted that along with an application, the respondent No.1 had filed the list of persons whose application for registration were pending and the respondent No.1 was fully aware that in case an interim order is passed, the same would be adversely affecting the persons whose applications for registration were pending in response to the public notice dated 04.10.2019. However, the appellant was not impleaded as a respondent in the writ petition deliberately. Learned Senior Counsel for the petitioner has invited the attention of this Court to the averments made in paragraphs 3 and 23 of the writ petition and has submitted that admittedly, the petitioner has no sales contract with the Government of China and has not even submitted an application for

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registration in response to the public notice dated 04.10.2019. It is further submitted that the Chinese Government has authorized one Gansu Puankang Pharmaceutical Co., Ltd. as the authorized representative and therefore, the condition has been incorporated that the sales contract has to be executed with the aforesaid Gansu Puankang Pharmaceutical Co., Ltd. It is further submitted that no

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part of cause of action has arisen within the jurisdiction of this Bench of the Court and the respondent No.1 cannot merely file writ petition on the ground that he carries on the business within the territorial limits of this Court.

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Learned Senior Counsel for respondent No.1 submitted that the public notice dated 04.10.2019 itself contains the stipulation that sales contract has to be executed with M/s. Gansu Puankang Pharmaceutical Co., Ltd. It is submitted that the aforesaid requirement contained in the public notice is contrary to the import

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policy which provides that an importer shall produce an appropriate certificate from the competent authority for export country that opium has been grown legally in that country. It is also submitted that the aforesaid public notice has been issued with the sole intention to benefit the persons like appellant. It is also urged that the circular issued by the respondents No.2 and 3 cannot contravene the import policy and M/s. Gansu Puankang Pharmaceutical Co., Ltd. is not an authorized person and, in any case, authorization of single individual is in violation of the import policy as well as the violation of the constitutional guarantee contained in Articles 14 and 19(1)(g) of the Constitution of India.

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It is urged that the respondent No.1 is registered and in this connection, our attention has been invited to certificate of importer/exporter code and reference has also been made to sales contract from Turkey. It is also urged that since an ex parte interim order has

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been passed by the learned single Judge, this intracourt appeal should not be entertained and the appellant should be relegated to the remedy of filing an application for impleadment before the learned single Judge and to seek vacation of the interim order.

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Learned counsel for the respondents No.2 and 3 has submitted that, in pursuance of the public notice dated 04.10.2019, the petitioner did not submit any application and M/s Gansu Puankang Pharmaceutical Co., Ltd. is the authorized representative of the Chinese Government. It is further submitted that the respondent No.1 is not registered with the Narcotics Commissioner. Learned counsel for respondent Nos.2 and 3 has also submitted that guidelines have been issued in exercise of powers under Section 9-A of the Narcotics Drugs and Psychotropic Substances Act, 1985.

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11. We have considered the submission made

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on both sides and have perused the record.

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Though submissions on merits of the matter

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have been made by learned counsel for the parties, we are conscious of the fact that the scope of the appeal is limited as the same is directed against an ex parte interim order. The respondent No.1 has filed an application along with which Annexure-V has been filed subsequently before the learned single Judge which discloses the names of the persons whose applications for registration are pending for sales contract for import of the Poppy seeds, which are submitted in response to the public notice dated 04.10.2019. In other words, the respondent no.1 was aware about the persons who applications were pending for registration of sales contract for import of the Poppy seeds in response to the public notice dated 04.10.2019. However, the aforesaid persons were not impleaded as respondents in the writ petition. The learned single

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Judge has passed an ex parte order dated 24.10.2019 by which the respondents have been restrained from registering the sales contract for import of Poppy seeds from China pursuant to the public notice dated 04.10.2019.

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Since the matter is sub-judice before the learned single Judge and has come up before us only against an ex parte interim order, therefore, we do not intend to deal with the merits of the case as the same has to be dealt with by learned single Judge. However, the fact remains that the impugned order dated 24.10.2019 passed by the learned single Judge adversely affects all the parties whose applications are pending for registration in response to the public notice dated 04.10.2019. The aforesaid persons have not been impleaded as respondents in the writ petition. The aforesaid order aversely affects the persons including the appellant whose applications are pending in response to the public notice dated

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04.10.2019. In other words, the impugned order has an adverse impact on the persons who are vitally interested and have stakes in the matter as their applications for registration for sales contract are pending for registration in response to the public notice dated 04.10.2019. Since the impugned order has been passed without hearing the parties including the appellant, which would be adversely affecting it’s interests, and the impugned order, in fact, tantamounts to violation of principles of natural justice, we are inclined to quash the order dated 24.10.2019 insofar as it pertains to the appellant herein and direct the respondent no.1 herein to implead the appellant has respondent in the writ petition. It is made clear that this Court has not expressed any opinion on the merits of the case.

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Let necessary amendment be carried out in the writ petition on or before 18^th of November 2019.

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We request the learned single Judge to

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afford an opportunity of hearing to the petitioner as well as to the appellant herein who shall be impleaded as respondent and request him to take up the prayer for consideration of interim relief on 19^th November 2019.

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With the aforesaid directions, this writ appeal is disposed of.

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Sd/JUDGE

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Sd/JUDGE

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Kms

A.S. Impex v. M/S.Shree Durga Traders

Case brief

What is this about?

What did the court decide?

A.S. Impex v. M/S.Shree Durga Traders

Case brief

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What did the court decide?

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