Case BriefsSupreme Court

Supreme Court: In a dispute between Central Warehousing Corporation(CWC) and Adani Ports Special Economic Zone Limited (APSEZL) over 34 acres of land wherein the Ministry of Commerce and Industry (Ministry of C & I) and the Ministry of Consumer Affairs, Food and Public Distribution (Ministry of CAF&PD) had taken contradictory stands, the bench of BR Gavai* and CT Ravikumar has observed that the two departments of the Union of India cannot be permitted to take stands which are diagonally opposite. The Court has hence asked the Union of India to evolve a mechanism to ensure that whenever such conflicting stands are taken by different departments, they should be resolved at the governmental level itself.

The Issue relates to 34 acres of land that was leased to CWC for setting up a warehouse. The lease was to continue till 2031. For the uninitiated, CWC set up by the Government of India in the year 1957 to provide support to the agricultural sector by operating warehouses and Container Freight Stations across the country.

However, vide notification dated 23rd June 2006 issued by the Ministry of C & I, a vast area came to be notified as a Special Economic Zone (SEZ). CWC made a representation to the Ministry of C & I for delineation/denotification of the said 34 acres of land from the SEZ and till the year 2017, there was no obstruction to CWC in utilizing the said area.

It was Adani Ports Special Economic Zone Limited (APSEZL)’s case that CWC had not obtained and complied with all approvals, consent and permits under the applicable law pertaining to the sub-leased premises and hence, it had taken a decision of discontinuing the issuance of gate-passes, and further that it would not permit CWC to continue the warehousing activities.

Being aggrieved, CWC filed the first writ petition before the Gujarat High Court but since the Single Judge of the High Court did not grant an interim relief while issuing notice, CWC went on to file an LPA.

Meanwhile, the Ministry of C & I rejected the request of CWC to delineate/denotify the said land. Being aggrieved thereby, CWC filed the second writ petition before the High Court.

While the Ministry of C&I has been taking a stand that the delineation/denotification was not permissible, the Ministry of CAF&PD took a contrary stand by stating that CWC had fulfilled its obligations as per the agreement dated 2nd June 2004 for warehousing activities. It is also the stand of the said Ministry that APSEZL has included the subleased premises of CWC in the SEZ areas by suppressing the facts. The communication by the Ministry of CAF&PD clearly stated that the view of the Ministry of C&I that there was no possibility of delineation/denotification was not a correct stand and that there are also precedents of such partial denotifications taking place.

Concerned with the diagonally opposite stands taken by two ministries of the Union of India, the Court observed that it does not augur well for the Union of India to speak in two contradictory voices. The two departments of the Union of India cannot be permitted to take stands which are diagonally opposite.

The Court, hence, directed the Registry to furnish a copy of the judgment to the Attorney General for India to do the needful and suggested the Union of India to evolve a mechanism to ensure that whenever such conflicting stands are taken by different departments, they should be resolved at the governmental level itself.

On the facts of the case, the Court has set aside the judgment passed by the Division Bench of the High Court and has remitted the matter back to the Single Bench and has directed expeditious disposal of matter within 6 months.

[Central Warehousing Corporation v. Adani Ports Special Economic Zone Limited, 2022 SCC OnLine SC 1398, decided on 13.10.2022]


*Judgment by: Justice BR Gavai


For CWC: Senior Advocate Maninder Singh

For APSEZL: Senior Advocate Shyam Divan

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In an appeal filed challenging the judgment passed by the Single Judge whereby the writ petition of the Appellant was dismissed on the ground that it was not maintainable as Gems & Jewellery Export Promotion Council (GJEPC) did not fall within the ambit of State under Article 12, a Division Bench of Satish Chandra Sharma CJ., and Subramonium JJ., held that the writ petition would not be maintainable as the GJEPC, does not fall within the ambit of “State” and “other authorities” under Article 12 as GJEPC does not satisfy any of the requirements or tests laid down by various Judgements of the Supreme Court for establishing whether or not an authority can be deemed to be a “State” under Article 12 or not.

The Court noted that Article 12 should not be stretched so as to bring in every autonomous body which has some nexus with the government within the sweep of the expression “State”. The State control, however vast and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The combination of State aid coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is “State”.

Placing reliance on Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 and Zee Telefilms. Ltd. v. Union of India, (2005) 4 SCC 649, the Court observed that the control that must be exercised by the State over the authority should be pervasive in nature to the extent that the authority should have limited autonomy. These are the broad guidelines that must be borne in mind when venturing into the question as to whether or not a certain authorities can be termed to be a “State”.

Thus, the Court analyzed MoA, AoA and other documents to discern whether GJEPC can be brought within the net of “other authorities” for the purpose of Article 12 and observed that a deep dive into the AoA and MoA of the GJEPC only brings forth the understanding that the GJEPC is a nodal agency, meant to mediate between exporters of gems and jewellery, and the Central Government.

The Court further noted that the function performed by the GJEPC cannot be termed as “public duty” and any administrative or financial hold that the Central Government is deemed to have over GJEPC is far from pervasive. The GJEPC retains its autonomous character and it is the CoA which not only looks after the affairs of the GJEPC, but is also empowered to make rules and regulations with regard to conditions of service, appointment, elections, etc. GJEPC does not satisfy any of the requirements or tests laid down by various Judgements of the Supreme Court for establishing whether or not an authority can be deemed to be a “State” under Article 12.

The Court thus, held that the impugned judgement wherein it was held that the writ petition would not be maintainable as the GJEPC does not fall within the ambit of “State” and “other authorities” under Article 12 of the Constitution of India, is legally firm and does not require any interference on the part of this Court.

[Jitarani Udgata v. Union of India, 2022 SCC OnLine Del 3449, decided on 17-10-2022]


Advocates who appeared in this case:

Mr. Anoop Chaudhari & Ms. June Chaudhari Senior Advocates with Mr. Samarth Chowdhary, Advocate, for the Appellants;

Mr. Vivekanand Mishra & Mr. Aayushmaan Vatsyayana, Advocates, for the Respondent 1.

Mr. Jayant Mehta, Senior Advocate with Mr. Aman Raj Gandhi, Mr. Vardaan Bajaj & Mr. Abhishek Tiwari, Advocates, for the Respondent 2.


*Arunima Bose, Editorial Assistant has put this report together.

Legislation UpdatesRules & Regulations

On 13-07-2022, the Ministry of Commerce and Industry has issued the Special Economic Zones (Third Amendment) Rules, 2022 to further amend the Special Economic Zones Rules, 2006. A new Rule 43A has been introduced which provides that a Unit may permit its employees, including contractual employees, to work from home or from any place outside the Special Economic Zone.

Key points:

  • The Unit must submit its proposal for work from home to the Development Commissioner through email or physical application, which must contain the terms and conditions of work from home, including the date from which the permission for work from home shall be utilised and the details of the employees to be covered by such permission for work from home.
  • The Development Commissioner, if satisfied that the proposal complies with this rule, may grant the permission to the proposal of the Unit which shall be valid for a period of one year from the date of such permission.
  • The Development Commissioner may, on receipt of an application for extension of the permission, if he is satisfied with the proposal and that the Unit and its employees have complied with this rule, extend the permission for such period, not exceeding one year at a time.
  • Every proposal for permission of work from home or an application for extension of the permission shall be submitted, at least fifteen days in advance, to the Development Commissioner, except in case of the employees who are temporarily incapacitated or travelling.
  • The proposal for work from home shall cover a maximum fifty per cent of the total employees, including contractual employees, of the Unit and the Unit shall maintain accurate attendance record for the entire period of permission for work from home and shall submit to the Development Commissioner, from time to time.
  • The Development Commissioner may approve a higher number of employees to work from home for any bona-fide reason to be recorded in writing.
  • A Unit, where, its employees are working from home or from any place outside the Special Economic Zone on the date of commencement of the Special Economic Zones (Third Amendment) Rules, 2022 shall submit its proposal for permission to the Development Commissioner within ninety days from the date of such commencement.
  • The work to be performed by the employee permitted to work from home under this rule shall be as per the services approved for the Unit, and the work is related to a project of the Unit.
  • The Unit shall ensure export revenue of the resultant products or services to be accounted for by the Unit to which the employee is tagged.
  • Where an employee ceases to be part of the project of the Unit, the employee shall be untagged from the Unit and the Unit shall surrender the identity card.
  • The Unit may provide to an employee such goods, including laptop, computer, video projection system, other electronic equipment and secured connectivity (for virtual private network, virtual desktop infrastructure) to establish a connection between the employee and work related to the project of the unit with the prior permission of the Specified Officer to temporarily remove such goods to the Domestic Tariff Area without payment of duty or integrated goods and services tax, subject to the following procedure.

Legislation UpdatesRules & Regulations

The Ministry of Commerce and Industry has issued the Static and Mobile Pressure Vessels (Unfired) (Amendment) Rules, 2021 on August 31, 2021. These Rules amend the Static and Mobile Pressure Vessels (Unfired) Rules, 2016 in the following manner:

  • New definitions of the following have been inserted:
    1. “Competent Person” would mean a person recognised by the Chief Controller, for carrying out tests, examinations, certification for installations and transport vehicles as stipulated in these rules provided the person possess the qualifications and experience and other requirements as set out in Appendix IIA to these rules and the recognition is granted as per procedure laid down in Rule 12. The Chief Controller has the power to relax the requirements of qualifications in respect of a competent person if such person is exceptionally experienced and knowledgeable.
    2. “ISO Tank Container”, means as a tank container which includes two basic elements, the vessel and the framework, suitable for the carriage of compressed gas for conveyance by road, rail and sea, including interchange between these forms of transport and complies with requirements of ISO 1496.
    3. “Third Party Inspection Agency”, defined as a professional organisation recognised by Chief Controller to carry out inspection, certifications, testing including safety audit of major accident hazards premises as defined under the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989.
  • A new sub rule has been inserted under Rule 47(7) which states that the district authority will grant no objection certificate or convey his refusal for granting no objection certificate with reasons in writing to the applicants within two months.
  • Rule 61 has been substituted and states that when a licence granted under these rules is lost or accidentally destroyed, system generated copy may be downloaded by the licensee from online portal of Petroleum and Explosive Safety Organization.


*Tanvi Singh, Editorial Assistant has reported this brief.

Legislation UpdatesNotifications

Taking steps towards the Prime Minister’s vision of making India a global manufacturing hub for sale & exports of toys, Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry has devised a comprehensive action plan with steps being taken to boost production & sale of indigenous toys across the country.

Quality Control order has been issued by the Department for standardization and quality adherence of Toys.

The order will come into effect from 1st January, 2021.  This order aims to bring forward the synergized efforts of the GoI, states and the stakeholders to promote ‘Team up for toys’ vision keeping quality standards of the indigenous toys as the priority.

Now, as a part of the initiatives being taken to provide impetus to the medium, small and micro toy production units in the country, DPIIT has released Toys (Quality Control) Second Amendment Order, 2020. It exempts goods manufactured & sold by artisans registered with Development Commissioner (Handicrafts), from use of Standard Mark under licence from Bureau of Indian Standards, as per Scheme1 of Schedule-II of BIS(Conformity Assessment)Regulations,2018.

The Amendment Order 2020, also exempts products registered as Geographical Indications from following Indian Toy Standards & compulsory use of Standard Mark licence from Bureau as per Scheme 1 of Schedule-II of BIS(CA)Regulations,2018. The Gazette notification issued by the department says that “nothing in this Order shall apply to goods or articles manufactured and sold by Registered proprietor and Authorised user of a product registered as Geographical Indication by the Registrar of Geographical Indications, Office of Controller General of Patents, Designs and Trademarks (CGPDTM)”


Ministry of Commerce & Industry

[Press Release dt. 12-12-2020]

Hot Off The PressNews

The Department for Promotion of Industry and Internal Trade, Ministry of Commerce and Industry, Government of India has recently awarded Geographical Indication (GI) to five varieties of Indian coffee. They are:

  • Coorg Arabica coffee is grown specifically in the region of Kodagu district in Karnataka.
  • Wayanaad Robusta coffee is grown specifically in the region of Wayanad district which is situated on the eastern portion of Kerala.
  • Chikmagalur Arabica coffee is grown specifically in the region of Chikmagalur district and it is situated in the Deccan plateau, belongs to the Malnad region of Karnataka.
  • Araku Valley Arabica coffee can be described as coffee from the hilly tracks of Visakhapatnam district of Andhra Pradesh and Odisha region at an elevation of 900-1100 Mt MSL. The coffee produce of Araku, by the tribals, follows an organic approach in which they emphasise management practices involving substantial use of organic manures, green manuring and organic pest management practices.
  • Bababudangiris Arabica coffee is grown specifically in the birthplace of coffee in India and the region is situated in the central portion of Chikmagalur district. Selectively hand-picked and processed by natural fermentation, the cup exhibits full body, acidity, mild flavour and striking aroma with a note of chocolate. This coffee is also called high grown coffee which slowly ripens in the mild climate and thereby the bean acquires a special taste and aroma.

The Monsooned Malabar Robusta Coffee, a unique specialty coffee from India, was given GI certification earlier.

In India, coffee is cultivated in about 4.54 lakh hectares by 3.66 lakh coffee farmers of which 98% are small farmers. Coffee cultivation is mainly done in the Southern States of India:

  • Karnataka – 54%
  • Kerala – 19%
  • Tamil Nadu – 8%

Coffee is also grown in non-traditional areas like Andhra Pradesh and Odisha (17.2%) and North East States (1.8%).

India is the only country in the world where the entire coffee cultivation is grown under shade, hand-picked and sun-dried. India produces some of the best coffee in the world, grown by tribal farmers in the Western and Eastern Ghats, which are the two major bio-diversity hotspots in the world. Indian coffee is highly valued in the world market and sold as premium coffee in Europe.

The recognition and protection that comes with GI certification will allow the coffee producers of India to invest in maintaining the specific qualities of the coffee grown in that particular region. It will also enhance the visibility of Indian coffee in the world and allow growers to get the maximum price for their premium coffee.

[SOURCE: PIB]

Ministry of Commerce and Industry