TaxTMI 
TaxTMI 
2019 (6) TMI 798
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.....2018 by the Respondent No.6 - Agriculture, Farmers' Welfare and Cooperation Department (Annexure-A), communication dated 14.12.2018 by the Respondent No.7 - Directorate of Animal Husbandry to the Respondent No.1 - Commissioner of Customs (Annexure-B), communication dated 14.12.2018 by the Respondent No.5 - Home Department to the Police Superintendent, Kuchch (West), Gandhidham (Annexure- C). (D) THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondent Authorities to permit export of the livestock through Tuna Port of the Deendayal Port Trust as was being permitted earlier and in pursuance to the order dated 30.11.2018 passed by this Hon'ble Court in Special Civil Application No.17433 of 2018 and order dated 6.12.2018 passed in Special Civil Application No.17424 of 2018. (F) THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondent No.5-Home Department to make sure through the Superintendent of Police, Kuchchh (West) Gandhidham, that the transporters of the livestock are not harassed by the so-called animal right activist and officers of the Directorate of Animal Husbandry." 2. This petition arises in the backdrop of the following facts:- ....
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....pondent customs authorities without any objection. Therefore, the petitioners made an application to the Traffic Manager of the Deendayal Port Trust to gate in the livestock, but at that point of time, the Traffic Manager of the Deendayal Port Trust did not permit to gate in the livestock and, therefore, Let Export Order (LEO) could not be issued and livestock could not be exported. 2.4 Being aggrieved by the continuous denial of permission to gate in the livestock and non-consideration of various representations made by the petitioners to the Traffic Manager of Deendayal Port Trust, on 29.10.2018, the petitioners made an application being Civil Application No. 2 of 2018 in Special Civil Application No.12462 of 2018 for further orders and directions against the respondents therein including the Traffic Manager of the Deendayal Port Trust. In view of the filing of the civil application, the Traffic Manager of Deendayal Port Trust acceded to the request of the petitioners and granted permission to export the livestock as per the directions of this court in its order dated 18.9.2018. Accordingly by an order dated 27.11.2018, the civil application came to be disposed of. 2.5 Afte....
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....a Port with immediate effect and on the same day, that is, 14.12.2018, the Agriculture, Farmers' Welfare and Cooperation Department issued a notification in exercise of powers conferred by clause (b) of sub-section (1) of section 4 of the Gujarat Essential Commodities and Cattle (Control) Act, 2005 (hereinafter referred to as "the Cattle Control Act") prohibiting movement of any cattle from outside into any drought affected area. 2.8 On the same day, by a letter dated 14.12.2018, the Director of Animal Husbandry, Gujarat State, informed the Commissioner of Customs that the Government of Gujarat has decided to withdraw the services provided for health checkup of live animals with immediate effect as they are not as per the norms prescribed in the letters referred to therein. That, they are also requesting the Government of India for setting up of required quarantine facility at Tuna, Kandla Port at the earliest. He further urged the Commissioner of Customs not to allow export of live animals from Tuna, Kandla Port of Gujarat, until specified facility for Animal Quarantine and Certification is established by the Department of Animal Husbandry, Dairying and Fisheries, Governmen....
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....West), Gandhidham whereby it was requested that it may be ensured by the Superintendent that the rules and norms are properly followed and for that purpose check post must also be created and the said check post must ensure that all documents and other requirements for the purpose of any movement of animals is in place. 3.1 It is further stated that the petitioners have contended that as far as the issue of quarantine of live animals is concerned, the same is not mandatory as the country of export, that is, UAE does not mandate any quarantine certification as they themselves carry out the same and it has also been contended that as far as quarantine certification is concerned, it is only mandatory for the import of live animals as per the circular dated 2.3.2007 issued by the Central Board of Excise and Customs, and that if the notifications and communications Annexures A, B and C are permitted to be operated, it would adversely affect the interest of those involved in the activity of export of live animals, that is, sheep and goats which are freely exportable under the provisions of Foreign Trade (Development and Regulation) Act, 1992 and Foreign Trade Policy, 2015-2020. 3.2....
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.... thus, it does not merely include quarantine that is raised as an issue. Had it been the case that only the quarantine aspect would have been the consideration, the petitioners' contention that the live animals are to be exported to UAE, would have had any substance, however, even the health check-up, which otherwise is required to be carried out as per the norms and the same falls under the authority of the Union of India. It is further averred that since the specified and required facilities prescribed in the above communication for export of live animals are not available for animal quarantine and certification services either at Tuna- Kandla Port or anywhere in Gujarat State, the Government of Gujarat decided to withdraw the services provided for health check up with immediate effect. 3.4 It is further averred that in terms of the communication dated 10.9.2018 of the Ministry of Agriculture and Farmers 'Welfare through its Department of Animal Husbandry, Dairying, Fisheries (Trade Unit) Delhi addressed to the Animal Husbandry Department, as many as eight requirements are required to be fulfilled for the purpose of export of live animals which includes the internation....
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....jarat has withdrawn such certification. 3.5 Insofar as the communication addressed to the Superintendent of Police is concerned, it is stated that it is only with a view to ensure that no illegality is committed in transporting the animals so as to ensure that there is no cruelty to the animals as per the Prevention of Cruelty to Animals Act, 1960 especially section 32 thereof which empowers search and seizure and, therefore, also, the said communication can also not be termed as contrary to law as the powers are vested under the said Act. Reliance has also been placed upon the decision of the Supreme Court in the case of Animal Welfare Board of India v. A Nagraja, (2014) 7 SCC 547. 4. In response to the affidavit-in-reply, the petitioners have filed a rejoinder, wherein it has been inter alia stated that health certificates/fit to travel certificate of animals are issued under rule 2(a) and rule 65(a) of the Transport of Animals Rules, 1978 framed under the Prevention of Cruelty to Animals Act, 1960 and under section 30(c) of the Indian Veterinary Council Act, 1984. Moreover, the same are issued for transport of livestock through road or train and, therefore, are not at all ....
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....said Act came to be repealed in 1992 by the Foreign Trade (Development and Regulation) Act, 1992. Moreover, the "Export Trade Control' was replaced with the Export Import (EXIM) Policy, which is now called the "Foreign Trade Policy" and is revised from time to time, and such revised policies are notified at the interval of every five years. At present, the Foreign Trade Policy 2015-2020 is in force, whereas the latest Export Policy 2018 has been notified on 31.1.2018 and the same is required to be adhered to and followed. It is the case of the petitioners that the notifications dated 19.9.1983 and 19.7.1985 under "Export Trade Control" in Import and Export Policy 1983-84 under the provisions of the now repealed Imports and Exports (Control) Act, 1947 being obsolete, redundant and inconsistent with the present Foreign Trade (Development and Regulation) Act, Foreign Trade Policy of 2015-2020, Export Policy 2018 are not all relevant and the provisions contained therein are of no consequences. 4.2 It is further averred that the fifth respondent Home Department has directed the Superintendent of Police, Kutch (West), Gandhidham to set up check points to enable and facilitate the ....
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....quarantine formalities and exporters produce contract (in original) to this effect to the licensing authority. It is further stated that in the past export consignments were cleared on the basis of health/ quarantine certificates issued by the local Veterinary Officer of Anjar having jurisdiction over the Tuna Port and, therefore, clearance of past consignments cannot be compared with the present situation when the respondent No.7 has withdrawn the quarantine and health checkup services for want of adequate facilities. 6. An additional affidavit has been filed on behalf of the respondent No.6, wherein a copy of the guidelines framed by the Bureau of Indian Standards for Transport of Livestock called "Transport of Livestock Code of Practice 2007, a copy of Transport of Animal Rules, 1978 framed by the Central Government under section 38(2)(h) of the Prevention of Cruelty to Animals Act, 1960, a copy of the Prevention of Cruelty to Animals Act, 1960, a copy of the decision of the Supreme Court in the case of Animal Welfare Board v. A. Nagaraja (supra) and relevant guidelines with reference to certification by OIE have been placed on record. It is averred that even if the importing....
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....ght affected area and cannot control inter-State or intra- State movement. It was submitted that to fall within the ambit of the impugned notification, the cattle must be coming to the drought affected area as a terminal point whereas in case of the petitioners, the livestock are only required to pass through and, therefore, the State cannot rely upon the impugned notification to stop exports. It was argued that the Cattle Control Act notification can have no application to restrain exports as it would amount to giving extra territorial jurisdiction. 7.2 It was pointed out that by the impugned communication dated 14.12.2018 of the Directorate of Animal Husbandry, Gujarat State, the services delegated by the Central Government to the State authority have been withdrawn to create a situation whereby certificates cannot be issued and, therefore, exports cannot be made. It was submitted that the withdrawal of animal quarantine and certification services (AQCS) is deliberate, with a view to create a situation to block exports without authority. It was submitted that the delegate withdrawing the power vested in him is unknown. It was contended that the sudden withdrawal of certificati....
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....ion, but in colourable exercise of powers to indirectly block exports as the subject of import and export falls within the domain of the Central Government and the State Government has no authority to regulate exports. It was, accordingly, urged that the impugned notification as well as the impugned communications having been issued in colourable exercise of powers are required to be set aside and the petition deserves to be allowed. 8. Vehemently opposing the petition, Mr. P.K. Jani, learned Additional Advocate General appearing on behalf of the respondent State authorities, submitted that the State Government under section 4(1)(b) of the Cattle Control Act has taken a conscious decision that there is shortage of fodder and drinking facility. Satisfaction is recorded that movement of cattle from area outside the drought affected area to the drought affected area should be prohibited. It was submitted that by virtue of the said notification there shall be no entry of cattle to the drought affected area, which would mean even by way of transportation. It was submitted that the petition calls in question the notification dated 14.12.2018 issued under section 4(1)(b) of the Cattle ....
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....ned Additional Advocate General, once the requirements of section 4(1)(b) of the Cattle Control Act are satisfied, the maintenance of cattle and availability is part of section 4(1)(b). It was submitted that if there is concentration of large number of animals in the drought affected area, it would strain fodder and drinking water as well as other things, and, therefore, entry of such cattle into drought affected area is restricted. It was submitted that the submission of the petitioner that it is a transit route cannot be accepted for the reason that fifty one talukas of the State have been declared drought affected and it is not possible to supervise, manage or administer the entry and exit points to determine transit with entries from all corners being open. 8.3 It was urged that the State Government notification dated 14.12.2018 is issued because of drought and scanty rainfall and is not a permanent prohibition but for a limited period of time till the drought situation improves. Such regulatory measures are intended for maintaining cattle in drought affected areas of fifty one talukas of different districts in the State. It was contended that such power having been exercise....
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....o the exercise of finding out whether there could be more appropriate or better alternatives. Once the parameters of article 14 are satisfied, there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review. The court concluded that in a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court. 8.7 It was submitted that while judicially reviewing the validity of the notification, the same may be considered in the light of delegated legislation and not administrative action. 8.8 It was submitted that insofa....
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.... any customs area for the purpose of being exported, contrary to any prohibition imposed by or under that Act or any other law for the time being in force. According to the learned Additional Advocate General, any other law for the time being in force would include a law of the State as well as the notification dated 14.12.2018 issued in exercise of powers under section 4(1)(b) of the Cattle Control Act. It was urged that the exercise of powers by the State Government is in accordance with law, though the same may incidentally affect the petitioners. It was submitted that the impugned notification has not been issued to prevent export of livestock but to prevent movement of cattle into drought affected areas. Therefore, even export is subject to section 113 of the Customs Act, which does consider prohibition and restriction of other laws. If other law prohibits then the goods attempted to be exported can be confiscated. 8.12 As regards the contention that the impugned communication has been issued in colourable exercise of powers, it was submitted that consequent to the notification dated 30.10.2018 for declaring drought affected areas based on the facts mentioned therein, the S....
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.... the exports are governed by the new policy, the substantial issue in the petition regarding requirement or otherwise of quarantine certificate would not survive. It was submitted that as per the procedure prescribed by the Government, there is no requirement of quarantine certificate and certificate as required can be given by a qualified veterinarian. No other customs or import export procedure seems to be mandatory. It was submitted that in viewof the Foreign Trade Policy 2015-2020, the earlier notifications are rendered non-operative and it is only the requirement of importing country which is required to be seen inasmuch as AQCS is not mandatory unless the importing country requires the same. It was submitted that insofar as phyto-sanitary and sanitary measures are concerned, the same are required to be complied with wherever they are required and that AQCS may not be considered as an impediment to export of livestock. 10.1 Dealing with submissions advanced by the learned Additional Advocate General, it was submitted that according to the petitioners, the notification dated 14.12.2018 issued under the Cattle Control Act does not apply to them at all as they are not bringing....
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.... It was submitted that in effect and substance, exports would be blocked till 31st August, 2019. 10.5 As regards the contention that the action of the State is in consonance with the Directive Principles of State Policy, it was submitted that by virtue of article 162 of the Constitution, the executive power of the State is co-terminus with the legislative power. It was submitted that Entry 41, List I of the Seventh Schedule to the Constitution of India which relates to import and export finds place in the Union List and, hence, it is the Parliament which has exclusive power to legislate in that regard and therefore, the executive power in respect of import and export vests in the Central Government. It was contended that by resorting to the Directive Principles of State Policy, the State Government cannot encroach upon the power of the Central Government. 10.6 As regards the decisions on which reliance has been placed by the learned Additional Advocate General, it was submitted that the same would have no applicability to the facts of the present case. Insofar as reliance placed upon article 253 of the Constitution which relates to legislation for giving effect to internation....
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....he tumultuous dark clouds of vigilantism have the effect of shrouding the glorious ways of democracy and justice leading to tragic breakdown of the law and transgressing all forms of civility and humanity. Unless these incidents are controlled, the day is not far when such monstrosity in the name of self-professed morality is likely to assume the shape of a huge cataclysm. It is in direct violation of the quintessential spirit of the rule of law and of the exalted faiths of tolerance and humanity. 19. Mob vigilantism and mob violence have to be prevented by the Governments by taking strict action and by the vigil society who ought to report such incidents to the State machinery and the police instead of taking the law into their own hands. Rising intolerance and growing polarisation expressed through spate of incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country. Good governance and nation building require sustenance of law and order which is intricately linked to the preservation of the marrows of our social structure. In such a situation, the State has a sacrosanct duty to protect its citizens f....
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....ablish that the impugned notification has not been issued for the purpose stated therein but for the oblique purpose of preventing exports, which makes it clear that the impugned notification has been issued in colourable exercise of powers. 12.1 On behalf of the respondents, the learned Additional Advocate General submitted that the State Government under section 4(1)(b) of the Cattle Control Act has come to a conscious decision that there is shortage of fodder and drinking facility and has recorded satisfaction that movement of cattle from outside area to the drought affect area should be curtailed. It was submitted that when the notification says that cattle are at stake, it means that maintenance of cattle is at stake due to short availability of fodder which would affect the maintenance of cattle. It was further submitted that the State Government has issued the notification dated 14.12.2018 because of the drought which is not a permanent prohibition, but is for a limited period of time till the drought situation improves. Such regulatory measures are intended for maintaining cattle in drought affected areas of fifty one talukas of different districts in the State and that ....
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....ent, supply and distribution of or trade and commerce in, or for regulating the maintenance of cattle." 12.7 On a perusal of sub-section (1) of section 4 of the Cattle Control Act, it emerges that a condition precedent for the purpose of exercise of powers thereunder is that the State Government has to form an opinion that for maintaining or increasing the supply, or for equitable distribution and availability at fair prices of an essential commodity or cattle, it is necessary and expedient to do so. Upon forming such opinion, in case of essential commodities, the provisions of clause (a) can be resorted to, and in case of cattle, the provisions of clause (b) can be resorted to. 12.8 Since this case relates to cattle, it is permissible for the State Government to issue a notification under section 4(1) (b) of the Cattle Control Act, upon forming an opinion that for the purpose of maintaining or increasing the supply, or equitable distribution and availability at fair prices of cattle, it is necessary and expedient so to do, to make an order providing for regulating or prohibiting movement, supply and distribution of or trade and commerce in, or for regulating the maintenance ....
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....n 4 of the Cattle Control Act requires the State Government to first form an opinion that it is necessary and expedient so to do for maintaining or increasing the supply, or for equitable distribution and availability at fair prices of cattle, whereafter it can pass an order for regulating the maintenance of cattle. Without recording an opinion as envisaged in sub-section (1) of section 4 of the Cattle Control Act, the question of making an order regulating the maintenance of cattle does not arise. Therefore, while the notification provides for regulating the maintenance of cattle, the condition precedent for making such order has not been satisfied, which renders the impugned notification unsustainable in law as not being in consonance with the statutory provision under which it has been issued. 12.12 Apart from the fact that the condition precedent for exercise of powers under sub-section (1) of section 4 of the Cattle Control Act is not satisfied, one of the reasons for issuing such notification is that cattle have become prone to infectious diseases. Insofar as the second reason viz. cattle have become prone to infectious diseases is concerned, it may be pertinent to note th....
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.... to any disease affecting any species of animals, no animal belonging to that species shall be moved from the place where it is kept. (2) The Director may, for the purpose of control, prevention or eradication of any scheduled disease, in respect of any area, by order published in the Official Gazette, prohibit the movement of all animals belonging to any species specified therein, from the place where it is kept, to any other place. (3) Nothing contained in sub-sections (1) and (2) shall be deemed to prohibit- (a) the movement of any animal referred to therein, from the place where it is kept, to the nearest place where it can be got vaccinated, so long as the animal is being moved for the purpose of its immunization by vaccination; or (b) the movement of any such animal, so long as it is accompanied by a valid certificate of vaccination to indicate that the animal is duly immunized against the particular disease and it bears proper mark of such vaccination." 12.13 On a bare reading of the above provisions, it is clear that in case of infectious and contagious diseases steps have to be taken under that Act and not under the Cattle Control Act....
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....hat cattle cannot be brought into the drought affected area if such area is the terminal point where the cattle are to be kept, but since the petitioners are bringing livestock in the drought affected area during the course of transit and the terminal point is not within the drought affected area, the impugned notification would not be applicable to them. Reliance was placed upon the decision of the Supreme Court in Central India Spinning and Weaving & Manufacturing Co. Ltd. v. Municipal Committee, AIR 1958 SC 341 wherein it has been held thus: "5. The High Court was of the opinion that "The words 'export' and 'import' have no special meaning. They bear the ordinary dictionary meaning, which has been the foundation for the decisions to which I have referred in the opening portion of my opinion. These words mean only 'taking out of and bringing into' " The appellant's contention is that the words "imported into or exported from" do not merely mean "to bring into" or to carry out of or away from but also have reference to and imply the termination or the commencement of the journey of the goods sought to be taxed and therefore goods in transit which are tra....
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.... or fact of passing across or through; passage or journey from one place or point to another: the massage or carriage of persons or goods from one place to another: it also means to pass across or through (something) to traverse, to cross. Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods "imported into or exported from" because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur. 9. The respondent's counsel sought to support his argument by referring to the following cases decided by various Indian High Courts where the words 'import" and "export" were construed as meaning "bring in" or "take out of or away from" and it was also held that goods in transit are also covered by the words 'imported into" or exported from '. 22. By giving to the words "imported into or exported from" their derivative meaning without any reference to the ordinary connotation ....
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....) of section 38 of the Prevention of Cruelty to Animals Act, 1960, which apply to transport of sheep and goats. These rules are applicable to the transport of sheep and goats by rail or road involving journeys of more than six hours. Rule 70 thereof, provides that sufficient food and fodder shall be carried to last during the journey and watering facility shall be provided at regular intervals. Thus, if the rule requires food and fodder to be carried during the journey, the question of cattle in transit impacting the availability of fodder in the drought affected area would not arise. 13.5 The Supreme Court in Central India Spg., Wvg. & Mfg. Co. Ltd. v. Municipal Committee, (supra) has held that good which are in transit or are being transported can hardly be called goods "imported into or exported from"because they are neither being exported or imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination. The court further held that the effect of the construction of "import" or "export" in the manner insisted upon by the respondent would make rail-borne goods passing....
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....t across customs frontiers and trade and commerce with foreign countries are matters which fall under entry 41 of List I of the Seventh Schedule to the Constitution of India, namely, the Union list and the State Government has no power to either permit or prohibit import or export across the customs frontiers. It was submitted that the State does not have the power to control what is exported at the port and hence, the impugned notification has been issued in colourable exercise of power to do indirectly what the State cannot do directly. 14.1 On behalf of the respondents, the learned Additional Advocate General submitted that the impugned notification has been issued in independent exercise of powers under section 4(1)(b) of the Cattle Control Act and has no connection with preventing export of livestock. May be as a fall out of the impugned notification, the petitioners are not in a position to bring in cattle into the drought affected areas for the purpose of export, but on that count it cannot be said that the notification which has been issued in exercise of powers vested in the State Government has been issued in colourable exercise of powers. It was submitted that the not....
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....ver, the trial and tribulations of the petitioners and similarly situated persons did not end there. Soon thereafter, on 14.12.2018 the Chief Minister addressed a press conference declaring that the State of Gujarat will ban export of livestock from Tuna Port with immediate effect. At this juncture, reference may be made to the contents of the press note at Annexure D to the petition, which as translated into English reads thus: "The Chief Minister Shri Vijaybhai Rupani has taken a decision which touches the feelings of mute animals by suspending exports from Tuna - Kandla Port with immediate effect. He has expressed the animal welfare object to the effect that keeping in view the instructions issued recently in the context of exports of live animals by the Government of India and the Animal Welfare Board of India, till the standards in terms of the guidelines are satisfied in Gujarat, with immediate effect exports of live animals shall not take place. The Chief Minister addressed a letter to the Central Commerce Minister Shri Suresh Prabhu in this regard and informed him that the local certification approval granted by the Government till date keeping in....
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....Husbandry, Dairying and Fisheries, Government of India vide letters dated 10.9.2018 and 4.10.2018 as well as by Animal Welfare Board of India vide letter dated 1.10.2018, the State Government has stopped local certification of health with immediate effect. This has been communicated to the concerned authorities by the State Government by letter dated 14.12.2018. He has further urged the Central Minster to instruct the concerned authorities not to issue any permit for the export of live animals from Tuna, Kandla Port of Gujarat until specified facility for Animal Quarantine and Certification is established by Department of Animal Husbandry, Dairying and Fisheries, Government of India. It is further stated that non-compliance of the guidelines by the Government of India in this regard can amount to disrepute to the image of country and can adversely impact the interest of the country as a whole. 14.4 On the same day, the impugned notification dated 14.12.2018 came to be issued under section 4(1)(b) of the Cattle Control Act prohibiting movement of cattle into the drought affected area. Furthermore, on the same day, that is, 14.12.2018 the Director of Animal Husbandry addressed a c....
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.... which is a pointer to the intention behind such letter. On a conjoint reading of this letter dated 14.12.2018 of the Director of Animal Husbandry and the above letter of the Chief Minister addressed to the Union Minister, Ministry of Commerce and Industry, it is manifest that the same are more or less identically worded to a certain extent. 14.4 Again on the same day, that is 14.12.2018, the Under Secretary, Home Department, Government of Gujarat addressed a communication to the Superintendent of Police, Kutch (West) wherein as translated into English, it has been stated thus: "Subject: In the matter of overloading of animals during the course of transport. Madam In the context of the above subject it may be informed that special provisions have been made for transport of animals under the Transport of Animals Rules. 1978 framed under the Prevention of Cruelty to Animals Act, 1960. The Police Department as well as the Animal Husbandry Department is required to take special care that during the course of transport of animals they are not subjected to any physical or mental difficulties. It has come to notice that during the course of transport, more an....
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....ent 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. 14.8 Besides. on the same day that the Chief Mi....
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....r, it is apparent that the impugned notification has been issued with the intention of prohibiting export which is otherwise not a State subject. So what cannot be done directly by the State Government is sought to be done indirectly under the guise of exercise of powers under section 4(1)(b) of the Act. The impugned notification, therefore, clearly has been issued in colourable exercise of powers and deserves to be struck down. Requirement of quarantine certificate for export of livestock: 16. Insofar as the requirement of quarantine certificate for the purpose of export of livestock is concerned, it has been asserted on behalf of the State Government that under the Government guidelines and international convention, it is mandatory to follow the quarantine procedure whether or not the importing country requires the same and that non compliance of the same can amount to disrepute to the image of the country and can adversely impact the interest of the country as a whole. In this regard, it may be noted that export and import are subjects which fall in the Union List and the State Government has no concern with the same. The Animal Husbandry Department of the State Gove....
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....s upon the requirements of the importing country. Thus, the authorities who are entrusted with the supervision and control over exports and imports have stated that requirements of quarantine are not mandatory in case of exports unless the importing country requires the same. In the facts of the present case, the petitioners have placed on record two types of export orders one for pet animals and another for sheep and goats to point out that in case of pet animals the export order itself mandates various procedures to be followed, whereas in case of sheep and goats there are no conditions whatsoever. 16.4 In the opinion of this court, when there is no mandate to satisfy the quarantine requirements in case of import of livestock by the importing country, the State authorities, who otherwise have no concern with the import export policy, cannot insist on compliance thereof. Validity of the communication dated 14.12.2018 of the Directorate of Animal Husbandry. 17. Insofar as the impugned communication dated 14.12.2018 issued by the Director of Animal Husbandry informing the Commissioner of Customs that the State Government has decided to withdraw the services provided f....
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....taking of the export/owner in this regard is sufficient. The same also provides for fulfilling health requirement of importing country including testing, treatment, vaccination, etc. The learned counsel for the petitioners has pointed out that insofar as the export of sheep and goats to the importing country is concerned, there are no official health requirements prescribed by the said authority. Attention was also invited to Chapter VI of Transport of Animal Rules which provides for Transport of sheep and goats, rule 65(a) whereof provides that a valid health certificate by a qualified veterinary surgeon to the effect that the sheep and goats are in a fit condition to travel by rail or road and are not suffering from infectious or contagious or parasitic disease shall accompany each consignment. Clause (c) thereof provides that the certificate shall be in form specified in Schedule-J. Schedule-J provides the proforma for certificate of fitness to travel sheep and goats, and requires that such certificate should be signed by a qualified Veterinary Surgeon. Therefore, the requirement under the rules is for providing a certificate signed by a qualified Veterinary Surgeon and it need ....