TaxTMI 
TaxTMI 
2023 (6) TMI 475
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....Notification No.3/2015- 2020 dated 25.04.2016. They also seek a direction to R1 and R2, being the Secretary, Department of Commerce and Industry and Director General of Foreign Trade (DGFT) (hereinafter referred to as R1 and R2/DGFT respectively) not to prevent dog lovers from lawfully importing dogs into India for dog shows, as pets and for breeding. 2. Heard Mr.R.Srinivas and Mr.V.Selvaraj, learned Senior Counsel appearing for learned counsel on record for the petitioners, Mr.AR.L.Sundaresan, learned Additional Solicitor General assisted by Mr.V.Chandrasekaran, learned Senior Panel Counsel appearing for R1 and R2 and Mr.Alagu Gowtham, learned Government Advocate appearing for R3. In addition, I had consulted Dr.R.Karunakaran, Dean of the Madras Veterinary College, Chennai, and Dr.Sujatha, Deputy Librarian, who have been most helpful in supplying books and literature to aid my understanding of the subject of native Dogs. 3. KCI was founded in the year 1896 by the British. It is the only private authority dealing with the interests of canines in India. It maintains the pedigree and stud book of various recognised dog breeds and its records date back to more than a century. It....
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....oject has been commenced with the sole purpose of protecting Indian dog breeds that are on the verge of extinction. Indian dog breeds enjoy special status with the KCI, in that there is no charge for their registration or for the registration of their litter, and microchips are issued free. 6. MCC is a society which was found in 1980 and which has the following objects,: 'a). To promote membership of dog owners and dog lovers. b). To promote the keeping of pedigreed dogs and provide necessary information to its members. c). To conduct Dog Shows and Dog Trials at periodical intervals subject to the approval of the "Kennel Club of India". d). To render assistance to new dog owners in the maintenance and care of dogs and to encourage and assist its members in breeding different varieties of Dogs. e) To do all such other things as conducive or incidental to the attainment of these objects.' 7. It holds a membership in the KCI and conducts dog shows, recognised by both KCI and FCI. In all, the primary raison de etre of both KCI and MCC is to protect, preserve and promote the interests of distinct canine breeds by serving as a custodian ....
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....Supreme Court of India is also seized of the problem and has instructed the states to prevent breeding of dogs by implementing birth control programme. The pathogens carried by the animals imported from other countries cannot be completely screened out in quarantine centers. New and fatal diseases including various kinds of tick fevers and canine circovirus are being brought in with each consignment, substantially affecting the health of the existing animals. Imports of dogs in large numbers is also undermining and contaminating the genepool of the Indian breeds such as the Indian Pariah, Rajapalayam, Mudhol Hound, Rampur Greyhound etc. If commercial import of dogs is not immediately banned, the ramifications on the demographics and health of Indian dogs will be irreparably damaged, besides adding to the burden on the central and state governments to clean up the mess by providing neutering and vaccination services to the discarded animals left on the streets. The import of pet dogs has been banned because of similar reasons, but the purpose is being completely defeated if the import of dogs is allowed for commercial purposes. This channel is now being used to bri....
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....dum was issued by the Assistant Commissioner, Department of Animal Husbandry, Dairying and Fisheries (in short 'AHDF Department') that reads as follows: No. 102-132/2013-Trade Government of India Ministry of Agriculture and Farmers Welfare Department of Animal Husbandry, Dairying and Fisheries Krishi Bhawan, New Delhi Dated. 15th March, 2016 OFFICE MEMORANDUM Subject:- Ban on import of commercial dogs into India. The undersigned is directed to refer to the O.M. of even number dated 18.12.2015 seeking views/comments of Ministry of Environment, Forest & Climate Change, Animal Welfare Board of India and Director General of Foreign Trade (DGFT) regarding ban on import of commercial dogs. In this regard, Department received views/comments, suggestion and request from Ministry of Environment, Forest & Climate Change (MoEF&CC), Animal Welfare Board of India (AWBI) and Ministry of Women & Child Development (WCD) in favour of imposing ban on import of commercial dogs. 2. The matter has been re-examined and it has been observed that the import of dogs is a restricted item for which the DGFT issues license on recommendation of this Department. T....
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....n of Business) Rules, 1961 (in short 'Transaction of Business Rules'). The aforesaid Rules have been framed in exercise of powers conferred under Article 77(3) of the Constitution of India. 17. Rule 3, which deals with the transaction of business by Ministries, states that subject to the provisions of these Rules in regard to consultation with other departments and submission of cases to the Prime Minister, the Cabinet and its Committees and the President, all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961 (in short 'Allocation of Business Rules') shall be disposed of by, or under the general or special directions of the Minister-in-charge. 18. Rules 2 and 3 of the Allocation of Business Rules deals with allocation of business and the distribution of subjects. Rule 4 deals with the allocation of Departments among Ministers. Rule 4(1) states that the business of the Government of India allocated to Cabinet Secretariat is and, shall always be deemed to have been, allotted to the Prime Minster. 19. Rule 4(2) states that the President, on the advice of the Prime Minister, will allocate the business of the Government of Indi....
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....ed as required under the Allocation of Business Rules and Transaction of Business Rules. This serious lacunae, in their submission, vitiates the impugned Notification. 24. They rely on a decision in the case of Union of India and others v. Agricas LLP and others [2020 SCC OnLine SC 675], which elaborates on the procedure to be followed in the issuance of Notifications regulating import and export. They also rely on the decision in the case of Union of India (represented by Director-General, All India Radio), New Delhi and another v. K.S.Krishnaswamy and another [2005 (2) L.L.N. 890] dealing with Central Civil Services (Pension) Rules, 1972. 25. A Division Bench of this Court sitting in Madurai also had had occasion to consider the procedure to be followed by the Central Government in the issuance of Notifications in the context of the Conduct of Business Rules, in Union of India, represented by its Secretary, Ministry of Commerce and Industry and others V. Unik Traders [W.A.(MD) Nos.396 to 406 of 2009 dated 28.10.2022]. In that case, the Notification impugned had been quashed by the learned single Judge, whose decision had been reversed by the Division Bench that was of the v....
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....e of diseased dogs, and with this, there is no necessity for further regulation. In all, the petitioners would passionately submit that the impugned Notification is bereft of any justification, either in law or as a policy, and must be quashed. 33. The respondents maintain that the Notification has considered all aspects of the matter in proper light and must be sustained. The procedure followed by the respondents in issuing the Notification has been detailed in the paragraphs above. R1 would stress that regulation of import and export, being a matter of policy and taken in the best interests of the Country must not be interfered with unless it is shown to be perverse. 34. In the present case, letter dated 01.12.2015 from the then Hon'ble Minister for Women and Child Development has explained the dangers of importation of foreign dogs and they would urge that this Court cannot embark on an exercise of second guessing such valid concerns. They have however no choice but to accede to the position that the file produced by them is incomplete and does not contain any scrap of scientific data to validate those concerns even at the relevant point of time. 35. In the initial hear....
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.... point in time and that proper procedure has been followed. I now propose to test their submissions. 41. Letter dated 01.12.2015 conveys certain concerns of the Hon'ble Minister for Women and Child Development. The letter was forwarded to the Hon'ble Minister of Agriculture and Farmers Welfare with a copy marked to the Director General of Foreign Trade. There is no response available from the Agriculture Ministry and instead, it is the ADGFT under the Ministry of Commerce and Industry, who has responded stating that the expert to answer the query of Hon'ble Minister would be the Department of AHDF. The aforesaid events have transpired between the 1st and 15th of December, 2015. On the same day, an Office Memorandum has been issued by the Assistant Commissioner of AHDF Department. 42. This Court is given to understand that the then Hon'ble Commerce Minister was holding additional charge of the Ministry of Agriculture and Farmers Welfare, under which Ministry, the Department of AHDF falls. There is no written confirmation in this regard. The records do not indicate so and neither are there any pleadings to support this position. 43. Thereafter, that a file note has been prep....
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....t Department received views/comments, suggestion and request from Ministry of Environment, Forest & Climate Change [M/o EF&CC], Animal Welfare Board of India (AWBI) and Ministry of Women & Child Development [WCD] in favour of imposing ban on import of commercial dogs 2. They have further stated that the matter has been re-examined and it has been observed that the import of dogs is a restricted item for which the DGFT issues license on recommendation of the Department. The proposals for import of dogs are examined in the Department from the sanitary and quarantine point of view for which the Department has framed import requirements for all categories of dogs. Further, the matter has been considered in view of the comments/views received from AWBI, M/o EF&CC, WCD and with the approval of the Competent Authority, it has been decided that the import of dogs may be allowed only for the following specific purposes:- i. Pet dog with valid pet book and relevant records/documents in the name of importer. ii. Dogs imported by the R&D Organisations for conducting research with the recommendation of CPCSEA. iii. For the internal security by the Defence and....
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.... Chapter 1 of ITC (HS) 2012, it is proposed that we may introduce provisions as in Para 3 & 4 above as Policy Condition (7) & (8) in Chapter 1 of ITC(HS) 2012 as per the draft notification placed below, with the approval of Hon'ble CIM. 6. May like to consider Sd/- (S.P. Roy) Joint Director General 12.4.2016 ADG(KCR) Sd/- &....
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....Allocation of Business Rules is that it is only the concerned Minister holding portfolio who has the final word on the issuance of Notification in this regard. 47. In light of the categoric statement of the learned ASG to the effect that the Minister of State (Independent Charge) of the Ministry of Commerce and Industry was holding additional charge of the portfolio of Agriculture and Farmers Welfare at the relevant point in time, I accept that statement without question. If the petitioners believe that the statement requires probing, it is left open to them to utilize the provisions of the Right to Information Act and seek and obtain necessary clarification/information. With this, this objection of the petitioners is rejected. 48. The provisions of the FT(D&R) Act and the FTP state that, generally exports and imports are free unless regulated by way of a prohibition, restriction or a provision for exclusive trading through the State Trading Enterprises. In the interests of completion, the impugned Notification is extracted below: To be published in the Gazette of India Extraordinary Part-II, Section 3, Sub-Section (ii) Government of India Ministry of Commerce ....
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.... effect accordingly. (4) without prejudice to anything contained in any other law, rule, regulation, notification or order, no permit or licence shall be necessary for import or export of any goods, nor any goods shall be prohibited for import or export except, as may be required under this Act, or rules or orders made thereunder. 50. To decide this issue, one needs to refer to section 6 of the FT (D&R) Act that deals with appointment of a Director General. Section 6(3) in terms of which the Central Government delegates power to the DGFT reads thus: 6. Appointment of Director General and his functions (1) (2).......... (3) The Central Government may, by Order published in the Official Gazette, direct that any power exercisable by it under this Act (other than the powers under sections 3, 5, 15,16 and 19) may also be exercised, in such cases and subject to such conditions, by the Director General or such other officer subordinate to the Director General, as may be specified in the Order. 51. The Central Government has been statutorily endowed with the power of delegation of its authority under the Act, barring power under sections 3....
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....ory of dogs in India. The author refers to the results of research carried out in Sweden and published in a journal by name Current Biology in May, 2015, relating to an analysis of an old fragment of the jaw of a dog. Based on this, the researchers had come to the conclusion that the dog had been domesticated around 27000 to 40000 years ago. The bone fragment was attributed to around 35000 years ago and was said to be belong to the Timur wolf 'the most recent ancestor of wolves and modern dogs'. There is an on-going project on the Indian dog (INDog Project) and I have had the benefit of a publication entitled 'The Indian Dog' (Authored by WV Soman, digitized by the INDog Project with permission of Popular Prakashan), made available on the internet. 56. Interestingly, the author refers to the role he played officiating as a Judge in 1959 at a dog show held in Bombay organized by a 'newly started Kennel Club', the Indian National Kennel Club, perhaps the precursor of one of the petitioners in these Writ Petitions. He says that there that it was astonishing that though there were several entries for the dog show, there was no entry of any dog of Indian origin. Thus, even as early a....
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....he impugned Notification. 61. These Writ Petitions were filed on the heels of the impugned Notifications and the learned Senior Panel Counsel for the Central Government has accepted notice on behalf of the respondents on 12.07.2016 in respect of W.P.Nos.23230 and 23231 of 2016 and notice has been directed to be issued vide order dated 26.04.2017 in respect of W.P.No.10496 of 2017, when it had come up for admission. 62. It was thus incumbent upon the respondents to have secured and retained all files in connection with the Notification, particularly since the affidavit discloses the grounds of challenge. Thus, I am persuaded to adopt the view and conclude that the impugned Notification has been issued without necessary scientific study and due diligence as called for. In light of the discussion as above the impugned Notification is set aside and these Writ Petitions are allowed. 63. The prevention of Cruelty to Animals (Dogs Breeding and Marketing) Rules, 2017 (in short 'PCA Rules') have been challenged in W.P.No.16765 of 2017 by the Kennel Club of India. As seen from the interim order passed by the First Bench in that Writ Petition on 22.07.2020, the challenge by way of De....