Page 205 - ELT_15th July 2020_Vol 373_Part 2

2020 ] A.D. ENTERPRISE v. UNION OF INDIA 187

ter determining the eligibility of the applicants or by draw of lots or any
other method, it is for the State Government to frame such policy subject to
the test of reasonableness, in accordance with law.
32. Since the licences have been granted on the basis of the doctrine of
first come first served basis, which is not a fair, reasonable and transparent
method, we find that the licences granted to the private respondents, can-
not be sustained.”
19. Thus, although we are not inclined to strike down the guidelines in
the form of a policy as ultra vires the provisions of the Constitution of India, yet
we remind the Union of India of the observations made by the Delhi High Court
in the order dated 11th September, 2019 passed in the Writ Petition (C) No. 7676
of 2019. We quote the observations thus :
“Pursuant to the order 28-8-2019, the Learned ASG hands over the commu-
nication dated 6-9-2019 received by the Narcotics Commissioner, Central
Bureau of Narcotics, from the Turkish Embassy. A cop of the same has been
handed over by the Learned ASG to the Learned Counsel for the petitioners
as well.
The Learned Counsel for the petitioners submits that as far as the petition-
er’s grievance with regard to non-fixation of the Country Cap and registra-
tion of contracts prior to the declaration of the Country Cap stands satis-
fied.
The Learned Counsel for the petitioners, however, submits that in case the
Turkish Authorities upload the contracts for export/import into India of
quantity more than the Country Cap, the respondents would have to device
some scheme for ensuring equitable distribution of the importable quantity
amongst all the applicants. In my view this is totally based on hypothesis
and presumptions and as and when the situation would arise, it would be
for the respondents to take a decision thereon. It is also noted that Clause-3
of the MOU between India and Turkey on Trade of Poppy Seeds published
on 23-5-2018 in paragraph-3 thereof in fact, makes the above eventuality
almost an impossibility.”
20. Needless to mention at this stage that it is the prerogative of the re-
spondents to frame a policy. However, such policy must be transparent, fair and
reasonable. We suggest that the Union should consider framing a policy which
provides for a fair chance to every applicant in procuring the importable quanti-
ty irrespective of the date of their application. Such process must be transparent
and fair. The process can be made more transparent if the list of successful can-
didates is uploaded on the website of the respondent No. 2 as was being done
before the policy dated 25th June, 2019. In our opinion, adopting a methodology
of first-come-first-serve has inherent flaws and anybody having access to the
power corridor at some level is likely to secure unfair advantage at the cost of the
other applicants who may not have similar access. In such circumstances, it is
suggested that the respondents should device a better mechanism/policy for the
allotment of quota so as to make the process much more competitive, transpar-
ent, fair and reasonable.
21. With the aforesaid observations, we dispose of this writ-application.
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EXCISE LAW TIMES  15th July 2020  205