MANOHAR LAL SHARMA Vs UNION OF INDIA
Bench: R.M. LODHA,MADAN B. LOKUR,KURIAN JOSEPH
Case number: W.P.(C) No.-000417-000417 / 2012
Diary number: 31682 / 2012
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO. 417 OF 2012
MANOHAR LAL SHARMA ... PETITIONER(s) Versus
UNION OF INDIA AND ANOTHER ... RESPONDENT(s)
O R D E R
We have heard Mr. Manohar Lal Sharma –
petitioner in person and Mr. Goolam E. Vahanvati,
learned Attorney General. We have also heard Mr.
Vikramjit Banerjee, learned counsel for the intervenor
– Swadeshi Jagaran Foundation in I.A. No. 2 of 2012.
2. Mr. Manohar Lal Sharma – petitioner in person
prays for withdrawal of the rejoinder-affidavit in its
entirety in view of the objectionable statements
contained therein. We allow him to do so. It is
directed that no part of the rejoinder-affidavit shall
be treated as part of the record.
3. In the Writ Petition, the petitioner has prayed
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for quashing Press Note Nos. 4,5,6,7 and 8 of (2012
Series) dated 20th September, 2012 being unconstitutional
and without any authority of law.
4. By these Press Notes, the policy of Foreign
Direct Investment (FDI) in Single-Brand Product Retail
Trading, Multi-Brand Retail Trading, Air Transport
Services, Broadcasting Carriage Services and Power
Exchanges has been reviewed. In the forwarding
circular, it is mentioned in para 5 that necessary
amendments to Foreign Exchange Management (Transfer or
Issue of Security by a Person Resident Outside India)
Regulations, 2000 (for short “Regulations, 2000) are
being notified separately.
5. When the matter came up for consideration on
15.10.2012, learned Attorney General submitted that the
process for necessary amendments to Regulations 2000
by the Reserve Bank of India was on and that necessary
amendments in Regulations 2000 would be made soon.
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6. On 5.11.2012, learned Attorney General placed
for consideration of the Court, a copy of the Foreign
Exchange Management (Transfer or Issue of Security by a
Person Resident Outside India) (Third Amendment)
Regulations, 2012 (for short “2012 Regulations”)
published in the Gazette of India – Extraordinary on
October 30, 2012.
7. By the 2012 Regulations, Reserve Bank of India
in exercise of the powers conferred by clause (b) of
sub-section (3) of Section 6 and Section 47 of the
Foreign Exchange Management Act, 1999 (for short
“FEMA”), has made amendments to the 2000 Regulations.
8. There is no challenge to the 2012 Regulations.
In the absence of any challenge to the 2012
Regulations, the contention of the petitioner that
Press Note Nos. 4,5,6,7 & 8 (2012 Series) dated 20th
September, 2012 have no force of law, does not survive
for any scrutiny.
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09. Be that as it may. We have carefully considered
the submissions of the petitioner and intervenor that
the impugned FDI Policy is not founded on any material
obtained from the government agency and no extensive
consultation was made before formulation of the
impugned Policy.
10. In the Counter-affidavit filed by the Union of
India, the benefits of FDI in Multi-Brand Retail have
been enumerated. The impugned FDI policy have twin
objectives, (one) benefit the consumer by enlarging the
choice of purchase at more affordable prices; and
(two) eradicating the traditional trade
intermediaries/middlemen to facilitate better access to
the market (ultimate retailer) for the producer of
goods.
11. It is stated that the amended FDI policy will
generate employment, improve infrastructure and provide
better quality products. The farmers will benefit
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significantly from the option of direct sales to
organized retailers. In this regard, the Central
Government has relied upon the study commissioned by
the World Bank indicating that profit realization for
farmers selling directly to organized retailers is
about 60% higher than that received from selling in the
Mandi. The views in the study commissioned by the
World Bank are said to be supported by the findings of
a study instituted by the Government of India on the
subject of “Impact of Organized Retailing on the
Unorganized Sector” through the Indian Council for
research on International Economic Relations (ICRIER)
submitted in May, 2008. According to ICRIER report,
unorganized and organized retail not only co-exist, but
also grow substantially in size.
12. The salient features of the FDI Policy on
Multi-Brand Retail Trading are also indicated in the
counter-affidavit. The policy mandates at least 30% of
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the value of procurement of manufactured/processed
products purchased shall be sourced from Indian 'small
industries' which have a total investment in plant &
machinery not exceeding US $ 1.00 million. It also
provides that retail sales outlets may be set up only
in cities with a population of more than 10 lakhs as
per 2011 Census and may also cover an area of 10 Kms
around the municipal/urban agglomeration limits of such
cities. In States/Union Territories not having cities
with population of more than 10 lakhs as per 2011
Census, retail sales outlets may be set up in the
cities of their choice, preferably the largest city and
may also cover an area of 10 Kms around the
municipal/urban agglomeration limits of such cities.
13. We find that impugned policy is only an
enabling policy and the State Governments/Union
Territories are free to take their own decisions in
regard to implementation of the policy in keeping with
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local conditions. It is , thus, left to the choice of
the State Governments/Union Territories whether or not
to implement the policy to allow FDI up to 51% in
Multi-Brand Retail Trading.
14. The views on the efficacy of a government
policy and the objectives such policy seeks to achieve
may differ. The counter-view(s) may have some merit
but under our Constitution, the executive has been
accorded primary responsibility for the formulation of
governmental policy. The executive function comprises
both the determination of policy as well as carrying it
into execution. If the Government of the day after due
reflection, consideration and deliberation feels that
by allowing FDI up to 51% in Multi-Brand Retail
Trading, the country's economy will grow and it will
facilitate better access to the market for the producer
of goods and enhance the employment potential, then in
our view, it is not open for the Court to go into
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merits and demerits of such policy.
15. On matters affecting policy, this Court does
not interfere unless the policy is unconstitutional or
contrary to the statutory provisions or arbitrary or
irrational or in abuse of power. The impugned policy
that allows FDI up to 51% in Multi-Brand Retail Trading
does not appear to suffer from any of these vices.
16. Notably, the Department of Industrial Policy
and Promotion (DIPP) as per the Allocation of Business
Rules, 1961 is allocated the subject of 'Direct foreign
and non-resident investment in industrial and service
projects, excluding functions entrusted to the Ministry
of Overseas Indian Affairs'. Seen thus, the DIPP is
empowered to make policy pronouncements on FDI. There
is no merit in the submission of the petitioner that
Central Government has no authority or competence to
formulate FDI Policy. The competence of the Central
Government to formulate a policy relating to investment
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by a non-resident entity/person resident outside India,
in the capital of an Indian company is beyond doubt.
The Reserve Bank of India (RBI) is empowered to
prohibit, restrict or regulate various types of foreign
exchange transactions, including FDI, in India by means
of necessary regulations. RBI Regulates foreign
investment in India in accordance with Government of
India's policy.
17. Writ Petition is dismissed with no order as to
costs. Interlocutory Applications stand disposed of.
......................J. (R.M. LODHA)
......................J.
(MADAN B. LOKUR)
......................J. (KURIAN JOSEPH)
NEW DELHI MAY 1, 2013.