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Agro Chem Federation of India & Another v/s Union of India & Others


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    Writ Petition No. 2267 of 2018

    Decided On, 24 December 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA

    For the Appearing Parties: T.K. Chatterjee, P. Chatterjee, Sahasrangshu Bhattacharya, Vipul Kundalia, Rahul Sarkar, Advocates.



Judgment Text


1. The writ petitioners have challenged the vires of a Notification dated December 22, 2017 (G.S.R.) 1588 (E) published by the Union Ministry of Agriculture and Farmers Welfare (Department of Agriculture, Cooperative and Farmers Welfare), whereby an amendment was brought to Rule 45 of the Insecticides Rules, 1971 (hereinafter referred to as "the 1971 Rules") and deleting Kolkata from the list of places through which insecticides shall be imported into India, including the sea and air routes.

2. Such Rule was amended in the exercise of the powers under Section 36 of the Insecticides Act, 1968 (hereinafter referred to as "the 1968 Act"). It is argued on behalf of the petitioners that the amended Rule 45 is de hors the provisions of the 1968 Act itself and violative of Articles 14 and 19(1)(g) of the Constitution of India. It is submitted that the fundamental right of importers and manufacturers in all North-Eastern States of India, including the State of West Bengal, to import insecticides through the Netaji Subhas Chandra Bose International Airport and the port of Kolkata has been infringed by unreasonable restriction being imposed under the said amended Rule.

3. Whereas there is representation of the Northern, Western, as well as Southern parts of India in the list of airports and sea ports through which such imports can now be made, there is no representation postamendment as regards the Eastern and North Eastern States in the list of designated places of import. It is submitted that more than forty manufacturers of pesticides in the Eastern Zone, comprised of eight States, including Odisha, Bihar, West Bengal, Assam and other North East States, shall be directly affected by the said Notification which, in turn, will enhance the cost of pesticides for the farmers of the Eastern Zone due to the price of insecticides of the said region becoming expensive. The importers would be affected as well, since the costs of insecticides, which are imported from outside, shall increase at least by Rupees Ten per kg. approximately, since every month at least 40-50 containers are imported through Kolkata Port and 7-8 consignments through the Kolkata Airport. The amendment of the Rule, thereby deleting Kolkata from the list of places of import, would render the prices of the products exorbitant and consequentially uncompetitive as compared to manufacturers in other parts of India.

4. In such regard, learned counsel for the petitioners relies on a judgment reported at 2014 (310) E.L.T. 833 (Guj.), delivered by a Division Bench of the Gujarat High Court, wherein it was held that unreasonable restriction by a delegated authority cannot offend Articles 14 and 19(1)(g) of the Constitution of India. In the said judgment, it is submitted, several other relevant judgments in the field were discussed.

5. Learned counsel appearing on behalf of the respondents argues that the Amendment to the 1971 Rules was on the basis of certain complaints regarding illegal imports of insecticides through various ports including Kolkata ports, such illegal imports cause and have potential to further cause severe hazard to human beings, animals and environment.

6. On the basis of such complaints received, only a few ports were allowed to import insecticides and the impugned Notification was issued.

7. It is further argued that the matter pertains to a policy decision by the Government, and as such the power of judicial review ought not to be exercised to determine the correctness of such policy decision or to indulge in the exercise of finding out whether there could be more appropriate or other alternatives, once it was found that the safeguards of Article 14 are satisfied and that there is due application on mind in arriving at the decision, backed by cogent material.

8. Learned counsel for the respondents submits that since the impugned Notification brings in a restriction which is reasonable and not arbitrary and in no way discriminatory, there is a bar to the applicability of Article 19(1)(g), as stipulated in Article 19(6) of the Constitution of India. By citing Parisons Agrotech Pvt. Ltd. and another vs. Union of India and others, (2015) 9 SCC 657, the respondents submit that the Court has to respect a decision of the executive regarding policy making as failing within the domain of the executive, unless arbitrary or irrational or not taken in public interest.

9. Further relying on the judgment of BALCO Employees Union vs. Union of India,2002 12 SCC 333, it is argued that it is neither within the domain of the Courts nor the scope of judicial review to embark upon an interview as to whether a particular public policy is wise or whether better public policy could be evolved. The Court, it is submitted, ought not to strike down a policy at the behest of the petitioner merely because it has understood that a different policy would have been fairer or wiser or more scientific or more logical.

10. As regards the judgment cited on behalf of the petitioners, it is submitted on behalf of the respondents that Paragraphs 20-24 of the said judgment specifically laid down that legislation in India, by the Union or State legislature, enjoys the presumption of constitutionality. In the present case, it is argued that the 1968 Act has been specifically enacted as a preventive Act, by which the legislature has the power to restrict the import, manufacture, sell, transport, distribution and use of insecticides with a view to prevent risk to human beings, animals and matters connected therein. Section 36(2)(d) of the 1968 Act empowers the Central Government to prescribe the places at which insecticides may be imported and prohibited from import at any other place. Since the present restriction, under challenge, has been in consonance with such provision, it is argued that the same is intra vires the Constitution of India as well as the 1968 Act itself.

11. Learned counsel for the respondents lastly argues that the intention of the Central Government behind the issuance of the Notification was to curb illegal imports and also to monitor the quality specifications of the insecticides, by limiting the number of entry points for pesticides and to serve the objective of the 1968 Act.

12. As such, it is argued that the said Notification cannot be declared to be ultra vires the statutory mandates, powers and functions of the respondents.

13. Upon hearing both sides, it is seen that Section 36(1) of the 1968 Act provides that the Central Government may, after consultation with the Board and subject to the conditions of previous publication, by Notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of the Act.

14. The proviso to Sub-section (1) stipulates that consultation with the Board may be dispensed with if the Central Government is of opinion that circumstances are arising which render it necessary to make Rules without such consultation, but in such a case the Board shall be consulted within six months of the making of the Rules and the Central Government shall take into consideration any suggestion which the Board may make in relation to the amendment of the said Rules.

15. Sub-Section (2), Clause (d) of Section 36 provides that in particular and without prejudice to the generality of the foregoing power, conferred under Sub-section (1), such Rules may prescribe the places at which insecticides may be imported and prohibit their import at any other place. Rule 45 of the 1971 Rules stipulates the places at which insecticides may be imported. Although previously the Kolkata Ports were within the several places included in Rule 45, by virtue of the impugned Notification, an amendment was introduced, by virtue of which, no insecticide shall be imported into India except through one of the following places, which were named in the Clauses (i), (ii) and (iii) therein. The said places included the Inland Container Depot at Gurugram (Gurgaon) at Haryana, Ports in Chennai and Mumbai as well as Airports at Chennai, Mumbai and New Delhi, respectively in respect of insecticides imported by land, sea and air into India. The Kolkata Port and Netaji Subhash Chandra Bose International Airport at Kolkata were excluded, however, by the amendment.

16. The premise of supporting such amendment, as offered by the respondents in their affidavit in opposition as well as written notes of argument, are primarily two-fold - curbing illegal imports on the basis of complaints and monitoring the quality of imported insecticides.

17. The language used in paragraph no. 9 of the affidavit-in-opposition of the respondents is: " The Government of India was in receipt of certain complaints regarding the illegal imports of insecticides including the Calcutta Port and such illegal imports made cause severe hazards to human being, animals and environment."

18. In paragraph No. 13 of the opposition, the same allegation is reiterated, although keeping the source of such complaints and/or the material to support such complaints undisclosed, by using merely the expression that the Government of India was in receipt of "certain complaints" regarding illegal imports of insecticides including the Calcutta Port.

19. Paragraph No. 13 of the affidavit-in-opposition states that the intention of the Government behind the issuance of the Notification has been to curb illegal imports and also to monitor the quality specification of the insecticides by limiting the number of entry points for insecticides and to serve the objective of the Act (the 1968 Act).

20. Testing the said reasons, as offered by the respondents, on the anvil of Article 19(6) of the Constitution, it is found that there is absolutely no reasonableness in the said decisions and those are palpably arbitrary.

21. To advance an argument that on some vague complaints, without any strong material support for such complaints, the Kolkata sea port and airport were excluded from the limited numbers of places at which import of insecticides takes place in India, is without any basis whatsoever and smacks of unreasonableness. Arguing that some instances of illegal imports, if at all, necessitated the exclusion of the Kolkata Port entry point altogether, is akin to arguing that scientific investigations and experiments should be stopped immediately due to the instances of abuse of science in making weapons and in chemical warfare.

22. Isolated instances of illegal imports are within the control of the Government and there are several provisions, both under the Customs Act as well as other allied statutes, to prevent such illegal imports. Even under Section 9 of the 1968 Act, as also pleaded in the opposition of the respondents, any person desirous of importing or manufacturing an insecticide has to mandatorily obtain a registration from the Registration Committee (RC), constituted under Section 5 of the 1968 Act at the Central level. The Registration Committee is responsible for satisfying itself with the safety and efficacy of the insecticide before granting registration. The affidavit-in-opposition further states that, as per Section 5(5) of the 1968 Act, the RC is also empowered to regulate its own procedure and conduct of the business to be transacted by it and to verify the claims made by the applicants.

23. Section 4 of the 1968 Act envisages the formation of the Central Insecticides Board, which would advise the Central Government and State Governments on technical matters arising out of administration of the 1968 Act and to carry out the other functions assigned to the Board by or under this Act.

24. It is seen that sub-section (1) of Section 36 of the 1968 Act specifically stipulates that the Government may, after consultation with the Board and subject to other conditions, make Rules for the purpose of giving effect to the provisions of the 1968 Act.

25. The proviso sub-section (1) envisages dispensation with such consultation only if the Central Government is of opinion that circumstances have arisen which render it necessary to make Rules without such consultation, in which case the Board has to be mandatorily consulted within six months of the making of the Rules. The Central Government shall also take into consideration any suggestions which the Board may make in relation to the amendment of the said Rules.

26. In the present case, the respondents have not pleaded anywhere in their affidavit-in-opposition or in their written notes of argument that any such consultation with the Board was held prior to the amendment or that the Board was consulted within six months of the making of the Rules. The existence of necessary criteria, to satisfy the proviso to Section 36(1), for the dispensation of consultation with the Board, was not made out in the pleadings of the respondents.

27. As such, the lame excuse of curbing illegal imports does not hold water, since there are several statutory provisions and measures in place to curb such imports and penal provisions to deal with such illegal imports. Moreover, isolated events of illegal imports cannot justify shutting out the entire Eastern and North-Eastern region of India from getting the benefits of imports of insecticides, which is patently violative of Article 14 of the Constitution of India from the perspectives of both importers as well as agriculturists.

28. Not only would the importers of Eastern and North-Eastern India be forced out of market competition due to the huge increase in duties in the event they have to bring in the insecticides through the permitted places of import in other parts of India, the said increase in price would directly translate to the poor agriculturists of the East and North-East being unable to purchase insecticides at such high price, which would affect not only their livelihood, but the economy of the region as a whole. Such an event would have a cascading effect and would percolate to the citizens of India residing in the Eastern and North-Eastern parts of the country, since the prices of all agricultural and agro-industrial products would increase manifold, which is a complete violation of Article 14 of the Constitution of India.

29. Not a single instance of illegal import has been cited by the respondents, nor has it been pleaded that there were no instances of illegal import from the places now permitted to import insecticides. Promulgation of laws go hand-in-hand with violation of such laws, which itself does not and cannot justify important zones being excluded altogether from getting benefits of the laws. Thus, in the present case, vague allegations of illegal imports could not, by any stretch of imagination, be a justification to shut out the entire Eastern and North-Eastern Zone of India from getting the benefits of import of insecticides. The other flimsy pretext advanced by the respondents for bringing in the impugned Notification, being to monitor the quality and standards of such imports, which is within the powers of the Central Government to do, the said excuse vanishes into thin air in view of the provisions of the 1968 Act itself. In fact, the respondents themselves have pleaded in paragraph 7B of the affidavit in opposition that Section 9 of the 1968 Act provides for any person desirous of importing or manufacturing an insecticide to mandatorily obtain a registration from the Registration Committee.

30. That apart, the license to import insecticides, just like the import of other products, is granted by the Central Government and is renewable from time to time.

31. The aforesaid provisions of registration and renewal of license are, in themselves, a sufficient mode of monitoring and controlling the quality of insecticides imported. As such, the exclusion of an entire region from getting the benefits of import on the ground of monitoring cannot be a valid justification at all in the eye of law.

32. Hence, the flimsy pretexts for bringing in the impugned Notification, and the consequential amendment to Rule 45 of the 1971 Rules, both fail miserably on the tests of reasonableness as well as public interest.

33. Public interest would suffer more in the event the entire Eastern and North-Eastern region of the country and their economy is affected adversely by excluding the Kolkata port and airport from the list of designated places of import of insecticides. The resultant increase in prices and inconveniences would discourage import of good quality insecticides which would affect agriculture as well as increase the prices of insecticides, which will then have to be imported from other parts of India, which would not only affect agricultural and agro products but the economy of the region as a whole.

34. The Indian economy still being primarily an agrarian one, the impugned amendment would have a direct adverse impact on the livelihood of thousands of agriculturists and enhance the prices of essential agricultural products, which would indirectly raise the cost of living and hit the importers of insecticides of the Eastern and NorthEastern part of India.

35. Such a step-motherly attitude towards one region, being the Eastern and North-Eastern region of India, as opposed to the North, West and South of India, which have all found representation on the list of designated places of import, is not only arbitrary and unreasonable but squarely violates Article 14 of the Constitution of India.

36. As far as Article 19(1)(g) of the Constitution is concerned, the said fundamental right, guaranteed by the Constitution itself, is also violated not merely in respect of the importers in carrying on their business but the agriculturists, who come from the weaker section of society and on whom the lion's share of the economy of the country is dependent, in earning their livelihood. The bar envisaged in Clause (6) of Article 19 does not apply at all to the present case, since the impugned Notification does not pass the tests of reasonableness and/or public interest, as discussed above.

37. As regards the argument that the Notification was a 'policy decision', the said argument is fallacious, since there is no question of 'policy' involved in the said decision. A matter of policy, by its very nature and definition, is of a much basic, general and wider character than excluding particular zones of import of insecticides. A policy involves a particular rational basis, on which governance of the country and the State is dependent. A policy, when implemented, has an impact and is generally backed by previous consent of the affected parties as well as stakeholders. In a democracy, a 'policy decision' cannot be the mere amendment of a Rule, which operates as a back-door to stop a major region of the country from getting benefits of importing cheaper and better insecticides from outside the country, while at the same time the other parts of the country are given a boost by designating zones of import in such regions.

38. The amendment of the Rule in question was not a policy decision but a mere bureaucratic decision, at best administrative in nature and not having to do anything with policy.

39. In the event the respondents sincerely argue that the said amendment was a policy decision, then the same does not stand a moment's scrutiny, since a policy decision has to be on a much wider footing and cannot take the form of an apparently innocuous alteration of a change in the places of import, which has the major impact of excluding a particular zone of the country from certain benefits conferred on the other zones, without any reasonable basis and against public interest.

40. Even if the object of the 1968 Act is looked into, the same was enacted to regulate the import, manufacture, sell, transport, distribution and use of insecticides with a view to prevent

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the risk to human beings, animals and for matters connected therewith. There can be no reason why particularly the Kolkata port and airport, which is the gateway to the entire eastern and north-eastern states of the country, should be excluded from the zone of consideration as far as imports are concerned, while the other regions of the country will be getting benefits of such imports. 41. As such, the introduction of the amendment by way of the impugned Notification is not a policy decision but an administrative decision which is palpably tainted with bias and designed to hit the economy of the Eastern and North-Eastern zones of India, for reasons best known to the Central Government. 42. The said notification fails the tests of reasonableness and public interest, as stipulated in Article 19(6) of the Constitution, thus hitting Article 19(1)(g) as well as Article 14 of the Constitution of India. Even the object and policy of the 1968 Act, as reflected in Section 36(1), by providing for safeguards in that regard, has been violated in spirit by the Notification-in-question, thereby taking the Notification, and the consequential amendment, beyond the purview of the powers of the Central Government as conferred by the Act itself. Hence, the Notification is also de hors the 1968 Act itself. 43. In such view of the matter, the impugned Notification, being GSR 1588(E) dated December 22, 2017, is declared ultra vires the Constitution of India and the Insecticides Act, 1968 and as such is struck down. The respondents are immediately directed to formally publish the striking down of the said Notification by a publication in the Official Gazette and to take all necessary steps to immediately restore the Kolkata sea port and airport as designated places of import under Rule 45 of the 1971 Rules by reversing the amendment brought about by the impugned Notification. Rule 45 of the Insecticides Rules, 1971 shall now read as it stood immediately prior to the amendment brought about by the impugned Notification. 44. There will be no order as to costs. 45. Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities.
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