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Pulari Agro Solutions, Poopara, Idukki, Represented by Its Managing Partner, Lambhodharan v/s State of Kerala, Represented by The Secretary, Department of Agriculture, Government Secretariat, Thiruvananthapuram & Others

    WA. No. 2238 of 2019
    Decided On, 16 January 2020
    At, High Court of Kerala
    For the Appellant: George A. Cherian, Enoch David Simon Joel, Advocates. For the Respondents: M.R. Sabu, Sr. GP.

Judgment Text

Abdul Rehim, J.

1. The petitioner in W.P.(C)No.28303 of 2018 is the appellant herein, challenging judgment of the Single Judge, dated 12.7.2019. The respondents herein are the respondents in the writ petition.

2. Ext.P2 series applications submitted by an employee of the writ petitioner which is a partnership firm, under Clause 8(2) of the Fertilizers (Control) Order, 1985 as well as Ext.P3 series applications submitted by the very same employee under Rule 10(1) of the Insecticides Rules, 1971, were rejected by the 3rd respondent through Exts.P4 and P4(a) orders, which were under challenge in the writ petition. In both the impugned orders, the applications were rejected by assigning the very same reason that, the applicant already holds a licence under the respective statutes. The petitioner had raised a basic contention that, the possession of one licence under the above said statutes will not debar the applicant from obtaining the respective licences, with respect to other depots at different places. The respondents filed detailed counter affidavit contending that, Rule 10(2) of the Insecticides Rules insist upon that, either the applicant should possess the qualification stipulated under Rule 10(1A) or he/she has to employ a person having the said qualification. It is stated that, in the present case it is not clear as to whether the applicant, Mrs.Aswathy Mohanan, is an employee of the writ petitioner-firm and that no documents are forthcoming to show that she is the person engaged by the firm as an employee possessing the requisite qualification. With respect to the applications submitted under Clause 8(4) of the Fertilizer (Control) Order, it was contended that, Mrs.Aswathy Mohanan had filed applications with respect to 16 depots at various places seeking licences for stocking and sale of fertilizer and insecticides. According to the respondents, it is a suspicious situation which will go against the objective behind prescribing specific qualifications for the licencees. It was pointed out that, the prescription of specific qualification or the insistence for employment of persons with technical qualification, is a situation akin to issue of licence to a Pharmacist to run a Medical Store, wherein such person will be responsible for disbursing correct medicines as prescribed by the Medical Practitioners. In such situation, if a single person is granted more than one licence, the same will go against the purpose and objective of the statute and that it will lead to possibility of misuse of the insecticides/ fertilizers, is the contention raised. According to the respondents, the restrictions are imposed to ensure welfare of the people and to maintain ecological balance by preventing excessive usage of insecticides/fertilizers. It is contended that in order to give effect to the legislative intention in imposing such restrictions, the multiple applications submitted by Mrs.Aswathy Mohanan were rejected on a finding that she was already holding Ext.P1 licence to run a depot at Santhanpara. It is pointed out that, Exts.P4 and P4(a) were issued taking note of the intention of the legislature and therefore it is contended that no interference with the rejection of the applications is warranted in exercise of the power vested on this Court.

3. The Single Judge had declined the challenges by upholding contentions raised in the counter affidavit of the respondents, by reiterating that the purpose and objective of the legislation will be defeated if separate licences are issued in respect of each places, wherein availability of a qualified person need to be ensured in order to advice the consumers properly with respect to the commodities they are buying. On interpreting the meaning in substance, gist and tenure of the requirement introduced under relevant statutes, the learned Single Judge observed that, the petitioner had failed to make out a case justifying interference with Exts.P4 and P4(a). Therefore the writ petition was dismissed. It is challenging the said judgment, the above writ appeal is filed.

4. We heard Adv.Suzanne Kurian K. the learned counsel appearing for the appellant and the learned Senior Government Pleader appearing on behalf of the respondents.

5. As already observed, the applicant in Exts.P2 and P3 series applications is a person already holding licences, both under the Insecticides Rules and under the Fertilizers (Control) Order, for sale or for carrying on business in Insecticides and Fertilizers in a building situated at 'Estate Pooppara', Santhanpara, in Idukki District. In Exts.P2 and P3 series applications, licences were applied at 8 different places, such as Pethotty, Pottankadu, Bison Valley, Udumbanchola, Kallar, Chinnakanal, Rajakumary etc. In all these applications, both under the Insecticides Licencees Rules and under the Fertilizers (Control) Order, the applicant is Mrs.Aswathy Mohanan. The address/name of the concern is shown as “Pulari Agro Solutions”. Question arising for consideration is whether the applicant Mrs.Aswathy Mohanan can be granted with multiple licences under the two distinct statutes for carrying on business in insecticides and fertilizers.

6. Section 18 of the Insecticides Act, 1968 prohibits any person by himself or by any person on his behalf, from selling, stocking or exhibiting for sale or distributing, transporting, using or causing to be used by any worker, any insecticides specified thereunder. Rule 10 of the Insecticides Rules, 1971 deals with the grant of licence for sale etc. of the insecticides. Sub-rule (1) of Rule 10 insists that, an application for grant of a licence for sale, stock or exhibition for sale or distribution of insecticides shall be made in form No.VII, to the licencing officer concerned. Sub-rule (1A) was introduced by virtue of an amendment with effect from 6.2.2017, which insists upon that, an applicant for grant of the licence shall possess or employ a person possessing a 'Graduate Degree' in Agricultural Sciences or Biochemistry or Biotechnology or Life Sciences or in Science with Chemistry or Botany or Zoology from a recognised University or Institute; or one year Diploma course in Agriculture or Horticulture or related subjects from any Government recognized University or Institute with Course content on plant protection and pesticides management.

7. The above provision would make it clear that, an applicant for licence to deal with insecticides should possess the qualification prescribed as mentioned above or that he/she should employ a person possessing such qualification. Therefore the question arises whether an applicant can be given multiple licence to do business at various places. In Ext.P3 series applications, the name of the applicant is mentioned as Mrs.Aswathy Mohanan and the address shown is 'Pulari Agro Solutions' with place of business at different places. Against Column No.3 in the application form, which pertains to the qualification, it is mentioned that she is holding Graduation in B.Sc. Chemistry. Going by contents of the applications submitted under Ext.P3 series, it can only be discernible that Mrs.Aswathy Mohanan is the applicant with respect to all the 8 applications and she had given only the particulars of her qualification. Question mooted for decision is, whether the rejection of her applications on the basis that she holds another licence under Insecticides Rules at a different place of business, is legally justifiable or not. The provisions contained in sub-rule (1A) of Rule 10 insist that the person who applies for grant of licence should possess the requisite qualification or the person employed by him/her should possess the requisite qualification. Therefore it is evident that, it is not necessary that the applicant himself/herself should possess the requisite qualification. On the other hand, he/she will be entitled to employ a person at the place of business who is having the requisite qualification. Taken in that view of the matter, it cannot be said that the mandatory requirement under the Rule would disentitle the applicant for more than one licence. But in such case, the applicant should show the technically qualified person under employment of the applicant, for the purpose of obtaining the licence. Further question arose is whether the same technical person can be employed with respect to different business places at different locations. Learned counsel for the appellant raised vehement argument that, as long as the statute does not insist upon presence of the technically qualified person in each of the place of business, it cannot be interpreted that one technical person himself/herself cannot be shown for the purpose of obtaining licence at different places. In support of such a contention her argument is that, the insistence is quite different from the purpose as contemplated under the Drugs and Cosmetics Act. Learned counsel had drawn our attention to the form of application stipulated under the Insecticides Rules (Form No.VII). The declaration part contained in the form includes a declaration to be made by the applicant that he/she shall not take possession of any stock without satisfying himself/herself with the quality thereof. Argument of the learned counsel is that, insistence for the qualification is only for the purpose of ensuring that the stock without requisite quality shall not be purchased by the licencee. We cannot agree with such a contention, because the legislative intent and purpose of amending the Rule and in incorporating a prescription with respect to qualification of the licencee or the person employed, is clear as contended by the respondent. It is to ensure that the dealer in insecticides is not acting in any manner leading to misuse of the insecticides by its consumers. Therefore, the prescription of qualification is intended to restrain the sale for any apprehended misuse and also to advice the customers with respect to the quality and quantity of the insecticides which are required to be used for the purpose of each consumers. In this regard, we perfectly agree with the interpretation given by the learned Single Judge with respect to the legislative intention in incorporating sub-rule (1A) to Rule 10 of the Insecticides Rules. Viewed in the above angle, we cannot accept the contention that a single person can be employed with respect to various places of business at different locations. If such a view is adopted, that will clearly defeat the legislative intent of Rule 10(1A).

8. Based on the above observations, conclusion which could be arrived is that, with respect to the licence under Rule 10A of the Insecticides Rules, the appellant firm can make as many applications as they require for the licences with respect to different premises at different locations. But the only insistence is that, they should show the name of the persons employed with proof of his requisite qualification, at each place. Considering the legislative intend and object, even though the Rule does not contain any insistence for presence of such qualified person all along during the business hours, we hold that, one person cannot be cited as a technical employee for more than one outlet. In the case at hand, Mrs.Aswathy Mohanan is the applicant with respect to all the outlets. She had not shown the name of any technical employee employed with respect to different places. Hence the rejection has to be held as valid.

9. With respect to Ext.P2 series applications submitted under clause 8 of the Fertilizer (Control) Order, 1985, the rejection is on the basis that the applicant already holds a licence under the said provision. There also the name of the concern is shown as that of the appellant firm, with the address at different places. Sub-clause (2) of Clause 8 of the above said order is extracted hereunder.

“(2) Every person including a manufacturer, an importer, a pool handling agency, wholesaler and a retailer dealer intending to sell or offer for sale or carrying on the business of selling of fertilizers shall make a Memorandum of Intimation to the Notified Authority, in Form No.A-1 duly filled in, in duplicate, together with the fee prescribed under clause 36 and Certificate of Source of Form-O”

It is pertinent to note that by virtue of an order amending the Fertilizer (Control) Order, 1995 sub-clause (4) was introduced to clause 8 which is extracted below.

“(4) No authorisation letter shall be granted to any applicant under this Order unless the applicant possesses the following qualifications, namely:-

(v) Bachelor of Science in Agriculture from a recognized University or Institute; or

(vi) Bachelor of Science in Chemistry from a recognized University or Institute; or

(vii) Diploma in Agriculture Science from a recognized University or Institute; or

(viii) Certificate Course on agri-inputs for a minimum period of six months from National Institute of Agricultural Extension Management (MANAGE), National Institute of Plant Health Management (NIPHM) and other Government approved institute:

Provided that the dealers, who have been granted authorisation letter, before the commencement of the Fertilizer (Control) Fourth Amendment Order, 2015 shall not be required to possess the qualifications at the time of renewal of their authorisation letter.

Provided further that the said qualifications shall not be applicable to the registered agricultural Cooperative Societies and State Marketing Federations but they shall engage a person with the above qualifications.”

Evidently, the qualification stipulated in sub-clause (4) is only with respect to the applicant. As distinguished from the provisions contained in the Insecticides Rules, there is no provision to grant licence in case the applicant is employing any person having the requisite qualification. Therefore it has to be presumed that, the insistence through introduction of sub-clause (4) is intended only to restrict grant of licence to those who satisfy the prescribed qualification mentioned therein. Since no qualification is prescribed for person employed in dealing with the fertilizers, it cannot be interpreted that applicant under the Fertilizer (Control) Order is precluded in any manner from getting more than one licence. Nowhere in the provisions of the Fertilizer (Control) Order it is insisted that, a qualified person should be present at the place of business. On the other hand, the prescription of qualification is only for entitlement for getting the licence. Hence we are of the considered opinion that the interpretation made as in the case of the Insecticides Rules, based on the legislative objective, cannot apply in an equal manner in the case of clause 8 of the Fertilizer (Control) Order. Hence we make it clear that, any applicant under the said provision is entitled to get more than one licence for carrying on business activities at different premises, even in different locations. Hence the learned Single Judge was wrong in upholding rejection of the

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applications submitted under the Fertilizer (Control) Order. But we take note of the fact that the applicant is not the partnership firm, who is the writ petitioner. Ms. Aswathy Mohanan had nowhere disclosed that, she is a partner in the firm. In view of the findings rendered as above, even if a partner of a firm makes application, if he / she satisfies the requisite qualifications stipulated under sub-clause (4) of clause 8 of the Fertilizer (Control) Order, she should be given licence. Under the above mentioned circumstances, we are inclined to dispose of the above writ appeal on the following terms: (i) The rejection of Ext.P3 series applications through Ext.P4 (a) order, which was upheld by the Single Judge in the impugned judgment, is hereby confirmed. It is made clear that the appellant firm can make application for grant of licence under the Insecticides Rules by showing distinct persons employed at different places of business, who are having the requisite qualification as stipulated under Rule 10 (1A) of the Insecticides Rules, 1971. (ii) With respect to rejection of Ext.P2 series application through Ext.P4, it is held that, the rejection was not sustainable since the finding that a person is not entitled to have more than one licence for conducting business at different places, is illegal and erroneous. The appellant will be at liberty either to pursue the application submitted in the name of Ms. Aswathy Mohanan or if so advised, to submit fresh applications in the name of any of the partners of the firm who satisfies the stipulated qualification under sub-clause (4) of clause 8 of the Fertilizer (Control) Order, 1985.