Agro Inputs Dealers Association Kerala & Ors v. State of Kerala & Ors (WP(C).12509/2019); UPL Ltd. & Ors v. State of Kerala & Ors (WP(C).15301/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** ## **WP(C).No.12509 of 2019** ## **PETITIONER/S:** - **1 AGRO INPUTS DEALERS ASSOCIATION KERALA H.O ERNAKULAM (REG.NO EKM/TC/46/2017) ORGA FERT, BALAVADI LANE, THAIKARACHIRA P.O, PULLUVAZHY, ERNAKULAM 683541, REPRESENTED BY ITS GENEREAL SECRTARY C.M MATHAI VADAKKEKALAYIL.** - **2 AJIL JOSE, AGED 39 YEARS S/O. LATE V.C JOSEPH, VADAKKEL HOUSE, MANGUZHI ROAD, EDAPALLY P.O, KOCHI 682 024** - **3 GEEMON PAUL, AGED 45 YEARS S/O. A.A PAUL, AANJIPARAMBIL HOUSE, MANORAMA JUNCTION, KOCHI 16** **BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJINIE** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, AGRICULTURAL DEVELOPMENT AND FARMERS WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 THE DIRECTOR , DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 001** - **3 ADDITIONAL DIRECTOR OF AGRICULTURE (CP), OFFICE OF THE DIRECTOR OF DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE, THIRUVANANTHAPURAM 695 001** **SRI. B. VINOD SR. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2019, ALONG WITH WP(C).15301/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.12509 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** ## **WP(C).No.15301 of 2019** ## **PETITIONER/S:** **1 UPL LTD., HAVING ITS CORPORATE OFFICE AT UPL HOUSE, 610 B/2, BANDRA VILLAGE, OFF WESTERN EXPRESS HIGHWAY, BANDRA EAST, MUMBAI-400051, REPRESENTED BY ITS GENERAL MANAGER-LEGAL, UPL LTD, MR.PRAKASH SHETTY. 2 MR. PRAKASH SHETTY HAVING HIS OFFICE AT UPL HOUSE, 610/B2, BANDRA VILLAGE, OFF WESTERN EXPRESS HIGHWAY, BANDRA EAST, MUMBAI-400 051. BY ADVS. SRI.P.GOPINATH MENOR(SR.) SRI.JAI MOHAN SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.M.GOPIKRISHNAN NAMBIAR SRI.PAULOSE C. ABRAHAM** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA, THROUGH PRINCIPAL SECRETARY, DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE ROOM NO 102, 1ST FLOOR ANNEX 11, SECRETARIAT, THIRUVANANTHAPURAM -695 033.** - **2 DIRECTOR OF AGRICULTURE, DIRECTORATE OF AGRICULTURE, DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE, VIKAS BHAWAN, THIRUVANANTHAPURAM, KERALA-695 033. SRI.B.VINOD, SR. GOVERNMENT PLEADER** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2019, ALONG WITH WP(C).12509/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.12509 of 2019 3 ## **JUDGMENT** Aforesaid writ petitions are materially connected in respect of an issue arising under the provisions of the Insecticides Act, 1968, and eventhough there is material difference in the facts and circumstances of the writ petitions, the question to be decided raised in these writ petitions are typical in nature and therefore I heard them together and propose to pass this common judgment. The facts and figures and documents contained in the W.P.(C) No.15301/2019 is relied upon for disposal of the writ petitions and wherever required facts will be shown separately. 2. First petitioner in W.P.(c)No.15301/2019, is a manufacturer and exporter of agro-chemicals and is operating from India. Second petitioner is a shareholder of the 1[st] petitioner Company. According to the petitioners, they are aggrieved by Exts. P2 to P4 letters dated 19.01.2019, 25.03.2019 and WP(C).No.12509 of 2019 4 02.05.2019 issued by the respondents, imposing prohibition in the State of Kerala, the product manufactured by the 1[st] petitioner company, namely, Cypermethrin 3% + Quinalphos 20% EC sold under the brand name 'Viraat'. As per the impugned directives, respondents have _inter alia_ directed all agricultural officers in Kerala to (i) visit all shops and confirm that there is neither any illegal stock nor sale of the said product; (ii)not to prescribe the said product to farmers since the said product is not recommended by Kerala Agricultural University; (iii) direct petitioner No.1 to take the said product back within one month and report before 30.05.2019. It is submitted that the impugned directives have been issued in view of the purported death of a person in Pathanamthitta District while spraying insecticides. The paramount contention advanced by the petitioners is that, the impugned directives are without jurisdiction, illegal and wholly arbitrary, since the State Government is not vested with any powers to issue such directives on WP(C).No.12509 of 2019 5 account of the statutory stipulations contained under the Insecticides Act and the allied Rules. 3. The 2[nd] respondent has filed a detailed counter affidavit along with various documents and notification issued by the State Government in respect of the decision taken by the State Government to conduct organic farming within the State of Kerala as early as in 2010. The allegations, claims and demands contained in the writ petition are denied and among other contentions it is stated that the product 'Viraat' manufactured by the petitioners is a restricted compound by State of Kerala as per G.O.(M.S)No.128/2015 dated 28.07.2015. That apart it is stated that, the Kerala State, accounts for 1.22% land in India, and the State is mostly urbanised, and the lands are not being cultivated. The cultivation is restricted to 53.50% of the total area. Therefore the manufacturers of insecticide does not suffer any grave loss compared to the harmful effect of WP(C).No.12509 of 2019 6 scientific use of insecticides. Two farm labourers spraying 'viraat' died in Peringara in Pathanamthitta District and immediately reports were called and action under Section 21(d) of the Act, 1968, was taken to prevent the sale of the insecticide in order to avoid further casualties. It is also pointed out that, 'viraat' is an insecticide approved for the pest control of cotton and brinjal by the Central Insecticides Board and Registration Committee (in short CIB and RC). Cotton is not cultivated anywhere in Kerala. 4. Moreover brinjal is not cultivated commercially in the State of Kerala. As part of organic farm promotion in the State, domestic cultivation of brinjal exist without the use of any insecticides. A leaflet approved by the CIB and RC is produced as Ext.R2(a). Fact remains, in Peringara 'viraat' was used on paddy. Taking into account the said aspect, Kerala Agricultural University had not recommended the use of this product in the State of| WP(C).No.12509 of 2019 7 Kerala. It was therefore restrictions have been imposed for sale of 'viraat'. It is also noticed that the farm labourers were using 'viraat' in paddy field, which would neither benefit the paddy, nor the farmers. So also it is submitted that the petitioners cannot claim any right to sell the product across the State of Kerala, since the use of the said product is restricted to cotton and brinjal crops. That apart it is submitted, indiscriminate use of this form of chemical obviously affects the water bodies of State of Kerala. Therefore, the Department of Agriculture Development and Farmers Welfare, Kerala is empowered and authorised to enforce the regulations on Insecticides Act, 1968 and the Rules 1971. As per these Rules, the manufacture, distribution and sale of pesticides are regulated through the licence issued by the Department of Agriculture. The Department of Agriculture aims at the welfare of farmers and farming community and not an intermediary for promoting the business and profitability of WP(C).No.12509 of 2019 8 pesticide dealers. The ban and restriction of certain pesticides aims to safeguard the health of human beings and especially farmers, who are involved in the spraying activities with this hazardous chemicals, evident from Ext.R2(b) dated 10.02.2010. Ext. R2(b) is issued based on the report of State Bio Diversity Board, and the report is produced as Ext.R2(c). Ext.R2(c) has put forth 24 point recommendations made by the State Bio Diversity Board, and the policy of the State of Kerala eversince 2010 is to safeguard and reduce use of insecticides in a phased manner and promote organic farming. 5. In fact the Kerala State Organic Farming Policy, Strategy and Action Plan was formulated as per G.O(M.S)16/06 Agri dated 01.03.2006 and was further amended as per order dated 10.02.2010 i.e.Ext.R1. Which policy envisages a strategy to phase out chemical pesticides and fertilizers from the farming sector with a detailed action plan. It WP(C).No.12509 of 2019 9 was based on the above Organic Farming Policy of the State and the Insecticides Act, 1968, Government exercised the power of restrictive licensees of sale of extremely toxic insecticides for reasons of public sale and banned 14 toxic pesticides/fungicides/insecticide with red and yellow label as per Ext.R2(d) G.O (MS) dated 7/5/2011. It is also submitted that the organic farming policy is being implemented by the State Government eversince 2002-03 and has also introduced two brands namely Kerala Organic and Kerala Naturals for the use of the organic farm produces. Other contentions are also raised with respect to the inconveniences and disabilities faced, consequent to the use of insecticides and other allied products especially due to the peculiar terrain of the State of Kerala and the large extent of water bodies. It is also submitted that the unprecedented use of this insecticides and pesticides is polluting the water and the soil effecting materially the life and liberty of the people. Therefore according to the WP(C).No.12509 of 2019 10 respondents, the action initiated against the petitioners is in accordance with law, and on the basis of the policy of organic planning and therefore petitioners have not made out any case justifying interference of this Court as is sought for in the writ petition. 6. So far as W.P.(c)No.12509/2019 is concerned. petitioners are dealers in fertilisers, pesticides and agricultural tools and instruments and they are aggrieved on account of certain imposition of restriction made by the respondents to carry on the business in a smooth effective and profitable manner. Therefore seeks to quash Ext.P3 G.O. dated 28.07.2015 imposing certain restrictions on the sale of the products, and so also to quash Ext.P9 order passed by the State Government dated 02.02.2019 banning a product called glyfocite which is a weed destructor and also other products having the formation of glyfocite for a period of 60 days and for other related reliefs. The questions raised WP(C).No.12509 of 2019 11 in both the writ petitions are in relation to the power of the State Government to ban or restrict such products on account of the provisions contained under the Act, 1968. Eventhough a separate counter affidavit is filed in the said writ petition also, the contentions are almost typical in nature. 7. I have heard learned senior counsel for the petitioner appearing in W.P.(c) No.15301/2019, Sri. P.Gopinath Menon. Learned counsel appearing for the petitioners in W.P.(c) No.12509/2019, Sri.R.Lakshmi Narayan and learned senior Government Pleader Sri.B.Vinod and perused the pleadings and documents on record. 8. Paramount contention advanced by learned senior counsel appearing for the petitioners is that, the product 'viraat' is safe to human beings and is being successfully used by lot of farmers across India to protect their crops and the product has undergone evaluation for safety by a statutory expert body, that is the Registration Committee WP(C).No.12509 of 2019 12 constituted under Section 5 of the Insecticides Act, 1968 and was found safe for humans and animals. The 1[st] petitioner was also duly given certificate of Registration by the Registration Committee for manufacture of the said products and its label to leaflet were also approved by the Registration Committee. That apart it is pointed out that, the respondents are having no jurisdiction to issue the directives impugned and under the Act, 1968, only the Central Government is vested with powers to permanently ban, sale of an insecticide in accordance with the provisions of Section 27(2) of the Act in consultation with the Registration Committee. It is also argued that, the State Government can only prohibit the sale etc of an insecticide temporarily upto 60 days and extendable for a maximum period of 90 days by issuing a notification in the Official Gazette, pending investigation into the matter. Therefore the ban imposed by the respondents on the sale of the products viraat in the Sate of Kerala is without WP(C).No.12509 of 2019 13 jurisdiction. It is also submitted that Act, 1968 does not empower the respondents to return stock of the product to petitioner no.1 and delete its name from the licences. That apart it is contended the licencing officer cannot revoke any licence granted to sell a duly registered insecticide unless any of the conditions under Section 14(1) of the Act, 1998 are satisfied. Therefore in the case on hand, none of the preconditions mentioned in Section 14 are satisfied. It is also submitted that, before issuing the impugned directives, neither any material has been put to the 1[st] petitioner nor any opportunity of being heard has been afforded and therefore impugned directives suffer from the vice of arbitrariness and illegality, and also violative of principles of natural justice. 9. It is also submitted that the banning is done without any scientific evidence as to the death of the persons who were spraying the insecticide in paddy field. Other contentions are also raised with WP(C).No.12509 of 2019 14 respect to the illegality in coming to a conclusion that the product itself was responsible for death of the two persons. Typical contentions are advanced by the learned counsel for the petitioner in the other writ petition also eventhough the factual circumstances is slightly different from the connected writ petition. On the other hand learned Government Pleader relied heavily upon Exts.R2(b) and R2(c) Organic Farming Policy of the State Government on and with effect from 2010 and submitted that the State Government is at liberty to impose ban on the products in order to carry on with organic farming within the State. It is also pointed out that, due to the frequent use of the product 'viraat' by the farmers in paddy fields the water bodies and the properties are getting contaminated causing various environmental and other problems, which persuaded the Government to issue necessary directives and therefore there is no manner of illegality on the part of the State Government susceptible to be interfered with by this Court by WP(C).No.12509 of 2019 15 exercising the power of judicial review. Learned Government Pleader has also invited my attention to the following judgments of the Apex Court in _**M.C.Mehta and Another vs. Union of India and Others [(1987)1SCC 395]**_ , _**M.C.Mehta (Calcutta Tanneries' Matter) Vs. Union Of India And Others [(1997)2 SCC 411**_ , _**Vellore Citizens' Welfare Forum Vs. Union Of India And Others [(1996)5 SCC 647]**_ , _**M.C.Mehta Vs.Kamal Nath And Others [(2000) 6 SCC 213]**_ and _**Arjun Gopal Vs.Union Of India [AIR 2018 SC 5731]**_ to canvass the proposition that if there are sufficient reasons in order to protect the public from the vagaries of use of this insecticide irrespective of the provisions contained in any statute, the State Government is duty bound to take action and therefore whatever action now taken cannot be termed to be illegal or arbitrary. That apart it is submitted that, by virtue of the entry 14 of the State list and entry 29 of the concurrent list, the State Government is entitled as of right to make laws and thereby protect the larger interest of the WP(C).No.12509 of 2019 16 community. Therefore by virtue of the notification issued in the year 2010 to conduct organic farming, the State Government is entitled as of right to ban the use of any insecticide or other product detrimental to the interest of the organic farming and to protect the life and liberty of the people of the State. 10. I have evaluated the rival contentions put forth by the respective parties. The issue is guided by the Insecticides Act, 1968, which is an Act made by the Government of India to regulate the import, manufacture, sale, transport, distribution and use of insecticide with a view to prevent risk to human beings or animals and for any matters connected. The Act applies to the whole of India and the provisions of the Act is in addition to and not in derogation of any other law for the time being in force. Section 4 deals with the formation of Central Insecticides Board to be constituted to advise the Central Government and State Governments on WP(C).No.12509 of 2019 17 technical matters arising out of administration of the Act and to carry out the other functions assigned to the Board by or under the Act. Sub Section 2 deals with the matters on which the Board is vested with powers to advise under sub section (1) which read thus:- _"a) the risk to human beings or animals involved in the use of insecticides and the safety measures necessary to prevent such risk;_ _b)the manufacture, sale, storage, transport and distribution of insecticides with a view to ensure safety to human beings or animals"_ The board shall consist of various persons right from the Director General of Health Services, (ex-officio) who shall be the Chairman, and twenty other members, official and otherwise. **==> picture [403 x 13] intentionally omitted <==** Registration Committee, which is to be constituted by the Central Government consisting of a Chairman, and not more than five persons who shall be members of the Board including the Drugs Controller, India and the Plant protection Adviser to the Government WP(C).No.12509 of 2019 18 of India for the purpose of (i)to register insecticides after scrutinizing their formulae and verifying claims made by the importer or the manufacturer, as the case may be, as regards their efficacy and safety to human beings and animals; and (ii)to perform such other functions as are assigned to it by or under the Act. Section 9 deals with Registration of insecticides which stipulates that any person desiring to import or manufacture any insecticide may apply to the Registration Committee for the registration of such insecticide and there shall be separate application for each such insecticide. Sub Section 3 of Section 9 deals with the procedure to be followed on receipt of the application which stipulates that the Committee may after such enquiry as it deems fit and after satisfying itself that the insecticide to which the application relates conforms to the claims made by the importer or by the manufacturer, as the case may be, as regards the efficacy of the insecticide and its safety to human beings and animals, register on WP(C).No.12509 of 2019 19 such conditions as may be specified by it, and on payment of such fee as may be prescribed, the insecticide, allot a registration number thereto and issue a certificate of registration in token thereof within a period of twelve months from the date of receipt of the application. 12. Section 12 deals with Licensing Officers in the the States which stipulates that the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit to be licensing officers for the purposes of this Act and define the areas in respect of which they shall exercise jurisdiction. Section 13 deals with Grant of licence which specifies that any person desiring to manufacture or to sell, stock or exhibit for sale or distribute any insecticide or to undertake commercial pest control operations with the use of any insecticide may make an application to the licensing officer for the grant of a licence. Section 14 deals with Revocation, suspension and WP(C).No.12509 of 2019 20 amendment of licences which stipulates that _" 1) If the licensing officer is satisfied, either on a reference made to him in this behalf or otherwise, that-_ _a) the licence granted under Section 13 has been granted because of misrepresentation as to an essential fact;or_ _b) the holder of a licence has failed to comply with the conditions subject to which the licence was granted or has contravened any of the provisions of this Act or the rules made thereunder,_ _then, without prejudice to any other penalty to which the holder of the licence may be liable under this Act, the licensing officer may, after giving the holder of the licence an opportunity of showing cause, revoke or suspend the licence._ _2) Subject to any rules that may be made in this behalf, the licensing officer may also vary or amend a licence granted under Section 13"_ 13. Section 18 of the Act deals with prohibition of sale, etc.,of certain insecticides, which stipulates that _"1) No person shall, himself or by any person on his behalf, sell, stock or exhibit for sale, distribute, transport, use or cause to be used by any worker,-_ _a) any insecticide which is not registered under this Act;_ _b) any insecticide, the sale, distribution or use of which is for the time being prohibited under section 27;_ WP(C).No.12509 of 2019 21 _c) any insecticide in contravention or any other provision of this Act or of any rule made thereunder._ _2) No person shall, himself or by any person on his behalf, sell, stock or exhibit for sale or distribute or use for commercial pest control operations any insecticide except under, and in accordance with the conditions of, a licence issued for such purpose under this Act._ _Explanation:- For the purpose of this section an insecticide in respect of which any person has applied for a certificate of registration under any of the provisos to sub-section (1) of section 9, shall be deemed to be registered till the date on which the refusal to register such insecticide is notified in the Official Gazette.”_ 14. Section 21 deals with Powers of insecticide inspectors, which read thus:- _1) An Insecticide Inspector shall have power-_ _(a) to enter and search, at all reasonable time and with such assistance, if any, as he considers necessary, any premises in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed, or for the purpose of satisfying himself that the provisions of this Act or the rules made thereunder or the conditions of any certificate of registration or license issued thereunder are being complied with;_ _(b) to require the production of, and to insect, examine and make copies of, or take extracts from, registers, records or other documents kept by a manufactures, distributor, carrier dealer or any other person in pursuance of the provisions of this Act or the rules made thereunder and seize the same, if he has reason to believe that all or any of them, may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder;_ _(c) to make such examination and inquiry as he thinks fit in order to ascertain whether the_ WP(C).No.12509 of 2019 22 _provisions of this Act or the rules made thereunder are being complied with and for that purpose stop any vehicle;_ _(d) to stop the distribution, sale or use of an insecticide which he has reason to believe is being distributed, sold or used in contravention of the provisions of this Act or the rules made thereunder, for a specified period not exceeding 1[thirty] days, or unless the alleged contravention is such that the defect may be removed by the possessor of the insecticide, seize the stock of such insecticide;_ _(e) to take samples of any insecticide and send such samples for analysis to the Insecticide Analyst for test in the prescribed manner; and_ _(f) to exercise such other powers as my be necessary for carrying out the purposes of this Act or the rules made thereunder._ _2[(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, as far as may be, apply to any search or seizure under this Act as the apply to any search or seizure made under the authority of a warrant issued under section 94 of the said Code.]_ _(3) An Insecticide Inspector may exercise the powers of a police officer under[ 3] [section 42 of the Code of Criminal Procedure, 1973 (2 of 1974)] for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an insecticide is seized._ 15. Section 27 deals with Prohibition of sale, etc., of insecticides for reasons of public safety, which read thus:- _(1)If, on receipt of a report under section 26 or otherwise, the Central Government or the State Government is of opinion, for reasons to be recorded in writing, that use of any insecticide specified in clause (e) of section 3 or any specific batch thereof is likely to involve such risk to human beings or animals as to render it expedient or necessary to take immediate action then that Government may, by notification in the_ WP(C).No.12509 of 2019 23 _Official Gazette, prohibit the sale, distribution or use of the insecticide or batch, in such area, to such extent and for such period not exceeding sixty days (provided that where the investigation is not completed within the said period, the Central Government or the State Government, as the case may be, may extend if by such further period or periods not exceeding thirty days in the aggregate as it may specify in a like manner)as may be specified in the notification pending investigation into the matter:_ _2) If, as a result of its own investigation or on receipt of the report from the State Government and after consultation with the Registration Committee, the Central Government is satisfied that the use of the said insecticide or batch is or is not likely to cause any such risk, it may pass such order (including an order refusing to register the insecticide or cancelling the certificate or registration, if any, granted in respect thereof) as it deems fit, depending on the circumstances of the case._ **==> picture [403 x 13] intentionally omitted <==** contention advanced by learned senior counsel for the petitioners is that, the mandatory requirement under Section 27(1) in the event of any contingency specified therein is to take immediate action by notification in the official gazette by prohibiting the sale, distribution or use of the insecticide etc. in any particular area to such extend and for such period but not exceeding 60 days as may be specified in the notification pending investigation WP(C).No.12509 of 2019 24 in the matter. But in the case on hand, no such notification is issued by the State Government. Further, it is clear if the investigation is not completed in accordance with the proviso thereunder within 60 days, the Central Government or the State Government as the case may be, is left with power to extend it by such further period or periods not exceeding 30 days in the aggregate as it may specify in a like manner. Therefore after a total period of 90 days, the State Government is duty bound to forward a report to the Registration Committee and if the Central Government is satisfied that, use of the said insecticide or batch is or is not likely to cause any such risk it is left with the power to pass to such order. Therefore I find force in the contention advanced by learned senior counsel that, none of these procedures contemplated under Section 27 is followed by the State Government and therefore since the time period provided thereunder has exceeded, there is no power vested with the State Government to continue the ban any WP(C).No.12509 of 2019 25 further. In that view of the matter, I am of the considered opinion that, there is no power as such now enjoyed by the State Government to continue the ban in force in accordance with the provisions of Act, 1998. Learned senior Government Pleader has a contention that, in accordance with the entries contained under lists II and III of Schedule 7 discussed above, State Government is vested with powers to make laws and it was invoking the said power the State Government has decided to start organic farming with effect from the year 2010 as per Ext.R2(c) which has the characteristics of an executive fiat under Article 162 of the Constitution of India and in that view of the matter, inspite of the provisions contained under Act,1998, the action now initiated, and continuing the ban is in accordance with law. Learned Government Pleader has also advanced arguments relying upon the judgments of the Apex Court referred to and submitted that in order to keep pace with changing socio economic norms, a law of past does not fit in the present WP(C).No.12509 of 2019 26 context and Court is vested with powers to evolve law and protect the larger public interest, irrespective of the statutory stipulations contained under Act, 1998. On the contrary, learned senior counsel submitted that there is no legislation made by the State Government in accordance with the entries specified above and the Government notification issued to start organic farming is not a substitute for any Rule or law to be made by the State Government in that regard. Therefore, it is submitted that the entire action of the respondents are violative of the provisions of Act, 1998. On evaluating the submissions made by respective counsel, I am of the considered opinion that, there is no dispute at all with respect to the violation of the procedure contemplated under Section 27 of Act, 1998, and since 90 days period have exceeded as is provided therein the State Government is duty bound to refer the matter to the Central Government and the Central Government alone is vested with powers thereunder to decide as to whether the WP(C).No.12509 of 2019 27 insecticide is to be banned or permitted to be continued. Moreover, petitioners are carrying on the business by virtue of the fundamental rights guaranteed to them under Article 19(1)(g) of the Constitution of India and therefore the law intended under Article 19(6)enabling the State Government for making any law need to be a proper legislation in contemplation of the imperatives contained in the said clause. This question was considered by the Apex Court _**in Bijoe Emmanuel and others v. State of Kerala and others [AIR 1987 SC 748]**_ and held as follows in paragraphs 15 & 16. _15. We have referred to Art.19(1)(a) which guarantees to all citizens freedom of speech and expression and to Art.19(2) which provides that nothing in Art 19(1) shall prevent a State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by Art.19(1) (a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or settled that any law which may be made under Cls.(2) to (6) of Art.19 to regulate the exercise of the right to the freedom guaranteed by Art.19(1) (a) to (e) and (g) must be 'a law' having statutory force and not a mere executive or departmental instruction. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 the question_ WP(C).No.12509 of 2019 28 _arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of Art. 19(2) to (6). The Constitution Bench answered the question in the negative and said._ _“ Though learned counsel for the respondent started by attempting such a justification by invoking S.12 of the Indian Police Act he gave this up and conceded that the regulations contained in Chap.XX had no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be “a law” which the State is entitled to make under the relevant Cls.(2) to (6) of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the same be “a procedure established by law” within Art. 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations.”_ _16. The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying to citizen's Fundamental Right under Art.19(1) (a). Further it is not possible to hold that the two circulars were issued 'in the interest of the sovereignty and integrity of India, the security of the State, friendly relation with foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence' and if not so issued, they cannot again be invoked to deny a citizen's Fundamental Right under Art.19(1)(a). In Kameshwar Prasad v. The State of Bihar, 1962 (3) Supp SCR 369 : (AIR 1962 SC 1166), a Constitution Bench of the_ WP(C).No.12509 of 2019 29 _Court had to consider the validity of R.4A of the Bihar Government Servants Conduct Rules which prohibited any form of demonstration even if such demonstration was innocent and incapable of causing a breach of public tranquillity. The Court said,_ _“No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquillity or which would fall under the other limiting criteria specified in Art.19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration – be the same however innocent and however incapable of causing a breach of public tranquillity and does not confine itself to those forms of demonstrations which might lead to that result.”_ _Examining the action of the Education Authorities in the light of Kharak Singh v. State of Uttar Padesh, (AIR 1963 SC 1295) (supra) and Kameshwar Prasad v. State of Bihar, (AIR 1962 SC 1166)(supra) we have no option but to hold that the expulsion of the children from the school not joining the singing of the National Anthem though they respectfully stood up in silence when Anthem was sung was violative of Art.19(1)(a)._ The proposition so laid down was followed by the Apex Court in _**State of Bihar and Others**_ _**vs.Project Uchcha Vidya,Sikshak sanch and others[(2006) 2 SCC 545]**_ and held as follows in paragraphs 69 to 71 . _69. The right to manage an institution is also_ WP(C).No.12509 of 2019 30 _a right to property. In view of a decision of an eleven-Judge Bench of this Court in T.M.A. Pai Foundation v.State of Karnataka establishment and management of an educational institution has been held to be a part of fundamental right being a right of occupation as envisaged under Article 19(1)(g) of the Constitution. A citizen cannot be deprived of the said right except in accordance with law. The requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. Such a law, it is trite, must be one enacted by the legislature._ _70. In Rai Sahib Ram Jawaya Kapur v. State of Punjab whereupon reliance was placed by Mr.Mishra, this Court observed:(SCR p.236)_ _“The executive indeed can exercise_ _the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does not follow from this that in order enable the executive to function, there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws”._ _71. The said decision, however, was distinguished by this Court in Thakur Bharat Singh stating that the executive action which was upheld therein was although not supported by legislation, but it did not operate to the prejudice of any citizen. It was categorically held:(SCR pp.459 F-460B)_ _“All executive action which operates to_ WP(C).No.12509 of 2019 31 _the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and exclusive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invaild. Our federal structure is founded on certain fundamental principles:(1) the sovereignty of the people with limited government authority i.e., the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) there is a distribution of powers between the three organs of the Statelegislative, executive and judicial - each organ having some check direct or indirect on the other; and (3) the rule of law which includes judicial review of arbitrary executive actions”_ 17. Above all these, it is clear that, the issues are guided solely by the provisions of Act, 1998. Though there is a power vested with the State Government under Section 14 of the Act for WP(C).No.12509 of 2019 32 revocation and suspension of a licence, it is restricted to misrepresentation on essential facts, failure to comply with licensing conditions or has contravened any of the provisions of the Act. Even assuming for argument sake that, there are circumstances, it cannot transgress the power, limited and circumscribed under Section 14 of the Act. So much so, there is no concrete evidence to arrive at a conclusion that, the products in question are so harmful, so as to affect public interest enabling this Court to overlook the law and uphold the action of the State. 18. So also Ext.P9 in W.P.(c) No.12509/19 is concerned, the State Government has not taken any action to report the matter to the Central Government in contemplation of the provisions of Section 27 of Act, 1998. In that view of the matter, I do not think the continuance of action against the petitioners beyond the time limit of 90 days prescribed can be sustained under law. WP(C).No.12509 of 2019 33 Therefore, I have no hesitation to hold that, action if any continued on the basis of the impugned directives and orders cannot be sustained under law. Therefore, there will be a direction to the respondents not to interfere with the business carried on by the petitioners, in accordance with law, in respect of the pesticide 'viraat' and the weedicide, glyfocite, sales of which are prohibited by the State Government. However, the judgment will not stand in the way of the State Government taking appropriate action in accordance with the stipulations contained under Section 27 of the Act, 1998 and making a report to the Central Government in order to consider the same in accordance with the provisions of Section 27 of Act, 1998, at the earliest possible, and the continuance of the business by the petitioners will depend upon the decision taken by the Central Government in that regard if any. However, it is made clear that no interference is made to Ext.P3, Government Order dated 28.07.2015, produced in W.P.(c)No.12509/2019. WP(C).No.12509 of 2019 34 Since the challenge is made after a period of almost four years and reasonable restrictions alone are made, which can be viewed only in larger public interest, since the restrictions are mostly in the nature of insisting for prescription from agricultural officers for sale of certain products enumerated in Ext.P3 Government Order. On a reading of Ext.P3, what I could gather is that, the attempt is only to regulate the use of pesticides so as to remain advantageous for the common good of the people. But I leave open liberty of the petitioner to challenge any action consequent to the imposition of the conditions in Ext.P3, if not already done in accordance with the procedure prescribed under Section 15 of the Act. Upshot of the above discussion is, the writ petitions are allowed to the above specified extent. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** hmh WP(C).No.12509 of 2019 35 ## **APPENDIX OF WP(C) 12509/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE PHOTOCOPY OF THE REGISTRATION CERTIFICATE DATED 18-01-2017 EXHIBIT P2 THE PHOTOCOPY OF THE GOVERNMENT ORDER NO. 116/2011 DATED 7/05/2011 EXHIBIT P3 THE PHOTOCOPY OF THE G.O(MS) NO. 128/2015 DATED 28-07-2015. EXHIBIT P4 THE PHOTOCOPY OF THE INVOICE ISSUED FROM SS PESTICIDES, POLLACHY, DATED 16/03/2019 EXHIBIT P5 THE PHOTOCOPY OF THE DELIVERY NOTE AND TAX INVOICE ISSUED BY AGRI BEGRY, EVIDENCING ONLINE SALE OF PESTICIDES EXHIBIT P6 THE PHOTOCOPY OF CIRCULAR NO. TQ(1)44027/2016 DATED 29/11/2016 EXHIBIT P7 THE PHOTOCOPY OF THE CIRCULAR NO. TQ 22908/17 DATED 3/01/2019 EXHIBIT P8 THE PHOTOCOPY OF THE REPRESENTATION DATED 23/01/2019 EXHIBIT P9 THE PHOTOCOPY OF G.O(RT) NO. 121/2019 DATED 02/02/2019** **EXHIBIT P10 THE PHOTOCOPY OF REPRESENTATION DATED 12-04-2019 EXHIBIT P11 THE PHOTOCOPY OF ORDER BEARING NO.TQ(1)19361/19 DATED 24.5.2019** **RESPONDENT'S/S EXHIBITS: EXHIBIT R2(A) TRUE COPY OF THE GO(P)NO.39/2010/AGRICULTURAL DATED 10.2.2010 EXHIBIT R2(B) TRUE COPY OF THE REPORT SUBMITTED BY THE STATE BIO DIVERSITY BOARD TO GOVERNMENT OF KERALA IN THE YEAR 2010** WP(C).No.12509 of 2019 36 |**EXHIBIT R2(C)**|**TRUE COPY OF THE ORDER SO3951(E)DATED**| |---|---| ||**8.8.2018**| |**EXHIBIT R2(D)**|**TRUE COPY OF THE**| ||**GO(RT)AGRICULTURE/128/2015 DATED**| ||**28.7.2015**| |**EXHIBIT R2(E)**|**TRUE COPY OF THE DIRECTION DATED**| ||**7.2.2018 ISSUED BY THE JOINT SECRETARY**| ||**OF AGRICULTURAL OFFICERS**| |**EXHIBIT R1(F)**|**TRUE COPY OF THE REPORT OF THE**| ||**GLYSOPHATE**| WP(C).No.12509 of 2019 37 ## **APPENDIX OF WP(C) 15301/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ALONG WITH APPROVED LABEL & LEAFLETS ISSUED BY REGISTRATION COMMITTEE TO PETITIONER NO.1 UNDER S 9(3) OF THE ACT FOR MANUFACTURE OF THE INSECTICIDE CYPERMETHRIN 3 % + QUNINALPHOSE 20% EC DATED 10.5.2019** **EXHIBIT P2 TRUE COPY OF THE LETTER BEARING NO TQ 22908/17 DATED 19.1.2019 ISSUED BY RESPONDENT NO 2** - **EXHIBIT P3 TRUE COPY OF THE LETTER BEARING NO AGRI NCA3/70/2019-AGRI DATED 25.3.2019 ISSUED BY THE RESPONDENT NO 1 TO THE RESPONDENT NO 2** **EXHIBIT P4 TRUE COPY OF THE LETTER BEARING NO TQ (1) 2001/2019 DATED 2.5.2019 ISSUED BY RESPONDENT NO 2.** **EXHIBIT P5 TRUE COPY OF CCFI' S REPRESENTATION DATED 19.4.2019 ALONG WITH A COPY OF THE SAID BOOKLET** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 10.5.2019 ADDRESSED BY THE PETITIONER NO 1 TO THE OFFICE OF ADDITIONAL DIRECTOR OF AGRICULTURE (WITHOUT ENCLOSURES)** - **EXHIBIT P7 TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE SECRETARY, CENTRAL INSECTICIDES BOARD AND REGISTRATION COMMITTEE TO THE IST PETITIONER UNDER S.9(3) OF THE ACT FOR MANUFACTURE OF THE INSECTICIDES ACT FOR MANUFACTURE OF THE INSECTICIDE CYPERMETHRIN 3% + QUINALPHOS 20% EC DATED 19.08.1998.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2(A) TRUE COPY OF THE LEAFLET APPROVED BY CIB&RC OF THE PRODUCT VIRAAT** WP(C).No.12509 of 2019 38 **EXHIBIT R2(B)** **TRUE COPY OF THE GO(P) NO.39/2010 AGRICULTURAL DATED 10.2.2010** **EXHIBIT R2(C)** **TRUE COPY OF THE REPORT SUBMITTED BY THE STATE BIO DIVERSITY BOARD TO GOVERNMENT OF KERALA IN THE YEAR 2010** **EXHIBIT R2(D) TRUE COPY OF THE ORDER SO 3951(E) DATED 8.8.2018** **EXHIBIT R2(E) TRUE COPY OF THE GO(RT) AGRICULTURE/128/2015 DATED 28.7.2015** **EXHIBIT R2(F)** **TRUE COPY OF THE DIRECTION DATED 7.2.2018 ISSUED BY THE JOINT SECRETARY OF AGRICULTURAL OFFICERS** **EXHIBIT R2(G) TRUE COPY OF THE DIRECTIONS DATED THE 7.2.2018 ISSUED BY THE GOVERNMENT OF INDIA**