K.V. Biju v. Union of India (WA No.1485 of 2020)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** **WA.No.1485 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 9198/2016(Y) OF HIGH COURT OF KERALA** **APPELLANT/PETITIONER:** **K.V.BIJU AGED 41 YEARS S/O.KARUKAMPALLY VIJAYAN, KARUKAMPALLY HOUSE, CHERPU.P.O, THRISSUR DISTRICT-680561.** **BY ADVS.** **SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SREEJISH M.K.** ## **RESPONDENTS/RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF AGRICULTURE, DEPARTMENT OF AGRICULTURE AND CO-OPERATION, CENTRAL SECRETARIAT,NEW DELHI,PIN-110001.** **2 THE JOINT SECRETARY (PP) APPELLATE AND REVISIONAL AUTHORITY TO CIB & RC,MINISTRY OF AGRICULTURE,KRISHI BHAVAN, DR.RAJENDRA PRASAD ROAD,NEW DELHI,PIN-110001.** **W.A.1485/2020** 2 **3 THE REGISTRATION COMMITTEE CENTRAL INSECTICIDES BOARD, DIRECTORATE OF PLANT PROTECTION,QUARANTINE AND STORAGE(PPQ AND S), N.H.IV, FARIDABAD, HARYANA-121001,REPRESENTED BY ITS SECRETARY.** **4 M/S.SUMITOMO CHEMICALS INDIA PVT.LTD UNIT NO 703 AND 704, 7TH FLOOR, AGGARWAL CORPORATE TOWERS, PLOT NO 23, DISTRICT CENTRE, RAJENDRA PLACE, NEW DELHI-110008.** - **5 INDIAN COUNCIL OF MEDICAL RESEARCH P.O.BOX NO.4911,ANSARI NAGAR,NEW DELHI-110029, REPRESENTED BY ITS DIRECTOR GENERAL.** **SRI.RAJESH AGGARWAL-R4 SRI.MADHU NAMBOOTHIRIPAD-R4** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.1485/2020** 3 ## **JUDGMENT** _Ravikumar, J._ This intra-court appeal under Section 5 of the Kerala High Court Act, 1958 is filed against the judgment dated 05.08.2019 in W.P. (C).No. 9198 of 2016. The unsuccessful petitioner is the appellant. He says that he is an activist and the All India Organising Secretary of the “Swadeshi Andolan', which is an organisation constituted to promote the use of indigenous manufactured products and to prevent adverse effect on nature owing to globalisation. He filed the said writ petition mainly challenging Exts.P11 and P20 orders. Ext.11 is an order dated 14.8.2014 passed by the second respondent- Revisional Authority in Revision Petition No.5 of 2014 under the Insecticides Act, 1968. The main grievance raised in the writ petition was that the Revisional Authority virtually allowed the Registration Committee to review its earlier order, as per Ext.P11. The second contention was that the rigour of Ext.P6 was watered down by passing Ext.P11. We may hasten to add that the contention that the revisional authority **W.A.1485/2020** 4 while passing Ext.P11 went wrong in allowing the Registration Committee to review its earlier order was not seriously pressed into service before us. In such circumstances, we will firstly consider the issue as to whether the rigour of Ext.P6 was watered down under Ext.P11 and if so, whether it invites interference? 2. As already noticed, the appellant also seeks for quashment of Ext.P20. The contention is that the appellate authority had failed to consider the fact that no scientific studies had been conducted before granting registration by the Registration Committee. The learned Single Judge repelled the said contention and ultimately dismissed the writ petition. It is in the aforesaid circumstances that this appeal has been preferred raising, inter alia, the aforesaid grounds. 3. We have heard the learned counsel for the appellant, the learned Central Government Counsel as also Sri.Rajesh Aggarwal, the learned counsel appearing for respondent No.4. 4. A succinct narration of facts is required for a proper disposal of this appeal. The fourth respondent herein applied for grant of **W.A.1485/2020** 5 registration for import of the chemical Metofluthrin along with indigenous manufacture of Metofluthrin formulations, Metofluthrin 5% EC and Metrofluthrin 0.005% mosquito coils under Section 9 of the Insecticides Act. Initially, it was rejected as per Ext.P1 by the Registration Committee in its 305[th] meeting for the reason, inter alia, that the said product would be carcinogenic to human beings and many alternatives are already registered for the purpose in the country. According to the appellant, no appeal was preferred against Ext.P1. Subsequently, the fourth respondent submitted Ext.R4(c) representation based on which Ext.P2 order was passed whereby and whereunder the Registering Authority granted registration. Thereupon the appellant preferred Ext.P3 statutory appeal under Section 10 of the Insecticides Act against the said order contending that no power of review is conferred on the Registration Committee. The said appeal was ordered to be treated as a revision under Section 11 of the Act. The revisional authority allowed the revision and cancelled the registration as per Ext.P6. After quashing Ext.P2, it was ordered **W.A.1485/2020** 6 thus:- “RC, if it so desires, may reconsider the representation of SCIPL against the decision on agenda item 6.3 of the 305[th] meeting, subject to the condition that opinion of ICMR on toxicity of the chemical and its formulations shall be taken and duly considered in the RC before final decision on registration.” 5. Feeling aggrieved by Ext.P6, the appellant preferred W.P. (C).No.28454 of 2013 virtually challenging the power of the revisional authority to direct for fresh hearing by the Registration Committee. The said writ petition was dismissed along with W.P. (C).No. 14962 of 2014 as per a common judgment viz., Ext.P9. Thereafter, the appellant unsuccessfully challenged Ext.P9 judgment in appeal and thereafter, Special Leave Petition was also unsuccessfully attempted before the Hon'ble Apex Court. Later, on 27.5.2014, the Registration Committee considered the question of grant of certificate in its 348[th] meeting and granted registration as per Ext.P7. Against Ext.P7, the appellant preferred a revision petition under Section 11 of the Act which culminated in Ext.P11. As per **W.A.1485/2020** 7 Ext.P11 dated 14.8.2015, Ext.P7 was quashed. The certificate of Registration granted by the Registration Committee was ordered to be placed under suspension. It was further ordered thereunder that the Registration Committee should conduct a fresh review of the safety of the product and take a decision as per law, based on the findings on such review. Pursuant to Ext.P11, in the 358[th] meeting of the Registration Committee, a sub-committee was formed as is evident from Ext.R4(F) and Ext.R4(G) is the report of the said sub-committee of the Registration Committee. After considering the report of the said sub-committee, the Registration Committee again granted registration to the fourth respondent in its 359[th] meeting vide Ext.P14. The appellant herein preferred Ext.P15 appeal against Ext.P14. During the pendency of Ext.P15, the petitioner approached this Court by filing W.P.(C).No. 9198 of 2016. Pending the writ petition, the revisional authority passed Ext.P20 order. Later, to bring in challenge against Ext.P20, the appellant herein amended the writ petition and incorporated the challenge against Ext.P20. It is after considering the **W.A.1485/2020** 8 rival contentions in W.P.(C).No. 9198 of 2016 that the impugned judgment was passed. 6. As noticed hereinbefore, the contention of the petitioner to mount challenge against Ext.P11 is that the condition in Ext.P6 was watered down without any authority. The nub of the contentions of the appellant before the learned Single Judge was that the observations, findings and directions in Ext.P6 had become final between the parties and therefore, the revisional authority went wrong in diluting them while passing Ext.P11. The observation in paragraph 15 of the impugned judgment would reveal that the learned Single Judge repelled the contention that the revisional authority went wrong in calling upon the registering authority to have a fresh view on the safety of the product after suspending the registration granted. The learned Single Judge obviously observed that the challenge of the appellant herein against granting of liberty to reconsider the issue cannot be re-agitated as the said contention was virtually considered and rejected as can be seen from Exts.P9 and P10 judgments. It was **W.A.1485/2020** 9 further held by the learned Single Judge that the said question could not be re-opened now. The learned Single Judge also held that all the issues raised in Ext.P15 appeal to assail Ext.P14 order were looked into by the revisional authority as can be seen from Ext.P20 order. Special Leave Petition filed challenging Ext.P10 judgment was dismissed by the Apex Court as per Ext.P13. Evidently, the learned Single Judge took into consideration the fact that revisional authority ultimately passed Ext.P14 order after constituting sub committee and after considering its report. It was further observed by the learned Single Judge that Ext.P14 would reveal that the entire circumstances that led to the registration were fully appreciated by the authority and the order does not infect with any infirmity or illegality warranting interference. As regards the legal issue raised by the appellant as against Ext.P11, it was held that the said issue was considered by the Division Bench of this Court in Ext.P10 and in view of the fact that the SLP filed against Ext.P10 was dismissed, the decision already rendered by the Division Bench is not now open to re-agitate. Taking **W.A.1485/2020** 10 note of such circumstances, it was held that the very attempt of the _res_ petitioner to re-agitate the issue is squarely hit by the principle of _judicata._ 7. The facts expatiated in the writ petition and also in the appeal would reveal that originally when Ext.P6 was challenged before this Court as also before the Hon'ble Apex Court, the contention was that since Ext.P1 had become final, the Revisional Authority could not have conferred a power of review on the Registration Committee. As stated by the appellant himself in paragraphs VI to VIII, the decision of this Court was that the authorities under the Act while considering the for of are application grant registration exercising only administrative power and not exercising any quasi-judicial function and therefore, the Revisional Authority did not lack jurisdiction to direct the Registering Authority to reconsider its earlier decision. The SLP filed against the decision of the Division Bench confirming the decision of the learned Single Judge, was dismissed by he Hon'ble Supreme Court. In the said circumstances, the learned Single Judge is **W.A.1485/2020** 11 right in repelling the contention of the appellant herein that the power of the Revisional Authority to direct the Registering Authority to reconsider the grant of registration cannot be challenged any further . by the appellant on the ground of _res judicata_ The learned counsel for the appellant would further contend that the learned Single Judge has failed to consider the question whether 'the requirement to take into consideration the opinion of the Indian Council of Medical Research (ICMR)' was followed or not while granting registration under Ext.P14. While the learned counsel for the appellant contended that Ext.P14 registration certificate was granted without taking into account the opinion of the ICMR, the learned counsel for the fourth respondent would contend that in fact, the opinion of the sub committee constituted by the ICMR was also taken into consideration while passing Ext.P14. The learned counsel for the fourth respondent would further contend that the fact is that thereafter the revisional authority while considering Ext.P15 had occasion to consider the report of the sub committee constituted by ICMR. In **W.A.1485/2020** 12 other words, Ext.P20 order was passed by the revisional authority after taking into consideration the report submitted by the sub committee of the registering committee which led to the passing of Ext.P14 order as also the report of the sub committee of ICMR. In such circumstances, it cannot be said that the opinion of the ICMR was not taken into consideration by the revisional authority while passing Ext.P20. In this context, we are of the view that another aspect also requires to be taken note of. Ext.P20 would reveal that the revisional authority had also taken into consideration the communication dated 3.7.2012 from the ICMR whereunder they stated that they got no facility for inhalation toxicity. Ext.P20 would reveal that even then the ICMR thought it fit to constitute a sub committee and realising the expertise of the members of the sub committee, they submitted a report dated 1.8.2012. When ICMR revealed such a situation as per communication dated 3.7.2012 and even then made an attempt through the sub-committee, which culminated in the report dated 1.8.2012 to compel that inhalation **W.A.1485/2020** 13 toxicity should be done by ICMR. The maxim 'Lex non cogit ad impossibillia', which means, 'the law does not compel the impossible' should be borne in mind in such a situation. This position embodied in the aforesaid maxim was considered by the Hon'ble Apex Court in **Krishnaswamy S.PD. v. Union of India reported in (2006) 3 SCC 286** . The Apex Court held that the law itself and its administration is understood to disclaim as it does in its general aphorisms, all intentions of compelling impossibilities, and the admiration of law must adopt that general exception in the consideration of particular case. Ext.P20, more particularly, paragraphs 27 to 31 would reveal the manner in which the matter was considered with reference to the report dated 1.8.2012 of the sub-committee of ICMR. It is after taking into consideration the said report that Ext.P20 order was passed. Paragraphs 29 to 31 of Ext.P20 requires reference and they read thus:- “29. In response, the counsel for appellant submitted that the above letter dated 24.09.2012 and the report prepared in the meeting dated 1.8.2012 was well considered in the **W.A.1485/2020** 14 earlier proceedings before the Revisional Authority, and was repelled. Whereas to the contrary, the counsel of the respondents submit, that the letter dated 24.09.2012, along with the report dated 1.8.2012 by ICMR have seen the light of the day, for the first time in the recent pending W.P.No.9198/2016, where ICMR is party as respondent no.5, and when it filed its response affidavit therein. At all anterior point of time, ICMR was never party in the proceedings. 30. The appellant also argued that the said report is being sent by National Institute of Malaria Research an institute under the ICMR; so it cannot be considered as the view of ICMR. However, on contrary from the records available, it is clear that the said report was endorsed to ICMR and the same was presented in the Hon'ble High Court of Kerala by ICMR. Further, the appellant in his written submission dated 11.03.2019 had again said that 'chemical initially found safe, have latter been found to be unsafe (like **W.A.1485/2020** 15 pesticide Endosulfan and many others). But its reverse has never occurred, i.e., Chemical declared unsafe initially, has never become safe again. It is not possible scientifically or logically. Surprisingly it has occurred only in case of this chemical Metofluthrin, wherein CIBRC initially declared it unsafe (305[th] RC meeting). But later mysteriously the same chemical was considered safe (330[th] RC meeting).” 31. It is a considered view that, decision making process by RC is based up on the through scrutiny of scientific facts and evidences submitted by the applicant before them at that point of time. From the submissions of the subcommittee report of ICMR, it becomes ample clear that the decision taken by RC in its wisdom stands test of time. Also from the perusal of the documents and material on record now, it reveals that such a stand of ICMR was found wanting by the Revisional authority, and it was for this reason alone that the RC was directed to review, on its own. Had such a letter and definite report been there to the **W.A.1485/2020** 16 knowledge of the RC or to the Revisional Authority, there would have no reason to question the legality and propriety for the grant of registration of the product. This letter dated 24.9.2012, along with report dated 1.8.2012 of ICMR can be thus now looked into by this authority, as an additional reassurance on the safety of the chemical, apart from the scientific view acted upon by the RC on the subcommittee report dated 29.10.2015 constituted under the chairmanship of Dr.Shalini Chawla, Professor, Department of Pharmacology, Maulana Azad Medical College, New Delhi.” When that be the circumstances, this Court will not be justified in interfering with Ext.P20 which ultimately confirms the grant of registration. This Court cannot feign as an expert of the experts and then upturn Ext.P20. That apart, it is a fact that no new material was produced by the appellant capable of even for casting or causing any doubt on the findings in Exts.P11 and P20 which were made by the authorities competent to take a decision regarding the question of **W.A.1485/2020** 17 grant of registration under the Insecticides Act. In the aforesaid circumstances, challenge against judgment dated 05.08.2019 in W.P. (C) No.9198 of 2016 must fail and consequently, writ appeal stands dismissed. ## **Sd/-** **C.T.RAVIKUMAR JUDGE Sd/-** **K.HARIPAL JUDGE** **spc/**