Pulari Agro Solutions v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941** ## **WP(C).No.28303 of 2018** ## **PETITIONER/S:** **PULARI AGRO SOLUTIONS, DOOR NO.XII/471, SNDP BUILDING, POOPARA, IDUKKI-685619, REPRESENTED BY ITS MANAGING PARTNER SRI.LAMBHODHARAN.** **BY ADVS. BECHU KURIAN THOMAS (SR.) SRI.ENOCH DAVID SIMON JOEL** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY,**| ||**DEPARTMENT OF AGRICULTURE,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**DIRECTOR OF AGRICULTURE,**| ||**DIRECTORATE OF AGRICULTURE,**| ||**VIKAS BHAVAN P.O.,**| ||**THRIUVANANTHAPURAM-695 033.**| |**3**|**DEPUTY DIRECTOR OF AGRICULTURE(E & T),**| ||**PRINCIPAL AGRICULTURAL OFFICE,**| ||**THODUPUZHA, IDUKKI-685 584.**| ||**R1 - R3 SRI. RANJITH THAMPAN, ADDL. ADVOCATE GENERAL**| ||**SRI. M.R. SABU, SENIOR GOVERNMENT PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.28303 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner a partnership firm dealing in fertilizers and insecticides, seeking to quash Exts.P4 and P4(a) issued by the 3[rd] respondent i.e., the Deputy Director of Agriculture, Principal Agricultural Office, Thodupuzha, dated 25.07.2018 respectively, rejecting the applications submitted seeking licence on the ground that the applicant has already secured a licence in his favour. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner is a registered Partnership Firm carrying on the sale of fertilizers and insecticides. According to the petitioner, it has 9 Depots for carrying on the business activities, and as required under the Fertilizers Control Order, 1985 and Insecticides Act, 1968, petitioner submitted 8 different applications for grant of licence for the 8 Depots before the 3[rd] respondent, licensing authority, through a qualified person namely Aswathy Mohanan, who is already issued with Ext.P1 licence in respect of one depot conducted by the petitioner. It is the case of the petitioner that, by virtue of an amendment made to the Fertilizers Control Order and Insecticides Act W.P.(C) No.28303 of 2018 3 during 2015, it had become necessary that the application had to be submitted by a person who possessed a Bachelor's Degree either in Agriculture or in Chemistry or a Diploma in Agriculture Science. Accordingly, the applications were submitted on behalf of the petitioner by Smt. Aswathy Mohanan, who possesses a Bachelor's Degree in Chemistry and who is in the employment of the petitioner. 3. On the basis of the application, petitioner was granted a licence under the Fertilizers (Control) Order and the Insecticides Act, 1968 by the 3[rd] respondent for the Head Office at Poopara Estate, Santhanpara, evident from Exts.P1 and P1(a) respectively. Similar applications were submitted by the petitioner before the 3[rd] respondent for the 8 Depots evident from Exts.P2 to P2(g) series and Exts.P3 to P3(g) series under the Fertilizers Order and the Act, 1968. However, they were rejected as per Exts.P4 and P4(a) orders. According to the petitioner, in view of the provisions contained under the Fertilizers (Control) Order and the Insecticides Act, a separate licence has to be obtained for each place when the sale is intended to be carried out at more than one place. This is insisted upon in condition No.6 of Form A-1 of W.P.(C) No.28303 of 2018 4 the Fertilizers (Control) Order and Rule 10(3) of the Insecticides Rules, 1971. But, it is contended that there is no requirement under law that the subsequent licence has to be in the name of another person other than the original applicant. Therefore, the sum and substance of the contention advanced is that, any number of licence can be issued in favour of a qualified person, and the 3[rd] respondent cannot insist that, for each and every licence sought for, the application is to be submitted by other qualified persons. 4. A detailed counter affidavit is filed by the 3[rd] respondent, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the arguments advanced by the petitioner are against the provisions of the Order, 1985 and Act, 1968 and the Rules, 1971. Rule 10(1A) of the Insecticides Rules, 1971, as amended by the Insecticides (Second Amendment Rules), 2017, a person who applies for the grant of licence to sell, stock or exhibit for sale or distribute insecticides shall possess or employ a person possessing a graduate degree in Agricultural Sciences or Biochemistry or Biotechnology or Life Sciences or in Science with W.P.(C) No.28303 of 2018 5 Chemistry or Botany or Zoology from a recognized 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. However, as per the proviso, it is stipulated that all retailers or dealers possessing a valid licence without the prescribed qualification as on the date of publication of these Rules as amended by the Insecticides (Second Amendment) Rules, 2017 shall be allowed a period of two years to comply with the said qualifications. So also, as per the second proviso thereto, the existing licensee of pesticides, who are more than forty-five years of age and who have been running their trade either themselves or have inherited with cumulative period of experience of more than ten years as on the date of publication of these rules as per the Second Amendment Rules, 2017, and the annual turn over is less than Rupees Five Lakhs, are exempted from the aforesaid rule for a period of licenceship continuing in their name. It is also stipulated that, the payment of salary of the employee shall be made by the licensees through digital mode or by a cheque to ensure that the person is employed with W.P.(C) No.28303 of 2018 6 them. 5. Likewise, as per Clause 8(4) of the Fertilizers (Control) Order, 1985 as amended by the Fertilizers (Control) 4[th] Amendment Order, 2015, no authorization letter shall be granted to any applicant under the Order, unless the applicant possesses the following qualifications: _“(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 in 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”._ and the first proviso thereto stipulates that the dealers who have been granted Authorization Letter, before the commencement of the Fourth Amendment Order, 2015, shall not be required to possess the qualifications at the time of renewal of their authorization letter. It is further provided that the said qualifications shall not be applicable to registered Agricultural Co-operative Societies and State Marketing Federations, but they shall engage a W.P.(C) No.28303 of 2018 7 person with the above qualifications. 6. Therefore, going by the provisions discussed above, in the case of licensee in respect of insecticides, either the applicant should possess the said qualification, or the applicant will have to employ a person with the aforesaid qualifications and pay salary to the said person. However, it was not clear whether the applicant Aswathy Mohanan is an employee of the petitioner and no documents were forthcoming to show that Aswathy Mohan is the “technical person” engaged by the petitioner. That apart, it is pointed out that, the conduct of the applicant in filing applications for licence in respect of 8 Depots is suspicious, and the 3[rd] respondent is well within his powers to take into consideration the conduct of the applicant in respect of Fertilizers/Insecticides, going by the legislative intention enshrined in the aforesaid statute. Further it is pointed out that, the object behind prescribing the said qualifications for an applicant or a person employed by the applicant is for the purpose of advising the buyers, to use the proper quantity of chemicals/fertilizers, the quantity of the same to be applied in its right proportion and also to check the W.P.(C) No.28303 of 2018 8 over use of insecticides/fertilizers, which would in turn adversely affect the human beings who consume those food products produced using the said fertilizers and insecticides. 7. That apart, it is submitted that, the role of the qualified licensee/technical persons employed by the licensee is similar to that of a Pharmacist in a medical store, who is responsible for disbursing the right medicine as prescribed by the medical practitioners. Therefore, the object behind appointment of qualified persons is with the intention of protecting the larger public interest. Circumstances being so, if a single person is granted with more than one licence, the same would go against the very purpose of the statute and there is every possibility of misuse of the insecticides/fertilizers, which would in turn, affect the health of the people as well as the environment. That apart, it is pointed out that, the intention of the amendment is to ensure maintenance of ecological balance, which would otherwise be badly affected by the use of excessive insecticides as well as fertilizers. That apart, it is submitted that the applications submitted by Aswathy Mohanan were rejected finding that she has already been issued with Ext.P1 W.P.(C) No.28303 of 2018 9 licence to run depot at Santhanpara, and therefore, no further licence can be issued in favour of Aswathy Mohan to man the other 8 depots owned by the petitioner. Other submissions are also made with respect to the insistence made by the 3[rd] respondent to protect the interest of the larger community and also the farming sector, and it is also submitted that, if the insecticides and fertilizers are sold to the public without properly communicating the manner in which they are to be used, it can cause severe repercussions, affecting the public at large. 8. I have heard learned counsel for the petitioner and the learned Senior Government Pleader and perused the pleadings and the documents on record. 9. The paramount contention advanced by learned counsel for the petitioner is that, there is no provision under the Act to insist for appointment of separate qualified person to each and every shop or depot. That apart, it is submitted that, already petitioner has secured the licence through a qualified person in accordance with the provisions of Order 1985, Act 1968, and the Rules, 1971, and having issued with a licence, 3[rd] respondent is not at liberty to insist for appointment of a qualified person for each and every W.P.(C) No.28303 of 2018 10 depot. Yet another contention advanced is that, there is no nexus to be achieved by entrusting the dispensation to the persons prescribed in Rules 1A to Rule 10 of the Rules, 1971, and any person can sell the products as per the Order, Act and Rules by explaining the requirements as per the materials provided on each and every fertilizer and insecticides. 10. On the other hand, learned Senior Government Pleader submitted that, the amendments were made to the Order and the Act and Rules to ensure that the larger interest of the community is protected, and to save the environment from excessive use of fertilizers and insecticides. 11. I have considered the rival submissions made across the Bar. 12. Going by the purport and intention of the respective legislations, it is clear that, qualified persons are insisted to be appointed for dispensing insecticides and fertilizers with the avowed object and intention of explaining the manner in which such products are to be used in the farming sector, and merely because it is not stated precisely in the relevant statutes, it is clear from the legislative intention that for each and every depot or sales point, W.P.(C) No.28303 of 2018 11 there should be a qualified person. 13. Learned counsel for the petitioner has invited my attention to the judgment of the apex court in ' _**Dr. Aletta Grace Bell (Ms) v. Dr. S. Tirkey (Ms) and Another**_ ' [(1996) 1 SCC 285], where the subject issue concerned was under the Drugs and Cosmetics Act, 1940 and the amendments made thereto, wherein the question considered was the Rules framed under Sec.33 of the said Act, prescribing only two forms for obtaining licence: (i) for manufacture for sale, and (ii) for sale of drugs and cosmetics. However, no form of licence for manufacture or for distribution of drugs or cosmetics is provided under the Rules, nor any conditions laid subject to which such licence may be issued and, therefore, held that, the benefit of the vacuum must go to the appellant, and therefore, the appellant or the hospital was not required to obtain a licence for manufacture and distribution of the drugs on the date when the offence was allegedly committed. 14. Therefore, the contention advanced by learned counsel for the petitioner is that, here also a vacuum exists and the Rule is not insisting for appointment of a qualified person, to carry on with the business in each and every depot. However, in my considered W.P.(C) No.28303 of 2018 12 opinion, the Rules discussed above would make it clear that, a qualified person is to be appointed, wherein the business activity is carried on, and the amendment was brought to the respective legislation with the intention of ensuring that the dispensation of the fertilizers and insecticides are done carefully, and also explaining the manner, and permutations and combinations under which those products are to be used by the farmers. Therefore, the purport and intention of the legislation is to be looked into. If the insecticides and fertilizers are used excessively, and without any control, and regulatory measures, it can cause severe repercussions to the public at large, since they are used for farming activities, and there is every likelihood of the highly concentrated products flowing to other water-bodies and other agricultural properties. It can can also cause severe harm and adverse and dangerous situations to the environment, as well as people depending on water-bodies for their daily activities, especially the people in farming and agricultural sector. Moreover, in my considered opinion, the provisions of the Order, 1985 and the Rules, 1971 discussed above, make it clear that a qualified person is to be appointed on the basis of W.P.(C) No.28303 of 2018 13 separate applications and the authority is empowered to issue separate licences in respect of each such place. If the contention put forth by the petitioner is accepted, then the purpose of the legislation would not achieve the target and result, as is intended through the amendments carried out. It is clearly stipulated that on the basis of separate applications, separate licences shall be issued in respect of every such places and for every insecticide, which thus means, the presence of the qualified person should be available in the business places so as to advise the consumers appropriately with the larger and avowed object of protecting the interest of the community. Which thus means, the amended provisions of the laws discussed above, convey a clear meaning in substance, gist, and tenor of the requirements intended under law. 15. Taking into account the cluster of legal and factual circumstances, I am of the considered opinion that, petitioner has not made out any case justifying interference of this Court under Article 226 of the Constitution of India, there being no arbitrariness or illegality in rejecting the applications submitted by the petitioner. W.P.(C) No.28303 of 2018 14 The writ petition fails, accordingly it is dismissed. However, it is made clear that, if and when applications are submitted in terms of the provisions of the laws, it shall be considered in accordance with law. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/15.07.2019 W.P.(C) No.28303 of 2018 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE LETTER OF AUTHORIZATION DATED 11.05.2018 VALID TILL 10.05.2021 ISSUED BY THE 3RD RESPONDENT UNDER THE FERTILIZERS CONTROL ORDER, 1985.** - **EXHIBIT P1(A) TRUE COPY OF THE LICENSE DATED 11.05.2018 ISSUED BY THE 3RD RESPONDENT UNDER THE INSECTICIDES ACT, 1968.** - **EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF INTIMATION RELATING TO THE PETHOTTY DEPOT SUBMITTED BY THE PETITIONER UNDER THE FERTILIZERS CONTROL ORDER.** - **EXHIBIT P2(A) TRUE COPY OF THE MEMORANDUM OF INTIMATION RELATING TO THE 20 ACRE DEPOT.** - **EXHIBIT P2(B) TRUE COPY OF THE MEMORANDUM OF INTIMATION RELATING TO THE BISON VALLEY DEPOT.** - **EXHIBIT P2(C) TRUE COPY OF THE MEMORANDUM OF INTIMATION RELATING TO THE KARITHODU DEPOT.** - **EXHIBIT P2(D) TRUE COPY OF THE MEMORANDUM OF INTIMATION RELATING TO THE KURISUPARA DEPOT.** - **EXHIBIT P2(E) TRUE COPY OF THE MEMORANDUM OF INTIMATION RELATING TO THE SURYANELLI DEPOT.** - **EXHIBIT P2(F) TRUE COPY OF THE MEMORANDUM OF INTIMATION RELATING TO THE B.L.RAM DEPOT.** - **EXHIBIT P2(G) TRUE COPY OF THE MEMORANDUM OF INTIMATION RELATING TO THE KANJANAPARA DEPOT.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR LICENSE RELATING TO THE PETHOTTY DEPOT SUBMITTED BY THE PETITIONER UNDER THE INSECTICIDES ACT.** - **EXHIBIT P3(A) TRUE COPY OF THE APPLICATION FOR LICENSE RELATING TO THE 20 ACRE DEPOT.** - **EXHIBIT P3(B) TRUE COPY OF THE APPLICATION FOR LICENSE RELATING TO THE BISON VALLEY DEPOT.** - **EXHIBIT P3(C) TRUE COPY OF THE APPLICATION FOR LICENSE RELATING TO THE KARITHODU DEPOT.** |W.P.(C) No.28303 of 2018|16| |---|---| |**EXHIBIT P3(D)**|**TRUE COPY OF THE APPLICATION FOR LICENSE**| ||**RELATING TO THE KURISUPARA DEPOT.**| |**EXHIBIT P3(E)**|**TRUE COPY OF THE APPLICATION FOR LICENSE**| ||**RELATING TO THE SURYANELLI DEPOT.**| |**EXHIBIT P3(F)**|**TRUE COPY OF THE APPLICATION FOR LICENSE**| ||**RELATING TO THE B.L. RAM DEPOT.**| |**EXHIBIT P3(G)**|**TRUE COPY OF THE APPLICATION FOR LICENSE**| ||**RELATING TO THE KANJANAPARA DEPOT.**| |**EXHIBIT P4**|**TRUE COPY OF THE LETTER ISSUED BY THE 3RD**| ||**RESPONDENT RELATING TO THE APPLICATION**| ||**UNDER THE FERTILIZERS CONTROL ORDER.**| |**EXHIBIT P4(A)**|**TRUE COPY OF THE LETTER ISSUED BY THE 3RD**| ||**RESPONDENT RELATING TO THE APPLICATION**| ||**UNDER THE INSECTICIDES ACT.**| ## **RESPONDENTS' EXHIBITS: NIL** ## **//TRUE COPY//** **P.S. TO JUDGE** **St/-**