Gujarat High Court
Vinod M Bhatt, General Secretary vs Union Of India on 28 March, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4075 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 4075 of 2021
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VINOD M BHATT, GENERAL SECRETARY
Versus
UNION OF INDIA
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Appearance:
MR ASIM PANDYA, SENIOR ADVOCATE WITH MR ALOK THAKKAR FOR
SAN ASSOCIATES LLP(8655) for the Petitioner(s) No. 1,2,3
MR DEVANG VYAS(2794) for the Respondent(s) No. 1,2
SERVED BY RPAD (N)(6) for the Respondent(s) No. 3
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 28/03/2022
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. The facts shorn off unnecessary details for consideration of this petition can be crystalised as under.
2. Petitioner is an Association said to have been incorporated for the welfare of its members, who are carrying on the business of manufacture of "pesticide formulation". A Page 1 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 manufacturing license under Rule 9 of the Insecticides Rules, 1971 (for short, hereinafter referred to as "the Rules") made in accordance with the Insecticides Act, 1968 (for short, hereinafter referred to as "the Act") is required to be obtained for carrying on the business of manufacture of "pesticides formulation".
2.1 In this petition, challenge is laid to the validity of the Notification No.G.S.R.1229(E) dated 4.10.2017 issued by the Ministry of Agriculture and Farmers Welfare (Department of Agriculture, Co-operation and Farmers Welfare) [Annexure-A] whereunder the educational qualification prescribed for issuance of license for manufacturing "technical grade pesticides" and "pesticide formulation" came to be substituted.
3. We have heard Mr. Asim Pandya, learned Senior Advocate assisted by Mr. Alok Thakkar for M/s San Associates Llp. appearing for the petitioners and Mr. Devang Vyas, learned Additional Solicitor General of India appearing for respondent Nos.1 and 2.
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4. The contention of Mr. Asim Pandya, learned Senior Advocate, appearing for the petitioners is that Section 36 of the Act is violated namely, final notification dated 4.10.2017 is contrary to the draft notification; it is contended that Section 36 mandates compliance of two conditions namely, it prescribes for twin conditions being fulfilled for amendment to be brought to rules viz., (i) prior consultation with the Central Insecticides Board; and, (ii) previous publication of the proposed rule which is not fulfilled in the instant case; he would further submit that Masters Degree in Science with Chemistry or Agriculture Chemistry or Agriculture Chemicals or equivalent as one of the subjects was not proposed under the draft notification and only Graduate Degree in Agriculture or Science with Chemistry as one of the subjects had been proposed and educational qualification now prescribed under the impugned notification for the purpose of obtaining a license for manufacturing of "pesticide formulation" is contrary to draft notification; he would contend that process of "pesticide formulation" is to be carried out as per the directions and instructions prescribed by the Central Insecticides Board and the Registration Committee (CIB&RC) which is a statutory body consisting of experts who Page 3 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 approve the registration of a technical grade and as such, prior consultation with the Board being mandatory, same was not done in the instant case; he would submit that while consulting the Board, draft notification was forwarded, it only indicates Graduate Degree in Agriculture or Science with Chemistry as qualification and it was never brought to the notice of the Board that Master Degree in Science with Chemistry or Agriculture Chemistry or Agriculture Chemicals or equivalent as one of the subjects was being prescribed for issuance of license to a manufacturer of "pesticide formulation" as has been done under the impugned notification; he would further contend that proviso cannot be invoked to contend that subsequent consultation having been done with Indian Council of Agricultural Research ("ICAR" for short); the affidavit filed by the Union of India does not disclose that recommendation of ICAR was placed before the Central Insecticides Board and the mandatory procedure prescribed under Section 36 has been violated; it is contended that for the purpose of manufacture of pesticide formulation, only basic knowledge of chemical compositions, shelf-life and efficacy of a chemical as well as chance of chemical reaction is sufficient and for the said Page 4 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 purpose, a Bachelors Degree is more than sufficient as against the requirement of possessing expertise in the case of issuance of license for manufacturing of "technical grade pesticides" with higher qualification, since lot of scientific process is required; it is contended that requirement now prescribed would create commotion in the SME-sector, as practically no person with a Masters Degree would be willing to work for a meager remuneration and would not be desirous to work at a place where his/her expertise is not to be used as the formulations are to be manufactured as per the guidelines already issued by the Government; he would draw the attention of the Court to the proceedings of draft minutes of 52nd meeting of Central Insecticides Board (Annexure-D) held on 12.1.2016 and particularly Agenda No.7.0 under which, the Board had approved that educational qualification for manufacture of "pesticide formulation" would be Graduate Degree in Agriculture/Science with Chemistry as one of the subjects as had been proposed in the draft notification; and, he would also contend that Section 36 of the Act read with Section 23 of the General Clauses Act is attracted inasmuch as the Central Government is required to satisfy the twin conditions Page 5 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 prescribed under Section 36 namely, it ought to have consulted the Board about proposed amendment and it ought to have previously published the same in the Official Gazette and same having not been done, Union of India could not have unilaterally substituted the educational qualification by enhancing the qualification under the impugned notification. He would also contend that impugned notification is violative of Article 14 of the Constitution of India since a qualified person for the purpose of formulation is supposed to analyze the product as per the pre-decided composition as indicated in the registration certificate issued under Section 9(4) of the Act and, as such, the licensee having a Bachelor Degree in Agriculture or Chemistry or Agriculture or Science with Chemistry is sufficient enough and competent to analyze such formulation; he would further elaborate his submissions by contending that whenever amendment to the Rules is to take place, there must be a strict compliance of Section 36 of the Act and the provisions of Section 36 cannot be construed as directory but has to be necessarily held as mandatory. In this regard, he would contend that consultation of the Board is a condition precedent prior to publication of qualification and in the instant case, there being Page 6 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 no prior consultation and consultation is with the ICAR, which is not the authority prescribed under Section 36 and as such, the impugned notification is liable to be quashed. As regards post consultation, he would submit that even bare reading of Section 36 would indicate that such recourse can be had where the Central Government is of the opinion that circumstances would warrant dispensation of consultation and it is of the opinion that circumstances had arisen which render it necessary to make Rules without such consultation and said situation had not arisen in the facts obtained in the present case even according to the reply affidavit filed by the Union of India. Even otherwise, he would submit that if it is to be construed that the Central Government has resorted to rely upon the proviso to Section 36, the consultation with the Board ought to have been within six months from the date of the amendment brought into force and such an action having not undertaken, even on that score, the impugned notification has to be set aside. He would contend that petitioners vide communication dated 30.7.2020 addressed to 1st respondent had appealed to correct or amend the impugned notification dated 4.10.2017 and same having not considered, petitioners have approached this Court by way of Page 7 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 this petition and the plea of delay ought not to be considered. He would submit that after the amendment brought into force, there was no coercive step or action taken and the authorities have now started issuing orders of suspension of license and, as such, petitioners are perforced to approach this Court. He would also contend that prior to passing the order of suspension of license, no show cause notice has been issued against large number of associate members of the petitioners which is in violation of Clause (b) of Sub-Section (1) of Section 14 of the Act and, as such, the impugned notification and all proceedings undertaken pursuant thereto is liable to be quashed. He would draw the attention of the Court to the compilation submitted on 5.1.2022 along with minutes of the 53rd meeting of the Board dated 8.2.2017 whereunder the minutes of the 52 nd meeting held on 12.1.2016 at Agenda No.7, the Board had approved the draft notification forwarded by the Central Government under which, for manufacturing of "pesticide formulation", educational qualification had been prescribed as "Graduate Degree in Agriculture or Science with Chemistry as one of the subjects"
and it was this subject which was deliberated and affirmed. He would also draw the attention of the Court to minutes of the 54 th Page 8 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 meeting dated 3.4.2018, which affirmed the minutes of the 53 rd meeting held on 8.2.2017 wherein no new proposal for enhancing educational qualification now prescribed under the impugned notification was brought to the notice of the Board or deliberated by the Board. He would submit that these minutes would clearly indicate that educational qualification prescribed under the impugned notification is contrary to draft publication and in violation of Section 36 of the Act. On these grounds, he seeks for the petition being allowed. In support of his submissions, he has relied upon the following judgments:
(i) AIR 1974 SC 1471 in the case of Nawabkhan Abbaskhan Vs. State of Gujarat;
(ii) AIR 1965 SC 895 in the case of Raza Buland Sugar Co. Ltd. Rampur (UP) Vs. Municipal Board, Rampur;
(iii) AIR 1991 SC 711 in the case of Syed Hasan Rasul Numa Vs. Union of India;
(iv) 1996(6) SCC 634 in the case of ITC Bhadrachalam Paperboards Vs. Mandal Revenue Officer, Andhra Pradesh;
(v) (2004)6 SCC 254 in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India;
(vi) (2005) 13 SCC 477 in the case of Competent Authority Vs. Barangore Jute Factory;
(vii)(2010)1 SCC 730 in the case of Rajendra Agricultural University Vs. Ashok Kumar Prasad and Others; and Page 9 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022
(viii)AIR 2017 (Ori) 107 in the case of Sukhalal Munda Vs. State of Odisha and Others.
5. Mr. Devang Vyas, learned Additional Solicitor General of India appearing for respondent Nos.1 to 3 supports the impugned notification and has contended that pesticide/insecticide has toxic properties and the prescription of education qualification being crucial for issuance of license to such manufacturers, the Central Government has thought fit to introduce the requisite and adequate educational qualification for "manufacture of pesticide formulation". He would submit that initially, a draft notification was published in the Official Gazette on 9.11.2016 inviting objections and suggestions from interested persons within 45 days and after due consideration of the suggestions and objections received from the stake holders, the Central Government had issued final notification on 4.10.2017, which is in consonance with the provisions of the Act as well as the avowed object of the Act. He would submit that intention of the Central Government is to achieve the objectives of the Act by giving full effect to it and with a view to prevent the risk of human beings, animals and keeping in mind the environmental issues. He would also contend that prescribing Page 10 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 higher educational qualification of manufacturers would be instrumental in providing correct technical inputs/expertise with preparation of formulations with regard to the active ingredients which are directly used by the farmers on the agricultural crops and, as such, amendment was necessitated. By referring to the relevant provisions of the Act namely, Sections 3, 5 and 9, he would contend that Registration Committee is empowered to regulate its own procedure and conduct the business to be transacted and, as such, the amendment which has taken place is well within the scope of the authority and, as such, the manufacturers are required to meet with the educational qualification now prescribed under the impugned Rule. He would refer to Section 4(2) of the Act to contend that Central Government has consulted Indian Council of Agricultural Research (ICAR), an autonomous organization under the Department of Agriculture Research and Education (DARE), which is the ex-officio member of the Central Insecticides Board and based on their inputs or suggestions, the Central Government felt expedient that qualification for the person seeking manufacturing license for the pesticide formulation should be a Master Degree in Science with Page 11 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 Chemistry or Agriculture Chemistry or Agriculture Chemicals or equivalent in view of the qualification existing. He would submit that such qualification was prescribed because the formulation manufacture is equally critical and sophisticated as technical manufacture for which, sound scientific and technical knowledge on the subject matter is required so as to prepare the specified composition of the insecticide formulation which is directly used by the farming community and even a slight change in the approved chemical composition of pesticide during manufacturing process may lead to safety and efficacy issues in respect of the crops, animals and human beings. Therefore, the impugned notification cannot be termed as unreasonable and arbitrary and contends that there is no requirement of interference by this Court.
6. He would also contend that representation received from the Pesticide Association/stake holders regarding the requirement of educational qualification were duly examined, considered and after consultation with ICAR, Ministry of Agriculture and Farmers Welfare and thereafter, a decision has been taken. He would also contend that it is well recognized Page 12 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 principle that policy decision can be subjected to scrutiny by judicial review only on limited ground namely, if the action is unconstitutional, dehors the provisions of the Act and the Regulations or beyond the scope of power, as otherwise, the decision deserves to be left to the discretion of the competent authority and prays for non-exercise of the extra-ordinary jurisdiction vested in this Court.
7. He would draw the attention of the Court to further affidavit-in-reply dated 3.1.2022 to point out that there was no previous consultation with the Board as provided in 1 st part of Section 36 of the Act and the Central Government has dispensed with the pre-consultation in view of the circumstances which arose and later the Board was consulted by the Central Government within a period of six months which reflects in the minutes of 54th meeting of the Board held on 3.4.2018 and, as such, the post-consultation would meet the mandatory requirement of Section 36 of the Act and, as such, there is no illegality. He would also rely upon the judgment of the High Court of Madhya Pradesh in WP No.5121 of 2017 disposed of on 17.4.2017 whereunder the writ petition came to be dismissed Page 13 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 and, as such, he prays for dismissal of the present writ petition also. He would submit that educational qualification of Masters Degree which has been inserted keeping in mind the avowed purpose of the Act and as a preventive measure. He would submit that petitioners or associate members of the petitioner have been given two years' time to acquire the said qualification to the existing licensee from the date of notification and that being so, there can hardly be any reason for the petitioners to raise a grievance and after waiting for a period of two years, present petition is brought before this Court which is belated and on the ground of delay and latches, it is liable to dismissed. He would submit that cause of action, even if any, which was available to the petitioners was when the impugned notification was issued on 4.10.2017 and, as such, the petition having been filed on 25.2.2021 after a lapse of almost four years is liable to be dismissed on the ground of delay.
8. Having heard the learned advocates appearing for the parties and after bestowing our careful and anxious consideration to the rival contentions raised at the Bar and on perusal of the case papers, we are of the considered view that Page 14 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 the following point would arise for our consideration:
(i) Whether the impugned notification No.G.S.R. 1229(E) dated 4.10.2017 (Annexure-A) suffers from any legal infirmity calling for our interference?
DISCUSSION AND FINDING
9. The Pesticides Act has been enacted to regulate the import, manufacture, sale, transport, distribution and use of insecticides with a view to prevent risk of human beings and animals and for matters connected therewith. Section 36 of the Act empowers the Central Government to make the Rules after consultation with the Central Insecticides Board. The Central Insecticides Board is constituted by the Central Government by virtue of power vested under Section 4 to advise the Central Government and State Governments on technical matters arising out of the administration of the Act and to carry out other functions assigned to the Board by or under the Act. Page 15 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 9.1 By virtue of power vested under Section 36 of the Act, the Central Government after consultation with the Central Insecticides Board, a statutory body constituted under the Act and after previous publication has published Rules known as The Insecticide Rules 1971. From time to time, said Rules have been amended by the Central Government for the purpose of giving effect to the provisions of the Act.
9.2 Chapter-4 of the Insecticides Rules, 1971, deals with grant of licence. Rule 9 mandates that any application for grant of license to manufacture any insecticide shall be made in the prescribed form to the licensing officer accompanied by the prescribed fees. By draft notification No.GSR 1083(E) published in the Official Gazette on 9.11.2016, a notification came to be issued and objections-suggestions were invited from all the persons likely to be affected by the proposed amendment of Rule 9(4B) which prescribes the educational qualification for applying for manufacturing license for "technical grade pesticides" or "pesticide formulation". Under the proposed amendment, educational qualification was prescribed insofar as obtaining the license for manufacture of "pesticide formulation" Page 16 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022
C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 as Graduate Degree in Agriculture or Science with Agriculture as one of the subjects as against "Graduate Degree in Agriculture Science with Chemistry" then existing.
Undisputedly, no objections were filed to the said proposed amendment.
9.3 Rule 9(4B) came to be amended by way of Notification No.GSR 1229(E) published in the Official Gazette on 4.10.2017 which prescribes "Master degree in Science with Chemistry or Agriculture Chemistry or Agriculture Chemicals or equivalent as one of the subject for manufacture of pesticide formulation", which is impugned in the present petition contending inter alia that it is not in consonance with draft amendment published and prior permission of the Insecticides Board is not obtained.
9.4 For the purposes of convenience, we have tabulated hereinbelow the particulars of the qualification which existed prior to the proposed amendment, what was proposed in the draft notification and what amendment was brought post amendment :Page 17 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022
C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 YEAR PESTICIDE TECHNICAL FORMULATION GRADE PESTICIDES (Not Concerned) Prior to 2014 NIL NIL From 2014 to Graduate Degree in Master degree in 2016 Agriculture Science with Chemistry with Chemistry Doctorate or a Graduate degree in Chemical Engineering.
As per draft Graduate Degree in Doctorate in
notification Agriculture or Science Chemistry or
published on with Chemistry as one of Agriculture
9th November the subject. Chemistry or Master
2016 of Technology or
Master or Science in
Chemical
Engineering.
As per final Master Degree in Science Doctorate in
notification with Chemistry or Chemistry or
published on Agriculture Chemistry or Agriculture
4th October Agriculture Chemicals or Chemistry or
2017 Equivalent as one of the Agriculture
subject. Chemicals or Master
of Technology or
Master of Science in
Chemical
Engineering or
Equivalent.
9.5 Though by the proposed amendment as well as in the
amendment brought to Rule 9(4B), educational qualification
required for the purpose of issuance of manufacturing license for manufacturing of 'technical grade pesticides' is included, we Page 18 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 are not delving upon the said issue since same is not under challenge in this application and dispute in this application revolves around educational qualification prescribed for issuance of manufacturing license to manufacture "pesticide formulation" only and same is being examined. 9.6 The above extracted tabular column would clearly indicate the historical background as to how from time to time the educational qualification which was not in existence initially for issuance of license to the manufacturers of pesticide formulation came to be introduced till the impugned notification came to be issued. Under the impugned notification, the educational qualification which has been prescribed for grant of license for manufacturer of pesticide formulation is Masters Degree in Science with Chemistry or Agriculture Chemistry or Agriculture Chemicals or equivalent as one of the subjects.
Proviso to Sub-Rule (4B) enables a person already possessing a manufacturing license on the date the notification of the amendment coming into force to acquire the prescribed educational qualification within a period of two years. Page 19 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022
10. There cannot be any dispute to the proposition that condition of eligibility to grant license falls within the power of the Central Government and Section 36 of the Act empowering the Central Government to make Rules. Section 36(1) of the Act reads as under:
"36.Power of Central Government to make rules.-
(1) The Central Government may, after consultation with the Board and subject to the condition of previous publication, by notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of this Act:
Provided that consultation with the Board may be dispensed with if the Central Government is of opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case the Board shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Board may make in relation to the amendment of the said rules.
(2) xxx xxx xxx (3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session [or in two or more successive sessions, and if, before the expiry of the session immediately following the session or successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as Page 20 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule."
11. A plain reading of the above provision would clearly indicate that Central Government is empowered to make rules for the purpose of giving effect to the provisions of the Act, subject to two contingencies prescribed thereunder being fulfilled, after consultation with the Board and subject to the condition of previous publication, by notification in the Official Gazette.
11.1 In the instant case, a draft notification came to be published vide No.G.S.R.1083(E) dated 9.11.2016 (Annexure-B) and the Central Government forwarded the draft notification to the Central Insecticides Board which is the consultee as prescribed under Sub-Section (1) of Section 36. A plain reading of Section 36(1) would indicate that the power to make Rules is available to the Central Government on satisfying the aforesaid twin conditions prescribed namely: (i) consulting the Board and,
(ii) previous publication of the draft notification in the Official Gazette.
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12. The Hon'ble Apex Court in the case of Rajendra Agricultural University Vs. Ashok Kumar Prasad and Others reported in (2010)1 SCC 730 has held that even in case of requirement of publication in the Official Gazette, it may not concern the general public but may affect specified class of employees, would not be a ground to exclude the applicability of mandatory requirement of publication in Official Gazette. It has been further held by the Hon'ble Apex Court as under:
"Section 36 of the Act lays down three steps for making or amending a Statute. They are:
(a) The Statute should be made by the Board of Management in the manner specified in sub-
section (1);
(b) The Statute should be approved and assented by the Chancellor;
(c) The Statute so made and assented, shall be published in the official Gazette.
When the Act lays down the manner in which a statute under the Act should be made, it shall have to be made in that manner and no other. The requirement that the statute should be published in the official Gazette, is an integral part of the process of 'statute making' under section 36 of the Act. It is mandatory and not directory. Until publication in the official Gazette, the statute will be considered as still being in the process of being made, even if had received the assent of the Chancellor. A 'statute in the making' or a 'statute-in- Page 22 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 process' is incomplete and is neither valid nor effective as a statute. So long as the statute is not completely made, but is still in the process of being made, it can be cancelled or withdrawn or modified, without the need for 'publication' of such cancellation, withdrawal or modification. The Chancellor kept the 'statute-in- process' 9 pending and later reconsidered it and held that the Statute proposing the time-bound promotion scheme was still-born and non-est."
It has been further held as under:
"26. In view of the above, it is not possible to accept the contention that the statute contained in the notification dated 4.9.1991 came into effect or became enforceable even in the absence of publication in the official Gazette. The High Court committed an error in holding that the teachers became entitled to the benefit of the statute relating to time-bound promotion scheme, when the said statute made by the Board of Management was assented to by the Chancellor even though it was not published in the Gazette. The High Court also committed an error in observing that the non-publication was unreasonable and arbitrary, as it 19 ignored the valid reasons assigned by the Chancellor for withdrawing his assent to the incomplete statute, in his order dated 19.3.1996."
13. At this juncture, we may also notice Section 23 of the General Clauses Act. It reads as under:
"23. Provisions applicable to making of rules or bye-laws after previous publication.--Where, by any 1 [Central Act] or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:--Page 23 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022
C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 (1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-
laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the 5 [Government concerned] prescribes;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration;
(4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified;
(5) the publication in the 6 [Official Gazette] of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made."
14. Afore-stated provision makes it abundantly clear that whereby any Central Act or Regulation, a power to make Rules or bye-laws is expressed to be given subject to the conditions of Page 24 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 the Rules or bye-laws being made after publication, then, it has to follow the provisions as prescribed under Sub-Section (1) of Section 36 of the Act. Previous publication means the authority concerned must publicize draft of the proposed Rule for the information of the persons likely to be affected thereby; along with the draft Rule, specifying a date on or before which the objections or suggestions are to be filed and on fulfillment of these requirements, the Rule would be published in the Official Gazette and on such publication in the Official Gazette, it would be conclusive proof that the Rule has been duly made. 14.1 There is no dispute to the fact, in the instant case that there has been the previous publication of the draft Rules. Sub-Section (1) of Section 36 also mandates that such proposed Rule can be brought about after consultation with the Board and as noticed hereinabove, copy of the notification under which Rule 9(4B) was to be substituted was placed before the 52 nd Board in its meeting held on 12.1.2016 (Annexure-D) at Agenda No.7 which was deliberated in detail and approved with the suggestion of minor correction for pesticide manufacture and dealer. The extract of the meeting resolution read as : Page 25 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022
C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 "Consideration of amendments in the rules & forms vide notification No. GSR 840 (E) dated 05.11.2015 by Ministry of Agriculture and Farmers Welfare.
The agenda was deliberated in detail and approved the same with suggestion of minor corrections in the prescribed qualification for the Pesticides manufacturer and dealer as under:
1. For manufacturer of technical grade pesticides:-Doctorate in Chemistry/Agriculture Chemistry or M.Tech/M.S. in Chemical Engineering.
2. For manufacturer of Pesticide formulation:
Degree in Agriculture/Science with Chemistry as one of the subject."
It is this proposed draft which was previously published in the draft notification and placed before the Board and same ought to have taken shape or blossomed itself into final notification. In fact, the proceedings or minutes of the meeting of the Insecticides Board held on 12.1.2016 was confirmed in the 53 rd meeting of the Board held on 8.2.2017. For reason best known, recourse was not taken by the Central Government to implement the same. In its affidavit dated 3.2.2022, it has been admitted by Central Government that for pesticide formulation, the qualification prescribed under the draft notification was Graduate Degree only. Surprisingly, this draft notification which Page 26 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 was approved by the Board did not fructify but in substitution to the qualification prescribed under the draft notification and as approved by the Board, a different qualification namely, Masters Degree in Science with Chemistry or Agriculture Chemistry or Agriculture Chemicals or equivalent as one of the subjects has now been prescribed under the impugned notification. The procedure prescribed under Section 36 is mandatory. For amending the Rule, Central Government has to necessarily satisfy the twin conditions prescribed thereunder namely:
(i) Consult the Insecticides Board; and
(ii) Previous publication of the notification in the
Official Gazette.
Sub-Section (1) of Section 36 prescribes, by previous
publication in the Official Gazette, Central Government can make the rules. The procedural guarantee prescribed under the Act has to be necessarily followed as otherwise it finds foul of the statutory provision. Though the Central Government has relied upon proviso to Sub-Section (1) of Section 36 by contending that it had dispensed with consultation with the Page 27 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 Board and subsequently it has consulted the Board within six months from the date of publication of the Rule by placing the same in its 54th meeting of the Board at Agenda Item No.7 and partially said contention deserves acceptance. Except a self- assertion by the Central Government that it had dispensed with consulting the Board cannot be accepted for reasons more than one namely, (i) records of the Central Government do not disclose about Government having taken a decision and, (ii) the reason for dispensing to consult the Board is not forthcoming from records. The fact remains that impugned notification also did not satisfy one of the twin conditions prescribed namely, the previous publication of the rule in the Official Gazette. Hence, the impugned notification would not stand the test of twin condition and, as such, it would be liable to be quashed with a liberty to the Central Government to commence the proceedings from the stage of either publishing a fresh draft notification or dispensing with consultation with the Board as it may decides to do so.
15. A feeble attempt has been made by Mr. Devang Vyas to contend that Special Civil Application is filed belatedly Page 28 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 namely, after four years from the date of publication of the impugned notification and, as such, on the ground of delay, it is liable to be dismissed. A plain reading of the amended provision would indicate that the cause of action is available to an aggrieved person commencing from the date of publication of the notification i.e. 4.10.2017 upto two years since under the proviso to Sub-Rule (4B), a time limit of two years has been granted to acquire the qualification prescribed under the impugned notification and on expiry of the said two year period, petitioners submitted a representation to the respondent on 30.7.2020 seeking for amendment of the impugned notification insofar as it relates to prescription of qualification for manufacture of pesticide formulation vide Annexure-E (collectively). On being informed by the communication dated 22.12.2020 for not entertaining the said request or prayer, the present petition has been presented on 15.2.2021.
16. The Hon'ble Apex Court in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India reported in (2004)6 SCC 254 has held that cause of action would arise only when the provisions of the Act or some of them which are Page 29 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 implemented would give rise to civil or evil consequences to the petitioner namely, the aggrieved. It has been further held that writ Court would not determine the constitutional question in vacuum.
17. The providing of personal hearing to the affected persons is the inbuilt mechanism provided under Section 36 of the Act. A plain reading of the draft notification dated 09.11.2016 (Annexure-B) would clearly indicate that notice was given of the draft Rules for information to all persons who are likely to be affected by calling upon them to file objections or suggestions before the expiry of 45 days period prescribed thereunder. Thus, in order to follow the principle of audi alteram partem rule, the objections were called for.
18. The Hon'ble Apex Court in the case of Raza Buland Sugar Co. Ltd. vs. The Municipal Board, Rampur, reported in AIR 1965 SC 895, while examining the Section 131(3) of U.P. Municipalities Act (2 of 1916), which dealt with publication of proposals and draft rules held as under :
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C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 "9. This brings us to the examination of the facts and circumstances of the present statute in the light of what we have said above as to the criteria for determining whether a provision in a statute is mandatory or directory. The provision with which we are concerned, namely, S. 131 (3), can be divided into two parts. The first part lays down that the Board shall publish proposals and draft rules along with a notice inviting objections to the proposals or the draft rules so published within a fortnight from, the publication of the notice (see Sch. III). The second part provides for the manner of publication and that manner is according to s' 94(3). We shall first deal with what we have called the first part ofS. 131 (3). This provision deals with taxation. The object of providing for publication of proposals and draft rules is to invite objections from the inhabitants of the municipality, who have to pay the tax.
The purpose of such publication obviously is to further the democratic process and to provide a reasonable opportunity of being heard to those who are likely to be affected by the tax before imposing it on them. It is true that finally it is the Board itself which settles the proposals with respect to taxation and submits them to Government or the prescribed authority, as the case may be,, for approval. Even so we have no doubt that the object behind this publication is to find out the reaction of tax payers generally to the taxation proposals, and it may very well be in a particular case that the Board may drop the proposals altogether and may not proceed further with them, if the reaction of the tax-payers in general is of disapprobation. Further the purpose served by the publication of the proposals being to invite objections, in particular from the tax- payers, to the tax proposed to be levied on them, the legislature in its wisdom thought that compliance with this part ofS. 131 (3) would essentially carry out that purpose. In the circumstances if we are to hold that this Page 31 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 part of S. 131 (3)was merely directory, the whole purpose of the very elaborate procedure provided in Secs.131 to 135 for the imposition of tax would become meaningless, for the main basis of that procedure is the consideration of objections of tax-payers on the proposals of the Board. If such publication is merely directory, the Board can proceed to levy the tax without complying with them and that would make the entire elaborate procedure provided in the Act before a tax is imposed nugatory. We are therefore of opinion that this part of S. 131 (3) is mandatory and it is necessary to comply with it strictly before any tax can be imposed. We shall consider the interpretation of S. 131 (3) later, but we have no doubt that in the present case, in spite of S. 131 (3), the legislature intended that there must be publication as provided in what we have called the first part of S. 131 (3). We therefore hold that this part of S. 131 (3) is mandatory considering its language, the purpose for which it has been enacted, the setting in which it appears and the intention of the legislature which obviously is that no tax should be imposed without hearing tax-payers. Lastly we see no serious general inconvenience or injustice to anyone if this part of the provision is held to be mandatory; on the other hand it will be unjust to tax-payers if this part of the provision is held to be directory, inasmuch as the disregard of it would deprive them of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of S. 131 (3) is mandatory."
19. The facts obtained in the instant case would disclose that draft rules were notified on 09.11.2016. Under the draft rules, the qualification that came to be prescribed for issuance of Page 32 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 manufacture of pesticides formulation was Graduate Degree in Agriculture or Science with Chemistry as one of the subject, whereas in the final notification which has been issued, it is Master Degree in Science with Chemistry or Agricultural Chemistry or Agricultural Chemicals or equivalent as one of the subject. Thus, the final notification published is not in consonance with the draft notification. There is no justification given for enhancing the qualification. The respondent has sought to justify the same on the premise that it had consulted ICAR which is an authority other than the one prescribed under Sub-section (1) of Section 36. In other words, the Insecticides Board was not consulted.
20. As noticed hereinabove, a feeble attempt has been made by the Union of India to contend that urgency clause has been invoked as provided under proviso to Sub-section (1) of Section 36. However, there is no material placed on record to show or establish or substantiate about such urgency clause having been invoked. The said contention also does not hold water for the simple reason that the Board had already been consulted by forwarding a draft notification which came to be approved by Page 33 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 the Insecticides Board in its 52 nd Meeting held on 12.01.2016 and confirmed the said Minutes in the 53rd Meeting held on 08.02.2017. In the 52nd Meeting of the Board which is at Annexure-D, it had been resolved to approve the qualification for issuance of manufacturer of pesticide formulation as Graduate Degree in Agriculture/ Science with Chemistry as one of the subjects and this was confirmed by the Board in its meeting held on 08.02.2017 and the Minutes of the 53 rd meeting of 08.02.2017 was confirmed in the 54th Meeting of the Board held on 03.04.2018.
21. Though in the meeting of the Board held on 03.04.2018 at Item No.7 of the Agenda, the notification dated 04.10.2017 (impugned in the present petition) has been approved, the said qualification was never published in the draft notification nor objections were called for by previous publication in the official gazette and for this reason also, the impugned notification cannot be sustained. Not extending the opportunity to persons who are likely to be affected by modification of the qualification by permitting them to file objections and suggestions would be in violation of principles of natural justice. Page 34 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022
22. The Hon'ble Apex Court in the case of Syed Hasan Rasul Numa and others vs. Union of India and others, reported in AIR 1991 SC 711, has held :
"12. Section 11 (a) of the Act provides procedure for modification to the Master Plan and the zonal development plan. Sub-Section (3) thereof provides that before making any modifications to any plan, the Authority or, as the case may be, the Central Government shall publish a notice inviting objections and suggestions from persons with respect to the proposed modification before the date specified in the notice. This is to give an opportunity to persons who are likely to be affected by the modification of the Plan to file objections and suggestions. Indeed, the interested persons or the persons who are likely to be affected have a right to file their objections and representations within the time specified. They have further right to have the objections considered by the competent, authorities. In order to effectuate these rights, the prescribed means of publication must be faithfully followed giving the persons clear notice as specified in the statute. The providing such notice to persons whose rights or interests are likely to be impaired must always be considered as mandatory. As otherwise, it would defeat the very purpose of giving public notice inviting objections and suggestions against the proposed action."
23. In the matter of ITC Bhadrachalam Paperboards and another vs. Mandal Revenue Officer, A.P. and others, reported in 1996 (6) SCC 634, it is held as under : Page 35 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022
C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 "17. Shri Sorabjee relied upon certain decisions in support of his contention to which a reference would be in order. The first decision relied upon is in Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Corpn. of the City of Bangalore rendered by a Constitution Bench. The procedure for levying municipal taxes is provided in Section 98 of the City of Bangalore Municipal Corporation Act, 1949 (69 of 1949). It requires that the resolution intending to impose a tax should be published in the Official Gazette and in the local newspapers. The rate-payers can submit their objections in response to such publication, after considering which the Corporation may levy the tax or duty by a resolution which is also required to be published in the Official Gazette and in the local newspapers. The Corporation passed a resolution levying the tax but the notification levying the tax was not published in the Gazette. It was contended by the appellant before this Court that the said non-publication was fatal to the legality of the imposition of tax. Reliance was placed on the decision of this Court in Harla v. State of Rajasthan and State of Kerala v. P.J. Joseph. The Constitution Bench did not say that the requirement of publication in the Official Gazette is not mandatory or that it is directory. It merely held that Section 38(1) cured the said defect/irregularity. Section 39(1) provides that "no act done or proceeding taken under this Act shall be questioned merely on the ground ... (b) of any defect or irregularity in such act or proceeding not affecting the merits of the case"
The Constitution Bench held that the provision in Section 38(1)(b) is "unambiguous and clear and it validates any defect in any act done or proceedings taken under the Act and makes it immune from being questioned on the ground of defect or irregularity in such act or proceedings not affecting the merits of the case"
The Court referred to the fact that the said resolution was Page 36 of 38 Downloaded on : Tue Mar 29 21:15:31 IST 2022 C/SCA/4075/2021 CAV JUDGMENT DATED: 28/03/2022 published in the newspapers and was also communicated to those affected by it and was thus well known. The Court held that the failure to publish it in the Government Gazette did not affect the merits of the imposition and that, therefore, the validity of the levy cannot be questioned. It cannot be said that the said decision supports the proposition of Shri Sorabjee in any manner. The entire decision turned upon the provision in and effect of Section 38(1)(b) of the said Act."
24. For the reasons aforestated, we proceed to pass the following ORDER
(i) The Special Civil Application is allowed.
(ii) The impugned notification No.GSR/1229(E) dated 04.10.2017 published in the Gazette of India issued by first respondent (Annexure-A), is hereby quashed.
(iii) The respondents are at liberty to proceed from the stage of draft notification dated 09.11.2016 (Annexure-B) or proceed to issue fresh notification in accordance with the Insecticides Act, 1968 and Rules made thereunder, if deemed fit.
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(iv) Civil Application (For Stay) No.1 of 2021 does not survive for consideration as matter has been disposed of on merits and it stands disposed of accordingly.
(v) Costs made easy.
(ARAVIND KUMAR,CJ)
(ASHUTOSH J. SHASTRI, J)
RADHAKRISHNAN K.V.
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