Jammu & Kashmir High Court - Srinagar Bench
Mohammad Shahid Bhat And Others vs Union Of India And Others on 13 May, 2022
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(through virtual mode)
Pronounced on :13.05.2022
WP(C) No. 107/2022
in
OWP No. 148/2014
OWP No. 207/2014
OWP No. 208/2014
WP(C) No. 235/2021
OWP No. 316/2014
WP(C) No. 300/2021
OWP No. 166/2014
WP(C) No.150/2022
OWP No. 139/2014
WP(C) No. 134/2022
WP(C) No. 247/2022
WP(C) No. 1967/2021,
CrM(M) No. 156/2021 &
OWP No. 2035/2018 a/w
CPOWP No. 299/2018
Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
JUDGEMENT
Since common questions of law and fact are involved in the present batch of petitions, it is proposed to deal with them by way of a common judgement and order.
WP(C) No. 107/2022 Mohammad Shahid Bhat and others Vs Union of India and others Mr. Aatir Javed Kawoosa, Advocate for the petitioners. Mr. T. M. Shamsi, ASGI & Mr. Irfan Andleeb, Dy.AG for the respondents.
1. The petitioners claim to be farmers of various villages belonging to different districts in the UT of Jammu & Kashmir, who have filed this petition in a representative capacity to protect the interests and welfare of the farmers/orchardists of Districts Srinagar, Shopian, Baramulla, Pulwama, Kulgam, Budgam, Ganderbal and Bandipora. The grievance highlighted in the 2 WP(C) No. 107/2022 a/w connected matters present petition is that even when the tree spray oil/horticulture mineral oil, which is being sprayed in the orchards in the UT of Jammu & Kashmir is a scheduled item in the Insecticides Act of 1968 (hereinafter referred to as "the Act") and is required to be regulated strictly and that even when no manufacturing, sale, import, transportation and distribution/supply and stocking of insecticides can be permitted without registration in terms of the provisions of the Act and without a licence, all the aforementioned activities were being permitted to continue in gross violation of the provisions of the said Act and that not only were the manufacturing activity being permitted without registration, even its stocking and sale was permitted freely.
2. It was urged that manufacturing, dumping and use of unregistered insecticides was risky, as even sub-standard poisonous and spurious products were being permitted to be used in the orchards, which would otherwise prove fatal to human beings in particular and the eco-system in general. In that view of the matter, the petitioners pray that no manufacturer of supplier be allowed to manufacture, dump or supply the horticulture mineral oil/tree spray oil in the Jammu & Kashmir inter alia without proper registration and a licence.
3. In the reply filed by the Director Agriculture Kashmir, a stand is taken that with a view to curb the menace of sale and stocking of unregistered tree spray oil/ horticulture mineral oil in the Valley, a circular dated 10.01.2022 has been issued, whereby supply, dumping and distribution of all such tree spray oil/horticulture mineral oil is prohibited in regard to those who are not registered with the Central Insecticides Board (CIB). Since, reliance has been placed upon circular dated 10.01.2022, which is also a subject matter of challenge in the connected petitions, it becomes necessary to reproduce the same hereunder:
3 WP(C) No. 107/2022
a/w connected matters "Government of Jammu & Kashmir Department of Horticulture Civil Secretariat, Jammu CIRCULAR To regulate the import, manufacturing, sale, transport, distribution and use of insecticides with a view to prevent risk to human beings or animals and matter indicated herewith, the Insecticides Act, 1968 is in force. As per sub section 1 of section 9, any person desiring to import or manufacture any insecticide may apply to the Registration Committee of Central Insecticides Board for registration of such insecticides to enable to get manufacturing licence issued from the UT of J&K under sub section 1 of section 13.
Further, Tree Spray Oil(TSO) being sprayed in apple orchards in J&K is scheduled item in the Insecticides Act, 1968. Therefore, no Tree Spray Oil (TSO) Manufacturer/ Distributor can supply, stock or distribute the Tree Spray Oil (TSO)/Horticulture Mineral Oil (HMO) unless being registered under sub section 1 of section 9 with the Central Insecticides Board.
Against the above background, Director Law Enforcement, J&K (Law Enforcement) and the Director General Horticulture, Kashmir (User Department) shall ensure that the supply, dumping and distribution of all such Tree Spray Oil (TSO)/Horticulture Mineral Oil (HMO) shall not take place by those who are not registered with the Central Insecticides Board.
Any declaration in this regard will be viewed seriously.
sd/-
(Farooq Ahmad Wani) Under Secretary to the Government No. Horti-Plg/87/2021 (CC-83424) Dated: 10.01.2022" OWP No. 148/2014
Hindustan Petroleum Corporation Ltd. Vs Union of India and others Mr. Z. A. Shah, Sr. Advocate with Mr. A. Hanan, Advocate for the petitioner. Mr. T. M. Shamsi, ASGI & Mr. Irfan Andleeb, Dy.AG for the respondents.
4. In this petition the petitioner Corporation claims that it is a Government of India enterprise and is registered as a Company under the Companies Act. It is stated that it is engaged in the manufacture of petroleum derived spray oil, which is used by orchardists on fruit bearing trees, with a view to control the menace of pests which damage the quality and quantity of the fruits. It is stated that the product of the company has the approval from the SKUAST-Kashmir.
5. It is further stated that the petitioner Company, with a view to comply with the provisions of the Act applied for registration in March, 2013 4 WP(C) No. 107/2022 a/w connected matters for registering its products in accordance with the guidelines. It is stated that the company also approached the Agriculture Department in January, 2014 for issuance of the licence from the State Government in terms of Section 13 & 18 of the Act, which licence was refused on the premise that the same cannot be issued in respect of a product which is yet to be registered.
6. Learned counsel for the petitioner urged that the view expressed by the official respondents in refusing the issuance of a licence was perverse, inasmuch as, considering the provisions of the Act, which envisaged „deemed registration,‟ as enshrined under the Section 17 & 18 of the Act, the licence which was prayed for by the petitioner could not have been refused.
7. It was also urged that the action on the part of the respondents to prevent the petitioner from manufacturing of insecticides or its sale directly through the distributors was, therefore, totally illegal and perverse. In that background the petitioner challenges inter alia the communications impugned dated 04.01.2014, 27.01.2014 & 01.02.2014, issued by the respondents in the writ petition.
OWP No. 207/2014 Ch. Aishi Ram Batra (Unit II) Vs Union of India and others Mr. Z. A. Shah, Sr. Advocate with Mr. A. Hanan, Advocate for the petitioner. Mr. T. M. Shamsi, ASGI & Mr. Irfan Andleeb, Dy.AG for the respondents.
8. In this petition the petitioner claims that it is in the business of sale of tree spray oil manufactured by Hindustan Petroleum Corporation Limited since decades. The petitioner is aggrieved of the order passed by the Executive Magistrate Ist Class, Srinagar, whereby the tree spray oil belonging to the petitioner was seized and further the petitioner was ordered to stop the sales of the said tree spray oil. In this regard the orders/communications dated 23.01.2014, 31.01.2014 & 03.02.2014 are challenged in this writ petition.
5 WP(C) No. 107/2022
a/w connected matters OWP No. 208/2014 Total Oil India Pvt. Ltd. and another Vs State of J&K and others Mr. Z. A. Shah, Sr. Advocate with Mr. A. Hanan, Advocate for the petitioners. Mr. T. M. Shamsi, ASGI & Mr. Irfan Andleeb, Dy.AG for the respondents.
9. The petitioners claim that they manufacture insecticides under the brand names Arbofine and Arbofine Extra and have been in the business of manufacturing these insecticides for the last twenty years. It is stated that the insecticides manufactured by the company are used as spray oil on trees. It is further stated that after the product being manufactured by the petitioner was brought within the purview of the Insecticides Act in the year 2005, an application was filed with the Registering Authority in November, 2012.
10. It is further stated that the product of the petitioner was scrutinized and subjected to analysis by the SKUAST-Kashmir, which found the product suitable for use as a spray oil on the fruit bearing trees in the Kashmir Valley. It is however clear that despite having applied for registration in the year 2012, registration has not been granted and the petitioner continues to manufacture and sell the insecticides in the Jammu & Kashmir Region. It is in that background that the communications dated 03.01.2014, 23.01.2014, 27.01.2014 & 01.02.2014 were issued, directing the petitioner to stop the distribution and sale of the products of the petitioner, being in contravention of Section 21(c) of the Act.
WP(C) No. 235/2021 & OWP No. 316/2014 R. G. Industries Head Office Vs UT of J&K and others Mr. Gulzar Ahmad Bhat, Advocate for the petitioner and Mr. T. M. Shamsi, ASGI & Mr. Irfan Andleeb, Dy. AG for the respondents in WP(C) No.235/2021. Mr. Molvi Aijaz Ahmad, Advocate for the petitioner and Mr. T. M. Shamsi, ASGI & Mr. Irfan Andleeb, Dy. AG for the respondents in WP(C) No. 316/2014.
11. The petitioner claims that it is a supplier of spray oil for horticulture use in the UT of Jammu & Kashmir. It is stated that the product being supplied by the petitioner is awaiting formal registration with the Registration 6 WP(C) No. 107/2022 a/w connected matters Committee under the Act. It is further stated that prayer for grant of a licence did not elicit any response on the ground primarily that the product of the petitioner was yet to be registered with the Registration Authority.
12. It is stated that a licence can be issued in favour of the petitioner pending the formal registration and that the same could be cancelled in case the Registration Authority conveys formally the refusal regarding the registration of a product. In that context, the petitioner seeks the issuance of a writ of certiorari for quashing the order dated 13.01.2021 passed by the Law Enforcement Inspector, Pulwama in regard to the product of the petitioner being Orchol-TSO/Orchol-13, which was issue for purposes of preventing the petitioner from selling and distributing the said product. WP(C) No. 300/2021 Total Oil India Pvt. Ltd and another Vs Union of India and others Mr. Z. A. Shah, Sr. Advocate with Mr. A. Hanan, Advocate for the petitioners. Mr. T. M. Shamsi, ASGI & Mr. Irfan Andleeb, Dy.AG for the respondents.
13. In this petition the petitioners challenge the communication dated 13.01.2021, issued by the Law Enforcement Inspector, Pulwama, whereby the petitioners have been asked to stop the distribution, sale and use of insecticides under the brand names Afbofine and Arbofine Extra. OWP No. 166/2014 and WP (C) 150/2022 Bharat Petroleum Corporation Vs State of J&K and others Bharat Petroleum Corporation Vs. UT of J&K and others Mr. Jehangir Iqbal Ganai, Sr. Advocate with Ms. Humaira Shafi, Advocate for the petitioner &. Mr. Irfan Andleeb, Dy. AG & Mr. T. M. Shamsi, ASGI for the respondents in OWP No. 166/2014. Mr. Syed Faizal Qadri, Sr. Advocate with Mr. Altaf Mehraj, Advocate for the petitioner & Mr. T. M. Shamsi, ASGI, Mr. Irfan Andleeb, Dy. AG & Mr. Areeb Kawoosa, Advocate for the respondents in WP(C) No. 150/2022.
14. The petitioner Bharat Petroleum Corporation Limited is also manufacturing tree spray oil and has applied for registration on 19.11.2013. Counsel for the petitioner states that the Registration Authority did not seek any clarification nor asked the petitioner to submit any material which would 7 WP(C) No. 107/2022 a/w connected matters otherwise enable them to take effective decision in the matter. It is, however, stated that the Registration Authority has now granted registration vide order dated 15.2.2022. However, it is stated that the licence in terms of section 13 of the Insecticides Act has not been issued even when the same has been applied for with the concerned authority which fact is however denied by Mr. Andleeb, learned Dy. AG, who appears for official respondents. OWP No. 139/2014 Swift Marketing and Sales Vs. State of J&K and others Mr. Jehangir Iqbal Ganai, Sr. Advocate with Ms. Humaira Shafi, Advocate for the petitioner. Mr. Irfan Andleeb, Dy. AG & Mr. T. M. Shamsi, ASGI for the respondents.
15. In this petition the petitioner claims that it is a distributor of M/S Bharat Petroleum Corporation and is marketing and distributing various products including MAK all season HMO in the districts of Kashmir and Ladakh. The petitioner seeks issuance of a writ of certiorari for quashing orders dated 4.1.2014 and 8.1.2014 whereby respondent no. 5, Law Enforcement Inspector, Srinagar, has prohibited the petitioner from selling or distributing the spray oil on account of failure of the petitioner to produce the relevant registration of the said petroleum derived product from the concerned authority. By virtue of an interim order dated 7.2.2014 passed by a coordinate bench of this court, operation of the orders impugned in this petition were stayed and product seized was directed to be released in favour of the petitioner.
16. Mr. Andleeb, learned Dy. AG, states that there was no license issued in favour of the petitioner in terms of section 13 of the Act. It is further stated that in terms of the prohibition contained in section 18 of the Act, the product of the petitioner is misbranded and not permitted to be sold. In addition to this, it was urged that the petitioner ought to have satisfied this court whether the product which was being marketed and sold by the 8 WP(C) No. 107/2022 a/w connected matters petitioner was otherwise registered product in terms of section 9 of the Act and was permitted to be sold in terms of section 18.
WP(C) No. 247/2022 Indian Oil Corporation Ltd. Vs UT of J&K and others Mr. Ateeb Kanth, Advocate for the petitioner Mr. T. M. Shamsi, ASGI, Mr. Irfan Andleeb, Dy. AG, Mr. Satinder Singh, AAG vice Mr. A. S. Sodhi, Dy. AG and Mr. Areeb Kawoosa, Advocate for the respondents.
17. Learned counsel for the petitioner submits that the relevant registration in terms of Section 9 of the Act has been granted to the products being manufactured by the petitioner pursuant to the communication dated 28.01.2022.
WP (C) 134/2022 Total Energies Marketing India Pvt. Ltd. and another Vs. UOI and Ors.
Mr. Z. A. Shah, Sr. Advocate with Mr. A. Hanan, for the petitioners. Mr. Irfan Andleeb, Dy. AG, Mr. T. M. Shamsi, ASGI & Mr. S. A. Naik, Advocate for the respondents.
18. The petitioner is a company which is engaged in the manufacture of insecticides inter alia under the brand names, Arbofine Extra and Arbofine. The manufacturing activities were started, according to the learned counsel for the petitioner, somewhere in the year 1996. It is not out of place to mention that the products which are manufactured by the manufacturing unit are petroleum derived spray oils, which item was incorporated in the schedule vide GSR 651-E dated 31.2.2005 after obtaining permission from government of Maharashtra. Since 2005, after the said product became a scheduled product, the requirement to register the said product was necessitated in view of the requirement of section 9 of the Registration Act which envisages that any person desiring to manufacture or import, has to apply for registration to the Registration Committee for the purposes of registration of the said unit for such insecticides. The application for registration appears to have been submitted to the Registration authority somewhere on 5.11.2012. The said application was not dealt with by the 9 WP(C) No. 107/2022 a/w connected matters Registration Authority from 2012 till 23.12.2021 when for the first time the petitioner was called upon to make a presentation relating to the chemical composition of the product and the bio-efficacy of the same. It is stated that the presentation could not be made inasmuch as no date was fixed by the committee for making such a presentation. Notwithstanding the fact that the application for registration of the petitioner unit is still pending consideration, the petitioner continues to manufacture, stock, sell and market the products mentioned hereinabove. It is in that background that the official respondents have issued the communications dated 24.01.2022 & 27.01.2022, requiring the petitioner to stop the distribution, sale and use of the products, which communications are challenged in the present petition.
19. The issue that arises for consideration is whether the petitioner can be permitted to manufacture, sell, store or market the insecticides in view of the prohibition contained in section 17/18 of the Insecticides Act 1968 (hereinafter referred to as the Act) or whether the petitioner can be given the benefit of the deeming provisions of the Act till such time the committee notifies the refusal to the petitioner in regard to the application made by it in that regard.
20. At this stage it becomes necessary to refer to a few provisions of the Insecticides Act which are relevant for the just disposal of the case.
Section 9 of the Act envisages that any person desiring to import or manufacture any insecticide may apply to the Registration Committee for the registration of such insecticide and that there shall be a separate application for each such insecticide. The first proviso to the section, however, envisages that any person engaged in the business of import or manufacture of any insecticide immediately before the commencement of this section (Section 9) shall make an application to the Registration Committee within a period of 17 10 WP(C) No. 107/2022 a/w connected matters months from the date of such commencement for the registration of any insecticide which he has been importing or manufacturing before that date.
21. Clause (3) of Section 9 envisages that on receipt of any such application for the registration of an insecticide, 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 1 [on 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.
However, the committee has been given the discretion to extend the period by a further period not exceeding six months where it is unable to arrive at a decision on the basis of material which has been placed before it.
Clause (3A) to Section 9 which was incorporated in the year 1977 envisages that in the case of applications received by the authority prior to the 31st March, 1975, notwithstanding the expiry of the period specified in sub-section (3) for the disposal of such applications, it shall be lawful and shall be deemed always to have been lawful for the Registration Committee to dispose of such applications at any time after such expiry but within a period of one year from the commencement of the amendment to the Insecticides Act.
22. Section 17 of the Act inter alia envisages the prohibition on import and manufacture of any misbranded insecticide or any insecticide in contravention of any other provision of the Act or of any rule made 11 WP(C) No. 107/2022 a/w connected matters thereunder. A misbranded insecticide, as defined in terms of Section 2(K)(vi) of the Act, includes an insecticide which is not registered in the manner required by or under this Act. Proviso to Section 17(1) is relevant and is reproduced hereunder:-
"17. Prohibition of import and manufacture of certain insecticides:-
1. ..........................
(a) ...............
(b) ...............
(c) ...............
(d) ..............
Provided that any person who has applied for registration of an insecticide 1[under any of the provisos] to sub-section (1) of section 9 may continue to import or manufacture any such insecticide and such insecticide shall not be deemed to be a misbranded insecticide within the meaning of sub-clause (vi) or sub-clause (vii) or sub-clause (viii) of clause (k) of section 3, until he has been informed by the Registration Committee of its decision to refuse to register the said insecticide.
2. ............................."
23. While Section 17 deals with the prohibition on the import and manufacture of insecticide, Section 18 deals with prohibition of sale, stocking, exhibition for sale, distribution or use of the certain insecticides. Section 18 is relevant and is being reproduced hereunder:-
18. Prohibition of sale, etc., of certain insecticides.--
(1) No person shall, himself or by any person on his behalf, sell, stock or exhibit for sale, distribute, 2[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;
(c) any insecticide in contravention of 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 3[or use for commercial pest control operations] any insecticide except under, and in 12 WP(C) No. 107/2022 a/w connected matters accordance with the conditions of, a licence issued for such purpose under this Act.
Explanation.--For the purposes of this section an insecticide in respect of which any person has applied for a certificate of registration 4[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."
24. A reading of Section 18 of the Act would, therefore, make it clear that while sale, stocking or exhibition of the insecticide not registered under the Act is prohibited, yet in terms of the explanation to Section 18 in case the person has applied for a certificate of registration under any of the provisos to Sub-Section (1) of Section 9, it shall be deemed to be registered till the date on which the refusal to register such insecticide is notified in the official gazette.
25. It is also important to notice that in terms of Clause 2 of Section 18, sale, stocking or distribution of an insecticide is permissible only if a licence is issued for that purpose under the Act. A clear distinction, therefore, needs to be drawn between an act of registration and an act of issuance of a licence. The registration is a function which has to be discharged by the Registration Committee constituted in terms of Section 5 of the Act, whereas grant of licence is a subject, which is covered under Section 13, which licences have to be issued by the Licensing Officer appointed by the Government in terms of Section 12 of the Act. The applications have to be made in such form as are prescribed. The Licensing Authority has discretion to grant a licence on such conditions and payment of such fee as is prescribed under the Act. Proviso to Section 13 is relevant and is reproduced hereunder:-
"13. Grant of licence:-
(1) ..........................
(2) ..........................13 WP(C) No. 107/2022
a/w connected matters (3) .............................
(4) .............................
Provided that where a licence has been granted to any person who has made an application under 3[the first proviso or, as the case may be, the second proviso] to sub-section (1), that licence shall be deemed to be cancelled in relation to any insecticide, the application for registration whereof has been refused or the registration whereof has been cancelled, under this Act, with effect from the date on which such refusal or cancellation is notified in the Official Gazette.
............................."
26. The argument advanced during the course of hearing by learned counsel for the petitioners primarily is that the benefit of the provisions relating to deemed registration ought to be extended to the petitioners, inasmuch as, their request for registration was pending with the Registration Committee. This argument needs to be tested.
27. The provisions relating to deemed registration can be traced to Section 17 & 18 of the Act. While Section 17 pertains to prohibition on import and manufacture of certain insecticides, Section 18 pertains to prohibition on sale etc of certain insecticides. Both the sections envisage the pre-requisite of registration in accordance with the provisions of the Act. However, proviso to Section 17 by a deeming provision authorizes a person to continue to import or manufacture any insecticide, who otherwise had applied for registration of an insecticide under any of the provisos to sub-section (1) of Section 9. Such an insecticide would not be termed as a misbranded insecticide, which according to the definition of Section 3(k)(vi), which in the normal course would be treated as a misbranded insecticide being not registered under the Act. Reference to proviso to sub-section (1) of Section 9 would make it clear that the deeming provision is restricted to a person engaged in the business of import or manufacture of an insecticide immediately before the commencement of the section (Section 9) with a further mandate that an 14 WP(C) No. 107/2022 a/w connected matters application for registration is filed within a period of 17 months from the date of commencement of the section.
28. The date of commencement of Section 9 does not appear to be any different from the date the Insecticides Act, 1968 came into force in September, 1968. It thus appears that the benefit of deemed registration would be limited only to those manufacturers or importers who had been importing or manufacturing insecticides immediately before the commencement of Section 9 of the Act, which appears to be commensurate with the coming into force of Insecticides Act of 1968.
29. Even in regard to Section 18, the provision relating to deemed registration is to apply only in a case where any person has applied for a certificate of registration under any of the provisos to sub-section (1) of Section 9 i.e., a person, who had been selling, distributing, stocking or exhibiting for sale etc any insecticide, which was being imported or manufactured immediately before the commencement of Section 9 of the Act.
30. It thus becomes clear that a unit intending to manufacture a particular insecticide for which registration is mandatory in terms of the Act does not get a right to seek provisional registration based upon the deemed registration clause of Section 17 and equally so the person intending to sell, distribute, stock or transport an insecticide does not get a right to sell, distribute, store or stock an insecticide only upon filing an application before the Registration Authority seeking to register the said product. The deeming provisions in Section 17 and 18 of the Act are thus restricted in their application to only those insecticides, which were being manufactured, sold, distributed and stocked before the commencement of Section 9 of the Act. 15 WP(C) No. 107/2022
a/w connected matters
31. The argument advanced by the learned counsel for the petitioners that only because their applications for registration were pending with the Registration Authority in some cases since 2012, it should be deemed that their product was registered, therefore, is an argument, which is untenable and is accordingly rejected.
32. Next comes the question of issuance of a licence in favour of the manufacturers/sellers, distributors etc., for which too Section 13 envisages grant of a licence. Issue of licences is a matter, which is covered additionally by the Insecticides Rules, 1971. Grant of licence for manufacturing of insecticides is covered under Rule 9, which envisages that an application has to be made in Form 5 to the Licensing Authority along with the requisite fee. While the licence is issued in Form 6, subject to certain conditions. A reference to Form 5 would show that the applicant has to specifically mention and submit a copy of the certificate of registration of the insecticide duly certified. The applicant is also required to state as to whether the registration is provisional or regular. It needs to be mentioned that Rule 3(B) of Section 9 envisages provisional registration for a period of two years of an insecticide, which is being introduced for the first time in India. The provisional registration is granted pending any enquiry and on such conditions as may be specified by the Registration Committee.
33. It is, however, not clear whether in case of a deemed registration, a „provisional‟ registration certificate is issued by the Registration Authority or not. However, that is an issue, which may not been immediately relevant to decide the present controversy. Suffice it to say that in the absence of the benefit of deemed registration and in the absence of a claim that the petitioners were manufacturing the insecticides in question or transporting, selling, distributing etc., the same, before the commencement of Section 9 of 16 WP(C) No. 107/2022 a/w connected matters the Act, and in the absence of a claim that the registration had been applied in terms of any of the provisos to Section 9(1), the benefit of deemed registration cannot be claimed by the petitioners or accepted by this Court.
34. Even in regard to the licences for sale, distribution etc of insecticides, similar conditions in regard to registration are required to be satisfied, in the absence whereof a person cannot claim that a licence ought to be granted in its favour pending the formal registration of its product as a matter of right.
35. Needless to say that in terms of Clause 4 of Section 9, the terms and conditions for sale, stocking, distribution etc ought to be the same as the terms and conditions on which the insecticides were originally registered, based upon an application filed by a person intending to import or manufacture of such an insecticide.
Omission on the part of the Registration Authority
36. A very onerous responsibility has been cast upon the Registration Authority constituted in terms of Section 5 of the Act, which is enjoined to consider the requests for the registration of an insecticide. The registration may be granted by the Committee, if it is satisfied that the precautions claimed by the applicant are sufficient to ensure safety to human beings or animals and can be easily observed. Request for registration have to be decided in a time-bound manner, which is 12 months from the date of receipt of the application. The said period can be extended for a further period not exceeding six months. It is painful to notice that some of the petitioners had claimed in their petitions that their requests for registration had been pending with the Registration Committee in some cases since 2012. In the meantime, these petitioners, being aggrieved of the action taken by the Law Enforcement Inspectors and other authorities filed petitions, some of which 17 WP(C) No. 107/2022 a/w connected matters had been filed as early as in 2014 and thereafter obtained interim orders and continued manufacturing and selling their products. No effort was made by the Registration Committee to dispose of the matters pending before it, even when there were no prohibitory orders from the Court, which could prevent the consideration of the applications pending before it.
37. However, during the pendency of these proceedings, the matter was taken up for consideration and all the connected petitions clubbed. In some cases, it was reported that registration had been granted. The members of the Registration Committee are required to be sensitized on the dangers that are posed to human beings apart from animals, if they fail in their duty to take a timely decision and fail to subject the product in regard to which registration is sought to the critical scientific tests available, in accordance with the mechanism that has been prescribed. The delay in taking a final decision of the Committee could have the effect of permitting the manufacture, the sale and distribution of sub-standard insecticides, which would in turn caused immeasurable damage to the life of both animals and human beings.
38. I deem it appropriate to direct the Ministry of Agriculture, Union of India through its Secretary, which in my opinion, appears to be the Ministry primarily responsible, to ensure that the Committee entrusted with the task of registration takes timely decisions with a view not only to prevent unscrupulous players from playing with the precious lives, but also to prevent prejudice to those genuine manufacturers of insecticides, who may be forced to approach the Court on account of their inaction. Responsibility also is required to be fixed on those, who have failed to discharge their duty under the Act. Needless to say that in case of non-cooperation by an applicant to furnish the requisite information etc. the Committee is not enjoined to carry 18 WP(C) No. 107/2022 a/w connected matters on the proceedings before it ad infinitum and such like cases ought to have been closed on account such a failure of the applicants.
39. Be that as it may, in the light of the foregoing discussions, it is held:-
a. That the benefit of deemed registration is available to only such of the applicants/petitioners, who had specifically applied in terms of any of the provisos to Section 9 of the Act and were either manufacturing or importing any insecticide immediately before the commencement of Section 9 of the Act. b. Any insecticide, which was not specified in the schedule in terms of Section 3(e), on the date of coming into force of the Insecticides Act and in particular Section 9 and was incorporated in the schedule in 2005 or thereafter would not be entitled to claim the benefit of deemed registration otherwise envisaged in terms of Section 17 & 18 of the Act, inasmuch as, the said benefit was limited to only insecticides, which were being imported or manufactured immediately before the commencement of Section 9 of the Act.
c. An applicant who has applied for registration cannot claim a licence in the absence of a certificate of registration issued by the Registration Authority after completing due process of scrutiny.
d. In the absence of a certificate of registration and a licence duly issued, none of the petitioners would have any right for manufacture, stocking, transportation, marketing or sale of such insecticide and the concerned authorities would be well within their right to act in that regard to prevent any such activity.19 WP(C) No. 107/2022
a/w connected matters e. All pending cases with the Registration Committee in regard to which the timelines prescribed under the Act have since expired shall be decided within one month from the date of this judgement.
f. The Licensing Authority shall consider all the applicants for grant of licence in terms of Section 13 of the Act in regard to those insecticides, which have been registered by the Registering Authority. Upon such applications being filed, the Licensing Authority shall consider the same on their own merits and appropriate orders shall be passed within one month from the date of such application.
40. Writ petition bearing WP(C) No.107/2022 is allowed. The writ petitions bearing OWP No.148/2014, OWP No.207/2014, OWP No.208/2014, WP(C) No.235/2021, OWP No.316/2014, WP(C) No.300/2021, OWP No.166/2014, WP(C) No.150/2022, OWP No.139/2014, WP(C) No.134/2022 & WP(C) No.247/2022 are dismissed. WP(C) No. 1967/2021, CrM(M) No. 156/2021 & OWP No. 2035/2018 a/w CPOWP No. 299/2018
41. These cases have wrongly been tagged with the bunch of petitions. Registry is directed to de-tag these cases and list the same separately on 31.05.2022 before an appropriate Bench.
(Dhiraj Singh Thakur) Judge Srinagar 13.05.2022 Muneesh Whether the order is speaking : Yes Whether the order is reportable: Yes