Contents - 1 Insecticides Act, 1968
- 2 i. Whether this Court has any territorial jurisdiction to entertain this writ petition;
- 3 ii whether the Registration Committee has power to review its own decision;
- 4 iii whether petitioner has any locus standi to challenge the procedure of the Registration Committee.
- 4.1 7. Article 226(2) of the Constitution of India confers jurisdiction on High Court if the part of the cause of action arises within the territorial jurisdiction of the High Court. The cause of action to challenge the decision is based on the registration granted to the applicant who is having registered office in Delhi. The Registration Committee is located at Haryana. The cause of action means the bundle of facts giving rise to an action. A person residing anywhere in the Country may have right of action in law. However, jurisdiction of the High Court can be invoked only if the cause of action arises within territorial jurisdiction of the High Court. The cause of action in this context has to be understood with respect to the purport and scope of the Insecticides Act. The Insecticides Act is enacted with a view to prevent human risk. Therefore, registration granted to the applicant can have an impact on any part of the country. It is to be noted that under Section 11 of the Insecticides Act, the Central Government may, at any time, call for the record relating to any case in which Registration Committee has given a decision to satisfy legality or propriety of any such decision. It is based on Section 11, the appeal filed by the petitioner was treated as a revision and the appellate authority remanded the case to the Registration Committee to take a decision after obtaining the views of ICMR, Delhi. Therefore, the scheme of the Act would clearly indicate that registration will have an impact on the people living in the entire country. Therefore, it cannot be said that cause of action would not arise within the territorial jurisdiction of this High Court as the impact of such registration can also affect the life of the people in the State of Kerala.
- 4.2 Natasha Sondur and others v. Union of India and others [AIR 2005 Karnataka 253]
- 4.3 Kalabharathi Advertising v. Hemant Vimalnath Narichania [2010 (3) KLT 986]
- 4.3.1 No doubt it is settled proposition of law that judicial or quasi judicial authorities have no inherent power to review its own decision unless it is so permitted under the statute/rules. Their power of review is creation of statute and in the absence of any statutory provision, it cannot be exercised. This Court is of the view that there is a subtle distinction in exercise of power by administrative authority and quasi judicial authority/judicial authority. In the realm of discharge of administrative function, though administrative authority may exercise the power akin to quasi judicial authority by a judicious approach in deciding granting/refusing licence, it is in fact, not similar to the power exercised by the quasi judicial/judicial authority. The underlying distinction of such power is based on the nature of purpose for which the power is exercised. If the statute is enacted to regulate the activity, the object of the statute is to regulate the activity and in that process, it may decide the right of a person to obtain a licence in terms of the regime to achieve the object under the statute, that exercise of power is nothing but exercise of administrative adjudication. On the other hand, in quasi judicial function, the object is to decide the right and liability of the parties to the lis. Though in administrative function the authority has to follow certain principles having trapping of quasi judicial function, nevertheless, that adjudicatory decision in the context of regulatory regime will not cease to have the character of an administrative decision. The administrative function is being carried on from time to time and day-to-day to regulate activity for which power is conferred. If exercise of such power is fettered by an embargo of review, there would be an administrative paralyse, resulting in dysfunction of the governmental machineries. Thus, the embargo to exercise power of review by quasi judicial authority/judicial authority unless it is conferred under the law is not applicable to the administrative authority in exercise of adjudicatory power for deciding a question relating to the grant of licence.
- 4.3.2 10. Therefore, mere presence of certain attributes of quasi judicial function or judicious approach in taking decision for licence would not convert administrative adjudication to that of a quasi judicial adjudication. Under Section 21 of the General Clauses Act, an authority is conferred with a statutory power exercisable in the like manner, to add, amend, vary or rescind any orders so issued.
- 4.4 State of Kerala v. K.G.Madhavan Pillai [(1988) 4 SCC 669]
- 4.5 R.R.Verma v. Union of India [(1980) 3 SCC 402]
- 4.6 Western India Match Co. Ltd. v. Workers Union [1970 (1) SCC 231]
- 4.7 Ramakanyadevi v. State [AIR 1980 Kant 182]
- 4.7.1 13. The Registration Committee under the Central Insecticides Board is exercising its power in the matter of grant of licence, in order to regulate import, manufacture, sale, transport, distribution and use of insecticides with a view to prevent risk to human beings. In that process, administrative decision is taken to secure the above objectives while application for licence is being considered under the Insecticides Act. Thus, the Registration Committee has to consider the application for licence with reference to parameters to secure the objectives of the Act. The Insecticides Act also provides appellate remedy in case of non registration or cancellation under Section 10 of the Insecticides Act. It also confers powers of revision to the Central Government at anytime, to satisfy the legality and propriety of the decision. The nature of power that is conferred under the Insecticides Act really spells out that power is vested with the Registration Committee to protect the safety of human beings and animals while an applicant is allowed to import, manufacture, sell or stock insecticides in India. No doubt once a decision is taken by the primary authority, any decision thereon either in appeal or revision is a quasi judicial function exercised by the appellate authority or the Central Government as the case may be. Those authorities cannot review their own decision unless it is specifically conferred under the statute. However, it is to be noted that any administrative authority exercising a review of its earlier decision has to act in a bona fide manner or based on fresh or additional materials. It has to find out reasons for exercising power of review. If any power is exercised not for a bona fide reason, such a decision would be against the principles of fairness and would be considered as arbitrary. In the present case, the applicant points out there was an error in appreciating toxicity of the product. This was considered by the Registration Committee and the Registration Committee after deliberation issued Ext.P2 order. I do not find any reason to treat the above decision as arbitrary or tainted with mala fides. This Court, of course, is not concerned about the merit of the decision as same was subjected to appeal before the appellate authority and appeal has to be decided on merits. The power of this Court invoking judicial review is only to examine the decision making process and not against the decision itself. Thus, this Court holds that the Registration Committee has the power to take Ext.P2 decision, and the challenge against Ext.P2 on the ground of jurisdiction is repelled.
- 4.7.2 14. The next point that falls for consideration is whether the petitioner has any locus standi to challenge the procedure adopted by the Registration Committee to review the earlier decision. The Insecticides Act provides a substantive right in the matter of protection to human beings and also procedural right to question the decision of the Registration Committee by way of revision under Section 11 before the Union Government. However, it is to be noted that no right is available to a third party to have audience in the process of registration. Thus, the question arises whether a third party can question the procedure in relation to a decision making process under the Statute. The right of action necessarily pre-suppose a legal right. It must be vested with a person who challenges the decision. No doubt, the third party has a right to question the merit of the decision in the sense the Insecticides Act protects any danger to human being. The procedural certainty in the process of decision making process is to ensure legal certainty and to its finality. The principles governing power of review, res judicata, estoppel are available to the party to the proceedings to ensure procedural safeguards protecting their legal right in decision making process and to put certainty and finality in the process. On conclusion, they acquire a protected right against re-opening unless it is permitted under the law. That means a correlating duty is cast upon a person, who is bound by the decision, to accept the decision and obliges him to act in favour of the person entitled. A third person, who was not a party to the proceedings to the decision cannot claim a protected right against re-opening of procedure which was concluded before the decision making authority. It is to be noted, in law, the plea based on review, estoppel, res judicata etc. creates only imperfect right based on the principles of finality and legal certainty and more or less it is related to procedure than to a substantive right. Thus, the writ petitioner, who is a third party to the decision making process before the Registration Committee, cannot question any procedure adopted by the Registration Committee reviewing its decision. The plea of bar of review is not available to a third party to the decision making process. Thus, I am of the view that the petitioner has no right to question the decision making process being a third party. The right available to the petitioner under law is only to question the merit of the decision of the Registration Committee which is a substantive right. Accordingly, I do not find any merit in the challenge made by the petitioner based on the plea of bar of review.
- 4.7.3 15. In view of the discussions as above, I do not find any merit in W.P.(C).No.28454/2013, therefore, the same is dismissed. W.P.(C).No.14962/2014 is disposed of directing the appellate authority to dispose Ext.P8 appeal within a period of four months after hearing the petitioner and the applicant. No costs.
(2015) 393 KLW 737 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE
MR. JUSTICE A.MUHAMED MUSTAQUE FRIDAY, THE 23RD DAY OF JANUARY 2015/3RD MAGHA,
1936 WP(C).No. 28454 of 2013 (F) and WP(C).No. 14962 of 2014 PETITIONER K V BIJU BY ADVS.SRI.P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN RESPONDENTS 1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF AGRICULTURE, DEPARTMENT
OF AGRICULTURE AND CORPORATION CENTRAL SECRETARIAT, NEW DELHI, PIN - 110 001. 2. THE JOINT SECRETARY (PP), APPELLATE & REVISIONAL AUTHORITY
TO CIB & RC MINISTRY OF AGRICULTURE, KRISHI BHAVAN DR.RAJENDRA PRASAD ROAD,
NEW DELHI, PIN - 110 001. 3. THE REGISTRATION COMMITTEE, CENTRAL INSECTICIDES BOARD
DIRECTORATE OF PLANT PROTECTION QUARANTINE & STORAGE (PPQ&S), N.H.IV,
FARIDABAD HARYANA - 121 001, REPRESENTED BY ITS SECRETARY. 4. M/S.SUMITOMO CHEMICALS INDIA PVT. LTD., UNIT NO.703 & 704,
7TH FLOOR AGGARWAL CORPORATE TOWERS, PLOT NO:23, DISTRICT CENTRE RAJENDRA
PLACE, NEW DELHI - 110 008. 5. INDIAN COUNCIL OF MEDICAL RESEARCH, P.O.BOX NO:4911, ANSARI
NAGAR, NEW DELHI - 110 029 REPRESENTED BY ITS DIRECTOR GENERAL. R1-R3 BY ADV.
SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R4 BY ADVS. SRI.MADHU
N.NAMBOOTHIRIPAD SRI.C.E.MANOJ NAIR SRI.RAJESH AGARWAL J U D G M E
N T These writ petitions pertain to registration granted to
the fourth respondent-M/s.Sumitomo Chemical India Private Ltd. (hereinafter,
referred to as the applicant) under the Insecticides Act, 1968The writ
petitions are filed by the same person. He claims to be an activist of swadeshi
movement. He challenges the orders passed by the authorities on the ground of
procedural illegality. The substantial issue regarding registration is pending
in appeal before the second respondent in W.P.(C) No.14962/2014. For the
purpose of reference, exhibits in W.P.(C).No.14962/2014 are relied on. 2. The Insecticides Act, 1968 (a Central Act), was enacted to
regulate the import, manufacture, sale, transport, distribution and use of
insecticides in order to prevent risk to human beings, animals etc. Under
Section 5 of the Act, a Registration Committee is constituted. Registration
Committee can devise its own procedure in respect of business to be transacted
by it. The third respondent in these writ petitions is the Registration
Committee constituted under the Insecticides Act. The applicant approached the
Committee for registration. That was declined as per the minutes of the meeting
held on 20/10/2009. According to the writ petitioner, that refusal has attained
finality. Ext.P1 is the decision of Registration Committee. In the year 2012,
the Registration Committee took a decision as per Ext.P2 to grant registration
to the applicant. This appears to have been done based on an application
submitted by the applicant, wherein the applicant has pointed out an apparent
error in appreciating the toxicity of the product. Petitioner challenged Ext.P2
under Section 10 of the Insecticides Act before the appellate authority. The
appellate authority noted that no appeal is maintainable under Section 10 and
treating the appeal as a revision and exercising power under Section 11, partly
allowed the appeal by holding that the opinion of Indian Council of Medical
Research (ICMR), Delhi on toxicity of the chemical and its formulation shall be
taken before taking final decision on registration. Thus, it was remanded to
the Registration Committee for taking a decision. 3. W.P.(C).No.28454/2013 is filed challenging the decision of the
appellate authority in not adverting to procedural illegality and irregularity
revealed in the earlier decision of the Registration Committee. The case of
writ petitioner is that the appellate authority failed to note that the
Registration Committee has no authority to review its own decision declining the
registration. According to the petitioner, the applicant, having failed to
challenge the decision declining the registration, cannot seek to review the
decision of the Committee without there being a challenge before the higher
authority. The remedy, according to the petitioner, available to the applicant
was to file an appeal against that decision. 4. Pursuant to remanding of the matter by the appellate authority,
opinion of ICMR was obtained by the Registration Committee and thereafter,
registration was granted to the applicant. Challenging grant of registration,
Ext.P8 appeal is filed before the appellate authority. Ext.P7 is the decision
of the Registration Committee after the remand. W.P.(C). No.14962/2014 is filed
commanding the appellate authority to dispose the appeal and to stay the
operation of Ext.P7 order. 5. Learned counsel appearing for the applicant addressed various
objections including locus standi of the writ petitioner. It is also argued
that High Court does not have any jurisdiction to entertain these writ
petitions. 6. In the facts and circumstances, the following points arise for
consideration: i. Whether this Court has any territorial jurisdiction to
entertain this writ petition; ii whether the Registration Committee has power
to review its own decision; iii whether petitioner has any locus standi to
challenge the procedure of the Registration Committee.
7. Article 226(2) of the Constitution of India confers jurisdiction
on High Court if the part of the cause of action arises within the territorial
jurisdiction of the High Court. The cause of action to challenge the decision
is based on the registration granted to the applicant who is having registered
office in Delhi. The Registration Committee is located at Haryana. The cause of
action means the bundle of facts giving rise to an action. A person residing
anywhere in the Country may have right of action in law. However, jurisdiction
of the High Court can be invoked only if the cause of action arises within
territorial jurisdiction of the High Court. The cause of action in this context
has to be understood with respect to the purport and scope of the Insecticides
Act. The Insecticides Act is enacted with a view to prevent human risk.
Therefore, registration granted to the applicant can have an impact on any part
of the country. It is to be noted that under Section 11 of the Insecticides
Act, the Central Government may, at any time, call for the record relating to
any case in which Registration Committee has given a decision to satisfy
legality or propriety of any such decision. It is based on Section 11, the
appeal filed by the petitioner was treated as a revision and the appellate
authority remanded the case to the Registration Committee to take a decision
after obtaining the views of ICMR, Delhi. Therefore, the scheme of the Act
would clearly indicate that registration will have an impact on the people
living in the entire country. Therefore, it cannot be said that cause of action
would not arise within the territorial jurisdiction of this High Court as the
impact of such registration can also affect the life of the people in the State
of Kerala. 8. The learned counsel for the applicant relied on the decision of
the Karnataka High Court in Natasha Sondur and others v. Union of India and
others [AIR 2005 Karnataka 253]In the above case, the applicant submitted an
application from Mumbai and all the facts and events giving rise to the action
arose outside the territorial jurisdiction of the High Court of Karnataka. In
that context, the Karnataka High Court held that it has no jurisdiction. There
is no similarity to the facts of the case in hand. Thus, the objections based
on jurisdiction are found to be untenable. So, I am of the view that this Court
is having territorial jurisdiction to entertain the writ petitions. 9. The next question is whether Registration Committee has power to
review its own decision. The learned counsel for the petitioner, Shri
P.B.Krishnan, placing reliance on the judgment of the Hon'ble Supreme Court in Kalabharathi Advertising v. Hemant Vimalnath Narichania [2010 (3) KLT 986] submits that unless the statute/rules so permit, the review application is not
maintainable at the instance of Registration Committee to review its own order. No doubt it is settled proposition of law that judicial or quasi judicial
authorities have no inherent power to review its own decision unless it is so
permitted under the statute/rules. Their power of review is creation of statute
and in the absence of any statutory provision, it cannot be exercised. This
Court is of the view that there is a subtle distinction in exercise of power by
administrative authority and quasi judicial authority/judicial authority. In
the realm of discharge of administrative function, though administrative
authority may exercise the power akin to quasi judicial authority by a
judicious approach in deciding granting/refusing licence, it is in fact, not
similar to the power exercised by the quasi judicial/judicial authority. The
underlying distinction of such power is based on the nature of purpose for which
the power is exercised. If the statute is enacted to regulate the activity, the
object of the statute is to regulate the activity and in that process, it may
decide the right of a person to obtain a licence in terms of the regime to
achieve the object under the statute, that exercise of power is nothing but
exercise of administrative adjudication. On the other hand, in quasi judicial
function, the object is to decide the right and liability of the parties to the
lis. Though in administrative function the authority has to follow certain
principles having trapping of quasi judicial function, nevertheless, that
adjudicatory decision in the context of regulatory regime will not cease to
have the character of an administrative decision. The administrative function
is being carried on from time to time and day-to-day to regulate activity for
which power is conferred. If exercise of such power is fettered by an embargo
of review, there would be an administrative paralyse, resulting in dysfunction
of the governmental machineries. Thus, the embargo to exercise power of review
by quasi judicial authority/judicial authority unless it is conferred under the
law is not applicable to the administrative authority in exercise of
adjudicatory power for deciding a question relating to the grant of licence.10. Therefore, mere presence of certain attributes of quasi
judicial function or judicious approach in taking decision for licence would
not convert administrative adjudication to that of a quasi judicial
adjudication. Under Section 21 of the General Clauses Act, an authority is
conferred with a statutory power exercisable in the like manner, to add, amend,
vary or rescind any orders so issued. In State of Kerala v. K.G.Madhavan Pillai
[(1988) 4 SCC 669] the Hon'ble Supreme Court held that general power of
rescindment under the General Clauses Act has to be determined in the light of
the subject-matter, context and the express grant of the General Clauses Act in
the matter. Therefore, if statute confers only an administrative adjudication
in granting licence, the power under Section 21 of the General Clauses Act can
be exercised. However, when power is conferred exclusively for quasi judicial
or judicial function, power of review cannot be exercised unless it is
specifically conferred under the statute. In R.R.Verma v. Union of India
[(1980) 3 SCC 402]the Hon'ble Supreme Court held as follows: The principle
that the power to review must be conferred by statute either specifically or by
necessary implication is applicable only where the government exercises
quasi-judicial powers vested in it by statute and not to purely administrative
decisions. Government must be free to alter its policy or its decision in
administrative matters and cannot be hidebound by the rules and restrictions of
judicial procedure though of course they are bound to obey all statutory
requirements and also observe the principles of natural justice where rights of
parties may be affected. Moreover, if administrative decisions are reviewed,
the decisions taken after review are subject to judicial review on all grounds
on which an administrative decision may be questioned in a court. 11. In Western India Match Co. Ltd. v. Workers Union [1970 (1) SCC 231] it was held by
the Hon'ble Supreme Court in the context of Section 10(1) of the Industrial
Disputes Act, 1947 as follows: "...........In the light of the nature of
the function of the Government and the object for which the power is conferred
on it, it would be difficult to hold that once the Government has refused to
refer, it cannot change its mind on a reconsideration of the matter either
because new facts have come to light or because it had misunderstood the
existing facts or for any other relevant consideration and decide to make the
reference. But where it reconsiders it earlier decision it can make the
reference only if the dispute is an industrial one and either exists at that
stage or is apprehended and the reference it makes must be with regard to that
and no other industrial dispute."
12. The High Court of Karnataka in Ramakanyadevi v. State [AIR 1980 Kant 182]in a case where the State
Government rejected an application from the petitioners therein seeking
exemption of a cinema site, a question that arose was whether fresh application
could be considered by the Government and it was held that the Government can
exercise its power without being bound by earlier orders. 13. The Registration Committee under the Central Insecticides Board
is exercising its power in the matter of grant of licence, in order to regulate
import, manufacture, sale, transport, distribution and use of insecticides with
a view to prevent risk to human beings. In that process, administrative
decision is taken to secure the above objectives while application for licence
is being considered under the Insecticides Act. Thus, the Registration
Committee has to consider the application for licence with reference to
parameters to secure the objectives of the Act. The Insecticides Act also
provides appellate remedy in case of non registration or cancellation under
Section 10 of the Insecticides Act. It also confers powers of revision to the
Central Government at anytime, to satisfy the legality and propriety of the
decision. The nature of power that is conferred under the Insecticides Act
really spells out that power is vested with the Registration Committee to
protect the safety of human beings and animals while an applicant is allowed to
import, manufacture, sell or stock insecticides in India. No doubt once a
decision is taken by the primary authority, any decision thereon either in
appeal or revision is a quasi judicial function exercised by the appellate
authority or the Central Government as the case may be. Those authorities
cannot review their own decision unless it is specifically conferred under the
statute. However, it is to be noted that any administrative authority
exercising a review of its earlier decision has to act in a bona fide manner or
based on fresh or additional materials. It has to find out reasons for exercising
power of review. If any power is exercised not for a bona fide reason, such a
decision would be against the principles of fairness and would be considered as
arbitrary. In the present case, the applicant points out there was an error in
appreciating toxicity of the product. This was considered by the Registration
Committee and the Registration Committee after deliberation issued Ext.P2
order. I do not find any reason to treat the above decision as arbitrary or
tainted with mala fides. This Court, of course, is not concerned about the
merit of the decision as same was subjected to appeal before the appellate
authority and appeal has to be decided on merits. The power of this Court
invoking judicial review is only to examine the decision making process and not
against the decision itself. Thus, this Court holds that the Registration
Committee has the power to take Ext.P2 decision, and the challenge against
Ext.P2 on the ground of jurisdiction is repelled.14. The next point that falls for consideration is whether the
petitioner has any locus standi to challenge the procedure adopted by the
Registration Committee to review the earlier decision. The Insecticides Act
provides a substantive right in the matter of protection to human beings and
also procedural right to question the decision of the Registration Committee by
way of revision under Section 11 before the Union Government. However, it is to
be noted that no right is available to a third party to have audience in the
process of registration. Thus, the question arises whether a third party can
question the procedure in relation to a decision making process under the
Statute. The right of action necessarily pre-suppose a legal right. It must be
vested with a person who challenges the decision. No doubt, the third party has
a right to question the merit of the decision in the sense the Insecticides Act
protects any danger to human being. The procedural certainty in the process of
decision making process is to ensure legal certainty and to its finality. The
principles governing power of review, res judicata, estoppel are available to
the party to the proceedings to ensure procedural safeguards protecting their
legal right in decision making process and to put certainty and finality in the
process. On conclusion, they acquire a protected right against re-opening
unless it is permitted under the law. That means a correlating duty is cast
upon a person, who is bound by the decision, to accept the decision and obliges
him to act in favour of the person entitled. A third person, who was not a
party to the proceedings to the decision cannot claim a protected right against
re-opening of procedure which was concluded before the decision making
authority. It is to be noted, in law, the plea based on review, estoppel, res
judicata etc. creates only imperfect right based on the principles of finality
and legal certainty and more or less it is related to procedure than to a
substantive right. Thus, the writ petitioner, who is a third party to the
decision making process before the Registration Committee, cannot question any
procedure adopted by the Registration Committee reviewing its decision. The
plea of bar of review is not available to a third party to the decision making
process. Thus, I am of the view that the petitioner has no right to question
the decision making process being a third party. The right available to the
petitioner under law is only to question the merit of the decision of the
Registration Committee which is a substantive right. Accordingly, I do not find
any merit in the challenge made by the petitioner based on the plea of bar of
review.15. In view of the discussions as above, I do not find any merit in
W.P.(C).No.28454/2013, therefore, the same is dismissed. W.P.(C).No.14962/2014
is disposed of directing the appellate authority to dispose Ext.P8 appeal
within a period of four months after hearing the petitioner and the applicant.
No costs.
|