TaxTMI 
TaxTMI 
2019 (12) TMI 1149
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....e 45 is de hors the provisions of the 1968 Act itself and violative of Articles 14 and 19(1)(g) of the Constitution of India. It is submitted that the fundamental right of importers and manufacturers in all North-Eastern States of India, including the State of West Bengal, to import insecticides through the Netaji Subhas Chandra Bose International Airport and the port of Kolkata has been infringed by unreasonable restriction being imposed under the said amended Rule. Whereas there is representation of the Northern, Western, as well as Southern parts of India in the list of airports and sea ports through which such imports can now be made, there is no representation postamendment as regards the Eastern and North Eastern States in the list of designated places of import. It is submitted that more than forty manufacturers of pesticides in the Eastern Zone, comprised of eight States, including Odisha, Bihar, West Bengal, Assam and other North East States, shall be directly affected by the said Notification which, in turn, will enhance the cost of pesticides for the farmers of the Eastern Zone due to the price of insecticides of the said region becoming expensive. The importers would ....
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....ithin the domain of the executive, unless arbitrary or irrational or not taken in public interest. Further relying on the judgment of BALCO Employees Union vs. Union of India [(2002) 12 SCC 333], it is argued that it is neither within the domain of the Courts nor the scope of judicial review to embark upon an interview as to whether a particular public policy is wise or whether better public policy could be evolved. The Court, it is submitted, ought not to strike down a policy at the behest of the petitioner merely because it has understood that a different policy would have been fairer or wiser or more scientific or more logical. As regards the judgment cited on behalf of the petitioners, it is submitted on behalf of the respondents that Paragraphs 20-24 of the said judgment specifically laid down that legislation in India, by the Union or State legislature, enjoys the presumption of constitutionality. In the present case, it is argued that the 1968 Act has been specifically enacted as a preventive Act, by which the legislature has the power to restrict the import, manufacture, sell, transport, distribution and use of insecticides with a view to prevent risk to human beings, a....
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....s included the Inland Container Depot at Gurugram (Gurgaon) at Haryana, Ports in Chennai and Mumbai as well as Airports at Chennai, Mumbai and New Delhi, respectively in respect of insecticides imported by land, sea and air into India. The Kolkata Port and Netaji Subhash Chandra Bose International Airport at Kolkata were excluded, however, by the amendment. The premise of supporting such amendment, as offered by the respondents in their affidavit in opposition as well as written notes of argument, are primarily two-fold - curbing illegal imports on the basis of complaints and monitoring the quality of imported insecticides. The language used in paragraph no. 9 of the affidavit-in-opposition of the respondents is: "... The Government of India was in receipt of certain complaints regarding the illegal imports of insecticides including the Calcutta Port and such illegal imports made cause severe hazards to human being, animals and environment." In paragraph No. 13 of the opposition, the same allegation is reiterated, although keeping the source of such complaints and/or the material to support such complaints undisclosed, by using merely the expression that the Government of Ind....
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.... 1968 Act and to carry out the other functions assigned to the Board by or under this Act. It is seen that sub-section (1) of Section 36 of the 1968 Act specifically stipulates that the Government may, after consultation with the Board and subject to other conditions, make Rules for the purpose of giving effect to the provisions of the 1968 Act. The proviso sub-section (1) envisages dispensation with such consultation only if the Central Government is of opinion that circumstances have arisen which render it necessary to make Rules without such consultation, in which case the Board has to be mandatorily consulted within six months of the making of the Rules. The Central Government shall also take into consideration any suggestions which the Board may make in relation to the amendment of the said Rules. In the present case, the respondents have not pleaded anywhere in their affidavit-in-opposition or in their written notes of argument that any such consultation with the Board was held prior to the amendment or that the Board was consulted within six months of the making of the Rules. The existence of necessary criteria, to satisfy the proviso to Section 36(1), for the dispensa....
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....ondents themselves have pleaded in paragraph 7B of the affidavit in opposition that Section 9 of the 1968 Act provides for any person desirous of importing or manufacturing an insecticide to mandatorily obtain a registration from the Registration Committee. That apart, the license to import insecticides, just like the import of other products, is granted by the Central Government and is renewable from time to time. The aforesaid provisions of registration and renewal of license are, in themselves, a sufficient mode of monitoring and controlling the quality of insecticides imported. As such, the exclusion of an entire region from getting the benefits of import on the ground of monitoring cannot be a valid justification at all in the eye of law. Hence, the flimsy pretexts for bringing in the impugned Notification, and the consequential amendment to Rule 45 of the 1971 Rules, both fail miserably on the tests of reasonableness as well as public interest. Public interest would suffer more in the event the entire Eastern and North-Eastern region of the country and their economy is affected adversely by excluding the Kolkata port and airport from the list of designated places of i....
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....g benefits of importing cheaper and better insecticides from outside the country, while at the same time the other parts of the country are given a boost by designating zones of import in such regions. The amendment of the Rule in question was not a policy decision but a mere bureaucratic decision, at best administrative in nature and not having to do anything with policy. In the event the respondents sincerely argue that the said amendment was a policy decision, then the same does not stand a moment's scrutiny, since a policy decision has to be on a much wider footing and cannot take the form of an apparently innocuous alteration of a change in the places of import, which has the major impact of excluding a particular zone of the country from certain benefits conferred on the other zones, without any reasonable basis and against public interest. Even if the object of the 1968 Act is looked into, the same was enacted to regulate the import, manufacture, sell, transport, distribution and use of insecticides with a view to prevent the risk to human beings, animals and for matters connected therewith. There can be no reason why particularly the Kolkata port and airport, which is....