Mridula Mishra, J.
1. In all these five writ applications the petitioners have challenged the order dated 20.6.07 issued under the signature of Director Agriculture, Bihar, Patna whereby licences granted to the petitioners in Form No. VIII under Section 13 of the Insecticides Act bearing different licence numbers have been cancelled. All these writ applications were heard together and are being disposed of by a common order.
2. Petitioners are manufacturers of insecticides. All these petitioners have their manufacturing Units outside the territorial jurisdiction of the States of Bihar but their products are supplied and sold through dealers in the State of Bihar. The impuned order has been passed as one of the manufactured item of the petitioners were seized from the shop of one of the authorised dealer of the petitioners at one place, put petitioners' licences for sale, supply and exhibition for all products throughout the State of Bihar have been cancelled. The common grounds have been taken by all the petitioners for challenging the impugned order. The grounds are:
(i) No notices were issued to the petitioners regarding cancellation of manufacturing licences as such the order has been passed in violation of the rule of natural justice.
(ii) Petitioners are manufacturing a number of products but their licences have been cancelled simply because one product is alleged to have been misbranded. The order has been passed in violation of Section 24(1) of the Insecticides Act, as reports were not delivered within 60 days of the collection of the samples from the shops of the retail dealers.
(iii) The sample products were not sent for second analysis to Central Insecticides Laboratory, Chandigarh. The report of the Regional Pesticide Testing Laboratory is not final under Section 24 of the Insecticides Act. As such the impugned order is illegal and arbitrary. The impugned orders have been passed without following the procedure under Section 22 of the Insecticides Act. As such it is bad in law and fit to be quashed.
3. In case of petitioner, M/s Excel Crop Care Ltd. (C.W.J.C. No. 7633/07) some of samples of Chlorpyriphos 20% E.C. was taken from the business premises of M/s Sai Krishi Kendra Ara, Bhojpur, on 29.8.06 by the officers of the Agriculture Department for the purpose of testing by the Insecticides Analyst. After collection of sample it as sent to the Directorate of Plant protection, Koranite and Storage, Faridabad, Haryana for testing. The sample was received in the Office of Insecticides Analyst on 9.8.06. A report was prepared on 18.10.06. A copy of the analyst report was sent to M/S Sai Krishi Kendra Ara, Bhojpur, on 19.1.07.
4. In case of M/S Plant Remedies Private Ltd. (C.W.J.C. No. 7656/07) samples were collected from the business premises of its dealer at different places. In all cases the report was submitted after lapse of 60 days as required under Section 24(1) of the Insecticides Act. Similar is the case with M/s Northern Minerals Ltd. (C.W.J.C. No. 8030/07), M/s Hindustan Pulverising Mills (C.W.J.C. No. 8180/07) and M/s Indofil Chemicals Company. In all cases samples were collected by the Officers of the Agriculture Department end sent for analysis to the Regional Pesticides Testing Laboratory (Chandigarh, Haryana or Kanpur. The test report should have been submitted in duplicate within 60 days to the Insecticides Inspector as per Section 24(1) of the Insecticides Act but in all cases after expiry of 60 days its samples were supplied to the Insecticides Analyst and thereafter the Insecticides Analyst sent it to the dealers from whose business premises the samples were taken. So far the petitioners, who are manufacturers are concerned they, have no knowledge that one of their products has been found sub-standard or misbranded. Petitioners' case is that they came to know about all these developments only after receipt of the order of the Director, dated 20.6.07.
5. The counter affidavits have been filed in all cases where it has admitted that the notice was not issued to the petitioners who are manufacturers but notices were issued to the dealers and that should be treated as notice to the petitioners as the dealers are agent of the petitioners. In reply to this Mr. Ram Balak Manto appearing for M/s Excel Crop Care Ltd. submitted that status of the manufactures and the status of the dealers are different under the Act. Section 13 of the Insecticides Act deals with the grant of licence to the manufacturers and to the dealers under Rules 9 and 10 of the Insecticides Rules, 1981. Under Rule 9 licences are granted to the manufacturers in Form III and Form IV and under Rule 10 licences are granted to dealers for sale, stock or exhibition of insecticides. In case the dealers were noticed it cannot be presumed that notices to the dealer will suffice the need for issuance of notices to the manufacturers. Section 14 of the Insecticides Act provides for revocation, suspension and amendment of licences. For the reasons mentioned under Section 14(a) and 14(b) of the Act before revocation, suspension and amendment of licences it is mandatory that an opportunity of showing cause should be given to the holder of the licence. By the impugned order petitioners' licences for manufacturing has been revoked without giving any opportunity to show cause. The order impugned is illegal, arbitrary and without jurisdiction as it has been passed in violation of the provisions under Section 14 of the Insecticides Act, as well as in violation of Rule of Natural justice.
6. Considering the admission on the part of the State respondents that no licence was issued to the petitioners' before revocation of petitioners' licences, by no means it can be held that the impugned order is legal rather the impugned order is patently illegal on this count.
7. Other ground on which the impugned order has been challenged is the violation of Section 24(1) of the Insecticides Act. Mr. Tara Kant Jha, senior counsel appearing in C.W.J.C. No. 8025/07 has submitted that it has been admitted by the respondents in the counter affidavit that samples taken from the shop of the dealer was not in good condition. The samples were collected on different dates but the report in all cases was furnished after expiry of 60 days. Section 24 deals with the procedures for submitting the report of the insecticides Analyst to the Insecticides Inspector. The report of the sample of any insecticide submitted for test or analysis under Sub-section (6) of Section 22 of the Act must be delivered to the Insecticides Inspector in duplicate in prescribed Form within 60 days and the same should be furnished to the person from whom it has been taken within 30 days of the submission of report. In the present case procedure under Section 22 of the Act was not followed and the provision under Section 24 has also been violated. The samples were not collected by the Insecticide Inspector, but it was taken by the officers of the Agriculture Department. The report of Insecticide analyst was submitted to the Insecticide Inspector as well as dealers after expiry of the statutory time. In this view of the matter the impugned order is bad since mandatory provisions have not been followed. The ground taken by the petitioners has not being denied in the counter affidavit, order impugned cannot be held in consonance with the Provision of Insecticides Act.
8. Mr. N.K. Agrawal, senior counsel appearing on behalf of petitioners in three writ applications contended that Section 21 read with Section 22 of the Insecticides Act provides the power of the Insecticide Inspector and procedure to be followed by the Insecticide Inspector. The power of search for collecting the samples and presenting it for chemical analysis and seizure under Section 21 of the Act is vested in the Insecticide Inspector, but it has not been followed. Section 22(3) (4) (5) and (6) provides the procedure which Insecticide Inspector shall follow in case of search and seizure. The Insecticide Inspector taking sample of the insecticides for the purposes of test or analysis shall indicate the purposes in writing in the prescribed Form to the person form whom he takes it. The samples taken will be divided into three portions and effectively sealed and suitably marked. The Insecticide Inspector shall restore one portion of a sample so divided or one container as the case may be, to the person from whom he takes it and shall retain the remainder and dispose of the same. The remainder one port on shall be sent to the Insecticide Analyst for test and the second shall be produced before the court in case of criminal proceeding is initiated. This procedure was not followed. This allegation has also not been denied by the respondents which amounts to admission. This admission is sufficient for holding that the mandatory provision were not followed.
9. Another ground taken by the counsels for the petitioners is that the samples so taken were required to be sent to the Central Insecticides Laboratory for test, constituted under Section 16 of the Act, by a Gazette notification by the Central Government.
10. Section 24(4) provides that unless the sample has already been tested or analysed in the Central Insecticide Laboratory the allegation regarding products being misbranded or defected can not be conclusive evidence of these facts. The functions of the Central Insecticide Laboratory can be entrusted to other Laboratories on the direction of the Central Government and by publications of a notification in the Official Gazette. In the present case the samples were sent to Regional Laboratories and on the basis of the reports submitted by Regional Laboratories the licences of the petitioners have been cancelled though it was not a conclusive report for cancellation of licence the approval of the report by the Central Insecticides Laboratory was mandatory but that has also been ignored by the respondents, before cancellation of petitioners' licence.
11. In the counter affidavit nothing has been stated on these points, as such the submissions made by the petitioners, is found to be corroborated by the Act.
12. I find that reports of the Regional Laboratories were not sufficient, as provided under the Act, for cancellation of the manufacturing licences of the petitioners.
13. The counsels for the respondents have raised their Preliminary objection regarding maintainability of the writ applications stating that against the order of cancellation of licences there is provision of appeal under the Act. It has also been submitted that in some of the cases the petitioners have already preferred their appeal before the appellate authority against the order cancelling their licences by the licensing authority. Since the petitioners here are already persuing alternative remedy, they can not simultaneously seek remedy before this Court under its writ jurisdiction.
14. In reply to this the counsel for the petitioners have submitted that objections raised regarding maintainability of the writ applications is not sustainable. In fact the alternative remedy by way of filing of appeal is not available to the petitioners in absence of necessary rules. The appeal preferred by the petitioners were not entertained by the appellate authority on this ground that the rules have not been framed for accepting the fee etc. The petitioners have no other remedy, as such they have filed the writ applications.
15. The counsels for the State have not been able to controvert this submission, neither they have been able to produce the copy of rules framed or necessary notification. The objection raised regarding maintainability of the writ application is rejected.
16. The impugned order dated 20.6.2007 passed by Director Agriculture Bihar, Patna, cancelling petitioners' licences is quashed.
These applications are allowed.