CIVIL WRIT PETITION NO.19016 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MARCH 07, 2011 M/s Shiv Ganga Hybrid Seeds Pvt. Ltd., Hisar and others .....Petitioners VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Vinod Gupta, Advocate, for the petitioners. Ms. Shruti Jain, AAG, Haryana, for the State. Dr. Surya Parkash, Advocate, for respondent No.3. Mr. Vinod Bhardwaj, Advocate, for respondent No.4. **** RANJIT SINGH, J. Financial Commissioner & Principal Secretary, Agricultural Department, Government of Haryana, has issued a letter dated 12.10.2010 to Director, Agriculture, Director, Haryana State Seed Certification Agency and Managing Director, HSDC regarding the subject of 100% treatment of certified seed of wheat. The CIVIL WRIT PETITION NO.19016 OF 2010 :{ 2 }: petitioners, who are seed producing Companies, have approached this court for quashing this communication pleading that the same is illegal, arbitrary and is malafide, besides being against the law and facts. What right the petitioners would have to challenge a inter- department letter issued by Financial Commissioner to Directors, thus, would be first poser, which the petitioners may have to answer. Let us first notice the facts before coming on to above aspect of the issue. The petitioners are private seed producers in the State of Haryana and statedly are producing seeds as per the instructions and norms fixed by the Government. The seeds are then certified by respondent No.3. For Rabi, 2009, respondent-State has fixed norms for treatment of seeds and these were then to be certified by respondent No.3. As per the requirement, the seed was to be treated by any one of the three chemicals, i.e., (i) Azactobactor 7 packet/hict. (ii) Vitavax/Bavistin-2 gram/kg.seed or Raxil 1 gram/kg. Seed and (iii) Chlorpyriphos-60 ml/kg.seed. It is alleged that the respondent-State changed the norms through letter dated 10.9.2010 on the basis of recommendation made by Chaudhary Charan Singh Haryana Agricultural University, Hisar (for short “CCSHAU”), Hisar. It is now provided that seed producing agencies will ensure 100% treatment of the wheat seeds by one chemical out of the three chemicals as mentioned and these are (a) Vitavex or Bavistin @ 2gm/kg seed, (b) tribuconazol (Rexil-2D) @ 1gm/kg seed and (c) Thiram @ 2 gm/kg seed. While the petitioner had started preparing the seed as per the norms fixed by the Government in terms of letter dated 10.9.2010 CIVIL WRIT PETITION NO.19016 OF 2010 :{ 3 }: and had purchased one chemical for treatment, the State has suddenly changed the norms of treatment of seeds through the impugned communication dated 12.10.2010. It is now provided that the seeds will be treated with chemical Raxil brand in the new packing. It is further provided that if the seed has already been packed, then additional pouch of chemical, namely, Vitavex/Bavistin chemical be attached and has banned Thiram chemical for treatment. The norms changed are as per the recommendation of CCSHAU, Hisar. As per the petitioners, this action is malafide and has been brought while the sowing is half way complete. Plea is that the petitioners have purchased Thiram chemical for treatment of whole season. The petitioners would, thus, plead that now it is not possible for seed producing agencies to produce the seeds as per the new norms as they would have to purchase Raxil brand chemical, which entails lot of investment. The petitioners have accordingly challenged this communication. One common reply is filed by respondent Nos.1 and 2, whereas respondent No.3 has filed a separate reply. As per the reply filed by respondent Nos.1 and 2, the seed quality is most important input for increasing agriculture production and productivity thereof. Accordingly, the treatment of a seed becomes most important and critical factor. The need is to make seed pest-resistant, besides enhancing production. It is also pointed out that treatment of a seed in the manner as required would considerably reduce the expenditure being incurred on pesticides by the farmers, and , thus, would decrease the cost of production. As rightly pointed out by the respondents, indiscriminate use of pesticides by the farming CIVIL WRIT PETITION NO.19016 OF 2010 :{ 4 }: community has reduced the effective treatment of seed and use of pesticides adversely affects the quality of grains, soil and water. Thus, the treatment of a seed in the manner as required, would prevent deterioration of public health as well. In view of these considerations, the State Government had revised the options of fungicides in its meeting held on 6.10.2010, which was chaired by none other but the Hon'ble Chief Minister of the State. On the basis of advise given by the experts in the field at CCSHAU Hisar, a decision was taken that all certified seed of wheat which are treated with Thiram should also be treated with Bavistin/Vitavax and that the seeds which are yet to be treated be treated with Raxil. The reasons for this change are also disclosed in the reply and these are that Thiram controls only one pest/disease, namely Karnal Bunt, whereas Bavistin/Vitavax also controls Flag Smut and Loose Smut. The decision to go in for Raxil is taken on being guided and recommended by CCSHAU, Hisar as this chemical controls all the three pests/diseases, namely, Karnal Bunt, Flag Smut and Loose Smut. It is important to notice here that the State Government has decided to provide 100% subsidy to all seeds producing agencies, both in public and private sector, so that the extra expenditure incurred on account of the treatment of certified seeds may not be passed on to the farmers. In this regard, reference is made to sub para (V) of para 3 of the impugned Annexure P-4, which is as under:- “V) HSDC should float short term tenders and negotiate the rates with the Manufacturers/Suppliers of Raxil/ CIVIL WRIT PETITION NO.19016 OF 2010 :{ 5 }: Vitavex/Bavistin, to be used by other Govt. agencies and private seed producers since it has been decided by the State Govt. to provide 100% subsidy on Fungicides to be used for treatment of Certified Seeds of Wheat during Rabi 2010-11. This subsidy shall be given to all Govt. agencies and Private Seed Producers even if the seed produced by them has already been treated with Thiram or Vitavex or Bavistin or Raxil subject to the maximum of rates negotiated and fixed by HSDC.” It is, thus, pleaded that this writ petition is totally frivolous and misconceived and is filed without there being any cause. In his reply filed by respondent No.3, the fact that Central Government has started a campaign in the whole country for 100% seed treatment to minimize the disease incident in the wheat crop is highlighted, so that the productivity of crop may increase. This fact has even been conceded by the petitioners in para 4 of the writ petition. Otherwise, respondent No.3 has nothing much different to state. In both the replies, it is pointed out that the State Government was earlier granting only 50% subsidy on the fungicide used to the seed producers. Now, the same has been increased to 100% to urge that there should not be any cause of grievance by the petitioners. When this case came up for hearing on 29.10.2010 , the main ground canvassed by the counsel for the petitioners was that the sale of certified seed of wheat starts in the beginning of October and goes upto Ist week of November. It was submitted that as per the earlier decision, an option was given to certified seed producing agencies to use any fungicide, which, according to the counsel was CIVIL WRIT PETITION NO.19016 OF 2010 :{ 6 }: enough to take care of all the three diseases. The court issued notice of motion and then was to pass a detailed interim order on 29.10.2010 directing all the seeds producing agencies to treat the seeds with Thiram in combination with Vitavex or Bavistin for treatment of all the three diseases for the current season or Raxil alone may be desired by the particular agency. In respect of stock of seed already packed, the petitioners were required to provide/supply pouches of fungicides for which the seeds have not been treated so far. The court also noticed that the controversy whether Raxil will be effective to treat all the three diseases or whether the respondents can recommend only one brand of medicine is required to be considered in the main writ petitions. The court also noticed the contention raised on behalf of the petitioners that they are entitled to use any of the three fungicides by observing that it needed to be considered in depth while deciding the main writ petition. Subsequently, the petitioners filed a civil misc.application No.17069 of 2010 seeking permission to withdraw the writ petition. However, when this application came up for hearing on 9.12.2010, the counsel pleaded that he was under instructions not to press this application. The application was, thus, permitted to be withdrawn and was accordingly dismissed. The writ petition has now come up for hearing. The action of the petitioners to make a move to withdraw the petition was logical as their grievance was for the current season, which is over now. Still the petitioners have decided to make submission on merits on an issue, which apparently is not justiciable. The petitioners can not claim right to supply seed to the farmer, CIVIL WRIT PETITION NO.19016 OF 2010 :{ 7 }: which the Government would not stamp with its approval. Ultimately, any seed, which is supplied without being properly treated would be a cause of loss to farming community. Can petitioners, therefore, plead that they could treat the seed as required, which may result in not only huge individual losses but would be loss to the environment as well. The petitioners apparently are misconceived in making the present approach. Thus, the first question that was addressed to the counsel for the petitioners was about the maintainability of this writ petition. A Government has taken a decision on the basis of an expert opinion for treatment of a seed in a particular manner. How this could give a cause to the petitioners? Their plea is only based on extra expenditure incurred, which the Government has undertaken to subsidise. Where is any malafide which is pressed to invoke the writ jurisdiction of this court? It is really not understood. None is expert to make out which particular chemical is most effective and that the other one would not be. It is not appropriate for the courts to determine such issues and these have to be left to be decided by the Government on the basis of expert opinion. Main interest involved is of the farmers at large and not of some private or government seed producing agencies. The decision to treat the seeds in a particular manner obviously is taken by the Government on the basis of expert opinion for the benefit of the farmers, who are the consumer of the seeds. It was, thus, put to the counsel for the petitioners if the petitioners would undertake to compensate the farmers if they happen to suffer on account of treatment of the seed by a chemical, CIVIL WRIT PETITION NO.19016 OF 2010 :{ 8 }: which was not approved by the Government. Obviously there was no convincing answer. How writ court would be competent to go into these questions is an other issue. Court is not expert in any manner to know or to understand as to which chemical is most suited for treating the seeds. Should not it be enough for the court to accept the reasoning given by the respondents that Raxil is a chemical which is most suited as it would control all the three pest/diseases? The allegation of malafides on the ground that it is done to suit one particular company needs to be rejected as is being raised without any basis. What difference would it make? The seed producing petitioners would receive 100% subsidy for the expenditure incurred in treating the seeds in the manner as required by the Government. The aspect of malafide apparently has been introduced just as a `redherring'. As can be seen, the main ground to attack is that the petitioners would have to undertake extra expenditure as the change is made when the production of seed was in progress and was half way through. If the petitioners are to receive 100% subsidy, how they would suffer a loss can really not be made out. There is neither any material placed on record nor would it be appropriate for this court to go and determine the issues agitated or that if the Raxil will be effective to treat all the three diseases. This is not a justifiable issue. The Government apparently has interest of the end user in mind, i.e., the farmers. The contention of the petitioners that they are entitled to use any of the three fungicides can not be gone into in exercise of writ jurisdiction. Petitioners can certainly not claim any right, the CIVIL WRIT PETITION NO.19016 OF 2010 :{ 9 }: violation of which they can plead before this court. The submission that sowing season of wheat was upto first week of November apparently is also not well founded. The decision as taken is by the Chief Minister himself on the opinion of experts and is for the benefit of farming community. The good reasons which led to the decision are disclosed in the reply. It is not only for benefit of the end user but the aspect of effect on soil, water and a health of public at large have also been kept in view. On the other hand, the aim of the petitioners seems to be to avoid some extra expenditure. The petitioners are not bothered about the fact that it may be a cause of loss to the farmers. As has been noticed above, one of the reasons is to avoid a huge expenditure, which the farming community may have to take in case the seed is not properly treated as they are then required to use various pesticides to control the pest and diseases. This will also be a damage to environment. The plea by the respondents that there is substantial loss to the wheat crop because of three diseases has not been rebutted in any manner. In loose Smut, the complete wheat grain turns into a blackish powder like ash. Flag smut reduces the wheat crop to a large extent. Karnal bunt causes black patches on the wheat grain and, thus, reduces its quality. These diseases not only cause the huge loss to the farming community but is a loss for the Nation as well as it will affect the over all wheat production in a State, like Haryana which is one of the major wheat producing State. The experts in the best interest of the Nation and the State, have taken this decision, which cannot be questioned by handful of private seeds CIVIL WRIT PETITION NO.19016 OF 2010 :{ 10 }: producers, who have nothing else, but their profit to look for by filing such baseless and frivolous petition. Even the central Government has also started a campaign for 100% seed treatment to minimize disease incidents and to increase the production. The petitioners cannot have any valid objection that too once the State is going to subsidies the entire expenditure incurred for treating the seed with the required chemical. To me, the writ petition appears to be misconceived and not maintainable. The petitioners have approached this court to challenge the inter-departmental communication issued by Financial Commissioner on behalf of the Government to the other Government functionaries, like Director, Agriculture or Director, Haryana Seeds Certification Agencies. How the petitioners, who have no concern with these communications can seek to challenge the same would be a question. No doubt, a non-statutory policy or guidelines issued by the State may be enforceable against the State, but this is a guideline, which is an inter-department, which does not create any right in favour of the petitioners and is not something on the basis of which the petitioners had taken action to urge that deviation would be against the expectation of the petitioners. Even in the case of deviation from the policy, if any, the petitioners can have a grouse if they are able to show that this deviation is an arbitrary and involves violation of any of the rights of the petitioners. Rather this deviation, if any, which is inter-departmental communication is for the benefit of the farmers and is not such which involves violation of any of the rights of the petitioners. Guidelines which are Non-statutory in character are not enforceable (see Narendra Kumar Maheshwari CIVIL WRIT PETITION NO.19016 OF 2010 :{ 11 }: Vs. Union of India and others, AIR 1989 SC 2138 & Feranandez Vs. State of Mysore, AIR 1967 SC 1753). A policy is not a law. A statement of policy is not a prescription of binding criterion. The instructions, which the petitioners, have challenged are non-statutory in character. These are not, thus, judicially enforceable. The competent authority might depart from these instructions, where the proper exercise of discretion so warrants. The judicial review of such like matters may otherwise be available where there is arbitrariness and malafides. I am, thus, of the considered opinion that no case is made out for judicial review calling for interference in the writ petition. The same is accordingly dismissed. March 07, 2011 (RANJIT SINGH ) ramesh JUDGE