Chatak Agro (India) Pvt Ltd- a show-cause notice was drawn as to why the license granted earlier should not be suspended/cancelled for having contravened the provisions of Clause 4(a), 5 and 35 of Fertilizer Control Order (FCO), 1985. = Clause 13 of the Fertiliser (Control) Order, 1985, envisages an embargo on manufacture of any mixture of fertilizers which do not conform to the standards set out. Similarly, Clause 19 injuncted any person either himself or through any other person on his behalf to manufacture for sale, or sell or offer for sale or stock or exhibit for sale or distribute any fertilizer which is not of prescribed standard. Similarly, Clause 19(b) injuncted from manufacture, selling, offering for sale, stocking or exhibiting for sale or distributing any mixture of fertilizers which is not of prescribed standard specified in that regard.In fact keeping these requirements in mind, paragraph (6) of Part A of Schedule II to the FCO required the composite sample to be divided into 3 approximately equal portions and one of those three samples shall be sent to the incharge of the laboratory notified by the State Government under Clause 29 or any of the Central Quality Laboratories notified for analysis. Another sample shall be given to the manufacturer or importer or dealer or the predecessor as the case may be from whom the sample is collected. The 3rd sample shall be sent by the Inspector to his next higher authority for keeping in safe custody. Whenever a challenge is mounted for the 1st analysis report of the fertilizer, any one of the remaining two samples may be used for referee analysis in terms of sub-clause (2) of Clause 29-B. Therefore, the FCO has provided for a detailed procedure of not only drawing samples but as to how to preserve those samples and as to how a referee analysis (which is normally called re-analysis) should be sought for.
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NO. 34273 OF 2011
Chatak Agro (India) Pvt Ltd
The Commissioner of Agriculture,Government of Andhra Pradesh,Hyderabad and 3
Counsel for the petitioner: Mr. N.Ashwani Kumar
Counsel for the respondents: Govt Pleader for Agriculture
The writ petitioner is a private limited company incorporated under the
provisions of the Companies Act, 1956, having its registered office at Indore,
The petitioner company manufactures NPK Mixed Fertilizer at its
factory situated in Indore District of Madhya Pradesh.
It is carrying on sale
of these fertilizers in various States including Andhra Pradesh after obtaining
an appropriate permission and license.
On 25.7.2009, the Notified
Authority/Additional Director of Agriculture, Commissionerate of Agriculture,
Andhra Pradesh, Hyderabad granted authorization for carrying on the business of
sale of fertilizers in Andhra Pradesh.
It is the case of the petitioner that
the 2nd respondent - Additional
Director of Agriculture visited the premises of the writ petitioner company on
8.12.2010 and inspected the records, registers including invoice register and
seized the same on the ground that there are certain discrepancies noticed by
A panchanama was also drawn in that regard at 3.30 PM on 8.12.2010. On
10.12.2010, a show-cause notice was drawn as to why the license granted earlier
should not be suspended/cancelled for having contravened the provisions of
Clause 4(a), 5 and 35 of Fertilizer Control Order (FCO), 1985.
contraventions noticed during the inspection carried out on 8.12.2010 have been
listed in the said show-cause notice as under:
1) Stock position of fertilizers were not displayed at the premises
2) Sale Invoices are raised to the dealers at the Manufacturing Unit at Indore,
Madhya Pradesh instead of raising at sale point i.e., at Hyderabad.
3) Stock Registers were maintained as per the convenience instead of in the
prescribed form i.e., Form-N.
The petitioner submits that
it is a wholesale dealer, but not a retail
seller and hence the requirement to maintain display of stock position and price
list of fertilizers by such a wholesaler would not arise.
Insofar as the 2nd allegation is concerned, the case of the petitioner is
in terms of Clause 5 of the Fertilizer Control Order, Cash/Credit
Memorandum is liable to be issued by every dealer in accordance with Form M and
the one used by the petitioner clearly discloses that it is issued from its
With regard to the 3rd allegation, it is pointed out that
register is maintained strictly in accordance with Form `N'
inspecting officials have seized the internal registers and records maintained
for operational purposes of the company and hence the premises upon which the
show-cause notice was drawn is not available.
A detailed reply to the show-cause notice has been furnished on
Pending further consideration,
the 3rd respondent passed an order
on 27.12.2010 directing the petitioner company to stop sale of its fertilizers
until further orders.
On 29.12.2010, the 2nd respondent has issued another
show-cause notice alleging that the 14 samples collected from the petitioner
have failed to satisfy the specifications.
Then the petitioner filed an
application on 3.1.2011 to furnish certified copies of Form L to enable it to
give a detailed reply.
Since the petitioner considered that the samples have
not been collected in accordance with the procedure prescribed by the Fertilizer
Control Order, 1985, the petitioner company made a request for re-analysis of
the samples as provided for under the aforesaid FCO.
The 2nd respondent acceded
to the said request of re-analysis.
But, however, without waiting for the
result of the re-analysis and without furnishing the certified copies of Form L,
passed orders on 5.1.2011 cancelling the Certificate of Registration of the
The appeal preferred there against was also dismissed on
Then the petitioner instituted WP No. 11440 of 2011 challenging the
legality and validity of the cancellation order.
On 21.4.2011, the cancellation
order has been quashed by this court and remanded the matter for re-
consideration to the 2nd respondent, after furnishing the relevant material
sought for by the petitioner company and after affording an opportunity of
hearing to the petitioner company.
The relevant material has been furnished to
the petitioner by the 2nd respondent on 13.6.2011 and the petitioner was
directed to appear for personal hearing on 16.6.2011.
The re-analysis report
dated 18.6.2011 was furnished to the petitioner on 30.6.2011 and the petitioner
was asked to attend for the personal hearing on 2.7.2011.
Instead of passing an
order on merits, the 2nd respondent passed orders on 5.09.2011 confirming its
earlier proceedings dated 5.1.2011.
Challenging the correctness of that order,
the writ petitioner filed WP No. 30581 of 2011 in this court and this court by
its order dated 18.11.2011 directed the petitioner to avail the statutory appeal
and directed the 1st respondent to dispose of the said appeal in three weeks
Accordingly, the petitioner filed an appeal and after hearing the
petitioner on 3.12.2011, the 1st respondent rejected the appeal on 8.12.2011.
Hence, this writ petition.
A detailed counter affidavit has been filed on behalf of the respondents,
sworn to by the Deputy Director of Agriculture, Ranga Reddy District. It is
asserted in paragraph (7) thereof that
upon receipt of some information that the
products of the petitioner company are not standard, a check on its premises has
In the course of the said inspection, the officials of the
Department of Agriculture also inspected the premises of various dealers of the
writ petitioner situate in Khammam, Nalgonda, Ranga Reddy, Medak and Nizamabad
Districts and drawn samples and those samples were sent for analysis.
analysis reports revealed that the products are not standard products.
the 2nd respondent has issued the show-cause notice on 29.12.2010 to the
petitioner as to why its license shall not be cancelled.
Since the explanation
offered by the petitioner was not satisfactory, a reasoned order followed on
It is also further set out that the analysis reports in Form L have
been served upon the individual dealers from whom the samples have been
collected earlier, which samples have failed.
Importantly, those dealers have
applied for re-analysis.
Therefore, the contention of the petitioner that
copies of Form L have not been furnished by the respondents is far from
It is further stated that while passing orders on 5.9.2011, it was
inadvertently mentioned that the proceedings dated 5.1.2011 hold good inasmuch
as those proceedings would not survive subsequent to the decision rendered by
this court in WP No. 11440 of 2011. But, at the same time, it was contended
that the order dated 5.1.2011 is a reasoned order and a valid one which was
upheld by the 1st respondent on 8.12.2011.
With a view to counter the
contention raised with regard to improper procedure adopted relating to
collection of samples, it is contended that out of 30 samples drawn, 17 were
declared as standard and the remaining 13 were declared as non-standard. It is
further contended that that out of 15 samples sent for re-analysis, 13 samples
were declared sub-standard. Strangely, the petitioner is not making an issue
about the procedure followed in collecting the 17 samples which have passed the
Further, samples have been drawn from the dealers of the petitioner and
those dealers have not raised any objections with regard to the procedure
adopted in drawing the samples.
Hence, the contention canvassed by the
petitioner with regard to the procedure followed in drawing the samples was a
clear after thought.
It is finally asserted that having manufactured non-
standard fertilizers, the petitioner is trying to make a desperate issue about
the procedure adopted.
Heard Sri D.V.Sitarama Murthy, learned Senior Counsel on behalf of the
learned counsel for the writ petitioner and the learned Government Pleader for
It is sought to be contended on behalf of the petitioner that
procedure prescribed in Schedule II Part A of the Fertilizer Control Order,
1985, has not been faithfully followed by the officials of the 2nd respondent
and consequently the question of canceling the license of the petitioner does
not have a valid or sustainable basis.
It is also contended that the report of
analysis of the sample collected has not been made available and hence the
material which has not been supplied to the petitioner has been looked into for
the purposes of arriving at a decision with grave impact on the petitioner.
Such a procedure is violative of principles of natural justice.
It is further contended by the learned Senior Counsel that
have collected samples from the dealers of the petitioner company only with
regard to the fertilizers manufactured by the petitioner company and did not
collect any samples from the rest of the fertilizers manufactured by others
available with the dealers.
Thus, a selective approach has been adopted even in
the matter of collection of samples from the dealers.
It clearly indicates the
pre-disposition of the mind of the respondents in taking action against the
petitioner company alone. It was also contended by the learned Senior Counsel
for the petitioners that
no thought has been spared for the grave consequences
to follow in the matter while ordering for cancellation.
It is grossly
disproportionate. If only a fair approach is adopted by the respondent, any
other suitable action other than cancellation would have been resorted to
against the petitioners.
The learned Government Pleader has pointedly drawn my attention to the
reports submitted by various laboratories which analysed the samples collected
from various dealers in the State.
One of the samples was re-analysed by the
Regional Fertilizer Control Laboratory, Navi Mumbai. In its analysis report
dated 23.2.2011, it found the sample as not according to the specifications and
failed in Total Nitrogen, Total Phosphate and Water Soluble Potash components.
One another sample has been analysed at the Fertilizer Control Laboratory,
The analysis report in Form L submitted by the said laboratory
disclosed the Total Nitrogen percent by weight of the sample is 8.71 as against
17.0. Thus, the deficiency noticed was as high as 8.29. Similarly, as against
the total phosphate per cent by weight, the sample was found to have 16.82 as
against 17 and when it came to Water soluble potash, it was 19.43 as against 17
that should be present. Therefore, the laboratory found the sample as not
according to the specifications and failed in its nutrient content.
sample was analysed by the Fertilizer Control Laboratory at Salem in Tamil Nadu.
The analysis report submitted in Form L by the said laboratory also reveals that
the sample fails in Total Nitrogen and Combined Nutrient values and hence the
sample is declared as non-standard.
Another sample was got analysed at State
Fertilizer Quality Control Laboratory, Bhojpur, Sundernagar, District Mandi,
In its analysis report in Form L dated 14.3.2011, it has
been reported that the sample is not according to the specifications contained
and failed in particle size only.
Another sample was got re-analysed at the
Fertilizer Control Laboratory, Kumbakonam in Tamil Nadu.
The analysis report in
Form L submitted by it on 8.3.2011 declared the sample to have failed in Total
Nitrogen, Ammoniacal Nitrogen, Neutral Ammonium Citrate Soluble Phosphates,
Water Soluble phosphates and water soluble potash. The sample was declared as
One other sample was got analysed at the State Fertilizer Control
Laboratory, Rudrapur, Udham Singh Nagar, Uttaranchal State.
The sample was
declared as non-standard by the said laboratory in its analysis report submitted
in Form L dated 28.3.2011.
One other sample was also got tested at the
Fertilizer Testing Laboratory, Sector 15, Gandhi Nagar, Gujarat. In its
analysis report dated 10.3.2011, the said laboratory declared the sample to have
The Fertilizer Control Laboratory at Trichy, Tamil Nadu, has also
declared the sample sent to it for analysis to have failed.
Similar is the fate
with regard to sample analysed by the Regional Fertilizer Laboratory, Madhavaram
Milk Colony, Chennai.
On the basis of these analysis reports, the learned
Government Pleader had contended that the respondents have acted very fairly in
the matter and they have got the samples collected from various dealers of the
writ petitioner analysed not only at various laboratories available within the
State, such as those available at Warangal, Anantapur etc., but some of the
samples were sent to various laboratories situate in States of Tamil Nadu,
Karnataka, Gujarat, Uttaranchal and Himachal Pradesh. The samples which were
analysed by those laboratories have all failed. Therefore, the learned
Government Pleader would contend that no case is made out for interference by
Various expressions used in the Fertilizer Control Order have been
defined in clause 2 of the FCO, 1985.
The expression `fertilizer' has been
defined in Section 2(h) while the expression compound or complex fertilizer has
been defined in clause 2(d).
Any substance either used or intended to be used
as a fertilizer of the soil or for a particular crop which is specified in Part
A of Schedule I including a mixture of fertilizer answers the description of a
It is not in dispute that the writ petitioner company is a
manufacturer of the substance which is falling squarely within the definition of
The expression `prescribed standards' has been defined in clause
2(f) of the FCO, 1985.
The standards required have been detailed in Part A of
Schedule I of the FCO. Procedure for drawl of sample of fertilizers has been
detailed in Part A of Schedule II of the FCO.
If we look at Clause 28(1) of the
FCO, any Inspector is empowered to draw samples of any fertilizer in accordance
with the procedure specified in Schedule II and such samples can be drawn from
manufacturer, importer, pool handling agency, wholesale dealer or retail dealer.
A critical examination of the procedure prescribed in Schedule II of Part A of
the FCO discloses the general requirements for drawing a sample and requirements
for drawing a sample for a bagged material, preparation of test sample and
reference sample etc.
Method of analysis of the fertilizers is also specified
in Part B of the Second Schedule.
If the petitioner is seeking to make an issue
out of the procedural failure on the part of the Inspectors while drawing
samples, from the dealers of the petitioner company, then such protest must be
lodged at the initial stage by such dealers.
The petitioner cannot wait for a
long period and then lodge the complaint with regard to lack of procedural
adherence, depending upon the result of the analysis of the sample.
sample passes the muster, it cannot be construed that the procedure prescribed
in Part A of the II Schedule as to have been faithfully followed and if the
sample has failed, a faulty procedure of drawing samples cannot be alleged.
the instant case, several samples have been drawn and a good number of them have
failed as was demonstrated by the respondents by enclosing the material to the
counter affidavit in the form of the analysis reports submitted by various
laboratories in Form L as is required under the FCO.
Clause 30(3) of the FCO
has clearly stated that the authority to whom the analysis report is sent under
sub-clause (2), shall communicate the result of the analysis to the
dealers/manufacturer/importer/pool handling agency from whom the sample was
drawn within 15 days from the date of receipt of the analysis report from the
Admittedly, the samples have been drawn from the dealers of the
Therefore, the requirement of law is that the analysis report
received in Form L from the laboratory concerned has to be made available to the
agency wherefrom the sample has been drawn, whereas, it is the petitioner who is
making a grievance out of the same and no dealer of it has instituted any such
complaint that either a faulty procedure is adopted while drawing the samples or
the analysis report in Form L has not been made available to it.
therefore, no hesitation to reject the contention canvassed on behalf of the
petitioner that the samples of fertilizer manufactured by the petitioner have
failed because of the faulty procedure adopted while drawing the samples.
Clause 29 of the FCO dealt with the obligation of analyzing the
fertilizer sample drawn by the Inspector. Clause 29-B dealt with issue of
The 2nd proviso to sub-clause (1) of Clause 29-B required
that whenever the analysis report of a fertilizer has been challenged, a sample
of the fertilizer may be sent for referee analysis to any one of the other
laboratories except those which are located in the State or where the 1st
analysis has been done.
In fact keeping these requirements in mind, paragraph
(6) of Part A of Schedule II to the FCO required the composite sample to be
divided into 3 approximately equal portions and one of those three samples shall
be sent to the incharge of the laboratory notified by the State Government under
Clause 29 or any of the Central Quality Laboratories notified for analysis.
Another sample shall be given to the manufacturer or importer or dealer or the
predecessor as the case may be from whom the sample is collected. The 3rd
sample shall be sent by the Inspector to his next higher authority for keeping
in safe custody. Whenever a challenge is mounted for the 1st analysis report of
the fertilizer, any one of the remaining two samples may be used for referee
analysis in terms of sub-clause (2) of Clause 29-B. Therefore, the FCO has
provided for a detailed procedure of not only drawing samples but as to how to
preserve those samples and as to how a referee analysis (which is normally
called re-analysis) should be sought for.
In the instant case, the show-cause
notice drawn on 29.12.2010 has listed out the details relating to 14 samples
which have failed when they were analysed. These samples have been drawn from
various places such as Sanga Reddy in Medak District, Jogipet in Medak District,
Narayankhed and Siddipet in Medak District, Valigonda in Nalgonda District
Yedapally in Nizamabad District, Venkatapuram in Khammam District as well as
Khammam Urban dealer of the petitioner.
It is also made out in the show-cause
notice that these samples have been collected by the respective Mandal
Agricultural Officer concerned.
They are all different individuals. If the
petitioner really wanted to challenge that these officers have not followed
proper or correct procedure while drawing the samples, he should have made out a
specific case as to which of these Mandal Agricultural Officers has failed to
follow the proper procedure.
The petitioner also ought to have impleaded such
an officer as a party respondent to the writ petition so that he should have had
an opportunity either to controvert or contest the factual assertion of the writ
petitioner that while drawing samples the procedure prescribed in Schedule II of
the FCO has not been followed. I am, therefore, convinced that a generalized
statement, without specifics, that correct procedure has not been followed while
drawing samples and consequently that was the only attributable reason for the
adverse reports filed by referee analysis laboratories as not sustainable and
hence I reject the contention that an improper sample drawing procedure is the
one which is responsible for the adverse analysis reports filed by the
laboratories which analysed the samples.
I am also not in a position to agree with the contention that non
availability of Form L analysis report to the petitioner is a transgression of
the principles of natural justice. As is noticed,
Clause 30(3) of the FCO
required such analysis report to be made available to the agency wherefrom the
sample has been drawn.
It is for the petitioner to collect such analysis
reports from the respective dealers and then explain the reasons as to why the
samples have failed. Most significantly, after this court had rendered judgment
on 21.4.2011 in WP No. 11440 of 2011 remanding the matter for re-consideration
to the 2nd respondent, the Commissioner and Director of Agriculture, Andhra
Pradesh, through his communication on 13.6.2011 furnished to the petitioner, the
material sought for by it viz., the analysis report in Form L submitted by the
laboratory at Rajendra Nagar, Hyderabad, on 22.12.2010 and the laboratory at
The Form L analysis report dated 22.12.2010 declared the sample to
have failed in its nutrient content while the Form L Report dated 23.12.2010
submitted by the laboratory at Anantapur has failed in Total Nitrogen content
and water soluble potassium content. Further, the Commissioner and Director of
Agriculture, Hyderabad, Andhra Pradesh, through his letter dated 18.6.2011, made
available the re-analysis reports sought for by the petitioner on 5.5.2011.
Pausing here for a moment, only upon making available the analysis reports of
the samples drawn to the respective dealers where from such samples were drawn,
the occasion had arisen for such dealers to seek re-analysis of the sample
collected from them. Acceding to that request, the samples have been subjected
On 5.5.2011, the petitioner has sought for those analysis
reports. Sample bearing Code No. 11669/XVI/10-11 collected on 9.12.2010 has
been got re-analysed and that was declared as conforming to the standards
specified in the FCO, 1985 by the Regional Fertilizer Control Laboratory, Navi
Mumbai, which made available the re-analysis report in Form L on 11.2.2011.
sample has been analysed by the said laboratory on 31.1.2011. A copy of the
said Form L - Analysis Report has been thus made available to the petitioner.
Similarly, the Fertiliser Control Laboratory, Pune, to whom the sample bearing
RS/72-10 was made available for re-analysis on 11.2.2011, was analysed by the
said laboratory on 25.2.2011 and the result was that the sample is according to
the specifications. A copy of the report of analysis in Form L submitted by the
Fertiliser Control Laboratory, Pune, dated 25.2.2011 has also been made
available to the petitioner. One other sample bearing No.R/27 which has been
sent up to State Fertiliser Testing Laboratory, Durgapura, Jaipur, Rajasthan on
7.2.2011 was analysed by the said laboratory on 4.3.2011 and the result of the
analysis was that the sample is not according to specifications and hence
declared as non- standard in Total Nitrogen, Neutral Ammonium Citrate, Soluble
Phosphates, Water Sol. Phosphates and Particle Size. Another sample bearing
Code No. 11668/xvi-10-11 sent up for analysis by the State Fertilizer Control
Laboratory, Rudrapur, Udham Singh Nagar, Uttaranchal has analysed between
14.3.2011 to 28.3.2011 and the analysis report submitted by that laboratory in
Form L declared the sample as Non-standard. One other sample bearing Code No.
RS/83-10 sent up for re-analysis to Fertiliser Testing Laboratory, Government of
Gujarat, Gandhi Nagar, was declared as Non-standard by that laboratory. Copy of
that report was also made available to the petitioner. Another sample bearing
Code No. 21/36/10/F-35 sent up for analysis to State Fertiliser Quality Control
Laboratory, Bhojpur, Sundernagar District, Mandi, Himachal Pradesh, was analysed
by the laboratory between 21.2.2011 to 7.3.2011 and the result was that the
sample is not according to the standard prescribed by the FCO, 1985 and it has
failed. Thus, the adverse material as well as the two favorable analysis
reports, after re-analysing the samples as requested for by the dealers of the
petitioner company has been made available to the petitioner.
On 18.7.2011, the
petitioner has drawn out a detailed representation and submitted the same to the
2nd respondent. The petitioner once again raised an objection that the
departmental officials have taken samples exclusively of all the products of the
petitioner company leaving the products of other manufacturers from drawing
samples. In paragraph (4) of the said representation, it is noted that out of
the 14 samples which were declared as non-standard, one sample was within the
parameters of administrative action and hence the Assistant Director of
Agriculture, Hayat Nagar has imposed a penalty of Rs.10,000/- and the same was
remitted into Government Treasury by the dealer of the petitioner company. It
is further contended that even after re-analysis, six of the samples called for
only administrative action and hence the dealers have remitted the necessary
penalty into the government treasuries.
The petitioner is, therefore, clearly
aware that the samples drawn of the fertilizers manufactured by it have failed
even in the re-analysis exercise and that wherever administrative action by way
of imposition of penalty is called for such penalties have all been paid up.
issue is made out in such cases about the faulty procedure of drawing samples
and the findings of the analysis of such samples are accept without any demur.
Penalties are quietly paid up as well.
The remaining samples therefore clearly
called for severe legal action. Hence, I am not in a position to conclude that
all due to faulty procedure adopted by the State, the samples have failed. The
samples drawn from the various dealers of the petitioner have not only been
analysed at various laboratories available within the State of Andhra Pradesh,
but they have been sent to various laboratories situate in several other States
such as Tamil Nadu, Gujarat, Uttaranchal and Himachal Pradesh. The integrity of
these laboratories cannot be doubted. Nor can one assume that a proper
procedure is not adopted by those laboratories while analyzing the sample.
After careful and proper analysis of the sample sent to them, they have filed
adverse report setting out that the samples of the petitioner fertilizer have
failed. It is not in doubt that if a sample has failed, the authorization is
susceptible of cancellation in terms of Clause 31 of the FCO.
The contention canvassed that the selective approach of collecting samples
of the products of the petitioner company reflects a pre-determined approach of
the respondents is without much merit.
Clause 13 of the Fertiliser (Control)
Order, 1985, envisages an embargo on manufacture of any mixture of fertilizers
which do not conform to the standards set out.
Similarly, Clause 19 injuncted
any person either himself or through any other person on his behalf to
manufacture for sale, or sell or offer for sale or stock or exhibit for sale or
distribute any fertilizer which is not of prescribed standard.
Clause 19(b) injuncted from manufacture, selling, offering for sale, stocking or
exhibiting for sale or distributing any mixture of fertilizers which is not of
prescribed standard specified in that regard.
Therefore, if any information has
reached the State and its officials warranting samples to be drawn of any such
fertilizers which are offered for sale, such an action cannot be challenged as a
selective approach adopted by the State or its officers.
It is well to remember
that a sample drawn of any fertilizer offered for sale must conform to the
Even if such a sample has been selectively drawn, failure
of the sample to conform to the standard specified is of much relevance rather
than selective sampling procedure instead of a random sampling of all
fertilizers offered for sale adopted by the respondent.
I therefore have no
hesitation to reject the contention that the selective approach of drawing
sample of the fertilizer manufactured by the petitioner reflects a pre-
determined approach on the part of the respondents.
Far there from, based upon
some information or input drawing of samples has been triggered when once the
anaylsis report, is made available, which was confirmed in the re-analysis of
the sample, it only justifies the anxiety of the State to make available
standard and quality products of the fertilizer to be made available for the
farming community and all non-standard or spurious fertilizers to be weeded out
in the market to prevent their access and reach to the farming community.
also apt to remember that the show-cause notice drawn against the petitioner on
29.12.2010 has clearly indicated the details relating to the 14 samples which
have failed the test. The show-cause notice has clearly indicated the authority
who has drawn the sample and the result of the analysis report indicating the
percentage of deficiency of the sample.
Therefore, it was proposed to take
action, for the breach committed of Clause 19(b) of the Fertiliser (Control)
Order, 1985, in the process.
A further argument is also developed by pointing out the variations
between the analysis reports.
It is no doubt true that there was variation with
regard to value components noted in the analysis reports. But, however, such
variations cannot be explained by the respondents.
What is relevant for the
respondents to initiate action against the petitioner is as to whether the
findings recorded in the analysis report of the fertilizer is a `standard one or
a non-standard one'.
If it turned out to be a non-standard one, then the penal
action will follow.
When standards have been specified in Schedule I of the
FCO, the values arrived at after the analysis of the sample would be compared
and an opinion is formed as to whether the fertilizer sample is as per the
standards specified or not.
When standards are specified statutorily, there is
no room for formation of a third variety of opinion other than the `standard'
and the `non-standard' of the fertilizers.
For the purpose of taking
appropriate penal action only, the tolerance limits will be taken into account.
Beyond that the respondents are not mandated to take any different action on
their own. I therefore do not find any merit in this contention also.
It is also sought to be contended by the learned Senior Counsel that
Clause 31 of the Fertiliser (Control) Order, 1985, provided for suspension,
cancellation and debarment and hence a discretion has been provided for the
competent authority while exercising the power under the said clause and the
impugned order does not reflect any such exercise. It is no doubt true that
Clause 31 of the Fertiliser (Control) Order, 1985, has provided for suspension
and cancellation of the authorization granted in accordance with Clauses 7 and 8
of the FCO, 1985.
In the instant case, wherever the analysis report of the
samples drawn called for administrative action, necessary penalties have been
imposed and those penalties have also been faithfully paid for. As was already
noticed supra, the petitioner has not made out any issue out of the same. Thus,
far, the petitioner has accepted as a fact that the analsysis report of some of
the samples drawn from the various dealers of the petitioner have failed. But,
however, a good number of the analysis reports of the samples disclosed that the
samples have failed in the Total nutrient content. That is the reason why the
impugned order passed by the 2nd respondent on 5.9.2011 found that such
fertilizers which are deficient in nutrient content are detrimental to
agricultural production causing loss to the farming community which uses them.
Hence, a stringent action is what has been called for in the matter. The 1st
respondent-appellate authority has also noticed that supplying quality
fertilizers to the farming community is the basic obligation of every
manufacturer or marketing agency and the farmers invest their hard earned money
in the purchase of fertilizers in the hope of securing better yield and any
failure in that regard will result in far more serious consequences, than can be
guessed, sometimes. I am in complete agreement with the view expressed by the
respondents 1 and 2 in this regard. As a fact, it can be noticed that, in our
country, not the whole of the farming community is a well educated and well
informed segment. A good majority of them still adopt conventional and
traditional methods of farming. Modern methods of farming are hardly adopted.
They invest their monies for purchasing fertilizers with the fond hope of
securing better yield and better returns. If this hope is belied, their
confidence gets shattered leading to some unfortunate but catastrophic
consequences also. Therefore, no manufacturer of non-standard fertilizers or a
marketeer or a dealer of a non-standard fertilizers can be shown any such undue
sympathy which will have detrimental effect on the farming community which
implicitly reposes faith and confidence in the manufacturer and marketeer about
the quality of the product. I am therefore convinced that no exception need be
taken to the impugned orders.
An issue is sought to be made out as to how the 2nd respondent has once
again reiterated the proceedings dated 5.1.2011 as valid and good. The counter
affidavit has candidly set out that it is wholly an error. The proceedings
dated 5.1.2011 have already been quashed by this court. Instead of describing
all over the action that is to be taken against the petitioner for the failure
of the samples drawn, inadvertently it is reiterated as if the proceedings dated
5.1.2011 as holding the field. In my opinion, this is too minor an infirmity
warranting to set at naught the entire exercise carried out by respondents 1 and
2. It is a clear case of usage of an inaccurate expression. What in effect
the respondents are seeking to convey is that the petitioner has become
susceptible for serious penal action, for the failure of the samples of
fertilizers manufactured by it.
I therefore do not find any merit in this writ petition and accordingly it
is dismissed. But, however, without costs.
JUSTICE NOOTY RAMAMOHANA RAO