Andhra Pradesh High Court - Amravati
Revathi Zinc Products, vs The State Of Andhra Pradesh, on 13 December, 2022
1
THE HON'BLE Dr.JUSTICE K. MANMADHA RAO
WRIT PETITION No.12980 of 2012
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India, seeking the following relief:
".....to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd respondent in not paying the amount to the supplied Zinc Sulphate measuring 155 tons to the respondents 3 to 15 herein from the year 2005 as per the supply orders of the 2nd respondent under Rc.No. ZS/1554/2005-06, dated 08.11.2005 and Rc.No. ZS/1554/2005- 06, dated 24.11.2005 till this date as arbitrary, illegal, ultra virus and against to the principles of natural justice and consequently direct the 2nd respondent to pay the amount of Rs.28,00,000/- to the petitioner herein for the supplied Zinc Sulphate to the respondents 3 to 15 herein in the interest of justice and pass such other orders."
2. Heard Mr. Chandra Sekhar Ilapakurthi, learned counsel for the petitioners and learned Government Pleader for Agriculture; Ms. P. Srilatha Reddy, learned Standing Counsel for the Cooperative Marketing Federation Ltd.,; Mr. B. Chandrasekhar, Mrs. P. Vijaya Kumari, learned counsel for the respondents.
3. The brief facts of the case are that as per proceedings of the 2nd respondent dated 22.07.2005 and 08.11.2005 the petitioner company supplied 155 tons of Zinc Sulphate to the respondents 3 to 15. Prior to and after supplying of Zinc Sulphate 2 to the respondents 3 to 15, the Agricultural Department, Anakapalle conducted sample test and opined that the product is up to the standards. After reaching the product to the distributors, 4th test was conducted under which the product supplied is not up to the prescribed standard of 21% as per Fertilizer Control Orders. Consequently the Assistant Director of Agriculture, Kakinada filed a complaint against the petitioner in C.C.No.116 of 2007 on the file of II Additional Judicial Magistrate of I Class, East Godavari District, Rajahmundry and the same was ended in acquittal dated 28.12.2011. Prior to initiating criminal proceedings the 2nd respondent cancelled the supply orders and issued proceedings 12.12.2005, but they neither return the supplied product nor paid the amount of Rs. 28,00,000/- towards cost of the product. Therefore the petitioner made several representations, but the respondents did not take any action so far, which is illegal and arbitrary. Hence inaction of the respondents is questioned in this writ petition.
4. Per contra, the 2nd respondent filed counter denying all material averments made in the writ affidavit and mainly contended that basing on the complaints, the 2nd respondent requested M/s NFCL, one of its distributing agencies to draw a sample for analysis in the Laboratory from the stocks supplied by 3 the petitioner, who informed that the supplied stock is of substandard. Immediately after receiving the information, informed the concerned officers to stop the distribution requesting to check up the quality once again to ensure distribution of only good quality zinc sulphate to the farmers. Therefore the 2nd respondent cancelled the order issued earlier to the petitioner vide letter dated 12.12.2005 and the Department stopped distribution, ceased the stocks of zinc and initiated criminal prosecution against the petitioner. As the Zinc sulphate 21% stocks supplied by the petitioner were found to be of substandard and not in conformity with the product specification as per FCO, in accordance with the Clause No. 7 and 11 of the Agreement, A.P. Markfed under its proceedings dated 12.12.2005 cancelled the supply orders and they were seized by the Agriculture Department and which is in the custody of A.P. Markfed. Therefore the petitioner has any grievance he has to approach the Department of Agriculture. As the Zinc Sulphate 21% stocks supplied by the petitioner were found to be of substandard and not fit for distribution to the farmers for use of agriculture purpose and the Agriculture Department has ceased the stocks, A.P.Markfed has no objection for petitioner approaching the Department of Agriculture for securing clearance of the ceased stocks and collect the material from the dealers after duly remitting the storage charges to those 4 dealers from the date of seizing till date of releasing product. Hence, requested to dismiss the writ petition.
5. Per contra, the 16th respondent filed counter denying all material averments made in the writ affidavit and mainly contended that the Department of Agriculture has no role in the matter, since the Department has clearly directed the nodal agency on action to be taken on further supplies well in advance and requested to dismiss the same.
6. The petitioner filed reply affidavit against the counter- affidavit filed by the respondents and contended that the petitioner has not been given an opportunity to send the product for second analysis either by the concerned Agricultural Officer or by the 2nd respondent. Therefore neither the Agricultural Department nor the 2nd respondent has followed the guidelines enumerated under FCO, 1985. It is due to the political interference and to produce opportunity to them, the 2nd respondent has resorted unlawful methods against the petitioner firm and the A.P.Agricultural Department has no way concerned with the claim of the petitioner, since the product was directed supplied to the 2nd respondent only, but not through A.P AGROS. The 2nd respondent has no authority to delegate the power of analysis to a private person to 5 find out the standard in the product supplied. Therefore the petitioner is entitled for the relief as claimed in the writ petition.
7. Admittedly, the petitioner supplied Zinc Sulphate as per proceedings of the 2nd respondent, who initiated criminal action against the petitioner on the ground of misbranded product and same was ended in acquittal. Further the petitioner has not been given any opportunity to send the product for second analysis either by the concerned Agricultural officer or by the 2nd respondent. Learned counsel for the petitioner draws the attentions of this Court with regard to Clause 1 of Memo No. Fert(i) 596/05, dated 02.08.2005 issued by the Director of Agriculture, A.P, the Mandal Officer is only authorized to take service sample at distributors and it is clearly stated that in respect of any sample the analysis of which has been challenged, may be sent for referee analysis to any one of the other laboratories except those which are located in the State of where the first analysis has been done. Further the Central Fertilizer Quality Control and Training Institute and Regional Laboratories shall be considered as one group of laboratories and a sample first analyzed by any one of them, shall not be sent for referee analysis to any other in that group, but only to any other laboratory notified by a State Government. Further as per Clause (2) Notwithstanding anything 6 contained in this Order, the Appellate Authority as specified under paragraph (b) sub clause (1) of Paragraph (b) of Sub-clause (2) of Clause 32, in case of sample analyzed by the State Government laboratory, or the Controller, in case of samples analyzed by Central Fertilizer Quality Control and Training Institute, Faridabad or its Regional Fertilizer Control Laboratories, as the case may be, shall decide and send one of the two 24 remaining samples, for reference analysis as provided under sub-clause(1). Therefore the 2nd respondent has no authority to delegate the power of analysis to a private person to find out the standard in the product supplied by the petitioner.
8. As stated supra, firstly the respondents did not follow the procedure as contemplated under FCO, 1985 in sending the product for expert opinion. Secondly, the criminal case against the petitioner is ended in acquittal. Thirdly inspite of representations made by the petitioner, the respondents neither returned the product supplied nor paid the amount to the petitioner. Further the 2nd respondent stated in the counter-affidavit that the product supplied was seized by the Department of Agriculture. Therefore Department of Agriculture is the competent authority. Whereas the 16th respondent in its counter-affidavit clear stated that the Department of Agriculture has no role in the matter, since the 7 Department has clearly directed the nodal agency on action to be taken on further supplies well in advance. Therefore 2nd respondent is the answerable party in this writ petition, since the product supplied to the 2nd respondent and who taken steps for distributing the supplied product to the farmers.
9. In view of the latches on the part of the 2nd respondent in not take steps to settle the issue between the petitioner and 2nd respondent in keeping the product seized since long time, though criminal case is ended in acquittal and further no amount is paid to the petitioner is highly illegal and arbitrary. If the 2nd respondent found that the product supplied by the petitioner is substandard, the 2nd respondent ought to have refused to receive the product or return the same within time or directed the petitioner to supply genuine product. But such act has not been initiated by the 2nd respondent and though criminal case was registered against the petitioner, which ended in acquittal. Therefore, the 2nd respondent has no authority to keep the product with them for a long time without paying the amount to the petitioner. Under these circumstances, it is a fit case to issue mandamus in favour of the petitioner.
10. Accordingly, the Writ Petition is allowed, while directing the 2nd respondent to pay amount of Rs. 28,00,000/- to the 8 petitioner for the supplied Zinc Sulphate to the respondents 3 to 15 within six (06) weeks from the date of receipt of a copy of this order. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 13.12.2022.
KK 9 THE HON'BLE Dr.JUSTICE K. MANMADHA RAO WRIT PETITION No.12980 of 2012 Date: 13.12.2022.
KK