Punjab-Haryana High Court
Mehin Total Chemicals Pvt. Ltd vs The State Of Punjab And Others on 8 January, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.132 of 2013
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.132 of 2013
Date of Decision: 08.01.2013
Mehin Total Chemicals Pvt. Ltd.
..... Petitioner
Versus
The State of Punjab and others
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Rajesh Kumar Girdhar, Advocate,
for the petitioner.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The present petition is directed against an order passed by the Appellate Authority under Clause 32-A of the Fertilizer (Control) Order, 1985. The appeal was filed against the show cause notice dated 19.10.2011 issued by the Chief Agriculture Officer, Ferozepur to the petitioner- Company which deals in sale of fertilizer. A copy of the analysis report was enclosed with the show cause notice, a fact which is mentioned in the show cause notice (P-1) and its transmission has not been denied in the petition. The petition is studiously silent on its receipt. No reply was filed in response to the show cause notice within the 15 days granted or at any time thereafter. The show cause notice was issued following checking conducted by the Fertilizer Inspector on the business premises of one M/s Challana Khad Store, Jalalabad. At the time of checking Totocare Brand 5kgx43 CWP No.132 of 2013 -2- Micronutrient Mixture Grade-II, Batch No.TC-109 was displayed for sale along with other Fertilizer. Sh. Mukhtair Singh, Fertilizer Inspector, District Ferozepur drew the sample of this Fertilizer as per procedure laid down in the Fertilizer (Control) Order, 1985. This Sample was sent to Fertilizer Quality Control Laboratory, Ludhiana for analysis. The sample was declared non-standard by the Analytical Chemist, Fertilizer Quality Control Laboratory, Ludhiana as per report vide A.R No.109 Date 25.7.2011. In this report Zinc (as Zn) was found of 1.2% instead of 5.0% and Ferrous Iron (as Fe) was found 0.3% instead of 7.5% which percentages do not conform to the standards of Fertilizer specified in F.C.O, 1985.
The sub-standard fertilizer was manufactured by the present petitioner. Consequently, notice was issued for violation of Clauses 8 & 19 of F.C.O., 1985 punishable under the Essential Commodities Act, 1955. The analysis report was communicated to the petitioner under cover of show cause notice. An application dated 29.08.2012 was filed for re-analysis. The Appellate Authority rejected the application/appeal on the ground of delay of 270 days in presenting the same by the order is dated 25.09.2012.
The claim in this petition is for setting aside the order of the Appellate Authority and for direction to respondent Nos.2 and 3 to send a second sample of Micronutrient Mixture Grade-2 for re-analysis as the shelf life of this sample is stated to be 3 years and is thus still within its shelf life which expires in July, 2013 since the manufacturing date of the sample stamped was July, 2010.
Learned counsel for the petitioner relies on Clause 32-A (2) inserted by SOS.O.49 (E) dated 16.01.2003 of the FCO, 1985 to contend CWP No.132 of 2013 -3- that sending of second sample for re-analysis was a statutory duty of the appellate authority. The request made for re-analysis was liable to be accepted by the appellate authority. The application ought not to have been rejected on the ground of delay in filing the appeal which is injudicious and irregular exercise of jurisdiction. The delay should not stand in the way of dispensing justice. In any case, delay ought to have been condoned since the petitioner did not have knowledge of the amendment dated 16.1.2003 introducing Sub Clause (2) to Clause 32 of the FCO, 1985. It is submitted that the delay in approaching the appellate authority has been duly explained in paragraph 7 of the writ petition which contains sufficient explanation. It reads thus:
" That in fact earlier it was not in the knowledge of the petitioner that the powers for sending the second sample for re-analysis have been given to respondent No.2 vide amendment dated 16.1.2003 and in such circumstances, the delay on the part of the petitioner is not at all intentional and was beyond its control."
The question which arises for consideration is (i) whether the statutory appellate authority has power to condone delay in filing an appeal seeking reference analysis and, (ii) whether the appellate authority acting under Clause 32-A of FCO, 1985 as amended on 16.1.2003 is a 'court' for the purposes of the Limitation Act, 1963.
In order to appreciate the issues involved, it would be first necessary to look at Clause 32-A and its sub clause (2) which reads as follows:-
32A. Appeal at the State Government level
1. The State Government shall, by notification in the Official Gazette, specify such authority as the Appellate authority before whom the CWP No.132 of 2013 -4- appeals may be filed by any person, except by an industrial dealer, aggrieved by any of the following Orders or action of registering authority or a Notified Authority, namely:-
i. Refusing to grant a certificate of manufacture for preparation of mixture of fertilizers or special mixture of fertilizers; or ii. Suspending or cancelling a certificate of manufacture; or iii. Suspending or cancelling authorization letter or debarring from carrying on the business of selling of fertilizer, or iv. non-issuance of Authorization letter or certificate of manufacture within the stipulated period; or v. non-issuance of amendment in authorization letter within the stipulated period.
2. Any person aggrieved by analysis report of fertilizer Testing laboratories notified by the State Government may appeal to the appellate authority appointed under sub-clause (1) for reference analysis of such sample within thirty days from the date of receipt of analysis report."
A reading of the various clauses of the FCO, 1985 and particularly Clause 32-A (2) the one in question, show that there is no provision therein permitting the appellate authority to condone delay in filing an appeal even for sufficient cause shown. The appellate authority is a creation of the statute and its powers are circumscribed by the Act/Order under which it is created. Being an administrative authority while acting under Clause 32-A (2), all that it is enjoined to do is to send or forward a sample which has failed to meet prescribed standards evidenced by analysis reports of Government fertilizer testing laboratories for reference analysis provided an aggrieved person applies within thirty days of receipt of analysis report. The 2003 amendment introducing Sub Clause (2) to Clause 32-A appears to me to be intended to act as a last procedural safeguard against doubtful or arbitrary analysis reports. Clause 32-A (1) is the substantive law where the appellate authority discharges quasi judicial functions while Clause 32-A (2) is procedural in nature with no quasi judicial role to play. What the appellate authority is required to do on CWP No.132 of 2013 -5- receipt of reference analysis is not spelled out. There is no further appeal, review or the like. The function under Clause 32-A (2) is administrative in nature, unlike its parent Clause 32-A (1). It is, therefore not a 'court' nor has it any trappings of a court. In the absence of an enabling provision there is no inherent power in it to condone delay.
The powers and jurisdiction of a statutory authority to condone delay in filing statutory application is to be seen not only from the nature and character of the authority as to whether it is a court or not but also the nature of powers of the authority or court, the extent thereof and the limitations thereon with particular reference to the legislative intent and the scheme of the Act or law it is acting under. In Prakash H. Jain v. Marie Fernandes, (2003) 8 SCC 431 the Supreme Court dealt with the Maharashtra Rent Control Act, 1999 in which also there is no provision empowering the competent authority to condone the delay in filing an application for leave to defend the eviction proceedings. The following dicta were laid down in paragraphs 10, 12 and 13 extracted as under:
"10. ...Questions of the nature raised before us have to be considered not only on the nature and character of the authority, whether it is court or not but also on the nature of powers conferred on such authority or court, the scheme underlying the provisions of the Act concerned and the nature of powers, the extent thereof or the limitations, if any, contained therein with particular reference to the intention of the legislature as well, found expressed therein. There is no such thing as any inherent power of court to condone delay in filing proceedings before a court/authority concerned, unless the law warrants and permits it, since it has a tendency to alter the rights accrued to one or the other party under the statute concerned...
12. ...It is unnecessary to once again refer to the special procedure provided for in Chapter VIII, but the various provisions under Chapter VIII unmistakably indicate that the competent authority constituted CWP No.132 of 2013 -6- thereunder is not "court" and the mere fact that such authority is deemed to be court only for limited and specific purposes, cannot make it a court for all or any other purpose and at any rate for the purpose of either making the provisions of the Limitation Act, 1963 attracted to proceedings before such competent authority or clothe such authority with any power to be exercised under the Limitation Act...
13. The competent authority constituted under and for the purposes of the provisions contained in Chapter VIII of the Act is merely and at best a statutory authority created for a definite purpose and to exercise, no doubt, powers in a quasi-judicial manner but its powers are strictly circumscribed by the very statutory provisions which conferred upon it those powers and the same could be exercised in the manner provided therefor and subject to such conditions and limitations stipulated by the very provision of law under which the competent authority itself has been created..."
The scheme underlying FCO, 1985 is aimed at ensuring quality of fertilizer intended to be sold in the market by dealers and manufacturers. Violations of the provisions of the FCO entail penal consequences. It therefore, deserves strict construction being quasi criminal. It would be only fair that those who administer the law are also required to comply and adhere with it in letter and spirit. The legislative intent in fixing time limit of 30 days under clause 32 A (2) from the date of communication of the analysis report against which a person is aggrieved would be defeated if power of condoning delay is read into it. In this case there is complete absence of an averment in the petition as to when the analysis report was received by the petitioner and why reply was not filed within 15 days to such report sent with the show cause notice or extension sought any time thereafter. That opportunity was not availed. It is well settled that when a thing is required to be done in a particular manner, it should be done in that CWP No.132 of 2013 -7- manner or not at all.
The defence of the petitioner that it was not aware of Clause 32-A (2) and, therefore could not approach the appellate authority in time deserves to be rejected since ignorance of the law is no excuse. Such a plea cannot be expected coming from a Company registered under the Companies Act, 1956 set up to manufacture fertilizer and consciously function under regulatory laws dealing with essential commodities. If this plea is accepted the country's agricultural economy would be put to peril and its farmers cheated.
This Court therefore, answers the first question formulated by holding that the appellate authority appointed under Clause 32-A (1) of FCO, 1985 has no power to condone delay in filing an appeal against an 'analysis report' praying for 'reference analysis' while exercising powers under sub-clause (2) of Clause 32-A of the Order, issued under the Essential Commodities Act, 1955. The period of 30 days has to be counted from the date of receipt of the analysis report by a person aggrieved. The date of receipt is a pure question of fact.
On the second question, it is held that looking to the nature and character of power exercised by the statutory appellate authority under clause 32-A (2) it does not qualify as a "court" in the eyes of law nor wears even remotely the trappings of a Court and therefore, the Limitation Act, 1963 is not attracted to proceedings before such statutory authority, its power being circumscribed by the provisions of FCO, 1985. CWP No.132 of 2013 -8-
Consequently, the writ petition fails and is dismissed as not warranting interference with the impugned order on both the questions of law and on the facts as well.
(RAJIV NARAIN RAINA) 08.01.2013 JUDGE manju