Telangana High Court
M/S. Parameshwara Fertilizers Pvt. ... vs Government Of Andhra Pradesh, on 26 March, 2021
IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
WEDNESDAY, THE TWENTY EIGHTH DAY OF MARCH
TWO THOUSAND AND TWELVE
:PRESENT:
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WP .NO:6945 of 2012
Between:
M/s. Parameshwara Fertilizers Pvt. Limited, Flat No. 202, Classy Heights,
Near Kukatpally Municipal Office, Moosapet, Hyderabad - 18,
Rep. by its Director, Y. Govardan Reddy, s/o.Y.C.Venkat Reddy,
..... Petitioner
AND
1 Government of Andhra Pradesh, Agriculture Department, Rep. by
its
Principal Secretary, Secretariat, Hyderabad.
2 Commissioner and Director of Agriculture, Government of Andhra
Pradesh, Opp: L.B. Stadium, Hyderabad.
3 The Joint Director of Agriculture, Ranga Reddy District, Sameti
Building,
Malakpet, Hyderabad.
4 Assistant Director of Agriculture, Hyderabad (U), Sameti Building,
Malakpet, Hyderabad.
.....Respondents
Petition under Article 226 of the Constitution of India praying
that in the circumstances stated in the affidavit filed herein, the High Court
may be pleased to issue a Writ of Mandamus or any other Appropriate Writ,
Order or Orders, Direction or Directions to declare the action of the
Respondents in insisting that the petitioner should conduct the business as
a Wholesale Fertilizer within Ranga Reddy District only, as arbitrary,
unconstitutional and contrary to the provisions of the Fertilizer (Control)
Order 1985 by further declaring the G.O.Ms.No.288 dated 15.12.2009 as
modified by G.O.Ms.No.297 dated 08.12.2011 as illegal to that extent, and
to direct the Respondents not to interfere with the business of the Petitioner
as a Wholesale Dealer in Fertilizers, as long as the Petitioner conducts its
business of selling the Fertilizers from the Sale Depot as mentioned in the
Form-A2 dated 03.02.2012, by insisting that the petitioner shall conduct the
business in the Ranga Reddy District only;
The petition coming on for hearing, upon perusing the
Petition and the affidavit filed herein and upon hearing the arguments of SRI
VEDULA SRINIVAS Advocate for the Petitioner, and of Govt. Pleader for
Agriculture for respondents, the Court made the following:
ORDER:
The petitioner is a company carrying on the business of sale of fertilizers.
With a view to regulate and control the trade of fertilizers, the Central Government framed Fertilizer (Control) Order, 1985 (for short, the Control Order) in exercise of the power available to it under Section 3 of the Essential Commodities Act, 1955. Clause 7 of the Control Order mandates that no person shall sell, offer for sale or carry on business of selling of fertilizer at any place, as wholesale or retail dealer, except under and in accordance with Clause 8. Clause 8 thereof dealt with the aspects of the registration, requiring every person intending to sell or offer for sale or carry on the business of selling of fertilizer to obtain a certificate of registration from the Controller by making an application in Form-A together with a certificate of source in Form O. Clause 8(2) and 8(3) of the Control Order will have some bearing upon the controversy at issue and hence it will be appropriate to notice them in detail, and they read as under :
"(2). Every person including a manufacturer, an importer, a pool handling agency, wholesaler and a retail dealer intending to sell or offer for sale or carrying on the business of selling of fertilizer shall make a Memorandum of Intimation to the Notified Authority, in Form A-1 duly filled in, in duplicate, together with the fee prescribed under Clause 36 and certificate of source in Form O. (3). On receipt of a Memorandum of Intimation, complete in all respsects, the Notified Authority shall issue an acknowledgement of receipt in Form A-2 and it shall be deemed to be an authorization letter granted and the concerned person as authorized dealer for the purposes of this order:
Xxxxxxxxxxxxx.
Xxxxxxxxxxxxx.
Provided also that a separate Memorandum of Intimation shall be submitted by an applicant for wholesale business or retail dealership as the case may be:
Provided also that where fertilizers are obtained for sale from different sources, a certificate of source from each such source shall be furnished in Form O:]"
In terms of Clause 8, the writ petitioner was required to apply in Form A-1 - a Memorandum of Intimation to the Notified Authority - on receipt of such Memorandum of Intimation, the Notified Authority shall issue an acknowledgment of receipt in Form A-2 and the same shall be deemed to be an authorization letter granted recognizing the application as an authorized dealer for purposes of Control Order.
In the instant case, the writ petitioner has submitted the form of intimation in Form A-1 and the Joint Director of Agriculture, Ranga Reddy District accorded the corresponding acknowledgment in Form A-2 but however, it has been captioned therein as under "Selling of fertilizers as a wholesale(r) within District". The petitioner is in effect and in essence aggrieved by this incorporation of caption in Form A-
2. Heard Sri Vedula Srinivas, learned counsel for the petitioner and the learned Government Pleader for Agriculture of the respondents.
Sri Vedula Srinivas would contend that the Control Order has been framed by the Central Government and the only power available to the State Government is to appoint the Notified Authorities in accordance with Clause 26-A of the Control Order and the State Government has no power to affect, vary or modify any of the other conditions or stipulations contained in the Control Order. It is further contended that Form A-2 prescribed under the Control Order, forms an integral part of the Control Order itself. It never contained any such caption such as 'selling of fertilizers as a wholesale(r) within district' and such expressions have been incorporated by the State Government in Form A-2 without any authority. This according to the learned counsel for the writ petitioner would amount to varying or altering the contents of Form A-2 of the Control Order and there is no such power available to the State. It is further contended by Sri Vedula Srinivas that so long as the petitioner carries on his business from the specified location of the godowns and the sale depots, the petitioner cannot be prevented from selling the fertilizers to any customer or any other retailer coming from outside the territorial limits of Ranga Reddy District. Elaborating this contention, Sri Vedula Srinivas submitted that the writ petitioner is entitled to carry on his business from the licensed godown situated at Moosapet, Hyderabad, which falls within the Ranga Reddy District limits. But, if a retailer or a customer comes from, let us say, Pochampalli falling in Nalgonda district or any other place located in Mahaboobnagar district, the petitioner cannot be prevented from selling the fertilizers to him. Therefore, the petitioner sought for a restraint order against the respondents.
Per contra, the learned Government Pleader would contend that, in accordance with Clause 26-A of the Control Order, the State Government by notification in the Official Gazette is entitled to appoint such number of persons, as it thinks necessary to do so, as 'Notified Authorities' and also define the local limits within which each such Notified Authority shall exercise his jurisdiction. Therefore, the State Government passed orders through their G.O.Ms. No.288, dated 15.12.2009 notifying the authorities under Clause 26-A of the Control Order. The learned Government Pleader would contend that the aspects relating to fertilizer allocation would be the subject matter of an appropriate consultation of the State Government with that of the Central Government and as a result of such consideration the Department of Fertilizers, Government of India introduced "Web based fertilizer monitoring system" for effective monitoring of movement of various fertilizers which are subsidized by the State and thereafter, the Department of Agriculture of the State Government based upon the total quantity of allotment made by the Central Government would prepare monthly wise, product wise plans for Kharif and Rabi seasons and after a detailed and careful study and analysis, the district wise, fertilizer manufacturing company wise allotments are finalized and thus, the supply plans for each month are uploaded on the web based fertilizer monitoring system and the object behind the entire exercise is to ensure easy availability of fertilizers to the farmers, at an affordable price and at the nearest location for the sustainable growth of agricultural sector.
It is contended by the learned Government Pleader that the web based fertilizer monitoring system and Clause 3-A and 3-B of the Fertilizer (Movement Control) Order, 1973 clearly envisage preparation of supply plans of all fertilizers and the same is to achieve and sub-serve the larger interests of the farming community. It is therefore submitted that the writ petitioner cannot carry on the sale of business beyond the territorial limits of the Notified Authority.
Undoubtedly, laudable are the objectives of the scheme framed by the State Government in consultation with the Central Government. But, as was already noticed supra, sale of fertilizers is a regulated business activity. Like any other provision contained in any other regulatory legislation, the clauses of the Control Order are liable to be construed strictly. Clause 26-A of the Control Order undoubtedly empowers the State to appoint and notify various authorities to function as Notified Authorities. Since Clause 8(3) introduces a legal fiction of grant of license in the form of an acknowledgment in Form A-2, it requires limits of exercise of power to be delineated. When more than one authority is notified for according the acknowledgment in Form A-2, it is but necessary to delineate the territorial limits for exercising the said power by each of the Notified Authority. Illustratively put, if a person wants to carry on the business of sale of fertilizers as a wholesaler or retailer, let us say, at Pochampalli in Nalgonda district, he can only apply in Form A-1 to the Notified Authority available in Nalgonda District; he cannot apply to the Notified Authority of the neighbouring Ranga Reddy District. Delineation of the territorial limits for exercise of powers by the respective notified authorities is one aspect of the matter; whereas limiting the power to sell fertilizers to a customer coming from across the local limits of the District is a different matter. When Clauses 8(2) and 8(3) are read with Forms A-1 and A-2 what emerges is, a license is required to be obtained for carrying on sale of fertilizers at a specified place or location. So long as the licensees carries on business at the same premises or location, no further objection can be raised with regard to the sale of fertilizers by such a licensee in favour of a person who was hailing from outside the local limits of the Notified Authority.
To my mind, the power conferred upon the Notified Authorities is limited only to deal with receipt and grant of acknowledgements in Forms A-1 and A-2 respectively. Thereafter, it has no power to restrict the sale of fertilizers in favour of a customer who hails from outside their territorial limits. Forms A-1 and A-2 are integral part of Clauses 8(2) and 8(3) respectively of the Control Order, framed by the Central Government. The Control Order is a statutory instrument. Form A-2 prescribed in the Control Order never did contain the caption "Selling of fertilizers as a wholesaler within the District". Such a caption was subscribed not even by the State Government, but by the Notified Authority appointed by the State Government in terms of Clause 26-A of the Control Order. Clearly, there is no sanction of law to do so.
There can be variety of reasons why a customer might prefer to buy a particular commodity from a particular dealer. In a commercial enterprise, there can be many attractive features including the quality assurance and credit worthiness of the customer. Hence, the introduction of caption "Selling of fertilizers as a wholesale(r) within the District" in Form A-2 is clearly an unsustainable one; even State Government has no such authority. Hence a strong case is made out for grant of injunction as prayed for by the petitioner.
Rule Nisi. Call for records.
Notice returnable in four weeks.
ASSISTANT REGISTRAR //TRUE COPY// for ASSISTANT REGISTRAR To
1. The Principal Secretary, Agriculture Department, Govt. of A.P. Secretariat, Hyderabad.
2 The Commissioner and Director of Agriculture, Government of Andhra Pradesh, Opp: L.B. Stadium, Hyderabad.
3 The Joint Director of Agriculture, Ranga Reddy District, Sameti Building, Malakpet, Hyderabad.
4 The Assistant Director of Agriculture, Hyderabad (U), Sameti Building, Malakpet, Hyderabad. ( 1 to 4 by RPAD) 5.2 CCs to the G.P. for Agriculture, High court of A.P.Hyd. (O.UT)
6.One C.C.to Sri Vedula Srinivas, Advocate (OPUC)
7.one spare copy.
Bsr HIGH COURT NRR.J DATED 28-03-2012 ORDER W.P.NO. 6945 OF 2012 DIRECTION Bsr Dt. 28-6-2012 HIGH COURT NRR.J DATED 28-03-2012 ORDER W.P.NO. 6945 OF 2012 DIRECTION