Andhra HC (Pre-Telangana)
Chatak Agro (India) Pvt Ltd vs The Commissioner Of ... on 9 November, 2012
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION NO. 34273 OF 2011 09.11.2012 Chatak Agro (India) Pvt Ltd The Commissioner of Agriculture,Government of Andhra Pradesh,Hyderabad and 3 others Counsel for the petitioner: Mr. N.Ashwani Kumar Counsel for the respondents: Govt Pleader for Agriculture <Gist: >Head Note: ?CITATIONS: ORDER:
The writ petitioner is a private limited company incorporated under the provisions of the Companies Act, 1956, having its registered office at Indore, Madhya Pradesh. 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 him. 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. The 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 that 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 Hyderabad Office.
With regard to the 3rd allegation, it is pointed out that the stock register is maintained strictly in accordance with Form `N' whereas the 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 18.12.2010. 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 petitioner company. The appeal preferred there against was also dismissed on 16.4.2011. 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 time. 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 been organized. 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. The analysis reports revealed that the products are not standard products. Hence, 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 5.1.2011. 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 accurate. 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 test. 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 the respondents.
It is sought to be contended on behalf of the petitioner that the 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 the respondents 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, Bangalore. 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. One other 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, Himachal Pradesh. 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 non-standard. 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 failed. 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 this court.
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 fertilizer. It is not in dispute that the writ petitioner company is a manufacturer of the substance which is falling squarely within the definition of `fertilizer'. 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. If the 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. In 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 laboratory. Admittedly, the samples have been drawn from the dealers of the petitioners. 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. I have, 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.
Further, 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 referee analysis. 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 Anantapur. 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 to re-analysis. 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. The 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. No 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. 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. 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 standards specified. 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. It is 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.
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JUSTICE NOOTY RAMAMOHANA RAO 09.11.2012