Madras High Court
A.Natarajan vs Assistant Director (Quality Control) on 20 December, 2011
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/12/2011 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.11745 of 2011 W.P.(MD)No.11746 of 2011 and W.P.(MD)No.11752 of 2011 And M.P.(MD) Nos.2, 2, 1 and 2 of 2011 1.A.Natarajan 2.A.Natarajan 3.Murali Agencies, Represented by its Proprietrix N.Lakshmi 4.Murali Agencies, Represented by its Proprietrix N.Lakshmi 5.Grow Well Fertilizers, Represented by its Partner A.Natarajan 6.A.Natarajan .. Petitioners in WP 11745/2011 1.Grow Well Fertilizers, Represented by its Partner A.Natarajan 2.Murali Agencies, Represented by its Proprietrix N.Lakshmi 3.Grow Well Fertilizers, Represented by its Partner A.Natarajan 4.Murali Agencies, Represented by its Proprietrix N.Lakshmi 5.A.Natarajan 6.A.Natarajan 7.Grow Well Fertilizers, Represented by its Partner A.Natarajan.. Petitioners in WP 11746/2011 A.Natarajan .. Petitioner in WP 11752/2011 vs. Assistant Director (Quality Control), Department of Agriculture, Office of Joint Director of Agriculture, Pudukottai-622 001. .. R-1 in WP 11745/2011 Joint Director, Department Agriculure, Government of Tamil Nadu, Thanjavur 613 001. .. R-1 in WP 11746/2011 Assistant Director (Quality Control), Department of Agriculture, Office of Joint Director of Agriculture, Tiruchirappalli-620 020. .. R-1 in WP 11752/2011 The Commissioner of Agriculture, Department of Agricultural, Government of Tamil Nadu, Chepauk, Chennai-600 005. .. R-2 in WPs 11745,11746&11752/2011 W.P.No.11745/2011: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records relating to the proceedings No.FC03/100493/10-(2) dated 21.9.2011 on the file of the second respondent herein and to quash the same and consequently forbear the first respondent herein from proceeding as against the petitioner with the show cause notice No.C3/10766/2008 dated 28.9.2011 on the file of the first respondent herein. (Prayer amended as per order of Court dated 13.10.2011 in MP No.3 of 2011) W.P.No.11746/2011: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records relating to the proceedings No.FC03/100493/10-(2) dated 21.9.2011 on the file of the second respondent herein and to quash the same and consequently forbear the first respondent herein from proceeding as against the petitioner with the show cause notice No.c3/12349/2011 dated 30.9.2011 on the file of the first respondent herein. (Prayer amended as per order of Court dated 13.10.2011 in MP No.3 of 2011) W.P.No.11752/2011: Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records relating to the proceedings No.FC03/100493/10-(2) dated 21.9.2011 on the file of the second respondent herein and to quash the same and consequently forbear the first respondent herein from proceeding as against the petitioner with the show cause notice No.c3/12365/2011 dated 30.9.2011 on the file of the first respondent herein. (Prayer amended as per order of Court dated 13.10.2011 in MP No.3 of 2011) !For Petitioner in all WPs ... Mr.S.Subbiah ^For Respondents in all WPs... Mr.R.Karthikeyan, Additional Government Pleader. :COMMON ORDER
The petitioners have come up with the above writ petitions, challenging a communication dated 21.9.2011 sent by the Commissioner of Agriculture to the Joint Directors of Agriculture, Pudukkottai, Thanjavur, Thiruvarur, Thiruvannamalai, Cuddalore, Trichy, Kancheepuram, Villuppuram, Dindigul, Nagapattinam and Erode, calling upon them to take necessary action against the petitioners and others under the provisions of Fertilizer Control Order 1985 and the consequential show cause notices issued either by the Assistant Directors or by the Joint Directors of Pudukottai, Thanjavur and Tiruchirappalli.
2. I have heard Mr.S.Subbiah, learned counsel for the petitioner and Mr.R.Karthikeyan, learned Additional Government Pleader for respondents.
3. The petitioners in all these writ petitions are licensed dealers in respect of fertilizers. The terms and conditions of license are governed by Fertilizer Control Order 1985, issued in terms of the Essential Commodities Act 1955. Since the petitioners claim to be distinct and different entities having separate licenses, it is necessary to have a look at the particulars of all the petitioners and the constitution of the business entity that they seek to represent. Therefore, they are presented in the following tabular column:-
W.P.No.11745/2011S.No. Name of the petitioner Represented by Nature of the business entity
1. A.Natarajan - Individual
2. A.Natarajan - Individual
3. Murali Agencies N.Lakshmi, Proprietary W/o.A.Natarajan
4. Murali Agencies N.Lakshmi, Proprietary W/o.A.Natarajan
5. Grow Well A.Natarajan Partnership Fertilizers
6. A.Natarajan - Individual W.P.No.11746/2011 S.No. Name of the petitioner Represented by Nature of the business entity
1. Grow Well Fertilizers A.Natarajan Partnership
2. Murali Agencies N.Lakshmi, Proprietary W/o.A.Natarajan
3. Grow Well Fertilizer A.Natarajan Partnership
4. Murali Agencies N.Lakshmi, Proprietary W/o.A.Natarajan
5. A.Natarajan - Individual
6. A.Natarajan - Individual
7. Grow Well Fertilizer A.Natarajan Partnership W.P.No.11752/2011 S.No. Name of the petitioner Represented by Nature of the business entity
1. A.Natarajan - Individual
4. A show cause notice dated 29.8.2008 was issued to Mr.A.Natarajan, in respect of the license pertaining to the area of Pudukkottai, by the Assistant Director of Agriculture (Quality Control), Pudukkottai alleging that the fertilizers intended for delivery to him were sent directly from the Chennai Port to a Company by name Sri Chemicals, Ambattur by falsifying the records. Therefore, the notice dated 29.8.2008 alleged that the petitioner violated Clause 35 of Fertilizer Control Order 1985 and that he must show cause as to why his license should not be revoked under clause 31(1)(b) of the order.
5. The petitioner gave a reply dated 29.8.2008. But the Assistant Director, Pudukkottai did not take follow up action. However criminal proceedings were lodged in C.C.No.10731 of 2010 on the file of the IX Metropolitan Magistrate, Saidapet, Chennai. Mr.A.Natarajan filed Criminal OP Nos.27503 and 27504 of 2010 on the file of the Principal Bench of this Court for quashing the criminal complaint. The petitions were admitted and an interim stay was granted. They are pending. Consequently, the prosecution has not progressed any further.
6. Thereafter the petitioners received identically worded notices dated 28.9.2011, alleging that the petitioners were indulging in sale and smuggling of fertilizers to other States for purposes other than for agricultural use and that they should show cause as to why the licenses should not be revoked, for the violation of the Fertilizer Control Order. The said show cause notices dated 28.9.2011 had a reference to an internal communication sent on 21.9.2011 by the Commissioner of Agriculture, to the Joint Directors of Agriculture of Pudukkottai, Thanjavur, Thiruvarur, Thiruvannamalai, Cuddalore, Trichy, Kancheepuram, Villuppuram, Dindigul, Nagapattinam and Erode. By this communication, the Commissioner had asked all the Joint Directors to take action against the dealers (the petitioners) for violating the conditions of license and violating the provisions of FCO 1985.
7. Therefore, the petitioners originally filed the above writ petitions, challenging only the show cause notices dated 28.9.2011 issued by Assistant/ Joint Directors of Agriculture. Thereafter, they had the prayer amended, so as to seek the quashing of the communication dated 21.9.2011 issued by the Commissioner.
8. The internal communication sent by the Commissioner to the Joint Directors dated 21.9.2011 and the show cause notices issued by the Joint/ Assistant Directors dated 28.9.2011 are challenged by the petitioners on the following grounds:-
(i) that the impugned communications rely upon the prosecution launched against the petitioners, without taking note of the fact that the criminal complaint has been stayed by this Court, in proceedings to quash filed by the petitioners;
(ii) that the allegations made against the petitioners in the show cause notices are totally vague, without indicating precisely the details of the violations and irregularities committed by the petitioners;
(iii) that the impugned communications issued by the competent authorities, viz., the Assistant/Joint Directors, are at the behest of the next higher authority viz., the Commissioner and hence there is no use replying to the show cause notices;
(iv) that after issuing a show cause notice for an alleged irregularity in Pudukkottai, way back in 2008 and not pursuing the matter any further, the respondents have issued the impugned communications in respect of all other areas such as Thanjavur, Trichy etc., without any adverse report from the Assistant/Joint Directors of those areas; and
(iv) that the impugned notices show a pre-determined mind, making the opportunity given to the petitioners, an empty formality;
9. In support of his contention that even show cause notices can be challenged in a writ petition, when they are issued at the behest of the next higher authority, the learned counsel for the petitioner relied upon the decision of the Division Bench of this Court in Tvl.Pizzeria Fast Foods Restaurant (Madras) Pvt. Ltd vs. Commissioner of Commercial Taxes {2005 Writ LR 234}. It was held in that decision that when once circulars or clarifications are issued by a superior authority, an appellate remedy to a lower authority would be futile and not efficacious. The learned counsel also relied upon the decision of the Supreme Court in Union of India vs. Vicco Laboratories {2008 (2) CTC 511}, in support of his contention that a show cause notice issued without jurisdiction or issued in an abuse of the process of law, can be interfered with.
10. In support of his contention that the Appellate Authority like the Commissioner cannot step into the shoes of the original authority like the Assistant/Joint Director, the learned counsel relied upon one decision of this Court in S. Viswanathan vs. District Collector {2011 (7) MLJ 1115} and a decision of the Supreme Court in Manohar Lal vs. Ghaziabad Development Authority {AIR 2010 SC 2210}. The decision of this Court in Viswanathan arose under the Tamil Nadu Patta Pass Book Act and this Court found fault with the Appellate Authority viz., the Revenue Divisional Officer acting like the original authority viz., the Tahsildar and that too under orders of the District Collector. In Manohar Lal, the Supreme Court found fault with the State Government, which is the revisional authority under the U.P. Urban Planning and Development Act, 1973, for entertaining an application from a land owner directly, without the same being dealt with, first by the original authority.
11. In support of his contention that no enquiry can be held on vague charges, the learned counsel relied upon the following decisions:-
(i) State of Tamil Nadu vs. Dr.S.Manimegalai {2009 (5) MLJ 435}
(ii) Union of India vs. Gyan Chand Chattar {2009 (12) SCC 78}
(iii) Anil Gilurker vs. Bilaspur Raipur Kshetria Gramin Bank {2011 (5) CTC 564}
12. The Assistant/Joint Directors, who are the first respondent in these writ petitions, have filed separate counter affidavits in each of the writ petitions. In brief, the stand taken by the respondents is as follows:-
(i) The petitioners are licensed dealers of fertilizers, which enable them to buy Potash at subsidised rates. During the period March/April to June 2008, the petitioners received 1,620/1,608/1,608 Metric Tons of Potash from various companies and availed a subsidy of Rs.16,000/- per Metric Tons from the Government.
(ii) It was found that the petitioners diverted the fertilizers bought on subsidised rate to other States and also for non-agricultural use, thereby violating the terms and conditions of license and the provisions of the Fertilizer Control Order 1985.
(iii) The petitioner transferred MOP fertilizer from Chennai Port to a company by name Sri Chemicals, for industrial use, by manipulating their Stock Register with false entries.
(iv) It is true that a show cause notice was issued by the Assistant Director at Pudukkottai on 29.8.2008 and the petitioner gave a reply dated 11.9.2008. After calling for certain records, prosecution was launched.
(v) Thereafter, show cause notices were issued on 28.9.2011. Since no explanation was received till 13.10.2011, the licenses were cancelled, by orders dated 14-10-2011 for the following violations:-
"(i) Diversion of fertilizers for non-agricultural purpose in violation of Clause 35 of Fertilizer Control Order 1985.
(ii) Smuggling fertilizers to other States without any authorisations in violation of Clause 6 of FCO 1985.
(iii) Illegal transaction of fertilizer.
(iv) False entries and statement in stock register in violation of Clause 25 of FCO 1985 and Section 9 of the EC Act 1955."
(vi) However, after interim orders of stay were granted by this Court on 13.10.2011 and the same were received on 18.10.2011, the cancellation orders passed on 14.10.2011 have been kept in abeyance.
(vii) The petitioner has a remedy of appeal under Clause 32-A of the Fertilizer Control Order 1985, as per the notification issued by the Government of India dated 22.10.2010.
13. I have carefully considered the pleadings and rival submissions. Before considering the rival contentions, it is essential to look into the provisions of the Fertilizer (Control) Order 1985, in terms of which, the respondents have initiated the action impugned in these writ petitions. Therefore, let me now turn to the statutory provisions.
14. In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955, the Central Government made the Fertilizer (Control) Order 1985. The Fertilizer (Control) Order, hereinafter referred to as "the Order", speaks of two types of dealers viz., a retail dealer and a wholesale dealer. While a retail dealer is defined as a person who sells fertilizers to farmers or plantations for agricultural use such as the fertilization of soil and increasing the productivity of crops, wholesale dealer is a person who sells fertilizer otherwise than in retail for agricultural use. Under Clause 3 of the Order, the Central Government is empowered to fix the maximum prices or rates at which any fertilizer may be sold. This is with a view to regulating equitable distribution of fertilizers and making fertilizers available at fair prices. Clause 4 obliges every dealer to display permanently in his place of business, the quantities of opening stock everyday and the list of prices. Clause 7 of the Order prohibits any person from selling, offering for sale or carrying on the business of selling fertilizer at any place as wholesale or retail dealer except under and in accordance with Clause 8. Under Clause 8, every person intending to sell or offering for sale or carrying on the business of selling fertilizer, should obtain a Certificate of Registration.
15. Clause 25.1 of the Order stipulates that no person shall, except with the prior permission of the Central Government and subject to such terms and conditions as may be imposed by the Government, sell or use fertilizer, for purposes other than the fertilization of soils and increasing the productivity of crops. The proviso to Clause 25.1 states that the price of fertilizers permitted for sale for industrial use shall be no profit no loss price excluding all subsidies. Clause 25.3 prohibits an industrial dealer from selling fertilizers for agricultural purposes.
16. A careful reading of Clause 25 would show that there is a strict mandate restraining the sale or use for industrial purposes, of fertilizers intended for agricultural purposes. Similarly, there is a prohibition for an industrial dealer to sell fertilizers for agricultural purposes. The object of such a provision is to ensure that the farmers get equitable distribution of fertilisers at a competitive price. In view of the increasing number of suicides among farmers, this policy, founded upon public interest has to be zealously safeguarded by courts and the provisions of the Order strictly interpreted to be in conformity with the said policy.
17. Clause 27 empowers the State and Central Government to appoint Inspectors of Fertilizers. The Inspectors are conferred with powers of search, seizure and detention, under Clause 28. Clause 31 deals with suspension, cancellation or debarment. Clause 32 deals with appeals at Central Government level and Clause 32-A deals with appeals at the State Government level. Clauses 31 and 32-A require re-production. Therefore they are re-produced as follows:-
"31 Suspension, Cancellation Or Debarment
1. A Notified Authority, registering authority, or as the case may be, the controller may, after giving the authorized dealer or the holder of certificate of registration or certificate of manufacture or any other certificate granted under this Order, an opportunity of being heard, suspend such authorization letter or certificate or debar the dealer from carrying on the business of fertilizer on one or more of the following grounds, namely:-
a. that the authorization letter or certificate of registration or certificate of manufacture, as the case may be, has been obtained by wilful suppression of material facts or by misrepresentation of relevant particulars: b. that any of the provisions of this Order or any terms and condition of the Memorandum of Intimation or certificate of registration or the certificate of manufacture, as the case may be, has been contravened or not fulfilled: Provided that while debarring from carrying on the business of fertiliser or canceling the certificate, the dealer or the certificate holder thereof may be allowed for a period of thirty days to dispose of the balance stock of fertilizers, if any, held by him:
Provided further that the stock of fertilizer lying with the dealer after the expiry of the said period of thirty days shall be confiscated.
2. Where the contravention alleged to have been committed by a person is such as would, on being proved, justify his debarment from carrying on the business of selling of fertilizer or, cancellation of authorization letter or certificate of registration or certificate of manufacture or any other certificate granted under this Order to such person the Notified Authority or registering authority or, as the case may be, the controller may, without any notice, suspend such certificate, authorization letter, as an interim measure:
Provided that the registering authority, Notified Authority or, as the case may be, the controller shall immediately furnish to the affected person details and the nature of contravention alleged to have been committed by such person and, after giving him an opportunity of being heard, pass final orders either revoking the order of suspension or debarment within fifteen days from the date of issue of the order of suspension:
Provided further that where no final order is passed within the period as specified above, the order of interim suspension shall be deemed to have been revoked without prejudice, however, to any further action which the registering authority, Notified Authority or, as the case may be, the controller may take against the affected person under sub-clause (1).
3. Wherever an authorization letter or certificate is suspended, cancelled or the person is debarred from carrying on the business of fertiliser, the Notified Authority, registering authority, or as the case may be, the Controller shall record a brief statement of the reasons for such suspension or, as the case may be, cancellation or debarment and furnish a copy thereof to the person whose certificate or authorization letter has been suspended or cancelled or business has been debarred.
4. Wherever the person alleged to have committed the contravention is an industrial dealer, the Notified Authority may take action against the holder of such certificate of registration under sub-clause (1) and sub-clause (2):
Provided that where such certificate is suspended or cancelled, the Notified Authority shall, within a period of fifteen days from the date of issue of such order of suspension or cancellation, furnish to the controller also, besides sending the same to the person whose certificate has been suspended or cancelled, a detailed report about the nature of contravention committed and a brief statement of the reasons for such suspension or, as the case may be, cancellation:
Provided further that the controller, shall, in case of the order for suspension passed by the Notified Authority, on receipt of the detailed report and after giving the person an opportunity of being heard, pass final order either revoking the order of suspension or canceling the certificate of registration, within fifteen days from the date of receipt of the detailed report from the Notified Authority, failing which the order of interim suspension passed by the Notified Authority shall be deemed to have been revoked, without prejudice however, to further action which the controller may take against the holder of certificate under sub-clause (1): Provided also that the order of cancellation passed by the Notified Authority shall remain effective as if it had been passed by the controller till such time the Controller, on receipt of the detailed report from the Notified Authority, and if deemed necessary, after giving the person a fresh opportunity of being heard, pass the final order either revoking or confirming the order of cancellation."
"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 appeals may be filed within 30 days from the date of the order appealed against 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 fertilisers or special mixture of fertilizers; or ii. Suspending or canceling a certificate of manufacture; or iii. Suspending or canceling authorization letter or debarring from carrying on the business of selling of fertilizer, or iv. non-issuance of 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."
18. A careful reading of Clause 31 extracted above would show that it contemplates three types of actions viz., (i) suspension (ii) cancellation and
(iii) debarment. Sub-clause (1) of Clause 31 empowers the notified authority/ registering authority/controller to suspend the authorisation letter or certificate or debar the dealer from carrying on the business of fertiliser, after giving an opportunity of being heard. This can be done on two grounds viz., (i) that the authorisation letter or certificate of registration had been obtained by suppression or (ii) that any of the provisions of the order or any terms and conditions of the certificate have been violated.
19. But under sub-clause (2) of Clause 31, the notified authority, registering authority or the Controller is also entitled to suspend, without notice, the certificate or authorisation letter as an interim measure, if the contravention allegedly committed, is such as would justify his debarment from carrying on the business of selling fertiliser or cancellation of the authorisation. The proviso to sub-clause (2) states that if suspension is ordered as an interim measure, the registering authority/notifying authority or the controller shall immediately furnish to the affected persons, details and nature of contravention alleged. After doing so, the authority may pass final orders after giving an opportunity of being heard. The second proviso to sub-
clause (2) makes it clear that if no final order is passed within the period of stipulation, the interim suspension shall be deemed to have been revoked without prejudice to any further action.
20. Therefore, it is clear that the suspension of the certificate or authorisation letter may also be by way of interim measure and the same may be followed by a final order either cancelling the certificate or debarring the dealer from dealing in fertilizers. If the suspension is ordered as an interim measure pending final orders, it may be done without notice, in view of Clause 31.2.
21. While Clause 32 of the order provides for a remedy at the Central Government level, Clause 32-A provides for a remedy at the State Government level. Therefore, the Fertiliser Control Order appears to be a complete Code, in so far as the suspension, cancellation and debarment of the certificates are concerned.
22. Keeping in mind the above provisions of the Fertiliser Control Order and its objectives, if we get back to the facts of the case, it would be clear that the notices dated 28.9.2011 issued to the petitioners allege that they have violated the Fertiliser Control Order by using the fertiliser for purposes other than agricultural use. Since the impugned show cause notices do not indicate in precise terms, the persons to whom the petitioners sold the fertilisers for other than the agricultural use, the date of sale, the quantity of sale etc., the petitioners contend that the charges are very vague. Therefore, on the basis of a decision of the Division Bench of this Court and two decisions of the Supreme Court referred to in paragraph 11 above, the learned counsel for the petitioners contends that on the basis of vague charges, an enquiry cannot proceed.
23. But the above contention of the learned counsel for the petitioners overlooks one fundamental aspect. All the 3 decisions referred to in paragraph- 11 above, arose out of disciplinary proceedings. In disciplinary proceedings, no delinquent employee can effectively defend himself, unless the charges framed against him are specific and precise. After charges are framed in terms of the statutory rules such as Rule 17(b) of the Tamil Nadu Civil Servants (Discipline and Appeal) Rules, which are issued in terms of the proviso under Article 311 of the Constitution, there is no scope for issuing any clarifications. Even if the disciplinary authority wishes to clarify the charges, it must only withdraw the charge memo and issue a fresh one, as the charges in disciplinary proceedings are likes arrows shot out of a bow.
24. But proceedings for cancellation of the certificate of dealership under the Fertiliser Control Order cannot be compared to departmental proceedings. In proceedings under the Control Order, the petitioners can always give a reply to the show cause notices asking for clarifications on the allegations made. Nothing prevents the petitioners from sending letters in response to the show cause notices, calling upon the respondents to be precise about the allegations. Moreover, departmental proceedings against Government Servants either strike at the root of their very status or their livelihood guaranteed under the Constitution. But the proceedings for the cancellation of registration are aimed at withdrawing the grant of a privilege. In cases of this nature even Article 19 (1)(g) may not go to the rescue of the petitioners for the reasons that I would indicate in the following paragraph. Therefore, the analogy drawn by the learned counsel for the petitioners, to charges framed in departmental proceedings is misconceived.
25. As between licenses to carry on any business and the licenses which confer a privilege or benefit, there is a distinction. The licenses to carry on a business, issued by the Government without actually conferring any financial benefit upon the licensee, stand on a different footing than the licenses which confer a financial benefit (such as subsidies) upon the licensees like the petitioners. These licenses which go with financial subsidies are intended to achieve greater public good. Therefore these licenses are in the nature of privileges conferred upon persons like the petitioners with the object of achieving the common good. If the authority comes to the conclusion that the licenses issued or privileges conferred were not utilised by the licensee for achieving such common public good, the licenses and privileges can easily be withdrawn in public interest. Therefore, in respect of such cases, the principle that charges should be precise and not vague, may not really apply.
26. There is also one more aspect. Unlike the charges framed in the departmental proceedings, which cannot be re-framed without withdrawing the first set of charges, the show cause notices issued in cases of this nature can always be clarified by subsequent communications. If the petitioner could not understand the nature of the allegations that he is charged with, he can always give a reply requesting the respondents to be precise. After the respondents clarify with precision, the nature of the allegations made against the petitioner, it is always open to him to give his reply. There is no prohibition under the Control Order for taking recourse to such a procedure. Therefore, the impugned notices cannot be assailed on the ground that they are vague.
27. The contention that the alternative remedy is meaningless when the show cause notices are issued at the behest of a superior authority, is also not well founded. In Pizzeria, the Division Bench of this Court was concerned with a circular issued under Section 28-A by the Commissioner of Commercial Taxes. The circular was in the nature of executive instructions. Therefore, the Division Bench held that the Assessing Officer who perform quasi judicial functions cannot be bound by executive orders. Similarly, in Union of India {2008 (2) CTC 511}, the Supreme Court found that the classification of product for the purpose of Central Excise had already attained finality pursuant to the decision of the Supreme Court. Therefore, the attempt at reopening the issue was despised by the Supreme Court. The decision in Manohar Lal, arose out of an allotment of a land. Therefore, these decisions cannot be of any avail to cases of the nature that I am now concerned with.
28. The communication issued by the Commissioner of Agriculture did not dictate to the subordinates as to the conclusion that they should reach. The circular dated 21.9.2011 merely pointed out to the Joint/Assistant Directors that a charge sheet had been filed on the file of the IX Metropolitan Magistrate, Saidapet, against the petitioners for violation of the Fertiliser Control Order and that therefore they may initiate proceedings in terms of the Fertiliser Control Order 1985. The circular was only an intimation to the Joint Directors of the factum of the filing of the charge sheet and was a gentle reminder of their obligation to take action under the Fertiliser Control Order. Therefore, the contention that the Assistant/Joint Directors, were acting on a command performance, cannot be accepted.
29. Moreover, Clause 32-A speaks of an appeal remedy at the State Government level. Therefore as against orders of cancellation of licenses, the petitioners can always go to the Government under Clause 32-A of the Fertiliser Control Order 1985. The Commissioner of Agriculture is not the Government. Therefore, the remedy cannot be taken to be a weak remedy. There is also one more aspect to be taken note of. All the above writ petitions were actually filed on 10.10.2011. They came up for orders as to admission on 13.10.2011. While ordering notice, I granted interim stay. It appears that the copies of the stay orders were made ready on 14.10.2011. But the competent authorities have passed orders of cancellation of licenses, on 14.10.2011 itself. After the communication of the stay orders of of this Court, the respondents have kept the cancellation orders in abeyance, awaiting the outcome of the writ petitions. Therefore, today the challenge to the show cause notices has actually become infructuous, in view of the subsequent development.
30. It must be borne in mind that under Section 3 of the Essential Commodities Act, 1955, the Central Government promulgated the Fertiliser Control Order 1985. The maximum selling price of fertiliser was determined under Clause 3 of the order, with a view to ensure the availability of fertiliser to agriculturists at a reasonable price. The prices are fixed under the Order at a figure which is less than the normal market price. In order to ensure that no hardship is caused to the manufacturer and sufficient supplies are available, the Government also introduced a Retention Price Scheme. The Scheme contemplated the fixation of maximum sale price of fertilisers, determination of retention price for each manufacturer and the Scheme of reimbursement to achieve a noble object. Therefore, I have to view the case on hand from the point of view of the public policy underlying the whole scheme of the Control Order and the disastrous consequences of allowing the black marketers to take advantage of the nuances of law. The allegations made against the petitioner that the fertiliser provided to him at a subsidy of Rs.16,000/- per ton (for more than about 1,600 metric tons), is sold by him for industrial use by diverting the material directly from the Port Trusts to an industry and by manipulating the records, is a very serious allegation. Unfortunately, the prosecution has been stayed. But merely because the prosecution is stayed, it cannot be said that even the proceedings for cancellation of the certificate of registration cannot go on. The Court dealing with a writ petition under Article 226 against such actions on the part of the State has a greater responsibility to ensure that the legal research undertaken by them on the semantics of the law and the procedure prescribed, does not result in grave prejudice to common public good. Perhaps if subsidised sale of fertiliser had actually reached the beneficiaries for whom it is intended, the number of farmers committing suicide would not have reached epic proportions.
31. As I have pointed out in one of the earliest paragraphs, the identity of the petitioners in all these writ petitions is very interesting to note. Though the first writ petition is stated to be filed by 6 persons, the second writ petition by 7 persons and the third writ petition by one person, their identities are not distinct and different. Most of them are either proprietary concerns of which Mr.A.Natarajan is the proprietor or the partnership firms of which he is the partner or concerns where his wife is the proprietrix. Therefore, the argument that there were no complaints against some of the petitioners in areas other than Pudukkottai and that therefore the initiation of proceedings by the Assistant Directors of the other Districts is arbitrary and baseless, is not factually well founded. Hence all the writ petitions are liable to be dismissed, leaving it open to the petitioners to seek appellate remedy under Clause 32-A against the orders of cancellation dated 14.10.2011.
32. In view of the above, all the writ petitions are dismissed. It is open to the petitioners to file appeals against the cancellation orders dated 14.10.2011 under Clause 32-A of the Control Order to the State Government. There will be no order as to costs. Consequently connected miscellaneous petitions are also dismissed.
Svn To
1.The Assistant Director (Quality Control), Department of Agriculture, Office of Joint Director of Agriculture, Pudukottai-622 001.
2.The Joint Director, Department Agriculure, Government of Tamil Nadu, Thanjavur 613 001.
3.The Assistant Director (Quality Control), Department of Agriculture, Office of Joint Director of Agriculture, Tiruchirappalli-620 020.
4.The Commissioner of Agriculture, Department of Agricultural, Government of Tamil Nadu, Chepauk, Chennai-600 005.