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Andhra High Court · body

2021 DIGILAW 250 (AP)

BalajiAgri Chem v. Union of India

2021-04-08

D.V.S.S.SOMAYAJULU

body2021
ORDER : 1. This Writ Petition is filed for the following relief: “….to issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the 2nd respondent in issuing impugned G.O.Ms.No.67, Agriculture & Cooperation (Agri.III) dated 14.08.2019 which was published in the Gazette dated 14.08.2019, where under Government of Andhra Pradesh accorded permission for de-notification of the NPK Granulated Mixture Fertilizer Grades with specification indicated in the said G.O., as being illegal and arbitrary and against the provisions of the Order 13 (1)(a), 13(2) and Order 38 (1), (5) of the Fertilizer (Inorganic, Organic or Mixed) (Control) Order 1985 and also against the Fundamental Rights Guaranteed under Article 19 (1) (f) as well as Article 14 of the Constitution of India and consequently to get aside the same, in the interest of justice and pass such other order or orders as this Hon’ble Court deems fit and proper in the circumstances of the case.” 2. The grievance of the petitioners before this Court is about the Notification dated 14.08.2019 by which seven granulated fertilizer mixtures were denotified for production and sale. The petitioners before this Court were granted a license to manufacture what are known as “NPK Granulated Mixture Fertilizers” as per the provisions of the Fertilizer (Inorganic, Organic or Mixed) (Control) Order, 1985. They were permitted to manufacture certain granulated mixture fertilizers in 2017. The permission continued till 2021. The impugned order was issued on 14.08.2019 by which seven varieties of granulated mixtures with certain nutrient values, were denotified. Petitioners through their association questioned the same, but there was no relief from the State Hence, the present Writ Petition. 3. Learned counsel for the petitioners argued that the petitioners are licensed manufacturers of the products and that as per the license given to them they continued their business and were manufacturing the products without any complaint. It is his contention that the Fertilizer Control Order, 1985 will apply and that the said order only prescribes the standards for the mixtures of fertilizers. In particular, learned counsel relies upon Clauses 12 ,13 and 38 Clause 12 and Clause 13 of the Fertilizer Control Order, 1985 are reproduced hereunder. “12. It is his contention that the Fertilizer Control Order, 1985 will apply and that the said order only prescribes the standards for the mixtures of fertilizers. In particular, learned counsel relies upon Clauses 12 ,13 and 38 Clause 12 and Clause 13 of the Fertilizer Control Order, 1985 are reproduced hereunder. “12. Restriction on preparation of mixtures of fertilizers:-No person shall carryon the business of preparing any mixture of fertilizers (special mixture of fertilizer, except under and in accordance with the terms and conditions of a certificate of manufacture granted to him under Clause [15 or 16]. 13. Standards of mixtures of fertilizers:-(1) Subject to the other provisions of this order – (a) no person shall manufacture any mixture of fertilizers whether of solid or liquid fertilizers specified in Part A of schedule I of the order unless such mixture conform to the standards set out in the notification to the issued by the (Central) Government in the official Gazette; (b) no person shall manufacture any Bio-fertilizer unless such Biofertiliser conforms to the standards set out in the part A of Schedule-III. (c) no person shall manufacture any Organic fertilizer unless such organic fertilizer conforms to the standards set out in the part A of Schedule IV. (2) Subject to the other provisions of this Order, no person shall manufacture any mixture of fertilizers unless such mixture conforms to the standards set out in the notification o be issued by the State Government in the Official Gazette.” 4. Relying upon Clause 38 of the same Control Order the learned Counsel argues that the Central Government has to constitute an Advisory Committee which will again determine the specifications of various fertilizers, grades and formulations etc. In addition, the State Government as per Clause 38 (5) is also entitled to constitute a committee called State Fertilizer Committee to advise the State Government regarding the grades and formulations. By reading these provisions of the order together learned counsel argues that the rules only speak about standards and specifications to be maintained but do not give power to the State Government, in particular to denotify any of the granulated mixture/fertilizer grades. The power of the 2nd respondent to issue the notice denotifying the mixtures is, therefore, seriously questioned. Even in the grounds the first and foremost ground urged is that the 2nd respondent has no power to denotify the granulated mixture grade. The power of the 2nd respondent to issue the notice denotifying the mixtures is, therefore, seriously questioned. Even in the grounds the first and foremost ground urged is that the 2nd respondent has no power to denotify the granulated mixture grade. The learned counsel for the petitioners also argues that as per Clause 38 of the Control Order, 1985 only after an expert body is constituted and they have given their recommendations, the particular grade of fertilizer can be included. There is no expert body appointed nor did they give any recommendation according to the learned counsel to de notify. Learned counsel also relies upon the earlier instances in 01.12.2006, wherein the permission of the Central Government was obtained for allowing the manufacture of 7 grades of granulated fertilizer mixtures. Learned counsel submits that in the present case the action of the State is without any statutory power and that the consent of the Central Government is also not obtained. 5. In reply to this learned Additional Advocate General argues that a series of GOs were issued earlier also on this subject. He draws the attention of this Court to G.O.Ms.No.83, dated 29.03.2003, wherein Clause 13 (2) of the Fertilizer Control Order, 1985 was relied upon for denotification of seven varieties of fertilizer mixtures. Thereafter, he draws the attention of this Court to G.O.Ms.No.9, Dated 17.01.2007 and points out that after referring to the relevant GOs., on the subject including G.O.Ms.No.48 dated 01.12.1979 and G.O.Ms.No.83, dated 29.03.2003 the Government of Andhra Pradesh included seven new mixtures after deletion of the seven products, which were permitted in G.O.Ms.No.83 mentioned above. Thereafter, he draws the attention of the impugned G.O.Ms.No.67, dated 14.08.2019. He points out that relying upon the very same power viz., the Control Order, 1985 the Government had decided to denotify the seven items, which are mentioned above. Therefore, he contends that in the past also the same power to denotify was being used, in similar circumstances. Learned Additional Advocate General also points out that inspection of the petitioners’ manufactured fertilizers revealed lot of complaints/shortcomings. He relies upon the material paper filed along with the counter affidavit to show that the non-standard granulated mixture contrary to the specifications was being manufactured by the petitioners. Learned Additional Advocate General also points out that inspection of the petitioners’ manufactured fertilizers revealed lot of complaints/shortcomings. He relies upon the material paper filed along with the counter affidavit to show that the non-standard granulated mixture contrary to the specifications was being manufactured by the petitioners. He draws the attention of this Court to the terms and conditions of the certificate of approval given to the petitioners, which states that apart from the provisions of the fertilizer Control Order, 1985 the petitioners are bound to follow all further notifications, orders and directions issued from time to time (Condition No.3 of the terms and conditions of the certificate). Lastly, learned Additional Advocate General argues that the power to notify also gives the power to denotify. It is his contention that Section 21 of the General Clauses Act would apply and that the power to denotify is also to be read to be included in the same. 6. On the directions of this Court, learned Additional Advocate General filed the letter of the Special Commissioner for Agriculture, referred to in the impugned G.O., and submits that there are valid reasons mentioned in the letter, pursuant to which the impugned order was issued. He points out to the limitations, which are found in NTP Mixtures and, therefore, the learned Additional Advocate General submits that the decision making was based upon the valid and germane grounds. 7. In rejoinder, Sri Sudhakar Rao Ambati states that the respondents cannot improve their case by relying upon some unauthenticated documents which are filed with the counter to show that the material manufactured by the petitioner is not standard. He points out thatthe very fact that till date no prosecution is launched against the petitioners is an important factor to discredit of the submissions of the State about poor quality mixtures etc., as per the learned counsel. Lastly, he submits that apart from relying upon the provisions of General Clauses Act no power to denotify has been pointed out by the learned Additional Advocate General. In the alternate the learned counsel submits that the power, if any, could have been exercised within one year as per the guide lines of 2002 and that no such power is there in the subsequent orders. Therefore, learned counsel for the petitioners submits that this is a fit case in which the Court should grant an order. In the alternate the learned counsel submits that the power, if any, could have been exercised within one year as per the guide lines of 2002 and that no such power is there in the subsequent orders. Therefore, learned counsel for the petitioners submits that this is a fit case in which the Court should grant an order. CONSIDERATION BY THE COURT:- 8. After considering the legal submissions made by both the learned counsels this Court notices that as pointed out by the learned counsel for the petitioners the rules relied upon and more particularly the Fertilizer Control order does not give the express power to denotify the approved mixtures. Clause 12 merely states that no person shall carry on the business except in accordance with the terms and conditions of the certificate. Clause 13 talks of the standards of the mixtures of fertilizers. Reading of these two rules makes it clear that the business of preparing any mixtures of fertilizers can only be as per the standards prescribed. Even the Advisory Committee constituted under Clause 38 (1) by the Central Government or under Clause 38 (5) by the State Government is only advised for the respective Governments on the grades and formulations of the fertilizers. Even here there is no express power to denotify. However, the submissions of the learned Additional Advocate General on the practice obtaining in this area of operation by the State and the various stakeholders makes it clear that the power to denotify is being exercised from time to time. In fact, the guidelines of 2002, dated 22.07.2002 issued by the Joint Secretary to Government of India give the power to the State Government to denotify the granulated fertilizers within one year from the date of issuance of the guidelines if they do not meet with the required standards. G.O.Ms.No.83, dated 29.03.2003 talks of denotification of the mixtures, which are mentioned therein. Similarly, G.O.Ms.No.9, dated 17.01.2007 after referring to G.O.Ms.No.48 and 83 denotified certain mixtures/products. The same is continued in the impugned G.O. dated 14.08.2019. This Court also agrees with the submission of the learned Additional Advocate General that the power to regulate would also include the power to control and if necessary to stop the production of fertilizers which in the opinion of the State are required to be denotified. The same is continued in the impugned G.O. dated 14.08.2019. This Court also agrees with the submission of the learned Additional Advocate General that the power to regulate would also include the power to control and if necessary to stop the production of fertilizers which in the opinion of the State are required to be denotified. Any rule, more so a statutory rule, should be interpreted in such a way that it promotes the purpose for which the rules are framed. This is known as the rule of purposive interpretation. The purpose behind these rules is to determine the standards, according to which the fertilizers have to be mixed and manufactured. If the State can fix the standards, in the opinion of this Court, the State will also have the authority to denotify the fertilizers if they are not being manufactured according to the standards and if they are not useful for the purpose for which they are intended to be. 9. Section 21 of the General Clauses of Act, which is reproduced hereunder also supports this view. “Section 21 of the General Clauses of Act – Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.— Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.” 10. The past conduct of the department and Section 21 of the General Clauses of Act if seen and read together make it clear that the State has been exercising its power to denotify certain fertilizers. The submission of the learned counsel for the petitioner that the power to denotify, which is given in letter dated 22.07.2002 can only be denotified within a period of one year cannot be extended to State that after 2003 there is no power to denotify. The guidelines issued in 2002 stated that certain grades of fertilizers which do not meet the requirement as mentioned in Clauses 1 and 2 should be denotified within a period of one year from the day of the guidelines. The guidelines issued in 2002 stated that certain grades of fertilizers which do not meet the requirement as mentioned in Clauses 1 and 2 should be denotified within a period of one year from the day of the guidelines. This cannot mean that the power to denotify is taken away after July, 2003 even if the fertilizers do not meet the standards. This will lead to an anomalous situation. 11. Even the certificate given to the petitioners clearly contains a clause which states that further orders and direction can be issued under the Fertilizer Control Order, 1985. This Fertilizer Control Order, 1985 is issued as per the powers conferred by Section 3 of the Essential Commodities Act, 1955 which deals with the powers to control production supply distribution etc., of the essential commodities. Hence, the State has the necessary power to control/regulate the commodities and fertilizers. 12. Therefore, in the opinion of this Court the past conduct of the petitioners and the law on the subject permit the State to denotify the mixtures etc. 13. Apart from this if the decision making process is seen that the power of cancellation / denotification was exercised after certain limitations were observed with respect of NPK mixture fertilizers. At least eight grounds are spelt out in the letter which has been produced by the learned Additional Advocate General and which lead to the impugned order being issued on 14.08.2009. Therefore, this Court holds that the respondents had a reason, which is based upon certain objective standards for coming to the conclusion that they did. In the opinion of this Court the decision making process is not vitiated or arbitrary. 14. For all the above reasons this Court holds that the petitioners are not entitled to any relief. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. 15. Consequently, the miscellaneous applications, pending if any, shall also stand dismissed.