R.A.Sharma, J. - (1.) PETITIONER is a registered Company. It has established a factory for manufacture of SSP fertiliser in district Muzaffarnagar. It is holding a licence for manufacture and sale of the said fertiliser. Fertiliser being an essential commodity, its manufacture and sale is regulated by the Fertiliser (Control) Order, 1985 (hereinafter referred to as the Order) issued under Section 3 of the Essential Commodities Act by the Central Government. The fertiliser manufactured by it is sold throughout the territory of India. On 15.9.1994 it has also been granted a licence by the Director General of Foreign Trade for export of SSP fertiliser to a foreign buyer of Bangladesh. On 16.11.1994 the District Agriculture Officer Muzaffarnagar has taken three samples of the fertiliser from the premises of the petitioner and sent them for an analysis. The result of the analysis shows that the fertiliser manufactured by the petitioner does not conform to the specifications laid down by the Order and the District Agriculture Officer has accordingly vide his orders dated 11.11.1994 and 27.11.1994 attached/seized it. Being aggrieved by it petitioner has filed this petition for getting the above orders quashed further prayer commanding the respondents to issue 'no objection certificate' for export of the fertiliser to the buyer of Bangladesh and not to conduct any test of the fertiliser manufactured by it in future has also been made. The State has filed counter -affidavit and the petitioner has filed rejoinder affidavit in reply thereto. The Union of India its Under Secretary and the Export Trade Controller, Government of India (respondents Nos. 4, 5 and 6 respectively) have however, not filed any counter -affidavit Mr. U.N. Sharma, learned Senior Standing Counsel for Central Government has stated that in view of the letter dated 8.2.1995 issued by the Under Secretary, Government of India it is not necessary to file any counter affidavit and has placed the said letter on the record. The contents of this letter are as under: Subject Writ petition No. 2115 of 1995 (M/s. Natraj Organies Limited v. State of U.P. and others) Dear Sir I am directed to refer to your fetter dated nil on the subject noted above and to clarity that when a material is exported it has to conform to the specification prescribed by the importer and hence, it is for the importer to safeguard his interest. Yours faithfully Sd/S.K. Gupta(S.K. Gupta)Under Secretary to theGovernment of IndiaTele No. 383869. According to the said letter the material which is to be exported has to conform to the specification prescribed by the importer and, therefore it is for the importer to safeguard his interest Mr. Sharma has supported the petitioner by submitting that the petitioner is entitled to manufacture the fertiliser of any standard and specifications and is also free to sell it to a foreign buyer and it is not for the District Agriculture Officer to intervene in the matter Initially we are inclined to dispose of this writ petition in view of the above letter of the Central Government and the stand taken by its learned counsel, but we refrained to do so, because of the possibility of our order being used as precedent in future. We have accordingly heard the learned counsel for the parties on merit.
(2.) THE sole contention raised by the learned counsel far the petitioner is that Essential Commodities Act 1955 and the orders issued under Section 3 thereof cannot apply to manufacture of fertiliser for the purpose of export to a foreign buyer and what is applicable to such a case is the Foreign Trade (Development and Regulation) Rules, 1993 (hereinafter referred to as the Foreign Trade Act and the Foreign Trade Rules respectively). It is accordingly submitted that the District Agriculture Officer has neither the power to take samples of the fertiliser produced by the petitioner nor has he the jurisdiction to attach or seize it. This contention has been fully supported by the learned counsel for the Central Government. The learned Standing counsel for the State has reiterated the stand of the State Government taken in its counter -affidavit. Essential Commodities Act has been enacted by Parliament under Entry 33 of List III of Seventh Schedule to the Constitution which provides for trade and commerce in and the production, supply and distribution of the product of any industry, control of which by the Union of India is declared by Parliament to be expedient in the public interest and other goods and commodities referred to therein. It any law is made under the above Entry for regulating production, trade and commerce in any such commodity, no person can produce it or carry on the business in it in contravention of the law so made unless law itself either expressly or by necessary implication makes exemption in this connection. It is true that an order can be issued under Section 3 of the Essential Commodities Act providing for regulating or prohibiting the production, sale and the distribution of essential commodity and trade and commerce therein, only if the Government is of the opinion that it is necessary or expedient for maintaining or increasing supply of any essential commodity or for securing their equitable distribution and availability at fair price. But it the Government has issued any order under Section 3 of the Essential Commodities Act, it is not open to any person to manufacture or sell any essential commodity in contravention thereof. It there are norms and specifications laid down by or under the Order, the manufacturer has to conform to those norms and specifications. Whether essential commodity so produced is meant for trade and sale within the territory of India or is to be exported to a foreign country is not relevant for the purpose of applicability of the Essential Commodities Act and the Orders issued thereunder. The fact of manufacture and the sale of the essential commodity attracts the provisions of the Order irrespective of the person to whom and the country to which it is sold. It makes no exception in favour of any sale or person.
(3.) THE two Acts, namely, the Foreign Trade Act and the Essential Commodities Act operate in different fields and there is no conflict between them While Essential Commodities Act provides for regulation of production, supply and distribution of an essential commodity, the Foreign Trade Act deals with the import and export of both finished and unfinished goods including raw materials. The Foreign Trade Act does not deal with the regulation of production, supply and distribution of any essential commodity, which is exclusively dealt with by the Essential Commodities Act Similarly the Essential Commodities Act does not deal with the import and export of goods into and out of India, which is exclusively dealt with by the Foreign Trade Act, Rules and the Orders issued thereunder. These two Acts not only operate in different fields but have been enacted for different objects. One does not over -ride the other.;