- (1.) M/s. Abhey Rami Suraj Mal, the second petitioner, is a firm dealing in whole-sale and retail sale of fertilisers and claims to be a member of Zila Urvarak Vikreta Association, Muzaffarnagar, the first petitioner. A notice dated January 11, 1988 (Annexure 'IV to the writ petition) was issued by the District Agricultural Officer calling upon it to show cause why its registration certificate under the Fertiliser (Control) Order, 1985 dated September 25, 1985, (for brief, the Order) be not cancelled and further it should not be prosecuted u/Sec. 3/7 of the Essential Commodities Act, 1955. It is mentioned in the notice that as a result of analysis, the sample of fertiliser taken from its stock was found not upto the prescribed standard. The second petitioner did not show cause by January 27, 1988 by which date it was asked to do so. Instead it has approached this Court along with Zila Urvarak Vlkreta Association, Muzaffarnagar for relief under Art. 226 of the Constitution through the present petition.
(2.) CLAUSE 31 of the Order deals with suspension/cancellation of registration certificate. It gives the grounds on which an order can be passed by the registering authority. The order is to be passed after an opportunity of being heard is given to the holder of the registration certificate. If a person feels aggrieved by an order made under clause 31 of the Order, he has a right of appeal under CLAUSE 32 of the said Order. The petitioners should, we feel, have shown cause and should have exhausted the remedy of appeal before approaching this Court. That, however, the learned counsel, appearing for the petitioners, says is that petitioner no. 2 was only offering for sale fertiliser, which it had received in a packed condition and that it had no control over the quality of the fertiliser which came from the manufacturer in a packed condition. This is a defence, according to the learned counsel!, which the petitioner cannot take before the registering authority while showing cause or urge in appeal if an order adverse to the petitioner is passed. We are not impressed by this submission for we find that such a defence has not been excluded by any provision of the Order. A defence which is not excluded can always be taken by the person proceeded against. The dealer may take all the defenses available to him, regard being had to a given situation and in the facts and circumstances of the case, as may be available to him, for instance, under the Contract Act 1872, the Sale of Goods Act, 1930, the Consumer Protection Act, 1986 or any other law. The observation that a defence which is not excluded is available to the person proceeded against applies equally to a defence which may be taken by a dealer when he is criminally prosecuted. The grievance of the petitioners is that the provisions of the order do not ensure that the holder of Certificate of registration can have proper safeguard in the matter of drawing of sample from fie stock offered by him for sale by the Inspector and its analysis by the laboratory to which it is to be sent. As such, the provisions of the Order should be held to be unreasonable and, thus, hit by Article 14 of the Constitution. We find that Clause 28, which deals with the power of the Inspector, requires the Inspector to draw sample of any fertiliser in accordance with the procedure of drawal of samples laid down in Schedule II. The sample details are to be prepared in duplicate in Form J and a copy thereof is to be handed over to the dealer or his representative from whom the sample has been drawn. Schedule II provides for an elaborate procedure for drawing of sample. It also provides that the test sample container shall be sealed with the seal of the Inspector and if possible the sail of the dealer may also be affixed. Three samples are to be drawn, one of which is to be given to the dealer. The analysis of samples is to be made under clauses 29 and 30 of the Order. These clauses, inter alia, provide that the authority to whom the result of analysis is sent by the Laboratory shall communicate it to the dealer from whom the sample was drawn, within thirty days from the date of receipt of the analysis report of the Laboratory. These are, in our opinion, amr.de safe-guard which are provided in the Order itself. It was urged that some emphasis by the learned counsel for the petitioners that the dealer had no control over the process of drawing of samples in the sense that it could be made by the Inspector at his sweet-will and even in respect of old stock and further that the seal of the dealer could only be put over the sample if permitted by the Inspector. This would rob the entire procedure of any sanctity and leave the dealer to the whim and mercy of the Inspector. We find, however, that this is an apprehension which is not justified. The provisions contained in Schedule II read with Clauses 28, 29 and 30 of the Order impliedly cast an obligation upon the Inspector to associate the dealer or his representative in the process of drawal of sample, its sealing and transmission with despatch for analysis to the Laboratory. If, in a particular case, there is any lapse on the part of the Inspector it can always be brought to the notice of the registering authority while showing cause to the notice served upon the dealer and, thereafter, in appeal.
(3.) WHILE dealing with a case under the Fertiliser (Control) Order, 1983, one of us (Ravi S. Dhavan, J.) came across a letter No. 3023/4/Krishi/(sic) dated November 3, 1986 addressed by the District Agricultural Officer, Azamgarh to all the registered fertiliser dealers in Azamgarh. It was mentioned in that letter that it had come to the notice of the administration that some of the dealers in fertiliser were not dealing in fertiliser of the prescribed standard. A direction was made to all the registered dealers that as soon as the stock of fertiliser was received by them, they should get the sample drawn out of their stock within 24 hours of the arrival by the Inspector so that necessary information about the quality of the fertiliser may become Known. This letter, we are confident, was issued under some direction from the State Government itself and contains a very salutory safe-guard for the dealers. The view that was taken by this Court in regard to the obligation which the aforesaid direction contained in the letter cast upon the Inspector in W. P. No. 16012 of 1987 M/s. Kukund Chand v. Distt. Agriculture Officer and another decided on January 18, 1988, is the interpretation which should be held applicable to the obligation of the Inspector in regard to the drawing of sample on the request of a registered dealer and we feel that it provides a proper safe-guard for such a dealer. With the aforesaid observations, we hold that the petitioners have rushed to this Court pre-maturely. The second petitioner should first show cause to the notice which has been issued to him. We decline to admit the petition or direct the respondent to file a return.;