1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7165/2009 Gajraj Fertilizers Pvt.Ltd. .. PETITIONER VERSUS Union of India and another .. RESPONDENTS .... WRIT PETITION NO.7350/2009 Balaji Fertilizers Pvt.Ltd. .. PETITIONER VERSUS Union of India and another .. RESPONDENTS .... Shri Anand Bhandari, Advocate for petitioners in both petitions Shri Alok Sharma, Assistant Solicitor General for Respondent 1. Shri V.H.Dighe,A.G.P. for Respondent No.2-State .... CORAM : NARESH H.PATIL & N.D.DESHPANDE,JJ. DATE : 30/3/2010 2 ORAL ORDER : [PER PATIL,J.] 1] Heard learned counsel for respective parties. 2] The petitioners challenge the revised policy for ad-hoc concession for Single Super Phosphate (SSP) dated 13/8/2009. Petitioners contend that they manufacture Single Super Phosphate. Due to the policy in question implemented through the impugned circular issued by respondent no.1, the petitioners have been deprived of the concession/subsidy available to the manufacturer of SSP fertilizers. Clause 6 of the impugned circular runs as under : “6. Ad-hoc concession for SSP w.e.f. 1st October 2009 will be provided to those eligible SSP units only, which have either annual capacity utilization of atleast 50% or annual production of 40,000 MT of SSP. For the purpose of recognizing capacity utilization/production, capacity as on 31st March 2009 will be taken into account. The SSP units 3 are required to inform the Department their installed capacity as on 31st March 2009 certified by the statutory auditor with a copy to the PDIL. PDIL will also be required to submit a separate report on the installed capacity of the units as on 31st March 2009. Capacity utilization/production for three months from the date of this notification on pro-rata basis will be taken into account for the capacity utilization/production benchmark as above for ad hoc subsidy for sales of SSP w.e.f. 1st October 2009.” 3] Under the said policy, the Government of India prescribed that w.e.f. 1/10/2009, ad-hoc concession for SSP will be provided to those eligible SSP units only, which have either annual capacity utilization of atleast 50% or annual production of 40,000 MT of SSP. In substance, the contention of the petitioners is that the units which have larger capacities and produce more than 40,000 MT of SSP are getting benefits of this circular, whereas, 4 the small units like petitioners, have been discriminated and singled out. The capacity of the petitioners factory is more than 50,000 MT. 4] The learned counsel appearing for the petitioners further submitted that the D.A.P. producers have been favoured, compared to the SSP producers. The policy adopted by the Government of India has no rational nexus with the object to be achieved. It was submitted that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together, thus the differentia must have a rational relation to the object sought to be achieved. The counsel for petitioners placed reliance in support of his contentions in reported judgments Indian Express News papers (Bombay) Private Ltd. and others etc.etc. V/s Union of India and others; AIR 1986 SC 515., M/s Bishamber Dayal Chandra Mohan V/s State of U.P. 1982 S.C. 33 and State of West Bengal V/s Anwar Ali 1952 S.C.75. 5] Shri Alok Sharma, learned counsel appearing for the 5 respondent Union of India submitted that the impugned circular which reflects policy decision of the Government of India is pro- farmer. India being an agriculturist country, large agriculture production is expected and for that, necessary back-up of fertilizer is required. The Government after coming to know that the fertilizer was short in production and supply, a policy decision was adopted by giving concession and subsidy of Rs.2000/- per M.T. to producers of SSP who manufacture 50% of their capacity or more than 40,000/- M.T. of SSP. It was stated that the minimum bench mark of the production laid down under the policy was fixed to discourage non serious producers to derive benefit under the concessional scheme. The counsel invited our attention to Exh.R-3, which is a list of suppliers of raw material. Some of the suppliers are located in India and some are in the foreign countries. It was further submitted that the petitioners now under the policy have discretion to fix their own M.R.P. Earlier, Government of India would fix the M.R.P. 6] We have perused the record placed before us and the judgments cited supra. The petitioner in Writ Petition No. 6 7350/2009 admittedly produced in the year ending 31st March 2009, 4998 MT of SSP, whereas the petitioner in Writ Petition No. 7165/2009 produced 4737 MT. Admittedly their capacity to produce is between the range of 50,000 M.T. to 60%. The reason highlighted for the meager production according to the petitioners is stated to be stiff competition, non-availability of raw material. The petitioners are private enterprises who entered into a commercial venture. Through these petitions, the petitioners claim that the subsidy which was granted by way of concession by Government of India must be made available to them irrespective of their capacity of production. We have verified the object behind issuing such circular reflecting policy decision taken by Government of India. 7] The respondent Union had filed affidavit in reply and extensively replied the contentions and grounds raised by the petitioners. It may be that petitioners are facing stiff competition in the market with large producers of SSP, but at the same time, when raw material is available in the country, as per the list annexed by the respondents, we do not find any justifiable and 7 satisfactory reason for the petitioners not to raise their production level. The petitioners are producing hardly 4000 to 5000 MT compared to their huge capacity of production. In this view of the matter, question arises as to whether petitioner could claim the concessions. The policy of the Union has to be considered from the peculiar facts and circumstances in which the same was adopted. Certainly, the policy has to be reasonable and it must have some nexus with the object it tries to achieve. As it was disclosed that the objective was to help farmers of this country, who badly need enough of fertilizers. The concession was granted to those units who produce more than 40,000 MT of SSP or 50% of their capacity. We do find reasonable rational behind policy framed by the Government of India. 7] For the reasons stated above, we do not find that the petitioners made out any case for interference in our extra ordinary writ jurisdiction. Writ Petitions are dismissed. [N.D.DESHPANDE] [NARESH H.PATIL] JUDGE JUDGE umg/wp7165-09