IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. NO. 5518 OF 2011 M/s Himalaya Agro Chemicals Pvt. Ltd. having its place of business at Raniganj Road, Forbesganj, District-Araria through its Managing Director, Shambhu Goel, S/o Shri O.M. Agrawal, Resident of D.D.Road, Forbesganj, P.O. Forbesganj, District-Araria. ….. Petitioner. Versus 1. The State of Bihar through the Agriculture Production Commissioner,Government of Bihar, Vikash Bhawan, Bailey Road, Patna. 2. The Secretary, Department of Agriculture, Government of Bihar, Vikash Bhawan, Bailey Road, Patna. 3. The Director ( Agriculture), Government of Bihar, Vikash Bhawan, Bailey Road, Patna. 4. The Joint Director Agriculture (Upadan), Vikash Bhawan, Bailey Road, Patna. 5. The Dy. Director Agriculture (Plant), Vikash Bhawan, Bailey Road, Patna. 6. The District Agriculture Officer, Araria. Respondents. ---------- For the petitioner : Mr. Gautam Kejriwal, Advocate. Mr. Akash Chaturvedi, Advocate. For the State : Mr. Prahalad Kumar Bhagat, G. P. 13 M/s Binay Kumar & Raunak Kumar Pankaj, Advocates. --------- P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN O R D E R 08/ 25.07.2011 This writ petition has been filed by the petitioner challenging order dated 21.03.2011 (Annexure-15) by which the Secretary, Department of Agriculture, Govt. of Bihar (respondent no.2) acting as the appellate authority rejected Appeal No.01 of 2011 and refused to renew certificate of registration of the petitioner under the provisions of Fertiliser (Control) Order, 1985 and also challenging order dated 07.01.2011 (Annexure-13) by which the Director (Agriculture) Govt. of Bihar (Respondent no.3) refused to renew the certificate of registration of the petitioner for - 2 - manufacture of mixture of Fertiliser as also sale of Fertiliser and for directing the authorities concerned to renew the certificate of registration of the petitioner and further for restraining the respondents from issuing illegal and unwarranted direction to stop the manufacturing activity in the unit of the petitioner and for other ancillary reliefs. 2. The petitioner is a company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of manufacture of Granulated Mixture and sale of Fertiliser at Forbesganj in the district of Araria and the respondents concerned granted two certificates of registration, one in Form-F for manufacture in respect of granulated mixture of Fertiliser granted on 13.03.2007 valid for three years, i.e. up to 12.03.2010, and the other in Form-F for carrying on business of selling mixture fertiliser as a wholesale dealer. Before the expiry of the said period, the petitioner filed an application on 09.03.2010 for renewal of its certificate of registration in requisite Form-F along with forwarding letter enclosing various documents along with challan paying the requisite fees, whereafter inspection was done, but according to the petitioner no report was submitted and in the meantime show cause notice dated 14.06.2010 sent by the Director of Agriculture was served upon the petitioner demanding explanation as to why its work was continued beyond the period allowed. The petitioner filed its show cause on 30.06.2011 explaining its position. Subsequently order dated 20.07.2010 was communicated to the petitioner by the Director (Agriculture) Bihar, Patna declining the renewal of the certificate. - 3 - 3. Against the said order, the petitioner filed Appeal no.07 of 2010 before the Agriculture Production Commissioner, Bihar who allowed the said appeal on 30.09.2010 and remitted the matter to the Director of Agriculture allowing the petitioner to arrange for all the equipments for its laboratory under the provisions of the Fertiliser (Control) Order, 1985. Learned counsel for the petitioner also submitted that in compliance of the said appellate order, the petitioner made all the arrangements and filed representations dated 30.09.2010 and 07.10.2010 as the petitioner was ready for inspection. However, much later, inspection of the premises of the petitioner was done on 23.11.2010 and samples were drawn by the respondents-officials for the purpose of testing the quality. Subsequently report was issued in Form-L in which all the samples were found according to specifications and nothing wrong was found in the said samples. In spite of the said fact show cause notice dated 27.12.2010 was issued to the petitioner for explaining why its application for renewal of certificate of registration be not declined for the reason that the petitioner had assumed production without renewal of its certificate of registration. The petitioner filed its show cause on 03.01.2011 explaining the circumstances and also showing that it had not violated any provision of the Fertiliser (Control) Order, 1985. However, vide order dated 06.01.2011, the petitioner’s application for renewal of certificate of registration was rejected. 4. The petitioner has claimed that similar show cause was given to one Ajay Kumar Duggar, Proprietor, Bihar Agro Industries, Forbesganj whose explanation was accepted by the said - 4 - authority and his licence was ordered to be renewed, but a bias attitude was adopted by the respondents against the petitioner for reasons best known to them, although no illegality had been committed by the petitioner. 5. Learned counsel for the petitioner submitted that before the said order dated 06.01.2011 was passed by the Director Agriculture, the petitioner had filed CWJC No.20251 of 2010 on 03.12.2010 and during the pendency of the said writ petition, the aforesaid order was passed and hence, the petitioner filed I.A.No.351 of 2011 for amendment in the relief, whereafter the said writ petition was disposed of by a Bench of this Court vide order dated 27.01.2011 (Annexure-14) allowing the petitioner to exhaust the remedy of appeal first. In the light of the aforesaid direction of the High Court, the petitioner filed Appeal No.01 of 2011 before the Secretary, Department of Agriculture which was rejected by the said authority vide impugned order dated 21.03.2011 (Annexure-15). 6. Learned counsel for the petitioner submitted that all the steps taken by the authorities are illegal and perverse as the petitioner having fulfilled all the requirements was entitled to the renewal of its certificate of registration. Learned counsel for the petitioner relied upon Clause 11(4) of the Fertiliser (Control) Order, 1985 which provides that where the application for renewal of certificate of registration is made within the time specified in sub-clause (1) or sub-clause (3), the applicant shall be deemed to have held a valid certificate of registration until such date as the controller passes orders on the application for renewal. He also - 5 - relied upon Clause 18(4) of the Fertiliser (Control) Order, 1985 which provides that where the application for renewal is made within the time specified in sub-clause (1) or sub-clause (3), the applicant shall be deemed to have held a valid certificate of manufacture until such date as the registering authority passes order on the application for renewal. He further stated that admittedly, the petitioner had filed its application for renewal of the certificate of registration before the expiry of the said certificate and the same was pending and hence the petitioner was to be deemed to have a valid certificate of registration until the Controller passed any order on the application of renewal. Hence, there was no question of petitioner violating any provision of the Fertiliser (Control) Order, 1985 and committing any illegality in continuing with the production work. 7. On the other hand, learned counsel for the respondents vehemently opposed the contentions of learned counsel for the petitioner and stated that this matter had been considered by a Bench of this Court in CWJC No.20251 of 2010 which was disposed of on 27.01.2011 with certain directions and the appellate authority, namely the Secretary Department of Agriculture, considered the appeal and decided it in accordance with law, hence there can be no illegality in the impugned order. He further submitted that the petitioner suo-motu started producing granulated fertiliser mixture although it had no licence during November, 2010 and, therefore, the licensing authority was rightly annoyed and passed a speaking order dated 07.01.2011 against which the appeal was also dismissed. He also relied upon - 6 - Clauses 12 and 7 of the Fertiliser (Control) Order, 1985 stating that they clearly mandated that the petitioner should have a licence before it started production in its factory and sale of its products, but the petitioner chose to interpret the order of the Agriculture Production Commissioner in its favour and started production without waiting for any order of the Licensing Authority with respect to renewal. He further stated that petitioner was a habitual offender as it was trying to procure licence by submitting false affidavit about availability of minimum laboratory facility as per clause 21A of the Fertiliser (Control) Order, 1985 and then when an opportunity to rectify its mistake was given, instead of waiting for the registering authority to pass an order started production and selling fertiliser in violation of Clauses 7 and 12 of the Fertiliser (Control) Order, 1985 displaying scant regard for the rule of law. 8. However, learned counsel for the respondents very fairly pressed paragraph 6 of their counter affidavit and stated that if the petitioner fulfilled all the requirement as enumerated in the provisions of law, the authorities would grant renewal to it as the authorities had no bias against the petitioner. In reply, the petitioner also claimed that he had suffered a lot and hence respondents be directed to inspect the premises of the petitioner again and pass appropriate order in its favour. 9. Considering the entire facts and circumstances and also considering the specific provisions of law, including Clauses 11(4) and 18(4) of the Fertiliser (Control) Order, 1985, this court finds that in similar situation a Bench of this Court passed order dated 12.04.2010 disposing of CWJC No.5168 of 2010, - 7 - concluding portion of which is as follows:- “ Having considered the matter, in my view, the first thing this Court would like to remind the Director of Agriculture who is the registering authority, is the basic difference between various licensing orders issued under Section 3 of the Essential Commodities Act and the Fertiliser Control Order. Under Fertiliser Control Order, it is a certificate of registration that is required to be taken unlike a licence under other orders. There is no discretion in this matter to the registering authority. On fulfilment of conditions, the registration certificate has to be mandatorily granted which may not be the case where licences are involved. The conditions to be fulfilled are also stipulated in the Fertiliser Control Order itself. It is because of this reason, instead of conventional licensing provision, what is provided is that mere registration which is as a matter of right and not dependent on any discretion of the Director of Agriculture. Further, in terms of Clauses-8 and 11 of the Fertiliser Control Order, the moment a renewal application is filed till the time it is not refused and the refusal communicated, it would be deemed that the certificate of registration is duly renewed. Viewed in this light, firstly this Court would like to observe that the observation of the Director of Agriculture that the petitioner has been carrying on business all these years without a renewed certificate of registration is totally invalid and unwarranted observation. So far as the other facts noted by the Director are concerned, prima facie, they equally seem to be unwarranted and contrary to records. Petitioner’s renewal application was duly filed on 16.03.2004 and is duly receipted. This is confirmed by the communication of the Deputy Director of Agriculture dated 27.04.2004 wherein petitioner has been asked to furnish renewal application in new amended form presupposes that earlier it had been made under old form. This contradicts the finding of the Director directly. Petitioner has brought on record various certificates and affidavits which were already filed to show that each of the findings are unwarranted. In my view, even if one accepts what the Director has said to be correct, they are only technical defects for which renewal of certificate of registration is not in the context above should not have been refused. These were formalities which should have been made up and/or cured. They were not incurable mandatory formalities.” 10. In view of the arguments of learned counsel for the parties, the materials on record and the provisions of law, including the aforesaid case law, the impugned orders dated 21.03.2011 and 07.01.2011 passed by the Secretary, Department of Agriculture and - 8 - the Director of Agriculture respectively, dismissing petitioner’s appeal and refusing to renew the certificate of registration of the petitioner are hereby quashed and the Director of Agriculture is directed to reconsider the matter in the light of the directions and observations made above and pass appropriate orders after granting an opportunity of hearing to the petitioner in that regard and also after fresh inspection of the premises of the petitioner. The Director of Agriculture must pass his final order within a reasonable time, preferably within two months from the date of receipt/production of a copy of this order. 11. With the aforesaid observation and direction, this writ petition is disposed of. Sunil (S. N. Hussain, J.)