HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.13785 of 2004 Date : 21.08.2009 Between : The Fertiliser Wholesale Dealers Welfare Association, Vijayawada, rep. by its General Secretary & another. …..Petitioners And Government of Andhra Pradesh, Food & Agriculture Department, rep. by its Secretary & two others. …..Respondents For petitioners : Sri V. Srinivas, Advocate. For Respondents : G.P. for Agriculture. < Gist: > Head Note: ? CITATIONS: Nil C/15 HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.13785 of 2004 Date : 21.08.2009 Between : The Fertiliser Wholesale Dealers Welfare Association, Vijayawada, rep. by its General Secretary & another. …..Petitioners And Government of Andhra Pradesh, Food & Agriculture Department, rep. by its Secretary & two others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.13785 of 2004 ORDER : In this writ petition, the petitioners seek directions by way of Mandamus against respondents 1 and 2, not to insist the members of the 1st petitioner-Association, to submit separate Form A-1 intimations to different Notified Authorities in respect of their storage points, under the provisions of the Fertiliser (Control) Order, 1985 (hereinafter referred to as ‘the Control Order’), and further, to declare Clause (5) of the Terms and Conditions of Form A-1 as arbitrary, unreasonable and unconstitutional. 2. 1st petitioner is an Association registered under the A.P.Societies Registration Act, 2001, and all its members are wholesale dealers in fertilisers. 2nd petitioner is the fertilizer dealer, who is also a member of the 1st petitioner- Association. 3. The Fertiliser (Control) Order, 1985, is issued by the Central Government in exercise of its powers under Section 3 of the Essential Commodities Act, 1955. It is a self-contained Control Order, which prescribes the procedure for dealing in fertilisers. It prescribes the Notifying Authorities, Inspecting Authorities, procedure for getting the Certificate of Registration, restrictions on manufacture and sale of fertilisers, mechanism for analysis of samples, Enforcement Authorities and it also contains the penal provisions for the violators of various provisions. Clause (8) of the Control Order provides for making an application for intimation or registration, for persons intending to sell or offer for sale or carrying on the business of selling the fertilisers. As per the provision contained under Clause 8(2) of the Control Order, every person, including a manufacturer, an importer, a pool handling agency, wholesaler or a retail dealer, intending to sell or offer for sale or carrying on the business of selling of fertilisers shall make a Memorandum of Intimation to the Notified Authority, in Form A-1 duly filled in, in duplicate, together with the fee prescribed under Clause 36 and certificate of source in Form ‘O’. Under Clause 8(3), on receipt of such Memorandum of Intimation, complete in all respects, the Notified Authority shall issue an acknowledgement of receipt in Form A-2 and it shall be deemed to be an authorization letter granted and the concerned person will be considered as an authorised dealer for the purposes of this Order. The prescribed format in Form A-1 reads as under : “ FORM A-1 Memorandum of Intimation [See clause 8(2)] 1. Details of the Notified Authority to whom application is submitted Designation of Notified Authority……… Place State of 2. Details of the Applicant : (a) Name of the Applicant (b) Name of the concern (c) Postal address with telephone number 3. Place of business (Please give full address) (i) For sale (ii) For storage 4. Whether the application is for Manufacturer Importer Pool Handling Agency Wholesale Dealer Retail Dealer [Tick mark whichever is applicable] 5. Details of fertilizer and their source in Form ‘O’ Name of fertilizer Whether certificate is source in Form ‘O’ is attached (i) Yes ​ No ​ (ii) Yes ​ No ​ (iii) Yes ​ No ​ [Please tick mark whichever is applicable] 6. I have deposited the registration fee of Rs……….. vide Challan No……….. dated ………. In the Bank/Treasure ……….. or enclose Demand Draft No. ……….. dated ………. for Rs………. drawn on ……… in favour of ………. Payable at ………… towards registration fees. 7. Whether the intimation is for an authorization letter of a renewal thereof. (Note: In case the intimation is for renewal of authorization letter, the acknowledgement in Form A-2 should be submitted for necessary endorsement thereon.) 8. Any other relevant information. I have read the terms and conditions of eligibility for submission of Memorandum of Intimation and undertake that the same will be complied by me and in token of the same. I have signed the same and is enclosed herewith. Date : Place : Signature of Applicant * Attach a separate sheet if the number exceeds three. Terms and Conditions of Authorisation (1) I shall comply with the provisions of the Fertilizer (Control) Order, 1985 and the notification issued thereunder for the time being in force. (2) I shall, from time to time, report to the Notified Authority and inform about change in the premises of sale depot and godowns attached to sale depot. (3) I shall also submit in time all the returns as may be prescribed by the State Government. (4) I shall not sell fertilizers for industrial use. (5) I shall file a separate Memorandum of Intimation for, where the storage point is located outside the area jurisdiction of the Notified Authority where the sale depot is located. (6) I shall file a separate MOI for each place when the business of selling fertilizers is intended to be carried on at more than one place. (7) I shall file separate MOI if I carry on the business of fertilizers both as retail and wholesale dealer. (8) I confirm that my previous certificate of Registration or Authorisation is not under Suspension or Cancellation or debarred from selling of fertilizers. Declaration I/We declare that the information given above is true to the best of my/our knowledge and belief and no part thereof is false or no material information has been concealed. Date : Place : Signature of Applicant” 4. Clause (5) of Form A-1 referred to above, obligates the applicant to file a separate Memorandum of Intimation, as to where the storage point is located outside the area of jurisdiction of the Notified Authority, where the sale depot is located. 5. In this writ petition, it is the case of the petitioners that since the provision under Clause 8(2) of the Control Order is a comprehensive intimation for sale and also for storage of fertilisers, the action of respondents in insisting for separate intimation for storage point outside the notified area of the sale point, is illegal and arbitrary. Precisely, it is the case of the petitioners that in view of the composite nature of intimation prescribed under Form A-1, there is no reason or justification for the respondents in insisting to have different acknowledgements under Form A-2, by filing different intimations for sale points and to that of storage points. As Clause (5) of Form A-1 prescribes for filing separate intimations for sale and storage points, they also challenge the validity of such Clause, on the ground that the same is arbitrary and illegal. 6. Counter affidavit is filed by the 2nd respondent- Commissioner, who is the Director of Agriculture, Government of Andhra Pradesh, with the following averments : 7. The Fertiliser (Control) Order, 1985 is a self- contained Code, providing for control of price, distribution, etc., of the fertilisers. Under Chapter IV of the Control Order, Certificate of Registration is provided for the dealers, which will be renewed from time to time. It is the primary duty of the Commissioner and Director of Agriculture, to monitor the supply of fertilisers for securing equal distribution and availability of fertilisers to the farmers in time. Referring to certain amendments made to the Fertliser (Control) Order in the year 2003, it is stated that every dealer, wholesale or retail, shall submit Memorandum of Intimation to the Notified Authority, in Form A-1. Referring to Clause (5) of the terms and conditions of intimation in Form A-1, it is stated that it is obligatory on the part of applicant for dealership, to file a separate Memorandum of Intimation regarding each storage point, if such storage points are located outside the area jurisdiction of the Notified Authority, where the sale depot is located. Counter further states that necessary instructions were issued to all the District Joint Directors of Agriculture in the State, to strictly implement the provisions contained in Clause (5) of the Terms and Conditions as contained in Form A-1. 8. Heard learned counsel for petitioners Sri V.Srinivas, and the learned Government Pleader for Agriculture, appearing for the respondents. 9. It is contended by Sri V.Srinivas, learned counsel appearing for petitioners that in view of the intimation, already given to the respondents under Form A-1, which is comprehensive one for both the sale and the storage points, respondents cannot insist for a separate intimation regarding storage points. It is submitted that in view of the nature of business, though the sale point is one, they have to store the fertilisers at different places, having regard to the requirement in the said areas. It is contended that under the scheme of the Control Order, no such separate intimation is required to be given, and in the absence of such a provision in the Control Order itself, Clause (5) in Form No.A-1 is arbitrary, ultravires and unreasonable. It is submitted that as much as the dealer is one, he cannot be insisted upon, to have different licenses merely because he is storing the stocks at different places. In support of his argument, the learned counsel for petitioners has relied on a judgment of a learned Single Judge of this Court in Writ Petition No.11773 of 2001, dated 29th December, 2008. 10. On the other hand, it is submitted by the learned Government Pleader appearing for the respondents, that in this case, having regard to the very objective of the Control Order for equitable distribution of fertilisers to the farmers, and to monitor the stocks available with various dealers, it is necessary to have the required information with all the Notified Authorities. It is submitted that as per Clause (5), the dealer is required to give separate intimation only in cases where the storage point is located outside the area of jurisdiction of the Notified Authority, where the sale depot is located, and by insisting for such intimation, no right of the fertilizer dealers is violated. It is submitted that as the terms and conditions are part of Form A-1, which is part and parcel of Clause (8) of the Control Order itself, it cannot be said that Clause (5) of Form A-1 is contrary to the provisions of the Control Order. In any event, it is further submitted that the said condition imposed cannot be said to be unreasonable or illegal, so as to seek invalidation in this writ petition filed under Article 226 of the Constitution. Hence, he prayed for dismissal of the writ petition. 10. Before adverting to the contentions raised by learned counsel for the parties, it is necessary to peruse certain provisions of the Control Order, and also the provisions of the Essential Commodities Act, 1955. 11. The Fertiliser (Control) Order, 1985 is issued by the Central Government, in exercise of powers conferred under Section 3 of the Essential Commodities Act, 1955, which empowers the Central Government to issue such control orders, when it is of the opinion that it is necessary or expedient to manufacture or increase the supply of any essential commodities or to secure their equitable distribution and availability at fair price. It is a self- contained Control order, which provides for the mechanism of Registering Authorities, Inspecting Authorities and restrictions on manufacture, sale and storage of fertilisers. As per the provision contained under Clause 8 (2) of the Control Order, every person, including a manufacturer, an importer, a pool handling agency, wholesaler or a retail dealer, intending to sell or offer for sale or carrying on the business of selling fertilizers, shall make a Memorandum of Intimation to the Notified Authority in Form A-1. The ‘Notified Authority’ as defined under Clause 2 (nn) of the Control Order means, an Authority appointed under Clause 26-A. As per provision under Clause 26-A, the State Government may, by notification in the official Gazette, appoint such number of persons, as it thinks necessary, to be Notified Authorities for the purpose of this Order and define the local limits within which each such Notified Authority shall exercise his jurisdiction. Clause 27 of the Control Order empowers the State Government or the Central Government to notify by way of Notification in the official Gazette, appointing such number of persons, as it thinks necessary, to be Inspectors of Fertilisers for the purpose of this order, and in such Notification, define the limits of local area within which each such inspector shall exercise his jurisdiction. 12. From the provisions referred above, it is clear that the Notifying Authority and the Inspecting Authorities are appointed by way of Notification, and they are empowered to exercise their powers in the local limits of a particular local area. As per Clause (5) of Terms and Conditions of Form A-1, a dealer has to give a separate Memorandum of Intimation, only in cases where storage point is located outside the area of jurisdiction of the Notified Authority, where the sale depot is located. From a reading of the said Clause (5), it is clear that if a dealer is having both the sale depot as well as the storage point in the local area of the same Notified Authority, he need not file a separate Memorandum of Intimation for such storage point. The requirement of filing separate Memorandum of Intimation is applicable only in case, if the dealer is having the sale depot within the local area of one Notified Authority, and the storage point outside the area of that Notified Authority. The sale and storage points as mentioned in Form A-1 are only with regard to the points within the same local area, but cannot be stretched to storage points outside the local area of one Notified Authority. As the powers of the Registering Authorities, Notified Authorities and the Inspecting Authorities are confined to their particular local areas specified as per the Notification, an Officer or Authority appointed in one local area, cannot have any control over the stock points set up by the dealers in the other local areas. As much as the very purpose and objective of the Control Order is equitable distribution of fertilisers to the farmers, unless such an intimation is provided, it is not possible for the Enforcement Authorities to monitor the stock position from time to time, having regard to the availability of stocks, vis- à-vis, the requirement of the farmers. As much as the very Clause (5) imposed in Form A-1 is referred to in Clause 8 (2) of the Control Order, it cannot be said that such Clause runs contrary to the Control Order. Having regard to the object of the Control Order, it cannot be said that imposition of such restriction is either unreasonable or illegal, so as to invalidate it. 13. Though the learned counsel for petitioners has placed reliance on the judgment of a learned Single Judge of this Court rendered in W.P.No.11773 of 2001, but having regard to the provisions of the Fertiliser (Control) Order, 1985, and the prescribed Format in Form A-1, the said judgment would not render any assistance in support of his plea. In the aforesaid judgment, the petitioners, who are dealers dealing in seeds and pesticides, have questioned the action of respondents in insisting them to obtain separate licenses for shops and godowns. In the aforesaid judgment, taking into account the composite provision under Rule 10 of the Insecticides Rules, 1971, framed under the Insecticides Act, 1968, a learned Single Judge of this Court has held that no separate licenses need be taken for sale points and godowns. So far as the fertilizers are concerned, their regulatory mechanism with regard to sales and purchase is governed by the Fertiliser (Control) Order, 1985, framed under Section 3 of the Essential Commodities Act, 1955, with an objective to ensure equitable distribution of commodities to the needy consumers. In view of the prescribed Format for registration of storage and sale points, and also the conditions notified in the said Format, which is not identical with the Form of licenses under the provisions of the Insecticides Act, 1968, and the Rules made there under, the judgment in W.P.No.11773 of 2001 would not render any assistance to the petitioners to seek the relief as prayed for in the present writ petition. It is also to be noticed further that having regard to the scheme of the Clauses in the Fertiliser (Control) Order, entire area is divided into number of local areas for implementation of the provisions, insisting upon a separate intimation in cases where storage points are located outside the local area of sale point, it cannot be said to be either illegal or arbitrary so as to invalidate it in exercise of powers under Article 226 of the Constitution of India. 14. For the aforesaid reasons, the writ petition is devoid of merit and it is accordingly dismissed. No order as to costs. ______________________ R. SUBHASH REDDY, J 21st August 2009 N.B : L.R. copy be marked. (b/o) ajr