HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.28011 of 2010 Date: 10th December 2010 Between : Sree Lakshmi Sreenivasa Fertilizers, Anantapur, rep. by its Dealer. …….Petitioner And The Commissioner & Director of Agricuture, Government of A.P. & others. …..….Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.28011 of 2010 ORDER : This writ petition is filed, seeking directions by way of Mandamus, declaring the action of respondent No.2 in initiating proceedings under Section 6-A of the Essential Commodities Act, 1955, at the instance of respondent No.5, as illegal, without jurisdiction and contrary to the provisions of the Fertilizer (Control) Order, 1985, and also in violation of the fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India. The petitioner is a dealer in fertilizers and is a licensee under the provisions of the Fertilizer (Control) Order, 1985, which is framed under Section 3 of the Essential Commodities Act, 1955. On 07.09.2010, at about 3 p.m., the Inspector of Police, Agriculture Officer and Tahsildar, Anantapur, have jointly inspected the business premises of the petitioner at Door No.15/523/26, Suryanagar, Anantaur, and noticed that M/s.Zuvari Agro Industries Limited has supplied 776 metric tons of DAP fertilizer to the petitioner without allotment order from the Joint Director of Agriculture and the District Collector, Anantapur, and they have also found that the petitioner has sold 191 metric tons of DAP fertilizer to the retail dealers and he has illegally stored 585 metric tons in Central Warehousing Corporation godowns at Anantapur, which is not included in his licensed premises. They have seized the available stock by conducting panchanama, and based on the report of the 2nd respondent-Collector, the petitioner was issued show cause notice. The charges levelled against the petitioner as evident from the show cause notice, read as under : “Charge-I : That the dealer M/s.Sri Lakshmi Sreenivasa Fertilizers, Anantapur has sold away 191 Mts of DAP without information to the licensing authority which is violation of clause 35(1)(a)(b) of Fertilizer Control Order, 1985. Charge-II : That the Marketing Officer, ZUARI Ltd., stored 72,900 Mts. Of DAP in CWC godown without the fertilizer allocation order either from Joint Director of Agriculture or the District Collector, Anantapur which is contravention of Clause 35(1)(a) of Fertilizer Control Order, 1985. Charge-III : That the dealer M/s.Sri Lakshmi Sreenivasa Fertilizers, Anantapur failed to display the stock position of DAP and the price list of fertilizers at the place where the dealer is carrying on the business, which is a violation of clause 4 of the Fertilizer Control Order, 19895. Charge-IV : That the dealer M/s.Sri Lakshmi Sreenivasa Fertilizer, Anantapur, without valid licence from the notified authority has stocked the fertilizers at No.VI of the CWC godown unauthorizedly with an intention to get unlawful gain in clandestine business, which is violation of section 6 of E.C. Act, 1955 and it is the contravention of the clause 8(2) of the Fertilizer Control Order, 1985.” The petitioner has filed his explanation to the aforesaid show cause notice, and when the inquiry was going on in confiscation proceedings before the District Collector, he has approached this Court by filing this writ petition. Heard Sri V.R.Reddy, learned counsel for petitioner and also the learned Government Pleader appearing for respondents. It is mainly contended by the learned counsel for petitioner that the petitioner has purchased the seized fertilizers from M/s.Zuvari Agro Industries Limited, on 31.07.2010, which was stored in a Central Warehousing Corporation godown at Anantapur, and 1st of August 2010 being Sunday, the stocks could not be lifted from the said godown. It is submitted that on 2nd of August 2010, the 5th respondent has visited the Central Warehousing Corporation godown and issued notice to stop sales. It is further submitted that as much as there is no control over the price and movement of DAP fertilizer, and as the same is a de-controlled commodity, there is no basis for initiating proceedings for confiscation under Section 6-A of the Essential Commodities Act. It is submitted by the learned counsel that in view of the orders issued by Government of India, de-controlling the fertilizers except Uria, it cannot be treated as an essential commodity, so as to initiate confiscation proceedings under Section 6-A of the Essential Commodities Act. On the other hand, it is submitted by the learned Government Pleader appearing for respondents that as much as the petitioner has already submitted his objections by way of explanation to the show cause notice, he cannot question the initiation of proceedings under Section 6-A of the Essential Commodities Act. It is submitted that whether the petitioner has violated any of the provisions of the Fertilizer (Control) Order, 1985, is a matter for consideration by the 2nd respondent-competent authority. It is submitted that the sale and supply of fertilizers is governed by the Fertilizer (Control) Order, 1985, and as the petitioner is a bonafide licensee, he cannot deal in fertilizers by violating the provisions of the said Control order. It is submitted that as DAP is the fertilizer which is notified in the schedule to the Essential Commodities Act, the 2nd respondent-District Collector is competent to initiate confiscation proceedings. Even according to the petitioner, on receipt of show cause notice issued by the 2nd respondent-District Collector, he has already submitted his explanation to the same. As evident from the show cause notice, there are allegations against the petitioner that he has violated the provisions of the Fertilizer (Control) Order, 1985, by distributing 191 metric tons of DAP fertilizer to retailers and also by storing 585 metric tons of fertilizer unauthorisedly in the premises, which is not entered in the license obtained by the petitioner. In view of the nature of allegations, having responded to the show cause notice issued to him, the petitioner cannot question the initiation of confiscation proceedings, by filing this writ petition at this stage. Although it is submitted by the learned counsel for petitioner that there is de-control with regard to DAP fertilizer, but so long the Fertilizer (Control) Order, 1985 controls the commodities of all fertilizers, no one can deal in fertilizers without following the various provisions under the Fertilizer (Control) Order, 1985. Undisputedly, the petitioner is a dealer and licensee under the Fertilizer (Control) Order, 1985. Merely because there is de-control with regard to price and movement of DAP fertilizer, that by itself, is no ground to plead that no proceedings can be initiated under Section 6-A of the Essential Commodities Act. It is clear from Section 6-A of the Essential Commodities Act that the 2nd respondent-District Collector is competent to initiate confiscation proceedings, in case, any violation of the provisions of the Fertilizer (Control) Order, 1985, framed under Section 3 of the Essential Commodities Act, 1955, is reported to such authority. As much as the fertilizer is included in the specified schedule as per Section 2-A(1) of the Essential Commodities Act, it also cannot be said that it is not an essential commodity. In any event, along with the counter affidavit, a copy of the final order, dated 1st of December 2010, passed by the competent authority in Rc.No.B3/2819/2010, confiscating the stocks seized, is also placed on record. If the petitioner is aggrieved by such final order, it is open for him to prefer an appeal against the said order, as contemplated under Section 6-C of the Essential Commodities Act, 1955, but in view of the final order, dated 1st of December 2010, which is enclosed along with the copy of the counter affidavit, this Court is of the view that there is no basis for seeking the relief to declare the initiation of proceedings under Section 6-A of the Essential Commodities Act, as illegal. 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 10th December 2010 ajr