{1} wp149399.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1493 OF 1999 M/s Fertiland Industries (Per Pro. Patel Seeds Pvt. Ltd.), having registered office at 153, Polan Peth, Jalgaon, through the Managing Director Shri Anilkumar Jinabhai Patel, age: 53 years, Occ: Trading, R/o 153, Polan Peth, Jalgaon. Petitioner Versus 1 The State of Maharashtra. 2 The Commissioner of Agriculture, Maharashtra State, Central Building, Pune – 411 001. 3 The Additional Director of Agriculture (Input & Quality Control), Office of the Commissioner of Agriculture, Maharashtra State, Central Building, Pune. 4 Chief Quality Control Officer, Office of Commissioner of Agriculture, Pune. 5 Quality Control Inspector & Fertilizer Inspector, C/o S.A.O. Office, Swatantrya Chowk, Jilha Peth, Jalgaon 425 001. Respondents {2} wp149399.odt WITH WRIT PETITION NO.108 OF 2000 M/s Fertiland Industries (Per Pro. Patel Seeds Pvt. Ltd.), having registered office at 153, Polan Peth, Jalgaon, through the Director Shri Darshan Anilkumar Patel, age: 26 years, Occ: trading, R/o 153, Polan Peth, Jalgaon. Petitioner Versus 1 State of Maharashtra. 2 The Commissioner of Agriculture, Maharashtra State, Central Building, Pune 411 001. 3 The Additional Director of Agriculture (Input and Quality), Office of the Commissioner of Agriculture, Maharashtra State, Central Building, Pune 411 001. 4 Chief Quality Control Officer, Office of Commissioner of Agriculture, Pune 411 001. {3} wp149399.odt 5 Quality Control Inspector and Fertilizer Inspector, C/o S.A.O. Office, Swatantrya Chowk, Zilla Peth, Jalgaon 425 001. Respondents Mr.A.B.Kale, advocate for petitioner Mr.K.G.Patil, A.G.P. for respondents. CORAM : B.R.GAVAI AND R.M.BORDE, JJ. Reserved on : 25 th November, 2010. Pronounced on : 03 rd December, 2010. ORAL JUDGMENT (Per R.M.Borde, J.): 1 Writ Petition No.1493 of 1999 is presented by the petitioner challenging the order passed by the Registering Authority and Additional Director of Agriculture (Input & Quality), Maharashtra State, Pune – Respondent No.3 herein, which has been confirmed by the appellate authority i.e. the Commissioner for Agriculture, Maharashtra State, Pune, in view of the order passed on 12th January, 1999. 2 At the stage of admission, Rule is granted in the petition for consideration of prayer clause (I), which is noted as below: {4} wp149399.odt “By issuance of appropriate writ, order in the nature of mandamus, the Respondents be directed to issue D.R.C. license under clause 7, 8 and 9 as tendered by them. 3 The facts necessary for consideration of the challenge raised in the petition can be summarised as below: The petitioner Fertiland Industries is a proprietary concern of Patel Seeds Private Limited and Patel Seeds Private Limited is a Company established in the year 1972 and is registered under the provisions of Companies Act. The Company is formed with an object of dealing in various businesses in the manufacture and sale of agricultural products. The petitioner concern i.e. Fertiland Industries has been established with an object of dealing with manufacturing activity of mixture fertilizers of various grades. The necessary license /certificate of registration for manufacturing mixture fertilizers has been issued in favour of the petitioner concern in the year 1982 and in pursuance to the issuance of certificate of registration, it is contended that the petitioner concern is conducting the activity of producing mixture fertilizers. 4 It is also apparent from the facts stated in the petition that the business of sale of fertilizers was rooted through the firm “Patel Narayandas Bhagwandas”. It also transpires that said firm had secured necessary certificate of registration for sale of {5} wp149399.odt fertilizers. However, it appears that the certificate of registration issued in favour of the said firm for sale of fertilizers came to be revoked on account of indulgence by the said concern in certain criminal activities. There was an allegation that the firm fraudulently appropriated the subsidy amount released by the Central Government under the scheme of sale of single super phosphate fertilizer by fabricating the record. It also transpires that some of the partners of the firm Patel Narayandas Bhagwandas are also the partners of the petitioner – firm. The Respondent No.5 – Quality Control Inspector & Fertilizer Inspector visited the petitioner’s manufacturing unit and on inspection, it was found by the said Respondent that the petitioner is dealing in the sale of fertilizers without securing a license / certificate of registration for sale prescribed under the Fertilizer Control Order. The Inspector, therefore, on 12.01.1998, ordered the petitioner to stop the sale of fertilizers and seized the stock lying in the premises of the petitioner. The petitioners was required to tender reply within twenty-one days. The petitioner submitted its reply to the said notice dated 12.01.1998 on 27.01.1998. The petitioner also tendered an application for issuance of certificate of registration for sale of fertilizers on the next day i.e. on 13.01.1998 and also tendered prescribed fees of Rs.300/- with the Registering office on 14.01.1998. The request for issuance of license / certificate of registration for sale of fertilizers has been turned down by Respondent No.3 by an order dated 28/29.07.1998 and {6} wp149399.odt the said order has been confirmed by the appellate authority i.e. Respondent No.2 on 12.01.1999. 5 In Writ Petition No.108/2000, challenge is raised to the order dated 17.03.1999 passed by the Respondent No.3 therein i.e. Additional Director of Agriculture (Input and Quality Control) refusing to renew the manufacturing license / certificate of registration and turning down the request made in that behalf by the petitioner and the appellate order passed by the Respondent No.2 therein i.e. Commissioner of Agriculture, Maharashtra State, Pune on 08.06.1999. The license / certificate of registration, issued under the provisions of Fertilizer Control Order, 1957 initially in the year 1982, was renewed from time to time and lastly an application for renewal was presented on 11.07.1995 to the competent authority by the petitioner on expiration of license / certificate of registration issued earlier, however, for the reasons stated in the order, the application came to be rejected and the said order passed by the Respondents refusing to renew the manufacturing license / certificate of registration, is subject matter of challenge in Writ Petition No.108/2000. 6 It is the contention of the petitioner that the petitioner was possessed of the manufacturing license / certificate of registration in respect of mixture of fertilizers issued in terms of clause 12 of the Fertilizer Control Order, 1957 and the same shall {7} wp149399.odt be deemed to be operative until revoked by issuing a specific order in that behalf. It is further contended that in view of clause 5 of the Fertilizer Control Order, 1957, the petitioner is not required to secure a separate certificate of registration for selling fertilizers. As such, the action of the Respondents directing the petitioner to secure a certificate of registration for sale of fertilizers and prohibiting the petitioner to deal with sale of fertilizers is bad in law. It is, thus, contended by the petitioner that manufacturing license for fertilizers / certificate of registration issued in favour of petitioner under clause 12 of the Fertilizer (Control) Order, 1957, includes the authorization to sell the fertilizers. It is further contended that although the petitioner was dealing in the activity of manufacturing mixture fertilizers since 1982, the Respondent- authorities never insisted for securing a separate selling license in the past. After the Respondent No.2 visited the factory and insisted for securing selling license (certificate of registration), the petitioner immediately tendered the application. It is further contended that in view of renewal of certificate issued in favour of the petitioner by the Respondents, which was in respect of manufacturing of mixture fertilizers under clause 18 of the Fertilizer (Control) Order, 1985, there is no necessity to secure a separate selling license. The petitioner, relying upon clause 12 of the Fertilizer (Control) Order, 1985, contends that the restriction imposed under the Control Order is in respect of “carrying on business of preparing any mixture of fertilizers”. It is contended {8} wp149399.odt that the term “business”, appearing in clause 12 of the Fertilizer (Control) Order, 1985, necessarily includes the activity of “sale” of fertilizers. It is, thus, contended that as the petitioner is possessed of the license (certificate of registration) for manufacturing mixture fertilizers, the petitioner is not required to possess a separate selling license. The order passed by Respondent No.3 refusing to grant license under clause 9 of the Fertilizer (Control) Order 1985 for sale of fertilizers is also challenged on several grounds. 7 The Respondents have controverted the contentions raised by the petitioner by filing an affidavit-in-reply. The contention raised by the petitioner that the petitioner is not required to secure a separate sale license / certificate of registration is controverted by the Respondents. It is contended that initially a license was issued to the petitioner – firm bearing No.384 on 25.10.1982 for production of 10 grades of mixture fertilizers. At the subsequent stage, license bearing No.397 was issued to the petitioner for production of 7 grades of mixture fertilizers and the same was valid up to 31.03.1992. The license issued to the petitioner was renewed thereafter considering the Government Notification and a fresh license bearing No.491 was issued in lieu of License No.397 for a period between 01.04.1992 to 31.03.1995. It is contended by the respondents that even though as per clause 5 of Fertilizer (Control) Order, 1957, the manufacturer is not required to take a separate sale license, but the revised {9} wp149399.odt Fertilizer (Control) Order of 1985 makes it mandatory for the manufacturer to secure a separate sale license. The license issued to the petitioner initially in the year 1982 was under Fertilizer (Control) Order, 1957. However, issuance of license in the year 1992 for a period between 01.04.1992 to 31.03.1995 was under the Fertilizer (Control) Order, 1985. The order of 1985 makes it mandatory even for a manufacturer to secure a separate sale license and, therefore, the argument advanced by the petitioner that the petitioner is not required to secure a separate license is unacceptable. It is also contended that the petitioner is dealing in the production of mixture fertilizers since 1982 and it cannot be presumed that the petitioner was unaware of the provisions of Fertilizer (Control) Order, 1985, which prescribes for a separate license / certificate of registration for the purposes of sale and manufacture of mixture fertilizers. The Respondents contend that the phrase “business” noted in clause 12 of the Fertilizer (Control) Order, 1985, cannot be construed to include the activity of “sale” of fertilizers by the manufacturer. The Respondents have also supported the reasons recorded in the orders passed by Respondents No.2 and 3 and urged to dismiss the petitions. 8 The Respondent No.3 has turned down the application tendered by the petitioner under clause 9 of the Fertilizer (Control) Order, 1985, on the grounds that: {10} wp149399.odt (A) The petitioner has indulged in the activity of manufacturing graded mixture fertilizers 17:17:17 and 7:10:5 and has violated the provisions of clause 12 and 13 of the Fertilizer (Control) Order, 1985. (B) The petitioner has indulged in the activity of selling and stocking of the fertilizers without possessing requisite license / certificate of registration for sale, as contemplated under Fertilizer (Control) Order, 1985. (C) The firm – Patel Narayandas Bhagwandas, which was dealing in the sale of fertilizers, produced by petitioner – Concern, has indulged in criminal activities and misappropriated lakhs of rupees by creating fabricated record for the purpose of claiming subsidy released by the Central Government in respect of sale of single super phosphate fertilizers and the Directors of the petitioner Company are also Directors of Patel Narayandas Bhagwandas, which Company is alleged to have indulged in criminal activities. (D) There is no name of the applicant recorded in “A” form and the letter head used for tendering the application is of Patel Seeds Private Limited. Thus, there is difference in the name of the Company. {11} wp149399.odt (E) The sale certificate (certificate of registration) is requested for grade 7:10:5 in respect of which there is no manufacturing license with the Company. There is discrepancy in the number quoted in “O” form in respect of manufacturing license / certificate of registration. The appellate authority, while considering the appeal tendered by the petitioner, has confirmed the findings recorded by the Respondent No.3 in respect of all the five grounds. 9 The Fertilizers (Control) Order, 1957, defines “Dealer”, as a person carrying on the business of selling fertilizers whether wholesale or retail, and includes an agent of a dealer. The “manufacturer” is defined as, a producer and a person who mixes fertilizers and expression `manufacture’ with its grammatical variations shall be construed accordingly. Clause 5 of Fertilizer (Control) Order, 1957, requires a dealer to obtain certificate of registration and it prescribes that: No person shall carry on the business of selling fertilizer at any place except under and in accordance with the terms and conditions of certificate of registration granted to him under this Order. 10 Clause 12 of the Fertilizer (Control) Order, 1957, {12} wp149399.odt provides for grant and refusal of certificate of registration. Although Fertilizer (Control) Order, 1957, does not mandate requirement of having a separate selling license by the manufacturer, the said Order, however, provides for securing separate license by the dealer and the manufacturer. It is not controverted that the petitioner had secured a license / certificate of registration under clause 12 of Fertilizer (Control) Order, 1957, which has been renewed from time to time. It also cannot be controverted that the License bearing No.384 was issued on 25.10.1982 for production of 10 grades of mixture fertilizers, which was valid until issuance of separate license bearing No.397 for production of 7 grades of mixture fertilizers on 17.02.1984 and the said license was valid up to 31.03.1992. It also cannot be controverted that the petitioner had secured a fresh license bearing No.491 for the period between 01.04.1992 to 31.03.1995 from the competent authority. The Fertilizer (Control) Order, 1957, is repealed and replaced by the Fertilizer (Control) Order, 1985. The definition of “dealer” has undergone change in the 1985 Order. The term “dealer” has been defined as, “a person carrying on the business of selling fertilizers, whether wholesale or retail (or industrial use), and includes a manufacturer and a pool handling agency carrying on such business and the agents of such person, manufacturer or pool handling agency”. Thus, the term “dealer” is inclusive of a person carrying on business of selling fertilizers as well as a manufacturer. Clause 7 of Fertilizer (Control) Order, 1985 {13} wp149399.odt provides for registration of dealer including manufacturer. The procedure for securing a certificate of registration for selling fertilizers has been prescribed in clauses 8 and 9 of Fertilizer (Control) Order, 1985, whereas, clause 14 of the Order provides for tendering an application for certificate of registration of manufacture of mixtures of fertilizers, whereas, clause 15 deals with grant or refusal of certificate of manufacture for preparation of mixture of fertilizers. Thus, it is clear that the manufacturer is also required to secure a separate selling license / certificate of registration under Fertilizer (Control) Order, 1985. 11 The argument advanced by learned Counsel for the petitioner that as the petitioner possesses a manufacturing license issued under clause 12 of Fertilizer (Control) Order, 1957, the Company is not required to secure a separate license for dealing in the sale of mixture fertilizers is unacceptable. It is also to be taken note of that although the certificate of registration is issued under clause 12 of the Fertilizer (Control) Order, 1957 in respect of manufacturing of mixture fertilizers, the same was renewed from time to time. The registration certificate / license issued in the year 1992 was surely under Fertilizer (Control) Order, 1985. Thus, the petitioner cannot be permitted to deal in the sale of mixture fertilizers without securing a registration certificate / license, as contemplated by clauses 7, 8 and 9 of the Fertilizer (Control) Order, 1985. {14} wp149399.odt 12 The petitioner also contends, relying on clause 39 of the Fertilizer (Control) Order, 1985 that the orders passed under Fertilizer (Control) Order, 1957, are specifically saved and as such the petitioner is not required to secure a separate selling license. Clause 39 of the Fertilizer (Control) Order, 1985 is quoted below: 39 Repeal and saving:- (1) The Fertiliser (Control) Order, 1957 is hereby repealed and except as respects things done or omitted to be done under the said Order before the commencement of this Order. (2) Notwithstanding such repeal, an order made by any authority, which is in force immediately before the commencement of this Order and which is consistent with this Order, shall continue in force and all appointments made, prices fixed, certificates granted and directions issued under repealed Order and in force immediately before such commencement shall likewise continue in force and be deemed to be made fixed, granted or issued in pursuance of this order till revoked. 13 Clause 39 (1) saves the things done or omitted to be done under 1957 Order before commencement of 1985 Order. It is to be noted that even if the Fertilizer (Control) Order, 1957 does not specifically mandates requirement of securing registration certificate / license for sale of fertilizers by the manufacturer, the 1985 Order specifically mandates so. The license issued for {15} wp149399.odt manufacture and sale of fertilizers in the year 1992 in favour of petitioner, which was valid till 1995, is surely under the Fertilizer (Control) Order, 1985. It cannot be denied that 1985 Order mandates a dealer’s license / registration even by the manufacturer of mixture fertilizers. Thus, the argument based on interpretation of clause 39 of the 1985 Order is unacceptable. 14 It is also the contention of the petitioner that the license / certificate of registration in respect of manufacturing of mixture fertilizers issued under the Fertilizer Control Order, 1957 initially in the year 1982, shall be deemed to be valid until the same is revoked. Reliance is placed on Clause 39 of the Fertilizer Control Order, 1985 in support of the argument. It is to be noted that registration of manufacturing mixture fertilizers issued under the Fertilizer (Control) Order, 1957 was renewed from time to time. It is also not controverted that in the year 1992, certificate of registration / license was issued in respect of production of mixture fertilizers and the same was valid for three years. In view of the provisions of clause 10 as well as clause 17 of the Fertilizer (Control) Order, 1985, the validity of certificate for dealer’s license as well as manufacturing license is for three years. The petitioner, admittedly, did not have the dealer’s license. However, the license issued in the year 1992 in respect of manufacture of mixture fertilizers also expired in the year 1995. The contention raised by the petitioner that it is not required to secure a separate dealer’s {16} wp149399.odt license is devoid of merit. In this view of the matter, reliance placed by the petitioner on clause 39 for contending that the license issued in favour of the petitioner, which was, in fact, restricted to manufacturing of mixture fertilizers, shall be deemed to be continued until same is revoked, is devoid of merit. 15 The petitioner has assailed the order passed by Respondent No.3 as well as the appellate order passed by Respondent No.2 contending that the grounds noted in the order for turning down the request made by the petitioner are baseless and the request extended for issuance of dealer’s license ought not to have been rejected. One of the reasons recorded in the order is that the petitioner has indulged in production of mixture fertilizers of grades 17:17:17 as well as 7:10:5 without having any authorization in that behalf and as such, committed breach of clauses 12 and 13 of the Fertilizer (Control) Order, 1985. The petitioner did not possess the authorization for production of the grades specified in the order and has produced the mixture fertilizers of the grades specified in para 1 of the order and as such, committed breach of clauses 12 and 13 of the Fertilizer (Control) Order, 1985. It is also evident, on perusal of record, that the petitioner has indulged in sale of mixture fertilizers without having a valid dealer’s license contemplated by provisions of clause 7 of the Fertilizer (Control) Order, 1985. It is also noted in the orders passed by Respondents No.2 and 3 that the firm Patel {17} wp149399.odt Narayandas Bhagwandas was dealing in the sale of mixture fertilizers produced by the petitioner Company as well as the said firm was also dealing in the sale of single super phosphate manure. The said firm Patel Narayandas Bhagwandas indulged in criminal act of misappropriation of amount of subsidy released by the Central Government in respect of manure single super phosphate and as such, there were about 26 criminal offences registered against the said firm. Three of the Directors of petitioner Company, by name – Anilkumar Patel, Pravinkumar Patel and Darshankumar Patel were partners of the said firm. As a result of indulging in criminal activities by the firm Patel Narayandas Bhagwandas, the dealer’s license issued in favour of the said firm was revoked with effect from 05.08.1996. The source mentioned in the sale’s certificate by the said firm i.e. Fertiland Industries – petitioner has, as such, automatically got cancelled since 05.08.1996. The petitioner Company, however, indulged in the activity of sale of mixture fertilizers since 05.08.1996 onwards without securing a dealer’s license / certificate of registration, as contemplated by the Fertilizer (Control) Order, 1985. 16 There are also other three grounds noted in the order in support of the action of rejection of the request extended by the petitioner for grant of dealer’s licence / certificate of registration. It is not necessary to go into the other grounds noted in the order for the reason that if the impugned order is sustainable even on one {18} wp149399.odt ground, there is no need to cause interference in the orders passed by the Registering authority as well as the appellate authority in exercise of extraordinary jurisdiction by this Court. 17 Reliance can be placed on the judgment of the Apex Court in the matter of Swarn Singh and another Vs. State of Punjab and others, reported in AIR1976 SC 232. The Apex Court has observed in para 18 of the judgment, thus: “Where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision.” In the case of Zora Singh Vs. J.M.Tandon and others, reported in AIR 1971 SC 1537, the Apex Court has observed thus: “The principle, that the decision of a Tribunal would be vitiated if some of the reasons relied on by it for its conclusions turn out to be extraneous or otherwise unsustainable, applies to cases in which the conclusion is arrived at on subjective satisfaction. For, in such cases it would be difficult for superior Court to find out which of {19} wp149399.odt the reasons brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, if it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a Superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in writ petition for certiorari the Superior Court does not sit in appeal, but exercises only supervisory jurisdiction and therefore does not enter into question of sufficiency of evidence.” 18 The petitioner also contends that the order passed by Respondent No.3 on 28/29.07.1998 is unsustainable for the reason that the Government Resolution dated 15.11.1996 authorises the Agricultural Extension Officer of the Zilla Parishad to deal with the applications for issuance of dealer’s licence / certificate of registration in respect of the applicants who