Micro Agrovit (India) vs The State of Bihar and Others

Shiva Kirti Singh, J.—Heard the parties.

Petitioner claims to be a small manufacturing unit engaged in manufacture of Micronutrient product for which a licence under the provisions of Fertilizer (Control) Order, 1985 is required to be obtained because the product is treated as fertilizer. Petitioner admittedly, was granted such licence in the year 1994 which was renewed in the year 1997-98 but his prayer for further renewal was rejected by order dated 1.8.2000 issued by the Agriculture Director. A copy of the said order has been annexed as Annexure-1. The appeal against aforesaid order has also been rejected by agriculture Production Commissioner by order dated 19.4.2001, a copy whereof has been annexed as Annexure-2. Petitioner has filed this writ petition for quashing of both the orders contained in Annexures-1 and 2 and for a direction to the concerned Respondents, to renew Petitioner''s licence granted earlier in accordance with law.

The controversy and the dispute has arisen on account of provisions in Clause 21-A of the Fertilizer (Control) Order, 1985 (hereinafter referred to as the (Control Order) which runs as follows:

Every manufacturer shall, in order to ensure quality of their product, possess the minimum laboratory facility, as may be specified from time to time, by the Controller.

It is not in dispute that the laboratory facility has been specified through a notification dated 16th April, 1991 as contained in Annexure-7.

Petitioner''s case is that as the manufacturer, in order to ensure quality of his product, he possesses the specified minimum laboratory facility through an agreement and arrangement with a qualified laboratory situated close by and such facility was the basis for grant of licence to him in the year 1994 and it was renewed in 1998. His grievance is that although he has produced the latest deed of agreement dated 17th April, 2000 entered by him with the proprietor of the licenced and qualified laboratory (part of Annexure-9 series) yet by Annexure-1, the renewal was refused on an impermissible ground that the laboratory facility was not situated within the premises where manufacturing was done. According to Petitioner Clause 21-A requires the manufacturer to possess the requisite laboratory facility without specifying that such facility must be possessed within the premises where manufacturing is done.

The aforesaid ground of attack against the order contained in Annexure-1 appears to be valid and the same has also been accepted by the appellate authority in the order dated 19.2.2001, contained in Annexure-2. The appellate authority, however, considered the legal implications flowing from the use of the word "possession" in Clause 21-A and after discussing its definition in various books and dictionaries came to a. conclusion that although the Petitioner has facility for testing his products but this facility given to him by the laboratory does not confer upon him the right to possess the laboratory. According to the appellate authority the word ''possess'' in Clause 21-A must mean rightful possession over the entire laboratory where manufacturer can test the quality of his product. On this ground the appellate authority refused to accept Petitioner''s claim for renewal of his licence.

Learned Counsel appearing for the Petitioner referred to some judgments to highlight that possession is possible even without right to possess. Such possession cannot be held illegal unless the rightful owner-comes forward to challenge such possession. In the facts of the present case, this Court is of the view that judgments cited on behalf of Petitioner which related to possession over property in cases of civil dispute, are not relevant or useful. The interpretation of the word possession in Clause 21-A of the Control Order must be such so as to achieve and advance the purpose of the Control Order. The purpose is quite obvious and clearly spelt out. Quality of product can be ensured only when the minimum laboratory facility is within the control of the manufacturer which he can use whenever required. For achieving the required quality control, it is not necessary that the laboratory facility must be within the premisses of manufacturer or must be owned by the manufacturer and hence Clause-21-A does not use the word "own along with word" possess". It does not even specify the place where the laboratory facility should be situated. Thus, the relevant provision in Control Order places emphasis only upon possession of minimum laboratory facility. It is left to the discretion of the licensing authority to decide on the facts of the each case whether the claim of the manufacturer that he possesses the minimum laboratory facility is genuine or not. If the distance of the laboratory facility from the manufacturing premises is so great that it is not practical to avail of the facility as and when really required, the licensing authority will have power to hold that in such a case, the manufacturer really does not possess the laboratory facility. Similar may be the situation where there is no agreement to ensure that the laboratory facility will always be available to the manufacturer so as to enable him to have the desired quality control. These relevant considerations, however, cannot be stretched to hold as was done by the licensing authority in the impugned order-contained in Annexure-1, that the laboratory facility must be possessed within the manufacturing premisses or to hold, as was done by the appellate authority, that the manufacturer should not only show that he possesses the minimum laboratory facility but must also prove his right to possess the laboratory.

The present legislative policy as reflected by Clause 21-A of the Control Order does not require the laboratory facility to be situated in the manufacturing premises nor it requires manufacturer to possess as well as own the minimum laboratory facility. In case the authorities under the Control Order feel the necessary for charge in policy, they may take up the matter with the concerned Government for necessary amendments. But the provisions as they stand do not justify the rejection of the Petitioner''s application for renewal of licence when the material produced by him show that he has within his control a minimum laboratory facility as required by Clause 21-A of the Contra Order. This facility has been available with him since 1994 and now he has secured it with a better agreement and hence this Court is constrained to hold that Petitioner''s prayer for renewal of licence has been wrongly rejected by the authorities and the impugned orders contained in Annexures 1 and 2 are against, law.

As a result the writ application is allowed and the impugned orders dated 1.8.2000 and 19.4.2001 as contained in Annexures 1 and 2 respectively are hereby quashed. The Respondents are directed to pass necessary orders with regard to renewal of Petitioner''s licence in accordance with law and the observations given above within two weeks from the date of production/communication of a copy of this order before Respondent No. 2.

In the facts of the case, there shall be no order as to costs.