Dismissed

M/s Ganesh Traders v. The State Of Bihar and Ors.

Patna HC16 Oct 2014CWJC/13237/2014

Case brief

AI extract

What is this about?

Petitioners challenging a fertilizer supply restriction order filed withdrawal prayers due to lack of instructions. The High Court dismissed the writ applications as not pressed while reserving the final adjudication on jurisdiction and constitutional violations.

What did the court decide?

Writ applications dismissed as not pressed; petitioners barred from moving the Court again for the same cause of action.

M/s Ganesh Traders Vs The State Of Bihar and Ors. — Service and Employment | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13194 of 2014

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M/s Kisan Sewa Kendra having its place of business at P.O Basmatiya Bazar, P.S. Basmatiya, District- Araria through its proprietor Sri Dineshwar Prasad Gupta Son of Late Devki Prasad Gupta R/o at P.O. Basmatiya Bazar, P.S. Basmatiya, District- Araria

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.... .... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary Cum Commissioner, Department of Agriculture Govt. of Bihar, Patna.

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The District Agricultural Officer, Araria. 3. The District Magistrate cum Collector, Araria.

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The Superintendent of Police, Araria.

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The Officer In- Charge Ghurna Bazar, Police Station, Araria.

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.... .... Respondent/s

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with

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Civil Writ Jurisdiction Case No.13212 of 2014

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====================================================== M/s Diamond Khad Beej Bhandar, having its place of business at Village and P.O AND P. S. Basmaiya Bazar, District- Araria, through its proprietor Sri Ranjeet Prasad Gupta S/o Heera Prasad Gupta R/o Village and P.O AND P.S. Basmaiya Bazar, District- Araria.

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.... .... Petitioner/s

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Versus

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The State of Bihar through The Principal Secretary cum Commissioner, Department of Agriculture Govt. of Bihar, Patna.

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The District Agricultural Officer, Araria.

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The District Magistrate cum Collector, Araria.

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The Superintendent of Police, Araria.

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The Officer- In- Charge, Ghurna Bazar, Police Station, Araria.

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.... .... Respondent/s

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with

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Civil Writ Jurisdiction Case No.13237 of 2014

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M/s Ganesh Traders having its place of business at Village Dumarbanna, P.O. Basmatiya, P.S. Ghurna, District - Araria through its proprietor Sri Sushil Pathak S/o Sri Raj Kishore Pathak R/o Village Dumarbanna, P.S. Basmatiya, P.S. Ghurna, District Araria.

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.... .... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary Cum Commissioner, Department of Agriculture Govt. of Bihar, Patna.

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The District Agricultural Officer, Araria.

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The District Magistrate cum Collector, Araria.

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The Superintendent of Police, Araria.

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The Officer-in-Charge, Ghurna Bazar Police Station Araria.

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.... .... Respondent/s

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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with

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Civil Writ Jurisdiction Case No.13363 of 2014

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M/s Mahavir Khad Beej Bhandar having its place of business P.O. AND P.S. Ghurna Bazar, District- Araria through its proprietor Bajrang Kumar Nahar S/o Late Balhan Nahar, R/o P.O. AND P.S. Ghurna Bazar, DistrictAraria

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.... .... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary Cum Commissioner, Department of Agriculture Govt. of Bihar, Patna

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The District Agriculture Officer, Araria

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The District Magistrate cum Collector, Araria

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The Superintendent of Police, Araria

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The Officer-in-Charge, Ghurna Bazar Police Station, Araria

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.... .... Respondent/s

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======================================================

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with

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Civil Writ Jurisdiction Case No.13400 of 2014

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M/s Shivam Khad Bhandar having its place of business at P.O. Basmatiya Bazar, P.S.- Basmatiya, District- Araria null through its proprietor Sri Ranjeet Sah, S/o Sri Yadunandan Sah, R/o at P.O. Basmatiya Bazar, P.S. Basmatiya, District- Araria

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.... .... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary cum Commissioner, Department of Agriculture Govt. of Bihar, Patna

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The District Agriculture Officer, Araria

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The District Magistrate cum Collector, Araria

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The Superintendent of Police, Araria

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The Officer-in-Charge, Ghurna Bazar Police Station, Araria

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.... .... Respondent/s

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with

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Civil Writ Jurisdiction Case No.13232 of 2014

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M/s Khushboo Khad Beej Bhandar having its place of business at P.O. AND P.S. Ghurna Bazar, District - Araria through its proprietor Sri Arun Kumar Sah S/o Sri Nagendra Prasad Sah R/o P.O. AND P.S. Ghurna Bazar, District - Araria.

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.... .... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary cum Commissioner, Department of Agriculture, Govt. of Bihar, Patna.

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The District Agricultural Officer, Araria. 3. The District Magistrate cum Collector, Araria. 4. The Superintendent of Police, Araria. 5. The Officer-in-Charge, Ghurna Bazar Police Station Araria.

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.... .... Respondent/s

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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==================== Appearance : (In CWJC No.13194 of 201	================================== 4)
For the Petitioner/s :	Mr. Gautam Kumar Kejriwal, Adv.
For the Respondent/s : (In CWJC No.13212 of 201	Mr. Raju Giri, GP30 4)
For the Petitioner/s :	Mr. Gautam Kumar Kejriwal, Adv.
For the Respondent/s : (In CWJC No.13237 of 201	Mr. Smt. Geeta Kumari, GP28 4)
For the Petitioner/s :	Mr. Gautam Kumar Kejriwal, Adv.
For the Respondent/s :	Mr. Harish Kumar, GP32
(In CWJC No.13363 of 201	4)
For the Petitioner/s :	Mr. Gautam Kumar Kejriwal, Adv.
For the Respondent/s :	Mr. N.K. Singh, GP26
(In CWJC No.13400 of 201	4)
For the Petitioner/s :	Mr. Gautam Kumar Kejriwal, Adv.
For the Respondent/s : (In CWJC No.13232 of 201	Mr. Smt.Binita Singh, GP31 4)
For the Petitioner/s :	Mr. Gautam Kumar Kejriwal, Adv.
For the Respondent/s : ==================== CORAM: HONOURABL ORAL ORDER	Mr. Purnendu Singh, GP27 ================================== E MR. JUSTICE MIHIR KUMAR JHA

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4 16-10-2014 Heard learned counsel for the parties as with regard to identical relief sought in these writ application which reads as follows:-

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"(a) For issuance of a writ in the nature of certiorari for quashing of the order dated 06.09.2012 bearing Memo No. 48 issued by the respondent District Agriculture Officer, Araria (hereinafter referred to as DAO for ready reference) whereby and whereunder restrictions have been imposed over the wholesale dealers of fertilizers in the Araria District for sale and supply of not more than two metric tons (40 bags) at a time to the dealers like the petitioner being violative of the fundamental right to freedom of trade and profession guaranteed under Article 19(1)(g) and being contrary to the spirit of Article 19

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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(6) of the Constitution of India as well as without jurisdiction in terms of the related rule of law;

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(b) For issuance of a declaration that the respondent DAO, Araria has got no authority in law to impose any such restrictions affecting the right to freedom of trade and business of the petitioner and other similarly situated dealers having valid certificate or registration except in accordance with the procedure prescribed in law;

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(c) For a declaration that neither the respondent Collector, Araria nor the commandant of 24th Battalion Sashasta Seema bal Bathnaha had any jurisdiction and authority to direct or persuade the respondent DAO, Araria to pass the impugned order imposing any such restriction in light of the position that neither of the said authority could impose any such restriction over the quantum of stock to be supplied by the wholesale dealer to the petitioner in terms of statutory law and thus the impugned order dated 06.09.12 deserves to be quashed and held ultra vires in law;

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(d) For restraining the respondents from interfering with the freedom of trade and business of the petitioner recognized by Article 19(1) (g) of the Constitution of India by issuing and executing the impugned order;

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(e) For a declaration that owing to illegal, arbitrary and unreasonable restriction imposed by the respondent DAO at the instance of respondent

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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Collector, Araria and the commandant of 24th Battalion Sashastra Seema Bal, Bathnaha, the petitioner is unable to carry on its business of fertilizer as retail dealer to the satisfaction of demand of its consumers as well as the competitive forces in the market and as such is unable to exercise its right to freedom of trade and occupation guaranteed under Article 19(1) (g) of the Constitution of India."

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Considering the elaborate submissions made by the learned counsel for the parties this Court on 15.9.2014 had passed an exhaustive order which is also reproduced herein-below:-

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"Heard learned counsel for the parties.

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In all these writ applications, the order of the District Agriculture Officer dated 06.09.2012 has been assailed by the petitioners, who are the retail dealers of fertilizer in the District of Araria.

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From a bare reading of the order dated 06.09.2012, it would appear that the said order was passed by the District Agriculture Officer, Araria, who is the licensing authority, in respect of retail dealers of fertilizer in the District of Araria, under certain circumstances as has been itself enumerated in the impugned order, which for the sake of clarity and convenience, is quoted hereinbelow:

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^^dk;kZy;] ftyk d`f"k inkf/kdkjh] vjfj;k vkns'k

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ftyk inkf/kdkjh] vjfj;k ds i=k a d 01@fo0 fnuk a d 03-01-2012 ,o dekUMs a a V 14oh a cVkfy;u l'kL= lhek cy c/kukgk ds i=k a d 81&84 fnuk a d 02-01-2012 ds vkyksd es a vjfj;k ftyk ds lHkh Fkksd fodzrkvks a dks vkns'k fn;k tkrk gS fd mijksDr i= ds vkyksd es a rRdky rRdkfyd izHkko ls lhekorhZ iz[k a M ds lhekorhZ [kqnjk fuc a f/kr [kkn fodzsrkvks a dks vxys vkns'k rd lHkh izdkj ds jklk;fud moZjd ,d le; es a ,d ckn nks es0 Vu ls vf/kd moZjd dh vkiwfrZ ugh a djs a xsA vkiwfrZ dh lwpuk v|ksgLrk{kjh dks ,o a iz[k a M d`f"k inkf/kdkjh dks eksckbZy eSlst ls ,o a fyf[kr :i ls n s x a s fd vkids }kjk mDr lhekorhZ {ks= ds fdl&fdl

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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[kqnjk fodzrkvks a dks vki ds }kjk moZjd dh vkiwfrZ fd;k x;k gSA lkFk gh lHkh [kqnjk moZjd fodzrkvks a dks funsf'kr djs a xs fd moZjd fu;=.k vkns'k 1985 dk iw.kZ a :i ls ikyu djs a xsA

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ftyk d`f"k inkf/kdkjh vjfj;kA Kkik a d --------@--------- fnuk a d --------------- **

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Mr. Gautam Kumar Kejriwal, learned counsel for the petitioners, in all these cases, has basically concentrated on the aspect that the impugned order was wholly without jurisdiction inasmuch as in terms of the Fertilizer (Control) Order, 1985, the District Agriculture Officer, Araria even in capacity of the licensing authority of the retail dealers, has been vested with no power to put restriction on sale of fertilizer much less limit such sale by wholesale dealers to the retail dealers to a specified quantity of two metric tons in one transaction.

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This Court, having taken note of the aforementioned submission, had directed the District Agriculture Officer, Araria, the author of the impugned order, to file his counter affidavit. In the counter affidavit, which has been filed by the District Agriculture Officer, Araria, he has taken the following defence in support of the impugned order:

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"8. That with regard to the statements made in paragraph 14 of the present petition under reply, it is submitted that the petitioner as retail dealer of fertilizer having certificate of Registration under the Fertilizers Control Order, 1985. The Petitioner is statutorily bound to purchase the fertilizer for sale from the registered wholesale dealer of fertilizers having its place of business at Forbesganj, Araria from whom the petitioner purchases the stock fertilizers for the purpose of retail trade.

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9. That with regard to the statements made in paragraph 16 of the present petition under reply, it is submitted that the answering respondent with reference to letter no. 1 dated 03.01.2012 of the District Magistrate, Araria and letter no. 81-84 dated 02.01.2012 of 24th Battalion, Bathnaha issued order vide Memo No. 48 dated 06.01.2012 (Annexure-2 to the writ petition) to all the wholesale dealers of the Block of Border area not to supply fertilizers (including all types of fertilizers) more than two metric tons i.e. 40 bags of fertilizers at one time

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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to a retail dealer having certificate of registration of border area. The said order was issued to prevent smuggling of fertilizers and welfare of the border people. It is pertinent to mention that though there are many licensed shops in the border area, the fertilizers are not easily available and are not reasonably priced as the same are not sold to the local villagers of India but are smuggled across the border.

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10. That with regard to the statements made in paragraph 17 of the present petition under reply, it is submitted that in accordance with the order issued by the answering Respondent and the District Administration, Araria, the authority has been withholding the vehicles carrying the stock of the petitioner and other such dealers for the purpose of verification of the bills and invoices in order to ascertain the quantity of stock purchased by the dealer from the wholesale dealer. The answering respondent issued the order to the wholesale dealer not to supply more than two metric tons i.e. 40 bags of fertilizers to the realer dealer at one time. This restriction was imposed upon the wholesale dealer due to the fact that the fertilizers are being smuggled by some anti-social elements, to the countries adjoining the border areas. The Government of India requested the State Government to prevent smuggling of the fertilizers. The Government of India gives subsidy on the fertilizers with the object to supply the fertilizers on lesser price to the farmers. In comparison to the price of fertilizers in countries adjoining the border areas the prices of fertilizers in India is less. The anti-social elements, for their individual gain, smuggle the fertilizers obtained on subsidized rates to the countries adjoining to the border areas like Nepal and Bangladesh.

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12. That with regard to the statements made in paragraph 19 of the present petition under reply, it is stated that the answering Respondent vide its letter no. 48 dated 06.01.2012 imposed the restriction upon the wholesale dealer of fertilizers in the District of Araria from making sale and supply of fertilizers of only 2 metric tons i.e. 40 bags to the retail dealers at a time. 13. That with regard to the statements made in paragraph 20 & 33 of the present petition under reply, it is stated that though there is no provision of imposing restriction by the answering Respondent, but due to administrative view of the matter and for preventing smuggling of fertilizers by the anti-social elements in accordance with the directions of the Central Government, the answering respondent issued the impugned letter to the wholesale dealer not to supply more than two metric tons i.e. 40 bags of fertilizers to a retail dealer at one time.

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14. That with regard to the statements made in paragraph 22 of the present petition under reply, it is submitted that it is true that the central government may

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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impose some conditional restriction, but due to the smuggling and black marketing of fertilizers, the authorities had to impose restriction upon the wholesale dearer fixing quantum of fertilizers with object of preventing kala Bazari and smuggling by the anti-social element. Due to Smuggling and Black marketing the farmer of the border area have to suffer for want of fertilizers. Hence, the respondent have to impose restriction upon the whole-sale dealer so that the farmers of Border area may not suffer for want of fertilizers.

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15. That with regard to the statements made in paragraph 23 of the present petition under reply, it is submitted that the answering Respondent had to restrict the quantum of stock to be supplied by the whole-sale dealer to retail dealer, due to the paucity of fertilizers available to the farmers of the border area caused by smuggling of fertilizers.

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16. That with regard to the statements made in paragraph 24 of the present petition under reply, it is submitted that the petitioner can easily meet the local demand of the farmers, if they purchase the next 40 bags of fertilizers at a time from the whole sale dealers as the restriction is only to the extent of two Metric tons i.e. 40 bags at one time. There is no restriction on the retail dealers to purchase next 40 bags of fertilizers. The restriction is on the wholesale dealer to supply only 40 bags of fertilizers at a time to the retail dealer of fertilizers of the border area.

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20. That with regard to the statements made in paragraph 28 and 29 of the present petition under reply, it is stated that the impugned letter was issued with a view of prevent smuggling and was a consequence of the direction of the Central Government to prevent smuggling in the boarder area.

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21. That with regard to the statements made in paragraph 30 of the present petition under reply, it is stated that the reason behind imposing restriction upon the wholesale dealer not to supply more than 40 bags at a time are well mentioned in the letter no. 1 dated 03.01.2012 and letter of the Commandant Batalian No. 24 bearing NO. 81-84 dated 02.01.2012.

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24. That with regard to the statements made in paragraph 34 of the present petition under reply, it is stated that the restriction imposed by the answering Respondent does not in any manner restrict the right to freedom of trade of the petitioner. The retail dealer can purchase 40 bags of fertilizers at a time and after sale of 40 bags to the farmers further 40 bags of fertilizers can be purchased from the wholesale dealer by the retailers."

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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Learned counsel for the State has also placed reliance on the letter of Commandant, 24 Battalion, Sashastra Seema Bal (SSB), Bathnaha dated 02.01.2012, which would go to show that huge quantity of fertilizer was being smuggled in the neighbouring country of Nepal and as such the District Magistrate, Araria was directed to take remedial steps. The District Magistrate, Araria, in fact, having received the aforementioned communication of the Commandant, had also written letter to the District Agriculture Officer, Araria to take remedial action whereafter the impugned order was issued on 06.01.2012.

¶120

Reliance also has been placed by the learned counsel for the respondents on a letter of the Principal Secretary of the Agriculture Department dated 15.06.2012 wherein he has given reference to the letter of the Secretary in the Ministry of Fertilizer and Chemical dated 10.05.2011 wherein immediate measures were directed to be taken for stopping the smuggling of fertilizer in the bordering countries.

¶121

In this regard, the Principal Secretary of Agriculture Department had laid stress on the aspect that as the Government of India was subsidizing the cost of fertilizer for the benefit of agriculturists and farmers of India but on account of smuggling of the fertilizer, the real benefit was not being given to the farmers of India and at the same time on account of smuggling of fertilizer in the neighbouring country of India, the financial burden by way of grant of subsidy on fertilizer was repeatedly increasing, steps were to be taken for preventing the smuggling of fertilizer.

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In nutshell, while the petitioners have taken a strict legal view, as per the provisions of Fertilizer (Control) Order, 1985, on account of the licensing authority being not vested with any power to limit the supply of fertilizer by the wholesale dealers to retail dealers, the respondent, specially, the District Agriculture Officer, Arariah has taken a plea of larger public interest including the perennial loss of revenue on account of smuggling of fertilizer in the neighbouring countries of India. Though the

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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District Agriculture Officer, Araria has tried his best to explain necessity of issuing the impugned order but there are many gaps which have not been filled probably on account of the matter being not brought to the cognizance of the Principal Secretary by the District Agriculture Officer, Araria. In such a situation, before this Court would finally adjudicate the issue raised in the batch of these writ applications, it would, firstly, direct the Principal Secretary of the Agriculture Department to file a supplementary counter affidavit in consultation with the District Agriculture Officer, Araria on the following aspects:-

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(i) Whether the Government of India has issued any direction to the State Government restricting the supply of fertilizer by the wholesale dealers to the retail dealers including in the D.O. letter of the Secretary in the Ministry of Chemical & Fertilizer bearing No. 06-13/2011-FM dated 10.05.2011, as referred in the letter of the Principal Secretary of the Agriculture Department dated 15.06.2012 (Annexure-B to the counter affidavit)?

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(ii) What is the total agricultural area in Araria District?

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(iii) What has been quantity for supply of fertilizer to the Araria District in last three years i.e. 2011-12, 2012-13 and 2013-14?

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(iv) What is total number of wholesale dealers and retail dealers of fertilizer in Araria District and how many of them are situated in border areas.

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(v) What is the total amount of supply of fertilizer in Araria District, with full figures of its sale by the wholesale dealers to the retail dealers including the petitioners of these cases, in the last three years of 2011-12, 2012-13 and 2013-14?

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(vi) What is the terms and conditions of the licences of the wholesale dealers and retail dealers of fertilizer?

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(vii) Is there any control on sale/distribution of fertilizer by the licensing authority or through the fertilizer inspector?

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Since all these information may enable this

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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Court to decide the questions raised in these writ applications effectively, this Court would direct the Principal Secretary of the Agriculture Department to consider all these aspects in relation to the impugned order passed by the District Agriculture Officer, Araria and also come out on the any other ancillary aspect which may have escaped the attention of this Court while passing this interim order.

¶137

At this stage, learned counsel for the State prays for and is allowed four weeks time to file a supplementary counter affidavit. Such supplementary counter affidavit, however, either must be sworn by the Principal Secretary of the Agriculture Department himself in consultation with the District Agriculture Officer, Araria or any other authorities including the Secretary to the Ministry of Chemical & Fertilizer of the Government of India.

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Put up all these cases after four weeks for further hearing, under the same heading within first ten cases.

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Let a copy of this order be given to Mr. Lalit Kishore, learned P.A.A.G. for its strict compliance by all concerned as also for his rendering assistance to this Court in the disposal of these writ applications keeping in view that five Government counsels appearing in these cases are not in a position to assist this Court in proper and effective manner.

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Today Mr. Gautam Kumar Kejriwal, learned counsel

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for the petitioners, has sought permission to withdraw these writ applications stating that he has got no instruction to press the same.

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Learned counsel for the State has got no objection to

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such prayer of withdrawal of these writ petitions.

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Patna High Court CWJC No.13194 of 2014 (4) dt.16-10-2014

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All these writ applications are, accordingly, dismissed as not pressed but, it is made clear that the petitioners now will have no liberty to move this Court again for the same cause of action raised herein.

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(Mihir Kumar Jha, J)
Rishi/-
U

M/s Ganesh Traders v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

M/s Ganesh Traders v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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