BALRAJ NARINDER KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners numbering 47, who are dealers of fertilizers, have filed this petition under Article 226 of the Constitution seeking to quash the notification dated 9 June 1994 issued by the Government of India in the Ministry of Agriculture under Sub-clause (1) of clause 3 of the Fertilizer (Control) Order, 1985, whereby the Central Government fixed w.e.f. 10 June 1994 maximum price per tonne at which three fertilizers specified in the notification shall be sold by the dealers but at the same time the notification made it clear that stock of these three categories of fertilizers held by the dealers before and after the coming into force of the notification shall be sold at the old rates fixed under the notification dated 25 August 1992. It is this latter part of the notification dated 9 June 1994 with which the petitioners are aggrieved. The three fertilizers mentioned in the notification are (1) Urea (46% N), (2) Anhydrone Ammonia, and (3) Zincated Urea.

(2.) The fertilizer being an essential commodity the Fertiliser Control Order, 1985 (for short 'the Order') has been promulgated under the provisions of the Essential Commodities Act, 1955 (for short 'the Act'). The impugned notification has been issued in pursuance to sub-clause (1) of clause 3 of the Order. Petitioners admit that cost of manufacture of fertilizers is much more than the sale price and, thus, it is not remunerative for the manufacturers to manufacture fertilizers and sell the same at reduced prices governed by the Order. Respondent No.1, therefore, framed a scheme under which it was decided to compensate the manufacturers in the form of subsidy for having to sell fertilizers at control prices which were lower than the actual cost of manufacture of the fertilizers. It is stated that this agreement was outside the purview of the Order. Petitioners then say that in past there has been number of occasions when the prices of fertilizers had been substantially decreased but the dealers like the petitioners who had purchased such fertilizers at increased rates had to sell the same at the controlled prices which were lower than the procurement prices and that in such cases no compensation was paid to the dealers for selling the fertilizers at the decreased rates except that in the year 1992 Union of India had framed a scheme to reimburse the loss suffered by the dealers. Petitioners then state that the Union of India revised the retail prices of fertilizers w.e.f. 24 July 1991 when the Union of India had decided that the fertilizer being sold by the dealers which was in stock as on the date of the notification, the difference between the old price and the new price shall be paid by the dealers to the Government. Another notification was issued by the Union of India on 14 August 1991 revising the prices of fertilizers and in that notification it was stipulated that the stocks held by the dealers as on the date of the notification shall be sold at the old prices wherever there was an increase in prices. Then on 25 August 1992 Union of India decided to de-control certain fertilizers. It was also decided that dealers who were having stocks of fertilizers as on the date of the notification were to sell such fertilizers at the controlled rates. It is stated that this decision was not under the Order and that such a decision of the Union of India resulted in fertilizer being sold in the market at two different rates without there being any policy for distribution of the fertilizers at the old rates which was discriminatory between the consumers of the fertilizers. Petitioners say this led to filing of a writ petition in this Court (CWP No. 3564/92) in which rule was issued on 4 May 1994 and that petition is still pending final disposal. Reference was made to counter-affidavit filed by the Union of India in that writ petition wherein it was stated that the Union of India admitted that there was no provision for any compensation towards loss, if any, sustained by the retail dealers, wholesalers/manufacturers in respect of the stocks despatched from the factory or sold by the traders from the date of the imposition of the price control. On this an argument has been raised that when the fertilizers are brought under control, if any loss occurred on that account the same was to be borne by the dealers and, therefore, for any increase in any price any profit is earned by the dealer that would also be allowed to be in his account. It is argued that such advantageous gains/ losses are to be treated to be the part of the business activities of the dealers. It is submitted that in the present case on account of the impugned notification the petitioners are likely to gain some profit. It is complained that this profit has been denied to them on account of illegal, arbitrary and ultra vires decision of the Union of India to sell fertilizers at the old rates. It is stated that the action of the Union of India is violative of Article 14 of the Constitution. Reference has been made to some decision of the Union of India in the case of LPG dealers wherein it is stated that those dealers were allowed to take advantage of increase in prices as and when prices were increased with regard to the stock existing with such dealers on the date of increase in prices.

(3.) We do not think we are concerned with the decision of the Union of India in the case of LPG dealers or to any other decision in the earlier notifications relating to the fertilizers. The impugned notification is not ambiguous and we have to see its effect as it stands, as to whether in a case like this we should exercise our extraordinary jurisdiction to support the case of the petitioners. The petitioners admittedly have procured fertilizers from the manufacturers at subsidised rates as the manufactures had been paid from the public revenue to compensate them for the loss suffered by them in selling the fertilizers at reduced rates under the Order as cost of manufacturers was much more than the selling price fixed underthe Order. The petitioners now want to make profit by selling that very stock at a higher price when the impugned notification directs them to sell the same at controlled price as per earlier notification which stock had been procured by the dealers at subsidised rates. This Court cannot come to the aid of such dealers to have unconscionable profit at the cost of the public revenue and also which would be disadvantageous to the ultimate consumers, the cultivators. It will be useful to quote the following observations of the Supreme Court in M/s. Ram Chandra Mawa Lal, Varanasi and others v. State of Uttar Pradesh and others, AIR 1987 Supreme Court 1837 :- The Constitution which promises a socialistic pattern of Society in the preamble and traces of contours of the socialistic philosophy which permeates the spirit of the Constitution can neither command nor commend the exercise of the Constitutional Jurisdiction to issue high prerogative writs under Art. 32,226 or 227, in order not to remove injustice, but to do injustice, in order not to prevent exploitation of the poor by the rich, but to permit such exploitation. And yet the constitutional jurisdiction of the Court (as polarized from its 'error jurisdiction') has been invoked in order to use the hand of the Court for transferring money from the pockets of poor cultivators (who feed the Nation) to the pockets of the dealers in fertilizers (who feed themselves) by challenging a notification on technical grounds. Such jurisdiction is invoked to enable the 'dealers' to reap a 'rich' harvest of 'unjust enrichment' through the instrumentality of the Court at the cost and expense of the cultivators. We firmly believe that the Court exercising constitutional jurisdiction is not obliged to grant a writ in such circumstances. But we need not elaborate on the theme furthermore as the High Court has rejected the petition on merits and as we are of the same opinion. "