J MURALI Vs. GOVERNMENT OF A P

JUDGEMENT

(1.) These two writ petitions raise a common point regarding the liability of confiscation of the class of fertilizers under the provisions of A.P.Fertilisers (Distribution and Sale by Dealers) Order, 1978 (hereinafter referred to as the "State Order") which is an Order passed, by the State of Andhra Pradesh in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955. The petitioners are dealers. They may be dealing in other fertilizers also which is a province governed by Fertilizers Control Order, 1985 (hereinafter referred to as "the Central Order"). But, in so far as two categories of fertilizers, namely, Ammonium Sulphate and Ammonium Nitrate are concerned, State Order has been promulgated for securing their equitable distribution and it in needless to mention that when there is a general law and special law, the special law will always prevail over the general law and as such, in so far as the fertilizers of Ammonium Sulphate and Ammonium Nitrate are concerned, by necessary implication of the above doctrine, they are excluded from the purview of the Fertilizers Control Order, 1985 and are governed only by the State order. The above two Fertilizers are termed as specified fertilizers and that strengthens our opinion that these specified fertilizers of Ammonium Sulphate and Ammonium Nitrate are not at all governed by the provisions of the Central Order. The Vigilance staff had inspected the shops of the petitioners and found some irregularities and initiated proceedings under Section 6-A of the Essential Commodities Act, 1955 for the violations of the State Order. The said proceedings ended in confiscation of fertilizers and the said orders of the primary authority were also upheld by the appellate authority under Sec. 6-C of the Essential Commodities Act, 1955. Hence, these writ petitions.

(2.) Mr. M.P.Chandramouli, the learned Counsel for the petitioners in W.P.No. 10867 of 1992 submits that the fertilizers which have been seized are not the specified fertilizers covered by the State Order while the proceedings have been initiated only under the State Order. We have scanned through the facts and were at a loss to find the specified fertilizers of Ammonium Sulphate and Ammonium Nitrate from among the seized commodities of the fertilizers in both the writ petitions. Mr. P.V.Narayana Rao, the learned Counsel appearing for the petitioner in W.P.No. 11530 of 1992 adopts the arguments of Mr. M.P.Chandramouli. Ms.Rohini, the learned Government Pleader counters the arguments of the learned counsel for the petitioners stating that even though Ammonium Sulphate and Ammonium Nitrate are the specified fertilizers under the State Order, they are also governed by the Central Order and that the licence has been granted under the Central Order and as such, the confiscation orders are sustainable. She submits that this is only a mis-quotation that State Order was quoted while there is also infraction of Central Order and as such, the confiscations should be upheld.

(3.) While it is true that before the promulgation of the State Order, all fertilizers were governed by the Central Order and for infraction of the Central Order, the provisions contained under Section 6-A of the Essential Commodities Act were attracted and then the stocks were liable to be dealt with for confiscation. The legal position has changed in view of the promulgation of the State Order by issuance of G.O.Ms.No.607, Food and Agriculture dated 20-10-1978 taking out two fertilizers, namely Ammonium Sulphate and Ammonium Nitrate, having regard to the scarcity of the said fertilizers in so far as the State of Andhra Pradesh is concerned. The accusation against the petitioners was only for the violations stated to have been committed under the State Order and a show-cause notice to that effect has been issued which was replied to, in tine said perspective. But, the same was not considered in proper perspective. Same error was committed by the appellate authority also. When the proceedings were initiated under the State Order with regard to specified fertilizers, it was open for the authorities only to verify as to whether there were violations of the said State Order and they were not having jurisdiction to seize fertilizers which are not specified under the State Order. It is a different thing, if action was taken under both the Fertilizers Control Order, 1985 for the fertilizers in general and also the specified fertilizers under the State Order, but it is not so in the instant case. When the proceedings were initiated under the State Order, it has to be understood in the sense that the authorities were of the opinion that there was a contravention of the provisions of the State Order relating to the specified fertilizers of Ammonium Sulphate and Ammonium Nitrate and the petitioners were called upon to answer only in that context. The foundation of the show-cause notice which alleges violation is under the State Order and the answer cannot be beyond the contents of the said show cause notice. This Court cannot be asked to assume that since the fertilizers which are not covered by the State Order are covered by the Central Order, the confiscations should be sustained. For the reason that the proceedings have been launched only for the alleged violation of the State Order and as there was nothing irregular found with regard to specified fertilizers and as the specified fertilizers were not seized, the authorities were not empowered to seize the other fertilizers, namely, Growmore, Urea, Super Phosphate, M. Potash, FACT, 17:17:17,19:19:19, Zink Sulphate, O.A.P and C-A-M in exercise of the powers under the State Order. In the circumstances, the impugned orders of confiscation by both the authorities, primary and appellate are set'aside. The writ petitions are allowed. No costs.