ORDER
1. By this petition, the petitioner has sought the relief to the effect that writ of certiorari be issued in his favour, quashing order dated 11-2-1993, passed by opposite party No. 3 and order dated 7-4-93, contained in Annexure No. 6-A, passed by the Appellate Authority i.e. opposite party No. 2 to the writ Petition.
2. The petitioner has also prayed for issuance of order or direction to the effect that opposite parties be directed to order analysis of the sample lying with him duly sealed by a Lab other than one in which the previous sample was analysed preferrably by some Lab out of the State.
3. The petitioner's case in nutshell is that the petitioner is a registered retail dealer of Fertilizer, for which purpose, a valid certificate of registration has been granted to the petitioner under the provisions of Clause 7 read will Clause 9 of the F.C.O., 1985 and thereunder the petitioner had been carrying on the business at the place known as Phalauda, District Meerut. According to the petitioner's case on 8-11-1992 a sample of 15:15:7.5 N.P.K. brand of fertilizer was collected from the business premises of the petitioner by the Deputy Director, Extension, Meerut and the same was sent for analysis.
4. The petitioner's case is that the sample was collected by hand, by opening the factory stiched bag and that too only from the upper layer of the bag and so the sample could not be said to be worth analysis. The said sample was collected under the provisions of Clause 28 of the Fertilizer Control Order, 1985 by the Deputy Director of Extension (Agriculture), Meerut, acting as Fertilizer Inspector and the sample was sent for analysis by the District Agriculture Officer, Meerut and the result of the same was communicated to the petitioner vide show cause notice No. 2680, dated 9-12-1992 and thereby it was communicated to the petitioner that the sample, after testing, was found to be substandard and, as such, an action against the petitioner under Clause 31 of Fertilizer Control Order, 1985 was being contemplated and he should show cause why the action be not taken.
5. The petitioner has further averred that the petitioner submitted his reply and made special request that the sample with appellant-petitioner be got analysed from some lab other than one in which the earlier sample was got analysed. The petitioner vide his letter dated 11-1-1993 asked for certain other information from the opposite party No. 3 in connection with the compliance or otherwise of the provisions, mandatory in nature, of Clause 30 of the F.C.O., 1985 but of no avail as opposite parties did not reply as they did not make any response
6. The petitioner submits that thereafter the petitioner preferred an appeal under Clause 32 of the Fertilizer Control Order, 1985 before the Director of Agriculture i.e. the opposite party No. 2 against the rejection of request of re-test of the sample lying with the appellant by opposite party No. 3 and informed the opposite party No. 3 of the filing of the appeal before the Director. The petitioner submits that without awaiting and without hearing the contention of the petitioner the opposite party No. 3 vide letter dated 11-2-1993 cancelled the Certificate of Registration of the petitioner. A typed copy of the order dated 11-2-93 has been annexed as Annexure No. 6 to the writ petition, and order dated 7-4-1993 is annexed herewith as Annexure No. 6-A.
7. The petitioner filed an appeal against the notice to show cause referred to above as well as against the cancellation of Certificate of Registration before the Appellate Authority i.e. challenging the order dated 11-2-93 and the Appellate Authority dismissed the petitioner's appeal against the order dated 11-2-93 and to the petitioner u/S. 226 of the Constitution.
8. The learned Counsel for the petitioner has contended before me that the petitioner's Certificate of Registration has been challenged without giving him due opportunity of challenging the report of Analyst by not allowing the petitioner to get the sample of the Fertilizer kept with him analysed by some other analyst in spite of request having been made to the authority concerned. The learned Counsel submitted that in order to do justice and to have the clear picture, the opposite parties ought to have got the sample of the Fertilizer lying with the petitioner re-analysed by some other Laboratory, as prayed by him but the registering authorities as well as the Appellate Authority acted illegally and in breach of the provisions of the Control Order and in violation of its letter and spirit refused to get the analysis done as prayed by the petitioner. In para 15 of the writ petition it is stated that the Inspector collects sample in exercise of his power conferred under clause 28 of the F.C.O. Schedule II clause 28 of a the F.C.O., 1985 reads as under:
"6. PREPARATION OF TEST SAMPLE AND REFERENCE SAMPLE:
(1) The composite sample obtained above shall be spread out on a clean, hard surface and divided in two three approximately equal portions of about 400 gm. each in weight. Each of these samples shall constitute the test sample.
(ii) Each test sample shall be immediately put in a suitable container as defined under para 1(e). The slip with detailed description may be put inside the sample bag. Each bag shall also be properly labelled as mentioned in para 1(f).
(iii) Each test sample container shall then be sealed with the seals of the Inspector. If posssible, seal of the manufacturer/dealer or purchaser as the case may be, may also be affixed.
(iv) One sample so sealed shall be sent to the Incharge of the Laboratory notified by the State Government under clause 29 or Central Fertiliser Quality Control and Training Institute, Faridabad for analysis and the second given to the manufacturer or dealer or the purchaser as the case may be. The third sample shall constitute the reference sample and shall be sent by the Inspector to his next higher authority for keeping in safe custody for production in course, if required."
9. Learned counsel contended that the petitioner wanted the second sample that was placed with the petitioner to be analysed in order to provide the petitioner opportunity to contest the report of the Laboratory if it is against the petitioner and to send the analysis thereunder.
10. Learned counsel further submitted that the third sample is kept with the next higher authority than the Inspector as has been specified for the purpose and in case difference of standard is found in the test of these two samples, the court is entitled to call for third sample and get it analysed so that no injustice is done to the parties and, as such, Shri Sachhidanand Shukla, learned Counsel for the petitioner submitted that in this view of the matter petitioner had a right to ask the opposite parties to send the second sample for analysis so as to enable the petitioner to show that the report submitted by analyst with reference to first sample is not correct but by having refused to send the second sample for analysis to for some other Laboratory than one which has submitted the report, the petitioner has been denied this opportunity to show cause that the Fertilizer belonging to the petitioner were not sub-standard and his registration certificate has, therefore, illegally been set aside or cancelled. The opposite parties acted in breach of principle of natural justice and fair play in denying the petitioner an opportunity to show, that the Fertiliser, in which, the petitioner had been dealing, were not sub standard and that his certificate of registration be not cancelled. Shri Shukla, therefore, submitted, that the order of cancellation of certificate of registration is illegal, null and void being in violation of principles of natural justice the petitioner is deprived of opportunity to show cause as mentioned above.
11. I have also heard the learned Standing Counsel, who has challenged the contentions of Shri S.N. Shukla, learned counsel for the petitioner.
12. When I consider this aspect of the matter, I find much force in the contention of Shri S.N. Shukla. There can be no reason and there appears none nor has any other things being shown by the learned Standing Counsel why the second test sample is kept with the manufacturer or purchaser or dealer except that one i.e. he submitted the analyst report with respect to the first test sample submitted by the Laboratory then he is entitled to seek and request the analysis of the test sample it being placed at a disposal by the Inspector and if the difference appears to be much more in respect of these standard of the Fertilizer as tested by two Laboratories by testing samples then it will be open to the Court to call upon the higher authority than Inspector to furnish the third sample, called reference sample before the Court and Court may get third sample tested and analysed which can be said to be the correct report arrived at correct conclusion. When I so hold I find support from the following observations of a Division Bench of this Hon'ble Court in the case of M/s. Agarwal Pesticides and Chemicals Industries v. The State of U.P. in Writ Petition No. 6003 of 1978 decided by Division Bench of this Court consisting of Hon'ble Mr. Justice Yashoda Nandan (Acting Chief Justice) and Hon'ble Mr. Justice A.N. Verma, delivering the judgment Hon'ble Yashoda Nandan, Acting Chief Justice observed as under:--
"The requirement that one sample should be left with the manufacturer or dealer and another retained by the Inspecting Officer as a reference sample, to our mind is because in the event of the report of the analyst being challenged, the offending dealer may have an opportunity of getting the sample left with him and the one retained by the Inspecting Officer retested to confirm or controvert the report of the Analyst. In the present case it appears that in spite of request made by the petitioner to send the sample in its possession for analysis again was it unjustifiably denied to it."
13. In this view of the matter, it appears just and proper that a writ be issued quashing the order dated 11-2-1993, passed by opposite party No. 3 as contained in Annexure No. 6 as well as quashing the following order dated 7-4-1993, contained in Annexure 6A, whereby the petitioner's appeal has been dismissed. It is further directed that the petitioner shall be allowed to carry on the business in fertiliser but it will be open to the opposite parties to restart the proceedings in the matter. Let the second and third sample be analysed by some Laboratory other than the (sic) which the report has been submitted earlier and thereafter opposite parties may after considering whole matter decide and take any action if circumstances so required to pass orders for cancellation of certificate of registration or not as it then appears just and proper in the circumstances of the case by a reasoned and rational and speaking order.
14. Thus, the petition is finally disposed of.
15. Order Accordingly.