Full Judgment Text
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PETITIONER:
UNION OF INDIA AND ANR.
Vs.
RESPONDENT:
BRIJ FERTILIZERS PVT. LTD. & ORS.
DATE OF JUDGMENT14/05/1993
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
AHMADI, A.M. (J)
CITATION:
1993 SCR (3) 760 1993 SCC (3) 564
JT 1993 (3) 403 1993 SCALE (2)902
ACT:
Fertilizer (Control) Order 1985-Clause(2)(q)Schedules I and
II-payment of subsidy to small scale manufactures--Held,
cannot be with-held on the basis of report of a Research
Organisation prepared behind the back of respondents-High
Court may interfere at the state of show cause notice where
manufactures would be in peril if it and not--Essential
Commodities Act, 1995
HEADNOTE:
The respondents were small scale manufactures of
fertilizers. They were entitled to payment of subsidy on
meeting prescribed standard in the manufacture of single
super phosphate (SSP). The Government of Madhya Pradesh
requested PDIL, a consultancy and R.& D Organisation, to
test the rock phosphate at Hirapur mines for determining
disability allowance payable to SSP producers. On the basis
of this report, the payment of subsidy was withheld, and a
show cause notice issued to the respondents.
A writ petition filed in the High Court was allowed by a
Division Bench which quashed the show cause notice and
ordered that the subsidy be paid. It found that the PDIL
report had been made without notice to the manufacturers or
inviting their participation and that the laboratory
report--; furnished by the manufacturers on which the
payment (of subsidy was dependent had not been questioned.
On appeal before this Court, the questions to be decided
were whether the withholding of payment of subsidy to the
respondent was justified; whether the High Court committed
any error in interfering at the stage of show cause in
exercise of its extraordinary jurisdiction; and whether tile
report of PDIL, prepared behind the back of the respondents
could be used to reject the standard fertilizer of the
respondent.
It was contended for the appellants that a detailed
technical examination was pending and the subsidy worked out
had on in been provisional, and that PDIL had carried out
the examination. PDIL being independent and reputed, it was
not required to here the manufacturers. Further, the non-
release of
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subsidy was also on the basis of input cost data. It was
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urged that the High Court was not justified in quashing the
show cause notice and issuing directions for paying the
subsidy without giving the department an opportunity to
verify if the respondents had in fact compiled with the
Control Order.
Dismissing the appeal, this Court
HELD : 1. PDIL was engaged to rind out the grade of
phosphate from Hirapur mines to enable the manufacturers to
claim disability allowance, and not whether they were
producing fertilizer in accordance with the standard
provided in the Control Order. The purpose being entirely
different, the report could not be utilised for a different
purpose. (767-G)
2. There is no evidence to doubt the authority of the
reports submitted by the inspectors appointed under the
Control Order that the fertilizer produced was of specified
standard. (768-B)
3. On facts, in the absence of any reliable data or any
material the inference drawn by the appellants in the notice
that the fertiliser was not of a specified standard was
baseless. The entire exercise was therefore vitiated being
tainted with arbitrariness. (770-F-G)
4. The High Court should normally not interfere at the stage
of show cause notice. But where, from the facts it is
apparent that there was no material available with the
department to doubt the statement on behalf of the
respondent, it would be failing to exercise jurisdiction if
the Court does not discharge its constitutional obligation
of protecting the manufacturers who are in perilous
condition as they are not able to meet their liabilities to
pay to financial institutions and various other authorities
and are facing proceedings on various counts and have
virtually closed their unit. The authorities did not
realise either the purpose of granting subsidy or the
harassment to which the manufacturers have been exposed.
Entire litigation appears to be a sad plight for those who
have set up small scale units in the hope that they will
stand on their own on the subsidy given by the Government as
admittedly the price of manufacturing fertilisers is much
more than the price fixed by the Government for which it
assured to pay subsidy. (771-B-D)
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil appeal Nos. 1450-51 of
1993.
From the Judgment and Order dated 16.7.92.of the Delhi High
Court in Civil Writ Petition No. 1780 of 1992 and Civil
Misc. No. 3485 of 1992.
K.T.S. Tulsi, Addl. Solicitor General and S.N. Terdol for
the Appellants.
Kapil Sibal, Vikas Singh, L.R. Singh, Yunus Malik and Gopal
Singh for the Respondents.
The Judgment of the Court was delivered by
R.M. SAHAI, J. Was there any valid justification for the
appellants, the Union of India, to withhold the payment of
subsidy to the respondents, the small scale manufacturers of
fertiliser, is the main question that arises for
consideration in this appeal directed against the judgment
and order of the Delhi High Court? Two other questions that
arise in this connection are if the High Court committed any
error in exercise of its extraordinary jurisdiction to
interfere at the stage of show cause and if a report
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prepared by the Project Development India Limited (in brief
’PDIL’) behind the back of the respondents could be relied
for rejecting the specification of standard fertilizer
produced by the respondents.
Before adverting to these issues we consider it necessary to
mention that the payment of subsidy to manufacturers of
fertilisers was introduced in 1982 under a scheme framed by
the Government of India in pursuance of which every
manufacturer was required to give a written undertaking to
the President of India. In 1985 Government of India issued
a Fertilizer (Control) Order under the Essential Commodities
Act. Sub-clause (h) of Clause (2) of the order defines
’fertilizer’ to mean,
any substance used or intended to be used as a
fertiliser of the soil and/or crop and
specified in Part-A of Schedule I and includes
a mixture of fertiliser, mixtures of micro-
nutrient fertilisers and special mixture of
fertilisers’.
Sub-clause (q) of the same clause explains ’prescribed
standard of fertilizer’ as under:
"Prescribed standard" means
(i) in relation to fertiliser included in
Column 1 of Part A of
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Schedule-1, the standard set out in the
corresponding entry in Column 2, subject to
the limits of permissible variation as
specified in Part B of that Schedule; and
(ii)in relation to a mixture of fertilisers,
the standard set out in respect of that
mixture under sub-clause (1) of Clause 13 by
the Central Government, subject to the limits
of permissible variation as specified in Part
B of Schedule-1;
(iii)in relation to a [mixture of NPK
fertilisers, mixture of micronutrient
fertilisers and combination thereof], the
standard set out in respect of that mixture
under sub-clause (2) of Clause 13 by the State
Government, subject to limits of permissible
variation as specified in Part B of Schedule
1.;"
And standard specified of single super phosphate (SSP)
sulphur manufactured by the respondents is described in
Schedule I of the Order as under:
"Single Super Phosphate (16% P 205
Granulated)-
(i) Moisture, per cent by weight, maximum
(ii) free phosphoric acid (as P 2 0 5) per
cent by weight, maximum
(iii) Water soluble phosphates (as P 205 per
cent by weight , maximum
(iv) Particle size-Notless than 90 per cent of
the material shall pass through 4 nun IS sieve
and shall be retained on 1 mm IS sieve. Not
more than 5 per cent shall pass through 1 mm
IS sieve."
The Control Order further deals in detail
with price control, distribution,restriction
on manufacturers and sale etc. of fertiliser.
Chapter VII deals with enforcement
authorities. Paragraph 27 empowers the State
Government and the Central Government to
appoint inspectors of fertilisers. Paragraph
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28 empowers the inspectors to secure
compliance of the Order by requiring the
wholesaler or retail dealer to give any
information in his possession with respect to
manufacture, draw samples of any fertiliser,
enter upon and search any premises etc. How
the sample has to be analysed has been
provided by Schedule 11 of the Order.
The basic raw material for manufacture of
fertiliser is rock phosphate. There
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are various mines spread all over the country
from where these rocks are obtained. They are
canalised through State mineral corporations.
One of such mines is located in Hirapur in the
State of Madhya Pradesh. The Government of
the State requested the PDIL to undertake
laboratory test of these rocks and submit a
report for determining disability allowance
payable to SSP producers. The conclusion o
f
the report is extracted below :
"The world reserve of good quality rock
phosphate is gradually depleting making the
use of non-standard and low grade phosphate,
in the manufacture of phosphatic fertiliser as
essential. In India, compared to other
countries, the availability of usable quality
rock phosphate is rather limited, though
available in abundance.
This study was made, at the request of Madhya
pradesh Government with a view to effectively
utilise, to the extent possible the lower
grade indigenous rock phosphate from HIRAPUR
MINES for SSP production. Experiments in PDIL
laboratory has shown that this rock phosphate
cannot be processed in the conventional route
to produce SSP, as such, and it is imperative
to make blends with any standard rock
phosphate.
The report establishes that the rock phosphate
available in our country whether it is in
Madhya Pradesh or Jaipur appears to be
incapable of producing SSP unless it is
blended with imported rock. Proportion of the
two depends on the strength of rock obtained
from different mines. The PDIL conducted the
test for those rocks whose strength varied
from 29% P 2 05 and 25% P 2 0 5 and opined
that blending of rock with 24% should be in
proportion of 20% and 80%. The extract from
the report runs as under :
"The chemical analysis has shown 24.85% P 2 0
5 and 30.03% Silica plus insoluble besides
other impurities like high R 2 0 3 compared to
32.4% P 2 0 5, 4.56% Silica plus insoluble and
0.75% R2 03 in standard Jordon variety. Many
proportions of blends were tried in laboratory
to find out the optimum blend which would
produce SSP of specification laid down by
F.C.O. and finally it was concluded that a
blend of 20% Hirapur rock matrix and 80
Senegal will be a suitable proportion. This
was confirmed even in pilot plant trials where
for a comparison purpose two blends were
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tested e.g. 30:70 and 20:80 for Hirapur,
Senegal rock phosphates. There
765
was found from analytical results that 20:80
proportion was most suited. Accordingly study
was concentrated towards this 20:80
Hirapur:Senegal blend."
We now turn to the various issues that arise in this case.
Relying on these reports the subsidy Payable to the
manufacturers was withheld and they were required by a
letter dated 20th April 1990 to explain as to how they were
able to achieve the standard specification. The letter
reads as under:
"It is generally observed from the quarterly
cost date being submitted by your company that
you are either using only low grade rock
phosphate for manufacture the P2 05 content of
which is less than 30%, or in large proportion
thereof. Please therefore intimate how you
are manufacturing SSP of standard
specification i.e. of 16% P2 05 content, SSP
as required under the specification laid down
on the F. C. 0. "
Both the assumptions in the letter were without any
foundation. We shall examine it in detail later. It was at
this stage that the manufacturers approached the High Court.
They claimed that the fertiliser manufactured by them having
been checked and verified by the inspectors appointed under
the Control Order the opposite parties were not justified
either in withholding the subsidy or issuing any notice. In
the counter affidavit filed in the High Court the reason for
issuing notice was explained as under:
"That in reply to Paras 15 and 16 of the
Petition, it is submitted that upto 1.4.1992
imported Rock Phosphate was being procured by
the SSP units, including the petitioners
through the Minerals & Metals reading
Corporation (MMTC) which was a canalising
agency. Rock Phosphate is also available
through the State owned indigenous sources
such as Rajasthan State Mineral Development
Corporation (RSMDC), Rajasthan State Mines &
Minerals Limited (RSMML), Uttar Pradesh State
Minerals Development Corporation (UPSMDC),
Madhya Pradesh State Mining Corporation
(MPSMC) and Hindustan Zinc Limited (HZL), and
SSP is manufactured by using rocks of standard
grade. The quality of indigenous rock
phosphate from the above mentioned State owned
sources varies considerably from low grade
rock of 14% to 16% P2 05 content to high
degree rock of +3 1 % P2 05 content. For
producing
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SSP of 16% W.S. P2 05 the rock phosphate used
should contain a minimum of +3 1% P2 05 and
the conversion efficiency of the rock should
be more than 9 1 %. SSP of 16% W.S. P2 05 can
be produced by using low grade rocks only
after suitably blending it with standard/high
grade rock phosphate to have a feed conforming
to the above mentioned minimum specifications
of +31% P2 05.
That in reply to Para 17 of the Petition it is
submitted that indigenous rock phosphate is
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being procured by the SSP Units from Madhya
Pradesh State Mining Corporation, Uttar
Pradesh Sate Minerals Development Corporation,
Rajasthan State Mining Development Corporation
and Rajasthan Mines and Minerals limited.
Since detailed technical examination of th
e
various grades of indigenous rock phosphate
available from sources other than RSMML was
not available, the SSP Units were informed
that pending detailed technical examination,
the prices of such indigenous, rock phosphate
would be reimbursed at par with RSMML price
for rock phosphate (having +3 1 % P2 05) on a
provisional basis only. A copy of the
circular letter issued by the Office of the
FICC dated 29th September 1986 to all
manufacturers of SSP is at Annexure-1.
Subsequently, Projects and Development India
Ltd (PDIL), Sindri, which is a Consultancy and
R & D organisation for fertilisers in the
public sector, which had conducted an
evaluation of MPSMC Rock Phosphate of Hirapur
and Jhabua Mines, submitted its report, which
indicated that taking into account the P2 05
content and the impurities present in both
Jhabua and Hirapur Rock, it is unsuitable to
make SSP of 16% W.S. P2 05 content, unless it
is blended with minimum of 7O% which grade
imported Senegal rock with 30% low grade
Jhabua rock and minimum of 80% high grade
Senegal rock with 20% low grade Hirapur rock."
After considering this a Division Bench of the High Court
allowed the writ petition and issued a direction to the
appellant to pay the subsidy which was payable to
respondents after determining it in accordance with the
terms of the scheme under which it was payable within the
period specified in the order. The direction was issued as
the Bench found that the basis for denying the subsidy was
the report submitted by PDIL prepared behind the back of the
manufacturers without issuing any notice to them or inviting
their participation. After excluding the report the bench
held that since the payment of subsidy was dependent on
basis of laboratory reports furnished by the manufacturers
and these reports had been furnished by
767
them and they had not been questioned at any time by the
appropriate authorities it was not open to opposite parties
either to withhold the subsidy or to initiate the
proceedings by issuing show cause notices.
To assail the finding on merits the learned Additional
Solicitor General launched a two pronged attack. He urged
that subsidy under the scheme of 1982 was payable only if
the fertiliser conformed to specification of 16% water
soluble phosphoric penta-oxide. The learned counsel
submitted that under the scheme the Department of
Fertilisers was entitled to conduct survey and check the
quality and the manufacturers were required to give an
undertaking that they were to supply prescribed information
along with the monthly claim for subsidy. According to
learned counsel claim for subsidy. According to learned
counsel under the said scheme a circular was issued on
September 29, 1986 to all the manufacturers of SSP wherein
it was clarified that the indigenous rock phosphate being
obtained by the manufacturers from sources other than
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Udaipur was pending a detailed technical examination. He
urged that the circular further stated that the prices were
to be worked out on the basis of rock phosphate having plus
3 1% P2 05. Therefore, pending completion of detailed
technical examination the subsidy worked out was
provisional. Anti when the technical examination conducted
by the PDIL indicated that on the admitted figures famished
by the manufacturers in their quarterly invoices the
standard specification could not have been achieved the
notice were issued, therefore, the High Court was in error
in quashing it. According to him it was open to the
department to get it ascertained from an authentic source if
the manufacturers of fertiliser were using proper material
and achieving the specified standard. He urged that the
PDIL being independent and reputed body it was not required
to issued any show cause notice. We do not consider it
necessary to express any opinion if the PDIL report could
have been discarded for want of show cause notice or for
being ex-party as there are certain features about the
report which obviate the necessity of considering its
validity on this ground. From the counter affidavit filed
by Managing Director of M/s Brij Fertilizers Pvt Ltd it
appears that the manufacturers of SSP have been using rock
phosphate which is of hard quality but in order to encourage
use of indigenous rock phosphate and to avoid loss of
foreign exchange the Government of Madhya Pradesh directed
the PDIL laboratory to undertake laboratory test to find out
the grade of phosphate from Hirapur mines to enable the
manufacturers to claim disability allowance. The report,
therefore, was not concerned with finding out whether any of
the manufacturers who were engaged in producing fertilizer
were doing so in accordance with standard provided in the
Control Order. In the circumstances it may be that it was
not necessary to issue any notice to the manufacturers.
768
Yet the question is, could it furnish material for rejecting
the claim of respondents and withholding their subsidy? The
learned Additional Solicitor General urged that the non-
release of subsidy was not based, solely, on report of PDIL
but on basis of input cost data supplied by the
manufacturers which indicated that on basis of analysis of
raw material input provided by the respondents the
manufacturers could not have produced SSP of 16% water
soluble P2 05. This assumption appears to be unfounded for
more than one reason. Under the Control Order there is a
detailed procedure provided for carrying out test to find
out if the fertiliser produced was of specified standard.
It is not disputed that no such test as provided was ever
carried by any authority. Rather the report submitted by
the inspectors appointed under the Control Order, indicates
that the fertiliser manufactured by the respondents was
standard. We are not willing to accept the submission of
the Additional Solicitor General that these reports were
incorrect and have been obtained through the connivance of
the official machinery. There is no material on record to
indicate that the Government at any point of time doubted
the correctness of there ports or initiated an proceedings
against any inspector or any officer for it is not
possible to draw an inference against the authenticity of
the reports which have been given by the authority empowered
under the order. It is not the claim of department that at
any point of time prior to submission of the PDIL report any
step was taken or the government ever required the
inspectors to find out if the manufacture carried on by
respondents was in accordance with law and rules. To
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discard the certificate issued by the inspector in the
circumstances would be arbitrary without any valid reason.
With this we may now examine the PDIL report itself. As has
been seen earlier the purpose of getting the rock tested was
to pay disability allowance. The purpose being entirely
different it could not be utilised for a different purpose.
How risky it is to embark on such exercise shall be clear
when the result of report obtained by the PDIL is applied to
the dates of respondents relied by appellant to justify
their action of issuing show cause notice. From paragraph
two of the conclusions of the PDIL, extracted earlier, it is
clear that the study was made at the request of Madhya
Pradesh Government with a view to effectively utilise to the
extent possible the lower grade indigenous phosphate from
Hirapur mines for SSP production. The report concludes,
that experiments in PDIL laboratory has shown that this rock
phosphate cannot be processed in the conventional route to
produce SSP, as such, it is imperative to make blends with
any standard rock phosphate. The objection of the
department is not that the rock phosphate should not be
blended with imported one but that on the proportion shown
along with the strength of indigenous rock used the standard
as provided could not have been
769
achieved. From the analysis of rock phosphate purchased by
the manufacturers as per their invoices and attempt was made
to demonstrate that if the figures mentioned therein were
taken as correct and they are compared with the calculation
given by the PDIL it would be clear that the standard
specification could not have been achieved. It is necessary
to mention at this stage that the rock phosphate found in
Hirapur mines was of three grades. That is clear from the
letter of Assistant General Manager, Mines to the Joint
Director, Fertiliser Coordination Committee. Relevant part
of the letter reads,
"We were selling Hirapur Phosphorite for so
many Fertiliser S.S.P. manufactures since
starting of the mining and were never found
any complaint regarding its suitability to
manufacture SSP Fertiliser. We have learnt
form Fertiliser Manufacturing Units that our
Phosphorite is suitable for SSP Fertiliser
manufacturing but in case of F0203 contents
increases in Phosphorite the Wear and Tear of
the plant increases. We had also been
directed by Joint Director (F&A) FICC, vide
their letter dated 31.8.89 to sale our
Phosphorite in category ’A’ to SSP Units.
This further certifies the suitability of our
Phosphorite for SSP manufacturing of requisite
grade. The material supplied to these units
are of 32% category ’A’ and not 25% as given
in PDIL report hence the question of blending
with other Rock Phosphate does not require to
Manufacture the requisite grade SSP.
The M.P.S.M.C. was selling Hirapur Phosphorite
in different percentages P2 05 grades and not
in mix condition. Out grades and other
specifications indicated as below:-
Before 5.3 1991 From 6.3. 1991
1.1st (A) 1st (A)
P2 05 + 30%, Sio2 P2 05 + 29%-3 1 %,
+ 15%18% Sio2 + 15%- 1 8%
F0203 below 4.5% Fo203 below 24%
A. +1/2" 2.1/2" Size A)+ 1/2"2. 1/2" size
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B. R.O.M. B. R.O.M.
2. 1st (B) 1st (B)
P205+ 28%-30% PrO5 + 27%-29% Sio2 + 18%
770
Sio2+22% Fo203 F 203 above 4.5%
above 4.5%
A) 1/2" size A) 1/2" size
B) R.0 M. B)R.O.M.
C) By Product Dust
3. II Grade
P205 + 22% 25% Sio2 and
Fo2O3 No grantee. R.O.M."
Further no rock phosphate has been or could be purchased by
any manufacturer except through corporation of the State.
This fact is admitted in the counter affidavit of the
appellant extracted earlier. It is also clear from the
letter of Assistant General Manager that Brij Fertilisers
did not use any rock except Grade ’A’. It is claimed by the
respondents that on a technical assessment conducted by
Bhabha Research Institute for Lalitpur rocks that the water
soluble in rock phosphate with P2 05 with 29 to 32% is more
than 16%. Even if this report is ignored the letter of
Assistant Mines Inspector establishes that water soluble
phosphate in Hirapur mines of grade ’A’ was 16%. Each
respondent has filed details of rock phosphate consumed by
its unit from various corporations. The average grade
mentioned is 3 1 %. Not one has used grade II. Even Avadh
Fertiliser has not used rock phosphate below 27%. From the
chart appended in respect of Hirapur mines the blending in
proportion of 50% indigenous and 50% indicates that even
with rock of 30.66% the water soluble actually was 17.57%.
These figures could not be disputed in the reply filed on
behalf of Union of India. From the PDIL report it is clear
that it had undertaken test of rock with 24.85% P2 05 and
30.03% Silica and suggested that most suited blend with such
rock was 20% indigenous and 80% imported. It could not
furnish any guideline or material to reject the rock
phosphate used by the respondents which varies between 27%
P2 05 to 3 1 % P2 05. In absence of any reliable data or
any material the inference drawn by the appellants in the
notice was baseless. The counter affidavit filed in the
High Court by the appellant did not explain the basis for
concluding that for producing SSP of 16% or P2 05 the rock
phosphate should contain a minimum of 3 1 % P2 05. It is
contrary to the letter of Assistant General Manager Mines.
In any case PDIL could not furnish any basis for it. In
absence of any valid justification the entire exercise
undertaken by the appellant was vitiated being tainted with
arbitrariness.
Failing in his effort to assail the order on merits the
learned Additional Solicitor General vehemently urged that
the department was not precluded form issuing show cause
notice and requiring the manufacturers to appear and explain
their claim. It was urged that the High Court was not
justified in quashing the show
771
cause notice and issuing the directions for paying the
subsidy without giving an opportunity to the department to
verify if the respondents had in fact complied with Control
Order. True, the High Court should normally not interfere
at the stage of show cause notice. But where, from the
facts it is apparent that there was no material available
with the department to doubt the statement on behalf of the
respondents and their own officers at every point of time
had issued the certificate the correctness of’ which could
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not be disputed or doubted except by raising unfounded
suspicion or drawing on imagination it would be failing to
exercise jurisdiction if the Court does not discharge its
constitutional obligation of protecting the manufacturers
who, as is apparent from the counter affidavit filed in this
Court and the various letters issued from different
authorities are in perilous condition as they are not able
to meet their liabilities to pay to financial institutions
and various other authorities and are facing proceedings on
various accounts and have virtually closed their unit. We
are pained to say that the authorities did not realise
either the purpose of granting subsidy or the harassment to
which the manufacturers have been exposed. Entire
litigation appears to he a sad plight for those who have set
up small scale units in the hope that they will stand on
their own on the subsidy given by the government as
admittedly the price of manufacturing fertilizers is much
more than the price fixed by the government for which it
assured to pay subsidy.
show cause notice issued by the appellants and issuing the
directions to pay the subsidy. The appeals fail and are
dismissed with costs which is assessed at Rs. 10,000 one
set.
U. R. Appeal dismissed.
772