Park vs The State Of Maharashtra
2012 Latest Caselaw 471 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION




                                                                                 
                        WRIT PETITION NO.  1771  OF  2012




                                                     
     M/s.Bayer Bio Science Private Limited,
     A company incorporated under the




                                                    
     Provisions of the Companies Act, 1956
     Having its Corporate office at Ohri's Tech
     Park, Plot No.13, Survey No.P 64/2,
     Software Units Layouts, Madhapur,




                                     
     Hyderabad 500 081, Andhra Pradesh
     And its branch office at Flat No.1/7,
     Gulmohar Arcade, 37/49, Shine Sujan
                        
     Park, Lullanagar, Kondhava, 
     Pune 411 040, Maharashtra.                                           ...  Petitioner.
                       
                 V/s.

     1. The State of Maharashtra, through
        Controller and Director of Agriculture
      


        (Inpute & Quality) through the office
        of The Commissioner of Agriculture,
   



        Maharashtra State, Pune 411 001.

     2. Appellate Officer & Commissioner For
        Agriculture, Maharashtra State, Pune





        411 001.                                                          ...  Respondents. 





     P.S.Dani with Padmaja Dholakia and Ms.Sujata Melekar i/b.
     Dholakia Law Asso. for the petitioner.. 
     Ms.M.S.Bane, "B" Panel counsel for the respondents.
     Lalitkumar Mahajan for the interveners.




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                            CORAM :                           B.P. DHARMADHIKARI, J.
                            RESERVED ON :                     22nd November 2012.




                                                                                         
                            PRONOUNED ON :                    11th December 2012.




                                                             
     JUDGMENT :

The petitioner, a company incorporated under the provisions of the Companies Act, 1956 doing business in area of seed manufacturing and sale, has challenged the order dated 29 th December 2011 passed by

the appellate authority, the Commissioner for Agriculture, Maharashtra

State, Pune in Appeal No.01/2011. The said authority is respondent No.2 before this court. The appellate authority has confirmed the order dated

13th April 2011 passed by the Controller and Director of Agriculture (Input & Quality). By that order, the said authority has found 164 farmers entitled to compensation and under rule 12(9) of Maharashtra Cotton

Seeds (Regulation of supply, distribution, sale and fixation of sale price)

Rules, 2010 directed the petitioner to pay that amount within thirty days with statutory interest at 24%.

2. Before proceeding further, it is to be noted that action against the petitioner is under the provisions of Maharashtra Cotton Seeds (Regulation of supply, distribution, sale and fixation of sale price) Act,

2009 hereinafter referred to as "2009 Act". The above-mentioned rules are framed under this Act and for convenience are being referred to as "2010 Rules" hereinafter.

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3. The petitioner has challenged the appellate order on the following grounds:

(i) There was no inspection carried out by the authorities

within seven days as required by the provisions of rule 12.

(ii) No independent sample of defective seeds was procured by the said authorities.

(iii) The authorities did not obtain any report of analyst.

(iv) The finding that cotton seeds sold by the petitioner were sub-standard or misbranded is misconceived as there

was no label on the sold product that it was immune and

(v)

therefore there was no mis-branding.

The compensation as worked out is arbitrary and

exorbitant.

4. I have heard Shri Dani, learned counsel for the petitioner.

Learned A.G.P. for respondent Nos.1 and 2 and Shri Lalitkumar Mahajan

for 117 farmers who have filed Civil Application No.964/2012 seeking intervention.

5. The application for intervention was opposed by the petitioner. However, it is not disputed that these farmers have been awarded compensation by the authorities and that grant has been

questioned in the present petition. In this situation, intervention was granted vide order dated 22 nd November 2012. The petitioner has been directed to show these 117 farmers as party interveners by carrying out amendment immediately.

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6. Shri Dani has pointed out that the first information of damage

to crop is sent by Chief Inspector working under respondent No.1 to

petitioner on 8th November 2010 which mentions use of cotton seeds of Surpass 1037 B.T. variety, manufactured by the petitioner, by 102 farmers of Babhalaj, taluka- Shirpur, district- Dhule and that they have complained

to the Hon'ble Minister about defective growth and yield thereof. The petitioner, accordingly, submitted its reply on 20 th November 2010 and denied that they have not extended necessary services to the farmers.

7.

In reply, they have also pointed out that a detailed date-wise programme was also framed and implemented. The farmers were

requested to go for plant protection activities and were supported by providing free spray, but the farmers declined as they expected increased value addition subsequently as per their past experience. Some of the

farmers were interested only in compensation and their attitude was

detrimental to the development of agriculture. The change in weather also was posed as problem. Learned counsel has invited attention to the chart accompanying this communication in which observation and

response from farmers has been catelogued. Effort is to show that after rain in September first week, the problem cropped up. Attention is also invited to communication of same date sent to the Commissioner which

noted most prominent disease of Alterneria Leaf Spot and invited attention to company's handbill pointing out necessity of extra care to ensure better yield and recommended fungicide spray. The communication also pointed out that in 2010, rain fall received was 153%

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over average rain fall and number of rainy days were 42. Pamphlet of the company about this variety, cautioning farmers that it is susceptible to

water stagnation for long duration and necessity of draining the excess

water, is also pressed into service.

8. The impugned order passed by the Controller and Director on

13th April 2011 is read out in this background to urge that this defence has been totally lost sight of and relevant mandatory requirements laid down by 2009 Act or 2010 Rules are also lost sight of. The compensation

has been worked out without any basis. In appeal, though these grounds

have been specifically raised and dispute on facts as also legal basis is canvassed, the appellate authority has avoided to consider the same.

9. Shri Mahajan, learned counsel for interveners has submitted that insistence on inspection within seven days is unwarranted in present

facts. The fact that variety is not pest resistant was discovered long after

the sowing and at that time seeds were not available with the farmers. He has invited attention to observation recorded in the impugned order of Controller to show that sample was demanded from petitioner, petitioner

forwarded it in loose bags, hence petitioner was asked to supply the commercial bags which were sold in market. Though the petitioner agreed to supply those bags, that sample was never supplied. He,

therefore, contends that the petitioner cannot be permitted to take advantage of its own lapse.

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10. Learned counsel has also pointed out that alleged leaflet is supplied along with its reply by the petitioner and that leaflet uses the

words "slightly susceptible". It dose not disclose exactly the extent of

susceptibility and this aspect is rightly considered by the Controller as also the appellate authority. The help offered by the petitioner was belated and is of no relevance or use in this situation. He submits that, thus,

action under rule 12 has been rightly taken and compensation has been rightly awarded. He points out that representative of petitioner was present at the time of inspection by the District Level Investigation

Committee and he has not raised any objection to the same or to the procedure followed.

11. The learned A.G.P also adopts very same arguments. She submits that necessary facts are disclosed by the appellate authority and the Controller in reply affidavit before this Court. Because of time gap

when the defect in variety came to be noticed, the sample of cotton seeds

was neither available in market nor with the farmers. The petitioner, therefore, ought to have provided commercial bags available with it for necessary tests. It is urged that compensation has also been worked out

by the experts after following the procedure prescribed by 2009 Act or 2010 Rules framed thereunder.

12. In his reply arguments, Advocate Dani has submitted that as per rule 12(3)(a) of 2010 Rules, sample is to be collected by authorities from market and this requirement is with some purpose. The petitioner is not required to and expected to supply cotton seeds with it as it is against

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the said intention. He further submits that neither the Controller nor the appellate authority has recorded a finding that cotton seeds were not

available in market. In this situation, the fact that necessity to call for

cotton samples arose after sometime is not very relevant and authorities must adhere to procedure stipulated in 2009 Act or 2010 Rules, if they want to fasten the liability upon the petitioner.

13. The challenge before this Court in the present petition filed under Articles 226 and 227 of the Constitution of India is to concurrent

orders passed by the Controller and thereafter by the appellate authority.

The interference is possible only if the orders are shown to be suffering from vice of some jurisdictional error or perversity. If the authorities have

acted within four corners of law and looked into all relevant material, this Court cannot question that exercise. In State of A.P. v. P.V. Hanumantha Rao, (2003) 10 SCC 121, the Hon. Apex Court observes:-

"30. True it is that remedy of the writ petition available in

the High Court is not against the "decision" of the subordinate court, tribunal or authority but it is against the "decision-making process". In the "decision-making

process", if the court, tribunal or authority deciding the case, has ignored vital evidence and thereby arrived at erroneous conclusion or has misconstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the constitutional power of the High Court under Articles 226 and 227 can be invoked to set right such

errors and prevent gross injustice to the party complaining.

31. In the case of Surya Dev3 while examining the nature and ambit of power of the High Court to issue writs under Article 226 or 227 of the Constitution, the above-stated

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legal position has been recognized by observing thus: (SCC p. 696, para 39)

"39. Though we have tried to lay down broad

principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or

rigid rules. ... At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the judge."

32. This Court has recognized the right of the High Court

to interfere with orders of subordinate courts and tribunals where (1) there is an error manifest and apparent on the face of the proceedings such as when it is based on clear

misreading or utter disregard of the provisions of law, and (2) a grave injustice or gross failure of justice has occasioned thereby.

33. No doubt, it was held that neither in exercise of the

power of writ under Article 226 nor in supervisory jurisdiction under Article 227, the High Court will convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence. The power of the High Court in writ

jurisdiction to interfere where important evidence has been overlooked and the legal provisions involved are misinterpreted or misapplied has been recognised even in the case of Sawarn Singh1 on which strong reliance was placed on behalf of the State. The relevant observations

are: (SCC p. 872, para 13)

"13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally

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inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any

evidence at all, because in such cases the error amounts to an error of law."

In Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329,

in para 49, Hon. Apex Court has reiterated these principles.

14. Scheme of 2009 Act and 2010 Rules may now be looked into.

A. In present matter the relevant legal provisions are the 2009

Act and 2010 Rules framed thereunder. State Legislation has come to regulate the supply, distribution, sale and fixation of sale price of cotton

seeds , for matters connected therewith or incidental thereto. Certain varieties of the Cotton Seeds are found not notified under section 5 and therefore not regulated by section 7 of the Seeds Act, 1966 and as the

provisions of the Essential Commodities Act, 1955 are found not

applicable and State Government noted the need that traders in cotton seeds including transgenic cotton seed were exploiting poor farmers, the State has enacted this 2009 Act and 2010 Rules. In present facts, it is

necessary to briefly refer to the relevant provisions of the same as controversy presented needs to be decided in that background. It is important to note that there is no challenge to this legislation in present

petition.

B. Section 2 (x) defines "substandard seed" to mean cotton seed which does not meet the prescribed seed standard for the cotton seed.

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Section 3 enables State to appoint a Controller and section 4(2) empowers said Controller to determine the compensation payable for sale of

misbranded or or spurious or substandard seed, in such manner as may be

prescribed. Its Subsection (1)(ii) enables him to order compliance with the directions specified in the notification as variety, quality or quantity of cotton seeds being sold. Section 2 (vi) defines "prescribed" to mean

prescribed by Rules under 2009 Act. Section 5(1) obliges controller to register persons engaged in trade of cotton seeds in the State and make arrangements for payment of compensation to farmers. Section 6 permits

State to establish/recognize one or more seed State Seed Testing

Laboratories for analyzing the cotton seeds. Similarly for referral analysis, it may recognize the laboratories as referral seed testing laboratories.

Section 7 contemplates appointment of Seed Inspectors, enables him to take samples, to obtain analysis report thereof, to seize the stock of cotton seeds, records and take further action as specified in the 2009 Act.

Section 8 permits the State to appoint Seed Analyst and specify local area

of their operation. Section 9 stipulates steps and procedure to be followed by the Seed analyst after receipt of the sample from the Seed Inspector, institution of prosecution by the Seed Inspector, sending of retained

sample by the court to referral seed testing laboratories and supersession of report of seed analyst by the test report of such referral seed testing laboratories. Section 10 authorizes the State Government to fix the

maximum sale price of cotton seeds. Section 11 requires every person desirous of conducting the business of sale in cotton seeds to apply to Controller and to obtain license. Section 12 prohibits "misbranding" and as this section is of some importance here, the same is being looked into

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little later. Section 13 prescribes penalties either of imprisonment or fine or both for different violations. Section 14 points out how the commission

of an offence by the Company is to be dealt with. Section 15 permits

cognizance of an offence only when complaint in writing is made by the Controller or an officer authorized by him. Section 16 prohibits filing of a suit or prosecution or other legal proceedings against an authority or

person for anything done or purported to have been done in good faith in pursuance of provisions of this Act or Rules made thereunder. Section 17 constitutes by a deeming fiction, various officers under 2009 Act and every

person assisting them to be public servants within the meaning of section

21 of the Indian Penal Code. Section 18 is remedy of an appeal to Commissioner, Agriculture, Maharashtra State for any person aggrieved

by the decision of Controller under sections 4 and 5 and subsection (3) makes decision by the appellate authority final. Section 19 is forfeiture of cotton seeds after conviction and section 20 enables State to issue

directions to Controller, Seed Inspectors and Seed Analyst. Section 21

exempts sale of cotton seed grown and sold by a farmer to another on his premises directly and its use for sowing by such other farmer. Section 22 is power of State Government to frame Rules, Section 23 is power to remove

difficulties and Section 24 is repeal of Maharashtra Ordinance VI of 2009 due to enactment of 2009 Act.

C. Section 12 prohibits sale or possession of misbranded cotton seed. Under subsection (2), the Cotton Seed is deemed to be misbranded in various contingencies specified thereunder. Clauses "d" and "f" in this subsection are relevant here. Clause (d) covers cases where false claims

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are made for it "upon the label or otherwise". Under clause (f), if package containing the seeds or the label on the package bears any statement,

design or device regarding the quality of cotton seed contained therein

which is false or misleading in any material particular. Rule 3 of 2010 Rules is the requirement of labeling packages. Rule 3(1) obliges licensee to sell cotton seeds as per requirement of Rule 3. Sub-rule (2) requires

label to display minimum limit of physical purity,germination, genetic purity, standards of Bt. Protein and seed health as specified in notification issued under section 4(1)(ii) of 2009 Act as also expected performance of

seed in given conditions, applicable terms and conditions approved by

Genetic Engineering Approval Committee constituted under Environment (Protection) Act, 1986 for commercial release. Sub-rule (5) stipulates that

the label or mark shall not contain any statement, claim, design, device, fancy name or abbreviation which is false or misleading in any particular concerning the seed in container. Rule 11 prescribes manner of taking

sample for the purpose of analysis. Rule 12 deals with the procedure for

filing and dealing with the complaints by farmers. Such complaint to Seed Inspector may be in from "G" and it may be about poor germination, susceptibility to pests and diseases against the claims of seed producer,

genetic impurity, non-adaptability to the region, failure of cotton crop due to spurious or substandard quality of cotton seed supplied. Complaint about susceptibility to pests and diseases against the claims of seed

producer needs to be filed immediately after noticing the incidence as per sub-rule (2). Sub-rule (3) requires seed inspector to take sample of cotton seed from complainant if available, or then from market and send it to seed analyst for detailed analysis. He has to inspect the field and record

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necessary data. He then has to prepare a preliminary report in from II and forward it to District Level Investigation Committee for conducting a

detailed investigation as per sub-rule (4). Sub-rule (5) lays down that to

assist the Controller, there is a District Level Investigation Committee for assessment and evaluation of crop loss sustained. This Committee consists of District Superintending Agriculture Officer as Chairman, Agriculture

Development Officer as Member, Scientist dealing with Cotton Crop from Agricultural University in the area as member, Taluka Agriculture Officer of concerned taluka as member and District Quality Control Inspector in

district as member-secretary. Sub-rule (6) obliges and expects this

investigation committee to visit the field of complainant within 7 days of receipt of preliminary investigation report from the seed inspector for

detailed investigation. The representative of the seed producer and the complainant farmer is to be invited for such visit and investigation. Sub- rule (7) then requires the investigation committee to prepare a detail

report of its findings in form "T" and forward it to Controller for

consideration. This sub-rule requires consideration of certain factors by such committee while estimating the loss and those factors are cost of seed and cultivation per hector as per decision of agricultural university in

case of complaint of poor germination. In complaint of failure of required degree of resistance for pests and diseases, additional expenditure incurred in plant protection measures and estimated crop losses. In case of

genetic impurity or non-adaptability, loss is to be calculated by considering the difference in actual yield and normal yield in the locality. Sub-rule (8) empowers the Controller to issue order to seed producer after considering such report of the investigation committee, to pay compensation to the

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complainant. Sub-rule (9) obliges the seed producer to pay that compensation within 30 days and for delay, 24% interest is prescribed

with penalty. Rule 13 enables the aggrieved farmer or seed producer to

appeal to Commissioner, Agriculture, Maharashtra and states that decision of the appellate authority shall be final.

15. After hearing respective counsel, I find that here there is no challenge by the petitioner to any provisions of 2009 Act or 2010 Rules. The fact of disease and adverse effect thereof on the normal growth of

cotton plants is not in dispute. The petitioner has tried to urge that in

leaflet or pamphlet the warning that "cotton is susceptible to water stagnation for long duration and therefore care should be taken to drain

the excess water from the field" has been communicated. They also state that there was excessive rain in the months of August and September 2010 which caused water logging and thus crops were infested. Submission is,

this is external factor which has nothing to do with quality of Surpass SP

1037 (B.G.-II). Petitioner also urged that the complainant farmers refused to take advice of the Field Officer of the petitioner and did not take necessary corrective measures by spraying pesticides to help the crops to

recover the lost health. It is submitted that such spray would have reduced the incident of Alterneria Leaf Spot and Jassids which were observed on cotton plants. In fact, these are the challenges vide ground

Nos.(viii) and (ix) in the present petition by them. In ground No.(vi), they have stated that the facts seen and recorded by the representative of the petitioner during inspection of fields in the month of September 2010 were not looked into by the appellate authority. They submit that those

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observations were different from the observations of members of the committee which visited the fields on 26th and 27th November 2010.

Thus, it can be concluded that the petitioner was aware of the problem in

September 2010 itself.

16. In paragraph- 12 and ground (xi), they have stated that those

farmers who adhered to the advice of the petitioner and used pesticides achieved the same level of cotton production as they had achieved in the previous year. Thus, they have blamed the complainant farmers for

ignoring advice of the company. They have urged that those farmers,

who accepted the advice and implemented it, could get yield of 7 to 8 quintal per acre by 15th November 2010.

17. In this background, the material on record needs to be briefly mentioned. The petitioner points out show cause notice dated 8 th

November 2010 calling explanation as the first document. The show

cause notice requires it to explain the defects noticed, namely, improper growth of cotton plants; not bearing flowers in sufficient number; and entire cotton turning red. The reply has been submitted on 20 th

November 2010 in two parts. Part-I is on performance of cotton hybrid and it mentions that representative of the company was in constant touch with farmers and best advice was given to the farmers. Ideal practical

solutions were also offered depending upon past experience of company in the area and 10 farmers responded to it and got benefits on about 40 acres. After 23rd September 2010 incident, there was a cause and fear of social security for its employees, but they maintained telephone contact

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with farmers. Out of 103 listed farmers, it could contact only 50 farmers. They have submitted that some of the farmers were motivated towards

compensation and change in weather conditions has always posed

challenge to the agriculture. The chart prepared and filed as annexure- 1A with this reply shows details of action taken; observation; and response from farmers. The observations by the company show that damage was

due to weather and inadequate plant protection measures. Incidence of Alterneria Leaf Spots and Jassids were also observed.

18. The order of Controller dated 13 th April 2011 reveals that the

company had disclosed in its leaflet and had pointed out possibility of occurrence of Alterneria Leaf Blight in small percentage. Question was

put by said authority to its representative as to what company meant by small percentage and company disclosed that it meant impact on about 5% of the crop without affecting average yield. During inspection, the

said disease was found on about 40 to 70% of plants and because of it

growth of plants was stunted, the yield was reduced and this inference was accepted by the representative of the company. He also accepted that calculation of compensation was also correct and acceptable to the

company. The fact that large scale disease resulted in damage was also accepted. However, the representative of the company urged that farmers did not adopt the protective measures advised by the company and the

disease occurred only in the year 2008. The company sold about 40,000 seed bags and impact was noticed only on about 500 packets and 164 farmers. This itself, according to the said representative, was on account of weather conditions. The representative also accepted that the

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commercial bags of cotton seeds sold to farmers were available and would be supplied to District Superintending Agriculture Officer at Dhule.

19. The Controller has looked into the provisions of Act; Rules; the communication dated 19th March 2011 sent by the District Superintending Agriculture Officer, Dhule; complaints by farmers;

preliminary report of Seed Inspector; report of District Level Investigation Committee and also letter of District Superintending Agriculture Officer dated 29th March 2011; explanation furnished to show cause notice;

annexures thereto; documents showing rainfall in the area; and the chart

showing average cotton yield in Shirpur taluka has also been seen. On the basis of this material, the impact of Alterneria Leaf Blight disease on

40 to 70% of the variety of petitioner has been found much more and contrary to claim contained in leaflet. The petitioner is, therefore, found liable to pay an amount of Rs.44,77,672/- to 164 farmers. Accordingly,

direction has been issued in terms of rule 12(9) calling upon it to pay that

amount within 30 days and in default to pay 24% interest for delay and such other amount as penalty as may be levied by the Controller.

20. The aforesaid order was challenged by the petitioner- company by filing statutory appeal. In appeal memo, the facts noted by the Controller and recorded as accepted or admitted by the petitioner-

company have not been assailed in any manner. The appellate authority has extended opportunity of hearing to the petitioner, perused provisions of rule 12 and found that the petitioner had given misleading information about the properties of cotton seeds which amounted to mis-branding

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under rule 12(2)(f) read with rule 12(2)(d) of 2010 Rules. Its claim of possibility of occurrence of disease in small scale has been found to be

incorrect and, thus, findings of Controller as also compensation awarded

have been maintained.

21. It is these concurrent orders which are questioned in the

present petition. Various contentions noted above need to be viewed in the background of legal provisions as also the scope of present jurisdiction of this Court.

22.

The appellate order shows following important observations and conclusions drawn by the District Level Investigation Committee.

The said District Committee, which consists of independent and impartial officers and experts, noted that the variety was affected by fungus to the extent of 40 to 70%. This disease affects the plant growth at its initial

stage leading to loss of leaves and that prejudices photosynthesis. The

growth of plants was, thus, stunted. New leaves also fell prey to infection hence crop could not achieve average growth. The overall growth was not as required and height was restricted to 2 to 3 feet. The stem girth

and spread was small and branches were also very short. The cotton bearing fruits were less in percentage and its development, not proper. All this led to loss in yield and damage to the farmers. In the light of

these observations, mis-branding has been found to be established as the leaflet supplied by the company along with sales revealed that the variety was susceptible to disease of Alterneria Leaf Blight to small extent. In view of extent of 40 to 70% of the disease noted above, the authorities

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have found that the said claim of the petitioner- company was wrong and misleading. The farmers were, thus, cheated. The compensation

awarded by the first authority i.e. Controller has, thus, been maintained

by the appellate authority.

23. Perusal of scheme of 2010 Rules above reveals that as per rule

12(vi) the District Level investigation committee has to visit the spot within seven days after receipt of preliminary investigation report of the Seed Inspector. The representative of the seed producer has to remain

present during this inspection. It is, therefore, clear that this field

inspection is not to be conducted within seven days of the complaint made by farmers. The petitioner itself has stated that their representatives were

aware of this position since September 2010 and also pointed out efforts made to cope up with it. The knowledge of malady is thus much before the alleged first date of communication i.e. 8 th November 2010. The

defects in growth of cotton plants noted above does not show that the

field inspection by the District Level Investigation Committee after seven days has caused any prejudice to the petitioner. The representative of the petitioner or the petitioner has not raised any objection to any

observations made by said committee members. Thus, contention that inspection has not been conducted within seven days is being raised only to infuse life into the challenge.

24. Advocate Dani also submitted that no independent sample of the cotton seeds used by farmers was obtained. The first order passed by the Controller shows a finding in paragraph-9 that the District

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Superintending Agriculture Officer, Dhule had demanded the said cotton seeds used by farmers from petitioner. The petitioner sent the samples in

loose cotton bags. Because of this action, those cotton seeds could not be

forwarded to the laboratory for its testing. But the representative of the petitioner had then accepted that commercial bags sold to farmers were available and would be supplied to District Superintending Agriculture

Officer. The said commercial bags have not been supplied at any point of time. Though, in ideal situation instead of demanding such sample from the petitioner, the same ought to have been collected from market, here

the occurrence of disease and therefore mis-branding has come to light

after complaints of farmers and in September 2010 when the said variety was not available for sale in market and farmers also had no cotton seeds

left with them. The petitioner, therefore, could have supplied commercial bags with it as the same were available in its stock. No reason has been assigned for its non-supply. The samples were demanded from the

petitioner and, therefore, the petitioner was duty bound to make available

the same for analysis. The petitioner cannot contend that test samples cannot be obtained from it. The supply of commercial bags for test analysis would have helped authorities in obtaining necessary scientific

opinion on the properties of the cotton seeds. The petitioner avoided to do so and, therefore, cannot now complain that there is no test analysis. The non-supply of commercial bags for such analysis by the petitioner is

sufficient to draw an adverse inference against it.

25. The contention that label put on commercial packet does not contain any statement about immunity is again without any merit. The

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perusal of section 12 of 2009 Act, particularly, sub-section (2)(d) thereof shows that such a claim cannot be made upon the label "or otherwise".

Thus, even if such claim is made in leaflet that is sufficient to attract the

bar under this provision. The leaflet is produced by the petitioner itself and in leaflet they have accepted susceptibility to rain in small proportion. The authorities have enquired abut the exact meaning of this phrase and

what petitioner wanted to communicate farmers about it. The representative of the petitioner then communicated that 4 to 5% of the crop may get affected. On facts, this claim is found to be incorrect and

misleading. Perusal of clause (f) of sub-section (2) of section 12 reveals

that even if package containing cotton seeds or the label of packet bears any statement, device or design regarding quality of cotton seeds

contained therein and that statement is false or misleading in any material particular, the Act constitutes mis-branding. The leaflet shows that plant may be affected by Alterneria Leaf Blight in small proportion.

The pamphlet to which the petitioner has invited attention shows a

warning to the farmers that cotton crop is susceptible to water stagnation for long duration and, therefore, care should be taken to drain the excess water from the field. The extent of disease noted shows that above

mentioned disease has affected 40 to 70% of crop. Both the authorities have correctly found that the claim made by the company was misleading. Many farmers may have purchased said variety because of this claim of

the petitioner- company that disease may affect it in small proportion. The company has attempted to show that it has sold total 40,000 packets, out of it only 500 commercial packets are found to be affected by disease and those 500 packets were purchased by 164 farmers. Thus, this 500

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packets are not randomly selected from said 40,000 packets but are sold in a particular area. Hence this claim of small proportion, as only 500

packets are found to be sub-standard or mis-branded, is again

misconceived.

26. The quantification of damage during spot inspection by

District Level Investigation Committee was never disputed. In fact, that exercise has been admitted and accepted to be correct by the petitioner. Observation to that effect contained in the order of the Controller is not

shown to be erroneous or perverse. Provisions of rule 12 of 2010 Rules,

particularly, sub-rule (7) shows the mode and manner in which District Level Investigation Committee has to proceed to prepare a detailed report

and compute damages. Factors to be considered by such committee are mentioned in clauses (i), (ii), and (iii) of this sub-rule. The provisions of clause (ii) show that when there is failure of required degree of resistance

for pest and disease as per variety specific claim made by said producer,

the loss needs to be calculated considering additional expenditure incurred on plant protection measures and estimated crop loss due to failure of resistance to pest or disease. As per clause (iii), where there is

generic impurity or non- adaptability, the loss needs to be calculated considering the cost difference in yield of crop in question and normal yield of cotton crop in the locality. It is not the case of petitioner that

these factors have not been looked into by the investigation committee. Their representative was very much present during field inspection and could have also invited attention of committee members to such other details as he thought it necessary. The defence of petitioner- company

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itself shows that it offered help to farmers to cope up with disease and some of the farmers accepted that help and because of that acceptance,

those farmers could save their crop-loss to certain extent. The scheme

noted above shows that additional expenditure incurred on such measures and estimated crop loss due to failure of resistance to pest or disease are to be clubbed together for working out damages. The petitioner who has

disputed the claim of farmers and also ascribed ill motives to them have not shown any positive efforts made by them to induce farmers for incurring such additional expenditure. Similarly, it is not expected of

each farmer to agree to such additional expenditure or even to avail help

in peculiar situation. The petitioner has pointed out threat to its staff during said period on account of occurrence of disease and consequential

problems. The farmers who purchased said variety of cotton seed because of claim made by the petitioner cannot be blamed. There is no scope for considering this plea of mitigation of damages in scheme of

above-mentioned rule 12 and in present facts.

27. Consideration above, therefore, shows that the Seed Inspector as also District Level Investigation Committee functioning under the Act

and Rules have discharged their obligation within four corners of law. The Controller has then looked into entire relevant material and thereafter ordered compensation to be paid to the farmers. In appeal,

this exercise has been upheld. Both these authorities have looked into entire material produced and relevant for exercise of jurisdiction by them. There is no perversity in the findings recorded. Similarly, there is no jurisdictional error. There are no allegations of any bias or malafides. The

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impugned orders are, thus, in conformity with the scheme and spirit of 2009 Act and 2010 Rules. No case is, therefore, made out warranting

interference in writ jurisdiction.

28. Petition is, therefore, dismissed. Rule discharged. No costs.

29. In view of this, Civil Application No.494/2012 seeking stay to the impugned order during pendency of the petition is also disposed of.

30. At this stage, Mr.Dani, learned counsel for the petitioner

states that as the papers were not available in section, amendment could not be carried out. He states that if papers are made available

amendment can be carried out forthwith. Accordingly, leave to carry out amendment granted.

31. He further pointed out that interim order has been operating

in the matter and some amount is already deposited with this Court. He, therefore, seeks its continuation for a period of 10 weeks. Respective counsel for the respondents fairly give no objection.

32. In the circumstances, interim order already operating to continue for a period of 10 weeks more. It shall cease to operate

automatically thereafter.

(B.P. DHARMADHIKARI, J.) Sanjay Nanoskar, P.S.