Delhi High Court
M/S Liven Agrichem Pte Ltd. & Anr. vs Union Of India & Ors on 19 May, 2017
$~15
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 19.05.2017
+ W.P.(C) 10781/2016
M/S LIVEN AGRICHEM PTE LTD. & ANR. ..... Petitioners
versus
UNION OF INDIA & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner :
Mr P.Chidambaram, Senior Advocate and Mr Dhruv Mehta,
Senior Advocate with Ms Udita Singh.
For the Respondent : Mr Vikram Jetly, Advocate with Mr H.P.Singh, Law Officer,
DAC& FW. Mr S.Bhardwaj, Assistant Commissioner
(Shipping).
Mr Sudipto Sircar, Advocate for R-4.
Mr Srinam Krishna and Mr Ruchir Ranjan Rai, Advocates for
R-3.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
19.05.2017
SANJEEV SACHDEVA, J. (ORAL)
W.P.(C) 10781/2016 & CM No.42190/2016(stay)
1. The petitioners, by the present petition, seek a direction to
respondent Nos.1 & 2 to allow re-testing of the third sample lying
with Central Fertilizer Quality Control & Training Institute
Laboratory, Faridabad (CFQCL&TI).
2. The petitioners under a Contract with respondent No.3 had
shipped Urea. In terms of the Agreement, sample of the Urea was to
be drawn for the purposes ascertaining whether the same
corresponded with the specifications as agreed to between the parties.
3. It is an admitted position that a single sample was drawn that
was broken into three parts.
4. One of the said samples was sent for testing to CFQCL&TI,
Faridabad which submitted report dated 20.07.2015.
5. The said laboratory reported the nitrogen content in the Urea to
be 46.20% by weight. The nitrogen content was standard and in terms
of the contract. The particle size was found to be 73.54 as against 96,
which was non-standard.
6. Since the particle size was reported to be non-standard, the
petitioners requested, in terms of the Contract, to refer the second part
of the sample for Umpire Analysis.
7. Learned senior counsel for the petitioners contends that since
the report had indicated that the particle size was non-standard, the
Umpire Analysis should have been only with regard to particle size,
however, the Laboratory to which the sample was sent submitted a
report both with regard to the nitrogen content as well as particle size.
8. The Umpire Analysis was rendered by the Fertilizer Quality
Control Laboratory, Bhopal. In the report dated 30.09.2015 issued by
the said Laboratory, the Nitrogen content was shown to be 38.92% as
against 46.20, which was reported by CFQCL&TI, Faridabad. The
particle size was shown to be 64.70 as against 73.54.
9. In terms of the Umpire Analysis Report rendered by Fertilizer
Quality Control Laboratory, Bhopal both the nitrogen content as well
as the particle size were non-standard.
10. Learned senior counsel for the petitioners submits that in terms
of the properties of urea, chemical content of nitrogen can never fall
below 46%. Without prejudice to the same, he, submits that as only
one sample was drawn and it was broken into three parts, it is not
possible that there can be a difference in the chemical analysis of two
accredited Laboratories report. He submits that there is an apparent
error in the reports.
11. It is, in these circumstances that the petitioners have prayed that
the third part of the sample be sent to a referral Laboratory in terms of
Clause 29B of the Contractual and Fertilizer (Control) Order, 1985
(hereinafter referred to as the 'Fertilizer Control Order').
12. Learned counsel appearing for respondent No.3 submits that
respondent No.3 has acted upon the second report and since the
second report had shown both the nitrogen content as well as the
particle size as non-standard, respondent No.3 had rejected the
consignment.
13. Learned counsel for the respondents submits that there is no
provision in the Fertilizer Control Order for testing the third part of
the sample for analysis.
14. I am unable to accept the objection raised by the learned
counsel for respondent Nos.1 & 2 in view of the fact that there is great
variation in the Analysis Report of the two Laboratories insofar as the
nitrogen content is concerned.
15. Admittedly only one sample was drawn, which was broken into
three parts. Testing of two parts of the same sample cannot show such
a variation which may happen at the time of testing of two different
Laboratories.
16. It is an admitted position that only one sample was drawn then
broken into three parts. One part each was tested by the two
laboratories. The Laboratory at Faridabad reported the nitrogen
content, i.e. nitrogen percentage by weight as 46.20%. The second
Laboratory at Bhopal has reported the nitrogen content by weight to
be 38.92%. There is a great variation, i.e. variation of -7.28, which
would translate to approximately 15% within the two reports.
17. Since there is substantial variation in the Analysis Report, civil
consequences have flown, which would adversely affect the rights of
either the petitioner or respondent No.3. There is no clarity as to
which of the two reports is accepted. If the report of Faridabad
Laboratory dated 20.07.2015 is accepted, then only particle size is
non-standard and the nitrogen content is standard and within the
acceptable limit, as per the contract between the petitioner and
respondent No.3. In case the report of the Bhopal Laboratory dated
30.09.2015 is accepted, both the particle size and nitrogen content is
non-standard.
18. Since there is no clarity as to which is the report to be accepted,
in the interest of justice, it would be appropriate to send the third part
of the sample for the purposes of a chemical analysis by a Laboratory
duly recognized in terms of Clause 29B of the Fertilizer Control
Order.
19. Learned counsel for the respondent Nos. 1 & 2 submits that the
petitioners cannot be informed in advance as to which Laboratory the
third part of the sample is to be sent.
20. In view of the above, respondents 1 & 2 are directed, at their
own discretion and without informing either of the parties, refer the
third part of the sample to a Central Government Laboratory (other
than the above referred two Laboratories) duly authorized and
recognized in terms of clause 29B of the Fertilizer Control Order.
Respondents 1 & 2 shall send the sample to the third Laboratory for
referral analysis in terms of clause 29B of Fertilizer Control Order.
21. On a report being received from the said Laboratory, copy of
the same shall be furnished to the petitioner as well as respondent
No.3.
22. The cost of the chemical analysis shall be borne by the
petitioner.
23. The Writ Petition is disposed of in the above terms.
24. Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
MAY 19, 2017/'Sn'
