JUDGMENT
Mahinder Narain, J.
(1) The petitioners are small scale units, manufacturing Single Super Phosphate Fertilizer. The claim in this petition is that as a manufacturer of Single Super Phosphate Fertilizer, they were entitled to subsidy in accordance with the retention price on subsidy scheme postulated by the respondent No.2.
(2) According to the said retention price subsidy scheme (hereinafter called “the M/s. Brij Fertilizers Pvt. Ltd. & Another Vs. Union of India & Another 5 8 3 Scheme”), if the manufacturer of Single Super Phosphate which had water soluble 16% Phosphate Pentaoxids (Pflj, then they were entitled to this subsidy.
(3) In the counter-affidavit filed, it has been admitted in para 20 that the primary basis for receiving the subsidy is the certificate tendered on a monthly claim for the quality check to be given by the Single Super Phosphate units themselves.
(4) It is not in dispute that the quality certificates required to be submitted were, in fact, submitted.
(5) It is asserted by the respondents that the reason for stopping the subsidy was that it was discovered as a result which had been obtained from the Project Development India Ltd. (hereinafter called “PDIL”), that the Hirapur and Jhabua rock phosphates which were being used by the petitioner, could not possibly lead to a water soluble 16% Single Super Phosphate, unless the rock phosphate was mixed with some rock phosphate which was of higher grade than was available either from Jhabua or Hirapur.
(6) According to the Pdil report, the Hirapur rock phosphate contained only 25% Phosphate Pentaoxide and the Jhabua rock phosphate contained 29% Phosphate Pentaoride, and the contents of rock phosphate was incapable of yielding water soluble Single Super Phosphate, when the rock phosphate had been made to react with Sulphuric Acid (HSO).
(7) It is pointed out by Counsel for the petitioners that by their letter dated 4.4.1992, which is annexure Iii to the rejoinder, the Assistant General Manager of Mining at Hirapur Sub-Office of the Madhya Pradesh State Mining Corporation, had informed the Joint Director, Fertilizers Industry Co-ordination Committee that the rock phosphate which is available from Hirapur is of different grades, i.e. graded as Grade. I-A, I-B and 2. That rock phosphate which is collected from a particular site or vein, would determine whether it is of grade A or it is of some other grade. The Pdil report, it is not disputed, was obtained by the respondents without notice to any of the petitioners. The petitioners were not asked to participate in the sample taking or in the testing. It is obviously a report, therefore, which has been taken, in the legal sense, behind the back of the petitioners, and they cannot be made lo suffer on that account.
(8) Inasmuch as the respondents have admitted that the subsidy is to be given on the basis of the laboratory reports furnished by the petitioners by themselves, these reports having been furnished by the petitioners, this report having not been questioned at any time by the respondents, they would be entitled to the subsidy which has been denied to the petitioners.
(9) Another thing to be noted is that the rock phosphate which was used by the petitioners, from which the petitioners were manufacturing the single super phosphate, cannot now be tested as the same has been used up, and according to the petitioners, for the lack of subsidy their units have been lying closed.
(10) In this view of the matter, this writ petition must succeed. The petitioners having complied with the requirements of the subsidy scheme, they are entitled to the subsidy which has been (r)vithheld. We, therefore, direct that the respondents should make payment of the subsidy amount which ought to have been paid to each of the petitioners, as and when they became entitled to the same in accordance with the bills which have been submitted by the petitions from time to time.
(11) The subsidy which is payable to each of the units, may be determined in accordance with and in terms of the scheme and paid over to each of the petitioners within six weeks from today.
(12) In the facts and circumstances of the case, we think costs are payable, which we quantify at Rs. 5,000.00 .
