The court emphasized the importance of ensuring accurate testing and analysis of samples in accordance with the Fertilizer Control Order to avoid civil consequences and uncertainty.

SANJEEV SACHDEVA, J.

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 appro