Kerala High Court
Kochouseph Chittilappilly vs Union Of India on 28 May, 2019
Equivalent citations: AIR 2020 (NOC) 563 (KER.), AIRONLINE 2019 KER 621
Author: A.K.Jayasankaran Nambiar
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941
WA.No.621 of 2013
AGAINST THE JUDGMENT IN WPC 10917/2011 of HIGH COURT OF KERALA
DATED 13-03-2013
APPELLANTS/PETITIONERS 1 AND 3 TO 6 IN WP:
1 KOCHOUSEPH CHITTILAPPILLY,
(EX) MANAGING DIRECTOR, (NOW CHAIRMAN),
V-GUARD INDUSTRIES LTD., CHITTILAPPILLY HOUSE,
BYE PASS ROAD, KOCHI - 682 028.
2 MITHUN CHITTILAPPILLY
DIRECTOR, (NOW MANAGING DIRECTOR),
V-GUARD INDUSTRIES LTD., CHITTILAPPILLY HOUSE,
BYE PASS ROAD, KOCHI - 682 028.
3 K.VIJAYAN,
EX.DIRECTOR, V-GUARD INDUSTRIES LTD., AIR HOUSE,
44/536, SASTHA TEMPLE ROAD, KALOOR, KOCHI -682 036.
4 R.KRISHNA IYER,
EX.DIRECTOR, V-GUARD INDUSTRIES LTD., JYOTHI, 134,
PANAMPILLY NAGAR, KOCHI - 682 036.
5 C.J.GEORGE,
DIRECTOR, V-GUARD INDUSTRIES LTD., 12A,
SKYLINE ELYSIUM GARDENS, STADIUM LINK ROAD,
BEHIND NEHRU STADIUM, KALOOR, KOCHI - 682 017.
BY ADVS.
SRI.CHACKO GEORGE (SR.)
SRI.ALEX N.MATHEW (KOLLAM)
SRI.H.RAMANAN
SRI.JAMES JOSE
W.A.621, 734 & 735 of 2013
2
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF CONSUMER AFFAIRS, FOOD & DISTRIBUTION,
KENDRIYA BHAVAN, NEW DELHI-110 001.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, THIRUVANANTHAPURAM.
3 INSPECTOR OF LEGAL METROLOGY
CIRCLE-1, IRINJALAKUDA.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.SURIN GEORGE IPE, SR. GOVERNMENT PLEADER
SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2019, ALONG
WITH WA.734/2013 & WA.735/2013, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
W.A.621, 734 & 735 of 2013
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941
WA.No. 734 of 2013
AGAINST THE JUDGMENT IN WPC 20384/2011 of HIGH COURT OF KERALA
DATED 13-03-2013
APPELLANTS/PETITIONERS:
1 JERRY MATHEW
AGED 45 YEARS
MANAGING DIRECTOR,LAN MARK SHOPS(I) PVT. LTD., 7A,
TOC-H RETREAT, TOC-H NAGAR, VYTTILA-682 019.
2 V.RAMACHANDRAN
DIRECTOR, LAN MARK SHOPS(I) PVT. LTD.,
KARISOONDA MANGALAM, THIRUNAKKARA WEST, KOTTAYAM.
3 SUSHIL JOSEPH
DIRECTOR,LAN MARK SHOPS(I) PVT. LTD.,
PARAKKADAVIL HOUSE, FATHIMAPURAM.P.O.,
CHANGANASSERY, KOTTAYAM.
4 BINU PURUSHOTHAMAN
DIRECTOR,LAN MARK SHOPS(I) PVT. LTD.,
6B, KAVADIYAR MANOR, JAWAHAR NAGAR,
THIRUVANANTHAPURAM-695 003.
5 ZACHARIA ABRAHAM
DIRECTOR,LAN MARK SHOPS(I) PVT. LTD.,
NJAVALLIL HOUSE, KURISINGAL, KANJIRAPPILLY-686 507.
6 SANDEEP NAIR
DIRECTOR,LAN MARK SHOPS(I) PVT. LTD.,
KUMAR NIVAS, PULLURAPPILLIL HOUSE,
VADAKKUMPURAM.P.O., KOCHI-683 521.
W.A.621, 734 & 735 of 2013
4
7 ALEX THOMAS
DIRECTOR, LAN MARK SHOPS(I) PVT. LTD., RIVER DALE,
T-4, EROOR, THRIPPUNITHURA, ERNAKULAM.
BY ADVS.
SRI.CHACKO GEORGE (SR.)
SRI.ALEX N.MATHEW (KOLLAM)
SRI.H.RAMANAN
SRI.JAMES JOSE
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF CONSUMER AFFAIRS, FOOD & DISTRIBUTION,
KENDRIYA BHAVAN, NEW DELHI-110 001.
2 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE
DEPARTMENT, THIRUVANANTHAPURAM.
3 INSPECTOR OF LEGAL METROLOGY
CIRCLE-I, IRINJALAKUDA.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.SURIN GEORGE IPE, SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2019, ALONG
WITH WA.735/2013 & WA.621/2013, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
W.A.621, 734 & 735 of 2013
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941
WA.No. 735 of 2013
AGAINST THE JUDGMENT IN WPC 20387/2011 of HIGH COURT OF KERALA
APPELLANT/PETITIONER:
R.VENKITARAMAN
PROPRIETOR, V-TWO DISTRIBUTORS, LATHA,
GANAPATHI AGRAHARAM, POONKUNNAM, THRISSUR.
BY ADVS.
SRI.CHACKO GEORGE (SR.)
SRI.ALEX N.MATHEW (KOLLAM)
SRI.H.RAMANAN
SRI.JAMES JOSE
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SECRETARY TO GOVERNMENT,
MINISTRY OF CONSUMER AFFAIRS, FOOD & DISTRIBUTION,
KENDRIYA BHAVAN, NEW DELHI-110 001.
2 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, THIRUVANANTHAPURAM.
3 INSPECTOR OF LEGAL METROLOGY
CIRCLE-1, IRINJALAKUDA.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.SURIN GEORGE IPE, SR. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28.05.2019, ALONG
WITH WA.621/2013 & WA.734/2013, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
W.A.621, 734 & 735 of 2013
6
JUDGMENT
A.K.Jayasankaran Nambiar, J.
These writ appeals impugn the common judgment dated 13.3.2013 of the learned single Judge in W.P.(C)Nos.10917 of 2011, 20384 of 2011 and 20387 of 2011. The writ petitions were taken up for hearing along with Crl.M.C.s filed by the petitioners in the writ petitions, who were incidentally being prosecuted on a complaint filed by the Inspector of Legal Metrology, Circle-1, Irinjalakkuda. The prosecution alleged violation of Rule 6(1A) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (hereinafter referred to as 'the Packaged Commodities Rules' for short) and a consequent contravention of Section 39 of the Standards of Weights and Measures Act, 1976 (hereinafter referred to as 'the 1976 Act' for short). While the judgment, to the extent it covered the Crl.M.C's, was set aside by the Supreme Court in proceedings carried by the petitioners herein, and the Crl.M.C's remanded for fresh consideration by this court, the present appeals are against the findings in the judgment in relation to the contentions urged in the writ petitions where the validity of Rule 6(1A) of the Standards of Weights and Measures (Packaged Commodities) Rules was called in question.
2. The principal ground of challenge in the writ petitions, against the legal validity of the aforementioned provision, was that in terms of Section 83 of the 1976 Act, the power to frame rules was vested in the Central Government and the said power was bifurcated into a general power to make rules to carry out the provisions of the Act and a specific power to frame rules in respect of the subjects enumerated under sub- section (2) of Section 83. It was pointed out that clause (r) of Section 83(2) contained W.A.621, 734 & 735 of 2013 7 the specific power to make rules with regard to the manner of making declarations on packages in terms of sub-sections (1) and (2) of Section 39. Referring to the said clause in Section 83(2), it was contended that inasmuch as the declaration stipulated in rule 6(1A) was outside the ambit of the declaration envisaged in Section 83(2)(r), the provisions of rule 6(1A) of the Packaged Commodities Rules was ultra vires the rule making power conferred on the Central Government by Section 83 of the 1976 Act. It was also contended that any amendment made to Section 39 of the 1976 Act by the Parliament or to the Packaged Commodities Rules by the Central Government, after 24.7.1992, when the State Government had by an appropriate notification brought into force the Standards of Weights and Measures Enforcement Act in the State of Kerala, would have no application to commodities in packaged form dealt with exclusively in the State of Kerala. Such amendments according to the petitioner fell outside the operational ambit of Section 33 of the Enforcement Act. It was on the said premises that the writ petitions were filed challenging the validity of Rule 6(1A) of the Packaged Commodities Rules.
3. The learned single Judge, who considered the matter, referred to the provisions of Section 39 and Section 83 of the 1976 Act and also the provisions of rule 6(1A) of the Packaged Commodities Rules. It was noticed that the specific subjects enumerated under sub-section (2) of Section 83 for framing of rules by the Central Government were only illustrative in nature and not exhaustive. The learned Judge found that the power to make rules to give effect to the provisions of the Act was wide and general in nature, and what was provided in sub-section (2) of Section 83 was only a specific power to frame rules in respect of the subjects enumerated thereunder without effecting the generality of the power to frame rules for carrying out the W.A.621, 734 & 735 of 2013 8 provisions of the Act. Support was drawn from the provisions of Section 83 (2) (zd) which made it clear that the rule making power of the Government extended to any other matter which was required to be, or may be, prescribed. The learned Judge therefore found that the declaration mandated in rule 6(1A) of the Packaged Commodities Rules was not one that could be seen as beyond the rule making power of the Central Government under Section 83 and, at any rate, was a declaration that was intended to subserve the provisions of the 1976 Act. The writ petitions were therefore found devoid of merit and accordingly dismissed.
4. Before us, it is the vehement submission of the learned counsel for the appellants Sri.H.Ramanan that the declaration required in terms of Rule 6(1A) of the Packaged Commodities Rules has no nexus with the safeguard that is envisaged under Section 39 of the 1976 Act. It is his contention therefore that the general power of the Central Government to make rules for carrying out the provisions of the Act under Section 83 of the 1976 Act could not extend to making a rule mandating a declaration that was not contemplated under Section 39 of the 1976 Act. We are afraid, we cannot accept the said contention so vehemently urged by the learned counsel for the appellants for more reasons than one. At the very outset we must notice that as per the scheme of the 1976 Act, and in particular Chapter IV thereof, a regulation is envisaged in respect of the commodities in packaged form intended to be sold or distributed in the course of inter-state trade or commerce. Section 39 mandates that no person shall make, manufacture, pack, sell, or cause to be packed or sold; or distribute, deliver, or cause to be distributed or delivered; or offer, expose or possess for sale, any applicable commodity in packaged form unless such package bears thereon or on a label securely attached thereto a definite, plain and conspicuous declaration, made W.A.621, 734 & 735 of 2013 9 in the prescribed manner, of the identify of the commodity in the package; the net quantity, in terms of the standard unit of weight or measure, of the commodity in the package; where the commodity is packaged or sold by number, the accurate number of the commodity contained in the package; the unit sale price of the commodity in the package; and the sale price of the package. The said declarations all have a nexus with the commodity that is contained in the package and is intended to inform the consumer of the various features of the commodity that is contained in the package procured by him. Section 39(2) mandates that every package to which the provisions of Chapter IV applies shall bear thereon the name of the manufacturer and also of the packer or distributor of the commodity in question. The said declaration is one that is intended to inform the consumer of the details of the manufacturer, packer or distributor of the commodity in packaged form and virtually points to the identity of the said person so as to enable the consumer to approach the said person in the event of him noticing a defect in the commodity procured by him. It is in the backdrop of the said provision that we have to consider the extent of the rule making power conferred on the Central Government under Section 83 of the 1976 Act. When so read, the provisions of Section 83 and the general power conferred on the Central Government to make rules for carrying out the provisions of the Act have necessarily to be seen as including a power to make a rule for the purposes of furthering the object of Section 39(2) of the 1976 Act which relates to the identification of the manufacturer and packer or distributor of the packaged commodity. Rule 6(1A) of the Packaged Commodities Rules only envisages that every package shall bear the name, address, telephone number, E-mail address, if available, of the person who can be or the office which can be, contacted, in case of consumer complaints. Inasmuch as a consumer complaint in respect of the packaged commodity, with which we are concerned in these writ petitions, can only be W.A.621, 734 & 735 of 2013 10 addressed to the manufacturer/packer or distributor of the packaged commodity through whose hands the packaged commodity eventually reaches the consumer, we are of the view that the requirement of indicating the details of the person, who can be contacted in the event of consumer complaint, cannot be seen as having no nexus to the requirement of indicating the name of the manufacturer as also of the packer or distributor as mandated in Section 39(2) of the 1976 Act. The declaration envisaged in Rule 6(1A) of the Packaged Commodities Rules is, in our view, one that is required for carrying out the mandate under Section 39(2) of the 1976 Act of informing the consumer of the details regarding the manufacturer/packer/distributor of the commodity and the address to which his concerns with regard to the quality of the commodity can be addressed.
We are therefore in agreement with the findings of the learned single Judge in the impugned judgment that the Rule does not suffer from any illegality, and that it is a Rule that comes within the ambit of the rule making power of the Central Government under Section 83 of the 1976 Act. We therefore uphold the judgment of the learned single Judge impugned in these writ appeals for the reasons stated therein as also for the reasons supplemented in this judgment and dismiss these writ appeals as devoid of merit.
Sd/-
Hrishikesh Roy, Chief Justice Sd/-
A.K.Jayasankaran Nambiar, Judge vpv /true copy/ P.A. To Judge