Uttarakhand High Court
Reliance Retail Limited vs Union Of India And Others on 25 October, 2017
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 189 of 2017
Reliance Retail Limited. ........Appellant
Versus
Union of India & others. .......Respondents
Mr. A.S. Rawat, Senior Advocate, assisted by Mr. Devendra Singh Bohra, Advocate for
the appellant.
Mr. Sanjay Bhatt, Standing Counsel for Union of India/respondent nos. 1 & 2.
Mr. Mohit Maulekhi, Brief Holder for the State of Uttarakhand/respondent nos. 3 & 4.
Dated: 25th October, 2017
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
K.M. Joseph, C.J. (Oral) Appellant is the writ petitioner. The relief sought in the writ petition is as follows:
"(a) issue an appropriate writ or order or direction in the nature of certiorari quashing the notices dated 05.11.2016, 02.01.2017, 06.02.2017 and 24.03.2017 issued by the Respondent no. 4 (Annexure No. 2, 4, 6 & 7 to the writ petition)."
2. Briefly put, the case of the appellant is as follows:
Appellant is a company registered under the Indian Companies Act. It is involved in the business of retailing of apparels through its stores on PAN India basis and is also having one of its Retail stores at Bhotia Paraw, Nainital Road, Haldwani, District Nainital. In brief, the appellant's case is that the 2 appellant is selling the clothes in loose, therefore, the concept of pre-packaged commodities, as defined under Section 2 (l) of the Legal Metrology Act, 2009, is not applicable and, therefore, the appellant is free from the obligation under Section 18 of the Legal Metrology Act.
3. Appellant has produced certain photographs in support of its case that the appellant's goods are being sold in loose. Further, appellant has already produced a circular/communication dated 16.12.2016 issued by the Legal Metrology Division, which reads as follows:
"WM-10(5)/2016 Government of India Ministry of Consumer Affairs, Food and Public Distribution Department of Consumer Affairs Legal Metrology Division Krishi Bhawan, New Delhi Dated: 16.12.2016 To, The Controllers of Legal Metrology, All States/UTs Subject:- The Legal Metrology (Packaged Commodities) Rules, 2011 - Advisory for enforcement of provisions of Rules for Readymade Garments/Hosiery products - regarding.
Sir, The undersigned is directed to refer to the references received from M/o Textiles and Industry Associations regarding the labeling requirements of readymade garments.
2. In this context, in continuation of this Department's letter No. WM-10(5)/2016 dated 16th September, 2016 it is further advised that:
(i) The mandatory labeling requirements under the Legal Metrology (Packaged Commodities) Rules, 2011 are applicable only for pre-packaged commodities, defined under Section 2(l) of the Legal Metrology Act, 2009.3
(ii) The mandatory labeling requirements for pre-packaged commodities are therefore not applicable to garments sold in loose form
(iii) The labeling requirements for garments sold in loose form in retail stores may include only the following declaration w.e.f. 1st July, 2017:-
(a) Name/Description of the product
(b) Size: Internationally recognizable size indicators - S, M, L, XL, etc. along with details in metric notation in terms of cm or m as case may be.
(c) MRP
(d) Name, Full address & Customer Care No. of the manufacturer.
3. In the case of readymade garments sold to consumer in Pre-packaged form, declarations required under the Rules may be made. Further, the size of the garments needs to be mentioned in meters or centimeters, as the case may be, and any additional detail such as S, M, L, XL, XXL etc. may be treated as additional declaration.
4. This issues with the approval of the Competent Authority.
Yours faithfully, Sd/-
(B.N. Dixit) Director of Legal Metrology Tel: 011-23389489/Fax.-011-23385322 Email: [email protected] Copy to: (1) Trade Advisor, Ministry of Textiles, Udyog Bhawan, New Delhi for kind information (2) Shri G K Rajnish, Under Secretary, International Export Division, Ministry of Textiles, Udyog Bhawan, New Delhi for kind information (3) Clothing Manufacturers Association of India, Federation of Hosiery Manufacturers' Association of India, South India Hosiery Manufacturers Association, Federation of Mumbai Retail Cloth Dealers Association and Retail Association of India for kind information."
4. The learned Single Judge, after narrating the facts, has taken note of the fact that the matter is now seized of by the Chief Judicial Magistrate and declined to interfere in proceedings under Article 226 of the 4 Constitution of India. The learned Single Judge took the view as follows and dismissed the writ petition in limine:
"3. All the same, from the perusal of the notices, it is prima facie clear that the details which were necessary to be given were not given or were incomplete. Since, the matter has now been presented before a Judicial Magistrate, it would not be proper to adjudicate the same in the present writ petition. The matter shall be decided by the Chief Judicial Magistrate in accordance with law.
4. It is, however, made clear that there are no observations made by this Court as to the merit of the case and the matter shall be decided by the learned Magistrate in accordance with law. The preliminary objections as to the applicability of the Act shall be examined first."
5. We heard Mr. A.S. Rawat, learned Senior Advocate, assisted by Mr. Devendra Singh Bohra, learned counsel for the appellant, Mr. Sanjay Bhatt, learned Standing Counsel appearing for Union of India and also Mr. Mohit Maulekhi, learned Brief Holder appearing for the State of Uttarakhand.
6. Mr. A.S. Rawat, learned Senior Counsel appearing for the appellant would reiterate that the appellant is only selling the clothes as a retailer and in loose. He drew our attention to the definition of pre- packaged commodities in Section 2(l) of the Legal Metrology Act and also Section 18 of the Legal Metrology Act, which refers to declarations to be made on pre-packaged commodities. He would then submit 5 that there are photographs, which reveal the position that the appellant is only selling the goods in loose. He would further point out that, in reply to the notices sent, the appellant has given its response pointing out that it is only selling goods in loose. He would further point out that relegating the appellant to the Magistrate Court would damage the reputation of the appellant.
7. It is true that the appellant has produced certain photographs; but, we do notice that in Annexure No. 1, which is produced by the appellant in the writ petition, there is reference to one packed shirt, in which the name of the manufacturer was not being declared. It is true that the appellant has given its response. We find that in Annexure No. 6 of the writ petition dated 06.02.2017, which purports to be a final notice, it is mentioned that the appellant may also approach them and compound, otherwise the matter will be referred to the Magistrate Court.
8. Ordinarily, the Writ Court does not decide the disputed questions of fact. On the one hand, the appellant's case is that the appellant is selling only clothes in loose and, therefore, it does not attract the provisions of the Legal Metrology Act; but, noticing the fact that there is a case for the respondents that goods are sold in packed condition, we cannot possibly decide that dispute. Even though, the learned Senior Counsel did make an attempt to persuade us to issue a commission, we do not think that Court should accede 6 to such a request and further render finding on the basis of the commission report. Therefore, we would think that, particularly, since the learned Single Judge has also safeguarded the interest of the appellant by directing that the preliminary matter must be decided as a preliminary issue relating to the jurisdiction, we need not interfere with the judgment of the learned Single Judge. We, however, only make it clear that in case the matter is not already referred to the Magistrate Court, it will be open to the appellant to make use of the opportunity granted in Annexure No. 6 to avail the benefit of compounding.
9. Without prejudice to the said right and without prejudice to all the contentions available to the appellant in law, which it may urge before the Magistrate Court, the Appeal will stand dismissed.
10. There will be no order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C.J.) 25.10.2017 Arpan