1. Both these appeals, the first of which is filed by the original petitioners and the other one by the State of Maharashtra, arise out of the judgment of the learned single Judge whereby the petitioner's petition under Art. 226 of the Constitution of India was partly allowed.
2. The petitioners who are a company admittedly manufacture what are known as tailors' tapes and shoemakers'' tapes. They commenced manufacture of these tapes after their scheme for manufacture was approved by the Industries Commissioner, with a direction that they should sell the tailor's tapes after marking them 'Not for trade', 'clearly, indelibly and prominently'. They were issued a certificate of registration as a small scale industry by the Directorate of Industries of the Government of Maharashtra. However, for the first time on 18th July, 1968, they were informed by the Industries Commissioner that the letter dated 23-9-1964, by which their scheme to manufacture tailor's tapes was sanctioned should be treated as cancelled. The petitioners were also informed that they should obtain a licence from the Controller of Weights and Measures for the manufacture of measuring tapes. There was then correspondence between the parties and on 7th of March 1970 the petitioners were informed that the tapes should be in Metric Units only and that the tapes manufactured by them did not conform to the specifications. They were, therefore, directed to stop manufacture's and dealer's licence from the Office of the Directorate of Industries, failing which, they would become liable for penal action under the provisions of Ss. 23 and 27 of the Bombay Weights and Measures (Enforcement) Act, 1958 (hereinafter referred to as 'the Enforcement Act'). It may be pointed out that the tapes manufactured by the petitioners were graduated both in centimeters as well as in inches. By another letter dated 3rd April, 1970 the petitioners were informed that it was obligatory on them to obtain manufacturer's licence for manufacturing tapes and that they should immediately stop manufacturing of double graduated or other non-standard tapes, failing which, the company would. The petitions then filed a petition challenging the two letters dated 7th March, 1970, and 3rd April, 1970.
3. The petitioners' main contention in the petition was that tapes in question were not covered by the provisions of the Enforcement Act, and there was therefore no obligation on the petitioners to obtain a licence under Section 13 of Act which prevents manufacture of double graduated tapes which were not measure. Further, according to the petitioners, the authorities were not justified in asking to stop manufacturing cloth made tapes as required by the letter dated 7th March 1970.
4. On behalf of the State of Maharashtra and the Deputy Director of Industries, who ere respondents to the petition it was contended that the tapes manufactured by the petitioners were commercial measuring instrument, and were covered by the Act, and that since under Section 13 (2) of the Standards of Weights and Measures Act, 1956 (hereinafter referred to as 'the Central Act' ) it was provided that no unit of mass or measure other than the units of mass and measures referred to in sun-section (1) shall be used as a standard mass or measure, it was implicit in that provision that no manufacturer could produce a tape which showed a measure other than the standard measure i. e. a metro in the case of measurement of length.
5. The learned single Judge took the view that the tapes meant for tailors or shoe-makers were capable of being used for trade or commercial transaction as defined in Clause (ii) of Section 2 of the Enforcement Act, and that as the tapes were capable of being used as the tailors' and shoemakers' tapes in their commercial dealings, they will be covered by the provisions of the Enforcement Act. The learned Judge therefore, took the view that there was nothing wrong in the directions given by the authorities that the petitioners should obtain a licence under Section 13 of the Enforcement Act. However, with regard to the two other contentions viz., that the petitioners should stop manufacture of cotton tapes and that they should also stop manufacturing double graduated tapes, the learned Judge held in favour of the petitioners. The result was that the petitioners were directed to take out a licence under S. 13 if the Enforcement Act, but it was clarified that the authorities would not be able to refuse a licence on the ground that the tapes were cotton tapes or that they were double graduated tapes. The first part of the order of the learned single Judge requiring the petitioners to take out a licence under S. 13 of the Enforcement Act is challenged by the petitioners in Appeal No. 266 of 1979, and the other part of the judgment of the learned Judge that the petitioners could not be prevented from manufacturing the cotton tapes or double graduated tapes, has been challenged by the respondents in Appeal No. 295 of 1979. Both these appeals are being disposed of by this common judgment.
6. Before we refer to the argument advanced before us on behalf of the petitioners and the authorities, it is necessary to refer to certain statutory provisions. The Standards of Weights and Measures Act, 1956 was enacted to establish standards of weights and measures based on metric system. In so far as we are concerned, Section 3 of that Act provided that the primary unit of length shall be a metre, and in Section 13 (1) it was provided that the units of mass and measures referred to in Sections 3 and 4 and Secs. 9 to 11, both inclusive, and the secondary units of mass and measures declared under S. 42 shall be the standards of mass and measures. Section 9 declares the square metre to be the primary unit of area. Section 10 declares a cubic metre to be a primary unit of volume and the unit of capacity was declared to be a litre under S. 11.
7. Now, sub-section (2) of Section 13 provided as follows:--
'No unit of mass or measure other than the units of mass and measures referred to in sub-section (1) shall be used as a standard mass or measure'.
8. Subsequently a new Act was enacted in 1976 -- the Standards of Weights and Measures Act, 1976. Under S. 1 (3) of that Act different provisions of the Act could be brought into force on different dates in different areas and different dates in different areas and different dates could be appointed for classes of weights and measures or classes of users of weights and measures. By S. 85, the Standards of Weights and Measures Act, 1956 was repealed. Admittedly, however, Section 85 has not been brought into force, though some provisions were brought into force with effect from 26-8-1977, and Ss. 76 and 77 were brought into force, from 1-4-1980. It is common ground therefore, that Section 13 (1) and (2) of the 1956 Act must be still treated as effective. The provisions relating to standards of weights and measures in Part II of the 1976 Act have also not been brought into force and therefore, the relevant of the 1956 Act still continued to be operative.
9. Then in 1958 the Enforcement Act was enacted by the Bombay legislative Act, and we are mainly concerned with the provisions of this Act. AS the title and preamble of the Act indicate, it was enacted for the enforcement of standard weights and measures in the State. Clause (a) of Section 2 defines commercial weight or measure purporting to be a standard weight or measure used in any transaction for trade or commerce'. A measuring instrument is defined in clause 2 (d) as meaning 'any measuring instrument other than a weighting instrument and includes any instrument for measuring length, area, volume or capacity'. Section 2 (High) defines 'standard weight or measure' as meaning 'any unit of mass or measure referred to in sub-section (1) of S. 13 of the Standards of Weights and Measures Act, 1956'. The only other important definition is of the phrase 'use in transaction for trade or commerce'. In Section 2 (ii) that definition reads as follows :--
' 'use in transaction for trade or commerce' means use for the purpose of determining or declaring the quantity of anything in terms of measurement of length, area, volume, capacity or weight in or in connection with;--
(a) any contract, whether by why of sale, purchase, exchange or otherwise, or
(b) any assessment of royalty toll, duty or other dues; or
(c) the assessment of any work done or services rendered, otherwise than in relation to research or scientific studies or in individual households for household purposes'.
10. Section 3 (1) reads as follows:-- '3 (1). For the purpose of verifying the correctness of commercial weights and measures and weighing and measuring instruments used in transaction for trade or commerce, the State Government may cause to be prepared as many sets of authenticated standard weights and measures as it may deem necessary to be called the working standards x x x
x x x x x x x x x'
The provision in S. 3 (1) is unambiguous and it only contemplates that the State Government may cause to be prepared as many sets of authenticated standard weights and measure as it may deem necessary, and these are to be called working standard,, but this is done only for the purpose f verifying the correctness of commercial weights and measures and weighing and measuring instruments used in transactions for trade or commerce. WE shall come back to this provision little later.
11. Then we must refer to S. 7 (1) of the Act which reads as follows ;--
'7. 910 Notwithstanding anything contained in any other law or custom, usage or practice, no unit of mass or measure other than the standard weights or measures, shall be used in any transactions for trade or commerce in any area or class of good or undertakings in respect of which this section has come into force or be kept in any premises where such transactions are usually conducted'.
Here again the prohibition against using any unit of mass or measure other than the standard weights or measures is restricted to transactions for trade or commerce in any area or class of goods or undertakings in respect of which this provision has come into force.
12. In Section 10 there is a prohibition on sale of unstamped commercial weights and measures.
13. Section 11 prohibits use of a weight or measure or weighing or measuring instrument in any transaction in trade or commerce unless it has been verified or revivified in accordance with the rules made under the Act stamped in the prescribed manner by the Inspector with a stamped of verification.
14. Then comes Section 13, on which reliance is placed on behalf of the State. The provision of Section 13 reads as follows:--
'13. No person shall, in the course of trade, manufacture, repair or sell any commercial weight or measure or any weighing or measuring instrument unless he has obtained in the prescribed manner a licence in this behalf, which or any officer authorised by it in this behalf, subject to such conditions as may be prescribed'.
15. Now, the contention raised on behalf of the petitioners is that the tailor's tape or the shoemaker's tape is not used in trade or commerce as contemplated by Section 2 (ii), and since, these two tapes cannot be said to be measuring instruments used in transactions of trade and commerce, the provisions of the Enforcement Act are not attracted in the case of the petitioners' manufacture of tapes and the authorities are therefore, not justified in requiring the petitioners to take out a licence under Section 13 of the Enforcement Act.
16. The learned counsel appearing on behalf of the State has contended that there can be no measure which does not conform to the primary unit of measure as prescribed under the 1956 Act, and selling of these tapes publicly was clearly a commercial use and consequently the petitioners would be governed by the provisions of the Enforcement Act. Mr. Shah, who also appeared on behalf of the State Government today, has invited our attention to the averments made in the Affidavit of the Deputy Director of Industries that various traders were actually found in using the tapes manufactured by the petitioners for selling various items like ribbons, ropes etc., and the petitioners, action in continuing the said manufacturing activity was illegal and detrimental to the general interest of the public.
17. There can be now no manner of doubt that the primary unit of length prescribed under the 1956 Act is a metre. We are, however, concerned more with the provisions of the Enforcement Act. The provisions of the Enforcement Act clearly indicate that the enforcement was sought to be restricted only in the field of trade or commerce. As already pointed out, the definition of 'commercial weight or measure' indicated that the weights or measures dealt with under the Enforcement Act were those used in any transaction for trade or commerce. Now, the phraseology 'used in any transaction for trade or commerce' has itself been defined in the Act. A careful reading of this definition will indicate that the use contemplated by that phrase was the use for the purpose of determining or declaring the quantity of anything in terms of measurement; area, volume, capacity or weight in connection with the three kinds of transactions referred to in clauses (a), (b) and (c). Clause (a) referred to any contract, whether by way of sale, purchase, exchange or otherwise. Clause (b) is not material for the purpose of this petition. It deals with assessment of royalty toll duty or other dues. In clause (e), the measurement of quantity has to be in connection with the assessment of any work done or services rendered otherwise than in relation to the research or scientific studies or in individual households for household purposes. Reliance has been place on behalf of the State on Clause (e). Primarily, therefore, unless it is possible to say that it has been established that the tapes which the petitioner style as tailors or s shoemakers tapes are used for determining or declaring the quantity in terms of measurement of length in connection with a contract whether by way of sale, purchase, exchange or otherwise for the purpose of assessment of any work done or service rendered it would be difficult to hold that the tape manufactured by the petitioners falls within the provisions of the Act. Assuming for a moment that the tape is a measuring instrument, only those measuring instruments which are used in transaction of trade and commerce are required to be verified with reference to their correctness as is indicated by the provisions of Section 3 (1) of the Enforcement Act. There is a further indication is S. 10 that only a measuring instrument which is used in transaction for trade or commerce are governed by the Act because the sale or delivery of only such commercial weight or measure or weighing or measuring instrument is prohibited unless it has been verified or revivified in accordance with the rules made under the Act, and stamped in the prescribed manner by an Inspector with a stamped of verification. S. 10 has to be read with S. 3. Reading these two sections together, verification or revivification can be made only in respect of the commercial weights and measures and weighing and measuring instruments used in transaction for trade and commerce. S. 11 is a consequential provision which provides that no weight or measure or weighing or measuring instrument shall be used in any transactions in trade or commerce, unless it has been verified or revivified in accordance with the rules made under the Act, and stamped in the prescribed manner by an Inspector, with a stamp of enforcement of weights and measures is to be made only in respect of the commercial weights and measures or weighing and measuring instruments used in transactions of trade and commerce. Now, if we read S. 13 in the light of Ss. 3, 10 and 11 as well as S. 7 (1), the intention of the legislature appears to be clear that a commercial weight or measure or a weighing or measuring instatement shall not be produced or manufactured or repaired or sold unless one has obtained a licence in this behalf. Now, it is true that the words 'any weighing or measuring instruments' in Section 13 are not qualified by the words 'used in any transaction for trade or commerce'. That however, in our view, will not make any difference if the provision in S. 13 is read in the light of the scheme and the other provisions of the Act.
18. The provision for grant of licence is only a part of a mechanism for enforcing the standard weights and measures, and if the scope of that enforcement is restricted by the statute itself to the use of the weights and measures and weighing or measuring instruments in transaction for trade or commerce, licence under the Act would be necessary only for manufacture, repair or sale of weighing or measuring instrument used in any transactions in trade or commerce.
19. Now, the only ground on which the learned single Judge took the view that the petitioners were liable to take out a licence is that the tapes meant for tailors or shoemakers were capable of being used for trade or commercial transaction. For taking that view an illustration was taken of an organization like an army or hospital or a vendor of ready-made clothes or shoes, where orders are given necessarily in terms of different sizes of the out-fits and these sizes have necessarily to be expressed in terms of some measure and such measures will have to be the standard measures. The learned Judge therefore took the view that otherwise, in the case of a dispute between the parties it will be difficult to resolve the same if the parties had used different measures and not the standard measure.
20. Now, the illustration which is taken by the learned Judge would be valid if such a transaction implies or calls for a legitimate use of a tailor's tape. The fact that a tailor's tape may be used by somebody would really be no ground for holding that the purpose of the manufacture of the tailor's tape transactions for trade or commerce. If an article is used a purpose other than that for which it is manufactured, then it is not legitimate use of the article. If an article is used for a purpose other than its legitimate use, the manufacturer of that article cannot blamed. Even otherwise, in our view the transaction of the kind contemplated by the learned Judge would not fall within S. 2 (ii) because even in such a transaction the tape is not used for determining the quantity of the bulk articles in terms of measurement of length. In the case of a contract for a bulk supply of garments the quantity is measured in numbers.
21. It was argued on behalf of the petitioners before the learned Judge that the tailor's tapes or the shoemaker's tapes were used by the tailors or the shoe-makers for their own purpose of manufacturing the product, and hence, it could not be said that the tapes were being used for trade or commerce. The learned Judge has however taken the view that Section 7 (1) of the Act has been placed on the statute book to prohibit mischief that is practiced in commercial transaction and that the trader is prohibited from keeping any weights or measures. According to the learned Judge, if the trader is allowed to keep weights and measures other than the standard measures in his premises on the plea that he is using the same for his own purpose and not for the purpose of trade or commercial transaction, it will defeat the implementation of the beneficial provision of the said Act. while it may be conceded that no provision of the Act should be so construed as will have the effect of defeating the purpose with which the statute is enacted, it cannot be lost sight of that what is prohibited in S. 7 (10 is the use of any unit of mass or measure, other than the standard weights or measures in any transaction for trade or commerce. As we have already pointed out, the use of the tailor's tape by the tailor or of the shoe-maker's tape by the shoe-maker for his own purpose does not fall within the purpose contemplated by the Act viz., in a transaction for trade or commerce, and then equally the provision of S. 7 (1) will not come in the way of the petitioners.
22. The very fact that by the Enforcement Act only the trade and commerce field is covered for the purpose of enforcement, it is obvious that a field which may not be properly covered by trade and commerce will not be covered by the provisions of the Enforcement Act. It is implicit in the provisions of the Act that the use of a weight or measure or a weighing or a measuring instrument for a purpose which cannot be properly called trade or commerce, it itself contemplated.
23. It is no doubt true that in the affidavit filed by the Deputy Director, a statement has been made that the tapes manufactured by the petitioners have been found to have been used by traders selling ribbons or ropes. Apart from the fact that the allegation has been denied by the petitioners and there were no details as to how and when this was noticed, there is clearly nothing in the Act to prevent the authorities from bringing such users to book for using non-standard weights or measures or non-stamped weighing or measuring instruments. The petitioners however cannot be held liable for use of their tapes for some other purpose than the purpose for which they were intended. In our view S. 13 was wholly inapplicable to the facts of the present case, and authorities were no justified in insisting upon the petitioners taking a licence under S. 13 of the Enforcement Act.
24. This would dispose of the appeal filed by the petitioners.
25. Now coming to the appeal filed on behalf of the State and the Deputy Director, it was contended by the learned counsel that since the 1956 Act specified in S. 3 that the primary unit of length shall be a metre and the standard of measure in S. 13 (10 was only to be a metre, the double graduation in inches and in centimeters made in the tapes manufactured by the petitioners would be illegal. Reliance has been placed by the learned counsel appearing for the Government on an affidavit of the Deputy Controller or Weights and Measures, Government of Maharashtra, in which reference was made to one D. Court. letter dated 2-5-1970 and a memo dated 1-2-1969 and two circulars stating that the double graduated measuring tapes shall be completely banned. The learned counsel appearing on behalf of the petitioners has referred us to a letter of the Additional Secretary, Industrial Development of the Government of India, addressed to a tool manufacturing Company dated 3rd of August, 1972. This letter states that the Government are advised that manufacture and sale of tapes marked in metric units and inch units is permissible under the law as it exists today. This position is being brought to the notice of the Government of Maharashtra also for necessary action regarding any orders to the contrary regarding any orders to the contrary that might have been issued earlier'. This is a letter which is issued to a tool manufacturing company at Bombay. The learned counsel on behalf of the State has contended that the State of Maharashtra is not bound by the contents of this letter at all because though the 1956 Act is a Central Act, the work of enforcement of that Act however is done by the State Government. Now whether the legal position stated by the Government of India is binding on the State Government or not, the petitioners would be entitled to attach some weight to this letter in support of their contention that manufacture of double graduated tape cannot be said to be illegal. As pointed out by the learned counsel, there is no provision anywhere in the Enforcement Act by which a bar could be spelt out for the manufacture of a tape graduated in centimeters and in inches. Provision made in S. 7(1) of the Enforcement Act on which reliance has been placed, merely prohibits a use of mass or measures other than the standard weight or measures to be used in any transactions for trade or commerce. It is difficult for us to see how a bar against the manufacture of a double graduated tape can be spelt out from S. 7 (1) especially when we have already held that this tape is not intended to be used for trade or commerce and even the authorities were at one time inclined to tell the petitioners that they must emboss the words 'not for trade' on the tapes manufactured by them and which they have been doing. The only argument advanced before us on behalf of the authorities was based on S. (7) which, as we have already pointed out, is not attracted in the case of the petitioners.
26. The learned Judge has also held that it has not been shown how the manufacture of double graduated tape will defeat the purpose of the Act, and it has not been possible for the learned counsel for the State even here to show us as to how, in so far as the tailor's tapes or shoe-maker's tapes are concerned, the purpose of the Act will be defeated by the manufacture of double graduated tapes.
27. So far as the direction given in the letter dated 7-3-1970 that the petitioners should stop the manufacture and sale of double graduated tapes, is concerned, the learned Judge has found that the said direction was clearly illegal and ineffective in law. As already pointed out, we have not been shown any prohibition anywhere which requires that such tapes should not be manufactured. It is therefore not possible for us to sustain the direction given by the authorities in the letter dated 7-3-1970, which, the learned Judge has, in our view, rightly held to be illegal and ineffective.
28. These are the only arguments advanced before us. The result is that the appeal which is filed by the petitioners is allowed, and the Order of the learned single Judge in so far as it requires the petitioners to take out a licence under S. 13 of the Enforcement Act is set aside. The appeal filed on behalf of the State must stand dismissed. The rule must be made absolute in terms of prayer Clause (b). The petitioners to get the costs in their appeal. There will be no order as to costs in the appeal filed by the State.
29. Order accordingly.