Skip to content


M/S. Mahindra and Mahindra Ltd., Rep. by Its Power of Attorney Holder Usha Amonkar and Another Vs. the Director of Standard of Weights and Measures and Another - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberW.P.(C).No.2997 of 2004 (F)
Judge
Reported in2011(2)KLJ613; 2011(2)ILR(Ker)804; 2011(2)KLT1040; 2011CrLJ3791; 2011(2)KHC582
AppellantM/S. Mahindra and Mahindra Ltd., Rep. by Its Power of Attorney Holder Usha Amonkar and Another
RespondentThe Director of Standard of Weights and Measures and Another
Excerpt:
standards of weights and measures (enforcement) act, 1985 - section 11 -.....trade or commerce in weights, measures and other goods which are sold or distributed by weight, measure or number, and to provide for matters connected therewith or incidental thereto, and that the vehicle is not being sold or distributed by weight, measure or number. therefore, it was contended that the standards of weights and measures act, 1976 does not apply to the vehicles manufactured and distributed by the first petitioner company. it was further contended that the motor vehicles act, 1988, which is an act to consolidate and amend the law relating to motor vehicles, is a special legislation so far as motor vehicles are concerned and that act would prevail upon a general law like standards of weights and measures act. it was also pointed out that the motor vehicles act,.....
Judgment:

The question involved in this Writ Petition is whether an advertisement made by the first petitioner, M/s.Mahindra and Mahindra Ltd., in India Today (Malayalam) in respect of their vehicle, Scorpio, in which the engine of the vehicle is described as having 109 BHP would constitute an offence under Section 11 of the Standards of Weights and Measures (Enforcement) Act, 1985, Sections 14 and 79 of the Standards of Weights and Measures Act, 1976 and under item No.11 of Part II of the Second Schedule to Rule 5 of the Standards of Weights and Measures (National Standards) Rules, 1988.

2. The first petitioner Company, established in 1945, is engaged in the manufacturing and marketing of motor vehicles under a general brand name "Mahindra". The petitioners released an advertisement in which the engine was described as having 109 BHP, BHP being British Horse Power. The second respondent, the Inspector of Legal Metrology, Kanhangad, issued Ext.P1 show cause notice to the second petitioner, the Chief Operating Officer (Automotive Sector) of the first petitioner Company, stating that the description of power of the engine of the vehicle in question in the old imperial system unit of BHP (British Horse Power) is violative of the provisions of law mentioned above. On receipt of Ext.P1 show cause notice, the second petitioner issued Ext.P2 reply to the second respondent stating that the advertisement in question does not violate the provisions of law mentioned in Ext.P1 show cause notice. It was contended that the Standards of Weights and Measures Act, 1976 is an Act to establish standards of weights and measures, to regulate inter-State trade or commerce in weights, measures and other goods which are sold or distributed by weight, measure or number, and to provide for matters connected therewith or incidental thereto, and that the vehicle is not being sold or distributed by weight, measure or number. Therefore, it was contended that the Standards of Weights and Measures Act, 1976 does not apply to the vehicles manufactured and distributed by the first petitioner company. It was further contended that the Motor Vehicles Act, 1988, which is an Act to consolidate and amend the law relating to motor vehicles, is a special legislation so far as motor vehicles are concerned and that Act would prevail upon a general law like Standards of Weights and Measures Act. It was also pointed out that the Motor Vehicles Act, 1988 is a statute which came into force later in point of time and if there is any contradiction between the two Acts, the later Act shall prevail. The various Rules under the Central Motor Vehicles Rules, 1989 and the forms prescribed thereunder were also mentioned in Ext.P2 reply to fortify the contention that there is no violation of law in the matter of the advertisement. It was further contended that Section 4 of the Standards of Weights and Measures Act mandates that every unit of weight or measure shall be based on the units of the metric system and the expression of unit of power in horse power comes within the definition of metric system. It was contended that if the equivalent of BHP, viz., watts is mentioned in the advertisements, it would cause confusion among the public. The practice in the motor vehicle industry is that the power of an engine of a vehicle is mentioned only in BHP. It was requested in Ext.P2 to accept the explanation and to drop all further proceedings pursuant to Ext.P1.

3. The second respondent thereafter issued Ext.P3 notice stating that Ext.P2 reply is not acceptable to the Department. It is stated in Ext.P3 that vehicles are being sold in terms of number along with other relevant specifications like their weight, power, engine capacity, wheel base, etc. and hence the Standards of Weights and Measures Act, 1976 is applicable to the case on hand. The second respondent further pointed out in Ext.P3 that Section 3 of the Standards of Weights and Measures Act, 1976 provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment. It was contended that the Motor Vehicles Act "is established exclusively for the purpose of the regulation in the field of manufacturing and using of motor vehicles only and not for the establishment of standard units of weights and measures used or expressed". Ext.P3 was concluded by saying that the legal action mentioned in Ext.P1 notice will be continued and that if the petitioners want to compound the matter departmentally, they may appear before the second respondent. Mention is also made in Ext.P3 that the offender in the case being a Company, every person who was in charge of and was responsible for the conduct of the business of the Company as well as the Company will be held responsible for the offence. In this Writ Petition, the petitioners pray for a declaration that they are entitled to express the unit of power of the vehicle/engine in the units of "horsepower" in advertisements or otherwise and for the issue of a writ of certiorari to quash Exts.P1 and P3 notices issued by the second respondent.

4. It is useful to extract the relevant provisions of the Acts and Rules. The Standards of Weights and Measures Act, 1976: Preamble:

"An Act to establish standards of weights and measures, to regulate inter-State trade or commerce in weights, measures and other goods which are sold or distributed by weight, measure or number and to provide for matters connected therewith or incidental thereto."

Section 3: "Provisions of this Act to override the provisions of any other law: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act."

Section 4: "4. Units of weight or measure to be based on metric system:- (1) Every unit of weight or measure shall be based on the units of the metric system.

(2) For the purpose of sub-section (1), (a) the international system of units as recommended by the General Conference on Weights and Measures, and

(b) such additional units as may be recommended by the International Organisation of Legal Metrology, shall be the units of the metric system."

Section 14: "14. Standard unit of weight or measure:- (1) The base unit of mass specified in section 6 and base units of measures specified in section 5 and sections 7 to 11 (both inclusive) and the supplementary and other units specified by rules made under section 12, shall be the standard units of weight or measure, as the case may be.

(2) The units of numeration specified by or under section 13 shall be the standard units of numeration."

Section 79: "79. Conversion of non-metric weights and measures into standard units of weights or measures:- (1) The value expressed in terms of any unit of weight or measure other than in terms of the standard units of weight or measure may be converted into the value expressed in terms of a standard unit of weight or measure at the rate specified in the Schedule.

(2) All reference in any enactment or in any notification, rule or order made under any enactment, or in any contract, deed or other instruments, for the time being in force, to a value expressed in terms of any unit of weight, measure or numeration other than that of a standard unit of weight, measure or numeration shall be construed as references to that value expressed in terms of standard units of weight, measure or numeration, as the case may be, converted at the rates specified in the schedule."

Section 5 of the Standards of Weights and Measures Act, 1976 states that the base unit of length shall be metre. Section 6 provides that the base unit of mass shall be kilogram. Section 7 deals with base unit of time and it shall be second. Section 8 deals with base unit of electric current and it shall be ampere. Section 9 states that the base unit of thermodynamic temperature shall be kelvin. Section 10 provides that the base unit of luminous intensity shall be candela. Section 11 states that the base unit of amount of substance shall be mole. Section 12 provides that the Central Government may, by rules, specify, in relation to the base units of weight or measure, such supplementary, derived, or other units or standard symbols or definitions as the General Conference on Weights and Measures or the International Organisation of Legal Metrology may recommend. The Standards of Weights and Measures (Enforcement) Act, 1985:

Preamble:

"An Act to provide for the enforcement of the standards of weights and measures established by or under the Standards of Weights and Measures Act, 1976, and for matters connected therewith or incidental thereto."

Section 2: "2. Act not to apply to inter-State trade or commerce:- Nothing in this Act shall apply to any inter-State trade of commerce in:-

(a) any weight or measure, or,

(b) any other goods which are sold, delivered or distributed by weights, measure or number."

Section11: "11. Prohibition of quotations, etc., otherwise than in terms of standard weight or measure:- Except where he is permitted under the Standards Act so to do, no person shall, in relation to any goods or things which are sold, transferred, distributed or delivered, or any service rendered--

(a) quote, or make announcement of, whether by word of mouth or otherwise, any price or charge, or

(b) issue or exhibit any price list, invoice, cash memo or other document, or

(c) mention any weight or measure in any advertisement, poster or other document, or

(d) indicate the weight, measure or number of the net contents of any package on the package itself or on any label, carton or other thing, or

(e) express, in relation to any transaction, industrial production or protection, any quantity or dimension, otherwise than in accordance with the standard weight or measure."

Section 41: "41. Penalty for contravention of Section 11:- Except where he is permitted under the Standards Act so to do, whoever, in relation to any goods or things which are sold, transferred, distributed or delivered, or any service rendered:-

(a) quotes any price or charges, or makes any announcement with regard to the price or charge, or

(b) issues or exhibits any price list, invoice, cash memo, or other document, or

(c) mentions any weight or measure in any advertisement, poster or other document, or

(d) indicates the weight, measure or number of the net contents of any package or on any label, carton or other thing, or

(e) expresses, in relation to any transaction, industrial production or protection, any quantity or dimension., otherwise than in accordance with the standard weight or measure, shall be punished with fine which may extent to two thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine."

5. Relevant part of Item No.11 of Part II of the Second Schedule to Rule 5 of the Standards of Weights and Measures (National Standards) Rules, 1988 is extracted as follows:

"11. Unit of power, radiant flux and heat flux.—

The unit of power, radiant flux and heat flux shall be the watt. (Symbol: W)"

Rule 5 of the Standards of Weights and Measures (National Standards) Rules, 1988 reads thus:

"5. Derived unit.-- The unit defined and specified in the Second Schedule shall be derived units and the symbol assigned to each such unit in that schedule shall be the symbol of that unit and no other units shall be used for the entities specified in the Second Schedule except for the purpose of scientific or technological research."

6. The Motor Vehicles Act, 1988 is a consolidating and amending Act. Section 39 of the said Act provides for the necessity for registration of motor vehicles. An application in Form No.20 as provided in Rule 47 of the Central Motor Vehicles Rules, 1989 shall be submitted for registration of the vehicle. Column 14 in Form No.20 is "horse power". Form No.21 is the sale certificate as provided in Rule 47 of the Central Rules and column 5 thereof is "horse power or cubic capacity". Form 23 issued as per Rule 48 of the Central Rules is the form of certificate of registration. Column 9 of Form No.23 reads thus:

"9. Horse Power (B.H.P.)"

Form 24 prescribed under Rule 49 is the register of motor vehicle. Column 15 therein mentions "horse power" of the vehicle. In Form No.25, the application for renewal of certificate of registration of a motor vehicle other than a transport vehicle, column 7 mentions the "cubic capacity/horse power". Form No.41, State Register of motor vehicles maintained under Rule 75 of the Central Rules contains column 9 as "cubic capacity/horse power". Form No.42, form of application for registration of motor vehicle by or on behalf of a Diplomatic/Consular Officer contains column 10 and horse power of the vehicle is to be entered there. In Form No.43, certificate of registration of a motor vehicle belonging to a Diplomatic or Consular Officer, column 8 mentions the horse power of the vehicle. The above mentioned forms would reveal that nowhere in the Motor Vehicles Act, Central Rules or Kerala Rules, power of the engine of a vehicle is mentioned in watts. But it is mentioned in horse power or cubic capacity. The Motor Vehicles Act came into force in 1988. The Motor Vehicles Act was enacted long after the enactment of the Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Enforcement) Act, 1985. One cannot assume that the Parliament was unaware of the provisions of the Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Enforcement) Act, 1985. Still in the forms prescribed under the Motor Vehicles Act and Rules, wherever the power of the engine of the vehicle is to be expressed, it is expressed in terms of "horse power or cubic capacity". Nowhere in the forms the power of the engine of a vehicle is mentioned in watts. When a common man purchases a vehicle from the registered owner of that vehicle, the main document which the purchaser may peruse is the registration certificate. In the registration certificate, the power of the engine would be mentioned in "horse power". If the purchaser would not be misled by mentioning the horse power in the certificate of registration of a vehicle, how could one assume that he would be misled by an advertisement in which the engine power is mentioned in horse power? If the power of the engine is mentioned in watts as provided in the Standards of Weights and Measures (National Standards) Rules, the intending purchaser would really be misled since in day-today life he refers to the horse power and not watts. When the manufacturers of vehicles, dealers of vehicles, educated and uneducated persons refer to the power of the engine of a vehicle, it is normally expressed in terms of horse power. The Court can take notice of the conduct of common people and the practice prevailing among people as the law is intended for the common people. If horse power of a vehicle is mentioned in the documents of title relating to a vehicle, why not it be mentioned in other records, advertisements, letters or other forms of communications? If people were to be convicted for mentioning the horse power of a vehicle or engine thereof, we have to convict and put in jail thousands of people. The Court shall not shut its eyes to the realities in life.

7. Apart from what is mentioned above, let us now consider the provisions of the Standards of Weights and Measures Act, 1976, the Standards of Weights and Measures (Enforcement) Act, 1985 and the Rules thereunder and see whether it would be an offence if horse power is mentioned instead of watt, in an advertisement in respect of a motor vehicle. Section 2 of the Standards of Weights and Measures (Enforcement) Act, 1985 states in clear terms that the Act does not apply to any interstate trade or commerce in any weight or measure or any other goods which are sold, delivered or distributed by weight, measure or number. The prosecution proposed to be initiated against the petitioners is under Section 41 of the Standards of Weights and Measures (Enforcement) Act, 1985. The heading of Section 41 is "penalty for contravention of Section

11". Section 11 deals with prohibition of quotations, etc. otherwise than in terms of standard weight or measure. If Section 11 does not apply, Section 41 also does not apply. In view of Section 2 of the Standards of Weights and Measures (Enforcement) Act, 1985, Section 11 does not apply to any inter-State trade or commerce in any weight or measure or any other goods which are sold, delivered or distributed by weight, measure or number. If that be so, how could a person be punished under Section 41 in respect of an advertisement relating to a transaction coming within the purview of Section 2 of the Standards of Weights and Measures (Enforcement) Act, 1985? The answer would be that there could be no such punishment since there would be no violation as provided under Section 41.

8. The cardinal question to be considered is whether sale of a vehicle by the manufacturer thereof is a sale by weight, measure or number. A car is a composite thing of so many components consisting of the main components, viz., engine, gear box, body and other mechanical, electrical and other fittings. The manufacturer of a vehicle does not sell the vehicle by weight, measure or by number. A question would arise where an order is placed for the supply of a particular number of vehicles, whether it would constitute sale of the vehicle by number. What is intended by the Standards of Weights and Measures Act, 1976 is the sale of goods by numbers. In other words, number is the most relevant thing in the sale of some particular goods. A packet containing a particular number of articles is an example for such sale. By any stretch of imagination, could it be said that sale of a motor vehicle by the manufacturer is a sale by number? Sections 5 to 11 of the Standards of Weights and Measures Act, 1976 evidently do not apply to power of an engine of a motor vehicle. It is apposite to note here that Section 12 of the Standards of Weights and Measures Act, 1976 deals with only units of weight or measure and evidently it excludes the units of number. The contention raised in Ext.P3 is that vehicles are being sold in terms of number along with other relevant specifications like their weight, power, engine capacity, etc. and, therefore, the Act is applicable in the case. This contention raised by the respondents is a far fetched one. The penal provisions of a statute cannot be applied unless the offrence is clear and specific. A doubtful or a possible interpretation cannot be made the basis for initiating prosecution. It is to be noted that Section 41 of the Standards of Weights and Measures (Enforcement) Act, 1985 provides that the offender shall be punished with fine which may extent to Rs.2,000/- and, for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine. It is possible that in respect of a single advertisement in a newspaper or magazine having circulation through out India, hundreds of criminal cases can be initiated against a company or an individual. It is also to be apprehended that if an advertisement is published on two consecutive days or on two occasions, it would constitute a second offence. This shows that the provisions of law are to be interpreted strictly.

9. The argument that car is a unit of measure is unsustainable. So also, the argument that vehicles are being sold in numbers, thereby attracting the provisions of the Standards of Weights and Measures Act, is equally unsustainable. Sections 11(d) and 41(d) of the Standards of Weights and Measures (Enforcement) Act, 1985 give a clear indication in this regard. Section 11(d) provides that no person shall indicate the weight, measure or number of the net contents of any package on the package itself or on any label, carton or other thing, otherwise than in accordance with standard weight or measure. Sale of a vehicle is not in packages or in carton or on the basis of a label. Therefore, Section 11(d) is not applicable at all in the case of sale of a vehicle. If so, Section 41 also does not apply.

10. It is true that Section 79 of the Standards of Weights and Measures Act, 1976 provides that all references in any enactment or in any notification, rule or order made under any enactment, or in any contract, deed or other instruments, for the time being in force, to a value expressed in terms of any unit of weight, measure or numeration other than that of a standard unit of weight, measure or numeration shall be construed as references to that value expressed in terms of standard units of weight, measure or numeration, as the case may be, converted at the rates specified in the schedule. Item 9 of the Schedule to the Standards of Weights and Measures Act, 1976 reads as follows:

"(9) Power:

1 horse power (UK) = 745.699 871 582 270 22 watts

1 horse power = 735.498 75 watts

(European)

1 ton of refrigeration = 3516.852 842 67 watts."

Section 79 of the Standards of Weights and Measures Act, 1976 cannot be taken as an aid for the purpose of prosecution under the Standards of Weights and Measures (Enforcement) Act, 1985. If a vehicle having one horse power is described as having 745.699 871 582 270 22 watts or 735.49875 watts, as the case may be, in an advertisement in respect of that vehicle, certainly a common man would be confused. Section 79 of the Standards of Weights and Measures Act, 1976 cannot be imported into Section 11 and Section 41 of the Standards of Weights and Measures (Enforcement) Act, 1985. Item (3) of the Schedule deals with 'volume' where gallon, barrel etc. are mentioned. It is common knowledge that in newspapers and visual media across the world, price of petroleum products is referred to in barrels or gallons. Likewise, the engine power of a vehicle is mentioned in horse power, by the common man. He understands only when the power is mentioned in horse power and not in watts. An advertisement is intended to convey useful information to the intending purchaser.

11. Sri.V.Chitambaresh, learned Senior Counsel for the petitioners submitted, after referring to the documents produced by the petitioners, that in United States of America, Spain, Australia, Switzerland, UAE, Germany and several other countries, engine power of cars and commercial vehicles is mentioned in horsepower. This is not disputed by the respondents. It is also submitted that the vehicle in respect of which the advertisement in question was issued is having a horsepower of 109 BHP and if it is converted into watts, it would be 80169.36375. If the engine power in watts is mentioned in the advertisement, no customer or prospective buyer would understand the real power of the engine. It is also submitted that all other vehicle manufacturers also describe the horsepower in all material documents.

12. For the foregoing reasons, I hold that mention of BHP in the advertisement made by the petitioners in respect of the vehicle manufactured by them does not constitute any violation of the provisions of the Standards of Weights and Measures Act, 1976 or the Standards of Weights and Measures (Enforcement) Act, 1985. Exts.P1 and P3 are, therefore, unsustainable. Accordingly, Exts.P1 and P3 are quashed. It is declared that manufacturers of vehicles are entitled to express the unit of power of the vehicle/engine in the units of horse power in the advertisements.

The Writ Petition is allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //