Swanthanthra Autorickshaw Thozhilali Union vs Secretary to Government, Legal Metrology Department and Others

A. Muhamed Mustaque, J.—1. These batch of writ petitions are related to a Circular No. 1 of 2014 issued by the Controller of Legal Metrology. The above Circular is produced as Ext. P2 in W.P.(C). No. 31680/2014.

The short issue that arises for consideration is whether based on the Circular, the Subordinate Officer under the Controller should invoke penal provision under Section 33 of the Legal Metrology Act, 2009. The Circular appears to have been issued as an internal communication. Though, the Circular is not issued in a public domain, nevertheless, considering the general grievance in the writ petitions and the issue generated from the Circular, this Court propose to consider the matter based on the challenge.

In the above context, it is apposite to quote Section 24 of the Legal Metrology Act, which reads as follows:

"24. Verification and stamping of weight or measure.-(1) Every person having any weight or measure in his possession, custody or control in circumstances indicating that such weight or measure is being, or is intended or is likely to be, used by him in any transaction or for protection, shall, before putting such weight or measure into such use, have such weight or measure verified at such place and during such hours as the Controller may, by general or special order, specify in this behalf, on payment of such fees as may be prescribed............."

By virtue of the powers conferred under Section 53 of the Legal Metrology Act, 2009 (Central Act 1 of 2010), the Kerala Government framed rules called the Kerala Legal Metrology (Enforcement) Rules, 2012 (hereinafter, referred to as the "Rules"). Rule 14 of the Rules stipulates as follows:

"14. Verification and inspection of weight or measure.-(1) Every person using or intending to use any weight or measure in any transaction or for protection shall present such weight or measure for verification or re-verification, as the case may be, at the office of the Legal Metrology Officer or at such other place as the Legal Metrology Officer may specify in this behalf on or before the date of verification as specified in Legal Metrology (General) Rule 2011:

Provided that where any weight or measure is such that it cannot, or should not be moved from its location, the person using such weight or measure shall report to the Legal Metrology Officer at least thirty days in advance of the date, on which the verification falls due..............................."

Rule 15 of the Rules provides "stamping of weight or measures". Rule 16 provides for "fee for verification". In this context of dispute, Rule 16(3) is relevant to be mentioned, which reads as follows:

"16(3) If a weight or measure is presented to the Legal Metrology Officer for re-verification after expiry of the validity of the stamp, an additional fee at half the rates specified in Schedule IX shall be payable for every quarter of the year or part thereof."

The first petitioner in W.P.(C). No. 31680/2014 is an Association representing Legal Metrology licensed manufacturers, dealers and repairers and their employees, who are engaged in dealing with weight and measures in the State of Kerala. The other petitioners in these writ petitions are also similarly situated persons dealing with weight and measures including weighing or measurement instruments of their customers.

The grievances of all the petitioners is that by virtue of Circular No. 1/2014, the Officers under the Legal Metrology Department are proposing to impose penalty under Section 33 of the Legal Metrology Act and compels them to compound the offence in terms of Section 48 of the said Act for the delayed verification of the stamping. The petitioners'' argument is that the penal provision can be invoked only when there is a willful disobedience to any provisions of law and, when there are sufficient reasons for the delayed presentation of weight or measures before Legal Metrology Officers for re-verification after expiry of the validity of the stamp period, an additional fee alone can be levied.

It is the argument of the petitioners that all delayed re-verification shall not result in imposing penalty and the mandate of the Circular to impose penalty is therefore, illegal and unsustainable. On the other hand the learned Additional Advocate General Shri Babu Varghese submits before this Court that the internal Circular is a direction to the Officers to scrupulously follow Section 33 apart from claiming additional fee as specified under Rule 16(3) of the Enforcement Rules. The learned Additional Advocate General further submits that the Officers will not compel any persons, who have committed offence for compounding but they will take action to prosecute them in terms of Section 33 of the Legal Metrology Act. It is further argued that the petitioners cannot preempt officials taking action under Section 33 of the Legal Metrology Act under the guise of a challenge being made to a Circular.

The Circular issued is not in public domain but only as an internal Circular. The purport of the Circular is a remainder to all the Officials to invoke Section 33 of the Legal Metrology Act wherever necessary. No officials can prosecute any person under Section 33 of the Legal Metrology Act without application of mind, simply following the Circular. Therefore, the apprehension of the petitioners is misconceived. No doubt, if the officials want to prosecute any person for the delayed verification, they cannot compel such person to compound the offence under Section 48 of the Legal Metrology Act. Compounding is the result of a voluntary decision of the person to compound the offence. Therefore, if such a person is not willing, the officials are at liberty to proceed in accordance with law, if warranted, invoking Section 33 of the Legal Metrology Act. That being the legal position, the Circular can only be understood in that context. The petitioners cannot demand that for all delayed verifications, only additional fees alone can be levied. It is for the Authority to decide whether there are any reasons to prosecute such persons under Section 33 of the Legal Metrology Act. As rightly pointed out by the learned Additional Advocate General, the petitioners cannot stop the Officials from taking action in terms of Section 33 of the Legal Metrology Act for the delayed submission. The writ petitions are disposed of in the light of the above observations as no other reliefs can be granted in these writ petitions. No costs.