Telangana High Court
Larsen And Toubro Ltd. Mumbai And Ano vs The Union Of India, New Delhi And 4 Others on 16 April, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT PETITION No.21496 OF 2007
ORDER:
(per the Hon'ble Shri Justice Anil Kumar Jukanti) Heard Mr. P.K Sahu, learned Senior Counsel appears on behalf of Mr. B.Sai Ram Reddy, learned counsel for the petitioners.
Mr. Gadi Praveen Kumar, learned Deputy Solicitor General of India appears for respondent Nos.1 and 5.
Mr. Mohammed Imran Khan, learned Additional Advocate General appears for respondent Nos.2 to 4.
2. This writ petition is filed seeking the following prayer:
"...to issue a writ order or direction more particularly one in the nature of Writ of Certiorari and declare that the provisions of Standards of Weights and Measures Act, 1976 and Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (as amended vide Notification No.GSR 425-E dated 17th July, 2006 and effective from 14th January 2007), are not applicable to the 2 CJ&JAK,J W.P.No.21496 of 2007 goods and quash the impugned twelve notices dated 14th July 2007, bearing Nos.146/07- 08, 147/07-08, 148/07-08, 149/07-08, 150/07-08, 151/07-08, 152/07-08, 153/07- 08, 154/07-08, 155/07-08, 156/07-08, and 157/07-08 passed by the Respondent No.3 while declaring the definition of "pre-packed commodity" in rule 2(l) of the Standards of Weights and Measures Packaged and Measures Rules, 1977 as ultravires the provisions of the Standards of Weights and Measures Act, 1976 and also that the Order bearing reference WM-7(7)/2007 dated 6th July, 2007 of Respondent No.5 as contrary to the standards of Weights and Measures Act, 1956 and Standards of Weights and Measures Packaged Commodities Rules, 1977 in the interest of justice and equity..."
3. Brief facts:
Petitioner is a company engaged in the manufacture of Switch gears, Control gears and Power gears and products such as Moulded Case Circuit Breakers of Various Ratings, Industrial Switches of Various Range, Relays, Contactors, Fuses, Protective devices (hereinafter referred to as 'the said goods'). The said goods are manufactured at factories situated in various places all over India. Petitioner No.1 has depots/C&F Agents all over India from where the goods are sold.3
CJ&JAK,J W.P.No.21496 of 2007 3.1. Officers of respondent No.3 visited the C&F premises of petitioner No.1 on 20.06.2007 under the supervision of respondent No.4. 32 items (goods) manufactured and/or marketed and stored/sold were seized from agencies, notices issued, on following grounds:
The packages do not bear the following declarations regarding
(i) Maximum Retail Price (MRP) not declared;
(ii) Month and year of manufacturing not declared;
(iii) Name, address and phone number of the Costumer Care person are not declared on the package;
(iv) Retail sale price;
3.2. Panchanamas were carried out in respect of all 32 items on 20.06.2007. Petitioners by letter dated 20.06.2007, submitted that of the 32 items seized, 30 were industrial products and were not covered u0nder the Standards of Weights and Measures Act, 1976 (hereinafter referred to as 'SWM Act, 1976') and SWM Packaged Commodities Rules, 1977 (hereinafter referred to as 'PC Rules, 1977') and that the 4 CJ&JAK,J W.P.No.21496 of 2007 provisions of said SWM Act, 1976 and PC Rules, 1977 were applicable for two products only. Office of respondent No.3 issued 12 notices bearing Nos.146/07-08 to 157/07-08, dated 14.07.2007, holding that provisions of SWM Act, 1976 and PC Rules, 1977 are applicable and that petitioners contravened various provisions of the SWM Act, 1976 and PC Rules, 1977. It was stated in the notices that petitioners should either get the offence compounded or face prosecution.
3.3. By order, dated 06.07.2007, respondent No.5 concluded that products were sold in number and are pre-packed commodities and that exemption from PC Rules, 1977 is available under Rule 2(A), if the goods are directly sold to industrial or institutional consumers. Petitioners challenged the impugned order, dated 06.07.2007, passed by respondent No.5 and also the notices issued.
4. It is submitted by learned counsel appearing on behalf of petitioners that goods are sold on the basis of technical 5 CJ&JAK,J W.P.No.21496 of 2007 parameters and are sophisticated items used in industries and institutions. It is submitted that customers were allowed to inspect products, technical literature before buying and products were kept in protective covers for use in handling, storage and transport. It is further submitted that products were not sold in packaged conditions and it is for this reason MRP was not declared on packages and hence products are not covered under SWM Act, 1976 and PC Rules, 1977. It is also submitted that a product packed in open condition could be subjected to testing, examination or inspection before purchase and as such can hardly be called a pre-packed commodity or a commodity in packaged form. 4.1. It is submitted that Consumer Protection Act, 1986 does not cover goods used for commercial purpose. It is further submitted that non-consumer goods used by industrial or institutional consumers in the course of trade or commerce are not intended to be covered by these PC Rules, 1977. It is also submitted that products sold being non- 6
CJ&JAK,J W.P.No.21496 of 2007 consumer goods are not within the purview of PC Rules, 1977.
4.2. Reliance is placed on judgments of various High Courts and it is submitted that, goods supplied in protective packages are not "pre-packed commodities" or "commodities in packaged form" and that the customer has the option of examining or testing the goods before buying. It is further submitted that electrical or electronic equipment do not fall under the purview of SWM Act, 1976 and the PC Rules, 1977. For the propositions canvassed, the following judgments are relied:
1. Subhash Arjundas Kataria v. State of Maharashtra 1,
2. Titan Industries Ltd., Mumbai v. Union of India 2, 1 AIR 2006 Bom. 293 2 AIR 2006 Bom. 336 7 CJ&JAK,J W.P.No.21496 of 2007
3. Kirloskar Electric Co. & Another v. The Inspector, Legal Metrology, (Weights and Measures), Hyderabad 3,
4. Eureka Forbes Limited v. UOI & Other 4,
5. Pieco Electronics and Electricals Ltd. v. UOI 5,
6. Pieco Electronics and Electricals Ltd. v. UOI 6 &
7. Philips India Ltd. v. UOI, 2002. 7 4.3. Learned counsel for petitioners contended that decision rendered by a learned Single Judge of High Court of Karnataka in EWAC Alloys Ltd. v. Union of India 8 is squarely applicable to the facts of the case as similar issues were considered.
5. Learned Deputy Solicitor General of India appearing on behalf of respondent Nos.1 and 5 has invited our attention to Rule 2(l) of the PC Rules, 1977 and contended that the 3 Judgment by A.P. High Court in W.P.No.1769 of 1999 4 AIR 2003 AP 275 5 Judgment of A.P. High Court in W.P.No.11966 of 1991, dated 05.09.2002.6
Judgment of Kerala High Court in O.P.No.14701 of 1994 A, dated 26.08.2002 7 Writ L.R.140 8 2012 (275) E.L.T. 193 (Kar.) 8 CJ&JAK,J W.P.No.21496 of 2007 submissions made by the learned counsel for the petitioners are invalid. It is submitted that Rule 2(l) of the PC Rules, 1977 includes those commodities which could be taken out of the package for testing or examining or inspecting the commodity and hence, the products sold by the petitioners fall within the purview of the PC Rules, 1977. 5.1. It is submitted that Rule 2(A) of the PC Rules, 1977 defines industrial consumer as follows:
"Industrial consumer means those consumers who buy packaged commodities directly from manufacturers/packers for using the product in their industry for production etc."
5.2 Learned counsel submitted that authorities having inspected the trading premises of agencies wherein packages manufactured and supplied by the petitioners were found to be violative of the provisions of the SWM Act, 1976 and the PC Rules, 1977 and as such, said packages were seized. It is further submitted that the contention advanced on behalf of the petitioners that goods dealt by them are never intended 9 CJ&JAK,J W.P.No.21496 of 2007 for retail sale is not factually true. The learned Deputy Solicitor General has supported the order dated 06.07.2007 and submitted that there is no infirmity in the order as the authority has clearly held that the petitioner company violated the provisions of the SWM Act, 1976 and the PC Rules, 1977.
6. Learned Additional Advocate General appearing on behalf of respondent Nos.2 to 4 submitted that by virtue of Section 57 of the Legal Metrology Act, 2009 (hereinafter referred to as 'the Act, 2009'), the proceedings under SWM Act, 1976 are saved. By virtue of this Section, any decision, notice etc., initiated under the Repealed Act continue to be in force and have effect as if it were made, issued or given under the corresponding provisions of this Act. Learned counsel has submitted that the notices were issued for violations of the provisions as stated in the notices. It is further submitted that the petitioners having contravened the rules are now trying to evade the proceedings under the SWM Act, 1976. 10
CJ&JAK,J W.P.No.21496 of 2007
7. Heard learned counsels, perused the record and considered the rival submissions. It is evident from the order dated 06.07.2007 that the petitioner has sold the packages manufactured by declaring the quantity on the package as "Quantity No.1" and they contained a single item. It is not in dispute that the goods manufactured are packaged, contention being that packages are only for protection during transit and storage of goods. Under the PC Rules, 1977, what amounts to a pre-packed commodity is defined.
8. On a keen perusal of the prayer in the petition, it is noticed that order, dated 06.07.2007, is under challenge with other reliefs. Further, at paragraph Nos.11 and 12 of the writ affidavit, following averments are noticed.
"11. Petitioner No.1 has impugned the said order bearing reference WM-7(7)/2007 dated 6th of July, 2007, passed by Respondent No.5 by way of a Writ Petition filed before the Hon'ble High Court of Mumbai to the effect that the said Order is ex-facie untenable and unsustainable in law and are liable to be quashed and set aside on the grounds as made therein, which are also taken in this petition.
12. The petitioners would submit that the grounds as made by Petitioner No.1 for 11 CJ&JAK,J W.P.No.21496 of 2007 impugning the Order bearing reference WM- 7(7)/2007 dated 6th July, 2007, passed by Respondent No.5 before the Hon'ble High Court of Mumbai, are relevant to the facts of the case in the present petition as well, as it involves interpretation of SWM Act and PC Rules, so far as applicability of these laws to the said goods, being the subject matter of this petition."
9. It is trite to take note of the fact that the Bombay High Court in its order, dated 29.02.2008, in W.P.No.5856 of 2007 has held as follows:
"We find no infirmity in the order dated 6th July, 2007 nor can the declaration as prayed for can be granted. Consequently, rule discharged. In the circumstances of the case, however, there shall be no orders as to costs."
Be that as it may, before we proceed further, we wish to record that the proper course of action for the petitioner was not to proceed/pursue the matter in view of the order of the Division Bench of Bombay High Court. Suffice to say that it was not an act of wisdom.
10. Petitioner challenges the definition of "pre-packed commodity" in Rule 2(1) of PC Rules, 1977 as ultra vires the provisions of the SWM Act, 1976.
12
CJ&JAK,J W.P.No.21496 of 2007
11. In exercise of rule making power, the Central Government made Rules applicable to commodities in packaged form, enumerated in sub-rule (3) of Rule 1 of the PC Rules, 1977. It is pertinent to extract sub-rule (3) of Rule 1 of the PC Rules, 1977, which is as follows:
"They shall apply to commodities in the packaged form which are, or are intended or likely to be-
(i) sold, distributed or delivered or offered or displayed for sale, distribution or delivery, or
(ii) stored for sale or for distribution or delivery, in the course of inter-State trade and commerce."
12. Validity of a Rule can be challenged on the following grounds (not exhaustive) as ultra vires the provisions of Act. If the rule is in excess of power conferred by the Act or if the rule is in conflict with the provisions of the Act or is made without following the procedure as required under the Act. It is under these conditions rule can be held ultra vires the provisions of Act.
13. Section 83 of the SWM Act, 1976 empowers to make rules and guides the rule making authority to make rules to 13 CJ&JAK,J W.P.No.21496 of 2007 carry out the purposes of the SWM Act, 1976. A reasonable latitude is always available with the rule making authority to deal with the needs and necessities of the hour by considering various factors, for proper implementation of the Act, by suitably modifying or amending the Rules within the frame work of the Act.
14. On a perusal of the provision to make rules, we are of the view that enough guidance is indicated in Section 83 of SWM Act, 1976 clauses (r) (s) (t) to define what a pre-packed commodity means. The following are the relevant clauses:
"83. (1) The Central Government may, by notification, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :--
(r) the manner of declaration of the contents of a package and specification of the unit of weight, measure or number in accordance with which the retail sale price shall be declared on the package;
(s) the standard quantities or number in which commodities may be packed;
(t) the capacity up to which a package shall be filled"14
CJ&JAK,J W.P.No.21496 of 2007
15. We see no reason to hold that the definition of pre- packed commodity to be invalid on the ground of being ultra vires for it is neither in excess of the power conferred by the Enabling Act nor in conflict with the provisions of the Enabling Act.
16. The contention that the earlier definition made reference to "'quantity' of the product contained therein has a pre- determined value" being changed to "'commodity' contained therein has a pre-determined value" expands the scope of rules is misconceived for when goods are sold by number basis and the terminology employed i.e., quantity in the package or the commodity in number does not make a difference as both mean the same. In other words, if there are four commodities in a package, the quantity would be four in number. If the same analogy is applied and when four units of a commodity are packed in the package, still the quantity would be four in number or the commodity would be four in number. The contention that having dropped the reference to 'quantity' in 15 CJ&JAK,J W.P.No.21496 of 2007 the definition expands the scope is not only misconceived, but misconstrued.
17. We do not find any merit in the contention that the PC Rules, 1977 is ultra vires the SWM Act, 1976. The burden is upon him who attacks to show that the Rule is ultra vires the Act, something which petitioner has miserably failed to discharge. This rule is based on the assumption, judicially recognized and accepted, that the rule making authority understands and correctly appreciates the need and necessity of the requirement of changing dynamics of trade and commerce and also taking into account various factors. We hold Rule 2(l) of PC Rules, 1977, is not ultra vires the SWM Act, 1976.
18. The Act, 2009, came into force w.e.f. 1st of April 2011 (vide Notification No.S.O. 210(E), dated January 31, 2011). It is "An Act to establish and enforce standards of weights and measures, regulate trade and commerce in weights, measures and other goods which are sold or distributed by weight, 16 CJ&JAK,J W.P.No.21496 of 2007 measure or number and for matters connected therewith or incidental thereto." It is trite to extract Section 57 of the Act, 2009 (Act 1 of 2010), which reads as follows:
"57. Repeal of the Standards of Weights and Measures Act, 1976 and Standards of Weights and Measures (Enforcement) Act, 1985.--
(1) The Standards of Weights and Measures Act, 1976 (60 of 1976) and the Standards of Weights and Measures (Enforcement) Act, 1985 (54 of 1985), is hereby repealed.
(2) Without prejudice to the provisions contained in the General Clauses Act, 1897 (10 of 1897), with respect to repeals, any notification, rule or order made under the Standards of Weights and Measures Act, 1976 (60 of 1976) and the Standards of Weights and Measures (Enforcement) Act, 1985 (54 of 1985), shall, if in force, at the commencement of this Act, continue to be in force and have effect as if it was made under the corresponding provision of this Act.
(3) Notwithstanding such repeal, any appointment, notification, rule, order, registration, licence, certificate, notice, decision, approval, authorisation or consent made, issued or given under such law shall, if in force at the commencement of this Act, continue to be in force and have effect as if it were made, issued or given under the corresponding provisions of this Act."
19. Section 6(e) of the General Clauses Act, 1987 is as follows:
17
CJ&JAK,J W.P.No.21496 of 2007 "Section 6: Where this Act, or any [Central Act] [Substituted by A.O.1937, for " Act of the Governor General-in-Council"] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid."
20. By virtue of Section 6(e) of General Clauses Act, 1987 read with Section 57 of repealed Act (Act 1 of 2010), legal proceedings which of General Clauses Act, 1987 have been initiated under the SWM Act, 1976 are saved. The impugned notices, dated 14.07.2007, are valid.
21. It is evident from the record that the petitioner company was issued notices for the following violations:
i) Retail sale price of the package not declared.
ii) Month and year of manufacturing not declared.
iii) Name, address and phone number of customer case cell not declared.
iv) MRP not declared.18
CJ&JAK,J W.P.No.21496 of 2007
22. It is also stated in the notice(s) that the offence was compoundable under the SWM Act, 1976 instead of being tried in a Court of Law, by paying the necessary compounding fee within the period prescribed under the SWM Act, 1976 from the date of receipt of the notice(s). It is not in dispute that the seized goods packages were intended for sale.
23. The contentions advanced by the petitioner counsel that the packages were only for the sake of protection during transit and storage of goods and would not fall within the definition of pre-packed commodity is not valid. Rule 2 (l) of the PC Rules, 1977 defines "pre-packed commodity" which is as follows:
"...pre-packed commodity means a commodity which without the purchaser being present, is placed in a package of whatever nature whether sealed or opened so that the commodity contained therein has a pre-determined value and also includes those commodities which could be taken out of package for testing or examining or inspecting the commodity."
24. It is not the case of the petitioners that the goods sold are exclusively meant for industrial consumers, it is noticed 19 CJ&JAK,J W.P.No.21496 of 2007 from the order dated 06.07.2007 that the items can be used in shopping malls, large residential complexes and commercial buildings etc., and this fact does not stand rebutted. The contention that the goods are sold to industrial consumers only cannot be held valid, as it is also evident from the notices issued that the packages manufactured and supplied by petitioners were stored and exposed for sale and were meant for customers and hence misconceived.
25. Further contention that goods are sold as single piece and one unit of commodity kept in a package cannot be considered as number is misconceived. It is pertinent to note that in the order, dated 06.07.2007, the authority has held that, 'a perusal of the photo of packages manufactured by the petitioner, the quantity declared on the package is "Quantity: 1 No." In view of the finding of the authority, we do not find merit in the contentions advanced on this aspect. We do not find any infirmity in the order passed by the respondent No.5. 20
CJ&JAK,J W.P.No.21496 of 2007
26. It is relevant to take note of the decision rendered by a Division Bench of Bombay High Court in case of Larsen & Toubro Limited v. Union of India 9, wherein similar issues were considered by a Division Bench of Bombay High Court. The fact that the issues raised herein are covered by the decision of the Division Bench of Bombay High Court is not disputed by the learned counsel. The relevant portion of the judgment is as follows:
"14. Do the seized packages fall within the definition of the expressions retail package and retail sale. Does the explanation to Rule 2(A) restrict itself to that rule alone and the definition of industrial and institutional consumer as explained there cannot be read into the proviso to Rule 2(p) and if not, what is the meaning of the expression industrial or institutional consumer under the proviso to Rule 2(p).
Rule 2A sets out to what packaged commodities the provisions of Chapter 2, would not apply. Rule 2A reads as under:
2A. Applicability of the Chapter - The provisions of this chapter shall not apply to: (a) packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags upto 50 kg; and (b) packaged commodities meant for industrial consumers or institutional consumers.
Explanation For the purpose of this rule, -9
2012 (275) E.L.T. 153 (Bom.) 21 CJ&JAK,J W.P.No.21496 of 2007
(a) Institutional consumer - Means those consumers who buy packaged commodities directly from the manufacturers/packers for service industry like transportation [including airways, railways] hotel or any other similar service industry.
(b) Industrial Consumer - Means those consumers who buy packaged commodities directly from the manufacturers/packers for using the product in their industry for production, etc. Rule 3 reads as under :
Chapter to apply to packages intended for retail sale "The provisions of this Chapter shall apply to packages intended for retail sale and expression "package", where ever it occurs in this Chapter shall be construed accordingly."
The chapter therefore does not apply to packaged commodities purchased directly from the manufacturers/packers for service industry and industrial consumers who buy packaged commodities from manufacturers/packers for using the product in the industry for production etc. In the absence of Rule 2A these consumers if they had purchased a retail package from a retail dealer would be consumer within the explanation "retail sale" unless excluded by the proviso to Rule 2(p). Rule 2A therefore excludes packages even if they are pre-packaged commodities if they exceed the quantity by weight or measure or are sold to institutional or industrial consumer as explained in Rule 2A. The explanation to the rule explains who is an institutional consumer and industrial consumer for the purpose of that rule.
15. The petitioners' submission is that the packaged goods sold will cease to be a retail 22 CJ&JAK,J W.P.No.21496 of 2007 package if they are not meant for use by the ultimate consumer. The expression shall not include industrial or institutional consumer as set out in proviso to Rule 2(p). The explanation of industrial or institutional consumer as contained in Rule 2A being restricted to the rule would not be applicable. The words industrial or institutional consumer under the proviso to Rule 2(p) it is submitted will have to be given its normal dictionary meaning. It is only if Rule 3 applies, would the action of the respondents in attaching the petitioners' packages be legal, otherwise it would be illegal.
It is in that context that we have to understand the expression ultimate consumer as set out in the definition of retail package or retail sale in the context of industrial or institutional consumer. The definition of retail sale, is sale for consumption by individual or which are intended for retail sale to the ultimate consumer for the purpose of consumption group of individuals or any other consumer. Retail package is defined to mean packages of the commodity contained therein. The object therefore appears to be disclosure of the sale price to a customer for consumption, whether such consumer be individual, group of individual but excludes industrial or institutional consumer. An industrial consumer who purchases a retail package by retail sale would be normally a consumer in the absence of the proviso. The question is who are the industrial or institutional consumers under the proviso to Rule 2(p) who are excluded from the definition of ultimate consumer. Can there be a distinction between a consumer who directly purchases the product and consumes the product or a consumer who purchases the product say for individual use or an industrial consumer for making another product, say a switch board and who does not fall within the explanation to Rule 2A namely a purchaser not 23 CJ&JAK,J W.P.No.21496 of 2007 purchasing directly from the manufacturer or packer. Are such consumers excluded from the expression ultimate consumer as set out in the proviso to Rule 2(p) or other consumer as set out in Rule 2(g) or for that matter consumer under Rule 2(o). That the package is a pre-packed commodity in no longer res integra after Whirlpool (supra). Therefore, Chapter II would apply only to pre-packed packages. Rule 2A excludes certain consumers like institutional and industrial as set out therein and as already explained. The petitioners however, want this Court to accept the submission that apart from industrial and institutional consumers as excluded by explanation to Rule 2A, there are also other consumers both industrial or institutional who if they buy retail packages from the retail dealer as in the instant case from their stockists, if they are not ultimate consumers, to them also Chapter 3 would not apply.
16. Such an interpretation, in our opinion, will defeat the basic objective of the Act and the Rules. The object of the Act and the rules is to protect the consumer inasmuch as the consumer must know the price of the retail package, when the consumer makes the purchase from the retail dealer by retail sale. A law for the protection of a consumer must be construed for the benefit of the consumer unless the interpretation would defeat the object of the act or the rules or result in absurdity. Secondly where was the need for the rule making authority to explain in Rule 2A as to who are the institutional and industrial consumers to whom Chapter II would not apply, if the proviso to Rule 2(p) does not include these institutional or industrial consumers. Rule 2A(b) specifically provides the chapter shall not apply to pre-packed commodities meant for industrial and institutional consumers. Both Rule 2A and Rule 3 are part of Chapter II. Can the explanation of industrial or 24 CJ&JAK,J W.P.No.21496 of 2007 institutional consumer be restricted only to Rule 2A and would not be applicable while construing Rule 3 to industrial or institutional consumers contemplated by proviso to Rule 2(p). Firstly when the rules use a term or expression normally unless contrary is provided they should be assigned the same meaning. Secondly a perusal of the definition clauses, would not support the contention sought to be given by the petitioners. What runs through all these definitions is the ultimate consumer. Proviso to Rule 2(p) excludes only industrial or institutional consumers. Industrial or institutional consumer is not defined but explained only in Rule 2A. Rule 2A excludes packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags of up to 50kgs; and packaged commodities meant for industrial consumers or institutional consumers who purchases directly from manufacturers or packers. If the contentions of the petitioner are accepted then firstly it would have to be read that Chapter II speaks of two kinds of industrial or institutional consumers. One covered by the explanation to Rule 2A to whom the chapter would not apply and the second category covered by the proviso to Rule 2(p) to whom also the chapter would not apply. Such a construction would defeat Rule 2A(b). The explanation only excludes a class of consumers who in the absence of the explanation or Rule 2A would be consumers. The industrial or institutional consumers for the purpose of Rule 2(p), should be the same as in the explanation to Rule 2A. If this construction is not accepted it would amount to saying that although to consumers described in Rule 2A, Chapter II will not apply, yet also there are still other industrial or institutional consumers to whom the chapter will not apply. If that was the intention of the rule making authority, it could have defined industrial or institutional consumers independently and not provided an explanation to Rule 2A for the purpose 25 CJ&JAK,J W.P.No.21496 of 2007 of that chapter. Bad phraseology should not defeat the intent of the rule making authority. Rule 2A(a) also excludes certain packages by weight and measures from the operation of Rule 3. The same packages if sold in quantity lesser in weight or measure if the other provision of Rule 3 are applicable then the chapter applies. Secondly Rule 2A(b) excludes packaged commodities meant for industrial consumers or institutional consumers as they are directly sold to such consumers who buy packaged commodities for their institutional or industrial uses. These are also consumers. Therefore, it is only to such institutional and industrial consumers to whom the provisions of Chapter-II would not apply. To all other institutional or industrial consumers of a prepacked commodity sold as a retail package the chapter would apply. The explanation of institutional and industrial consumer in Rule 2A must also be read into the proviso to Rule 2(p), for the purpose of Chapter II. While construing Rule 3, only purchasers of packages who are institutional or industrial consumer as explained under Rule 2A would be excluded. Every other retail sale by a retail dealer of a pre-packed commodity would be covered.
As an illustration. If the packaged commodity purchased cannot be directly installed by the Co- operative Housing Society on the ground that such user is prohibited by the Electricity Rules, that however, would only mean that a person qualified under the rules can install the same for the consumer who may have purchased the package. There is therefore, no prohibition on such society purchasing the product and installing it through a licensed person. They are the ultimate consumers. Similarly another consumer who is qualified may purchase the commodity and install the commodity directly. Such a consumer will not cease to be a consumer because the retail package 26 CJ&JAK,J W.P.No.21496 of 2007 is not consumed by such purchaser but supplied to some other consumer. The act of purchase and use also makes such purchaser the ultimate consumer. Yet another person may purchase the retail package and use it in combination with other goods, as an illustration to make a switch board. Such a consumer cannot be said not to be the ultimate consumer. Such a consumer also consumes the commodity. Such consumer may market or sell it as another commodity thereby loosing its original distinct character. All such consumers whether they be institutional or industrial will also be covered by Chapter II. Even the ordinary dictionary meaning makes such a purchaser a 'consumer'. We therefore, hold that while construing Rule 3, who are excluded are only the institutional or industrial consumers as explained in Rule 2A and that the industrial or institutional consumers in terms of the proviso to Rule 2(p) for the purpose of Chapter II are the same."
27. We have perused the judgment of the Division Bench of Bombay High Court. Learned counsel appearing for petitioners fairly stated that issues in the present writ petition are similar. We agree with the view taken by the Division Bench of Bombay High Court. No grounds have been made out for interference in the notices issued and the order bearing reference WM-7(7)/2007 dated 06.07.2007. We have no hesitation in upholding the order of respondent No.5. 27
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28. The writ petition is devoid of merits and the same is accordingly dismissed. No order as to costs.
Miscellaneous applications pending, if any, shall stand closed.
____________________________ ALOK ARADHE, CJ ___________________________ ANIL KUMAR JUKANTI, J Date:16.04.2024 Plp