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2007 Supreme(Del) 1272
IN THE HIGH COURT OF DELHI AT NEW DELHI
Mr. Justice S. Ravindra Bhat
M/S. EVEREST SANITATION (INDIA) & ANR. ..... Petitioners
versus
DELHI JAL BOARD & ORS. ..... Respondents
W.P.(C) 12994-95/2004
Decided on : July 2, 2007
Important Points
Subject
Administrative Law - Public Procurement
Act Referred
BUREAU OF INDIAN STANDARDS RULES : R.10, R.12, R.11
CONSTITUTION OF INDIA : Art.14, Art.19(1)(g)
DELHI WATER BOARD ACT : S.9(f), S.17, S.75, S.109
STANDARDS INSTITUTION CERTIFICATION MARKS ACT : .
Headnote
BIS Act - Water Meters - IS 779:1994, IS 6784:1996 - The court addressed the imposition of additional testing requirements for water meters by the Delhi Jal Board (DJB) and the legality of such requirements under the Bureau of Indian Standards (BIS) Act. The court found that the DJB had the authority to require additional testing to ensure the quality of water meters supplied to consumers. However, the court quashed the condition requiring testing by SGS India Private Ltd. and allowed the DJB to insist on testing by official agencies or agencies under Rule 11 of the Bureau of Indian Standards Rules 1987.
Fact of the Case:
The petitioners, engaged in manufacturing water meters, challenged the DJB's requirement for additional testing of water meters bearing the ISI Mark. The petitioners argued that the requirement was unlawful, arbitrary, and imposed an unnecessary financial burden.
Finding of the Court:
The court found that the DJB had the authority to impose additional testing requirements to ensure the quality of water meters supplied to consumers. However, the court held that the inclusion of SGS India Private Ltd. as a testing agency, an unlicensed private agency with unknown credentials, was arbitrary and lacked a disclosed rationale. The court quashed the condition requiring testing by SGS India Private Ltd.
Issues: The issues addressed by the court included the legality of the DJB's authority to impose additional testing requirements for water meters and the arbitrariness of including SGS India Private Ltd. as a testing agency.
Ratio Decidendi: The court held that the DJB had the authority to require additional testing to ensure the quality of water meters supplied to consumers. However, the inclusion of SGS India Private Ltd. as a testing agency lacked a disclosed rationale and was deemed arbitrary.
Final Decision: The court partly allowed the petition, quashing the condition requiring testing by SGS India Private Ltd. and allowing the DJB to insist on testing by official agencies or agencies under Rule 11 of the Bureau of Indian Standards Rules 1987.
Mr. Sanjay Sherawat, Advocate
Mr. Sandeep Aggarwal, Advocate for the DJB. Mr. R.K. Tripathi, Advocate for respondent No.3. Mr. Sunil Bagai, Advocate for respondent No.4. Mr. Kartike Anand, Advocate for Intervenors.
1. In these writ proceedings under Article 226 of the Constitution of India, a condition has been imposed by the respondent, Delhi Jal Board(hereafter referred to as “DJB”) through a circular, requiring testing of water meters before their procurement has been impugned.
2. The petitioners claim to be engaged in the business of manufacturing water meters (domestic type). They also claim to hold valid licences for use of ISI Standard Mark, issued by the Indian Standards Institution, by virtue of the Indian Standards Institution (Certification Marks) Act, 1952. It is averred that the use of ISI Standard Mark is governed by the provisions of Bureau of Indian Standards Act, 1986 (hereafter referred to as “BIS”) Act as well as the Rules and Regulations framed under that Act. The BIS has spelt out standards applicable to the domestic water meters, which have to be adhered to by the manufacturers, to qualify the use of such mark. The specifications are contained in Indian Standard Water Meters (Domestic Type) Specifications being No. IS 779:1994 (hereafter called “the 1994 Standards”). The methods of testing performance requirement of water meters covered by the 1994 standards have been prescribed in the Indian Standard METHOD FOR PERFORMANCE TESTING OF WATER METERS (DOMESTIC TYPE) being No. IS 6784 : 1996 (hereafter called “Performance Standards 1996”).
3. Initially in 1987 the predecessor of DJB by its circular approved procurement of only 8 approved make water meters, which were marked by the ISI, while sanctioning new water connections or replacement of defective, private meters. On 3.10.1994, due to a felt shortage of water meters a condition imposed by its previous circular of 1987 was suspended. On 23.8.2001, the DJB issued a circular in effect reviving its condition that only those water meters bearing the ISI Mark could be installed. This was followed by circular of 5.11.2001 which stated that till completion of process of formalities, the consumers could purchase, on a purely temporary basis (as stop gap arrangement) use of any ISI Mark dry dial type water meters manufactured as per BIS specification accompanied by a copy of a valid certification mark licence.
4. In supersession of its previous circulars the DJB notified on 13.11.2002 the specifications applicable for use of 15 mm size private water meters for new water connections as well as for replacement of defective water meters. The specification for the meter was prescribed to be 15 mm size, Class B Multi-jet, Magnetically coupled, inferential type with dry dial ISI Marked conforming to IS 779 (1994) with up-to-date amendments. This circular in addition spelt out the following conditions:
“ Each and every meter shall be accompanied by a test certificate of testing as per above specifications by any of the following agencies alongwith the Manufacturers usual test certificate and Guarantee Card:-
(1)M/S National Physical Laboratory, Dr. K.S. Krishnan Marg,
New Delhi (2)M/s. F.C.R.I., Palghat, Kerala (3)M/S S.G.S. India Private Ltd., 250, Udyog Vihar, Phase-IV,
Gurgaon-122015 (4)Central Water Meter Workshop, Delhi Jal Board, Greater Kailash-I, New Delhi.”
5. This notification was followed with a notice published in the Times of India on 4.8.2003. The Public Notice reiterated the above condition in addition to the specification concern, namely, ISI Mark confirming to IS:779(94).
6. After the Public Notice, another circular was issued by the DJB on 8.9.2003. This stated, inter alia, that the certificate issued by any recognized testing laboratory to the manufacturer showing that the particular make/brand of water meter was in conformity with the prescribed specification, sufficed for the purpose of purchase of such meters by the consumers. In other words, the additional requirement spelt out in the circular dated 13.11.2002 and Public Notice 4.8.2003 were dispensed with.
7. On 14.1.2004, the DJB issued yet another circular; this time re-state
