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1991 Supreme(Raj) 701
RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.S.Sharma, M.R.Calla, JJ.
Kumar Swastik Enterprises Pvt. Ltd. and Others - Appellant
Versus
Union of India and others - Respondent
D.B. Civil Writ Petition No. 4684 of 1989.
Decided On : 9-05-1991
The main legal point established in the judgment is the importance of quality control and the 'ISI' certification mark for essential items like cement, emphasizing the need to adhere to statutory requirements for public safety.
Headnote:
Cement - Quality Control - Cement (Quality Control) Order, 1962 - [Section 3 of Essential Commodities Act, 1955, Section 2(f), 2(g), 2(l), 2(n), 5, 20, 21 of Certification Marks Act, 1952] - The court discussed the provisions of the Cement (Quality Control) Order, 1962, and its requirement that cement must conform to prescribed standards and bear 'ISI' certification mark. The court highlighted the importance of quality control for essential items like cement and emphasized the need for the 'ISI' certification mark to provide assurance of quality to consumers. The court also upheld the validity of the Order and reasoned that the restrictions imposed were in the larger interest of the public.
Fact of the Case:
The petitioner company was engaged in the manufacture and sale of cement and had applied for a license to use the 'ISI' certification mark. During the period between the application and the grant of the license, the company started manufacturing cement. Subsequently, the company's cement was seized for not bearing the 'ISI' certification mark, leading to an investigation and the filing of a writ petition.
Finding of the Court:
The court found that the requirement for cement to conform to prescribed standards and bear the 'ISI' certification mark was not only reasonable but also essential for public safety. The court upheld the validity of the Cement (Quality Control) Order, 1962, and dismissed the writ petition.
Issues: The issues included the legality of the requirement for cement to bear the 'ISI' certification mark, the timing of the license grant, and the alleged discriminatory nature of the provision. The court also addressed the liability of the company's directors under the Essential Commodities Act.
Ratio Decidendi: The court held that the requirement for cement to bear the 'ISI' certification mark was essential for public safety and not discriminatory. The court also emphasized the importance of adhering to statutory requirements for quality control. Additionally, the court clarified the liability of the company's directors under the Essential Commodities Act.
Final Decision: The writ petition was dismissed, and no costs were awarded to the petitioner.
"(i) No. IS 8041 E-1976 relating to Rapid Hardening Portland Cement,
(ii) No. IS 8042 E-1976 relating to white Portland Cement,
(iii) No. IS 8043 E-1976 relating to Hydrophobic Portland Cement,
(iv) No. IS 269-1976 relating to Ordinary and Low Heat Portland Cement (Third Revision).
(v) No. IS 455-1976 relating to Portland Blast Furance Slag Cement (Third Revision).
(vi) No. IS 1489-1976 relating to Portland Pozzolana Cement (Second Revision).
(vii) No. IS 8112-1976 relating to High. Strength Ordinary Portland Cement and cement used for manufacture of railway sleepers.
(viii) No. IS 3466-1967 relating to masonry Cement (First Revision).
(ix) No. IS 8229 E-1976 Oil Well Cement (now under print).
(x) No. IS 6909-1973 Super Sulpbated Cement.
Explanation-Cement shall not be deemed to be of prescribed standard, if it is not of the nature, substance quality which it purports or it represents to be."Para-3 of the aforesaid Order prohibits manufacture or store for sale, sale, or distribution of any cement which is not of the prescribed standard. Para-3 of the Order reads as under :
"3. Prohibition of manufacture, sale, etc of cement which is not of the prescribed standard. No person shall himself or by any person on his behalf manufacture or store for sale, sell or distribute cement which does not con,form to the prescribed standard and which does not bear 'IS' certification mark.
Provided that the Central Government, may on an application made, permit any person to manufacture or store for sale, or sell or distribute cement without ISI mark for a period not exceeding three months, if it is satisfied that the grant of regular BIS certification mark is pending with the authorities under the Bureau of Indian Standards Act, 1986 (63 of 1986)".
The aforesaid para 3 of the Order was substituted for earlier paragraph 3 vide Cement (Quality Control) Amendment Order, 1983. Prior to the aforesaid substitution it read as under :
"No person shall himself or by any person on his behalf, manufacture, or store for sale, sell or distribute any cement which is not of the prescribed standard."
It will therefore be clear that under the aforesaid amendment in the Order in the year 1983 prohibition was introduced in respect of manufacture or store for sale, sell or distribution of cement which did not bear 'IS' certification mark. Under the Indian Standards Institution (Certification Marks) Act, 1952 (for short, Certification Marks Act) in Section 2(f) 'Licence' is defined which means a licence granted under the Certification Marks Act to use the Indian Standards Institution certification mark, in relation to any article or process which conforms to the Indian Standard and under Section 2(g) 'marks' includes a device, brand, heading, label ticket, pictorial, representation, name, signature, word, letter or numeral or any combination thereof. 'Standard mark' under Section 2(l) means the Indian Standards Institution Certification Mark specified by the Indian Standards Institution to represent a particular Indian Standard. Under Section 2(n) an article is said to be marked with a Standard Mark if the article itself is marked with a Standard Mark or any covering containing or label attach
