The petitioner has sought for a direction to the respondents to renew his repairer licence without insisting for deletion of the word Corporation from the name of his business establishment.=the Controller is the authority vested with the power of granting licences. Under sub-section (2) of Section 23 of the Act, such licence shall be issued in such form and manner, on such conditions, for such period and such area of jurisdiction and on payment of such fee as may be prescribed. Therefore, the question arises as to who is empowered to prescribe the matters, which are mentioned in sub-section (2) of Section 23 of the Act. Section 53 (2) of the Act empowers the State Government to provide for various aspects while making rules. Those aspects include any or all of those which are mentioned in sub-section (2) of Section 23 of the Act. All those aspects have been repeated in clause (c) of sub-section (2) of Section 53 of the Act. In exercise of Rule making power, the State of Andhra Pradesh has framed the Andhra Pradesh Legal Metrology (Enforcement) Rules, 2011. Rule 11 (3) of the Rules provides that every licence issued to a manufacturer, repairer or dealer shall be in appropriate form set out in schedule III of the Rules. Schedule III of the Rules contains the conditions of licence enumerated as (a) to (h) of condition No.1. A conjoint reading of these provisions makes it abundantly clear that it is only the State Government which is empowered to prescribe conditions for grant of licence by framing Rules and respondent No.1 is only empowered to issue licence subject to such conditions as prescribed by the State Government. No provision under the Act or the Rules is brought to the notice of this Court under which this power of the State Government is delegated to respondent No.1. In the absence of such delegation, respondent No.1 has no power or jurisdiction to impose any condition other than the one, which is prescribed under Schedule III to the Rules. At best, respondent No.1 can only request the State Government to appropriately amend the Rules and the Schedule for deletion of the word Corporation from the name of the business establishments of the licencees. For the above-mentioned reasons, the impugned proceedings issued by respondent Nos.1 and 3 are held as wholly without jurisdiction and they are accordingly quashed. The writ petition is accordingly allowed. As a sequel to the allowing of the writ petition, interim order dated 10.11.2011 in WPMP.No.37049 of 2011 is vacated and WPMP.No.37049 of 2011 and WVMP.No.4764 of 2011 stand disposed of as infructuous.

THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY            

WRIT PETITION No.29894 of 2011  

11-06-2015

M.V.Krishnaiah  . Petitioner

The Controller of Legal Metrology, Government of Andhra Pradesh, Hyderabad and
2 others.  Respondents

Counsel for Petitioner:  Mr. P.Sridhar Reddy

Counsel for Respondents: AGP for Civil Supplies (A.P)
                               
<GIST:

>HEAD NOTE:  

? CITATIONS:


HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY        
WRIT PETITION No.29894 of 2011  

Dated: 11.06.2015


The Court made the following:


ORDER:
       
      This writ petition is filed for a Mandamus to declare Circular Memo
No.3255/L2/2011, dated 26.08.2011, of respondent No.1 and consequential
Circular Memo No.1857/B/11, dated 12.09.2011, of respondent No.3 as
illegal and without jurisdiction.  The petitioner has sought for a direction
to the respondents to renew his repairer licence without insisting for
deletion of the word Corporation from the name of his business
establishment.


      I have heard Mr. P.Sridhar Reddy, learned counsel for the petitioner,
and the learned Government Pleader for Civil Supplies (A.P).

      The petitioner averred that he is a skilled worker authorized to
repair heavy and light weights and measures having passed skill workers
test. That he has started an establishment in the name and style
Venkateswara Weighing Machine Corporation in the year 1969 and been
running the same by obtaining repairers licence under the provisions of
the Standards of Weights and Measures Act, 1976 and under the Legal
Metrology Act, 2009 (for short the Act), after the former Act was
repealed. The petitioner feels aggrieved by the two impugned proceedings
issued by respondent Nos.1 and 3 respectively, whereunder he was directed
to remove the word Corporation from the name of his business
establishment. According to the petitioner, respondent No.1, which is a
licensing authority, is not empowered to prescribe any condition other than
the conditions prescribed under schedule III of the A.P. Legal Metrology
(Enforcement) Rules, 2011 (for short the Rules).

      On behalf of the respondents, respondent No.2 has filed a counter
affidavit, whereunder he has sought to justify the impugned proceeding
issued by respondent No.1 based on Section 23 (2) of the Act.
      At the hearing, Sri P.Sridhar Reddy, learned counsel for the
petitioner, submitted that the subject legal metrology was initially under
the state list, that by the 42nd amendment, the said subject has been
deleted from the state list and included in the concurrent list and that in
pursuance there of, the Government of India has enacted the Act. That
Section 23 of the Act prohibits manufacture, repair or sale of weight or
measure without licence and under sub-section (2) thereof and that the
Controller shall issue licence in such form and manner, on such conditions,
for such period and such area of jurisdiction and on payment of such fee as
may be prescribed. The learned counsel further submitted that under
Section 53 (1) of the Act, the State Governments are empowered to make
rules for the purpose of carrying out the provisions of the Act, and sub-
section (2) thereof enumerates the matters with reference to such rules
can be made. That clause (c) of sub-section (2) thereof pertains to making
rules with regard to the form, manner, conditions, period, area of
jurisdiction and fees for issuance of licence under sub-section (2) of Section
23 of the Act. The learned counsel has invited this Courts attention to Rule
11 of the Rules.  Sub-rule (3) thereof provides that every licence issued to
a manufacturer, repairer or dealer shall be in the appropriate form set out
in schedule III.  He has also referred to and relied upon the conditions of
licence mentioned in schedule III of the Rules.

      The learned Assistant Government Pleader placed reliance on
Section 23 (2) of the Act and submitted that the Controller is empowered
to prescribe such conditions as he deems fit while granting licence.

      I have carefully considered the respective submissions of the learned
counsel for the parties.

      For  appreciation  of  the  respective  submissions, certain  statutory
provisions need to be noticed. Section 23 of the Act reads as under:
       
  Prohibition on manufacture, repair or sale of weight
or measure without licence:-- (1) No person shall
manufacture, repair or sell, or offer, expose or possess for
repair or sale, any weight or measure unless he holds a
licence issued by the Controller under sub-section (2):

      Provided that no licence to repair shall be required by
a manufacturer for repair of his own weight or measure in
a State other than the State of manufacture of the same.

     (2) For the purpose of sub-section (1), the Controller
shall issue a licence in such form and manner, on such
conditions, for such period and such area of jurisdiction
and on payment of such fee as may be prescribed.

      Section 53 of the Act reads as follows:
    Power of State Government to make rules:-- (1) The State
Government may, by notification, and after consultation with
the Central Government, make rules to carry 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:-

(a)     the time within which the weight or measure may be
got verified under proviso to sub-section (1) of section
16;

(b)     registers and records to be maintained by persons
referred to under sub-section (1) of section 17;
               
(c)     the form, manner, conditions, period, area of
jurisdiction and fees for issuance of licence under sub-
section (2) of section 23;

(d)     fee for verification and stamping of any weight or
measure under sub-section (1) of section 24;
(e)     manner of notifying Government Approved Test Centre,
terms and conditions and fee to be paid under sub-
section (3) of section 24;

(f)     fee for compounding of offences under sub-section (1)
of section 48.

      (3) In making any rule under this section, the State
Government may provide that a breach thereof shall be
punishable with fine which may extend to five thousand
rupees.

      (4) The power to make rules under this section shall be
subject to the condition of the rules being made after previous
publication in Official Gazette.

      (5) Every rule made under this section shall, as soon as may
be after it is made, be laid before each House of State
Legislature, where there are two Houses and where there is
one House of State Legislature, before that House.

      Rule 11 of the Rules reads thus:
      Licensing of manufacturers, repairers and dealers of
Weights and Measures:-- (1) Every manufacturer or repairer
of, or dealer in, weight or measure shall make an application
for issue of a licence, to the Controller of Legal Metrology or
such other officers as may be authorized by him in this behalf,
in the appropriate form set out in Schedule II-A.


       Provided that no licence to repair shall be required by a
manufacturer to repair weight or measure manufactured by
him and used in a state other than the state of manufacture of
the same, but the manufacturer as well as the user has to
inform in advance the concerned Legal Metrology Officer about
the repairing.

       Provided further that no person will be granted a
repairing licence unless he is a skilled worked and having a
valid Certificate of Skill issued by the Controller, Legal
Metrology.

       (2) Every manufacturer or repairer of or dealer in,
weight or measure shall make an application for the renewal of
a licence within thirty days before the expiry of validity of the
licence to the Controller of Legal Metrology or such other
officers as may be authorized by him in this behalf, in the
appropriate form set out in Schedule II-B.

       (3) Every licence issued to a manufacturer, repairer or
dealer shall be in the appropriate form set out in Schedule III.

       (4) Every licence issued to a manufacturer, repairer, or
dealer shall be valid for a period of one calender year and may
be renewed from one calender year to another calender year
by the Controller or such other Legal Metrology Officer as may
be authorized by him in this behalf on payment of such fee as
specified in the Schedule IV.

       (5) The fee payable for the alteration of a licence or for
the issue of a duplicate licence shall be as specified in the
Schedule IV.

       Provided that an additional fee at full the rates
specified in the Schedule IV shall be payable by the applicant
if he is permitted by the Controller to make an application for
the renewal of a licence within a period of three months from
the date of expiry of the licence.

       (6) The Controller or such other officer as may be
authorized by him in this behalf shall maintain a register of
licenced manufacturers, dealers and repairers in the form set
out in Schedule V.

       (7) Every manufacture / repairer / dealer licenced for
the jurisdiction to which licence is granted under the Act and
these rules, shall maintain such workshop / laboratory /
equipments / tools / registers etc. as the case may be, and
such other terms and conditions specified by the Controller of
Legal Metrology.  Any general or special directions and such
licence conditions issued by the Controller, shall be binding on
the persons to whom the licence has been granted.

       (8) Every licencee under the Act and these rules shall
furnish a security deposit for each licence to the State
Government as specified in Schedule VI.

       (9) Every licence issued or renewed under the Act and
these rules shall be displayed in a conspicuous place in the
premises where the licencee carries on business.

       (10) A Licence issued or renewed under the Act / Rules
made there under shall not be saleable or otherwise
transferable.

       (11) Transfer or transmission of business: (1) Where the
business of a person licenced under the Act and the Rules is
transmitted by succession, intestate or testamentary, the heir
or legatee, as the case may be, of such person shall not carry
on the business of such licencee either in his own name or in
any other name, unless the heir or legatee has, before the
expiry of sixty days after the date of such transmission, made
to the Controller an application for the issue of a licence in
accordance with the provisions of the Act and Rules there
under:

       Provided that nothing in this rule shall be deemed to
prohibit the heir or legatee from carrying on business as such
licencee for the aforesaid period of sixty days, and, if he has
applied for such licence, until he is granted the licence or is,
by a notice in writing informed by the Controller that such
licence cannot be granted to him.

       (2) Where the business of any person licenced under this
Act is transferred by sale, gift, lease or otherwise, the
transferee or lessee, as the case may be, shall not carry on
such business either in his own name or in any other name,
unless he has obtained a licence to carry on such business.

      The conditions of licence in Form LR-3, pertaining to licence      to
repair   weights,  measures,   weighing   instruments   or   measuring
instruments, of Schedule III of the Rules read as under:
       1. The person in whose favour this licence is issued shall.

(a)     Comply with all the relevant provisions of the Act and
Rules for the time being in force;
(b)     Not encourage or countenance any infringement of the
provisions of the Act or the Rules amended from time
to time.
(c)     Exhibit this licence in some conspicuous part of the
premises to which it relates;
(d)     Comply with any general or special directions that may
be given by the Controller of Legal Metrology;
(e)     Surrender the licence in the event of closure of
business or suspension or cancellation of Licence;
(f)     (i)       Present the weights, measures, weighing or
        measuring instruments as the case may be duly
        repaired to the Legal Metrology Officer in whose
        jurisdiction it is put into use, before delivery to
        the user.
        (ii) In the case of weights, measures weighing or
        measuring instruments, if they are
        serviced/repaired       before the date on which
        the verification falls due      and where, in the
        process and the verification stamp      of the Legal
        Metrology Officer is defaced, removed or broken,
        they shall be presented duly repaired to the
        legal metrology officer for re-verification and
        stamping before delivery to the user.
(g)     Submit the application for renewal of this licence, as
required under the rules before at least thirty days of
the date of expiry of the validity of the licence.
(h)     the licence conditions (a) and (d) are equally binding on
all persons connected with licencee.
     2.  Every condition prescribed after the issue of this licence
shall be binding on the persons to whom the licence has been
granted.

      From the statutory provisions referred to above, it is absolutely
clear that the Controller is the authority vested with the power of granting
licences.  Under sub-section (2) of Section 23 of the Act, such licence shall
be issued in such form and manner, on such conditions, for such period and
such area of jurisdiction and on payment of such fee as may be prescribed.
Therefore, the question arises as to who is empowered to prescribe the
matters, which are mentioned in sub-section (2) of Section 23 of the Act.
Section 53 (2) of the Act empowers the State Government to provide for
various aspects while making rules.  Those aspects include any or all of
those which are mentioned in sub-section (2) of Section 23 of the Act.  All
those aspects have been repeated in clause (c) of sub-section (2) of Section
53 of the Act.  In exercise of Rule making power, the State of Andhra
Pradesh has framed the Andhra Pradesh Legal Metrology (Enforcement)
Rules, 2011.  Rule 11 (3) of the Rules provides that every licence issued to
a manufacturer, repairer or dealer shall be in appropriate form set out in
schedule III of the Rules.  Schedule III of the Rules contains the conditions
of licence enumerated as (a) to (h) of condition No.1.

      A conjoint reading of these provisions makes it abundantly clear that
it is only the State Government which is empowered to prescribe conditions
for grant of licence by framing Rules and respondent No.1 is only
empowered to issue licence subject to such conditions as prescribed by the
State Government. No provision under the Act or the Rules is brought to
the notice of this Court under which this power of the State Government is
delegated to respondent No.1.  In the absence of such delegation,
respondent No.1 has no power or jurisdiction to impose any condition other
than the one, which is prescribed under Schedule III to the Rules. At best,
respondent No.1 can only request the State Government to appropriately
amend the Rules and the Schedule for deletion of the word Corporation
from the name of the business establishments of the licencees.

      For the above-mentioned reasons, the impugned proceedings issued
by respondent Nos.1 and 3 are held as wholly without jurisdiction and they
are accordingly quashed.

      The writ petition is accordingly allowed. As a sequel to the allowing
of the writ petition, interim order dated 10.11.2011 in WPMP.No.37049 of
2011 is vacated and WPMP.No.37049 of 2011 and WVMP.No.4764 of 2011      
stand disposed of as infructuous.
____________________________    
JUSTICE C.V. NAGARJUNA REDDY      
11th June, 2015

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