APPLICATION OF STANDARDS OF WEIGHTS & MEASURES ACT, 1976 TO VEHICLES.

[Mr. M. GOVINDARAJAN]

STANDARDS OF WEIGHTS & MEASURES ACT:

                        The Standards of Weights & Measures Act, 1976 is an act to establish standards of weights and measures to regulate inter state trade or commerce in weights, measures and other goods which are sold or distributed by weight, measure or number and to provide for matters connected therewith or incidental thereto. 

                        Sec. 3 of the Act provides that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than the Act.

                        Sec.4 of the Act provides that every unit of weight or measure shall be based on the units of the metric system.  For this purpose-

(a)    the international system of units as recommended by the General Conference on Weights and Measures; and

(b)    such additional units as may be amended by the International Organization of Legal Metrology;

shall be the units of the metric system.

                        Sec. 14 of the Act provides that the base unit mass specified in Section 6 and the base unit of measures specified in Section 5 (the base unit of length shall be metre) and sections 7 to 11(both inclusive) (base unit of time – second; base unit of electric current – ampere; base unit of thermodynamic temperature – Kelvin; base unit of luminous intensity – candela; base unit for substance – mole) and the supplementary and other units specified by rules made there under Section 12 shall be the standard of weight and measures, as the case may be.   The units of numeration specified by Section 13 shall be the standard units of numeration.

                        Sec. 79 of the Act provides for the conversion of non metric weights and measures into standard units of weights or measures.

STANDARDS OF WEGITHS AND MEASURES (ENFORCEMENT) ACT, 1985:

                        It is an act to provide for the enforcement of the standards of weights and measures established by or under the Standards of Weights and Measures Act,1976 and for matters connected therewith or incidental thereto.

                        Sec. 2 provides that nothing in this Act shall apply to any inter state trade or commerce in-

(a)    any weight or measure, or

(b)   any other goods which are sold, delivered or distributed by weights, measure or number.

Section 11 prohibits quotations etc., otherwise than in terms of standard weight or measure.   This section provides that except where he is permitted under the Standards Act so to do, no person shall, in relation to any goods or things which are sold, transferred, distributed or delivered, or any service rendered-

(a)    quote, or make announcement of, whether by word or mouth or otherwise, any price or change, or

(b)   issue of exhibit any price list, invoice, cash memo or other document; or

(c)    mention any weight or measure in any advertisement, poster or other document; or

(d)   indicate the weight, measure or number of the net contents of any package on the package itself or on any label, carton or other thing; or

(e)    expresses, in relation to any transaction, industrial production of protection, any quantity or dimension,

otherwise than in accordance with standard weight or measure.

                        Section 41 provides penalty for contravention of Section 11.   It provides penalty which may extend to Rs.2000/- and for the second or subsequent offence, with imprisonment for a term which may extend to one year and also with fine.

STANDARDS OF WEIGHTS AND MEASURES (NATIONAL STANDARDS) RULES, 1988:

                        Rule 11 provides that the unit of power, radiant flux and heat flux shall be the watt (symbol-W).  Rule 5 provides that the unit defined and specified in the Second Schedule shall be derived units and the symbol assigned to each such unit in that schedule shall be the symbol of that unit and no other units shall be used for the entities specified in the Second Schedule except for the purpose of scientific or technological research.

MOTOR VEHICLES ACT, 1988:

                                    The Motor Vehicles Act, 1988 came into force in 1988.  Sec. 39 of the said Act provides for the necessity for registration of motor vehicles.  Rule 47 of the Central Motor Vehicles Rules, 1989 provides that application in Form 20 shall be submitted for registration of the vehicle.  Form No. 21 is the sale certificate as provided in Rule 47.   Form 23 is the form of Certificate of Registration issued under Rule 48.  Form No. 41 is the State Register of motor vehicles maintained under Rule 75. 

ISSUE:

                        The issue to be discussed in this article is taken from the case law ‘Mahindra & Mahindra Limited V. Director of Standards of Weights and Measures’ – 2011 (272) ELT 488 (ker).    The issue involved in this case is whether the advertisement made by M/s Mahindra & Mahindra Ltd., in India Today (Malayalam) in respect of their vehicle, Scorpio, in which the engine of the vehicle is described as having 109 BHP would constitute an offence under Section 11 of the Standards of Weights and Measures (Enforcement) Act, 1985, Section 14 and 79 of the Standards of Weights and Measures Act, 1976 under item No. 11 of Part II of the Schedule of Rule 5 of the Standard and Weights and Measures (National Standards) Rules, 1988.

ANALYSIS OF CASE LAW:

Facts:

                        The petitioner company is engaged in the manufacturing and marketing of motor vehicles under a general brand name ‘Mahindra”.  The petitioner released an advertisement in which the engine was described as 109 BHP (British Horse Power).   The Inspector of Legal Metrology, Kanhangad issued a show cause notice to the company stating that the description of power of the engine of the vehicle in question in the old imperial system unit of BHP is violative of the provisions of law.   A reply was given to the show cause notice as detailed below:

• The advertisement in question does not violate the provisions of law as quoted;
• The Standards of Weights and Measures Act, 1976 does not apply to the vehicles manufactured and distributed by the petitioner company;
• The Motor Vehicles Act, 1988 is a special legislation so far as motor vehicles are concerned and that act would prevail upon a general law like Standards of Weights and Measures Act, 1976;
• The Motor Vehicles Act, 1988 came into force later in point of time and if there is any contradiction between the two Acts, the later shall prevail;
• Section 4 of the Standards of Weights and Measures Act, 1976 mandates that every unit of weight or measure shall be based on the units of the metric system and the expression of unit of power in horse power comes within the definition of metric system;
• If the equivalent of BHP viz., ‘watt’ is mentioned in the advertisement it would cause confusion among the public;
• The practice in the motor vehicle industry is that the power of an engine of a vehicle is mentioned only in BHP.

The Department did not accept the reply given by the petitioner.  It is stated that vehicles are being sold in terms of number along with the relevant specifications like weights, power, engine capacity, wheel base, etc., and the Standards of Weights and Measures Act, 1976 is applicable to the case in hand.  The Department further stated that the legal action would be continued and that if the company wants to compound the matter departmentally, they may appear before the Departmental Officers.  The Offender in this case, being a company, every person who was in charge of and was responsible for the conduct of the business of the company as well as the company will be held responsible for the offence. Against this order the petitioner filed the writ petition before Kerala High Court with a prayer for a declaration that they are entitled to express the unit of power of the vehicle/engine in the units of ‘horsepower’ in advertisements or otherwise and for the issue of a writ of certiorari to quash the notices issued by the Department.

                        The High Court observed the following:

• In the Register of Motor Vehicle (Form No. 24), column 15 mentions ‘horsepower’ of the vehicle;
• In Form No. 25, the application for renewal of certificate of registration of a motor vehicle other than a transport vehicle – column No. 7 mentions the ‘cube capacity/horse power’;
• Column No. 9 of Form 41 as mentions ‘cubic capacity/horse power;

With the above observations the High Court held that the Motor Vehicles Act was enacted long after the enactment of the Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Enforcement) Act, 1985.   Still in the forms prescribed under the Motor Vehicles Act and Rules, wherever the power of the engine of the vehicle is to be expressed, it is expressed in terms of ‘horse power or cube capacity’.  Nowhere in the forms the power of the engine of a vehicle is mentioned in watts.   When a common man purchases a vehicle would really be mislead since in day o day life he refer to the horse power and not ‘watts’.  The Court can take notice of the conduct of common people and the practice prevailing among people as the law is intended for the common people.   If horse power of a vehicle is mentioned in the documents of title relating to a vehicle, why not it be mentioned in other records, advertisements, letters or other forms of communications?  If people were to be convicted for mentioning the horse power of a vehicle or engine thereof, the Court has to convict and put in jail thousands of people.   The Court shall not shut its eyes to the realities in life. 

                        The Court further observed that the prosecution proposed to be initiated against the petitioner company is under Section 41 of the Standards of Weights and Measures (Enforcement) Act, 1985 which provides for penalty for contravention of Section 11 which deals with prohibitions of quotations etc., otherwise than in terms of Standards of weight or measure.   If Section 11 does not apply, Section 41 also does not apply.   In view of Section 2 of the said Act, Section 11 does not apply to any inter state trade or commerce in any weight or measures or any other goods which are sold, delivered or distributed by weight, measure or number.  If that be so, how could a person be punished under Section 41 in respect of an advertisement relating to a transaction coming within the purview of Section 2 of the said Act?  The Court held that there could be no violation of Sec. 41.

                        The next question to be considered by the court is whether sale of a vehicle by the manufacturer thereof is a sale by weight, measure or number.  A car is a composite thing of so many components consisting of the main components viz., engine, gear box, body and other mechanical, electrical and other fittings.  A vehicle cannot be sold by weight, measure or by number.   Section 11(d) and 41(d) of the Standards of Weights and Measures (Enforcement) Act, 1985 give a clear indication that no person shall indicate the weight, measure or number of the net contents of any package on the package itself or on any label, carton or other thing, otherwise than in accordance with standard weight or on the basis of a label.  Sec. 11(d) is not applicable at all in the case of sale of a vehicle.   If so, Section 41 also does not apply.

PRESENT POSITION:

                        The Legal Metrology Act, 2009 replaced the Standards of Weights and Measures Act, 1976 and the Standards of Weights and Measures (Enforcement) Act, 1985.  This Act came into effect from 01.04.2011. Section 11 of the Legal Metrology Act, 2009 is similar to that of Section 11 of the Standards of Weights and Measures (Enforcement) Act, 1985.

                        Rule 13 of Legal Metrology National Standard Rules, 2011 provides that the units defined and specified in the second schedule shall be derived units and the symbol assigned to each such unit in that schedule shall be the symbol of that unit and no other units shall be used for the entities specified in the second schedule except for the purpose of scientific or technological research.  Item No. 11 of Part II of second schedule to this Rules indicates that unit of power, radiant flux and heat flux shall be the Watt (‘W’).   This Rule is similar to that of Rule 11 of Standards of Weights and Measures (National Standards) Rules, 1988.

                        The judgment was delivered by Kerala High Court on 14.5.2011 i.e., after the introduction of Legal Metrology Act.  The following questions arise due to the change in law:

• Whether it can be said that Legal Metrology Act, 2009 is prevailing over the Motor Vehicles Act, 1988?
• Whether the judgment of Kerala High Court is applicable to similar cases after the introduction of Legal Metrology Act?

The views of the experts are solicited in this regard.