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TMI Blog2015 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified in the Fourth Schedule of the Rules, the declaration of the quantity shall be in terms of the unit of mass if the commodity is solid, semi-solid, viscous or a mixture of solid and liquid and which is again indicative of the reference to measurement in units of mass in the Act being to solids, semi-solids, viscous or mixture of solid and liquid. Rule 12(2)(d) categorically provides that the declaration of the quantity shall be in terms of the unit of volume, if the commodity is liquid or is sold by cubic measure. The Fourth Schedule to the said Rules provides that Industrial Diesel Fuel is to be measured in terms of volume, though again it does not refer to petrol and diesel or so with which we are concerned but is again indicative of the measurement in volume in litres being very much in the domain of standard units with which the legal metrology system is concerned. As far as the grievance of the appellants of use by the respondent oil companies of the dip-rod method is concerned, we find that Rule 14 of the Legal Metrology (General) Rules provides that the procedure for carrying out calibration of vehicle tanks etc. as may be specified in the Ninth Schedule thereto. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olume on account of rise and fall in temperature; (vi) that there will be no such variation if petrol/diesel is sold by weight; (vii) that the respondent oil companies and their officers by continuing to sell petrol/diesel in litres instead of by weight are siphoning off/misappropriating ₹ 40 to 45 crores per day; (viii) that owing to the respondent oil companies failing to adopt the measures as prescribed in the Legal Metrology Act, the members of the appellants suffer as the volume of petrol/diesel transported in lorries, exposed to heat, is much larger than the volume sold by the members of the appellants who store such petrol/diesel supplied by the respondent oil companies to them in underground tanks where the temperature is lower, resulting in the volume shrinking; (ix) that the appellants had earlier filed a complaint before the Monopolies and Restrictive Trade Practice Commission [substituted by the Competition Appellate Tribunal (CompAT)] vide enquiry No. 75/1992 which was dismissed; Civil Appeal No. 10229/2013 preferred there against to the Supreme Court was also dismissed on 18th November, 2013 granting liberty to the appellants to agitate their gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no copy of the agreements so entered into have even been produced and along with the memorandums of appeal, only the extract of the arbitration clause in the agreement has been annexed. We are thus unable to know as to what are the terms of the said agreement. 4. The counsel for the appellants however invited attention to Harbanslal Sahnia v. Indian Oil Corporation Ltd. - AIR 2003 SC 2120 laying down that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. 5. Per contra, the counsel for the respondent HPCL has invited attention to the order supra of the Supreme Court in appeal preferred against the order of the CompAT. 6. We have perused the order of the CompAT as well as the order of the Supreme Court in appeal preferred thereagainst. The complainant in the proceeding before the CompAT is the appellant in LPA No. 405/2014. Though the complaint was on the same grounds as before us, but the CompAT inter alia by referring to the clauses of the agreement between the members of the appellants and the respective oil companies held that no case of the respondent oil companies having indulged in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction to entertain the writ petitions as the appellant in LPA No. 405/2014 is an association of the petroleum traders of the State of Uttar Pradesh and the appellant in LPA No. 406/2014 is an association of petroleum traders of the State of Haryana and whose retail outlets are in the States of Uttar Pradesh and Haryana. Reliance in this regard is placed on Kusum Ingots Alloys Ltd. v. Union of India - (2004) 6 SCC 254 = 2004 (168) E.L.T. 3 (S.C.), Oil and Natural Gas Commission v. Utpal Kumar Basu - (1994) 4 SCC 711 and Sterling Agro Industries Ltd. v. Union of India - AIR 2011 Delhi 174 = 2011 (270) E.L.T. 477 (Del.). 9. Though the aforesaid two reasons are sufficient to dismiss these appeals but we find that the appellants even under the Legal Metrology Act have failed to make out any case. Their entire case is based on : (i) that vide Section 4, every unit of weight or measure has to be in accordance with the metric system based on international system of units; (ii) that the base unit of mass, as per Section 5, is kilogram; (iii) that Sections 11 12 prohibit use of any other unit than the standard units of weight and measure; (iv) that litre is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th; (ii) kilogram as a unit of mass; (iii) second as a unit of time; (iv) ampere as a unit of electricity; (v) kelvin as a unit of thermodynamic temperature; (vi) candela as a unit of luminous intensity; and (vii) mole as a unit of amount of substance. However, the said Brochure besides the said Base Units, also refers to Derived Units (which are products of powers of Base Units) and Clause 4 of the said Brochure refers to units outside the SI as some of the Non-SI units which still appear in the scientific, technical and commercial literature and will continue to be used for years owing to their historic importance. It further lists the non-SI units which are accepted for use with the international system because they are widely used with the SI in matters of everyday life and because their use is expected to continue indefinitely and yet further because they have an exact definition in terms of an SI Unit. The said list includes the unit of litre as a measure of volume and gives the value of a litre in SI units as : 1 L = 1 1 = 1 dm3 = 10 cm3 = 10-3 m3 In fact, the said Brochure also refers to the 12th General Conference on Weights and Measures of the year 1964 (also se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Than Water provides for measurement of liquids other than water, by volume. The same thus runs counter to the argument of the appellants that the measure of liquids has to be by mass only. Again, while providing the extent of error in measurement of such liquids, measurements are given in litres which is also indicative of the measurement in litres being within the domain of the legal metrology system. 13. Reference may also be made to Rule 12 of the Legal Metrology (Packaged Commodities) Rules, 2011 which in Clause (2)(a) provides that except in the cases of commodities specified in the Fourth Schedule of the Rules, the declaration of the quantity shall be in terms of the unit of mass if the commodity is solid, semi-solid, viscous or a mixture of solid and liquid and which is again indicative of the reference to measurement in units of mass in the Act being to solids, semi-solids, viscous or mixture of solid and liquid. Rule 12(2)(d) categorically provides that the declaration of the quantity shall be in terms of the unit of volume, if the commodity is liquid or is sold by cubic measure. The Fourth Schedule to the said Rules provides that Industrial Diesel Fuel is to be measu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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