TMI Blog2018 (1) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... ntities that are supplied are thus mentioned on the package and that MRPs are mentioned so that there is one uniform price at which such goods are sold. Neither the Standards of Weights and Measures Act, 1976 read with the enactment of 1985, or the Legal Metrology Act, 2009, would apply so as to interdict the sale of mineral water in hotels and restaurants at prices which are above the MRP. Appeal allowed. - Civil Appeal No. 21790 OF 2017 (Arising out of S.L.P. (c) No. 28685/2015), Civil Appeal No. 21791 of 2017 (Arising out of S.L.P. (C) No. 27629/2015) - - - Dated:- 12-12-2017 - Mr. R.F. Nariman And Mr. Navin Sinha JJ. JUDGMENT R.F. Nariman, J. 1) Leave granted. 2) The present appeals arise out of Writ Petition (C) No. 6517/2003 filed by the Federation of Hotel and Restaurant Associations of India in the High Court of Delhi, seeking a declaration that the provisions of the Standards of Weights and Measures Act, 1976, the Standards of Weights and Measures (Enforcement) Act, 1985 and the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 are not applicable to services rendered in the premises of hotels/restaurants. 3) The appellant&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd customers of the other falls within this categorization. 4) In a Letters Patent Appeal filed before the Delhi High Court, by a judgment dated 11.02.2015, the Division Bench recorded that the counsel for the writ petitioners was agreeable to disposing of the appeals in a particular manner and accordingly, the appeals were disposed of in such manner. Paras 16 17 of this judgment are set out herein below: 16. The counsel for the writ petitioners is agreeable to our disposing of these appeals with observations that the judgment of the learned Single Judge shall not come in the way of the appellant enforcing the provisions of the new Act even if identical or similar to the old Act and it being left to be adjudicated in the proceedings if any initiated under the new Act whether hotels/restaurants, are entitled to do so or not. 17. We accordingly dispose of these appeals in following terms: A. Owing to the change in law, there is no need to set aside or affirm the judgment of the learned Single Judge. B. However the question of law adjudicated by the learned Single Judge is left open for adjudication in any fresh proceeding under the new law and the judgment of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made, no such change as was made by the Constitutional amendment has been made in the definition of sale which continues to be the same under the 2009 Act as it was under the 1976 Act, the Division Bench ought to have affirmed the judgment of the learned Single Judge and dismissed the appeal. 7) Mr. Ajit Kumar Sinha, learned Senior Counsel, appearing on behalf of the Union of India has argued before us that we should not go into the jurisdictional question at all in view of the statement of counsel made for the writ petitioner before the learned Division Bench. Alternatively, he argued that if for some reason we are to go into the merits of the case, despite the fact that the 2009 Act admittedly does not make any change in the earlier position so far as the definition of sale is concerned, yet a reading of the definition of pre-packaged commodity contained in Section 2(l) of the 2009 Act read with Rule 3 explanation (1) of the Rules made thereunder would show that hotels such as the appellant's are within the reach of the statute and the rules made thereunder. He also referred us to Section 57 of the 2009 Act, which repeals the 1976 Act, and submitted that transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he standards of numeration, based on the international form of Indian numerals; (c) regulation of inter-State trade and commerce in weights and measures and commodities sold, distributed or supplied by weight or measure; (d) regulation of inter-State trade and commerce in commodities sold, supplied or distributed in packaged form; (e) control and regulation of export and import of weights and measures and commodities in packaged form; (f) approval (before manufacture) of models of weighing and measuring instruments intended to be manufactured after the commencement of the proposed legislation; (g) establishment of an Indian Institute of Legal Metrology for imparting training in legal metrology to inspectors and other persons; (h) surveys and collection of statistics for facilitating planning and enforcement of the proposed legislation; (i) punishment for offences against the proposed legislation. 9) We are concerned primarily with the definition of sale that is contained in the 1976 Act as it then stood. Sale is defined as follows: 2(v) sale , with its grammatical variations and cognate expressions, means transfer of property in any weight, measure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se goods by the person to whom such transfer, delivery or supply is made. A reading of the constitutional amendment would show that supply by way of or as part of any service of food or other article for human consumption is now deemed to be a sale of goods by the person making the transfer, delivery or supply. 12) What is interesting to note is that despite the fact that the constitutional amendment was made way-back in the year 1982, the 1976 Act was not amended so as to incorporate the definition of sale contained therein. What is of greater importance is to appreciate that when the 2009 Act has replaced the 1976 Act, again the definition of sale contained in the 2009 Act reads as follows: (r) sale , with its grammatical variations and cognate expressions, means transfer of property in any weight, measure or other goods by one person to another for cash or for deferred payment or for any other valuable consideration and includes a transfer of any weight, measure or other goods on the hire-purchase system or any other system of payment by instalments, but does not include a mortgage or hypothecation of , or a charge or pledge on, such weight, measure or other goods; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces; (I) appeal against decision of various authorities; and (j) empowering the Central Government to make rules for enforcing the provisions of the enactment. 13) On a reading of the said Act and the Rules made thereunder, it is clear that the position qua sale remains exactly the same as that contained in the 1976 Act, which now stands repealed. This being the case, we are of the view that the learned Single Judge was absolutely correct in his conclusion that despite the constitutional amendment having been passed, the definition of sale contained both in the 1976 Act and now in the 2009 Act would go to show that composite indivisible agreements for supply of services and food and drinks would not come within the purview of either enactment, and that this is for the very good reason that the object for both these enactments is something quite different - the object being, as has been pointed out above, to standardize weights and measures for defined goods so that quantities that are supplied are thus mentioned on the package and that MRPs are mentioned so that there is one uniform price at which such goods are sold. 14) Mr. Sinha, learned Senior Counsel, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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