S.K. Ray, J. -
(1.) THE Petitioner is a private limited company engaged in the business of manufacture and sale of cast iron metric weights. It commenced this business in the year 1966 under valid licences, one for manufacture and another for sale, obtained under the provisions of the Orissa Weights and Measures (Enforcement) Act, 1958 (Act 20 of 1958) (hereinafter referred to as the Act) and Rules framed there under (hereinafter referred to as the Rules). These licenses were being renewed every year since the commencement of its business till 31 -10 -1977, when the Petitioner applied for renewal of its manufacturing and dealership licences for the year 1978, beginning from 1st January, 1978 to 31st December, 1978. By Annexure -2 dated 18th November. 1977 the Deputy Controller, weights & Measures, Government of Orissa, asked the Petitioner to furnish up to date sales tax clearance for renewal of its licences. By Annexure -3, which was a reply to Annexure -2. the Petitioner objected to this imposition of a pre -condition for renewal of its licences on the ground, inter alia, that neither the Act nor the Rules envisaged such a pre -condition for renewal and that it had a right of renewal under Rule 24 of the Rules unless it was shown to have violated any provision of the Act or of the Rules. By Annexure -A the opposite party No. 1 reiterated his demand for production of sales tax clearance certificate before renewal could be granted stating that Since the Petitioner had been complying with similar requirement during previous years, it was bound to furnish such clearance certificate for renewal of its licenses. The Petitioner by its reply (Annexure -5) also stuck to its stand that law, viz, the Act or the Rules did not, while conferring a right of renewal, envisage any such pre -condition as was being insisted upon. Despite Its protest, the opposite party No. 1 persisted in refusing renewal until sales tax clearance certificate was produced. The Petitioner has therefore, filed this writ application for Issuance of rule nisi in the nature of Mandamus directing opposite party No. 1 to renew its licences for manufacture and sale of C. I. metric weights.
(2.) THE sale question, therefore, is whether the stand of opposite party No. 1 in insisting upon production of sales tax clearance certificate as a pre -condition for renewal of the Petitioner 's licences is legal and valid under the provisions of the Act and the Rules. The relevant provisions of the Act and the Rules in this connection are extracted herein below. Section 13 of the Act provides as follows:
13. Prohibition of manufacture etc., of weights and measures without licence,: No person in course of trade or business shall manufacture, repair or sell any commercial weight or measure or any weighing or measuring instrument unless he has obtained in the prescribed manner a licence in this behalf from the State Government or any officer authorised by such Government.
'Prescribed ' has been defined in Section 2(f) of the Act as meaning "Prescribed by rules made under this Act". Section 44 deals with the power to make Rules. Necessary provisions of this section are extracted herein below.
44. Power to make rules: (1) The State Government may, by notification in the Official Gazette, make rules to carry out the purpose 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) x x x
(b) x x x
(c) x x x
(d) x x x
(e) x x x
(f) x x x
(g) the form and manner in which and the conditions subject to which licences may be granted to persons for manufacture, repair or sale of commercial weights and measures and weighing and measuring instruments;
x x x
(r) any other matter which has to be or may be prescribed;
(3) x x x
(4) The power to make rules under this section shall be subject to the conditions of previous publication in the Gazette.
(5) All rules made under this section shall, as soon as may be after they are made, be laid before the State Legislature." Rule 24 of the Rules deals with licensing of manufacturers, repairers and dealers of weights, measures, etc. and runs as follows:
(2). Licensing of manufacturers, repairers and dealers of weights, measure, etc. - (1) Every manufacturer or repairer of or dealer in, weights, measures or weighing and measuring instruments shall obtain a licence from the Controller in the form and subject to the conditions set out in Schedule XI and such licence shall be renewed from year to year.
(2) The fees payable for such licence and its renewal shall be as specified in Schedule XII.
(3) The Controller may, by order, refuse to grant or renew the licence or suspend or cancel the licence of a manufacturer or repairer of, or dealer in weights, measures, weighing and measuring instruments on the ground of want of proper and adequate workshop facilities or staff or incompetency or failure to observe any provisions of the Act or these rules:
Provided that no such order shall be made without giving such manufacturer, repairer or dealer a reasonable opportunity of stating his case.
(4) The Controller shall maintain a register of licensed manufacturers, repairers and dealers in the form set out in Schedule XII.
Schedule XI contains licensing Form A. Clause (4) of this form provides:
The manufacturer/repairer shall comply with the conditions noted below. If he fails to comply with anyone of these his licence is liable to be cancelled
At the foot of this form are set out the conditions of licence as follows:
1. The person in whose favour this licence is issued shall comply with all the relevant provisions of the Act and the Rules for the time being in force;
(b) x x x .
(c) x x x
(d) comply with any general or special directions that may be given by the Controller of Weights and Measures of Orissa....
(e) x x x
2. Every condition prescribed after the issue of this licence shall, if notified in the Official Gazette be binding on the person/persons to whom the licence has been granted.
(3.) FROM the aforesaid provisions of the Act and the Rules. It is clear that a person desirous of carrying on trade or business in manufacture or sale of any commercial weights and measures or any weighing or measuring instruments must obtain licences from the State Government or from any officer authorised by the State Government. Such licences are to be obtained from the Controller in Forms A and B set out in Schedule XI and must be renewed from year to year to enable the licensees to maintain the continuity of their business of manufacture or sale. The licences so granted shall be subject to the conditions 1 and 2 set out therein which are identical in both Forms A and B. As provided in Sub -rule (3) of Rule 24 of the Rules the Controller may refuse to renew a licence on the ground, inter alia, of failure to observe any provisions of the Act or the Rules. According to Clause (4) of the licensing Forms A and B, failure to comply with the conditions of licence annexed to them will entail cancellation of the licences.;