- (1.) Tata Metaliks Kubota Pipes Limited, the petitioner No.1 and the petitioner No.2 one of the Directors and Principal Officers of the petitioner No.1 are the petitioners in all the writ petitions. Hereinafter for the sake of brevity, the petitioner No.1 shall be referred to as the 'petitioner-company'.
(2.) The facts of the case are that on 16th October, 2007 the Registrar of Companies, West Bengal issued the Certificate of Incorporation to the petitioner-company. During March, 2008 the authorities issued the Certificate for commencement of Business. Thereafter, on 18th April, 2009 the petitioner-company obtained factory licence. On 27th April, 2009 consent, was granted by the West Bengal Pollution Control Board to operate the factory for manufacturing Centrifugally Cast (spun) Ductile iron Pressure Pipes (hereunder referred to as 'the pipes') for water, gas and sewage in its plant at Kharagpur with an installed capacity of 1,10,000 TPA. On 1st May, 2009 an application for grant of licence was furnished with the Bureau of Indian Standards (for short BIS) to use Standard Mark as per IS 8239/2000 specification on the pipes wherein it was stated that the company had started its manufacturing process. After such application was filed, the BIS by letter dated 22nd May, 2009 informed the petitioner-company that preliminary inspection of the factory was to be carried out by its officers for the purpose of processing the application. It was stated in the said letter that the Inspecting Officer would examine the availability of essential testing facilities, study the quality control system and will draw samples for testing in an independent laboratory to judge the conformity of the product to the relevant Indian Standard. The petitioner-company was further informed that it should not make any public claim through the media such as advertisement that the product conforms to the Indian Standard until licence was granted. If any such claim was made, action would be taken in accordance with the Bureau of Indian Standards Act, 1986 (for short 'the Act') and the Rules and Regulations framed thereunder. As intimated, on 11th June, 2009 the Officers of the BIS inspected the factory of the petitioner-company and collected samples. It is to be noted that on 25th June, 2009 the Central Government issued a notification called the Ductile Iron Pressure Pipes and Fittings (Quality Control) Order, 2009 (for short '2009 Order',) which came into effect from 1st July, 2009. In terms of paragraph 3.1 of the 2009 Order it was provided that no person by himself or through any person on his behalf manufacture or store for sale or sell or distribute such pipes and fittings which do not conform to the specified standards and do not bear the Standard Mark of the Bureau without obtaining Certification Marks licence.
(3.) Challenging the 2009 Order a writ petition being W.P. 12814 (W) of 2009-the first writ petition-was moved on 30th July, 2009 when, besides issuing directions for filing affidavits, an order was passed directing the BIS to communicate the decision on the petitioners' application for licence within a week from that date. Incidentally, 2009 Order was revoked on 23rd October, 2009. Pursuant to the directions passed on 30th July, 2009 by the High Court, an order dated 6th August, 2009 was passed by M.K. Roy, Scientist-F & Head (MDK-I) rejecting the application of the petitioner-company on the ground of antecedent as per Regulation 4(1) of the Bureau of Indian Standards (Certification) Regulations, 1988 (hereinafter referred to as the 'Regulations') and the guidelines provided under the Operating Manual for Product Certification, 2004 due to the seizure of materials during a search conducted on 15th July, 2009 on the factory premises of the petitioner company. Incidentally, on 15th July, 2009 the officers of the BIS conducted the search at the factory premises of the petitioner. At the time of search 45 pieces of pipes with IS 8329 marking and 3 pieces of stenciling plates for the purpose of markings IS 8329 were seized. Seizure memo was prepared. Thereafter, on 26th July, 2009 a show cause notice was issued to the petitioner-company directing to show cause as to why the application for grant of licence should not be rejected on the ground of violation, of section 12(b) of the Act.;