M.S.Sharma, J. - (1.) One of the prayers in the writ petition is that the provisions of the Cement (Quality Control) Order, 1962 in so far as it prohibit manufacture, storage, sale or distributor of cement not bearing I.S.Certification Mark may be declared illegal, invalid Ultra-vires, unconstitutional, null and void, abinitio. Another relief sought is for quashing the investigation in F.I.R. No. 79/89 pending at the Police Station Behror District Alwar and also for quashing the seizure of 507 bags of cement.
(2.) Cement (Quality Control) Order, 1962, (for short, the Order) was made by the Central Government in exercise of the powers conferred under Section 3 of the Essential Commodities Act, 1955 (for short, EC Act). Para 2(b) of the Order defines 'prescribed standard' which means the Indian Standard "(i) No. IS 8041 E-1976 relating to Rapid Hardening Portland Cement, (ii) No. IS 8042 E-1976 relating to white Portland Cement, (iii) No. IS 8043 E-1976 relating to Hydrophobic Portland Cement, (iv) No. IS 269-1976 relating to Ordinary and Low Heat Portland Cement (Third Revision). (v) No. IS 455-1976 relating to Portland Blast Furance Slag Cement (Third Revision). (vi) No. IS 1489-1976 relating to Portland Pozzolana Cement (Second Revision). (vii) No. IS 8112-1976 relating to High. Strength Ordinary Portland Cement and cement used for manufacture of railway sleepers. (viii) No. IS 3466-1967 relating to masonry Cement (First Revision). (ix) No. IS 8229 E-1976 Oil Well Cement (now under print). (x) No. IS 6909-1973 Super Sulpbated Cement. Explanation-Cement shall not be deemed to be of prescribed standard, if it is not of the nature, substance quality which it purports or it represents to be." Para-3 of the aforesaid Order prohibits manufacture or store for sale, sale, or distribution of any cement which is not of the prescribed standard. Para-3 of the Order reads as under : "3. Prohibition of manufacture, sale, etc of cement which is not of the prescribed standard. No person shall himself or by any person on his behalf manufacture or store for sale, sell or distribute cement which does not con,form to the prescribed standard and which does not bear 'IS' certification mark. Provided that the Central Government, may on an application made, permit any person to manufacture or store for sale, or sell or distribute cement without ISI mark for a period not exceeding three months, if it is satisfied that the grant of regular BIS certification mark is pending with the authorities under the Bureau of Indian Standards Act, 1986 (63 of 1986)". The aforesaid para 3 of the Order was substituted for earlier paragraph 3 vide Cement (Quality Control) Amendment Order, 1983. Prior to the aforesaid substitution it read as under : "No person shall himself or by any person on his behalf, manufacture, or store for sale, sell or distribute any cement which is not of the prescribed standard." It will therefore be clear that under the aforesaid amendment in the Order in the year 1983 prohibition was introduced in respect of manufacture or store for sale, sell or distribution of cement which did not bear 'IS' certification mark. Under the Indian Standards Institution (Certification Marks) Act, 1952 (for short, Certification Marks Act) in Section 2(f) 'Licence' is defined which means a licence granted under the Certification Marks Act to use the Indian Standards Institution certification mark, in relation to any article or process which conforms to the Indian Standard and under Section 2(g) 'marks' includes a device, brand, heading, label ticket, pictorial, representation, name, signature, word, letter or numeral or any combination thereof. 'Standard mark' under Section 2(l) means the Indian Standards Institution Certification Mark specified by the Indian Standards Institution to represent a particular Indian Standard. Under Section 2(n) an article is said to be marked with a Standard Mark if the article itself is marked with a Standard Mark or any covering containing or label attached to such article is so marked. Section 5 prohibits improper use of Standard Mark and it can only be used under a licence granted under the Certification Marks Act. Under sub-section(2) of Section 5, no person shall, not with standing that-he has been granted a licence, use in relation to any article or process the Standard Mark or any colourable imitation thereof unless such article or process conforms to the Indian Standard. Section 20 confers powers on the Central Government to make rules subject to the condition of previous publication by notification in the Official Gazette and the rules can be made to carry out the purposes of the Certification Marks Act. Section 21 confers powers on the Central Government to make regulations by notification in the Official Gazette, not inconsistent with the Certification Marks Act and the rules made thereunder to carry out the purposes of that Act. Regulations have been framed in exercise of the aforesaid power.
(3.) The petitioner No.1 is a limited liability company incorporated under the provisions of the Companies Act, 1956, and having its registered office situated at 455, Adarsh Nagar, Jaipur. The petitioners Nos. 2 to 5 are Directors of the petitioner company and the petitioner company is engaged in manufacture and sale of cement and it has set up a mini cement plant factory situated at A-20, Industrial Area, Behror, District-Alwar. The petitioner company submitted an application on July 28, 1987, for licence to use the standard mark under the Certification Marks Act and also deposited registration fee for grant of licence. Ultimately, the licence was awarded to the petitioner company on May 22, 1989. In between the time of submission of application as well as grant of licence, i.e. July 28, 1987 and May 22, 1989, the petitioner company started manufacture of cement. On December 22, 1988, the District Supply Officer Alwar conducted the inspection of the factory premises of the petitioner company. During the said inspection 507 bags of portland cement of the petitioner company were seized by the said officer on the ground that the said produce was manufactured, sold and distributed without Indian Standard Certification marks. At the instance of the District Collector, Alwar and Distt. Supply Officer Alwar, the Enforcement Inspector Alwar lodged a report at the Police Station Behror under Section 3/7 of the EC Act for contravention of para 3 of the Order which is pending investigation.;