CHAMAN LAL Vs. STATE OF J&K

JUDGEMENT

(1.) BY means of these petitions the petitioners seek striking down of the Jammu and Kashmir Weights & Measures (Enforcement) Act, 1978, (hereinafter called the State Act), on the ground of its being ultra vires of the Constitution of India and the Constitution of Jammu & Kashmir State, mainly on the ground of legislative incompetence of the state Legislature. The petitioners further seek quashing of all the Rules and Notifications issued under the State Act as well as the complaints filed against them by respondent No. 2 and pending in the lower Criminal Courts for the commission of offences under sections 9(1), 11, read with sec. 36 and 37 of the State Act.

(2.) PETITIONERS are poor way -side hotliers popularly known as Dhabawalas dealing in cooked food served to the poor classes and weaker sections of the society. According to them cooked foods are not weighed or measured before they are served to the customers and the charges depend on the food consumed reckoned on a rough and ready basis. According to them the sale of food by weight/measure is very difficult, time consuming and irritating and in many cases is impracticable. The Assistant Controller Weights and Measures purporting to act under the State Act lodged three complaints against the petitioners which are pending in the court of Sub -Judge. Judicial Magistrate, Jammu under the provisions of State Act as narrated hereinabove. It is further submitted that no such complaints have been lodged against big hotliers and restaurant caterers in Jammu who also deal in cooked food and cater to rich and upper classes of the society.

(3.) THE pre -amble of the State Act provides that the Act has been legislated to provide for the enforcement of standard of weights and measures established by or under the Central Act and for matters connected therewith or incidental thereto. It is further submitted that the state Act in fact is in aid or incidental or ancillary to the Central Act. Such a legislative provisions is covered by entry N0. 50 of List I of Schedule VII of the Constitution of India made applicable to the State of Jammu & Kashmir in which the Union Parliament has legislated the standards of weights and Measures Act, 1976, being Act No. 60 of 1976, (hereinafter called the Central Act), which is comprehensive in as much as it not only provides for establishment of standard weights and measures but also for the enforcement thereto to the extent desired by the Parliament. The provisions of the State Act and the Central Act are similar, dealing with same field of legislation as enumerated in VIIth Schedule of the Constitution of India. As sections 9&11 of the State Act and the corresponding penal provisions contained in Sections 36 & 37 are over -lapping with the provisions of the Central Act as contained in sections 21, 33, 50, 56 & 57, the same are alleged to be the result of excessive legislation by the State Legislature and in contravention, of the provisions of the constitution. It is submitted in the alternative that otherwise also respondent No. 2 was not competent to lodge complaints for provisions against the petitioner because the Director of Legal Metrology, appointed by the Govt. of India under Sec. 72 of the Central Act had alone the jurisdiction to file such complaints. The enforcement of the State Act has also been challenged on the ground of discrimination, being violative of Art. 14 of the Constitution of India, in as much as the said Act has in practice been decided to be enforced against only on sections of the venders of cooked food i.e. Dhabawalas and has been enforced against hotel and restaurants. The Act is alleged to be violative of the provisions of Art. 19(1) (g) of the Constitution of India as well as according to the petitioners the restriction placed on their trade is unreasonable and unjustified because the customers cannot be served cooked food by precise weight and measures in terms of standard units, particularly by Dhabawalas, who belong to the poorest class of traders, catering to the weaker sections of the Society.