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Writ Petition No. 964 of 1975, decided on 23rd September 1975.

----S. 38 read with West Pakistan Weights and Measures Rules, 1967, r. 156(4)-Classification of dealers of live poultry for purpose of trade under Ordinance-Held, not undesirable and discriminatory-Provi sion of r. 156(4) not in excess of powers conferred upon Government under Ordinance.

Abdul Aziz Shaikh for Petitioner.

The two petitioners claim to be respectively the President and the General Secretary of the Poultry Workers Welfare Association, Karachi. They have challenged the vires of sub-rule (4) of rule 156 of the West Pakistan Weights and Measures Rules, 1967 by which it .has been provided that "no weighing instrument other than beam-scale of B Class or C Class or Counter Scales shall be used for weighing poultry and no instrument shall be verified, re-verified or stamped by the Inspector for the said purpose". It is submitted by Mr. Abdul Aziz Shaikh, learned counsel for the petitioners, that the ban imposed on the use of scales of particular type, and no other on the poultry trade is arbitrary, and amounts to illegal discrimination and thus infringes the fundamental right of equality before law which has been guaranteed by the Constitution. It is further submitted that the provision of the new sub-rules is beyond the scope of the rule-making power, and it is, therefore, an exercise in excess of law-making authority.

In order to appreciate the submissions made, it is firstly necessary to refer to rule-making power conferred upon the Government under the -Statute. The relevant provision is made in section 38 of the West Pakistan Weights and Measures Ordinance, 1965, which is to the following effect ;-----

"S. 38.----(1) Government may, after previous publication, make rules for carrying into effect the purposes of this Ordinance.

(2) Without prejudice to the generality of the foregoing powers, such rules may prescribe-

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(h) the number of weighing and measuring instruments to be kept and necessary particulars regarding the same;

(i) the authority by whom certified scales shall be provided for the purposes of this Ordinance and the Rules made thereunder, and the manner in which they shall be verified or re-verified ;

(k) the inspection, verification, adjustment, and stamping of weights and measures and weighing or measuring instruments m use including the prohibition of stamping in cases where the nature, denomination, material or mode of construction of the weight or measure or weighing or measuring instrument appears likely to facilitate the commission of fraud, and the period within which such weights and measures and: weighing or measuring instruments shall be verified or re-verified.

(o) the amount of error to be tolerated in weights and measures and' weighing or measuring instruments used or intended to be used for trade ;

(p) the amount of error to be tolerated in selling articles by weight or measure generally or as regards any trade or class of trade ; .

(r) the seizure, detention and destruction of weights and measures and' weighing or measuring instruments which are not authorised by this. Ordinance------------------

It may now be mentioned that in exercise of the powers conferred by' section 38 of the Ordinance, the Provincial Government made the West Pakistan Weights and Measures Rules, 1967 which are notified in the: Gazette of West Pakistan, Extraordinary, dated the 12th April 1967.. Rule 156 reads as follows :----

"156.---(1) Weighing instruments used by the following classes of traders shall be beam-scales of either Class A or Class B or such instruments other than beam-scales as satisfy the requirements of Table II and no instruments shall be verified, re-verified or stamped, by the Inspector if they are not instruments of the kind specified in this sub-rule:-

(i) Gold silver merchants, jewellers and bullion dealers.

(ii) Dealers in precious metals and precious stones.

(iii) Retail chemists and druggists.

(iv) Dealers in perfumery.

(v) Any other class of traders as the Director may specify.

(2) Beam-scales used by the following classes of traders shall be either of Class A, Class B or Class C and no beam-scales shall be verified ; re-verified or stamped by the Inspector if they do not belong to one of these classes.

(i) Retail and wholesale dealers in base metals.

(ii) Retail and wholesale dealers in tea, coffee, tobacco and cotton. (iii) Retail and wholesale dealers in ghee, spices and butter.

(iv) Any other class or classes of traders as the Director may specify.

(3) Tola weights used by the classes of traders mentioned in sub-rule (1) shall be bullion told weights and no tola weights shall be verified, re-verified or stamped by the Inspector if they are not bullion tola weights.

Subsequently the following sub-rule (4) was added in Rule 156.

"(4) No weighing instrument other than the beam-scales of B Class or C Class or counter scales shall be used for weighing live poultry ad no other instrument shall be verified, re-verified or stamped by the Inspector for the said purpose."

It is this provision of law that has been challenged by the petitioners in this petition on the ground mentioned earlier.

It would be seen from the bare reading of Rule 156, that various classifications of Traders for the purposes of restrictions on their use of weighing instruments by them had been made in these Rules ever since they were originally made in 1967. The classification of Poultry Dealers as a separate class of Traders has not, therefore, been made for the first time by the newly added sub-clause (4). The classification of the Traders which had already been made in 1967, as "Traders in Gold and Silver", "Dealers in Precious Metals", "Retail Chemists", "Dealers in Perfume", Retail and Wholesale Dealers in Base Metals", "Tea", "Coffee", "Tobacco", "Cotton", "Ghee", "Butter", "Spices", etc. if each category of Traders mentioned above can be treated separately, as a class by itself, it is difficult to accept that Dealers in Poultry cannot be treated as a class for themselves for the purpose of Trade so as to be subjected to the Rule-making power conferred upon the Government under the West Pakistan Weights and Measures Ordinance, 1965. Trade in Poultry has by now specialised itself in Pakistan. Poultry is sold in terms of its weight. What is significant is the fact that according to the petitioners themselves Poultry Dealers have formed an association for the welfare of the "Shop-keepers of Live Poultry" by the name and style of "Poultry Workers Welfare Association". The Association's Registration Number is said to be 2760, and its Head Office is at the Empress Market, Karachi. If the Dealers of Live Poultry have classified themselves and formed an Association for the purpose of their welfare, then it hardly lies in their mouth to raise the plea that their classification for the purpose of Trade under the West Pakistan Weights and Measures Ordinance, 1965 is unreasonable and discriminatory. Learned counsel for the petitioner did not even refer to any case-law in support of the submissions made by him. We, therefore, find no force in the contention raised by him.

It cannot also be legitimately argued that the provisions of the newly added sub-rule (4) are in excess of the powers conferred upon the Government, for, the provisions of clauses (h), (i), (j) and (k) of subsection (2) of section 38 of the Ordinance confer ample authority on the Government to make the Rules to the effect as have been made in newly added subsection (4) in Rule 156. It is particularly provided by section 38 in its clauses referred to above that the Rule-making power may extend with regard to the number of weighing instruments, with necessary particulars thereof, and also as to the inspection of the weighing instruments where the nature or mode of their construction appears to facilitate the commission of fraud.

Thus there is no merit in any of the contentions raised by learned counsel, and we, therefore dismiss this petition it limine.

S. Q. Petition dismissed.

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