Monopolies and restrictive trade practices act, 1969
[54 of 1969]
An Act to
provide that the operation of the economic system does not result
in the concentration of economic power to the common detriment, for
the control of monopolies, for the prohibition of monopolistic and
restrictive trade practices and for matters connected
therewith or incidental thereto.
Be
it enacted by Parliament in the Twentieth Year of the
Preliminary
1. Short title, extent and commencement.
(1) This Act may be called the Monopolies and Restrictive Trade
Practices Act, 1969.
(2) It
extends to the whole of
(3)
It shall come into force on such date as the Central Government may, [by
notification], appoint.
2. Definitions.
In
this Act, unless the context otherwise requires,—
(a) “agreement” includes any arrangement or understanding,
whether or not it is intended that such agreement shall be enforceable (apart
from any provision of this Act) by legal proceedings;
(b) “Commission” means the Monopolies and
Restrictive Trade Practices Commission established under section 5;
(c) [“Director General” means the Director
General of Investigation and Registration appointed under section 8, and
includes any Additional, Joint, Deputy or Assistant Director General of
Investigation and Registration appointed under that section;]
(d) [“dominant
undertaking” means—
[***]
[(iii) an undertaking which, by itself or along
with inter-connected undertakings produces, supplies, distributes or otherwise
controls not less than one-fourth of the total goods that are produced,
supplied or distributed in India or any substantial part thereof; or]
(iv) an undertaking which provides or
otherwise controls not less than one-fourth of any services that are rendered
in
[***]
Explanation II: Where
any goods [***] are the subject of different forms of production, supply,
distribution or control, every reference in this Act to such goods shall be
construed as reference to any of those forms of production, supply,
distribution or control, whether taken separately or together or in such groups
as may be prescribed.
[Explanation III:
The question as to whether any undertaking, either by itself or along with
inter-connected undertakings, produces, supplies, distributes or controls
one-fourth of any goods or provides or controls one-fourth of any services may
be determined according to any of the following criteria, namely, value, cost,
price, quantity or capacity of the goods or services.]
[Explanation IV: In
determining, with reference to the features specified [in sub-clause
(iii)
or sub-clause (iv)], as the case
may be, the question as to whether an undertaking is or is not a dominant
undertaking, regard shall be had to—
(i) the average annual production of the
goods, or the average annual value of the services provided, by the undertaking
during the relevant period; and
(ii) the figures published by such authority
as the Central Government may, by notification, specify, with regard to the total
production of such goods made, or the total value of such services provided, in
[Explanation
V : In determining the question as to whether an undertaking is or is not a
dominant undertaking in relation to any goods supplied, distributed or
controlled in
[Explanation
VI : For the purposes of this clause, “relevant period” means the period of
three calendar years immediately preceding that calendar year which immediately
precedes the calendar year in which the question arises as to whether an undertaking
is or is not a dominant undertaking.]
[Explanation
VII: Where goods [***] produced in India by an undertaking have been exported
to a country outside India, then the goods so exported shall not be taken into
account in computing for the purposes of this clause—
(i) the total goods [***] that are
produced in
(ii) the total goods [***] that are
produced, supplied or distributed in
[(da) “financial institution” means,—
(i) a public financial institution
specified in or under section 4A of the Companies Act, 1956 (1 of 1956);
(ii) a
State Financial, Industrial or Investment Corporation;
(iii) the State Bank of India or a subsidiary
bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of
1959);
(iv) a nationalised bank, that is to say, a
corresponding new bank as defined in clause (d) of section 2 of—
(i) the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970 (5 of 1970); or
(ii) the Banking Companies Acquisition and
Transfer of Undertakings) Act, 1980 (40 of 1980);
(v) the General Insurance Corporation of
India established in pursuance of the provisions of section 9 of the General
Insurance Business (Nationalisation) Act, 1972 (57 of 1972);
(vi) the
Industrial Reconstruction Corporation of
(vii) any other institution which the Central
Government may, by notification, specify in this behalf;]
[(e) “goods”
means goods as defined in the Sale of Goods Act, 1930 3 of 1930), and
includes,—
(i) products manufactured, processed or
mined in
[(ii) shares
and stocks including issue of shares before allotment;]
(iii) in relation to goods supplied,
distributed or controlled in
(ee) [Omitted
by the MRTP (Amdt.) Act, 1991, w.e.f. 27-9-1991;]
[(ef) “group”
means a group of—
(i) two or more individuals, associations
of individuals, firms, trusts, trustees or bodies corporate (excluding
financial institutions), or
any
combination thereof, which exercises, or is established to be in a position to
exercise, control, directly or indirectly, over any body corporate, firm or
trust; or
(ii) associated persons.
Explanation
: For the purposes of this clause—
(I) a group of persons who are able, directly
or indirectly, to control the policy of a body corporate, firm or trust,
without having a controlling interest in that body corporate, firm or trust,
shall also be deemed to be in a position to exercise control over it;
(II) “associated
persons”—
(a) in relation to a director of a body corporate, means—
(i) a relative of such director, and
includes a firm in which such director or his relative is a partner;
(ii) any trust of which any such director or
his relative is a trustee;
(iii) any company of which such director,
whether independently or together with his relatives, constitutes one- fourth
of its board of directors;
(iv) any other body corporate, at any general
meeting of which not less than one-fourth of the total number of directors of such
other body corporate are appointed or controlled by the director of the first
mentioned body corporate or his relative, whether acting singly or jointly;
(b) in relation to the partner of a firm,
means a relative of such partner and includes any other partner of such firm;
and
(c) in relation to the trustee of a trust,
means any other trustee of such trust;
(III) where any person is an associated person
in relation to another, the latter shall also be deemed to be an associated
person in relation to the former;]
(f) “
(ff) & (fff) [***]
(g) “inter-connected undertakings”
means two or more undertakings which are inter-connected with each other in
any of the following manner, namely:—
(i) if one owns or controls the
other,
(ii) where the undertakings are owned
by firms, if such firms have one or more common partners,
[(iii) where the undertakings are owned by
bodies corporate,—
(a) if one body corporate manages the other body corporate, or
(b) if one body corporate is a subsidiary of
the other body corporate, or
(c) if the bodies corporate are under the same management, or
(d) if one body corporate exercises control
over the other body corporate in any other manner;]
(iv) where one undertaking is owned by a
body corporate and the other is owned by a firm, if one or more partners of the
firm,—
(a) hold, directly or indirectly, not less
than fifty per cent of the shares, whether preference or equity, of the body
corporate, or
(b) exercise control, directly or
indirectly, whether as director or otherwise, over the body corporate,
(v) if one is owned by a body
corporate and the other is owned by a firm having bodies corporate as its partners,
if such bodies corporate are under the same management [***],
(vi) if the undertakings are owned or
controlled by the same person or [by the same group],
(vii) if one is connected with the other
either directly or through any number of undertakings which are inter-connected
undertakings within the meaning of one or more of the foregoing sub-clauses.
[Explanation
I : For the purposes of this Act, [two
bodies corporate], shall be deemed to be under the same management,—
(i) if one such body corporate exercises
control over the other or both are under the control of the same group or any
of the constituents of the same group; or
(ii) if the managing director or manager of
one such body corporate is the managing director or manager of the other; or
(iii) if one such body corporate holds not
less than [one-fourth] of the [one-fourth] of the total membership of
the board of directors of the other; or
(iv) if one or more directors of one such
body corporate constitute, or at any time within a period of six months immediately
preceding the day when the question arises as to whether such bodies corporate
are under the same management, constituted [(whether independently
or together with relatives of such directors or the employees of the first
mentioned body corporate) one-fourth of the directors of the other; or]
(v) if the same individual or individuals
belonging to a group, while holding (whether by themselves or together with
their relatives) not less than [one-fourth] of the equity shares in one such
body corporate also hold (whether by themselves or together with their
relatives) not less than [one-fourth] of the equity shares in the other; or
(vi) if the [same body corporate or bodies
corporate belonging to a group, holding, whether independently or along with
its or their subsidiary or subsidiaries, not less than one-fourth of the equity
shares] in one body corporate, also hold not less than [one-fourth] of the
equity shares in the other; or
(vii) if not less than [one-fourth] of the
total voting power [in relation toeach of the two bodies corporate is exercised
or controlled by the same individual (whether independently or together with
his relatives) or the same body corporate (whether independently or together
with its subsidiaries); or
(viii) if not less than [one-fourth] of the
total voting power [in relation to] each of the two bodies corporate is
exercised or controlled by the same individuals belonging to a group or by the
same bodies corporate belonging to a group, or jointly by such individual or
individuals and one or more of such bodies corporate; or
(ix) if the directors of the one such body
corporate are accustomed to act in accordance with the directions or instructions
of one or more of the directors of the other, or if the directors of both the
bodies corporate are accustomed to act in accordance with the directions or
instructions of an individual, whether belonging to a group or not.
Explanation
II : If a group exercises control over a body corporate, that body corporate
and every other body corporate, which is a constituent of or controlled by, the
group shall be deemed to be under the same management.
Explanation
III : If two or more bodies corporate under the same management hold, in the
aggregate, not less than [one-fourth] equity share capital in any other body
corporate, such other body corporate shall be deemed to be under the same
management as the first- mentioned bodies corporate.
Explanation
IV: In determining whether or not two or more bodies corporate are under the
same management, the shares held by [financial institutions] in such bodies
corporate shall not be taken into account.]
Illustration
Undertaking
B is inter-connected with undertaking A and undertaking C is inter-connected
with undertaking B. Undertaking C is inter-connected with undertaking A; if
undertaking D is inter-connected with undertaking C, undertaking D will be
inter-connected with undertaking B and consequently with undertaking A; and so
on.
Explanation : [***]
(gg) [***]
(h) “member” means a member of the Commission;
(i) “monopolistic trade practice”
means a trade practice which has, or is likely to have, the effect of,—
(i) [maintaining the prices of goods or
charges for the services] at an unreasonable level by limiting, reducing or
otherwise controlling the production, supply or distribution of goods [***] or
the supply of any services or in any other manner,
(ii) unreasonably preventing or lessening competition
in the production, supply or distribution of any goods or in the supply of any
services,
(iii) limiting technical development or
capital investment to the common detriment or allowing the quality of any goods
produced, supplied or distributed, or any service rendered, in India to
deteriorate;
[(iv) increasing unreasonably,—
(a) the cost of production of any goods; or
(b) charges for the provision, or maintenance, of any services;
(v) increasing unreasonably,—
(a) the prices at which goods are, or may
be, sold or re-sold, or the charges at which the services are, or may be,
provided; or
(b) the profits which are, or may be,
derived by the production, supply or distribution (including the sale or
purchase) of any goods or by the provision of any services;
(vi) preventing or lessening competition in
the production, supply or distribution of any goods or in the provision or maintenance
of any services by the adoption of unfair methods or unfair or deceptive
practices;]
[(j) “notification”
means a notification published in the Official Gazette;
(ja) “owner”, in relation to an
undertaking, means an individual, Hindu undivided family, body corporate or
other association of individuals, whether incorporated or not, or trust
(whether public or private or whether religious or charitable) who or which
owns or controls, the whole or substantially the whole of such undertaking, and
includes any associated person who is a constituent of a group and who has the
ultimate control over the affairs of such undertaking;]
(k) “prescribed” means prescribed by rules made under this
Act;
(l) “price”, in relation to the sale
of any goods or to the performance of any services, includes every valuable
consideration, whether direct or indirect, and includes any consideration which
in effect relates to the sale of any goods or to the performance of any
services although ostensibly relating to any other matter or thing;
[(ll) “produce” includes manufacture and
all its grammatical variations and cognate expressions shall be construed
accordingly;]
(m) “register” means the register
kept by the [Director General] under section 36;
[(n) “registered consumers’
association” means a voluntary association of persons registered under the Companies
Act, 1956 (1 of 1956), or any other law for the time being in force which is
formed for the purpose of protecting the interest of consumers generally and is
recognised by the Central Government as such association on an application made
in this behalf in such form and such manner as may be prescribed;]
(o) “restrictive trade practice” means
a trade practice which has, or may have, the effect of preventing, distorting
or restricting competition in any manner and in particular,—
(i) which
tends to obstruct the flow of capital or resources into the stream of
production, or
(ii) which tends to bring about manipulation of
prices, or conditions of delivery or to affect the flow of supplies in the
market relating to goods or services in such manner as to impose on the
consumers unjustified costs or restrictions;
(p) “retailer”, in relation to the
sale of any goods, includes every person, other than a wholesaler, who sells
the goods to any other person; and in respect of the sale of goods by a
wholesaler, to any person for any purpose other than re-sale, includes that
wholesaler;
(q) [* * *]
(r) “service” means service [* * *]
which is made available to potential users and includes the provision of
facilities in connection with [banking, financing, insurance, [chit fund, real
estate,] transport, processing], supply of electrical or other energy, boarding
or lodging or both, entertainment, amusement or the purveying of news or other
information, but does not include the rendering of any service free of charge
or under a contract of personal service.
[Explanation
: For the removal of doubts, it is hereby declared that any dealings in real
estate shall be included and shall be deemed always to have been included
within the definition of “service”;]
(s) “trade” means any trade,
business, industry, profession or occupation relating to the production,
supply, distribution or control of goods and includes the provision of any
services;
(t) “trade association” means a
body of persons (whether incorporated or not) which is formed for the purpose
of furthering the trade interests of its members or of persons represented by
its members;
(u) “trade practice” means any
practice relating to the carrying on of any trade, and includes—
(i) anything done by any person which
controls or affects the price charged by, or the method of trading of, any
trader or any class of traders,
(ii) a single or isolated action of any person in relation to any
trade;
[(v) “undertaking” means an enterprise
which is, or has been, or is proposed to be, engaged in the production,
storage, supply, distribution, acquisition or control of articles or goods, or
the provision of services, of any kind, either directly or through one or more
of its units or divisions, whether such unit or division is located at the same
place where the undertaking is located or at a different place or at different
places.
Explanation
I : In this clause,—
(a) “article”
includes a new article and “service” includes a new service;
(b) “unit”
or “division”, in relation to an undertaking includes,—
(i) a plant or factory established for the
production, storage, supply, distribution, acquisition or control of any
article or goods;
(ii) any
branch or office established for the provision of any service.
Explanation
II : For the purposes of this clause, a body corporate, which is, or has been,
engaged only in the business of acquiring, holding, underwriting or dealing
with shares, debentures or other securities of any other body corporate shall
be deemed to be an undertaking.
Explanation
III : For the removal of doubts, it is hereby declared that an investment
company shall be deemed, for the purposes of this Act, to be an undertaking;]
(vv) [* * *]
(w) [* * *]
(x) “wholesaler”, in relation to the
sale of any goods, means a person who [sells the goods, either in bulk or in
large quantities, to any person for the purposes of re-sale, whether in bulk or
in the same or smaller quantities;]
(y) words and expressions used but
not defined in this Act and defined in the Companies Act, 1956 (1 of 1956),
have the meanings respectively assigned to them in that Act.
2A. [Power of Central Government to decide
certain matters.
If any question arises as to
whether,—
(a) two or more individuals, trustees,
associations of individuals, firms or bodies corporate or any combination thereof,
constitute, or fall within, a group, or
(b) two or more undertakings are inter-connected
undertakings within the meaning of this Act, or
(c) two or more bodies corporate are under the same management,
the Central Government or where
the Board of Company Law Administration, constituted under section 10E of the
Companies Act, 1956 (1 of 1956), is, by notification, authorised so to do by the
Central Government, that Board, shall decide such question, after giving to the
persons concerned a reasonable opportunity of being heard.]
3. Act not to apply in
certain cases.
Unless the
Central Government, [by notification] otherwise directs, this Act shall not
apply to—
(a) any undertaking owned or controlled by a Government company,
(b) any undertaking owned or controlled by the Government,
(c) any undertaking owned or controlled by a
corporation (not being a company) established by or under any Central, Provincial
or State Act,
(d) any trade union or other association of
workmen or employees formed for their own reasonable protection as such workmen
or employees,
(e) any undertaking engaged in an industry, the
management of which has been taken over by any person or body of persons in
pursuance of any authorisation made by the Central Government under any law for
the time being in force,
[(f) any
undertaking owned by a co-operative society formed and registered under any
Central, Provincial or State Act relating to co-operative societies,
(g) any financial institution.]
[Explanation : In determining, for the
purposes of clause (c), whether or not any undertaking is owned or controlled
by a corporation, the shares held by financial institutions shall not be taken
into account.]
4. Application
of other laws not barred.
(1) Save as
otherwise provided in sub-section (2) or elsewhere in this Act, the rovisions
of this Act shall be in addition to, and not in derogation of, any other law
for the time being in force.
(2) Notwithstanding anything contained in section 3 or elsewhere in this Act, so much of the Act, as relate to matters in respect of which specific provisions exist in the—
(i) Reserve Bank of
(ii) State Bank of India Act, 1955 (23 of
1955), or the State Bank of
(iii) Insurance Act, 1938 (4 of 1938),
shall not apply to a banking company, the State Bank of India, or a subsidiary bank, as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), or an insurer, as the case may be.
MONOPOLIES AND
RESTRICTIVE TRADE
PRACTICES COMMISSION
5. Establishment and
constitution of the Commission.
(1) For the purposes of this Act, the Central
Government shall establish [by notification], a Commission to be known as the
Monopolies and Restrictive Trade Practices Commission which shall consist of a
Chairman and not less than two and not more than eight other members, to be
appointed by the Central Government.
(2) The Chairman of the Commission shall be a person who is, or has been or is qualified to be, a Judge of the Supreme Court or of a High Court and the members thereof shall be persons of ability, integrity and standing who have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration.
(3) Before appointing any person as a member of the Commission, the Central Government shall satisfy itself that the person does not, and will not, have, any such financial or other interest as is likely to affect prejudicially his functions as such member.
6. Terms of office,
conditions of service, etc., of members.
(1) Every
member shall hold office for such period, not exceeding five years, as may be
specified by the Central Government in the notification made under sub-section
(1) of section 5, but shall be eligible for reappointment :
Provided that no member shall hold office as such for
a total period exceeding ten years, or after he has attained the age of
sixty-five years, whichever is earlier.
(2) Notwithstanding anything contained in sub-section
(1), a member may—
(a) by writing under his hand and addressed
to the Central Government resign his office at any time;
(b) be removed from his office in accordance
with the provisions of section 7.
(3) A casual vacancy caused by the resignation
or removal of the Chairman or any other member of the Commission under
sub-section (2) or otherwise shall be filled by fresh appointment.
[(3A) Where any such casual vacancy occurs in the
office of the Chairman of the Commission, the seniormost member of the Commission,
holding office for the time being, shall discharge the functions of the
Chairman until a person appointed to fill such vacancy assumes the office of
the Chairman of the Commission.
(3B) When the Chairman of the Commission is
unable to discharge the functions owing to absence, illness or any other cause,
the seniormost member of the Commission, if authorised so to do by the Chairman
in writing, shall discharge the functions of the Chairman until the day on
which the Chairman resumes the charge of his functions.]
(4) No act or proceeding of the Commission
shall be invalid by reason only of the existence of any vacancy among its
members or any defect in the constitution thereof.
(5) The Chairman of the Commission and other
members shall receive such remuneration and other allowances and shall be
governed by such conditions of service as may be prescribed :
Provided that the remuneration of the Chairman or any
other member shall not be varied to his disadvantage after his appointment.
(6) In the case of a difference of opinion
among the members of the Commission, the opinion of the majority shall prevail
and the opinion or orders of the Commission shall be expressed in terms of the
views of the majority.
(7) The Chairman of the Commission and [every
other member] shall, before entering upon his office, make and subscribe to an
oath of office and of secrecy in such form, in such manner and before such
authority as may be prescribed.
(8) [The Chairman or any member] ceasing to
hold office as such shall not hold any appointment in, or be connected with the
management or administration of, any industry or undertaking to which this Act
applies for a period of five years from the date on which he ceases to hold
such office.
7. Removal of
members from office in certain circumstances.
(1)
The Central Government may remove
from office any member, who—
(a) has been adjudged an insolvent, or
(b) has been convicted of an offence which, in
the opinion of the Central Government, involves moral turpitude, or
(c) has become physically or mentally
incapable of acting as such member, or
(d) has acquired such financial or other
interest as is likely to affect prejudicially his functions as a member, or
(e) has so abused his position as to render
his continuance in office prejudicial to the public interest.
(2) Notwithstanding anything contained in
sub-section (1), no member shall be removed from his office on the ground
specified in clause (d) or clause (e) of that sub-section unless the Supreme
Court, on a reference being made to it in this behalf by the Central
Government, has, on an inquiry held by it in accordance with such procedure as
it may specify in this behalf, reported that the member ought, on such
grounds, to be removed.
8. Appointment of
Director General, etc., and staff of the Commission.
(1) The Central Government
may, by notification, appoint a Director General of Investigation and
Registration, and as many Additional, Joint, Deputy or Assistant Directors
General of Investigation and Registration, as it may think fit, for making
investigation for the purposes of this Act and for maintaining a Register of
agreements subject to registration under this Act and for performing such other
functions as are, or may be, provided by, or under, this Act.
(2) The
Director General may, by written order, authorise one of the Additional, Joint,
Deputy or Assistant Directors General to function as the Registrar of agreements
subject to registration under this Act.
(3) Every person authorised to function as
the Registrar of agreements and every Additional, Joint, Deputy or Assistant
Director General shall exercise his powers, and discharge his functions,
subject to the general control, supervision and direction of the Director
General.
(4) The Central Government may provide the
staff of the Commission and may, in addition, make provisions for the
conditions of service of the Director
General, Additional, Joint, Deputy or Assistant Director General and of the
members of the staff of the Commission.
(5) The conditions of service of the Director
General or any Additional, Joint, Deputy or Assistant Director General or of
any member of the staff of the Commission shall not be varied to his
disadvantage after his appointment.]
9. Salaries,
etc., to be defrayed out of the Consolidated Fund of
The salaries and allowances
payable to the members and the administrative expenses, including salaries,
allowances and pensions, payable to or in respect of officers and other
employees of the Commission, shall be defrayed out of the Consolidated Fund of
India.
JURISDICTION, POWERS AND PROCEDURE OF THE
COMMISSION
10. Inquiry into
monopolistic or restrictive trade practices by Commission.
The Commission may inquire into—
(a) any
restrictive trade practice—
(i) upon receiving a complaint of facts
which constitute such practice [from any trade association or from any consumer
or a registered consumers’ association, whether such consumer is a member of
that consumers’ association or not], or
(ii) upon
a reference made to it by the Central Government or a State Government, or
(iii) upon an application made to it by the [Director General], or
(iv) upon
its own knowledge or information;
(b) any monopolistic trade practice, upon a
reference made to it by the Central Government [or upon an application made to
it by the Director General] or upon its
own knowledge or information.
11. Investigation
by Director General before issue of process in certain cases.
[(1) The Commission may, before issuing any
process requiring the attendance of the person against whom an inquiry (other
than an inquiry upon an application by the Director General) may be made under
section 10, by an order, require the Director General to make, or cause to be
made, a preliminary investigation in such manner as it may direct and submit a
report to the Commission to enable it to satisfy itself as to whether or not the
matter requires to be inquired into.]
(2) The Director General may, upon his own
knowledge or information or on a complaint made to him, make, or cause to be
made, a preliminary investigation in such manner as he may think fit to enable
him to satisfy himself as to whether or not an application should be made by
him to the Commissioner under [* * *] section 10.
(3) For the purpose of conducting the
preliminary investigation under sub-section (1), or sub-section (2), as the
case may be, the Director General or any other person making the investigation
shall have the same powers as may be exercised by an Inspector under
sub-section (2) of section 44.
(4) Any order or requisition made by a person
making an investigation under sub-section (1), or sub-section (2), shall be enforced
in the same manner as if it were an order or requisition made by an Inspector
appointed under section 240 or section 240A of the Companies Act, 1956 (1 of
1956), and any contravention of such order or requisition shall be punishable
in the same manner as if it were an order or requisition made by an Inspector
appointed under the said section 240 or section 240A.]
(1) The Commission shall, for
the purposes of any inquiry under this Act, have the same powers as are vested
in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while
trying a suit, in respect of the following matters, namely :—
(a) the summoning and enforcing the
attendance of any witness and examining him on oath;
(b) the discovery and production of any
document or other material object producible as evidence;
(c) the reception of evidence on affidavits;
(d) the requisitioning of any public record
from any court or office;
(e) the issuing of any commission for the
examination of witnesses;
[(f) the appearance of parties and consequence
of non-appearance.]
(2) Any proceeding before the Commission
shall be deemed to be a judicial proceeding within the meaning of sections 193
and 228 of the Indian Penal Code (45 of 1860), and the Commission shall be
deemed to be a civil court for the purposes of section 195 [and Chapter XXVI of
the Code of Criminal Procedure, 1973 (2 of 1974)].
(3) The Commission shall have power to require any person—
(a) to produce before, and allow to be
examined and kept by, an officer of the Commission specified in this behalf,
such books, accounts or other documents in the custody or under the control of
the person so required as may be specified or described in the requisition,
being documents relating to any trade practice, the examination of which may be
required for the purposes of this Act; and
(b) to furnish to an officer so specified
such information as respects the trade practice as may be required for the purposes
of this Act or such other information as may be in his possession in relation
to the trade carried on by any other person.
(4) For the purpose of enforcing the
attendance of witnesses the local limits of the Commission’s jurisdiction shall
be the limits of the
[(5) Where, during any inquiry under this Act,
the Commission has any grounds to believe that any books or papers of, or relating
to any undertaking in relation to which such inquiry is being made or which the
owner of such undertaking may be required to produce in such inquiry, are
being, or may be, destroyed, mutilated, altered, falsified or secreted, it
may, by a written order, authorise any officer of the Commission to exercise
the same powers of entry, search and seizure in relation to the undertaking, or
the books or papers, aforesaid as may be exercised by the Director General
while holding a preliminary investigation under section 11.]
12A. Power of the
Commission to grant temporary injunctions.
(1) Where, during an inquiry
before the Commission, it is proved, whether by the complainant, Director
General, any trader or class of traders or any other person, by affidavit or
otherwise, that any undertaking or any person is carrying on, or is about to
carry on, any monopolistic or any restrictive, or unfair, trade practice and
such monopolistic or restrictive, or unfair, trade practice is likely to affect
prejudicially the public interest or the interest of any trader, class of traders
or traders generally or of any consumer or consumers generally, the Commission
may, for the purposes of staying or preventing the undertaking or, as the case
may be, such person from causing such prejudicial effect, by order, grant a
temporary injunction restraining such undertaking or person from carrying on
any monopolistic or restrictive, or unfair, trade practice until the conclusion
of such inquiry or until further orders.
(2) The provisions of rules 2A to 5 (both
inclusive) of Order XXXIX of the First Schedule to the Code of Civil Procedure,
1908 (5 of 1908), shall, as far as may be, apply to a temporary injunction
issued by the Commission under this section, as they apply to a temporary
injunction issued by a civil court, and any reference in any such rule to a
suit shall be construed as a reference to an inquiry before the Commission.]
[Explanation I : For the purposes
of this section, an inquiry shall be deemed to have commenced upon the receipt by
the Commission of any complaint, reference, or, as the case may be, application
or upon its own knowledge or information reduced to writing by the
Commission.]
[Explanation II : For the removal
of doubts, it is hereby declared that the power of the Commission with respect
to temporary injunction includes power to grant a temporary injunction without
giving notice to the opposite party.]
12B. Power of the Commission to award compensation.
(1) Where,
as a result of the monopolistic or restrictive, or unfair, trade practice,
carried on by any undertaking or any person, any loss or damage is caused to
the Central Government, or any State Government or any trader or class of
traders or any consumer, such Government
or, as the case may be, trader or class of traders or consumer may, without
prejudice to the right of such
Government, trader or class of traders or consumer to institute a suit
for the recovery of any compensation for the loss or damage so caused, make an
application to the Commission for an order for the recovery from that
undertaking or owner thereof or, as the case may be, from such person, of such
amount as the Commission may determine, as compensation for the loss or damage
so caused.
(2) Where
any loss or damage referred to in sub-section (1) is caused to numerous persons
having the same interest, one or more of such persons may, with the permission
of the Commission, make an application, under that sub-section, for and on
behalf of, or for the benefit of, the persons so interested, and thereupon the
provisions of rule 8 of Order I of the First Schedule to the Code of Civil
Procedure, 1908 (5 of 1908), shall apply subject to the modification that every
reference therein to a suit or decree shall be construed as a reference to the application
before the Commission and the order of the Commission thereon.
(3) The Commission may, after an inquiry made
into the allegations made in the application filed under sub-section (1), make
an order directing the owner of the undertaking or other person to make
payment, to the applicant, of the amount determined by it as realisable from
the undertaking or the owner thereof, or, as the case may be, from the other
person, as compensation for the loss or damage caused to the applicant by
reason of any monopolistic or restrictive, or unfair, trade practice carried
on by such undertaking or other person.
(4) Where a decree for the recovery of any
amount as compensation for any loss or damage referred to in sub-section (1)
has been passed by any court in favour of any person or persons referred to in
sub-section (1), or, as the case may be, sub-section (2), the amount, if any,
paid or recovered in pursuance of the order made by the Commission under
sub-section (3) shall be set off against the amount payable under such decree
and the decree shall, notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), or any other law for the time being in force, be
executable for the balance, if any, left after such set off.]
12C. Enforcement of
the order made by the Commission under
section 12A or 12B.
Every order made by the
Commission under section 12A granting a temporary injunction or under section
12B directing the owner of an undertaking or other person to make payment of
any amount, may be enforced by the Commission in the same manner as if it were
a decree or order made by a court in a suit pending therein and it shall be
lawful for the Commission to send, in the event of its inability to execute it,
such order to the court within the local limits of whose jurisdiction,—
(a) in the case of an order against a company, the registered
office of the company is situated, or
(b)
in the case of an order against any other
person, the place where the person concerned
voluntarily
resides or carries on business or personally works for gain, is situated,
and thereupon the court to which
the order is so sent shall execute the order as if it were a decree or order
sent to it for execution.]
13. Orders of Commission
may be subject to conditions, etc.
(1) In making any order under this Act, the
Commission may make such provisions not inconsistent with this Act, as it may
think necessary or desirable for the proper execution of the order and any
person who commits a breach of or fails to comply with any obligation imposed
on him by any such provision shall be deemed to be guilty of an offence under
this Act.
(2) Any order made by the Commission may be
amended or revoked at any time in the manner in which it was made.
(3) An order made by the Commission may
be general in its application or may be
limited to any particular class of traders or a particular class of trade
practice or a particular trade practice or a particular locality.
13A. Power
of the Commission to cause investigation to find out whether or not orders made
by it have been complied with.
(1) The
Commission may, if it has any reasonable cause to believe that any person has
omitted or failed to comply with any order made by it under this Act or any
obligation imposed on him by or under any order made by the Commission under
this Act, authorise the Director General or any officer of the Commission to
make an investigation into the matter and the Director General, or the officer
so authorised, may, for the purpose of making such investigation, exercise all
or any of the powers conferred on the Director General by section 11.
(2) On the conclusion of the investigation,
the Director General, or, as the case may be, the officer so authorised, shall
submit to the Commission a report of the investigation to enable the Commission
to take such action in the matter as it may think fit.]
13B. Power to punish
for contempt.
The Commission shall have, and
exercise, the same jurisdiction, powers and authority in respect of contempt
of itself as a High Court has and may
exercise and, for this purpose, the provisions of the Contempt of Courts Act,
1971 (70 of 1971) shall have effect subject to the modifications that—
(a) the reference therein to a High Court shall
be construed as including a reference to the Commission;
(b) the references to the Advocate-General in
section 15 of the said Act shall be construed as a reference to such Law Officer
as the Central Government may, by
notification in the Official Gazette, specify in this behalf.]
14. Orders where
party concerned does not carry on business in
Where any practice substantially
falls within [monopolistic, restrictive, or unfair, trade practice, relating to
the production, storage, supply,] distribution or control of goods of any
description or the provision of any services and any party to such practice
does not carry on business in India, an order may be made under this Act with
respect to that part of the practice which is carried on in India.
15. Restriction of
application of orders in certain cases.
No order
made under this Act with respect to any monopolistic or restrictive trade
practice shall operate so as to restrict—
(a) the right of any person to restrain any
infringement of a patent granted in
(b) any person as to the condition which he
attaches to a licence to do anything, the doing of which but for the licence
would be an infringement of a patent granted in India, or
(c) the right of any person to export goods
from
16. Sittings of the
Commission.
(1) The central office of the Commission
shall be in
(2) The powers or functions of the Commission
may be exercised or discharged by Benches formed by the Chairman of the
Commission from among the members.
17. Hearing to be
in public except in special circumstances.
(1) Subject
to the provisions of sub-section (2), the hearing of proceedings before the
Commission shall be in public.
(2) Where
the Commission is satisfied that it is desirable to do so by reason of the
confidential nature of any offence or matter or for any other reason, the
Commission may—
(a) hear
the proceedings or any part thereof in private;
(b) give
directions as to the persons who may be present thereat;
(c) prohibit or restrict the publication of
evidence given before the Commission (whether in public or in private) or of
matters contained in documents filed before the Commission.
18. Procedure of
the Commission.
(1) Subject
to the provisions of this Act, the Commission shall have power to regulate—
(a) the procedure and conduct of its
business;
(b) the procedure of Benches of the
Commission;
(c) the delegation to one or more members of
such powers or functions as the Commission may specify [and subject to any
general or special direction given, or condition imposed, by the Commission, a
member, to whom any powers or functions are so delegated, shall exercise such
powers or discharge those functions in the same manner and with the same
effect as if they had been conferred on such member directly by this Act and
not by way of delegation and any order or other act or thing made or done by
such member in pursuance of the power or function so delegated shall be deemed
to be an order or other act or thing made or done, by the Commission.]
(2) In particular, and without prejudice to
the generality of the foregoing provisions, the powers of the Commission shall
include the power to determine the extent to which persons interested or
claiming to be interested in the subject-matter of any proceeding before it are
allowed to be present or to be heard, either by themselves or by their
representatives or to cross-examine witnesses or otherwise to take part in the
proceeding.
19. Orders of the
Commission to be noted in the register.
The Commission shall cause an
authenticated copy of every order made by it in respect of a restrictive trade
practice [or an unfair trade practice, as the case may be,] to be forwarded to
the [Director General] who shall have it recorded in such manner as may be
prescribed.
CONCENTRATION OF ECONOMIC POWER
[***]
[***]
(1) [Notwithstanding anything contained in
this Act or in any other law for the time being in force, the Commission may,—
(i) upon receiving a complaint of facts
from any trade association or from any consumer or a registered consumers’
association, whether such consumer is a member of that consumers’ association or
not, or
(ii) upon a reference made to it by the
Central Government or a State
Government, or
(iii) upon its own knowledge or information,
if it is of opinion that the
working of an undertaking is prejudicial to the public interest, or has led, or
is leading, or is likely to lead, to the adoption of any monopolistic or
restrictive trade practices, inquire] as to whether it is expedient in the
public interest to make an order,—
(a) for the division of any trade of the
undertaking by the sale of any part of the undertaking or assets thereof, or
(b) for the division of any undertaking or
inter-connected undertakings into such number of undertakings as the circumstances
of the case may justify,
and the Commission may, after such
hearing as it thinks fit, report to the Central Government its opinion thereon
and shall, where it is of opinion that a division ought to be made, specify the
manner of the division and compensation, if any, payable for such division.
Explanation : For the purposes of
this section all activities carried on by way of trade by an undertaking or two
or more inter-connected undertakings may be treated as a single trade.
(2) If the Commission so recommends, the
Central Government may, notwithstanding anything contained in any other law for
the time being in force, by an order in writing, direct the division of any
trade of the undertaking or of the undertaking or inter-connected undertakings.
(3) Notwithstanding anything contained in any
other law for the time being in force, the order referred to in sub-section (2)
may provide for all such matters as may be necessary to give effect to the
division of any trade of the undertaking, or of the undertaking or
inter-connected undertakings, including,—
(a) the transfer or vesting of property,
rights, liabilities or obligations;
(b) the adjustment of contracts either by
the discharge or reduction of any liability or obligation or otherwise;
(c) the creation, allotment, surrender or
cancellation of any shares, stock or securities;
(d) the payment of compensation;
(e) the formation, or winding up of an
undertaking or the amendment of the memorandum and articles of association or
any other instruments regulating the business of any undertaking;
(f) the extent to which and the circumstances
in which provisions of the order affecting an undertaking may be altered by the
undertaking and the registration thereof;
(g) the continuation, with such changes as
may be necessary, of parties to any legal proceeding.
(4) Where the Central Government makes, or
intends to make, an order for any purpose mentioned in sub-section (3), it may,
with a view to achieving that purpose, prohibit or restrict the doing of
anything that might impede the operation or making of the order and may impose
on any person such obligations as to the carrying on of any activities or the
safeguarding of any assets, as it may think fit, or it may, by order, provide
for the carrying on of any activities or safeguarding of any assets either by
the appointment of a person to conduct, or supervise the conduct of, any such
activities or in any other manner.
(5) Notwithstanding anything contained in any
other law for the time being in force or in any contract or in consequence of the division of an undertaking
or inter-connected undertakings shall not be entitled to claim any compensation
for such cesser.
27A. Power of the
Central Government to direct severance of inter-connection between
undertakings.
(1) [Notwithstanding anything contained
in this Act or in any other law for the time being in force, the Commission
may,—
(i) upon receiving a complaint of facts
from any trade association or from any consumer or a registered consumers’
association, whether such consumer is a member of that consumers’ association
or not, or
(ii) upon a reference made to it by the
Central Government or a State Government, or
(iii) upon its own knowledge or information,
if it is of opinion that the
continuance of inter-connection of an undertaking (hereafter in this section
referred to as the principal undertaking) with any other undertaking is
detrimental to—
(a) the interests of the principal
undertaking; or
(b) the future development of the principal
undertaking; or
(c) the steady growth of the industry to
which the principal undertaking pertains; or
(d) the public interest,
inquire] as to whether it is
expedient in the public interest to make an order for the severance of such
inter-connection on one or more of the grounds aforesaid, and the Commission
may, after such hearing as it thinks
fit, report to the Central Government its opinion thereon and shall, where it
is of opinion that the severance of the inter-connection of the principal undertaking
with any other undertaking ought to be made, include in its report a scheme
with respect to such severance, providing therein for the matters specified in
sub-section (2).
(2) Where, in any such report, the Commission
recommends the severance of any such inter-connection, the scheme with respect
thereto shall provide for the following matters, namely :—
(a) the manner in which, and the period
within which, the severance of such inter-connection is to be effected;
(b) the appropriation or transfer of any
share or other interest held by the owner in, or in relation to, the principal
undertaking, in the other undertaking or the termination of any office or
employment in such undertaking, which may be required for effecting the
severance of such inter-connection;
(c) compensation, if any, payable for the
severance of such inter-connection; and
(d) such incidental, consequential and
supplemental matters, as may be necessary to secure the severance of such
inter-connection.
(3) If the Commission so
recommends, the Central Government may, notwithstanding anything contained in
any other law for the time being in force, by an order in writing, direct the
severance of inter-connection between the undertakings, as far as may be, in
accordance with the scheme included in the report of the Commission.
(4) Where the Central Government makes, or
intends to make, an order for any purpose mentioned in sub-section (3), it may,
with a view to achieving that purpose, prohibit or restrict the doing of
anything that might impede the operation or making of the order and may impose
on any person such obligations as to the carrying on of any activities or the
safeguarding of any assets, as it may think fit, or it may, by order, provide
for the carrying on of any activities or safeguarding of any assets either by
the appointment of a person to conduct, or supervise the conduct of, any such
activities or in any other manner.
(5) Notwithstanding anything contained in any
other law for the time being in force or in any contract or in any memorandum
or articles of association, an officer of a company who ceases to hold office
as such in consequence of the severance of inter-connection between
undertakings shall not be entitled to claim any compensation for such cesser.
Explanation : For the purposes of
this section, “inter-connection” means inter-connection of an any other undertaking in any manner specified
in clause (g) of section 2.]
27B. Manner in which
order made under section 27 or section 27A shall be carried out.
(1) Where in any report made by it, whether
under section 27 or section 27A, the Commission recommends that the division of
any trade of any undertaking or division of any undertaking or undertakings or
of inter-connected undertakings, or, as the case may be, the severance of
inter-connection between two or more undertakings, is to be effected by—
(a) the disinvestment by any person
holding any share in the body corporate
owning such undertaking or undertakings; or
(b) the sale of the whole or any part of
such undertaking or undertakings, or, of any part of the assets thereof,
the Central Government may, in its
order under the said section 27 or section 27A, specify that such disinvestment
of shares or the sale of the whole or part of the undertaking or undertakings
or of such assets, as the case may be, shall be effected within such period and
in such one or more of the following methods as may be specified in such order,
namely :—
(i) by directing the person holding such
shares to make a public offer for the sale of such number of shares held by him
in the body corporate owning the undertaking or undertakings, as may be
specified in the order; or
(ii) by directing the body corporate owning
the undertaking to make further issue of equity capital to the members of the
public except to the person who is directed to disinvest the shares held by him
in such body corporate; or
(iii) by directing that the sale of the
undertaking or any part thereof, or, as the case may be, of such assets, be
made by public auction; or
(iv) by such other prescribed method as the
Central Government may specify:
Provided that the Central Government may extend on its
own motion or on the application of the person concerned and for sufficient
cause, the period specified as aforesaid in any order made by it under section
27 or section 27A by another order.
(2) Every order of the Central Government
referred to in sub-section (1), shall have effect notwithstanding anything
contained elsewhere in this Act or in any other law for the time being in force
or in the memorandum or articles of association of the body corporate owning
the undertaking.
(3) Where any person who has been directed to
do so by an order referred to in sub-section (1), omits or fails to disinvest
any share or block of shares specified in the said order, the body corporate in
which such shares are held shall not permit such person or his nominee or proxy
to exercise any voting or other rights attaching to such share or block of
shares.]
[* * *]
[* * *]
MONOPOLISTIC TRADE
PRACTICES
31. Investigation
by Commission of monopolistic trade practices.
(1) Where it appears to the Central
Government that [the owners of one or more undertakings are indulging in any practice,
which is, or, may be, a monopolistic trade practice], or that, monopolistic
trade practices prevail in respect of any goods or services, that Government
may refer the matter to the Commission for an inquiry and the Commission shall,
after such hearing as it thinks fit, report to the Central Government its
findings thereon :
[Provided that where the
Commission receives [any application from the Director General or] any
information, or comes to know, that the owner of any undertaking is, or, the
owners of two or more undertakings are, indulging in any trade practice, which
is, or may be, a monopolistic trade practice, or that monopolistic trade
practices prevail in respect of any goods or services, it may [on such
application or] on its own motion, and notwithstanding that no reference has
been made to it by the Central Government under this sub-section, make an
inquiry into the matter.]
(2) If as a result of such inquiry, the
Commission makes a finding to the effect that, having regard to the economic
conditions prevailing in the country and to all other matters which appear in
particular circumstances to be relevant, the trade practice operates or is
likely to operate against the public interest, [it shall make a report to the
Central Government as to its findings thereon and on receipt of such report],
the Central Government may, notwithstanding anything contained in any other law
for the time being in force, pass such orders as it may think fit to remedy or
prevent any mischiefs which result or may result from such trade practice.
[(2A) If any such report contains a finding of the
Commission to the effect that the owner of any undertaking is, or, the owners
of two or more undertakings are, indulging in any monopolistic trade practice,
or that monopolistic trade practice prevails in respect of any goods or
services, and the Central Government is satisfied that it is necessary to take
steps to remedy or prevent any mischiefs which result or may result from such
monopolistic trade practice, and that such monopolistic trade practice does not
fall within any of the exceptions
specified in section 32, it may, notwithstanding anything contained elsewhere
in this Act or in any other law for the time being in force, makes such orders
as it may think fit,—
(a) prohibiting the owner of the concerned
undertaking or the owners of the concerned undertakings, as the case may be,
from continuing to indulge in such monopolistic trade practice; or
(b) prohibiting the owners of any class of
undertakings or undertakings generally, from continuing to indulge in any
monopolistic trade practices in relation to such goods or services, and
may also make such other orders as
it may think fit to remedy or prevent any mischief which results, or may
result, from the continuation of monopolistic trade practices in relation to
the goods and services aforesaid.
(3) [Without prejudice to the generality of
the powers conferred by sub-section (2A), any order made by the Central
Government under this section may also include an order]—
(a) regulating the [production, storage,
supply], distribution or control of any goods by the undertaking or the
control of supply of any service by it and fixing the terms of sale (including
prices) or supply thereof;
(b) prohibiting the undertaking from
resorting to any act or practice or from pursuing any commercial policy which
prevents or lessens, or is likely to prevent or lessen, competition in the
[production, storage, supply] or distribution of any goods or provision of any
services;
(c) fixing standards for the goods used or
produced by the undertaking;
(g) declaring unlawful, except to such
extent and in such circumstances as may be provided by or under the order, the
making or carrying out of any such agreement as may be specified or described
in the order;
(e) requiring any party to any such
agreement as may be so specified or described to determine the agreement within
such time as may be so specified, either wholly or to such extent as may be so
specified;
[(f) regulating the profits which may be
derived from the production, storage, supply, distribution or control of goods
or from the provision of any service;
(g) regulating the quality of any goods or
the provision of any service so that the standards thereof may not
deteriorate.]
[(4) Whenever any order is made by the Central Government under sub-section (2A) prohibiting the owner of any undertaking or class of undertakings or undertakings generally from continuing to indulge in any monopolistic trade practice,—
(a) the owner of any undertaking or the
owners of undertakings of any class, as the case may be, shall, within thirty
days from the date of receipt of such order (or within such further time as the
Central Government may, on sufficient cause being shown, allow) communicate to
the Central Government his or their compliance with the order; and
(b) the Director General shall within ninety
days from the date of such order (or from the expiry of the further time allowed
by the Central Government) inform the Central Government, whether the order
made by it has been complied with, and where the Director General has any
reason to believe that any such order has been, or is being, contravened by the
owner of any undertaking, he shall inform the Central Government about the
particulars of the owner of such undertaking to, enable that Government to take
such action, under this Act, as it may think fit.]
For the purposes of this
Act, every monopolistic trade practice shall be deemed to be prejudicial to
the public interest, except where—
(a) such trade practice is expressly
authorised by any enactment for the time being in force, or
(b) the Central Government, being satisfied
that any such trade practice is necessary—
(i) to meet the requirements of the defence
of
(ii) to ensure the maintenance of supply of
goods and services essential to the community; or
(iii) to give effect to the terms of any
agreement to which the Central Government is a party,
by a written order, permits the
owner of any undertaking to carry on any such trade practice.]
[RESTRICTIVE TRADE PRACTICES AND UNFAIR
TRADE PRACTICES]
PART A
REGISTRATION OF AGREEMENTS RELATING TO
RESTRICTIVE TRADE PRACTICES]
33. Registrable
agreements relating to restrictive trade practices.
(1) [Every agreement falling within one or
more of the following categories shall be deemed, for the purposes of this Act,
to be an agreement relating to restrictive trade practices and shall be subject
to registration] in accordance with the provisions of this Chapter, namely :—
(a) any agreement which restricts, or is
likely to restrict, by any method the persons or classes of persons to whom
goods are sold or from whom goods are bought;
(b) any agreement requiring a purchaser of
goods, as a condition of such purchase, to purchase some other goods;
(c) any agreement restricting in any manner
the purchaser in the course of his trade from acquiring or otherwise dealing in
any goods other than those of the seller or any other person;
(d) any agreement to purchase or sell goods
or to tender for the sale or purchase of goods only at prices or on terms or
conditions agreed upon between the sellers or purchasers;
(e) any agreement to grant or allow
concessions or benefits, including allowances, discounts, rebates or credit in
connection with, or by reason of, dealings;
(f) any agreement to sell goods on
condition that the prices to be charged on re-sale by the purchaser shall be
the prices stipulated by the seller unless it is clearly stated that prices
lower than those prices may be charged;
(g) any agreement to limit, restrict or
withhold the output or supply of and goods or allocate any area or market for
the disposal of the goods;
(h) any agreement not to employ or restrict
the employment of any method, machinery or process in the manufacture of goods;
(i) any agreement for the exclusion from
any trade association of any person carrying on or intending to carry on, in
good faith the trade in relation to which the trade association is formed;
(j) any agreement to sell goods at such
prices as would have the effect of eliminating competition or a competitor;
[(ja) any agreement restricting in any manner,
the class or number of wholesalers, producers or suppliers from whom any goods
may be bought;
(jb) any agreement as to the bids which any of
the parties thereto may offer at an auction for the sale of goods or any
agreement whereby any party thereto agrees to abstain from bidding at any
auction for the sale of goods;]
(k) any agreement not hereinbefore referred
to in this section which the Central Government may, [by notification] specify
for the time being as being one relating to a restrictive trade practice within
the meaning of this sub-section pursuant to any recommendation made by the
Commission in this behalf;
(l) any agreement to enforce the carrying
out of any such agreement as is referred to in this sub-section.
(2) The provisions of this section shall
apply, so far as may be, in relation to agreements making provision for
services as they apply in relation to agreements connected with the
[production, storage, supply], distribution or control of goods.
(3) No agreement falling within this section
shall be subject to registration in accordance with the provisions of this
Chapter if it is expressly authorized by or under any law for the time being in
force or has the approval of the Central Government or if the Government is a
party to such agreement.
34. Registrar
of restrictive trade agreements.
[Omitted by the MRTP (Amendment) Act, 1984, w.e.f. 1-8-1984.]
35. Registration
of agreements.
(1) The
Central Government shall, [by notification], specify a day [hereinafter
referred to as the appointed day] on and from which every agreement falling
within section 33 shall become registrable under this Act:
Provided that different days may be appointed for
different categories of agreements.
(2) Within sixty days from the appointed day,
in the case of an agreement existing on that day, and in the case of an
agreement made after the appointed day, within sixty days from the making
thereof, there shall be furnished to the [Director General] in respect of every
agreement falling within section 33, the following particulars, namely:—
(a) the names of the persons who are parties
to the agreement; and
(b) the whole of the terms of the agreement.
(3) If at any time after the agreement has
been registered under this section, the agreement is varied (whether in respect
of the parties or in respect of the terms thereof) or determined otherwise
than by efflux of time, particulars of the variation or determination shall be
furnished to the [Director General] within one month after the date of the
variation or determination.
(4) The particulars to be furnished under
this section in respect of an agreement shall be furnished—
(a) in sofar as the agreement or any
variation or determination of the agreement is made by an instrument in writing,
by the production of the original or a true copy of that agreement; and
(b) in sofar as the agreement or any
variation or determination of the agreement is not so made, by the production
of a memorandum in writing signed by the person by whom the particulars are
furnished.
(5) The particulars to be furnished under this
section shall be furnished by or on behalf of any person who is a party to the
agreement or, as the case may be, was a party thereto immediately before its
determination, and where the particulars are duly furnished by or on behalf or
any such person, the provisions of this section shall be deemed to be complied
with on the part of all such persons.
Explanation I : Where any
agreement subject to registration under this section relates to the
[production, storage, supply], distribution or control of goods or the
performance of any services in India and any party to the agreement carries on
business in India, the agreement shall be deemed to be an agreement within the
meaning of this section, notwithstanding that any other party to the agreement
does not carry on business in India.
Explanation II : Where an
agreement is made by a trade association, the agreement for the purposes of
this section shall be deemed to be made by all persons who are members of the
association or represented thereon as if each such person were a party to the
agreement.
Explanation III : Where specific
recommendations, whether expressed or implied, are made by or on behalf of a
trade association to its members, or to any class of its members, as to the
action to be taken or not to be taken by them in relation to any matter
affecting the trade conditions of those members, this section shall apply in
relation to the agreement for the constitution of the association
notwithstanding any provision to the contrary therein as if it contained a term
by which each such member and any person represented on the association by any
such member agreed with the association to comply with those recommendations and any subsequent
recommendations affecting those recommendations.
(1) For the purposes of this Act, the
[Director General] shall keep a register in the prescribed form and shall enter
therein the prescribed particulars as regards agreements subject to
registration.
(2) The [Director General] shall provide
for the maintenance of a special section of the register for the entry or
filing in that section of such particulars as the Commission may direct, being—
(a) particulars containing information, the
publication of which would, in the opinion of the Commission, be contrary to
the public interest;
(b) particulars containing information as to
any matter, being information the publication of which, in the opinion of the
Commission, would substantially damage the legitimate business interests of any
person.
(3) Any party to an agreement required to
be registered under section 35 may apply to the [Director General]—
(i) for the agreement or any part of the
agreement to be excluded from the provisions of this Chapter relating to the
registration on the ground that the agreement or part thereof has no
substantial economic significance; or
(ii) for inclusion of any provision of the
agreement in the special section, and the [Director General] shall dispose of
the matter in conformity with any general or special directions issued by the
Commission in this behalf.
UNFAIR TRADE PRACTICES
36A. Definition of
unfair trade practice.
In this Part, unless the context
otherwise requires “unfair trade practice” means a trade practice which, for
the purpose of promoting the sale, use or supply of any goods or for the provisions
of any services, [adopts any unfair method or unfair or deceptive practice
including any of the following practices], namely:—
(1)
The practice of making any statement, whether orally or in writing or by
visible representation Which,—
(i) falsely represents that the goods are
of a particular standard, quality, 1[quantity,] grade,
composition style or model;
(ii) falsely
represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built,
second-hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services
have sponsorship, approval, performance, characteristics, accessories, uses or
benefits which such goods or services do not have;
(v) represents that the seller or the
supplier has a sponsorship or approval or affiliation which such seller or
supplier does not have;
(vi) makes a false or misleading
representation concerning the need for, or the usefulness of, any goods or
services;
(vii) gives to the public any warranty or
guarantee of the performance, efficacy or length of life of a product or of any
goods that is not based on an adequate or proper tests thereof :
Provided
that where a defence is raised to the effect that such warranty or guarantee is
based on adequate or proper test, the burden of proof of such defence shall lie
on the person raising such defence;
(viii) makes to the public a representation in a form that purports
to be—
(i) a warranty or guarantee of a product or of any goods or
services; or
(ii) a promise to replace, maintain or repair
an article or any part thereof or to repeat or continue a service until it has
achieved a specified result,
if
such purported warranty or guarantee or promise is materially misleading or if
there is no reasonable prospect that such warranty, guarantee or promise will
be carried out;
(ix) materially misleads the public
concerning the price at which a product or like products or goods or services,
have been, or are, ordinarily sold or provided, and, for this purpose, a representation
as to price shall be deemed to refer to the price at which the product or goods
or services has or have been sold by sellers or provided by suppliers generally
in the relevant market unless it is clearly specified to be the price at which
the product has been sold or services have been provided by the person by whom
or on whose behalf the representation is made;
(x) gives false or misleading facts
disparaging the goods, services or trade of another person.
Explanation : For the
purposes of clause (1), a statement that is—
(a) expressed on an article offered or
displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to,
inserted in, or accompanying, an article offered or displayed for sale, or on
anything on which the article is mounted for display or sale; or
(c) contained
in or on anything that is sold, sent, delivered, transmitted or in any other
manner whatsoever made available to a member of the public,shall be deemed to
be a statement made to the public by, and only by, the person who had caused
the statement to be so expressed, made or contained;
(2) permits the publication of any
advertisement whether in any newspaper or otherwise, for the sale or supply at
a bargain price, of goods or services that are not intended to be offered for
sale or supply at the bargain price, or for a period that is, and in quantities
that are, reasonable, having regard to the nature of the market in which the
business is carried on, the nature and size of business, and the nature of the
advertisement.
Explanation
: For the purpose of clause (2), “bargain price” means—
(a) a price that is stated in any
advertisement to be a bargain price, by reference to an ordinary price or
otherwise, or
(b) a price that a person who reads,
hears, or sees the advertisement, would reasonably understand to be a bargain
price having regard to the prices at which the product advertised or like
products are ordinarily sold;
(3) permits—
(a) the offering of gifts, prizes or other
items with the intention of not providing them as offered or creating the impression
that something is being given or offered free of charge when it is fully or
partly covered by the amount charged in the transaction as a whole,
(b) the conduct of any contest, lottery,
game of chance or skill, for the purpose of promoting, directly or indirectly,
the sale, use or supply of any product or any business interest;
(4) permits the sale or supply of goods
intended to be used, or are of a kind likely to be used by consumers, knowing
or having reason to believe that the goods do not comply with the standards
prescribed by competent authority relating to performance, composition,
contents, design, constructions, finishing or packaging as are necessary to
prevent or reduce the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of
goods, or refuses to sell the goods or to make them available for sale, or to
provide any service, if such hoarding or destruction or refusal raises or tends
to raise or is intended to raise, the cost of those or other similar goods or
services.
36B. Inquiry
into unfair trade practices by Commission.
The
Commission may inquire into any unfair trade practice,—
(a) upon receiving a complaint of facts which
constitutes such practice [from any trade association or from any consumer or a
registered consumers’ association, whether such consumer is a member of that
consumers’ association or not]; or
(b) upon a reference made to it by the Central Government or a State
Government; or
(c) upon an application made to it by the Director General; or
(d) upon its own knowledge or information.
36C. Investigation by
Director General before an issue of process in certain cases.
The Commission may, before issuing
any process requiring the attendance of the person against whom an inquiry
(other than an inquiry upon an application by the Director General) may be made
under section 36B, by an order, require the Director General to make, or cause
to be made, a preliminary investigation in such manner as it may direct and
submit a report to the Commission, for the purpose of satisfying itself that
the matter requires to be inquired into.]
36D.
Powers which may be exercised by the Commission inquiring into an unfair
trade practice.
(1) The Commission may inquire into any
unfair trade practice which may come before it for inquiry and, if, after such
inquiry, it is of opinion that the practice is prejudicial to the public
interest, or to the interest of any consumer or consumers generally, it may, by
order direct that—
(a) the practice shall be discontinued or
shall not be repeated; [***]
(b) any agreement relating to such unfair
trade practice shall be void or shall stand modified in respect thereof in such
manner as may be specified in the order;
[(c) any information, statement or
advertisement relating to such unfair trade practice shall be disclosed, issued
or published, as the case may be, in such manner as may be specified in the
order.]
(2) The Commission may, instead of making any
order under this section, permit any party to carry on any trade practice, if
it so applies and takes such steps within the time specified by the Commission
as may be necessary to ensure that the trade practice is no longer prejudicial
to the public interest or to the interest of any consumer or consumers
generally, and, in any such case, if the Commission is satisfied that necessary
steps have been taken within the time so specified, it may decide not to make
any order under this section in respect of that trade practice.
(3) No order shall be made under sub-section
(1) in respect of any trade practice which is expressly authorised by any law
for the time being in force.
Without prejudice to the
provisions of section 12A, section 12B and section 36D, the Commission,
Director General or any other person authorized in this behalf by the
Commission or Director General, may exercise, or perform, in relation to any
unfair trade practice, the same power or duty which it or he is empowered, or
required, by or under this Act to exercise, or perform, in relation to a
restricted trade practice.]
CONTROL OF CERTAIN RESTRICTIVE
TRADE PRACTICES
37. Investigation
into restrictive trade practices by Commission.
(1) The Commission may inquire into any
restrictive trade practice, whether the agreement, if any, relating thereto has
been registered under section 35 or not, which may come before it for inquiry
and, if, after such inquiry it is of opinion that the practice is prejudicial
to the public interest, the Commission may, by order, direct that—
(a) the practice shall be discontinued or
shall not be repeated;
(b) the agreement relating thereto shall be
void in respect of such restrictive trade practiceor shall stand modified in
respect thereof in such manner as may be specified in the order.
(2) The Commission may, instead of making
any order under this section, permit the party to any restrictive trade
practice, if he so applies, to take such steps within the time specified in
this behalf by the Commission as may be necessary to ensure that the trade
practice is no longer prejudicial to the public interest, and, in any such
case, if the Commission is satisfied that the necessary steps have been taken
within the time specified, it may decide not to make any order under this
section in respect of that trade practice.
(3) No order shall be made
under sub-section (1) in respect of—
(a) any agreement between buyers relating to
goods which are bought by the buyers for consumption and not for ultimate
resale whether in the same or different form, type or specie or as constituent
of some other goods;
(b) a trade practice which is expressly
authorised by any law for the time being in force.
(4) Notwithstanding anything contained in
this Act, if the Commission, during the course of an inquiry under sub-section
(1), finds that [the owner of any undertaking is indulging in monopolistic
trade practices], it may, after passing such orders under sub-section (1) or
sub-section (2) with respect to the restrictive trade practices as it may
consider necessary, submit the case along with its findings thereon to the
Central Government [***] for such action as that Government may take under
section 31.
38. Presumption
as to the public interest.
(1) For the purposes of any proceedings
before the Commission under section 37, a restrictive trade practice shall be deemed
to be prejudicial to the public interest unless the Commission is satisfied of
any one or more of the following circumstances, that is to say—
(a) that the restriction is reasonably
necessary, having regard to the character of the goods to which it applies, to
protect the public against injury (whether to persons or to premises) in
connection with the consumption, installation or use of those goods;
(b) that the removal of the restriction
would deny to the public as purchasers, consumers or users of any goods, other
specific and substantial benefits or advantages enjoyed or likely to be enjoyed
by them as such, whether by virtue of the restriction itself or of any
arrangements or operations resulting therefrom;
(c) that the restriction is reasonably necessary
to counteract measures taken by any one person not party to the agreement
with a view to preventing or restricting competition in or in relation to the
trade or business in which the persons party thereto are engaged,
(d) that the restriction is reasonably
necessary to enable the persons party to the agreement to negotiate fair terms
for the supply of goods to, or the acquisition of goods from, any one person
not party thereto who controls a preponderant part of the trade or business of
acquiring or supplying such goods, or for the supply of goods to any person not
party to the agreement and not carrying on such a trade or business who, either
alone or in combination with any other such persons, controls a preponderant
part of the market for such goods;
(e) that, having regard to the conditions
actually obtaining or reasonably foreseen at the time of the application, the
removal of the restriction would be likely to have a serious and persistent
adverse effect on the general level of unemployment in an area, or in areas
taken together, in which a substantial proportion of the trade, or industry to
which the agreement relates is situated;
(f) that, having regard to the conditions
actually obtaining or reasonably foreseen at the time of the application, the
removal of the restriction would be likely to cause a reduction in the volume
or earnings of the export business which is substantial either in relation to
the whole export business of India or in relation to the whole business
(including export business) of the said trade or industry;
(g) that the restriction is reasonably
required for purposes in connection with the maintenance of any other
restriction accepted by the parties, whether under the same agreement or under
any other agreement between them, being a restriction which is found by the
Commission not to be contrary to the public interest upon grounds other than
those specified in this paragraph, or has been so found in previous
proceedings before the Commission; [***]
(h) that the restriction does not directly
or indirectly restrict or discourage competition to in any relevant trade or industry and is not
likely to do so;
[(i) that such restriction has been expressly
authorised and approved by the Central Government;
(j) that such restriction is necessary to
meet the requirements of the defence of
(k) that the restriction is necessary to
ensure the maintenance of supply of goods and services essential to the
community,]
and is further satisfied (in any such case) that the restriction is not unreasonable having regard to the balance between those circumstances and any detriment to the public or to persons not parties to the agreement (being purchasers, consumers or users of goods produced or sold by such parties, or persons engaged or seeking to become engaged in the trade or business of selling such goods or of producing or selling similar goods) resulting or likely to result from the operation of the restriction.
(2) In this section, “purchasers”,
“consumers” and “users” include persons purchasing, consuming or using for the
purpose or in the course of trade or business or for public purposes; and
references in this section to any one person include references to any two or
more persons being inter-connected undertakings or individuals carrying on
business in partnership with each other.
39.
Special conditions for
avoidance of conditions for maintaining resale prices.
(1) Without prejudice to the provisions of
this Act with respect to registration and to any of the powers of the commission
or of the Central Government under this Act, any term or condition of a
contract for the sale of goods by a person to a wholesaler or retailer or any
agreement between a person and a wholesaler or retailer relating to such sale
shall be void insofar as it purports to establish or provide for the
establishment of minimum prices to be charged on the resale of goods in India.
(2) After the commencement of this Act, no
supplier of goods whether directly or through any person or association of
persons acting on his behalf shall notify to dealers or otherwise publish on
or in relation to any goods, a price stated or calculated to be understood as
the minimum price which may be charged on the resale of the goods in India.
(3) This section shall apply to patented
articles (including articles made by a patented process and articles made under
any trade mark) as it applies to other goods and notice of any term or
condition which is void by virtue of this section or which would be so void if
included in a contract of sale or agreement relating to the sale of such
article shall be of no effect for the purpose of limiting the right of a dealer
to dispose of that article without infringement of the patent or trade mark, as
the case may be:
Provided that nothing in this section shall affect the
validity as between the parties and their successors, of any term or condition
of a licence granted by the proprietor of a patent or [trade mark or by a
licensee of patent or trade mark] or of any assignment of a patent or trade
mark, so far as it regulates the price at which articles produced or processed
by the licensee or the assignee may be sold by him.
Explanation : In this section and
in section 40, the term “supplier”, in relation to supply of any goods, means
a person who supplies goods to any person for the ultimate purpose of resale
and includes a wholesaler, and the term “dealer” includes a supplier and a
retailer.
40. Prohibition of other measures for
maintaining resale prices.
(1) Without prejudice to the provisions of
this Act with respect to registration and to any of the powers of the Commission
or of the Central Government under this Act, no supplier shall withhold supplies
of any goods from any wholesaler or retailer seeking to obtain them for resale
in India on the ground that the wholesaler or retailer—
(a) has sold in India at a price below
resale price, goods obtained, either directly or indirectly, from that supplier,
or has supplied such goods, either directly or indirectly, to a third party who
had done so; or
(b) is likely if the goods are supplied to
him to sell them in India at a price below that price or supply them, either
directly or indirectly, to a third party who would be likely to do so.
(2) Nothing contained in sub-section (1)
shall render it unlawful for a supplier to withhold supplies of goods from any
wholesaler or retailer or to cause or procure another supplier to do so if he
has reasonable cause to believe that the wholesaler or the retailer, as the
case may be, has been using as loss leaders any goods of the same or a similar
description whether obtained from that supplier or not.
(3) A supplier of goods shall be deemed to be
withholding supplies of goods from a dealer if he—
(a) refuses or fails to supply those goods
to the order of the dealer;
(b) refuses to supply those goods to the
dealer except at prices, or on terms or conditions as to credit, discount or
other matters which are less favourable than those at or on which he normally
supplies those goods to other dealers carrying on business in similar
circumstances; or
(c) treats a dealer, in spite of a contract
with such dealer for the supply of goods, in a manner less favourable than that
in which he normally treats other dealers in respect of time or methods of
delivery or other matters arising in the performance of the contract.
(4) A supplier shall not be deemed to be
withholding supplies of goods on any of the grounds mentioned in sub-section
(1), if, in addition to that ground, he has any other ground which alone would
entitle him to withhold such supplies.
Explanation I : “Resale
price”, in relation to sale of goods of any description, means any price
notified to the dealer or otherwise published by or on behalf of the supplier
of the goods in question (whether lawfully or not) as the price or minimum
price which is to be charged on, or is recommended as appropriate for, a sale
of that description or any price prescribed or purporting to be prescribed for
that purpose by any contract or agreement between the wholesaler or retailer
and any such supplier.
Explanation II : A
wholesaler or retailer is said to use goods as loss leaders when he re-sells
them otherwise than in a genuine seasonal or clearance sale not for the purpose
of making a profit on the resale but for the purpose of attracting to the
establishment at which the goods are sold, customers likely to purchase other
goods or otherwise for the purpose of advertising his business.
41. Power of Commission to exempt particular
classes of goods from sections 39 and 40.
(1) The Commission may, on a reference made
to it by the [Director General] or any other person interested, by order,
direct that goods of any class specified in the order shall be exempt from the
operation of sections 39 and 40 if the Commission is satisfied that in default
of a system of maintained minimum resale prices applicable to those goods—
(a) the quality of goods available for sale
or the varieties of goods so available would be substantially reduced to the
detriment of the public as consumers or users of those goods, or
(b) the prices at which the goods are sold
by retail would, in general and in the long run, be increased to the detriment
of the public as such consumers or users, or
(c) any necessary services actually provided
in connection with or after the sale of the goods by retail would cease to be
so provided or would be substantially reduced to the detriment of the public as
such consumers or users.
(2) On a reference under this section in
respect of goods of any class which have been the subject of proceedings before
the Commission under section 31, the Commission may treat as conclusive any
evidence of fact made in those proceedings.
POWER TO OBTAIN
INFORMATION AND APPOINT INSPECTORS
42.
Power of [Director General] to obtain information.
(1) If
the [Director General] has reasonable cause to believe that any person is a
party to an agreement subject to registration under section 35, he may give
notice to that person requiring him within such time, not less than thirty
days, as may be specified in the notice, to notify to the [Director General]
whether he is a party to any such agreement and, if so, to furnish to the
[Director General] such particulars of the agreement as may be specified in the
requisition.
(2) The [Director General] may give notice to
any person by whom particulars are furnished under section 35 in respect of an
agreement or to any other person being a party to the agreement requiring him
to furnish to the [Director General] such further documents or information in
his possession or control as the [Director General] may consider expedient for
the purpose of, or in connection with, the registration of the agreement.
(3) Where a notice under this section is
given to a trade association, the notice may be given to the secretary,
manager or other similar officer of the association and for the purposes of
this section any such association shall be treated as a party to an agreement
to which members of the association, or persons, represented on the
association by those members, are parties as such.
(4) If the particulars called for under
sub-section (1) or sub-section (2) are not furnished, the Commission may, on
the application of the [Director General]—
(a) order the person or, as the case may be,
the association to furnish those particulars to the [Director General] within
such time as may be specified in the order, or
(b) authorise the [Director General] to
treat the particulars contained in any document or information in his
possession as the particulars relating to the agreement, or
(c) in case the Commission is satisfied that
the failure to furnish the particulars is wilful, make an order restraining
wholly or partly the parties to the agreement from acting on such agreement and
from making any other agreement to the like effect.
43. Power
to call for information.
Notwithstanding anything
contained in any other law for the time being in force, the Central Government
may, by a general or special order, [call upon the owner of any undertaking] to
furnish to that Government periodically or as and when required any information
concerning the activities carried on by the undertaking, the connection between
it and any other undertaking, including such other information relating to its
organisation, business, cost of production, conduct, trade practice or management,
as may be prescribed to enable that Government to carry out the purposes of
this Act.
44. Power
to appoint Inspectors.
(1) The Central Government may, if it is of
opinion that there are circumstances suggesting that an undertaking is indulging
in any monopolistic [or restrictive, or unfair, trade practice] or is, in any
way, trying to acquire any control over any dominant or inter-connected
undertaking, appoint one or more Inspectors for making an investigation into
the affairs of the undertaking.
(2) The provisions of section 240 and section
240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to
an investigation made by an Inspector appointed under this section as they
apply to an investigation made by the Inspector appointed under that Act.
OFFENCES AND PENALTIES
45. Penalty
for contravention of section 21.
[Omitted by the MRTP (Amendment)
Act, 1991, w.e.f. 27-9-1991.]
46. Penalty for
contravention of [***] section 27.
If any person contravenes the
provisions of [***] section 27, he shall be punishable [with imprisonment for a
term which may extend to five years, or] with fine which may extend to Rs. one
lakh, [or with both] and where the offence is a continuing one, with a further
fine which may extend to one thousand rupees for every day, after the first,
during which such contravention continues.
47. Penalty for contravention of section
25.
Omitted by the MRTP (Amendment)
Act, 1991, w.e.f. 27-9-1991.]
48. Penalty
for failure to register agreements.
(1) If any person fails, without any reasonable
excuse, to register an agreement which is subject to registration under this
Act, he shall be punishable [with imprisonment for a term which may extend to
three years, or] with fine which may extend to five thousand rupees [or with
both,] and where the offence is a continuing one, with a further fine which may
extend to five hundred rupees for every day, after the first, during which such
failure continues.
(2) [Omitted by the MRTP (Amendment) Act,
1991, w.e.f. 27-9-1991.]
Any person or body corporate who
or which,—
(a) being required by any order of the
Central Government referred to in sub-section (1) of section 27B to effect
disinvestment of any shares or sale of the whole or any part of any
undertaking or undertakings by any method referred to in that sub-section,
omits or fails to do so; or
(b) having in his possession, custody or
control any property or assets or any part thereof which have been sold to any
person in pursuance of an order of the
Central Government referred to in sub-section (1) of section 27B
(hereinafter in this section referred to as the “purchaser”), wrongfully withholds
such property, assets or part thereof from the purchaser; or
(c) wrongfully obtains possession of any
property, assets or any part thereof or retains any property, assets or any
part thereof, which have been sold in pursuance of an order of the Central
Government referred to in sub-section
(1) of section 27B; or
(d) withholds or fails to furnish to the
purchaser, any document in his possession, custody or control relating to the
property, or any part or assets thereof, which have been sold in pursuance of
an order of the Central Government referred to in sub-section (1) of section
27B; or
(e) fails to deliver to the purchaser the
property, or any part or assets thereof which have been sold in pursuance of an
order of the Central Government referred to in sub-section (1) of section 27B,
or any books of account, registers and other documents in his possession,
custody or control relating to such property, or any part or assets thereof; or
(f) wrongfully removes or destroys any
property or assets which have been sold in pursuance of an order of the Central
Government referred to in sub-section (1) of section 27B; or
(g) prefers any claim, in relation to the
property, or any part or assets thereof which have been sold in pursuance of an
order of the Central Government referred to in sub-section (1) of section 27B,
which he knows, or has reason to believe, to be false or grossly inaccurate,
shall be punishable with
imprisonment for a term which may extend to two years and also with fine which
may extend to ten thousand rupees.]
48B. Penalty for
contravention of section 27B.
(1) Every person who exercises any voting
right, in respect of any share in contravention of any order of the Central
Government referred to in sub-section (1) of section 27B shall be punishable
with imprisonment for a term which may extend to five years, and shall also be
liable to fine.
(2) If any company gives effect to any voting
or other right exercised in relation to any share held in contravention of an order
of the Central Government referred to in sub-section (1) of section 27B, the
company shall be punishable with fine which may extend to five thousand rupees,
and every officer of the company who is in default shall be punishable with
imprisonment for a term which may extend to three years, or with fine which may
extend to five thousand rupees, or with both.]
48C. Penalty for
contravention of order made by Commission relating to unfair trade practices.
If any person contravenes any
order made by the Commission under section 36D, he shall be punishable with
imprisonment for a term [which shall not be less than six months but which may
extend to three years and with fine which may extend to ten lakh rupees :
Provided that the Court may, for reasons to be recorded
in writing, impose a sentence of imprisonment for a term lesser than the
minimum term specified in this section.]
49. Penalty for
offences in relation to furnishing of information.
(1) If any person fails, without any
reasonable excuse, [to produce any books or papers, or to furnish any
information, required by the Director General under section 11, or to furnish
any information] required under section 43 or to comply with any notice duly
given to him under section 42, he shall be punishable with imprisonment for a
term which may extend to three months, or with fine which may extend to two
thousand rupees, or with both, and where the offence is a continuing one, with
a further fine which may extend to one hundred rupees for every day, after the
first, during which such failure continues.
(2) If any person, who furnishes or is
required to furnish any particulars, documents or any information—
(a) makes any statement or furnishes any
document which he knows or has reason to believe to be false in any material
particular; or
(b) omits to state any material fact knowing
it to be material; or
(c) wilfully alters, suppresses or destroys
any document which is required to be furnished as aforesaid,
he shall be punishable with
imprisonment for a term which may extend to six months, or with fine which may
extend to five thousand rupees, or with both.
50. Penalty
for offences in relation to orders under the Act.
[(1) A person, who is deemed under section 13 to
be guilty of an offence under this Act, shall be punishable with imprisonment
for a term which may extend to three years, or with fine which may extend to
fifty thousand rupees, or with both, and where the offence is a continuing one,
with a further fine which may extend to five thousand rupees for every day,
after the first, during which such contravention continues.
(2) If any person contravenes, without any
reasonable excuse, any order made by the Central Government under section 31 or
any order made by the Commission under section 37, he shall be punishable with
imprisonment for a term which shall not be less than,—
(a) in the case of the first offence, six
months but not more than three years, and
(b) in the
case of any second or subsequent offence in relation to the goods or services in
respect of which the first offence was committed, two years but not more than
seven years,and, in either case, where the contravention is a continuing one,
also with fine which may extend to five thousand rupees for every day, after
the first, during which such contravention continues :
Provided that the Court may, for reasons to be
recorded in writing, impose a sentence of imprisonment for a term lesser than
the minimum term specified in this sub-section].
(3) If any person carries on any trade practice
which is prohibited by this Act, he shall be punishable with imprisonment for
a term which may extend to six months, or with fine which may extend to five
thousand rupees, or with both, and where the offence is a continuing one, with
a further fine which may extend to five hundred rupees for every day, after the
first, during which such contravention continues.
51. Penalty for
offences in relation to resale price maintenance.
If any person contravenes the
provisions of section 39 or section 40, he shall be punishable with imprisonment for a term which may extend to
three months, or with fine which may extend to five thousand rupees, or with
both.
52. Penalty for
wrongful disclosure of information.
If any person discloses an information
in contravention of section 60, he shall be punishable with imprisonment for a
term which may extend to six months, or with fine which may extend to five
hundred rupees, or with both.
52A. Penalty
for contravention of any condition or restriction, etc.
If any person contravenes, without
any reasonable excuse, any condition or restriction subject to which any
approval, sanction, direction or exemption in relation to any matter has been
accorded, given, made or granted under this Act, he shall be punishable with
fine which may extend to one thousand rupees, and where the contravention is a
continuing one, with a further fine which may extend to one hundred rupees for
every day, after the first, during which such contravention continues.]
52B. Penalty for
making false statement in application, returns, etc.
If in any application, return,
report, certificate, balance sheet, prospectus, statement or other document
made, submitted, furnished or produced for the purpose of any provision of this
Act, any person makes a statement,—
(a) which is false in any material particular knowing it to be false,
or
(b) which omits to state any material fact,
knowing it to be material, he shall be punishable with imprisonment for a term
which may extend to two years and shall also be liable to fine.]
(1) Where an offence under this Act has been
committed by a company, every person who, at the time the offence was
committed, was in charge of, and was responsible to, the company for the
conduct of the business of the company, as well as the company, shall be deemed
to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly :
Provided that
nothing contained in this sub-section shall render any such person liable to
any punishment if he proves that the offence was committed without his
knowledge or that he had exercised all due diligence to prevent the commission
of such offence.
(2) Notwithstanding anything contained in
sub-section (1), where an offence under this Act has been committed by a
company and it is proved that the offence has been committed with the consent
or connivance of, or is attributable to any neglect on the part of, any director,
manager, secretary or other officer of the company, such director, manager,
secretary or other officer shall also be deemed to be guilty of that offence
and shall be liable to be proceeded against and punished accordingly.
Explanation
: For the purposes of this section—
(a) “company” means a body corporate and
includes a firm or other association of individuals; and
(b) “director”,
in relation to a firm, means a partner
in the firm.
MISCELLANEOUS
(1) The Central Government may, while—
(a) according any approval, sanction,
permission, confirmation or recognition, or
(b) giving any direction or issuing any order,
or
(c) granting any exemption,
under this Act in relation to any
matter, impose such conditions, limitations or restrictions as it may think
fit.
(2) [Omitted by the MRTP (Amendment) Act, 1991, w.e.f. 27-9-1991.]
(3) If any condition, limitation or
restriction imposed by the Central Government under sub-section (1) [***] is contravened, the Central Government may rescind or withdraw
the approval, sanction, permission, confirmation, recognition, direction, order
or exemption made or granted by it.
Any person aggrieved by [any
decision on any question referred to in clause (a), clause (b) or clause (c)
of section 2A, or any order made by the Central Government under Chapter III]
or Chapter IV, or, as the case may be, or the Commission under [section 12A or]
[section 13 or section 36D or section 37], may, within sixty days from the date
of the order, prefer an appeal to the Supreme Court on one or more of the
grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908).
56. Jurisdiction of
Courts to try offences.
58. Magistrates’
power to impose enhanced penalties.
[Omitted by the MRTP (Amendment) Act, 1984,
w.e.f. 1-8-1984.]
59. Protection
regarding statements made to the Commission.
No statement made by a person in
the course of giving evidence before the Commission shall subject him to, or
be used against him in, any civil or criminal proceeding except a prosecution
for giving false evidence by such statements :
Provided that the statement—
(a) is made in respect to a question which he is required by the
Commission to answer; and
(b) is relevant to the subject-matter of the inquiry.
60. Restriction on
disclosure of information.
(1) No information relating to any
undertaking, being an information which has been obtained by or on behalf of
the Commission for the purposes of this Act, shall, without the previous
permission in writing of the owner for the time being of the undertaking, be
disclosed otherwise than in compliance with or for the purposes of this Act.
(2) Nothing contained in sub-section (1)
shall apply to a disclosure of an information made for the purpose of any
legal proceeding pursuant to this Act or of any criminal proceeding which may
be taken, whether pursuant to this Act or otherwise, or for the purposes of any
report relating to any such proceeding.
[(3) The provisions of sub-section (2) relating
to the disclosure of information shall not extend to the disclosure of the
source of such information, except where the disclosure of such source is
required by any Court, Tribunal or other authority.]
61. Power of the
Central Government to require the Commission to submit a report.
The Central Government may at any
time require the Commission to submit to it a report on the general effect on
the public interest of such trade practices as, in the opinion of that Government, either constitute or
contribute to monopolistic or [restrictive or unfair trade practices] or
concentration of economic power to the common detriment.
62. Reports of the Commission to be placed before
Parliament.
The Central Government shall cause
to be laid before both Houses of Parliament an annual report, and every report
which may be submitted to it by the Commission from time to time, pertaining
to the execution of the provisions of this Act.
63. Members, etc.,
to be public servants.
Every member of the Commission,
the [Director General], and every member of the staff of the Commission, and of
the [Director General], shall be deemed, while acting or purporting to act in
pursuance of any of the provisions of this Act, to be public servants within
the meaning of section 21 of the Indian Penal Code (45 of 1860).
64. Protection of
action taken in good faith.
(1) No suit, prosecution or other legal
proceedings shall lie against the Commission or any member, officer or servants
of the Commission, the [Director General] or any member of the staff of the
[Director General] in respect of anything which is in good faith done or
intended to be done under this Act.
(2) No
suit shall be maintainable in any civil court against the Central Government or
any officer or employee of that Government for any damage caused by anything
done under, or in pursuance of any provisions of this Act.
65. Inspection of,
and extracts from, the register.
(1) The register, other than the special
section, shall be opened to public inspection during such hours and subject to
the payment of such fees, not exceeding rupees twenty-five, as may be
prescribed.
(2) Any person may upon the payment of such
fee, not exceeding rupee one, for every one hundred words, as may be
prescribed, require the [Director General] to supply to him a copy of, or
extract from, any particulars entered or filed in the register, other than the
special section, certified by the [Director General] to be a true copy or
extract.
(3) A copy of, or extract from, any document
entered or filed in the register certified under the hand of the [Director
General] or any officer authorised to act in this behalf shall, in all legal
proceedings, be admissible in evidence as of equal validity with the original.
66. Power to make
regulations.
(1) The Commission [may [by notification]
make regulations] for the efficient performance of its functions under this
Act.
(2) In particular, and without prejudice to
the generality of the foregoing provisions, such regulations may provide for
all or any of the following matters, namely :—
(a) the conditions of service, as approved
by the Central Government, of persons appointed by the Commission;
(b) the issue of the processes to Government
and to other persons and the manner in
which they may be served;
(c) the manner in which the special section
of the register shall be maintained and the particulars to be entered or filed
therein;
(d) [Omitted by the MRTP (Amendment) Act,
1984, w.e.f. 1-8-1984];
(e) the payment of costs of any proceedings
before the Commission by the parties concerned and the general procedure and
conduct of the business of the Commission ;
(f) any other matter for which regulations
are required to be, or may be, made under this Act.
[(3) The Central Government shall cause every
regulation made under this section to be laid, as soon as may be after it is
made, before each House of Parliament, while it is in session, for a total
period of thirty days which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree
in making any modification in the regulation, or both Houses agree that the
regulation should not be made, the regulations shall thereafter have effect
only in such modified form or be of no effect, as the case may be; so, however,
that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that regulation.]
67. Power
to make rules.
(1) The Central Government may, [by
notification], make rules to carry out the purposes 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) the form and manner in which notices may
be given or applications may be made to it under this Act and the fees payable
therefor ;
(ab) the form and the manner in which an
application for recognition shall be made under clause (n) of section 2;]
(ac) [Omitted by the MRTP (Amendment) Act,
1991, w.e.f. 27-9-1991.]
(b) the particulars to be furnished under
this Act and the form and manner in which and the intervals within which they
may be furnished;
(ba) [Omitted by the MRTP (Amendment) Act,
1991, w.e.f. 27-9-1991.]
(c) the conditions of service of members of
the Commission and the [Director General];
[(ca) the duties and functions of the Director
General;]
(d) the places and the manner in which the
register shall be maintained [* * *] and the particulars to be entered therein;
[(da) the manner in which every authenticated
copy of any order made by the Commission in respect of any restrictive, or
unfair, trade practice shall be recorded;]
(e) the fees payable for inspection of the
register and for obtaining certified copies of particulars from the register;
(f) the travelling and other expenses
payable to persons summoned by the Commission to appear before it;
(g) [Omitted by the MRTP (Amendment) Act,
1991, w.e.f. 27-9-1991.]
(h) any other matter which is required to
be, or may be, prescribed.
[(2A) Any
rule made under clause (c) of sub-section (2) in relation to the conditions of
service of the members of the Commission may be made retrospectively from a date
not earlier than the 1st day of January, 1986, so, however, that such rule
shall not prejudicially affect the interests of any such member.]
(3) Every rule made by the Central Government
under this Act shall be laid as soon as may be after it is made, before each
House of Parliament while it is in session for a total period of thirty days
which may be comprised in one session or [in two or more successive sessions,
and if, before the expiry of the session immediately following the session or
the successive sessions aforesaid], both Houses agree in making any
modification in the rule or both Houses agree that the rule should not be made,
the rule shall thereafter have effect only in such modified form or be of no
effect, as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously
done under that rule.
[* * *]