The Monopolies and Restrictive Trade Practices
Act, 1969
CONTENTS
PRELIMINARY
1. Short title, extent and commencement
2. Definitions
2A. Power of Central Government to decide certain matters
3. Act not to apply in certain cases
4. Application of other laws not barred
MONOPOLIES AND RESTRICTIVE TRADE PRACTICES COMMISSION
5. Establishment and constitution of the Commission
6. Terms of office, conditions of service, etc., of members
7. Removal of members from office in certain circumstances
8. Appointment of Director General, etc., and staff of the Commission
9. Salaries, etc. to 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
11. Investigation by Director General before issue of process
in certain cases
12. Powers of the Commission
12A. Power of the Commission to grant temporary injunctions
12B. Power of the Commission to award compensation
12C. Enforcement of the order made by the Commission under section
12A or 12B
13. Orders of Commission may be subject to conditions, etc.
13A. Power of the Commission to cause investigation to find out
whether or not orders made by it have been complied with
13B. Power to punish for contempt
14. Orders where party concerned does not carry on business in
India
15. Restriction of application of orders in certain cases
16. Sittings of the Commission
17. Hearing to be in public except in special circumstances
18. Procedure of the Commission
19. Orders of the Commission to be noted in the register
CONCENTRATION OF ECONOMIC POWER
27. Division of undertakings
27A. Power of the Central Government to direct severance of inter-connection
between undertakings
27B. Manner in which order made under section 27 or section 27A
shall be carried out
MONOPOLISTIC TRADE PRACTICES
31. Investigation by Commission of monopolistic trade practices
32. Monopolistic trade practice to be deemed to be prejudicial
to the public interest except in certain cases
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
34. Registrar of Restrictive Trade Agreements
35. Registration of agreements
36. Keeping the register
Part B
Unfair Trade Practices
36A. Definition of unfair trade practice
36B. Inquiry into unfair trade practices by Commission
36C. Investigation by Director General before an issue of process
in certain cases
36D. Powers which may be exercised by the Commission inquiring
into an unfair trade practice
36E. Power relating to restrictive trade practices may be exercised
or performed in relation to unfair trade practices
CONTROL OF CERTAIN RESTRICTIVE TRADE PRACTICES
37. Investigation into restrictive trade practices by Commission
38. Presumption as to the public interest
39. Special conditions for avoidance of conditions for maintaining
re-sale prices
40. Prohibition of other measures for maintaining re-sale prices
41. Power of Commission to exempt particular classes of goods
from sections 39 and 40
POWER TO OBTAIN INFORMATION AND APPOINT INSPECTORS
42. Power of Director General to obtain information
43. Power to call for information
44. Power to appoint Inspectors
OFFENCES AND PENALTIES
46. Penalty for contravention of section 27
48. Penalty for failure to register Agreements
48A. Penalty for contravention of order made under section 27B
or for possession of property sold to any person under section
27B
48B. Penalty for contravention of section 27B
48C. Penalty for contravention of order made by Commission relating
to unfair trade practice
49. Penalty for offences in relation to furnishing of information
50. Penalty for offences in relation to orders under the Act
51. Penalty for offences in relation to resale price maintenance
52. Penalty for wrongful disclosure of information
52A. Penalty for contravention of any condition or restriction,
etc.
52B. Penalty for making false statement in application, returns,
etc.
53. Offences by companies
MISCELLANEOUS
54. Power of Central Government to impose conditions, limitations
and restrictions on approvals etc., given under the Act
55. Appeals
56. Jurisdiction of Courts to try offences
57. Cognizance of offences
58. Magistrates' power to impose enhanced penalties
59. Protection regarding statements made to the Commission
60. Restriction on disclosure of information
61. Power of the Central Government to require the Commission
to submit a report
62. Reports of the Commission to be placed before Parliament
63. Members etc., to be public servants
64. Protection of action taken in good faith
65. Inspection of, and extracts from, the register
66. Power to make regulations
67. Power to make rules
The Monopolies and Restrictive Trade Practices
Act, 1969
(No. 54 of 1969)
[27th December 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 Republic
of India as follows: -
CHAPTER I
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 India except the State of Jammu
and Kashmir.
(3) It shall come into force on such date 1 as the Central Government
may, 2[by notification], appoint.
1. 1-6-1970; vide Notification No. S.O. 1981, dated 30.5.1970.
2. Subs. by Act 30 of 1984, sec. 2, for certain words (w.e.f.
1.8.1984)
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;
1[(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) 2[“dominant undertaking” means--
3[****]
4[(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 India
or any substantial part thereof]
5[* * * *]
Explanation II- Where any goods 6[****] 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.
7[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, I
8[Explanation IV- In determining, with reference to the features
specified 9 [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 India or any substantial part thereof during the relevant period.
]
10 [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 India, regard
shall be had to the average annual quantity of such goods supplied,
distributed or controlled in India by the undertaking during the
relevant period.
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. ]
11[Explanation VII- Where goods 12[****] produced in India by
an undertaking have been exported to a country outside India,
then the goods so expected shall not be taken into account in
computing for the purposes of this clause-
(i) The total goods 12[* * * *] that are produced in India by
that undertaking ;or in India or any substantial part thereof;]
(ii) The total goods 12 [* * **] that re produced, supplied or
distributed in India or any substantial part thereof;]
13 [(da) “financial institution” means, -
(i) A public financial institution specified in or under section
4A of the Companies Act, 1956 (I 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 section 2 of-
(i) The Banking Companies (Acquisition and Transfer 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 India; or
(vii) Any other institution which the Central Government may,
by notification, specify in this behalf;]
14[(e) “Goods” means goods as defined in the Sale
of Goods Act, 1930 (8 of 1930), and includes, -
(i) Products manufactured, processed or mined in India;
15[(ii) Shares and stocks including issue of shares before allotment;]
(iii) In relation to goods supplied, distributed or controlled
in India, goods imported into India;]
16[* * *]
17[(ef), Group” means a group of-
(i) Two or more individuals, associations of individuals firms,
trusts, trustees or bodies corporate (excluding financial institution),
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) 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) “India means, for the purposes of this Act, the territories
to which this Act extends;
18 [***]
(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,
19 [(iii) Where the undertakings are owned by bodies corporate,
-
(a) If one body corporate manages the other body corporate,
(b) If one body corporate is 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 other is owned by
a firm having bodies corporate as its partners, if such bodies
corporate are under the same management 20 [****]
(vi) If the undertakings are owned or controlled by the same
person or 21 [by the same group],
(vii) If one is connected with the other either directly or through
any number of undertakings which are interconnected undertakings
within the meaning of one or more of the foregoing sub-clauses.
22 [Explanation I- For the purposes of this Act, 23 [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 direct r or manager of the other; or
(iii) If one such body corporate holds not less than 24[one-fourth]
of the equity shares in the other or controls the composition
of not less than 24 [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 25 [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 24[one-fourth] of the equity shares in one such
body corporate also hold (whether by themselves or together with
their relatives) not less than 24[one-fourth] of the equity shares
in the other; or
(vi) If the 25 [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
24[one-fourth] of the equity shares in the other; or
(vii) If not less than 24[one-fourth] of the total voting power
26 [in relation to] each 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 24 [one-fourth of the total voting power
26 [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 27 [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 28
[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 interconnected 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.
29 [* * * *]
30[* * * *]
(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) 31[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 32[***] 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;
33 [(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 service s;
(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
34 [(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 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;
(1) “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;
35 [(II)“Produce” includes manufacture and all its
grammatical variations and cognate expressions shall be construed
accordingly;]
(m) “Register” means the register kept by the 36
[Director General under section 36;
37 [(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 interests of
consumers generally an Act 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 m 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;
38 [* * *]
(r) “Service” means service 39 [****] which is made
available to potential users and includes the provision of facilities
in connection with 40 [banking, financing, insurance 41 [chit
fund, real estate], transport processing], supply of electrical
or other energy, board 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;
42 [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
the members;
(u) “Trade practice,” means any practice relating
to the carrying on of any trade, and includes-
(i) Anything done by an), person which controls or affects the
price charge of 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;
43 [(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;]
44 [****]
(x) “Wholesaler”, in relation to the sale of any
goods, means a person who 45[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.
1. Subs by Act 30 of 1984, sec. 3, for cl. (c) (w.e.f. 1.8.1984).
2. Subs. by Act 30 of 1982, sec. 2, for certain words (w.e.f.
18.8.1982).
3. Clauses (i) and (ii) omitted by Act 58 of 1991, sec. 2(a)(i)
(w.e.f. 27.9.1991
4. Subs. by Act 58 of 1991, sec. 2(b) (ii) for sub-clause (iii)
(w.e.f 27.9.1991).
5. Proviso and Explanation I omitted by Act 58 of 1991, sec.
2(b) (iii) (w.e.f. 27.9.1991).
6. Words “of any description” omitted by Act 58 of
1991, sec. 2(a) (w.e.f. 27.9.1991).
7. Subs. by Act 30 of 1982, w. 2 for Explanation III (w.e.f.
18.8.1982).
8. Subs. by Act 30 of 1984, sec. 3, for Explanation IV (w.e.f.
1.8.1984).
9. Subs. by Act 58 of 1991, sec. 2(b) (iv) for “in sub-clause
(i), (iii) or (iv)” (w.e.f. 27.9.1991).
10. Subs. by Act 30 of 1984, sec. 3, for Explanations V and VI
(w.e.f. 1.8.1984).
11. Ins. by Act 60 of 1980, sec. 2 (w.e.f. 13.10.1980).
12. Words “of any description” omitted by Act 58
of 1991, sec. 2(a) (w.e.f. 27.9.1991).
13. Ins. by Act 30 of 1984, sec. 3 (w.e.f. 1.8.1984).
14. Subs. by Act 30 of 1984, sec. 3, for cl. (e) (w.e.f. 1.8.1984).
15. Subs. by Ac t 58 of 1991, sec. 2(c) for sub-clause (ii) (w.e.f.
27.9.1971).
16. Clause (ee) omitted by Act 58 of 1991, sec. 2(d).
17. Ins. by Act 30 of 1984, sec. 3 (w.e.f. 1,8.1984).
18. Clauses (ff) and (fff) omitted by Act 58 of 1991, sec. 2(d)
(w.e.f. 27.9.1991).
19. Subs. by Act 30 of 1984, sec. 3, for sub-clause (iii) (w.e.f.
1.8.1984).
20. The words “within the meaning of the said section 370”
omitted by Act 41 of 1974, sec. 43 (w.e.f. 1.2.1975).
21. Subs. by Act 30 of 1984, sec. 3, for “group of persons”
(w.e.f. 1.8.1984).
22. Ins. by Act 41 of 1974, sec. 43 (w.e.f. 1.2.1975).
23. Subs. by Act 30 of 1984, sec. 3, for certain words (w.e.f.
1.8.1984).
24. Subs. by Act 30 of 1984, sec. 3, for “one-third”
(w.e.f. 1.8.1984).
25. Subs. by Act 30 of 19S4, sec. 3, for certain words (w.e.f.
1,8.1984).
26. Subs. by Act 30 of 1984, sec. 3, for “with respect
to any matter reading to” (w.e.f. 1.8.1984).
27. Subs. by Act 30 of 1984, sec. 3, for “one-third”
(w.e.f. 1.8.1984).
28. Subs. by Act 30 of 1984, sec. 3 for public financial installations,”
(w.e.f. 1.8.1984).
29. Explanation omitted by Act 30 of 1984, sec. 3 (w.e.f. 1.8.1984).
30. Clause (gg) omitted by Act 58 of 1991, sec. 2(d) (w.e.f.
27.9.1991).
31. Subs. by Act 30 of 1984, sec. 3, for “maintaining prices”
(w.e.f. 1.8.1984).
32. Words “of any description” omitted by Act, 58
of 1991, sec. 2(a) (w.e.f. 27.9.1991),
33. Ins. by Act 30 of 1984, sec. 3 (w.e.f. 1.8.1984).
34. Subs. by Act 30 of 1984, sec. 3, for cl. (j) and Explanations
thereto (w.e.f. 1.8.1984).
35. Ins. by Act 30 of 1982, sec. 2 (w.e.f. 18.8.1982).
36 Subs. by Act 30 of 1984, sec. 2, for “Registrar”
(w.e.f. 1.8.1984).
37. Ins. by Act 74 of 1986, sec. 2 (w.e.f. 1.6.1987), clause
(n) was previously omitted by Act 30 of 1984, sec. 3 (w.e.f. 1.8.1984).
38. Clause (q) omitted by Act 58 of 1991, sec. 2(d) (w.e.f. 27.9.1991).
39. Words “of any description” omitted by Act 58
of 1991, sec. 2(a) (w.e.f. 27.9.1991).
40. Subs. by Act 30 of 1984, sec. 3, for “banking, insurance,
transport” (w.e.f. 1.8.1984).
41. Ins. by Act 58 of 1991, sec. 2(e)(i) (w.e.f. 27.9.1991).
42 Ins. by Act 58 of 1991, sec. 2(e)(ii) (w.e.f. 27.9.1991).
43. Subs. by Act 30 of 1984, Sec. 3, for cl. (v) (w.e.f. 1.8.1984).
44. Clauses (vv) and (w) omitted by Act 58 of 1991, sec. 2(o
(w.e.f. 27.9.1991).
45. Subs. by Act 30 of 1984, sec. 3, for certain words (w.e.f.
1.8.1984).
1[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.]
1. Ins. by Act 30 of 1984, sec. 4 (w.e. f. 1.8-1984).
3. Act not to apply in certain cases- Unless the Central Government,
1[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,
2[(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.
2[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.]
1. Subs. by Act 30 of 1984, sec. 2, for certain words (w.e.f.
1.8.1984).
2. Ins. by Act 30 of 1984, sec. 5 (w.e.f. 1.8.1984).
4. Application of other laws not barred-
(1) Save as otherwise provided in sub-section (2) or elsewhere
in this Act, the provisions 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 provisions of this Act, as relate
to matters in respect of which specific provisions exist in the-
(i) Reserve Bank of India Act, 1934 (2 of 1934), or the Banking
Regulation Act, 1949 (10 of 1949), or
(ii) State Bank of India Act, 1955 (23 of 1955), or the State
Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), or
(iii) Insurance Act, 1938 (4 of 1938),
Shall not apply to a banking company, the State Bank of India
or 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.
CHAPTER II
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, 1[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.
1. Subs. by Act 30 of 1984, sec. 2 for certain words (w.e.f.
1.8.1984).
6. Terms of office, conditions of service, etc., of members-
(1) Every member shall hold office for such period, not exceeding
five yeas, as may be specified by the Central Government in the
notification made under sub-section (1) of section 5, but shall
be eligible for re-appointment:
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 appoint.
1[(3A) Where any such casual vacancy occurs in the office of
the Chairman of the Commission, the senior-most 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
senior-most 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 2 [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) 3[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.
1. Ins. by Act 30 of 1984, sec. 6 (w.e.f. 1.8.1984).
2. Subs. by Act 30 of 1984, sec. 6, for “every member”
(w.e.f. 1.8.1984).
3. Subs. by Act 30 of 1984, sec. 6, for “any member”
(w.e.f. 1.8.1984).
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 has 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 the Central Government,
has, on an inquiry held by it in accordance with behalf by such
procedure as it may specify in this behalf, reported that the
member ought, on such grounds, to be removed.
1[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.]
1. Subs. by Act 30 of 1984, sec. 7, for sec. 8 (w.e.f. 1.8.1984).
9. Salaries, etc. to be defrayed out of the Consolidated Fund
of India- 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 1[from any trade association or from any consumer or
a registered consumer 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 2[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 3[or upon an application made to
it by the Director General] or upon its own knowledge or information.
1. Subs. by Act 74 of 1986, sec 3, for certain words (w.e.f.
1.6.1987).
2. Subs. by Act 30 of 1984, sec. 2, for 'Registrar” (w.e.f.
1.8.1984).
3. Ins. by Act 58 of 1991, sec. 3 (w.e.f. 27.9.1991).
1[11. Investigation by Director General before issue of process
in certain cases-
2[(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 Commission under 3[* * *] section 10.
(3) For the purpose of conducting the preliminary investigation
under subsection (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
a Inspector appointed under section 240 or section 240A of the
Companies Act, 1956 (I 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. Subs. by Act 30 of 1984, sec. 8, for sec. 11 (w.e.f. 1.8.1984).
2. Subs. by Act 58 of 1991, sec. 4 (a) for sub-section (1) (w.e.f.
27.9.1991).
3. Words “sub-clause (iii) of clause (a) of” omitted
by Act 58 of 1991, sec. 4(b) (w.e.f. 27.9.1991).
12. Powers of the Commission-
(1) The Commission shall for the purpose 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;
1[(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
2[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 Commissions jurisdiction shall be the
limits of the territory of India.
3[(5) Where during any inquiry under this Act, the Commission
has any grounds to believe that any nooks 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.]
1. Ins. By Act 58 of 1991, sec. 5 (a) (w.e.f 27.9.1991).
2. Subs. By Act 58 of 1991, sec. 5(b) for “and Chapter
XXV of the Code of Criminal Procedure, 1898 (5 of 1898)”
3. Ins. by Act 3o of 1984, sec. 9 (w.e.f. 1.8.1984).
1[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.
2[Explanation 1- 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 oppositive party.]
1. Ins. by Act 30 of 1984, sec. 10 (w.e.f. 1.8.1984).
2. Ins. by Act 58 of 1991, sec. 6 (w.e.f. 27.9.1991).
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 s persons having the same interest, one or more of such
persons may, with the permission of the Commission, make an application,
under that subsection, 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 of f
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 n-tanner
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.
1[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.]
1. Ins. by Act 30 of 1984, sec. 11 (w.e.f. 1.8.1984).
1[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 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 reference 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.]
1. Ins. by Act 58 of 1991, sec. 7 (w.e.f. 27.9.1991).
14. Orders where party concerned does not carry on business in
India – Where any practice substantially falls within 1[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 practices which is carried
on in India.
1. Subs. by Act 30 of 1984, sec. 12, for certain words (w.e.f.
1.8.1984).
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 India, or
(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 India, to the
extent to which the monopolistic or restrictive trade practice
relates exclusively to the production, supply, distribution or
control of goods for such export.
16. Sittings of the Commission-
(1) The central office of the Commission shall be in Delhi but
the Commission may sit at such places in India and at such times
as may be most convenient for the exercise of its powers or functions
under this Act.
(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 proceeding 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 1[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 may 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.
1. Ins. by Act 30 of 1984, sec. 13 (w.e.f. 1.8.1984).
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 1[or an unfair
trade practice, as the case may be,] to be forwarded to the 2
[Director General] who shall have it recorded in such manner as
may be prescribed.
1. Ins. by Act 30 of 1984, sec. 14 (w.e.f. 1.8.1984).
2. Subs. by Act 30 of 1984, sec. 2, for “Registrar”
(w.e.f. 1.8.1984).
CHAPTER III
CONCENTRATION OF ECONOMIC POWER
1[* * * *]
2[* ** *]
1. “Part A” omitted by Act 58 of 1991, sec. 8(a)
(w.e.f. 27.9.1991).
2. The word and letter “Part B” omitted by Act 58
of 1991, sec. 8(b) (w.e.f. 27.9.1991).
27. Division of 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 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 interconnected 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 public interest;
(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 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 division of an undertaking or inter-connected
undertakings shall not be entitled to claim any compensation for
such cesser.
1. Subs. by Act 58 of 1991, sec. 9 (w.e.f. 27.9.1991).
1[27A. Power of the Central Government to direct severance of
inter-connection between undertakings-
(1) 2[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; 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 interconnection.
(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 undertaking with any other undertaking
in any manner specified in clause (g) of section 2.
1. Ins. by Act 30 of 1984, sec. 22 (w. e. f. 1. 8. 1984).
2. Subs. by Act 58 of 1991, sec. 10 (w.e.f. 27.9.1991).
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.
1[* * * *]
2[* * * *]
1. Part Committed by Act 58 of 1991, sec. 11 (w.e.f. 27.9.1991).
2. Chapter III-A omitted by Act 58 of 1991, sec. 12 (w.e.f. 27.9.1991).
CHAPTER IV
MONOPOLISTIC TRADE PRACTICES
31. Investigation by Commission of monopolistic trade practices-
(1) Where it appears to the Central Government that 1[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 finding thereon:
2 [Provided that where the Commission receives 3[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 3[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, 4[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
mischief which result or may result from such trade practice.
4[(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 mischief 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, make 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) 5[Without prejudice to the generality of the powers conferred
by subsection (2A), any order made by the Central Government under
this section may also include an order]-
(a) Regulating the 6 [production, storage, supply], distribution
or control of any goods by the undertaking or the control or 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 6[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;
(d) 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;
7 [(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.]
7[(4) Whenever any order is made by the Central Government under
subsection (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 and, 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. ]
1. Subs. by Act 30 of 1984, sec. 24, for certain words (w.e.f.
1.8.1984).
2. Proviso added by Act 30 of 1984, sec. 24 (w.e.f. 1.8.1984).
3. Ins. by Act 58 of 1991, sec. 13 (w.e.f. 27.9.1991).
4. Ins. by Act 30 of 1984, sec. 24 (w.e.f. 1.8.1984).
5. Subs. by Act 30 of 1984, sec. 24, for certain words (w.e.f.
1.8.1984).
6. Subs. by Act 30 of 1984, sec. 24, for “production, supply”
(w.e.f. 1.8.1984).
7. Ins. by Act 30 of 1984, sec. 24 (w.e.f. l.8.1984).
1[32. Monopolistic trade practice to be deemed to be prejudicial
to the public interest except in certain cases- 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 India or any part
thereof, or for the security of the State; or
(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.]
1. Subs. by Act 30 of 1984, sec. 25, for sec. 32 (w.e.f. 1.8.1984).
CHAPTER V
1[RESTRICTIVE TRADE PRACTICES AND UNFAIR TRADE PRACTICES]
1. Subs. by Act 30 of 1984, sec. 26, for the heading (w.e.f.
1.8.1984).
1[Part A
Registration of Agreements Relating to Restrictive Trade Practices]
1. Ins. by Act 30 of 1984, sec. 26 (w.e.f. 1.8.1984).
33. Registrable agreements relating to restrictive trade practices-
(1) 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, discount, 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 any 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;
2[(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, 3[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 4 [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 authorised 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.
1. Subs. by Act 30 of 1984, sec. 27, for certain words (w.e.f.
1.8.1984).
2. Ins. by Act 30 of 1984, sec. 27 (w.e.f. 1.8.1984).
3. Subs. by Act 30 of 1984, sec. 2, for certain words (w.e.f.
1.8.1984).
4. Subs. by Act 30 of 1984, sec. 27, for “production, supply”
(w.e.f. 1.8.1984).
34. Registrar of Restrictive Trade Agreements- [Rep. by the Monopolies
and Restrictive Trade Practices (Amendment) Act, 1984, sec. 28
(w.e.f. 1.8.1984)].
35. Registration of agreements-
(1) The Central Government shall, 1[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 2[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 1[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 so far 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 so far 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 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 of 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 3[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, not withstanding 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 express
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. Subs. by Act 30 of 1984, sec. 2, for certain words (w.e.f.
1.8.1984).
2. Subs. by Act 30 of 1984, sec. 2., for 'Registrar” (w.e.f.
1.8.1984).
3. Subs. by Act 30 of 1984, sec. 29, for “production, supply”
(w.e.f. 1.8.1984).
36. Keeping the register-
(1) For the purposes of this Act, the 1[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 1[Director General] shall provide for the maintenance
of a special section of the register for the entry or filling
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 1[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 1[Director General] dispose of the matter in conformity
with any general or special directions issued by the Commission
in this behalf.
1. Subs. by Act 30 of 1984, sec. 2, for “Registrar”
(w.e.f. 1.8.1984).
1[Part B
Unfair Trade Practices
1. Ins. by Act 30 of 1984, sec. 30 (w.e.f. 1.8.1984).
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 provision of any services,
1[adopts any unfair method or unfair or deceptive practice including
any of the following practices,], namely: -
(1) The practice of making any statement, whether or any or in
writing or by visible representation which, -
(i) Falsely represents that the goods are of a particular standard,
quality, 2[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,
re-conditioned 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 test 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) Make to the public a representation in a form that purport
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
h 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.
1. Subs. by Act 58 of 1991, sec. 14(a) (w.e.f. 27.9.1991).
2. Ins. by Act 58 of 1991, sec. 14(b) (w.e.f. 27.9.1991).
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 1[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;
(c) Upon an application to it by the Director General; or
(d) Upon its own knowledge or information.
1. Subs. by Act 74 of 1986, sec. 5, for certain words (w.e.f.
1.6.1987).
1[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.)
1. Subs. by Act 58 of 1991, sec. 15 for section 36C (w.e.f. 27.9.1991).
36D. Powers which may be exercised by the Commission inquiring
into an unfair trade practice-
(1) The Commission may inquire into an 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;
1[* * * *]
(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;
2[(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 a 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) for respect
of any trade practice which is expressly authorised by any law
for the time being in force.
1. Word “and” omitted by Act 58 of 1991, sec. 16(a)
(w.e.f. 27.9.1991).
2. Ins. by Act 58 of 1991, sec. 16(b) (w.e.f. 27.9.1991).
36E. Power relating to restrictive trade practices may be exercised
or performed in relation to unfair trade practices- Without prejudice
to the provisions of section 12A, section 12B and section 36D,
the Commission, Director General or any other person authorised
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.]
CHAPTER VI
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 practice or 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 riot 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 re-sale
whether in the same or different form, type, or species 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
1[the owner of any undertaking is indulging in monopolistic trade
practice], 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 2[**'*] for such action as that
Government may take under section 31.
1. Subs. by Act 30 of 1984, sec. 31, for certain words (w.e.f.
1.8.1984).
2. The words “with regard to any monopolistic trade practice”
omitted by Act 30 of 1984, sec. 31 (w.e.f. 1.8.1984).
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
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 there from;
(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; 1[****]
(h) That the restriction does not directly or indirectly restrict
or discourage competition to any material degree in any relevant
trade or industry and is not likely to do so;
2[(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 India or any part thereof, or for the security
of the State; or
(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 “purchases”, “consumers”
and “users” include persons purchasing, consuming
or using for the purpose or in 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.
1. The word “or” omitted by Act 30 of 1984, sec.
32 (w.e.f. 1.8.1984).
2. Ins. by Act 30 of 1984, sec. 32 (w.e.f. 1.8.1984).
39. Special conditions for avoidance of conditions for maintaining
re-sale 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 in so far as it
purports to establish or provide for the establishment of minimum
prices to be charged oil the re-sale 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 oil 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
re-sale 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 1[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 re-sale and includes
a wholesaler, and the term “dealer” includes a supplier
and a retailer.
1. Subs. by Act 30 of 1984, sec. 33, for certain words (w.e.f.
1.8.1984).
40. Prohibition of other measures for maintaining re-sale 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 re-sale in India on the ground that the wholesaler
or retailer-
(a) Has sold in India at a price below re-sale price, goods obtained,
either directly or indirectly, from that supplier, or has supplied
such goods, either directly or 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 (i), if,
in addition to that ground, he has any other ground which alone
would entitle him to withhold such supplies.
Explanation I- “Re-sale price”, in relation to sale
of goods of any description means 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 re-sale 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 1[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 re-sale 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 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.
1. Subs. by Act 30 of 1984, sec. 2, for “Registrar”
(w.e.f. 1.8,1984).
CHAPTER VII
POWER TO OBTAIN INFORMATION AND APPOINT INSPECTORS
42. Power of 1[Director General] to obtain information-
(1) If the 1[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 1[Director General] whether he
is a party to any such agreement and, if so; to furnish to the
1[Director General] such particulars of the agreement as may be
specified in the requisition.
(2) The 1[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 1[Director General] such further
documents or information in his possession or control as the 1[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, manner 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 1[Director General], -
(a) Order the person or, as the case may be, the association
to furnish those particulars to the 1[Director General] within
such time as may be specified in the order, or
(b) Authorise the 1[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.
1. Subs. by Act 30 of 1984, sec. 2, for “Registrar”
(w.e.f. 1.8,1984).
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, 1[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 purpose of this Act.
1. Subs. by Act 30 of 1984, sec. 34, for “call upon any
undertaking” (w.e.f. 1.8.1984).
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 1[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.
1. Subs. by Act 30 of 1984, sec. 35, for 'restrictive trade practice”
(w.e.f. 1.8.1984).
CHAPTER VIII
OFFENCES AND PENALTIES
1[* * * *]
1. Section 45 omitted by Act 58 of 1991, sec. 17 (w.e.f. 27.9.1991).
46. Penalty for contravention of 1[****] section 27- If any person
contravenes the provisions of 1[****] section 27, he shall be
punishable 2 [with imprisonment for a term which may extend to
five years, or] with fine which may extend to rupees one lakh,
2[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.
1. “Section 22 or section 23 or section 24 or” omitted
by Act 58 of 1991, sec. 18 (w.e.f. 27.9.1991).
2. Ins. by Act 30 of 1984, sec. 37 (w.e.f. 1.8.1984).
1[* * * *]
1. Section 47 omitted by Act 58 of 1991, sec. 19 (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 1[with imprisonment for a term which may
extend to three years, or] with fine which may extend to five
thousand rupees, 1[or with both,] and where the offence is continuing
one, with a further fine which may extend to five hundred rupees
for every day, after the first, during which such failure continues.
1. Ins. by Act 30 of 1984, sec. 39 (w.e.f. 1.8.1984).
1[****]
1. Sub-section (2) omitted by Act 58 of 1991, sec. 20 (w.e.f.
27.9.1991).
1[48A. Penalty for contravention of order made under section
27B or for possession of property sold to any person under section
27B- 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 n 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 therefor
(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.
1. Ins. by Act 30 of 1984, sec. 40 (w.e.f. 1.8.1984).
1[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
s hall 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 yeas, or with fine which may extend
to five thousand rupees, or with both.]
1. Sub. by Act 58 of 1991, sec. 21 for section 48B (w.e.f. 27.9.1991).
48C. Penalty for contravention of order made by Commission relating
to unfair trade practice- If any person contravenes any order
made by the Commission under section 36D, he shall be punishable
with imprisonment for a term 1[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.]
1. Subs. by Act 58 of 1991, sec. 22 for “which may extend
to three years, or with fine which may extend to ten thousand
rupees, or with both” (w.e.f. 27.9.1991).
49. Penalty for offences in relation to furnishing of information-
(1) If any person fails, without any reasonable excuse, 1[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.
1. Subs. by Act 30 of 1984, sec. 41, for “to finish any
information” (w.e.f. 1.8.1984).
50. Penalty for offences in relation to orders under the Act-
1[(l) 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 he 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.]
1. Subs. by Act 58 of 1991, sec. 23 for sub-sections (1) and
(2) (w.e.f. 27.9.1991).
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 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.
1[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.
1. Ins. by Act 30 of 1984, sec. 43 (w.e.f. 1.8.1984).
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.]
53. Offences by companies-
(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.
CHAPTER IX
MISCELLANEOUS
54. Power of Central Government to impose conditions, limitations
and restrictions on approvals etc., given under the Act-
(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.
1[****]
(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.
1. Omitted by Act 58 of 1991 (w.e.f. 27.9.1991).
55. Appeals- Any person aggrieved by 1 [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 2[section 12A or] 3[section 13 of 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).
1. Subs. by Act 30 of 1984, sec. 44, for certain words (w.e.f.
1.8.1984).
2. Ins. by Act 58 of 1991, sec. 25 (w.e.f. 27.9.1991).
3. Subs. by Act 30 of 1984, sec. 44 for “section 13 or
section 37” (w.e.f. 1.8.1984).
56. Jurisdiction of Courts to try offences- No court inferior
to that of a 1[Court of Session) shall try any offence under this
Act.
1. Subs. by Act 30 of 1984, sec. 45, for certain words (w.e.f.
1.8.1984).
57. Cognizance of offences- No court shall take cognizance of
any offence punishable under this Act except on a report in writing
of the facts constituting such offence made by a person who is
a public servant as defined in section 21 of the Indian Penal
Code (45 of 1860).
58. Magistrates' power to impose enhanced penalties- [Rep. by
the Monopolies and Restrictive Trade Practices (Amendment) Act,
1984, sec. 46 (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.
1[(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.]
1. Ins. by Act 30 of 1984, sec. 47 (w.e.f. 1.8.1984).
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 1[restrictive or unfair trade practices] or concentration of
economic power to the common detriment.
1. Subs. by Act 30 of 1984, sec. 48, for “restrictive trade
practices” (w.e.f. 1.8.1984).
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 1[Director General], and every member of the stiff
of the Commission, and of the 1[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).
1. Subs. by Act 30 of 1984, sec. 2, for “Director and the
Registrar' (w.e.f. 1.8.1984).
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 1[Director General] or any member of the staff
of the 1[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.
1. Subs. by Act 30 of 1984, sec. 2, for “Director and the
Registrar’ (w.e.f. 1.8.1984).
65. Inspection of, and extracts from, the register-
(1) The register, other than the special section, shall be open
to public inspect' n during such hours and 10 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 1[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 1[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 1[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.
1. Subs. by Act 30 of 1984, sec. 2, for “Registrar”
(w.e.f. 1.8.1984 ‘).
66. Power to make regulations-
(1) The Commission 1[may, 2[by notifications, make regulations]
for the efficient performance of its functions under this Act.
(2) In particular, and without prejudice to the generality of
the foregoing provision, such regulations may provide for all
or any of the following matters namely:-
(a) The conditions of service, as approved by the Central Government,
or 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;
3[****]
(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.
4(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 regulation 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.]
1. Subs. by Act 20 of 1983, sec. 2 and Sch. for “may make
regulations” (w.e.f. 15.3.1984).
2. Subs. by Act 30 of 1984, sec. 2, for certain words (w.e.f.
1-8-1984).
3. Clause (d) omitted by Act 30 of 1984, sec. 49 (w.e.f. 1.8.1984).
4. Ins. by Act 20 of 1983, sec. 2 and Schedule. (w.e.f. 15.3.1984).
67. Power to make rules-
(1) The Central Government may, 1[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 therefore;
2[(ab) The form and the manner in which an application for recognition
shall be made under clause (ii) of section 2;]
3[* * * *]
(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;
4[* * * *]
(c) The conditions of service of members of the commission and
the 5[Director General];
6(ca) The duties and functions of the Director General;]
(d) The places and the manner in which the register shall be
maintained 7[****] and the particulars to be entered therein;
8[(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;
9[****]
(h) Any other matter which is required to be, or may be, prescribed.
10 (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 lst
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 11[in
two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive
sessions aforesaid], both House: 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.
12[****]
1. Subs. by Act 30 of 1984, sec. 2, for certain words (w.e.f.
1.8.1984).
2. Ins. by Act 74 of 1986, sec. 7 (w.e.f. 1.6.1987).
3. Clauses (ac) and (ba) omitted by Act 58 of 1991, sec. 26 (w.e.f.
27.9.1991).
4. Clauses (ac) and (ba) omitted by Act 58 of 1991, sec. 26 (w.e.f.
27.9.1991).
5. Subs. by Act 30 of 1984, sec. 2, for “Registrar”
(w.e.f. 1.8.1984).
6. Ins. by Act 30 of 1984, sec. 50 (w.e.f. 1.8.1984).
7. The words “by the Registrar” omitted by Act 30
of 1984, sec. 50 (w.e.f. 1.8.1984).
8. His by Act 30 of 1984, sec. 50 (w.e.f. 1.8.1984).
9. Clause (g) omitted by Act 58 of 1991, sec. 26 (w.e.f. 27.9.1991).
10. Ins. by Act 62 of 1988, sec. 3 (w.e.f. 1.12.1988).
11. Subs. by Act 20 of 1983, sec. 2 and Sch., for certain words
(w.e.f. 15.3-1984).
12. The Schedule omitted by Act 58 of 1991, sec. 27 (w.e.f. 27.9.1991).
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