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BEFORE THE
MONOPOLIES AND RESTRICTIVE TRADE PRACTICES, COMMISSION
Appearances : S. K. Sharma for the Applicant/Complainant. Dinesh Agnani
for the Respondents.
ORDER
DIVECHA, J, CHAIRMAN
1. The applicant/complainant has approached this Commission under section
10 and section 36B of
the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter
'the MRTP Act') charging the respondents with adoption of and indulgence
in unfair trade practices within their respective meanings contained therein.
The respondents have filed their reply and have resisted this proceeding
on various grounds. They have questioned the maintainability of the proceeding,
inter alia, on the ground that the applicant/complainant is not a consumer
and the cause of action would not fall within the purview of the MRTP
Act.
2. It appears that this Commission directed the respondents herein to restore
supply of electricity on deposit of Rs. 25 lakh by and on behalf of the
applicant/complainant. It appears that the aforesaid order passed by this
Commission was carried in appeal before the Hon'ble Supreme Court. By its
order passed on 12th December, 1997, the Hon'ble Supreme Court has directed
this Commission to hear the preliminary issue as to the jurisdiction of
this Commission to entertain and to try this proceeding. Apropos, the matter
has been placed before us for deciding the issue as to the jurisdiction
of this Commission to entertain and to try this proceeding.
3. Learned advocate Shri Agnani is right in his submission that the applicant/complainant
is not a 'consumer' for the purpose of section
10(a)(i) or section 36B(a)
of the MRTP Act. As rightly submitted by him, the Division Bench of the
High Court of Delhi in its ruling in the case of Ballarpur Industries
Ltd. v. DG(I&R) reported in [1988] 64 Comp Cas 884 has held that the
definition of 'consumer' for the purposes of the MRTP Act has to be adopted
from its definition contained in the Consumer Protection Act, 1986 (hereinafter
'the CP Act). The word 'consumer' has been defined in section
2(d) of the CP Act to exclude a person purchasing goods for commercial
purposes. It cannot be gainsaid that electricity is "goods" and the applicant/complainant
purchases the same from the respondents for running its factory which
would certainly be a commercial purpose. In that view of the matter, the
applicant/complainant would not answer the definition of "consumer" contained
in section 2(d)
of the CP Act. Its complaint application would not, therefore, be maintainable
under section 10(a)(i) or
section 36B(a) of the MRTP
Act.
4. Even otherwise, if we examine the facts of the case, the respondents
have charged the applicant/complainant with theft of electricity. It has,
therefore, raised the bill in the vicinity of Rs. 99 lakh. The respondents
have also instituted a criminal proceeding against the applicant/complainant
for theft of electricity. It will be for the competent criminal court to
decide whether or not the applicant/complainant is or its employees/officials/officers
are guilty of theft of electricity. If they are found guilty of theft, they
will have to face consequences. If they are not found guilty of theft, they
will be acquitted. It will not be open to this Commission to dilate upon
this question at this stage as it is pending before the competent criminal
court.
5. The question, however, is whether or not the respondents can be said
to be guilty of adoption of and indulgence in any kind of restrictive and/or
unfair trade practices by raising the bill for the amount in question on
account of theft of electricity. It is the case of the respondents that
they have raised such bill in accordance with the Rules and Regulations
framed in that regard. If such bill is raised in accordance with the Rules
and Regulations in that regard, such practice on the part of the respondents
cannot be styled as either restrictive or unfair trade practice within its
respective meaning contained in the MRTP Act. If it cannot be styled as
restrictive and/or unfair trade practice, this Commission cannot have jurisdiction
to entertain and to try this complaint application.
6. In view of our aforesaid discussion, we are of the opinion that this
Commission has no jurisdiction to try this complaint application and it
deserves to be rejected without issuing any Notice of Enquiry.
7. In the result, this complaint application fails. It is hereby rejected,
however, with no order as to costs on the facts and in the circumstances
of the case.
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