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J.K. Synthetics Ltd. Vs. R.D. Saxena, Director of Investigation and ors. - Court Judgment

LegalCrystal Citation
SubjectMRTP
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ Petition No. 8060 of 1974
Judge
Reported in[1977]47CompCas323(All)
ActsMonopolies and Restrictive Trade Practices Act, 1969 - Sections 2, 10, 33, 33(3), 35, 37 and 38; Restrictive Trade Practices (Enquiry) Regulations, 1970 - Sections 7; Constitution of India - Article 77
AppellantJ.K. Synthetics Ltd.
RespondentR.D. Saxena, Director of Investigation and ors.
Appellant AdvocateR.N. Singh, ;L.M. Singh and ;V.B. Singh, Advs.
Respondent AdvocateShanti Bhushan, ;J. Sarup, ;S.N. Dayal, ;G.K. Sahai and ;S.D. Parekh, Advs.
Excerpt:
- - act, which runs as follows :11. in respect of any restrictive trade practice of which complaint is made under sub-clause (i) of clause (a) of section 10, the commission shall, before issuing any process requiring the attendance of the person complained against, cause a preliminary investigation to be made by the director, in such manner as it may direct, for the purpose of satisfying itself that the complaint requires to be inquired into. in other words, if the complaint had been competent, having been filed by the requisite number of consumers, the director had to hold a preliminary investigation for satisfying itself prima facie that a case of restrictive trade practices had been mnde out, before the commission could assume jurisdiction to issue process requiring the attendance.....p.n. bakshi, j. 1. this writ petition arises out of the proceedings pending before the monopolies and restrictive trade practices commission. the petitioner is a limited liability company registered under the companies act. it carries on business of manufacture and sale of nylon yarn. on 19th september, 1973, an agreement was entered into between four nylon spinners, viz., the petitioner and respondents nos. 23, 24 and 25, namely, garware nylons ltd., nirlon synthetic fibres and chemicals ltd. and modipon ltd. on the one hand, and 18 associations of actual users of nylon yarn, respondents nos. 5 to 22, on the other. the petitioner's case was that this agreement (hereinafter called the ' september agreement') was executed for the purpose of having an equitable distribution of nylon yarn at.....
Judgment:

P.N. Bakshi, J.

1. This writ petition arises out of the proceedings pending before the Monopolies and Restrictive Trade Practices Commission. The petitioner is a limited liability company registered under the Companies Act. It carries on business of manufacture and sale of nylon yarn. On 19th September, 1973, an agreement was entered into between four nylon spinners, viz., the petitioner and respondents Nos. 23, 24 and 25, namely, Garware Nylons Ltd., Nirlon Synthetic Fibres and Chemicals Ltd. and Modipon Ltd. on the one hand, and 18 associations of actual users of nylon yarn, respondents Nos. 5 to 22, on the other. The petitioner's case was that this agreement (hereinafter called the ' September agreement') was executed for the purpose of having an equitable distribution of nylon yarn at concessional prices at the instance of and under the supervision and approval of the Central Government. On 21st November, 1973, the Commission received a memorandum from the All India Crimpers Association, Bombay, consisting of 23 members bringing to the notice of the Commission the aforementioned September agreement. It was alleged on behalf of the association that the operation of the agreement resulted in a number of restrictive trade practices. It was prayed that the Commission may institute an inquiry into the matter. It appears that the Commission on receipt of the memorandum decided to take action under Section 10(a)(iv) of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter called ' the MRTP Act'). and has directed an inquiry under Section 37 of the said Act. A notice dated November 30, 1973, annexure ' B ', was issued under Section 7 of the Restrictive Trade Practices (Enquiry) Regulations, 1970 (hereinafter referred to as ' the Regulations of 1970 '), calling upon the petitioner and respondents Nos. 5 to 25 to put in their appearance and to file statements of their case on or before January 25, 1974. Time for filing the statements was extended by the Commission up to February 15, 1974. It appears that on February 14, 1974, the nylon spinners filed an application before the Commission challenging the issuance of the notice under Section 10(a)(iv) of the M.R.T.P. Act, and praying for disclosure and inspection of all the facts and records on the basis of which the said notice had been issued by the Commission on its own knowledge and information. By an order dated 5th March, 1974 (annexure ' C '), the Commission was of the opinion that it was the operation and working and giving effect of the provisions of the agreement alone which led to ' restrictive trade practices ' set out in the notice issued under regulation 7. As such, the question of disclosure of any other facts or inspection of any document did not arise. Thereafter, the nylon spinners filed their written statements, vide annexure ' E '. Respondent No. 5 filed the statement of his case, vide annexure ' F '. The Registrar, respondent No. 2, acting under Regulations of 1970 and 1971, filed his answer to the statement of the case referred to above. The nylon spinners then submitted their replies to the answers of the Registrar. On 13th July, 1974, the 1970 Regulations was repealed and in their place the Monopolies and Restrictive Trade Practices Commission Regulations, 1974 (hereinafter called 'Regulations of 1974') came into force. On 12th August, 1974, the nylon spinners filed certain preliminary objections and prayed for a decision thereon. The Director of Investigation, respondent No. 1, put in appearance instead of the Registrar, respondent No. 2. This was objected to by the nylon spinners on the ground that 1974 Regulations were inapplicable. Thereafter, the following issues were framed :

' 1. Whether the agreement dated September 9, 1973, has the approval of the Central Government within the meaning of Section 33(3) of the Monopolies and Restrictive Trade Practices Act ?

2. If the answer to issue No. 1 be in the affirmative, whether the agreement is outside the purview of Sections 10 and 37 of the Monopolies and Restrictive Trade Practices Act ?

3. Whether on a true construction of the agreement dated September 9, 1973, the operation of the said agreement results in restrictive trade practices as alleged in the notice dated 30th November, J973, within the meaning of Section 2(o) of the Monopolies and Restrictive Trade Practices Act?

4. Whether the notice dated 30th November, 1973, is without jurisdiction and/or in contravention of statutory provisions and/or in violation of the rules of natural justice, as alleged in para. 5 of the application of respondents Nos. 1-4 dated August 12, 1974?'

2. The aforesaid preliminary issues were disposed of by the Commission by two judgments, annexure ' D ' dated 21st October, 1974 [Agreement relating to Nylon Filament Yarn, In re : Ex parte J. K. Synthetics Ltd. [1976] 46 Comp Cas 357 . The majority judgment is that of the Chairman, Justice J. L. Nain and Dr. H. K. Paranjape. The dissenting judgment is that of Sri H. M. Jhala. He differed only on the decision of issue No. 1 and held that the September agreement has the approval of the Central Government within the meaning of Section 33(3) of the M.R.T.P. Act.

3. In view of the majority judgment all the four issues were answered against the nylon spinners, who were directed to pay Rs. 3,000 as costs to the Director of Investigation, vide order of the Commission dated 21st October, 1974 (annexure ' D ') [1976] 46 Comp Cas 357.

4. Aggrieved thereby the present writ petition has been filed by one of the nylon spinners, namely, M/s. J. K. Synthetics Ltd., impleading the other nylon spinners as respondents Nos. 23 to 25 and the other signatories of the September agreement as respondents Nos. 5 to 22 to this petition, besides respondents Nos. 1 to 4.

5. I have heard learned counsel for the parties at considerable length. Several questions of law have been raised in this writ petition, some of them those which I consider sufficient for a final disposal of this writ petition shall be dealt with by me.

6. The first important question is : Whether the M.R.T.P. Commission was competent to take action on the basis of the complaint filed by the All India Crimpers Association on November 21, 1973, under Section 10(a)(iv) of the M.R.T.P. Act?

7. It is submitted that the said complaint had been filed by 23 members comprising the All India Crimpers Association, Bombay. It was alleged in the complaint that the operation of the agreement has resulted in a number of restrictive trade practices. It was requested that the Commission may institute an inquiry into the matter. Section 10 of the M.R.T.P. Act runs as follows :

' 10. The Commission may inquire into-

(a) any restrictive trade practice-

(i) upon receiving a complaint of facts which constitute such practice from any trade or consumers' association having a membership of not less than twenty-five persons or from twenty-five or more consumers, 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 Registrar, or

(iv) upon its own knowledge or information.

(b) any monopolistic trade practice, upon a reference made to it by the Central Government or upon its own knowledge or information.'

8. From a perusal of the aforesaid section it is clear that the Commission can inquire into any restrictive trade practices under four conditions mentioned above. The first condition for the exercise of jurisdiction under Section 10(a)(i) is that it is necessary that the complaint should be filed by a consumers' association of not less than 25 persons. In the instant case the Crimpers Association consisted of only 23 members. As such, on the face of it, the complaint was defective and the Commission could not hold an enquiry on its basis. In this very connection reference may be made to Section 11 of the M.R.T.P. Act, which runs as follows :

'11. In respect of any restrictive trade practice of which complaint is made under Sub-clause (i) of Clause (a) of Section 10, the Commission shall, before issuing any process requiring the attendance of the person complained against, cause a preliminary investigation to be made by the Director, in such manner as it may direct, for the purpose of satisfying itself that the complaint requires to be inquired into.'

9. If the complaint in question had been made by not less than 25 consumers a duty has been cast upon the Commission before issuing any process to direct the holding of preliminary investigation by the Director for the purpose of satisfying itself that the complaint is such which requires to be enquired into. In other words, if the complaint had been competent, having been filed by the requisite number of consumers, the Director had to hold a preliminary investigation for satisfying itself prima facie that a case of restrictive trade practices had been mnde out, before the Commission could assume jurisdiction to issue process requiring the attendance of the person complained against. Thus, after the completion of private investigation under Section 11, the Commission could direct the holding of a public enquiry under Section 37 of the M.R.T.P. Act. In the instant case the facts disclosed above clearly indicate that no action could validly be taken by the Commission under Section 10(a)(i) of the Act since the complaint filed before it was not competent.

10. Under Section 10(a)(ii) of the Act a reference could also be made to the Commission by the Central or the State Government for holding an enquiry. Similarly, under Section 10(a)(iii) of the Act an application could be made to the Commission by the Registrar for the same purpose. In either of these two cases it would not be necessary for the Commission to direct the holding of preliminary investigation by the Director as is required in a case covered by Section 10(a)(i) of the Act. The reason for this is not far to seek. A reference by the Central Government or the State Government or art application by the Registrar presupposes that the said Government or the Registrar had already satisfied itself by a preliminary investigation or otherwise that it was a fit case which should be enquired into and as such it has made the reference to the Commission for holding the enquiry under Section 37 of the Act.

11. Section 10(a)(iv) of the Act, which is the bone of contention between parties, authorises the Commission to enquire into restrictive trade practices upon its own knowledge or information. In other words, this implies the taking of suo motu action by the Commission.

12. Counsel for the petitioner has submitted that the four different conditions laid down under Section 10 of the M. R. T. P. Act are mutually exclusive of each other and that they should not be allowed to overlap. The submission briefly is that since the complaint in question was filed by 23 consumers only, it was incompetent and the Commission should have rejected the same outright. An invalid complaint cannot form the basis of the own knowledge and information of the Commission so as to entitle it to take action under Section 10(a)(iv) of the M. R. T. P. Act. Reference has been made to a single judge decision of the Calcutta High Court in I. T. C. v. M. R. T. P. Commission , which I am informed is the subject-matter of a pending special appeal. In this case para. 1 of the complaint disclosed that it was being filed by 25 consumers but the complaint was actually signed by 27 persons. A preliminary investigation was directed by the Commission. After recording evidence the Director submitted his report. The verification of the complaint was not strictly in accordance with the Regulations of 1970. Paragraph 47 of the Regulations, however, provided that failure to comply with any requirement of these Regulations shall not invalidate any proceedings unless the Commission so directs. So even without a proper verification the enquiry on the basis of a complaint could proceed. It follows therefrom that the report of the Director of Investigation could not be said to be invalid, inasmuch as it did not relate to an invalid complaint. It was observed in this case by Justice A. K. Mookerji as follows (page 628) :

' In my opinion, provisions of Section 10(a) are mutually exclusive but that does not mean that any information derived from any source or even from an invalid complaint cannot be used by the Commission as its own knowledge and information under Clause (iv). Only limitation is that, there could not be any simultaneous enquiry on different alternatives enumerated in Section 10(a).'

13. It has further been observed by the learned judge as follows (page 629) :

' In my opinion, the Commissioner's jurisdiction to inquire into restrictive trade practices upon its own knowledge or information under Section 10(a)(iv) of the said Act is not restricted only to the information derived from a proceeding under Section 12(3) of the Act. Upon information derived from an invalid or irregular complaint or even from an anonymous letter or from a complaint made by less than 25 consumers the Commission is competent to exercise its jurisdiction under Section 10(a)(iv) of the Act.'

14. I have very carefully pondered over the observations of the learned single judge and I am inclined to agree with his view. There is nothing in Section 10(a)(iv) of the Act to restrict the source of information or own knowledge of the Commission which can form the basis of suo motu action. This knowledge or information can be derived in innumerable ways. It may be disclosed during the course of enquiry under Section 12(3)(a) of the M. R. T. P. Act. It may constitute the subject-matter of anonymous intimation sent to the Commission. It may be the result of the communication of oral information to the Commission. The source and the manner in which this information is conveyed is of no consequence. In Kalyanji Mavji and Co. v. Commissioner of Income-tax : [1976]102ITR287(SC) their Lordships of the Supreme Court have held while interpreting Section 34(1)(b) of the Income-tax Act, that the word 'information' used in that section is of the widest amplitude and comprehends a variety of factors. I see no reason for restricting the scope of ' information ' for purposes of suo motu action under Section 10 of the M. R. T. P. Act. So long as the Commission is satisfied that the mischief complained against is such which requires an enquiry to be made under the provisions of Section 37 of the Act, I see no ground why the hands of the Commission should be fettered by proposing conditions and limitations which do not exist in the statute. A defective complaint, in my opinion, will certainly be a more reliable piece of information conveyed to the Commission than a mere anonymous letter or a pseudonymous letter. If the Commission can take suo motu action on an information conveyed through such letters or briefings, there is no reason why a defective complaint should be excluded so as to deprive the Commission of its jurisdiction to proceed suo moto under Section 10(a)(iv) of the M. R. T. P. Act. It is true that while exercising jurisdiction under Section 10(a)(i) read with Section 11 it is mandatory for the Commission to direct the preliminary investigation to be made by the Director before it decides to proceed upon enquiry into the complaint, but there is no provision in the Act which disentitles the Commission to embark upon a similar enquiry under Section 10(a)(iv) of the M. R. T. P. Act, for the purpose of satisfying itself that the contents of the defective complaint or the anonymous letter or the pseudonymous letter or the information otherwise received is such which can be enquired into under Section 37 of the Act. Needless to say that the complaint itself might prima facie be deemed sufficient by the Commission to justify an enquiry to be made under Section 37 of the Act. Whether such an action on the part of the Commission is justified and can be gone into by the court exercising jurisdiction is a separate matter which would be dealt with, if necessary, at the appropriate stage. But, so far as the jurisdiction of the Commission for taking action under Section 10(a)(iv) of the M. R. T. P. Act on the filing of the defective complaint is concerned, I have no doubt that the Commission does possess such jurisdiction and no error of law has been committed by the Commission in taking such action.

15. The most serious question which has been very hotly contested by the counsel for the parties is :

' Whether the September agreement has the approval of the Central Government and, if so, whether it can constitute a subject-matter of enquiry under 37 of the M. R. T. P. Act ?'

16. On this question there has been a difference of opinion between Mr. Jhala and the other two Members of the Commission, the former being of the view that the agreement has the Government's approval. Admittedly, there is no formal order of the Government according its approval to the September agreement. The question, therefore, is :

' Whether the non-existence of this formal order would be fatal to the approval of the Government which can be spelt out from the circumstances of the case? '

17. In other words, the point of dispute was :

' Whether there was an approval of the agreement in question by the Central Government and, if so, whether such approval provided immunity from any enquiry under Section 37 of the Act '

18. On behalf of the petitioner it has been argued that Articles 77 and 166 of the Constitution of India are merely directory, that all executive decisions are not required to be expressed in the form of an order authenticated in the manner prescribed, and that authentication of the order merely gives an immunity but its absence, is not fatal to the validity of the decision. The petitioner's counsel has submitted that on the principle of collective responsibility of the Cabinet, a statement by a Minister on the floor of the House is the decision of the Cabinet and the President of India. On the other hand, the respondents' counsel contends that unless a decision is taken in the name of the President and is duly authenticated such a decision was of no consequence. Any statement made by the Minister on the floor of the House is not binding unless duly authenticated.

19. Before dealing with this question reference must be made to certain facts as they emerge from the documents on record. On 19th May, 1973, the Ministry of Commerce, Government of India, New Delhi, suggested to the Textile Commissioner, Bombay, that he may look into the working of the voluntary agreement between the spinners and weavers of Nylon yarn and take such remedial measures as he may consider necessary. On 14th June, 1973, a D.O. letter was sent by Sri K. Ramamurthy, Director, to Shri G. S. Grewal, Director, Ministry of Commerce, New Delhi, indicating that :

' The negotiations between spinners and weavers for a voluntary agreement on price and distribution of indigenous nylon yarn are still continuing and I shall let you know the position as and when some concrete scheme emerges.'

20. On 4th July, 1973, the Textile Commissioner, Kanpur, wrote to Shri H.K. Jain, President, Federation of Hosiery Manufacturers Association, Bombay, as follows :

' At my instance, the hosiery industry will also be a party to this agreement and will also be entitled to get supplies of filament yarn from the spinners..... You may kindly contact Shri M. J. Patwardhan, Deputy Director, in my office for further necessary action.'

21. A telegram referred to on page 342 of the paper book from the CommerceMinistry runs as follows :

' .....cOMMERCE MINISTER MOST ANXIOUS FOR EARLY SETTLEMENT OF PRICES AND DISTRIBUTION ARRANGEMENTS OF NYLON YARN AND RAYON YARN (.) ACCORDINGLY meETING is BEING FIXED AT 11.00 A.m. fOR NYLON YARN AND AT 3.50 P.M. FOR RAYON YARN ON THURSDAY 30TH AUGUST, 1973......(.) REQUEST YOU TO KINDLY CONTACT SPINNERS AND REPRESENTATIVES OF WEAVERS AND OTHER USERS IMMEDIATELY AND REQUEST THEM TO ATTEND MEETING.....'

22. Shri K. Ramamurthy, Director, replied back to the telegram on 26th August, 1973, as follows :

' .....rEGARDING NYLON YARN meETINGS ON 30TH (.) CONTACTINGREPRESENTATIVES OF SPINNERS AND WEAVERS (.)'

23. The documents referred to above clearly indicate that the initiative for convening a meeting for the purpose of regulation of prices with respect to nylon yarn was taken by the Government, acting through the Ministry of Commerce. On 15th October, 1973, a letter from Shri S. K. Bagchi, Textile Commissioner, Bombay, was sent to Dr. C. Rossi, President, Association of Man-Made Fibre Industry, Bombay, relating to the difficulties of small units and referred to the necessity of maintenance of price discipline.

24. These are all the developments with respect to the question in hand, prior to the execution of the September agreement. After the agreement Shri R. Tirumalai, Additional Secretary in the Ministry of Commrce, Government of India, wrote to the Textile Commissioner, Bombay, as under :

' In the background of the availability of 25% of production, netting around 225 per cent. price of the agreed price, the average return per kg. is much higher than the Tariff Commission prices if they were to be imposed on 100% production. It is only to give some relief to the spinners during the present period of acute scarcity of new materials that such a formula had been agreed to by the Government. For some time past, Mani has been having a dialogue with Century Enka and Shree Synthetics and they were clearly agreeable to 40% of their production to be sold under the agreed price. But we do not consider it to be adequate. They should fall in line. In the two hour debate yesterday, there was pressure that these two units should also fall in line and this was voiced by several members. Commerce Minister during the course of his reply to the discussion in the Lok Sabha yesterday, mentioned that he would not be satisfied with 50% contribution from these firms which they were inclined to give. He would like them to go up to 75%. In case they do not fall in line, we will have no alternative but enforcing a discipline among them by taking appropriate measures, as called for. '

25. The statement of the Commerce Minister referred to above was made in the Lok Sabha on 20th November, 1972. It runs as follows :

'...One point is whether certain big industrial houses or companies like Century Enka, Shri Synthetics, Stretch Fibres, etc., will be exempted from the voluntary scheme. My answer is a clear and categorical : No--N Capital and O Capital. I would like to add only two things. The first point is, already Century Enka and Shri Synthetics had agreed to contribute 50 per cent. for this voluntary scheme but they are hesitating for coming forward with 25 per cent. more which is what is the stipulated quantum to be contributed. Their argument has not been acceptable to us and to the Ministry that their production has been relatively small and not competitive, and, therefore, .they may be given a special treatment. We are not persuaded by this argument and, therefore, we stand by our own formula.'

27. On the same day he also observed as under during the course of discussions :

' ...For the benefit of the House I would like to submit that the market price of nylon filament yarn of 20 deniars is 160 rupees per kilogram but the agreed price according to the voluntary agreement is Rs. 74/85. The price of rayon filament is about Rs. 8 a pound for the 120 deniar. 60 per cent. of it is being sold at that price while 10 per cent. of it is being sold at about Rs. 6. The open market price of the same is Rs. 22.50. 29.5 per cent. of it is being sold at that price. The agreed price of viscose staple fibre spun yarn 20 counts is Rs. 11.20 per kilogram. The open market prices of the same is Rs. 34 a kilogram. As the figures will indicate, the Government intervened and brought down the price very significantly...'

28. Further, during the course of proceedings, he observed as under :

' In fine, I would like to say that I believe that when raw materials like DMT and caprolactum are produced indigenously and the research and development efforts of our local spinners are applied, this industry will be placed on a stable footing and our reliance on the imported machinery and raw materials will be reduced considerably. Meanwhile, it will be our endeavour to see that the voluntary agreement in the field of nylon yarn works and defaulters are brought to book.'

29. Another telex message quoted on page 348 of the paper book indicates that the Commerce Minister desires to meet the representatives of Century Enka, Bombay, and Shri Synthetics, Calcutta, between 16th and 20th January in connection with the agreement between the spinners and weavers. The telex message quoted at page 350 of the paper book dated July 5,1974, from Sri K. Ramamurthy, Director, to Sri G. S. Grewal, Director, Ministry of Commerce, New Delhi, indicates that an agreement for voluntary control of price distribution was signed by Century Enka and AIMMTAMA the previous evening. The letter dated 16th July, 1974, sent by Sri S. K. Bagchi to Sri S. G. Bose Mallick, Secretary to the Government of India, Department of Export Production, Ministry of Commerce, New Delhi, indicates that there was a voluntary agreement for the price discipline and distribution of nylon yarn existing between the four principal spinners on the one hand and various associations of nylon consumers on the other. These arrangements envisage discipline over a 75% of the production of nylon yarn of the four units and their eventual distribution through various associations to actual consumers.

' It was our endeavour to bring these two parties, namely, M/s, Century Enka and Shree Synthetics into the fold of this agreement so that they also follow the same discipline as the others..... We had also asked the managing director of Shree Synthetics to follow the example of Century Enka in the matter of price discipline. They did not seem to be agreeable to adopta similar course of action.....Shree Synthetics is not an exception.....

In our opinion it is, therefore, desirable for the Government to intervene at this stage instead of allowing the matter to draw on further.'

30. On page 356 of the paper book we find a reference to the draft order issued to Shree Synthetics Ltd., Ujjain, under Clause 6 of the Art Silk Textiles (Production and Distribution) Control Order, 1962, directing the said producers of this yarn to sell or deliver such yarn only to the Central Nylon Committee, Bombay, or any other nominee of the Textile Commissioner.

31. On page 359 of the paper book we find another order issued by the Textile Commissioner to Shree Synthetics Ltd., Ujjain, in connection with the sale of yarn. There are yet other orders of the Textile Commissioner issued to Shree Synthetics, Ujjain, on pages 360 and 362 of the paper book. By the issuance of these orders it is clear that a statutory coercion was being exercised on Shree Synthetics for becoming a party to the agreement. Ultimately, the letter of Sri A. K. Charidra, Joint Textile Commissioner, to Shri M. Narayanaswami, Joint Secretary, Ministry of Commerce, New Delhi, dated 13th September, 1974, indicates that Shree Synthetics, Ujjain, agreed to sign the voluntary agreement on 9th August, 1974.

' In view of this development, it is now felt that the proposed statutory control may not be necessary at present.....'

32. In the background of the above facts, it has to be considered whether the September agreement has the approval of the Government. It is true that there is no formal order recording the approval of the President of India duly authenticated in the manner required by Article 77 of the Constitution of India. If there was such an order there would be no dispute. The question, however, is :

' Whether in the absence of such a formal order approval of the Government can be spelt out from the circumstantial evidence ?'

33. In this connection some citations require to be referred to.

34. In State of U. P. v. Om Prakash Gupta AIR 1970 SC 679 while considering Article 166(1) of the Constitution of India, which is applicable to the States and the language of which is akin to Sub-sections (1) and (2) of Section 59 of the Government of India Act, the Supreme Court held as follows (page 684) ;

' This court has repeatedly held that the provisions of Article 166(1) and (2) (similar to Sub-sections (1) and (2) of Section 59 of the Government of India Act, 1935) are directory and substantial compliance with those provisions is sufficient.'

35. In R. Chitralekha v. State of Mysore : [1964]6SCR368 , which has been relied upon by the petitioner's counsel and which is based upon an earlier decision of the Supreme Court reported in : 1952CriLJ955 (Dattatraya Moreshwar v. State of Bombay), it has been held as follows (See : [1964]6SCR368 ) :

''Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself......

Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under Section 11(1).'

36. Reference has also been made to another decision of the Supreme Court . reported in : 1952CriLJ1269 (Stale of Bombay v. Purushottam Jog Naik). It has been observed therein as under (page 318) :

'The short answer in this case is that the order under consideration is ' expressed ' to be made in the name of the Governor because it says ' By order of the Governor '. One of the meanings of ' expressed ' is to make known the opinions or the feelings of a particular person and when a secretary to Government apprehends a man and tells him in the order that this is being done under the orders of the Governor, he is in substance saying that he is acting in the name of the Governor, and, on his behalf, is making known to the detenu the opinion and feelings and orders of the Governor. In our opinion, the Constitution does not require a magic incantation which can only be expressed in a set formula of words. What we have to see is whether the substance of the requirements is there.'

37. The learned counsel on the basis of these decisions has drawn a clear distinction between an ' executive action ' and an 'executive decision'. In the instant case the contention is that the ' executive decision ' which has been taken by the Government and expressed on the floor of the House by the Commerce Minister did not require formal authentication. Learned counsel has again referred to a Division Bench case of this court reported in : AIR1964All327 (Nandan Singh Bhist v. State of U. P.). It has been held therein as follows (page 328) :

' The second contention on behalf of the learned counsel for the applicant was that under Article 166 of the Constitution every action of the Government must be expressed in the name of the Governor and the order continuing the detention of the applicant should, therefore, also be in the name of the Governor. The contention of the learned counsel is not applicable to this case as Sub-rule (9) of Rule 30A of the Defence of India Rules, 1962, does not require any formal expression of the decision. All that is necessary is that the Government should decide whether the original order of detention should continue or it should be cancelled. // it had been necessary to ' express ' it is an order that the proposed article would have become applicable but where only a decision has to be taken and no order has to be for-malty expressed the article does not apply.'

38. A case which comes nearer to the point in issue has also been reported in : AIR1971MP71 ' (Ali Ahmad and Sons v. Brij Kishore Pateria). It has been observed therein as follows (page 73) :

'A proper compliance with the requirements of Article 166 of the Constitution gives immunity to the order in the sense that it cannot be challenged in the court of law on the ground that it is not an order of the Governor. If the requirements of the said article are not complied with, the resulting immunity cannot be claimed by the State but that by itself does not nullify the order if it appears from other material that such a decision in fact was taken by the Government (See Dattatraya Moreshwar v. State of Bombay : 1952CriLJ955 ). The learned Government advocate placed before us the original file of the appeal which clearly shows that the said order had been made by the Minister of State (Home) who had jurisdiction to pass the orders challenged before us.'

39. Reference in this connection may lastly be made to an English case reported in [1958] 1 QB 380 (QB) (Union Castle Mail Steamship Co. Ltd. v. United Kingdom Mutual War Risks Association Ltd.).

40. In that case the plaintiffs-shop-owners insured two of their ships under the Standard Form of War Risks Time Policy on Hull and Machinery issued by the defendants. The Clause 1 of the policies read as under :

1. This insurance is only to cover the following, namely :.....

' f ' Expenses incurred by the assured by reason of : (1) the detention of the insured ship in pursuance of the orders or directions or with the approval of the committee or of any British Government department or official or British Military authority given in order to avoid loss of or damage to the insured ship by any peril hereby insured ; (2) prolongation of the voyage arising out of compliance with such orders or directions, or with such approval as aforesaid ;.....' (page 382)

41. The ships in question sailed from London on 26th September and 17th October, respectively. On 30th October, 1956, the British Admiralty issued the following statement :

' In view of the situation between Israel and Egypt, merchant shipping is advised, for the time being and until further notice, to keep clear of the Suez Canal and Egyptian and Israeli waters.' (page 383)

42. The plaintiffs ordered their ships to sail back by the Cape route and they notified the defendants of the divergence. On a claim by the plaintiffs under the policies, it was held by the court that the plaintiffs were entitled to rely on the Admiralty warning as a standing approval by the British Government department of all such steps taken by them as it had taken to heed the advice contained in the warning. For coming to this conclusion Diplock J. observed as under at page 397 :

' Whether a particular step is taken with the approval of the Government authority is a question of fact. The approval need not be given in any particular form ; it may be given in advance ; it may---although it does not arise in this case--be given, I think, retrospectively ; it may be given generally to all ships or specifically to individual ships. If advice is given by the Admiralty to ships generally, steps taken in accordance with that advice are, in my view, taken with the approval of the Admiralty within the meaning of the clause.'

43. The facts of this English case go a very long way in supporting the contention of the petitioner's counsel. In this case there was a warning by the Government agency which was in the nature of an advice ; even that was held binding on the Government. In the instant case the facts detailed above stand on a much stronger footing. The September agreement had been initiated by the Government. Its meetings were convened on the direction of the Government. Its decision was taken in the presence of a representative of the Government. Senior officers of the Government have referred to the decision of the Government being in agreement with the formula which forms the basis of the September agreement. The Commerce Minister in charge of the Ministry defended the September agreement in Parliament. From the record it is crystal clear that the spinners who had not been the signatories of the agreement were brought to book. They were all brought in line. Clause 32 of the agreement is to the effect that the parties to the agreement had been assured by the authorities that all effective steps would be taken by them so as to control the nylon spinners who are not signatories to the agreement to join the agreement. Two of them were subsequently brought to book on threat of control orders being issued against them on the lines of the September agreement. Clause 34 of the agreement provides that in the event of any spinner or actual users' association party to the agreement failing to abide by the terms of the agreement the remaining parties to the said agreement would join in any representation to the concerned authorities, if and when so desired by the party agreement. According to the agreement the forum for the redress of the grievances arising from the implementation of the agreement were the authorities concerned, i.e., the Government. In the background of these established facts it cannot be said that the September agreement did not have the approval of the Government.

44. I find from a perusal of the impugned order passed by the Commission that two of its Members have expressed the opinion that :

' Approval of the Central Government under Section 33(3) should normally have been given by the Minister or appropriate officer in charge of the Department of Company Affairs and not by the Commerce Ministry as is claimed by the respondents. This is one more factor indicating that there is no such approval ' [1976] 46 Comp Cas 357.

45. In this connection the respondents' counsel has referred to the Government of India Allocation of Business Rules, 1961, as amended up to 11th October, 1973. Counsel for the petitioner has pointed out that the approval of the September agreement was given in 1973, but the Rules as amended on 11th October, 1974, have been placed before this court. He submits that from the Appendix it is clear that there have been 106 amendments to these Rules. I find that amendments at serial Nos. 103 to 106 have been made after the execution of the agreement in question, i.e., on 9th September, 1973. Counsel for the respondents has not placed these subsequent amendments before me, which might have clarified the correct position with regard to allocation of business as it existed on the date of the execution of the September agreement. In any case the Textile Commissioner has been shown at item No. 6 in the allocation of the business. From the correspondence on the record, to which I have referred above, it can be safely presumed that he is the competent statutory authority to deal with the regulation of process and equitable distribution of textiles. A persual of the Rules indicates that in substance the power is vested in the Commerce Ministry to deal with the production, distribution and development of textiles. The execution related only to industrial production (which was assigned to the Ministry of Petroleum and Chemicals) and not the distribution. Distribution of all textiles including silk and non-cellulosic synthetic fibres remained within the realm of the Commerce Ministry's functions. The Textile Commissioner himself is, under the Rules, within the Ministry of Commerce and he has the responsibility for securing equitable distribution of silk and non-cellulosic fibres under the Essential Commodities Act and under the Art Silk Textiles (Production and Distribution) Control Order, 1962. All aspects of nylon relating to price control and distribution are dealt with by the Ministry of Commerce.

46. Moreover, even under Section 114(e) of the Evidence Act, there is a presumption that judicial and official acts have been regularly performed. Such a presumption, however, can be rebutted. But no effort has been made on behalf of the State to rebut this presumption. Mr. K. Rama-murthy, Director of Art Silk Branch, Textile Commissioner, Bombay, appeared as a witness before the Commission. From a persual of his statement I find that not a single question has been put to him which could indicate that, with respect to the regulation of price and distribution of nylon yarn the jurisdiction did not lie with the Commerce Minister but with the Minister for Justice and Company affairs. It does not, therefore, lie in the mouth of the contesting respondents to urge that the Minister of Commerce did not have jurisdiction to make a statement on the floor of the House with respect to the matter in question and as such the Government is not bound by any decision which has been taken thereon.

47. Under Article 75(3) of the Constitution of India the Council of Ministers is collectively responsible to the Houses of the People. The principle of collective responsibility means that the decision or action taken by any Minister is the decision of all of them. It has been held very explicitly by the Supreme Court in Samsher Singh v. State of Punjab : (1974)IILLJ465SC that the decision taken by any Minister in the Cabinet is the decision of the President. That is the essence of collective responsibility of the Cabinet System of Government.

48. For the reasons given above, I am of the opinion that the September agreement had the requisite approval of the Government and as such it cannot constitute the subject-matter of an enquiry under Section 37 of the M. R. T. P. Act.

49. The next important question which has been very hotly contested in this court is that : In view of the fact that the September agreement has expired on 31st August, 1975, and has not been renewed thereafter, the Commission had no jurisdiction to continue the enquiry under Section 37 of the Act. Paragraph 1 of the September agreement (annexure ' A ') is as follows :

' This agreement shall be deemed to have come into effect from 1st September, Nineteen hundred and seventy-three and shall remain in force up to 31st August, Ninteen hundred and seventy-five and may be extended thereafter with mutual consent of both the parties to this agreement.....'

50. It is not disputed by the respondent that the September agreement has come to an end as alleged by the petitioner. It is the admitted case of the parties that so far only preliminary issues have been decided by the Commission and the final enquiry under Section 37 of the M.R.T.P. Act has yet to be conducted. The decision of the Commission was given on 21st October, 1974, The present writ petition was filed in this court on 11th December, 1974. Since then the writ petition is pending in this court. There can be no dispute that if this writ petition is dismissed the Commission will embark upon an enquiry under Section 37 of the Act. A question, therefore, arises : Whether this court should permit the continuance of an enquiry under Section 37 of the Act, now when the entire agreement which forms the basis of the enquiry, has ceased to exist since 31st August, 1975. From a perusal of the complaint dated 30th November, 1973, it is clear that no other restrictive trade practice forms the subject-matter of the instant enquiry independent of the agreement dated 9th September, 1973. This position has been affirmed in the order of the Commission dated 5th March, 1974 (annexure ' C '), wherein it has been observed as follows [ An Agreement relating to Nylon Filament Yarn, In re [1975] 45 Comp Cas 646 :

'Corning to the prayers in the application we find that the Crimpers Association merely furnished information with regard to the making of the agreement dated the 9th September, 1973..... It is the operation, working and giving effect to the provisions of this agreement alone which leads to the restrictive trade practices set out in the notice issued under regulation 7.'

51. No restrictive trade practice apart from the agreement has thus been pleaded. We have now to consider whether the extinction of this agreement by efflux of time can form the basis for quashing the enquiry proceed-ings pending before the Commission under Section 37 of the M.R-.T.P. Act. In this connection it would be pertinent to refer to certain sections of the M.R.T.P. Act.

52. Section 2(u) of the Act defines ' trade practice ' as follows :

' ' trade practice ' means any practice relating to the carrying on of any trade, and includes-

(i) anything done by any person which controls or affects the price charged by, or the method of trading of, any trader or any class of traders, (ii) a single or isolated action of any person in relation to any trade.' Clause 2(o) defines a ' restrictive trade practice ' as follows : '' Restrictive trade practice ' means a trade practice which has, or may have, the effect of preventing, distorting or restricting competition in any manner and in particular,-- (i) which tends to obstruct the flow of capital or resources into the stream of production, or (ii) which tends to bring about manipulation of prices, or conditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the consumers unjustified costs or restrictions.'

53. Section 33 of the Act, which relates to the registration of agreement relating to restrictive trade practices, runs as follows ;

' 33. (1) Any agreement relating to a restrictive trade practice falling within one or more of the following categories 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 ;.....

(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 ;.....

(j) any agreement to sell goods at such prices as would have the effect of eliminating competition or a competitor ;.....'

54. Section 37, which refers to investigation into restrictive trade practices by the Commission, reads as follows :

' 37. (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.....'

55. Reference may also be made to Section 38 of the Act, which deals with the presumption as to the public interest and also the gateways which provide an exception to that section :

' 38. (1) For the purposes of any proceedings before the Commission under Section 37, a restrictive trade practice shall be deemed to be prejudicial to the public interest unless the Commission is satisfied of any one or more of the following circumstances, that is to say-

(a) that the restriction is reasonably necessary, having regard to the character of the goods to which it applies, to protect the public against injury (whether to persons or to premises) in connection with the consumption, installation or use of those goods ;

(b) that the removal of the restriction would deny to the public as purchasers, consumers or users of any goods, other specific and substantial benefits or advantages enjoyed or likely to be enjoyed by them as such, whether by virtue of the restriction itself or of any arrangements or operations resulting therefrom ;.....

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.....'

56. From a very close scrutiny of all these sections there can be no doubt that the restrictive trade practice which is intended to be enquired into and prevented from being repeated must exist in praesenti. As a matter of fact, Section 37(1) referred to above confirms the conclusion that after the completion of the enquiry the Commission is empowered to direct that the practice shall be discontinued or shall not be repeated. As mentioned above, the agreement in question has ceased to exist after 31st August, 1975. In these circumstances, I am of the opinion that it would be futile for the Commission to enter upon an enquiry into the question whether the September agreement amounts to a restrictive trade practice which should be discontinued or should not be repeated.

57. My above conclusions are further fortified by a comparative analysis of the various relevant sections of the English law as embodied in the Restrictive Trade Practices Act, 1956. The relevant portion of Section 20 of the English law runs as follows :

'20. (1) The court shall have jurisdiction, on application made in accordance with this section in respect of any agreement of which particulars are for the time being registered under this part of this Act, to declare whether or not any restrictions by virtue of which this part of this Act applies to the agreement (other than restrictions in respect of matters described in paragraphs (b) to (d) of Sub-section (8) of section eight of this Act) are contrary to the public interest.

(2) An application to the court under the last foregoing sub-section may be made-

(a) in any case, by the Registrar,

(b) in a case where an order in respect of the agreement is in force against any person under Sub-section (2) of section eighteen of this Act, by that person :.....

(3) Where any such restrictions are found by the court to be contrary to the public interest, the agreement shall be void in respect of those restrictions ; and without prejudice to the foregoing provision the court may, upon the application of the Registrar, make such order as appears to the court to be proper for restraining all or any of the persons party to the agreement who carry on business in the United Kingdom-

(a) from giving effect to, or enforcing or purporting to enforce, the agreement in respect of those restrictions ;

(b) from making any other agreement (whether with the same parties or with other parties) to the like effect......

(5) The powers of the court under this section shall not be affected by the determination of an agreement effected, after the commencement of the proceedings, and where an agreement is varied after the commencement of the proceedings, the court may make a declaration and, if it thinks fit an order under subsection (3) or subsection (4) of this section, either in respect of the agreement as at the commencement of the proceedings or in respect of the agreement as varied, or both.'

58. Side by side with the aforesaid Section 20 of the English Act, it would be necessary to quote Section 37 of the M.R.T.P. Act, 1969, as it prevails in our country :

37. (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..... '

59. The most significant distinction between the English and the Indian law is that the power of the restrictive practices court to judicially investigate into the registered agreements is not affected by the determination of agreement effected after the commencement of the proceedings. This is clear from Section 20(5) of the Restrictive Trade Practices Act, 1956. There is no such corresponding provision in the Indian Act. Section 37 of the M.R.T.P. Act, 1969, empowered the Commission to enquire into any restrictive trade practice whether the agreement is registered or not, and if it holds that the trade practice is prejudicial to the public interest, it can direct that the practice be discontinued or be not repeated. The agreement relating thereto shall be void in respect of such restrictive trade practice or shall stand modified thereon, as may be specified in the order. The Indian legislature having deliberately omitted to incorporate a provision akin to Section 20(5) of the R.T.P. Act, 1956, must be credited with the conscious intention of making a departure from the English law consequently depriving the Commission of its jurisdiction to continue an enquiry with respect to an agreement which has determined after the commencement of such enquiry proceedings under Section 37 of the Act.

60. I have been referred to a decision in Associated Newspapers Ltd. v. Registrar of Restrictive Trade Agreements [1964] 1 WLR 31 : [1964] 1 All ER 55 (HL). Lord Reid, while interpreting the relevant provisions of the English law on restrictive trade practices and considering the question whether an agreement which is terminated before the Registrar takes proceedings should be enquired into or not, has observed as follows :

'There is no provision in the Restrictive Trade Practices Act, 1956, which deals expressly with agreements which have been terminated before the Registrar takes proceedings. This may seem surprising as we were told that there are a great many agreements entered in the register which have been terminated.....Section 20 confers jurisdiction 'in respect of any agreement of which particulars are for the time registered '. The appellants say that the natural meaning of ' agreement' is existing agreements and that, therefore, there is only jurisdiction in respect of existing agreement of which particulars are for the time being registered. The Registrar says that the word is quite capable of referring to extinct agreements, and that the context here shows that it must refer to both live and extinct agreements ; the only limitation is that particulars must be on the register and admittedly particulars of extinct agreements must remain on the register.....Yet Section 20(5) undoubtedly requires the court to deal with all agreements determined or varied after the commencement of proceedings.....

Agreements terminated during the proceedings are expressly dealt with in Sub-section (5). It entitles the court to make an order in respect of such an agreement ' as at the commencement of the proceedings '.....On the whole matter I think that the weight of the arguments in favour of the Registrar is much greater than the weight of those which tell the other way..... '.

61. In the same decision Lord Kvershed has observed as follows [1964] 1 WLR 31 :

' It seems, therefore, inescapable that the intention of Parliament, as made manifest by the first nineteen sections of the Act was to require registration of all agreements of the requisite character made after the coming into force of the Act (and again I confine myself to such agreements) and equally to require the Registrar to bring all such agreements before the restrictive practices court, whether or not they had been subsequently determined.'

62. This decision has been very strongly relied upon by the respondent's counsel, who urges that the determination of the September agreement during the pendency of the writ petition should not oust the jurisdiction of the Commission to conduct such enquiry under Section 37 of the Act. I am, however, not inclined to agree with this submission. Section 20(5) of the English Act has got no parallel corresponding section in the Indian law. The relevant sections of the M.R.T.P. Act, 1969, which I have quoted above, clearly indicate that the intention of the framers of the said Act was to curb those restrictive trade practices which are in existence on the date when the Commission passes the order. It is for this reason that the legislature omitted to include in the M.R.T.P. Act, 1969, a provision similar to Section 20(5) of the R.T.P. Act, 1956 (English). Perhaps the legislature was of the opinion that there was no use flogging a dead horse. For the reasons given above, I am of the opinion that this is a fit case in which a suitable order or direction should be issued quashing the proceedings under Section 37 of the M.R.T.P. Act pending before the Commission.

63. Learned counsel for the petitioner has argued that an agreement which is not registrable is not actionable under Section 37 of the Act. He has addressed elaborate arguments on this question with reference to various sections of the M.R.T.P. Act. He has urged that under Section 33 of the M.R.T.P. Act only certain categories of agreement relating to restrictive trade practices are liable to be registered. Such agreements are required to be registered under Section 35 of the M.R.T.P. Act. His contention is that the September agreement did not require any registration because it had the approval of the Central Government and as such in view of Section 33(3) of the M.R.T.P. Act such an agreement was not registrable. His further contention is that under Section 37 of the M.R.T.P. Act the Commission was authorised to enquire into any restrictive trade practice of which the agreement is guilty, only if such an agreement was registrable and not 'otherwise. In view of the findings which I have recorded above, I do not consider it necessary to deal with this question elaborately. But since the point has been argued the submission can be very adequately repelled by a mere reference of Section 37 of the M.R.T.P. Act. This section lays down that the Commission may enquire into any restrictive trade practice, whether the agreement, if any, relating thereto has been registered under Section 35 or not. The wordings of this section clearly show that registrabi-lity of an agreement is not the criterion which gives jurisdiction to the Commission to conduct the enquiry under Section 37 of the Act. Whether an agreement is registered or not is a question totally different from the requirements of rcgistrability of an agreement. An agreement requiring registration may not be registered. An agreement which does not require registration may be incorrectly registered or may not be registered at all as law does not require it to be registered. In either case, whether registered or not, it can still form the subject-matter of judicial scrutiny by the Commission under section' 37 of the Act. In my opinion, the clear wording of section 37 of the M.R.T.P. Act are an obvious answer to this submission made on behalf of the petitioner.

64. It has also been submitted on behalf of the petitioner that Regulations of 1970 and 1971 were in force on the date when the complaint was filed. Regulations, 1974, came into force subsequently. The Registrar was entitled to participate in the proceedings before the Commission, whereas in Regulations, 1974, the Director was authorised to participate in such proceedings. In this connection the contention is two-fold. In the first place it is urged that in view of paragraph 87(2) of 1974 Regulations, which is to the following effect :

' 87. (2) The repeal of the Restrictive Trade Practices (Enquiry) Regulations, 1970, and the Monopolies and Restrictive Trade Practices Regulations, 1971, shall not affect the previous operation of the Regulations so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligation or liability acquired, accrued or incurred under the said Regulations, or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability and all investigations and legal proceedings shall be continued or enforced as if the present Regulations had not been made. ',

the present proceedings should be conducted in accordance with Regulations, 1970 and 1971.

65. The second argument is that under Section 2(n) of the M.R.T.P. Act, 1969, the ' Registrar ' means the Registrar of Restrictive Trade Agreements appointed under Section 34, whereas under Section 2(c) of the M.R. T. P. Act, the ' Director ' means ' the Director of Investigation appointed under Section 8 ' of the Act. Under Section 8 the Central Government may, in consultation with the Commission, appoint a Director of Investigation for making investigation for the purposes of this Act. The submission is that the Director of Investigation would be a limb of the Commission and as such he could not act both as the judge as well as the prosecutor in the investigations conducted by him. In view of the findings which have been recorded by me, I do not think it is necessary to deal with this question also in great detail. In the instant case, I am of the opinion that the question does not arise. As is evident from a perusal of Section 2(a) read with Section 8 of the M.R.T.P. Act, the Director of Investigation, as the name itself indicates, has been authorised to make investigation for purposes of the Act. His right of -appearance is limited to those cases where he has to conduct investigation for the purposes of this Act. Though under regulation 25(1) of the 1974 Regulations, he is entitled also to appear in all enquiries under Chapters 4 and 6 of the Act, yet he is not in overall charge of the proceedings. He is not the Commission itself. Learned counsel has pointed out certain acts of appearance on the part of the Director. In my view, even if we assume, without deciding finally the applicability of the Regulations of 1974, that this appearance of the Director is not strictly in accordance with law, yet I do not find any prejudice being caused to the petitioner as a result of this appearance. The enquiry under Section 37 of the Act has not yet begun and, in my view, this ground would not be sufficient to entitle the petitioner for quashing the proceedings.

66. Counsel for the petitioner has very vehemently criticised the notice dated 30th November, 1973, annexure ' B ', which has been issued under regulation 7 of the 1970 Regulations. He has urged that this notice is vague, uncertain, conjectural and lacking in sufficient materials. The restrictive trade practice which has been alleged against the petitioner is that which flows from the terms of the agreement itself. Since this agreement is no longer in existence and the proceedings pending before the Commission have to be quashed, the notice issued to the petitioner in pursuance of, the agreement has also to be quashed.

67. For the reasons given above, this writ petition is allowed. A writ of certiorari shall issue quashing the impugned judgment and order of the Commission dated 21st October, 1974, amiexure ' D' (collectively) and the order dated 5th March, 1974, annexure ' C ', as also the notice dated 30th November, 1973, annexure ' B '. A writ of mandamus is also issued directing respondents Nos. 1 to 4 to cancel the notice dated 30th November, 1973, annexure ' B'. A writ of prohibition is further issued prohibiting respondents Nos. 1 to 4 from proceeding further pursuant to the notice dated 30th November, 1973, annexure ' B ', and the order, dated 5th March, 1974, and 21st October, 1974, The petitioner is entitled to its costs.


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