(June 1, 2001) 2001 (TLS)124991

2001-DLT-93-180 :: 2001-AD (Del)-5-337

COLGATE PALMOLIVE INDIA PRIVATE LIMITED Vs. UNION OF INDIA

ANIL DEV SINGH

( 1 ) PURSUANT to an advertisement published by the first petitioner in the Hindustan Times dated 15/06/1986 announcing the organisation of a contest known as "the Colgate Healthy Teeth Happy Home Contest", the Monopolies and Restrictive Trade,practices Commission (MRTP) on 16/10/1986 issued a notice of enquiry under Regulation 58 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1974 (for short the Regulations ) to the petitioner calling upon it to comply with the requirements of Regulations 11, 57, 65, 67 and 84a in case it wished to be heard in the proceedings. The notice also stated to the effect that the petitioner had prima facie indulged in an unfair trade practice within the meaning of section 36a (3) (b) of the the Monopolies and Restrictive Trade Practices Act, 1969 (for short the MRTP Act ) thereby causing loss or injury to the consumer and affecting competition. The petitioners being aggrieved of the aforesaid notice filed the instant writ petition.

( 2 ) IT is not disputed that apart from the bald statement contained in the notice that the first petitioner indulged in an unfair trade practice within the meaning of section 36a (3) (b) of the MRTP Act resulting in loss or injury to the consumers, there was, however, no reference to any evidence in support thereof indicating such a loss or injury to the consumers. The notice was not accompanied by any material substantiating the allegation.

( 3 ) AT this stage, it will be convenient to set out section 36a of the MRTP Act, as it stood at the relevant time, to the- extent it has a bearing on the issue in question -

"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, adopts one or more of the following practices and thereby causes loss or injury to the consumer s of such goods or services, whether by eliminating or restricting competition or otherwise, namely :- (1) the practice of making any statement, whether orally or in writing or by visible representation which, - xx xx xx (2 ). . . . . . . . (3) permits - (a ). . . . . . . (b) the conduct of any contest, 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. xx xx xx"

( 4 ) ON a reading of the aforesaid provision, it appears to us that before a trade practice can be dubbed as an unfair Trade Practice , there should be material or evidence to show that the consumer suffered loss or injury due to the adoption of the trade practice for promoting sale, use or supply of any goods or for the provision of any services. The notice in question was not accompanied by any material in support of the allegation that holding of the Colgate healthy Teeth Happy Home Contest caused loss or injury to the consumers. The charge that the first petitioner was called upon to answer gave no details on the basis of which the same was made. Only saying that a trade practice had caused loss and injury was not enough. The material in support thereof was also required to be furnished to the person against whom the charge was levelled. Merely affording an opportunity to the noticee to file a reply to the notice under regulation 58 of the Regulations would be an empty formality in case the noticee is not furnished with the evidence or material on the basis of which it was claimed that the trade practice followed by him caused loss and injury to the consumer. The opportunity provided to file a reply to the notice ought to be real and not illusory. In raymond woollen Mi11s Ltd_. v. Monopolies and Restrictive trade Practices Commission and others. 1982 TAX. L. R. 2590, wherein th