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Civil Miscellaneous Appeal No. 1 of 1984, decided on 18th January, 1987.

Monopolies and Restrictive Trade Practises (Control and Prevention) Ordinance (V of 1970)--

---Ss. 11, 16, 19 & 20--Appeal--Maintainability--Impugned order only directing appellant to get agreement registered within a particular time failing which case of appellant was to be considered for imposition of penalty--Order neither falling within purview of S.11 or S.19 of Ordinance--- Appeal was beyond scope of Section 20 and as such not maintainable.

Maqbool Baqar for Appellant.

S.I.H. Zaidi for Respondent.

Date of hearing: 18th January, 1987.

The appellant was given show-cause notice by the Monopoly Control Authority, the respondent in the case, dated 24-6-1982, inter alia, stating, why action under section 19(1)(a) of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 may not be taken against it as the appellant had executed agreements with M/s. China National Machinery and Equipment Export Corporation, (ii) M/s China National Chemicals Import and Export Corporation and (iii) M/s: Strojimport, Foreign Trade Corporation, Czechoslovakia for sale and distribution of their products and that the agreements contained clauses placing embargo on undertakings to promote sale of similar products and such agreements were registrable under the provisions of Section 16(i)(k)(ii) of the aforesaid Ordinance of 1970 and that the appellant had wilfully failed to register the agreements as required by the aforesaid provisions of the Ordinance and the rules after the appellant appeared and submitted its reply, the respondent passed an order directing the appellant to get agreements registered by 15-1-1984 failing which the case would be considered for imposition of penalty.

It may be pointed out that section 16 of the aforesaid ordinance provides for registration of undertakings individuals and agreements with the respondent Authority in the manner as may be prescribed by the relevant rules and subsection (1), clause (k) refers to agreements for the distribution or sale of any goods which, directly or indirectly, limit the areas in which, or the persons to whom, the product may be re-sold; or prohibits or restricts the distribution or sale of other goods by the distributor; or limits the persons through whom the distributor may distribute or sell such goods. Section 19 of the Ordinance provides for imposition of penalty as under:-

(1) The Authority, may, by order direct ant person or undertaking to pay to the Central Government by way of penalty such sum not exceeding one lakh of rupees as may be specified in the order if, after giving the person or undertaking concerned an opportunity of being heard, it determines that such- person or undertaking--

(a) has failed to comply with any order' of the Authority made under this Ordinance, or has wilfully failed to register a: required by the provisions of this Ordinance, or;

(b) has furnished any information or made any statement to the Authority which he knows or has reason to believe to be false in any material particular;

(2) If any such failure as is referred to in clause (a) of that subsection is a continuing one, the Authority may in the manner provided for in subsection (1) also direct that the person or undertaking guilty of such failure shall pay by way of penalty to the Central Government a further sum which may extend to ten thousand rupees for every day after the first.

(3) A penalty imposed under subsection (1) or subsection (2) shall be recoverable as an arrear of land revenue."

Section 20 of the Ordinance refers to appeals and the same provides:

-Any person aggrieved by an order of the Authority under section 11 or section 19 dray, within sixty days of the receipt of such order, appeal against it to the High Court on any of the following grounds, namely;

(a) that the order is contrary to law or to some usage having the force of law;

(b) that the order has failed to determine some material issue of law or usage having the force of law;

(c) that there has been a substantial error or defect in following the procedure provided in this Ordinance which may possibly have produced error or defect in the order upon the merits. "

As section 20 clearly provides for appeal against an order passed by the Authority under section 11 or 19 of the Ordinance Mr. S. I. H. Zaidi learned counsel for the respondent has raised a preliminary objection that the appeal is not maintainable inasmuch as the order impugned in the appeal neither falls within the ambit of section 11 or 19 of the Ordinance Admittedly the order does not fall within the purview of section 11 of the Ordinance as the section refers to proceedings in case of contravention of section 3 and the order impugned in this appeal does not refer to Section 3. The impugned order also does not fall within the ambit of section 19 of the Ordinance as the same does not impose any penalty on the appellant as yet. The impugned order only directs the appellant to get the agreement registered within a particular time failing which the case of the appellant would be considered for imposition of penalty. Under such circumstances the order passed by the authority cannot be said to fall within the purview of either section 11 or section 19 of the Ordinance and consequently it appears that the appeal is not maintainable. Mr. Maqbool Baqar learned counsel for the appellant contends that since the order passed by the Authority is without jurisdiction an appeal would lie against the same the argument is untenable as the right of appeal is given by the ordinance and as such only such appeals as have been envisaged by the Ordinance itself would be competent. The present appeal being clearly beyond the scope of Section 20, the same is not competent. Consequently this appeal is dismissed as being not maintainable.

M.Y.A./T-10/K Appeal dismissed.

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