MUKESH MAHESHWARI, JOURNALIST vs DAINIK BHASKAR

THE applicant/complainant has move an application under Section 13(2) of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief) inter alia for revocation of the order massed by this Commission on 13th October 1997. THEreby this Commission has directed the respondent to suspend its prize scheme launched by way of sales promotion of its daily "Dainik Bhaskar" (Indore Edition).

A few facts giving rise to this application deserve to be narrated. The respondent appears to have launched a prize scheme for increasing circulation of its newspaper published from Indore. The prize scheme was for a period from July, 1997 to October, 1997. Under the prize scheme, a coupon would appear on any day in its newspaper with two questions to be answered and a slogan to be coined for the purpose of participation in the prize scheme. Besides, the prize scheme envisaged publication of ten such coupons during the period from July, 1997 to October, 1997. The applicant/complainant has approached this Commission under Section 36B of the MRTP Act charging the respondent therein with adoption of unfair trade practices within the meaning of Section 36(A)(3) thereof on the ground that the aforesaid prize scheme would amount to unfair trade practice for the purposes thereof. The applicant/complainant has also moved one application under Section 12A thereof for an interim relief in the nature of the relief of permanent injunction restraining the respondent from continuing the aforesaid prize scheme and. for directing the respondent forthwith to discontinue the same. By an order passed by this Commission on 13th October, 1997, an interim relief as prayed for came to be granted. The application for interim relief has not come to be disposed of so far in view of the intervening contempt proceeding taken out by and on behalf of the applicant/complainant. The contempt proceeding has come to be disposed of by an order passed by this Commission on 25th August, 1998. The respondent has now moved this application under Section 13(2) of the MRTP Act inter alia for revocation of the aforesaid order passed on 13th October, 1997. It is not possible for me to accede to request for time made by learned Advocate Mr. Rao for the applicant/complainant for filing his reply to the present application, because a copy of the application was served to the applicant/ complainant through his Advocate way back on 2nd November, 1998 and the reply could have been filed in time. It may be noted that learned Advocate Mr. Rao for the applicant/complainant informs me that he has already filed his reply to the present application. No such reply is found on the record of this case. Learned Counsel Mr. Chitale for the respondent informs me that neither the respondent nor its Advocate has received a copy of the so-called reply filed by and on behalf of the applicant/complainant to the present application. Learned Advocate Mr. Rao for the applicant/complainant informs me that the reply was filed thinking that the present application was for review of the order passed by this Commission on 13th October, 1997. I do not think that the prayer could have given any indication that the application was an application for review of the aforesaid order passed by this Commission on 13th October, 1997. The prayer contained in the present application is quite clear for amendment or revocation of the aforesaid order passed on 13th October, 1997. It may be noted that ordinarily request for adjournment might not have been turned down, but for the fact that the respondent is reported to have been accused of betraying the confidence and faith of its readers with respect to the prize scheme. Learned Counsel Mr. Chitale for the respondent has brought to my notice a pamphlet in that regard circulated presumably by the competitor or rival. Besides, according to learned Counsel Mr. Chitale for the respondent, the rival newspaper has floated such scheme for raising its circulation and, by virtue of the aforesaid order passed on 13th October, 1997, the respondent is denied and deprived of such benefit. Be that as it may, since the order passed by this Commission on 13th October, 1997 appears to be operating harshly against the respondent, it would be in the fitness of things to hear the present application after turning down request for adjournment made by learned Advocate. Mr. Rao for the applicant/complainant.

Learned Counsel Mr. Chitale for the respondent has submitted that the present case is covered by the binding ruling of the Hon''ble Supreme Court in the case of H.M.M. Limited v. The Director General, Monopolies and Restrictive Trade Practices Commission reported in VI (1998) SLT 621=AIR 1998 SC 2691, in favour of the respondent. Learned Advocate Mr. Rao for the applicant/complainant has submitted that the aforesaid ruling of the Hon''ble Supreme Court will not be applicable in the present case as the fact-situation therein was quite different from that found in the present case.

IT would be quite proper to look at the aforesaid binding ruling of the Hon''ble Supreme Court for the purpose of appreciating rival contentions. In that case, the appellant before the Hon''ble Supreme Court had floated a scheme by way of sales promotion of its product by the name of "Horlicks". IT was available in bottles of 500 grams. Some of the bottles marketed contained some voucher denoting the gift available to the purchaser of that bottle. The value of the gifts varied from cash prizes from Rs. 20/- to Rs. 100/- and gifts of Hotline appliances worth Rs. 2,000 /-and Hotline Colour TVs. That gift scheme was challenged before this Commission on the ground that it would amount to unfair trade practice falling within the purview of Section 36A(3)(b) of the MRTP Act. This Commission declared the scheme to be hit by the aforesaid statutory provision and passed a ''cease and desist'' order against the appellant before the Hon''ble Supreme Court. The aforesaid order passed by this Commission in that case was challenged before the Hon''ble Supreme Court and it has been held that such scheme would not amount to lottery within the meaning of the aforesaid statutory provision and could not be branded as unfair trade practice. In that result, the order passed by this Commission was set aside. It cannot be gainsaid that the aforesaid ruling of the Hon''ble Supreme Court is binding to this Commission by virtue of Article 141 of the Constitution of India. It is on all fours applicable in the present case. The prize scheme involved in the present case is random publication of coupons in its daily newspaper published by and on behalf of the respondent from the period from July, 1997 to October, 1997. The scheme envisages publication of in all ten coupons during the aforesaid period. According to the scheme, each coupon would contain two questions which are required to be answered and a slogan should be coined as mentioned in the coupon. A selection panel has been designed to examine all these coupons on completion of the scheme and would decide winners for various prizes. It does clearly transpire from the tenor of the scheme that no draw of lots is involved in it. In that view of the matter, the afore said binding ruling of the Hon''ble Supreme Court would govern the fact-situation in this case as well. The aforesaid order passed by this Commission on 13th October, 1997 therefore deserves to be recalled and revoked on this ground alone.

BESIDES, the scheme is certainly designed to increase circulation of the newspaper published by and on behalf of the respondent. The newspaper is priced at Rs. 2/- daily. The scheme would tempt people to purchase the newspaper in question. He would certainly get the reading material for the price paid by him. He would not simply throw it away in the waste-paper basket even if he does not find any coupon in it. It is said that reading makes man wise. Reading of newspapers would also give some information and on occasions some food for thought to its readers. In that view of the matter, even if the scheme is designed to increase circulation of the newspaper published by and on behalf of the respondent, it is in public interests to allow such scheme to continue. As pointed out here in above, the reader of the said newspaper would get the reading material worthy of its price. He would get an additional benefit of participating in the prize scheme on tracing a coupon whenever it is published. That is the additional benefit available to readers. Such additional benefit should not be denied to such readers who would be in the nature of consumers. I therefore think that the balance of convenience in this case would certainly tilt in favour of the respondent. In view of my aforesaid discussion, I am of the opinion that the order passed by this Commission on 13th October, 1997 deserves to be recalled and revoked and the prize scheme should be allowed to continue from the stage from where this Commission passed an order for discontinuance. In the result, this application is accepted. The order passed by this Commission on 13th October, 1997 is recalled and revoked. There shall be no order as to costs on the facts and in the circumstances of the case so far as this application is concerned. Application disposed of.