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MONOPOLIES AND RESTRICTIVE TRADE PRACTICES ACT, 1969
54 of 1969
An Act to provide that the operation of the economic system does not result in the concentration of economic power to the common detriment, for the control of monopolies, for the prohibition of monopolistic and restrictive trade practices and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Twentieth Year of the Republic of India as follows:-
SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be called the Monopolies and Restrictive Trade Practices Act, 1969.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may,1[by notification], appoint.
SECTION 02: DEFINITIONS
In this Act, unless the context otherwise requires,-
(a) "agreement" includes any arrangement or understanding, whether or not it is intended that such agreement shall be enforceable (apart from any provision of this Act) by legal proceedings ;
(b) "Commission" means the Monopolies and Restrictive Trade Practices Commission established under section 5-;
(c)2["Director General" means the Director General of Investigation and Registration appointed under section 8-, and includes any Additional, Joint, Deputy or Assistant Director General of Investigation and Registration appointed under that section;]
(d)3["dominant undertaking" means-4[***]
5[( iii) an undertaking which, by itself or along with inter-connected undertakings produces, supplies, distributes or otherwise controls not less than one-fourth of the total goods that are produced, supplied or distributed in India or any substantial part thereof; or]
(iv) an undertaking which provides or otherwise controls not less than one-fourth of any services that are rendered in India or any substantial part thereof].
6[***]
(i) the average annual production of the goods, or the average annual value of the services provided, by the undertaking during the relevant period; and
(ii) the figures published by such authority as the Central Government may, by notification, specify, with regard to the total production of such goods made, or the total value of such services provided, in India or any substantial part thereof during the relevant period.]-
(i) the total goods13[***] that are produced in India by that undertaking; or
(ii) the total goods13[***] that are produced, supplied or distributed in India or any substantial part thereof;]
14[(da) "financial institution" means,-
(i) a public financial institution specified in or under section 4A of the Companies Act, 1956 (1 of 1956)-;
(ii) a State Financial, Industrial or Investment Corporation;
(iii) the State Bank of India or a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959);
(iv) a nationalised bank, that is to say, a corresponding new bank as defined in section 2-of-
(i)the Banking Companies (Acquisition and Transfer of Under- takings) Act, 1970 (5 of 1970)-; or
(ii)the Banking Companies (Acquisition and Transfer of Under- takings) Act, 1980 (40 of 1980)-;
(v) the General Insurance Corporation of India established in pursuance of the provisions of section 9 of the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972)-;
(vi) the Industrial Reconstruction Corporation of India; or
(vii) any other institution which the Central Government may, by notification, specify in this behalf;]
15[(e) "goods" means goods as defined in the Sale of Goods Act, 1930(3 of 1930)-, and includes,-
(i) products manufactured, processed or mined in India;
17 [(ii) shares and stocks including issue of shares before allotment;]
(iii) in relation to goods supplied, distributed or controlled in India, goods imported into India;]
(ee)16[***]
18 [(ef) "group" means a group of-
(i) two or more individuals, associations of individuals, firms, trusts, trustees or bodies corporate (excluding financial institutions), or any combination thereof, which exercises, or is established to be in a position to exercise, control, directly or indirectly, over any body corporate, firm or trust; or
(ii) associated persons.
(III) where any person is an associated person in relation to another, the latter shall also be deemed to be an associated person in relation to the former;]
(f) "India" means, for the purposes of this Act, the territories to which this Act extends;
(ff)19[**]
(fff)19[***]
(g) "inter-connected undertakings" means two or more undertakings which are inter-connected with each other in any of the following manner, namely:-
(i) if one owns or controls the other,
(ii) where the undertakings are owned by firms, if such firms have one or more common partners,
20[(iii) where the undertakings are owned by bodies corporate,-
(a) if one body corporate manages the other body corporate, or
(b) if one body corporate is a subsidiary of the other body corporate, or
(c) if the bodies corporate are under the same management, or
(d) if one body corporate exercises control over the other body corporate in any other manner;]
(iv) where one undertaking is owned by a body corporate and the other is owned by a firm, if one or more partners of the firm,-
(a) hold, directly or indirectly, not less than fifty per cent of the shares, whether preference or equity, of the body corporate, or
(b) exercise control, directly or indirectly, whether as director or otherwise, over the body corporate,
(v) if one is owned by a body corporate and the other is owned by a firm having bodies corporate as its partners/if such bodies corporate are under the same management21[***],
(vi) if the undertakings are owned or controlled by the same person or22[by the same group],
(vii) if one is connected with the other either directly or through any number of undertakings which are inter-connected undertakings within the meaning of one or more of the foregoing sub-clauses.
23[Explanation I: For the purposes of this Act,24[two bodies corporate], shall be deemed to be under the same management,-
(i) if one such body corporate exercises control over the other or both are under the control of the same group or any of the constituents of the same group; or
(ii) if the managing director or manager of one such body corporate is the managing director or manager of the other; or
(iii) if one such body corporate holds not less than25[one-fourth] of the equity shares in the other or controls the composition of not less than25[one-fourth] of the total membership of the board of directors of the other; or
(iv) if one or more directors of one such body corporate constitute, or at any time within a period of six months immediately preceding the day when the question arises as to whether such bodies corporate are under the same management, constituted 26[(whether independently or together with relatives of such directors or the employees of the first mentioned body corporate) one-fourth of the directors of the other; or]
(v) if the same individual or individuals belonging to a group, while holding (whether by themselves or together with their relatives) not less than25[one-fourth] of the equity shares in one such body corporate also hold (whether by themselves or together with their relatives) not less than25[one-fourth] of the equity shares in the other; or
(vi) if the27[same body corporate or bodies corporate belonging to a group, holding, whether independently or along with its or their subsidiary or subsidiaries, not less than one-fourth of the equity shares] in one body corporate, also hold not less than25[one-fourth] of the equity shares in the other; or
(vii) if not less than28[one-fourth] of the total voting power29[in relation to] each of the two bodies corporate is exercised or controlled by the same individual (whether independently or together with his relatives) or the same body corporate (whether independently or together with its subsidiaries); or
(viii) if not less than28[one-fourth] of the total voting power29in relation to] each of the two bodies corporate is exercised or controlled by the same individuals belonging to a group or by the same bodies corporate belonging to a group, or jointly by such individual or individuals and one or more of such bodies corporate; or
(ix) if the directors of the one such body corporate are accustomed to act in accordance with the directions or instructions of one or more of the directors of the other, or if the directors of both the bodies corporate are accustomed to act in accordance with the directions or instructions of an individual, whether belonging to a group or not.
Illustration Undertaking B is inter-connected with undertaking A and undertaking C is inter-connected with undertaking B. Undertaking C is inter- connected with undertaking A; if undertaking D is inter-connected with undertaking C, undertaking D will be inter-connected with undertaking B and consequently with undertaking A: and so on.
(gg)31[***]
(h) "member" means a member of the Commission;
(i) "monopolistic trade practice" means a trade practice which has, or is likely to have, the effect of,-
(i)32[maintaining the prices of goods or charges for the services] at an unreasonable level by limiting, reducing or otherwise, controlling the production, supply or distribution of goods of any description or the supply of any services or in any other manner,
(ii) unreasonably preventing or lessening competition in the production, supply or distribution of any goods or in the supply of any services,
( iii) limiting technical development or capital investment to the common detriment or allowing the quality of any goods produced, supplied or distributed, or any service rendered, in India to deteriorate;
33[(iv) increasing unreasonably,-
(a) the cost of production of any goods; or
(b) charges for the provision, or maintenance, of any services;
(v) increasing unreasonably,-
(a) the prices at which goods are, or may be, sold or re-sold, or the charges at which the services are, or may be, provided; or
(b) the profits which are, or may be, derived by the production, supply or distribution (including the sale or purchase) of any goods or by the provision of any services;
(vi) preventing or lessening competition in the production, supply or distribution of any goods or in the provision or maintenance of any services by the adoption of unfair methods or unfair or deceptive practices;]
34[(j) "notification" means a notification published in the Official Gazette:
(ja) "owner", in relation to an undertaking, means an individual, Hindu undivided family, body corporate or other association of individuals, whether incorporated or not, or trust (whether public or private or whether religious or charitable) who or which owns or controls, the whole or substantially the whole of such undertaking, and includes any associated person who is a constituent of a group and who has the ultimate control over the affairs of such undertaking;]
(k) "prescribed" means prescribed by rules made under this Act;
(l) "price", in relation to the sale of any goods or to the performance of any services, includes every valuable consideration, whether direct or indirect, and includes any consideration which in effect relates to the sale of any goods or to the performance of any services although ostensibly relating to any other matter or thing;
35(ll) "produce" includes manufacture and all its grammatical variations and cognate expressions shall be construed accordingly;]
(m) "register" means the register kept by the36[Director General] under section 36-;
37[(n) "registered consumers' association" means a voluntary association of persons registered under the Companies Act, 1956 (I of 1956)-, or any other law for the time being in force which is formed for the purpose of protecting the interest of consumers generally and is recognised by the Central Government as such association on an application made in this behalf in such form and such manner as may be prescribed;]
(o) "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 planner as to impose on the consumers unjustified costs or restrictions;
(p) "retailer", in relation to the sale of any goods, includes every person, other than a wholesaler, who sells the goods to any other person; and in respect of the sale of goods by a wholesaler, to any person for any purpose other than re-sale, includes that wholesaler;
(q)38[***]
(r) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with39[banking, financing, insurance,40[chit fund, real estate,] transport, processing, supply of electrical or other energy, boarding or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.40 [Explanation: For the removal of doubts, it is hereby declared that any dealings in real estate shall be included and shall be deemed always to have been included within the definition of "service";]
(s) "trade" means any trade, business, industry, profession or occupation relating to the production, supply, distribution or control of goods and includes the provision of any services ;
(t) "trade association" means a body of persons (whether incorporated or not) which is formed for the purpose of furthering the trade interests of its members or of persons represented by its members ;
(u) "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 ;
41[(v) "undertaking" means an enterprise which is, or has been, or is proposed to be. engaged in the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, either directly or through one or more of its units or divisions, whether such unit or division is located at the same place where the undertaking is located or at a different place or at different places.
(a) "article" includes a new article and "service" includes a new service ;
(b) "unit" or "division", in relation to an undertaking includes,-
(i) a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods;
(ii) any branch or office established for the provision of any service.
(x) "wholesaler", in relation to the sale of any goods, means a person who44[sells the goods, either in bulk or in large quantities, to any person for the purposes of re-sale, whether in bulk or in the same or smaller quantities;]
(y) words and expressions used but not defined in this Act and defined in the Companies Act, 1956(1 of 1956)-, have the meanings respectively assigned to them in that Act.
SECTION 02A: POWER OF CENTRAL GOVERNMENT TO DECIDE CERTAIN MATTERS
If any question arises as to whether,-
(a) two or more individuals, trustees, associations of individuals, firms or bodies corporate or any combination thereof, constitute, or fall within, a group, or
(b) two or more undertakings are inter-connected undertakings within the meaning of this Act, or
(c) two or more bodies corporate are under the same management, the Central Government or where the Board of Company Law Administration, constituted under section 10E of the Companies Act, 1956 (I of 1956)-, is, by notification, authorised so to do by the Central Government, that Board, shall decide such question, after giving to the persons concerned a reasonable opportunity of being heard.]
SECTION 03: ACT NOT TO APPLY IN CERTAIN CASES
Unless the Central Government, 46[by notification] otherwise directs, this Act shall not apply to-
(a) any undertaking owned or controlled by a Government company,
(b) any undertaking owned or controlled by the Government,
(c) any undertaking owned or controlled by a corporation (not being a company) established by or under any Central, Provincial or State Act,
(d) any trade union or other association of workmen or employees formed for their own reasonable protection as such workmen or employees,
(e) any undertaking engaged in an industry, the management of which has been taken over by any person or body of persons in pursuance of any authorisation made by the Central Government under any law for the time being in force,
47[(f) any undertaking owned by a co-operative society formed and registered under any Central, Provincial or State Act relating to cooperative societies,
(g) any financial institution.]47[Explanation: In determining, for the purposes of clause (c), whether or not any undertaking is owned or controlled by a corporation, the shares held by financial institutions shall not be taken into account.]
SECTION 04: APPLICATION OF OTHER LAWS NOT BARRED
(1) Save as otherwise provided in sub-section (2) or elsewhere in this Act, the provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force.
(2) Notwithstanding anything contained in section 3-or elsewhere in this Act, so much of the provisions of this Act, as relate to matters in respect of which specific provisions exist in the-
(i)Reserve Bank of India Act, 1934 (2 of 1934)-, or the Banking Regulation Act, 1949 (10 of 1949)-, or
(ii)State Bank of India Act, 1955 (23 of 1955), or the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959), or
(iii)Insurance Act, 1938 (4 of 1938)-, shall not apply to a banking company,
the State Bank of India, or a subsidiary bank, as defined in the State Bank of
India (Subsidiary Banks) Act, 1959 (38 of 1959), or an insurer, as the case may be.
SECTION 05: ESTABLISHMENT AND CONSTITUTION OF THE COMMISSION
(1) For the purposes' of this Act, the Central Government shall establish48[by notification], a commission to be known as the Monopolies and Restrictive Trade Practices Commission which shall consist of a Chairman and not less than two and not more than eight other members, to be appointed by the Central Government.
(2) The Chairman of the Commission shall be a person who is, or has been or is qualified to be, a Judge of the Supreme Court or of a High Court and the members thereof shall be persons of ability, integrity and standing who have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration.
(3) Before appointing any person as a member of the Commission, the Central Government shall satisfy itself that the person does not, and will not, have, any such financial or other interest as is likely to affect prejudicially his functions as such member.
SECTION 06: TERMS OF OFFICE, CONDITIONS OF SERVICE, ETC., OF MEMBERS
(1) Every member shall hold office for such period, not exceeding five years, as may be specified by the Central Government in the notification made under sub-section (1) of section 5-, but shall be eligible for reappointment: Provided that no member shall hold office as such for a total period exceeding ten years, or after he has attained the age of sixty-five years, whichever is earlier.
(2) Notwithstanding anything contained in sub-section (1), a member may-
(a) by writing under his hand and addressed to the Central Government resign his office at any time ;
(b) be removed from his office in accordance with the provisions of section 7-.
(3) A casual vacancy caused by the resignation or removal of the Chairman or any other member of the Commission under sub-section (2) or otherwise shall be filled by fresh appointment.
49[(3A) Where any such casual vacancy occurs in the office of the Chairman of the Commission, the seniormost member of the Commission, holding office for the time being, shall discharge the functions of the Chairman until a person appointed to fill such vacancy assumes the office of the Chairman of the Commission.
(3B) When the Chairman of the Commission is unable to discharge the functions owing to absence, illness or any other cause, the seniormost member of the Commission, if authorised so to do by the Chairman in writing, shall discharge the functions of the Chairman until the day on which the Chairman resumes the charge of his functions.]
(4) No act or proceeding of the Commission shall be invalid by reason only the existence of any vacancy among its members or any defect in the constitution thereof.
(5) The Chairman of the Commission and other members shall receive such remuneration and other allowances and shall be governed by such conditions of service as may be prescribed : Provided that the remuneration of the Chairman or any other member shall not be varied to his disadvantage after his appointment.
(6) In the case of a difference of opinion among the members of the Commission, the opinion of the majority shall prevail and the opinion or orders of the Commission shall be expressed in terms of the views of the majority.
(7) The Chairman of the Commission and50[every other member] shall, before entering upon his office, make and subscribe to an oath of office and of secrecy in such form, insuch manner and before such authority as may be prescribed.
(8)51[The Chairman or any member] ceasing to hold office as such shall not hold any appointment in, or be connected with the management or administration of, any industry or undertaking to which this Act applies for a period of five years from the date on which he ceases to hold such office.
SECTION 07: REMOVAL OF MEMBERS FROM OFFICE IN CERTAIN CIRCUMSTANCES
(1) The Central Government may remove from office any member, who-
(a) has been adjudged an insolvent, or
(b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude, or
(c) has become physically or mentally incapable of acting as such member, or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a member, or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest.
(2) Notwithstanding anything contained in sub-section ( 1 ), no member shall be removed from his office on the ground specified in clause (d) or clause (e) of that sub-section unless the Supreme Court, on a reference being made to it in this behalf by the Central Government, has, on an inquiry held by it in accordance with such procedure as it may specify in this behalf, reported that the member ought, on such grounds, to be removed.
SECTION 08: APPOINTMENT OF DIRECTOR GENERAL, ETC.. AND STAFF OF THE COMMISSION
(1) The Central Government may, by notification, appoint a Director General of Investigation and Registration, and as many Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration, as it may think fit, for making investigation for the purposes of this Act and for maintaining a Register of agreements subject to registration under this Act and for performing such other functions as are, or may be, provided by, or under, this Act.
(2) The Director General may, by written order, authorise one of the Additional, Joint, Deputy or Assistant Directors General to function as the Registrar of agreements subject to registration under this Act.
(3) Every person authorised to function as the Registrar of agreements and every Additional, Joint, Deputy or Assistant Director General shall exercise his powers, and discharge his functions, subject to the general control, supervision and direction of the Director General.
(4) The Central Government may provide the staff of the Commission and may, in addition, make provisions for the conditions of service of the Director General, Additional, Joint, Deputy or Assistant Director General and of the members of the staff of the Commission.
(5) The conditions of service of the Director General or any Additional, Joint, Deputy or Assistant Director General or of any member of the staff of the Commission shall not be varied to his disadvantage after his appointment.]
SECTION 09: SALARIES, ETC., TO BE DEFRAYED OUT OF THE CONSOLIDATED FUND OF INDIA
The salaries and allowances payable to the members and the administrative expenses, including salaries, allowances and pensions, payable to or in respect of officers and other employees of the Commission, shall be defrayed out of the Consolidated Fund of India. Jurisdiction, Powers and Procedure of the Commission
SECTION 10: INQUIRY INTO MONOPOLISTIC OR RESTRICTIVE TRADE PRACTICES BY COMMISSION
The Commission may inquire into-
(a) any restrictive trade practice-
(i) upon receiving a complaint of facts which constitute such practice53[from any trade association or from any consumer or a registered consumers' association, whether such consumer is a member of that consumers' association or not], 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 the54[Director General], or
(iv) upon its own knowledge or information ;
(b) any monopolistic trade practice, upon a reference made to it by the Central Government55[or upon an application made to it by the Director General] or upon its own knowledge or information.
SECTION 11: INVESTIGATION BY DIRECTOR GENERAL BEFORE ISSUE OF PROCESS IN CERTAIN CASES
57[(1) The Commission may, before issuing any process requiring the attendance of the person against whom an inquiry (other than an inquiry upon an application by the Director General) may be made under section 10-, by an order, require the Director General to make, or cause to be made, a preliminary investigation in such manner as it may direct-and submit a report to the Commission to enable it to satisfy itself as to whether or not the matter requires to be inquired into.]
(2) The Director General may, upon his own knowledge or information or on a complaint made to him, make, or cause to be made, a preliminary investigation in such manner as he may think fit to enable him to satisfy himself as to whether or not an application should be made by him to the Commission under58[***]section 10-.
(3) For the purpose of conducting the preliminary investigation under subsection (1), or sub-section (2), as the case may be, the Director General or any other person making the investigation shall have the same powers as may be exercised by an Inspector under sub-section (2) of section 44-.
(4) Any order or requisition made by a person making an investigation under sub-section (1), or sub-section (2), shall be enforced in the same manner as if it were an order or requisition made by an Inspector appointed under section 240-orsection 240A of the Companies Act, 1956 (1 of 1956)-, and any contravention of such order or requisition shall be punishable in the same manner as if it were an order or requisition made by an Inspector appointed under the said section 240-orsection 240A-.]
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