ORDER
C.M. Nayar, J. (Chairman)
1. The present proceedings arose out of a complaint filed by one Shri Rajendra Jain Nagda. A Notice of Enquiry was issued by the Commission by an order dated 24.5.20001 The Preliminary Investigation Report has been placed on record, The respondent is stated to be a LPG Dealer of Indian Oil Corporation at Nagda, The complainant has alleged that the respondent has sold a LPG cylinder at a higher price than the approved/authorised price fixed by the Indian Oil Corporation. The complainant referred to the inspection of respondent’s godown conducted by the District Food and Civil Supply Department on 9.1.1997. The inspection revealed that the respondent had sold 49 cylinders without issuing any bills to the unauthorised/unregistered consumers. The prevailing price of gas cylinder was Rs. 138.75 and at the time of spot inspection it was found that the respondent had sold 300 cylinders at a price of Rs. 140/- . The averment is made that after taking into consideration rebate of Rs. 2/-the effective price of the cylinder works out to Rs. 136.75 and the respondent over charged Rs. 3.25 per cylinder.
2. The respondent filed reply to the Notice of Enquiry and stated at the outset that the complainant Shri Rajendra Jain is a journalist who is noted amongst other things for blackmailing. He keeps asking for advertisement and donations for his newspaper and allegedly was known for extorting money in the town. Therefore, the respondent was complained against and the present proceedings arose out of such considerations. We may refer the conclusions and recommendations as arrived at in the Preliminary Investigation Report as follows :
“The present complaint dates back to three years which was examined by the local authorities concerned and closed. During the course of the investigation certain fresh material was garnered which has also been considered while arriving at our conclusions. The original complaint for which the Hon’ble Commission had issued order of investigation has been duly examined and our findings have been presented (in detail in the previous pages in the relevant sections). The complaint has also been duly investigated by the concerned State Govt. agencies namely the District Collector and District Food Authorities. The respondent was made to deposit the excess realisations from the sale proceeds of LPG cylinders into the District Treasury. The principal of the respondent namely IOC have also taken note of the complaint and have warned the respondent to act in a fair and just manner consistent with IOC guidelines.
However, it is also to be noted that IOC have also pointed out to the existence of a law and order problem in the service area covered by the respondent’s gas agency. The District Authorities have not commented on this issue which in any case does not appear to have a direct bearing on the complaint under investigation.
In the normal course of events based on the above discussion we would have had no hesitation in recommending the closure of further proceedings in the matter, but the additional information received from the complainant in the second phase, has thrown up a fresh set of allegations against the respondent besides reiterating the earlier complaint. In so far as the earlier complaint is concerned, as already brought out above, we feel that there is no need for a fresh investigation. However, what is really intriguing and potentially damaging to the respondent are the nature of fresh allegations which inter aha include : overcharging from consumers at the time of releasing fresh LPG connections, denial of LPG connections to fresh applicants including bona fide applicants whose delivery dates have matured and an instance of alleged forgery of documents while releasing LPG connections to unregistered persons in place of bona fide/genuine applicants. The above allegations have been supported by photocopies of affidavits. A brief comment on these allegations is presented below :
The allegation of forgery, strictly speaking is in the nature of a criminal complaint which ought to have been taken up with concerned local authorities. However, the allegation of over-charging from customers and denial of LPG connections to bona fide applicants, are serious issues which the Hon’ble Commission can ill-afford to ignore. The Commission is committed to ensure the prevention of restrictive and unfair trade practices by service agencies such as the respondent. A noteworthy feature of the entire investigation is that besides the tenor of allegations and the nature of complaint and the replies made by the respondent are characterised by a sharp degree of acrimony which could be a result of some mutual animosity which may be kept in mind. The complainant is a journalist who according to the respondent is noted for his notoriety viz., resorting to blackmail indulging in yellow journalism etc. Investigation into these specific charges, are not within our charter besides having the risk of submerging the real issues involved. Objectively viewed, we feel that enough material has been presented before the Hon’ble Commission which are of a reasonably serious nature and which points out to a fair measure of doubt. On the nature of service being provided by the respondent to the consumers. We are of the view that reasonable grounds exist for concluding that the respondent appears to be adopting restrictive trade practices such as overcharging of consumers while releasing the new gas connections and for manipulating the conditions of delivery, which fall within the purview of Section 2(o)(ii) of the MRTP Act. We, therefore, submit to the Hon’ble Commission that they may consider issuing a notice of enquiry against the respondent in this matter.”
3. After taking into consideration the above facts and conclusions the following issues were framed on 21.9.2000 :
“(1) Whether the respondent has been indulging in restrictive/unfair trade practices as alleged in the Notice of Enquiry?
(2) Whether the alleged restrictive trade practices are not prejudicial to the public interest?
(3) Whether the alleged unfair trade practices are prejudicial to the interest of consumer/consumers generally?”
4. The matter was sent for trial and the parties led their respective evidence. We have heard Mr. S.P. Pahwa, Advocate for the Director (Research) and Ms. T. Raj Kumari, Advocate for the respondent and perused the relevant record as well as the evidence placed on record. The main allegations which are made against the respondent are stated in the written submission of the respondent which are reproduced as below :
“(1) As per the rules of Indian Oil Corporation, not sent the intimation of allotment of new gas connections to its customers under U.P.C. as a result of which the customers could not take the delivery of their new gas connections.
(2) After the expiry of the maturity date of the allotment when the customer came to know about it and went to the respondent gas agency, it did not hand over the new gas connections to the customers and instead misbehaved with the customers.
(3) Collected more money from the customer but issued receipts only for the due amounts payable for the new connections. If any customer refused to pay more money as demanded by the respondent, then the respondent used to threaten them.
(4) Ignored the customers when hey threaten to make complaint about the alleged activities of the respondent by stating that the higher officials of the IOC etc. are known to the gas agency very well and that no action would be taken against the respondent.”
5. The above averments have been denied by the respondnet and it is categorically stated that the same do not fall within the purview of the Monopolies and Restrictive Trade Practices Act, 1969. The evidence in the nature of cross-examination of Mr. Rajendra Jain of the informant may be referred to as below :
“I filed the complaint to Director (Research) in the capacity of a Journalist. S/Shri Dhananjay Kumar, Rajender Kumar and Radhey Shyam approached me with their grievance and filed their affidavit in respect of their complaint after which I have approached the Commission. I have ascertained the actual rates for new gas connection from the other dealers. I also made inquiries from the office of the Indian Oil Corporation. I have no gas connection till now. I did not receive the letter dated 12.8.1999 either form Indian Oil Corporation or Nagda Gas Agency. It is wrong to suggest that I refused to take the gas connection offered in 1999 by the Indian Oil Corporation (IOC) which was booked in the year 1994. It is wrong to suggest that Shri Rajender Kumar and Shri Radhey Shyam did not take the gas connections from IOC. I am aware of the rates prevalent in the year 1999. It is wrong to suggest that the complaint filed by me is false and frivolous.”
6. The respondent has also filed evidence by way of affidavit by Mr. Manoj Vats who is stated to be proprietor of the respondent Gas Agency wherein the averments made by the informant/Complainant have been denied. It is also brought on record that in some cases such as Mr, Radhey Shyam and Mr. Raj Kumar the amounts charged seemed to be in excess of the amounts which were required to be paid to the respondent, The affidavits of these parties are placed on record. The respondent has also not denied the raid conducted by the Inspector, Food and Civil Supplies on the godown of the respondent, though it is contended that this does not have direct bearing on the case. The excess amount, however, which was discovered was a sum of Rs. 975/- and the respondent has contended that it was deposited in the Government Tresury instead of contesting the case because the cost of proceedings was many folds. At this stage reference may be made to the cross-examination of Mr. Manoj Vats on behalf of the respondent which reads as below :
“I started business of M/s. Nagda Gas Agency as a proprietary concern in 1994. It is correct that inspection of my godown was carried out by the Inspector, Food and Civil Supplies, Nagda on 9.1.1997. It is incorrect to state that I have been issuing gas cylinders without any receipts for the same. It is also incorrect to suggest that I have charged Rs. 140/- per gas cylinder as against Rs. 136.75 per cylinder. Though it is correct that sale of 49 cylinders was found at the time of inspection by Inspector, Food and Civil Supplies, Nagda, which was not supported by proper receipts, as per normal practice, receipts are collected in the evening. As per procedure, the customer has to apply for new gas connection in the office of the distributor. As soon as the allotment is received from Indian Oil Corporation, the customer is duly informed after which the ga.s connection is given to the customer on payment of amount. It is correct that security deposit of Rs. 1,000/- is demanded from the customer for the year 1999 but now it has been reduced to Rs. 700/-. It is incorrect to suggest that I have received Rs. 1,400/- from Shri Rajkumar and Shri Radhey Shyam and given a receipt for Rs. 1,000/- each. It is wrong to suggest that a gas connection was released to Shri Dhananjay Rao and was given to somebody else, It is wrong to suggest that Indian Oil Corporation has ever issued a warning for alleged irregularity committed by me. I had three tempos to carry the gas cylinders in 1999 which have increased to five at present. Except a press release against Shri Rajender Jain, informant, I have no other documents to support the allegations against him.”
7. Taking into consideration an overall view of facts and circumstances of the case as well as on the basis of the evidence as recorded above we are prima facie of the view that the Director (Research) correctly proceeded against the respondent by holding that reasonable ground existed for concluding that the respondent appeared to be adopting restrictive trade practices such as overcharging of consumers while releasing new connections of the gas and the action squarely falls under the purview of Section 2(o)(ii) of the MRTP Act. Accordingly, we direct the respondent to ‘cease’ from adopting such restrictive trade practice and ‘desist’ from following the same in future.