1. ' SHABBIR AHMAD, J.---The maintainability of the appeal turns upon the nature of the order impugned.
2. ' The purported proceedings, under section 11 of the Monopolies and Restrictive Trade Practice (Control and Prevention) Ordinance, 1970 (for short-the Ordinance) against the respondents Nos.2 to 4, initiated on the complaint of the appellants, were dropped and the show-cause notices issued against them were withdrawn by the respondent No, 1 by the impugned order.
3. ' The short facts are that appellants complained to the respondent No,1 against the respondents Nos.2 to 4, alleging therein unreasonable monopoly power and asked for the relief, personal in nature. On such complaint, the respondent No,1 initiated the enquiry by issuance of show-cause notice to the respondents Nos.2 to 4. The respondents responded to the notice and participated in the enquiry. The respondent No,1 dropped the enquiry proceedings against the respondents Nos.2 to 4 by order dated 10-12-2002, by observing as follows:-- "'MCA has arrived at the conclusion that the undertakings are not associated undertakings as prescribed in the Ordinance, hence the matter does not attract the provisions of section 5 of the Ordinance. The Show-Cause Notice No,10 to 20002001 dated February 10, 2001 and Nos.19 and 20 of 2001-2002 dated October 11, 2001 served on CBL, Danone and ARIL respectively are therefore, hereby withdrawn. Show-Cause Notices Nos.9 and 11 of 2000-20001 served on Messrs English Biscuits Manufacturers (Pvt.) Limited and Messrs Coronet Foods (Pvt.) Limited respectively are also hereby withdrawn."
4. ' Hence the present appeal by the appellant/ complainant.
5. ' Mr. Shaiq Usmani, learned counsel for the . Appellant's contention was that the enquiry proceedings were dropped without hearing the appellants though they were complainants and as such, the impugned order passed by the Authority violates the right of hearing of the appellant enshrined in the principle of Audi Alteram Partem and such order is appealable under section 20 of the Ordinance.
6. ' Conversely, Mr. Muneer A. Malik, learned counsel for the respondent No,4 contention was that in terms of section 20, an appeal is provided to a person aggrieved by an order of the Authority passed under section 11. His further contention was that the grounds for appeal are; (a) that the order is contrary to the 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.
7. ' His contention was that the grounds for appeal are on the point of Law or on the point of usage having the force of Law, or on procedural defect effecting the merits, such jurisdiction is akin to the revisional jurisdiction of this Court. His further contention was that each and every order is not appealable and the orders in nature, which are described in section 12, are appealable by an aggrieved person. His further contention was that the appellants do not qualify as complainant for initiation of an enquiry contemplated under section 14, being short in number of persons required for a complaint under subsection (2) thereof, that is not less than twenty five persons. His further contention was that the Authority arrived at a conclusion that undertakings are not associated undertakings, a pure question of fact, therefore, impugned order is not appealable order.
8. ' Before proceeding further, it would be proper to refer the relevant provision of the Ordinance, inter alia, sections 3, 11, 12 and 20, with regard to the proceedings and enquiry envisaged in cases of contravention of the provisions of section 3, the nature of the orders that is contemplated to be passed and the scope of the appeal by an aggrieved person. These are:- `3. Undue concentration -of economic power. Etc. Prohibited.---There shall be no undue concentration of economic power, unreasonable monopoly power or unreasonably restrictive trace practices.
11. Proceedings in case of contravention of section 3:--(1) Where satisfied that there has been or is likely to be a contravention of the provisions of section 3 and that action is necessary in the public interest, it may make one or more of such orders specified in section 12 as it may deem appropriate.
(2) Before making an order under subsection (1), the Authority shall:---
(a) give notice of its intention to make such order stating the reasons therefor to such persons or undertakings as may appear to it to be concerned in the contravention to show cause on or before a date specified therein as to why such order shall not be made; and
(b) give the persons or undertakings an opportunity of being heard and of placing before it facts and materials in support of their contention.
(3) An order made under subsection (1) shall have effect notwithstanding anything contained in any other law for the time being in force or in any contract or memorandum or articles of association.
12. Order of the authority.---(1) An order of the authority under section 11 may:--
(a) in the case of undue concentration of economic power:---
(i) require the firms or companies concerned not being public limited companies, to be converted, within such order, into public limited companies;
(ii) require the controlling shareholders of public limited companies to offer such part of the stocks and shares held by them within such time and in such manner as may be specified in the order to the general public; including the National Investment Trust and an investment institution established or controlled by Government;
(iii) prescribe the circumstances in which and the conditions on which the associated undertakings concerned may deal with each other;
(b) in the case of unreasonable monopoly power:---
(i) require the person or undertaking concerned to divest himself of the ownership of any stock or shares or other beneficial interest in any undertaking or of any assets within such time and under such conditions as may be specified in the order;
(ii) require the person concerned to divest himself of any position held by him as an officer, director or partner in any undertaking with such time and under such conditions as may be specified in the order;
(iii) require the person or undertaking concerned to divest himself or itself of the management or control of any undertaking within such time and under such conditions as may be specified in the order;
(iv) prohibit the person or undertaking concerned from acquiring the stock or assets of, or the undertaking from merging with any other undertaking;
(v) limit the total loans which may be made by any bank or insurance company to any single individual or undertaking or to any undertaking associated with such bank or insurance company;
(vi) limit the investment of any undertaking engaged in the banking, investment or insurance business;
(vii) require the person or undertaking concerned to take such actions in the order as may be necessary to restore competitive prices and eliminate restrictions on output or entry of competitors in the market;
(c) in the case of unreasonably restrictive trade practice,---
(i) require the person or undertaking concerned to discontinue or not to repeat any restrictive trade practice and to terminate or modify any agreement relating thereto in such manner as may be specified in the order;
(ii) require the person or undertaking concerned to take such action specified in the order as may be necessary to restore competition in the production, distribution or sale of any goods or provision of any services.
20. Appeal to the High Court.---Any person aggrieved by an order of the authority under section 11 or section 19 may, 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 u sage 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.
9. ' The perusal of the above provisions would show that undue concentration of economic power, unreasonable monopoly or unreasonably restrictive trade practices are prohibited. Sections 4, 5 and 6 define the circumstances constituting undue concentration of economic power, unreasonable monopoly or unreasonably restrictive trade practices respectively.
10. ' The Authority has been entrusted under section 11 ibid with the power to initiate proceedings on its satisfaction that there has been or is likely to be a contravention of the provisions of section 3 and that action is necessary, in the 'public interest', it may make one or more of such orders specified in section 12. Subsection (2) thereof mandates the Authority before making an order under subsection (1) to give notice with reasons to such persons or undertaking to show cause and give such person or undertaking an opportunity of being heard. The statutory proceedings are conditioned with the satisfaction of the Authority with regard to the contravention of the provisions of section 3 and necessity of action in 'public interest'.
11. ' Section 14(1) gives the power to Authority of inquiry (a) either on its own motion or (b) upon a reference made to it by the Federal Government into any matter relevant to the purpose of the Ordinance. Whereas, under subsection (2) thereof, the Authority, on receipt of a complaint, from not less than twenty-five persons in writing of such facts as constitute contravention of the provisions of section 3, shall conduct a special inquiry into the matter to which the complaint relates unless it is of the opinion that the applicant's application is frivolous or vexatious or based on insufficient facts. On conclusion of such inquiry, under subsection (1) or subsection (2), if the Authority is of the opinion that findings are such that it is necessary in the public interest to do so, it shall initiate proceedings under section 11.
12. ' The reading of the two provisions of sections 11 and 14; would reveal that statutory proceedings under section 11 can, be initiated by the Authority itself with, regard to the contravention of the provisions of section 3. Secondly, initiation of proceedings after ,conducting an enquiry on the complaint by not less than twenty five persons and after recording a finding under section 14(3) that such proceedings are necessary in the 'public interest'.
13. ' The expressions 'Proceedings' and 'Enquiry' used in above provisions have not been defined in the Ordinance. The two terms are not synonymous, the later is a step for the former, the difference is apparent from the definition.
14. ' The term 'Enquiry' has been defined in section 4(1)(k) of the Cr.P.C., which includes every enquiry other than a trial conducted under the Code by a Magistrate.
15. ' Judicial Dictionary, 13th Edition by K.J. Aiyar defines the term 'Inquiry' as follows:-- "Legal proceedings in which facts are found on the basis of which liability or disability of person is judged. It connotes an act of seeking truth, information or knowledge about something. Though synonymous with inquisition, investigation, probe or inquest, it acquires specific meaning by the context in which it is used. Jamunabai Motilal v. State of Maharashtra 1978 LJ 93; AIR 1978 Born.
16. 200.
17. ' The term 'proceedings has been defined as follows:- `proceeding is a term of wide amplitude. It means a prescribed course of action for enforcing or protecting a legal right and further embracing the requisite steps to be taken whether procedural or substantive. Also means, forms in which relief is sought before Courts of law or before other bodies or authorities determining rights and liabilities and in which actions are brought and defended and the manner of conducting them and the mode of deciding them. All these happenings or events before a labour Court or Industrial Tribunal or any other authority on whom jurisdiction is conferred by law to dispose of contentious matters are understood by the term 'proceedings' [Workmen of Bali Singh Bhagwan Singh v. Management (1968) ILR 2 Punj. 371 Lab. IC 581. `Proceedings. In a general sense, means the form and manner of conducting juridical business before a Court or Judicial Officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement' to the execution of judgment. Term also refers to administrative proceedings before agencies, Tribunals, bureaus or the like' (Black's Law Dictionary, page 1204).
18. ' The proceedings may culminate by making o: or more such orders as specified in section 12, such orders are:--
(a) in the case of undue concentration of econ power:--
(i) require the firms or companies concerned, not being public limited companies, to be converted into public limited companies;
(ii) require the controlling shareholders of public limited companies to offer such part of the stocks and shares held by them to the general public;
(iii) prescribe the circumstances in which the conditions on which 'the associated undertakings concerned may deal with each other;
(b) in the case of unreasonable monopoly power:---
(i) require the person or undertaking concerned to divest himself of the ownership of any stock or shares or other beneficial interest in undertaking;
(ii) require the person concerned to, divest himself of any position held by him as an officer, director or partner in any undertaking;
(iii) require the person or undertaking concerned to divest himself or itself of the management or control of any undertaking;
(iv) prohibit the person or undertaking concerned from acquiring the stock or assets of, or the undertaking from merging with any other undertaking;
(v) limit the total loans which may be made by any bank or insurance company;
(vi) limit the investment of any undertaking engaged in the banking, investment or insurance business;
(vii) require the person or undertaking concerned to take such actions as may be necessary to restore competitive prices and eliminate restrictions on output or entry of competitors in the market;
(c) in the case of unreasonably restrictive trade practice:--
(i) require the person or undertaking concerned to discontinue or not to repeat any restrictive trade practice and to terminate or modify any agreement relating thereto;
(ii) require the person or undertaking concerned to take such action as may be necessary to restore competition in the production, distribution or sale of any goods or provision of any services.
19. ' The Authority is empowered to pass the orders in nature referred to above and such orders are appealable in terms of section 20 on the point of Law. In the instant case, the enquiry initiated on the complaint of the appellants was dropped. The Authority, as appears from the perusal of the impugned order, has not noticed the difference between the 'statutory proceedings' under section 11(1) and the 'special enquiry' contemplated under section 14(2) on complaint by not less than twenty-five members. In consequence thereof, the order passed by the Authority on complaint of the appellants under section 14(3), has been branded as an order under section 11.
20. ' The purpose, concept and scope of the proceedings under section 11 is to check unreasonable monopoly power or unnecessarily restrictive trade practices in the public interest. The term 'public interest' used in sections 11 and 12 are significant, that the proceedings must be in the `public interest' which means something in which the public at large, has some interest or are effected by same, by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of particular person, who may be interested in the matter in question, for that reason, the legislatures have put a condition for a complaint by not less than twenty five persons keeping the interest of the general public and to check the misuse of the process by individuals, for personal relief of the following terms:--
(a) Set aside the impugned order.
(b) Direct Danone respondent No,3 to disinvest ABIL's shareholding in appellant No, l's Company
(EBM) in terms of section 11 read with section 12 of the Ordinance in favour of the other shareholders of the appellant No,1 company (EBM) on pro rata basis at a fair value to be determined by auditors as per Companies Ordinance, 1984 and Memorandum and Articles of Association of the appellant No,1 Company.
(c) Grant costs of the appeal.
(d) Grant any other or Letter relief that this Honourable Court may deem fit and proper under the circumstances.
21. ' The appellants, short of required number, are not even competent to file a complaint. Such complaint should be filed by not less than, twenty five persons. The `proceedings' or the 'inquiry' contemplated in sections 11 and 14 respectively are not meant for the redressal of individual grievances but in 'public interest'. The appealable orders are those orders which are enumerated in section 12 that may be passed on conclusion of the proceedings. The order, dropping the proceedings and recall of show-cause notices, is not an appealable order. The appellants are not even 'aggrieved person' not competent to file complaint, being short of required number for filing a complaint. The expression 'aggrieved person' means a person who has got a legal grievance, i.e. a person, is deprived of anything to which he is legally entitled and not merely a person, who suffered some sort of disappointment.
22. ' Complaint by the appellants, even if taken by the Authority as an information laid before it for initiation of the proceedings that will not brand such informer as `aggrieved person'. Therefore, the impugned order is not in nature of the orders enumerated in section 12, therefore, not an appealable order. Consequently, the appeal being not maintainable. Resultantly, the same is dismissed in limine with no order as to costs.