This appeal brought by Pakistan Industrial Promotors Limited, the appellant herein, under section 20 of the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 (hereinafter referred to as the Ordinance) is directed against the order, dated 29-12-1978, by which the Monopoly Control Authority, the respondent herein, held that agreements for the distributorship of its (appellants) products entered into by it with M/s. Goodluck Enterprises and M/s. Khyber Distributors Limited on 1-11-1976, were compulsorily registrable under section 16(1) (k) of the Ordinance and since it (appellant) had failed to get the same registered, it was liable to be penalised under section 19 thereof and imposed penalty of Rs.5,000 thereon to be paid within 15 days from the date of order.
2. Dr. Pervez Hassan, Advocate, the learned counsel for the appellant, at the outset, tried to point out as to how the respondent Authority did not afford him the opportunity of placing his view point before it as a counsel representing the undertaking, explaining at the same time his own inability to put in appearance before it despite getting some adjournments, but eventually he blamed his own pre-occupations for the lapse than the respondent Authority and felt contended when assured by this Court to be afforded ample opportunity to have his full say.
3. Commenting on the impugned order, he submitted that the agreements in question were not registrable because they fell within the ambit of subsection (2)(a) of section 6 of the Ordinance as they contributed substantially to the efficiency of production and distribution of goods and did not constitute unreasonably restrictive trade practices. According to the learned counsel, these provisions of the Ordinance are to be read with those of section 16 (1) (k) and section 19 and not in isolation because if, as a result of the scrutiny, the respondent Authority ultimately comes to the conclusion that the agreements did not entail any unreasonably restrictive trade practice, then they were not liable to be registered and in that event the imposition of penalty becomes enigmatic.
4. He has also contended that, besides the appellant, two other undertakings were parties to the agreements in question and since the act of registration of the agreements by itself was a sort of action adversely affecting the interests of all the parties thereto, they all should have been afforded an opportunity of being heard before directing the registration of such agreements and subjecting the appellant to the penalty.
5. Finally, it is urged that even if the agreements in question were registrable under section 16 (1) (k) ibid, the failure of the appellant to get them registered as such was not `wilful' and they committed no default to incur the penalty of Rs.5,000 and for this reason too the impugned order is not tenable at law.
6. Mirza Naseer Beg, Advocate, the learned counsel for the respondent --Authority, on the contrary, has tried to defend the order under challenge on the ground that the provisions of section 16 (1) (k) of the Ordinance were independent of the provisions of section 6 (2) of the Ordinance; that the other two undertakings were not necessary parties, having no right to demand hearing prior to the registration of the agreement; and the agreements in question fell squarely within the ambit of section 16 (1) (k) of the Ordinance and they were liable to be registered but the appellant wilfully and deliberately omitted to get them registered.
7. The purpose of the Ordinance is stated in section 3 thereof which prohibits undue concentration of economic power, unreasonable monopoly power, and unreasonably restrictive trade practices because these factors give rise to uneven distribution of wealth amongst different sections of society, ultimately leading to unrest, strife and conflict amongst them, thereby retarding economic growth and impairing its general welfare. To achieve this object the Ordinance creates a body known as Monopoly Control Authority, which administers this law and in that context exercises many powers and performs various functions. The first step in this direction is the collection of necessary information and data from those engaged in business and commerce in the private sector and that is done through the process of registration as embodied in section 16 of the Ordinance and the rules made thereunder. After completing this step, the Authority begins the process of inquiry and if it prima facie finds that the provisions of section 3 ibid have been or are likely to be contravened it passes an order under section 12 after following the procedure laid down in section 11 and keeping in view the guidelines given in sections 4, 5 and 6 of the Ordinance.
Section 19 thereof empowers the Authority to impose penalty if its order is not complied with or any person or undertaking does not get himself or itself registered under the Ordinance. In nutshell this is the scheme of the Ordinance.
8. The case in hand relates to first step or initial stage contemplated by the Ordinance. The respondent Authority has penalised the appellant for not getting its agreements for distribution and sale of its goods registered with it within the prescribed time which in terms of proviso to rule 10 (1) of the Monopoly Control Authority Rules, 1971, could be 15 days from the date they became registrable and they presumably became registrable from the date of their execution or enforcement which in case of one agreement was 1-11-1975 and in case of other was 18-2-1976. I say `presumably' because neither section 16 of the Ordinance nor proviso to rule 10 of aforesaid Rules specifies any definite point of time for reckoning the duration of 15 days provided in the latter.
The phrase the application shall be filed within fifteen days of the date when ... Agreement becomes registrable under the Ordinance", is vague and it needs further clarification. Anyhow, the appellant kept silent until a show-cause notice was issued to it by the respondent-Authority on 20- 1-1978 and it offered to get the same registered on 11-2-1978 subject to reservations of its legal rights to the contrary. The respondent-Authority, after the detection of these agreements in January, 1978, and after affording the appellant the opportunity of being heard, passed the impugned order on 20-12-1978.
9. Now I take up various contentions raised by the learned counsel. Section 6 (1) of the Ordinance deals with second step or stage contemplated by this law. It, inter alia, describes the kind of registered agreements which are ultimately prohibited by section 3 of the Ordinance and in respect of which an order can be passed under section 12 after following the procedure laid down in Section 11 thereof. If the agreements in question come within the ambit of section 6 (2), which embodies exceptions to section 6 (1), as claimed by the appellant, then they would not be violative of section 3 ibid and no further action under sections 11 and 12 will be required in respect thereof. In any case, after the first stage of the registration for the purpose of collection of necessary information and relevant data is over, the Authority shall commence the second stage as indicated above and finalise the matter in accordance with law and that stage has not yet reached.
10. As regards the contention of necessary parties having been kept out and not having been afforded the opportunity of being heard, it is an admitted position that in the agreements in question, besides the appellant, two more firms or undertakings are parties. If they have not been heard, they have not been penalised either and had they been party to the proceedings, they would have shared the penalty with the appellant. So, in this respect they do not suffer. Anyhow, during further proceedings under the Ordinance the Authority will have to join them and afford them the opportunity of being heard along with the appellant.
The last contention of the appellant's counsel is that its failure to get the agreements registered with the respondent-Authority was not `wilful' and it was not liable to be penalised because they were not liable to be registered being exempt under section 6 (2)(a) of the Ordinance. As already remarked, proceedings in the light of guidelines provided in section 6(1) constitute the next or second step, obviously distinct and separate from the initial or first step of registration contemplated by section 16, violation whereof is punishable under section 19 (a), wherein the word `wilfully' has been used as necessary adjunct. The word `wilful' or `wilfully' has been used in many enactments, particularly in the provisions of penal nature, and it has many a time been judicially interpreted. In the ordinary dictionary sense it means intentional or deliberate. The term, as used in different statutes and judicial precedents, means deliberate or intentional and not accidental or by inadvertent. It connotes a conscious act signifying something more than a mere omission, default or inaction on the part of a person who is under a legal obligation to do or not to do a particular thing. In other words; an act done intentionally, knowingly or purposely as distinct from the one done carelessly, thoughtlessly, heedlessly or inadvertently.
12. Interpreted in that sense and made applicable to the facts and circumstances of this case, one does not fail to find that the act of the appellant in not getting the agreements in question registered till 20-1-1978, when the notice was issued to it, or till 11-2-1978 when it offered to get them registered and that too subject to certain reservations, was wilful as they were entered into and were being acted upon more than a year before they were detected by respondent --Authority by its own efforts. Thus, there was an element of concealment tantamounting to deliberatness on its part. The Ordinance had been promulgated and the rules framed thereunder much prior to their execution and by that time the new law must have come or deemed to have come to their knowledge, even if the legal presumption is not raised, especially when the appellant and other parties to the agreements appear to be big undertakings having or expected to have the benefits of legal advice of their well-versed legal advisers.
13. For the reason stated above there is no substance in the appeal and the same is dismissed.
However, if the appellant and other undertakings, which are parties to the agreements in question;' succeed in bringing them within the exception or exemption clause (section 6 (2) of the Ordinance), the respondent --Authority may consider the advisability of deregistering the agreements under section 18 and if it decides to cancel their registration, it may also consider the desirability of refunding the penalty, in whole or in part, as a necessary or logical consequence thereof.