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TMI Blog1999 (8) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... writ of mandamus, directing the respondent Nos. 1 to 4, their officers and agents to take action to ensure compliance with the law by their distributors and wholesalers including the 5th respondent. 2. According to the petitioners, though the maximum retail price of a 500 gms. butter pack is Rs. 55 they are selling it for Rs. 51.95 per 500 grams. By that, according to them, they are getting profit of six paise. The price of the same to the wholesale dealer is Rs. 49.89. They are allowed to get a margin of Rs. 2. So, the retailers price for the said product would be Rs. 51.89. The maximum retail price is fixed at Rs. 55 after allowing retailer price margin of Rs. 3.11. This fact is not under dispute. 3. Now, we have to decide whether, on the basis that the petitioners are not selling the said product at Rs. 55 and they are selling it only at Rs. 51.95 the 5th respondent can refuse to sell the dairy products of the 3rd respondent to the petitioners. 4. It is also not in dispute that the transaction in question will come under the provisions of the Monopolies and Restrictive Trade Practices Act, 1969 ( the Act ). So, the respondents can refuse to sell the said products t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in a contract providing for establishment of minimum price to be charged and the re-sale of goods in India is established void, the retailer can sell the products as low as possible, but subject to section 40(2). Section 40 reads as follows : "40. Prohibition of other measures for maintaining resale prices. (1) without prejudice to the provisions of this Act with respect to registration and to any of the powers of the Commission or of the Central Government under this Act, no supplier shall withhold supplies of any goods from any wholesaler or retailer seeking to obtain them for resale in India on the ground that the wholesaler or retailer ( a )has sold in India at a price below resale price, goods obtained, either directly or indirectly, from that supplier, or has supplied such goods, either directly or indirectly, to a third party who had done so; or ( b )is likely if the goods are supplied to him to sell them in India at a price below that price or supply them, either directly or indirectly, to a third party who would be likely to do so. (2) Nothing contained in sub-section (1) shall render it unlawful for a supplier to withhold supplies of goods from any wholesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using their products as loss-leaders, for the purpose of attracting to the establishment at which the goods are sold to customers to purchase other goods and also for the purpose of advertising their business. To substantiate the said submission, the respondents have to establish that their products are being used as loss-leaders . 7. Loss-leader as explained in the Concise Oxford Dictionary, eighth edition, refers to an item sold at a loss to attract customers. So, to bring the petitioners case within the abovesaid provision of section 40(2), the respondents should establish that the petitioners are selling the said products and are incuring loss. But unfortunately, even according to the respondents, the petitioners are selling the butter at the rate of Rs. 51.95 per 500 grams which is over and above the purchase price of the petitioners, i.e., Rs. 51.89 per gram. By that, the petitioners are making six paise profit. So it cannot be said that the petitioners are incurring loss, and so the said products are being used as loss-leaders. After all, the petitioners are getting profit of six paise. This cannot be said as a loss. As stated already, the respondents cannot insi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank Ltd. v. N. Seetharama Raju AIR 1990 AP 171 was considering the question. Whether a writ petition lay against a Co-operative Society and if it does, in what circumstances. After examining various decisions and treatises on the subject it was stated that even if a society could not be characterised as a State within the meaning of article 1 even so a writ would lie against it to enforce a statutory public which an employee is entitled to enforce against the society. In such a case, it is an unnecessary to go into the question whether the society is being treated as a person , or an authority , within the meaning of article 226 of the Constitution.What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty. 25. In view of the fact that control of the State Government on the appellant is all-pervasive and the employees had statutory protection and therefore the appellant being an authority or even instrumentality of the state would be amenable to writ jurisdiction of the High Court under article 226 of the Constitution. It may not be necessary to examine any further the question if article 226 makes a divi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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