National Consumer Disputes Redressal
Big Bazaar vs Government Of Gujarat on 15 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1674 OF 2007 (From the order dated 10.04.2007 in First Appeal No. 1432/2006 of Gujarat State Consumer Disputes Redressal Commission) Big Bazaar, Division of Pantaloon Retail (I) Ltd., Sarkhej Gandhinagar Highway, Near Iskon Temple, Ahmedabad ... Petitioner Versus Government of Gujarat, Through N.V. Patel, Head Clerk in the office of The Director, Weights and Measures and Consumer Affairs Tol Map Bhavan, Sarangpur, Ahmedabad Respondent(s) BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. S.K. Makkar, Advocate Mr. Nitish Kumar, Advocate Mr. Deepak, Advocate For the Respondent(s) Mr. P. Keshwani, Advocate Mr. Aakarshan Aditya, Advocate PRONOUNCED ON : 15th APRIL 2013 O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 (for short the Act) against the impugned order dated 10.04.2007 passed by the Gujarat State Consumer Disputes Redressal Commission (for short the State Commission) vide which appeal filed by the petitioner against the present respondent / complainant, Director, Weights and Measures and Consumer Affairs, Government of Gujarat, against the order passed by the District Forum, Ahemdabad was ordered to be dismissed and the order of the District Forum was upheld.
2. Briefly stated the facts of the case are that the petitioner / OP is a departmental store known as Big Bazaar and it has many branches in the city of Ahemdabad and other places. This store is a division of M/s. Pantaloon Retail (I) Ltd. and it is carrying on retail business in various commodities and sells the same to the consumers.
From time to time, this store frames various schemes for attracting the customers in order to promote their business.
In the instant case, the store framed a scheme valid for Republic Day on 26.01.2006 and declared this as a Mega Saving Day. The petitioner published advertisements through newspapers / radio / posters on the occasion of Mega Saving Day saying that various commodities shall be sold at prices less than the usual prices. As per the version of the petitioner, there was a big rush of consumers on the Republic Day outside the store and as the day progressed, it became impossible to regulate the rush of the consumers. The petitioner floated a scheme on that very day, according to which currency coupons of the value of Rs.50/- were to be issued and they decided that only those persons shall be allowed to enter the store who purchase a coupon after making a payment of Rs.50/-. It was also stated that the value of the coupon, i.e., Rs.50/- will be adjusted towards the total price of the purchase made by the consumers. It was also made clear that in case a consumer did not fully utilise the amount of the coupon, the balance amount of the coupon shall be refunded to the consumers. According to the petitioner, the basic purpose of issuing such coupons was to regulate the entry of customers and there was no profit motive behind this step. The other purpose was giving entry to genuine customers and exclude anti-social elements or those persons who merely go inside the store for a stroll. As stated, on the aforesaid day, the petitioner issued 3900 currency coupons of the value of Rs.50/- to the consumers, who entered the store between 4 pm to 10 pm. Out of these 3900 coupons, 3712 coupons are stated to have been utilised by the consumers on the same day, i.e., 26.1.2006 and 94 coupons were utilised on 27.01.2006.
It is further stated that out of all these coupons, only 68 coupons remained unaccounted and the petitioner gave advertisement that the unutilised coupons could be utilised for making purchases from the store. 35 more currency coupons were utilised by the consumers and 33 currency coupons remained unaccounted for.
3. On the other hand, the Department of Weights and Measures and Consumer Affairs, Government of Gujarat filed a consumer complaint no. 22 / 2006 in the District Forum against the petitioner saying that they had illegally collected Rs.1,95,000/- from 3900 consumers and hence adopted unfair / restrictive trade practice. The District Forum vide order dated 30.11.2006 allowed the complaint and directed the petitioner to pay Rs.1,95,000/- to the complainant along with interest @9% p.a. from the date of filing of the complaint till realisation.
They were also directed to pay Rs.10,000/- to the complainant towards mental agony and costs of the complaint. The petitioner challenged the order of the District Forum in the State Commission, but the State Commission vide impugned order dismissed the appeal saying that the issuing of currency coupons amounted to levy of entry fee and hence it was unfair trade practice. It is against this order that the present petition has been filed by the petitioner / OP.
4. At the time of arguments before us, learned counsel for the petitioner stated that the petitioner by their aforesaid action, had only tried to regulate the entry of customers in their store and had not committed any unfair trade practice. It was wrong to say that they had imposed any entry fee for the customers. The learned counsel vehemently argued that the contention of the District Forum that a shop-owner has no right to refuse entry to the public, is incorrect. It is the absolute right of the shop-owner to restrict the entry of customers in his store.
In this case, it was not an entry fee but even if an entry fee is imposed, it is a legally permissible practice, all over the Globe. Learned counsel has drawn our attention to the statement made by the petitioner before the District Forum in which it has been stated that a total of 3900 currency coupons of Rs.50/- each were issued on 26.01.2006, out of which 3712 coupons were utilised by the customers on that very day. On 27.01.2006, another 94 coupons were utilised by the customers.
The money had been refunded in 26 cases and only 68 currency coupons were remaining, for which the customers could obtain deduction form the bill at any time in future or get the money back.
It has been stated in the petition that advertisement were also given by the petitioner saying that people could come and get their money back in response to which 35 more people had claimed refund and only 33 currency coupons remained unaccounted for. The learned counsel further stated that on behalf of the Government of Gujarat, a very junior officer of the rank of Head Clerk had filed the complaint, which indicates that the matter had not been considered at senior levels in the Government. He further stated that the observation of the District Forum that Police force could be called to control the rush of people is not correct because the scheme floated by the petitioner does not represent any unfair trade practice.
5. On behalf of the respondent, Government of Gujarat, our attention was drawn to an affidavit filed by Shri K.K. Dhoodhat, Controller Legal Metrology and Director of Consumer Affairs, Government of Gujarat in which he has stated that the complaint, in question, has been filed by Shri N.V. Patel, Head Clerk of the Department who was sent on deputation as Consumer Protection Officer for a year in his office vide order dated 12.12.2005. The said N.V. Patel, Head Clerk, was authorised to file the present complaint under the Act and copies of orders passed by the Government of Gujarat have also been attached indicating that Shri Patel was competent to file the complaint. The learned counsel for the respondent stated that it was the duty of the State to look after the interest of the consumers. In the instant case, the petitioner had given advertisement for observing Mega Saving Day, but the scheme of issuing currency coupon of Rs.50/- was suddenly announced at 4:30PM. It amounted to the collection of entry fee only and it is also not clear whether they charged similar fee before 4:30PM on that day.
Whatever step had been taken by the petitioner, had not been pre-disclosed to anybody. Learned counsel, however, admitted that out of 3900 coupons issued, 3712 coupons had been adjusted on the same day. He further mentioned that 33 persons had still not taken refund and it was not clear why they had not done so.
6. Both the parties have submitted their written submissions as well, which are on record. In the written submissions made by the complainant / respondent, it has been stated that the step taken by the petitioner amounted to restrictive trade practice under section 2(1)(nnn) of the Act.
7. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
8. The factual position of the steps taken by the petitioner in issuing currency coupons of Rs.50/- and the number and value of coupons etc. is broadly accepted by both the parties. Main point to be considered in the present case is whether the step taken by the petitioner amounts to unfair or restrictive trade practice or not?
It has been stated categorically by the petitioner that they have a right to regulate the entry of customers within their business premises and for that purpose, they can take all requisite steps and such a step does not amount to any unfair trade practice. In the present case, the petitioner floated currency coupons of Rs.50/- and made it obligatory that anyone entering the store at that particular time shall have to buy a currency coupon of Rs.50/-. It was, however, also clear that the amounts so charged shall be adjusted towards the purchase of any goods / commodity from the store. It is an admitted fact that out of 3900 coupons issued on that day, 3712 coupons were utilised by the consumers on that very day, making it clear that they did not have to spend any extra penny beyond the costs of the goods purchased.
Even later on, more coupons were got en-cashed and whatever small number was left un en-cashed, the petitioner gave an open advertisement asking the coupon holders to get the refund, if they wanted to do so. In our opinion, such an action taken by the petitioner does not amount to any unfair or restrictive trade practice at all. The Government of Gujarat has drawn our attention to section 2(1)(nnn) of the Act, which runs as under:-
restrictive trade practice means a trade practice which tends to bring about manipulation of price or conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include
(a) delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price;
(b) any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services;
9. It has been argued on behalf of the respondent that the imposition of arbitrary and unannounced entry charge amounts to the imposition of a practice which requires a consumer to buy, hire or avail of any goods or as the case may be services as condition precedent to buying, hiring or availing of other goods or services.
10. We do not agree with this contention of the respondent that the buying of currency coupons of Rs.50/- was a condition precedent to buying, hiring or availing of goods / service etc. because the amount spent for the purchase of coupons was to be adjusted towards costs of goods / services and any coupons which were left unutilised could be got en-cashed.
Had the petitioner not made a provision for encashment of unutilised coupons, it could be stated that they had resorted to a restrictive trade practice. Section 2(1)(nnn) of the Act is, therefore, not applicable in the present case.
11. It is also observed that floating of schemes for attracting the customers or to give them suitable incentives from time to time are accepted international business practices, rather they should be encouraged and used for looking after the interests of the consumers at large.
12. In the present case, therefore, it is held that there is no unfair / restrictive trade practice on the part of the petitioner.
The revision petition is, therefore, allowed and orders passed by the State Commission and District Forum are set aside with no order as to costs.
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(K.S. CHAUDHARI J.) PRESIDING MEMBER ..
(DR. B.C. GUPTA) MEMBER RS/ I agree with the ultimate result arrived at by my learned brother, but I do not agree with the observations that had there not been any provision for encashment of any unutilized coupons, it could have come within the purview of restrictive trade practice. In a number of trade fairs and exhibitions organized by the Government as well as private entrepreneurs, entry fee is levied which is neither refundable nor adjustable in purchase, but it does not fall within the purview of restrictive trade practice. This entry fee is levied to regulate, rush and not to allow unwanted persons. Even, entry fee is levied by Government for entering on the Railway platforms, Airports, etc. on the persons going to see off or receive their guest which is not treated as unrestrictive trade practice. Entry fees can be levied on customer for entry and sitting in a Restaurant to regulate rush, otherwise any person without availing any services and making payment will get right to occupy sitting capacity of Restaurant for hours causing inconvenience to prospective customers. In such circumstances, a private person can impose entry fee for entering in his business premises and currency coupons of Rs.50/- issued by the petitioner does not fall within the purview of unfair / restrictive trade practice and petition is allowed.
... (K. S. CHAUDHARI J.) PRESIDING MEMBER