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Judgment
A complaint has been made on behalf of Chitralekha, a partnership firm engaged in printing and publishing of the magazine, "Chitralekha" stating that the respondent No. 1 published a Circular dated the 22nd August, 1991 to the effect that the Diwali number of its publication, "Abhiyan" was more beneficial to advertisers as it would give better value for money keeping in view the circulation of its Diwali numbers which were selling more and faster. It was also claimed in the circular that whereas the circulation and readership of "Abhiyan" was almost the same as that of its rival magazine "Chitralekha", advertisement rates of the Diwali number of "Chitralekha" were three times more than those of the Diwali number of "Abhiyan". It has been further stated by the applicant/complainant that according to the circulation figures obtained from the Audit Bureau of Circulations, the circulation of its weekly, "Chitralekha" for the period January to June, 1989 was 3,03,054 copies and for July to December, 1988, 3,24,221 copies while that of its rival publication, "Abhiyan" for the same periods was 1,12,423 copies and 1,05,903 copies respectively. It has also been mentioned that "Chitralekha" is published in Gujarati and has the highest circulation and readership in the States of Gujarat and Maharashtra and its advertisement rates are based on the circulation and readership of the magazine. The grievance of the applicant/complainant is that respondent No. 1 has adopted and indulged in unfair trade practices insofar as it has disparaged its publication, "Chitralekha" by making false, misleading and deceptive representations in its circular, within the meaning of Section 36A(1)(x) of the MRTP Act, 1969 (the Act for brief).
A Notice of Enquiry was issued under Sections 36A, 36B(d) and 36D of the Act as the impugned circular of the respondent was prima facie, found to be containing false and misleading statements and representations which had the effect of disparaging the applicant/complainant''s magazine, "Chitralekha". In reply, while denying the allegations of unfair trade practices, it has been stated, on behalf of the respondents, that no statistical figures of the Diwali number either of "Chitralekha" or "Abhiyan" are collected or are available with the Audit Bureau of Circulations and the respondents have relied upon the statistical data collected, on the basis of random survey, made by its agent in Bombay, for estimating the sale of the Diwali numbers of the two publications and the circular of the 22nd August, 1991 based on the random survey thus does not contain any false or misleading representation regarding circulation of "Chitralekha". It has been further mentioned that the above circular which was based on the survey was issued in the interest of the advertisers. It has also been clarified that whereas the regular issues of both "Chitralekha" and "Abhiyan" are priced at Rs. 4.50 per copy, the Diwali numbers of these magazines are priced at Rs. 20/- each and when a special issue is priced 4 or 5 times more than the regular price, the circulation of the special issue comes down while the readership increases. According to the respondents, the reason for more readership is that the same copy is circulated amongst more readers and as the circulation of the Diwali numbers of both the magazines is the same as transpiring from the random selective survey made by its agent, the rates of advertisements of "Abhiyan" are less than those of "Chitralekha" by that yardstick of readership.
On completion of pleadings, the following issues were framed : (1) Whether the respondents have been or are indulging in the unfair trade practices as stated in the Not ice of Enquiry? (2) If the answer to the above issue is in the affirmative, whether the unfair trade practices alleged are prejudicial to public interest, to the interest of consumer or consumers generally ?
WHILE Shri Maulik Pratap appeared as a witness on behalf of the applicant/complainant, Shri Ketan Sanghvi gave evidence on behalf of the respondent. I have heard the Advocate appearing on behalf of the DG as well as the Advocate for the respondents. The applicant/ complainant has relied on the National Readership Survey Report of 1990 according to which circulation and readership of "Abhiyan" during the period January to June, 1990 was 1,12,381 and 7,27,000 respectively whereas that of "Chitralekha" was 3,01,276 "and 17,71,000 respectively. Besides, at the stage of evidence, a certificate of Audit Bureau of Circulations was also filed indicating the circulation figures of "Abhiyan" for the period January to June, 1991 and July to December, 1991 which were 1,27,876 copies and 1,10,940 copies respectively. Going by the affidavits of evidence and documents on record, there is no doubt, that the circulation of "Chitralekha" is in the region 3 lakhs copies while that of "Abhiyan" is a little over 1 lakh copies. It, therefore, stands to reason that "Chitralekha" which has larger circulation and higher readership cannot be less beneficial, in terms of publicity, than "Abhiyan" which has a much lower circulation. In other words, it would be more beneficial for manufacturers and traders to advertise in a publication or a magazine which has larger circulation and readership in order to get more publicity for their products. It cannot be gainsaid that publicity depends on readership in the case of print media and viewership of electronic media. No wonder, traders and manufacturers of consumer items spend crores on advertisements which appear on TV and pay heavily for time slots when viewership is the maximum. Likewise, the publications and magazines which have very large circulation will attract more advertisements and earn higher revenues from advertisements as compared to a publication which does not have such a large circulation. Therefore, the representation of the respondent that it is more beneficial for the advertisers to advertise in "Abhiyan" and they will get more value for their money is far fetched, misleading and factually incorrect. In view of the circulation figures of the two magazines and these figures are authentic and reliable as the source is the National Readership Survey Report and Audit Bureau of Circulations, there is no escape from the conclusion that the representation contained in the circular dated the 22nd August, 1991 of the respondent is false, misleading and deceptive and has the effect of disparaging "Chitralekha". The impugned circular not only gives a misleading and deceptive impression about the circulation and readership of "Chitralekha" but also suggests that advertisements in "Chitralekha" are less beneficial and the inference of advertisers not getting value for their money is, on the face of comparative circulation figures, false and thus amounts to disparagement of "Chitralekha" by the respondents.
THE contention of the respondent that its figures of circulations are reliable as the same are based on the selective random survey made by its agent in Bombay does not cut much ice as the survey is obviously not scientific and, therefore, cannot be relied upon especially in view of the figures revealed by the Audit Bureau of Circulations and National Readership Survey Report of 1990. Moreover, it defies comprehension that a publication which has higher circulation throughout the year should have lower circulation on festive occasions like Diwali and more particularly its special number brought out on that occasion and especially when the special number has more material and more pages and better get-up. From the aforesaid discussion it follows that the respondent has not only made false and misleading representation in its circular but has done so with a view to disparaging "Chitralekha", the publication of its rival and competitor. THE impugned circular of the 22nd August, 1991 thus falls foul of the provisions of Section 36A(1)(x) of the Act. THE respondent thus can be said to have adopted and indulged in unfair trade practices within the meaning of Section 36A(1)(x) of the Act. THE respondent is, therefore, directed to cease the aforesaid unfair trade practices and desist from indulging in same or similar trade practices in future. Compliance of the order may be made within 6 weeks of its pronouncement. NOE disposed of.