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+{"id": "CCI_All_India_Distillers_Association_vs_Haldyn_Glass_GCO100028COM855733", "text": ["Consequent upon the repeal of the MRTP Act this complaint has been received by transfer on 04.03.2010 from the office of DGIR, MRTP Commission under Section 66(6) of the Competition Act, 2002.", "The facts as stated in the complaint, in brief, are: 2 .1 This complaint was filed by the All India Distillers Association against glass bottle manufacturers in India alleging restrictive and monopolistic trade practices being adopted by the four major manufacturers namely: Haldyn Glass Gujarat Limited, Hindustan National Glass and Industries, AGI Glasspac and Mohan Crystal Glass Work who together control 90 of the glass bottle market.", "2.2 It has been stated that Potable Alcohol Industry of India comprises of Indian Made Foreign Liquor (IMFL), Country Liquor, Beer and Wine.", "The packaging material for the potable alcohol is primarily glass bottles.", "The glass bottles are used because these ensure longer shelf life, prevent alcohol from evaporation, retain taste, color and aroma intact even after the opening of bottles.", "Other packaging materials like PVC, pet bottles, metal containers etc.", "do not have wide-acceptance in the market.", "The glass bottles are essential for distribution and marketing of potable alcohol.", "The cost of the glass bottles is a major component in the costing of alcoholic beverage ranging from 6 to 35 of the cost of potable liquor.", "The Bureau of Indian Standards has prescribed the standard for manufacturing of glass bottles and because of this reason there is homogeneity of the product glass bottle.", "3 As per averments made in the complaint the glass bottle manufacturing companies have recently threatened to increase the price of glass bottles by at least 20 on the ground that the cost of some of the inputs has gone up namely Soda Ash by 57, liquid petroleum gas by 14, and furnace oil by 48 though in fact the extent of increase in the price of these inputs is not as much as is being portrayed.", "Moreover, there appears to be no increase in the prices of various other main ingredients such as cullet, silica, calcite and host of chemicals.", "Thus, the impact of increase in cost is much less than that of the 20 by which the price of glass bottles is being threatened to be increased.", "2 .4 It has also been stated that the glass bottles manufacturers have in the past increased the prices of glass bottles to about the same extent and at the same time e.g. prices were hiked by 10 simultaneously in February, 2007, again by 10 in December, 2007 and now again there is a threat that they will increase price by 20 simultaneously.", "Thus, these glass bottles manufacturers have been emboldened as their past conduct has remained undetected and unpunished.", "2 .5 The complainant has alleged that the uniformity in percentage price increase being sought is unjustified given the difference in variable cost of each glass manufacturer in view of the fact that some glass bottle manufacturer use gas while others use furnace oil, obvious difference in plant efficiency due to their differential age and wide variation in labour cost and transport component.", "2.6 It has been further alleged that in view of the unique market structure of the industry, homogeneity of the product, lack of substitutable product, absence of competitive pressure of import, capital intensive industry, low technical advancement, strong ability to exchange information of price and other terms amongst the glass bottle manufacturers and tamed countervailing buyers power, the glass bottles manufacturers in India are indulging in restrictive trade practice of cartelisation with impunity.", "2 .7 In order to ensure price increase immediately, glass bottle manufacturers are increasingly refusing to honour their pending commitment to supply under one pretext or the other and there is a serious threat that future supplies would be stopped sooner than later unless the unjustified and unlawful demand for a price increase by the cartel of glass bottle manufactures is met by the potable alcohol industry.", "In terms of the powers conferred under Section 11(2) of the MRTP Act, 1969 DG (I and R) initiated probe against the four major manufacturers of glass bottles and vide letter dated 21.08.2008 they were asked to submit relevant information.", "Haldyn Glass Gujarat Limited Hindustan Glass and Industries Limited and AGI Glasspac have furnished their replies in response to the probe letter of DG (I and R) whereas Mohan Meakin Limited has stated vide its letter 8.09.2008 that it is a member of the complainant-Association and as such should be deemed to be a complainant and probe letter issued to it should be withdrawn.", "4 .1 The respondent Haidyn Glass Gujarat Limited in its reply dated 07.10.2008 has stated that the allegations made by the complainant are baseless as the prices of the glass bottles are increased when the prices of the inputs are increased by the Government and this increase is not due to the collective meeting of minds of glass bottle manufacturers.", "Further it has been mentioned that the price is negotiated with the parties and no unilateral decision is imposed on the customers.", "4 . 2 The Hindustan National Glass and Industries Limited in its response dated 14.10.2008 has stated that it manufactures glass bottles for industrial users and not for retail sale and customers are directly supplied the product by the company on the basis of mutual negotiation.", "The company has never adopted any restrictive practice and the allegations made by the complainant are baseless and devoid of any merit.", "4.3 The AGI Glasspac in its reply dated 14.10.2008 has also denied the allegations levelled by the complainant and has stated that synchronization in the increase in prices is merely co-incidental and it has to be viewed in the prevailing economic scenario.", "It has also been stated that the prices are calculated on the basis of the input cost of the product and there has not been even a single instance of stopping or reducing the supply of bottles.", "The DG (I and R) also issued a letter to the complainant requesting it to furnish the following information documents for the purpose of investigation: Names and addresses of the members of the Association ii) Details of different types of glass bottles purchased by the members of the complainant Association along with details of the prices at which the same were offered for sale by the respondent companies during the last two years iii) In case the respondent companies are issuing price-lists to the buyers of glass bottles in question, copies of the same for the last two years iv) In case the respondent companies are marketing the glass bottles to the members of the complainant Association by way of rate contracts, the details of the same for the last two years Any other information documents which the complainant would like to furnish in support of the allegations made by it.", "In response to the letter of DG (I and R) the complainant vide its letter dated 25.09.2008 intimated that in the absence of any backup information required by the Commission and non receipt of information from its members, it is left with no other alternative but to withdraw the complaint.", "At this stage, the case was transferred to the Competition Commission of India with the observation that this matter relates to alleged restrictive trade practices.", "The matter was placed before the Commission in the meeting held on 18.06.2010 and the Commission considered the relevant material available on record.", "On close examination of the matter it is borne out that the main grievance of the complainant-Association is that the above-mentioned four major glass bottle manufacturers have formed a cartel and they are increasing the prices of the glass bottles arbitrarily on the pretext of increase in the cost of raw material like Soda Ash, LPG, LHSH and furnace oil and are withholding the supply to enforce the increase in price.", "On the other hand, the respondent glass manufacturing companies have denied this allegation and have contended that they have not taken any collective decision to increase the price but when the cost of inputs goes up they have no option but to increase the price of glass bottles.", "They have also taken the plea that price of the product is always mutually negotiated with the customers.", "As far as the allegation of cartelization by the respondent glass manufacturing companies is concerned, no reliable material has been placed on record which can lend support to such an assertion.", "Definitely something more than bare allegation is needed to show concerted action on the part of the respondents to fix the prices of glass bottles.", "The complainant has itself admitted in the complaint that cost of various inputs which are used in manufacturing of glass bottles like Soda Ash, Liquified Petroleum Gas, Furnace Oil etc.", "has gone up though their contention is that the intended increase in price of glass bottles is much more than warranted by the increase in the cost of inputs.", "The complainant has also not placed on record any details from which this inference can be drawn that the increase in the price of glass bottles is not commensurate with the escalation in the cost of raw material.", "It is also noteworthy that the details sought by the DG (I and R) from the complainant were not furnished and instead the complaint was sought to be withdrawn on the ground that the members of the complainant -Association failed to supply any information in this regard.", "In the absence of any credible material, bare assertion of complaint cannot be relied upon and the allegations made by the complainant have remained unsubstantiated and uncorroborated.", "On the basis of the material available on record and in view of the forgoing discussion, no case is made out to warrant any further action and the matter deserves to be closed.", "The proceedings are hereby closed.", "The Secretary is directed to inform the complainant accordingly."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "Fact", "Fact", "ArgumentRespondent", "ArgumentRespondent", "ArgumentRespondent", "ArgumentRespondent", "ArgumentRespondent", "ArgumentRespondent", "Fact", "ArgumentPetitioner", "Fact", "Fact", "None", "ArgumentRespondent", "ArgumentRespondent", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt"], "secondary": ["None", "None", "None", "None", "None", "None", "None", 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+{"id": "CCI_Anil_Gambhir_Informant_vs_The_Union_of_India_27052CO130020COM939312", "text": ["Order under section 26(2) of the Competition Act, 2002 The informant is a CPWD Class-II (Civil) Registered Contractor, having his office at New Delhi and is eligible to tender for CPWD works costing up to Rs. 5 crores of any civil nature in the northern region (Punjab, Haryana, Himachal Pradesh, Jammu Kashmir, Uttar Pradesh, Rajasthan, Uttarakhand, Delhi and UT of Chandigarh only).", "The informant had been doing the said works in CPWD, local bodies and other organisations.", "The OP is an agency of the central government operating throughout the country for planning, construction, maintenance and repairs of all works and buildings financed from civil works budget.", "It carries out the said works through its established divisions by inviting tenders from the registered contractors.", "It is stated in the information that the construction and maintenance works were executed by the respective divisions of the OP, depending upon the magnitude of works and the tenders for the same were open to all registered contractors till 2008- However, in the year 2009, the Division entrusted with the maintenance work classified the annual repair and maintenance works as a specialised nature of work and issued tender notice only for the specialized agencies or contractors.", "The informant alleged that the OP reclassified the above said maintenance work as a special category without any logical basis and the works of annual repair and maintenance do not require any special technical expertise or experience.", "The informant also alleged that CPWD officers in order to favour certain general category contractors, categorized them as special agencies for annual repair and maintenance works.", "The said agencies since had worked in the maintenance division for some years and gained experience, got themselves classified as specialized agencies.", "The Informant further alleged that OP was the sole authority responsible for construction and maintenance of public works in India and thus, was able to abuse its dominant position by imposing unfair and discriminatory conditions in the purchase of services.", "The informant alleged that the OP indulged in practice that resulted in denial of market access to him.", "It is also alleged that the works of annual repair and maintenance were being awarded only to a few so called specialized contractors.", "It is revealed from the works awarded by few divisions like S Division, Pushpa Vihar Maintenance Division, Q Division, Electrical Division 13 that the works were being awarded only to a few favoured parties like Swastik Electrotech P. Limited, Niranjan Kumar Garg, N.D. Sharma, Devinder Singh etc.", "The Informant alleged that these few agencies in the garb of specialized agencies got the work awarded year after year because of the restrictions put in tender notice by the OP.", "The informant also submitted that the rates being quoted were very high ranging from 30-40 above the Delhi Schedule Rates 2012.", "The Informant quoted the instance of Delhi Aviation Division CPWD, which had floated tenders for the same nature of maintenance work and got the rates 30 below and the works were being carried out satisfactorily by Shri J.P. Gupta in the year 2012.", "The informant alleged that the OP abused its dominant position by awarding civil repairs and maintenance works to the Contractors registered as specialized categorised agencies whereas the work could be done by any ordinary civil contractor.", "In order to examine the allegations of the informant, first of all, the relevant market is to be identified.", "Considering the facts of the present matter, the relevant product market would be the, maintenance and repairs of civil works and buildings and relevant geographic market would be entire India.", "Maintenance and repair of civil works is not confined only to Central Govt.", "buildings.", "This service is extensively needed by all agencies and private bodies, individuals owing residential or commercial properties in India.", "Similarly service field of repair maintenance service is open to all those in this field throughout India.", "Thus, the relevant service market in the present case would be the provision of maintenance and repairs of all civil works and buildings within India.", "In order to attract the provisions of section 4 of the Act, the dominant position of the enterprise in the relevant market needs to be examined.", "The OP has been seeking services throughout the country for maintenance and repairs of all civil works and buildings, as it does not carry out the said work on its own and invites tenders from various registered contractors for the performance of the work.", "However the OP cannot be considered as a dominant purchaser of services in the field of repair and maintenance of civil works in view of its minuscule presence as compared to vast number of buildings owned by private bodies, individuals, several states and autonomous organizations.", "In view of the foregoing, the Commission finds that no prima facie case of even dominance of OP was made out against the OP.", "The question of abuse of dominance therefore does not arise.", "The Commission deems it fit to close the proceedings of the case under Section 26(2) of the Act.", "The Secretary is directed to inform the parties accordingly."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt"], "secondary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", 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+{"id": "CCI_Ashok_Kumar_Sharma_vs_Agni_Devices_Pvt_Ltd_0705201CO201516051522382724COM654807", "text": ["The information in the instant case has been filed under section 19(1)(a) of the Competition Act, 2002 (hereinafter referred to as the Act) by Shri Ashok Kumar Sharma (hereinafter referred to as the Informant) against M section Agni Devices Private Ltd. (hereinafter referred to as the Opposite Party) alleging, inter alia, contravention of the provisions of sections 3 4 of the Act.", "Facts of the case, may be briefly noted: As stated in the information, the Informant is running a business under the name and style of Agni Security Devices and trading of fire alarms, fire extinguishers and related equipments.", "It is submitted that the Informant, after complying with the statutory formalities, entered into the business of fire fighting systems in 2014 (with a different trade name and mark).", "As per the information, the Opposite Party claims itself to be the leading manufacturer, developer, importer and exporter of fire alarm systems, fire alarm panels, signalling equipment, detectors, fire-fighting equipment, security system surveillance systems, auto dialers, integrated fire-cum-security systems etc.", "(hereinafter referred to as the fire safety equipment).", "It is further submitted that the Opposite Party has been using the trademark trade name AGNI from 1989 which it inherited from its sister-companies Agni Instrument Engineers Pvt.", "Limited and Agni Devices Pvt.", "Ltd It is alleged that the Opposite Party alongwith its sister-companies is engaged in practices which are in violation of section 3 of the Act.", "The Informant has alleged that the trademark Agni granted by the IP Authority in favour of the Opposite Party has led it to abuse its dominant position in the market.", "The Informant has alleged that the Opposite Party had served a legal notice dated 16.09.2014 threatening the Informant to refrain from manufacturing fire safety equipment under the trademark AGNI Security Devices.", "It is alleged that the threatening language of the said notice indicates abuse of dominance by the Opposite Party which is in contravention of the provisions of section 4 of the Act.", "It is also submitted that the Opposite Party is engaged in family business under three different names - Agni, Agni Instrument Engineers Pvt.", "Limited and Agni Devices Pvt.", "Limited It is alleged that the agreement between these sister companies is in violation of the provisions of section 3 of the Act.", "Based on the above allegations and the information, the Informant has alleged that the conduct of the Opposite Party is in contravention of the provisions of sections 3 4 of the Act in the instant matter.", "Accordingly, the Informant has prayed, inter alia, for initiating an investigation under section 26(1) of the Act.", "The Commission perused the material available on record including the information.", "The Counsel on behalf of the Informant was also heard by the Commission on 29.04.2015.", "Facts of the case reveal that the Informant is primarily aggrieved by the alleged threats by the OP through its notice to cease and desist from manufacturing fire safety equipment under the trademark AGNI Security Devices.", "The Commission notes that the issue involved in the instant case is regarding the use of trademark which appears to have already been registered by the Opposite Party with the Appropriate Authority.", "It is noteworthy to mention that the Informant has also filed an application before the Registrar of Trademarks for registration of his trade name and logo.", "The said application is pending for its final disposal.", "It is further noted that the Informant has also not provided any cogent material to highlight the imposition of any unreasonable conditions on him.", "Based on the facts and circumstances of the instant case, the Commission observes that the issue involved herein is purely a trademark dispute and does not raise any competition concern.", "In the light of the above analysis, the Commission finds that no prima facie case of contravention of the provisions of sections 3 and 4 of the Act is made out against the Opposite Party in the instant matter.", "Accordingly, the matter is closed under the provisions of section 26(2) of the Act.", "The Secretary is 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+{"id": "CCI_Central_Organisation_for_Railway_Electrification_OCO2018060918171048137COM490335", "text": ["Order under Section 26(2) of the Competition Act, 2002 The present reference has been filed by Central Organization for Railway Electrification (hereinafter CORE) through the Office of the Principal Chief Materials Manager (hereinafter the Informant) under Section 19(1)(b) of the Competition Act, 2002 (hereinafter the Act) against M section PPS International, Delhi (hereinafter the Opposite Party OP) alleging contravention of the provisions of Sections 3 and 4 of the Act.", "The Informant is an organization under the Ministry of Railways and is entrusted with the responsibility to carry out railway electrification over the entire network of the Indian Railways.", "It is stated that the Informant inter alia procures Short Neutral Section Assembly (hereinafter SNS Assembly), also called phase break, for various Railway Zones from the Research Design and Standards Organisation (hereinafter RDSO) approved sources.", "It is further stated that there is only one approved source for this item in RDSO approved list i.e. M section Arthur Flury AG Switzerland, the original equipment manufacturer (hereinafter OEM) which sells this product through its authorised Indian distributor i.e. the OP in India.", "It is stated that in terms of Railway Board letter bearing number RE(S)14/11/82/0012 Pt.", "dated 14.11.2017, SNS Assembly is a centralised procurement item of CORE, where demand of all Zonal Railways is consolidated and procured.", "It has been alleged that the OP entered into an agreement with M section Arthur Flury AG and thereby artificially jacked up the prices of SNS Assembly in violation of the provisions of Section 3(3)(a) of the Act.", "It has also been alleged that the OP has abused its dominant position to increase the prices of SNS Assembly artificially and the OP has also imposed unilateral conditions regarding commercial and technical compliances in violation of the provisions of Section 4(2)(a)(i) and 4(2)(a)(ii) of the Act.", "In support of such allegations, the Informant has provided the following information detailed in Table Number 1: It has been further stated that in the year 2013, the OP had supplied 282 sets of SNS Assembly Rs. 7,25,000/- based on Proforma Invoice rate of OEM 8600 CHF per set.", "However, the Office of the Principal Commissioner of Customs (Import) vide letter C. Number VIII/12/ACC-Import Gr-VA Misc./841/2013 dated 22.06.2015 showed that the OP had imported the items CHF 6400.", "Thus the OP jacked up the prices taking benefit of its monopoly.", "The Informant has also provided one more instance of abuse of monopoly by the OP with respect to tender number CORE S/1271/5530/20473 dated 12.01.2018, wherein the OP had supplied 28 sets Rs. 698500/- per set based on Proforma Invoice rate of OEM 8580 CHF.", "It is stated that while processing the bills, it was revealed that the OP had imported the material from M section Arthur Flury CHF 7200 as per its invoice and Bill of Entry.", "Based on the above averments and allegations, the present reference has been filed by the Informant against the OP, alleging contravention of the provisions of Sections 3 and 4 of the Act.", "The Commission has perused the reference and the documents filed therewith and also considered the material available in public domain.", "At the outset, the Commission notes that though the Informant has alleged contravention of the provisions of both Sections 3 and 4 of the Act, yet looking at the nature of allegations and the relationship of the OP with the OEM, the provisions of Section 3(3)(a) of the Act are not applicable to the present case as the OP (distributor) and OEM (manufacturer) are operating at different levels of the production chain in different markets.", "Thus, prima facie the provisions of Section 3(3)(a) of the Act are not attracted.", "Next, for the purpose of examining the allegations of the Informant under the provisions of Section 4 of the Act, it is necessary to determine the relevant market at the first instance.", "Thereafter it is necessary to assess whether the OP enjoys a position of strength required to operate independently of the market forces in the relevant market.", "Only when such a position is established, the Commission is required to examine whether the impugned conduct amounts to abuse of dominance or not.", "The Commission observes that the product involved in the instant case is SNS Assembly, which is used mainly by the Railways to isolate different phases of power supply in adjoining Over Head Equipment (OHE) fed by adjacent substations, which are normally connected to different phases of supply.", "Thus, it is used in overhead contact lines of the Railways to act as an insulator between different power lines (phases).", "In this regard, the Commission observes that SNS Assembly is a light weight contact wire insulator of composite type (Resin bonded glass fibre core protected with wear resistance ceramic beads) with Poly Tetra Fluro Ethylene (PTFE).", "Thus, its physical characteristics indicate that it is a specialised equipment having a specific function.", "Moreover, SNS Assembly is a distinct product in itself having no close substitute.", "Accordingly, the relevant product market in the instant case is market for supply of SNS Assembly.", "In respect of the relevant geographical market, it may be noted that CORE is a centralised procurement agency for the SNS Assembly as it consolidates the demand of all Railway Zones and centrally procures them.", "This shows pan India nature of the demand by different Zones of Railways and its subsequent distribution.", "Thus, the relevant geographic market in this case would be India.", "Thus, the relevant market in the present case is the market for supply of SNS Assembly in India 1 4 .", "On the issue of dominance of the OP in the aforesaid relevant market, the Commission notes that the OP is the sole authorised distributor of M section Arthur Flury AG, Switzerland in India.", "Further, it is also observed that there is only one single approved source in the RDSO approved list i.e. M section Arthur Flury AG and its Indian distributor.", "The requirement of the RDSO approved sources has also resulted in a situation of high dependence of the Indian Railways for the SNS Assembly on the OP.", "Thus, the Commission observes that the OP can be said to be dominant in the above- defined relevant market.", "In view of the above assessment, the Commission is of the view that the OP appears to be dominant in terms of the provisions of Section 4 of the Act.", "To examine the alleged abuse of dominant position by the OP in the relevant market delineated supra, it is noted that the Informant has not specified any specific condition which can be examined within the framework of Section 4(2)(a)(i) of the Act.", "However, on a closer scrutiny of the information, it appears that the Informant is essentially aggrieved by the allegedly high prices charged by the OP for supply of SNS Assembly to CORE.", "The Informant has claimed that the OP has increased the prices in last 12 years without any significant inflation in Switzerland.", "Thus, the Informant has essentially raised the issue of excessive pricing.", "To support the allegations, it has been pointed out that in purchase order dated 13.09.2013, the OP had supplied 282 sets of SNS Assembly on behalf of M section Arthur Flury AG on the basic price (excluding all taxes, duties, freight charges, insurance charges other expanses) i.e. 8600 Swiss Franc (CHF) per set.", "But, later on, it was revealed to the Informant that the OP had imported the same goods on the basic price of 6400 Swiss Franc per set.", "Similarly, the Informant provided another evidence where the OP in response to the purchase order dated 12.01.2018 had supplied 28 SNS Assembly on the basic price of 8580 Swiss Franc but, later on, it was found through the invoice of M section Arthur Flury AG Bill of Entry that the OP had imported the same at 7200 Swiss Franc per set.", "In order to appreciate the allegation of excessive pricing, the Commission deems it appropriate to examine the percentage increase in the prices of SNS Assembly over period of time i.e. from 2006 to 2018.", "The table beneath shows the percentage rise in prices of SNS Assembly between 2006-2018: From the above table, it appears that there has not been a continuous trend of price increase over a period of time which could show excessive prices being charged by the OP.", "Also between 2013 and 2018, there was either no increase in the prices and rather in year 2016, prices even decreased.", "Thus, the price trend does not support the allegation of abuse of dominant position made by the Informant by artificially determining the sale price in terms of the provisions contained in Section 4(2)(a)(ii) of the Act.", "In view of the above assessment, the Commission is of the view that the OP does not appear to have abused its dominant position in terms of the provisions of Section 4 of the Act.", "Resultantly, the Commission is of the opinion that no case of contravention of the provisions of Section 4 of the Act is made out against the OP and the matter is ordered to be closed in terms of the provisions contained in Section 26(2) of the Act.", "The Secretary is directed to communicate to the 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+{"id": "CCI_Confederation_of_Real_Estate_Developers_AssociatioCO201807081816081635COM964576", "text": ["The instant matter filed by the Confederation of Real Estate Developers Association of India - NCR (Informant CREDAI-NCR) against the Department of Town and Country Planning, Government of Haryana (OP-1/DTCP) and the Haryana Urban Development Authority, (OP-2/HUDA) was referred by the Commission to the Director General (DG) for investigation vide order dated 06.04.2018 passed under Section 26(1) of the Competition Act, 2002 (Act).", "In the said order, the Commission had held that there exists a prima facie case of contravention of the provisions of Section 4(2)(a)(i) of the Act by the OPs.", "On 01.05.2018, the Commission considered the application filed by the Informant under Section 33 of the Act.", "In its application, the Informant has prayed that till the Commission decides the matter, the OPs should be (i) restrained from invoking the bank guarantee against the developers (ii) directed to cease and desist from compelling the developers to pay any pending External Development Charges (EDC) and Infrastructure Development Charges (IDC) or any increase thereof, alongwith interest till the disposal of the case (iii) directed to cease and desist from compelling the developers to pay any penal interest and (iv) directed to cease and desist from taking any coercive action against the developers.", "The Commission heard the parties on 11.05.2018 and 31.05.2018 and also considered the submissions placed by them on record.", "The submissions and contentions of the Informant are as follows: The Sohna Master Plan 2031 (Sohna Master Plan) for Group Housing Colony in the revenue estate of Tehsil Sohna of Gurugram District in Haryana was issued in 2012 and based on this plan, various developers submitted their bids.", "Thereafter, the Sohna Letter of Intent (Sohna LOI) and bilateral agreements were executed by them with the Director of OP-1 and licenses were issued to them.", "However, till date the OPs have not carried out the requisite infrastructural and External Development Works in the periphery of the residential housing colonies located in the area as per the plan.", "In light of complete inaction by the OPs, the developers are faced with the impossible task of fulfilling their obligations under the Sohna LOI, bilateral agreement and licenses within strict timelines and under threat of potential penalties, covering land that has not even been acquired by the OPs.", "Additionally, the developers are also exposed to hefty claims from the consumers under the Consumer Protection Act, 1986 for failing to allot plots to them within the timelines stipulated under the arrangements between the developers and the consumers.", "Moreover, the OPs permit the developers to pass on such EDC and IDC to the allottees.", "Thus, while the OPs have regularly imposed EDC and IDC upon the developers which is being passed on to allottees, the OPs have carried out no Infrastructural or External Development Works on the land.", "The ultimate consumers i.e. the allottees are disadvantaged and forced to bear the burden of paying EDC and IDC without enjoying the benefits of the corresponding development works, a situation for which the OPs are solely and exclusively liable.", "In response to an application filed under the Right to Information Act, 2005 (RTI Act) as well as counter-affidavit filed with the Commission, OP-1 has stated that, with respect to 41 licences issued by it under the Sohna Master Plan, an amount of Rs. 406.75 crores has been collected towards EDC and Rs. 137.18 crores towards IDC.", "In addition, 25 of the EDC amount is secured with it in the form of bank guarantees.", "Despite this, the OPs have not even commenced the process of acquisition of land for External Development Works.", "Irrespective of the fact that no development work has been undertaken by the OPs, they continue to levy the charges and interest on the developers and are resorting to coercive action against them causing undue hardship to them in the development of their respective projects.", "After the present information was filed and preliminary hearing in the case was held by the Commission in September 2017, OP-1 issued various notices threatening to take legal action against several developers.", "With respect to the onerous clauses in the Sohna LOI and licenses and conduct of the OPs, the Commission has already formed a prima facie opinion of abuse of dominance.", "It is prayed that the interim relief sought by the Informant be granted to restrain the OPs from implementing the one- sided agreements on a continuous basis.", "The submissions and contentions made by the OPs are summarised below: The conditions imposed in the Sohna LOI including the furnishing of bank guarantee equivalent to 25 of the tentative EDC and the execution of LC- IV bilateral agreement before grant of license are a matter of record.", "The final license is granted to the developer only if the conditions mentioned in the LOI are acceptable to the developer.", "LOI as well as conditions of license stipulate that the provision of external development facilities by HUDA may take a long time and the applicant shall not claim any damages against the department for loss occurred, if any.", "Most of the licenses to the developers in Sohna were granted in the year 2014 and thereafter.", "The developers had executed the bilateral agreement with open eyes and were well aware that Sohna, being a new urban estate, HUDA would take time to execute External Development Works and it was never stipulated in the agreement that the development works would be executed in proportion to the amount paid by the developer.", "Hence, they are estopped at this stage to allege that there should be immediate development of the area by HUDA.", "It is wrong to allege that no development work has been executed by the Government agencies in Sohna.", "It is submitted that the Government through various agencies has already executed various works such as fire station, boosting station, sewerage treatment plan, stadium, civil hospital, slaughter house and electric substation.", "Most of the developers getting license in Sohna have failed to pay the due installment of EDC.", "Therefore, unless the developers pay full amount of EDC, the balance development works cannot be executed.", "The Commission has given careful consideration to the submissions contentions of the Informant and the OPs.", "The Commission notes that earlier OP-1 had mentioned that the issues raised in this case by the Informant have already been examined and decided by the Honble High Court of Punjab and Haryana in CWP Number 9558 of 2015 titled VPN Buildtech Pvt.", "Ltd. v. State of Haryana and Others and other connected petitions, vide order dated 15.12.2015.", "It was also stated that against this order, some of the developers have filed Special Leave Petitions (SLP) before the Honble Supreme Court, which are pending, including the main SLP Number 5459 of 2016 titled Magnolia Propbuild Pvt.", "Limited State of Haryana and Others.", "Further, it was stated that the Honble Supreme Court, vide interim order dated 31.03.2016, has already restrained OP-1 from encashing the bank guarantees submitted by the developers, on account of non- payment of EDC.", "In this regard, during the hearing on 11.05.2018, the Commission had inter alia asked the Informant to clarify as to the relief being sought from the Commission keeping in view the relief already granted by the Honble Supreme Court.", "The Informant in response has submitted that SLP Number 5459 of 2016 before the Honble Supreme Court of India is in relation to EDC being charged from the developers for their individual projects relating to various master plans in the State of Haryana and the same are not concerned with the Sohna Master Plan.", "Moreover, the relief granted by the Honble Supreme Court of India is only qua the 10 developers who have approached it and not a blanket stay on the bank guarantees of all other developers operating in the State of Haryana including the 41 licensees under the Sohna Master Plan.", "During the hearing, the learned counsel for the OPs accepted this fact and further stated that due to the direction of the Honble Supreme Court in the said SLPs, the OPs as a matter of practice are not invoking bank guarantees for EDC in all cases.", "Considering the fact that the Honble Supreme Court cases are not related to Sohna Master Plan at all, it is evident that the Commission can proceed to deal with the present application.", "At the outset, the Commission notes that in the case of M. Gurudas and Others v. Rasaranjan and Others ( : AIR 2006 SC 3275), the Honble Supreme Court has categorically recorded that: While considering an application for injunction, it is well-settled, the courts would pass an order thereupon having regard to: (i) Prima facie case (ii) Balance of convenience (iii) Irreparable injury In light of the above decision, the Commission proceeds to decide the application of the Informant for interim relief.", "With respect to the first factor i.e. the existence of a prima facie case, it is noted that, the Commission in its order dated 06.04.2018 passed under Section 26(1) of the Act has already found a prima facie case of abuse of dominant position in the relevant market by the OPs.", "The relevant portion of the order is recorded below: though the terms of Sohna LOI, Sohna Agreement and Sohna Licence relating to EDC IDC emanate largely from the statutory provisions of the relevant statutes, prima facie the terms of these documents appear to be one-sided and in favour of the OPs.", "Further, the alleged conduct of the OPs such as failure to adhere to its obligations under the Sohna Master Plan in a time-bound manner and imposing onerous obligations on the developers to pay EDC IDC, prima facie, appears to be abusive.", "In response to the allegations, OP-1 has not denied that it has not provided External Development Works in accordance with the Sohna Master Plan, rather it has justified that it is not possible to provide such services unless the entire EDC IDC amount is paid by the developers alongwith interest and penal interest.", "The Commission finds that the conduct of the Ops whereby they have not undertaken any External Development Works related to the Sohna project is ultimately affecting the end consumers i.e. the allottees home- buyers, as because of non-development by the OPs, the completion of the project is getting delayed and the same is rendered uninhabitable.", "Thus, in view of foregoing, the Commission is of the opinion that the conduct of the OPs prima facie appears to be in contravention of the provisions of Section 4(2)(a)(i) of the Act.", "However, the Commission also notes the Honble Supreme Courts decision in Competition Commission of India v. Steel Authority of India  : (2010) 10 SCC 744, wherein the Honble Court has laid down the factors and circumstances to be considered while granting interim relief under Section 33 of the Act.", "The relevant extracts of this judgment are as follows: During an inquiry and where the Commission is satisfied that the act has been committed and continues to be committed or is about to be committed, in contravention of the provisions stated in Section 33 of the Act, it may issue an order temporarily restraining the party from carrying on such act, until the conclusion of such inquiry or until further orders, without giving notice to such party where it deems it necessary The Commission, while recording a reasoned order, inter alia, should : (a) record its satisfaction (which has to be of much higher degree than formation of a prima facie view under Section 26(1) of the Act) in clear terms that an act in contravention of the stated provisions has been committed and continues to be committed or is about to be committed (b) it is necessary to issue order of restraint and (c) from the record before the Commission, there is every likelihood that the party to the lis would suffer irreparable and irretrievable damage, or there is definite apprehension that it would have adverse effect on competition in the market.", "The power under Section 33 of the Act, to pass a temporary restraint order, can only be exercised by the Commission when it has formed prima facie opinion and directed investigation in terms of Section 26(1) of the Act, as is evident from the language of this provision read with Regulation 18(2) of the Regulations.", "In context of the above observations of the Honble Supreme Court, the Commission deems it pertinent to take into consideration the conduct of the OPs beyond the passing of the order under Section 26(1) of the Act.", "The information in this case was filed with the Commission in July 2017 and the preliminary hearing took place in September 2017.", "The alleged facts as they stood on the date of filing of the information remain unaltered till date despite the passing of the order by the Commission for investigation by the DG.", "One of the contentions against the OPs in the information is that they have not commenced any external development work despite continuous collection of EDC from the developers.", "During the hearing on the application for interim relief, the Informant filed a submission dated 11.05.2018 wherein he brought to notice a response dated 09.02.2018 given by OP-2 to an RTI application, in which OP-2 had stated that no external development work has been executed by HUDA in Sohna Town and that the expenditure booked under EDC service may be considered as NIL.", "This has not been disputed by the OPs rather they confirmed that the situation remains the same till date.", "However, the OPs in their counter-affidavit filed during the hearing on 31.05.2018 have submitted that the Government through various agencies has executed some of the infrastructure works such as fire station, boosting station, sewerage treatment plan, stadium, civil hospital, slaughter house and electric substation for the benefit of Sohna town including the colonies being developed by the Informant.", "In this regard, the Commission has perused the definition of External Development Works given under Section 2(g) of the Haryana Development And Regulation of Urban Areas Act, 1975 (Act of 1975), which reads as under: External Development Works include water supply, sewerage, drains, necessary provisions of treatment and disposal of sewage, sullage and storm water, roads, electrical works, solid waste management and disposal, slaughter houses, colleges, hospitals, stadium sports complex, fire stations, grid sub-stations etc.", "and any other work which the Director may specify to be executed in the periphery of or outside colony area for the benefit of the colony area Upon consideration of this definition, it is evident that the infrastructure works claimed to have been done by the OPs do not cover basic facilities like water supply, sewerage, drains, roads, electrical works, etc.", "which are to be provided as External Development Works.", "It goes without saying that unless these basic facilities are provided by the OPs, the projects of the developers would remain incomplete uninhabitable for the allottees home buyers.", "When during the hearing, the learned counsel for the OPs was asked about the progress of the work with respect to these basic facilities, he admitted that no steps have been taken by the OPs in this direction till date.", "It was acknowledged that even the process to acquire land for these purposes has not been initiated by the OPs.", "At the same time, it is noted that the OPs are continuing to collect EDC from the developers to whom licenses have been granted in Sohna.", "In the counter-affidavit filed by the OPs on 08.12.2017, the OPs have submitted that an amount of Rs. 390 crore (approximately) towards EDC has been paid by the said developers till 21.11.2017.", "In the counter-affidavit filed on 31.05.2018, it was submitted that an amount of Rs. 401 crore (approximately) towards EDC has been collected from the developers till 17.05.2018.", "Thus, it is evident that the OPs are continuing to collect EDC without committing any amount towards External Development Works in the said area.", "Moreover, despite taking no steps towards carrying out External Development Works even after the passing of the order under Section 26(1) of the Act by the Commission, OP-1 is not only continuing to raise demands towards payment of EDC but also charging interest penal interest and threatening cancellation non-renewal of the licenses of the developers.", "Further, EDC is being charged despite non-finalisation of any rates.", "While OP-1 has published a policy clarifying the imposition of EDC in medium and low potential zones in 2010, allowing relaxations in terms of payment of EDC for developers in these zones by granting them waiver from payment of EDC till the finalisation of rates, in the interest of promoting development no such policy has been issued till date with respect to payments in the high potential zone.", "As per the policy for medium and low potential zones, the developers in these zones are exempted from depositing EDC when the same has not been charged from the allottees and they would also receive the benefit of interest on EDC already paid as decided by OP-2 till such date the EDC is finally decided.", "However, no similar relief has been given to the developers in high potential zones.", "Further, in respect of IDC collected by OP-1, it is observed that approximately 60 (sixty percent) has been transferred and used as loan for refund purposes in other schemes floated by OP-2.", "Thus, the Commission considers that the above factual situation shows that the alleged anti-competitive conduct by the OPs is continuing to be committed and the consumers continue to be adversely affected by such conduct.", "Next, the Commission has to contemplate whether the balance of convenience lies in favour of allowing interim relief to the Informant and whether any irreparable harm or injury to it is being caused, i.e. whether justice would be best served by passing an interim order in this case restraining the OPs.", "In this regard, the Commission notes that on the aspect of irreparable harm or injury, the Honble Supreme Court of India in Dalpat Kumar and Anr.", "v. Prahlad Singh and Ors.", " : (1992) 1 SCC 719 has observed as follows: The Court further has to satisfy that non-interference by the Court would result in irreparable injury to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession.", "Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages.", "The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted.", "If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued.", "Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.", "Coming to the facts of the present case, the Commission observes that the developers for the purpose of grant of license have to execute LOI and LC-IV agreement with OP-1 in which the condition regarding payment of EDC is also present.", "Such condition stipulates that the payment of EDC amount may be made by the developer either in lump-sum within 30 days from the grant of license or in 8/10 equal six monthly installments of 12.5/10 of which the first installment shall be payable within a period of 30 days from the date of grant of license.", "Further, it is contained in the terms that where EDC amount is being paid in installments, the unpaid amount after the payment of first installment would carry an interest of 12 per annum and in case of any delay in payments of installments on the due date, an additional penal interest of 3 per annum would be levied, making the total payable interest as 15 per annum.", "In the instant case, most of the developers have exercised the installment payment option whereby they are paying interest on the unpaid portion.", "In case of delay in payment of instalments, the OPs are charging penal interest also.", "On the other hand, no external development work has been commenced by the OPs towards providing basic facilities for the area included in the Sohna Master Plan.", "Apart from that, it has been brought to the notice of the Commission during the hearing that the developers have to get their license renewed every five years commencing from the date of grant of license and pay renewal fee on each occasion.", "Such fee has to be paid even if the reason for which the project is pending is non- completion of external development work by the OPs.", "This means that the developers who have been granted license in 2014 would have to pay the renewal fee in 2019 mandatorily if the External Development Works remain pending owing to the complacency of the OPs.", "The Commission is of the view that the interest of the developers in this regard can be protected through appropriate directions whereas, in the absence of intervention by the Commission at this stage, neither can the extant position be restored at a later stage nor the likely damages to the developers and the consumers be compensated.", "Thus, in the given facts and circumstances, the Commission finds that the balance of convenience lies in granting the interim relief as sought by the Informant.", "It has been observed by the Honble Supreme Court in Zenit Mataplast P. Ltd. vs State Of Maharashtra Ors.", " : (2009) 10 SCC 388: Interim order is passed on the basis of prima facie findings, which are tentative.", "Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing.", "The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.", "In light of the factual situation as discussed in the preceding paras, the case in hand appears to be exceptional in nature, which merits intervention by the Commission.", "The Commission notes that the investigation in the present matter is likely to take some time.", "In the meanwhile, the members of the Informant could suffer irreparable harm by way of cancellation of licenses and levying of penal interest despite the OPs being at fault.", "The Informant has placed on record the fact that the OPs are not discharging their obligation under the agreement and yet have issued several notices to the developers for want of payment of due EDC amount, wherein it is stated that default by the developers would render their license null and void.", "Thus, the Commission finds it appropriate and necessary to intervene at this stage to safeguard the members of the Informant against the irreparable and irretrievable losses that may be caused to them.", "Regarding the scope of intervention in the form of interim relief, it is observed that the Honble Supreme Court in Dalpat Kumar (supra), has explained as under: The phrases prima facie case balance of convenience and irreparable loss are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by mans ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice.", "In view of the foregoing, the Commission finds that the facts of the case make it evident that there is a need for intervention to meet the ends of justice.", "While the Commission acknowledges that the collection of EDC is important for the OPs to undertake and carry out the External Development Works in the Sohna area, the fact remains that there is inaction on the part of the OPs to carry out their duties despite collection of Rs. 400 crore (approximately) for the said purpose.", "Keeping this in mind, the Commission finds it appropriate to restrain the OPs from taking any coercive steps with respect to the payment of remaining installments of EDC from those developers who have paid 10 (ten percent) of EDC and deposited 25 (twenty-five percent) of EDC in the form of bank guarantee.", "No interest or penal interest shall be charged on the remaining installments from such developers.", "However, if any amount has been collected by the developers from consumers towards EDC, the same shall be deposited with OP-1.", "Further, no coercive action shall be taken by the OPs with respect to the licenses granted to the developers and status quo shall be maintained.", "This order shall remain in operation till the final disposal of the proceedings before the Commission or till further orders, whichever occurs earlier.", "In the meanwhile, if the OPs initiate steps for acquisition of land for the purposes of undertaking External Development Works for the provision of basic facilities like water supply, sewerage, drains, roads, electrical works, etc., in the area as per the Sohna Master Plan, they may approach the Commission for variation of this order.", "It is noted from the interim relief application that the Informant has also sought relief with respect to payment of IDC as well, which the developers are required to pay to the OPs upfront in two instalments within six months.", "However, 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+{"id": "CCI_Confederation_of_Real_Estate_Developers_AssociatioCO201811041816112348COM432353", "text": ["The present information has been filed under Section 19(1)(a) of the Competition Act, 2002 (hereinafter, the Act) by Confederation of Real Estate Developers Association of India - NCR (hereinafter, the Informant CREDAI-NCR) against Department of Town and Country Planning, Government of Haryana (hereinafter, OP- 1/DTCP) and Haryana Urban Development Authority, (hereinafter, OP-2/HUDA) (hereinafter, OP-1 and OP-2 collectively referred to as the OPs) alleging contravention of the provisions of Section 4 of the Act.", "According to the information, the Informant is the National Capital Region (NCR) chapter of the Confederation of Real Estate Developers Association of India (CREDAI) which is an organisation representing around 12000 real estate developers spread across 23 states.", "Further, all the leading real estate developers of NCR are the members of the Informant.", "OP-1 is a department of the Government of Haryana empowered to regulate urban development in the State of Haryana.", "The policies of OP-1 aim at encouraging healthy competition amongst various private developers and public sector entities for integrated planned urban development.", "It also renders advisory services to various corporations and boards such as OP-2, Housing Board of Haryana, Haryana State Industrial Infrastructure Development Corporation Limited and Haryana State Marketing Board.", "OP-2 is an authority created under the Haryana Urban Development Authority Act, 1977 (hereinafter, the HUDA Act).", "It has been delegated the task of planned development of urban areas in Haryana in order to: (i) promote and secure development of urban areas in a systematic and planned way with the power to acquire, sale and dispose of property, both movable and immovable (ii) use the acquired land for residential, industrial, recreational and commercial purposes (iii) make available developed land to Haryana Housing Board and other bodies for providing houses to economically weaker sections of the society and (iv) undertake building works.", "As per the information, OP 2 has been empowered under Section 51(1) of the HUDA Act to grant licenses to developers for development of real estate in the State of Haryana and OP 2 has delegated this power to OP-1.", "As per the Informant, OP-1, by virtue of this power, has been entering into Letter of Intent (hereinafter, LOI) with prospective developers and thereafter granting licenses to them under the HUDA Act for development of colonies in the State of Haryana.", "It is stated in the information that on 15.11.2012, OP-1 had issued the Sohna Master Plan 2031 (hereinafter, Sohna Master Plan) for Group Housing Colony in the revenue estate of Tehsil Sohna of Gurugram District in Haryana.", "Based on this plan, various developers submitted their bids and thereafter, the Sohna Letter of Intent (hereinafter, Sohna LOI) were executed between each developer and the Director of OP-1.", "It is stated that before execution of the LOI, the developers had fulfilled the conditions stipulated under the Haryana Development and Regulation of Urban Areas Development Act, 1975 (hereinafter, the Haryana Development Act) and the Haryana Development and Regulation of Urban Areas Development Rules, 1976 (hereinafter, the Rules of 1976) including submission of the bank guarantee towards External Development Charges (hereinafter, EDC), Infrastructure Development Charges (hereinafter, IDC) and other charges and fees viz. conversion charges, license fees and scrutiny fees.", "Thereafter, bilateral agreements (hereinafter, Sohna Agreement) between developers and Director of OP-1 were executed and licences (hereinafter, Sohna License) were issued to the developers.", "It is alleged in the information that some of the terms and conditions of the Sohna License, Sohna LOI and Sohna Agreement are unfair and discriminatory.", "It is averred that through the Sohna LOI, the OPs impose unfair and extensive obligations on the developers in terms of the development works that the developer must carry out in the specified territory and the charges levied on them are also required to be paid within tight timelines.", "Further, the conditions therein obligate the developers to pay EDC as and when demanded.", "However, no claim for damages lies against the OPs for delay in provision of development facilities.", "It is further alleged that the charges and payment schedule in the Sohna Master Plan has been decided by the OPs unilaterally without making available the basis of calculation of these charges or implementation schedule of the development work.", "The Informant has submitted that although the OPs were obligated under the Haryana Development Act to carry out development work, there is no mechanism for enforcement of these obligations under the Sohna LOI Sohna Agreement Sohna License.", "The Informant has further alleged that under the terms of the Sohna License, EDC are subject to revision as per the actual charges incurred including any enhanced land acquisition costs, which is to be worked out later and the developer is liable to pay an additional amount as and when directed.", "Furthermore, the assumption on costs or timelines with respect to the development of infrastructure are also not disclosed.", "In addition, the Sohna LOI obligates the developers to pay interest on delayed payment of EDC and IDC to the OPs.", "It is alleged that the OPs are levying an exorbitant rate of interest on EDC and IDC on developers onerously without any authority under the Haryana Development Act.", "Further, the developers are forced to accept fulfillment of such supplementary obligations of payment of interest, which has not been contemplated in the Haryana Development Act.", "Further, it is alleged that no activity on infrastructure development has been initiated by the OPs, which has further delayed the development of the projects.", "But under the license agreement, the charges and interest continue to be levied on the developers causing undue hardship in the development of their respective projects.", "It is alleged that in the light of inaction by the OPs, the developers are faced with the impossible task of fulfilling their obligations under the Sohna LOI, Sohna Agreement and Sohna License within strict timelines and potential penalties covering land that has not even been acquired by the OPs.", "Additionally, the developers are also simultaneously exposed to hefty claims from consumers under Consumer Protection Act, 1986 for failing to allot plots to them within the timelines stipulated under arrangements between the developers and consumers.", "In view of the above facts, the Informant has prayed the Commission to direct the Director General (hereinafter, the DG) to cause an investigation into the affairs of the OPs in performing their obligations under the HUDA Act and Haryana Urban Development Act and abuse of their position in the State of Haryana restrain the OPs from invoking the bank guarantee against the developers pending adjudication of this information restrain the OPs and direct them to cease and desist from compelling developers to pay any pending EDC and IDC or any increase thereof along with interest direct the OPs to renegotiate the licenses and bilateral agreements with realistic time-schedules based on mutually agreeable development milestones and payment schedules direct the OPs to return interest on EDC and IDC paid in advance by the developers in territories where they have carried out no development work direct the OPs to revise the EDC and IDC as mutually feasible and as per reasonably acceptable development schedule impose penalty on the OPs for abusing their dominant position to the prejudice of the developers and pass such other and further order, as the Commission may deem fit and proper in the circumstances of the case.", "The Commission considered the information in its ordinary meeting held on 31.08.2017 and decided to have a preliminary conference with the parties on 27.09.2017.", "On 27.09.2017, the Informant and the OPs appeared through their respective learned counsel.", "While the learned counsel for the Informant argued the matter, the learned counsel appearing on behalf of the OPs sought extension of time to file a response to the information.", "The Commission directed the OPs to file their reply within four weeks.", "Subsequently, a counter affidavit dated 08.12.2017 was filed by OP-1.", "In the counter-affidavit, OP-1 has submitted that the present complaint is not maintainable, as OP-1 does not fall within the definition of enterprise as defined in Section 2(h) of the Act.", "It is not engaged in any activity relating to the production, storage, supply, distribution, acquisition or control of articles or goods or the provision of services of any kind.", "It only deals with the planning of urban areas and is the implementing agency for the provisions of the Haryana Development Act and Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (hereinafter, the Punjab Development Act).", "It is averred that as none of the functions being performed by OP-1 under these Acts fall within the definition of enterprise as defined in the Section 2(h) of the Act, the present complaint ought to be dismissed.", "Further, OP-1 has argued that since the developers neither buy any goods nor hire or avail any service as defined in Section 2(u) for consideration from OP-1, neither the Informant nor the developers getting licence for development of colonies are the consumers of OP-1 as defined in Section 2(f) of the Act.", "Moreover, the agreements executed by the developers are required to be executed as part of the Rules of 1976 framed under the Haryana Development Act and the same do not fall within the ambit of anticompetitive agreements or abuse of dominant position under Sections 3 and 4 of the Act.", "Hence, the present complaint against OP-1 is not maintainable and is liable to be dismissed.", "Furthermore, regarding the issues raised by the Informant relating to payment of EDC in accordance with the terms and conditions of the bilateral agreement executed between OP-1 and the developers, OP-1 has submitted that these issues have been already examined and decided by the Honble High Court of Punjab and Haryana at Chandigarh in CWP Number 9558 of 2015 titled VPN Buildtech Pvt.", "Limited v. State of Haryana and Others and other connected petitions, vide order dated 15.12.2015.", "OP-1 has submitted that even before the Honble High Court, the developers had contended that the conditions stated in the agreements are unilateral and arbitrary and hence, they are not liable to pay the tentative ad hoc EDC amount as stipulated in the agreements.", "Further, it was contended that the OPs are not entitled to collect further instalments of EDC amount till the External Development Works are carried out and also no amount of interest is payable by them on the delayed payment of instalments of EDC.", "In addition, the developers had contended that they are liable to pay the EDC in proportion to the expenditure incurred by the OPs on execution of the External Development Works around their colony and that the practice and procedure adopted by the OPs requiring the developer to pay the entire amount of EDC without linking the same to the extent of development being carried out is illegal and unjustified.", "A plea was also raised that certain charges such as land cost, cost of grid sub-station, administrative charges, cost of maintenance of energy charges and cost of price escalation should not be counted while calculating the total cost of EDC.", "However, the Honble High Court vide order dated 15.12.2015 dismissed these petitions.", "Against this order, some of the developers filed Special Leave Petitions (hereinafter, SLP) before the Honble Supreme Court, which are still pending including the main SLP Number 5459 of 2016 titled Magnolia Propbuild Pvt.", "Limited v. State of Haryana and Others.", "In the meanwhile, the Honble Supreme Court, vide interim order dated 31.03.2016, has restrained OP-1 from encashing the bank guarantees submitted on account of nonpayment of EDC.", "Thus, it is submitted that as the matter for the same cause of action is already pending adjudication before the Honble Supreme Court, the present complaint ought not to be entertained by the Commission.", "OP-1 has also contended that in the above circumstances, the plea raised before the Commission that the terms and conditions of Sohna LOI, Sohna Agreement and Sohna Licence are unilateral and arbitrary is misconceived and without merit.", "It is only an attempt to avoid paying the EDC amount, which the developers have expressly undertook to pay in instalments in consideration of the licences granted to them by the OPs for developing colonies.", "The developers, having derived benefits under the very agreements by developing the colonies and selling the premises therein, are now seeking to avoid their financial obligations.", "Hence, grant of any relief would be unfair and financially disastrous for the OPs and hamper the development works in the State of Haryana.", "Responding specifically to the allegations in the information, OP-1 has stated that, up to October 2017, about 41 licences had been granted in the Urban Estate of Sohna for development of residential plotted group housing commercial IT park colonies.", "These licences were granted to the developer companies and their associate companies individual land owners after they had complied with the terms and conditions of the LOI and executed LC-IV agreement with OP-1. OP-1 has contended that before grant of licence the developers themselves had undertaken to pay the due amount of EDC.", "No plea was raised by them at that time that payment of EDC should be linked to the execution of the External Development Works by the Government.", "However, when the developers failed to comply with their undertakings, they raised a plea that the conditions of payment of EDC were unilateral.", "Under the LC-IV agreement, the developers had opted to pay EDC amount in instalments, alongwith interest and additional penal interest at the rate of 3 p.a., in case of default in payment of instalments.", "However, EDC amount due as per schedule fixed in the agreement was not paid by all the developers.", "In fact, some developers did not even pay the first and second instalments.", "As a result, an amount of around Rs. 121399.7 lacs is still outstanding against the licencees.", "OP-1 has stated that in such a situation, the allegations that any steps for execution of the External Development Works around the colony area of the developers had not been initiated or that the terms and conditions of the agreements are arbitrary and unjustified.", "Further, OP-1 has stated that since all the developers to whom licence has been granted in the Urban Estate of Sohna have not made full payment of the due amount of EDC, the external development works can be taken up in full swing only after due payment has been made by the developers otherwise, the development works would come to grinding halt due to paucity of funds.", "The incomplete projects would neither benefit the developers nor the ultimate beneficiaries i.e. allottees.", "Otherwise also, the Government will not be able to divert its funds from other projects for this work.", "Responding to the contention of the Informant that the execution of the External Development Works should be in proportion to the amount paid by the developers, OP-1 has explained that the word proportion as used in Section 3(3)(a)(ii) of the Haryana Development Act only means that the developer is required to pay the amount of EDC in proportion to the area for which licence has been obtained by it qua the total area of the town proposed to be developed as per the Development Plan prepared under Section 5 of the Punjab Development Act.", "Thus, the clause regarding payment of EDC amount mentioned in Section 3(3)(a)(ii) of the Haryana Development Act as well as Rule 11 of the Rules 1976 and in the LC-IV agreement is with respect to the quantum of EDC amount payable and is not linked to the amount quantum of External Development Works carried out at any given point of time.", "Further, OP-1 has stated that it is also not practically possible to execute the development works in proportion to the amount paid by the developer.", "It is not feasible that if the developer pays say Rs. 1.00 crore, HUDA should first spent Rs. 1.00 crore on part execution of the development works.", "The services as envisaged to be provided as per clause (g) of Section 2 of the Haryana Development Act cannot be executed in parts.", "For example, the land required for construction of colleges, hospitals, sports complex or other similar purposes cannot be acquired in parts.", "Similarly, if some water pipes for bringing water to the city are required to be laid down, they cannot be purchased or laid out in parts.", "The External Development Works are executed over a period of time and these are long gestation projects linked to the growth of population of the town.", "It is unreasonable to expect that the State could execute all the External Development Works immediately without being funded in toto for the same from the developers getting the licences.", "Regarding charging of interest penal interest on delayed payments, OP-1 has submitted that according to the terms and conditions of the LC-IV agreement, the developers have the option to pay the EDC amount in lump sum without interest within 30 days from the date of grant of licence or in eight to ten equal half yearly instalments alongwith interest.", "It is also provided that in case of default in payment of instalments on due dates, additional 3 p.a. penal interest would be charged.", "Thus, the provision for interest and penal interest is an integral part of the contract executed between OP-1 and the developers.", "Accordingly, the developers are liable to pay interest on the delayed payment of the EDC.", "In addition to above, OP-1 has stated that as per the terms and conditions of LC- IV Agreement, initially the services like water supply, sewerage and drainage etc.", "are to be provided by the developers and they are supposed to take care of the immediate needs of the plot flat holders.", "These services are later on connected to the services provided by the HUDA.", "Therefore, even with the completion of internal services within a colony, provision of which is the responsibility of the developer, it should be possible for the plot flat holders to take possession of their plot flat and raise construction thereon.", "OP-1 has denied that the OPs have used their dominant position in the relevant market to impose unfair conditions for grant of licences.", "Further, it is also denied that the terms and conditions of the Sohna LOI are unfair or that there is extensive obligation on the developers in terms of the development works.", "OP-1 has stated that as per the terms and conditions of the Haryana Development Act and the Rules of 1976 made thereunder, the internal development works have to be completed by the developer.", "No cost of execution of the internal development works is recovered by the OPs.", "The licence fee is also prescribed in the Rules.", "The EDC amount to be paid by the developer is in proportion to the area for which licence is granted.", "The amount is determined by OP-1 and the Applicant for licence is aware about the EDC IDC and the conversion charges that are to be paid in case license is granted.", "These charges are fixed and the developer is aware about the payment schedule.", "This is also intimated to the developer in the LOI.", "Furthermore, the agreement does not state that the development works would be executed in proportion to the amount of EDC paid by the developer.", "Rather it was made clear to the developers of Sohna that it would take some time for HUDA to initiate the development works in Sohna and until then they would have to make their own internal arrangement for providing such facilities.", "Therefore, it cannot be alleged by the Informant that the OPs have abused their dominant position.", "In fact, the developers getting licence in the Urban Estate of Sohna have not paid the due amount of EDC payable by them as per the terms and conditions of the agreement and are now wrongly alleging that the OPs have failed to perform their obligation regarding execution of the External Development Works.", "Also, OP-1 has stated that it is incorrect that the developers have no opportunity to negotiate the clauses of the licence agreement.", "It is stated that the agreement clauses have been mentioned in the Rules of 1976 itself.", "Therefore, the developers are aware about the clauses even before they submit application for grant of licence.", "If the terms and conditions of the agreement do not suit them, they are free not to submit an application for grant of licence.", "Finally, OP-1 has submitted that the Government is not denying its responsibility to execute the External Development Works in the urban estate of Sohna.", "Every penny received from the developer companies on account of EDC would be spent for execution of the External Development works in Sohna Urban Estate only.", "The Commission has considered the material available on record and has also heard the parties.", "At the outset, it is noted that OP-1 has firstly challenged the jurisdiction of the Commission to investigate the instant matter.", "Accordingly, the Commission finds it appropriate to first deal with the preliminary issue of jurisdiction, before delving into the merits of the case.", "It has been submitted that the OPs do not fall within the definition of enterprise and, therefore, the present information against them is not maintainable.", "On the contrary, the Informant has alleged that the OPs are covered within the ambit of definition of enterprise, as given in Section 2(h) of the Act.", "In this regard, the Commission observes that Section 2(h) of the Act defines enterprise as a person or a department of the Government, which is engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind.", "The definition is very wide and covers every type of engagement in any activity.", "The only exception which is carved out in the said definition is the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "In the instant case, it is observed that even if the activity of issuing licenses by OP-1 were to be construed as exercise of sovereign power, the levy of EDC IDC by it on the developers and consequently upon the end-consumers i.e. allottees home- buyers, cannot be construed as such.", "Moreover, the mere fact that OP-1 is in a particular position by virtue of statutory provisions with respect to certain activities and there is absence of profit therefrom, does not imply that it is performing a sovereign function necessitating its exclusion from definition of enterprise.", "Clearly, the activities of OP-1 in the form of levying of EDC IDC have a direct economic commercial impact.", "In other words, OP-1 is performing actions relating to economic commercial activities, which in turn is affecting provision of development and construction services by the developers.", "Thus, in view of foregoing, the Commission is of the opinion that OP-1 is covered within the ambit of the term enterprise as defined in the Act.", "Another contention raised by OP-1 is that the developers are not consumers under the Act.", "In this regard, the Commission observes that the definition of consumer under the Act includes not only end consumers but also intermediate consumers i.e. those who buy goods or avail services for any commercial purpose.", "The OPs here are engaged in provision of commercial economic services, which are being availed by the developers on payment of requisite fee and charges levied on them.", "Thus, the Commission finds that the developers in this case are covered within the definition of consumer under the Act.", "Next, OP-1 has submitted that as the matter is pending before the Honble Supreme Court, the information before the Commission on similar grounds should not be entertained.", "The Commission finds this contention devoid of any merit for the reason that the availability of remedies before any other fora or under any other law do not oust the jurisdiction of the Commission per se.", "It is the duty and the mandate of the Commission to eliminate practices having an adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets and for fulfillment of such objectives, the Commission can proceed with the instant matter simultaneously with the proceedings of the Honble Supreme Court.", "As per Section 62 of the Act, the provisions of this Act are in addition to the provisions of any other law for the time being in force.", "Further, Section 61 of the Act provides that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Commission is empowered by or under this Act to determine.", "Certainly, it is not the case of the OPs that the matter pending before the Honble Supreme Court involves issues relating to abuse of dominant position by the OPs in violation of Section 4 of the Act.", "Thus, the Commission may examine the instant matter in order to ascertain if there is any anti-competitive conduct or practice in the markets in terms of the provisions of the Act.", "Now, in order to examine the conduct of the OPs under Section 4 of the Act, firstly determination of relevant market, in both its product and geographic dimension, is required.", "The Informant in the present case has delineated the relevant product market as the market for development of infrastructure and real estate and the relevant geographical market as the State of Haryana.", "It is noted that as per the information, the Informant in the matter comprise of a group of persons (Informants members) who are engaged in the development of real estate, particularly housing colonies, in the National Capital Region, which are thereafter sold to individual plot holders.", "The grievance of Informant with OP-1 and OP-2 in the instant matter relates to development of Group Housing Colony in the revenue estate of Tehsil Sohna, Gurugram District in Haryana.", "Keeping in view the above facts, the grievance of the Informant and the relevant provisions of the Act, the Commission is of the considered opinion that the relevant product market in the instant case is market for issue of licenses and development of infrastructure for residential plotted group housing commercial colonies.", "With regard to the relevant geographic market, the Commission observes that the jurisdiction of the OPs covers all the urban areas of Haryana and cannot be restricted to a particular tehsil from which the grievance of the Informant emanates.", "Thus, the relevant geographic market in the present case would be the State of Haryana.", "Accordingly, the relevant market is delineated as the market for issue of licenses and development of infrastructure for residential plotted group housing commercial colonies in the State of Haryana.", "Next, with respect to the issue of dominance of the OPs in the relevant market, the Commission notes that OP-1 and OP-2, by virtue of being statutory authorities under the Haryana Development Act and HUDA Act for issue of licenses and development of infrastructure in the State of Haryana, appear to be in a position of strength whereby they can operate independently of the competitive forces prevailing in the market.", "OP-1 is the only department that can issue license to developers for development of colonies and OP-2 is the only authority to undertake external development works in the State of Haryana.", "The developers, who are consumers of these services are entirely dependent on these authorities for these services, owing to their statutory powers.", "Thus, prima facie, the OPs appear to be in a dominant position in the relevant market delineated supra.", "Regarding abuse of dominant position, the Commission notes from the information that under the Sohna Master Plan, several proposals were made to facilitate development of infrastructure facilities such as providing connectivity and transportation, public utilities etc.", "for which land was to be acquired and developed by the OPs.", "However, in several instances, OP-1 has failed even to acquire the land for these purposes, even though licenses have been granted to several developers for development under the Sohna Master Plan and EDC IDC amount is being levied upon them.", "Further, the Commission observes that the Informant has submitted that its members have till date deposited Rs. 375.38 crores and Rs. 137.18 crores towards the EDC and IDC amounts respectively with the OPs without any progress on the development works.", "It has been alleged that even the deployment and use of these funds by the OPs does not seem to be on transparent basis.", "To elucidate this, the Informant has stated that despite seeking information regarding receipt and expenditure of EDC IDC amount with respect to Sohna region under Right to Information Act, 2005, no specific response was given by OP-1. OP-1 merely provided its total year wise receipt and expenditure of EDC IDC amount, a bare perusal of which shows that about 60 percent of the total IDC amount was used as loan for refund purposes in other schemes floated by OP-2.", "This indicates that OP-1 may be collecting EDC IDC amount for a particular area and applying the same for some other location in the State of Haryana.", "In addition, the Commission notes the main allegation of the Informant is that the agreements executed by the OPs with the developers are one-sided and loaded heavily in favour of OP-1.", "It has been alleged that by virtue of the terms and conditions in Sohna LOI, Sohna Agreement and Sohna Licence, OP-1 has excluded itself from any obligations and liabilities, and has compelled the developers to agree to the terms of these documents in toto.", "It has been further alleged that the conduct of the OPs to impose charges without undertaking any development works or communicating any information on the status of Master Plan and not allowing developers to claim any damages or modification to the clauses imposing penal interest is unfair and onerous on the developers.", "Having considered the submissions of the Informant and the response of OP-1 thereto, the Commission is of the opinion that even though the terms of Sohna LOI, Sohna Agreement and Sohna Licence relating to EDC IDC emanate largely from the statutory provisions of the relevant statutes, prima facie the terms of these documents appear to be one-sided and in favour of the OPs.", "Further, the alleged conduct of the OPs such as failure to adhere to its obligations under the Sohna Master Plan in a time-bound manner and imposing onerous obligations on the developers to pay EDC IDC, prima facie, appears to be abusive.", "In response to the allegations, OP- 1 has not denied that it has not provided External Development Works in accordance with the Sohna Master Plan, rather it has justified that it is not possible to provide such services unless the entire EDC IDC amount is paid by the developers alongwith interest and penal interest.", "The Commission finds that the conduct of the OPs whereby they have not undertaken any External Development Works related to the Sohna project is ultimately affecting the end consumers i.e. the allottees home- buyers, as because of non-development by the OPs, the completion of the project is getting delayed and the same is rendered uninhabitable.", "Thus, in view of foregoing, the Commission is of the opinion that the conduct of the OPs prima facie appears to be in contravention of the provisions of Section 4(2)(a)(i) of the Act.", "Accordingly, the DG is directed to cause an investigation into the matter, complete the investigation within a period of 60 days from the receipt of this order and submit its report.", "It is, however, made clear that nothing stated in this order shall tantamount to expression of final opinion on the merits of the case and the DG shall conduct the 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+{"id": "CCI_Crown_Theatre__vs__Kerala_Film_Exhibitors_FederatiCO201511091520513647COM591299", "text": ["Order under Section 27 of the Competition Act 2002 The present order shall dispose of the information filed by M section Crown Theatre (hereinafter, the Informant) under section 19(1)(a) of the Competition Act, 2002 (hereinafter, the Act) against Kerala Film Exhibitors Federation (hereinafter, the Opposite Party OP), alleging inter alia contravention of the provisions of the Act.", "Facts 2 .1 The Informant, a partnership concern, is stated to be a single screen theatre established in the 1930s in Calicut, Kerala.", "It has been engaged in release exhibition of English and Hindi movies for the last 80 years.", "In April 2012, the Informant converted itself from a single screen theatre to a theatre with two screens, equipped with state of the art facilities including seating and projection systems.", "The Informant claims to have started screening Tamil and Malayalam films in its theatre thereafter.", "2 OP i.e., Kerala Film Exhibitors Federation (KFEF) is registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955.", "It is stated to be an association representing film theatres in Kerala and about 315 film theatres in the State of Kerala are its members.", "Membership of OP is subject to recommendation from one of its executive committee member and two other members as well as approval by its executive committee and working committee.", "2.3 The allegations of the Informant are largely directed towards anti-competitive practices and abuse of dominant position by OP in preventing screening of Malayalam and Tamil films in theatres in Kerala.", "As per the Informant, OP has been controlling and restricting the exhibition of new movies across Kerala.", "In September 2012, OP directed its members to strike stop screening films in their theatres as a mark of protest against an increase in service charge and certain policies of the State Government of Kerala towards film industry.", "In October 2012, it was decided to indefinitely close down the cinema halls w.e.f 02.11.2012.", "The Informant apprehended that this move will lead to huge losses as an upcoming English movie Skyfall was due to be released shortly.", "As per the Informant, while the producers of vernacular movies could postpone the release of their movies till the duration of the strike, in case of English Hindi movies which are released all over India simultaneously, the strike would cause huge loss to the Informant.", "4 Due to differences with OP, the Informant resigned from its membership in November 2012.", "For a few months after resignation of its membership, the Informant continued getting new Tamil and Malayalam films for release and exhibition at its theatre.", "However, sometime around May 2013, OP started directing the distributors in the State of Kerala to abstain from giving films to the Informant.", "The Informant has alleged that such conduct of OP amounts to abuse of dominant position as it has denied restricted the exhibition of films to non-members in the State of Kerala.", "2 .5 The Commission, after examining the facts and material on record, passed a prima facie order dated 08.05.2014, observing violation of the provisions of section 3(1) read with section 3(3) of the Act in the matter.", "The Director General (hereinafter, the DG) was directed to conduct an investigation into the matter and to submit a detailed investigation report to the Commission.", "DGs Investigation 3.1 In terms of section 26(3) of the Act, the DG submitted the investigation report to the Commission on 25.05.2015.", "The primary issue that was investigated by the DG was whether there was denial of distribution of Malayalam and Tamil films to the Informant after May 2013 at the behest of or under the pressure of OP in contravention of section 3(1) read with section 3(3)(b) of the Act.", "3 .2 The DG has largely relied on the submissions and evidence provided by the parties, including third parties, and also the findings of investigation in an earlier similar case (Case Number 45 of 2012) against the same OP to conclude that OP has infracted the provisions of section 3(1) read with section 3(3)(b) of the Act.", "The subsequent paragraphs highlight the submissions evidence provided by different parties which were relied upon by the DG.", "3 . 3 Mr. Roopesh G. Makhija, Manager of R.M. Films (a distributor), Calicut (hereinafter, Mr. Makhija), vide an affidavit dated 15.04.2015 before the DG, has submitted that OP has been indulging in the practice of boycotting theatre owners in case they do not agree to its actions diktats.", "With regard to the dispute between the Informant and OP, Mr. Makhija has submitted that OP had some issues with the Informant since the Informants partners disregarded the demands of OP.", "As a result, distributors were asked not to supply Malayalam and Tamil films to the Informant.", "Mr. Makhija further stated that, in case a distributor does not agree with the diktats instructions of OP, that distributor is also boycotted and OP does not allow the said distributors movies to be screened in Kerala.", "Therefore, distributors and theatre owners generally succumb to the directives of OP apprehending that such boycott may lead to huge financial loss to them.", "When provided an opportunity to rebut, Mr. P.V. Basheer Ahmed, President of OP has stated that Mr. Makhija is not in the field of distribution for last 10 years.", "The same, however, was found to be incorrect by the DG.", "3 .4 The DG has also relied on the submissions of Mr. Mukesh Mehta of M section E4 Entertainment, sub-distributor of 20th Century Fox (producer for the film Raja Rani).", "Mr. Mukesh Mehta has stated that Mr. Basheer Ahmed had called him to stop screening of the film Raja Rani and asked him to support only those theatres which were regularly screening Tamil and Malayalam films.", "He further stated that there is an understanding between the distributors, producers and OP that the distributors would release films only in agreed theatres which the distributors normally consent to.", "It is also submitted that Mr. Basheer Ahmed is following enforcing this agreement and as a distributor, M section E4 Entertainment can release movies only in mutually agreed centres.", "The DG provided an opportunity to Mr. Basheer Ahmed to contest the submissions made by Mr. Mukesh Mehta.", "He accepted the fact of premature withdrawal of the movie Raja Rani from the Informant theatre but stated that the movie was withdrawn due to pressure from government theatres.", "However, he failed to produce any evidence to show that any pressure was exerted by the government theatres.", "3.5 It has been alleged by the Informant that M section Friday Tickets, a film distribution company, has denied the distribution of the movies Philips and the Monkey Pen and Zachariyayude Garbhinikal to the Informant.", "M section Friday Tickets, before the DG, has accepted that it did not distribute the above two films to the Informant because of the ban imposed by OP on the Informant.", "It is further stated that going against the ban would lead to serious financial repercussions on its business and it would not be able to exhibit its movies in any other theatre across Kerala.", "Ms. Sandra Thomas, Managing Partner of M section Friday Tickets has confirmed that a ban was imposed on the Informant because of OPs threats and has submitted that not following the directions of OP would endanger their business relationship with other members of OP.", "When given an opportunity to defend, Mr. Basheer Ahmed merely denied the statement of Ms. Sandra Thomas as baseless.", "3.6 M section Lal Jose Film Private Limited is another distributor which refused Malayalam movies to the Informant.", "M section Lal Jose Film Private Limited vide its letter dated 30.07.2014 confirmed that though they approached the Informant for the film Pullipulikalum Attinkuttiyum, ten days before the release of the said film they received information of the ongoing dispute between the Informant and OP, due to which they did not release the said film in the Informants theatre fearing financial repercussions.", "Further, vide its letter dated 11.03.2015, M section Lal Jose Film Private Ltd. has stated that if they screen the movies against the diktat of OP, it would create problems with other theatres in the Malabar area.", "3.7 From the response received from M section Murali Films, the DG observed that though it has supplied the film Nee Ko Njaa Chaa to the Informant, it did not supply the movie Celluloid owing to the problems between OP and the Informant.", "Further, the statement given by M section Murali Films reaffirmed the allegations of the Informant that due to pressure of OP, the distributors were not offering fresh release of Malayalam and Tamil movies to the Informant.", "When provided an opportunity to counter the statement made by M section Murali Films, Mr. Basheer Ahmed submitted that movie Celluloid was banned by Film Distributors Association and the Informant did not screen it due to the above said ban.", "3.8 The DG also relied on its findings against KFEF (i.e., OP) in Case Number 45/2012.", "The DG, in that case, found that OP indulged in anti-competitive conduct by restricting new releases to take place in the theatres other than its members.", "OP threatened and prohibited the producers distributors also from giving new releases to the non-members.", "Further, OP banned several movies of producers distributors which disregarded its mandate and ventured out to release their movies in theatres of non- members of OP.", "As such, because of its economic clout, OP apparently has a stronghold over the Malayalam and Tamil film industries of Kerala and, resultantly, producers distributors are hesitant to release movies to any theatre other than the members of OP.", "3.9 During the investigation, the DG found that the Informant ceased to be a member of OP after its resignation vide letter dated 01.11.2012.", "After May 2013, the Informant received only one Tamil movie in its theatre namely Raja Rani.", "However, even this film was withdrawn after three days because of the direct interference of Mr. Basheer Ahmed through a phone call made to the sub-distributor of Raja Rani i.e., Mr. Mukesh Mehta of M section E4 Entertainment.", "Thereafter, no Tamil Malayalam film was exhibited in the theatre of the Informant in spite of it having two screens and sufficient screen time for vernacular movies.", "Thus, the DG has noted that the issue involved in both the cases, i.e. Case Number 45 of 2012 and the instant case, are analogous.", "In both these cases there has been denial of new releases to the theatres of non-members of OP because of the economic clout and threat posed by OP.", "3.10 In response to the above submissions, OP has not been able to counter the allegations and evidence gathered against it.", "OP has merely denied the allegations without producing any cogent evidence whatsoever to show that after the resignation of the Informant and more specifically after May 2013 (when the last vernacular movie was displayed in the Informant theatre), any Malayalam Tamil movie was distributed to the Informant.", "OP has only mentioned that a Malayalam movie was released in the Informant theatre in the year 2006.", "3 .1 1 Based on the above, the DG reported that the Informant has been denied Malayalam Tamil movies since May 2013 because of the intervention of OP in violation of the provisions of section 3(1) read with section 3(3)(b) of the Act.", "3.12 The DG has also identified two key persons involved in the functioning of OP i.e., its President Mr. Basheer Ahmed and General Secretary Mr. M.C. Bobby.", "Reply Objections of OP 4.1 OP has filed its objections to the DG report vide its response dated 14.07.2015.", "It is submitted that the Informant theatre was established in the year 1930 and has been screening only English and Hindi films from the time it commenced its operations, except one or two Malayalam films.", "It is submitted that 95 of English or Hindi films that have been released in India were screened by the Informant and since it screens Malayalam films only during noon shows (non regular shows), the distributors are not willing to give regular release of Malayalam movies to the Informant.", "4 .2 It is submitted that on 02.11.2012, a strike was scheduled by OP in protest against the increase in service charge on theatres and also with respect to the policies of the government.", "The strike was withdrawn within 8 days after meeting with Ministers.", "OP has submitted that the Informants allegation is only with respect to the year 2013.", "OP has stated that it never interfered in any matter relating to the Informant theatre being a non member.", "It is submitted that the Informant resigned from membership of OP on 01.11.2012 and in its resignation letter the Informant has clearly stated that it screens mostly Hindi and English films, the release dates of which would not possibly be postponed till the end of the strike.", "4.3 Further, OP has stated that none of the shows were cancelled in the Informant theatre.", "With respect to submissions of M section R.M. Films of Calicut, it is stated that M section R.M. Films has not distributed any films for the past 10 years and even when it was doing business, it never screened any Malayalam movies in the Informant theatre.", "OP has also highlighted the statement of Ms. Sandra Thomas (M section Friday Tickets) that they were not aware of the exact reason for the ban of Informant theatre by OP and has submitted that M section Friday Tickets unilaterally decided not to screen their films in the Informant theatre.", "OP has also contended that third parties distributors have been erroneously relied upon by the DG as it is clear from their statements that, irrespective of the ban, such distributors had no intent to screen their films in the Informant theatre.", "4.4 OP has also pointed out the statement given by Mr. Mukesh Mehta of M section E4 Entertainment whereby Mr. Mukesh Mehta stated that the film Raja Rani was not withdrawn, rather it was mutually decided with the Informant to stop the screening of the film after three days due to apprehension that other exhibitors may refuse to screen the movie.", "In the context of Mr. Mukesh Mehtas conversation with Mr. Basheer Ahmed, it is stated that OP had never asked Mr. Mukesh Mehta to stop the movie Raja Rani in the Informant theatre.", "It is submitted that the film Raja Rani was screened in Government theatres and also at Ganga Theatre, Calicut.", "The Informant had license for 28 shows but it only screened 12 shows.", "So it was apparently because of some arrangement between the government theatres and the distributor.", "4.5 It is further submitted that Mr. Lal Jose, whose statement has been relied upon by the DG, categorically stated that he did not get timely confirmation from the Informant for release of his film.", "As per OP, it never banned any films distributed by M section Lal Jose Film Private Limited and highlighted that the film Neram was screened by the Informant.", "4.6 OP has also submitted that no action has been taken against any of its members or any exhibitor in the State of Kerala.", "All the theatres in Kerala are screening films of all languages as per their wishes and no restriction ban has been imposed against any of these theatres.", "It is alleged that since Mr. Basheer Ahmed filed a case against the Kerala Film Distributor Association before the Commission, the distributors persuaded the Informant to submit the present case against OP and its office bearers.", "It is submitted that M section Murali Films has released the film Nico Nan Chaa which was screened all over Kerala, it.", "Citing these instances, OP has requested the Commission to dismiss the findings of the DG as elucidated in the investigation report.", "Submissions of the Informant 5.1 Though no written reply response was filed to the DG report by the Informant, yet the Informant supported the findings of the DG and urged that the same be accepted by the Commission.", "It was further highlighted that OP could not demolish any of the evidence recorded by the DG during the investigation.", "The Informant has contended that the film Raja Rani , though screened only for three days in its theatre, received a very good response.", "Therefore, the Informant urged that the contention of OP that the film was withdrawn due to Informant being a non-regular Tamil Malayalam releasing theatre does not hold water and is liable to be rejected.", "It was further urged that the standard of evidence for proving an understanding agreement is preponderance of probabilities and the same is established from the evidence collected by the DG.", "The Informant, therefore, pleaded that the DGs findings need to be accepted in totality.", "Findings of the Commission 6 . 1 On a perusal of the investigation report submitted by the DG, the replies objections submissions filed by the parties and other materials available on record, the Commission feels that the primary issue that needs to be determined is: Whether OP interfered with the distribution of Malayalam and Tamil films to the theatre of the Informant in contravention of the provisions of section 3(3) of the Act? 6.2 The Informants case is that the denial of Tamil and Malayalam language movies to be screened at its theatre is due to the interference of OP which is alleged to be in contravention of section 3(1) read with section 3(3)(b) of the Act.", "The DG has found evidence to conclude that because of OPs intervention, regional language films i.e., Tamil and Malayalam movies were denied to the Informant theatre and the same has adversely affected the competition in the said market.", "6.3 The Commission has considered the evidence relied upon by the DG which inter alia comprises of statements furnished during the course of investigation in form of letters from distributors, their statements on oath, the affidavit of the Informant, submissions and affidavits of third parties etc.", "6.4 Mr. Makhija, Manager of R.M. Films, Calicut has submitted that the distributors have been directed by OP not to supply movie prints of Malayalam and Tamil language movies to the Informant.", "It is also submitted that if a distributor does not agree to the instructions of OP, that distributor is also boycotted and the OP does not allow that distributors movies to be screened in the State of Kerala in its members theatres.", "As such, it is quite clear that the Informant was not given Tamil and Malayalam movies by distributors because of the directions issued by OP.", "The evidence clearly brings out that exhibition of Tamil and Malayalam films to the Informant theatre were denied at the behest of OP.", "5 Further, the statement of Mr. Mukesh R. Mehta of M section E4 Entertainment, a distributor, makes it abundantly clear that the movie Raja Rani was withdrawn from theatre of Informant due to the pressure exerted by Mr. Basheer Ahmed, President of OP.", "The DG investigation has revealed that it is only after Mr. Basheer Ahmeds call that Mr. Mukesh R. Mehta intimated Mr. A.R. Vinod, partner in the Informant theatre, to stop screening the film Raja Rani owing to the pressure exerted by OP.", "The circumstances also support the allegation of the Informant in this regard.", "As per the Informant, the screening of the film Raja Rani in the Informant theatre was doing quite well for the three days after which it was withdrawn by the distributor i.e., M section E4 Entertainment, due to the interference of the President of OP directing the distributor to withdraw the movie from the Informant theatre.", "The Commission is convinced that the said film was withdrawn from the Informant theatre only at the instance of OP.", "6.6 Further, as per the statement made by Ms. Sandra Thomas, Managing Partner of M section Friday Tickets, before the DG, they have denied distribution of two films to the Informant because of the ban placed by OP due to the fear of financial repercussions in case they violated this ban.", "Similarly, M section Lal Jose Films Pvt.", "Limited also confirmed that the only reason it did not release its films with the Informant was the dispute between the Informant OP.", "It is evident from the statements of M section Lal Jose Films Pvt.", "Limited that it feared retaliation by OP and its member theatres in case it chose to release Malayalam Tamil movies in the Informant theatre.", "M section Murali Films also accepted that it did not supply films to the Informant due to the differences between the Informant and OP.", "6 .7 All the above statements provided by the third parties before the DG are of utmost relevance as they show how much strength OP possesses in the film industry in Kerala.", "As most of the big theatres are OPs members, every film distributor has inhibitions to release its film in any theatre which is experiencing differences with OP.", "Dealing with any theatre which is boycotted banned by OP (e.g., Informant theatre in the instant case) would entail financial repercussions to the distributor as its film would not be able to do good business in the State of Kerala if OP did not allow the same to be released in its member theatres.", "6.8 The Commission notes, as also recorded by the DG during its investigation, that the conduct of the present OP has also been examined by this Commission in an earlier case i.e., Case Number 45/2012 (Kerala Cine Exhibitors Association and KFEF others).", "While holding the conduct of KFEF i.e., the present OP, along with some other Opposite Parties in that case, to be anti-competitive, the Commission had imposed penalty on OP.", "6 . 9 The findings of the DG in the present case, which are well supported by convincing evidence, further reaffirm that OP has been indulging in and perpetuating anti-competitive practices.", "It is clear from the submissions of various film distributors that because of the diktats of OP, release of Malayalam and Tamil films were denied to the Informant.", "It is observed that OP was provided with adequate opportunities, during DG investigation and also before the Commission, to refute the submissions made by various distributors theatres but no sufficient explanation was tendered by OP.", "The OP has not been able to furnish any cogent evidence or reason to counter the allegations or the statements of the witnesses examined by the DG.", "The conduct of OP, is therefore, found to be anti-competitive amounting to controlling and limiting the supply of Malayalam and Tamil films in the State of Kerala, in contravention of section 3(1) read with 3(3)(b) of the Act.", "Since the said conduct falls under the presumptive rule of section 3(3) of the Act, a presumption is raised against OP that the said conduct has caused an appreciable adverse effect on the competition in the film exhibition industry in Kerala.", "6.10 In view of the foregoing, the Commission is of the view that the conduct of OP amounts to contravention of section 3(1) read with section 3(3)(b) of the Act.", "6.11 With regard to the liability of the office bearers of OP under section 48 of the Act, the DG has identified Mr. Basheer Ahmed and Mr. M.C. Bobby, President and General Secretary of OP, respectively, to be the key decision makers of OP.", "Section 48(1) of the Act provides that where a person committing contravention of any of the provisions of this Act is a company (including a firm or an association), every person who, at the time the contravention was committed, was in charge of, and was responsible for the conduct of the business of the company association, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.", "Further the proviso to that sub-section entails that such person shall not be liable to any punishment if he proves that the contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.", "As such the Commission notes that Mr. Basheer Ahmed and Mr. M.C. Bobby, being the President and General Secretary of OP, respectively, are responsible for the conduct of OP.", "It is evident that they were involved in the key decisions of OP.", "Mr. Mukesh Mehta of M section E4 Entertainment had also categorically stated he was directed by Mr. Basheer Ahmed over the phone to stop providing Tamil movies to the Informant.", "As a result, a movie namely, Raja Rani which was released at the Informants theatre was taken down after three days.", "As such, it is evident that Mr. Basheer Ahmed played an active role in enforcing the directives of OP in controlling and restricting the exhibition of new movies across Kerala.", "Further, Mr. M.C. Bobby, General Secretary of OP, is also responsible for the conduct of OP being in a key position.", "Moreover, in spite of ample opportunity given to them, they failed to adduce any evidence to establish that the anti-competitive decisions were made without their knowledge or that they had exercised all due diligence to prevent their commissioning.", "6.12 In view of the foregoing, the Commission is of the view that both Mr. Basheer Ahmed and Mr. M.C. Bobby, being in-charge of and responsible for the conduct of business of OP under section 48 of the Act, are liable to be penalised.", "6 .1 3 It is relevant to mention that in Case Number 45/2012, Kerala Cine Exhibitors Association v. Kerala Film Exhibitors Federation and Others, the Commission had already found these two office bearers responsible under section 48 of the Act and imposed a penalty 7 of their average income accordingly.", "ORDER 7 .", "Considering the findings elucidated in the earlier part of this order, the Commission finds that OP has indulged in anti-competitive conduct in violation of the provisions of section 3 of the Act.", "Further, two of its office bearers, namely, Mr. P.V. Basheer Ahmed and Mr. M.C. Bobby have continued with the said anti-competitive conduct despite the on-going investigation by the DG in Case Number 45 of 2012.", "It is thus clear that these persons have been repeatedly indulging in anti-competitive conduct to the detriment of competition in the market.", "Section 27 of the Act empowers the Commission to pass all or any of the orders enumerated therein, and issue such other order or direction as it may deem fit in case of contravention of the provisions of section 3 or 4 of the Act.", "Further, in case of an anti-competitive conduct committed by a company, including a firm or other association of individuals, the Commission may proceed under section 48 of the Act to penalise the individuals responsible for the anti-competitive conduct on the part of such company.", "The Commission observes that OP has been penalised in Case Number 45/2012, Kerala Cine Exhibitors Association v. Kerala Film Exhibitors Federation and Others for indulging in anti-competitive conduct which was of similar nature.", "Further, in various earlier cases pertaining to anti-competitive conduct by film associations, this Commission has taken a stern view that such activities are antithetic to competition and fair-play in the market.", "With regard to the penalty, it may be noted that the objective of imposing a penalty under section 27 of the Act is two-fold.", "Firstly, to discipline the erring party for its anti-competitive conduct and, secondly, as a deterrence to stall future contraventions.", "Such deterrence is not only for the concerned erring entity which has been found guilty of contravention, but also for all other entities which are operating under similar circumstances and are indulging in similar anti-competitive conduct.", "As spelt out earlier, in numerous cases pertaining to anti-competitive conduct by film associations, the Commission has imposed heavy financial penalties.", "As a matter of record, information in one such case was filed by the present OP against Film Distributors Association, Kerala.", "Further, the allegations against the anti-competitive conduct by OP was first reported to the Commission in mid-2012 in Case Number 45 of 2012 wherein the Commission directed the DG to initiate an investigation vide its prima facie order 09.01.2013.", "The Commission was seized of the matter in Case Number 45 of 2012 when OP further indulged in the similar anti-competitive conduct.", "However, it appears that OP has turned a blind eye to the past orders of the Commission against like film associations in other states for similar anti-competitive conduct as well as the on-going investigation against it in Case Number 45 of 2012.", "In view of these, the Commission issues the following directions under section 27 of the Act: OP and its office bearers, namely, Mr. P.V. Basheer Ahmed and Mr. M.C. Bobby shall immediately cease and desist from indulging in anticompetitive conduct which they have been found to be indulging in contravention of section 3 of the Act, as explained in earlier paragraphs.", "This shall come into effect immediately, i.e., on the day of receipt of this order by them.", "OP shall pay penalties as worked out hereunder and deposit the penalties calculated at the rate of 10 of its average income within 60 days from the receipt of the order by them: Further, Mr. P.V. Basheer Ahmed and Mr. M.C. Bobby shall pay penalties calculated at the rate of 10 of their average income as worked out hereunder and deposit the penalties within 60 days from the receipt of the order by them: OP shall not associate Mr. P.V. Basheer Ahmed and Mr. M.C. Bobby with its affairs, including administration, management and governance, in any manner for a period of two years.", "This shall be complied with before expiry of 60 days from the receipt of the order by OP.", "Mr. P.V. Basheer Ahmed and Mr. M.C. Bobby shall not associate with OP, including it administration, management and governance, in any manner for a period of two years.", "This shall be complied with before expiry of 60 days from the receipt of the order by them.", "OP shall organize, in letter and spirit, at least five competition awareness and compliance programmes over next six months in the State of Kerala for its members.", "The compliance of this shall commence before expiry of 60 days from the receipt of the order by OP.", "The OP and the office bearers of the OP, namely, Mr. P.V. Basheer Ahmed and Mr. M.C. 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+{"id": "CCI_In_Re_Baxalta_Incorporated__08092015__CCICO201520111519370657COM487238", "text": ["On 30.07.2015, the Competition Commission of India (Commission) received a notice under sub-section (2) of Section 6 of the Competition Act, 2002 (Act) given by Baxalta (Notice).", "The Notice has been filed pursuant to the execution of Global Separation and Distribution Agreement (GSDA) between Baxter International Inc. (Baxter) and Baxalta, on 30.06.2015.", "As per the details provided in the Notice, the combination relates to the acquisition by Baxalta of the bioscience business and related assets of Baxter (Target Business).", "Baxter and Baxalta are stated to be public limited companies registered in USA and listed on the New York Stock Exchange.", "As per the information given in the Notice, Baxter provides a broad portfolio of bioscience products (constituting the Target Business), intravenous solutions and nutritional therapies, drug delivery systems, etc.", "As stated in the Notice, Baxalta, prior to the combination, was a wholly owned subsidiary of Baxter and did not carry out any business activities.", "It has been submitted in the Notice that pursuant to the GSDA, the Target Business has been effectively transferred to the Acquirer on 30.06.2015 (Global Implementation), except in certain deferred jurisdictions, including India, where the transfer of the local target businesses will take place at a later date pursuant to local separation agreements (hereinafter, the implementation of the combination in India is referred to as the India Separation).", "Further, on 01.07.2015, Baxter distributed shares of Baxalta on a pro rata basis to its shareholders, cumulatively amounting to 80.50 per cent of Baxaltas shareholding and the remaining 19.50 per cent equity shares were retained by Baxter itself.", "In relation to business operations of Baxter in India, it has been submitted that it operates in India through two subsidiaries, namely, Baxter India Private Limited and Gambro India Private Limited.", "Under the India Separation, Baxters Indian bioscience business and related assets will be transferred to a newly created wholly owned subsidiary of Baxter, viz. Baxalta Bio Science (India) Private Limited (Baxalta India).", "Thereafter, the ownership and control of Baxalta India will be transferred to Baxalta.", "As already stated, prior to the Global Implementation, Baxalta was a wholly owned subsidiary of the Baxter, and did not carry out any business activities.", "Thus, there was no horizontal overlap or vertical relationship between the business activities of Baxter and Baxalta.", "It is also observed that the combination, including the eventual India Separation, relates to a structural separation of the Target Business from Baxter into a newly incorporated company, Baxalta.", "Accordingly, the said structural change is unlikely to result in any impact on competition in any market(s) in India.", "Considering the facts on record and the details provided in the notice given under sub-section (2) of Section 6 of the Act and the assessment of the combination after considering the relevant factors mentioned in sub-section (4) of Section 20 of the Act, the Commission is of the opinion that the combination is not likely to have any appreciable adverse effect on competition in India and therefore, the Commission hereby approves the combination under sub-section (1) of Section 31 of the Act.", "This order is issued without prejudice to any proceedings under Section 43A of the Act.", "This order shall stand revoked if, at any time, the information provided by the Acquirer is found to be incorrect.", "The Secretary is directed to communicate to the Acquirer accordingly."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt"], "secondary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "tertiary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "overall": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt"]}, "expert_2": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "None", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt"], "secondary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "tertiary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "overall": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt"]}, "expert_3": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt", "RatioOfTheDecision", "None"], "secondary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "tertiary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "overall": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt", "RatioOfTheDecision", "None"]}, "labels": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt", "RulingByPresentCourt"]}
+{"id": "CCI_In_Re_Sugar_Mills_30112011__CCICO110079COM515128", "text": ["Background The case under consideration relates to the allegations of certain anti-competitive practices of sugar mills in India.", "1.1 Before the proceedings of the case are discussed and analyzed, it would be better to keep the specifics of sugar industry in the backdrop, since that would help in understanding the dynamics of the entire industry.", "1.1.1 Sugar Industry occupies an important place in the Indian economy and is the second largest agro-based industry next to textiles in India.", "India is the second largest producer of sugar after Brazil.", "However, India is the largest consumer of sugar in the world.", "1.1.2 Sugar is normally produced from Sugar Cane.", "In addition to White Sugar, traditional sweeteners - Jaggery (Gur) Khandsari, which are consumed mostly by the rural population in India, are also produced from Sugarcane.", "Molasses, Ethanol and Bagasee are the by-products of sugar.", "The latter two can also be used as bio- fuels.", "Bagasse is also used as a renewable resource in manufacture of pulp, paper products, building materials and power generation.", "1.1.3 The first sugar plant in India was probably established by the French people at Aska in Orissa in 1824 and the first vacuum pan process sugar plant was set up at Saran in Bihar in 1904.", "Till about late 1920s, however, sugar industry had not grown much in India and the country had to meet its requirement largely through imports.", "Around 1930, initiatives were taken for giving a boost to the sugar industry.", "One of the problems which required intervention and support from the government was an assured and regular supply of sugarcane for the sugar mills.", "Accordingly laws were framed for ensuring a regular supply of sugarcane to sugar mills.", "1.1.4 Various regulations were also made for the general development of the sugar industry in 1930s.", "Sugar Industry Protection Act was passed in 1932 to protect domestic industry from the imported sugar.", "The number of sugar mills gradually increased from 30 in the year 1930 -31 to 135 in the year 1935-36 and the production during the same period increased from 1.20 lac tonnes to 9.34 lac tonnes.", "Cane Pricing Act was enforced to provide good price to the farmers.", "Subsequently, cane grower cooperatives were formed to set up sugar mills jointly with farmers.", "These mills came to be called as cooperative mills, to be run on ownership and sharing basis.", "1.1.5 The Industries (Development and Regulation) Act, 1951, placed the sugar industry in the First Schedule (Item Number 25) to the Act which meant that no sugar industry could be set up without a license of the Central Government.", "In exercise of the powers conferred by Section 3 of the Essential Commodities Act 1955, the Central Government made Sugarcane (Control) Order 1966 and the Sugar (Control) Order 1966.", "In addition to the above, Levy Sugar Supply (Control) order, 1979, Sugar (Packing and Marking) order, 1970, Levy Sugar Price Equalization Fund Act, 1976, Sugar Cess Act, 1982, Sugar Development Fund Act, 1982, Sugar Development Fund Rules 1983 were also passed and enacted.", "1.1.6 Sugar industry witnessed remarkable growth from 139 sugar factories in operation in 1950-51 producing 11 lakh tonnes of sugar to about 500 sugar factories producing approximately 282 lakh tones in the year 2006-07.", "The area under sugarcane also increased from 24.15 lakh hectares in 1960-61 to 51.51 lakh hectares in 2006-07.", "It is estimated that the per capita consumption of sugar increased from 4.8 kg per annum in 1960-61 to 18 kg per annum in 2006-07.", "1.1.7 There are now over 650 installed sugar mills in India of which about 490 mills were in operation during the crushing season 2009-10.", "Out of the total mills, about 50 are in cooperative sector, 260 mills (about 40) in the private sector and 62 (about 10) in the public sector.", "1.1.8 The main cane growing states in the country are Maharashtra, Uttar Pradesh, Karnataka, Tamil Nadu, Gujarat and Andhra Pradesh.", "Maharashtra and Uttar Pradesh are the leading sugar producing states.", "1.1.9 Sugar production in the country is cyclical in nature.", "It is generally observed that a year of high sugar production leads to decline in sugar prices and lower profitability, which in turn cause delay in making payments to the farmers by sugar mill owners.", "High sugarcane arrears lead to decline in the overall area under sugarcane cultivation and consequently lower sugarcane production.", "This situation gives rise to spurt in sugar prices.", "The high prices provide higher profitability to mills and higher payments to the farmers.", "This causes increase in the area under sugarcane cultivation, higher sugarcane production and also enhanced sugar production.", "This way the cycle keeps on repeating itself.", "1.1.10 During the sugar season 2009-10 estimated production of sugar was 18.912 Million Tonnes as against 14.539 Tonnes during 2008-09.", "The yield per hectare increased to 66.1 Tonnes in 2009-10 as against 64.6 Tonnes during 2008-09.", "1.1.11 Domestic demand for sugar has been showing a steady increase due to increase in population, enhanced purchasing power and rising standard of living.", "There is a rapid increase in industrial consumption for sugar also particularly in the food processing sector and sugar based bulk consumer sector such as soft drink and ice cream manufacture.", "It is estimated that approximately 61 of the sugar produced in the country is consumed by the industries and small units and the household consumption accounts for approximately 39.", "Profile of Parties in the Case 1.2 At this stage, it would also be pertinent to bring out a profile of the two bodies - Indian Sugar Mills Association (ISMA) and National Federation of Cooperative Sugar Factories Ltd (NFCSF), who have been named in various newspaper reports, as parties to the alleged anti-competitive practices during the period under consideration.", "1.2.1 Indian Sugar Mills Association Indian Sugar Mills Association (ISMA) is an association of private mills in India.", "Any person owning or managing one or more factories worked by steam, water, electric and or other power for the manufacture of sugar by vacuum pan process shall be eligible for the membership of the Association in respect of each such mill or factory.", "The affiliated associations of ISMA are U.P. Sugar Mills Association, West U.P. Sugar Mills Association, Central U.P. Sugar Mills Association, East U.P. Sugar Mills Association, Uttaranchal Sugar Mills Association, South Indian Sugar Mills Association, South Indian Sugar Mills Association - Tamil Nadu, South Indian Sugar Mills Association - Andhra Pradesh, South Indian Sugar Mills Association - Karnataka, West Indian Sugar Mills Association, Mumbai and Bihar Sugar Mills Association.", "1.2.2 National Federation of Cooperative Sugar Factories Ltd (NFCSF) 1.2.2.1 National Federation of Cooperative Sugar Factories Ltd (NFCSF) is an apex body of all the cooperative sugar factories in India.", "Its stated main objective is to protect and foster the collective interest of cooperative sugar factories for their continued growth and progress through Project Management, Engineering, Sugarcane management Up-gradation, Financial Management, Manpower Management, Liaison with Central Government and other agencies.", "NFCSF was registered as a Multi-Unit Cooperative Society on December 2, 1960 for promoting and guiding the increasing number of cooperative sugar factories at national level.", "Since 2002, NFCSF is deemed to be under the Multi State Cooperative Societies Act, 2002.", "Maharashtra Rajya Sahkari Sakha Karkhana Sangh Limited and other state level cooperative organizations, whose conduct is under examination in the instant case are the members of NFCSF.", "Information: 2.1 The Commission took note of a news article titled Cartelization by industry to push up sugar prices: Traders published on 26.07.2010 in The Economic Times that the Indian Sugar Mills Association and the National Co-operative Sugar Mills Federation had indulged in anti competitive activities.", "2 In the said news item, quoting Shri Ashok Jain, President, Bombay Sugar Merchant Association, it was stated that somewhere between 13th July to 24th July, 2010 the Indian Sugar Mills Association and the National Cooperative Sugar Mills Federation held a meeting in which it was decided to boost the ex-factory price of sugar by 4-6 in order to prevent open market sugar prices falling below the cost of production.", "It was alleged that the cooperative and private sugar mills had formed a cartel to boost ex-factory price of the sugar by an average of Rs. 3 per kg strategically just one month before the peak demand season.", "The news item also mentioned that sugar retail price stood around Rs. 29-30 per kg, against a wholesale price range of Rs. 2350-2600 per quintal which the industry had been contending was way below its production cost.", "The Bombay Sugar Merchant Association had stated that with the sudden increase in ex-factory prices of sugar, prices in the wholesale market would go up to Rs. 2900 - Rs. 3000 and retail prices would go up by about Rs. 3 per kg.", "2.3 The said news item also stated that with the Centre still to take a decision on whether or not to impose duty on white sugar, the industry had been claiming that its losses could total over Rs. 12,000 crore, if duty level remained zero until September, the start of new sugar crushing season.", "According to said news item, with the projected sugar production of over 25 million tonnes for the sugar season 2010-11, the industry feared that high sugar production would mean fall in domestic prices.", "The industry also feared that continued cheap imports could allow traders to stock up now and release sugar during peak demand season, keeping prices down.", "2.4 The Commission also took on record a copy of press release dated 22.07.2010 forwarded by Shri Ashok U. Jain, President, Bombay Sugar Merchants Association on the issue.", "2 .5 Taking note of the news item regarding cartelization by sugar producers, the Commission sought comments from the Ministry of Consumer Affairs, Food and Public Distribution which is responsible for the overall sugar policy in the country.", "The Ministry forwarded its comments stating that the Central Government has been following the policy of partial control over sugar.", "The Ministry also stated in its reply that there was firming of ex-mill prices of sugar in the 3rd week of July, 2010, which indicated that there might have been some attempt for cartelization.", "But in the 4th week of July, 2010 and beginning with August 2010, the ex-mill prices of sugar had shown a sliding trend in Maharashtra, Uttar Pradesh, Andhra Pradesh, Karnataka and Tamil Nadu which pointed out that the so called cartelization was perhaps not working at that moment.", "2.6 The Commission also took on record two study reports on Sugar viz, Report on Sugar Industry in India Report on Competition assessment in Indian Sugar Industry carried out by the Commission and its observations, in which it has been inter alia, stated that the cause of sugar price rise cannot be attributed to the demand pull factors as there are always more stocks in the country than the domestic demand.", "Further, the contribution of cost factor to price rise of sugar is not very significant and despite huge production of sugar since 2004 to 2007, the price of sugar has continued to rise at a high pace.", "Reference to Director General Based upon above, the contents of the news article published on 26.07.2010 in the Economic Times, press note of Bombay Merchants Association and inputs from Ministry of Consumer Affairs, Food and Public Distribution, having formed a prima facie opinion, the Commission directed the office of DG to conduct investigation into alleged cartelization by the Indian Sugar Mills Association and the National Cooperative Sugar Mills Federation (NFCSF) in order to raise price of sugar in violation of provisions of Section 3(3)(b) of Competition Act, 2002.", "Report by Director General 3 .", "Consequent upon the order dated 17th August, 2010 under section 26(1) of the Act of the Commission, DG carried out investigation into the whole matter and submitted his report of investigation.", "In order to examine the issues involved, notices and letters were sent by DG to various parties, viz Indian Sugar Mills Association (ISMA), National Federation of Cooperative Sugar Factories Limited (NFCSF), Maharashtra Rajya Sahakari Sakhar Karkhana Sangh Limited, South Indian Sugar Mills Association and eight (8) private Sugar Mills, identified as major sugar mills in the private sector.", "The Ministry of Consumer Affairs, Food and Public Distribution was requested to furnish certain information relevant for the purpose of investigation, particularly the manner of control exercised by the government over the sugar industry.", "DG also collected various orders and notifications as regards control on sugar from various sources.", "3.1 Statements of Shri Ashok U Jain, President, Bombay Sugar Merchant Association, Shri Abinash Verma, Director General, Indian Sugar Mills Association, Shri Prakash Naiknavare, Managing Director of Maharashtra Rajya Sahakari Sakhar Karkhana Sangh Limited, Shri R.S. Bhalerao, Secretary, South India Sugar Mills Association, Andhra Pradesh, Shri K.N. Rathinavelu, Secretary, South Indian Sugar Mills Association, Tamil Nadu, Shri Satish Kansal, Head of Sales, Mawana Sugars Limited were also recorded by DG.", "The statement of Shri R.P. Bhagria, Chief Director (Sugar), Directorate of Sugar, Department of Food Public Distribution was also recorded to get insight into the policies of the Directorate of sugar.", "3.2 DG after conducting investigation found that a meeting of certain sugar mills, sugar federations associations was held on 22.07.2010 at Mumbai.", "The meeting was convened by Maharashtra Rajya Sahakari Sakhar Karkhana Sangh Limited at Sakhar Bhavan, Mumbai by issuing a notice dated 14.07.2010 on the subject of Sugar Price Stabilization And other Issues.", "The stated purpose of the meeting was to arrest the sliding sugar prices below the cost of production and to discuss, share views and arrive at a consensus for preventing cash losses and financial crises and to maintain a good balance sheet.", "Based upon the attendance sheet of the participants in the aforesaid meeting, furnished in course of proceedings along with the reply of the Maharashtra Rajya Sahkari Karkhana Sangh Limited, DG observed that about 45 representatives, mostly the top functionaries of the federations and associations of the Cooperative and private Sugar Mills of Maharashtra, Karnataka, Tamil Nadu, Gujarat and Andhra Pradesh had attended the meeting held on 22.07.2010 at Sakhar Bhawan, Mumbai.", "Although representatives from four of the major private sugar mills of Northern India P.) also attended the meeting, no one had attended the meeting as representative of the sugar federations and associations of Uttar Pradesh.", "3.4 After making analysis of all available evidences on record, DG concluded that the sugar producers and their representative bodies -federations and associations from the states of Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh and Gujarat entered into an agreement in their meeting held on 22.07.2010 and decided to limit and control the distribution, sale and price of sugar by deciding not to sell sugar below the minimum fixed price in those states.", "3.5 According to DG, the meeting was intended to include the sugar mills of Uttar Pradesh too into this arrangement, since representatives from four prominent mills of P. had also participated in the meeting.", "However, no minimum price was fixed for the state of U.P. In this regard, DG has also relied upon the statement of the Secretary, SISMA, Andhra Pradesh (AP), Shri R.S. Bhalerao and Satish Kansal of Mawana Sugar Industries Limited to conclude that no decision was taken to fix the floor price for UP.", "Further, in the press release dated 22.07.2010 issued by the Sakhar Sangh also, the name of U.P. did not figure.", "The same also does not appear in the news item published by The Hindu Business Line dated 23.07.2010, which had reported about the aforesaid meeting.", "3.6 Based upon the statement of Shri Satish Kansai, Head of Sales, Mawana Sugar Mills Limited, who was present in the meeting held on 22.07.2010, DG has also concluded that in the meeting a core committee was constituted to work out the minimum floor price, to take stock of availability of sugar in the market, unsold stock with the factories and to decide the sugar floor price for the subsequent month.", "However, there was no presence of any representative from the State of U.P. in the core committee constituted for the purpose of, inter-alia, working out the minimum floor price for each state.", "3.7 In view of the above, DG has inferred that the mills of U.P. were not a party to the arrangement of fixation of the minimum floor price and that the agreement remained confined to the states of Maharashtra, Karnataka, Andhra Pradesh, Tamil Nadu and Gujarat and did not include the mills operating from Uttar Pradesh.", "3.8 According to DG, ISMA, the national level association of private sugar mills in India and NFCSF, the National Level Federation of Cooperative Sugar Mills, both denied their own participation in the meeting dared 22.07.2010, although the participants in the said meeting which included private mills and cooperative mills also happened to be the members of the two associations.", "3 .9 DG also investigated the matter about the press release which was allegedly issued after the said meeting as per press reports.", "The origin of press release, however, could not be traced in course of investigation.", "Mr. Prakash Naiknavare, Managing Director of Maharashtra Rajya Shakari Karkhana Sangh Limited, the society, which had convened the meeting, in his deposition dated 07.02.2011 before the DG, denied the fact that any press release was issued by the society.", "However, based upon the fact that the meeting dated 22.07.2010 was convened by the Society wherein issues mentioned in the press release in question were also discussed, DG concluded that the press release must have been issued by Maharashtra Rajya Sakhar Sahkari Sangh on the issue.", "According to DG, Sakhar Sangh and its Managing Director, Shri Naiknavare had given false submissions and concealed the facts by stating that neither any press release was issued by them nor had they indulged in any anti-competitive activity of taking a decision to determine any sales realization price of sugar.", "3.10 DG has noted that in the press release issued pursuant to the meeting held on 22.07.2010, it was decided inter-alia to fix the Minimum Floor Price for the different states of Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh and Gujarat for the period between 23.07.2010 and 31.08.2010.", "The press release mentioned the minimum floor prices as under:- Minimum Floor Price (Benchmark) for 23 July to 31 August 2010.", "( Rs. Per Qtl.) Grade MaharashtraNorth South Tamil Andhra Gujarat Karnataka Karnataka Nadu Pradesh States S-30 2700 2670 2700 2700 2700 2700 Super- 2725 2700 2725 2725 2725 2725 M-30 2750 2725 2750 2750 2750 2750 L-30 2800 2800 2800 3.11 According to DG, such an agreement to fix the minimum floor price contravened the provisions of subsection 3 (a) and (b) of section 3 read with section 3(1) of the Competition Act 2002.", "3.12 It has also been observed by the DG that ingredients of cartelization have been found to be present in the conduct of the sugar mills and their federations associations of all the above mentioned states, who had participated in the meeting dated 22.07.2010.", "Based upon the details of proceedings of the meeting communicated by the Secretary, SISMA to its members, DG has also found that the sugar manufacturers of Maharashtra Karnataka were in cartel agreement since 24th/25th June 2010 and the said agreement was extended to include the sugar mills of Tamil Nadu, Andhra Pradesh Gujarat also after the meeting dated 22.07.2010.", "3.13 While arriving at the aforesaid conclusion, DG has also taken note of the reply dated 09.08.2010 of Directorate of Sugar, Department of Food Public Distribution, New Delhi on the subject, in which it has been stated as under There were news reports that the private and cooperative sugar mills of Maharashtra, Uttar Pradesh, Andhra Pradesh, Karnataka and Tamil Nadu had held a meeting at Mumbai on 22.07.2010 and decided inter-alia, to fix the bench mark price of Rs. 2700 per quintal for S-30 grade sugar in an attempt to trim losses after the sugar price fell below cost of production.", "As per our information, the range of ex-mill prices of S-30 grade sugar in the markets of Maharashtra, Uttar Pradesh, Andhra Pradesh, Karnataka and Tamil Nadu during the period 20th to 23rd July, 2010, 26th to 30th July, 2010 and 2nd to 5th August, 2010 were as under: State 20th to 23rd 26th to 30th 2nd to 5th July, 10 July ,10 August, 10 Maharashtra2500-2725 2310-2685 2290-2400 Uttar 2640-2790 2690-2815 2665-2715 Pradesh Andhra 2550-2700 2500-2700 2360-2550 Pradesh Karnataka 2450-2700 2350-2500 2290-2350 Tamil Nadu 2580-2700 2550-2700 2360-2575.", "From the table above, it may be observed that there was firming of ex-mill prices of sugar in the 3rd week of July, 2010 which indicates that there may have been some attempt for cartelization.", "But in the 4th week of July, 2010 and beginning with August, 2010, the ex-mill prices of sugar have shown a sliding trend in Maharashtra, Uttar Pradesh, Andhra Pradesh, Karnataka and Tamil Nadu which points out that the so called cartelization is perhaps not working at the moment.", "3.14 DG has also relied upon the statements of Shri R.S. Bhalerao, the Secretary, South Indian Sugar Mills Association, Andhra Pradesh Shri K.N. Rathinavelu, the Secretary, South Indian Sugar Mills Association, Tamil Nadu who had attended the meeting on 22.07.2010, in which they have confirmed that in the said meeting the issue of fixation of the minimum floor price of different grades of sugar for the period 23 July to 31 August 2010 was discussed by the representatives of the sugar mills.", "DG has taken note of the fact that Secretary, SISMA, A.P. after the meeting has communicated to its members as follows: In the opening remarks Sri Prakash Naik Navare Managing Director, Maharashtra Cooperative federation informed that since 24th June, 2010 Karnataka and his state could maintain floor price of Rs. 2500/- per Qtl.", "as was decided by them earlier.", "However, with cane price averaging around Rs. 2000/- per MT, even at Rs. 2,500/- the factories would be making cash losses and suggested the floor price should be increased to at least Rs. 2,700/- per Qtl.", "All the members were agreeable for adhering to the floor price to be fixed 3.15 Similarly, in the communication of The Secretary, SISMA, Tamil Nadu to its members about the deliberations in the said meeting of 22.07.2010, it had been stated that after a lengthy discussion in the meeting, by a consensus, minimum floor price (bench mark) covering the period from 23.7.2010 was fixed for the various States.", "3.16 According to DG, the content and structure of the table showing the minimum floor price for the different grades of sugar for the different states, as communicated to its members by SISMA, A.P. and SISMA, T.N. are same as published in the press release after the meeting dated 22.07.2010.", "3.17 DG has also taken note of some of the reports and news papers articles like that of Reuters (dated 21st to 23rd July 2010), Times of India, Pune (dated 24th July 2010) and Economic Times, Delhi Mumbai (dated 26th July 2010) in which it has been reported that sugar mills their federations Associations had conducted a meeting on 22.07.2010 at Sakhar Bhawan, Mumbai and mutually decided to fix the minimum floor price of sugar in the states of Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh, and Gujarat.", "3.18 DG has also observed that the contents of the articles and news item are similar to the press release issued after the meeting of the cooperatives and federations on 22.07.2010.", "3.19 DG has also relied upon the submissions of Shri Satish Kansal, Head of Sales, Mawana Sugar Limited, who had furnished a copy of the news item reported in The Hindu Business Line, New Delhi published on 23.07.2010, in which Mr. Prakash Naiknavare, Managing Director of Maharashtra State Cooperative Sugar Federation has been quoted as stating that Cooperative mills in Maharashtra, Karnataka, Tamil Nadu Andhra Pradesh and Gujarat had unanimously agreed to raise the floor price for selling sugar in the open market by Rs 200 for 100 Kg in the meeting on 22.07.2010.", "3.20 In order to substantiate his findings, DG has also brought out that Shri Ashok U Jain, President, Bombay Sugar Merchant Association in his Written submission dated 03.02.2010 and also in his statement recorded in course of proceedings had also stated that the sugar factories in meeting dated 22.07.2010 had taken a decision to fix minimum floor price.", "However, the prices so fixed could be implemented only for a day or two.", "3.21 According to DG, evidences like the notice dated 14.07.2010 for the meeting dated 22.07.2010, the attendance record of the said meeting, the statements of the Secretaries of SISMA, Tamil Nadu and SISMA, Andhra Pradesh and the communication made to the member mills by them, the statement of Shri Satish Kansal of Mawana Sugars Limited, the submissions and statement of Shri Ashok U Jain, President, Bombay Sugar Merchants Association, news reports published in The Hindu Business Line, New Delhi dated 23.07.2010, news report of Reuters dated 21st to 23rd July 2010, Times of India, Pune dated 24.07.2010, The Economic Times, Delhi dated 26.07.2010 and Economic Times, Mumbai dated 26.07.2010 29.07.2010 conclusively establish that a meeting of sugar mills and their federations and associations was held on 22.07.2010 at Sakhar Bhawan, Mumbai wherein the sugar mills decided to fix the minimum ex-mill price of sugar.", "3.23 Based upon above the aforesaid evidences, DG has concluded that sugar mills through their associations federations had formed a cartel to fix the price of sugar in contravention to Section 3(3)(a) (b) of the Competition Act 2002.", "3.24 DG has also brought out that the process of sale of sugar by private mills and cooperative mills may differ, as in case of cooperative mills in Maharashtra the sale takes place through a process of tendering where mills invite bids and on the basis of the price received and quoted they accept or reject the bid.", "However, it has been concluded by DG that irrespective of the process of sale of sugar by the private and the cooperative mills, if all the mills had taken a concerted action not to sell sugar below the minimum fixed price then the prices could not have been determined by the dynamics of market as the prices would be those which had been decided by the mills in concert.", "3.25 While concluding that the sugar mills of the states of Andhra Pradesh, Karnataka, Maharashtra, Gujarat and Tamil Nadu had entered into a cartel agreement, DG in his report has also analyzed the reasons for the aforesaid agreement among the sugar mill owners.", "It has been observed by DG that after high prices in the year 2009, the sugar prices had started moderating due to various developments in the beginning of 2010.", "Production of sugar had also increased and the sugar mill owners were concerned with the declining sugar prices.", "3.26 According to DG, by the end of first quarter of 2010 the sugar mills were becoming increasingly apprehensive of financial crunch on account of higher sugarcane prices to be paid to the farmers, declining realizations from sale of sugar on account of lower prices in comparison to the earlier period, the downward valuation of the stocks by the banks and other financial difficulties relating to payments to cane farmers.", "It was in this background that the sugar mills met on 22nd July 2010 and decided to fix the minimum floor price.", "3.27 In response to the reply of sugar mills that a need was felt for keeping a minimum floor price in view of the fact that prices were going even below the cost of production and continuing losses, DG has concluded that the claim of continuing losses for all the mills in Maharashtra, Karnataka, T.N., A.P. and Gujarat is not fully correct.", "3.28 As regards Sakhar Sangh, DG has concluded that the ex-mill realization of sugar for the mills was much higher during the first quarter of the sugar season 2009-10 and the details of the cost of production and the net cash loss on the released quantity furnished by the Sakhar Sangh, cannot be accepted in view of the fact that the figures for only the months from April 2010 till July 2010 has been given, by which time the sugar prices had fallen.", "According to DG, Sakhar Sangh has deliberately not furnished the ex-mill realization from the commencement of the sugar season from October 2009 till March 2010 during which period the average ex- mill realization was very high.", "3.29 According to DG, the data furnished by the Sakhar Sangh, wherein they have shown net cash loss from April to July 2010, conceals the huge margins earned by the sugar mills from the month of October 2009 till at least February 2010 during which the ex-mill prices were ruling very high and had touched even Rs. 4200 per Quintal as against Rs. 2668 per Quintal in the month of April 2010.", "DG has also brought out that a comparative study of the estimated ex-mill price of sugar at different cane prices and recovery levels and the ex-mill price realization data of the mills show that while the ex-mill realization of some mills were lower than the minimum price fixed in the meeting held on 22.07.2010, the same for other mills was higher.", "Different mills in different regions have different cost of production and even different ex-mill realization.", "Similarly, the profit and loss for the sugar mills would also be different.", "Therefore, the claim of losses advanced by the sugar mills is not entirely true.", "3 0 From the data furnished by the sugar mills and Sakhar Sangh, DG has concluded that the claim of loss does not get established and the concerns of the sugar mills were more on account of fall in their profits rather than cumulative losses during the sugar season 2009-10 up to the date of the meeting held on 22.07.2010 for fixation of minimum floor price.", "3.31 DG has also brought out that the price of sugar also increased after decision was taken to fix the minimum floor price in the meeting held at Sakhar Bhawan Mumbai on 22.07.2010.", "In this regard, DG has cited the submissions of Shri R.P. Bhagria, Chief Director Sugar, Directorate of Sugar, in which it has been stated that sugar prices in Maharashtra which were in the range Rs. 2500-2520 per quintal on 21st July, 2010, increased to Rs. 2700-2725 per quintal on 22nd July, 2010 i.e. increase of Rs. 200 per quintal.", "Similarly in Karnataka, the Ex-mill prices which were ruling at Rs. 2500 per quintal jumped to Rs. 2700 per quintal on 23rd July, 2010 i.e. increase of Rs. 200 per quintal.", "In the state of Tamil Nadu also, the ex-mill prices which were ruling at Rs. 2580 per quintal on 21st July, 2010, jumped to Rs. 2700 per quintal on 22nd July, 2010.", "However, according to Bhagria, the ex-mill prices declined subsequently in a period of a two or three days which suggest that the cartelization was not working.", "3.32 DG has also noted from NCDEX website that the spot prices of S-30 grade of sugar in Kolhapur and Vashi also revealed a spurt in prices between 23rd July and 28th of July 2010.", "3.33 According to DG, the state federations associations and the private mills in the state of Maharashtra and Karnataka had already taken a decision to implement a minimum floor price of Rs. 2500/- per Quintal from 24th June, 2010.", "DG has brought out that ex-mill prices, in accordance with the agreement, had jumped from 24th June 2010 to 25th Jun 2010 in the states of Maharashtra and Karnataka as under: In Rs. per Qtl.", "States GradeMin.", "Change price on price on 25th 24th June June MaharashtraS-30 2400- 2515- 115- 2430 2545 115 Karnataka S-30 2360- 2500- 140- 2380 2520 140 3 .", "3 4 DG has noted that the minimum level of Rs. 2500 was maintained in Maharashtra from 25th June 2010 till 21st July 2010, except for only one day i.e. 7th July, 2010, when the minimum price was Rs. 2485.", "In Karnataka, the minimum level of Rs. 2500 was maintained from 25th June 2010 till 9th July, 2010.", "Shri Prakash Naiknavare, M.D. of the Maharashtra Sakhar Sangh has been quoted in the Hindu Business Line dated 23.07.2010, stating that mills in the states of Maharashtra and Karnataka had decided in June 2010 to set the floor price for S-30 sugar at Rs. 2500 for 100 Kg.", "till July 15 to limit losses.", "Thus, according to DG, the agreement reached between the mills of Maharashtra and Karnataka was successful, though for different periods in the respective states.", "3 .3 5 DG has observed that the concerted decision not to sell sugar below the minimum fixed price was put into effect which has certainly prejudiced the interests of the consumers at large and has caused injury to them.", "Such a decision has caused appreciable adverse effect on competition and the same contravenes the provisions of sub-section 3 (a) (b) of Section-3 read with section 3(1) of the Competition Act 2002.", "3.36 DG has also submitted that even if it is assumed that the ex-mill realization had fallen below the cost of production even then the concerted action to fix the prices is in violation of the above stated provisions the Act.", "3.37 According to DG, the arrangement to fix and maintain the minimum floor price from 23rd July 2010 till 31st August 2010 could not be carried forward for long and continued only for a day or two as prices of sugar started declining in the subsequent days.", "In support of this, DG has relied upon the ex-mills prices obtained from Directorate of Sugar which show that the prices had started declining after showing a spurt on 23rd of July 2010 and a day or two thereafter and has also relied upon the submissions of Bombay Merchants Associations and its President, Ashok Jain, in which it has been stated that the attempted fixation of minimum price could last only for two days since sugar mills found the same as not practicable.", "In this regard, DG has also relied upon a report in The Economic Times, Mumbai dated 29.07.2010 which has brought out that after making a united attempt to control the downward spiraling sugar prices by agreeing not to sell below a floor price, cooperative sugar mills in Maharashtra had split.", "The newspaper has also brought out that Malegaon SSK, Baramati was the first mill to break the ranks on 27.07.2010 and began selling at lower than agreed prices.", "Further, the traders had also adopted a wait and watch policy and did not purchase at the rates specified by the factories.", "Quoting wholesale traders from Mumbai, the newspaper also reported that there were only two days left for sugar mills to finish their open market quota and more than 40 of this quota was still lying unsold with the factories as on 29.07.2011, which made the agreement to maintain a minimum floor price unsustainable for long.", "3.38 Along with the violation of provisions of Section 3(3) of the Act, DG has also brought out that the existing structure of regulations by the government lead to interference in the market, as a result of which sugar prices are not a mere function of demand and supply but a result of complex forces at play which distort the market from working in a competitive and free manner.", "DG in light of this has proposed that the Commission may suitably advise the government on policy change as Well to promote and sustain competition in the market.", "Forwarding of Investigation Report 4 .", "The report of DG was considered by the Commission and a copy of report was forwarded to the parties who had attended the meeting on 22.07.2011 at Mumbai.", "Since DG had found that Indian Sugar Mills Association and National Co-operative Sugar Mills Federation, did not attend the meeting on 22.07.2010, notices were not issued to them.", "4.1 The replies of the parties were received at various dates.", "Chief Director, Sugar was also called by the Commission seeking his comments on the report of DG.", "4.2 The replies of various parties received by the Commission are summarized in the following paragraphs.", "4.2.1 In its reply dated 29.06.2011, South Indian Sugar Mills Association (SISMA), Karnataka has submitted that it is surprised to receive notice from the Commission with regard to the alleged violation of provisions of Section 3(3) (b) of the Act, since sugar sugarcane have been declared as essential commodities by the Government of India as per the provisions of Essential Commodities Act (EC Act), 1955.", "The production, supply and distribution of sugar and sugarcane has been clearly controlled and regulated under various Orders issued by the government of India in exercise of its powers conferred on it under section 3 of the EC Act.", "SISMA has contended that Sugar (Control) order 1966 empowers the Government of India for release of sugar to the open market by issuing release orders in favor of each sugar factories, specifying the dates within which the sugar should be sold in the open market.", "Further, in situation of failure on the part of sugar factories to comply with such directions, the unsold sugar is treated as levy sugar and the same is sold at a fixed price determined by the Government of India.", "4.2.2 SISMA has further stated that the Government of India has also the power of restricting the hoarding or stocking of sugar.", "In case any person fails or has failed to comply with such orders, such persons or companies are liable for prosecution since an act of hoarding is a clear contravention of the Sugar (Control) Order 1966 attracting the criminal prosecution under Section 7 of the EC Act.", "4.2.3 As per the reply filed by SISMA, during the year 2008-09 and 2009-10, there was an increase in the price of sugar in the open market across the country.", "The government, during 2009-10, in exercise of its powers had imposed restrictions for sale of sugar on weekly basis out of the monthly released quota.", "Further, it was also ordered that in case of failure on the part of the sugar factories to sell the quota released as per the release orders, the same shall be converted into levy sugar.", "The orders also indicated that non-compliance of the directions will also attract initiation of criminal prosecution.", "Under these circumstances, no sugar factory in the country can store the sugar or refuse to release sugar in the open market as and when ordered by the Union of India.", "4.2.4 As per the reply filed by SISMA, it is not open for sugar factories in the cooperative sector, private sector and public sector to sell the same in the open market.", "As of now, 90 of the sugar produced by sugar factories is free sale sugar and the same can be sold in open market as per the release orders of the Government of India.", "Remaining 10 of the sugar cannot be sold by any sugar factories as the same has been treated as levy sugar.", "Union of India or its nominees lift the sugar as and when the release orders are issued at a price already determined by the Union of India.", "In the year 2009-10, in order to bring down the prices of sugar in domestic market, Govt. of India had imported sugar and released it in the open market and during the year 2010 When the production was in excess of the requirement, govt.", "had permitted export of sugar in a limited quantity.", "4.2.5 On the basis of the above facts, the SISMA has contended that market forces have no role to play with regard to the production, supply and marketing of the sugar.", "SISMA has further contended that the sugar is not a commodity, wherein the producers of sugar can make a cartel and make price of the sugar in the open market to rise as it is impermissible and it is also impracticable.", "Since sugar is not a free sale commodity, the provisions of Competition Act are not applicable.", "4.2.6 As per the reply of the SISMA, it is correct that a meeting was held at Mumbai on 22.07.2010 which was convened by Maharashtra Rajya Sakhar Karkhana Sangh Limited.", "The said meeting was convened during relevant point of time when the sugar prices in the open market had fallen and the sugar factories which had paid higher sugarcane price to the farmers of their respective reserved areas were not in a position to realize the cost of the production of sugar.", "4.2.7 SISMA has also submitted that on its behalf the Secretary had attended the aforesaid meeting in which the issue of falling prices of the sugar was also discussed since the sugar mills were not in a position to meet out the cost of production.", "In the meeting, several other issues were also discussed like the fact that sugar factories were suffering because they could not meet the payment of sugarcane prices to the farmers who had supplied sugarcane during 2009-10 sugar season.", "4.2.8 In its reply, SISMA has further submitted that notwithstanding the deliberations with regard to the selling of sugar at a particular price, the same was neither recorded nor was it communicated to any of the sugar factories in the state of Karnataka.", "Further, neither SISMA nor its members have deliberated the issue with regard to the price of sugar in the open market or any other steps to be taken by its members.", "Therefore, there is no violation of the provisions of Competition Act, 2002 on their part.", "4.2.9 SISMA has further submitted that the rise or fall of price of the sugar in the domestic market depends upon the supply and demand.", "For example, during the sugar season 2008-09 and 2009-10 there was shortfall of sugar production for the domestic consumption, thereby, there was rise in the sugar prices in the domestic market.", "The same cannot be attributed to sugar factories, their federations and associations.", "4.2.10 As per the reply of SISMA, sugar industry is not a free industry and completely regulated by the Government of India in exercise of its powers under the provisions of the EC Act and the orders promulgated hereunder.", "Further, it is also open for the Government of India to confiscate the sugar of any sugar factories and to dump the same in the domestic market.", "During the sugar season 2009-10 as there was increase in the sugar price in the open market, the government had increased the levy sugar quota from 10 of the production to 20.", "As such, the sugar factories were compelled to part with 20 of the sugar produced by them to the government or its nominees who lifted the levy sugar at a price which was fixed one and not subject to market force.", "The said 20 of the levy sugar was to be distributed through public distribution system to the vulnerable section of the society.", "4.2.11 It has also been submitted by SISMA that the main functions, of the South Indian Sugar Mills Association (Karnataka) are of advisory and liaison in nature.", "It has no role in the sale of sugar by its member factories since each factory has their own arrangements at their own level to do that.", "4.2.12 Replies were filed by Karnataka State Federation of Cooperative Sugar Factories Limited together with Shri Doodhganga Krishna Sahkari Sakkare Karkhane Niyamit, Chikodi, Belgaum, Krishna Sahkari Sakkare Karkhane Niyamit, Athani, Belgaum, Shri Someshwara Sahakari Sakkare Karkhane Niyamit, Siddasamudra, Belgaum, Nandi Sahakari Sakkare Karkhane Niyamit, Krishna Nagar, Belgaum, Ryatar Sahakari Sakkare Karkhane Niyamit, Timmapur, Bagalkot.", "The replies that have been filed are along the same lines as that of SISMA, Karnataka, re-iterating basically the fact that sugar and sugarcane are controlled commodities under EC Act, 1955 and since sugar is controlled and regulated by government, it is not a commodity, wherein the producers of sugar can make a cartel and make price of sugar to rise in the open market to rise.", "4.2.13 In replies by Shri Hiranyakeshi Sahakari Sakkare Karkhane Niyamit, Sankeswara, Belgaum (hereinafter referred to as HSSK) also, the assertions of SISMA have been repeated that sugar is not a free sale commodity and its production, supply and distribution is governed by the Act and various control orders issued by the government time to time.", "4.2.14 It has been pointed out that regulatory stranglehold of government over sugar industry makes it extremely difficult for anybody to circumvent the same.", "The sugar industry is controlled by various Acts, Rules and Orders like EC Act, 1955, Sugar Control Order, 1966, Sugarcane Control order, 1966, Levy Sugar Supply Control order, 1979, Levy Sugar Price Equalization Fund Act, 1976, Sugar Development Fund Act, 1982, Sugar Cess Act, 1982, Sugar (Regulation of Production) Act, 1961, Sugar (Packing and Marking) Order, 1970, Molasses Control Order, 1961 and Prevention of Food Adulteration Act, 1976.", "It has also been contended that within these Acts, Rules and Orders, sugar price is not free to be determined by the market forces of demand and supply, which is the basic economic principle governing any market where free competition prevails.", "Thus, the Commission lacks jurisdiction over the case.", "4.2.15 According to HSSK, it was never involved in any attempt to-go beyond the mechanism established by the authorities pertaining to the price it was never involved in any manner in alleged efforts to fix the minimum ex-mill floor price of sugar during the last week of July 2010.", "Although Chairman of HSSK was present in the meeting held on 22.07.2010 at Mumbai, he had no role in any discussions or deliberations that took place in the said meeting regarding any effort to boost the ex- factory price of sugar by 4-6 in order to prevent open market sugar prices falling below the cost of production.", "Further, it has also been denied that it was a party to any press release for fixation of ex-mill prices for the states of Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh and Gujarat for the period of July 23, 2010 to August 31, 2010.", "4.2.16 It has also been submitted that the meeting held at Mumbai on 22.07.2010 was an informal gathering of fellow sugar producers to discuss several aspects of the sugar industry apart from stabilization of sugar prices, which had fallen below the average cost of production of sugar.", "HSSK has denied the allegation of any violation of the provisions of Section 3 by it and has submitted that it had never agreed not to sell small grade sugar at a price below 2700 for 100 Kg from 22.07.2010 till 31.08.2010.", "It was never a party to the alleged fixation of price of sugar at Rs. 2500 since June 24, 2010 and was also not part of any alleged core committee to work out the minimum floor price of sugar.", "4.2.17 It has been submitted that DG has relied upon press reports which may not be reliable as sometimes press reports are based upon rumors only and reliance cannot be placed on them.", "HSSK has also submitted that it was never part of the purported alleged agreement reached in the meeting held on 22.07.2010 to fix the price of sugar at around Rs. 2700 per quintal.", "It has also been disputed that it had adhered to the alleged purported fixed price of Rs. 2700 on July 22, 2010 since it had sold sugar at a price of Rs. 2513.71 on July 23, 2010, Rs. 2525.", "63 on July 24, 2010, Rs. 2511.26 on July 26, 2010 and Rs. 2560.15 on July 27, 2010.", "4.2.18 HSKK has also submitted that a daily analysis of the sugar sold during the period of July 19, 2010 till July 30, 2010 would show that it had never adhered to the purported ex-mill price fixed in the meeting held on 22.07.2010 and had sold sugar at a rate consistent with the earlier price at which it had sold sugar.", "4.2.19 Summing up the remarks on the findings of DG, HSSK has submitted that it has not contravened any of the provisions of the Competition Act and it was not part of any cartel that was purportedly and allegedly formed by way of the meeting held in Mumbai on 22.07.2010.", "It has also been submitted that the oral submissions made by Maharashtra Rajya Sahkari Sakhar Sangh Limited and South Indian Sugar Mills Association, Tamil Nadu may be taken and adopted as its submissions as well.", "4.2.20 On 08.08.2011, M s South Mills Association, Tamil Nadu (hereinafter referred to as SISMA-TN) filed its reply objections to the DG.", "SISMA-TN in its reply has also objected on the issue of jurisdiction of the Commission and submitted that the suo- motu action taken by Commission, for the alleged violation of the Act, is without jurisdiction in as much as the commodity in question, namely sugar, is an essential commodity governed by the provisions of the EC, 1955 Act and the Sugar Control Order, 1966, and thus, falls outside the purview of the Competition Act, 2002.", "4.2.21 It has been submitted by SISMA-TN that the EC Act is a Special Act governing certain essential commodities covered therein, whereas the Competition Act, 2002 is a general enactment for the purpose of ensuring fair competition in the free trade of commodities, which are not covered by the EC Act.", "The provisions of the-Competition Act, 2002 cannot be invoked in respect of a commodity which is notified under the EC Act, in as much as an essential commodity is severely controlled and regulated and there is no freedom in the manufacture, distribution or the pricing of such commodities.", "The word competition is alien and antithetical to a commodity governed by the Essential Commodities Act.", "4.2.22 It has been contended by SISMA-TN that the social and economic objects of both the Acts are completely different.", "The object of the EC Act is to exercise complete or partial control over the production, supply and distribution of or trade and commerce in a commodity which is notified as an essential commodity, whereas the object of the Competition Act is to ensure free and fair competition in the market in respect of those goods and commodities which are primarily free trade commodities and do not come within the purview of any regulatory measures and ensure that the market forces determine the price.", "In view of these, the commodities which fall under the Essential Commodities Act, by their very nature, fall outside the domain of Competition Act.", "Since the essential commodities are severally controlled and regulated, the concept of free trade and market forces do not apply to such commodities and are indeed alien to them.", "The provisions of the Competition Act cannot be made applicable to the sugar industry which operates under the stringent control of the government right from its production to ultimate supply in the market.", "4.2.23 According to SISMA-TN, various controls and measures have been enacted under EC Act in public interest which is in conflict with the idea of competition.", "EC Act, 1955 has been included in the IXth schedule of the constitution as Item Number 126 by the constitution (40th amendment) Act, 1976.", "While EC Act is a special Act, Competition Act, 2002 is general in nature and is not applicable to a commodity, governed by EC Act, which is a complete code having provisions for penalties and fines.", "Section 6 of EC Act expressly provides that any order under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the EC Act or any instrument having effect by virtue of any enactment other than EC Act.", "4.2.24 It has been submitted that before the Competition Law is made applicable to an industry a commodity, creation of a competitive business environment is an essential pre-requisite.", "EC Act and orders made there under eliminate every scope for competition in the market.", "In the absence of liberal and free trade policy, applicable to sugar trade, the Competition Law cannot be made applicable to the same.", "Even report of High Level Committee (Raghavan Committee) has suggested that it is necessary to do away with dual pricing and price controls leading to distortions in the market as prerequisites for a competition policy.", "In this regard, restrictions on sugarcane prices, dual pricing of sugar, restraints of exports and imports having prevented the sugar industry from being competitive have been cited as some of the examples as to how government barriers, controls and regulations come in way of evolution of a competitive environment.", "4.2.25 SISMA, TN has further contended that the Competition Act is based on the doctrine of laissez-faire which presupposes no regulations or governmental interference in commercial affairs.", "Price is to be determined based upon demand and supply etc.", "These concepts play little role in fixation of price in case of essential commodities governed by the Essential Commodities Act, 1955.", "As and when there is prediction of less supply and more demand, in case of essential commodities like Sugar, govt.", "appointed agencies step in to take action.", "Measures like import or more quantity of sugar under levy are taken in order to control prices as was done in the year 2009-10 when the levy sugar was doubled from 10 to 20.", "4.2.26 According to SISMA-TN, far from encouraging competition, the object behind the enactment of Essential Commodities Act is to serve a certain social objective.", "The government, thus, procures levy sugar at below cost of production from the sugar mills and distributes the same to the people at a subsidized rate through PDS.", "Although no price is fixed for free market sugar, the price of the non-levy sugar is controlled through Release Order Mechanism.", "also tends to make additional releases or supplementary releases to depress market prices.", "There is absolutely no freedom with respect to the time and the quantity of sale of the non-levy sugar, The sugar mill has to store the non-levy sugar in the warehouse of its factory and as and when the release orders are issued by the government, the sugar mills have to release the Sugar into the market within the time stipulated under the Release Orders.", "If the quantity of sugar mentioned in the release orders (which may be monthly, fortnightly or weekly), is not released within the time stipulated therein, that part of the Sugar which is not released is liable for forfeiture or the government acquires the same as Levy sugar.", "4.2.27 It has further been contended that while in case of sugar its production, distribution, supply and price of Sugar is controlled as well as regulated by the government under EC Act, the sugarcane, the raw material is also an essential commodity purchased at a price determined by the government.", "Over and above, the Fair and Remunerative Price fixed by the Central Government for the purchase of sugarcane, State Government also fixes State Advised Price (SAP).", "4.2.28 It has also been stated that sugar is regulated and controlled by various acts like Sugar (Control) order 1966, Sugarcane (Control) order 1966, Sugar (Packaging and Marketing) order, 1970 and Levy Sugar Supply Control (Order), 1979 Under the EC Act, 1955 read with Sugarcane (Control) order 1966, sugar mills are mandated To pay sugarcane price within 14 days.", "Thus, it is not practicable for sugar mills to refrain from sugar sales to influence market prices except at the peril of default in cane payment with attendant legal consequences.", "4.2.29 It has also been contended that in 2009-10, government took many additional measures to effectively check market forces and rein-in sugar prices.", "Import duty on raw sugar was reduced from 60 to zero from 17.04.2009 till 30.06.2011.", "Import duty on white sugar was also reduced from 60 to zero, initially for government agencies and later for all.", "Levy obligation was exempted for raw or white sugar imports as opposed to levy obligation on domestic producers.", "There were other measures which were also taken like introduction of weekly quota in April 2009, re- imposition of release orders for sugar exports from Jan-Feb 2009, weekly reporting and even daily reporting to sugar directorate, putting bulk consumers under the stock holding norms for the first time since 12.09.2009, removal of VAT on imported sugar while keeping the same on domestic producers, ban on sugar futures in May 2009 which extended upto Sept. 2010.", "According to SISIMA TN, under such extensive and excruciating control, there can never be a free play of market forces and promotion of competition in sugar industry.", "The report of DG also brings out in detail the conditions of sugar industry and corrective measures required on part of government to rectify the situation.", "4.2.30 It has been submitted that there are two important questions which would require determination by the Commission, namely, whether a commodity which is governed by EC Act, 1955 falls within the ambit of the Competition Act, 2002 and whether the latter would override the provisions of the former especially in light of the fact that EC Act is a special Act governing only the essential commodities, and have a non-obstinate clause 6.", "SISMA has requested that for determination of the above questions, Union of India, being a necessary and proper party to the proceedings must be heard through Secretary, Ministry of Consumer Affairs, Food and Public Distribution and also be impleaded under Section 24 of the Competition Commission of India (General) Regulations, 2009.", "4.2.31 As regards the fixation of minimum floor price of sugar and the mail circulated by the Secretary of SISMA-TN, requesting the member mills to adhere to the arrangements arrived at the meeting held on 22.07.2010, it has been stated that it was neither authorized not approved by SISMA-TN.", "Further, the mail was neither binding on mills nor was even adhered to by the mill owners.", "Within the control over release by the government, it was also impossible for the member mills to observe adherence to such directions.", "4.2.32 According to SISMA-TN, cartelization and anti-competitive agreements, presuppose the presence of limited suppliers.", "However, in case of sugar industry, there are 46 sugar mills in Tamil Nadu itself, fragmented between Public, Private and Cooperative sectors.", "It was not easy in such a situation to enter into an anti- competitive agreement or cartelize.", "The meeting held on 22.07.2010 is to be seen in the backdrop of huge cash losses of mills and to discuss the problems being faced by the industry.", "Even if letter was circulated by SISMA-TN (although not admitted), the said circular cannot be construed as an anti-competitive agreement within the meaning of Section 3 of the Act.", "4.2.33 M s Gujarat State Federation of Cooperative Sugar Factories Ltd, Gandhi Nagar (hereinafter referred to as GSFC) in its reply has denied contravention of any of the provision of the Act by it and has contended that it has been wrongly joined in this suo-motu case as it is not a necessary and proper party in this case.", "As per GSFC, the provisions of Sec.3 (3)(b) of the Act dont apply to it, only because its two representatives had attended the meeting on 22.07.2010.", "The federation has never entered into any agreement in pursuance to meeting dated 22.07.2010 held at Mumbai.", "It has been submitted by GSFC that report of DG also does not establish any agreement entered into by it with any association or enterprises.", "4.2.34 It has been further submitted by GSFC that the meeting conveyed by MRSSK on 22.07.2010 was an informal meeting and was a group discussion about sugar industry for brainstorming.", "It is in this context that its in-charge Managing Director and Vice President had remained present in the meeting.", "As per GSFC, its officers did not remain present during the entire meeting and till the presence of its representatives, neither any discussion to enter into any agreement was taken nor was any decision taken in this regard.", "It has also been submitted that it didnt know about any decision taken in the said meeting.", "It had not given any oral or written consent to the opinion of any participants in respect to sugar prices.", "4.2.35 It has been contended by GSFC that entire sugar industry in Gujarat is run on cooperative basis.", "All the farmers involved in cultivation of sugarcane are the members of respective sugar factory and the officials of such sugar factory are being elected in democratic manner.", "As per the prevailing bye-laws of the federation, two representatives of such Board of relevant sugar factory are the members of the Federation Board.", "The Federation is constituted by Chairman, Vice Chairman and other members which are always amongst the representatives of farmers.", "It has been denied by GSFC that in the meeting dated 22.07.2010, state-wise core group was established.", "It has submitted that it is not responsible for any such core group if it was established at all.", "No official of federation is the member of such core group and even if the name of its officials appears in the list of core group members, no consent has been taken from it.", "4.2.36 It has been further stated by GSFC that it has not played any role in publishing news items or press release regarding fixation of prices and the publications of news-items seem to be misquoted and misinterpreted.", "4.2.37 As per GSFC, even the agenda in the notice of the meeting dated 22.07.2010 was to arrest the sliding sugar prices below the cost of production and it has never agreed on any price fixation.", "It has been further submitted by GSFC that it is a registered society duly registered under the Bombay Co-operative Societies Act and the entire control and supervision is within the purview of Co-op.", "registrar Director of sugar, appointed by the State Govt.", "4.2.38 GSFC has further stated that its main and prime object is to carry out liaison work with the government, to research, to improve the methods of cultivation, to impart training and seminars, to provide training and assistance.", "It is the member of National Federation of Co-operative Sugar Factories Limited, New Delhi and if any question pertaining to national level arises, it makes use of National Federation for representation before concerned Ministry to resolve such problems and difficulties faced by its member sugar factories.", "On the basis of the above facts, it has been contended by GSFC that it has no need or requirement to being a part of any informal body for such problems.", "Federation since established and registered has never interfered in sale of sugar by our member sugar factories.", "There is no policy of federation to interfere with the day-to-day business of its member sugar factories.", "4.2.39 It has also been stated that replies were also filed by them before, DG, on the above lines, which have not been considered in the investigation report.", "4.2.40 The federation has further brought out that in a span of two hours when its representatives attended the meeting, some of the members had only expressed their opinion in respect of the suspected reasons for the sliding sugar prices.", "There was no definite decision or consensus arrived at or communicated to the federation or its members.", "The Federation does not have any control over its member cooperatives in the matter of sugar pricing.", "The said issue has always been left to the sole discretion of the member co-operatives who have been selling sugar at prices deemed fit by them.", "The same is true for the period pre and post 22nd July 2010.", "4.2.41 It has also been replied that the findings of DG that a decision was taken to fix the minimum floor price for the states of Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh and Gujarat for the period 23.07.2010 and 31.08.2010, is contrary to the letter dated 09.08.2010 of Directorate of Sugar which mentions that the sugar prices had firmed up only in the states of Maharashtra, Karnataka, Tamil Nadu and Andhra Pradesh.", "Gujarat has been consciously been omitted since GSFC had not given any benchmark for sale of sugar by its member co-operatives and the member sugar cooperatives had sold sugar at their sole discretion and had not taken any guidance from GSFC.", "4.2.42 It has also been brought out by GSFC that there is no connection between the purported Minimum Floor Price (Benchmark) and the prices at which the member cooperatives within Gujarat had sold sugar during the period under investigation.", "4.2.43 According to GSFC, while the investigation report has been, prepared without considering its replies, the Commission also should not have acted in furtherance to the newspaper report while directing DG to conduct investigation, which even otherwise as per the records is an unauthenticated news report as its origin could not be investigated by the DG.", "4.2.44 GSFC has contended that based on the letter dated 09.08.2010 of Directorate of Sugar furnished to DG and details of sales prices (ex-mills) realizations gathered from the member sugar factories it is clear that there was no cartelization in respect of fixation of prices in so far as GSFC and or its member sugar co-operatives are concerned.", "4.2.45 In its reply, The Khedut Sahakri Khand Udyog Mandli Limited, Pandval, Bahruch, Gujarat, submitted that since it had not attended the meeting held on 22.07.2010 at Mumbai, it was not submitting any comments objections on the matter.", "4.2.46 In its reply, Maharashtra- Rajya Sahakari Sakhar Karkhana Sangh Limited (MRSSKSL) has submitted that established and registered under the Bombay Co- operative Societies Act, 1925 and deemed to be registered under the Maharashtra Cooperative Societies Act, 1960, it is an Apex Cooperative Society of all cooperative sugar factories in the State of Maharashtra.", "It has 168 members and it represents their interests before government.", "In Maharashtra, sugar industry as a whole is run mostly by co-operative sugar factories which are established for the benefit of its farmer members.", "The members of the cooperative sugar factories are ultimately the owners through their share holding in the sugar factories.", "Since the State Government has invested heavily in the capital at the time of formation of the cooperative sugar factories, all cooperative sugar factories are under the supervision and control of the Commissioner of Sugar appointed by the State Govt.", "4.2.47 Like other sugar mills, MRSSKSL has also contended that cooperative sugar industry and sugar as a commodity is subject to a lot of controls and restrictions right from the Statutory Minimum Price to be paid to the farmers to the quantity of sugar sold in the open market.", "Therefore, it is impossible for the cooperative sugar industry to predict the sales realization price compared to its actual production cost which includes the cane price paid to the farmers members, the processing cost of production of sugar, administrative and other expenses involved which contribute in arriving at the production cost of sugar.", "4.2.48 It has further been submitted that since the federation is established by the cooperative sugar mills which are run by sugarcane grower-farmers, who are their shareholders and members, none of their steps, discussions, decisions or actions should be construed as violation of any of the provisions of the Competition Act.", "4.2.49 In its reply, MRSSKSL has submitted that the present proceedings are entirely based on a meeting held on 22.07.2010 convened by it.", "There was nothing secret about this meeting and this was an open meeting, which the members of the press could also attend.", "The invitation was sent to some of its members, Gujarat and Karnataka Federations, South India Sugar Mills Association to discuss and share views for preventing cash losses, financial crises and maintain a good balance sheet.", "Such a discussion is not contrary to any of the provisions of the Competition Act.", "On this subject, various sugar mills and associations had earlier given representations to the government and various govt.", "organizations.", "What was discussed at the meeting was exactly what was mentioned in the invitation.", "The question of sugar price stabilization, among others was also discussed at the said meeting.", "This was the question with which the sugar industry was vitally concerned and which affected the very Survival of the sugar industry.", "4.2.50 It has been replied by MRSSKSL that the sugar industry in the country is not a free competitive industry.", "The free competition in the sugar industry is severely curtailed by the government itself by virtue of quotas of levy sugar which are fixed for each month, the compulsion on the manufacturers to sell the free sugar during the particular month itself and if the free sale quota is to be carried forward to the next month, extension permission to be taken from the Chief Director of Sugar, New Delhi as required.", "4.2.51 It has also been replied by the society that the import policy of the government too has a severe impact on the nature of competition within the country.", "There are government restrictions on the quantities of exports of sugar as well which affect competition within the country.", "Sugarcane which is the main raw material for sugar and which constitutes the bulk of the manufacturing costs is also subject to various controls under the Essential Commodities Act.", "Sugar mills have to file monthly reports to the government as regards the free sugar sales such as the details of the tenders received, the quantity of sugar sold and the rate at which sugar has been sold.", "The Statutory Minimum Price (SMP) and or Fair Remunerative Price (FRP) is fixed by the government for the sugarcane price to be paid to the farmers.", "This forms an important part of the production cost.", "4.2.52 According to MRSSKSL, if in a meeting, during the course of discussions, views are expressed to the effect that it is not desirable to sell sugar at a price below the manufacturing cost i.e. it is not desirable to sell at a loss, nobody can be faulted for the expression of such a view.", "The expression of such a view does not run counter to any of the provisions of the Competition Act.", "Such a view is also not contrary to the interest of the consumer.", "The reason is that if manufactures keep on selling at loss, the consumer may benefit only in the short run by getting the product at a low price, but in the long run, the effect would be exactly the opposite by virtue of closure of units.", "If mills sell below the cost of production, it also adversely affects the lenders, banks and financial institutions.", "4.2.53 It has been further replied by MRSSKSL that the meeting on the subject that had taken place was vital since it was affecting the mills.", "Even assuming only for the sake of argument that every participant in the discussion expressed a view that it was not desirable to continue selling sugar at prices below the manufacturing cost, such a consensus cannot be said to be an agreement which was likely to cause an appreciable adverse effect on competition within India.", "The definition of agreement includes any arrangement, understanding or action whether it is formal or in writing.", "The expression of such views does not amount to any arrangement, understanding or action.", "4.2.54 According to MRSSKSL, the meeting was attended by the representative of 17 sugar mills out of a total of 168 sugar mills in Maharashtra.", "These 168 sugar mills are competing with each other in the matter of procurement of sugar cane as well as the sale of sugar.", "The representatives of 17 sugar mills who were present had no control to give any directions to or to enforce any directions on the remaining 150 sugar mills in Maharashtra on the issue of fixation of price.", "The society has no authority to give any such directions to the various 168 sugar mills in Maharashtra and it also has no authority to give any such directions to Gujarat State Federation Limited, Karnataka State Federation Limited and SISMA, Bangalore.", "The said Federations also have no power to give any such directions to their members.", "Therefore, the allegations that a decision was taken in the meeting to fix the minimum floor price for the states of Maharashtra Karnataka, Andhra Pradesh, Tamil Nadu and Gujarat are not correct.", "4.2.55 It has further been replied that even if it is assumed only for the sake of an argument that the representative of the 17 sugar mills in Maharashtra came to an understanding at the meeting that they would not sell below the manufacturing cost and that the manufacturing cost was Rs. 2700/- per quintal, any such understating would not attract the provisions of the Competition Act since if only 17 mills decided to fix a minimum price of Rs. 2700/- per quintal for the period of 23rd July, 2010 to 31st August, 2010, such an understanding would not cause an appreciable adverse effect on competition (AAEC) in India.", "4.2.56 It has also been submitted that no decision was taken in the meeting as regards fixation of minimum prices, no resolutions were passed, no minutes were recorded and no communications were addressed by the society to anybody in respect of discussions at the meeting.", "The participants were left to take their own decisions.", "On the alleged press note allegedly issued by the society, it has been stated that no such press note had been issued by it.", "There is nothing on record to show that such a press note was ever issued by it.", "A mere report in the newspaper has no evidentiary value and no material evidence has been collected by DG to establish that the press release was indeed issued by it.", "4.2.57 It has further been contended by MRSSKSL that it was quite unlikely that the decision to fix minimum price of Rs. 2700/- per quintal on 22nd of July 2010 could have been implemented on 23rd of July 2010, in the face of the fact that sugar is sold through a mechanism of tender against monthly quota fixed by the Central Government.", "Moreover, if a press release was intended to be issued after a meeting on 22nd July 2010, it is not quite clear as to why it was sent to the Economic Times, New Delhi Edition dated 26th July 2010, instead of sending the same to some local newspapers on 23rd July 2010.", "This raises doubt over the whole fact that the press release emanated from it.", "4.2.58 According to MRSSKSL, in light of the fact that the government controls both levy and non-levy sugar besides exercising controls in various other ways, sugar mills could have played a little role in controlling sugar prices.", "4.2.59 According to the society, the sugarcane cost accounts for 65-70 of the cost of production of sugar.", "During the season 2009-10, there was a substantial increase in cost of production, due to higher cane prices payable paid by the sugar factories.", "During September 2009 to March 2010, the sugar prices were higher, because of shortage of sugarcane, resulting in sugar production of only 145 lakh tonnes in the sugar season 2008-09 and also due to estimate of a low production in 2009-10 which also was 189 lakh tonnes.", "This was against domestic demand of around 220-225 lakh tonnes each year.", "4.2.60 It has further been brought out by the society that it was because of this mismatch of demand and supply that sugar prices shot up.", "However, the prices came down sharply during the later months as a result of various steps taken by the Central Government.", "In Maharashtra ex-mill realization price from the month April 2010 was Rs. 2668/- per quintal which has resulted in cash loss of Rs. 16.28 crore when the average cost of production was Rs. 2700/- per quintal.", "Similarly, in the month of May 2010 cash loss of Rs 18.18 crore was accrued and it escalated to Rs. 123.31 crore in the month on June 2010, whereas cash loss for July 2010 came around to Rs. 64.62 crore.", "Such heavy financial losses on continuous basis were being faced by member sugar mills, on account of which there was huge deficit in the value of sugar stock (short margin), in the, pledged account of sugar mills with the banks.", "This precarious financial stress adversely affected the release of sugarcane payments to sugar cane growers leading to growing unrest amongst the farmers.", "4.2.61 According to MRSSKSL, the adverse situation had the possibility of farmers shifting from sugarcane to some other crops, leading to further financial problems for the mills.", "There was a grave concern due to the growing suicide by the farmers.", "In such difficult circumstances, the meeting was convened for having a discussion on all the issues concerning sugar industry on 22.07.2010.", "To draw the attention of government, a letter was also written on 08.07.2010 to Union Minister for Agriculture, Food and Civil Supplies bringing out various issues plaguing the sugar industry.", "4.2.62 Contradicting the statement of Chief Director, Sugar before the DG, it has been submitted by the society that it was wrong to state that the ex-mills prices which were ruling at Rs. 2580 per quintal on 21st July 2010, jumped to Rs. 2700 on 22nd July 2010.", "There was no single day in the month of July 2010, on which the prices ruled at Rs. 2700 per quintal.", "The statement of Satish Kansal relied upon by DG nowhere suggests that minutes of the meeting dated 22.07.2010 were drawn and that a core group was in fact formed, even when discussions had taken place on various issues pertaining to the sugar industry 4.2.63 The society has pointed out that it is pertinent that Director General, Indian Sugar Mills Association, Abinash Verma, had categorically submitted before DG that sugar industry consisting of about 600 mills in public, private and cooperative sector is highly fragmented and is in a scenario of various controls of the government Sugar mills are price takers and not price determiners, with no scope of any cartelization among them with regard to the sugar price.", "4.2.64 According to MRSSKSL, the statement of Mr. K.N. Rathinavely, Secretary, SISMA, Tamil Nadu recorded by DG, makes it clear that although an e-mail was written by him regarding need for maintenance of minimum floor price from 23.07.2010 till 31.08.2010, it was not pursued by him.", "This shows that there was neither acceptance of such communication nor there was any agreement in respect of the minimum floor price.", "4.2.65 Further, it has been disputed by MRSSKSL that Shri Prakash Naiknavare, its MD had ever stated before DG that since 24th June 2010, Karnataka and Maharashtra could maintain floor price of Rs. 2500/- per quintal as alleged in the investigation report.", "4.2.66 It has also been contended that assuming that a decision was taken to fix minimum floor price in the meeting held on 22.07.2010 as alleged, it was never acted upon.", "In the context that an open meeting was convened and held in which nothing clandestine was discussed, it must be taken as a bonafide act.", "The alleged decision was taken not to increase profits for the mills, but in a situation when the mills were selling at prices lower than the manufacturing cost and their very survival was at stake.", "The decision taken at a meeting on 22.07.2010 must be seen keeping in view all these facts in the backdrop.", "4.2.67 In their replies, Bhaurao Chavan Sahakari Sakhar Karkhana Ltd (Bhaurao Chavan SSKL), Shrigonda Sahakari Sakhar Karkhana Ltd (Shrigonda SSKL), Sanjivani Sahakari Sakhar Karkhana Ltd (Sanjivani Takli SSKL), Dutta Shethari Sahakari Sakhar Karkhana Limited(Shree Dutta SSKL), Hutatma Kisar Ahir Sahakari Sakhar Karkhana Ltd (Hutatma Kisar Ahir SSKL), Chhatrapati Rajaram Sahakari Karkhana Limited(Shri Chhatrapati Rajaram SSKL), Natural Sugar and Allied Industries Ltd (Natural SAIL), Rajarambapu Patil S.S.K Ltd (Rajarambapu Patil SSKL), Kumbhi Kasari S.S.K Ltd (Kumbhi Kasari SSKL), Shri Someshwar Sahakari Sakhar Karkhana Ltd(Shree Someshwar SSKL), Tasgaon Taluka S.S. Ltd (Tasgaon SSKL- now Shri Ganpati Zilha Krishi Audhyogik S.S.S. Society Limited), Sahyadri Sahakari Sakhar Karkhana Limited (Sahyadri SSKL) and Vasantdada Sugar Institute (VSI), have reiterated the contentions of MRSSKSL.", "4.2.68 S.M. Shankerrao Mohite Patil Sahakari Sakhar Karkhana Ltd, in its replies has submitted that the meeting held on 22nd July, 2010 was an informal meeting called at Mumbai by Maharashtra Rajya Sahakari Sakhar Karkhana Sangh Limited in order to discuss various issues that were affecting the sugar Industry as a whole.", "The allegation in the investigation report that a decision was arrived at the minimum price at which sugar was to be sold for various states has been denied stating that no such decision was arrived at in the said meeting.", "4.2.69 It has been pointed out by the society that for every sugar factory, at the end of each month, the Government of India issues an order of how much non-levy sugar it can sell in the next month.", "The mills in cooperative sectors sell this non levy sugar by inviting tender bids from sugar merchants.", "At the time of the tender, all bids received are opened by a Committee of Board of Directors in the presence of representatives of the sugar merchants.", "The Committee reviews the bids received and depending upon its own perceptions of the prevailing market conditions, accepts such quantity out of the bids received as it deems fit, beginning with the highest bidders.", "This method of sale of non-levy sugar is being followed consistently, including prior to the meeting held on 22nd July, 2010, as also after the said meeting, which goes to show that the society was not a party to any alleged anti-competitive agreement at the said meeting to sell sugar not below the alleged floor price.", "4.2.70 With specific reference to the State of Maharashtra, it has been submitted that the investigation report brings out that it was agreed at the meeting held on 22nd July 2010 that the minimum price for sale of sugar in the State of Maharashtra would be fixed at Rs. 2700/Qtl (S grade) and Rs 2750/Qtl (M grade).", "It was further alleged therein that the participants in the said meeting from the State of Maharashtra agreed not to sell sugar below the said minimum price fixed therein.", "However, this allegation is belied by the fact that even after the date of the said meeting, it continued to invite tenders from sugar merchants for prices at which they were willing to purchase sugar and sugar was sold to them on the basis of the highest bids received.", "4.2.71 Based upon the above, it has been submitted that it is evident that the society did not indulge in any of the anti-competitive activities alleged to have been agreed upon in the said meeting held on 22nd July, 2010 or in any other anti-competitive activity.", "It had accepted the prices of non-levy sugar as were offered by sugar merchants in the prevailing market conditions.", "The rise and fall in prices of non-levy sugar in the markets were due to a variety of reasons, including but not limited to news of various factors which could change perceptions of the participants in the market.", "4.2.72 On the lines of other respondents, S.M. Shankerrao Mohite Patil Sahakari Sakhar Karkhana Limited has also submitted that the provisions of the Competition Act will not be applicable to the Sugar Industry as such in as much as Sugar and Sugarcane being essential commodities under the Essential Commodities Act of 1955, the Sugar Industry is heavily regulated and controlled by the Government (both Central and State).", "The object of the Essential Commodities Act is that the products that fall within its ambit and are specified in the Schedule thereto be available at a fair price determined by the government.", "Thus, the Central and State Governments, through various orders issued under the Essential Commodities Act, control all aspects of the sugar industry, right from availability of sugarcane to the production, distribution, Supply, sale and stock holding of sugar.", "There can be no competition in such a controlled market, and hence to state that there exists or can exist free competition in the sugar industry is fundamentally fallacious.", "4.2.73 It is also to be noted that despite being the later Act, the Competition Act will not have an overriding effect on the Essential Commodities Act as the latter is a special enactment applicable only to the commodities declared essential under it, whereas the former is applicable to all commodities, services, trade, commerce, etc.", "The Competition Act, though later Act would not override the Essential Commodities Act in the event of conflict, since the latter is a special statute operating in a limited field.", "It is settled law that general things do not derogate from special things.", "4.2.74 Replies from Samarth Sahakari Sakhar Karkhana Ltd, Jawahar Shetkari Sahakari Sakhar Karkhana Limited have been filed along the lines of S.M. Shankerrao Mohite Patil Sahakari Sakhar Karkhana Limited 4.2.75 In its replies, Godavari Sugar Mills Limited has reiterated the contention that the Indian sugar Industry is a highly regulated industry whereby there are regulatory measures imposed by the government with regards to sugarcane price, quantity of sugar to be sold in the market, quantity of sugar to be supplied under Public Distribution System at subsidized price, restrictions on import or export of sugar etc.", "The prices of sugar depend upon the demand for sugar in a particular month and the supply which is regulated by the government by the release order system for the free sale of sugar by the each factory.", "4.2.76 Godavari Sugar Mills Limited has also submitted that the main discussion in the meeting dated 22.07.2010 was on the point of approaching government in view of increasing sugar cane price and declining sugar prices below cost of production, opening up of export, un-remunerative levy sugar Price, packaging of sugar, ethanol price as fixed by the government, problems faced by the sugar factories in harvesting transportation of sugarcane in Maharashtra, Andhra Pradesh, Karnataka and Gujarat.", "During the meeting, representatives of various sugar factories expressed their views about various problems faced by the sugar industry.", "This meeting was held essentially to exchange ideas and brainstorm to find out solutions to the problems faced by the Sugar Industry.", "The views expressed were personal and were not binding on anybody.", "The meeting being informal in nature, there was no resolution passed or any decision made in the said meeting.", "Therefore, there was no agreement or intention, either oral or written or express between the parties and that no provision of the Competition Act is violated.", "4.2.77 Shri Gurudatt Sugars Limited has submitted that they attended the meeting only with a view to get acquainted with the problems faced by the sugar industry and the ways and means under which a redressal could be possible to those problems.", "Any decisions made by the Maharashtra Rajya Sugar Sangh Limited Mumbai were not binding on it nor were they ever acted upon.", "4.2.78 As has been stated by other respondents, it has been replied by the company that suo-motu note action taken by the Commission is without jurisdiction in as much as the commodity in question, namely sugar, is an essential commodity governed by the provisions of the Essential Commodities Act, 1955, and the Sugar (Control) Order, 1966 made there under, and thus, falls outside the purview of the Competition Act, 2002.", "Essential Commodities Act is a special act governing certain essential Commodities covered therein, whereas the Competition Act is a general enactment enacted for the purpose of ensuring fair competition in the free trade of commodities, which are not covered by the Essential Commodities Act.", "The provisions of the Competition Act cannot by invoked in respect of a commodity which is notified under the Essential Commodities Act, in as much as an essential commodity is severely controlled and regulated and there is no freedom in the manufacture, distribution or the pricing of such commodities.", "4.2.79 It has been replied that from the purchase of the raw material to the production and distribution, the sugar is severely controlled by the government.", "Non-Levy Sugar is also not completely free, and is also controlled.", "Though no price is fixed by the government for the non-levy sugar, it is also controlled by quarterly monthly fortnightly weekly release orders by the government.", "While there is an onerous obligation on the part of Seller (sugar mills) to complete the quota within the month there is no corresponding obligation on buyer to have any time bound purchase of sugar.", "In view of the time constraints imposed by the release orders, the sugar mills are at the mercy of the traders, who exploit the situation by deferring the purchase of the sugar till the last minutes which results in depressing the price of the sugar.", "There are a large number of suppliers in the field and therefore it is next to impossible for such a large number of sugar mills to arrive at a common arrangement by forming a cartel and thereby influence the market forces.", "Therefore, any allegation with regard to its indulgence in anti-competitive activity is not correct.", "4.2.80 In its replies, Baramati Agro Limited has submitted that the investigation agency has to appreciate the fact that Mr. Bhalerao who attended the said informal meeting in individual capacity, appears to have prepared his own proceedings of the informal meeting dated 22.07.2010 and appears to have circulated the same, without their being any authority and or capacity to do so.", "Therefore, the Commission cannot take into consideration any such self-made proceedings of the informal meeting dated 22.07.2010, while arriving at any conclusions.", "Further, statement of Mr. Bhalerao, who appears to have attended the said informal meeting in individual capacity, cannot be relied upon as a statement of others like the South Indian Sugar Mills Association, Andhra Pradesh.", "The Investigation agency has committed gross error while coming to the conclusion that the informal meeting dated 22.07.2010 was convened to arrest the sliding sugar prices below the cost of production.", "Further, the investigation agency ought to have appreciated the fact that statement given by Mr. Bhalerao and MR.", "Rathinavelu were not given in their official capacity and therefore, same cannot be relied upon while investigating the matter.", "4.2.81 According to Baramati Agro Limited, the Investigation Agency cannot rely upon the news report newspapers articles in Times of India and Economic Times, Delhi, and Hindu Business Line, Delhi to arrive at a conclusion that there was cartelization of sugar prices in the meeting 22.07.2010, as it is settled principal of law in this country that mere news item appearing in a newspaper has no evidentiary valued at all.", "4.2.82 It has been submitted by the company that only one representative of the company had attended the informal meeting dated 22.07.2010.", "The meeting was attended by him as an invitee.", "However, due to some urgent professional work and commitments, he had to leave the said informal meeting before it got concluded.", "The company therefore cannot be accused of being part of the discussion that might have taken place after the said representative of the company left the said meeting.", "The company has brought out that so long as the said representative continued to attend the said meeting nothing at all was even discussed, much less decided about the sale price of sugar.", "Thus, the company cannot be alleged to be a part of any such discussion, much less decision.", "4.2.83 It has also been submitted that the Investigating Agency, while coming to conclusion, has not taken into consideration the fact that the company, not being the co- operative society, is not a member of Maharashtra Rajya Sahkari Sakhar Karkhana Sangh Limited, Mumbai and therefore, the company cannot be alleged to be a part of any decision that might have been taken, if taken at all, by the Maharashtra Rajya Sahakari Karkhana Sangh Limited, Mumbai 4.2.84 It has also been submitted that the Investigating Agency, while preparing and submitting the investigating report, has failed to note that in India the business of the sugar Industry is fully controlled and regulated by various government rules and regulations.", "The intention behind informal discussions which took place on 22.07.2010 was to find good, legitimate and viable solution for the existing problems in the sugar industry, through brainstorming and not to enter into any kind of agreement or cartel, as alleged or even otherwise, which may lead to the exploitation of consumers or would harm the society at large.", "There are various regulatory controls which determine market price of sugar.", "Taking into consideration these controls it is practically impossible to regulate market price of sugar by forming cartel by manufacturers as it is for the purchasers traders who play major role in deciding the market price.", "4.2.85 It has further been replied that it is impossible for manufactures of sugar to form cartel as each manufacturer is having different cost of production manufacturing.", "Apart from the said factor, economic conditions of manufacturer and need of cash inflow are the factors which weigh with the manufacturer while deciding sale price Therefore, in absence of any real benefit there was no question of any manufacturer forming cartel to artificially raise the price of sugar.", "4.2.86 It has been replied that the investigation agency ought not to have relied upon the statement of Mr. Shivajirao Patil, as the same is in the form of opinion and or advice without any further proof of its execution.", "The investigating agency also ought not to have relied upon the statement of Mr. Satish Kansal as same being based upon his hearsay information and the statement of Mr. Ashok Jain, as same being made on the basis of information received by him from news reports.", "The conclusion of the investigation agency that there was fixation of sugar price since 24.06.2010 which was extended after an alleged meeting dated 22.07.2010 is without any legitimate background and proof and therefore, same being devoid of any merit, cannot be relied upon.", "The company was and is never part of any cartelization of sugar mills to fix the price of sugar in contravention to section 3(3)(a) and (b) of the Competition Act 2002.", "4.2.87 M s Shree Renuka Sugars Limited, in its reply has denied the allegation of it being a part of cartel of sugar manufacturers of Maharashtra Karnataka alleged to have been in operation from 24th June /25th June 2010 and wherein a minimum floor price of Rs. 2500/- per quintal was fixed as per consensus.", "It has submitted that its spot sales realizations in Karnataka and Maharashtra on 24th and 25th June 2010 was well below Rs. 2500/-, the alleged minimum floor price fixed due to alleged cartelization.", "4.2.88 It has submitted that it is a member of Indian Sugar Mills Association (ISMA) only and not a member of Maharashtra Rajya Sahakari Sakhar Kharkhana Sangh Limited and SISMA.", "As per Renuka Sugars, no meeting of ISMA was ever held on 22.07.2010 on the issue of fixation of price as has been alleged.", "The meeting organized by Maharashtra Rajya Sahakri Sakhar Karkhana Sangh Limited on 22.07.2010 was attended by its Director (Commercial) as an observer and he did not participate in the meeting.", "Moreover, he left the meeting half way.", "4.2.89 The company has filed data of party wise sales for the period 22.07.2010 to 26.07.2010 to support its contention that it had sold sugar in the domestic market much below the minimum floor price of Rs. 2700.00 per quintal alleged to have been fixed in the meeting.", "4.2.90 On the basis of its aforesaid arguments, it has been submitted that the company has not indulged in cartelization as alleged and there is no question of contravening the provisions of Section 3(3)(b) of the Competition Act, 2002.", "4.2.91 M s Ugar Sugar Works Limited in its reply has also denied its participation in any anticompetitive activities.", "It has also denied any concerted action on its part to fix minimum ex-mill floor price of the sugar during the year 2010 though it has admitted its attendance in the meeting.", "As per the reply of Ugar Sugar, it is selling the sugar by way of a process of tender wherein negotiations with the bidders are done on the prevailing price.", "4.2.92 In its reply M section Vishwanath Sugar and Steel Industries Limited has denied the allegations of any cartelization on its part.", "It has also contended like other respondents that sugar industry is controlled and highly regulated and as such is not free to be determined by market forces of demand and supply.", "It has also been contended by Vishwanath Sugar that the government is also controlling the prices of the sugarcane which is the main raw material used for the production of sugar in India.", "The Commission has no jurisdiction to entertain and act on the investigation report of the DG as the sugar as a commodity is governed by the provision of EC Act and the various other orders issued by the government.", "4.2.93 It has also been submitted that it is not a member of any federation, association or any group in the sugar industry, however, its representatives do attend the meetings convened by such federations and associations on invitation.", "The purpose of attending such meetings is simply to be updated with the functioning of the industry as a whole and to adopt the best practices of the industry for better efficiency of its operations resulting in a decrease in cost of production of sugar.", "4.2.94 According to the company, it was not involved in the initiation of or actual discussion or deliberation to fix the minimum ex-mill floor price of sugar at any meeting during the last week of July, 2010.", "Although its representative had attended the meeting but had played no role in any discussions or deliberations that took place in the said meeting regarding any effort to boost the ex-factory price of sugar by 4- 6 in order to prevent open market sugar prices falling below the cost of production of sugar.", "It has also denied its agreement on the fixing of minimum floor price for different states of Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh and Gujarat for the period from July, 23, 2010 to August, 31, 2010.", "4.2.95 It has been further submitted by the company that it had sold the sugar at a price of Rs. 2506.76 on 23.07.2010, Rs. 2500.15 on 24.07.2010 and 26.07.2010, Rs. 2501.48 on 27.07.2010, well below the alleged minimum floor price fixed in the meeting of 22.07.2010.", "It has also provided daily analysis of quantity of sugar sold during the period 19.07.2010 to 30.07.2010 and has contended that the price at which it has been sold, demonstrates that it had never adhered to the purported price fixation.", "Therefore, it has not contravened any of the provisions of the Competition Act.", "4.2.96 M s EID Parry India Limited in its reply has contended that DG has not named specifically the actors who are alleged to have been cartelized EID has also contended that there is no explanation provided by DG as to what was the information or the basis on which the eight private sugar mills have been identified as major sugar mills in private sector.", "There is no indication as to the criteria with reference to which the selection has been done.", "In a cartel inquiry, the least that must be done by the investigation agency is to clearly identify the alleged members of the cartel and not leave a scope for any apprehension that there has been a pick and choose of members of the alleged cartel.", "4.2.97 It has been contended by EID that there has been no investigation conducted into whether there is a cartel or whether any anti-competitive conduct is taking place.", "Hence, the statement of the official of the Central Government cannot in any manner be taken to be an indictment of the sugar industry which in any event is without basis.", "4.2.98 It has been further submitted by EID that there is an all pervasive control of the Central Government on sugar, including on free sugar and that it is simply not possible to cartelize.", "The production, supply and distribution of the sugar is regulated by various Acts such as EC Act control orders issued by the government.", "The inputs from the sugar industry are an important aspect of levy sugar price fixation, as is evident from the statement of the Chief Director (Sugar), Government of India, recorded by the DG.", "4.2.99 It has also been submitted that any meeting or discussions on a wide ranging set of issues, including price, are not illegal and cannot be characterized as cartelization.", "Its representative had attended the meeting as a nominee of the SISMA- Tamil Nadu based on the request of the President of SISMA-Tamil Nadu and it was neither invited by MRSSK nor had participated the proceedings of the said meeting in its own capacity.", "It has further been submitted that it determined the price of sugar on the basis of its own assessment of market and is not being dictated or coerced by any other entity in this behalf.", "It has also submitted that its representative had not attended the meeting full time, hence its representative was not aware of any discussion taken place on price fixation in the said meeting.", "4.2.100 The company has also contended that there is no credibility whatsoever in the press release, which is the basis for the entire proceedings, including the press statement and its publication in the newspapers as far as the charge of cartelization is concerned.", "The inference sought to be drawn by the DG that there was a fixation of price, relying on the statements of office bearers of SISMA- Andhra Pradesh and SISMA-Tamil Nadu is entirely without any basis, DG has relied upon the statements made by these representatives and important statements made by them have been dis-regarded.", "4.2.101 The company has also submitted a data of its sale during 20.07.2010 to 31.07.2010 to support its contention that its average daily sale realization never touched Rs. 2700 Q.T (the alleged fixed minimum floor price) during the period when according to the DG the alleged cartel was given effect to.", "The reliance placed by the DG on the statement of the Bombay Sugar Mills Association to conclude that the cartel was given effect to for a couple of days is entirely unsustainable in light of these data.", "4.2.102 The company has also denied in its reply that the minimum price in Tamil Nadu was maintained above Rs. 2700 a quintal contending that the report of DG does not specify who were the parties who maintained this price.", "According to the company, DG has failed to establish any agreement of price fixing and also the implementation of alleged agreement by it.", "As per the company, its pricing continued to be governed by normal market practices and did not even cross the alleged minimum floor price during the period of investigation.", "4.2.103 According to the company, the statement of the Chief Director of Sugar is not evidence of any cartelization and does not make any such claim.", "It is a speculative opinion and is not claimed to be backed by any cogent and reliable data.", "A mere agreement on a desirable price cannot in law be equated to an agreement on pernicious price fixation.", "The legitimate actions of a trade association cannot by themselves give rise to inferences of cartelization and the allegations in that behalf have to be made good by cogent, reliable and independent data.", "4.2.104 It has further been contended by the company that it has not participated in any alleged concerted action and there is no cogent or reliable evidence of any agreement at all since the entire case of the DG proceeds on newspaper reports, hear say, evidently fabricated documents, the genesis of which has not been established by the DG.", "If there was a price fixing agreement by some players in the market, the same was simply incapable of being acted upon and even if acted upon, would and did not give rise to any appreciable adverse effect on competition.", "4.2.105 According to the company, it has been alleged that the agreement between the sugar mills was limited to the period 23.07.2010 through 31.08.2010, which even on the findings in the DG report was not actioned beyond two days after the said alleged decision.", "This alleged agreement could and did not have the effect of creating a barrier to new entrants in the market.", "No such new entrants have come forward to allege that even though the new entrants wished to compete, the alleged cartel compelled them to increase prices.", "There is no evidence whatsoever that on account of a putative and abortive bid at cartelization which remained limited to the third week of July 2010, a new entrant was prevented from setting up a sugar mill or that any trader suffered losses so as to impact the market in any manner, much less in a significant manner As per the company, there was no foreclosure of competition in the market during the alleged period of agreement and there was also no harm to the consumers.", "4.2.106 The company has submitted that the price of levy sugar is entirely controlled by the government and the sugar mills have no say in the matter.", "Throughout the period under inquiry, as also admitted by the DG, sugarcane producers were paid more than the FRP and SAP fixed by the appropriate governments.", "Even in respect of free sugar, the government exercises all pervasive and effective control through the release order mechanism and steps into correct price imbalances.", "No such measures were evidently necessitated during the period under inquiry because even according to the government, no noticeable or significant price distortion was prevalent.", "There was no significant or remarkable upsurge in sugar prices during the period under inquiry or soon thereafter.", "Thus, as per the company, there was no adverse impact on consumers, even on an assumption, which is categorically denied, that there was an attempt at cartelization.", "4.2.107 In its reply M s Shree Ambika Sugars Limited, Tamil Nadu, has contended that there is no prima-facie case made out against it since out of its two units, one unit had no sales during the relevant period and the ex-mills price at the other unit did not show any increase but was actually in the range of Rs. 2475 to Rs. 2518 per quintal and not Rs. 2700 per quintal, the alleged minimum floor price agreed to be maintained.", "4.2.108 It has been further submitted that it has been made party to the present proceedings only on the basis of the fact that its Executive Director had participated in the meeting held on 22.07.2010 at Mumbai.", "However, its Executive Director, Mr. Rajagopal was at the meeting held on 22.07.2010 only by chance since he happened to be in Mumbai for some litigation work and not by design.", "The company has not implemented any alleged concerted action of fixing or increasing the minimum price of the sugar but there was actually reduction in the price on its part.", "4.2.109 Like in case of other sugar mills, the company has also stated that sugar and its raw material-sugarcane is a regulated commodity and EC Act enforces direct control over the sugar production and distribution.", "The Competition Act is not applicable on the regulated commodities such as sugar, which is governed by EC Act.", "4.2.110 It has further been submitted by the company that sugar industry is highly fragmented industry.", "Even the largest manufacturer has only about 4 market share.", "There are not only private sector mills, but public sector and co-operative sugar mills are also operating in the sugar industry.", "4.2.111 According to the company, the apprehensions of the sugar industry has been misunderstood by DG.", "There are a large number of players in the market and DG has not named specific actors alleged to have cartelized.", "There is no effort to examine as to who are the members of the alleged cartel.", "It is not definitively explained as to why the sugar mills of UP were not part of alleged cartel while others in Karnataka, Maharashtra, Andhra Pradesh, Tamil Nadu were part of such alleged arrangement even when prices in UP had also shown some upward movement.", "It has also not been explained how different business entities operating under different circumstances and with different costs can come together to cartelize.", "There is simply no possibility of any cartel like behavior to take place or to sustain itself in the sugar industry as is also evident from the reply of the Central Government wherein it has been submitted that prices in the sugar industry are closely monitored by it.", "4.2.112 M section Mawana Sugars Limited in its reply has submitted that its sugar mills are all located in the state of U.P. Therefore, in view of the unequivocal conclusions arrived at and observations made by the DG in the report about sugar mills in U.P to the effect that none of the Sugar Mills and or Association of Sugar Mills in U.P. is seen to be involved in any purported cartelization or manipulations of sugar prices, it has requested to be discharged from the proceedings.", "It has also been denied by the company that it is and or has ever been part of any cartel as alleged.", "4.2.113 In its reply, DCM Shriram Consolidation Ltd, has contended that no further proceedings are required to be conducted against it as it is based in UP and DG has denied involvement of sugar mills of UP in the alleged cartel.", "4.2.114 M s Dalmia Chini Mills in its reply has submitted that it operates three sugar manufacturing plants in the State of Uttar Pradesh viz. Ramgarh Jawaharpur in District- Sitapur and Nigohi in District- Shajahanpur.", "It has contended like other respondents that sugar is a controlled and regulated commodity and this regulatory regime leaves no scope for the formation of cartel of any nature whatsoever.", "4.2.115 As per the company, during the months of May-August 2010, it was compelled to sell its product below the actual cost of production.", "During the period of the alleged cartelization, the prices of the sugar sold by it remained constant with minor variations, which clearly show that it was not part of any alleged cartel.", "It has been further submitted that it continued to suffer losses even beyond July-August 2010, which corroborates that it could not have been involved in the alleged cartelization.", "4.2.116 As per the contentions of the company, the percentage share of production of sugar by it in the State of U.P for the financial year 2009-2010 was around 2.7 and around 0.7 at India level.", "In the financial year 2010-2011, the same was 3.3 0.8 respectively.", "Its primary market is Northern India where 70 to 90 (approx) of its non-levy sugar is sold in the state of UP and the remaining is sold in the states of Delhi, Haryana, Punjab, West Bengal, Assam and Madhya Pradesh.", "It does not sell any of its produce in the state of Maharashtra or the southern states of India, where, the alleged cartel was active.", "It has no market presence in the Western Southern states of the country.", "In view of the aforesaid submissions, the company has submitted that it cannot be a part of the cartel or could not have formed the cartel which is alleged to be operative in the state of Maharashtra and that too for a very short period.", "4.2.117 It has been further submitted by Dalmia Chini that there was no evidence or material against it which suggests that it was part of the alleged cartel and it has been made part of investigation only because one of its representatives participated in the meeting on 22.07.2010 at Mumbai.", "4.2.118 It has also been contended by the company that DG has already reported that the prices in the State of UP are not comparable with the State of Maharashtra.", "It has been further reported that there is no prima facie case against the sugar mills in the State of U P. The fact that DGs Investigation Report does not include the State of UP and its sugar mills are situated only in the State of UP coupled with the fact that it is not selling its product in State of Maharashtra or any of the Southern States suggests that it has not violated the provisions of the Competition Act, 2002.", "4.2.119 Bajaj Hindustan Limited in its reply has submitted that sugar industry is highly regulated under various regulatory provisions Acts.", "According to the company, it is engaged in manufacturing of sugar and its allied products having its manufacturing units in Eastern U.P. situated in Rudhauli (Basti District), Utraula (Balrampur District), Kundarki (Gonda District) and Pratappur (Deoria District).", "It has sugar mills only in the state of UP and no other part of the country.", "4.2.120 It has been submitted by the company that since the investigation report does not find any violations of the Act by the sugar industries of the state of UP and as its units are located in the state of UP, it has no involvement whatsoever in alleged cartelization.", "4.2.121 No reply has been filed by Yogeshwari Sugar Industries Limited and South India Sugar Mills Association, Andhra Pradesh, although notices were issued to them.", "Issues 5.1 On consideration of replies of the sugar mills and their federations associations, who had participated in the meeting on 22.07.2010 at Mumbai, materials available on record and facts and circumstances of the case, the Commission feels that following issues require determination in this case: Issue 1: Are the provisions of Competition Act, 2002 applicable to the facts and circumstances of the instant case in view of the contention of the respondent sugar mills that Sugar is a controlled and regulated commodity under the Essential Commodities Act, 1955? Issue 2: Was there a meeting of mind or an agreement or an action in concert within the meaning of Section 3 of the Act among respondent sugar mill owners to fix a minimum price? Issue 3: Was the alleged decision to fix the price actually implemented? Issue 4.", "Was any appreciable adverse effect on competition (AAEC) caused due to their actions in the market? Issue 5: Was there any limit on supplies or production or market of sugar in the case due to the acts and conduct of the respondent Sugar Mills? Issue 6: Whether facts as found in course of inquiry establish any contravention of Section 3(3)(a) and Section 3(3)(b) of the Act? Determination of issues Issue 1: Are the provisions of Competition Act, 2002 applicable to the facts and circumstances of the instant case in view of the contention of the respondent sugar mills that sugar is a controlled and regulated commodity under the Essential Commodities Act, 1955? 5.2 The Commission feels that in order to determine the aforesaid issue, it will be appropriate to look at the existing relevant rules and orders of the government concerning the sugar industry at present in India.", "Further, in light of the contention that sugar is a controlled commodity and therefore its behavior is not completely dependent upon the market forces, it is pertinent to look at the prevailing structure of the sugar industry as on date.", "Although in the beginning of the order, a brief overview of the industry is given, these are discussed once again in the order below.", "5.3 There are about 651 sugar mills (as estimated in 2009-10) in India, out of which 62 are in public sector, 269 are privately owned and 320 are co-operatives.", "The concentration level in Indian Sugar Industry, therefore, is not very high.", "Consequently, production and availability of the sugar in stock is also not restricted in the hands of only few players in India.", "4 As has been brought out by various respondent sugar mills and their associations federations in course of proceedings, sugar falls under the category of essential commodity under the Essential Commodities Act 1955 (EC Act).", "Section 2 (e) of the Act makes specific reference to Sugar.", "Not only sugar as a food stuff but its raw material, Sugarcane as a food crop is also covered under the class of essential commodities under the Essential Commodities Act.", "5.5 The Commission notes that sugar industry in India is largely controlled by tree government.", "Attempts to decontrol it were met without success in 1971-72 and in 1978-79.", "Although some measures have been taken by the government to relax the regulatory controls, a host of rules and regulations still makes sugar a highly controlled and regulated commodity.", "5 . 6 Sugar (Regulation of Production) Act, 1961 provided for the regulation of production of sugar in the interests of general public and for the levy and collection of a special excise duty on sugar produced by a factory.", "The government de-licensed the sugar sector in the August 1998, thereby removing the restriction on the expansion of existing as well as on the establishment of new units.", "However, stipulation of a minimum distance of 15 kms between an existing sugar mill and a new mill continues to be observed.", "7 The Central Government is authorized under Sugar (Control) Order, 1966 to regulate the sales of produced and imported sugar.", "The Essential Commodities (Amendment) Act, 2003, incorporates the provisions of clause 4 5 of the Sugar (Control) Order, 1966 in the Essential Commodities Act, 1955 through insertion of sub-clause (3D) (3E).", "As per the amended act, no producer, importer or exporter of sugar shall sell or otherwise dispose of or deliver any kind of sugar except under and in accordance with the directions issued by the government.", "Clause 4 of the Order stipulates that no producer shall sell or agree to sell or otherwise dispose of or deliver or agree to deliver any kind of sugar or remove any kind of sugar from the bonded go downs of the factory in which it is produced except in accordance with the directions and release orders issued in writing by the Central Government.", "5.8 Clause 5 of Sugar (Control) Order, 1966 empowers the Central Government to issue directions to producers or importers or recognized dealers regarding production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar.", "Further, the Sugar Control Order also provides for powers for attachment, seizure and sale of attached sugar, regulation of quality of sugar and other administrative powers.", "5.9 At present the government is following a policy of dual pricing and partial control for sugar.", "Under the policy of partial control, a part of sugar production is requisitioned as levy sugar for distribution in the Public Distribution System (PDS) at a uniform retail issue price (RIP) throughout the country.", "The government is empowered under Levy Sugar Supply (Control) Order, 1979 as amended by Levy Sugar (Control) Amendment Order, 2000 to issue directions to any producer or importer or recognized dealer to supply Levy Sugar to such persons or organizations in such areas or markets or to the State Government Union Territory administration as the government may specify.", "5.10 The levy sugar price is fixed by the Central Government as per the provisions of Section 3A (3C) of the Essential Commodities Act.", "Further, Section 3 (3c) provides for fixing different prices from time to time for different areas or factories or for different kinds of sugar.", "The price of levy sugar is determined under the statutory provisions of EC Act for each sugar season by the government on zonal basis and the sugar mills situated in a particular levy price zone are entitled to receive the ex-mill factory levy price so fixed for the levy sugar supplied by it.", "5 .1 1 Levy sugar price is fixed by the Central Government having regard to the minimum price fixed for sugarcane by the Central Govt.", ", manufacturing cost of sugar, duty or tax payable thereon and securing of a reasonable return on the capital employed in the business of manufacturing sugar.", "5.12 Levy Sugar Price Equalization Fund Act, 1976 provides for the establishment, in the public interest, of the Levy Sugar Price Equalization Fund to ensure that the price of levy sugar is uniform throughout India.", "The LSPEF Act is administered by the government and is funded both by excess realizations made by producers and by government loans or grants.", "Money unclaimed by recipients after six months from the date on which it is credited vests in the government and is utilized to ensure that the retail price of Levy Sugar is uniform throughout the country.", "The LSPEF Act also empowers the government to recover excess realizations made by sugar factories as Arrears of Land Revenue.", "The LSPEF Act prescribes certain penal provisions, including imprisonment, fines or both, for defaulting sugar mills seeking credit for excess realizations.", "The Levy Sugar Price Equalization Fund Rules, 1977 were promulgated under LSPEF Act and govern (i) how money is credited to the Fund (ii) the account of transactions relating to the Fund (iii) application from buyers for refund and (iv) utilization of the Fund by the government.", "5.13 Keeping in view the demand for decontrol over the sugar, the compulsory levy obligation of the sugar factories was reduced by the government from 40 to 30 w.e.f. January 1, 2000.", "With effect from February 1, 2001, the compulsory levy obligation was further reduced to 15.", "The levy obligation now stands at 10 of the production, although in the year 2009-10 the prescribed levy obligation was 20.", "5.14 Sugar produced over and above the quota of levy sugar, called non-levy sugar is allowed to be sold by sugar mills in the market subject to a mechanism of regulated release.", "Order for release of non-levy sugar is issued generally on a monthly basis.", "One of the conditions of the release order stipulates that the sugar mills are required to sell and dispatch their allotted non-levy quota within stipulated period failing which the same is liable to be converted into levy sugar.", "5.15 The Central Government is empowered under the Sugarcane (Control) Order, 1966 to fix minimum price of sugarcane to be paid by producers of the sugar for sugarcane purchased by them having regard to certain factors as mentioned in clause 3 of the said Order.", "Different price may be fixed for different areas or different qualities or varieties of sugarcane.", "Further, the Central Government or the State Government with the approval of the Central Government, may, subject to such conditions as specified in the Order, allow a suitable rebate in the price so fixed.", "The said order also contains various provisions for regulating the supply and distribution of sugarcane.", "The Central Government is also empowered to direct the producers of the sugar to pay additional price for sugarcane in addition to the minimum sugarcane prices fixed in accordance with the provisions of the second schedule to the said Order.", "5.16 With a view to providing support to the sugarcane growing farmers, in 1965- 1966, the sugar cane price for sugar mills was fixed based on production and input costs called SMP (Statutory Minimum price).", "The SMP used to be fixed by the Central Government.", "Sugar mills are also required by the States to pay State Advised Price (SAP), which sometimes are much higher than the SMP.", "5 . 1 7 From the 2009-10 sugar season, the Centre has decided to fix Fair and Remunerative Price (FRP) as the price to be paid by the sugar mills to the farmers instead of the Statutory Minimum Price (SMP).", "FRP is the minimum price that the sugarcane farmers are guaranteed.", "However, the sugar mills are free to offer any price above the FRP.", "The FRP is fixed after taking into consideration the margins for sugarcane farmers on account of risk as well as profit on the cost of production of sugarcane, including the cost of transportation.", "It includes a margin of nearly 45 per cent on account of profit and risk to the farmers on all India adjusted average cost of production of sugarcane, including the cost of transportation to the mill gate.", "1 8 As per recommendations of Commission for Agricultural Costs and Prices (CACP), the FRP for 2009-10 was fixed at Rs. 129.84 per quintal linked to a basic recovery rate of 9.5 per cent, subject to a premium of Rs 1.46 for every 0.1 percentage point increase in recovery above 9.5 per cent.", "Recovery rate is the sugar produced from the crushed cane.", "5.16 The FRP of sugarcane for 2010-11 was fixed at Rs 139.12 per quintal.", "The government has further hiked the Fair and Remunerative price (FRP) of sugarcane by 4.2 per cent at Rs 145 per quintal for 2011-12.", "Sugar mills sometimes have to pay higher price for sugarcane than the FRP, like in 2009-10, due to initial estimates of lower sugarcane and sugar production.", "5.19 Payment of cane price, as has been reported by DG, is to be made within a period of 14 days of the delivery of sugarcane to the factory and any failure in this regard would attract penal interest at the rate of 15 per annum.", "The mill owners often face the problems of cane arrears which build up when there is excess production of sugar in a season leading to decline in sugar prices a situation which adversely affects the capacity of the sugar mills to make payments including cane arrears to sugarcane farmers.", "As on May 15, 2011, as per estimates, an amount of Rs 2591.79 crore was still pending for payment for the current season.", "In addition, a sum of Rs 211.22 crore was pending for the payment for previous seasons.", "5.20 Government as enabler enacted Sugar Development Fund Act, 1982 (SDF Act) which has established the sugar development fund to promote the development of the sugar industry by providing low interest loans to rehabilitate and modernize sugar factories and to help expand sugarcane production.", "The Fund is also used to purchase excess sugar production to create a buffer stock to help stabilize the price of sugar.", "Sugar Development Fund Rules, 1983 were promulgated pursuant to Section 9 of the SDF Act and govern (i) the terms and conditions of loans or grants made from fund sources, (ii) the manner and form in which applications are to be made, (iii) the composition of the committee and the procedure to be followed by it in the discharge of its functions and (iv) the form in which and the period within which statistical and other information may be furnished by sugars factories.", "5.21 Sugar Cess Act, 1982 empowers the government to levy a cess on sugar.", "Funds generated by the cess are used to promote the development of the domestic sugar industry by providing financial assistance for the rehabilitation and modernization of sugar factories and to help expand sugarcane production.", "Net proceeds generated by the cess are credited to the sugar development fund.", "Sugar Cess Rules, 1982 were promulgated under the Sugar Cess Act, 1982 and govern the accounting reports, accounts and other related returns to be furnished to the government by sugar factories.", "5.22 Besides, above rules and regulations, Sugar (Packing and Marking) Order, 1970 provides markings to be indicated on sugar bags.", "Unless otherwise permitted by Central Government, sugar is required to be packed in A-twill jute bags conforming to Indian Standard Specifications.", "Sugar meant for the purpose of export and small consumed packs of 5 kg and below have been exempted from the compulsory use of jute bags.", "5.23 Further, there are zoning orders and area restrictions for sugarcane farmers to supply sugarcane to the mills and there is a restriction of radial distance of 15 Kms also between the two sugar factories.", "5.24 The Commission observes that the stated objectives of all the above measures adopted by the Central and the State Governments are to protect the interests of the farmers, mill owners and the consumers by ensuring payment of fair price to the cane growers, adequate returns to the sugar mills and supply of sugar to consumers at a reasonable price.", "5.25 The Commission has also taken note of the contentions of the respondents that Government of India has in the past 24 months taken a host of measures with the primary objective of controlling the sugar prices, which further establishes that government also intervenes as and when required with additional control measures, over and above, that are in place to control and regulate the industry.", "5 .2 6 Release order mechanism as discussed in preceding paras, which in effect controls the exact quantity of sales allowed to each mill, by allocating quantities, was reviewed.", "Though generally given on a monthly basis, sugar release orders can also be changed to weekly or fortnightly basis to control the supplies and hence the prices.", "Accordingly, monthly quota for free sugar was changed into weekly quota in April 2009.", "5.27 In order to discourage stocking of sugar by non-household consumers, the Central Government issued notification dated 22.08.2009 imposing stockholding limit on large consumers, whose average consumption of sugar is in excess of 10 quintals per month, to the effect that they shall not keep in stock at any time, sugar exceeding fifteen days of such use or consumption.", "The stockholding limit on large consumers was further reduced to ten days of requirement with effect from 20.02.2010.", "The government also imposed stockholding and turnover limits on sugar manufactured through vacuum pan process and khandasri sugar through open pan process till 30.09.2010.", "Turnover limit was kept at 30 days from the date of receipt of stocks by a recognized dealer of sugar and khandsari.", "5.28 Import duty on raw sugar was reduced from 60 to zero from 17.4.2009.", "This was extended till 31.12.2010.", "Import duty on white sugar was also similarly reduced from 60 to 0, initially for government agencies and subsequently for all.", "5.29 Levy obligation was exempted for raw or white imports as opposed to levy obligation on domestic producers.", "The government re-imposed requirement of obtaining release order for export of sugar with effect from 01.01.2009 under OGL and from 13.02.2009 in respect of export under advance authorization scheme.", "5.30 State Governments were advised to remove VAT on import sugar while this tax continued on domestic producers and ban on sugar futures was imposed in May 2009 that extended upto end of September, 2010.", "5.31 While the Government of India increased the Fair and Remunerative Price (ERP) from Rs. 1287/MT to Rs. 1389/MT, various state governments also fixed their own State Advised price (SAP) for example the Government of Tamil Nadu fixed the State Advised price (SAP) at Rs. 1900/- MT.", "5 .3 2 The Commission, in view of aforesaid rules and orders and interventionist measures of the government, observes that there is a considerable force in the contention of sugar mills, their federations and associations that sugar as on date is controlled and regulated to a large extent.", "Not only the final product i.e. sugar, but input i.e. sugarcane, also is under regulatory control in this industry.", "5.33 The Commission notes that that while price of the levy sugar is determined by the government, the supply of the free sugar is also regulated and sugar mills are not free to determine their own releases.", "The sugar mill owners are forced to release non-levy sugar only as per the release orders of the Central Government.", "The government keeps on changing the release mechanism depending upon the position of overall production.", "Sugar mills cannot leverage the markets fully in a situation of rising sugar prices and the mills also may face a penalty if they fail to sell the quota of free sugar within the stipulated time.", "5.34 The Commission observes that this regulated mechanism interferes with the market behavior.", "If the market sentiments are low and depressed, then the traders might not lift sugar till the last day of the stipulated release as per release orders of the government in the hope that mills will be under pressure to further reduce the price in order to comply with the directives of the government of selling the non-levy quota within the specified period.", "Depending upon the financial health and cash flow requirements, such time schedules may also compel many sugar mills to sell sugar even if that meant selling at a price below their cost of production.", "5 .3 5 The Commission also observes that since sugar industry works in a cycle, higher minimum cane prices set by the central and state governments tend to raise the areas of sugarcane under cultivation in a particular year and therefore sugar output, reducing retail prices of the sugar.", "In the years of falling sugar prices, sugar mills found themselves cash strapped and therefore make delays in making payments to farmers, The farmers in order to protect their income, consequently, shift to other crops in future years, leading to scarcity and high prices.", "5.36 The government also monitors the payments to the farmers.", "It has been made obligatory on the part of sugar mills to pay growers within 14 days of delivery, failing which 15 per cent interest per annum is leviable on the amount.", "5.37 The Commission further notes that in cooperative sugar mills of States, senior representatives of government function as the managing committee members.", "It has been reported by DG, as has been informed by the Managing Director of Maharashtra Rajya Sakhar Sangh that in the state of Maharashtra, the State Government nominates the Board of Directors for a stipulated period.", "In Maharashtra, the State Government contributes about 30 of the share capital and stands guarantor for term loans for the project raised from term lending institutions.", "Orders for plant and machinery for the new mills are placed by a committee of State Government headed by Chief Minister and other ministers as members.", "The area of operation is determined by the government under zoning order i.e. Maharashtra Sugarcane Reservation of Areas Order and license for crushing for production of sugar is issued by the Commissioner of Sugar every year under the sugarcane control order.", "Sugarcane prices are also fixed by the committee of members headed by the Chief Minister and other ministers.", "5.38 Keeping in view the above, the Commission observes that the government acts both as a stakeholder and a regulator in the sugar industry.", "The Commission finds itself in agreement with the contention of the sugar federations and sugar mills that in the midst of various control and regulations, the dynamics of the market place would not be able to determine the behavior of the market players.", "When a sector itself is controlled and regulated, it would also be insulated from the competitive forces to a large extent.", "5.39 While holding so, the Commission, however, also observes that the contention of the sugar mills is not tenable that since sugar is covered under EC Act, 1955, it is outside the scope of the Competition Act, 2002.", "The Commission observes that the two Acts are not mutually exclusive and a commodity which falls under EC Act, 1955 might also be subject matter of inquiry under the Competition Act.", "What is important is the extent to which a particular commodity covered under EC Act, 1955 is, in addition, subject to the control and regulations of the government, and the impact of such control regulation on the free play of market forces.", "If a commodity or industry, even though covered under EC Act, 1955 has been made free from control to behave in accordance with the market forces, the provisions of Competition Act will certainly apply in case of that particular commodity or industry.", "5 .4 0 The Commission feels that since sugar is under control either through a mechanism of control over prices or control over release supply, the industry is not operating within the free market and market dynamics are not able to drive the industry.", "The behavior of such an industry is determined not fully by market forces but by the controls and regulations of the government.", "The Commission further observes that in such a regulated sector as sugar industry, the possibility of successful cartelization of sugar prices is remote because the releases in the market are not in the hands of sugar mills and additionally there is pressure to make timely payment of sugarcane.", "Issue 2: Was there a meeting of mind or an agreement or an action in concert within the meaning of Section 3 of the Act among respondent sugar mill owners to fix a minimum price? 5 .", "4 1 The report of investigation by DG clearly establishes that sugar mills of Maharashtra, Gujarat, Karnataka, UP and Tamil Nadu had met on 22.07.2010 in a meeting convened by Maharashtra Rajya Sahkari Sakhar Sangh Limited at Mumbai.", "A notice was also issued pursuant to which the aforesaid meeting was held.", "This fact has also not been disputed by the respondents.", "There are press reports also to this effect.", "5.42 The Commission notes that it has been alleged that a press release was issued incorporating various points including the minimum floor price, after the meeting on 22.07.2010.", "The fact that press release was allegedly issued by Maharashtra Rajya Sahkari Sakhar Sangh Limited has been disputed by the society.", "DG in course of his investigation, also could not find out the origin and author of this press release.", "Further, the press release placed on record is also unsigned.", "5.43 The Commission, however, observes that although the origin of press release has been denied, from the submissions of various persons including the communications of General Secretary of SISMA -Tamil Nadu and Andhra Pradesh to its members in which the deliberations of the meeting dated 22.07.2010 have been conveyed, it is clear that the issue of minimum ex-floor price was indeed discussed in the meeting.", "5.44 However, the Commission also notes that in course of investigation it has been found by the DG that the two national level associations federations of sugar mills of private and cooperative sector, namely, NFCSF and ISMA had not participated in the aforesaid meeting.", "There is no finding also to the effect that all the sugar mills-either from the cooperative or the private sector from the states of Maharashtra, Gujarat, Andhra Pradesh and Tamil Nadu, had participated in the aforesaid meeting.", "The respondents have also raised an issue in course of proceedings that a meeting of some sugar mills cannot be said to be the meeting of all the sugar mills of a particular state.", "The respondents have also submitted that a decision taken by some sugar federations sugar mills cannot be taken as the decision of all the sugar mills.", "The investigation report also does not bring out as to how many sugar mills were actually parts of the decision or agreement in the meeting dated 22.07.2010.", "5.45 The Commission further notes that based upon the communication of Secretary SISMA-AP to its members that in the meeting dated 22.07.2010, MD of Maharashtra Sakhar Sangh had remarked that the prices for Karnataka and Maharashtra were fixed at Rs. 2500 per quintal since 24th June 2010, DG has concluded that the cartel was in operation since 24th June 2010 in Karnataka and Maharashtra and after meeting on 22.07.2010 it was extended to other states of AP, Gujarat and Tamil Nadu.", "However, no independent corroboration of this alleged decision arrangement arrived at or adopted in June 2010 has been carried out.", "There is no evidence on record to support that all the mills of Karnataka and Maharashtra had met and decided to take a concerted action on 24th June 2010 or any of the dates in June 2010 to maintain certain minimum floor price and also implemented the same in concert.", "5 .4 6 Further, enough evidence has been given to the effect that many of the participants of the meeting held on 22.07.2011 had sold sugar at a price which was lower than the alleged minimum price fixed.", "5.47 In view of the above, the Commission feels that while issue of price might have been discussed in the meeting, there is no conclusive evidence that there was a meeting of mind and that it was decided to fix a minimum price at which the sugar should be sold.", "In any case, cartels do not give press releases.", "Issue 3: Was the alleged decision to fix the price actually implemented? 5.48 The Commission notes that DG has reported based upon the press reports and statement of Shri Ashok Jain that decision to have a minimum ex-mills price could not sustain for long and perhaps lasted for a day or two.", "The reasons given by Ashok Jain for the same, as under before DG, are pertinent It is understood that most of the sugar mills were are in need of funds and they did not have sufficient sustaining power.", "Further, the transportation cost for the various sugar factories situated in different areas were also not similar and as such the industry itself was divided unhappy over this decision.", "The factories which were situated away from the large consuming centers like Mumbai would have a higher transportation cost and would therefore not be preferred by the major buyers.", "5.49 The private mill owners like EID Parry limited before DG have also submitted that in a industry like sugar which is regulated and controlled at the hands of both the Central and State Government, it is not possible to have any price cartelization.", "5.50 The Commission notes that DG has not done exhaustive analysis of the ex-mill prices of individual sugar mills that had participated in the meeting dated 22.07.2010 to find out whether decision to maintain minimum floor price was also acted upon.", "However, from the submissions made by the sugar mills in course of proceedings, the Commission observes that the ex-mills price of the sugar mills in the states where cartelization among the mills has been alleged, was ruling below the minimum price allegedly fixed at the meeting, both before and after the meeting.", "5.51 In proceedings before DG, major private mills which were issued notices, had also given their cost of production and ex-mills price.", "Balrampur Chini, Kolkata has stated that as against production cost of Rs. 3107.93 per quintal for the group, its ex- mills price was Rs. 2693.", "07 in July 2010, 2636.80 in August 2010 and 2651.21 in September 2010.", "Triveni Engineering and Industries Limited, UP has also submitted that ex-mill prices were lower than the cost of production of its units during July- September 2010.", "5.52 Similar information has been furnished before DG and in course of inquiry proceedings subsequently by other private mills like DSCL, Delhi and Bajaj Hindustan Limited, Mumbai, Mawana Sugar Limited, Gurgaon operating in UP and EID Parry Limited operating in Tamil Nadu.", "These mills have reported with figures that their cost of production during the period July 2010- October 2010 was higher than the ex- mills prices.", "5.53 The investigation report of DG also contains information to this effect that ex- mills prices of private mills like E.I.D. Parry of Chennai, Shree Renuka Sugars Limited, Karnataka and Nava Bharat Ventures Limited, Andhra Pradesh had not reached the minimum floor price as was decided in the meeting on 22.07.2010.", "5.54 It has also been mentioned by DG that in Andhra Pradesh and Gujarat the arrangement had a limited success as the minimum price could rise only upto Rs. 2650, which was below the price decided to be fixed by the associations in the meeting dated 22.07.2010.", "5.55 Shri Renuka Sugar Mills Limited in its replies in course of inquiry proceedings has also submitted that its spot sales realizations in Karnataka and Maharashtra on 24th and 25 June 2010 was well below Rs. 2500/-, the alleged minimum floor price fixed due to alleged cartelization.", "It has been further submitted by the company that it had sold the sugar at a price of Rs. 2506.76 on 23.07.2010, Rs. 2500.15 on 24.07.2010 and 26.07.2010, Rs. 2501.48 on 27.07.2010, well below the alleged minimum floor price fixed in the meeting of 22.07.2010.", "It has also provided daily analysis of quantity of sugar sold during the period 19.07.2010 to 30.07.2010 and has contended that the price at which it has been sold, demonstrates that it had never adhered to the purported price fixation.", "5.56 In its reply during inquiry proceedings, M s Shree Ambika Sugars Limited, Tamil Nadu, has contended that out of its two units, one unit had no sales during the relevant period and the ex-mill price at the other unit did not show any increase but was actually in the range of Rs. 2475 to Rs. 2518 per quintal and not Rs. 2700 per quintal which is the alleged minimum floor price agreed to be maintained.", "5.57 Another sugar mills company, Viswanath Sugar Mills has also submitted that it had sold the sugar at a price of Rs. 2506.76 per quintal on 23.07.2010, Rs. 2500.15 on 24.07.2010 and 26.07.2010, Rs. 2501.48 on 27.07.2010, well below the alleged minimum floor price fixed in the meeting of 22.07.2010.", "It has also provided daily analysis of quantity of sugar sold during the period 19.07.2010 to 30.07.2010 and has contended that the price at which it has been sold, demonstrates that it had never adhered to the purported price fixation.", "5.58 The Commission observes that in course of inquiry proceedings, cooperative mills have also submitted data to support their arguments that their ex-mills prices were below the minimum floor price which was allegedly decided to be fixed in the meeting dated 22.07.2010 for the period-23.07.2010 till 31.08.2010.", "5.59 HSSK, a sugar mill cooperative society in Karnataka, a respondent in course of proceedings, has denied that it had adhered to the alleged purported fixed pride of Rs. 2700 per quintal on July 22, 2010 since it had sold sugar at a price of Rs. 2513.71 on July 23, 2010, Rs. 2525.", "63 on July 24, 2010, Rs. 2511.26 on July 26, 2010 and Rs. 2560.15 on July 27, 2010.", "5.60 HSKK has also submitted a daily analysis of the sugar sold during the period of July 19, 2010 till July 30, 2010 to substantiate its arguments that it did not adhere to the purported ex-mill price fixed in the meeting held on 22.07.2010.", "5.61 The Commission notes that Maharashtra Rajya Sakhar Sangh has also brought out in its submissions that the ex-mills price of various mills remained below Rs. 2700 per quintal even after 22.07.2010, a fact which cannot be ignored in absence of any contrary findings.", "In this regard, the submissions of Shri Naiknavare, MD of Maharashtra Sakhar Sangh are pertinent in which it has been stated as under: It is very crucial to take note of that even after the informal meeting which had taken place on 22nd July, 2010, the market reports and the study shows no mill resorted to selling sugar at a fixed price (floor price as mentioned in the purported press release) post 22nd July, 2010 meeting.", "It is also to be noted that the average ex mill realization has not leaped to particular ex-mill price level.", "It is also important to take note that the average ex-mill sugar prices for three months following 22nd July, 2010 meeting has shown a decline which has resulted into short margin losses owing to the fact that the mill had abundant stock of sugar as a result of which the financial institutions have converted the short margin losses into fresh loan which has imposed a financial burden on the sugar factories.", "Thus, it shows that post 22nd July, 2010 meeting has in fact not made any benefit to the sugar mills either directly or indirectly.", "5.62 On the basis of the above facts, the Commission notes that although it appears that the issue of a minimum floor price was discussed, evidences suggest that the prices were below the alleged minimum fixed price.", "It has been contended in course of proceedings that on the face of various controls and regulations, it was difficult for the sugar mill owners to maintain a particular ex-mill price.", "There is no evidence that ex-mill price of sugar was maintained at the desirable level as allegedly decided in the meeting on 22.07.2010.", "This was not found practicable as has also been outlined by Mr. Ashok Jain, the President of Bombay Merchants Association.", "DG in his report has also concluded that agreement could remain in force for two or three days only.", "5.63 The Commission observes that the provisions of Section 3(3) entail that certain activities will be presumed to be anti-competitive.", "Section 3(3)(a) of the Act specifically provides that any agreement which determines directly or indirectly price shall be presumed to be anti-competitive.", "However, once rebuttals have been given by the parties disputing the facts and also that their action has caused AAEC, then the Commission has to consider the case accordingly.", "5 . 6 4 The Commission further observes that DG appears to have given his conclusions and findings that sugar mills had violated the provisions of Section 3(3) of the Act, based upon the purported press release, press reports and deliberations in the meeting held on 22.07.2010, in light of provisions of presumption provided in the section 3 of the Act.", "However, in order to hold the presumptions to be correct, it is necessary that the correctness of various facts reasons regarding limit of the supply, production or market or fixation of prices are ascertained.", "5.65 In this regard, the Commission notes that not only sugar mills have given evidences to prove that decision to have certain minimum ex-mills floor price was not acted upon, even though discussed they have also denied issue of any press release pursuant to that meeting.", "DG has also not been able to establish either the origin of the press release or the fact that sugar mills which had participated in the meeting on 22.07.2010 had managed to maintain their prices upto or more than the alleged agreed minimum floor price.", "On the other hand, the sugar mills have given data to support that their prices never reached the minimum floor price as allegedly agreed in the meeting dated 22.07.2010.", "They have also given their own sets of reasons behind the need for holding meeting, also bringing out that no appreciable adverse effect on competition could have been caused in the market due to their alleged actions.", "5 . 6 6 The Commission, therefore, concludes that the alleged decision to have minimum price of sugar was never implemented.", "Issue 4: Was any appreciable adverse effect on competition (AAEC) caused in the market? 5 .6 7 The Commission notes from the submissions of Maharashtra Rajya Sakhar Sangh Limited that in Maharashtra, a large number of sugar mills out of about 168 mills are in the cooperative sugar sector, which have been established for the benefit of its farmer members.", "The members of the cooperative sugar factories are ultimately the owners through their share holding in the sugar factory.", "The concept of cooperative movement is to work on the principle of No profit-No loss wherein surplus if any, is passed on to the members who are agriculturists.", "5.68 The society has also stated that at the start of crushing season the cooperative sugar factory declares its first installment amount which is to be paid mandatory within 15 days from the date of supply of sugarcane and at that stage the cooperative industry does not oversee the factors such as market price and futures market to determine the first installment to be paid to its members.", "It has further stated that the State Government has also invested in the capital at the time of formation of the cooperative sugar factory and hence all cooperative sugar factories are under the supervision and control of the Commissioner of Sugar appointed by the State Government.", "5.69 The Commission feels that in such a scenario, the contention of the cooperative mills appear to be correct that it is very difficult for them to predict the sale realization price compared to its actual production cost and maintain a price fixed by all sugar mills through a concerted decision or action.", "5.70 The Commission notes that sugar mills have also contended that in states like Tamil Nadu, the co-operative sugar factories have a production share of 20 and are permitted to sell the sugar within the State only by inviting bids on a daily tender basis.", "In case of Maharashtra also, a majority of mills are in the cooperative sector which sells the sugar by inviting bids.", "In this regard, the statement of Shri Naiknavare, MD of Maharshtra Rajya Sahkari Sangh is pertinent as quoted by DG in his report As explained earlier, the Cooperative Sugar factories are selling Sugar by calling tenders from all Sugar traders by publishing tender notice in Newspaper.", "Maharashtra being the surplus state most of the Sugar goes out of the state i.e. North Eastern States like West Bengal, Assam, Orissa deficit states like M.P. Rajasthan.", "The Sugar traders knowing the situation of surplus state take advantage of situation many times they offer the tender at low rates.", "It compels the factory to hold the decision of selling Sugar for some time to recoup the cost of production.", "Factories try to retender if they feel that, even the cost of production is not recovered then they keep the tenders open of production cost.", "7 1 The Commission observes that the DG has concluded in his report that whatever may be the process of sale of sugar by the private and the cooperative mills, if all the mills take a concerted action not to sell sugar below the minimum fixed price then the prices cannot be determined by the dynamics of market as the prices would be those which have been decided by the mills in concert.", "However, in this regard, the Commission notes that the DG has failed to appreciate an important aspect that tender itself is a process of market discovery and price cannot be fixed in such circumstances, unless there are evidences of manipulation in the tender process as well, which is not there on record.", "5.72 The Commission further observes from the contentions of the sugar mills that ex-mill prices by the private mills other than the cooperative mills are set generally around the tender price of the co-operative mills.", "Some non-cooperative mills may also opt for the process of tender as informed in course of proceedings.", "In such a situation, it was not probable that sugar mill owners would have taken a decision to sell sugar at a predetermined fixed price and thereafter maintain those prices at the time of sale, when a process of sale through tender was also in place.", "5.73 In light of the fact that the presumptions in the provisions of Section 3(3) are rebuttable in nature and the respondents have rebutted the findings of the DG, the Commission feels that various factors mentioned in Section 19(3) of the Act need to have been analyzed by DG to find out whether any AAEC was caused in the market due to the actions of the sugar mills.", "However, DG has not done that.", "5.74 Looking at the provisions of Section 19(3) of the Competition Act, 2002, the Commission finds that it needs to be established whether the sugar mills, their federations associations either in cooperative or in private sector, had created any barriers to the new entrants in the market or had driven existing competitors out of the market or foreclosed competition in the market.", "The report of DG does not bring out that any of these have been caused due to actions of the entities which held the meeting on 22.07.2010.", "5.75 The Commission finds no discussion in the report of investigation to support that there has been Appreciable Adverse Effect on Competition in India due to the alleged actions of sugar mills in terms of provisions of Section 19(3) of the Act.", "5.76 One of the crucial factors mentioned in Section 19(3)(a) for determination of AAEC is creation of barriers to entry in the market.", "The investigation has not been able to establish that the acts and conduct of sugar mills acted as barriers to entry of new players in the market.", "5 .7 7 Similarly, the investigation has not been able to establish that there was foreclosure of any competition as outlined in Section 19(3)(c) or that any competitor was driven away from the market as mentioned in Section 19(3) (b).", "5 .7 8 The Commission, therefore, concludes that there was no adverse effect on competition.", "Issue 5: Was there any limit on supplies or production or market of sugar caused in the case due to the acts and conduct of the respondent Sugar Mills? 5.79 The Commission also observes that although DG has brought out that the sugar mills have violated the provisions of Section 3(3)(b) of the Act, it is not established how the sugar mills were able to limit or control the supply, production or the market of sugar in face of various regulatory controls, higher production and declining prices.", "No analysis of production or supply of sugar by various mills has been carried out by DG to show that the sugar mill owners have acted together in concert to control supply, production or limit the market.", "It is also important that each sugar mill is bound to release sugar as per directives of govt.", "and therefore the control over supply of sugar in the market was also not possible.", "8 0 The Commission notes that the contention of sugar mills in course of proceedings has been that they were facing a problem of excess production and declining sugar prices as compared to their cost of production in 2010.", "Thus, it cannot be said that sugar mills had limited the production in order to influence the overall market.", "DG has also recognized this fact in his report and has submitted that since the production in Karnataka and Maharashtra had risen sharply as compared to previous year, the problem of declining prices was more acute in those states.", "This was the reason, according to DG, that maximum participation in the meeting held on 22.07.2010 was also from these two states in order to find ways to overcome the problems.", "Once it is recognized that the production had gone up as compared to previous year and there are regulatory controls of the government over releases in the market, it cannot be maintained that agreement among the sugar mills aimed at limiting or controlling the production or supplies or market of sugar.", "5.81 In view of above, the Commission holds that there is no evidence to support that the sugar mills acted in concert to control or limit the supply, production or the market of sugar.", "5.82 The Commission observes that this brings the entire discussion to the final determination of the issues, as to whether findings of DG regarding contravention of Section 3(3)(a) and Section 3(3)(b) of the Act are sustainable at all.", "Issue 6: Whether facts as found in course of inquiry establish any contravention of Section 3(3)(a) and Section 3(3)(b) of the Act as has been finally determined by the DG in the case? 5.83 As discussed in the order above, the inquiry in the case has not come out with any conclusive evidence to establish that sugar mills have acted in concert to control or limit the supply or production or the market of sugar.", "Since there is no evidence to substantiate that any control or limit on supply or production or market has been caused there is no case of contravention in violation of Section 3(3)(b) of the Act.", "5.84 The facts on record reveal that there was increase in production during the year which caused fall in prices.", "Under these circumstances, it cannot be said that sugar mills which had participated in the meeting convened on 22.07.2010, tried to limit or control the supply or production of sugar or market of the sugar.", "Thus, contravention of provisions of Section 3(3)(b) does not get established.", "5.85 As far as violation of provisions of Section 3(3)(a) of the Act is concerned, it is not conclusively established that the mills agreed to have a minimum floor price.", "The facts also reveal that the investigation could not establish that the alleged agreement was implemented by the sugar mills.", "Many mills which had participated in the meeting in fact have come out with data to show that the ex-mills prices had ruled below the minimum floor price purportedly fixed from 23.07.2010 till 31.08.2010 in the meeting dated 22.07.2010.", "Since there is no data contrary to what has been submitted by them, their assertions cannot be disputed.", "Further, the inquiry has also not established that the actions of sugar mills caused AAEC in the market.", "Conclusion The Commission in view of above is of the considered opinion that sugar mills of the states of Maharashtra, Gujarat, Andhra Pradesh, Karnataka and Tamil Nadu have not contravened the provisions of Section 3(3) during the period under investigation and that their actions have not caused AAEC in the market.", "The commission accordingly deems it fit to close the matter.", "The Commission also feels that the sugar industry is not free from control and is at present highly controlled and regulated.", "The Commission also observes that sugar prices are not a mere function of demand and supply and there are complex forces at play which distort and in a way proscribe the market from working in a competitive and free manner.", "The High level Committee on Competition Policy and Law (Raghavan Committee) has given its finding that restrictions on sugarcane prices and procurement, production capacities, dual pricing of sugar (levy and non-levy), restraint of exports and imports and many other like restrictions have enabled the inefficient producers of sugar to continue and prevent the rise of a competitive sugar industry.", "Considering all the above facts, the Commission feels that the government, after taking into account all aspects including need to have such measures in place which may be necessary for overall social and economic welfare, may frame a policy which allows the market and competitive forces to play a bigger role in the sector.", "While competition in the sector may enable the efficient firms to perform better, it may also ultimately bring benefits to the consumers since efficient firms in a competitive environment may not only compete for greater share of the market but also incentives the consumers through better product and lower prices.", "The Secretary is directed to inform the parties accordingly.", "Prasad, Member (dissenting) In this order of the Commission the majority view is that no case is made out and therefore the case is required to be closed.", "I have a different view and therefore I am passing a separate order in this case.", "The case was started on suo-moto basis by the Commission.", "The Commission took cognizance of a report published in the Economic Times on 26.07.2010.", "In the said report in the Economic Times, it was reported that the President of Bombay Sugar Merchant Association had given a statement that between 24.07.2010 and 30.07.2010 the Indian Sugar Mills Association and the National Cooperative Sugar Mills Federation had held a meeting and decided to increase the ex-factory prices by 4 to 6 in order to prevent the sugar prices falling below the cost of production.", "According to the report the cooperative and private sugar mills had formed a cartel to boost the retail price of sugar just one month before the peak demand season started.", "A copy of the press release by the Sugar Mills Association showing price fixing was forwarded by the President of the Bombay Sugar Mills Merchant Association.", "On the basis of the said news items and the press release the Commission came to a conclusion that there existed a prima facie case of price-fixing and therefore the issue was referred to the Director General for investigation.", "The Director General made enquiries and came to the conclusion that the sugar mills and the associations of the states of Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh and Gujarat had held a meeting on 22.07.2010 at Shakhar Bhawan, Mumbai and had fixed the price so that no mill would sell sugar at a price which was below the minimum price fixed for those states.", "An earlier meeting had been held between the sugar manufacturers of Maharashtra and Karnataka on 25.06.2010 and in this meeting it was stated that the sugar mills of Tamil Nadu and Gujarat should also be included.", "By the decision taken on 22.07.2010 the mills fixed the minimum sale price of sugar.", "The Director General came to a conclusion that by fixing the minimum prices of sugar mills have contravened Sections 3(3)(a) 3(3)(b) of the Competition Act read with Section 3(1) of the Act The Commission then gave hearing to various parties involved in fixing price of sugar and came to the conclusion that there existed no case.", "All the arguments raised during the course of hearing have been reproduced in the main order and therefore there is no necessity to reproduce the same in this order.", "The only issue to be decided is whether it is a case of price-fixing or not.", "Section 3(3) reads as under: Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provisions of services, which - (a) directly or indirectly determines purchase or sale prices (b) limits or controls production, supply, markets, technical- development investment or provision of services (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way (d) directly or indirectly results in bid rigging or collusive bidding, Shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.", "Under the provisions of section 3(3)(b) of the Act any agreement or practice carried out or decision taken by any Association of enterprises or persons including cartels engaged identical or similar trade of goods provisions of services is covered provided any of the conditions laid down in clauses (a), (b), (c) (d) are attracted.", "Thus if the agreement or a practice or a decision taken by some persons came within the ambit of clauses (a), (b), (c) (d) of the said section then the presumption is that there was an appreciable adverse effect on competition.", "The question is whether a meeting of minds in such a case is necessary.", "The next question is whether the implementation of price-fixing is also necessary.", "The third question is whether such action causes any appreciable adverse effect on competition in India.", "The fourth question is as to whether it is necessary to examine the factors mentioned in section 19(3) of the Act.", "Section 3(3) of the Competition Act is a fiction created by law and it leads to a presumption provided the conditions mentioned in clauses (a), (b), (c) and (d) are established.", "Further in this section agreements, practices and decisions taken though they are different items as defined in the Competition Act but for the purpose of presumption, the three of them are placed at par.", "For a fiction of law a strict interpretation has to be taken and what is not mentioned in the Act and in the section cannot be imported.", "Therefore meeting of minds is not a necessity for the purposes of section 3(3) of the Competition Act.", "Under the scheme of rebuttable presumption in the section, it is for the parties concerned to establish that there was no price- fixing as a result of the decision taken.", "It is also not a case of a cartel because cartel is defined in the Act in a different manner and for a different purpose.", "It is a pure and simple case of a decision taken by an association of sugar mills in the meeting held in Mumbai so that no sugar mill can sell sugar below the minimum floor price.", "Section 3(3) states that any decision taken which is hit by Section 3(3) shall be presumed to cause appreciable adverse effect (AAEC) on competition.", "The question which arises is as to whether the factors mentioned in section 19(3) of the Act have to be considered.", "As a fiction is created by the presumption under the section 3(3) of the Act it is not necessary to examine the provisions of section 19(3) of the Act.", "But even then the action of the association of sugar producers who participated in the meeting in Mumbai in July 2010 would lead to a situation which would be detrimental to the consumers.", "An argument can be raised that Section 3(3)(b) can only be applied after the event has happened.", "An Act has to be read as a whole.", "Therefore any decision taken which ultimately would be detrimental to the consumers though at a later date would be hit by the provisions of Section 3(3) of the Competition Act.", "t has therefore to be held that no meeting of minds is necessary for invoking Section 3(3) of the Act and that whenever Section 3(3) is invoked it is not necessary the Commission to consider the factors mentioned in Section 19(3) of the Act.", "In this connection it is necessary to examine the law has laid down the by the Honorable Supreme Court of India and civil appeal number 7779 of 2010 CCI vs SAIL.", "In para 11 of the order dated 09.09.2010 the Supreme Court has held that a court should apply plain rule of construction rather than try to read words into the statute which have been specifically omitted permitted by the latest legislature.", "Supreme Court also held that the provisions have to interpreted in such a manner that by applying the plain rule of construction and taking into account the intention of the legislature and that this has to be gathered from the language used and that attention should be paid to what has been said and also to what has not been said.", "The Supreme Court also held that the courts are also not entitled to read words into an Act unless a case for it is found within the four corners of the Act itself.", "Supreme Court also held that question of construction arises only when there is an ambiguity or the plain meaning of the words used in the statute would be self defeating.", "The Court also held that when there is no ambiguity and the intention of the legislature is clear, there is no scope for any court or anyone else for interpreting the Act as it suits him.", "The Court further held that if two views are possible then the one which falls in line with the legislative intent should be followed rather than one which defeats the object of the Act.", "The Apex court has also stated that the principles of natural justice in many provisions can be denied in larger public interest and for valid reasons.", "The Supreme Court further held that the Commission is expected to forward a copy of the report, invite objections and suggestions from the informants Central Government, State Government statutory authority or the parties concerned.", "Before arriving at any final conclusion under Sections 26(7) or 26(8) of the Act as the case may be, in view of these observations of the Apex court as there was no ambiguity in Section 3(3) of the Act the question of importing a collusive behavior or applying Section 19(3) of the Act does not arise in this case.", "In the light of the Supreme Court decision in the case of CCI vs SAIL (supra) this issue has to be examined.", "Before the Commission the sugar mills argued that sugar industry is a controlled industry and that all the units are running at a loss.", "In this case, if the industry is incurring losses because it is controlled industry then there is no reason as to why the number of Sugar Mills has increased to 651 sugar mills from nearly 136 at the time of independence in 1947.", "Therefore the argument of the sugar mills that they are a loss-making industry does not hold good.", "Nobody could deal or invest in any item which is a loss-making proposition.", "Because some mills are running at a loss it does not mean that they cannot fix prices.", "Making loss has nothing to do with fixing prices to reduce the looses Under the Competition Law, fixing prices is an offence and if a unit is inefficient, it does not entitle it to fix prices.", "It has normally been observed in various economic studies all over the world price- fixing is normally done when the industry is suffering a loss.", "Another argument taken by the Sugar Mills is that the entire sugar industry is monitored under the Essential Commodities Act of 1955 and therefore the competition law is not applicable.", "Under the Competition Act no exemption is provided to industry from the application of any other Act.", "In fact as held by the Supreme Court while interpreting the construction of a statute that the simple meaning of the Statute should be taking and nothing has to be imported in the statute which does not exist in the Statute.", "It was for the Sugar Mills to establish that the EC Act makes it impossible for the Competition Act to work.", "The EC Act was passed in 1955 whereas this Competition Act is applicable from 20.05.2009.", "It is a later Act.", "In both the Acts it is mentioned that notwithstanding anything contained in any other Act the provisions of the Act will apply.", "The Competition Act came at a later date and it is a decided issue that the Act which comes later overrides the earlier Act if such a clause is mentioned in both the Acts.", "But section 62 of the Competition Act says that the Competition Act should be applied in such a manner that it does not put the other Act in a derogatory position.", "Therefore a constructive solution has to be found out.", "The EC Act is concerned with Essential Commodities and the subject matter of this Act is totally different from the Competition Act.", "It is not clear how the working of the EC Act would be unworkable with reference to Competition Act.", "Therefore the arguments of the mills are not correct.", "There is no material to hold that the application of the EC Act leads to the conclusion that Competition Act would not apply.", "Under the Essential Commodities Act of 1955 all eligible items are covered and a special case has been made for sugar.", "In fact the background of the Act is that most of the sugar mills were not making payment to the sugar cane growers.", "As a result of this fact, it led to a State intervention by different promulgations under the EC Act.", "In a similar situation in the USA and Canada where wheat farmers were not getting proper prices for their wheat from traders led to the enactment of the Competition Act.", "In fact the wheat traders used to form a Trust and give a lower price to the farmers.", "In order to curb price fixing by the Trusts, Sherman Act in the USA was enacted and the Competition Law till today is known as an Anti Trust Act.", "Thus on the same situation, in the USA it led to the Sherman Act and in India to the E.C. Act.", "Presently as far as sugar industry is concerned the cane price is administered both by the State government and the Central government and the mills have to buy sugar cane at prices fixed by the government and if they do not make payment within 15 days the mill owners have to pay interest to the sugar cane growers.", "But in spite of this law the total outstanding of the sugar Mills to the sugarcane farmers are approx Rs. 2500 crores.", "This value is correct because none of the mills have disputed it.", "Out of the sugar produced 10 of the sugar goes towards levy sugar which is sold to persons below the poverty line of the country and the balance 90 is free sale sugar.", "The sugar mills realize not only the value of sugar sold but also the price of molasses, ethanol and bagasse.", "There is no material to hold that the sugar mills suffered losses because the levy sugar was sold at a price below the cost of production.", "In fact as far as free sale sugar is concerned the government does not regulate the prices and the mills can make good the losses suffered on account of the sale of levy sugar.", "As far as free sale sugar is concerned, the government allots quota for monthly sale to the sugar mills and this does not cause losses to the sugar mills as the prices of sugar are not fixed.", "But in the cost consideration the value of molasses, spirits, ethanol etc. also have to be taken into account because without taking into account the viability of the industry cannot be worked out.", "The fact is that against 136 mills in 1947 today there are 651 sugar mills in India.", "If this industry is suffering such a loss why would industry create 500 more mills.", "The argument of the industry that the application of EC Act to the sugar industry has led to losses suffered by the sugar industry is not correct.", "In fact most of the losses are in the cooperative sector where there is a case of mismanagement.", "On the other hand as far as a private sugar mills are concerned they are mostly have good profits, have good share value and some of them have acquired sugar plants abroad mainly from internal accruals.", "Therefore, the arguments of the industry that they are suffering losses and therefore the Competition Law would not apply does not hold good at all.", "Though the Essential Commodities Act has been on the statute for the last 46 years, it has not led to the achievement of objectives.", "The farmers have still to recover more than Rs. 2500 crores from the mills and there has been large number of farmer suicides.", "The mills in the Cooperative Sector mainly in Maharashtra are having huge losses.", "The yield of sugar from sugar cane grown the red soil in Maharashtra is higher than that of North India but still the mills are at a loss.", "The consumers have suffered because sugar prices are going up every year.", "Further, no analysis can be complete without taking into account the export and import policy of the government.", "Sugar is a seasonal product.", "Large numbers of farmers are involved in the farming of sugar cane.", "It has been observed that when sugar prices increase, the acreage for sugar cane cultivation increases and this depresses the prices of sugar in the local market.", "In the next season, the acreage under cultivation decreases and this leads to a shortage of sugar and price rise.", "In such cases, the govt.", "removes the restriction on the import of sugar.", "But the govt.", "decision is generally delayed and the consumers suffer and the mills make wind fall profits.", "In view of these facts, it is clear that demand and supply rules certainly work in the sugar industry and it would be wrong to conclude that demand and supply of the market do not apply in the sugar industry.", "The mills have also argued that regulated mechanism interferes with the market behavior.", "It was stated that the traders do not lift the sugar till the last date of the release order on the plea that the mills would sell at a loss or a lower price.", "It was argued that many times this leads to losses for the mills.", "But does it mean that the mills can sit together and fix prices when it is especially prohibited under law.", "It has also been argued that especially in the State of Maharashtra the Board of Directors in different cooperative mills are appointed by govt.", ", share capital is contributed by the government and the loans taken by cooperative mills are guaranteed by the govt.", "it was argued that for these reasons the competitive forces do not apply to the sugar industry.", "The assertion that competitive forces do not apply in the sugar industry is not correct.", "Further, there is no exemption provided under the Competition Act that in a loss making industry competition law is not applicable.", "But it does not absolve the mills from the charge of price fixing.", "Another proposition which has been raised is that Competition Law would apply only in a free and liberalized economy.", "This is not correct as in many controlled and regulated economies of different countries the Competition Law has been enacted and is being enforced.", "Wherever markets exist and they exist in all types of economies, the competition law would apply.", "Further in view of the Preamble to the Competition Act and Section 18 of the Act, the Commission has to enforce the competition law so as to eliminate anticompetitive practices and bring greater consumer satisfaction.", "Therefore, considerations which are not in the Act cannot be imported to defeat the objectives of the Act.", "This would be contrary to the view of the Supreme Court in the SAIL case (supra).", "It is necessary to examine the contents of the Press Note in which the price was fixed.", "PRESS RELEASE Sub: Inter-Sectorial interaction Meet on sugar Matters Mumbai-22.07.2010 Today Select Captains of the Sugar Industry from Co-operative and Private Section from across the country met at Sakhar Bhawan, the Head Quarters of Maharashtra State Co-operative Sugar Factories Federation in Mumbai and had 3 hours Brain Storming Session on various urgent issues confronting the Sugar Industry.", "The meeting was chaired by Mr. Chandrashekhar Ghule Patil, the Chairman of the Maharashtra Sugar Federation and was attended by Mr. Ganpatrao Tidke, Vice Chairman of the Federation and senior Directors, viz Mr. Shivajrao Patil, Mr. Shankarrao Kolhe, Mr. Ankharshrao Tope, Mr. Shivajirao Nagawada, Mr. Appasaheb Patil, Mr. Balasaheb Patil, MR.", "Shahajirao Kakade, Mr. Sanjay Patil and Mr. Chandradip Narke while select senior Managing Directors from Maharashtra also attended Presidents and CEOs of the Sugar Federations in the State of Gujarat, Karnataka, Tamil Nadu, Andhra Pradesh also attended.", "The senior Directors of Federal Bodies, viz. SISMA, ISMA, WISMA were also present while the Private Sector was represented by Mr. B.B. Thombre, Mr. Nandan Yalgi and Mr. Rohit Pawar.", "The deliberations dealt upon various subjects, viz. Sugar price stabilization, imposition of Import Duty on imported sugar, levy sugar, sugar packaging, Ethanol pricing, uniformity in can harvesting and transport and the Decontrol of Sugar Industry.", "Each subject was opened by Mr. Prakash naiknavare, Managing Director of the Maharashtra Sugar Federation and was deliberated and arrived at a consensus conclusion.", "All the invitee delegates participated in the discussion and shared their views, which helped this informal, forum to arrive at following conclusions which are being forwarded for consideration to the concerned Ministries in the Government of India:- Price Stabilization: It was decided to assess the sugarcane price, demand supply situation and arrive at a price acceptable to all.", "For this State-wise Core Group was established.", "Minimum Floor Price (Benchmark) for 23 July to 31st August 2010: ( Rs. Per Qtt.) Grade MaharashtraNorth South Tamil Andhra Gujarat States Karnataka Karnataka Nadu Pradesh S-30 2700 2670 2700 2700 2700 2700 Super S 2725 2700 2725 2725 2725 2725 M-30 2750 2725 2750 2750 2750 2750 L-30 2800 2800 2800 Imposition of Import Duty on Import of Sugar: The Government should not allow import of either Raw or Refined Sugar or levy Import Duty: Imported Raw after refining should be Exported back and not to be sold in country.", "Export: Looking towards increase in Sugarcane area and sugar production, reasonable exports to be permitted.", "It has been decided to take up this issue with Government of India for increasing the levy sugar price as also transpiration cost of sugar.", "There was unanimity on conversion of levy sugar to free it is not lifted within 3 months.", "Packaging Sugar: It was decided to take up the issue with Central Government for allowing use of PP Bags for packaging of Sugar and exempt from Jute packing.", "Ethanol Price: It was decided to take up this issue with Ministry of Petroleum for issue of R. for making mandatory usage of Ethanol in Petrol.", "Uniformity in Harvesting Transportation charges in Maharashtra, Andhra Pradesh, Karnataka and Gujarat to be observed.", "Decontrol of Sugar Industry: It was unanimously decided to have decontrol of the Sugar Industry means scrapping of Essential Commodities Act, Release Mechanism, No Levy and maintaining Fair Remunerative Price (FRP) for Sugarcane in the mutual interest of farmers and industry.", "The list of persons who attended the meeting is as follows:- Shri Chandrashekhar Ghule Patil Chairman, Sakhar Sangh, Mumbai Shri Ganpatrao Tidke Vice-Chairman, Sakhar Sangh, Mumbai Shri Shivajirao Patil Vice President, Vasantdada Sugar Institute, Pune Shri Shankarrao Kolhe Director, sanjivani SSK Ltd. Shri Shivajirao Nagawade Chairman, Shrigonda SSK Limited Shri ankushrao Tope Chairman, Samarth SSK Ltd. Shri Appasaheb (S.R.) Patil Chairman, Datta Shetkari SSK Limited, Shirol Shri Balasaheb Patil Chairman, Sahyadri SSK Ltd. Shri Shahajirao Kakade Chairman, Someshwar SSK Limited Shri P.G. Medhe Managing Director, Chatrapati Rajaram SSK Limited Shri C.B. Rananaware S.M. Shankarrao Mohite Patil SSK Limited, Akluj Shri B.B. Thombare Chairman Managing Director, Natural Sugar Allied Industries Limited, Osmanabad Shri Narendra Murkumbhi Shri Nandan Yalgi - Rp.", "Managing Director, Renuka Sugars Ltd, Mumbai Shri Rohit Pawar Executive Director, Baramati Agro Limited, Dist Pune Vice President Gujarat Sugar Federation Limited, Gandhinagar, Gujarat Shri Ketan Bhatt Managing Director Gujarat Sugar Federation Limited, Gandhinagar, Gujarat Managing Director Karnataka State Sugar Federation Limited, Bangalore Shri Jagadesh Gudagunti President, SISMA, Karnataka Vice President SISMA, Karnataka Shri K.N. Rathore Vice President, SISMA, Tamilnadu, Chennai Shri G. Srinivasan Managing Director, SISMA, Tamilnadu, Chennai Shri Prakash Naiknavare Managing Director, Sakhar Sangh, Mumbai Vice President (SM) BHL (Bajaj) R.S. Bhateran Secretary, SISMA, Andhra Pradesh Shri P.C. Sovadi Karnataka State Federation, Bangalore Shri S.D. Nandesh Director, Karnataka State Shri S.D. Nandesh Director, Karnataka State Federation, Bangalore Shri N. Shyaokar Vice President, Ugar Sugar Works Shri O.P. Gupta Jt.", "Vice President, DSCL Sugar Shri Satish Kamed Vice President Mawana Sugars Limited Gopendra Singh Dalmia Chini Hills CMD Shri Gurudatt Sugar Limited Chairman Ramesh H Batti V.V. Joshi Godavari Refinery Limited B.R. Balekunda Chairman, someshwar SSKV Ashok A Pan, Director National Federation Prakash H. Saviat Yogeshwari Sugar India Ltd Nikhil U. Katti Chairman Vishwanath Sugars Ltd. Belgaum Mukesh Kumar Executive Director, Vishwanath Sugars Ltd, Belgaum R.S. Talkwad Chairman, RSSK, Rannanagar M.G. Yash Managing Director Jawahar SSSK Shri Vaibhav Naik, Hutatma Sangh Chairman, Ahir Aashajan SSK Limited Shri G. Raj Gopal, ED Shri Ambika Sugars Limited Shri H.M. Veerabhamal, Secretary National Company Op.", "Sugar Fed.", "Shri S.B. Patil Shri S.D. Korade, GM (CP), Rajor.", "SSK Limited Shri Sanjay Patil Shri Chandradeep Narvane The Krishna SSK Niyamit, Athani Nandi SSK Niyamit, Karnataka Shri Hiranayakshi SSK Limited Maharashtra Rajya SSK Limited Bhaorao Chavan SSK Limited EID-PARRY (India) Limited Khumbhi Kasari SSK Limited Tasgaon Taluka SS Limited Arguments were advanced that no cartel existed in the sugar industry and that no element of profiteering was present when the price was fixed.", "This is a case of decision taken by different entities in the sugar industry and it has led to price fixing.", "What the Commission has to look into is not profiteering but price fixing.", "If the Commission starts looking at profiteering it would amount to importing a new concept in the Competition Law as it does not exist there.", "Further the mills have argued that they were selling free sale sugar at a loss.", "No material has been brought on record to establish the losses.", "The onus has therefore not been discharged.", "It was argued before the Commission that the sugar mills had taken loans from banks on the valuation of sugar at Rs. 3600 per quintal.", "But as prices fell to 2900 per quintal the banks started recalling the loans.", "It was also argued that due to the enhanced production the price of sugar had come down to Rs. 2400 per quintal in the month of June 2010 and against Rs. 3600 per quintal in January 2010.", "It was argued that the prices had fallen below the cost of production leading to losses.", "It was argued that the meeting in July 22, 2010 was not with reference to fixing sugar prices but to reduce the losses suffered by the mills.", "It was also argued that in the said meeting a large number of items were discussed.", "It was therefore stated that no adverse inference should be drawn.", "But the fact is that the law of supply and demand was working in the market as because of large supply of sugar the prices started falling.", "This means that the market forces were working as far as the sugar prices were concerned in respect of free sale sugar.", "This has also been admitted by many of the sugar mills.", "It was argued that the industry wanted minimum floor price to be fixed as the industry was suffering a loss.", "It was further argued that if the mills sold at the loss then they would suffer and if they did not sell the sugar then the unsold sugar would be converted in the levy sugar by the government.", "For this reason it was argued that the minimum floor price was necessary.", "It was also argued that it was not a case of cartelization otherwise the press release would not have been issued.", "It was further argued that the price of imported sugar was much below even the cost of domestic sugar and therefore it led to cash loss for the sugar mills.", "A view has been held that fixing of the minimum ex-mills floor price was to ensure that the sale price does not go below the cost of production.", "But no material to show that the sale price was below the cost of production was furnished.", "Even the details of the cost of production by each of the sugar mills were not submitted and therefore the onus cast on the mills has not been discharged.", "The DG in his report has stated that the decision taken to fix a minimum ex-mills price could not be sustained for long and that it did not last for more than a day or two.", "One of the reasons advanced for this position was that the mills were in need of funds and they did not have sufficient sustaining power.", "It was further argued that in a regulated or controlled market of sugar there cannot be any price cartelization but no material has brought on record to show that in a controlled commodity when the normal law of demand and supply operates Competition Act has no role to play.", "In fact the discussion clearly shows that there was an element of price-fixing by the various mills regarding the minimum price at which the sugar was required to be sold.", "This is not a case of a cartel operating.", "It is a case of decision taking in the form of price-fixing.", "The main purpose for the price fixing was to reduce the losses being suffered by the mills.", "In the states of Andhra Pradesh and Gujarat the minimum price could rise only till Rs. 2650 per quintal which is much below the price fixed by the association in the meeting held on 22.07.2010.", "Even in Karnataka and Maharashtra spots sales price of sugar per quintal was well below Rs. 2500/- at a price which was fixed in the meeting.", "It was therefore argued that though the prices were fixed the mills never adhered to the decision taken in the meeting on 22.07.2010.", "The question which arises is as to whether when prices are fixed but the decision taken is not acted upon by the mills, could be mills are absolved of the concept of price-fixing.", "It was argued that the decision taken in the meeting on 22.07.2010 did not give any benefit to any of the sugar mills either directly or indirectly.", "It was stated that though the minimum floor price was fixed the same cannot be implemented by any of the mills.", "The next question is as to whether Section 3(3) of the Competition Act leaves any scope for discretion to the Commission to hold that some forms of price-fixing is not anti-competitive at all and that it does not fall within the mischief of the act.", "Section 3(3)(a) would apply but it is a case of rebuttable presumption.", "The only issue to be seen as to whether the explanation furnished by the parties concerned can be treated as reasonable cause for price-fixing.", "The Act says if there is a case of price-fixing then there is deemed to be an appreciable adverse effect to competition.", "The majority view is that even when there is deemed AAEC the factors mentioned in Section 19(3) of the act would need to be looked into.", "The majority view is that there is a reason for price-fixing and that the main reason was that the mills were suffering a loss.", "It was also the majority view that one of the characteristics of a cartel is profiteering.", "But the question is as to whether there was a cartel and whether profiteering is necessary for the purpose of price-fixing as it exists in the Act.", "Another issue raised was that the sale price of sugar was fixed by the co-operative mills through tender process and that as there was no manipulation in the tender process, no adverse inference could be drawn.", "The majority therefore held that as it is a case of rebuttable presumption and as the rebuttal was satisfactory, no case was made out.", "It was further been stated that the DG had not analyzed Section 19(3) of the Act for the purpose of working of AAEC The fact is that under law it is duty of the Commission and not the DG to work out whether Section 19(3) is applicable to any case or not.", "Another issue which has been raised is that the mills have not acted in concert and therefore the provision is of Section 3(3)(b) would not apply.", "The majority of the Commission therefore held that there was no violation of Sections 3(3)(a) and 3(3)(b) of the Competition Act and for this reason the case is required to be closed.", "I do not subscribe to the views of the majority of the Commission.", "Price fixing is a serious offence and for this reason the Parliament has shifted the onus on the party against whom the allegation is made to establish that the concerned party has not indulged in price fixing.", "In fact Section 3(3) of the Competition Act states that if anyone indulges in price fixing, then it is presumed that there was an appreciable adverse effect on competition in India and the Commission was not required to examine the parameters set out in Section 19(3) of the Act.", "The D.G. in this case has alleged violation of Section 3(3)(a) and Section 3(3)(b) talks about limiting or controlling production, supply, markets, technical development, investment or provision of services.", "In this case there was no material to hold that the sugar producers by the decision taken attempted to limit or control production, supply, markets, technical development, investment or provision of services.", "The provision of services under Section 3(3)(b) are not attracted.", "But by the decision taken the sugar producers wanted fix the minimum sale price of sugar.", "Thus the provisions of Section 3(3)(a) would clearly apply in this case.", "The next question is whether the persons who were involved in fixing the minimum sale price of sugar have discharged the onus of establishing that they had not resorted to price fixing.", "In fact some of the sugar producers have stated that no such meeting to fix prices took place.", "But the D.G. has gathered sufficient evidence to establish that a meeting took place and the press release of the meeting clearly shows price fixing.", "Further the sugar producers have taken the plea that (i) Sugar industry is covered by the Essential Commodities Act and therefore the Competition Act would not apply.", "(ii) The sugar mills wanted to reduce their losses and for this reason they wanted to fix a minimum price.", "(iii) The prices fixed were not acted upon and therefore there is no contravention of the Act.", "(iv) There is no element of profiteering for fixing prices and therefore the competition law would not apply.", "All these issues have been dealt earlier The arguments advanced were merely to establish that the competition law would not apply to the sugar industry.", "This is a far fetched argument.", "The only issue to be examined is whether an attempt was made to fix prices and whether Such an attempt to fix prices was for valid reason.", "As already discussed above, the law of supply and demand applies even in a controlled commodity as sugar.", "Further the onus would have been discharged if the sugar mill producers had advanced material to establish that no price fixing had taken place.", "This onus has not been discharged.", "There is therefore material to hold that the sugar mills on 22.07.2010 in Sakhar Bhawan, Mumbai had taken a decision to fix prices and that the onus on the mills to disprove this fact has not been discharged.", "Therefore the violation of Section 3(3)(a) of the I.T. Act has been clearly been established.", "As a contravention under Section 3(3)(a) of the Competition Act has been established, it is necessary to pass orders under Section 27 of the Act.", "Under clause (a) of Section 27 the sugar producers who participated in the meeting on 22.07.2010 to fix prices of free sale sugar are directed to cease and desist from fixing prices in future.", "In future if these sugar producers fix prices the Commission would take a very serious view because price fixing is a pernicious form of anticompetitive behavior.", "Under clause (b) of Section 27, monetary penalty has to be levied on the mills which participated in price fixing.", "According to the decision taken, the price fixing was to be operative in the states of Maharashtra, Karnataka, Andhra Pradesh and Tamilnadu.", "But the representatives of some sugar companies of U.P. were present when the meeting of the price fixing took place.", "These mills are equally guilty of price fixing and liable for penalty.", "But considering the fact that many sugar mills are running in losses and the fact that the price fixing was operational only for a few days, a penalty of 1 of the turnover would be sufficient for this purpose.", "The penalties levied on the different entities are enclosed in Annexure I to this order.", "Some of the enterprises have not submitted the details of their turnover.", "Therefore in their case on ad hoc basis penalties are levied.", "Such cases are mentioned at SI.", "Numbers 17, 18, 23, 29 and 32 of Annexure I. Serial Numbers 17, 18 and 23 are trade associations on whom an ad hoc penalty of Rs. 2 lakhs is levied.", "As far SI.", "Numbers 29 32 are concerned, ad hoc penalty of Rs. 15 lakhs is levied.", "The Secretary is directed to the issue this order to all the enterprises as mentioned in Annexure I of this order."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", 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+{"id": "CCI_Mukul_Kumar_Govil_and_Ors_vs_ET_Infra_Developers_PCO201619041616245632COM857737", "text": ["Order under Section 26(2) of the Competition Act, 2002 The information bearing Case Number 05 of 2016 has been filed under Section 19(1) (a) of the Competition Act, 2002 (hereinafter, the Act) by Mr. Mukul Kumar Govil Mrs. Kiran Govil against ET Infra Developers Pvt.", "Limited (hereinafter, OP 1) and Noida Development Authority (hereinafter, OP 2) alleging, inter alia, contravention of the provisions of Sections 3 4 of the Act.", "Another information bearing Case Number 06 of 2016 has been filed under Section 19(1)(a) of the Act by Mrs. Anshoo Bansal Mr. Amit Bansal against OP 1 and OP 2 alleging, inter alia, contravention of the provisions of Sections 3 4 of the Act.", "The Commission considered both the information and found that though these information have been filed separately by different Informants, they are against the same opposite parties, relate to same project and bring out similar allegations.", "As the facts allegation raised therein are substantially similar, the Commission is satisfied that these can be clubbed together.", "Therefore, this common order shall dispose of both the information.", "OP 1 is stated to be a private limited company, engaged in the development of residential and commercial space.", "It has been stated that both the Informants had booked single office unit each in the World Trade Tower - Business Avenue (WTT) project developed by OP 1 at Noida.", "In this regard, OP 1 has also issued allotment letters to both the Informants.", "Both the Informants have identified OP 2 as Noida Development Authority but as such no such authority exist.", "It appears that both the Informants are referring to New Okhla Industrial Development Authority (OP 2).", "OP 2 is constituted under the U.P. Industrial Area Development Act, 1976, inter alia, to acquire land in the notified area through Govt.", "of UP under Land Acquisition Act, 1894 or by way of agreement to prepare Master Plan for development of the area to demarcate and develop sites for various land uses to allot plot properties as per regulations to regulate the erection of buildings and setting up industries and to provide infrastructure and amenities.", "Both the Informants have alleged that OP 1, in collusion with OP 2, to avoid pressure from allottees, had issued an illegal exorbitant demand notice for a certain amount to be deposited but had not handed over the possession within the stipulated period as committed in the allotment letters.", "As per clause 19 of the allotment letter, OP 1 had to deliver the fully completed office space within 36 months from the date of allotment letter.", "However, allegedly OP 1 has not offered possession even after the expiry of more than 5 years.", "In terms of clause 21 of the allotment letter, OP 1 is liable to pay compensation at the rate of Rs. 40/- per sq.", "ft. per month for the period of delay in possession.", "Both the Informants have alleged that OP 1 has failed to pay the said compensation and interest thereon at the rate of 18 p.a. for delay in payment of compensation.", "Further, as a result of delay in handing over possession, both the Informants could not operate their businesses through the said offices which according to them has also resulted in loss of goodwill.", "Both the Informants have further alleged that OP 1 vide demand notices dated 19th September, 2015 had intimated them to pay the remaining amount, actually due only at the time of possession.", "However, allegedly the said office units are not yet ready for possession as flooring is incomplete, electric wiring and water connection are yet to be done and public utility is not in existence.", "It has also been averred that no objection certificate (NOC) and permissions have also not been obtained by OP 1 from various government agencies.", "It has been alleged that OP 1 had also issued demand letters on 28th November, 2015 requiring both the Informants to pay various exorbitant and illegal charges such as one time lease rent, annual lease rent for period prior to the execution of lease deed, LEED Pre-certified Gold Rated Green Building Charges and electrification charges.", "Both the Informants have also stated that since OP 1 has already received around 95 of sale consideration for the said office units from them, their purchasing power has been curtailed and as a result, they have been denied market access to purchase other office units.", "With regard to dominance, both the Informants have stated that OP 1 is the only developer for whom OP 2 has allotted land for development of commercial project in a prime location.", "Hence, OP 1 has been alleged to enjoy a dominant position.", "Both the Informants have prayed to the Commission, inter alia, to restrain OP 1 from demanding various unfair and exorbitant charges to direct OP 1 to pay compensation for delay in possession and initiate enquiry under Section 26(1) of the Act.", "The Commission has given a careful consideration to the material available on record.", "Since the allegations pertain to violation of the provisions of Section 4 of the Act, the relevant market in terms of Section 2(r) of the Act is required to be delineated before examining the alleged abusive conduct of OP 1.", "The Commission notes that the matter relates to sale of commercial office units in a project developed by OP 1.", "The real estate market can be broadly classified into two main segment: residential and commercial.", "Residential segment can be further sub-categorized into residential apartment flat and plots.", "The Commission observes that sale of commercial units form a separate relevant product market in terms of the provisions of the Act, because the intention and factors considered while buying a commercial office unit are different from buying a residential flat or plot.", "Further, the requirements and prospects of a consumer buying a commercial office unit are also different from those of a consumer buying a residential flat or plot.", "Thus, taking into account factors such as substitutability, characteristics of service offered, price and intended use provision of services for development and sale of commercial space appears to be the relevant product market in the present case.", "With regard to the relevant geographic market, the Commission is of the view that the consumers, looking for a commercial office unit in Noida Greater Noida, may not prefer other areas.", "Various factors like availability of office space, location of business establishment, transport connectivity etc.", "play a decisive role in a potential buyers decision making process while choosing a commercial office unit in a particular area.", "Further, the geographic region of Noida Greater Noida exhibits homogenous and distinct market conditions as compared to other regions of NCR such as Faridabad, Delhi and Gurgaon etc.", "Considering these aspects, the Commission opines that the relevant geographic market in the instant case would be Noida Greater Noida.", "Thus, the relevant market would be the market of provision of services for development and sale of commercial space in Noida Greater Noida.", "As regards dominance, the Commission notes that the underlying principle for assessing dominance of an enterprise is linked to the market power enjoyed by the enterprise.", "An enterprise could be regarded as dominant if it enjoys possesses a position of strength in the relevant market, which enables it to operate independently of competitive forces prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour.", "It is observed that no data has been provided by both the Informants in support of their assertion of dominance of OP 1 in the relevant market.", "The Commission, however, observes that other than OP 1, there are many other real estate developers such as Jaypee Green, Omaxe, Supertech Limited, AIRWIL, Wave City Center, Lotus Greens and Saviour Builders Pvt.", "Limited etc.", ", rendering similar services in the relevant market.", "The competitors of OP 1 are found to have projects of varying magnitude and are comparable with OP 1 in terms of size and resources.", "The presence of other players indicates that the buyers have various options.", "Accordingly, OP 1 does not appear to enjoy a dominant position in the relevant market.", "In the absence of dominance, the examination of alleged abusive conduct does not arise.", "Therefore, the Commission is of the view that there is no contravention of provisions of Section 4 of the Act in the instant matter.", "The Commission observes that both the Informants have also alleged collusion between OP 1 and OP 2.", "It has been stated that OP 1 is the only developer for whom OP 2 has allotted land for such commercial project in prime location.", "The Commission observes that other builder have also been allotted lands for development of commercial space as discussed supra and there does not exist any information as such to support the contention that there exists an agreement between OP 1 and OP 2 which is in violation of the provisions of Section 3 of the Act.", "In view of above, no case of contravention is made out against the opposite parties under Sections 3 or 4 of the Act.", "Accordingly, these cases are hereby directed to be closed under Section 26(2) of the Act.", "The Secretary is directed to inform all concerned accordingly."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", 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+{"id": "CCI_Open_Access_Users_Association_vs_Tata_Power_Delhi_CO201529101519342868COM509222", "text": ["Order under Section 26(2) of the Competition Act, 2002 The present information has been filed by Open Access Users Association through its Secretary Shri Amit Ailawadi (the Informant) under section 19(1)(a) of the Competition Act, 2002 (the Act) against Tata Power Delhi Distribution Limited (OP- 1), BSES Rajdhani Power Limited (OP-2), BSES Yamuna Power Limited (OP-3), Punjab State Power Corporation Limited (OP-4) Uttar Haryana Bijli Vitran Nigam Limited (OP-5), Dakshin Haryana Bijli Vitran Nigam Limited (OP-6), Himachal Pradesh State Electricity Board Limited (OP- 7), alleging inter alia abuse of dominant position by the Opposite Parties in contravention of the provisions of section 4 of the Act.", "Facts, as gathered from the information, may be briefly noted.", "As per the Information, the Electricity Act, 2003 enables eligible consumers to have non-discriminatory Open Access to the network of a Licensee (except that of a local authority engaged in the business of distribution of electricity before the appointed date) on payment of applicable charges.", "The Electricity Act, 2003 and National Electricity Policy formulated thereunder, mandate the State Electricity Regulatory Commissions to frame the terms and conditions and timeframe for introduction of Open Access in a State.", "It is alleged that the Opposite Parties have imposed unfair and discriminatory conditions and the respective State Regulatory Commissions have continuously increased the charges for Open Access which has resulted in denial of market access to the members of the Informant, creation of entry barriers, foreclosure of competition and limited consumer choice in the market.", "The Informant submits that the Opposite Parties, being the only distribution licensees in their respective States, enjoy a position of strength in the market.", "It is alleged that the Opposite Parties have unduly influenced and made unreasonable suggestions to their respective Commissions in order to increase various charges for Open Access like Cross-Subsidy charges, Wheeling Charges etc.", "In addition to the continuous increase in Open Access charges, the tariff for power has also been continuously increased by the respective State Electricity Regulatory Commissions based on the recommendations of the Opposite Parties.", "Furthermore, it is alleged by the Informant that the purpose of such act was to overcome the inefficiencies in operations of the distribution licensees, prevent competition and to ensure that the consumers do not have the choice of taking supply of electricity through Open Access and particularly over the power exchange.", "It is further submitted that as per section 42 of the Electricity Act, 2003, the Open Access consumer shall be liable to pay Cross-Subsidy.", "However, proviso to Section 42 provides that the Cross-Subsidy shall be progressively reduced.", "According to the Informant, the State Electricity Regulatory Commissions have failed to not only reduce the Cross-Subsidy but have instead been continuously increasing the Cross- Subsidy.", "The continuous increase in the Cross-Subsidy surcharge has allegedly affected the competition in the respective State power sectors due to the huge increase in Open Access charges, the consumers have been constantly prevented from utilizing the feature of Open Access and thereby cheaper power.", "It is stated that the Opposite Parties are the ultimate beneficiaries and thereby gaining undue advantage.", "Based on the above, the Informant has prayed, inter alia, to institute an inquiry against the Opposite Parties and pass an order directing the Director General (DG) to carry out an investigation into the violation of section 4 of the Act.", "The Commission heard the arguments advanced by the counsel appearing for the Informant on 15.01.2015 and on request of the counsel also directed him to file additional information.", "Subsequently, when the matter was listed for consideration before the Commission, it was noticed by the Commission that the Informant had failed to file the additional information.", "Further, on perusal of the material available on record, the Commission observed that in light of the allegations made by the Informant in the information which were essentially directed against the named State Electricity Regulatory Commissions, it was decided to make a reference to the respective State Electricity Regulatory Commissions i.e. (1) Haryana Electricity Regulatory Commission (HERC), (2) Punjab State Electricity Regulatory Commission (PSERC), (3) Delhi Electricity Regulatory Commission (DERC) and (4) Himachal Pradesh Electricity Regulatory Commission (HPERC) on the central issue agitated by the Informant i.e. increase in Open Access charges resulting into denial of market access, creation of entry barriers, foreclosure of competition and limiting consumer choice in the market.", "Later, the Commission has received the replies opinions from the respective State Electricity Regulatory Commissions and the same shall be referred to appropriately in the order.", "The Commission has perused the material available on record besides hearing the counsel for the Informant.", "At the outset, the Commission observes that there is no overlap in the jurisdictions exercisable by the Commission and the State Electricity Regulatory Commissions.", "It is noted that the mandate of the Commission is to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India.", "Sectoral regulators have necessary technical expertise to determine access, maintain standard, ensure safety and determine tariff.", "The set rule of game i.e. entry conditions, technical details, tariff, safety standards and have direct control on prices, quantity and quality.", "Thus, sectoral regulators focus on the dynamics of specific sectors, whereas the Commission has a holistic approach and focuses on functioning of the markets by way of increasing efficiency through competition.", "In fact, the roles played by the Commission and the sectoral regulators are complementary and supplementary to each other as they share the common objective of obtaining maximum benefit for the consumers.", "In the aforesaid jurisdictional backdrop, the grievance made by the Informant in the present case may be examined.", "As noted earlier, the gravamen of the information essentially centres around the increase in Open Access charges effected by the respective State Electricity Regulatory Commissions of Delhi, Punjab, Haryana and Himachal Pradesh resulting into alleged denial of market access, creation of entry barriers, foreclosure of competition and limiting consumer choice in the market.", "To appreciate the issue, the Commission deems it appropriate to make a reference to the relevant provision of the Electricity Act, 2003 and the rules and regulations made thereunder.", "As per section 2(47) of Electricity Act, 2003, Open Access means the non- discriminatory provision for the use of transmission lines or distribution system or associated facilities with such lines or system by any licensee or consumer or a person engaged in generation in accordance with the regulations specified by the Appropriate Commission.", "Section 42(2) of the Electricity Act provides that the Open Access charges will be determined by the respective State Commissions.", "Section 86 86(1)(a) which deals with the functions of State Commission provides that the State Commission shall determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State but where open access has been permitted to a category of consumers under section 42, the State Commission shall determine only the wheeling charges and surcharge thereon, if any, for the said category of consumers.", "The Commission has also perused the response filed by the respective State Regulatory Commissions and a brief summary of the responses may be noticed.", "It has been submitted on behalf of HERC that in accordance with the various provisions of the Electricity Act, 2003 and the Regulations framed thereunder, it determines the tariff and other charges for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, and wheeling charges surcharge thereon for the open access category of consumers within the State.", "It denied the suggestion of the Informant that Discoms of the State influence the decision of HERC.", "Further, it was pointed out that under section 110 of the Electricity Act, 2003, Appellate Tribunal for Electricity (APTEL) has been established and any person aggrieved by an order made by the Appropriate Commission can prefer an appeal before it.", "A further appeal is also provided to the Honble Supreme Court of India.", "Detailed justifications for levying various charges have also been elaborated in the response.", "PSERC in its response pointed out that it notified the Punjab State Electricity Regulatory Commission (Terms and Conditions for intra-State Open Access) Regulations, 2011.", "It was further informed that the vires of the Regulations can only be challenged before the constitutional courts.", "In fact, it was brought on record that these Regulations were challenged before the Honble Punjab and Haryana High Court through Civil Writ Petition Number 20562 of 2012, which is stated to be pending.", "It has been further intimated that the same Informant filed an appeal before the Honble APTEL against the Tariff Order dated 16.07.2012 on the similar grounds as have been contained in the instant information before the Commission.", "It has been mentioned that the said appeal was decided in favour of the appellant, yet on further appeal by the Punjab State Power Corporation, the same was admitted by the Honble Supreme Court of India and the judgment of Honble APTEL was stayed.", "As the matter is sub judice, it was prayed that the maintainability of the very information needs to be examined by the Commission.", "Opinion was also given by DERC and it was pointed out that various charges of open access consumer have been levied as per the provisions of the Electricity Act, 2003 and the National Tariff Policy.", "It was denied that the Discoms are in a position to influence State Commissions in determination of tariff and it was argued that the State Commissions are autonomous bodies set up under the Electricity Act, 2003 and the tariff is determined as per the provisions of the statute, policy and applicable regulations after following the due procedure.", "HPERC also gave its opinion denying and disputing the allegations made by the Informant.", "It was pointed out that the distribution function is a regulated activity and there are multifarious checks and balances thereon.", "The State Commission fixes the open access charges in a transparent manner by following well-reasoned methodologies and the allegation in this regard are ill-founded.", "The tariff fixed by the State Commission is subject to review by the Appellate Authority and, as such, question of misuse of power by the State Commission or any undue benefit to the Discoms simply does not arise.", "On a careful perusal of the scheme of the Electricity Act, 2003 and the regulatory architecture provided thereunder, it is abundantly clear that the charges for Open Access are to be decided by the respective State Commissions and any issue in regard thereto would be dealt by the concerned State Electricity Regulator and the Appellate Authority in terms of the statutory architecture governing the regulation of open access and determination of the relevant tariffs.", "The issue highlighted by the Informant in the present case is essentially related to the regulatory functions discharged by the State Regulatory Commissions in respect of fixation of tariffs.", "No competition issue is involved in the factual matrix disclosed in the information.", "In view of the above, the Commission is of view that no case is made out against the Opposite Parties for contravention of the provisions of section 4 of the Act and the information is ordered to be closed forthwith in terms of the provisions contained in section 26(2) of the Act.", "The Secretary is directed to inform the parties accordingly."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", 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+{"id": "CCI_Prem_Prakash_vs_The_Principal_Secretary_Madhya_PraCO201723031716084932COM499612", "text": ["The information in this case was filed by Shri Prem Prakash (the Informant) under Section 19(1)(a) of the Competition Act, 2002 (the Act) against the Principal Secretary, Public Works Department, Government of Madhya Pradesh (OP-1) and the Director General, Central Public Works Department, New Delhi (OP-2) alleging contravention of the provisions of Sections 3 and 4 of the Act.", "The Informant is the proprietor of Venus Testing and Research Laboratory.", "It is claimed that the laboratory of the Informant has been assessed and certified for physical and chemical material(s) testing by the Accreditation Commission for Conformity Assessment Bodies (ACCAB) to meet the requirements of International Standard ISO IEC 17025:2005.", "OP-1 is the Principal Secretary of the Public Works Department of the Government of Madhya Pradesh (MPPWD).", "MPPWD is the principal agency of the Government of Madhya Pradesh engaged in planning, designing, construction and maintenance of Government assets like roads, bridges, road over bridges, fly overs and buildings through its two wings i.e., Public Works Department (B R) and Project Implementation Unit.", "OP-2 is the Director General of the Central Public Works Department (CPWD), New Delhi.", "CPWD is a comprehensive construction management department and the principal agency of the Government of India responsible for creating assets and providing services including planning, design, construction and maintenance of office and residential buildings as well as other structures of various ministries and departments of Government of India and other autonomous bodies and public sector enterprises.", "Its activities are spread throughout India.", "The Informant was aggrieved that the Opposite Parties (OP-1/MPPWD and OP- 2/CPWD hereinafter collectively referred to as OPs) had refused to consider his laboratory for testing construction materials on the ground that it has not been accredited by the National Accreditation Board for Testing and Calibration Laboratories (NABL).", "The Informant had submitted that MPPWD had issued an order dated 16.09.2013 wherein it was made mandatory for the contractors of PWD in the state that 20 of their construction material used in the work was to be tested by accredited laboratories of NABL.", "Earlier vide order dated 03.09.2012, MPPWD had made 10 quantity as mandatorily required to be tested by NABL accredited labs in the areas of Bhopal and Sagar.", "Similarly, CPWD had issued Guidelines for Approval of New Products and Laboratories dated 18.12.2013 as well as Office Memorandum dated 29.05.2014 for Modification in CPWD Works Manual 2012 which imposed a condition that the outside private laboratories must be NABL approved.", "The Informant had alleged that there was nothing as NABL accreditation.", "It was stated in the information that NABL is an autonomous body under the aegis of Department of Science and Technology (DST), Government of India registered under the Societies Registration Act, 1860.", "Further, the Informant has submitted that NABL is merely an accreditation body accrediting laboratories as per ISO IEC 17025:2005 international standard.", "It is neither a statutory nor a constitutional body.", "The Informant had highlighted that, as per the requirement of this international standard, if a laboratory wanted to get accreditation for part or all of its testing and calibration activities, it should select an accreditation body that operated in accordance with ISO IEC 17011 international standard.", "Thus, any organization that operated its system as per ISO IEC 17011 international standard could accredit laboratory for ISO IEC-17025:2005 international standard.", "The Informant averred that there were more than hundred accreditation bodies throughout the world and three accreditation bodies in India.", "However, the aforesaid orders memorandum of the OPs were promoting the trade name of a single accreditation body i.e., NABL which was unfair as it consequently affected the business of those laboratories which were not accredited by NABL.", "Accordingly, it was alleged by the Informant that by incorporating the condition that materials used for construction should be tested by laboratories accredited only by NABL, the OPs had imposed arbitrary and unreasonable condition of eligibility, which was adversely affecting the competition in the relevant market.", "Hence, the Informant had challenged the circulars orders of the OPs and alleged violation of Section 3 and 4(2)(a)(i) of the Act in the matter.", "The Commission had passed an order under Section 26(2) of the Act dated 29.10.2014 in this case wherein the Commission had held that the activities being performed by the Opposite Parties do not come under the definition of enterprise in terms of Section 2(h) of the Act as they are not directly engaged in any economic and commercial activities.", "The Opposite Parties have no existence in the relevant market, except for laying down norms as to the authorization of accreditation bodies for specific purposes.", "Their role is limited to planning, designing, construction and maintenance of Government assets as such provisions of Section 4 of the Act are not attracted against them.", "The Opposite Parties have issued circulars only and they were not operating in the relevant market.", "Therefore, the conduct of the Opposite Parties does not give rise to any competition concern.", "An Appeal Number 51/2015 (Prem Prakash v. The Principal Secretary, Madhya Pradesh Public Works Department and Ors.) was filed before the Competition Appellate Tribunal (the COMPAT) by the Informant against the above order passed by the Commission.", "The COMPAT in its order dated 17.02.2016 referred to its order in Rajat Verma v. Haryana Public Works (B R) Department and others (Appeal Number 45 of 2015) dated 16.02.2016 and allowed the appeal.", "It noted that in Rajat Vermas case, while considering the issue of whether the Public Works Department of the Government of Haryana is an enterprise under the Act, the COMPAT in its order referred to the observations made in the dissent note of Member Augustine Peter at length.", "Further, the COMPAT observed as follows: If the term enterprise as defined in Section 2(h) is read in conjunction with the definition of the term person and service it becomes clear that the legislature has designedly included Government departments in relation to any activity relating to storage storage, supply, distribution, acquisition or control of articles or goods, or the provision of services of any kind.", "The width of the definition of enterprise becomes clear by the definition of the term service.", "The inclusive part of the definition of service takes within its fold service relating to construction and repair.", "These two words are not confined to construction and repair of buildings only.", "The same would include all types of construction and repair activities including construction of roads, highways, subways, culverts and other projects etc.", "It is thus evident that if a department of the Government is engaged in any activity relating to construction or repair, then it will fall within the definition of the term 19 enterprise.", "We may add that there is nothing in Section 2(h) and (u) from which it can be inferred that the definitions of enterprise and service are confined to any particular economic or commercial activity.", "The only exception to the definition of the term enterprise relates to those activities which are relatable to sovereign functions of the Government and activities carried by the four departments of the Central Government, i.e., atomic energy, defence, currency and space.", "Also, it was observed that In the execution of work relating to construction of roads, bridges etc., the contractor may be a service provider qua the department but the beneficiary of these activities is undoubtedly the general public qua whom the department acts as a service provider.", "The roads and bridges etc.", "constructed by the Haryana Public Works Department or HSRDC either by themselves or through private agencies are used by the general public in more than one ways including travelling and carriage of goods.", "In other words, the Public Works Department is a provider of service to the public and from that perspective it clearly falls within the ambit of term enterprise Whether the activity of procuring construction services is with a view to make profit is not the concern of the Act.", "What is important is that the Public Works Department by inviting tenders for award of contract for construction of roads, bridges etc.", "is interfacing with the wide market of road and bridge construction services in the State.", "Therefore, there is no escape from the conclusion that it is an enterprise within the meaning of Section 2(h) of the Act It is neither the pleaded case of the respondents nor Shri A.P. Singh has argued and in our opinion rightly so that the activities of the Public Works Department, Government of Haryana are relatable to sovereign functions of the Government.", "Any such argument would have been rejected in view of the law laid down by the Supreme Court in Bangalore Water Supply and Sewerage Board Vs.", "A. Rajappa (supra) and N. Nagendra Rao and Company Vs.", "State of A.P. (supra) and other decisions referred to in the dissenting note.", "On the basis of the above observations, the COMPAT held that the Public Works Department, Government of Haryana fell within the definition of the term enterprise under Section 2(h) of the Act and that the same would be the position qua Public Works Department of other States as also the Central Public Works Department.", "Thus, in view of the above order passed in Rajat Vermas case, the COMPAT held that the view taken by the Commission on the maintainability of the information filed by the Appellant in the present case was legally unsustainable and that the impugned order was liable to be set aside.", "As a result, the COMPAT allowed the appeal in the present case and the matter was set aside and remitted to the Commission for considering whether the allegations contained in the information filed by the Appellant made out a prima facie case requiring investigation under Section 26(1) of the Act.", "Pursuant to remission of the matter to the Commission, the Commission heard the Informant and OP-1 to determine whether a case for contravention of the provisions of Section 4 of the Act was made out in this case.", "It is pertinent to mention here that in order to ascertain abuse of dominance by OPs in terms of Section 4 of the Act, a pre-requisite under the Act is to determine the relevant market in which OPs operate and whether they are dominant in that relevant market.", "It is noted that while framing its decision in Rajat Vermas case, the COMPAT had referred to the observations of Member Augustine Peter in his dissent note.", "With respect to relevant market and dominance of Haryana PWD, the observations of Member Augustine Peter were as follows: The relevant market in this case is the market for procurement of construction services through bidding for roads and bridges in the state of Haryana.", "In this market, the Public Works Department (B R) of Haryana is the dominant player in the geographical market of State of Haryana in the sense that they are responsible for construction of State Highways, Major District Roads and some of the other District Roads, Railway Over-Bridges (ROBs), Railway Under Bridges (RUBs), Bridges, rehabilitation of public bridges, and construction of National Highways in the State of Haryana.", "Major construction activities relating to public roads and bridges are through tendering and are under the charge of OP1.", "As far as procurement of the construction services for roads and bridges by tender is concerned OP1 has near monopoly in the state of Haryana.", "And I am of the prima facie view that OP1 is a dominant player in the relevant market thus defined.", "In addition to above, some of the observations of the COMPAT in Rajat Vermas case which are pertinent with respect to relevant market and the position of PWD are as follows: The main task of the Public Works Department of the Government of Haryana is planning and construction of roads, bridges, projects etc.", "Every year, the State Government allocates budget to the Public Works Department for undertaking these activities.", "After creation of the State in 1966, this task was initially performed by the department through its officers and employees.", "With the expansion of cities and proliferation of the activities relating to trade, commerce, transport etc.", ", it became extremely difficult to accomplish this task at the departmental level.", "Therefore, the State Government decided to outsource the planning, designing and construction of roads, bridges etc.", "by inviting tenders and awarding contract to the lowest bidder.", "Of course, the over-all control continues to be with the department.", "In due course, the State Government created a separate agency i.e. Haryana State Roads and Bridges Development Corporation Limited (HSRDC) The position of the Public Works Department and HSRDC is unique in the field of construction of roads, bridges etc.", "and no public or private enterprise can compete with it in terms of scope and scale of the activities.", "In 49 years after creation of the State of Haryana, almost 24,000 Kms.", "roads have been constructed by the Public Works Department of the State and its instrumentalities.", "These include State Highways (2,128 Kms.), Major District roads (1,425 Kms.) and other district roads (20,315 Kms.) 20.", "the Public Works Department by inviting tenders for award of contract for construction of roads, bridges etc.", "is interfacing with the wide market of road and bridge construction services in the State In view of the above observations, it is apparent that based on the activities of State PWD and CPWD, the relevant product market in which the OPs operate would be the market for procurement of services for construction of roads and bridges etc.", "through tendering.", "In the facts of this case, the service being procured by State PWD i.e., MPPWD and CPWD is the services of laboratories for testing construction materials albeit such procurement by them is indirectly through contractors.", "OPs have laid down the norms for the contractors for testing construction materials specifying that the laboratory(s) from which the testing is done should be accredited by a specific accreditation body.", "Thus, OPs are indirect procurers of services of laboratories.", "Accordingly, the Commission is of the opinion that the relevant product market in the present case may be defined as the market for procurement of services of laboratories for testing materials used in the construction of roads and bridges, etc.", "As regards the relevant geographic market, for State PWD, the market would be the respective state i.e., Madhya Pradesh and for CPWD the market would be the territory of India.", "With respect to the dominance of MPPWD and CPWD in their respective relevant markets, it is evident from the observations of COMPAT that the position of State PWD and CPWD is unique in the field of construction of roads, bridges etc.", "and no public or private enterprise can compete with them in terms of scope and scale of the activities.", "Therefore, even though the services of laboratories such as that offered by the Informant can be procured by the contractors, at the behest of their customers or by themselves, for checking the quality of construction materials used for construction works from other projects than those tendered by MPPWD or CPWD, the volume of procurement by MPPWD and CPWD would remain unmatched.", "Thus, MPPWD and CPWD would be dominant in their respective relevant market merely by virtue of their unique position.", "Coming to the examination of the alleged abusive conduct of OPs, the Commission notes that the allegations made by the Informant relate to imposition of unfair conditions by OP-1 with respect to the invited tenders for construction of roads and bridges etc.", "in the State of Madhya Pradesh whereby the contractors are required to get 20 of the construction materials tested from NABL accredited laboratories.", "Further, CPWD in its guidelines also prescribes that the laboratory from which the tests are done must be approved by NABL.", "It is averred that for purposes of assessment of quality, OPs could have merely prescribed the quality standards i.e., ISO 9001 certified or accredited as per ISO IEC 17025:2005 standard, instead of specifying the trade name of the accreditation body.", "In order to ascertain the alleged abusive conduct of OPs, the Commission directed the parties to appear for hearing.", "The Informant in his submissions before the Commission relied on the case decided by COMPAT in Appeal Number 03/2013 (ACCAB v. Quality Council of India Ors.) wherein it was observed that anybody would have the authority to act as the accrediting body provided such body has the necessary infrastructure Further, the Informant submitted that various Government departments such as BHEL, Ministry of Environment, Forest and Climate Change, Bureau of Indian Standard, Military Engineering Services, FSSAI have mentioned standards i.e., accreditation as per ISO IEC 17025:2005 in their circulars instead of mentioning NABL accreditation.", "The Informant stated that vide letter dated 11.12.2013, he had requested OP-1 to review its circulars orders imposing the unfair condition i.e., requiring the contractors to get the construction materials tested from NABL accredited laboratories.", "However, neither amendment was made by OP-1 nor any clear grounds were given for not undertaking such amendments.", "Further, the Informant alleged that OP-2 by incorporating the condition in its Works Manual that the Lab must be NABL approved, has compelled the laboratories to first approach NABL if they want business from OP-2 or any other departments Ministry following the guidelines of OP-2.", "It is alleged that due to this condition, the laboratories are left with no choice but to approach NABL for accreditation even though there may be more accreditation bodies available in India.", "It is averred that the condition that the laboratories engaged for testing construction material must be accredited by NABL is an arbitrary and unreasonable condition imposed by the OPs which is adversely affecting competition in the market.", "The Informant has submitted that NABL is only an accreditation body that accredits laboratories as per international standard ISO IEC 17025:2005.", "It is argued that accreditation is not mandatory but it merely adds a level of confidence as accredited means that an accreditation body has independently checked that the laboratory operates according to international standards.", "It is submitted that the information received from the DST and NABL under the Right to Information Act, 2005 (the RTI Act) shows that neither NABL is the sole accreditation body authorised by the Government of India to accredit laboratories for testing and calibration activities nor it is necessary for an accreditation body to take permission from DST to run accreditation programmes in India.", "Accordingly, it is alleged that the condition imposed by the OPs is unfair and biased in favour of one accreditation body without any basis.", "OPs have denied the above allegations of the Informant and have submitted that the entire case is based on erroneous facts and misleading statements with the ulterior motive to tarnish the credibility and image of the OPs.", "In their Affidavit submitted to the Commission, OPs have stated that their role is limited to planning, designing, construction and maintenance of the Government assets and that they are not operating in the market for services of accreditation of laboratories in India, except for laying down norms as to the authorization of accreditation bodies for specific purposes.", "It is averred that they had issued circulars laying down norms and guidelines under MP Works Department Manual and CPWD Works Manual respectively which are their reference documents for providing a basic framework for planning, designing and execution of construction work.", "As such, their conduct does not relate to the above-stated relevant market.", "Hence, the conduct of OPs cannot be construed to be in violation of the provisions of the Act.", "OP-1 has averred that it had only adopted the norms in vogue in the Ministry of Road Transport and Highways (MORTH), Government of India while issuing the circulars prescribing the testing of materials through NABL approved laboratories.", "It is submitted that MORTH while sanctioning road works for the State of Madhya Pradesh made it compulsory to get independent quality control tests of all items from any of the NABL accredited laboratories as per IRC: SP: 94-2011.", "Consequently, the two circulars dated 13.09.2012 and 16.09.2013 were issued by OP-1 adopting the norms of MORTH.", "Further, OP-1 has stated that, in general, where MPPWD does not have specifications or norms on an issue in the MP Works Department Manual, the provisions and guidelines of CPWD and MORTH are adopted.", "With respect to the CPWD Office Memorandum Number 308 dated 29.05.2014, which modified Para 53.20 of the CPWD Works Manual-2014 and required that outside private laboratories must be NABL approved, OP-2 has submitted that in this Office Memorandum, preference is given to laboratories owned or funded by the Central or State Government Indian Institute of Technology (IIT) or National Institute of Technology (NIT) laboratories Government Engineering College laboratories etc.", "over the outside private laboratories to ensure that materials of stipulated quality are used in construction works.", "Private laboratories may be approved if Government laboratories are not available in the vicinity of the project.", "In terms of the provision, outside private laboratories are required to be accredited by NABL and also approved by the Additional Director General, CPWD, so that uniform quality can be ensured at the construction stage itself by process control in a pre-determined manner rather than quality control at the post construction stage i.e. after the damage has occurred.", "Further highlighting the reason for the above provision, OP-2 has stated that in the Government laboratories, the tests are conducted by technically competent officials recruited through a prescribed selection procedure of Government.", "Further, all government institutes, IITs, NITs, Central and State Research Centres, Centrally and State funded laboratories are centres for excellence and have high quality faculty and students.", "On the other hand, the private labs follow their own procedure in recruiting technicians staffs and use apparatus machinery of their choice for testing.", "Further, the Government laboratories are subjected to audit, vigilance and quality control periodically which ensure the reliability of the test results and the quality of materials used in construction work.", "On the other hand, there are no checks on the private laboratories regarding the competency, qualification and experience of staff and availability of required machineries.", "Hence, in case of private laboratories, accreditation by NABL, an autonomous body under the aegis of the Government of India, plays the role of accrediting labs as per international norms.", "OPs have averred that had NABL been made a party by the Informant in the present matter, more specific information with respect to NABL would have been available for adjudication.", "Having said that, OPs have explained in their submissions that laboratory accreditation is a procedure by which an authoritative body gives formal recognition of technical competence for specific tests measurements, based on third party assessment and following international standards.", "It is stated that laboratory accreditation services to testing and calibration laboratories are provided by NABL in accordance with ISO IEC 17025:2005 General Requirements for the Competence of Testing and Calibration Laboratories.", "Further, NABL has established its accreditation system as per ISO IEC: 17011: 2004 Conformity Assessment - General Requirements for Accreditation Bodies accrediting Conformity Assessment Bodies.", "NABL is also a full signatory to the International Laboratory Accreditation Cooperation (ILAC) and Asia Pacific Laboratory Accreditation Cooperation (APLAC) Mutual Recognition Arrangement (MRA) which are based on mutual evaluation and acceptance by other MRA signatories.", "Such international arrangements facilitate acceptance of tests calibration of results between countries which the MRA signatories represent.", "Referring to the three accreditation bodies mentioned by the Informant in the information, OPs have stated that while NABL is a full member of ILAC offering accreditation as per various standards including ISO IEC 17025:2005, ACCAB is an associate member of ILAC whose scope of activities is not known.", "Further, National Accreditation Board for Certification Bodies (NABCB) is an ILAC MRA signatory but with a different scope i.e., Inspection (ISO IEC: 17020) and it does not offer an accreditation program for material lab testing and calibration.", "OPs have stated that though accreditation to laboratories as per ISO IEC 17025:2005 international standard can be given by any accreditation body whose system is as per ISO IEC 17011:2004 international standard, the users of the services of the accreditation body also consider other credentials such as whether it is a full signatory to ILAC APLAC MRA, etc.", "and it is the prerogative of the user, whether it is the Government Regulator Buyer, to mention what they want.", "It is further submitted that to the best of OPs knowledge, there is no laboratory accreditation body in India other than NABL, having ILAC APLAC full MRA signatory status for grant of accreditation as per ISO IEC 17025 international standard.", "Further, OP-2 has submitted that the credibility and primacy of NABL has been accepted in various judicial decisions including a recent judgment dated 13.08.2015 of a division bench of the Honble High Court of Bombay in M section Nestle India Limited v. The Food Safety and Standards Authority of India Ors.", "as well as in the Guidelines for Recognition of Environmental Laboratories under the Environment (Protection) Act, 1986 and Food Safety and Standard Rules, 2011.", "Having considered the above submissions of the OPs, it appears that NABL enjoys a unique position among the accreditation bodies that exist in India for accreditation of laboratories as per ISO IEC 17025 international standard, as detailed above.", "Accordingly, the preference of OPs for NABL accredited laboratories is evident.", "However, it is also observed that from the averments of the Informant as well as OPs that NABL is not the only accreditation body which can certify laboratories as per the applicable international standards.", "Accordingly, the issue before the Commission for examination is whether the condition imposed by OPs requiring the contractors to check the quality of the construction materials tested from NABL accredited laboratories instead of prescribing the quality standard i.e., material testing from a laboratory accredited as per ISO IEC 17025:2005 standard wherein the said laboratory is assigned by an accreditation body operating as per ISO IEC 17011:2004 standard, is anticompetitive or not? The Commission notes that the basic objective of competition law is promotion and protection of the competitive process and ensuring a level-playing field for all market players that will help markets to be competitive.", "Thus, in public procurement processes, it is desirable that the conditions imposed on suppliers are not such that they exclude firms from the market.", "Rather endeavour should be to promote competition by being more flexible so that more number of firms would be eligible to provide services.", "Also, the conditions should be such that they ensure equal and non- discriminatory treatment as well as the best possible environment for competition.", "Accordingly, when a department of the Government such as OPs require quality certificates in their tender conditions, the terms must not specify any specific accrediting entity rather the terms should specify the standards.", "This would not only enable participation by more laboratories but also ensure that the laboratories which have been accredited as per the stipulated international standards are not discriminated based on the accreditation body that certifies them.", "Thus, in light of the above, the condition imposed by the OPs that private laboratories be approved accredited by NABL seems to be anti-competitive as it appears to be favouring a single accreditation body restricting the number of eligible private laboratories whose services can be procured indirectly by OPs.", "Accordingly, the Commission is of the considered opinion that imposition of such a condition by MPPWD and CPWD is in contravention of the provisions of Section 4(2) (a)(i) of the Act.", "However, it is noted that OP-2 in its additional Affidavit dated 25.11.2016 has brought to the notice of the Commission that, in a recent development, Para 53.20 of the CPWD Works Manual-2014 has been modified vide Office Memorandum dated 22.11.2016.", "The sentence Lab must be NABL approved in Para 53.20 has now been substituted by the sentence For the purpose of Lab accreditation by NABL or any other accreditation body which operates in accordance with ISO IEC 17011 and accredits labs as per ISO IEC 17025 for testing and calibration scopes shall be eligible.", "Therefore, presently, OP-2/CPWD is not referring to any particular accreditation body like NABL but only to an international standard.", "The Commission notes that the above modification made by OP-2 is in compliance with the principles of competition law and will ultimately enhance the competition in the market.", "Further, from the submission of MPPWD dated 24.11.2016, it is noted that, in a recent development of its own, MPPWD has created its own well-equipped laboratories at Circle Level within the State of Madhya Pradesh with one Central Laboratory in the capital at Bhopal which is well equipped with latest testing equipment.", "In view of this development, it has submitted that the condition of 20 material testing through NABL accredited laboratories is no more a mandatory condition and the testing from the Government owned circle laboratories and Central Laboratories would assure the quality of work.", "In this regard, the Commission observes that to ensure quality in public procurement processes certain criteria have to be laid down and it is essential that this discretion vest with the OPs.", "All that competition law requires is that the processes be fair, transparent and designed to promote competition.", "Thus, when a department decides to give preference to its own laboratories over private laboratories to ensure quality, it cannot be said that competition is hampered.", "Such choice is the prerogative of the department.", "However, when a department procures services from outside entities, it has to be careful that the conditions that it prescribes do not impair competition.", "While OP-2 has taken the above into consideration and modified the CPWD Works Manual-2014, OP-1 also has stated that it has made certain modifications so that the condition of 20 material testing through NABL accredited laboratories is no more a mandatory condition.", "However, the Commission deems it appropriate to prescribe that OP-1 also adopts the modification made by OP-2 in the CPWD manual or makes similar modification to the MPPWD Works Manual to ensure compliance with the principles of competition law.", "Thus, in the light of the recent developments brought to the notice of the Commission by OP-1 and OP-2 vide their respective affidavits filed on 25.11.2016, the Commission is of the view that there exists no prima facie competition issue remaining in the matter for investigation.", "Accordingly, the case is closed under the provisions of Section 26(2) of the Act.", "Before concluding, the Commission also deems it appropriate to consider the application dated 23.04.2016 filed by the Informant with the Commission whereby the Informant had inter alia urged that the Commission take action against NABL under Section 45(1) of the Act for making various false information available on its website.", "In this regard, the Commission notes that neither NABL is a party to the proceedings in this case nor was it called upon to furnish information at any stage in the matter.", "Accordingly, the application filed by the Informant is not maintainable and the same is dismissed.", "The Secretary is directed to inform all concerned accordingly."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "RulingByLowerCourt", "RulingByLowerCourt", "RulingByLowerCourt", "RulingByLowerCourt", "RulingByLowerCourt", "Fact", "Fact", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "RulingByLowerCourt", "RulingByLowerCourt", "RulingByLowerCourt", "Fact", "Fact", 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+{"id": "CCI_Primordial_Systems_Pvt_Ltd_New_Delhi__vs_Indian_NeCO110060COM895830", "text": ["The Commission has considered the present matter on the basis of an information received from PRIMORDIAL Systems Pvt.", "Limited (hereinafter referred to as the Informant) on 19.08.2011 under Section 19 (1) (a) of the Competition Act, 2002 (hereinafter referred to as the Act).", "The matter relates to alleged abuse of dominant position by Indian Newspaper Society-INS (hereinafter referred to as Opposite Party No. 1), Sh.", "Raman K. Chugh (hereinafter referred to as Opposite Party Number 2) and Hype Hike Advertising Inc. (hereinafter referred to as Opposite Party Number 3) in the provision of advertisement services in print media in India.", "The brief facts and allegations as per information in the case are as under: 2.1.", "As per the information, the informant is a company incorporated under the provisions of Companies Act, 1956 and is engaged in the provision of skill based education services to the young people in India through its own educational institution India Institute of Learning Advanced Development (hereinafter referred to as INLEAD) and by entering into strategic alliance with other organisations in India like India Tourism Development Corporation Ltd., Sri Ram College of Commerce, Delhi University etc.", "The Opposite Party Number 1 is a registered society of print media newspaper publishers in India and is primarily engaged in giving accreditation to different advertising agencies for publication of advertisement of their clients in various print media who are its members.", "Besides, it is also responsible for maintenance of financial discipline and safety of the business interest of its members.", "The Opposite Party Number 3 is an accredited advertisement agency of Opposite Party Number 1 having its office at Gurgaon, Haryana and is engaged in the provision of advertisement services including the responsibility of booking space in various print media to its clients as per their requirements.", "The Opposite Party Number 2 is proprietor of Opposite Party Number 3 and is working as an advertising agent.", "It has been submitted by the informant that as it is in the business of provision of skill enhancement education programmes, publicity plays an important role in its business operation and development for which it has to depend on different print and other media for advertisements of its programmes.", "As per the information, in October, 2010, the Opposite Party Number 2 approached the informant to work as its agent for media publications advertisement and assured that his advertisement agency shall provide end-to-end advertising marketing collateral design and layout services to the informant and advertise the contents in different print media at the best negotiated rates.", "Further, the Opposite Party Number 2 assured the informant to provide a 10 week payment credit cycle from the date of publication of an advertisement to the payment due date.", "The Informant agreed with the said assurance and terms and conditions and appointed the Opposite Party Number 2 along with agency as the Agency on Record for its media publication with effect from 05.10.2010.", "On the basis of the agreed terms and conditions, the Opposite Party Number 2 carried out the assignments of the informant smoothly for about nine months.", "Thereafter, citing the reason of internal financial problems, the Opposite Party Number 2 declined to adhere to the promise made by him with regard to the price for advertisement design layout services and 10 week credit cycle for payment.", "On several occasions, informally, the informant tried to resolve this issue with the Opposite Parties but it could not succeed as the Opposite Party No. 2 on every occasion asked for more time to establish his agencys delivery capabilities.", "The informant has alleged that while on the one hand the Opposite Party No. 2 continued to neglect the provision of advertisement agency services, on the other hand he demanded more money over and above his initial commitments from the informant.", "The informant appointed another agency for the advertisement services on 14.06.2011 because of the undue demand of money and negligence in the provision of advertisement agency services by the Opposite Party Number 2.", "However, the informant assured the Opposite Party Number 2 to release its balance advertisements.", "The informant has further submitted that as of 14.06.2011, there has been no payment of the Opposite Party Number 2 due on it for the completed credit cycles.", "For the payments due in the subsequent credit cycles, the Opposite Party Number 2 has to submit all account details along with documented advertisement release clippings and details of unpublished release orders to the informant.", "In response, the Opposite Party Number 2 through an e-mail on 16.06.2011 threatened the informant to withdraw from its on-going ad- campaign and claimed pending payments of Rs 24, 22, 524 (Rupees Twenty Four Lac Twenty Two Thousand Five Hundred Twenty Four) for its advertisement agency services without providing the proofs of advertisements and invoices from the newspapers media and also demanded an additional amount of Rs. 16, 00, 612 (Rupees Sixteen Lac Six Hundred Twelve) for the services that has never been rendered to the informant.", "The informant has alleged that the Opposite Party Number 2 without any just cause and without any payment being legally due on it has declined to release its pending advertisements which have already been booked under subsidized package deals with the media publications.", "The Opposite Party No. 2 continues to claim payments for the very same advertisements.", "The informant has alleged that the aforesaid behaviour of the Opposite Parties amounts to the denial of services without any just cause which is anti-competitive as per section 4 (2) (c) of the Act.", "The informant has also alleged that because of Opposite Party Number 2, its media campaign in the peak admission season for July 2011 batch admission was completely affected and its business suffered a lot which is irreparable.", "It has also been submitted that because of the said acts, there was a revenue loss of an amount of Rs. 48, 03,326 to the informant.", "The informant has further submitted that the Opposite Party Number 2 had assured the informant to advertise publish its advertisement content in special education supplements in the newspapers, but in effect he was getting them published in irrelevant sections of the newspapers media.", "It has been alleged that the Opposite Party Number 2 has visited the office of the informant on several occasions to meet its senior officials and tried to offer them bribes in terms of cuts and commissions with the intention to make the informant agree to its unjust and unfair payment demands and to make the informant continue to overlook the shortfalls in its service delivery.", "The Opposite Party No, 2 has unfairly tried to retain the business of the informant as it was one of the largest client of the Opposite Party Number 2 and provided a turnover of nearly 40 -50 of its entire business.", "It has also been alleged that Opposite Party Number 2 is threatening to malign the reputation of the informant in the market and blacklist it as an advertiser in the print media.", "The Opposite Party Number 2 has sent an e-mail to all the multiple media publications accusing the informant for non-payment of its dues and requested them not to publish the advertisement of the informant.", "It has also filed a complaint with Opposite Party Number 1 requesting it to issue an advisory to all the media publications not to carry out the advertisements of the informant.", "According to the informant, instead of resolving the dispute between the informant and the Opposite Party Number 2, the Opposite Party Number 1 wrote a letter to the informant asking it to pay the pending dues of Rs. 37 Lac (Rupees Thirty Seven Lakh) to Opposite Party Number 2.", "The informant approached the Opposite Party Number 1 and explained that the claims of the Opposite Party Number 2 are false and the matter is sub-judice before the High Court of Delhi.", "But, instead of listening to the submissions of the informant, the Opposite Party Number 1 has threatened the informant to issue an advisory to its members advising them to not to publish its advertisements in future.", "Further, Opposite Party Number 1 has been constantly pressurizing the informant to surrender to the illegal and undue demands of the Opposite Party Number 2.", "The informant has alleged that because of its dominant position in the market of advertisement services, Opposite party Number 1 is compelling it to pay the illegal and undue demands of the Opposite Party Number 2, which amounts to abuse of dominant position as per the provisions of Section 4 (1) and 4 (2) (b) (i) of the Act.", "The Commission considered the matter in its meetings held on 01.09.2011, 08.09.2011, 13.09.2011 and 28.09.2011.", "Mr. Sumit Sharma, Advocate appeared on behalf of the informant on 28.09.2011 and made a request to withdraw the information filed before the Commission.", "The Commission has examined the allegations of the informant in light of the provisions of the Act and evidences available on record.", "The Commission observes that any issues relating to competition ought to be looked into with reference to the relevant market, which happens to be the provision of advertisement services in print media in India in the instant case.", "On careful examination of the whole matter, the Commission further observes that the basic allegations in the matter is that being in a dominant position in the market of provision of advertisement services in print media, the Opposite Party Number 1 has abused its dominant position by compelling the informant to pay the illegal and undue demands of the Opposite Party Number 2, which according to the informant is anti- competitive as per Section 4 (2) (b) (i) of the Act.", "Further, by declining to release the pending advertisements and by demanding undue amounts from the informant, the Opposite Party Number 2 has abused its dominant position in violation of Section 4 (2) (c) of the Act.", "The Commission notes that the informant is a client of Opposite Party Number 2.", "There is allegation in the information to the effect that the informant has been threatened of denial to publish its advertisements because of some alleged pending dues.", "However, the Commission feels that this in itself, in any manner, cannot be said to be denial of market access or limiting the provision of advertisement services in India.", "The Commission also notes that the allegations in the information pertain to dispute between the two parties and has no bearing on the issues concerning competition in the relevant market in India.", "Thus, prima facie, there appears to be no case of violation of any of the provisions of Section 4 of the Act in the matter.", "The Commission further observes that prima-facie the case also does not involve any anti-competitive agreement which may be considered to be violative of the provisions of Section 3(3) and Section 3(4) of the Act.", "The informant has also not alleged any violation of Section 3 of the Act by the Opposite Parties in the matter.", "The Commission, in view of the above discussion, holds that there is no prima facie case made out for making a reference to the Director General (DG) for conducting investigation into this matter under Section 26 (1) of the Act.", "The Commission notes that the advocate of the informant has also sought to withdraw the information filed before the Commission.", "In light of foregoing, the Commission deems it fit to close the matter relating to this information under Section 26(2) of the Act.", "The Secretary is directed to communicate the decision of the Commission to the informant accordingly."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", 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+{"id": "CCI_PV_Basheer_Ahamed_vs_Film_Distributors_AssociationCO2017061017162754184COM917055", "text": ["Mr. P.V. Basheer Ahamed (hereinafter, the Informant) has filed the instant information under Section 19(1)(a) of the Competition Act, 2002 (hereinafter referred to as the Act) against M section Film Distributors Association (Kerala) (hereinafter, OP- 1) and M section Kerala Film Producers Association (hereinafter, OP-2) (OP-1 and OP-2 together referred to as Opposite Parties) alleging contravention of Sections 3 and 4 of the Act.", "Brief details of the facts presented in the information are as follows: 2.1.", "The Informant exhibits movies in his theatres viz. Liberty Paradise, Liberty Movie House, Liberty Little Paradise and Liberty Suite, all located at Thalassery, Kannur District, Kerala.", "The Informant is also an office bearer of Kerala Film Exhibitors Federation (hereinafter, KFEF), which is one of the associations of exhibitors in Kerala.", "There was a pending dispute between OP-1 and KFEF with respect to revenue- sharing between distributors and exhibitors of Malayalam movies.", "In relation to the said dispute, a special meeting was convened by the Kerala Film Development Corporation with different organisations in the Malayalam film Industry on 7th March, 2003.", "In the said meeting, it was resolved that during the first week of movie releases in air-conditioned theatres, the share of distributors and exhibitors would be 60 and 40 respectively.", "Contrary to the above understanding arrived at on 7th March, 2003, OP-1 unilaterally changed the revenue-sharing arrangement for air-conditioned theatres and multiplexes operating in shopping malls in the State of Kerala.", "The revenue share of such theatres was increased to 50 during the first week of release of a movie.", "The Informant, being an office bearer of KFEF, took up the issue with the Kerala State Film Development Corporation on 7th October, 2015 and sought parity between air- conditioned theatres operating in shopping malls and others.", "However, this demand was not acceded to due to the clout enjoyed by the Opposite Parties in the Malayalam Film Industry.", "As a result, KFEF was forced to call for a strike in the State of Kerala which was later called off due to the intervention by the Chief Minister.", "Subsequently, several distributors who had initially agreed to release movies in the theatres of the Informant refused to do the same on account of an unofficial ban imposed by the Opposite Parties.", "In support of such contention, two letters dated 24th October, 2016 and 22nd November, 2011 from L J films Private Limited and M section Friday Tickets, respectively, were enclosed with the information.", "The Informant was hence, compelled to close down his theatres as he was not getting movies on account of the unofficial ban imposed by the Opposite Parties.", "The Informant has contended that such unofficial ban imposed by the Opposite Parties on the theatres of the Informant, for collective decision taken by KFEF, shows a conspiracy to exterminate the Informant financially and oust him from the Malayalam film industry.", "The Informant has alleged that such ban amounts to a cartel and abuse of dominant position, in contravention of the provisions of Sections 3 and 4 of the Act.", "The Commission considered the information on 27th June, 2017 and had a preliminary conference with the parties on 9th August, 2017.", "During the preliminary conference held on 9th August, 2017, the Informant reiterated the allegations contained in the information.", "On the other hand, the Opposite Parties contended that they did not impose any ban on the Informant and they have no role in the disputes between individual distributors and the Informant.", "OP-1 alluded that individual distributors had refused to give movies to the Informant due to his demand for higher revenue share.", "OP-1 also averred that KFEF, in which the Informant had been an office bearer, had forced its members not to screen movies scheduled for Christmas, as a result of which producers and the Government had to incur loss to the extent INR 20 Crore.", "OP-1 further contended that the Informant had closed down his theatres on his own accord to renovate them on par with multiplexes and movies are being released in the theatres of the Informant since April, 2017.", "In response, the Informant contended that refusal of movies between January and April, 2017 was a result of a ban imposed by the Opposite Parties.", "The Informant also suggested that he could produce his bank statement evidencing refund of money by a few distributors who had initially agreed to give him movies.", "Upon hearing the parties, the Commission allowed them to file their written submissions and evidence relating to the allegations on Affidavit.", "Accordingly, the Informant and OP-1 filed their Affidavits on 21st August, 2017 and 24th August, 2017, respectively.", "In his Affidavit, the Informant has submitted that OP-2 issued a notice dated 22nd February, 2017 to him purportedly making wrong allegations.", "He responded to the said notice on 25th February, 2017.", "The Informant also wrote letters dated 2nd March, 2017 and 28th March, 2017 to OP-1 and Kerala Film Chamber of Commerce, respectively, seeking revocation of the ban imposed on the theatres of the Informant.", "To support the allegations levelled, the Informant has also enclosed his bank statement to suggest that two distributors returned the advance paid to them for exhibition of their movies in the theatres of the Informant.", "In its reply dated 24th August, 2017, OP-1 has contended that the purported confirmation letters of distributors viz. L J Films Private Limited and M section Friday Tickets have neither been signed by the said distributors nor by the Informant and amounted to no agreement between them.", "OP-1 has submitted that strike has been a normal phenomenon of KFEF for the past four to five years, particularly during festival periods, driving the producers and distributors into losses.", "In order to show the anti-competitive behavior of KFEF, OP-1 has enclosed a letter dated 1st November, 2016 of KFEF whereby it informed OP-1 that revenue-sharing arrangement between exhibitors and distributors would be 50:50.", "A copy of a circular dated 18th August, 2016 of KFEF to its members has also been enclosed with the reply.", "In the said circular, KFEF had asked its members not to increase the ticket rates so that the distributors and producers incur losses.", "The Commission has carefully perused the information and the materials available on record and given careful consideration to the submissions made by the respective learned counsel for the parties during the preliminary conference as well as the Affidavits given by them.", "The primary allegation in the instant matter is that the Opposite Parties have imposed a ban upon the Informant due to which no distributor is ready to give movies for exhibition at the Informants theatres which has led to their shutdown.", "The reason behind the same has been alleged to be that the Informant, being a member of KFEF, had been a part of the strike convened to demand a higher revenue share (50:50) for the member exhibitors of KFEF, at par with the multiplexes and air- conditioned theatres in shopping malls, rather than the initially agreed share of 60:40.", "Such conduct of the Opposite Parties in imposing an unofficial ban has been alleged to be amounting to both an anti-competitive agreement as well as abuse of dominant position in contravention of the provisions of Section 3 and Section 4, respectively, of the Act.", "At the outset, the Commission notes that the facts as alleged by the Informant, do not suggest any unilateral conduct on part of any enterprise or group, that merits an examination under Section 4 of the Act.", "The impugned conduct primarily alleges anti-competitive behavior by the Opposite Parties, who are associations of persons and or enterprises.", "Hence, the conduct of such Opposite Parties can only be examined under Section 3 of the Act, which covers enterprises, associations of enterprises, persons and or associations of persons.", "Since the Opposite Parties here are Distributors and Producers Associations, who are engaged in identical or similar trade of goods, the present case merits examination under Section 3(3) of the Act.", "The Informant has alleged that there is an unofficial ban imposed by the Opposite Parties upon him, which has led to the Producers and Distributors not giving movies to the theatres of the Informant for exhibition.", "In support of his such contention, the Informant has, inter alia, submitted unsigned confirmation letters dated 24th October, 2016 and 22nd November, 2016 from two distributors namely L J Films Private Limited and Friday Tickets, respectively, and his own bank statement evidencing return of money given by the Informant for purchasing exhibition rights, by two other distributors namely M section Ever Green Films and August Cinema.", "The Commission observes that either of such documents do not suggest that exhibition rights were denied to him due to any ban imposed, or that such alleged ban was imposed by the Opposite Parties.", "The confirmation letters simply show that the two distributors agreed to screen their movies in the theatres of the Informant while the bank statement merely proves that certain amount was credited in the Informants bank account from the two distributors.", "Besides the same, the Informant has also relied upon certain news publications and letter dated 7th October, 2015 issued by KFEF as well as Show Cause Notice dated 22.02.2017 issued by OP-2 to him.", "While these highlight the difference in revenue shares of multiplexes and other theatres, the same also do not give any indication of the purported ban or involvement of the Opposite Parties in the same.", "The Informant has also relied upon letters dated 15th January, 2017, 25th February, 2017, 2nd March, 2017 and 28th March, 2017 written by him to the Opposite Parties and others wherein he has alleged imposition of such unofficial ban by them.", "However, the Informant cannot use the same to his advantage as the same are nothing more than self-serving admissions.", "The Commission also takes note of the contention of OP-1 that the producers and the Government had to incur losses due to the strike called by KFEF at the behest of the Informant, during Christmas season 2016.", "As a result of such purported strike, the Informant also being a member of OP-2 was asked to give an explanation for indulging in activities that resulted in losses to the producers as well as restricted movies releases.", "The strike being launched by the Informant is also evident from the news article dated 13th February, 2017 titled Liberty Basheer winds up theatre business, enclosed with the information.", "Relevant extract of the news item is reproduced as under: Im left with no other option than to shut down theatres.", "My theatres are not getting Malayalam movies.", "At present, nearly 50 employees are serving in these firms and there is no point in operating the theatres without collection.", "Certain persons are adamant that even other language films or second grade movies should not be screened at my theatres.", "I am not willing to bow down before them to run my theatres, he said.", "In fact, I launched the protest for the benefit of over 350 theatre owners.", "As Dileep intervened, everyone followed him.", "Dileep could down shutter of my theatres.", "However, nobody can defeat me Basheer added.", "Liberty Basheer, who was active in film production, has not produced any movie in recent years.", "(Emphasis supplied) It is evident that KFEF, in which the Informant has been an office bearer, called for strike during Christmas 2016 demanding higher revenue share for its members.", "Most of the members of KFEF withdrew from the strike and started taking movies as per the prevailing revenue-sharing terms.", "However, the Informant refused to agree with the prevailing terms, which may have likely resulted in movies not being given to him.", "It is also relevant to note that movies are being given and exhibited in the theatres of the Informant since April, 2017.", "This was also confirmed by the learned counsel for the Informant during the preliminary conference.", "In view of the foregoing, the Commission is of the prima facie opinion that there is no sufficient material on record to suggest that the Opposite Parties have put a ban upon the Informant which led to movies not being given to him for exhibition in his theatres.", 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+{"id": "CCI_Singhania_and_Partners_LLP_vs_Microsoft_CorporatioCO110039COM401821", "text": ["The instant information has been filed by M s Singhania Partners LLP, (hereinafter referred to as the Informant) on 3rd August, 2010 under Section 19 of the Competition Act, 2002 (hereinafter referred to as the Act), against M s Microsoft Corporation (I) Pvt.", "Limited (hereinafter referred to as Opposite Party Number 1) and M section Embee Software Pvt.", "Limited (hereinafter referred to as the Opposite Party Number 2), inter alia, alleging anti competitive conduct and abuse of dominant position by the Opposite Party Number 1 in the sale of Operating System and Office Suite Software.", "The facts and the allegations as stated in the information, in brief, are as under: 2.1 As per the Informant, the Opposite Party Number 1 is one of the worlds leading multinational computer technology Corporation that develops, manufactures, licenses and supports a wide range of computer Operating Systems and other software products for computing devices.", "2 The Informant has submitted that it required Microsoft products Microsoft Operating System and Microsoft Office 2007 for the computers at its office.", "During the marketing calls with Microsoft, one of the executives forwarded the name of Opposite Party Number 2, who is one of the dealers of the Microsoft.", "Pursuant to discussion as to the requirement for the various licensed software and after understanding the requirement of the Informant, the Opposite Party Number 2 official vide e-mail dated, 20th November, 2008 sent a proposal to the Informant for Microsoft Vista Business and MS Office 2007 software for consideration.", "After considering the said proposal received from Opposite Party Number 2, the Informant vide letter dated, 21st November, 2008 placed an order Informant also sent a cheque for Rs. 1,97,250 on 24th November, 2008 towards 50 per cent of the advance payment against the said order as requested by Opposite Party Number 2.", "3 As per the Informant, subsequent to the placing of the Order, the Informant was informed by one of the executives of the Opposite Party Number 1 that only the Volume licenses of the Ordered products can be purchased and not the Original Equipment Manufacturer (OEM) Licenses, which are available only when a new machine is purchased.", "2.4 As per the Informant, the above executive of the Opposite Party Number 1 pressurized the Opposite Party Number 2 to cancel the purchase order placed by the Informant.", "The above executive further directed the Informant to place an order for the volume licenses instead of OEM license.", "The Informant was also informed that the price for the volume licenses was almost double to the prices quoted for the OEM license in spite of the fact that the products were same.", "2 .5 The Opposite Party Number 2 vide its email dated, 27th November, 2008 cancelled the Order of the Informant and insisted to place another Purchase Order for the required software at the prices quoted for volume license.", "As per the Informant, due to the urgency of the software, the Informant placed the revised order with the Opposite Party Number 2 at the quoted higher rates of volume license amounting to Rs. 5,71,816 excluding of taxes.", "2.6 As per the Informant, if the same software is licensed to new computer, i.e., OEM license then the same is cheaper and if it is licensed to existing computers, i.e., Volume License, then the same shall cost more.", "7 It is also submitted by the Informant that in another instance, the Informant on 20th January, 2009 placed an online order for the purchase of Microsoft Office Professional 2007 Software after enquiring on the alleged web site of the Opposite Party Number 1.", "On receipt of the software, it was found by the Informant that the above software was labeled as for use only with a new PC with 2007 Microsoft Office Suite or component application software pre installed.", "As per the Informant, at the time of the placing the Order on the alleged web site of the Opposite Party Number 1, there was no mention of such a condition.", "It has been alleged by the Informant that as per the aforesaid website of the Opposite Party Number 1, different dealers of the Opposite Party Number 1 are selling the same product at different prices and a small percentage of them offers the same at the lowest price which appears to be artificially controlling the prices by the Opposite Party Number 1.", "2.8 As per the Informant, it was noticed by him that on different dates, one dealer of the Opposite Party Number 1 quoted the lower prices and the other quoted higher prices giving an impression to the buyer customer that he is getting the lowest price available in the market.", "2.9 It has also been alleged by the Informant, that Opposite Party Number 1 is having a market share of 90 per cent and a dominant firm in the market, its over pricing in the name of volume license and coercing the Informant to buy volume license rather than OEM license, which was offered at double the price, in spite of the fact the product were same, is a violation of Section 4(2)(a)(ii) of the Act, as there was a discriminatory pricing by the Opposite Party Number 1.", "2 .1 0 The Informant has also alleged that the Opposite Party Number 1 has violated the provisions of Section 3 of the Act by imposing restriction on the consumer in acquiring license of Windows Operating System and thereby artificially controlling the supply and pricing of its products.", "It has been further alleged that the Opposite Party Number 1 has entered into agreement with the original equipment manufacturers and offers them operating system at a rebate, this leaves an adverse impact on the market whereby all the other manufacturers of the Operating System will be eventually dragged out of the market because most of the computer shipped by the OE Ms will be having pre installed Windows Operating System as per the agreement between the Opposite Party Number 1 and OE Ms. 3 .", "On 18th August, 2010, Amarchand Mangal Das Shroff, Advocates on behalf of the Opposite Party Number 2 filed an application before the Commission and requested for an opportunity to inspect the case file and appear before the Commission before framing any opinion by the Commission.", "The above said request was considered by the Commission in its meeting held on 19th August, 2010 and the permission as requested was granted to the Opposite Party Number 1.", "On 20th September, 2010.", "the Informant filed certain additional document which were the transcripts of conversation between the Informant and the Official of the Opposite Party Number 1.", "On 1st October, 2010, the Opposite Party Number 1 through its Advocate, Amarchand Mangal Das, filed written submissions.", "The Informant on 8th November, 2010 filed the rejoinder to the written submission filed by the Opposite Party Number 1 and also filed additional Affidavit on 19th November, 2010.", "Thereafter the Opposite Party Number 1 has filed its reply to the rejoinder filed by the Informant.", "The informant has also filed the written synopsis of the argument advanced by him on 14th December, 2010.", "The Commission has carefully considered all the relevant material filed by the parties and the oral arguments advanced by the parties.", "The brief of the written submissions filed by the Opposite Party Number 1 is dealt with in the ongoing paragraphs.", "It is submitted by the Opposite Party Number 1 that the Informant has failed to raise a competition law concern in this case.", "As per the Opposite Party Number 1, it licenses its products through three main channels of distribution namely OEM, Volume License and Retail chain.", "Further, it has to protect its Intellectual Property Rights and prevent piracy of its products.", "Software is a form of an IP Right and Software licenses govern the usage and re-distribution of that property.", "As per the Opposite Party Number 1 its relationship with its distributors and resellers is independent and does not create any principal agent relationship.", "It sells its products licenses to its distributors and resellers on a principal to principal basis.", "As per the submissions of the Opposite Party Number 1, it does not sell its products rather license them to its customers for specific uses on specific licensing terms.", "Further, it is the license itself which determines the nature of the product that is being granted to the customer.", "The licensing policy followed by it is its global policy, which is similar to the practices utilized by most IT firms, across the globe.", "The Opposite Party Number 1 has submitted that the three aforesaid distribution channels are distinct with different licensing rights to maximize distribution efficiency.", "OEM distribution is the highest volume channels of Microsoft, It involves sales and distribution to branded PC manufactures and because of the size of its distribution channel, it offered the lowest royalty rates for Windows and Office software.", "As per the Opposite Party Number 1, OEM license are different in the nature than those purchased through other channels.", "OEM version of the Operating System may not be resold unless it is installed on a PC.", "OEM channel provides efficiencies such as installation, testing, support, warrantee, activation and updates and stability.", "It is also submitted by the Opposite Party Number 1 that Microsofts agreement with the OE Ms does not require that OE Ms can install Windows or Office exclusively on the P Cs.", "OE Ms are free to distribute P Cs with non Microsoft Software or without software at all.", "As per the Opposite Party Number 1, approximately 30 per cent of the P Cs sold by OE Ms in India have Windows preinstalled and less than 1 per cent of P Cs have licensed Microsoft Office software pre installed.", "As per the Opposite Party Number 1, Volume License channel is the most significant channel for businesses and other organizations.", "These are sold in larger volume and the customers can upgrade from older OEM or retail version to the most recent version of the Operating System.", "Volume Licensing customers do not provide with many of the benefits and services as compared with the OE Ms, including the benefit of testing.", "In addition, Microsoft has to consider the cost of support for volume license customers, coupled with higher packaging costs.", "As per the Opposite Party Number 1, in its third distribution channel, i.e., retail distribution it offers Windows and Office for sale through retailers, this is the lowest volume channel however, with highest cost.", "The Opposite Party Number 1 denied each and every allegation leveled against it by the Informant and stated that the Informant and the Opposite Party Number 2 were informed by it that the Software licenses being purchased by the Informant were inappropriate for the intended use and requested the Informant to purchase the appropriate software licenses.", "Further, discounts for OEM channels are not unique to the software industry, the difference between the wholesale price and the retail price is common in every industry and offers greater benefits to the consumers.", "In response to the written submissions filed by the Opposite Party Number 1, the Informant filed rejoinder dated, 8th November, 2010 and reiterated all the facts stated earlier in the information.", "The Informant further submitted that the Opposite Party Number 1 is attempting to divert the Commissions attention to an irrelevant issue by raising the issue of protection of IP Rights and Piracy.", "As per written submissions of Informant, the network of distributors and resellers engaged by Opposite Party Number 1 are not independent and it exercises tight control over the network and pursues a highly interventionist policy in steering the so called independent distributors to act as per it.", "The Informant further submitted that different royalty rates being charged by the Opposite Party Number 1 for different licenses is a strategy adopted by Microsoft to maintain its monopoly in the market under the garb of its licensing policy.", "The Informant has also alleged that the licensing policy of the Opposite Party Number 1 is nothing but an artificial device for controlling the downstream distribution chain and a pretext for imposing unfair prices and conditions on consumers at the next level in the chain which is prohibited under the Act.", "The Informant has further alleged that the coordination between the Opposite Party Number 1 and Opposite Party Number 2 would qualify as a practice action to maintain resale price in the distribution chain and is therefore, violative of Section 3(4)(e) of the Act.", "The Informant has also submitted that the global licensing policy is not uniform as claimed by the Opposite Party Number 1. 1 6 .", "The Commission has carefully gone through all the above submissions, documents and the other material filed by the parties.", "It is noted that the information is centered on the fact that the Opposite Party Number 1 is selling the same product, i.e., Operating System and Office Program at different prices in the garb of its various licensing policies.", "It is observed by the Commission that the Opposite Party Number 1 is selling its various Software Licenses throughout the world and as per the submissions of Opposite Party Number 1 the policy of selling these licenses is followed across the World by it.", "The Opposite Party Number 1 has also submitted that it is licensing its products through three channels which are different in pricing, royalty, intended use of the user and efficiency etc.", "The Commission has carefully considered the various arguments advanced by the parties and observed that there is nothing adverse which can contradict the above submissions of the Opposite Party Number 1.", "The Commission, prima facie, has not found any substantial material which can establish that the different pricing policy adopted by the Opposite Party Number 1 in respect of different types of licenses raises any competition issue.", "There is nothing on record which could prima facie indicate that the three types of licenses which are being sold by the Opposite Party Number 1 through its dealers retailers are actually similar to each other and there is no difference between these licenses.", "Further, the Informant has also not placed on record any material which can suggest that the aforesaid three licenses are similar on the basis of intended use of the customer, or all are equal in terms of efficiency, royalty and on technical aspects.", "The Commission also does not find any material which could indicate that because of the dominant position of the Opposite Party Number 1 in the Operating System and its agreement with the OEM manufacturers, it has driven any competitor out of the market.", "Further, the Informant has himself admitted in his information that all the dealers are quoting different rates of the same product of the Opposite Party Number 1 therefore, prima facie, there cannot be any resale price maintenance restraint existing.", "It is important to note that the Informant has not been able to bring any cogent evidence on record to show that the Opposite Party is abusing its dominant position in the relevant market and the conditions imposed by it are violative of the provisions of Section 4 of Act.", "The allegations and averments made by the Informant have not been supported and corroborated in material particulars by any reliable evidence.", "In this respect in the absence of any material to the contrary, the Commission sees no reason to disagree with the explanation offered by the Opposite Party Number 1 on its policy relating to different distribution channels.", "The Commission, therefore, is of the opinion that the Informant has failed to make out a prima facie case for making a reference to the Director General for conducting investigation into the matter under Section 26(1) of the Act and the proceeding related to the instant case deserve to be closed forthwith.", "In view of the above discussion, the matter relating to the information is hereby closed under Section 26(2) of the Act.", "Secretary is directed to inform the Informant accordingly.", "Prasad, Member (Dissenting) The present information has been filed under Section 19(1)(a) of the Competition Act, 2002 (hereinafter referred to as the Act) on 30th August, 2010 by the informant for instituting an investigation into alleged abuse of dominant position and anti competitive agreements indulged into by the opposite parties named hereinabove.", "The informant is a limited liability partnership of advocates and solicitors which placed orders for Microsoft Vista Business under original equipment manufacturers (OEM) category through a dealer of the Microsoft, i.e., Opposite Party Number 2.", "For this, the informant paid 50 per cent of the price as an advance to the dealer.", "However, the informant was later told by the Opposite Party Number 1 that the informant has wrongly placed an order under the OEM category for which the informant firm was not eligible and instead it was eligible for the Volume license category.", "The price difference in the two categories was quite substantial and it costs around double of the OEM price, though the products are same According to the Informant no reasonable justification for this differential pricing was ever provided to them by the opposite parties.", "Left with no other choice, informant cancelled its earlier purchase order and placed a fresh order under Volume license category informing the opposite parties of its right to a legal recourse.", "Another allegation leveled against the opposite parties is that the informant purchased the Microsoft Office Professional 2007 from a website alleged to be launched by Opposite Party Number 1 www.buyoriginalms.com.", "The Microsoft, however, has denied the ownership of this website.", "When the informant tried to install the above software, it was noticed that it could be used only with a new PC having 2007 MS Office Suite or component application software pre installed.", "As per the informant no such condition was ever mentioned while purchasing the product.", "The informant, therefore, has alleged that: The Opposite Party Number 1 has abused its dominant position by directly imposing unfair, excessive and discriminatory prices on the consumers in the sale of the above two softwares and thereby contravened the provisions of Section 4(2)(a)(ii) of the Act.", "The agreements between Microsoft and the Original Equipment Manufacturers infringe provisions of the Act by-(a) directly determining the sales price violating Section 3(3)(a) (b) controlling the supply of software under Section 3(3)(b) Though the information provided by the information providers is limited, it is the duty of the Competition authorities to take into account all the factors which are anti competitive even if they are not part of the information.", "I have carefully considered the facts of the case, the averments made in the information as well as information available in public domain.", "It is found that Microsoft on the basis of its annual reports has around 80 per cent of market share in the operating systems (Windows Systems).", "Though there are other competitors in the operating systems market e.g. Apple, Google, and Linux but there appears to be marginal competition as their combined market share is only 10 per cent.", "Thus, there is strong possibility that Microsoft is a dominant player in that market.", "The Microsoft is selling its software packages under two different categories, i.e., OEM category and Volume License Category having two different price structure.", "The price under Volume License Category is almost double that under the OEM category.", "The conditions laid down in selling the products under different categories, i.e., through Original Equipment Manufacturer (OE Ms), Volume Licensing or Full Packaged Product (FPP), even though the products are by and large same, with different price structure for the same product.", "Microsoft charges much lower price for software bundled into a new PC, but charges upto thrice of that for software purchased separately for an old PC.", "The difference is not enough to suffice as bulk discount and appears an attempt to exploit its monopoly in the software market, by exploiting one segment of buyers.", "This practice can be seen as unfair and discriminatory in view of the Act.", "On the second issue that the desktop software packages of Microsoft which has 90 per cent market share do not run smoothly on other operating systems and it can run only on windows Operating system of Microsoft.", "In order to mitigate competition in the operating system segment Microsoft is trying to protect its operating system (OS) market by making the software packages compatible only with windows Operating system of Microsoft.", "The blocking of interoperability with other OS can be considered as abuse of its dominance as prohibited under the Act.", "This also came to our knowledge that the Volume license of the Microsoft can only be used as an upgrade for older version of Windows to incorporate the features of a new version of Windows.", "The Microsoft offered an upgrade version of Windows at price higher than the Full version of new Windows.", "The Consumer already having the older version will be bound to purchase full new version.", "This is the abuse of dominance by discriminating in terms of price and attracting likely infringement of the Act 33.", "Another possible practice as per the licensing policy as stated by Microsoft does not allow the OEM licensee to transfer the license from one machine to another even if the person is abandoning the use of old machine.", "This way it restricts the right of consumers which apparently violates provision under the Act.", "In accordance with the information available in the Public domain, a search was made for the price of Windows Vista Home Basic Version Full.", "In China the price of this product was USD 72.53 in 2008 and same product is available at prices ranging between the 100 - 190 at various websites.", "Through this model Microsoft discriminates among the consumers which are seemingly against the spirit of the Act, which can only be substantiated through investigation under the Act.", "Further, the OEM license is available only through the manufacturers, FPP for individual intending to buy for 5 or less P Cs and Volume license only for upgradation.", "It creates a baffling situation for a customer who intends to buy more than 5 P Cs.", "The only option left to him is to go for OEM.", "This in a way supports the sale of OEM and contributes in maintaining the monopoly of the Microsoft in the Operating system segment.", "Microsoft sells its office package to retail purchasers at a much higher price than what it charges to OE Ms (i.e. new machines).", "To have cheaper version of office package one has to buy a new PC.", "Thus, Microsoft is able to maintain retail price of its office package.", "Therefore, the vertical agreement between Microsoft and the OE Ms is a mutually beneficial deal, whereby they support each other to expand business and hinders competition in the relevant market.", "Microsoft once has sold the softwares to the intermediaries (resellers) like Embee, even though it maintains full control on the prices of various software at which the resellers further sell to end users in the garb of licensing policy.", "This practice has every chance to restrict the competition in the market.", "It also came to knowledge that In the State of Iowa and California at United States Microsoft was sued on behalf of consumers alleging that the Microsoft abused its monopoly position in the desktop computing market through price discrimination, overcharging and unfair competition for products such as Windows and Office thereby violating the respective states Antitrust Law.", "In 2007, Microsoft was ordered to refund the difference to volume licensees for abusing its monopoly position.", "Further more it was also seen that Microsoft packages do not run smoothly on other operating systems.", "Since, MS packages comprise of 90 per cent of the market such situation stunts the growth of other operating systems and also chokes development of other software.", "The practices adopted by the Microsoft appears to be limiting or controlling production, supply, markets and technical development.", "Therefore, its agreement with OE Ms appears to attract infringement of the Act, 2002.", "On through perusal of the information provided by the informant, material on record and submissions by the opposite parties, and also the information available in the public domain, I find substance to opine 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+{"id": "CCI_Udit_Gupta__vs__Interglobe_Aviation_Limited_and_OrCO20150407152156433COM982355", "text": ["Order under section 26(2) of the Competition Act, 2002 The present information has been filed under section 19(1)(a) of the Competition Act, (hereinafter referred to as the Act) by Shri Udit Gupta (hereinafter referred to as the Informant) against M section Interglobe Aviation Limited (hereinafter referred to as OP 1) and Director General for Civil Aviation (hereinafter referred to as OP 2) alleging contravention of the provisions of section 4 of the Act.", "Facts of the case may be briefly noted: As per the information, OP 1 operates an airline under the name of IndiGo.", "The Informant is stated to have booked online a return ticket on 27.08.2014 for his travel from Delhi to Mumbai and back on 30.11.2014 and 06.12.2014, respectively.", "OP 1 is a leading domestic airline in the country with highest market share of 32.8 of the total aviation sector and enjoys a dominant position.", "OP 1 also claims to be committed to an on-time performance for its flights, and has the maximum number of connections on the route sector Delhi -Mumbai - Delhi, with a total number of 28 flights on the said route.", "The Informant has alleged that being a dominant, OP 1 has devised a standard form of terms and conditions for the public to book their flights.", "Any person desirous of travelling by an Indigo flight is required to accept those conditions in totality, irrespective of how onerous and one-sided the terms and conditions may be.", "It is alleged that a passenger has no choice to negotiate but to accept the said terms and conditions.", "The Informant is primarily aggrieved by the terms under the head Flight Delays Cancellation which reads as under: Flight Delays or Cancellations If an IndiGo flight is cancelled, rescheduled or delayed for more than three hours (depending on the length of the journey), a Customer shall have the right to choose a refund or a credit for future travel on IndiGo or re- booking onto an alternative IndiGo flight at no additional cost (subject to availability) subject to the requirements under the local laws of the country in which the flight has been cancelled, rescheduled or delayed 6 .", "The Informants return flight on 06.12.2014, scheduled to depart at 16.40 hours from Mumbai and arrive at Delhi at 18.40 hours was delayed to depart at 18:00 hours from Mumbai.", "The Informant has stated that he requested the customer care of OP 1 to reschedule his flight either with OP 1 or any other flight.", "The Informant was informed that the change would be at a significant cost, which had to be borne by him.", "The Informant has alleged that he made several calls to the customer care as well as supervisory staff of OP 1 but they refused to assist him.", "The Informant is alleged to have been informed that it will not be possible for OP 1 to process his said request since the delay was less than the duration of the flight from Mumbai to Delhi.", "The Informant sent many emails seeking explanation for rejecting his said request to which OP 1clarified that depending on the length of journey means, in case where the delay in the flight is more than the duration of the flightFurther, when you contacted our call centre for rescheduling as the flight was delayed by one hour and 30 minutes at that time and thus our call centre team had to decline your request for rescheduling to an alternate flight.", "The Informant has alleged that the above justification of the OP 1 is clearly an afterthought.", "Indigo has, under the general provisions for booking, specifically mentioned to check and verify the itinerary atleast 12 hours before the departure time.", "However, OP 1 made changes in the flight schedule within 5 hours of its departure and allegedly refused to assist the Informant as per his convenience and adhered to unfair terms.", "Due to disparity between the bargaining power, OP 1 alleged to have imposed such unfair terms and conditions.", "The Informant has placed reliance on some court judgments also.", "He has pointed out that OP 1 has reserved unbridled discretion to change the schedules and or cancel, terminate, divert, postpone, reschedule or delay any flight where they reasonably consider this to be justified for commercial reasons.", "However, in case of a passenger, his legitimate right to choose an alternate flight in case of unreasonable delay by the airline, is restricted and controlled by the airlines as per their whims and fancies.", "The Informant has also stated in the information that all airlines have imposed such arbitrary conditions on the passengers.", "The second largest player Jet Airways has imposed similar condition in case of delay of one hour.", "Air India has not mentioned any such time, however, when a call was made by the Informant to their call centre, an executive confirmed that the passenger shall have a right to choose a flight of his convenience in case of delay of more than 60 minutes but the same is not written as part of its terms and conditions.", "Based on the above allegations, the Informant has alleged that the conduct of OP 1 is in contravention of the provisions of section 4 of the Act.", "Thus, the Informant has prayed, inter alia, for initiation of an inquiry under the Act.", "The Commission has perused the material available on record.", "The arguments made by the counsel on 21.05.2015 on behalf of the Informant were also considered by the Commission.", "The Commission notes that the Informant has not sought any relief against OP 2 in the instant case.", "It is further observed from the information available on the website of OP 2 that it endeavours to promote safe and efficient air transportation through regulation and proactive safety oversight system.", "The facts of the present case indicate that the Informant is aggrieved primarily by the alleged conduct of OP 1 imposing arbitrary, unfair and unreasonable conditions on the passengers.", "Thus, the relevant product market for OP 1 would be the market of air transport services for passengers.", "As regards relevant geographic market is concerned, the Commission observes that the alleged conduct of OP 1 regarding flight delays and cancellation of flights is emanating from the regulations laid down by Director General of Civil Aviation (DGCA) entitled Civil Aviation Requirements Section 3 - Air Transport Series M Part IV Issue I, dated 6th August, 2010.", "As the said regulations are applicable throughout the territory of India, the relevant market in the present case would be the market of air transport services for passengers in India.", "The Commission notes from the information available in public domain that seven companies were engaged in 2014 in the air transport service in India - Air India (includes both Air India Express and Alliance Air), Go Air, Indigo (Interglobe Aviation Limited), Jet Airways (including JetLite), Spice Jet, Air Costa and Air Asia.", "In terms of domestic passengers who availed the services of these airlines, OP 1 (31.8 market share) leads the market followed by Jet Airways (21.7 market share).", "Air India (18.4 market share) and Spice Jet (17.4 market share) are placed at third and fourth position, respectively.", "Go Air is at fifth position with 9.2 market share.", "Air Costa and Air Asia are at sixth and seventh positions with 0.9 and 0.5 market share, respectively.", "(Source: http: dgca.nic.in reports Traffic-ind.htm).", "In view of the above, OP 1 appears to be a leading player in terms of domestic passengers availing the airline services.", "However, since the Act provides that an enterprise is dominant if it can operate independently of competitive forces prevailing in the relevant market, the Commission took into consideration other aspects as well such as the value of total assets (in balance sheet) of a company.", "Since the data of the value of total assets for 2013-14 of few companies is not available in public domain, the Commission finds it appropriate to take into account and consider the figures of the total assets of the preceding years.", "The Commission observes from the data of the value of total assets of the preceding years that Air India has an asset value of Rs. 53,000 crores (as on 31.03.2012) and Jet Airways has an asset value of Rs. 20,000 crores (as on 31.03.2014), which is 8.4 and 3.1 times of the asset value of OP 1 (Rs. 6,400 crore as on 31.03.2013).", "The figures clearly indicate that the size of the asset value of OP 1 is lesser than Air India and Jet Airways.", "(Source: Industrial Outlook, CMIE).", "Another factor for determination of dominance is the dependence of consumers on the enterprise.", "Presence of other players in a significant way in the relevant market indicates that the consumers have option to avail service from other players in the relevant market.", "The consumer does not seem to be dependent on OP1.", "Further, it has been noted that most of the flight tickets are either booked online or through agents.", "The cost of information (about flights, fare, timing and availability etc.) is negligible.", "The consumer can easily compare fare, timing and availability of seats across various airline companies.", "It helps passenger to take well informed decision and pick the best available option.", "The Commission observes that no information is available in the public domain indicating the position of strength of OP 1, which enables it to operate independently of competitive forces prevailing in the relevant market.", "Further, the Informant has also not produced any cogent material to show the dominance of OP 1 in the market.", "Thus, prima facie, OP 1 does not appear to be in a dominant position in the relevant market.", "In the absence of dominance of OP 1 in the relevant market, its conduct need not be examined under the provisions of section 4 of the Act.", "In light of the above analysis, the Commission finds 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+{"id": "CCI_Vijay_Malhotra_and_Ors_vs_Milestone_Capital_AdvisoCO201503081522421377COM826188", "text": ["This common order shall dispose of the information filed in Case Number 39 of 2015 and Case Number 40 of 2015 as the Informants have raised similar issues against Milestone Capital Advisors Limited (hereinafter referred to as OP).", "The present information have been filed by Shri Vijay Malhotra and Shri Vijay Tejpal (hereinafter referred to as the Informants) against OP under section 19(1)(a) of the Competition Act, 2002 (hereinafter referred to as the Act) alleging, inter alia, contravention of the provisions of section 4 of the Act.", "Shorn of details, the Informants are stated to have invested a sum of Rs. 10 lakhs each in Milestone Domestic Fund Scheme II (hereinafter referred to as the Scheme), in the year 2008.", "In this regard the two Informants, Shri Vijay Malhotra and Shri Vijay Tejpal had executed their contribution agreements (hereinafter referred to as the agreement) on 06.05.2008 and 28.04.2008, respectively.", "It is stated that at the time of investment, the brokers of OP, Royal Bank of Scotland N.V., had assured an interest on the capital contribution 12 p.a., listing of the scheme and availability of easy exit option through need-based liquidation of investment.", "However, none of these assurances were fulfilled.", "It has been stated that as per the agreement, the scheme which was for a tenure of 4 years with two extensions of one year each (i.e., 411), should have matured on 30.11.2014.", "The Informants have averred that OP, vide email dated 17.11.2014, had sought the consent of the Informants to extend the scheme by one year but in reply the Informants had declined the request of OP and had requested OP to pay back their money along with the interest and profit.", "The Informants have alleged that OP not only refused to pay the interest that was due on the capital contribution made by the Informants but unilaterally extended the tenure of the scheme by one more year in breach of the terms of the agreement.", "It has further been alleged that OP has failed to divest the investments to the tune of Rs. 150 crores (approx.) before the maturity date and have not handed over the money back to the Informants which amounts to abuse of its dominant position in the market.", "It has been submitted by the Informants that in response to their intentions to file a complaint against OP before the Commission, OP offered to pay Rs. 3,26,000/- to each of them which was their balance capital contribution in the scheme.", "The Informants are stated to have accepted the said offer of OP.", "It has been alleged that OP has refused to share with the Informants the profits emanating from the sale of un-realized investments.", "The Informants have alleged that OP has imposed one-sided clauses in the agreement.", "The Informants have highlighted the following clauses to be in contravention of the provisions of section 4 of the Act: - Clause 3 of the agreement relating to the return of contribution and liability which restricted the liquidation of investments by the investors.", "It has been alleged that OP was in a position to impose such a condition due to its dominant position in the market.", "- Clause 6 of the agreement which pertains to the term and termination of the investment fund.", "The Informants have alleged that OP unilaterally extended the tenure of the scheme by another one year in breach of the clause 6 of the agreement.", "- OP closed the scheme on 30.11.2014 which was in violation of the provision of Initial closing date (i.e., 31.05.2008) in the agreement.", "It has been alleged that due to extension of the maturity period of the scheme, the Informants were made to invest for more than six years in violation of the stipulated six years in the agreement.", "Based on the above averments, the Informants have alleged that the conduct of OP is violative of the provisions of section 4 of the Act and have prayed, inter alia, for directing OP to treat the Informants as investors and pay their proportionate share of the unrealized investments of Rs. 150 crores (approx.).", "After perusal of the information, the Commission directed the Informant to appear for hearing on 25.06.2015.", "Shri Vijay Tejpal appeared in person to present his case.", "The Commission perused the Information and also considered the arguments made by Shri Vijay Tejpal.", "Facts of the case reveal that the grievance of the Informants essentially relate to the alleged conduct of OP in contravention of the provisions of section 4 of the Act.", "As per the information available on the website of OP, it is a privately held alternative investment advisory firm in India which manages alternative investment funds linked to the realty sector and bullion products.", "It also appears that OP has a wide investor base, including, institutions, family offices, government organizations and high net worth individuals.", "The present case relate to investments made by the Informants in a scheme which is a realty linked registered venture capital fund.", "Traditionally, venture capital funds entail high risk investments and accept contributions from institutional investors, banks, government organizations, high net worth individuals, etc.", "It is noted that Securities and Exchange Board of India (SEBI), the securities market regulator, prescribes a minimum investment value for investors investing in venture capital funds through its regulations.", "The said scheme was registered with SEBI in 2005 in accordance with the provisions of SEBI (Venture Capital Funds) Regulations, 1996 which proscribed individual investments of less than Rs. 5 lakh with a few exceptions.", "In this regard, reference may be made to the definition of Contributors as provided in schedule I of the agreement executed by the Informants.", "The definition stipulates a minimum investment value of Rs. 20 lakh in cases involving joint investments by more than one investor.", "From the demand-side substitutability of the scheme, the Commission observes that the investment scheme under examination is linked to the realty sector, therefore, it would be appropriate to examine those schemes with similar profile of risks and returns, specifically designed for institutional investors and high net worth individuals.", "Further, the Commission observes that from the consumers perspective, realty linked venture capital funds offering higher returns on large scale investments based on a diversified portfolio comprising of residential, commercial and industrial real estate properties, including rental yielding properties would in itself constitute a distinct category.", "Thus, private equity investments meant for institutional investors and high net worth individuals with similar risk and offering high returns on investments from real estate projects could be considered as substitutes.", "It is observed that while there are marginal differences between realty linked private equity and reality linked venture capital funds, the two are substitutable from the point of view of consumers looking for high returns from investments in the real estate sector.", "Both, real estate linked venture capital funds and realty linked private equity funds are governed by SEBI (Alternative Investment Funds) Regulations, 2012.", "The said regulations prescribe a minimum investment of Rs. 1 crore and also limit the total number of investors to one thousand with respect to such funds.", "In view of the foregoing, the Commission is of the view that investors consider realty linked private equity funds as interchangeable with realty linked venture capital funds by reason of characteristics of the products, prices and their intended use.", "Further, these funds are launched developed by investment firms which also manage the investments in such schemes.", "Accordingly, the Commission is of the view that the relevant product market appears to be the market for provision of services relating to management of investment in realty linked venture capital funds and reality linked private equity funds.", "With regard to the relevant geographic market, the Commission notes that an investor who is based in any part of India may easily invest in any real estate related private equity fund or venture capital fund since these funds could be obtained on private placement basis either directly or through brokers.", "Further, most subscriptions could be obtained online also.", "Thus, the relevant geographic market would be pan-India.", "Accordingly, the Commission delineates the relevant market as the market for provision of services relating to management of investment in realty linked venture capital funds and reality linked private equity funds in India.", "Having identified the relevant market, the Commission proceeds to examine the dominance of OP in the relevant market.", "Assessment of dominance of an enterprise is intricately connected with the concept of market power of the enterprise (being examined) which allows the enterprise to act independently of competitive constraints.", "On the basis of the information available in the public domain, the Commission notes that there are a substantial number of realty linked private equity venture capital firms such as Kotak group, IL FS, Aditya Birla group, HDFC, Unitech, ASK group, Anand Rathi group, Landmark Capital, Peninsula, Mirah Group, etc., in the relevant market.", "Further, many of these firms offer multiple investment funds.", "For example, Kotak alone offers four realty linked investment funds while IL FS, HDFC, Anand Rathi group and ASK group offer two such funds.", "Further, as per information available in the public domain, the size of the investment funds managed by the various players are of comparable size.", "Therefore, it is amply clear that the relevant market is highly fragmented with the presence of a large number of players, thereby indicating that the consumers have a wide variety of investment options.", "The Commission observes that no information is available in the public domain that indicates the position of strength of OP, which enables it to operate independently of competitive forces prevailing in the relevant market.", "Further, the Informant has also not produced any cogent material to show the dominance of OP in the relevant market.", "Thus, prima facie, OP does not appear to be in a dominant position in the relevant market.", "In the absence of dominance of OP in the relevant market, its conduct need not be examined under the provisions of section 4 of the Act.", "In light of the above analysis, the Commission finds that no prima facie case of contravention of the provisions of section 4 of the Act is made out against OP in the instant matter.", "Accordingly, the matter is closed under the provisions of section 26(2) of the Act.", "The Secretary is directed to inform the parties 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+{"id": "COM_India_Trade_Promotion_Organisation_vs_Competition_TA2016080716152316141COM296986", "text": ["section Singhvi, J. (Chairman) Whether an entity (appellant herein) created by the Government of India, which is incorporated under Section 25 of the Companies Act, 1956 (for short the 1956 Act), is under an obligation to temporarily part with the assets placed at its disposal by the Central Government and whether the time-gap policy, which has also been described as time gap restriction in the record of this appeal, framed implemented by the appellant for holding exhibitions fairs and other events at Pragati Maidan, New Delhi and the alleged discrimination practiced in the allotment of spaces to the private organisers are contrary to Sections 4(2)(a)(i), 4(2)(b)(i), 4(2)(c) and 4(2)(e) read with Section 4(1) of the Competition Act, 2002 (for short the Act), are the questions which arise for consideration in this appeal filed against order dated 03.04.2014 passed by the Competition Commission of India (for short, the Commission) in Case No. 74 of 2012 titled Indian Exhibition Industry Association and Ministry of Commerce and Industry and another.", "The appellant is a 100 Government-owned non-profit making company and functions under the administrative control of the Department of Commerce, Ministry of Commerce and Industry, Government of India.", "It was incorporated in 1976 under Section 25 of the Companies Act, 1956 (for short the 1956 Act) as Trade Fair Authority of India, which was merged in 1992 with Trade Development Authority of India and was re-named as India Trade Promotion Organisation.", "The initial subscribers of the company were (1) the President of India (2) the Prime Ministers Special Envoy, Ministry of External Affairs (3) Joint Secretary, respondent Ministry and (4) Chief Executive Director, Fair Organisation, respondent Ministry.", "The main objects of the appellant, as set out in its Memorandum of Association are: To promote, organize and participate in industrial trade and other fairs and exhibitions show-rooms and depots in India and abroad and to take all  (Page 1 of 114)  measures incidental thereto for boosting up countrys trade.", "To publicize in India and abroad international Trade Fairs and Exhibitions to be held in India and invite the foreign participants to participate in them.", "To organize and undertake trade in commodities connected with or relating to such fairs, exhibitions showrooms and depots in India and abroad and to undertake the purchase, sale, storing and transport of such commodities in India or anywhere else in the world.", "To undertake promotion of exports and to explore new markets for traditional items of export and develop exports of new items with a view to maintaining, diversifying and expanding the export trade.", "Before the incorporation of the Trade Fair Authority of India under Section 25 of the 1956 Act, India International Trade Fair Organisation (a wing of Ministry of Commerce) and Indian Council of Trade Fairs and Exhibitions (a registered Society operating under the control of Ministry of Commerce, Government of India) were engaged in the organisation of trade fairs and exhibitions at Pragati Maidan.", "The task of formulating the policy, direction and supervision of exhibitions and commercial publicity was performed by the Directorate of Exhibition and Commercial Publicity (another wing of Ministry of Commerce).", "These entities were merged and a unified autonomous agency with the name Trade Fair Authority of India was created and incorporated under the 1956 Act.", "The main task of Trade Fair Authority of India was to facilitate organisation of National International trade fairs and exhibitions at Pragati Maidan, which was given to it on nominal rent.", "The appellant, which was created with the merger of Trade Fair Authority of India with Trade Development Authority of India provides services to trade and industry and acts as a catalyst for the growth of Indias trade and policy and regulates holding of various exhibitions in India.", "It also approves holding of International Exhibition Fair Trade and India Trade Exhibitions abroad.", "The appellant also manages and rents out spaces at Pragati Maidan.", "It has regional offices in Bangalore, Chennai, Kolkata and Mumbai.", "The appellant has two subsidiary companies, namely, KTPO and TNTPO, which manage venues at Bangalore and Chennai, respectively.", "Although, the appellant was created as an autonomous entity, the Ministry of Commerce issued guidelines instructions generally for achieving the objects set out in its Memorandum of Association and in particular, the holding of fairs exhibitions in India and abroad.", "The appellant acted in consonance with those guidelines instructions and also issued circulars from time to time to apprise the public about the guidelines instructions issued by the Government of India.", "In July, 2006, the appellant framed policy for licencing of exhibitions and space and facilities at Pragati Maidan.", "The particulars of the guidelines instructions circulars issued from time to time for holding trade fairs and exhibitions, to which reference has been made in the investigation report prepared by the Director General (DG) and which are relevant to the issue involved in this appeal are given below: Vide Memorandum Number 10(7)/95-TP(Vol-II) dated 21.09.1999, Government of India approved the guidelines for holding International Fairs Exhibitions in India and Indian Trade Exhibitions abroad by the organizers other than the appellant.", "Paragraphs 1, 2, 3.2 to 3.4 of those guidelines read as under:  (Page 2 of 114)  GENERAL 1.1.", "The instrumentally through which International Exhibitions in India and Indian Exhibitions abroad is currently regulated is through the provisions of Handbook of Procedures of the Export and Import Policy of the Government of India.", "The approval or grant of permission for holding exhibition abroad does not amount to any endorsement or support of Government of India or ITPO for the event.", "The approval is only to facilitate trans border movement of exhibits through the customs authorities for the approved events.", "THE NEED FOR A FRAMEWORK 2.1.", "It has been observed that a large number of organizers are coming forward to organise events in India and abroad and at time frequent exhibition convey confusing signals to the participants and to business visitors from India and abroad when events also lead to poor business response causing loss of opportunity on the organizer and the nation.", "Further, there exists the need to have transparency in granting approvals by the Designated Authority.", "Thus the need was felt to review the existing framework and a Committee was constituted by the Ministry of Commerce (MOC) for the same.", "INTERNATIONAL TRADE EXHIBITION FAIRS IN INDIA 3.1.", "General Any Indian entity wishing to organize any International Trade Fairs Exhibitions in India or abroad, would be required to obtain a certificate from an officer of Government of India through the Ministry of Commerce not below the rank of Under Secretary or an officer of the India Trade Promotion Organisation duly authorized by its Chairman on this behalf to the effect that such exhibition, fairs or as the case may be similar show or display, has been approved or sponsored by the Government of India in the Ministry of Commerce or the India Trade Promotion Organisation and the same is being held in the public interest (Export.", "Import Policy 1997-2002, handbook of Procedure Chapter II para 11.71).", "Import is allowed without a license, of exhibits including construction and decorative materials required for the temporary stands of the foreign exhibitors at the approved exhibitions for a period of six months on re-export basis (Export-Import Policy 1997- 2002, Handbook of procedures, Chapter 5, para 5.41 sub paras (ix) 3.2.", "APPLICATION FOR GRANT OF APPROVAL Application is to be submitted to the General Manager (Domestic Fair Divisions) India Trade Promotion Organization (An undertaking of Ministry of Commerce),  (Page 3 of 114)  Pragati Bhavan, Pragati Maidan, New Delhi.", "The information to be provided in the application would include:- The details of the legal status and financial status of the applicant firm company.", "Past experience in organizing trade exhibition and whether such events were supported by Apex State Chambers of Commerce and Industry, Export Promotion Council etc.", "Whether the proposed events have the support of Chambers of Commerce and Industry, Export Promotion Councils, Commodity Boards etc.", "(Proof of Support to be attached).", "CONSIDERATION OF THE APPLICATION While considering the application, it has to be ensured that the slots of well-established trade fairs exhibitions that are being held regularly with certain product profile are not granted to new applicants without ascertaining the requirements of such established exhibition organizers.", "This is to prevent pre-empting of established events.", "The time gap required between two exhibitions fairs on the same theme and similar product profile within the same city would be three months and if held in another city, it would be one month.", "(Emphasis supplied) After two years, the Ministry of Commerce and Industry issued D.O. Number 11 (14)/99-TP dated 02.01.2001 and amended the guidelines relating to time gap required between two International Exhibitions Fairs to be held in India on the same theme and similar product profile within the same city and directed that the time gap would be 45 days instead of 3 months.", "For similar exhibitions fairs held in different cities in India, the time gap was prescribed as one month.", "However, an exception was made in the case of IT, Telecom and Broadcasting Sectors and it was provided that there will be no time gap between the fairs exhibitions organised by the industries in these sectors.", "In response to letter dated 19.12.2002 sent by the appellant, the Ministry of Commerce and Industry, Department of Commerce, Government of India decided to lift the time gap restriction for holding International Exhibitions in India and Indian Exhibitions abroad.", "This decision was conveyed to the appellant vide letter dated 27.02.2003, which reads as under: No. 11(14) Government of India Ministry of Commerce Industry Department of Commerce Udyog Bhawan, New Delhi - 110011.", " (Page 4 of 114)  Dated the 27th Feb. 03 To CMD, ITPO, New Delhi Sub.", ": Review of working of ITPO-proceedings regarding :- Sir, I am directed to refer to the correspondence resting with ITPO communication Number ITPO OSD/1/2002 dated 19.12.02 on the above subject and to say that the existing guidelines for holding international exhibitions in India and India Trade exhibitions abroad, in so far as those relate to the requirement of maintaining time gap between two exhibitions fairs, have been reviewed.", "On a careful consideration of the matter and keeping all relevant factors in view, it has been felt that the time gap restrictions prescribed in the said guidelines should be lifted to make the system transparent and afford greater freedom to the organizers to hold exhibitions fairs in the manner which promotes their business interests but does not conflict with any Government policy.", "It has accordingly been decided that henceforth no time gap restriction need be imposed between two exhibitions fairs irrespective of where the exhibitions fairs are held.", "The existing guidelines stand amended to the said extent.", "Yours faithfully, K. Tuli) Deputy Secretary iv) The appellant implemented the aforementioned decision of the Government by issuing letter Number 144-ITPO(Misc.) Mktg 03 dated 28.03.2003, the relevant portions of which are extracted below: Please find enclosed a copy of letter Number 11(14)99-TP dated 27th February, 2003 from the Ministry wherein it is stated that the time gap restriction prescribed in the said guidelines should be lifted to make the system transparent and afford greater freedom to the organizers to hold exhibitions fairs in the manner which promotes their business interests but does not conflict with any Government Policy.", "It has accordingly been decided that henceforth no time gap restriction need be imposed between two exhibitions fairs irrespective of where the exhibitions fairs are held.", "The existing guidelines stand amended to the said extent.", "In July, 2006, the appellant issued guidelines for licensing of exhibition spaces and facilities at Pragati Maidan and reintroduced the time gap requirement for two similar events.", "This is evident from paragraph 6.2 of the new guidelines, which reads as under: 6.2.", "Halls are allotted after checking the status of booking and keeping in view the following :- Slots for all regular events are reserved.", "Optimum utilisation of Halls.", " (Page 5 of 114)  In case of competing demands, applications are considered on first-come-first served basis subject to payment of advance licence fee as per the approved schedule.", "Normally, a gap of 15 days would be ensured between two events having similar product profits coverage.", "However, in case of ITPO fairs, this gap will be 90 days before start or 45 days after the close of ITPO show.", "The issue of the time gap requirement was discussed in the meeting of the Business Development Review Committee of the appellant held on 29.10.2007 and it was decided that normally a time gap of 15 days would be ensured between two events having similar product profile coverage and in case of ITPO show and third party show having similar product profile, the time gap should normally be 90 days before and 45 days after the event of the appellant.", "This decision was implemented by issuing circular of the same date, the relevant portions of which are extracted below: Normally a gap of 15 days would be ensured between two events having similar product profiles coverage.", "In case of ITPO show and 3rd party show having similar product profile a gap of 90 days before ITPOs show and 45 days from ITPOs is to be maintained.", "The clause relating to the time gap was further amended vide circulars dated 11.05.2010 and 15.02.2011 issued on the basis of the decisions taken in the meetings of the Business Development Review Committee of the appellant.", "The relevant portions of these circulars are also extracted below: Circular dated 11.05.2010: In the guidelines for approval, events having similar product profile coverage should have a gap of 15 days, it was decided that the guidelines would be amended to read as as far as possible, a gap of 15 days would be maintained between such events, to safeguard ITPOs interests of maintaining required booking in Pragati Maidan.", "Circular dated 15.12.2011 (e) The existing guidelines regarding gap between similar event of ITPO and third party event revised to 90 days prior and after the event.", "The same issue was again raised in the meeting held on 08.11.2011, which was attended by 14 organisers of trade fairs events in Pragati Maidan.", "During the course of deliberation, it was felt that the time gap of 90 days before and after an ITPO event of similar product profile was operating as a big deterrent for many organisers who are compelled to consider other venues.", "However, no final decision appears to have been taken for doing away with the time gap requirement.", " (Page 6 of 114)  In November, 2012, the appellant initiated the process for revision of the time gap policy and after taking into consideration the views of various stakeholders, the following circular was issued on 28.12.2012: No. 144 - ITPO(624) MKTG/2012 India Trade Promotion Organisation (BDD) CIRCULAR Dated : 28.12.2012 Subject : Policy regarding time gap restriction between two events of similar product profile in Pragati Maidan.", "With the approval of the Competent Authority, the time gap policy between two events of similar product profile stands amended as below with immediate effect: There will be no time gap restriction between two third party events of similar product profile in Pragati Maidan.", "A gap of 30 days before and 15 days after an ITPO fair and a third party fair of similar product profile will be maintained.", "Bahadur) Sr.", "Manager 7 .", "In 2009, the Ministry of Defence, Government of India, decided to organise Defexpo at Pragati Maidan and the Joint Secretary (Exports), Ministry of Defence sent letters dated 01.10.2009 and 09.10.2009 to the appellant with the suggestion that the dates of Civil Security Show proposed for 2010 may either be shifted or the same should have completely different entrance than Defexpo.", "The appellant accepted the suggestion and decided to shift Indian Civil Security Show to October, 2011.", "In the meanwhile, UBM India submitted an application dated 09.09.2009 for hosting IFSEC, FIREX and Internal Security India 2011 and requested for allocation of the dates between 10th and 16th October.", "The appellant declined the request vide letter dated 03.03.2010 and suggested the applicant to identify alternative slots.", "Thereafter, UBM India sent application dated 27.04.2010 for booking of Pragati Maidan for IFSEC, FIREX India, Homeland Security India 2011 and 2012.", "That application was partially accepted on 18.10.2010 and UBM India was allowed time- slot from December 6 to December 10, 2011 for IFSEC, FIREX India and Homeland Security India 2011.", "Electronics Today made an application on 16.06.2010 for allocation of space at Pragati Maidan for its Smart Cards Expo 2011 and its co-located events, namely, Security Expo 2011, RFID India Expo 2011 Biometrics India Expo 2011 and e- Payments India Expo 2011 between 28.09.2011 and 30.09.2011.", "That application was declined vide letter dated 28.10.2010 and the applicant was asked to look into the possibility of alternative dates.", "After issue of circular dated 15.02.2011, letter dated 02.04.2012 was sent to UBM India that as per the revised guidelines, it can be allowed to organise the events of IFSEC, FIREX India and Home Securities India 2012 after January, 2013.", " (Page 7 of 114)  On October 30, 2011, Electronics Today sent an application for allotment of the slot from 10.09.2012 and 13.09.2012 for holding Smart Cards Expo 2012.", "The request of Electronics Today was declined vide letter dated 10.01.2012.", "By another letter dated 21.02.2012, Electronics Today was informed that alternative dates could be allotted for organisation of its events.", "While the issue relating to further revision of the time gap requirement was under consideration, which culminated in the issue of circular dated 28.12.2012, Respondent Number 2, Indian Exhibition Industry Association, which claims to be a representative body of the private parties engaged in the business of organisation of trade fairs and exhibitions, filed an information dated 10.12.2012 under Section 19(1)(a) of the Act, the sum and substance of which was that the appellant was in a dominant position in the market of organisation of exhibitions and fairs and it has been abusing that position in the matter of grant of permission for organisation of exhibitions and trade fairs at Pragati Maidan and that the time gap policy was arbitrary, discriminatory and contrary to Section 4 of the Act.", "The information filed by Respondent Number 2 was considered by the Commission in its ordinary meeting held on 20.10.2012 and it was decided to hear both the sides.", "Accordingly, the representative of Respondent Number 2 was asked to appear on 30.01.2013 and that of the appellant on 06.02.2013.", "Subsequently, the date fixed for appearance of the appellants representative was shifted from 06.02.2013 to 12.02.2013.", "Shri V.S. Mehta, Deputy General Manager and Shri V.P. Malik, Manager, appeared before the Commission on 12.02.2013 and gave out that the appellant has drafted a competition friendly uniform policy for licensing of exhibition space and facilities at Pragati Maidan for future exhibitions fairs and the anomaly in the existing policy has been rectified.", "They also assured that a copy of the new guidelines policy will be filed within fifteen days.", "The Commission took cognizance of their statement assertion and passed order dated 12.03.2013, which reads as under: COMPETITION COMMISSION OF INDIA (Secretariat) Filed by: Indian Exhibition Industry Association, Pankaj Plaza, 2nd Floor, 1, Commercial complex, Pocket H J, Sarita Vihar, New Delhi - 110075 Against: (i) Ministry of Commerce and Industry.", "Through the Secretary, Department of Commerce, Udyog Bhawan, New Delhi India Trade Promotion Organization.", "Through its Chairperson, Pragati Bhawan, Pragati Maidan, New Delhi-110001 Order The Commission considered the matter in its ordinary meeting held on 12.02.2013.", "Shri V.S. Mehta, Dy.", "General Manager and Shri V.P. Malik, Manager, India Trade Promotion Organization (ITPO), Pragati Maidan, New Delhi appeared before the Commission on behalf of OP Number 2 and explained the case.", "They informed that they have drafted competition friendly uniform policy for licensing of exhibition space and facilities in Pragati Maidan for future exhibitions fairs and the anomaly in modified policy has now been rectified.", " (Page 8 of 114)  The representatives of ITPO assured the Commission that they will file a copy of the new guidelines policy within 15 days before the Commission.", "After submission of the modified guidelines, the Commission will take further view in the matter.", "Emphasis supplied Thereafter, an undertaking was filed before the Commission by Shri section Bahadur, Senior Manager of the appellant in the following terms: India Trade Promotion Organization Subject: Case Number 74/2012 - Filed by Indian Exhibition Industry Association, Pankaj Plaza, 1st Floor, 1, Commercial Complex, Pocket H J, Sarita Vihar, New Delhi - 110076.", "Against: (i) Ministry of Commerce and Industry - Through the Secretary, Department of Commerce, Udyog Bhawan, New Delhi India Trade Promotion Organization - Through its Chairperson, Pragati Bhawan, Pragati Maidan, New Delhi-110001 UNDERTAKING BEFORE HONBLE COMPETITION COMMISSION OF INDIA I, section Bahadur, Senior Manager, ITPO S o late Shri Raghuvansh Bahadur hereby state on behalf of India Trade Promotion Organization that ITPO has made a friendly time gap policy for licensing of exhibition space and facilities in Pragati Maidan for future exhibitions fairs.", "I undertake that ITPO shall modify the current policy for licensing of space in Pragati Maidan with in next 3 months to ensure uniformity in organizing exhibitions fairs at Pragati Maidan and provide a copy of the same to the Competition Commission of India for kind information.", "Bahadur) Senior Manager, India Trade Promotion Organization, Pragati Bhawan, Pragati Maidan New Delhi - 110001 In furtherance of the undertaking given before the Commission, the appellant issued circular dated 20.05.2013 and reduced the time gap between an ITPO fair and the third party event on product of similar profile to three days before and after.", "The same reads thus: 144/ITPO(624) MKTG/2012 INDIA TRADE PROMOTION ORGANISATION (BDD) CIRCULAR Subject: Policy regarding time gap restriction between two events of similar product profile in Pragati Maidan.", "With the approval of the Competent Authority, the time gap policy between  (Page 9 of 114)  two events of similar product stands amended as below with immediate effect: Time gap between an ITPO fair and a third party fair of similar product profile reduced to 3 days before and after.", "However, no fairs on similar product profile to be held concurrently in Pragati Maidan by third party organizers.", "section Mehta) Dy.", "General Manager Although, the appellant had informed the Commission on 12.02.2013 that it had drafted a competition-friendly policy for licencing of exhibition space and facilities in Pragati Maidan for future exhibitions fairs and the Senior Manager of the appellant had filed an undertaking that the extant policy for licencing of exhibition space and facilities will be modified within 3 months and within that period, circular dated 20.05.2013 was issued, the Commission did not wait for the issuance of the modified policy and passed order dated 06.05.2013 under Section 26(1), paragraphs 24 and 25 of which read as under: On the basis of the information and material on record it appears that ITPO was abusing its dominant position prima facie in the following manners: By imposing discriminatory conditions of the time gap restrictions, it was abusing its dominant position in contravention of section 4(1) read with section 4(2)(a)(i) of the Act.", "By the time gap restriction and preferential treatment given to itself for organizing trade fairs and exhibitions over other organizers, it was limiting the provisions of services of holding trade show exhibition at Pragati Maidan in contravention of section 4(1) read with section 4(2)(b)(i) and section 4(2)(e) of the Act.", "By altering the guidelines coupled with phenomenal delay in confirmation of allotment dates to other organizers, it was denying access to use the venue in contravention of section 4(1) read with section 4(2)(c) of the Act.", "By allotting the venue subject to acceptance of supplementary obligations such as conditions of compulsorily taking of foyer area, engaging of empanelled House Keeping agency, it was in contravention of section 4(1) read with section 4(2)(d) of the Act.", "Resultantly, the Commission is of the opinion that prima facie there is sufficient material to refer the case to the Director General (DG) to cause an investigation to be made into the matter under Section 26(1) of the Act.", "On receipt of the aforesaid order, the Director General (DG) issued notice dated 21.06.2013 under Section 41(2) read with Section 36(2) of the Act and called upon the appellant to respond to as many as 22 queries and furnish the related documents.", "In its reply dated 13.08.2013, the appellant explained the background and rationale of the time gap policy and amendments made therein.", "It also disclosed the reasons for some delay in processing the applications of UBM India and Electronics Today.", "Since the reply submitted by the appellant to the notice issued by the DG has  (Page 10 of 114)  considerable bearing on the decision of this appeal, the relevant portions thereof are reproduced below: Furnish ownership pattern, organizational structure, functions, area of operations activities of ITPO: ITPO is a 100 Govt.", "owned company, ITPO functions under the administrative control of Department of Commerce in the Ministry of Commerce and Industries.", "ITPO was incorporated u s 25 of Companies Act, 1956 on 30/12/1976 as Trade Fair Authority of India (TFAI).", "Subsequent to the merger of erstwhile Trade Development Authority of India (TDAI) with TFAI on 1/1/1992, the merged organisation was renamed as India Trade Promotion Organisation (ITPO).", "The organisational structure of ITPO is attached herewith at Annexure V. The main functions and objectives of ITPO are: To promote, organise and participate in industrial trade through fairs and exhibitions in India and abroad and to take all measures incidental thereto for boosting up countries trade.", "To publicise in India and abroad international trade fairs and exhibitions to be held in India and mobilise the foreign participants to participate in them.", "To organise and undertake trade in commodities connected with or relating to such fairs, exhibitions in India an abroad.", "To promote exports and to explore new markets for traditional items of exports and develop export of new items with a view to maintaining, diversifying and expanding the export trade.", "To support and assist small and medium enterprise to access market both in India and abroad.", "To prepare and update trade related database for dissemination among trade and industry in India.", "Organising seminars, conferences and workshops on trade-related issues.", "To lease out its exhibition halls and facilities to other organisers for holding trade related events.", "Explain in brief the role of ITPO in various capacities like organiser, participant, facilitator etc.", "for conducting the exhibitions, trade shows, fairs (hereinafter referred as Events) and other rules, if any.", "ITPO organizes several trade fairs in India at Pragati Maidan and other Centres in country.", "Some of these fairs are India International Trade Fair, India International Security Expo.", "Delhi Book Fair etc.", "Each fair is marketed among trade and industry and an extensive campaign is also launched for mobilising buyers and other trade  (Page 11 of 114)  visitors.", "The show dcor is given due importance and ITPO has been holding a number of these fairs successfully over the years.", "ITPO organizes participation of Indian trade and industry in various overseas trade fairs exhibitions.", "It also organizes exclusive India shows in overseas markets.", "The program of participation in various fairs abroad is based on Foreign Trade Policy of Govt.", "of India.", "Focus Areas and New Markets as identified by Department of Commerce.", "Bilateral and Multilateral trade agreements of India and other countries regions and views of Indian missions abroad.", "Some of the overseas events are self-financing and others are provided budgetary support by the Department of Commerce.", "ITPO is also responsible for marketing of its various exhibitions halls and conference facilities in Pragati Maidan.", "A number of Indias leading trade fairs are organised at Pragati Maidan by third party organisers.", "ITPO is regularly upgrading facilities in Pragati Maidan to ensure holding of world class exhibitions and conventions.", "ITPE, vide guidelines issued by Ministry of Commerce vide Letter No. 10(7)95-TP (Vol II) dated 21.9.1999 approves holding of International trade Fairs exhibitions in India and abroad by issuing approval letter certificate .", "Ministry of Commerce vide guidelines issued with the above letter conveyed the need for such framework as It has been observed that a large number of organisers are coming forward to organise events in India and abroad and at times frequent exhibitions convey confusing signals to the participants and to business visitors from India and abroad when events on similar themes overlap.", "Lack of appropriate spacing of events also lead to poor business response causing loss of opportunities for the organiser and the nation.", "Further, there exists the need to have transparency in granting approvals by the Designated Authority.", "Thus the need was felt to review the existing framework and a Committee was constituted by the Ministry of Commerce for the same.", "It further mentions that any Indian entity wishing to organise any International trade Fairs exhibitions in India or abroad would be required to obtain a certificate from an officer of Government of India in the Ministry of Commerce not below the rank of Under Secretary or an officer of India Trade Promotion Organisation duly authorised by its Chairman on this behalf to the effect that such exhibition, fairs or as the case may, similar show or display, has been approved or sponsored by the Government of India in the Ministry of Commerce or the India Trade Promotion Organisation and the same is being held in public interest (Export - Import Policy 1997-2002, Handbook of Procedures 11, para 11.71.", "(Annexure V- A).", "It would not be out of place to mention that India Trade Promotion Organisation (ITPO), as part of its objective, has been engaged in various trade promotion activities such as exclusive India Trade Shows, participation in specialized and general trade fairs, Buyers-Sellers Meet, etc.", "Identifying and organizing participation of Indian trade and industry in relevant overseas fairs and exhibitions.", " (Page 12 of 114)  The ITPOs overseas programme is formulated on the basis of the inputs received from Ministry of Commerce and External Affairs, Indian missions abroad, EPCs, Commodity Boards, Apex organisations etc.", "Besides, detailed studies on foreign markets are undertaken to target those countries where potential exists for Indian products and services.", "While selecting destinations and events, the following parameters are also kept in mind: Share of Indian exports to various countries Leading importing countries Emerging markets Neighbouring countries ITPO as the nodal trade promotion agency of the country, has had a pioneering role in the national trade growth dynamics since its inception.", "Apart from its role in bringing the Indian businesses particularly those in SMEs sector close to global markets, it was first to use and popularize trade fairs as a tools of trade promotion within the country and abroad.", "In fact, ITPO (Ex-TFAI) has introduced the fair participation culture since 1977 and organised Indias participation in leading fairs abroad like: Milan International Fair, Milan Dares-Salam International Fair, Tanzania Baghdad International Fair, Baghdad Tripoli International Fair, Libya Cairo International Fair, Cairo Chicago Hardware Show, Chicago Australia International Engg Exhibition, Sydney Hiemtextile, Frankfurt International Hardware Show, Cologne Foodex, Japan Hannover International Fair, Hannover SIAL Paris The emphasis in ITPOs participation in foreign events was on projecting the industrial image of India highlighting the technological and managerial competence in different sectors of the industry and traditional items.", "ITPO has also introduced the concept of brand India promotion through India Show and organized exclusive India shows abroad: India Trade Exhibition 1977, Kuala Lumpur  (Page 13 of 114)  Indian National Exhibition 1978, Moscow (not legible) Indian Trade Exhibition 1980, Dubai Indian Exhibition 1981, Nigeria India Exhibition 1981, Singapore India Exhibition 1981, Jeddah India Exhibition 1982, Bahrain India Exhibition 1982, Kenya India Exhibition 1982, London India Exhibition 1983, Kuwait India Exhibition 1983, Venezuela India Exhibition 1984, Vietnam India Exhibition 1984, Mauritius India Exhibition 1985, Nepal and so on.", "A major Indian Exhibition was held at Moscow during August 1-30, 1978.", "The objective of this Exhibition was to present Indias achievements in science and technology against the background of its rich culture and history.", "This display was divided into 5 sectors covering the theme followed by product displays of engineering items comprising heavy light machinery, electronics and precision engineering, chemicals and pharmaceuticals, textiles and coir, plastics, sports goods, arts and crafts, processed foods, coffee, tea tobacco, spices, etc.", "The concept of India show is now being adopted by other apex organizations.", "Being a Section 25 company, unlike private organizations, ITPO operates on no-profit basis.", "ITPO encourages participation of MSME sectors in its activities.", "Most of the trade promotion organizations like EPCH, HEPC, APEDA, NSIC, KVIC, DC (Handicrafts, DC (Handloom), Tea Board, Ministry of Tourism, MOFPI etc, participate under the banner of ITPO.", "The project Indias achievements and policy initiatives, ITPO has been the Official organizer of Indias participation in World Expo series.", "ITPO had set up India Pavilion at Expos (Hannover 2000, Aichi 2005, Shanghai 2010).", "ITPO since its inception has been instrumental in promoting domestic trade and industry.", "A major event which was entrusted to the Authority immediately on its formation was the organising of a National agricultural Exposition, 1977, known as AGRI-EXPO77 which lasted for a month from November 13 to December 14, 1977.", "It was inaugurated by the then Prime Minister and the closing ceremony was performed by the then President of India.", "Sixteen State Governments, 5 Union Territories, 6 Central  (Page 14 of 114)  Ministries Department, 8 Public Sector Undertakings, 24 Private Sector Undertakings, 16-Export Promotion Councils and 8 Commodity Boards took part in this Exposition.", "In addition, there were 4 participants from abroad viz. Japan, Afghanistan, Hungary and USSR.", "The Exposition displayed in vivid detail the progress achieved in the field of agriculture and rural sectors in the country.", "Out of the estimated 18 lakhs persons who from various States and Union Territories.", "Students sponsored by local schools, colleges, universities and Agricultural Research institute were encouraged to visit the Fair.", "To highlight the important role of the small, cottage and tiny sector industries in the economy of the country, a National Small Industries Fair was held in Pragati Maidan from November 17 to December 19, 1978.", "The fair was organised primarily to project the following: a) the potential of small and cottage industries b) the role of small industries in the context of economic growth in India c) the role of State Governments in the development of small and cottage industries d) the export potential of small and cottage industries and e) the role of technical education in the promotion of small and cottage industries.", "The scope of display was to represent the small and tiny sectors covering inter alia electronic, electrical, mechanical and metallurgical products, rubber, plastic and chemical products, hosiery, handicrafts including carpets, leather products, handloom products, khadi and village industries, ancillary industries, as also the service facilities extended to these sectors by banks, financial institutions and export promotion agencies.", "The theme pavilion in the Fair was set up by the Small Industries Development Organisation (SIDO) which depicted the role of small scale sector in the national pursuit of serving the people and the progress made by it over the past 3 years.", "The Gandhi Mandap set up in collaboration with Gandhi Darshan Samiti projected India of Gandhijis dreams, his concept of Gram Swarajya and his contribution to the cause of socio-economic freedom of the nation through rational use of machines, preservation of human creativeness and full employment through the aid of small industries.", "The exhibition, which was inaugurated by the then Prime Minister of India on 17th November, 1978 was visited by over 12 lakh people.", "ITPO in its earlier years as Trade Fair Authority of India, initiated a project of holding Our India Exhibitions in the North Eastern States, Madhya Pradesh and Ladakh (Jammu Kashmir) with the objectives of Creating awareness of the progress achieved by the Nation as a whole in different fields, ii) Projecting specific possibilities in the areas of Agriculture, Rural Technology, Small Scale industries etc.", "depending on the needs and  (Page 15 of 114)  interest in each area and iii) Promoting national integration.", "The Exhibition series started with Kohima (Nagaland) during March 1987.", "During 1987-88, the second and third Exhibitions were held at Imphal (Mannipur) 14-26 April, 1987 and Leh (Ladakh-JK) 18-30 August, 1987.", "India International Trade Fair (IITF), the popular flagship event of ITPO, with over 6000 exhibitors from across the country and covering the widest range of products from micro enterprises in rural areas to multi-national companies, presents a panorama of trade and industry, technology and economic cooperation of countries from all over the world.", "This fair commences with the birth date of Pandit Jawahar Lal Nehru.", "IITF is the largest integrated trade fair with Business to Business and Business to Consumer components.", "It has emerged as the largest consumer goods fair in the Indian sub-continent and one of the largest trade fairs in the world both in terms of exhibitor and visitor participation.", "IITF has evolved as an iconic national event with a unique character.", "The unique feature of the fair is participation by almost all states and union territories of India apart from domestic and foreign companies.", "A number of government organisation use this platform to spread awareness about their programmes and policies among the public.", "ITPOs magnum opus, the IITF continued to be a major business attraction and boosts the economy activity of Delhi.", "Indian Engineering Fair of CII and Auto Expo of SIAM were organized much later than IITF.", "National Centre for Trade Information was inaugurated by the Honble Commerce Minister, Shri Pranab Mukherjee on October 8, 1994.", "National Centre for Trade Information (NCTI) is a joint venture of India Trade Promotion Organisation (ITPO) and National Information Centre (NIC) as a Company of the Ministry of Commerce under Section 25 of the Companies Act 1956.", "It has the responsibility to provide the latest trade, business and economic information, to help Indian as well as foreign enterprises in the promotion of trade from and to India.", "NCTI uses high speed NICNET National Info Highway for collection and dissemination of information.", "xxx xxx 5 .", "Following information may be submitted with respect to the booking of space venue for Events and related activities at Pragati Maidan, for the referred period from time to time.", "A copy of the guidelines policies issued by Ministry of Commerce and Industry.", "Ministry of Commerce and Industry has not issued any guidelines for booking of space venue for Events and related activities at Pragati Maidan.", "However, in exercise of powers, vide guidelines issued by Ministry of Commerce vide Letter Number 10(7)/95-TP (Vol II) dated 21.9.1999, ITPO approves holding of international exhibitions in India and abroad.", "In this context, Ministry of Commerce from time to time have issued certain directions which are annexed at Annexure VI, VII and VII.", " (Page 16 of 114)  Procedure and formalities stipulated.", "The detailed procedure and guidelines for Licensing of Exhibition space and facilities in Pragati Maidan are enclosed (Annexure IX).", "A copy of the related manuals guidelines circulars etc.", "of ITPO.", "As above.", "In brief salient terms and conditions for booking of Events and related activities at Pragati Maidan The salient terms and conditions for booking of space in Pragati Maidan are: Organizers wishing to hold their events in Pragati Maidan are required to submit application in the prescribed form with application money to ITPO.", "The application money payable is as per the space requirements of the organizers: Allotment is considered by Business Development Review Committee chaired by CMD, ITPO with ED and HODs as members keeping in view the following criteria: Slots for all regular events are reserved.", "Optimum Utilization of Halls.", "In case of competing demands, applications are considered on first-come-first served basis subject to payment of advance licence fee as per the approved schedule.", "Guidelines issued by ITPO in July 2006 for licensing of Exhibition space facilities in Pragati Maidan stated that Normally a gap of 15 days would be ensured between two events having similar(illegible).", "Vide decision dated Oct. 29 2007, it was included in the guidelines that in case of ITPO fairs, this gap will be 90 days before start or 45 days after the close of ITPO show.", "Vide decision dated Feb. 15, 2011, the guidelines were amended to The existing guidelines regarding gap between similar event of ITPO and third party event revised to 90 days prior and after the event.", "Vide decision dated Dec. 28, 2012, the time gap policy was  (Page 17 of 114)  further amended as There will be no time gap restriction between two third party events of similar profile in Pragati Maidan.", "A gap of 30 days before and 15 days after an ITPO fair and a third party fair of similar product profile will be maintained.", "Vide decision dated May 20, 2013, the time gap policy was again amended as Time gap between and ITPO fair and a third party fair of similar product profile reduced to 3 days before and after.", "However, no fairs on similar products profile to beheld concurrently in Pragati Maidan by third party organisers.", "e. xxx xxx xxx With a view to encourage different segments of third party organisers to organise events in Pragati Maidan, ITPO offers three slots of rentals of its facilities in a FY i.e. Lean period (May-July), Semi-peak period (April, Aug-Oct., March) and Peak period (Nov- Feb).", "This policy ensures that all small and big organisers avail the benefit of holding their event in one of the most established exhibition complex in the country.", "Whether there are any differences in applicable terms, conditions and rates, charges, fees etc.", "for booking of Pragati Maidan venue by ITPO itself vis-a-vis that for other players? If yes, please highlight the same along with rationale.", "As stated above, ITPO is a Govt.", "of India Enterprises entrusted with the responsibility of promoting external and domestic trade of India in a cost effective manner by organising and participating in international trade fairs in India and abroad.", "The main focus of ITPO is to support and assist small and medium (not legible) both in India and abroad.", "ITPOs events cover a wide variety of sectors such as handlooms, handicrafts, textiles, manufacturing, processed food, publishing and printing industry, agriculture, leather goods etc.", "Thus, ITPO organises events in Pragati Maidan with an objective of trade promotion and as such the cost of participation in ITPOs events in Pragati Maidan is required to be kept at a reasonable level as compared to the events organised by third party organisers.", "Pragati Maidan, as a venue for organising trade fairs, has been hosting trade fairs exhibitions for more than four decades now.", "Some of the major exhibitions organised in the past are ASIA 72, Agri Expo 77, National Small Industries 778 etc.", "Thus Pragati Maidan has been hosting trade fairs and exhibitions on behalf of Govt.", "of India since the time when Private players organisers in this industry were almost non-existent.", "Thereafter, in the later years, private organisers entered in the business of organising trade fairs and exhibitions in Pragati Maidan with a limited objective of commercial benefit.", "Thus, a third party event in Pragati Maidan is primarily organised by companies organisations with profit-motive and accordingly the cost of participation is usually kept high by them.", "ITPO generally targets small and medium enterprises to provide them a platform to exhibit their products at a reasonable cost.", "Further, in the events  (Page 18 of 114)  organised by ITPO, facilities in the form of discounted rentals, complimentary space publicity support are provided to the organisations like State Govt Union Territories, Central Leather Research Institute, NSIC CAPART, MSME, APEDA, training Institutes etc.", "which may not be possible by a private organiser.", "Keeping the above in view, ITPO, being owner of Pragati Maidan, does not invoice itself for using its facilities for trade promotion activities.", "Thus, the terms and conditions to the extent of space rent of halls are not accounted for while working out the cost of organising an event by ITPO. 6.", "xxx xxx xxx Explain the rationale for the time gap restrictions between events.", "Guidelines on time gap restrictions between two events of similar product profile were introduced by Ministry of Commerce vide guidelines issued through Letter Number 10(7)/95-TP (Vol II) dated 21.9.1999.", "It conveyed the need for such framework as It has been observed that a large number of organisers are coming forward to organise events in India and abroad and at times frequent exhibitions convey confusing signals to the participants and to business visitors from India and abroad when events on similar themes overlap.", "Lack of appropriate spacing of events also (line not legible) for the organiser and the nation.", "Further, there exists the need to have transparency in granting approvals by the Designated Authority.", "Thus, the need was felt to review the existing framework and a Committee was constituted by the Ministry of Commerce for the same.", "It further mentions that Any Indian entity wishing to organise any International trade Fairs exhibitions in India or abroad would be required to obtain a certificate from an officer of Government of India in the Ministry of Commerce not below the rank of Under Secretary or an office of India Trade Promotion Organisation duly authorised by its Chairman on this behalf to the effect that such exhibition, fairs or as the case may, similar show or display, has been approved or sponsored by the Government of India in the Ministry of Commerce or the India Trade Promotion Organisation and the same is being held in public interest (Export - Import Policy 1997-2002, Handbook of Procedures 11, para 11.71).", "(Annexure V-A).", "These guidelines have been issued amended by Ministry of Commerce from time to time in the following manner: Vide letter Number 10(7)/95-TP (Vol II) dated September 21, 1999, Ministry of Commerce issued the guidelines for holding international fairs in India and India trade exhibitions abroad by organisers other than the ITPO.", "As per these guidelines, time gap required between two international trade exhibitions fairs in India on the same theme and similar product profile within the same city would be 3 months and if held in another city, it would be one month.", "Further, for Indian exhibitions abroad, a gap of 12 months would be maintained between exclusive Indian Exhibitions Made in India Exhibitions.", "(Annexure VI).", "Vide letter Number D.O. Number 11(14)/99-TP dated Jan. 2, 2011, Ministry of Commerce amended the guidelines related to time gap  (Page 19 of 114)  required between two international exhibitions fairs in India on the same theme and similar product profile and directed that within the same city, time gap would be 45 days instead of 3 months as stipulated earlier.", "However, for IT, Telecom and Broadcasting sectors, there will be no need for maintaining any time gap, if held within the same city.", "Time gap of one month to be maintained between two international exhibitions fairs on the same theme and similar product profile in two different cities in India.", "(Annexure VII) Vide letter Number 11 (14)/99-TP dated Feb. 27, 2003 from Ministry of Commerce, it was conveyed that no time gap restriction between two exhibitions fairs irrespective of where the exhibition fairs are held.", "(Annexure VIII).", "The above guidelines were being followed by ITPO also.", "However, the time gap policy between two events of similar product profile in Pragati Maidan was introduced during the year 2006 after receipt of certain representations by ITPO from trade and industry.", "ITPO had received requests for booking of space for two events of similar product profile i.e. (i) Fespa World Expo India, Dec. 1-4, 2005 and (ii) World Expo 2005 expressed their resentment as ITPO allowed to hold concurrently another exhibition which according to them had similar produce profile.", "The matter was examined in detail and since both the events were booked, the other events dates were slightly modified to avoid conflict between the two third party organisers.", "With a view to avoid similar conflict in future ITPO management examined the possibility to have time gap between events on similar products in future.", "Similarly, in another case, ITPO received requests for booking of space for Jewellery Exhibitions from two organisers i.e. (i) Montgomery and (ii) ITE India for holding their events concurrently in the last week of Sept. 2006.", "Montgomery within 24 hours of approval of allotment of space to ITE, India raised an objection with ITPO on the issue.", "The reason for objection by one organiser to another similar event concurrently or without a buffer time is that holding similar events concurrently or without specified gap may lead to unhealthy competition and practices such as grabbing each others exhibitors, visitors and also taking advantage of publicity efforts of one organiser.", "Such time gap policy is also followed by leading exhibition venue owner worldwide.", "Thus such buffer time ensures avoiding of unfair or damaging competition among trade events and their clients.", "A copy of Booking Protocol of Hong Kong Convention and Exhibition Centre is enclosed (Annexure XI).", "After examining the above cases in detail, time gap restriction of 15 days between two events of similar product profile in Pragati Maidan was introduced by ITPO for fairs in Pragati Maidan during July 2006.", "However, after having detailed interactions discussions with industry and organisers and also with an objective to increase capacity utilisation of space in Pragati Maidan, the time gap requirement between two third party events  (Page 20 of 114)  have been done away on 21.12.2012 with subject to the condition that no concurrent events of similar product profile can be held.", "Time gap between an ITPO fair and a third party fair of similar product profile has been also reduced to 3 days before and after (for logistic reasons only).", "It is also brought to the knowledge of Honble Commission that after doing away with the time gap restriction between two events of similar product profile, one of the organisers whose event namely Jewellery Wonder scheduled to be held in Pragati Maidan from Sept. 28-30, 2013, vide letter dated July 3, 2013 has objected to the allotment of space by ITPO to another Jewellery Event i.e. Delhi Jewellery Gem Fair by M s UBM India scheduled from Sept. 21-23, 2013 in Pragati Maidan.", "A copy of this letter is placed as Annexure XI-A. The organiser of Jewellery Wonder is accusing ITPO for its unethical policies damaging Exhibition Industry as another jewellery event has been approved by ITPO in Pragati Maidan just one week before their event.", "The organiser has stated that many of their exhibitors have cancelled their stalls because of another jewellery Show approved by ITPO just one week before which is ruining their event.", "Highlight the differences in the provisions as applicable to events of ITPO and third party in case of similar product profile along with rationale thereof.", "It is reiterated that ITPO is a Govt.", "of India Enterprises entrusted with the responsibility of promoting external and domestic trade of India in a cost effective manner by organising and participating in international trade fairs in India and abroad.", "The main focus of ITPO is to support and assist small and medium enterprises to access markets - both in India and abroad.", "ITPOs events cover a wide variety of sectors such as handlooms, handicrafts, textiles, manufacturing, processed food, publishing and printing industry, agriculture, leather goods.", "Thus, ITPO organises events in Pragati Maidan with an objective of trade promotion.", "Pragati Maidan, as a venue for organising trade fairs, has been hosting trade fairs exhibitions for more than four decades now.", "Pragati Maidan has been hosting trade fairs and exhibitions on behalf of Govt.", "of India since the time when Private players organisers in this industry were almost non-existent.", "It is by virtue of immense success of fairs organised by ITPO (erstwhile TFAI) that the private sector got encouraged to enter into the business of organising trade fairs and exhibitions in India.", "ITPO has been instrumental in the evolution of trade fair industry been a sea change in the exhibition industry in India with the emerging of private players from within the country as also from overseas, the role assigned to ITPO by Govt.", "of India has not lost its significance.", "Today private organisers organise about 60-70 events annually at Pragati Maidan as compared to very few events during 80s and 90s.", "Most of these events are organised with the objective of commercial benefit and not solely for the cause of trade and industry.", "On the other hand, India Trade Promotion Organisation has been mandated to promote trade through various mediums particularly trade fairs and exhibitions.", "ITPO has been (organising) third party event in Pragati Maidan primarily organised by companies organisations with profit-motive and accordingly the cost of participation is usually kept high by them.", " (Page 21 of 114)  ITPO generally targets small and medium enterprises to provide them a platform to exhibit their products at a reasonable cost.", "Further, in the events organised by ITPO, facilities in the form of discounted rentals, complimentary space, and publicity support are provided to the organisations like State Govt.", "Union Territories, Central Leather Research Institute, NSIC CAPART, MSME, APEDA, training Institutes etc.", "which may not be possible by a private organiser.", "ITPO organise events in Pragati Maidan with an objective of trade promotion and as such the cost of participation in ITPOs events in Pragati Maidan is quite low.", "ITPO generally targets small and medium enterprises to provide them platform at a reasonable cost for promoting their products.", "In the events organised by ITPO like IITF, ILFA, Aahar etc.", "the facilities in the form of discounted rentals, complimentary space, publicity support are provided to the organisations like State Govt.", "Union Territories, Central Leather Research Institute, NSIC, CAPART, MSME, APEDA, FSSA, NIFT etc., which may not be possible by a private organiser.", "Moreover, with an objective to increase capacity utilisation of Pragati Maidan, the time gap restriction between ITPO event and a third party event on similar product profile has been gradually reduced to 3 days before and after an ITPO event.", "What is ITPOs criteria and procedure for deciding allotment of space in the exhibition when apart from ITPO there are also other interested parties for common area slot? Copies of the circulars guidelines issued by ITPO or Government in this regard may also be supplied.", "Allotment of space for fairs in Pragati Maidan is considered by a Business Development Review Committee (BDRC) chaired by CMD, ITPO with ED and HODs as members keeping in view the guidelines as applicable from time to time.", "(line not legible) guidelines are as below: Slots for all regular events are reserved.", "Optimum Utilization of Halls.", "In case of competing demands, applications are considered on first-come-first served basis subject to payment of advance licence fee as per the approved schedule.", "No time gap between two third party fairs of similar product profile subject to the condition that no concurrent events on similar product profile can be held in Pragati Maidan.", "Further time gap between an ITPO fair and a third party fair of similar product profile has been reduced to 3 days before and after (that too for logistic reasons only).", "Copies of Circulars Guidelines to this effect are already placed at Annexure IX and X. Please furnish names and addresses of your competitors in the Industry along with their market share and in terms of options available to the  (Page 22 of 114)  organizers of shows fairs exhibitions with regard to the venue for organizing such events.", "ITPO does not maintain any data regarding competitors in the industry along with their market share.", "However, as per the UFI Report researched and compiled by the Business Strategies Group - The Trade Fair Industry in Asia 2011, the details of other established exhibition venues in India are as below: It is also pertinent to mention that as per information available with ITPO, there are a number of venues providing space for exhibitions conventions purposes (including hotels) which are not referred in the above details.", "Whether any major exhibition fair has been shifted outside Delhi (NCR)? Please furnish the details of such events which have been shifted since 2009 onwards along with reasons for such shift.", "As per the information available with ITPO, most of the major fairs such as Autoexpo, Defexpo, Plastindia, World Book Fair, Acetech, Wills Fashion Week, Convergence, Printpack etc. continue to take place in National Capital Region.", "What are the applicable terms and conditions with respect to the Foyer areas while booking exhibitions space? Hall 8-11, 12-12A and 18 have foyers as integral inseparable part within the halls and thus the area of these foyers is included in the gross area of these  (Page 23 of 114)  halls while booking of exhibition space of these halls.", "Thus, organisers taking these halls for their events are not invoiced separately for the foyer areas since these areas are integral part of the halls.", "Hall 7 has four sub-halls i.e. Hall 7 ABC, 7D, 7E and 7 FGH, Multiple exhibitions can take place concurrently in these sub-halls.", "Hall 7 has two foyers of 500 sq mtrs each i.e. Foyer A and Foyer B which are located adjacent to sub-halls and serve as entrance lobby to sub-halls of Hall 7.", "These foyers are also given on rent on exclusive basis in case an organizer takes the complete hall 7 and there is a fixed rental of these sites on per sq mtrs per day basis.", "However, the area of these foyers is not included in the billing to organizers in case of multiple exhibitions take place in sub-halls since no organizer has exclusive right to the foyer area.", "Foyer A serves as entrance lobby to Hall 7ABC, 7D and 7E whereas Foyer B serves mainly as entrance lobby to Hall 7 FGH.", "Thus ITPO levies charges for this area i.e. for Foyer A for non-exclusive usage at the rate of 50 of the site rentals where organizers are also allowed construction of stands on pro-rata basis in the specified areas in the Foyer A. The same principle is also applied when two separate events take place in Hall 12 12A which has a common foyer.", "The copy of the circular dated 31.08.2012 is annexed herewith as Annexure XII.", "Please explain the rationale and justification of alleged compulsory condition to take foyer areas even though not desired by exhibitors.", "Hall 8-11, 12-12A and 18 have foyers which are integral inseparable halls and thus the area of these foyers is included in the gross area of these halls while booking of exhibition space of these halls.", "Thus, organisers taking these halls for their events are not involved separately for the foyer areas since these areas are integral part of the halls and stand construction is also permitted in these foyers.", "As per our experience, objections have not been received on this account in respect of above mentioned halls.", "The purpose of foyer are multiple and include providing entry exit, gathering disbursal, opening to staircases and services like toilets, transition space.", "Foyer also helps in quick crowd disbursal and management during the times of emergency such as fire, stampede etc.", "It is reiterated that the objection complaint in the instant case pertains mainly to compulsorily charging for Foyer A of Hall 7.", "It may be stated that Hall 7 comprise of four sub-halls i.e. Hall 7ABC, 7D, 7E and 7 FGH.", "Besides, there are two foyer areas i.e. Foyer A and B. Charges for Foyer are levied in respect of exhibitions held in Hall 7ABC, 7D and 7E only.", "No compulsory charges are levied in respect of Foyer B adjacent to Hall 7 FGH.", "This is pertinent to mention that Foyer A serves as main entrance lobby to Hall 7 and specifically for Hall 7ABC, 7D and 7E whereas Foyer B serves mainly as entrance lobby to Hall 7FGH.", "Foyer A is used invariably by all the exhibition organisers in Hall 7 for setting up of Registration counters exhibition stands (subject to Architecture norms of ITPO).", "Hence ITPO though is prudent to levy charges for Foyer A without granting exclusive right to any of the organiser for use of this area.", "These charges are levied compulsorily irrespective of the fact whether they want to use this space.", "The central idea behind charging for this area (i) to recover maintenance for Hall 7 (ii) to prevent unauthorized unregulated (use) of this area by any of the organiser to avoid conflict between multiple organisers regarding use of this area  (Page 24 of 114)  and ensure controlled allocation of this area and (iv) to ensure smooth conduct of the event, movement of visitors.", "The rental for the foyer in case of such non-exclusive usage are charged at the rate of 50 of the site rentals where organisers are also allowed constructions of stands on pro-rata basis in the specified areas in the Foyer A. The rentals are not very high and in case charging of rentals for the foyer area cannot amount to use of dominant position by ITPO for the aforesaid reasons.", "The same principle is also applied when two separate events take place in Hall 12 12A which has a common foyer.", "The copy of the circular dated 31.8.2012 is annexed herewith as Annexure XII.", "Details and manner of computation of foyer areas charges and the revenue collected by ITPO under this head for the referred period.", "Breakup of aforesaid data in terms of charges collected from other exhibitors and that on account of Events organized by ITPO itself.", "It is reiterated that the objection complaint in the instant case pertains mainly to compulsorily charging for Foyer A of Hall 7.", "It may be stated that Hall 7 comprise of four sub-halls i.e. Hall 7ABC, 7D, 7E and 7 FGH.", "Besides, there are two foyer areas i.e. Foyer A and B. Charges for Foyer are levied in respect of exhibitions held in Hall 7ABC, 7D and 7E only.", "This is pertinent to mention that Foyer A serves as main entrance lobby to Hall 7 and specifically for Hall 7ABC, 7D and 7E whereas Foyer B serves mainly as entrance lobby to Hall 7FGH.", "Foyer A is used invariably by all the exhibition organisers in Hall 7 for setting up of Registration counters exhibition stands (subject to Architecture norms of ITPO).", "The rental for the foyer in case of such non- exclusive usage are charged at the rate of 50 of the site rentals where organizers are also allowed construction of stands on pro-rata basis in the specified area in the Foyer A. The same principle is also applied when two separate events take place in Hall 12 12A which has a common foyer.", "During 2012-13, a revenue of Rs. 45.70 lakh was generated from compulsory charging Foyer A of hall 7 and common foyer of hall 12-12A and details are at Annexure XIII-A. As already mentioned above, Foyer B of hall 7 is optional for booking by organisers at the prevailing site rentals.", "For other halls, foyers are integral inseparable part within the halls and thus the area of these foyers is included in the gross area of these halls while billing of these halls to organizers.", "As stated above, ITPO does not invoice itself for usage of space (including Foyers) for holding its events in Pragati Maidan.", "Are there any differences in terms and conditions with respect to foyer areas for ITPO itself vis-a-vis other players (organisers)? In terms of technical construction guidelines, there is no difference in terms and conditions with respect to foyer areas for ITPO itself vis-a-vis other players.", "As explained with rationale in Question Number 5 (f) above, ITPO, being the venue owner, does not invoice itself for usage of space foyer areas for its events.", " (Page 25 of 114)  1 6 .", "What are the applicable terms and conditions with respect to the engagement of housekeeping facilities while booking exhibition space? The conservancy charges Rs. 1.20 per sq.", "mtr per day are levied to third party organisers for general cleanliness, hygiene, disposal of waste, maintenance of halls.", "The copy of the circular dated 30.03.2012 is annexed herewith as Annexure XIII.", "However, the organisers are free to bring in their own housekeeping agency during the tenancy of their event.", "It is not mandatory for organizers to engage housekeeping agency engaged empanelled by ITPO.", "The conservancy charges are levied by ITPO for general cleanliness, hygiene, (line not legible) over the entire area.", "The objective is general maintenance.", "It needs no emphasis that with a view to keep Pragati Maidan clean and hygienic, ITPO provides the entire gamut of conservancy services during the tenancy of an event.", "ITPO has accordingly engaged an outside agency exclusively at its cost for this job.", "ITPO incurs the conservancy cost for entire Pragati Maidan and only a part of this expenditure is recovered from the third party organizers by charging conservancy charges.", "Provide the rationale for the alleged requirement of exhibitors to necessarily engage with ITPOs empanelled agency(ies) for housekeeping.", "Details of the revenue collected since 2009 onwards from exhibitors on account of providing housekeeping agency by ITPO.", "Breakup of aforesaid data in terms of charges collected from other exhibition on account of events organised by ITPO itself.", "As stated above, it is not mandatory for third party Organisers to engage necessarily ITPOs empanelled agency for housekeeping during their events.", "However, it has been observed that in more than 80-90 of the third party events no outside housekeeping agency is brought in by the organisers and they avail the benefit of conservancy services of the agency empanelled by ITPO without incurring any additional charges for housekeeping.", "Details of revenue collected towards conservancy charges for third party fairs during 2012-13 are annexed at Annexure XIV.", "As stated above ITPO incurs the conservancy charges for entire Pragati Maidan and does not invoice itself on account of conservancy for individual events of ITPO.", "xxx xxx xxx Any other information relevant and related to this matter.", "A stated above, one of the organisers whose event namely Jewellery Wonder scheduled to be held in Pragati Maidan from Sept. 28-30, 2013 has objected to the allotment of space by ITPO to another leading organiser i.e. M section UBM India Pvt.", "Limited for holding of Jewellery Event i.e. Delhi Jewellery Gem Fair scheduled from sept 21-23, 2013 in Pragati Maidan.", "The organiser of Jewellery Wonder is accusing ITPO for its unethical policies damaging Exhibition Industry as another has been approved by ITPO in Pragati Maidan just one week before their Event.", "The organiser has stated that many of their  (Page 26 of 114)  exhibitors have cancelled their stalls because of the UBMs Jewellery Show approved by ITPO just one week before their event which is ruining their event.", "Emphasis supplied After two month, the DG issued second notice dated 03.10.2013 under Section 36(2) read with Section 41(2) of the Act and directed the appellant to furnish the information and documents on six points, which were already covered by the first notice.", "The appellant submitted detailed reply dated 14.10.2013, which was substantially similar to the reply submitted in response to notice dated 21.06.2013.", "Apart from issuing notices to the appellant, the DG summoned the representatives of Electronics Today and UBM India and recorded their statements on 11.12.2013 and 12.12.2013.", "Only four answers given by Shri section Swarn, Editor-in- Chief and CEO of Electronics Today, which may have some relevance are extracted below: Q. 7.", "Please substantiate your contention that the product profile of Smart card Expo is not similar to that of India International Security Expo held by ITPO Ans.", "The Indian International Security Expo organized by ITPO is being held at Pragati Maidan since 1984.", "Its product profile is mainly of physical nature and used by army, police and other security forces, whereas the product profile of Smart card Expo is the oriented technology information, which is covered by Information Technology.", "It is a niche technology which was not clashing with the product profile of the India International Security Expo.", "To prove this, we had compiled the list of participants in both the exhibitions and found that not even a single company was common in the two exhibitions.", "This fact was highlighted by us to the ITPO authorities while applying for the venue for holding our Smart card Expo 2012.", "What was the response of ITPO to your above submissions Ans.", "It informed that the competent authority of ITPO has not approved our requested for holding the show at Pragati Maidan.", "I shall provide the copy of their reply.", "What is the normal timeframe within which your applications for venue are decided and communicated to you.", "There is no specific rule related to timeframe within which ITPO is bound to decide and communicate their decision to the applicants for venue allotment to hold their event.", "For e.g. we had applied for holding Smart card Expo 2011 (September 28-30) on 17th June, 2010 and they replied on 28th October, 2010 to convey their decision that my request has been denied.", "Q. 10.", "When were you informed that the venue at Pragati Maidan will not be available in 2010 on account of Common Wealth Game.", "ITPO had issued circular for the information of all exhibitors who were organizing their events at Pragati Maidan that the venue will not be available during a certain timeframe of 2010 due to the Common Wealth Games.", "Therefore, we organized our event in Mumbai.", "Since we were aware of this  (Page 27 of 114)  fact in advance, we organized our exhibition and conference by emphasizing the product profile suitable to the Banks and other Financial Institutions since they are primarily based in Mumbai.", "However, our feedback from exhibitor was not in favour of changing the venue from New Delhi to Mumbai because the ultimate user i.e. Central Government was based in New Delhi.", "Therefore we decided not to continue our event in Mumbai despite it being cheaper and good response.", "Q. 11.", "Are you aware of the information dated 10.12.12 filed by Indian Exhibition Industry Association against ITPO and Ministry of Commerce and Industries and its contents.", "I am not aware of the dates but for the Association, it was obligated to take action against the bitter experience of several exhibitors who were victim of the three months gap policy (as explained above) ITPO and some of them had complained to the Association about this fact.", "However, the Association chose to cite the examples of our experience.", "Similarly, the replies given by Shri Sanjay Bose, Head Corporate Affairs of UBM India to questions Numbers 5 to 9, which may have some relevance to this case are reproduced below: Q. 5.", "What is the similarity in product profiles of IISE organized by ITPO and IFSEC organized by UBM? Ans.", "Both the exhibitions are in the same segment of the industry i.e. fire, safety and security.", "What is the process followed for organizing an international exhibition like IFSEC India? Ans.", "As the current market scenario is very competitive and there is huge increase of exhibitions, trade fair activities in India most of the organizers in India are blocking venues three years in advance particularly at Pragati Maidan owned by ITPO.", "What are the parameters kept in mind while deciding the venue of an international event ? Ans.", "We choose a venue keeping in mind the location of the venue, the exhibitor profile of the said exhibition, proximately (proximity) to the airport, hotels, Delhi flight connectivity to various locations in India and abroad for the advantage of the exhibitors, delegates and visitors.", "Another factor is the segment to which the exhibition pertains to, we basically see that maximum numbers of exhibitors are within radius of 100 Km.", "What are the various options available to you in India to hold international exhibition like IFSEC ? Ans.", "Very few exhibition venues in India namely, India Expo Centre, Greater Noida and Codissia Trade Fair Complex, Coimbatore which provide all amenities to organizers to host international exhibition.", "The others provide only few amenities.", "What is the normal timeframe within which your application for venue  (Page 28 of 114)  are decided and communicated to you ? Ans.", "It is between 7 days to 45 days in case of Pragati Maidan and in case of other venue it is 24 hours.", "After recording the statements of the representatives of the two entities, the DG sent yet another notice dated 13.12.2013, to which reply dated 20.12.2013 was submitted on behalf of the appellant.", "The DG also issued notices to the National Small Industries Corporation Limited, India Habitat Centre and International Trade Export Centre Limited (Noida).", "One of them, namely, National Small Industries Corporation Limited submitted reply dated 23.09.2013 but the remaining two did not respond.", "After completing the investigation, the DG submitted report dated 14.12.2014, which was divided into 16 parts and was accompanied by copies of the guidelines issued from time to time for organisation of events at Pragati Maidan and circulars issued, e-mail dated 14.02.2014 sent by the Business Development Review Committee of the appellant and print-outs taken from the websites various venues providing facilities for fairs and exhibitions.", "In Part 9 of the report, the DG identified the following issues: Whether there is any conflict of interest amongst various roles of being performed by ITPO resulting in competition issues ? ii.", "Whether ITPO is dominant in the defined relevant market? iii.", "Whether the time gap restrictions imposed by ITPO amount to imposition of unfair conditions? iv.", "Whether the time gap restrictions apply uniformly to ITPOs own events vis- -vis third party events or are discriminatory? Whether the policy regarding determination of similar profile events is transparent, fair? vi.", "Whether ITPO takes unreasonable time to confirm the bookings in respect of that space amounting to imposition of unfair and discriminatory conditions? vii.", "Whether ITPO has been applying its guidelines regarding reserving slots for regular events in fair and non discriminatory manner? viii.", "Whether ITPO has been applying its guidelines regarding allocation of venues on first-cum-first basis in fair and non-discriminatory manner.", "Whether ITPO applied its policy to charge the exhibitors for foyer area along with allocated area, other charges, in fair and non-discriminatory manner? Whether ITPO policies regarding engaging house keeping agency fair and non-discriminatory? xi.", "Whether the recently announced policies of ITPO are uniform and competition friendly and rectify the earlier anomalies, if any ?  (Page 29 of 114)  The DG then undertook the exercise for determination of relevant market.", "He referred to Section 2(r), (s) and (t) read with Section 19 (6) and (7) of the Act, took into consideration the information relating to various venues available in the country and defined the relevant market as providing venue in International and National trade fairs exhibitions in Delhi.", "The DG next made assessments of dominance.", "He analysed the factors enumerated in Section 19(4), took into consideration the market share of the appellant, its size, location, importance vis- -vis other exhibition spaces available in Delhi and other parts of the country, the factors which attract the enterprisers to Delhi, referred to order passed by the Commission in Case Number 48 of 2012 PDA Trade Fairs Vs.", "ITPO and held that the appellant is in a dominant position in the relevant market.", "He also considered whether the appellant was an enterprise within the meaning of Section 2(j) of the Act and returned an affirmative finding by relying upon the definition of the term person.", "After completing this exercise, the DG examined the following facets of the abuse of dominance: Whether there is any conflict of interest amongst various roles of being performed by ITPO resulting in competition issues ii.", "Whether the time gap restrictions between two events amount to imposition of unfair condition iii.", "Whether the time gap restrictions have been stipulated, amended and applied in unfair and discriminatory manner iv.", "Whether the time gap guidelines revised pursuant to directions of Commission are uniform and non discriminatory Whether ITPO imposes unfair and discriminatory condition in processing the applications received for organizing events vi.", "Allegation related to Foyer Area vii.", "Allegation related to choice of engaging House Keeping Agency viii.", "Allegations related to non charging of rental, foyer charges by ITPO for its own events ix.", "One sided nature of Agreement Terms and Conditions 2 5 .", "While dealing with the first facet of the abuse of dominance, the DG took cognisance of the multiple functions performed by the appellant, which include organisation of its own events at Pragati Maidan and licencing of venue to 3rd parties and allocation of spaces for holding events at Pragati Maidan and observed: Against this background it can be stated that there exist conflict of interest in the multiple roles of ITPO as the provider of venue to the event organizers, as well as it simultaneously being one of the event organisers who at times competes with third parties for organizing events at Pragati Maidan.", "The fact that ITPO also processes the applications of the third party organisers and decides the time gap restriction, etc.", "further extenuate the conflict of interest.", "It is also observed that pursuant to guidelines issued by Ministry of Commerce vide letter Number 10(7)95-TP (Vol.", "II) dated 21.9.1999, ITPO along with Ministry of Commerce have been authorized to approve holding of International Trade Fair Exhibitions in India and abroad by issuing approval  (Page 30 of 114)  letters certificates as per the provisions of Handbook of procedure of the Export and Imports policy of the Government of India.", "It is understood that the same is with the objective to avoid duplication of efforts while ensuring proper timing, ensure that the same are held in public interest and also to facilitate trans border movement of exhibits through the custom authorities.", "However, in the given scheme of things there is scope for ITPO to favour its own events vis- -vis competing third party organized events at Pragati Maidan.", "Hence it is found that there exist elements of conflict of interest in different functions being performed by ITPO under various capacities related to organization of events at Pragati Maidan particularly that of a venue provider, event organizer, policy maker, approver for International events etc., leading to competition concerns.", "As a result it is in a position to exercise its dominance in the relevant market of venue provider in Delhi to its advantage at the expense of competitors in the other relevant market organization in India.", "This aspect would provide added strength to ITPO which has bearing on its alleged anti competitive conduct under the provisions of the Act which has been examined hereunder.", "The DG next considered history and chronology of the time gap requirements for similar events, referred to the guidelines framed by the Ministry of Commerce and Industry, Government of India and amendment made therein from time to time, the guidelines issued by the appellant in July, 2006 for licencing of exhibition spaces and facilities in Pragati Maidan and amendments made therein by various circulars including those dated 28.12.2012 and 25.05.2013, the justification offered by the appellant for time gap policy and observed: In view of the analysis of the submissions and documents mentioned above, there appears to be an economic rationale for the time gap restriction between similar profile international events to avoid confusion, free riding concerns and to protect in a reasonable manner the interest of potentially competing events.", "The available information has revealed that internationally also time gap restrictions are followed.", "Against this background, notwithstanding the fact that the Ministry had in the interest of transparency and fairness decided to remove the time gap restrictions as such the time gap introduced by ITPO on its own in 2006 for competing events at Pragati Maidan, does not by itself amount to imposition of unfair condition on the exhibitor.", "Rather as discussed above, the requirement in certain circumstances may serve to promote healthy competition, depending on the terms and conditions.", "However, in this context, it was further examined whether the manner in which these time gap restriction guidelines were stipulated, amended and applied by ITPO, from time to time, are indicative of any abusive conduct in exercise of its dominant position in the relevant market.", "These aspects have been dealt in the succeeding paras.", "Emphasis added The DG then considered the third facet of the abuse of dominance.", "He again referred to the guidelines and circulars issued by the appellant between July, 2006 and May, 2013 on the issue of time gap requirement, referred to the relevant parts of  (Page 31 of 114)  reply dated 13.08.2013 submitted by the appellant in response to the notice issued by the DG and held that adopting of different parameters in relation to the time gap restrictions for itself and third party exhibition organisers amounts to infringement of Sections 4(2)(a)(i), 4(2)(b)(i), 4(2)(c) and 4(2)(e) of the Act.", "The discussion contained in the investigation report on this aspect is extracted below: From the details of applicable guidelines prevalent from time to time it has emerged that ITPO has been adopting different parameters in terms of time gap restrictions for itself as exhibition organizer vis- -vis other third party exhibition organizers.", "It is observed that the time gap restriction at Pragati Maidan was introduced in 2006.", "As per the guidelines, a substantially higher time gap, was maintained between an ITPO event and a third party event of similar product profile as against that between two third party events of similar product profiles.", "Minor changes to these guidelines were made during 2006-2010.", "On 15.2.2011, the time gap available to ITPO events (after the event) was substantially enhanced from 45 to 90 days.", "This translated into a comparative advantageous terms for ITPO events as compared to third party organizers due to higher buffer period available to the former.", "ITPO in their response have inter-alia justified the same by stating that ITPO primarily cater to small and medium industries and are not governed by commercial considerations.", "In this regard it is noted that as per the Annual Report for the year 2011-12, the excess of income over expenditure amounted to Rs. 183.03 Crores which was carried forward to the Reserve and Surplus Account for the utilization of the same in furtherance of its objectives.", "As on 31.3.2012, the Reserves and Surplus of ITPO was Rs. 960.37 Crores (Annexure 14).", "Hence it is observed that over the years ITPO has been earning high returns profits from its operations.", "Further, available information also reveals that very often there are common exhibitors, visitors, in the events of similar profile organized by ITPO and third parties.", "Infact vide letter dated 9.1.2014 (Annexure 15) ITPO has confirmed that there are a number of common exhibitors in ITPOs fairs and third party fairs organised in Pragati Maidan and has furnished details of few instances.", "Hence, admittedly on several occasions there is an overlap of participants between the exhibitors of ITPO organized events and third party events thereby indicating that ITPO does not necessarily organize only those events where private third party organizers would not be interested.", "In this context it is found that all two third party events are treated differently with respect to time gap restrictions as compared to an ITPO own events and third party event, irrespective of the sector, profile of the industry, participants, etc.", "Thus the rationale offered by ITPO does not fully explain the issue of blanket difference in the time gap restrictions applicable depending on whether the event are being organized by ITPO or third parties.", "In view of the lesser stringent time gap restrictions applicable for ITPO events, the exhibitors are likely to prefer to participate in an ITPO organized  (Page 32 of 114)  event rather than a third party event of similar profile.", "As a result of this difference in rules, the ITPO events stand to gain vis- -vis third parties events.", "It has been informed by ITPO that these changes were decided in the meetings of the Business Development Review Committee.", "Minutes of the meeting dated 15.2.2011, through which the time gap restrictions between ITPO and third party events was enhanced to 90 days (after the event) is Annexed.", "However, these documents also do not reveal any background and reasons due to which the time gap restrictions applicable were revised in favour of ITPOs own events.", "In this context it is pertinent to mention that in view of the multiple roles of ITPO and inherent conflict of interest and considering the dependence of organizers and exhibitors on Pragati Maidan as a venue particularly for International events, ITPO is placed in a position to stipulate terms which confer an unfair competitive advantage to it as an organizer.", "On the basis of the aforesaid examination of facts it is found that by stipulating favourable time gap restrictions for its own events as compared to third party organized events ITPO imposed unfair and discriminatory conditions on the third party event organizers at Pragati Maidan.", "Further, increase in the time gap restrictions for holding third party events, before and after ITPO own events of similar profile, amounted to denial of market access to the third parties who compete with ITPO for organizing events at Pragati Maidan.", "Thus it is also observed that ITPO used its dominant position in the relevant market of venue provider in Delhi for organizing events to protect and enhance its position in the relevant market of event organization.", "In the process, due to time gap restrictions the availability of venue for conducting events of similar profile is also limited particularly in case of large time gaps, thereby limiting provision of these services.", "Hence, it is found that the aforesaid conduct of ITPO amounted to infringement of section 4(2)(a)(i), 4(2)(b)(i), 4(2)(c) 4(2)(e) of the Act.", "Emphasis supplied The DG then referred to the circulars issued on 28.12.2012 and 27.05.2013 and made the following observations: From the perusal of the revised circulars and discussions above, it is observed that the discriminatory features that earlier existed due to non parity in time gap restrictions applicable to two third party events and that between an ITPO and third party events have been largely removed through the amendment dated 20.5.2013, barring a small element of comparative advantage that ITPO fairs continue to enjoy due to the 3 days of time gap restriction which is not available between two third party events.", "On the issue of the alleged discrimination in the processing of applications of the private parties, the DG referred to the cases of UBM India and Electronics today, compared the IFSEC event of UBM India and Smart Cards Expo of Electronics Today with India International Security Expo and recorded the following observations and  (Page 33 of 114)  conclusion: From the aforesaid analysis it is found that ITPO imposed discriminatory condition on UBM by giving preferential treatment in processing and scheduling of its own event IISE over the other institutionalized third party event IFSEC of UBM.", "UBM was constrained to shift its event from regular time slot to alternate period during 2011 which amounted to imposition of unfair condition.", "As result of the conduct and amendment of time gap restrictions made applicable for third parties vide circular dated 15.2.2011, UBM could not organize event at Pragati Maidan in 2012 even as per revised schedule resulting in denial of market access.", "From available information it is observed that Electronics today had in their letter cited the basis of their contentions that these events according to them were not similar and requested for reconsideration of decision.", "While, their request was not approved by the competent authority, the basis on which these two events were treated as similar was apparently not communicated to Electronics Today.", "From the information furnished by ITPO to this office, it appears that there were some similarities in terms of participants and areas covered.", "Hence, in view of the same, it does not stand established that these events were not similar.", "Notwithstanding that it is observed that on account of the enhanced time gap restriction made applicable between an ITPO and third party event through circular dated 15.2.2011 coupled with shifting of ITPOs own event to the slot regularly held by Smart Card Expo in the past as per the decision taken in BDRC meeting dated 9.2.2010, Smart Card Expo could not be held at Pragati Maidan and as demonstrated by the entity resulted in loss of business and status.", "It also appears that ITPO has to a large extent discretion while deciding similarity of profiles of events since the parameter followed in this regard appears to be very broad and the specific facts are neither mentioned in the minutes nor communicated to the parties concerned.", "ITPO being the entity processing the applications as well as one of the exhibitors is placed in a position to use the procedures for processing of applications to its advantage and to the detriment of other competing exhibitors.", "It is noted that there is no stipulated time frame within which the application of third parties for grant of space for exhibitions are to be decided.", "This provides leeway to ITPO to accord preferential treatment to its own events vis- -vis third party events.", "In the absence of any other venues of the size and importance of Pragati Maidan in terms of its location, the big and the regular exhibitors of it is the first preference for such exhibitors.", "Accordingly, they are considered to abide by the procedures and policies which at times could be inconsistent and frequently amended.", "Any shift to an alternate venue particularly at a short notice is at the cost of loss of footfall and business as appears from the aforesaid instances.", "Hence from the aforesaid examination it is observed that by taking long time  (Page 34 of 114)  in confirming the allotment dates, by not deciding applications on first come first basis and that of reserving slots for regular fairs, coupled with altering of time gap restriction guidelines to its advantage, giving preferential treatment to its own fair over competing fairs, ITPO has imposed unfair conditions, discriminatory conditions and was denying access to third parties to use the venue and limited the provision of services of holding events at Pragati Maidan.", "It also used its dominant position as venue provider for holding events in Delhi to protect its activities in related market of organizing events.", "Against this background of an in view of preferential treatment accorded to its own exhibitions by ITPO, uncertainty attached with the application of the third party exhibitors, the potential customers would always prefer ITPO as the exhibitor vis- -vis other exhibitors for the same product profiles.", "The conduct therefore further amounts to imposition of unfair and discriminatory condition on the exhibitors competing with its ITPO owned exhibitions.", "Thus from the analysis of the procedures, guidelines and facts related to specific instances discussed above the aforesaid conduct of ITPO is found to be in contravention of Section 4(1) read with Section 4(2)(a)(i), 4(2)(b)(i), 4(2)(c), 4(2)(e) of the Act.", "As regards next two facets relating to Foyer Area and House Keeping Agency, the DG held that no violation of the provisions of the Act has been established.", "In the last, he considered whether the terms and conditions of the agreement were one- sided and held they were so and the appellant, in exercise of its dominant position, contravened Section 4(2)(a)(i) of the Act.", "In Part 14 of the report, the DG reiterated the findings recorded on various facets.", "He finally considered the issue of contravention and liability under Section 48 of the Act, prepared a table showing the names of the persons who attended the meetings held between 29.10.2007 and 20.05.2013 but did not find any particular person responsible for anti-competitive conduct.", "The Commission considered the investigation report and directed that copies thereof be supplied to the parties to enable them to file their reply objections suggestions.", "The appellant submitted reply dated 25.03.2014.", "Paragraphs 2 to 4 of the reply, on a portion of which reliance has been placed by the Commission for holding that the appellant has admitted its dominant position in the relevant market, read as under: Whether ITPO is dominant in the defined relevant market? ITPO is a 100 Govt.", "owned company incorporated under Section 25 of Companies Act 1956 and functions under the administrative control of Department of Commerce in the Ministry of Commerce and Industries.", "It is mandated with the responsibility of promoting trade of India in a cost effective manner through the medium of trade fairs.", "As such, ITPO is the oldest and original player and only PSU in this industry, Pragati Maidan, as a venue for organising trade fairs, has been hosting trade fairs for more than four decades now.", "Pragati Maidan has been hosting trade fair and exhibitions on behalf of Govt.", "of India since the time when Private players organisers in this industry were almost nonexistent.", "It is by virtue of immense success of fairs organised by ITPO (erstwhile TFAI) that the private sector got  (Page 35 of 114)  encouraged to enter into the business of organising trade fairs and exhibitions in India.", "ITPO has been instrumental in the evolution of trade fair exhibition industry in the country by popularising exhibition culture in the country.", "We hereby respect the firings of the investigation on the point that ITPO is dominant player in the exhibition industry by virtue of owning one of the largest exhibition venue at a prime location in the capital of the country.", "The venue is speared over an area of 123 acres and as a venue has significant area in India in terms of covered exhibition space, number of events and revenue generation.", "However, ITPO has never attempted to take advantage of its dominant position in the India exhibition industry and has been providing its space facilities to private organisers in a transparent manner.", "In fact, most of the leading third party fairs in India i.e. AutoExpo, Plastindia, World Book Fair, Acetech, Defexpo, Wills Fashion Week etc.", "have earned global recognition by successful holding of these events regularly in Pragati Maidan over the years.", "As stated above, a major part of ITPOs revenue comes from these third party fairs taking place in Pragati Maidan and ITPO would not think of denying space to its esteemed clients i.e. third party organisers.", "In a one-off incidence in the year 2011, referred to in the instant case of Security Fairs, there was never an effort or motive of denying space to any organiser, rather the space could not be allotted under the extant policy of time gap where the ultimate objective was to provide opportunities to MSMEs to participate in ITPOs fairs at a reasonable cost.", "Whether the time gap restriction imposed by ITPO amount to imposition of unfair conditions ? Guidelines on time gap restrictions between two events of similar product profile were introduced by Ministry of Commerce vide guidelines issued through Letter Number 10(7)95-TP (Vol II) dated 21.9.1999.", "It conveyed the need for such framework as It has been observed that a large number of organisers are coming forward to organise events in India and abroad and at times frequent exhibitions convey confusing signals to the participants and to business visitors from India and abroad when events on similar themes overlap.", "Lack of appropriate spacing of events also lead to poor business response causing loss of opportunities for the organiser and the nation.", "Further, there exists the need to have transparency in granting approvals by the Designated Authority.", "Thus the need was felt to review the existing framework and a Committee was constituted by the Ministry of Commerce for the same.", "It further mentions that Any Indian entity wishing to organise any International Trade Fairs exhibitions in India or abroad would be required to obtain a certificate from an officer of Government of India in the Ministry of Commerce not below the rank of Under Secretary or an officer of India Trade Promotion Organisation duly authorised by its Chairman on this behalf to the effect that such exhibition, fairs or as the case may, similar show or display, has been approved or sponsored by the Government of India in the Ministry of Commerce or the India Trade Promotion Organisation and the same is being held in public interest (Export-Import Policy 1997-  (Page 36 of 114)  2002, Handbook of Procedures 11, para 11.71.", "These guidelines have been issued amended by Ministry of Commerce from time to time in the following manner: It is pertinent to mention that time gap restriction w.r.t.", "two fairs on similar product profile (intercity and intra-city in India) were introduced in the year 1999 and subsequently removed in the year 2003 by Ministry of Commerce and Industry in the context of issuance of above approval letters by ITPO in a broader context only and not in the context of Pragati Maidan as a venue.", "Between 2003 and 2006, there was no time gap restriction between two fairs of similar product profile at Pragati Maidan.", "Time gap restrictions between two events of similar product profile at Pragati Maidan were introduced in July 2006 by ITPO on the basis of representations received from third party organisers.", "Page 40 of the CCI Investigation Report may kindly be referred to  (Page 37 of 114)  in this regard.", "The reason for objection by one organiser to another similar event concurrently or without a buffer time is that holding similar events concurrently or without specified gap leads to unhealthy competition and practices such as grabbing each others exhibitors, visitors, enjoy free riding on others publicity efforts etc.", "There was never any commercial objective behind introduction of such a policy by ITPO, rather ITPO lost revenue through this policy by not leasing the available space to third party organisers who were willing to organise event of similar product profile in contradiction of the mandatory time gap requirement between two such events.", "As submitted by us earlier, this is an international practice followed by leading venue owners worldwide.", "Page 41 of the CCI Investigation Report may kindly be referred to in this regard.", "Thus it was done to avoid unhealthy competition and promote healthy competition amongst events of similar product profile.", "Recently, UFI (The Global Association of the Exhibition Industry for trade show organisers, fairground owners, national and international associations of the exhibition industry and its partners) held its Open Seminar in Asia 2014 at Bangalore on March 6-7, 2014 which was attended by all leading exhibition venue owners, fair organisers and service providers from India including officials from ITPO, CMD, ITPO also attended the seminar.", "During one of the presentation on Exhibition Venue it was highlighted that Theme Protection Element through time gap is one of the important criteria for an organiser while selection finalisation of venue for holding the exhibition.", "Whether the time gap restrictions apply uniformly to ITPOs own events viz a viz third party events OR are discriminatory? Regarding time gap restriction between an ITPO fair and a third party fair of similar product profile, we humbly accept that these were not at par with the time gap restriction between two third party events of similar product profile.", "The time gap required (earlier) between an ITPO fair and a third party fair of similar product profile was higher than the time gap applicable to two third party fairs of similar product profile.", "However, we would again like to submit here that the earlier management in ITPO (2007-2011) was of the view that third party fair organisers, with the objective of making higher profits, sometimes exploit exhibitors by charging higher participation cost from them as their events have been established.", "Thus, participation by MSMEs become difficult in such established fairs.", "Since ITPO does not organise fairs with the solo objective of surplus generation and the cost of participation in ITPOs fair is kept low, the management at that time felt the need of promoting MSMEs and accordingly introduced a larger time gap between an ITPO fair and a third party fair of similar product profile.", "It is pertinent to mention that most of the senior officers, who were part of this decision, have retired or no more in the services of ITPO.", "It may be observed here that with this objective of promoting participation by small enterprises, ITPO has forgone its revenue in terms of the opportunity cost lost for available space for competing events.", "Such a policy was never brought with the objective of denying market access to any third party organiser.", "After change in management during the year 2012, a number of reform measures were undertaken taking into account aspirations of ITPOs clients.", " (Page 38 of 114)  Meetings deliberations were held regularly with stakeholders to take their feedback.", "Accordingly, in one of the meeting taken by ITPO with third party organisers on Nov. 8, 2012, the organisers put forward the issue of time gap restrictions between two events of similar product profile at Pragati Maidan.", "The request of the organisers were considered by ITPO and accordingly the policy was liberalised in Dec. 2012 by ITPO and notified, much before the receipt of the first communication from Honble CCI on the subject.", "The time gap was significantly reduced from 90 days before and after ITPO fair of similar product profile to 30 days before and 15 days after.", "Time gap restriction of 15 days between two third party events of similar product profile was also removed.", "After giving undertaking to Honble CCI, the policy was further modified to bring uniformity in organising exhibitions at Pragati Maidan and the time gap between ITPO fair and a third party fair of similar product profile was reduced significantly to 3 days.", "The requirement of 3 days gap is just for logistics reasons in terms of removal of publicity advertising material from the premises.", "Third party organisers remove all their exhibits, construction materials, brandings etc.", "immediately during the night hours after conclusion of their fair by hiring a number of vendors, service providers, labours, machineries etc.", "However, ITPO, being a Govt.", "Organisation is required to follow all labour legislations, specified working hours as per rules, safety fire regulations etc.", "and accordingly 3 days gap has been kept to take care of these requirements.", "After receipt of the replies submissions of the parties, the Commission framed the following issues: Issue 1: What is the relevant market in the present case? Issue 2: Whether OP 2 is dominant in the relevant market? Issue 3: If yes, whether OP 2 has abused its dominant position within the meaning of section 4 of the Act? 3 4 .", "On each of the above issues, the Commission merely referred to the findings observations recorded by the DG and approved the same.", "As regards Issue No. 1, the Commission referred to the investigation report and recorded its agreement with the findings recorded by the DG by making the following observations: The DG noted the relevant product market as provision of venue for organizing national and international exhibitions and trade fairs.", "It may be noted that the allegations in the present case relate to the policies and procedures stipulated by OP 1 and OP 2 with respect to licensing of venues to exhibitors for conducting fairs and exhibitions.", "In order to attract exhibitors and visitors, the venue for exhibition plays a key role.", "The venues which regularly hold exhibitions and trade fairs ideally have large space to accommodate multiple exhibitions, are centrally located and are well known on the world map and are, therefore, most preferred by the exhibitors particularly for organizing international and national exhibitions and trade fairs.", " (Page 39 of 114)  1 6 .", "Hence, the venues regularly used for organizing national and international exhibitions and trade fairs can be distinguished from venues for other kind of events in terms of parameters such as physical characteristics, consumer preferences.", "In view of the above, the Commission is of the opinion that the relevant product market delineated by the DG i.e. market for provision of venue for organizing national and international exhibitions and trade fairs is correct.", "The DG delineated the relevant geographic market in the present case as Delhi.", "As highlighted in the DG report, Delhi has been hosting exhibitions at Pragati Maidan since 1977 and it has a rich historical background as a venue for holding international and national exhibitions and trade fairs.", "Factors like better public transport system, connectivity to airports, railway stations and inter-state bus terminals, centralized location, nearby hotels, substantially large exhibition and open display space at its venue Pragati Maidan, location of Central and State Ministries etc.", "also distinguish and create preference for exhibitors as well as visitors for Delhi over other places in the country.", "Further, as brought out in the DG report, such fairs usually require liaisoning and approvals from governmental authorities which makes Delhi as an advantageous location as a venue.", "Lastly, it may also be highlighted that Delhi being the capital of the country also adds to its attractiveness as a preferred location.", "The Commission is satisfied with DGs observations on this aspect.", "Further, in terms of the available infrastructure of other exhibitions centres in comparison to Pragati Maidan, the conditions of competition of supply and demand for venues for national and international exhibitions in Delhi are different from those prevailing outside.", "Further, the factors such as consumer preference, adequate facilities, transport cost etc. make Delhi a distinct destination for holding international and national exhibitions and trade fairs.", "Considering all the above stated factors, the Commission is of the view that Delhi as a venue for holding international trade fairs and exhibitions cannot be substituted with other venues in NCR or other cities in the country.", "Therefore, the relevant market in the present case is provision of venue for organizing international and national trade fairs exhibitions in Delhi.", "On the issue of dominance, the Commission agreed with the finding recorded by the DG and buttressed the same by the alleged acceptance thereof by the appellant.", "While dealing with Issue Number 3, the Commission did not advert to the detailed reason put forward by the appellant before the DG vide reply dated 13.08.2013 and also in reply dated 25.03.2014 filed after receiving the copy of the investigation report and mechanically endorsed the finding recorded by the DG.", "This is borne out from paragraphs 25 to 27 of the order under challenged, which are reproduced below: The DG conducted a detailed investigation into the various issues and allegations arising out of the information.", "The main allegation of the informant pertained to arbitrary and discriminatory time gap restrictions imposed by OP 2 between two events.", "Though the DG did not find time gap restrictions per se as abusive, the conduct of OP 2 in stipulating, amending and applying the same was found to be abusive in terms of the provisions  (Page 40 of 114)  contained in sections 4(2)(a)(i), 4(2)(b)(i), 4(2)(c) and 4(2)(e) of the Act.", "On perusal of the DGs observations and findings on the time gap restriction, it is evident that by stipulating favourable time gap restrictions for its own events as compared to third party organized events, OP 2 imposed unfair and discriminatory conditions on the third party event organizers at Pragati Maidan.", "The findings show that the time gap restriction between two third party events was 15 days before and after the event whereas in case of OP 2s own organised events exhibitions, the time gap restriction was 90 days before and 45 days after the event in case of OP 2 events (which was amended to 90 days before and after the event in 2011).", "This has been accepted by OP 2 in its own written submissions.", "Such a conduct is clearly in contravention of the provisions of section 4(2)(a)(i) of the Act.", "Besides, it also limited restricted the provision of services and market thereof in contravention of the provisions of section 4(2)(b)(i) of the Act.", "Further, increase in the time gap restrictions for holding third party events, before and after OP 2s own events of similar profile, amounted to denial of market access to the third parties who compete with OP 2 for organizing events at Pragati Maidan in contravention of the provisions of section 4(2)(c) of the Act.", "The Commission also believes that OP 2 has used its dominant position in the relevant market of venue provider in Delhi for organizing events to protect and enhance its position in the market of event organization and thereby contravened the provisions of section 4(2)(e) of the Act.", "The informant also alleged that OP 2s guidelines for reserving slots for regular events and allocation on first-come-first basis was often disregarded for benefitting its own events.", "It was alleged that OP 2 would take unreasonable time to confirm the booking which allowed it to manipulate the bookings.", "The informant cited various instances in support of this allegations.", "From chronology of events in processing applications for events received from third party organizers viz. UBM and Electronics Today, it is evident that OP 2 imposed unfair and discriminatory conditions upon the third party organizers by taking long time in confirming the allotment dates by not deciding applications on first-come-first-basis coupled with altering of time gap restriction guidelines to its advantage giving preferential treatment to its own fairs over competing fairs in contravention of the provisions of section 4(2)(a)(i) of the Act.", "Further, such conduct amounted to denial of market access to the third parties who competed with OP 2 for organizing events at Pragati Maidan in contravention of the provisions of section 4(2)(c) of the Act.", "On the remaining issues of compulsion to take the foyer area, designation of housekeeping agency, non-charging of rental of foyer area for the events organised by the appellant, the Commission agreed that the allegations made against the appellant have not been proved.", "In conclusion, the Commission recorded its concurrence with the DG that the appellants conduct was contrary to Section 4(2)(a) (i), 4(2)(b)(i), 4(2)(c) and 4(2)(e) read with Section 4(1) of the Act, directed it to cease and desist from indulging in anti-competitive practices and imposed penalty 2 of the average income receipt turnover for the last preceding three financial years amounting to Rs. 6,75,03,540/-.", "Shri Krishnan Venugopal, learned Senior Counsel for the appellant made many  (Page 41 of 114)  fold arguments to challenge the impugned order.", "He firstly questioned the very initiation of the investigation by the Commission under Section 26(1) of the Act by arguing that the appellant does not fall within the definition of the term enterprise under Section 2(h) of the Act and no investigation can be ordered in respect of the allegation of violation of Section 4 unless the party proposed to be investigated is an enterprise.", "Shri Venugopal pointed out that the appellants predecessor, i.e., Trade Fair Authority of India was incorporated under Section 25 of the 1956 Act to take over the functions which were being performed by the Ministry of Commerce through three entities, namely, India International Trade Fair Organisation, Indian Council of Trade Fairs and Exhibitions and Directorate of Exhibition and Commercial Publicity and the same continues to be the task of the appellant.", "He pointed out that as per the licence granted by the Central Government under Section 25, the Trade Fair Authority had to invest its profits and other income solely for promoting its objects and there was total prohibition on the payment of any dividend to its members and even today, the appellant has been investing its income and profits for augmenting the infrastructure at Pragati Maidan.", "Shri Venugopal laid emphasis on the fact that the main objects of the appellant, as set out in its Memorandum of Association are to promote, organise trade and other fairs and exhibitions in India and abroad, to publicise in India and abroad international trade fairs and exhibitions and invite foreign participants to participate in India, to organise and undertake trade in commodities connected with or relating to such fairs and exhibitions and promote exports.", "He submitted that in last 23 years, the appellant is primarily engaged in promotion, organisation of trades, fairs and exhibitions for Small and Medium Enterprises and Traditional Industries and also participate in fairs organised in different parts of the world to boost the Indian exports.", "He submitted that the impetus given by the appellant to Small and Medium Enterprises and Traditional Industries is meant to ensure that the ownership and control of the material resources of the community are distributed to sub-serve the common good and the operation of the economic system does not result in concentration of wealth and means of production in the private hands to the detriment of common person, which are the constitutional goals set out in Article 39(b) and (c) and, therefore, the appellant will be deemed to be discharging sovereign functions of the Government and is not amenable to the jurisdiction of the Commission.", "In support of his argument, Shri Venugopal relied upon the judgments of the Supreme Court in Bangalore Water Supply and Sewerage Board vs A. Rajappa, Kasturi Lal Lakshmi Reddy vs State of JK  : (1980) 4 SCC 1, Bakhtawar Singh Bal Kishan vs Union of India and others  : (1988) 2 SCC 293, Municipal Corporation of Delhi vs Female Workers (Muster Rolls)  : (2000) 3 SCC 224, State of U.P. vs Jai Bir Singh  : (2005) 5 SCC 1, N. Nagendra Rao Company vs State of Andhra Pradesh  : (1994) 6 SCC 205, Assam Small Scale Industries Development Corpn.", "Limited vs J.D. Pharmaceuticals  : (2005) 13 SCC 19 and State of Bihar and others vs Project Uchcha Vidya, Sikshak Sangh and others  : (2006) 2 SCC 545.", "The next argument of Shri Venugopal is that Pragati Maidan is an asset of the Government of India, which was created more than 40 years ago with the sole object of providing a venue for holding national and international exhibitions and fairs with particular emphasis on promotion of Small and Medium Enterprises and Traditional Industries and three entities of the Ministry of Commerce, namely, India International Trade Fair Organisation, Indian Council of Trade Fairs and Exhibitions and Directorate of Exhibition and Commercial Publicity, of the Ministry of Commerce for organisation of fairs and exhibitions to encourage the Small Scale and Medium Enterprises in the  (Page 42 of 114)  country, which did not have independent resources to advertise their products.", "Later, these entities were merged and a new entity, namely, Trade Fair Authority of India was incorporated under Section 25 of the 1956 Act and Pragati Maidan was leased out to the new entity at a nominal rent.", "In 1992, Trade Fair Authority of India was merged with the Trade Development Authority of India resulting in creation of the appellant which continues to be a company registered under Section 25 of the 1956 Act and Pragati Maidan was placed at its disposal for carrying out the purposes which were hitherto carried on by the three wings of Ministry of Commerce and subsequently by the Trade Fair Authority of India.", "To buttress his statement that Pragati Maidan is an asset of the Government of India, Shri Venugopal placed before the Tribunal a xerox copy of the Perpetual Leave dated 07.03.2011 executed between the President of India acting through the Land and Development Officer, Nirman Bhawan, New Delhi and the appellant.", "He then argued that neither the Government of India nor its agencies and instrumentalities can be compelled to part with the possession or lease out its their assets on the conditions favourable to the private parties and, in any case, the Commission could direct that the conditions for allocation of space to private parties should be the same as that of the exhibitions fairs and other events organised by the appellant.", "Learned counsel emphasised that merely because the infrastructure and facilities at Pragati Maidan were subsequently made available to the private parties for organisation of fairs and exhibitions and other events, the provisions of the Competition Act cannot be invoked to directly or indirectly denude the appellant of its power to regulate the allocation of spaces in Pragati Maidan and lay down the terms and conditions for organisation of fairs exhibitions and other events, which are uniformly applied to all private enterprises.", "He submitted that the private players cannot claim equal treatment, priority or preference in the matter of allocation of spaces during the period Pragati Maidan is required for holding the exhibitions and fairs of the Government Departments or the appellant.", "He further submitted that the private players like Respondent Number 2, which is primarily representing the interest of UBM India and Electronics Today does not have the locus standi to question the time gap policy time restriction on the ground of violation of Section 4 of the Act because the appellant has the absolute prerogative to prescribe time gap restriction in its own interest and the interest of public.", "He then argued that the appellant is not expected and in any case it cannot be compelled to provide access to private parties to its only asset, i.e., Pragati Maidan even when it would be detrimental to one of the main object, namely, promotion of export with special focus on Small and Medium Enterprises and Traditional Industries.", "In support of this argument, Shri Venugopal relied upon Verizon Communications v. Law Officers of Curtis Trinko, 540 US 398 (2004), STATE OF ILLINOIS, ex rel.", "Roland W. BURRIS, Attorney General of the State of Illinois, in its proprietary capacity, in its parens patriae capacity, and in its representative capacity v. PANHANDLE EASTERN PIPE LINE COMPANY, a Delaware corporation 935 F. 2d 1469 and Oscar Bronner GmBH v. Mediaprint Zeitungs, EU Case C-7/97 decided by the Courts in the United States and the European Commission, respectively.", "Shri Venugopal further argued that the DG and the Commission acted in clear violation of the principles of natural justice.", "He referred to the provisions of Sections 26(8), 27 and 36(1) of the Act as also the provisions contained in the Competition Commission of India (General) Regulations, 2009 (for short the Regulations) to drive home the point that in discharge of their functions to conduct investigation and inquiry, the DG and the Commission are to be guided by the principles of natural justice and emphasised that it is the solemn duty of the Commission and the DG to act in consonance with those principles.", "He referred to the judgments of the Supreme Court in Brahm Dutt Vs.", "Union of India  : (2005) 2 SCC 431 and  (Page 43 of 114)  Competition Commission Vs.", "Steel Authority of India  : (2010) 10 SCC 744 to show that the Commission performs adjudicatory as well as regulatory functions and argued that while carrying out its adjudicatory functions, the Commission is bound to comply with the principles of natural justice.", "Learned Senior Counsel referred to the provisions contained in Regulations 20 to 46 of the Regulations and argued that one of the facets of the principles of natural justice embodied in those regulations is to afford an opportunity to a party to cross-examine a witness person whose statement is used against him it, but this opportunity was blatantly denied to the appellant.", "He pointed out when the DG recorded the statements of Shri section Swarn, Editor-in-Chief of Electronics Today and Shri Sanjay Bose, Head Corporate Affairs of UBM India, the representative of the appellant was not given opportunity to cross-examine them and to elicit information about the availability of other venues in NCR, Delhi and various other parts of the country including Mumbai, Bangalore, Hyderabad and Chennai where large number of exhibitions and fairs are held every year and domestic as well as international companies participate in those fairs and exhibitions.", "Shri Venugopal submitted that failure of the DG to call upon the appellant to cross-examine these two persons has caused serious prejudice to the appellant.", "In support of this argument, the learned Senior Counsel relied upon the judgments of the Supreme Court in State of M.P. vs Chintman Sadashiva Vaishampayan, AIR 1961 SC 1623, Union of India vs T.R. Varma,  : AIR 1957 SC 882, State Bank of India vs R.K. Jain and others  : (1972) 4 SCC 304, New India Assurance Company Limited Nusli Neville Wadia  : (2008) 3 SCC 279, Girotra vs United Commercial Bank and others  : 9 1995) Supp (3) SCC 212 and Ayaaubkhan Noorkhan Pathan vs State of Maharashtra  : (2013) 4 SCC 465.", "Shri Venugopal then argued that the Commission committed grave error by relying upon the so-called admission in the reply submitted by the appellant on 25.03.2014 on the issue of dominant position to buttress the finding recorded by the DG but completely overlooked the grave deficiency in the investigation conducted by the DG who misdirected himself in analysing the factors enumerated in Section 19(4) to (6) of the Act.", "Learned Senior Counsel submitted that the question whether an enterprise is or is not in a dominant position is a mixed question of fact and law and the so-called admission made in the reply filed on behalf of the appellant cannot be treated as a substitute of the DGs and the Commissions duty to determine the issue of dominance in the context of the relevant market by taking into consideration various factors enumerated in Section 19.", "In support of his argument that admission of a person can only be relied on an issue of fact and not on a mixed question of fact and law, Shri Venugopal relied upon the judgment of the Supreme Court in Ram Bharose Sharma Vs.", "Mahant Ram  : (2001) 9 SCC 471.", "He then submitted that even if the admission contained in the reply filed on behalf of the appellant could be relied upon, then the same does nothing more than to accept that the appellant has one of the largest exhibition centre with an area of 123 acres at an important location in Delhi, but that cannot be made basis for recording a finding that the appellant is a dominant player in the exhibition industry.", "Shri Venugopal further argued that the findings recorded by the DG on the issues of relevant market, relevant geographic market and dominant position of the appellant and abuse thereof, which have been approved by the Commission are liable to be quashed not only on the ground that the procedure adopted by the DG in conducting investigation was flawed in more than one way, but also because the findings are perverse.", "Learned Senior Counsel emphasised that the DG had  (Page 44 of 114)  misdirected himself in considering the relevant market by keeping Delhi in focus with particular reference to Pragati Maidan.", "He submitted that while delineating the relevant market, the DG had failed to properly analyse the factors enumerated in Section 19(6) and (7).", "He emphasised that the DG had conducted the entire investigation by assuming that Pragati Maidan, which was centrally located in Delhi having a vast area of 123 acres and was easily accessible due to availability of means of transport, nearness of the Government and choice of the customers for organising international and national exhibitions was pivotal to the determination of the relevant market.", "Learned Senior Counsel pointed out that while doing so, the DG completely lost sight of the fact that there is no distinction between the venues which regularly hold exhibitions and trade fairs and other events like Ashoka Hotel, NSIC, India Habitat Centre located in Delhi, similar venues available in Noida and several venues available in different parts of the country i.e. Bangalore, Chennai, Mumbai and Hyderabad.", "Shri Venugopal submitted that the largeness of the area at Pragati Maidan is also not a factor which necessarily attracts the customers because seldom any fair or exhibition is organised in Pragati Maidan covering the entire area.", "Learned Counsel further submitted that the DG went wholly wrong in observing that there is convenient availability of traffic for approaching Pragati Maidan.", "Learned counsel emphasised that as against the availability of convenient modes of transport, there is always enormous problem of traffic in reaching Pragati Maidan and the conditions of parking are chaotic whereas extremely convenient mode of transport are available at similar venues in Bangalore, Chennai, Mumbai and Hyderabad.", "He submitted that there are several factors which desist the customers from choosing Pragati Maidan for exhibiting their products as against the venues available in two other metros and two equally big cities where sufficient areas are available for holding fairs and exhibitions and larger facilities are available to the customers as well as visiting public and, in fact, a very large number of fairs, exhibitions etc.", "have been held by different types of trades and industries at those places.", "Learned counsel further argued that the DG and the Commission did not make any effort to gather any evidence to find out the consumer preference for one or more of the venues available in India for organisation of fairs and exhibitions and similar events.", "He pointed out that even though the DG had, on the basis of information contained in reply dated 13.08.2013 filed by the appellant, taken note of the availability of alternative venues at places like Bangalore, Chennai, Mumbai and Hyderabad, he did not make any effort to ascertain the extent of area, quantity and quality of the services, facilities and amenities available at those venues and preference of the consumers.", "Learned Senior Counsel invited the Tribunals attention to paragraph 9.30 of the memo of appeal to show that out of 314 fairs and exhibitions organised in 2010-11 only 59 were organised in Delhi at Pragati Maidan, out of 345 fairs and exhibitions organised in 2011-12 only 77 were organised at Pragati Maidan and out of total 290 fairs and exhibitions organised in 2012-13 only 75 were organised at Pragati Maidan.", "He also pointed out that in 2010- 11 and 2011-12 as many as 101 and 98 fairs and exhibitions were organised at Mumbai which were more than the fairs and exhibitions organised at Pragati Maidan.", "Shri Venugopal submitted that another grave error committed by the DG was not to examine at least some of the parties which had organised fair and exhibition in other towns to ascertain the reasons why they had chosen venues other than Pragati Maidan.", "He also pointed out that even UBM India and Electronics Today, whose grievance was primarily projected by Respondent Number 2, had organised fairs at places other than Pragati Maidan during Commonwealth Games, Defexpo etc.", "and other occasion.", "Shri Venugopal criticised the approach adopted by the DG by pointing out that the concerned officer did not make any endeavour to consider whether the other venues available within Delhi, National Capital Region (NCR) and other States for  (Page 45 of 114)  organising fairs and exhibitions and like events were regarded by the consumers of the service as interchangeable or substitutable as contemplated in Section 2(t) of the Act.", "In support of this argument, Shri Venugopal relied upon Brown Shoe Company vs United Stated  : 370 US 294, Little Rock Cardiology Clinic vs Baptist Health  : 591 F. 3d.", "591(US Court of Appeals) and I. Root Company vs Computer Dynamics Inc.  : 806 F. 2d.", "Shri Venugopal also relied upon European Commission Notice on the definition of relevant market for the purpose of Community Competition Law (paragraphs 38, 40 and 41).", "He submitted that if empirical data relating to consumer preferences is taken into consideration, then the Commissions approval to the finding recorded by the DG clearly become erroneous because there is absolutely no justification to treat Pragati Maidan as the relevant market for the national and international trade fairs and exhibitions.", "He pointed that several customers utilized the services from other similar service providers, who cater not only to national but also international trade fairs.", "Learned counsel also criticized that the determination of Delhi as a relevant geographic market by pointing out that while deciding this aspect, the DG and the Commission completely ignored the factors enumerated in Section 19(6).", "Learned Counsel submitted that the DG had proceeded to decide the entire issue with a pre- determined mind that Pragati Maidan was the relevant market and the Delhi was the relevant geographic market for judging violation of various clauses of Section 4 and conducted the entire exercise for judging the substitutability with other venues in NCR and other cities in the country with a closed mind and this is the reason why he casually treated other venues as inadequate.", "Learned Senior Counsel pointed out that the DG was under obligation to collect information, statistics and data from the owners of other venues and customers who availed services at those venues but he neither contacted the organisers of exhibitions, fairs and other events in places like Mumbai, Bangalore, Hyderabad and Chennai, nor he exercised powers vested in him under Section 41 of the Regulations to summon at least few of the organisers and customers participating in the exhibitions and fairs outside Delhi.", "Learned Counsel further pointed out that even in the statements made by the representatives of Electronics Today and UBM India there was a clear admission that India Expo Centre, Greater Noida and Codissia Trade Fair Complex Coimbatore provide amenities sufficient for holding international exhibitions, but both the DG and the Commission ignored the same and also overlooked the stark fact that during the Commonwealth Games, Defexpo and other similar events, the organisers who had booked Pragati Maidan had shifted their events to other places.", "Shri Venugopal then argued that the findings recorded by the DG on the time gap policy or restriction are not only self-contradictory but are perverse.", "He extensively referred to detailed reply dated 13.08.2013 submitted by the appellant in response to the notice issued by the DG under Section 41(2) read with Section 36(2) as also the reply dated 25.03.2014 filed after receipt of copy of the investigation report to show that the appellant had furnished rational explanation for the time gap policies framed by the Government of India and the appellant, but even after accepting that there was an economic rationale for the time gap policy, the DG did not give due weightage to reply dated 13.08.2013 and returned a finding that the appellant was guilty of abuse of dominance.", "Shri Venugopal assailed the impugned order on an additional ground that the Commission failed to discharge the duty cast upon it under Section 19(4), (6) and (7) read with Section 26(8) and Section 27 and Regulations 20 to 46 of the  (Page 46 of 114)  Regulations.", "He argued that while passing the impugned order, the Commission completely forgot its duty to hold independent inquiry into the matter, merely referred to certain portions of the report of the DG and recorded its concurrence in few lines without even adverting to reply dated 25.03.2014 submitted by the appellant.", "Learned Senior Counsel emphasised that the DGs role of conducting investigation is altogether different than the duty of the Commission to inquire into the matter.", "He laid particular emphasis on the words where after inquiry appearing in Section 27 and argued that its a solemn duty of the Commission to independently examine each and every piece of evidence collected by the DG, analyse the same and then record a finding on the issue of violation of Section 4 of the Act.", "In the end, Shri Venugopal argued that penalty imposed by the Commission is totally arbitrary and unjustified.", "He submitted that while imposing the penalty, the Commission completely lost sight of the fact that the appellant was a non-profit making Government Company engaged in performing an important commercial functions on behalf of the Government and there was neither any allegation of malice qua its decision resolution nor any evidence was produced before the DG or the Commission to prove that the appellant had indulged in anti-competitive practices.", "He also pointed out that even before considering the information of Respondent Number 2, the appellant had initiated the process for further amendment of the time gap and the Commission was also informed about framing of a competition friendly uniform policy for licencing of exhibition space and facilities at Pragati Maidan for future exhibitions and fairs and in fact the modified policy was circulated on 20.05.2013 and there was no complaint from any quarter and the appellant had acted in violation of its last policy, but the Commission ignored all these aspects and imposed huge penalty of Rs. 6,75,03,540/- 4 7 .", "Shri Mayank Bansal, learned Counsel for the Commission and Shri Muneesh Malhotra, learned counsel for Respondent Number 2 supported the impugned order and argued that the findings and conclusions recorded by the Commission do not suffer from any legal infirmity requiring interference by the Tribunal.", "Both Shri Bansal and Shri Malhotra emphasised that the appellant clearly falls within the definition of term enterprise under Section 2(h) because its activities are purely commercial in nature and have nothing to do with the sovereign functions of the Government or those carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "Learned Counsel also pointed out that Section 54 of the Act empowers the Government to issue notification and exempt an enterprise which performs a sovereign functions on behalf of the Central or the State Government, but no such notification has been issued.", "Learned counsel argued that methodology adopted by the DG for conducting investigation was in consonance with the scheme of the Act and the Regulations and he rightly found that the relevant market was the market for providing venue in international and national trade fairs exhibitions in Delhi that the appellant was in a dominant position in the relevant market and abused its position by imposing unequal time restriction on the holding of exhibitions and fairs of its own and those of the private parties.", "Shri Bansal pointed out that as per the appellants own admission, appellant organise only 15 of the total exhibitions and fairs organised every year at Pragati Maidan and the remaining 85 are organised by third party organisers.", "He further argued that none of the venues available in Mumbai, Bangalore and Chennai can be compared with Pragati Maidan in the size, resources, availability of means of communication and accessibility and argued the alleged failure of the DG to make detailed investigation qua those venues cannot lead to a conclusion that the investigation was flawed.", " (Page 47 of 114)  Shri Malhotra referred to the allegations contained in the information, the time gap policy introduced by the Ministry of Commerce, the guidelines issued by the appellant in 2006 and argued that there is no rational of having different time gaps in the exhibitions and fairs organised by the appellant on the one hand and those organised by the third party and the Commission rightly held the appellant guilty of violation of Section 4(2)(a)(i), 4(2)(b)(i), 4(2)(c), 4(2)(e) read with Section 4(1).", "He also justified the imposition of penalty by pointing out that the appellant had adequate notice about the proposed penalty.", "I shall first deal with the preliminary ground on which the appellant has questioned the Commissions jurisdiction to order an investigation into the allegations contained in the information filed by Respondent Number 1.", "This objection is founded on the assertion that the appellant is not covered by the definition of the term enterprise contained in Section 2(h) and that it has been performing sovereign functions of the Government.", "For deciding the aforesaid question, it will be useful to notice the definitions of the terms enterprise, person and service contained in Section 2(h), (e) and (u) of the Act.", "The same read as under: 2(h) enterprise means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "Explanation.-For the purposes of this clause,-- (a) activity includes profession or occupation (b) article includes a new article and service includes a new service (c) unit or division, in relation to an enterprise, includes-- a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods any branch or office established for the provision of any service (e) person includes-- an individual a Hindu undivided family  (Page 48 of 114)  a company a firm an association of persons or a body of individuals, whether incorporated or not, in India or outside India any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) any body corporate incorporated by or under the laws of a country outside India a co-operative society registered under any law relating to co- operative societies a local authority every artificial juridical person, not falling within any of the preceding sub-clauses.", "(u) service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising.", "A reading of the plain language of Section 2(h) shows that an enterprise means a person this term has been given an inclusive definition in Section 2(i) or department of the Government, who or which is or has been engaged in any activity relating to production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind but does not include any activity of the Government relatable to its sovereign functions including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "By incorporating Explanation below Section 2(h), the legislature has given inclusive meanings to the words activity, article and unit or division.", "The definition of the word person, which finds place in the opening part of Section 2(h) is contained in Section 2(l).", "It is inclusive and takes within its fold an individual, a Hindu Undivided Family, a company, a firm, an association of persons or a body of individuals, whether incorporated or not, any corporation established by or under any Central, State or Provincial Act or a Government company as defined in Section 617 of the Companies Act, 1956, or any body corporate incorporated by or under the laws of a country outside India, a registered co-operative society, a local authority and every artificial juridical person.", "The word service, which finds place in Section 2(h) has been defined in Section 2(u).", "It means service of any description which is made available to potential users and also includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising.", " (Page 49 of 114)  This shows that every possible type of activities is encompassed in the inclusive part of the definition of the term service.", "If the term enterprise, as defined in Section 2(h) is read in conjunction with the definitions of the terms person and service, it becomes clear that the legislature has designedly included government departments in relation to any activity relating to storage, supply, distribution, acquisition or control of articles or goods, or the provision of services of any kind.", "The width of the definition of enterprise becomes clear by the definition of the term service.", "The first part of the definition of service makes it clear that service of any description, which is made available to potential users, falls within the ambit of Section 2(h).", "The inclusive part of the definition of service takes within its fold service relating to construction and repair.", "These two words are not confined to construction and repair of buildings only.", "The same would include all types of construction and repair activities including construction of roads, highways, subways, culverts and other projects etc.", "It is thus evident that if a department of the Government is engaged in any activity relating to construction or repair, then it will fall within the definition of the term enterprise.", "I may add that there is nothing in Section 2(h) and (u) from which it can be inferred that the definitions of enterprise and service are confined to any particular economic or commercial activity.", "The only exception to the definition of the term enterprise relates to those activities which are relatable to sovereign functions of the Government and activities carried by the four departments of the Central Government, i.e., atomic energy, defence, currency and space.", "It is also apposite to mention that Section 55 of the Act empowers the Government to issue notification to exempt from the application of this Act or any provision thereof any enterprise which perform a sovereign function on behalf of the Central Government or the State Government but, in its wisdom, the Central Government had not issued any notification granting exemption to the appellant.", "This implies that the Central Government had not considered the appellant to be an enterprise performing sovereign functions on behalf of the Central Government.", "Although, the term sovereign function has not been defined in the Constitution or the Act, but the same has acquired a definite meaning.", "It has been repeatedly held by the Courts that sovereign functions of the State Government are those which are inalienable.", "These include enactment of laws, the administration justice, the maintenance of law and order, signing of treaties, meeting punishment to those found guilty committing crime.", "None of these and similar functions of the State can be delegated or performed by a third party or a private agency.", "In contrast, any activity relating to trade, business, commerce or like is a non-sovereign function because the same can be performed by any private party entity.", "To put it differently, the functions which are integral part of the Government and which are inalienable are sovereign functions and commercial actions trading activities and actions, which can either be delegated or performed by the third parties are alienable and are not treated as sovereign functions.", "In Hemant Sharma and others Vs.", "Union of India and others, Writ Petition (Civil) No. 5770/2011 decided on 05.11.2011 ( : ), the Delhi High Court considered the question whether All India Chess Federation is an enterprise under Section 2(h) of the Act.", "After analysing the definition of the term enterprise, the Court observed: prima facie, it appears to me that respondent Number 2 is rendering services to the petitioners and to all others who are registered with it as chess  (Page 50 of 114)  players.", "The responsibilities of respondent Number 2 as an NSF are set out in the guidelines issued by respondent Number 1, some of which have already been referred to earlier.", "Admittedly, respondent Number 2 organises chess tournaments and provides technical support and expertise for conduct of such chess tournaments.", "That, in my prima facie view, would constitute service rendered by respondent Number 2 to the players who are registered with it.", "Such service is being rendered for a consideration received from the players, as is evident from the registration form, a copy whereof has been filed on record by respondent Number 2.", "It is also borne by respondent Number 1 for the benefit of all chess players who provides grants to respondent Number 2. 2 7 .", "Respondent Number 2, prima facie, would also fall within the expression enterprise, as used in the Act which is very widely worded to even include a person or a department of the government rendering services of any kind and excludes only those activities of the government which are relatable to sovereign functions of the government and all activities carried out by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "Respondent Number 2 does not fall in any of the said exceptions.", "The definition of the expression enterprise as used in the Competition Act read with the definition of service thereof, in my view clearly shows that the Respondent Number 2 is an enterprise which is covered by the said provisions.", "The allegation against Respondent Number 2 is that respondent Number 2, by virtue of its agreement with the petitioners, is seeking to control the provision of services which is causing adverse effect on competition within India, inasmuch as the chess players registered with Respondent Number 2 are not free to form another association or to organize tournaments and participate therein, without facing the consequence of losing their registration with respondent Number 2 which is the nationally recognized sports federation for the sports of chess.", "The allegation also is that respondent Number 2 is abusing its dominant position as the NSF.", "A somewhat similar view was expressed by the same High Court in Union of India vs CCI, Writ Petition (Civil) 993/2012 decided on 23.02.2012, wherein the following observations were made: It is not petitioners contention that it is not a Department of Government.", "It is also not the petitioners contention that it is not engaged in an activity relating to provisions of services, Therefore, unless the petitioners aforesaid activity can be classified as relatable to sovereign functions of the Government including all activities carried on by the departments of atomic energy, currency, defence and space, it cannot avoid being classified as an enterprise under section 2(h) of the Act.", "If it is an enterprise under section 2(h) of the Act, the Commission gets jurisdiction under Chapter IV of the Act.", "The organisation holding of trade fairs and exhibitions, national or international, at a venue owned by it are certainly commercial activities of the State in contrast to sovereign function.", "Such activities can easily be carried by private enterprises and, as a matter of fact, these activities are being carried by private players at several places within the National Capital Region and other parts of the country like Bangalore, Mumbai, Chennai and Hyderabad.", "Therefore, the objection raised by Shri Venugopal  (Page 51 of 114)  to the jurisdiction of the Commission to entertain the information filed by Respondent No. 2 and order an investigation under Section 26(1) cannot be sustained.", "I may hasten to add that under Section 54 of the Act, the Central Government is vested with the power to issue notification to exempt from the application of the Act or any provision thereof for such period, as it may specify in the notification, any enterprise which performs a sovereign functions on behalf of the Central Government or a State Government, but no such notification has so far been issued in respect of the appellant.", "I may now notice the judgements on which reliance has been placed by the learned Senior Counsel for the appellant.", "In Bangalore Water Supply and Sewerage Board vs A Rajappa and others (supra), the majority judgment was delivered by Krishna Iyer, J. with whom Bhagwati and Desai, JJ.", "agreed in entirety.", "He referred to several previous decisions including the judgments in D.N. Banerji vs P.K. Mukherjee,  : AIR 1953 SC 58 and Corporation of City of Nagpur Its Employees,  : AIR 1960 SC 675 and observed: The Court proceeded to carve out the negative factors which, notwithstanding the literal width of the language of the definition, must, for other compelling reasons, be kept out of the scope of industry.", "For instance, sovereign functions of the State cannot be included although what such functions are has been aptly termed the primary and inalienable functions of a constitutional government.", "(Emphasis supplied) The aforesaid decision does not contain any discussion on what are and what are not sovereign functions of the State.", "Therefore, one line observation cannot be relied upon for recording a finding that the appellant is performing a sovereign governmental function.", "In Bakhtawar Singh Bal Kishan Vs.", "Union of India and others (supra), the Supreme Court affirmed the judgment of the Division Bench of the Delhi High Court, which held that it did not have jurisdiction to entertain a petition filed for challenging an award passed in relation to a contract entered into at Bareilly in U.P. and observed: The Supreme Court has drawn a distinction between the commercial activities of the State on one hand and the discharge of the sovereign functions of the State on the other.", "The decision in that matter has been rendered in the context of business activity carried on by the Union of India namely running of the Railways and not in the context of a sovereign activity carried on by the Union of India.", "(Emphasis supplied) In Assam Small Scale Industries Development Corp. Limited vs J.D. Pharmaceuticals (supra) the Supreme Court while interpreting the provisions of the Assam Preferential Stores Purchase Act, 1989 observed - it was primarily enacted so as to enable the State to effectively perform a sovereign function, namely, health care.", "In State of U.P. Vs.", "Jai Bir Singh (supra), a Constitution Bench made a reference to the larger Bench to reconsider the judgment of the earlier Constitution Bench in Bangalore Water Supply and Sewerage Board vs A Rajappa, but did not laid down  (Page 52 of 114)  any preposition of law.", "In State of Bihar and others Vs.", "Project Uchcha Vidya, Sikshak Sangh and others (supra), the Court made one line observation that education is a sovereign function of the State but there is no discussion on the issue.", "In the above noted judgements, there is no discussion about the nature of sovereign functions of the State.", "Although, in two of the judgements, the Supreme Court did treat education and healthcare as sovereign functions of the State, but neither of these judgments lay down that the commercial or trading activities carried on by the State or its agencies instrumentalities are sovereign functions of the Government.", "The reason for this is very simple because such activities can always be undertaken and carried out by private parties.", "Activities like Railways, Air services would also fall in that category.", "I may also observe that till three decades ago healthcare and education were treated as exclusive functions of the State and the Courts had treated them as sovereign functions of the State, but the scenario has undergone a complete change in the last three decades and even though education and healthcare continues to be primary duty of the State, a large number of private players have come into both the fields.", "Thousands of schools, colleges and hospitals have been established and are being operated throughout the country by private entities and now it is not possible to say that these are inalienable functions of the State.", "In any case, the activities relating to organisation of exhibitions, trade fairs and like events at Pragati Maidan, which can also be done by third parties, cannot be regarded as sovereign functions of the State.", "The holding of fairs, exhibitions etc.", "are intrinsically connected with trade and commerce and have no nexus with the sovereign functions of the State.", "The next issue which merits consideration is whether the DG and the Commission can be said to have acted in violation of the principles of natural justice because the appellants representative was not given opportunity to cross-examine Shri section Swarn, Editor-in-Chief of Electronics Today and Shri Sanjay Bose, Head Corporate Affairs of UBM India.", "The argument of the learned Senior Counsel is that if the appellant had been given opportunity to cross-examine these two persons, then it could have elicited information about the availability of other venues in NCR, Delhi and various other parts of the country like Mumbai, Bangalore etc.", "Though appears attractive, this argument lacks merit and deserves to be rejected because during the investigation conducted by the DG, the appellant had, at no point of time, made any oral or written request that its representative should be given an opportunity to cross-examine the persons who may summon by the DG for recording their statements.", "Even if one is to assume that the appellant did not have any idea about the DGs decision to summon some persons for recording statements and they did not know that Shri section Swarn and Shri Sanjay Bose have been summoned by the DG, a grievance to that effect could have surely been made in the reply filed after receipt of the investigation report.", "However, the fact of the matter is that the appellant neither made any grievance about the denial of opportunity to cross-examine Shri section Swarn and Shri Sanjay Bose nor it claimed that denial of opportunity to cross-examine these two persons had caused prejudice to its case.", "It is true that an adjudicatory authority i.e. the Commission is required to act in consonance with the principles of natural justice but it is also one of the well- recognised principle that a party which seeks compliance of the rules of natural justice also has the right to waive that rights.", "The right to seek cross-examination of a person whose statement is sought to be relied on against him is personal to the  (Page 53 of 114)  person concerned and he has the absolute discretion to waive that right.", "This is precisely what the appellant had done in the present case by not raising any objection in reply dated 25.03.2014 about denial of the opportunity to cross-examine by the DG.", "Not only this, the appellant did not make separate application before the Commission that two persons examined by the DG should be summoned for cross- examination.", "In its power to hold inquiry under the provisions of the Act and the Regulations, the Commission is definitely possessed with power and it could have accepted the request, if any, made by the appellant.", "However, the fact of the matter is that no such request was ever made.", "Therefore, the logical conclusion which can be drawn from this conduct of the appellant is that its grievance about the denial of opportunity to cross-examine Shri section Swarn and Shri Sanjay Bose is illusory.", "The preposition laid down by the Supreme Court in State of M.P. vs Chintman Sadashiva Vaishampayan and other judgements on which reliance has been placed by Shri Venugopal are no help to the appellants case, because as mentioned above, it did not make any grievance on the issue of denial of opportunity to cross-examine Shri Swarn and Shri Sanjay Bose.", "I may also add that the statements of Shri section Swarn and Shri Sanjay Bose does not contain anything, which may implicate the appellant in the matter of violation of various clauses of Section 4 of the Act and neither the DG nor the Commission have relied upon the same for recording a finding against the appellant.", "The next and more important question which requires consideration is whether the investigation inquiry conducted by the DG and the Commission was consistent with the relevant statutory provisions and the DG rightly held the relevant market as providing venue in International and National trade fairs exhibitions in Delhi.", "Sections 4, 19, 26, 27, 36(1) of the Act and Regulations 18 to 21 of the Regulations read as under: Sec. 4.", "Abuse of dominant position.--(1) No enterprise or group shall abuse its dominant position.", "There shall be an abuse of dominant position under sub-section (1), if an enterprise or a group,--- (a) directly or indirectly, imposes unfair or discriminatory- condition in purchase or sale of goods or service or price in purchase or sale (including predatory price) of goods or service.", "Explanation.--For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition or (b) limits or restricts-- production of goods or provision of services or market therefore or  (Page 54 of 114)  technical or scientific development relating to goods or services to the prejudice of consumers or (c) indulges in practice or practices resulting in denial of market access in any manner or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts or (e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.", "Explanation.--For the purposes of this section, the expression-- (a) dominant position means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to-- operate independently of competitive forces prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour (b) predatory price means the sale of goods or provision of services, at a price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.", "(c) group shall have the same meaning as assigned to it in clause (b) of the Explanation to section 5.", "Inquiry into certain agreements and dominant position of enterprise.--(1) The Commission may inquire into any alleged contravention of the provisions contained in sub-section (1) of section 3 or sub-section (1) of section 4 either on its own motion or on-- (a) receipt of any information, in such manner and, accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association or (b) a reference made to it by the Central Government or a State Government or a statutory authority.", "Without prejudice to the provisions contained in subsection (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7).", "The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely:-- (a) creation of barriers to new entrants in the market  (Page 55 of 114)  (b) driving existing competitors out of the market (c) foreclosure of competition by hindering entry into the market (d) accrual of benefits to consumers (e) improvements in production or distribution of goods or provision of services (f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.", "The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of the following factors, namely:-- (a) market share of the enterprise (b) size and resources of the enterprise (c) size and importance of the competitors (d) economic power of the enterprise including commercial advantages over competitors (e) vertical integration of the enterprises or sale or service network of such enterprises (f) dependence of consumers on the enterprise (g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise (h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers countervailing buying power (j) market structure and size of market (k) social obligations and social costs (l) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition (m) any other factor which the Commission may consider relevant for the inquiry.", "For determining whether a market constitutes a relevant market for the purposes of this Act, the Commission shall have due regard to the relevant geographic market and relevant product market.", " (Page 56 of 114)  The Commission shall, while determining the relevant geographic market, have due regard to all or any of the following factors, namely:-- (a) regulatory trade barriers (b) local specification requirements (c) national procurement policies (d) adequate distribution facilities (e) transport costs (f) language (g) consumer preferences (h) need for secure or regular supplies or rapid after-sales services.", "The Commission shall, while determining the relevant product market, have due regard to all or any of the following factors, namely:-- (a) physical characteristics or end-use of goods (b) price of goods or service (c) consumer preferences (d) exclusion of in-house production (e) existence of specialised producers (f) classification of industrial products.", "Procedure for inquiry under section 19.", "- On receipt of a reference from the Central Government or a State Government or a statutory authority or its own knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director-General to cause an investigation to be made in to the matter: Provided that if the subject-matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information.", "Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", " (Page 57 of 114)  The Director-General shall, on receipt of direction under sub- section (1), submit a report on his findings within such period as may be specified by the Commission.", "The Commission may forward a copy of the report referred to in subsection (3) to the parties concerned: Provided that in case the investigation is caused to be made based on a reference received from the Central Government or the State government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-section (3) to the Central Government or the State Government or the statutory authority, as the case may be.", "If the report of the Director-General referred to in subsection (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State government or the statutory authority or the parties concerned, as the case may be, on such report of the Director-General.", "If, after consideration of the objections or suggestions referred to in subsection (5), if any, the Commission agrees with the recommendation of the Director-General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "If, after consideration of the objections or suggestions referred to in subsection (5), if any, the Commission is of the opinion that further investigation is called for, it may direct further investigation in the matter by the Director-General or cause further inquiry to be made in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act.", "If the report of the Director-General referred to in subsection (3) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of the Act.", "Orders by Commission after inquiry into agreements or abuse of dominant position.- Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section or section 4, as the case may be, it may pass all or any of the following orders, namely:- (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be (b) impose such penalty, as it may deem fit which shall be not more  (Page 58 of 114)  than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission shall impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or ten per cent.", "of the average of the turnover of the cartel for the last preceding three financial years, whichever is higher (c) award compensation to parties in accordance with the provisions contained in section 34 (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any (f) recommend to the Central Government for the division of an enterprise enjoying dominant position (g) pass such other order as it may deem fit.", "Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.", "Power of Commission to regulate its own procedure.--(1) In the discharge of its functions, the Commission shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have the powers to regulate its own procedure.", "Regulations 18, 19, 20 and 21: Issue of direction to cause investigation on prima facie case - Where the Commission is of the opinion that a prima facie case exists, the Secretary shall convey the directions of the Commission 1within seven days, to the Director-General to investigate the matter.", "A direction of investigation to the Director-General shall be deemed to be the commencement of an inquiry under section 26 of the Act.", "Communication of order when no prima facie case found.- If the Commission is of the opinion that there exists no prima facie case, the Secretary shall send a copy of the order of the Commission  (Page 59 of 114)  regarding closure of the matter forthwith to the Central Government or the State Government or the Statutory Authority or the parties concerned, as the case may be, as provided in subsection (2) of section 26 of the Act.", "Investigation by Director-General.", "- (1) The Secretary shall, while conveying the directions of the Commission under regulation 18, send a copy of the information or reference, as the case may be, with all other documents or materials or affidavits or statements which have been filed either along with the said information or reference or at the time of preliminary conference, to the Director- General.", "The Commission shall direct the Director-General to submit a report within such time as may be specified by the Commission which ordinarily shall not exceed sixty days from the date of receipt of the directions of the Commission.", "The Commission may, on an application made by the Director- General, giving sufficient reasons, extend the time for submission of the report by such period as it may consider reasonable.", "The report of the Director-General shall contain his findings on each of the allegations made in the information or reference, as the case may be, together with all evidences or documents or statements or analyses collected during the investigation.", "Provided that when considered necessary, the Director General may, for maintaining confidentiality, submit his report in two parts.", "One of the parts shall contain the documents to which access to the parties may be accorded and another part shall contain confidential and commercially sensitive information and documents to which access may be partially or totally restricted.", "Ten copies of the report of the Director-General, along with a soft copy in document format, shall be forwarded to the Secretary within the time specified by the Commission: Provided that the Secretary may ask for more copies of the report as and when required.", "If the Commission, on consideration of the report, is of the opinion that further investigation is called for, it may direct the Director-General to make further investigation and submit a supplementary report on specific issues within such time as may be specified by the Commission but not later than forty-five days.", "Procedure for inquiry under section 26 of the Act.", "- (1) On receipt of the report of the Director -General, the Secretary shall place the said report before the Commission within seven days, for further orders and, in accordance with the direction of the Commission, forward either a hard or a soft copy (in electronic form) of non confidential version thereof to the Central Government or the State Government or the statutory authority, or  (Page 60 of 114)  the parties concerned, as the case may be.", "If the report of the Director-General finds no contravention of the provisions of the Act, the Secretary shall within seven days, convey the directions of the Commission for inviting objections or suggestions to be filed within fifteen days from the Central Government or the State Government or the statutory authority, or from the parties concerned, as the case may be on such report of the Director-General.", "If the Commission orders closure of the matter on consideration of the objections or suggestions, if any, referred to in sub-regulation (2), an agrees with the findings of the Director-General, the Secretary shall within seven days, convey the orders of the Commission to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "If the Commission, on consideration of the objections or suggestions, referred to in sub-regulation (2), directs further investigations in the matter by the Director-General or further inquiries in the matter to be made by an officer of the Commission so authorized by it, the Secretary shall within seven days, convey the directions of the Commission to the Central Government or the officer so authorized, as the case may be.", "On an application made by the officer authorized by the Commission justifying the production of specified books or other documents, as may be required to make further inquiries under sub- regulation (4), the Commission may direct any person to produce such specified books or other documents relating to any trade carried out by such person or enterprise, as per the provisions of sub - section (4) of section 36 of the Act.", "Explanation.", "- For the purpose of this sub-regulation, the word officer shall include the experts and professionals mentioned under sub-section (3) of section 17 or sub-section (3) of section 17 or sub- section (3) of section 36 of the Act.", "On receipt of the report of the Director-General on further investigation or report of the authorized officer on further inquiries, as the case may be, the Secretary shall with the approval of the Chairperson, fix the meeting of the Commission within seven days for consideration thereof.", "If the report of the Director-General mentioned under sub- regulation (1) finds contravention of any of the provisions of the Act, the Secretary shall obtain the orders of the Commission for inviting objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "On consideration of the objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, or the report of further  (Page 61 of 114)  investigation or further inquiries, as the case may be, if the Commission is of the opinion that further inquiry is called for, the Secretary shall fix the meeting of the Commission for consideration thereof, after issue of notice as per regulation 22, to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "The Secretary shall keep the Director-General informed of the dates of the meetings of the Commission for inquiry under subsection (7) or sub-section (8) of section 26 of the Act for appearing in person or through any of his officers in accordance with the provisions of section 35 of the Act.", "Some of the above reproduced provisions were considered by a three judge Bench of the Supreme Court in Competition Commission of India Vs.", "Steel Authority of India Limited  : (2010) 10 SCC 744.", "In that case, the Commission had challenged the maintainability of an appeal filed by the respondent against an order passed under Section 26(1) of the Act.", "The Supreme Court analysed the relevant provisions of the Act and the Regulations and laid down several propositions including the following: Cumulative reading of these provisions, in conjunction with the scheme of the Act and the object sought to be achieved, suggests that it will not be in consonance with the settled rules of interpretation that a statutory notice or an absolute right to claim notice and hearing can be read into the provisions of Section 26(1) of the Act.", "Discretion to invite, has been vested in the Commission, by virtue of the Regulations, which must be construed in their plain language and without giving it undue expansion.", "The above reasoning and the principles enunciated, which are consistent with the settled canons of law, we would adopt even in this case.", "In the backdrop of these determinants, we may refer to the provisions of the Act.", "Section 26, under its different sub-sections, requires the Commission to issue various directions, take decisions and pass orders, some of which are even appealable before the Tribunal.", "Even if it is a direction under any of the provisions and not a decision, conclusion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning.", "At the stage of forming a prima facie view, as required under Section 26(1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General.", "Such view should be recorded with reference to the information furnished to the Commission.", "Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as afore-referred.", "However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well reasoned analyzing and deciding the rival contentions raised before the Commission by the parties.", "In other words, the Commission is expected to express prima facie view in terms of Section 26(1) of the Act, without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opinion, while all its other orders and decisions should be well reasoned.", " (Page 62 of 114)  The appellant has criticised the approach adopted by the DG and the exercise undertaken by him for determination of the relevant market by relying upon the provisions of Section 2(r), (s) and (t) read with Section 19(6) and (7) of the Act.", "He submitted that the concerned officer had proceeded with a predetermined mind that Pragati Maidan was the only venue available in Delhi for organisation of international and national trade fairs exhibitions.", "A careful reading of paragraph 10 of the DGs report shows that he treated Pragati Maidan which was earlier used by the three wings of Ministry of Commerce and then by the Trade Fair Authority of India and lastly by the appellant for organisation of international and national trade fairs and exhibitions as the target for deciding the issue of relevant market.", "He was also obsessed with the idea that the Delhi is the venue for holding international trade fairs and exhibitions and made no attempt to compare it with the other venues available not only in National Capita Region but places like Bangalore, Chennai, Mumbai and Hyderabad.", "He took into consideration the large size of Pragati Maidan, factors like better transport system, connectivity to airports, railway stations, Inter State Bus Terminus, centralised locations, hotels, location of Central and State Ministries and observed that such fairs exhibitions would usually require liaison for an approval from the Government Authority and, therefore, as the location of a venue offers added advantage in these respects and being capital of the country and it attracts people from all over the world.", "Unfortunately, while undertaking this exercise, the DG did not bother to find out as to how much of the total area of Pragati Maidan is used for holding international national trade fairs exhibitions, how much is the area available for holding exhibitions in other parts of NCR and other places like Mumbai, Bangalore, Chennai, Hyderabad etc.", "He also did not made any attempt to find out the nature of transport facilities available for the 4 venues at Mumbai, 2 venues at Hyderabad, 2 venues at Bangalore, 3 venues at Chennai Coimbatore, Gurgaon and 2 venues in NCR.", "He did not issue notice under Section 41(2) read with Section 36(2) to any of the owners persons controlling these venues, nor he tried to ascertain the nature of the trade fairs exhibitions organised on these venues between 1971 and 2013.", "On internal page 22 of his report, the DG has reproduced the table from reply dated 13.08.2013 filed by the appellant in response to the notice issued under Section 41(2) read with Section 36(2) of the Act.", "Columns 3, 6, 7, 8 and 9 of this table contains the word N.A In the second column these letters have been used against four exhibition centres (1 at Gurgaon, 1 at Hyderabad and 2 at Bombay.", "In Column 4, the letters N.A. have been used against five centres (2 at Bombay, 1 at Tirupur, Coimbatore (T.N.) and 2 at Delhi.", "In Column 5 the letters N.A. have been used against two centres at Delhi.", "In Column 6, which relates to total areas in acreage, letters N.A. has been used against 7 centres (1 at Bangalore, 1 at Chennai, 1 at Hyderabad, 4 at Bombay, 1 in NCR and 1 at Tirupur, Coimbatore (T.N.)).", "In Column 7, which relates to gross indoor size (in sq.", "mtrs.), the letters N.A. has been used against four centres (1 at Gurgaon, 1 at Hyderabad and 2 at Delhi).", "In Column 8, which relates to open area (in sq.", "mtrs.), the letters N.A. has been used against 15 centres (1 at Bangalore, 1 at Chennai, 1 at Coimbatore, 1 at Gurgaon, 2 at Hyderabad, 4 at Bombay, 2 in NCR, 1 at Tirupur and 2 at Delhi).", "In the last column, which relates to number of halls, letters N.A. has been used against 7 centres at Coimbatore, Gurgaon, Hyderabad, World Trade Centre Mumbai, Dhirubhai Ambani International Convention and Exhibition Centre Mumbai and two at Delhi.", "The use of words NA signifies Not Available.", "It is quite possible that the appellant may not have been able to collect complete data regarding various exhibition centres operating in different parts of the country, it was the solemn duty of the DG to have conducted a comprehensive investigation to ascertain the actual position.", "Unfortunately, he did not even bother to find out what is the total area of various  (Page 63 of 114)  centres available in the country other than Delhi, what was the total gross indoor area, what the open area, what were the numbers of halls.", "Rather, he proceeded on the assumption that being the largest complex in Delhi, which is capital of the country, Pragati Maidan is the only venue which can be treated as the relevant market.", "It is not as if no data or statistics could be made available about the total area of the Bangalore International Exhibition Centre, Chennai Trade Centre, Hyderabad Trade Fair Centre, Godrej Works (Mumbai), Nehru Centre (Mumbai) and India Fair Complex, Tirupur, Coimbatore (T.N.).", "It is also not possible to believe that the DG was not in a position to find out the gross indoor size of Exhibition Cum Convention Centre at Gurgaon, Hyderabad International Trade Expositions Limited, Bombay Exhibition Centre, Goregaon and he could not find out the total open area of Trade Centre at Bangalore, Coddissia Trade Fair Complex, Coimbatore, Hyderabad International Trade Expositions Limited and Hyderabad Trade Fair Centre, Bombay Exhibition Centre, Goregaon, Nehru Centre, World Trade Centre at Mumbai, India Expo Centre Expo XXI (NCR), India Exposition Centre and Mart Limited (NCR), India Fair Complex Tirupur, Coimbatore (T.N.) and other places mentioned in the chart.", "Respondent Number 1 has not offered any explanation as to why the DG had, despite the availability of enormous power under Regulations 41 and 42 of the Regulations make any effort to collect information on the vital factors mentioned in the chart.", "The reason for this appears to be the obsession of the DG with Pragati Maidan having a large area and the fact that several fairs and exhibitions, national and international, are held every year at that venue.", "I am sure that if the DG had taken little trouble to send his representative to collect complete information about the 4 venues available at Mumbai, 3 venues available at Chennai, 2 venues available at Bengalore and 2 venues available at Hyderabad, then he would have been in a position to objectively make a comparative analysis of the availability of amenities and facilities at those venues as compared to Pragati Maidan, convenience of the customers, visiting public at those venues, the traffic problems, etc.", "Total failure on the part of the DG to even make an attempt to find out these details and particular coupled with its failure to examine any customer, who may have participated in the trade fairs exhibitions organised at the places mentioned in the table and his obsession with Pragati Maidan and Delhi lends credibility of the argument of the learned Senior Counsel of the appellant that the DG had not conducted proper investigation with reference to the relevant factors for the purpose of determination of the relevant market.", "It also leads to an irresistible inference that the exercise undertaken for determination of relevant market was laconic in several respects.", "In fact, it is a case of complete failure of the DG to perform the duty vested upon him.", "Unfortunately, the Commission too has decided the relevant market with a pre-conceived notion that Delhi, being the capital of the country and having largest physical area, Pragati Maidan can only be treated as the relevant market as a venue for international national trade fairs exhibitions in Delhi.", "What is most surprising is that neither the DG nor the Commission made any attempt to ascertain the availability of various amenities and conveniences at places available in other important cities like Bangalore, Mumbai, Chennai and Hyderabad.", "They did not obtain the empirical data prepared by various Government Agencies on the traffic problems at the locations where trade fair exhibition centres are being organised, at least, in the two metropolitan cities and equally big cities like Bangalore and Hyderabad.", "They did not examine even a single customer, who may have availed the opportunity to participate in the trade fairs and exhibitions organised at Bangalore, Chennai, Mumbai and Hyderabad.", "All this supports the argument of the learned Senior Counsel that while deciding the issue of relevant market, the DG and the Commission were obsessed with the idea that Delhi and Delhi alone can be the  (Page 64 of 114)  relevant market and venue for international national trade fairs exhibitions and their finding is vitiated by paten error.", "The determination of relevant geographic market by the DG is likewise flawed.", "At the cost of repetition, I would like to observe that the concerned officer had proceeded to determine the relevant geographic market with the obsession that Delhi being the capital of the country with easy accessibility to the parties proposing international national trade fairs and exhibitions to Central and State Governments Agencies as the determining factor relevant for the determination of relevant geographic market.", "In my view, Shri Venugopal is right in his contention that if the DG had made a comparative study of various amenities and facilities available at Delhi and different places with reference to specific parameters, then alone Delhi could not have been described as relevant geographic market and taking note of the venues available in various parts of the country, India and India alone can be treated as relevant geographic market for organisation of fairs and exhibitions.", "At this stage, it will be useful to notice the guidelines laid down by the European Commission for determining the relevant market, relevant geographic market, their concept and objective of Community Competition Policy and the manner in which the evidence should be gathered.", "Though not binding on the Commission and the courts in this country, these guidelines do help in understanding the approach required to be adopted for determination of the relevant market and relevant geographic market.", "The relevant portions of the EU Note are extracted below: Market definition is a tool to identify and define the boundaries of competition between firms.", "It serves to establish the framework within which competition policy is applied by the Commission.", "The main purpose of market definition is to identify in a systematic way the competitive constraints that the undertakings involved face.", "The objective of defining a market in both its product and geographic dimension is to identify those actual competitors of the undertakings involved that are capable of constraining those undertakings behaviour and of preventing them from behaving independently of effective competitive pressure.", "It is from this perspective that the market definition makes it possible inter alia to calculate market shares that would convey meaningful information regarding market power for the purposes of assessing dominance or for the purposes of applying Article 85.", "It follows from point 2 that the concept of relevant market is different from other definitions of market often used in other contexts.", "For instance, companies often use the term market to refer to the area where it sells its products or to refer broadly to the industry or sector where it belongs.", "The definition of the relevant market in both its product and its geographic dimensions often has a decisive influence on the assessment of a competition case.", "By rendering public the procedures which the Commission follows when considering market definition and by indicating the criteria and evidence on which it relies to reach a decision, the Commission expects to increase the transparency of its policy and decision-making in the area of competition policy.", "Increased transparency will also result in companies and their advisers being able to better anticipate the possibility that the Commission may raise  (Page 65 of 114)  competition concerns in an individual case.", "Companies could, therefore, take such a possibility into account in their own internal decision-making when contemplating, for instance, acquisitions, the creation of joint ventures, or the establishment of certain agreements.", "It is also intended that companies should be in a better position to understand what sort of information the Commission considers relevant for the purposes of market definition.", "The Commissions interpretation of relevant market is without prejudice to the interpretation which may be given by the Court of Justice or the Court of First Instance of the European Communities.", "Definition of relevant product market and relevant geographic market The Regulations based on Article 85 and 86 of the Treaty, in particular in section 6 of Form A B with respect to Regulation No 17, as well as in section 6 of Form CO with respect to Regulation (EEC) No 4064/89 on the control of concentrations having a Community dimension have laid down the following definitions, Relevant product markets are defined as follows: A relevant product market comprises all those products and or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products characteristics, their prices and their intended use.", "Relevant geographic markets are defined as follows: The relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those area.", "The relevant market within which to assess a given competition issue is therefore established by the combination of the product and geographic markets.", "The Commission interprets the definitions in paragraphs 7 an 8 (which reflect the case-law of the Court of Justice and the Court of First Instance as well as its own decision-making practice) according to the orientations defined in this notice.", "Concept of relevant market and objectives of Community competition policy 1 0 .", "The concept of relevant market is closely related to the objectives pursued under Community competition policy.", "For example, under the Communitys merger control, the objective in controlling structural changes in the supply of a product service is to prevent the creation or reinforcement of a dominant position as a result of which effective competition would be significantly impeded in a substantial part of the common market.", "Under the Communitys competition rules, a dominant position is such that a firm or group of firms would be in a position to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers.", "Such a position would usually arise when a firm or group of firms accounted for a large share of the supply in any given market, provided that other factors analysed in the assessment (such as entry barriers, customers capacity to react, etc.) point in the same direction.", " (Page 66 of 114)  The same approach is followed by the Commission in its application of Article 86 of the Treaty to firms that enjoy a single or collective dominant position.", "Within the meaning of Regulation No 17, the Commission has the power to investigate and bring to an end abuses of such a dominant position, which must also be defined by reference to the relevant market.", "Markets may also need to be defined in the application of Article 85 of the Treaty, in particular, in determining whether an appreciable restriction of competition exists or in establishing if the condition pursuant to Article 85 (3) (b) for an exemption from the application of Article 85 (1) is met.", "The criteria for defining the relevant market are applied generally for the analysis of certain types of behaviour in the market and for the analysis of structural changes in the supply of products.", "This methodology, though, might lead to different results depending on the nature of the competition issue being examined.", "For instance, the scope of the geographic market might be different when analysing a concentration, where the analysis is essentially prospective, from an analysis of past behaviour.", "The different time horizon considered in each case might lead to the result that different geographic markets are defined for the same products depending on whether the Commission is examining a change in the structure of supply, such as a concentration or a cooperative joint venture, or examining issues relating to certain past behaviour.", "Basic principles for market definition Competitive constraints 1 3 .", "Firms are subject to three main sources or competitive constraints: demand substitutability, supply substitutability and potential competition.", "From an economic point of view, for the definition of the relevant market, demand substitution constitutes the most immediate and effective disciplinary force on the suppliers of a given product, in particular in relation to their pricing decisions.", "A firm or a group of firms cannot have a significant impact on the prevailing conditions of sale, such as prices, if its customers are in a position to switch easily to available substitute products or to suppliers located elsewhere.", "Basically, the exercise of market definition consists in identifying the effective alternative sources of supply for the customers of the undertakings involved, in terms both of products services and of geographic location of suppliers.", "The competitive constraints arising from supply side substitutability other then those described in paragraphs 20 to 23 and from potential competition are in general less immediate and in any case require an analysis of additional factors.", "As a result such constraints are taken into account at the assessment stage of competition analysis.", "Demand substitution The assessment of demand substitution entails a determination of the range of products which are viewed as substitutes by the consumer.", "One way of making this determination can be viewed as a speculative experiment, postulating a hypothetical small, lasting change in relative prices and evaluating the likely reactions of customers to that increase.", "The exercise of market definition focuses on prices for operational and practical purposes,  (Page 67 of 114)  and more precisely on demand substitution arising from small, permanent changes in relative prices.", "This concept can provide clear indications as to the evidence that is relevant in defining markets.", "Conceptually, this approach means that, starting from the type of products that the undertakings involved sell and the area in which they sell them, additional products and areas will be included in, or excluded from, the market definition depending on whether competition from these other products and areas affect or restrain sufficiently the pricing of the parties products in the short term.", "The question to be answered is whether the parties customers would switch to readily available substitutes or to suppliers located elsewhere in response to a hypothetical small (in the range 5 to 10 ) but permanent relative price increase in the products and areas being considered.", "If substitution were enough to make the price increase unprofitable because of the resulting loss of sales, additional substitutes and areas are included in the relevant market.", "This would be done until the set of products and geographical areas is such that small, permanent increases in relative prices would be profitable.", "The equivalent analysis is applicable in cases concerning the concentration of buying power, where the starting point would then be the supplier and the price test serves to identify the alternative distribution channels or outlets for the suppliers products.", "In the application of these principles, careful account should be taken of certain particular situations as described within paragraphs 56 and 58.", "A practical example of this test can be provided by its application to a merger of, for instance, soft-drink bottlers.", "An issue to examine in such a case would be to decide whether different flavours of soft drinks belong to the same market.", "In practice, the question to address would be whether consumers of flavour A would switch to other flavours when confronted with a permanent price increase of 5 to 10 for flavour A. If a sufficient number of consumers would switch to, say, flavour B, to such an extent that the price increase for flavour A would not be profitable owing to the resulting loss of sales, then the market would comprise at least flavours A and B. The process would have to be extended in addition to other available flavours until a set of products is identified for which a price rise would not induce a sufficient substitution in demand.", "Generally, and in particular for the analysis of merger cases, the price to take into account will be the prevailing market price.", "This may not be the case where the prevailing price has been determined in the absence of sufficient competition.", "In particular for the investigation of abuses of dominant positions, the fact that the prevailing price might already have been substantially increased will be taken into account.", "The process of defining the relevant market in practice Product dimension There is a range of evidence permitting an assessment of the extent to which substitution would take place.", "In individual cases, certain types of evidence will be determinant, depending very much on the characteristics and specificity of the industry and products or services that are being examined.", "The same type of evidence may be of no importance in other  (Page 68 of 114)  cases.", "In most cases, a decision will have to be based on the consideration of a number of criteria and different items of evidence.", "The Commission follows an open approach to empirical evidence, aimed at making an effective use of all available information which may be relevant in individual cases.", "The Commission does not follow a rigid hierarchy of different sources of information or types of evidence.", "The process of defining relevant markets may be summarized as follows: on the basis of the preliminary information available or information submitted by the undertakings involved, the Commission will usually be in a position to broadly establish the possible relevant markets within which, for instance, a concentration or a restriction of competition has to be assessed.", "In general, and for all practical purposes when handling individual cases, the question will usually be to decide on a few alternative possible relevant markets.", "For instance, with respect to the product market, the issue will often be to establish whether product A and product B belong or do not belong to the same product market.", "it is often the case that the inclusion of product B would be enough to remove any competition concerns.", "In such situations it is not necessary to consider whether the market includes additional products, or to reach a definitive conclusion on the precise product market.", "If under the conceivable alternative market definitions the operation in question does not raise competition concerns, the question of market definition will be left open, reducing thereby the burden on companies to supply information.", "Geographic dimension 2 8 .", "The Commissions approach to geographic market definition might be summarized as follows: it will take a preliminary view of the scope of the geographic market on the basis of broad indications as to the distribution of market shares between the parties and their competitors, as well as a preliminary analysis of pricing and price differences at national and Community or EEA level.", "This initial view is used basically as a working hypothesis to focus the Commissions enquiries for the purposes of arriving at a precise geographic market definition.", "The reasons behind any particular configuration of prices and market shares need to be explored.", "Companies might enjoy high market shares in their domestic markets just because of the weight of the past, and conversely, a homogeneous presence of companies throughout the EEA might be consistent with national or regional geographic markets.", "The initial working hypothesis will therefore be checked against an analysis of demand characteristics (importance of national or local preferences, current patterns of purchases of customers, product differentiation brands, other) in order to establish whether companies in different areas do indeed constitute a real alternative source of supply for consumers.", "The theoretical experiment is again based on substitution arising from changes in relative prices, and the question to answer is again whether the customers of the parties would switch their orders to companies located elsewhere in the short term and at a negligible cost.", "If necessary, a further check on supply factors will be carried out to  (Page 69 of 114)  ensure that those companies located in differing areas do not face impediments in developing their sales on competitive terms throughout the whole geographic market.", "This analysis will include an examination of requirements for a local presence in order to sell in that area the conditions of access to distribution channels, costs associated with setting up a distribution network, and the presence or absence of regulatory barriers arising from public procurement, price regulations, quotas and tariffs limiting trade or production, technical standards, monopolies, freedom of establishment, requirements for administrative authorizations, packaging regulations, etc.", "In short, the Commission will identify possible obstacles and barriers isolating companies located in a given area from the competitive pressure of companies located outside that area, so as to determine the precise degree of market interpenetration at national, European or global level.", "The process of gathering evidence When a precise market definition is deemed necessary, the Commission will often contact the main customers and the main companies in the industry to enquire into their views about the boundaries of product and geographic markets and to obtain the necessary factual evidence to reach a conclusion.", "The Commission might also contact the relevant professional associations, and companies active in upstream markets, so as to be able to define, in so far as necessary, separate product and geographic markets, for different levels of production or distribution of the products services in question.", "It might also request additional information to the undertakings involved.", "Where appropriate, the Commission will address written requests for information to the market players mentioned above.", "These requests will usually include questions relating to the perceptions of companies about reactions to hypothetical price increases and their views of the boundaries of the relevant market.", "They will also ask for provision of the factual information the Commission deems necessary to reach a conclusion on the extent of the relevant market.", "The Commission might also discuss with marketing directors or other officers of those companies to gain a better understanding on how negotiations between suppliers and customers take place and better understand issues relating to the definition of the relevant market.", "Where appropriate, they might also carry out visits or inspections to the premises of the parties, their customers and or their competitors, in order to better understand how products are manufactured and sold.", "Views of customers and competitors.", "The Commission often contacts the main customers and competitors of the companies involved in its enquiries, to gather their views on the boundaries of the product market as well as most of the factual information it requires to reach a conclusion on the scope of the market.", "Reasoned answers of customers and competitors as to what would happen if relative prices for the candidate products were to increase in the candidate geographic area by a small amount (for instance of 5 to 10 ) are taken into account when they are sufficiently backed by factual evidence.", "Consumer preferences.", "In the case of consumer goods, it may be difficult for the Commission to gather the direct views of end consumers about  (Page 70 of 114)  substitute products.", "Marketing studies that companies have commissioned in the past and that are used by companies in their own decision-making as to pricing of their products and or marketing actions may provide useful information for the Commissions delineation of the relevant market.", "Consumer surveys on usage patterns and attitudes, data from consumers purchasing patterns, the views expressed by retailers and more generally, market research studies submitted by the parties and their competitors are taken into account to establish whether an economically significant proportion of consumers consider two products as substitutable, also taking into account the importance of brands for the products in question.", "The methodology followed in consumer surveys carried out ad hoc by the undertakings involved or their competitors for the purposes of a merger procedure or a procedure pursuant to Regulation No 17 will usually be scrutinized with utmost care.", "Unlike preexisting studies, they have not been prepared in the normal course of business for the adoption of business decisions.", "Barriers and costs associated with switching demand to potential substitutes.", "There are a number of barriers and costs that might prevent the Commission from considering two prima facie demand substitutes as belonging to one single product market.", "It is not possible to provide an exhaustive list of all the possible barriers to substitution and of switching costs.", "These barriers or obstacles might have a wide range of origins, and in its decisions, the Commission has been confronted with regulatory barriers or other forms of State intervention, constraints arising in downstream markets, need to incur specific capital investment or loss in current output in order to switch to alternative inputs, the location of customers, specific investment in production process, learning and human capital investment, retooling costs or other investments, uncertainty about quality and reputation of unknown suppliers, and others.", "Basic demand characteristics.", "The nature of demand for the relevant product may in itself determine the scope of the geographical market.", "Factors such as national preferences or preferences for national brands, language, culture and life style, and the need for a local presence have a strong potential to limit the geographic scope of competition.", "Views of customers and competitors.", "Where appropriate, the Commission will contact the main customers and competitors of the parties in its enquiries, to gather their views on the boundaries of the geographic market as well as most of the factual information it requires to reach a conclusion on the scope of the market when they are sufficiently backed by factual evidence.", "Current geographic pattern of purchases.", "An examination of the customers current geographic pattern of purchases provides useful evidence as to the possible scope of the geographic market.", "When customers purchase from companies located anywhere in the Community or the EEA on similar terms, or they procure their supplies through effective tendering procedures in which companies from anywhere in the Community or the EEA submit bids, usually the geographic market will be considered to be Community- wide.", " (Page 71 of 114)  In Dan A. MORGENSTERN, MD., Vs.", "Charles section WILSON, M.D. and others, the United States Court of Appeals, Eighth Circuit, considered the question whether professional corporation formed in Lincoln and Nebraska was bound to provide administrative, clinical and marketing services to its members and against group cardiology practice and cardio-surgical group practice which constituted the members of professional corporation.", "It was alleged that refusal of the corporation was contrary to the Sherman Antitrust Act.", "The United States District Court for the District of Nebraska granted injuncting relief to cardiac surgeon.", "The Court of Appeals reversed the order of the District Court.", "The relevant paragraphs of the same read as under: FN 2.", "Our resolution of the issue of the relevant geographic market has made it unnecessary for us to reach all of the issues presented on appeal.", "Defendants raise several challenges to the theories of liability upon which the present case was submitted to the jury.", "Defendants first argue that, as a matter of law, a medical referral from one specialist to another is an act of medical judgment and cannot support antitrust liability.", "Defendants also argue that an actual monopolization claim must be predicated on the market domination of a single defendant or single economic entity and cannot be established by combining the market power of multiple defendants.", "There is a split in authority on this question.", "See generally Julian O. von Kalinowski, Antitrust Laws and Trade Regulation Secs.", "17.01, 19.06 (1993) II E. Kinter, Federal Antitrust Law, Sec.", "16.2, at 482 (1980) (indicating that several firms acting in concert can be guilty of actual monopolization).", "Defendants further contend that, if this Court recognizes such a joint monopolization claim, it should treat such a claim as a conspiracy to monopolize claim, and, thus, require an agreement among defendants to commit an anti-competitive act.", "The jury in the present case was not instructed regarding the finding of an agreement.", "We are cognizant that no circuit has squarely addressed these questions.", "Even were we to rule in Morgensterns favor on these issues, defendants would still be entitled to judgment in their favor.", "We consequently leave resolution of these issues for an appropriate case.", "56 To establish that defendants have the market power required for monopolization liability, Morgenstern had to establish that defendants have a dominant market share in a well-defined relevant market.", "Flegel v. Christian Hosp., Northeast-Northwest, 4 : F. 3d 682, 689 (8th Cir. 1993) (quoting Assam Drug Company v. Miller Brewing Company, 798 F. 2d 311, 318 (8th Cir.", "1986)).", "The relevant market is defined in terms of both product market (here, adult cardiac surgery) and geographic market.", "An actual monopolization claim often succeeds or fails strictly on the definition of the product or geographic market.", "Alexander v. National Farmers Organization, 687 F. 2d 1173, 1181 (8th Cir.", "1982) (citing Julian O. von Kalinowski, Antitrust Laws and Trade Regulation, Secs.", "8.02c, 9.01 (1982) (collecting cases)), cert.", "denied, 461 U.S. 937, 103 section Ct. 2108, 77 L. Ed. 2d 313 (1983).", "78 The geographic market encompasses the geographic area to which consumers can practically turn for alternative sources of the product and in which the antitrust defendants face competition.", "Baxley-DeLamar Monuments, Inc., v. American Cemetery Assn,  : 938 F. 2d 846, 850 (8th Cir. 1991).", "The burden of establishing that a specified area constitutes a relevant geographic market in a particular case rests with  (Page 72 of 114)  the plaintiff.", "United States v. Empire Gas Corp.,  : 537 F. 2d 296 (8th Cir.", "1976), cert.", "denied, 429 U.S. 1122, 97 section Ct. 1158, 51 L. Ed.", "2d 572 (1977).", "910 In the present case, Morgenstern proposed a relevant market of patients of adult cardiac surgery to include Lincoln and twenty-six surrounding Nebraska counties extending in certain directions over 200 miles beyond Lincoln.", "However, Morgensterns relevant geographic market excluded the heart programs in Omaha and all other regional and national heart programs.", "Defendants relevant geographic market included, at a minimum, Omaha.", "The question before this Court is whether Morgenstern provided sufficient evidence from which the jury could reasonably have found that defendants possessed market power within the relevant geographic market.", "Within the relevant geographic market found by the jury (Lincoln and twenty-six surrounding counties, but not including Omaha), defendants possessed close to eighty percent of the market share of the patients.", "An eighty percent market share is within the permissible range from which an inference of monopoly power can be drawn.", "If, as defendants contend, the relevant geographic market includes Omaha, then defendants have only a thirty percent market share.", "As a matter of law, absent other relevant factors, a thirty percent market share will not prove the existence of monopoly power.", "See, e.g., Fineman v. Armstrong World Indus.", ", Inc.,  : 980 F. 2d 171, : 201 (3d Cir. 1992) (fifty-five percent market share is insufficient to constitute monopoly power), cert.", "denied, 507 U.S. 921, 113 S.Ct.", "1285, 122 L.Ed.", "2d 677 (1993) Domed Stadium Hotel, Inc. v. Holiday Inns, Inc.,  : 732 F. 2d 480,  : 489 (5th Cir.", "1984) (ninety percent is enough, sixty percent is not likely to suffice, and thirty-three is insufficient) (citations omitted) Lektro-Vend Corp. v. Vendo Company,  : 660 F. 2d 255 (7th Cir.", "1981) (thirty percent market share insufficient), cert.", "denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.", "2d 461 (1982) United States v. Empire Gas Corp.,  : 537 F. 2d 296 (8th Cir.", "1976) (forty-seven to fifty percent share in liquid propane gas market held insufficient), cert.", "denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.", "2d 572 (1977).", "11 A close examination of the record reveals that Morgensterns evidence regarding the relevant geographic market failed to address a critical legal question: where could consumers of the product (adult cardiac surgery) practicably turn for alternative sources of the product.", "See Tampa Electric Company Nashville Coal Company,  : 365 U.S. 320,  : 331-32, 81 section Ct.", "623,  : 630, 5 L. Ed.", "2d 580 (1961)(defining the relevant geographic area as the market area in which the seller operates, and to which the purchaser can practicably turn for supplies).", "The evidence provided by Morgenstern to support his geographic market definition consisted primarily of expert testimony regarding the residences of the cardiac surgery patients in the Lincoln and Omaha heart surgery programs, and the Nebraska counties that supplied the largest number of patients to each program.", "Morgensterns proposed geographic market was also based upon evidence that cardiologists in Lincoln seldom refer their patients to cardiac surgeons in Omaha.", "Joint  (Page 73 of 114)  Appendix Vol.", "IV at 1692, 1791.", "Morgensterns expert focused upon where Lincoln and Omaha residents actually went, as opposed to where they could practicably go, for their cardiac surgery services, and specifically presented insufficient evidence regarding whether or not CVTS patients could practicably turn for alternative sources of the product to Omaha or other more distant heart programs.", "Morgensterns expert concluded that Lincoln and Omaha must be in different geographic markets because patients overwhelmingly went to the closest hospital.", "Brief for Appellee at 20.", "Morgenstern further provided no evidence that patients viewed Lincoln as a market separate from Omaha, located only fifty-eight miles from Lincoln.", "The evidence produced in the present case falls far short of establishing Lincoln and surrounding counties, to the exclusion of Omaha, as the relevant geographic market.", "By contrast, the record shows that Omaha should have been included in the relevant geographic market definition.", "The Supreme Court has recognized the importance of distance and its counterpart convenience in determining the relevant geographic market.", "See United States v. Philadelphia Natl Bank,  : 374 U.S. 321,  : 358, 83 section Ct.", "1715, 1738-39,  : 10 L. Ed.", "2d 915 (1963).", "Defendants evidence showed that Lincoln residents need travel only fifty-eight miles by main highway to receive cardiac surgical care in Omaha.", "Morgenstern himself traveled from Lincoln to Omaha on more than thirty occasions in a single year to assist in performing cardiac surgery.", "The defendants also provided testimony from health care providers in various professions throughout Nebraska who uniformly confirmed the existence of vigorous competition between Lincoln and Omaha.", "Lincoln cardiologists and cardiac surgeons testified to strong competition between them and the six Omaha heart programs.", "Joint Appendix Vol.", "II at 810-18, 904, 979-80 Vol.", "III at 1174- 76, 1215-17, 1466-68.", "Omaha cardiac surgeons and hospital administrators testified to strong competition from CVTS and the cardiologists of CCPC.", "Moreover, the evidence showed that, throughout Nebraska, primary care physicians considered both Lincoln and Omaha as feasible sources of healthcare when making recommendations to their patients in need of cardiac surgery services.", "Joint Appendix Vol.", "II at 766-72, 775, 935 Vol.", "III at 1079-83, 1227-28.", "In Lincoln itself, physicians would refer patients to Omaha if, in their medical judgment, better treatment was available there.", "Joint Appendix Vol.", "II at 777-80.", "Defendants expert provided further corroborative evidence consisting of three distinct economic studies designed to determine reasonable, practicable substitutes for Lincolns residents in need of cardiac surgery services.", "Each analysis concluded that the relevant geographic market consisted of, at a minimum, Lincoln and Omaha.", "Emphasis supplied Reverting to the issue of time gap policy, I would like to observe that the finding recorded by the DG which the Commission has recorded its agreement albeit without even going through the record including detailed reply dated 13.08.2013 filed by the appellant in response to the notice issued by the DG and reply dated 25.03.2014 filed by it after receipt of the investigation report is ex-facie erroneous.", "In the first place, it needs to be emphasised that there was absolutely no occasion much less justification for the DG to have devoted much of his time on the policy introduced by the Government of India in 1999 and by the appellant in 2006 because the appellant  (Page 74 of 114)  had made a statement before the Commission on 12.03.2013 that a competition- friendly uniform policy for licensing exhibition space and facilities at Pragati Maidan for future exhibitions fairs is being framed and anomaly in the existing policy has been rectified.", "Not only this, Senior Manager of the appellant, Shri section Bahadur, filed an unequivocal undertaking in that regard and assured that the current policy will be modified within three months to ensure uniformity in organising exhibitions fairs at Pragati Maidan and, in fact, the revised policy was issued vide circular dated 20.05.2013.", "Therefore, it cannot be said that the Commission was not aware of the fact that the appellant has taken in-principle decision to revise the time gap policy and yet it issued an order under Section 26(1).", "So far as the DG is concerned, he was very much aware of the modification made in the policy and knew that from 20.05.2013, the time gap between an ITPO Fair and 3rd party fair of similar profile had been reduced to 3 days before and after except that no fair of similar product profile could be held concurrently by the third party organisers.", "Unfortunately, both the DG and the Commission completely overlooked the amendments made in the policy and returned a finding that the appellant had acted in violation of various sub- section of Section 4 and their sub-clauses.", "In the investigation report, the DG agreed that there was economic rationale for time gap policy, but still held it to be arbitrary.", "The Commission did not even bother to direct its attention to the economic rationale of the time gap policy supplied by the appellant in its replies dated 13.08.2013 and 25.03.2014.", "It completely ignored the salient points in the two policies filed by the appellant, which are being extracted below at the cost of repetition: ITPO and its predecessors had been created incorporated for organization of fairs exhibitions and Pragati Maidan, which is owned by the Central Government, was placed at their disposal, was given to them for achieving the main objections set-out in the Memorandum of Association i.e. promotion, organisation and participation in Industrial Trade Fairs and Exhibitions in India and abroad and to take all measures incidental thereto for boosting up the countrys trade to publicize in India and abroad International Trade Fairs and Exhibitions to be held in India and mobilize the foreign participation to promote exports and to explore new markets for traditional items of exports and develop exports of new items with a view to maintaining, diversifying and expanding the export trade and to support and assist Small and Medium Enterprises to access markets both in India and abroad and this was the reason why in the initial years, Pragati Maidan was exclusively used by the Trade Fair Authority of India and then by the appellant for organisation of trade fairs and exhibitions.", "No-one could possibly take any exception to the utilisation of the Government asset i.e. Pragati Maidan, which was given to the Indian Trade Fair Authority of India on nominal rent.", "Of course, vide indenture dated 07.03.2011, perpetual lease was granted in the appellants favour by the President of India acting through the Land and Development Officer, New Delhi, subject to payment of Rs. 2,40,00,000/- and a specified amount on annual basis.", "In paragraph (f) of reply dated 13.08.2013, the appellant had given detailed reasons for difference in the applicable terms and conditions and rates, charges fees etc.", "for booking of Pragati Maidan venue by the appellant viz-a-viz private players.", "Although, it may appears repetitive, I deem it necessary to extract that portion of the reply, which is as under: Whether there are any differences in applicable terms, conditions  (Page 75 of 114)  and rates, charges, fees etc.", "for booking of Pragati Maidan venue by ITPO itself vis-a-vis that for other players? If yes, please highlight the same along with rationale.", "As stated above, ITPO is a Govt.", "of India Enterprises entrusted with the responsibility of promoting external and domestic trade of India in a cost effective manner by organising and participating in international trade fairs in India and abroad.", "The main focus of ITPO is to support and assist small and medium (not legible) both in India and abroad.", "ITPOs events cover a wide variety of sectors such as handlooms, handicrafts, textiles, manufacturing, processed food, publishing and printing industry, agriculture, leather goods.", "Thus, ITPO organises events in Pragati Maidan with an objective of trade promotion and as such the cost of participation in ITPOs events in Pragati Maidan is required to be kept at a reasonable level as compared to the events organised by third party organisers.", "Pragati Maidan, as a venue for organising trade fairs, has been hosting trade fairs exhibitions for more than four decades now.", "Some of the major exhibitions organised in the past are ASIA 72, Agri Expo 77, National Small Industries 778 etc.", "Thus Pragati Maidan has been hosting trade fairs and exhibitions on behalf of Govt.", "of India since the time when Private players organisers in this industry were almost non-existent.", "Thereafter in the later years, private organisers entered in the business of organising trade fairs and exhibitions in Pragati Maidan with a limited objective of commercial benefit.", "Thus, a third party event in Pragati Maidan is primarily organised by companies organisations with profit-motive and accordingly the cost of participation is usually kept high by them.", "ITPO generally targets small and medium enterprises to provide them a platform to exhibit their products at a reasonable cost.", "Further, in the events organised by ITPO, facilities in the form of discounted rentals, complimentary space publicity support are provided to the organisations like State Govt Union Territories, Central Leather Research Institute, NSIC CAPART, MSME, APEDA, training Institutes etc.", "which may not be possible by a private organiser.", "Keeping the above in view, ITPO, being owner of Pragati Maidan, does not invoice itself for using its facilities for trade promotion activities.", "Thus, the terms and conditions to the extent of space rent of halls are not accounted for while working out the cost of organising an event by ITPO.", "In paragraph 7 of that reply, the appellant explained the rationale of the time gap policy and in paragraph 8, it highlighted the difference in the provisions applicable to the appellants events and those of the third parties in relation to the similar product profile.", "These paragraphs are also reproduced below: Explain the rationale for the time gap restrictions between events.", "Guidelines on time gap restrictions between two events of similar  (Page 76 of 114)  product profile were introduced by Ministry of Commerce vide guidelines issued through Letter Number 10(7)/95-TP (Vol II) dated 21.9.1999.", "It conveyed the need for such framework as It has been observed that a large number of organisers are coming forward to organise events in India and abroad and at times frequent exhibitions convey confusing signals to the participants and to business visitors from India and abroad confusing signals to the participants and to business visitors from India and abroad when events on similar themes overlap.", "Lack of appropriate spacing of events also (line not legible) for the organiser and the nation.", "Further, there exists the need to have transparency in granting approvals by the Designated Authority.", "Thus the need was felt to review the existing framework and a Committee was constituted by the Ministry of Commerce for the same.", "It further mentions that Any Indian entity wishing to organise any International trade Fairs exhibitions in India or abroad would be required to obtain a certificate from an officer of Government of India in the Ministry of Commerce not below the rank of Under Secretary or an office of India Trade Promotion Organisation duly authorised by its Chairman on this behalf to the effect that such exhibition, fairs or as the case may, similar show or display, has been approved or sponsored by the Government of India in the Ministry of Commerce or the India Trade Promotion Organisation and the same is being held in public interest (Export - Import Policy 1997-2002, Handbook of Procedures 11, para 11.71).", "(Annexure V- A).", "These guidelines have been issued amended by Ministry of Commerce from time to time in the following manner: Vide letter Number 10(7)/95-TP (Vol II) dated September 21, 1999, Ministry of Commerce issued the guidelines for holding international fairs in India and India trade exhibitions abroad by organizers other than the ITPO.", "As per these guidelines, time gap required between two international trade exhibitions fairs in India on the same theme and similar product profile within the same city would be 3 months and if held in another city, it would be one month.", "Further, for Indian exhibitions abroad, a gap of 12 months would be maintained between exclusive Indian Exhibitions Made in India Exhibitions.", "(Annexure VI).", "Vide letter Number D.O. Number 11(14)/99-TP dated Jan. 2, 2011, Ministry of Commerce amended the guidelines related to time gap required between two international exhibitions fairs in India on the same these and similar product profile and directed that within the same city, time gap would be 45 days instead of 3 months as stipulated earlier.", "However, for IT, Telecom and Broadcasting sectors, there will be no need for maintaining any time gap, if held within the same city.", "Time gap of one month to be maintained between two international exhibitions fairs on the same these and similar product profile in two different cities in India.", "(Annexure VII)  (Page 77 of 114)  Vide letter Number 11 (14)/99-TP dated Feb. 27, 2003 from Ministry of Commerce, it was conveyed that no time gap restriction between two exhibitions fairs irrespective of where the exhibition fairs are held.", "(Annexure VIII).", "The above guidelines were being followed by ITPO also.", "However, the time gap policy between two events of similar product profile in Pragati Maidan was introduced during the year 2006 after receipt of certain representations by ITPO from trade and industry.", "ITPO had received requests for booking of space for two events of similar product profile i.e. (i) Fespa World Expo India, Dec. 1-4, 2005 and (ii) World Expo 2005 expressed their resentment as ITPO allowed to hold concurrently another exhibition which according to them had similar produce profile.", "The matter was examined in detail and since both the events were booked, the other events dates were slightly modified to avoid conflict between the two third party organisers.", "With a view to avoid similar conflict in future ITPO management examined the possibility to have time gap between events on similar products in future.", "Similarly, in another case, ITPO received requests for booking of space for Jewellery Exhibitions from two organisers i.e. (i) Montgomery and (ii) ITE India for holding their events concurrently in the last week of Sept. 2006.", "Montgomery within 24 hours of approval of allotment of space to ITE, India raised an objection with ITPO on the issue.", "The reason for objection by one organiser to another similar event concurrently or without a buffer time is that holding similar events concurrently or without specified gap may lead to unhealthy competition and practices such as grabbing each others exhibitors, visitors and also taking advantage of publicity efforts of one organiser.", "Such time gap policy is also followed by leading exhibition venue owner worldwide.", "Thus such buffer time ensures avoiding of unfair or damaging competition among trade events and their clients.", "A copy of Booking Protocol of Hong Kong Convention and Exhibition Centre is enclosed (Annexure XI).", "After examining the above cases in detail, time gap restriction of 15 days between two events of similar product profile in Pragati Maidan was introduced by ITPO for fairs in Pragati Maidan during July 2006.", "However, after having detailed interactions discussions with industry and organisers and also with an objective to increase capacity utilisation of space in Pragati Maidan, the time gap requirement between two third party events have been done away on 21.12.2012 with subject to the condition that no concurrent events of similar product profile can be held.", "Time gap between an ITPO fair and a third party fair of similar product profile has been also reduced to 3 days before and after (for logistic reasons only).", " (Page 78 of 114)  It is also brought to the knowledge of Honble Commission that after doing away with the time gap restriction between two events of similar product profile, one of the organisers whose event namely Jewellery Wonder scheduled to be held in Pragati Maidan from Sept. 28-30, 2013, vide letter dated July 3, 2013 has objected to the allotment of space by ITPO to another Jewellery Event i.e. Delhi Jewellery Gem Fair by M s UBM India scheduled from Sept. 21-23, 2013 in Pragati Maidan.", "A copy of this letter is place at Annexure XI- The organiser of Jewellery Wonder is accusing ITPO for its unethical policies damaging Exhibition Industry as another jewellery event has been approved by ITPO in Pragati Maidan just one week before their event.", "The organiser has stated that many of their exhibitors have cancelled their stalls because of another jewellery Show approved by ITPO just one week before which is ruining their event.", "Highlight the differences in the provisions as applicable to events of ITPO and third party in case of similar product profile along with rationale thereof.", "It is reiterated that ITPO is a Govt.", "of India Enterprises entrusted with the responsibility of promoting external and domestic trade of India in a cost effective manner by organising and participating in international trade fairs in India and abroad.", "The main focus of ITPO is to support and assist small and medium enterprises to access markets - both in India and abroad.", "ITPOs events cover a wide variety of sectors such as handlooms, handicrafts, textiles, manufacturing, processed food, publishing and printing industry, agriculture, leather goods.", "Thus, ITPO organises events in Pragati Maidan with an objective of trade promotion.", "Pragati Maidan, as a venue for organising trade fairs, has been hosting trade fairs exhibitions for more than four decades now.", "Pragati Maidan has been hosting trade fairs and exhibitions on behalf of Govt.", "of India since the time when Private players organisers in this industry were almost non-existent.", "It is by virtue of immense success of fairs organised by ITPO (erstwhile TFAI) that the private sector got encouraged to enter into the business of organising trade fairs and exhibitions in India ITPO has been instrumental in the evolution trade fair industry been a sea change in the exhibition industry in India with the emerging of private players from within the country as also from overseas, the role assigned to ITPO by Govt.", "of India has not lost its significance.", "Today private organisers organise about 60-70 events annually at Pragati Maidan as compared to very few events during 80s and 90s.", "Most of these events are organised with the objective of commercial benefit and not solely for the cause of trade and industry.", "On the other hand, India Trade Promotion Organisation has been mandated to promote trade through various mediums particularly trade fairs and exhibitions.", "ITPO has been a third party event in Pragati Maidan is primarily organised by companies organisations with profit-motive and accordingly the cost of participation is usually kept high by  (Page 79 of 114)  them.", "ITPO generally targets small and medium enterprises to provide them a platform to exhibit their products at a reasonable cost.", "Further, in the events organised by ITPO, facilities in the form of discounted rentals, complimentary space, and publicity support are provided to the organisations like State Govt.", "Union Territories, Central Leather Research Institute, NSIC CAPART, MSME, APEDA, training Institutes etc.", "which may not be possible by a private organiser.", "ITPO organise events in Pragati Maidan with an objective of trade promotion and as such the cost of participation in ITPOs events in Pragati Maidan is quite low.", "ITPO generally targets small and medium enterprises to provide them platform at a reasonable cost for promoting their products.", "In the events organised by ITPO like IITF, ILFA, Aahar etc.", "the facilities in the form of discounted rentals, complimentary space, publicity support are provided to the organisations like State Govt.", "Union Territories, Central Leather Research Institute, NSIC, CAPART, MSME, APEDA, FSSA, NIFT etc., which may not be possible by a private organiser.", "Moreover, with an objective to increase capacity utilisation of Pragati Maidan, the time gap restriction between ITPO event and a third party event on similar product profile has been gradually reduced to 3 days before and after an ITPO event.", "Emphasis supplied 7 6 .", "In the reply filed by the appellant before the Commission, the appellant did casually admit that it was dominant in the field of organisation of trade and exhibitions but explained the same by giving detailed reasons in paragraph 2, which is reproduced below: Whether ITPO is dominant in the defined relevant market? ITPO is a 100 Govt.", "owned company incorporated under Section 25 of Companies Act 1956 and functions under the administrative control of Department of Commerce in the Ministry of Commerce and Industries.", "It is mandated with the responsibility of promoting trade of India in a cost effective manner through the medium of trade fairs.", "As such, ITPO is the oldest and original player and only PSU in this industry, Pragati Maidan, as a venue for organising trade fairs, has been hosting trade fairs for more than four decades now.", "Pragati Maidan has been hosting trade fair and exhibitions on behalf of Govt.", "of India since the time when Private players organisers in this industry were almost nonexistent.", "It is by virtue of immense success of fairs organised by ITPO (erstwhile TFAI) that the private sector got encouraged to enter into the business of organising trade fairs and exhibitions in India.", "ITPO has been instrumental in the evolution of trade fair exhibition industry in the country by popularising exhibition culture in the country.", "We hereby respect the firings of the investigation on the point that ITPO is dominant player in the exhibition industry by virtue of owning one of the largest exhibition venue at a prime location in the capital of the country.", "The  (Page 80 of 114)  venue is speared over an area of 123 acres and as a venue has significant area in India in terms of covered exhibition space, number of events and revenue generation.", "However, ITPO has never attempted to take advantage of its dominant position in the India exhibition industry and has been providing its space facilities to private organisers in a transparent manner.", "In fact, most of the leading third party fairs in India i.e. AutoExpo, Plastindia, World Book Fair, Acetech, Defexpo, Wills Fashion Week etc.", "have earned global recognition by successful holding of these events regularly in Pragati Maidan over the years.", "As stated above, a major part of ITPOs revenue comes from these third party fairs taking place in Pragati Maidan and ITPO would not think of denying space to its esteemed clients i.e. third party organisers.", "In a one-off incidence in the year 2011, referred to in the instant case of Security Fairs, there was never an effort or motive of denying space to any organiser, rather the space could not be allotted under the extant policy of time gap where the ultimate objective was to provide opportunities to MSMEs to participate in ITPOs fairs at a reasonable cost.", "Emphasis added The time gap policy evolved by the Central Government, its amendment from time to time, the licensing policy framed by the appellant in July, 2006 and its amendment were also highlighted in reply dated 25.03.2014.", "While justifying adoption of different yardsticks of time gap, the appellant made the following statement in paragraph 4 of the reply: Regarding time gap restriction between an ITPO fair and a third party fair of similar product profile, we humbly accept that these were not at par with the time gap restriction between two third party events of similar product profile.", "The time gap required (earlier) between an ITPO fair and a third party fair of similar product profile was higher than the time gap applicable to two third party fairs of similar product profile.", "However, we would again like to submit here that the earlier management in ITPO (2007-2011) was of the view that third party fair organisers, with the objective of making higher profits, sometimes exploit exhibitors by charging higher participation cost from them as their events have been established.", "Thus, participation by MSMEs become difficult in such established fairs.", "Since ITPO does not organise fairs with the solo objective of surplus generation and the cost of participation in ITPOs fair is kept low, the management at that time felt the need of promoting MSMEs and accordingly introduced a larger time gap between an ITPO fair and a third party fair of similar product profile.", "It is pertinent to mention that most of the senior officers, who were part of this decision, have retired or no more in the services of ITPO.", "It may be observed here that with this objective of promoting participation by small enterprises, ITPO has forgone its revenue in terms of the opportunity cost lost for available space for competing events.", "Such a policy was never brought with the objective of denying market access to any third party organiser.", "After change in management during the year 2012, a number of reform measures were undertaken taking into account aspirations of ITPOs clients.", " (Page 81 of 114)  Meetings deliberations were held regularly with stakeholders to take their feedback.", "Accordingly, in one of the meeting taken by ITPO with third party organisers on Nov. 8, 2012, the organisers put forward the issue of time gap restrictions between two events of similar product profile at Pragati Maidan.", "The request of the organisers were considered by ITPO and accordingly the policy was liberalised in Dec. 2012 by ITPO and notified, much before the receipt of the first communication from Honble CCI on the subject.", "The time gap was significantly reduced from 90 days before and after ITPO fair of similar product profile to 30 days before and 15 days after.", "Time gap restriction of 15 days between two third party events of similar product profile was also removed.", "After giving undertaking to Honble CCI, the policy was further modified to bring uniformity in organising exhibitions at Pragati Maidan and the time gap between ITPO fair and a third party fair of similar product profile was reduced significantly to 3 days.", "The requirement of 3 days gap is just for logistics reasons in terms of removal of publicity advertising material from the premises.", "Third party organisers remove all their exhibits, construction materials, brandings etc.", "immediately during the night hours after conclusion of their fair by hiring a number of vendors, service providers, labours, machineries etc.", "However, ITPO, being a Govt.", "Organisation is required to follow all labour legislations, specified working hours as per rules, safety fire regulations etc.", "and accordingly 3 days gap has been kept to take care of these requirements.", "Emphasis supplied The DG and the Commission were legally bound to take into consideration the explanation furnished by the appellant about the justification of the time gap policy and the terms and conditions for allocation of space for exhibitions fairs organised by the appellant, but both proceeded to decide the issue as if the appellant was a private organiser and it had no choice in utilising its own asset to its advantage viz-a-viz third parties.", "At least, the Commission was expected to have given due consideration to the detailed explanation given twice over by the appellant to justify the time gap policy and restriction but it simply brushed aside the same without assigning any tangible and cogent reasons.", "In my considered view, both the DG and the Commission committed grave illegality by refusing to appreciate the rationale of the time gap policy framed by the Government of India from 1999 and its amendments from time to time, the licensing policy framed by the appellant in July 2006, which also contain time gap clause, which was amended on multiple occasions and lastly on 20.05.2013.", "Both the DG and the Commission completely lost sight of the fact that on 20.05.2013, the appellant has drastically amended the time gap policy and reduced the time gap to 3 days between its own event and that of the private party of same product profile.", "The only restriction maintained was that such trade fairs exhibitions with the same profile cannot be organised at the same time and there was ample justification for doing that.", "The entire matter deserves to be examined from another angle.", "In the earlier part of this order, I have taken cognisance of the argument of Shri Krishnan Venugopal that Pragati Maidan is owned by the Central Government and the three wings of the  (Page 82 of 114)  Ministry of Commerce were engaged in organizing trade fairs and exhibitions with special emphasis on Small and Medium Enterprises and Traditional Industries.", "Subsequently, this task was assigned to the Trade Fair Authority of India and Pragati Maidan was leased out to it on nominal rent.", "The same continued to be the position with the appellant till the execution of a perpetual lease dated 07.03.2011 in the name of the President of India in favour of the appellant, the relevant portions of which are extracted below: THIS INDENTURE made on this 7th day of March, 2011 between the President of India acting through Land Development Officer, Nirman Bhawan, New Delhi (hereinafter called the Lessor) of the one part, and Trade Fair Authority of India, now India Trade Promotion Organisation, Pragati Maidan Complex, Mathura Road, New Delhi (hereinafter called the Lessee) of the other part.", "WHEREAS under the instructions of the Government of India relating to the disposal of building sites in the New Capital of Delhi, the Lessor has agreed to demise the plot of Nazul land hereinafter described to the Lessee in the manner hereinafter appearing.", "NOW THIS INDENTURE WITNESSETH that in consideration of the premium of 2,40,00,000 (Rupees Two crore forty lakhs) paid before the execution of these presents (the receipt whereof he Lessor hereby acknowledges) and of the rent hereinafter reserved and of the covenants on the part of the Lessee hereinafter contained, the Lessor doth hereby demise unto the Lessee ALL THAT plot of land containing by admeasurements 123.51 acres (40 acres of land under permanent buildings and 83,51 acres under horticulture open land) situated at Pragati Maidan Complex, Mathura Road, New Delhi in the site acquired for the erection of the New Capital of Delhi which said plot of land is more particularly described in the schedule hereunder written and with the boundaries thereof has for greater clearness been delineated on the plan annexed to these presents and thereon colored red TOGETHER with all rights, easements and appurtenances whatsoever to the said plot of land belonging or appertaining TO HOLD the premises hereby demised unto the Lessee in perpetuity from the 30.12.1976 YIELDING AND PAYING therefore the yearly ground rent of the premium payable in advance of 2 of said premium i.e. 6,00,000/- per annum (Rupees Six Lakhs only) for the land under permanent buildings and 1/- per annum for the area under horticulture open land w.e.f. 1.1.1982 onwards of such other sum as may hereafter be assessed under the covenants and conditions hereinafter contained clear of all deductions by equal half-yearly payments on the fifteenth day of January and fifteenth day of July in each year at the Axis Bank, Nirman Bhawan, New Delhi or at such other place as may be notified by the Land Development Officer for this purpose, from time to time, the first of such payments to be made on the fifteenth day of January and July.", "The land under permanent buildings which at present measure about 40 acres have been allotted to the Trade Fair Authority of India now ITPO on a 99 years lease commencing from 30.12.1976 on payment of premium at the rate of 6 lakhs per acre and annual ground rent at the rate of 2 of the said premium.", "Any land which may be allowed by the Lessor for permanent construction in future will be allotted to the Trade Fair Authority of India now ITPO at a premium worked out on the basis of rates in force on the date of  (Page 83 of 114)  allotment plus 2 thereof as annual ground rent.", "The area of approximately 83.51 acres under horticulture open land in Pragati Maidan Complex shall be allotted to Trade Fair Authority of India now ITPO on payment of a nominal ground rent of 1/- per annum.", "xxx xxx xxx The Lessee will on the determination of this lease peaceably yield up the said demised premises and the said Pragati Maidan Complex appertaining unto the Lessor.", "15(a).", "The Lessee shall neither sub-let, transfer, sale, mortgage or assign any manner whatsoever nor enter into any agreement for sale transfer assignment (by whatever name such intended transaction may be called) of the said premises hereby demised or any part thereof without the sanction of the Lessor in writing first and obtained and while according such sanction, the Lessor may impose such terms and conditions as she may in her absolute discretion think fit as conditions of such sanction for such sub-letting, transfer or assignment.", "Such conditions may provide that the Lessee or the transferee or assignee, as the case may be, shall pay to the Lessor enhanced ground rent as may be specified in such sanction.", "xxx xxx PROVIDED also the lessor shall have a pre-emptive right to purchase the demised premises after deducting the amount of the unearned increase as aforesaid.", "PROVIDED further that in case the transfer is proposed to be made in favour of a person or organisation which does not have similar objectives as the Lessee or which is not entitled to the same concessional allotment as the lessee, then the said demised premises and all structures standing on the said demised premises thereto shall revert to the Lessor without the requirement of any further action.", "xxx xxx The land will be resumed by the Lessor in case any of the terms and conditions of allotment are violated by the lessee if the allotment is obtained fraudulently or by the misrepresentation of facts.", "If there shall be at any time have been in the opinion of the Lessor or duly authorized officer whose decision shall be final, any breach by the Lessee or by any person claiming through or under her of any of the covenants or conditions contained in Clause II and if the said intended Lessee shall neglect or fail to remedy any such breach to the satisfaction of the Lessor within thirty days from the receipt of a notice signed by the Lessor or duly authorized officer requiring him to remedy such breach it shall be lawful for the officers and workmen acting under the authority and direction of the Lessor to enter upon the premises hereby demised and (a) to remove or demolish any alterations in or additions to the buildings erected on the said premises (b) to remove or demolish any buildings erected on the said premises without the previous consent in writing of the Lessor or duly  (Page 84 of 114)  authorized officer as aforesaid (c) to fill any excavation or carry out any repairs that may be necessary and all such moneys and expenses as maybe laid out and incurred by the Lessor or by her order shall be paid by the said Lessee and it is hereby expressly declared that the liberty hereinbefore given is not to prejudice in any way the power given to the Lessor by Clause-II - 4, 5 7 hereof.", "The terms and conditions of the Perpetual Lease, which have been extracted hereinabove, show that the permanent buildings existing on Pragati Maidan were leased out to the appellant for a period of 99 years Rs. 6 lakhs per acre and yearly ground rent 2 of the said premium and horticulture open land was leased out Rs. 1/- per annum.", "The ownership thereof continued with the Government of India and in its capacity as a Perpetual Leasee, the entire Pragati Maidan became an asset of the appellant.", "From what I have mentioned above, it is more than evident that Pragati Maidan is an asset of the appellant to be utilised for achieving the objects set-out in its Memorandum of Association.", "It is beyond comprehension of any reasonable person as to how a person entity can be compelled to part with, permanently or temporarily, his its own assets for the benefit of others, which may, at times detrimental to his its own interest.", "A somewhat similar question was considered by the European Court (Sixth Chamber) in Oscar Bronner Gmbit Company KG Vs.", "Mediaprint Zeitungs-und Zeitschriftenverlag GmbH Company KG and others, European Court Reports 1998 page I- 07791 (ruled on 25.11.1998).", "The facts of the case was that by order of 01.07.1996, received at the Court on 15.01.1997, the Oberlandesgericht Wien (Higher Regional Court, Vienna), in its capacity as the Kartellgericht (court of first instance in competition matters), referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Article 86 of the Treaty.", "The questions were raised in connection with an action brought by Oscar Bronner GmbH Co. KG (Oscar Bronner) against Mediaprint Zeitungsund Zeitschriftenverlag GmbH Co. KG, Mediaprint Zeitungsvertriebsgesellschaft mbH Company KG and Mediaprint Anzeigengesellschaft mbH Company KG (hereinafter collective referred to as Mediaprint) under Paragraph 35 of the Bundesgesetz ber Kartelle und andere Wettbewerbsbeschrnkungen (Federal Law on Cartels and other Restrictive Practices, the Kartellgesetz) of 19.10.1988 (BGBl.", "1988, p. 600), as amended in 1993 (BGBl.", "1993, p. 693) and 1995 (BGBl.", "1995, p. 520).", "Paragraph 35(1) of the Kartellgesetz provides: The Kartellgericht shall, upon application, order the undertakings concerned to bring the abuse of a dominant position to an end.", "Such abuse may consist, in particular, of: 1.", "directly or indirectly imposing unfair purchase or selling prices or other trading conditions 2 .", "limiting production, markets or technical development to the detriment of consumers 3 .", "placing other trading parties at a competitive disadvantage by applying dissimilar conditions to equivalent transactions 4 .", "making the conclusion of contracts subject to the acceptance by  (Page 85 of 114)  other trading parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject matter of such contracts.", "The objects of Oscar Bronner are the editing, publishing, manufacture and distribution of the daily newspaper Der Standard.", "In 1994, that newspapers share of the Austrian daily newspaper market was 3.6 of circulation and 6 of advertising revenues.", "Mediaprint Zeitungsund Zeitschriftenverlag GmbH Company KG publishes the daily newspapers Neue Kronen Zeitung and Kurier.", "It carries on the marketing and advertising business of those newspapers through two wholly owned subsidiaries, Mediaprint Zeitungsvertriebsgesellschaft mbH Company KG and Mediaprint Anzeigengesellschaft mbH Company KG.", "In 1994, the combined market share of Neue Kronen Zeitung and Kurier was 46.8 of the Austrian daily newspaper market in terms of circulation and 42 in terms of advertising revenues.", "They reached 53.3 of the population from the age of 14 in private households and 71 of all newspaper readers.", "For the distribution of its newspapers, Mediaprint has established a nationwide home delivery scheme, put into effect through the intermediary of Mediaprint Zeitungsvertriebsgesellschaft mbH Co. KG.", "The scheme consists of delivering the newspapers directly to subscribers in the early hours of the morning.", "In its action under Paragraph 35 of the Kartellgesetz, Oscar Bronner seeks an order requiring Mediaprint to cease abusing its alleged dominant position on the market by including Der Standard in its home delivery service against payment of reasonable remuneration.", "In support of its claim, Oscar Bronner argues that postal delivery, which generally does not take place until the late morning, does not represent an equivalent alternative to home-delivery, and that, in view of its small number of subscribers, it would be entirely unprofitable for it to organise its own home delivery service.", "Oscar Bronner further argues that Mediaprint has discriminated against it by including another daily newspaper, Wirtschaftsblatt, in its home delivery scheme, even though it is not published by Mediaprint.", "In reply to those arguments, Mediaprint contends that the establishment of its home- delivery service required a great administrative and financial investment, and that making the system available to all Austrian newspaper publishers would exceed the natural capacity of its system.", "It also maintains that the fact that it holds a dominant position does not oblige it to subsidise competition by assisting competing companies.", "It adds that the position of Wirtschaftsblatt is not comparable to that of Der Standard, since the publisher of the former also entrusted the Mediaprint group with printing and the whole of distribution, including sale in kiosks, so that home- delivery constituted only part of a package of services.", "After noticing the facts, Kartellgericht decided to stay the proceedings and referred to the following questions to the Court of Justice for preliminary ruling: market within the meaning of Paragraph 35 of the Kartellgesetz which is analogous in content, since under the principle of the primacy of Community law conduct which is incompatible with the latter cannot be tolerated under national law either, the Kartellgericht decided that it first needed to resolve the question whether the conduct of Mediaprint infringed Article 86 of the Treaty.", "Referring subsequently to the fact that Article 86 of the Treaty applies only if trade between Member States is capable of being affected by the conduct of traders in breach, the Kartellgericht found that condition met in the main proceedings, since refusal of access to the home delivery scheme could have  (Page 86 of 114)  the effect of completely excluding Oscar Bronner from the daily newspaper market and Oscar Bronner, as publisher of an Austrian daily newspaper also sold abroad, participated in international trade.", "In those circumstances, the Kartellgericht decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling: Is Article 86 of the EC Treaty to be interpreted in such a way that there is an abuse of a dominant position, in the sense of an abusive barring of access to the market, where an undertaking which carries on the publication, production and marketing of daily newspapers, and with its products occupies a predominant position on the Austrian market for daily newspapers (46.8 of total circulation, 42 of advertising revenue and 71 range of influence, measured by the number of all daily newspapers), and operates the only nationwide home-delivery distribution service for subscribers, refuses to make a binding offer to another undertaking engaged in the publication, production and marketing of a daily newspaper in Austria to include that daily newspaper in its home-delivery scheme, in the light also of the circumstance that it is not possible, on account of the small circulation and the consequently small number of subscribers, for the undertaking seeking inclusion in the home-delivery scheme to build up its own home- delivery scheme for a reasonable cost outlay and operate it profitably, either alone or in cooperation with the other undertakings offering daily newspapers on the market? Does it amount to an abuse within the meaning of Article 86 of the EC Treaty, where, under the circumstances described at (1) above, the operator of the home-delivery scheme for daily newspapers makes the entry into business relations with the publisher of a competing product dependent upon the latter entrusting him not only with home deliveries but also with other services (e.g. marketing through sales points, printing) within the context of an overall package? The Court of Justice noted the rival pleadings and formulated the following question: Finally, it would need to be determined whether the refusal by the owner of the only nationwide home-delivery scheme in the territory of a Member State, which uses that scheme to distribute its own daily newspapers, to allow the publisher of a rival daily newspaper access to it constitutes an abuse of a dominant position within the meaning of Article 86 of the Treaty, on the ground that such refusal deprives that competitor of a means of distribution judged essential for the sale of its newspaper.", "After discussing the issue, the Court of Justice ruled: In the light of the foregoing considerations, the answer to the first question must be that the refusal by a press undertaking which holds a very large share of the daily newspaper market in a Member State and operates the only nationwide newspaper home-delivery scheme in that Member State to allow the publisher of a rival newspaper, which by reason of its small circulation is unable either alone or in cooperation with other publishers to set up and operate its own home-delivery scheme in economically reasonable conditions, to have access to that scheme for appropriate remuneration does not constitute abuse of a dominant position within the meaning of Article 86  (Page 87 of 114)  of the Treaty.", "Although, the Court of Justice referred to the second question whether refusal by that undertaking, in the circumstances mentioned in the first question, to allow the publisher of a rival daily newspaper to have access to its home-delivery Scheme, where the latter does not at the same time entrust to it the carrying out of other services, such as sale of kiosks and printing, constitutes an abuse of dominant position within the meaning of Article 86 of the Treaty, but did not answer it by observing that in the light of the answer to the first question, it was not necessary to decide the second one.", "In State of Illinois, ex. Rel.", "Roand W. BURRIS, Attorney General of the State of Illinois, in its proprietary capacity, in its parens patriae capacity and in its representative capacity Vs.", "Panhandle Eastern Pipe Line Company, a Delaware corporation, United States Court of Appeals Seventh Circuit, 935 F. 2d 1469, the question considered was whether the respondent pipeline company was obliged to transport through its pipeline natural gas purchased by the local distribution companies with which it had exclusive dealing contracts.", "The State of Illinois brought this antitrust suit on its own behalf and on behalf of a class of residential and commercial consumers of natural gas in central Illinois.", "The State alleges that the Panhandle Eastern Pipe Line Company violated federal and state antitrust laws in early 1980s by refusing to transport natural gas purchased by its principal commercial customers (the local distribution companies that distribute gas to residential and most commercial and industrial end-users) through its pipelines.", "After trial, the District Court ruled that Panhandles conduct was not anti-competitive.", "After taking cognisance of the relevant arguments, the United States Court of Appeals ruled that the action of Panhandle was not discriminatory.", "The relevant extracts of the judgement ruling are reproduced below: Despite the dire predictions of the state, this does not mean that there now exists a contract immunity defense to antitrust liability.", "The existence of a contract in this case does not immunize Panhandle from antitrust liability it is merely a factor that is relevant to the question of Panhandles intent to monopolize.", "The existence of a contract that was itself an unreasonable restraint of trade, violating Sec.", "1 of the Sherman Act, would do little to dispel an inference of anticompetitive intent.", "In Otter Tail, for example, the utility attempted to invoke contractual provisions in its contracts with other suppliers that forbade the suppliers from providing electricity to any of the utilitys retail customers, past or present.", "That provision, as the Supreme Court observed, was simply a territorial allocation scheme designed to insulate the utility from competition in the sale of electricity and had no legitimate justification.", "410 U.S. at 378-79, 93 S.Ct.", "at 1030.", "Panhandles exclusive dealing contract with its G tariff customer, by contrast, was a legitimate means of ensuring that it would not be stuck holding expensive natural gas for customers who had decided to purchase unexpectedly plentiful and cheap gas from others, one that had been given regulatory sanction.", "Contrary to the states suggestion, when Congress enacted the NGPA, Panhandles tariffs did not become invalid or illegal.", "Recognizing the obligations Panhandle incurred in reliance on the tariffs does not elevate a private contract above national policy as the state suggests.", "The state has its own theory about Panhandles motives, but its conjecture does little to make us question the soundness of the district courts findings.", " (Page 88 of 114)  According to the state, Panhandle refused to adopt an open access transportation policy because it wanted to exact monopoly profits from the gas it sold to its G tariff customers.", "It did so, according to the state, by tying the purchase of its monopolistically priced gas to the purchase of its regulated pipeline capacity and by unlawfully segmenting the central Illinois natural gas market and price discriminating between gas consumers who were able to switch to an alternate fuel and those who did not.", "Panhandle, however, didnt profit on its sales of gas to the LDCs.", "Panhandles gas was priced above the spot market, but that price merely reflected the price it was paying for gas as the result of the long-term contracts it agreed to in order to secure gas that was both high-priced and scarce during the early days of deregulation.", "Panhandles rate of return was based on its transportation service, not its gas prices, a fact that suggests that absent a fear of take-or-pay liability it would have had little reason to object to transporting gas purchased from other sources.", "The states brief acknowledges this point but, inexplicably, goes on to rail against the profits of Panhandle and its subsidiaries on gas sales.", "Brief of Appellant at 35.", "The inconsistency is explained later, when the state reveals that what it calls profits on the sale of gas are more accurately characterized not as profits but as losses avoided.", "Brief of Appellant at 39.", "Translated, the states theory is simply that Panhandles desire to avoid take-or-pay liability constituted an antitrust violation because Panhandle enforced the G tariff rather than reducing its rate of return by recouping less than 100 of its gas prices.", "Panhandle was entitled to pass through 100 of the cost of its gas to its customers, however it had no duty to voluntarily reduce its rate of return below the just and reasonable level authorized by regulators.", "Town of Concord v. Boston Edison Company, 915 F. 2d 17, 27 (1st Cir. 1990) .", "This is not to say, of course, that a utility can engage in anticompetitive conduct in order to increase its earnings to the authorized level.", "Nor do we say that there can never be a case in which a utilitys refusal to voluntarily take action that would reduce its profit margin is anticompetitive.", "The plaintiff in that case, however, will have to present a more plausible theory than Illinois has presented here.", "The state points out that Panhandle was vertically integrated, which meant that it might have been able to force consumers to pay a supra competitive price for gas by purchasing gas at above market rates from affiliated producers, but there is no evidence that this was the reason that its costs were high.", "The evidence suggested that its high costs were due principally to its Algerian and Canadian ventures, neither of which were with affiliated producers.", "True, Panhandle bought the liquefied Algerian gas from an affiliated pipeline, Trunkline, but self-dealing is a danger when a regulated company and an unregulated company are vertically integrated, see Jefferson Parish Hosp.", "Number 2 v. Hyde,  : 466 U.S. 2, 36 n. 4,  : 104 S.Ct. 1551,  : 1571 n. 4,  : 80 L.Ed.", "2d 2 (1984) (OConnor, J., concurring), not when two regulated companies are affiliated horizontally.", "Trunkline, like Panhandle, merely passed on the above market rate it paid to unaffiliated gas producers.", "But what of Panhandles willingness to transport for its non-captive customers? By mollifying them, the state maintains, Panhandle engaged in  (Page 89 of 114)  price discrimination and market segmentation, facilitating its ability to charge supra competitive prices for the gas it sold to captive customers and thereby perfecting its monopoly over those customers.", "This is exactly the argument raised by petitioners when they challenged FERC Orders 234 and 319 in MPC II, see 761 F. 2d at 784, and it succeeded there, but there are several reasons why it fails here.", "First, we should be clear about the states complaint.", "The discrimination it objects to related not to the price of gas Panhandle sold to consumers who could switch between gas and other fuels (producers, not Panhandle, sold gas at the lower spot market rate), but to the discriminatory access Panhandle gave those consumers to cheaper sources of gas by agreeing to transport it.", "In this respect, the states theory merely restates its claim, discussed above, that the G tariff did not preclude LDCs from purchasing gas directly from producers.", "See supra note 2.", "The state maintains that Panhandle selectively applied its interpretation of the G tariff--that the tariff applied to direct sales from producers to consumers--to captive customers, but fails to explain that the end-users who obtained transportation for non- system gas were not themselves G tariff customers, and were under no contractual obligation to Panhandle.", "Of course, neither were the captive residential and industrial consumers to whom the LDCs distributed gas, but those consumers didnt purchase gas directly from the wellhead.", "The district court found that the fuel-switchable end-users eligible for the MAT program did, and the state points to no contrary evidence.", "The captive residential and commercial LDC customers could, in theory, have purchased gas from producers directly, but most LDCs, including CILCO, had transportation tariffs which either expressly precluded transportation services for residential end-users or effectively precluded transportation for residential end-users by imposing a volumetric limitation In addition most producers and brokers were unwilling to enter into contracts for small volumes of gas.", "730 Supp.", "at 890.", "We therefore agree with the district courts conclusion that Panhandle did not selectively enforce the G tariff the discrimination apparent in Panhandles transportation policy was a legitimate enforcement of that G tariff against those who were bound by it.", "730 F.Supp.", "at 921.", "After FERC issued Order 436, discrimination on the basis of sole supplier clauses was no longer legitimate the FERC order required pipelines offering transportation to make the option available to all customers, regardless of the existence of full requirements or sole supplier clauses in their gas purchase contracts.", "See 50 Fed.", "42445.", "Rather than comply, Panhandle initially shut down its MAT program, and only resumed it after its G tariff customers agreed not to request unbundled transportation services.", "The G tariff customers agreed to this condition because they, too, had a stake in keeping fuel-switchable industrial consumers on line keeping the industrials on line helped spread the fixed cost component of Panhandles rates among a wider customer base, and helped support their own revenues by maintaining high through-put volumes to these end-users (the LDCs, like Panhandle, were effectively selling transporting services to these customers).", "This agreement did not, as the state suggests, violate the terms of Order 436, for the Order also required full requirements customers to switch to a partial requirements tariff to obtain transportation, recognizing that there can be differences in the costs of providing full and partial requirements service.", "50 Fed.", "at 42445 see also FERC Order 436-A, 50 Fed.", "52217 (1985)  (Page 90 of 114)  (reiterating requirement that full requirements customers switch to partial requirements tariff to receive pipeline transportation services).", "Panhandles G tariff customers thus had the option to obtain transportation by switching to a partial requirements tariff, but were unwilling to give up the security of the G tariff to do so Panhandle therefore had no obligation to transport for them.", "These events effectively demonstrate that if the state (and the residential consumers it represents) have a quarrel with a utility, it should be with CILCO and other LDCs rather than with Panhandle.", "Faced with a choice of obtaining access to low-priced gas supplies or giving up stable gas supplies, CILCO and other LDCs opted for the latter.", "(Underlining is mine) The second reason the states price discrimination theory fails is that, as noted above, there is no evidence suggesting that self-dealing was the cause of Panhandles high gas prices.", "The real culprits were long-term supply contracts.", "When the self-dealing charge is deflated, the states price discrimination theory collapses as well because Panhandle had no monopoly profits to hide.", "Panhandle undoubtedly wanted to pass on the full amount of its gas costs, but that is a far cry from extracting monopoly profits.", "The states theory ignores the fact that, under its Pan Mark program, Panhandle received take-or-pay credit from producers for volumes its fuel-switchable customers purchased from them directly.", "Panhandle did not always receive take-or-pay credit for the gas transported under the MAT program (although the MAT program did yield over 50 million in take-or-pay credits), but that program too was designed to help mitigate the problems created by the discrepancy between the spot market price of natural gas and the price Panhandle was contractually obligated to pay.", "PanMark enabled Panhandle to recover its gas costs by giving it take-or-pay credits for gas sold at low spot market prices, and MAT enabled Panhandle to obtain some take-or-pay relief by keeping large industrial end-users from switching, or converting, to other fuels.", "FERC may or may not have adequately justified its reasons for approving such programs, see MPC I, 761 F. 2d at 774, but that fact is not relevant to the issue of whether Panhandles actions under the FERC programs constituted an unlawful exercise of monopoly power.", "As unbundled transportation became the norm in the industry, the FERC programs were the principal means available to Panhandle for resolving its take-or-pay dilemma.", "Panhandles implementation of these programs reinforces the conclusion that it was the discrepancy between spot market and contract prices for gas, rather than exclusionary animus, that drove Panhandles policies.", "Had Panhandles goal been to exclude other sellers from central Illinois, it would not have transported gas under any program, whether or not it provided take-or-pay credit.", "Conclusion This case is essentially a dispute about who should bear the cost of the transformation of the natural gas industry from a regulatory to a competitive regime.", "Panhandle refused to transport natural gas for its G tariff customers out of concern for its take-or-pay exposure.", "The state maintains that enforcing the G tariff was anticompetitive because it was at odds with the changes wrought by enactment of the NGPA and FERCs moves to give consumers access to a competitive gas market.", "FERCs reluctance to jump  (Page 91 of 114)  with both feet into an open access transportation policy, however, rebuts the states claim that the FERCs initial sallies in that direction stripped the G tariff of its mantle of regulatory sanction.", "Panhandle had to respond to those changes mandated by law and by regulation, but was unwilling to go further than required because to do so would have been to expose itself to huge losses.", "Panhandle abided by the terms of FERCs transportation initiatives, and relied on them in good faith, a fact that, while not rising to the level of a regulatory justification defense (the FERC did not require pipelines to participate in the programs), leads us to agree with the district court that Panhandles programs were the product of legitimate business concerns and not a naked desire to deny natural gas producers access to the central Illinois market.", "FERC itself was reluctant to move ahead too quickly it didnt require pipelines offering unbundled transportation to do so on a nondiscriminatory basis until it adopted Order 436 in late 1985, and that Order was later vacated because it did not adequately address the dilemmas faced by pipelines like Panhandle.", "None of FERCs attempts to manage the deregulatory transition have completely satisfied the courts it is hardly reasonable to expect that Panhandle should have jumped on the open access bandwagon after FERCs initial, tentative, moves to get that wagon rolling.", "The district court attributed Panhandles reserve in the face of regulatory flux to caution and self-preservation rather than to monopolistic excess, a determination we find eminently reasonable.", "The decision of the district court is therefore AFFIRMED.", "Emphasis supplied In Verizon Communications Inc. Vs.", "Law Offices of Curtis v. Trinko, LLP Number 02- 682,  : 540 U.S. 398, the facts were that the customers who received local telephone service from competing local exchange carrier (LEC) brought action against incumbent LEC, alleging anti-trust and communications Act violations.", "The United States District Court for the Southern District of New York dismissed the action.", "Customers appealed.", "The Second Circuit Court partly affirmed the order of the District Court and partly reversed the same and remanded incumbent LECs petition.", "Thereupon, LEC applied for a writ of certiorari.", "Scalia, J., with whom three other Judges agreed while two others did not express any opinion, held as under: Telecommunications Act of 1996 had no effect upon application of traditional antitrust principles, in light of anti-trust-specific saving clause which barred finding of implied immunity (2) complaint alleging breach of incumbent LECs duty to share its network with competitors did not state monopolization claim under 2 of Sherman Act (3) traditional antitrust principles did not justify addition of case to few existing exceptions to proposition that there was no duty to aid competitors and (4) disposition of case made it unnecessary to consider alternative contention of lack of antitrust standing.", "In its appeal, the respondent alleged breach of duty under the 1996 Act by LEC to share its network with competitors.", "After noticing the relevant facts, the Court made the following observations:  (Page 92 of 114)  1 To decide this case, we must first determine what effect (if any) the 1996 Act has upon the application of traditional antitrust principles.", "The Act imposes a large number of duties upon incumbent LECs--above and beyond those basic responsibilities it imposes upon all carriers, such as assuring number portability and providing access to rights-of-way, see 47 U.S.C. 251(b)(2), (4).", "Under the sharing duties of 251(c), incumbent LECs are required to offer three kinds of access.", "Already noted, and perhaps most intrusive, is the duty to offer access to UNEs on just, reasonable, and non discriminatory terms, 251(c)(3), a phrase that the FCC has interpreted to mean a price reflecting long-run incremental cost.", "See Verizon Communications Inc. v. FCC,  : 535 U.S., at 495- 496, 122 S.Ct. 1646.", "A rival can interconnect its own facilities with those of the incumbent LEC, or it can simply purchase services at wholesale from the incumbent and resell them to consumers.", "See 251(c)(2), (4).", "The Act also imposes upon incumbents the duty to allow physical collocation--that is, to permit a competitor to locate and install its equipment on the incumbents premises--which makes feasible interconnection and access to UNEs.", "See 251(c)(6).", "That Congress created these duties, however, does not automatically lead to the conclusion that they can be enforced by means of an antitrust claim.", "Indeed, a detailed regulatory scheme such as that created by the 1996 Act ordinarily raises the question whether the regulated entities are not shielded from antitrust scrutiny altogether by the doctrine of implied immunity.", "See, e.g., United States v. National Assn.", "of Securities Dealers, Inc., 422 U.S. 694, 95 S.Ct. 2427, 45 L.Ed.", "2d 486 (1975) Gordon v. New York Stock Exchange, Inc.,  : 422 U.S. 659,  : 95 S.Ct. 2598,  : 45 L.Ed.", "2d 463 (1975).", "In some respects the enforcement scheme set up by the 1996 Act is a good candidate for implication of antitrust immunity, to avoid the real possibility of judgments conflicting with the agencys regulatory scheme that might be voiced by courts exercising jurisdiction under the antitrust laws.", "United States v. National Assn. of Securities Dealers, Inc., supra, at 734, 95 S.Ct. 2427.", "Congress, however, precluded that interpretation.", "Section 601(b)(1) of the 1996 Act is an antitrust-specific saving clause providing that nothing in this Act or the amendments made by this Act shall be construed to modify, impair, or supersede the applicability of any of the antitrust laws.", "110 Stat.", "143, 47 U.S.C. 152, note.", "This bars a finding of implied immunity.", "As the FCC has put the point, the saving clause preserves those claims that satisfy established antitrust standards.", "Brief for United States and the Federal Communications Commission as Amici Curiae Supporting Neither Party in Number 02-7057, Covad Communications Company v. Bell Atlantic Corp. (CADC), p. 8.", "But just as the 1996 Act preserves claims that satisfy existing antitrust standards, it does not create new claims that go beyond existing antitrust standards that would be equally inconsistent with the saving clauses mandate that nothing in the Act modify, impair, or supersede the applicability of the antitrust laws.", "We turn, then, to whether the activity of which respondent complains violates pre-existing antitrust standards.", "III  (Page 93 of 114)  2 The complaint alleges that Verizon denied interconnection services to rivals in order to limit entry.", "If that allegation states an antitrust claim at all, it does so under 2 of the Sherman Act, 15 U.S.C. 2, which declares that a firm shall not monopolize or attempt to monopolize.", "It is settled law that this offense requires, in addition to the possession of monopoly power in the relevant market, the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.", "United States v. Grinnell Corp.,  : 384 U.S. 563, 570- 571,  : 86 S.Ct.", "1698,  : 16 Ed. 2d 778 (1966).", "The mere possession of monopoly power, and the concomitant charging of monopoly prices, is not only not unlawful it is an important element of the free-market system.", "The opportunity to charge monopoly prices--at least for a short period--is what attracts business acumen in the first place it induces risk taking that produces innovation and economic growth.", "To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.", "3 Firms may acquire monopoly power by establishing an infrastructure that renders them uniquely suited to serve their customers.", "Compelling such firms to share the source of their advantage is in some tension with the underlying purpose of antitrust law, since it may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities.", "Enforced sharing also requires antitrust courts to act as central planners, identifying the proper price, quantity, and other terms of dealing--a role for which they are ill suited.", "Moreover, compelling negotiation between competitors may facilitate the supreme evil of antitrust: collusion.", "Thus, as a general matter, the Sherman Act does not restrict the long recognized right of a trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.", "United States v. Colgate Company,  : 250 U.S. 300, 307,  : 39 S.Ct. 465,  : 63 L.Ed. 992 (1919).", "4 However, the high value that we have placed on the right to refuse to deal with other firms does not mean that the right is unqualified.", "Aspen Skiing Company v. Aspen Highlands Skiing Corp.,  : 472 section 585,  : 601, 105 S.Ct.", "2847,  : 86 L.Ed.", "2d 467 (1985).", "Under certain circumstances, a refusal to cooperate with rivals can constitute anticompetitive conduct and violate 2.", "We have been very cautious in recognizing such exceptions, because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying anticompetitive conduct by a single firm.", "The question before us today is whether the allegations of respondents complaint fit within existing exceptions or provide a basis, under traditional antitrust principles, for recognizing a new one.", "5 The leading case for 2 liability based on refusal to cooperate with a rival, and the case upon which respondent understandably places greatest reliance, is Aspen Skiing, supra.", "The Aspen ski area consisted of four mountain areas.", "The defendant, who owned three of those areas, and the plaintiff, who owned the fourth, had cooperated for years in the issuance of a  (Page 94 of 114)  joint, multiple-day, all-area ski ticket.", "After repeatedly demanding an increased share of the proceeds, the defendant cancelled the joint ticket.", "The plaintiff, concerned that skiers would bypass its mountain without some joint offering, tried a variety of increasingly desperate measures to re-create the joint ticket, even to the point of in effect offering to buy the defendants tickets at retail price.", "Id., at 593-594, 105 S.Ct. 2847.", "The defendant refused even that.", "We upheld a jury verdict for the plaintiff, reasoning that the jury may well have concluded that the defendant elected to forgo these short-run benefits because it was more interested in reducing competition over the long run by harming its smaller competitor.", "Id., at 608, 105 S.Ct. 2847.", "Aspen Skiing is at or near the outer boundary of 2 liability.", "The Court there found significance in the defendants decision to cease participation in a cooperative venture.", "See id.", ", at 608, 610-611, 105 S.Ct. 2847.", "The unilateral termination of a voluntary (and thus presumably profitable) course of dealing suggested a willingness to forsake short-term profits to achieve an anticompetitive end.", "Similarly, the defendants unwillingness to renew the ticket even if compensated at retail price revealed a distinctly anticompetitive bent.", "The refusal to deal alleged in the present case does not fit within the limited exception recognized in Aspen Skiing.", "The complaint does not allege that Verizon voluntarily engaged in a course of dealing with its rivals, or would ever have done so absent statutory compulsion.", "Here, therefore, the defendants prior conduct sheds no light upon the motivation of its refusal to deal-upon whether its regulatory lapses were prompted not by competitive zeal but by anticompetitive malice.", "The contrast between the cases is heightened by the difference in pricing behavior.", "In Aspen Skiing, the defendant turned down a proposal to sell at its own retail price, suggesting a calculation that its future monopoly retail price would be higher.", "Verizons reluctance to interconnect at the cost-based rate of compensation available under 251(c)(3) tells us nothing about dreams of monopoly.", "The specific nature of what the 1996 Act compels makes this case different from Aspen Skiing in a more fundamental way.", "In Aspen Skiing, what the defendant refused to provide to its competitor was a product that it already sold at retail to oversimplify slightly, lift tickets representing a bundle of services to skiers.", "Similarly, in Otter Tail Power Company v. United States, 410 section 366, 93 S.Ct. 1022, 35 L.Ed.", "2d 359 (1973), another case relied upon by respondent, the defendant was already in the business of providing a service to certain customers (power transmission over its network), and refused to provide the same service to certain other customers.", "Id., at 370- 371, 377-378, 93 S.Ct. 1022.", "In the present case, by contrast, the services allegedly withheld are not otherwise marketed or available to the public.", "The sharing obligation imposed by the 1996 Act created something brand new-- the wholesale market for leasing network elements.", "Verizon Communications Inc. v. FCC, : 535 U.S., at 528, 122 Ct. 1646.", "The unbundled elements offered pursuant to 251(c)(3) exist only deep within the bowels of Verizon they are brought out on compulsion of the 1996 Act and offered not to consumers but to rivals, and at considerable expense and effort.", "New systems must be designed and implemented simply to make that access possible-indeed, it is the failure of  (Page 95 of 114)  one of those systems that prompted the present complaint.", "6 We conclude that Verizons alleged insufficient assistance in the provision of service to rivals is not a recognized antitrust claim under this Courts existing refusal-to-deal precedents.", "This conclusion would be unchanged even if we considered to be established law the essential facilities doctrine crafted by some lower courts, under which the Court of Appeals concluded respondents allegations might state a claim.", "See generally Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 Antitrust L.J. 841 (1989).", "We have never recognized such a doctrine, see Aspen Skiing Company, supra, at 611, n. 44, 105 S.Ct.", "2847 AT T Corp. v. Iowa Utilities Bd., 525 section, at 428, 119 S.Ct.", "721 (opinion of BREYER, J.), and we find no need either to recognize it or to repudiate it here.", "It suffices for present purposes to note that the indispensable requirement for invoking the doctrine is the unavailability of access to the essential facilities where access exists, the doctrine serves no purpose.", "Thus, it is said that essential facility claims should be denied where a state or federal agency has effective power to compel sharing and to regulate its scope and terms.", "P. Areeda H. Hovenkamp, Antitrust Law, p. 150, 773e (2003 Supp.).", "Respondent believes that the existence of sharing duties under the 1996 Act supports its case.", "We think the opposite: The 1996 Acts extensive provision for access makes it unnecessary to impose a judicial doctrine of forced access.", "To the extent respondents essential facilities argument is distinct from its general 2 argument, we reject it.", "IV 7 Finally, we do not believe that traditional antitrust principles justify adding the present case to the few existing exceptions from the proposition that there is no duty to aid competitors.", "Antitrust analysis must always be attuned to the particular structure and circumstances of the industry at issue.", "Part of that attention to economic context is an awareness of the significance of regulation.", "As we have noted, careful account must be taken of the pervasive federal and state regulation characteristic of the industry.", "United States v. Citizens Southern Nat.", "Bank, 422 U.S. 86, 91, 95 S.Ct.", "2099, 45 Ed. 2d 41 (1975) see also IA P. Areeda H. Hovenkamp, Antitrust Law, p. 12, 240c3 (2d ed. 2000).", "Antitrust analysis must sensitively recognize and reflect the distinctive economic and legal setting of the regulated industry to which it applies.", "Concord v. Boston Edison Company, 915 F. 2d 17, 22 A. 1 1990) (Breyer, C.J.) (internal quotation marks omitted).", "One factor of particular importance is the existence of a regulatory structure designed to deter and remedy anticompetitive harm.", "Where such a structure exists, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny.", "Where, by contrast, there is nothing built into the regulatory scheme which performs the antitrust function, Silver v. New York Stock Exchange, 373 U.S. 341, 358, 83 S.Ct. 1246, 10 L.Ed.", "2d 389 (1963), the benefits of antitrust are worth its sometimes considerable disadvantages.", "Just as regulatory context may in other cases serve as a basis for implied immunity, see, e.g., United States v. National Assn. of Securities Dealers, Inc., 422 U.S., at 730-735, 95 S.Ct.", "2427, it may also be a consideration in deciding whether to recognize an  (Page 96 of 114)  expansion of the contours of 2.", "The regulatory framework that exists in this case demonstrates how, in certain circumstances, regulation significantly diminishes the likelihood of major antitrust harm.", "Concord v. Boston Edison Company, supra, at 25.", "Consider, for example, the statutory restrictions upon Verizons entry into the potentially lucrative market for long-distance service.", "To be allowed to enter the long-distance market in the first place, an incumbent LEC must be on good behavior in its local market.", "Authorization by the FCC requires state-by- state satisfaction of 271s competitive checklist, which as we have noted includes the nondiscriminatory provision of access to UNEs.", "Section 271 applications to provide long-distance service have now been approved for incumbent LECs in 47 States and the District of Columbia.", "See FCC Authorizes SBC to Provide Long Distance Service in Illinois, Indiana, Ohio and Wisconsin (Oct. 15, 2003).", "The FCCs 271 authorization order for Verizon to provide long-distance service in New York discussed at great length Verizons commitments to provide access to UNEs, including the provision of OSS.", "In re Application by Bell Atlantic New York for Authorization Under Section 271 of the Communications Act To Provide In-Region, Inter LATA Service in the State of New York, 15 FCC Rcd.", "3953, 3989-4077, 82-228 (1999) (Memorandum Opinion and Order) (hereinafter In re Application).", "Those commitments are enforceable by the FCC through continuing oversight a failure to meet an authorization condition can result in an order that the deficiency be corrected, in the imposition of penalties, or in the suspension or revocation of long-distance approval.", "See 47 U.S.C. 271(d)(6)(A).", "Verizon also subjected itself to oversight by the PSC under a so-called Performance Assurance Plan (PAP).", "See In re New York Telephone Company, 197 U.R. 4th 266, 280- 281 (N.Y.P.S.C., 1999) (Order Adopting the Amended PAP).", "The PAP, which by its terms became binding upon FCC approval, provides specific financial penalties in the event of Verizons failure to achieve detailed performance requirements.", "The FCC described Verizons having entered into a PAP as a significant factor in its 271 authorization, because that provided a strong financial incentive for post-entry compliance with the section 271 checklist, and prevented backsliding.", "In re Application 3958-3959, 8, 12.", "The regulatory response to the OSS failure complained of in respondents suit provides a vivid example of how the regulatory regime operates.", "When several competitive LECs complained about deficiencies in Verizons servicing of orders, the FCC and PSC responded.", "The FCC soon concluded that Verizon was in breach of its sharing duties under 251(c), imposed a substantial fine, and set up sophisticated measurements to gauge remediation, with weekly reporting requirements and specific penalties for failure.", "The PSC found Verizon in violation of the PAP even earlier, and imposed additional financial penalties and measurements with daily reporting requirements.", "In short, the regime was an effective steward of the antitrust function.", "Against the slight benefits of antitrust intervention here, we must weigh a realistic assessment of its costs.", "Under the best of circumstances, applying the requirements of 2 can be difficult because the means of illicit exclusion, like the means of legitimate competition, are myriad.", "United  (Page 97 of 114)  States v. Microsoft Corp., 253 F. 3d 34, 58 (C.A.D.C. 2001) (en banc) (per curiam).", "Mistaken inferences and the resulting false condemnations are especially costly, because they chill the very conduct the antitrust laws are designed to protect.", "Matsushita Elec.", "Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 594, 106 S.Ct.", "1348, 89 L.Ed.", "2d 538 (1986).", "The cost of false positives counsels against an undue expansion of 2 liability.", "One false- positive risk is that an incumbent LECs failure to provide a service with sufficient alacrity might have nothing to do with exclusion.", "Allegations of violations of 251(c)(3) duties are difficult for antitrust courts to evaluate, not only because they are highly technical, but also because they are likely to be extremely numerous, given the incessant, complex, and constantly changing interaction of competitive and incumbent LECs implementing the sharing and interconnection obligations.", "Amici States have filed a brief asserting that competitive LECs are threatened with death by a thousand cuts, Brief for New York et al.", "as Amici Curiae 10 (internal quotation marks omitted)-the identification of which would surely be a daunting task for a generalist antitrust court.", "Judicial oversight under the Sherman Act would seem destined to distort investment and lead to a new layer of interminable litigation, atop the variety of litigation routes already available to and actively pursued by competitive LECs.", "Even if the problem of false positives did not exist, conduct consisting of anticompetitive violations of 251 may be, as we have concluded with respect to above cost predatory pricing schemes, beyond the practical ability of a judicial tribunal to control.", "Brooke Group Limited v. Brown Williamson Tobacco Corp., 509 U.S. 209, 223, 113 S.Ct. 2578, 125 L.Ed.", "2d 168 (1993).", "Effective remediation of violations of regulatory sharing requirements will ordinarily require continuing supervision of a highly detailed decree.", "We think that Professor Areeda got it exactly right: No court should impose a duty to deal that it cannot explain or adequately and reasonably supervise.", "The problem should be deemed irremediable by antitrust law when compulsory access requires the court to assume the day-to-day controls characteristic of a regulatory agency.", "Areeda, 58 Antitrust L. J., at 853.", "In this case, respondent has requested an equitable decree to preliminarily and permanently enjoin Verizon from providing access to the local loop market to rivals on terms and conditions that are not as favorable as those that Verizon enjoys.", "49-50.", "An antitrust court is unlikely to be an effective day-to-day enforcer of these detailed sharing obligations.", "8 The 1996 Act is, in an important respect, much more ambitious than the antitrust laws.", "It attempts to eliminate the monopolies enjoyed by the inheritors of AT Ts local franchises.", "Verizon Communications Inc. v. FCC, 535 U.S., at 476, 122 S.Ct. 1646 (emphasis added).", "Section 2 of the Sherman Act, by contrast, seeks merely to prevent unlawful monopolization.", "It would be a serious mistake to conflate the two goals.", "The Sherman Act is indeed the Magna Carta of free enterprise, United States v. Topco Associates, Inc., 405 U.S. 596, 610, 92 S.Ct. 1126, 31 L.Ed.", "2d 515 (1972), but it does not give judges carte blanche to insist that a monopolist alter its way of doing business whenever some other approach might yield greater competition.", "We conclude that respondents complaint fails to state a claim under the Sherman Act.", " (Page 98 of 114)  Emphasis supplied At this stage, we may also take cognisance of order dated 14.08.2012 passed by the Commission in Cases Numbers 64 of 2010, 02/2011 and 12/2011 Arshiya Rail Infrastructure Limited (ARIL) Vs.", "Ministry of Railways (MoR) through the Chairman, Railway Board and another.", "The facts of that case show that Kribhco Rail Infrastructure Limited (KRIL) was a 100 subsidiary of Krishak Bharti Cooperative Limited (KRIBHCO) in which Government of India had approximately 48.36 of the total equity.", "While KRIBHCO was engaged in the business of manufacturing, marketing and distribution of fertilizers and other agricultural products, the objectives of KRIL included operating container trains and undertaking infrastructure projects.", "KRIBHCO procured Category I licence in the year 2007 for running container trains which was later transferred to KRIL.", "Arshiya Rail Infrastructure Limited (ARIL) was incorporated in 2008 as a wholly-owned subsidiary of Arshiya International Limited and was an integrated supply chain and logistics infrastructure solutions provider.", "Container Corporation of India (CONCOR) is a public sector company set up with an intention of developing multi-modal transport and logistic support for domestic and international containerized cargo.", "In February, 2005, the Union Minister for Railways announced that MoR and Government of India would permit private operators to run container trains on the IR network.", "It was, therefore, decided to open rail container freight segment to private parties through Public Private Partnership (PPP).", "Accordingly, MoR appointed RITES Limited (RITES), a multi-disciplinary consultancy organization to study Operation of Container Trains on Indian Railways.", "The Report submitted by RITES highlighted the need for allowing private container train operators other than CONCOR, which would bring financial as well as operational benefits to the Railways.", "On 09.01.2006, MoR issued a policy document under which Private Container Train Operators (PCTOs) were assured of non-discriminatory access to move container trains on the rail network on the A Comm1 CL same line as CONCOR for both international as well as domestic traffic.", "On 26.09.2006, MoR notified the Indian Railways (Permission for operators to move container trains on Indian Railways) Rules, 2006 granting, inter alia, permission to carry all goods and access to rail network where Indian Railways (IR) has right to operate, on payment of uniform haulage and other charges.", "Pursuant to the PPP Policy and the CTO Rules, a Model Concession Agreement was drafted for execution between MoR and PCTOs, which guaranteed, among other things, (a) Non-discriminatory access to the rail network including rail terminals, (b) Non-discriminatory access to PCTOs trains on networks not owned by MoR (i.e. private sidings), (c) Uniform Haulage charges on non-discriminatory basis not to be revised more than twice a year and (d) Level playing field for all concessionaires.", "On 11.10.2006, Ministry of Railways issued a letter by virtue of which, among other things, four commodities namely ores, minerals, coal and coke were brought under the category of restricted commodities, resulting in foreclosure and denial of market access to PCTOs to the extent of 60-65 of the relevant market identified as market for rail freight transportation.", "Arshiya filed an information under Section 19(1) of the Act alleging that Indian Railways had a monopoly and its exclusionary non-price conduct discrimination was in violation of Section 4(2)(a)(i), 4(2)(b)(i) and 4(2)(c) of the Act.", "It alleged that while MoR is competing with the PCTOs in the business of transportation of goods on rail, at the same time it also regulates the PCTOs to its own advantage.", "As such, there was a serious conflict of interest between the MoRs role as regulator and as a competitor.", "It also alleged that by forcing Private Container Train Operators to agree  (Page 99 of 114)  to the maintenance clause 5.8 of the Concession Agreement, the Ministry of Railways has resorted to Tie-in agreement and thereby resorted to Tie-in agreement in which the Ministry required the Private Containers Train Operators to agree to get the maintenance of their wagons done by Ministry of Railways in order to get permission for transportation of goods on the railway network.", "In compliance of the directions given by the Commission under Section 26(1), the DG conducted detailed investigation with reference to eight issues and observed that there is an inherent conflict of interest in the roles of the Ministry of Railways and Containers Corporation of India on the one hand and Private Containers Train Operators.", "He observed that having permitted entry of the private players in the relevant market, any attempt to restrict, inhibit, foreclose competition and the same cannot be justified on the ground that the Railways was discharging a social obligation.", "The DG also described the Ministry of Railways and Containers Corporation of India is group entity.", "He then dealt with the issue of dominance of Railways, referred to its market share, size and resources economic power of enterprise, size and importance of competitors, vertical integration of enterprises, legal statutory monopoly status of the Indian Railways, entry barriers, countervailing buyer power and held that the Indian Railways was in a dominant position.", "In conclusion, the DG held that the conduct of Ministry of Railways through Railway Board in the relevant market has been in violation of Section 4(2)(a)(i), 4(2)(a)(ii), 4(2)(b)(i), 4(2)(b)(ii), 4(2)(c), 4(2)(d) and 4(2)(e) of the Act and also found to be engaged in the practice contrary to Sections 3(1) and 3(4) of the Act.", "After disposing of the preliminary issue relating to jurisdiction, the Commission considered the following three substantive issues: Given the complexities of freight movement, what are the critical parameters for defining the relevant market? What, therefore, is the relevant market in the present case? ii.", "In the market so defined, is there any dominant enterprise that enjoys a position of strength to enable it to operate independently of competitive forces.", "Whether the dominant enterprise as established above has abused its position to the detriment of competition? While dealing with the first issue, the Commission referred to the history of the Railway being used as a mode of transport, the fact relating to the commissioning of RITES to undertake the study and lay down guidelines and other requirements for selection of prospective rail operators (other than CONCOR) for movement of containers in the Indian Rail network, referred to the guidelines framed by RITES and the relevant provisions of the policy.", "The Commission then referred to Section 19(5) (6) and (7) and observed: 14.8.", "Relevant product market as defined in the Act mandates demand substitutability as revealed by consumer preferences.", "The informant and DG have defined the relevant product market as transportation of goods freight either through containers or wagons over the railway network.", "Their definition lays emphasis on the substitutability of wagons and containers for carrying freight of all types over the rail network.", "The DG observes that freight is carried in both containers and wagons and avers that on the basis of technical substitution a commodity is capable of being carried in either of  (Page 100 of 114)  them and therefore no distinction has been drawn between wagon freight and container freight.", "Therefore, the market is defined by DG to be the transportation of freight over the rail network thereby ruling out substitutability, in the present case, between road, rail, air and water as alternative medium of transportation for carrying container freight.", "The Deutsche Bahn PCC logistics judgement of the European Commission is referred to in the report to justify rail network as the appropriate market.", "The DGs report draws attention to the possibility of two options for defining the market in this case.", "Substitution can be between container and wagon for carrying freight as argued in the report or between the different modes of transportation over which containers can be carried as this case refers specifically to container freight.", "Let us first look at substitution between wagons and containers for movement of goods over rail network.", "No doubt it is possible to load goods either in a wagon or in a container and at a broad level this could be acceptable.", "However, logistics management point to a clear cut distinction between the two.", "In the parlance of logistics, container-freight refers specifically to high value non-bulk goods.", "Containers allow easy and flexible handling of non-bulk goods from point of production to point of consumption and, are therefore, preferred by transporters (also referred to as shippers) and consignors.", "Also, chances of damage and pilferage are considerably reduced when freight is transported in containers.", "Furthermore, where transhipment of freight is required, container is the only option.", "Wagons do not meet these conditions as they cannot be taken off rails.", "To classify wagon and container in the same category is, therefore, inappropriate.", "14.10.", "A transporter (shipper) in the case of container has several options in the choice of transport medium.", "Often they combine different modes of transport to benefit from the right mix of cost effectiveness, speed and locational flexibility.", "Within the inter-modal transportation options for container freight, the choice of transport depends on a plethora of factors like distance to be moved, physical characteristic and value of the commodity to be moved, total time required for the consignment and total price of transportation.", "Transport logistics indicate that for short hauls, road transport is preferred while for longer hauls rail transport and where available, water transports are the preferred options.", "Since, the informants have not specified the nature of freight and the distance to be covered, it is only appropriate that the relevant market covers both road and rail transportation.", "To restrict the relevant market to only the rail network tantamount to a constrained analysis, arising solely from the allegations of the informants, and overlooking the broader issue of availability of alternative choices to users in the transport of container freight.", "14.11.", "The very fact that railway freight transport has been partially opened for running containers trains only and not the entire rail freight clearly implies that the regulator i.e. MOR distinguishes container and wagon freight as two separate segments within the overall ambit of rail transportation.", "In fact CONCOR was set up only to take care of container freight.", "As an aggregator of container freight CONCOR operates both on rail and road.", "As submitted, the purpose of the PPP would get defeated if a distinction is not made between the type and characteristic of goods that a container train would carry and those carried by general wagons.", "The intent of the PPP  (Page 101 of 114)  policy was to invite application from private parties to run only the container trains (and not all types of trains) on IR network.", "As submitted by IR, the objective behind the Policy was to increase the rail share in respect of container traffic.", "It was also envisaged that the PCTOs would do so by aggregating the piecemeal traffic, as hitherto being done by CONCOR.", "14.12.", "To establish whether rails and roads are substitutable for movement of containers let us look at the available evidences: In their submission, IR have forwarded the views of Adviser (Transport), Planning Commission who has opined: On the basis of cross price elasticity (i.e. percentage change in quantity of freight offered to the Railways when the price of the road freight is changed by 1), substitutability between road and rail products is an accepted fact.", "The level and scope of substitution depends on factors such as commodity to be carried, distance over which it has to be carried and other factors such as relative freight rates etc.", "The Task Force on Dedicated Freight Corridor Planning Commission gives an indication of potential competition to railways from road with the operationalization of the Dedicated Freight Corridor.", "Specifically, some of the observations of Task Force on Freight Corridor, Planning Commission are as follows: o The competitive pressure on Indian Railways will increase with the further up-gradation of the National Highways on the Golden Quadrilateral.", "o In order to compete with the roadways it would be necessary not only to lower price but also to improve performance generally in accordance with the requirement of the clientele.", "o On the Mumbai-Delhi segment, trucks moving on the National Highways would offer enough competition to the dedicated freight corridor.", "Indian Institute of Management (Ahmedabad) in their case study on Introducing Competition in Container Movement by Rail notes that CONCOR priced its services possibly keeping in mind competition from the road sector.", "14.13.", "The Commission has also noted the fact that several CTOs operate not only container trains, but also own fleet of trucks of various capacities to offer road freight services, thus complementing the rail container services.", "In other words, there is an intermodal choice between road and rail with respect to container freight.", "Thus, the Commission opines that the two major modes of container transport in India i.e. road and rail offer competitive constraint to each other.", "14.14.", "Two judgments quoted in the submissions are useful to understand  (Page 102 of 114)  the principle involved and differences in approach in defining the relevant market.", "The GHV case which has been quoted by the informant to justify rail network as the relevant market is a case regarding opening of the Hungarian railway network to other private players for freight.", "In this case the Competition Commission of Hungary observed: Rail freight transport services are acquired mainly by shippers of bulk goods.", "Bulk goods are generally transported in bulk, in a regular manner, in huge quantity, without any packaging.", "14.15.", "The market in the GHV case was the bulk freight market and the need to distinguish between container freight and wagon freight never arose.", "14.16.", "The other case referred to by the respondent is the judgment of the Commission of European Communities on the Deutsche Balm PCC Logistics.", "This was a merger case between DB Mobility Logistics, the transportation and logistics division of Deutsche Bahn (a state owned German Company) and PCC Logistics wherein the market definition remained undefined.", "14.17.", "On the basis of the above discussion and view of independent agencies, the relevant market in the present case is the transportation of containers within the boundaries of the country and consequently the Commission concludes that road and rail are substitutable for container freight operations.", "Issue II: In the market so defined, is there any dominant enterprise that enjoys a position of strength to enable it to operate independently of competitive forces.", "Having defined the relevant market as being market for transportation of containers within the country the next step is to assess the dominance of IR.", "As stated earlier, in this market the two relevant modes are road and rail.", "It is axiomatic to state that rail network is the monopoly of Indian Railways while in the case of major highways it is the state that owns the roads.", "On rail network the new policy of private container operators there are 16 eligible players who have obtained licence to run container trains.", "The road network has a large number of operators including some of the rail CTOs.", "Many of the operators on roads are small operators (77) owning less than five trucks.", "The RITES Report (2005) notes that in 2004-05, while the major ports handled a combined volume of over 4 million TEUs, less than 1 million of this volume was carried over the rail network.", "It also notes that the average annual growth rate of container traffic was between 12 and 24 per cent during 1995 to 2005.", "Despite substantial growth in container traffic rail share remain low.", "The RITES Report also mentions that for export market the dominance is of freight forwarders operating on roads.", "The CAG Report Number 8 of 2010-11 (Railways) covering its performance for the period 2004-05 to 2008-09 mentions over the years the railways share of the total transport sector has come down from 53 in 1972-1977 to 37 in 1997-2002 due to inadequate investment in infrastructure and  (Page 103 of 114)  competitive weakness vis- -vis other modes of transport.", "The Commission notes that railways are not a competitor in the relevant market, after the incorporation of CONCOR.", "Further CONCOR is not a dominant player in this market as there has been no indication that it enjoys a position of strength to influence either the competitors or the customers in its favour.", "The above data, clearly establishes that container freight is largely carried on roads and railways are not dominant in container freight.", "The Commission lastly examined the issue relating to abuse of dominance, proceeded on the premise that neither the Indian Railways nor CONCOR have been found to be dominant in the relevant market and observed: 16.1.", "It may be appropriate, nonetheless, to examine whether the market is constrained by any of the actions of IR as infrastructure provider.", "This issue is posed in the larger context of reducing logistics cost which according to an author is as high as 14 of total value of goods (GDP) compared to 6-8 of goods (GDP) in developing countries.", "Among other things, the Concession Agreement gives the right to container train operators to require the railway administration to haul their container trains on the IR network for movement of EXIM traffic as well as domestic traffic, subject to various terms and conditions and on payment of haulage charges.", "Further, the railway administration is under an obligation to provide non-discriminatory infrastructure access to container trains on first come basis, subject to technical and running requirements.", "The informant has argued that CONCOR as a unit of IR has been specially favoured to their disadvantage.", "Essentially, the arguments on allegations pertain to the level playing field in the concession agreement and the changes in the rates.", "In the backdrop of the critical nature of transport logistics and its impact on the overall economic activity, it is important to deliberate on each of the allegations: Exclusionary non-price conduct in violation of sections 4(2)(a)(i), 4(2)(b)(i) and 4(2)(c) of the Act - Prohibition from movement of coal, coke, ores and minerals by CTOs.", "By prohibiting transportation of commodities such as Coal, Coke, Ores and Minerals, the DG is in agreement with the informant that MoR IR have foreclosed about 60 of the market to the CTOs.", "The prohibition also has the effect of depriving choice of rail network to the customers who wish to transport less than train load of any of these commodities.", "Further, because of the restrictions, MOR IR have prohibited the technical and scientific development relating to containers.", "The Commission observes that DGs conclusions arise from the lack of distinction between container freight and wagon freight.", "As stated, rail infrastructure has been opened only to container trains, it is imperative to understand what is a container train and what type of goods are usually  (Page 104 of 114)  carried in containers.", "Bulk freight is normally transported in wagons while non-bulk and high value goods are transported in containers.", "This distinction is maintained even in maritime logistics where ships that are dedicated to bulk items like coal, grains, liquid and gaseous items are separated from ships that are designed to carry containerized items in containers, which are trans-modal in nature.", "Furthermore, no discrimination has occurred between CONCOR and the CTOs after signing of the Concession Agreement.", "Exclusionary price discrimination exploitative pricing and exclusionary pricing in violation of sections 4(2)(a)(ii) and 4(2)(c) of the Act - unfairly high prices and margin squeezing.", "By increasing haulage charges, imposing increased haulage charges on nine notified commodities on the basis of a container class rate and increasing stabling charges, the CTOs have been put to major cost disadvantage vis- -vis movement of notified commodities in wagons as also making their operations commercially unviable.", "This allegation is accepted by DG.", "The comparison of rates between wagons and containers on rail is inappropriate.", "Wagons have also carried non-bulk freight prior to the introduction of containers but the major freight traffic on rails has always been in bulk category.", "Comparison of rates must be between haulage charges of containers on rail network vis- -vis roads.", "Despite increase in haulage charges, transportation by road is at least 1.3 times costly between Delhi- Mumbai and people have preference for road as a transport-medium.", "The allegation of discrimination of rates between wagons and container is not valid and accordingly, the Commission is of the view that it is not substantiated.", "Moreover, setting access charges is a tariff matter and is outside the purview of CCI.", "Referring to unfair trade conditions in violation of Sections 4(2)(a)(i) and 4(2)(c), the Commission made the following observations: 18.2.", "An issue that has been raised by one of the informants is that of applicability of essential facility doctrine to certain infrastructural facilities owned by CONCOR.", "On this issue the DG has observed: Considering the facts of the present case, it is felt that the CONCORs terminals particularly those built on MoR land fulfils the aforesaid conditions to be considered as infrastructure essential to compete.", "Based on the above principles, it would be in the fitness of things to grant access to such infrastructure to other players at a reasonable fee.", "Investigation has revealed that since under the present prevailing circumstances, CTOs are not able to access most of the terminals of CONCOR, the doctrine of essential facility is found to be violated by CONCOR and MoR. 18.3.", "The Commission opines that the essential facility doctrine is invoked only in certain circumstances, such as existence of technical feasibility to provide access, possibility of replicating the facility in a reasonable period of time, distinct possibility of lack of effective competition if such access is denied and possibility of providing access on reasonable terms.", "In the present case, we are of the view that there are no technical, legal or even  (Page 105 of 114)  economic reasons as to why other CTOs should not be creating their own terminals or similar facilities.", "As set out in the Indian Railways (Permission for operators to move container trains on Indian Railways) Rules, the Model Concession Agreement (MCA) and Gazette Notification No 458 dated 26/09/2006 : , CTOs are obligated to build their own terminals at their cost.", "Leveraging dominance in one market to protect another market in violation of section 4(2) (e) of the Act By leveraging their dominance in rail services including tracks, terminals etc., railway entities are able to leverage their dominance to protect their rail freight services to the detriment of the CTOs, as evident from the following: Prohibition on specific commodities from operation by CTOs.", "Provision of land owned by MoR on favourable terms and conditions to CONCOR, giving them unfair advantage over other private CTOs in setting up terminals.", "Denying access to terminals and sidings owned by CONCOR, resulting in denial of effective market access to CTOs.", "Restricting competition in the derivative market of maintenance services.", "The conclusion of DG on this issue is based on his definition of relevant market.", "Rail freight service is an altogether different market and the Commission opines that leveraging does not arise in the market of transportation services for container freight.", "The issue of leveraging can be examined if and when a competitor tries to protect a market that is being threatened, which is not a case here.", "On the basis of the above discussion, the Commission recorded the following conclusions: The case under consideration is of immense national importance in the light of increasing containerized trade to meet the demands of EXIM and domestic trade.", "Logistics management clearly demarcate container freight and wagon freight and having taken note of these differences the relevant market is defined to focus on the competitive constraints of alternative transportation mediums that prevail.", "Further, the Commission has also held that in the relevant market, neither IR nor CONCOR are dominant.", "It is also legally not valid to treat IR and CONCOR as group entity.", "The Commission notes that in this commercial activity, the allegation pertaining to Sec 4 do not hold.", "There is, therefore, no abuse of dominant position.", "22.1 The allegation however raises some concerns on the larger issue of policy design for incentivizing private participation.", "Section 18 of the Act and the preamble mandates the Commission to promote and sustain competition in markets.", "From this dimension, the Commission is of the opinion that if the allegations regarding changes in haulage charges frequently act as disincentives it may be appropriate for the MoR to look into the matter.", "Private players look  (Page 106 of 114)  for consistency and continuity in policy.", "If the informants in this case perceive changes in haulage rates as inconsistent, the MoR may examine this to be in line with the avowed intent of the policy to encourage private players.", "Further, the Commission notes that there is a conflict of interest in as much as Railway Board IR exercise multiple roles as a licensor and operator, apart from owning the railway network.", "In view of this, it is desirable that these functions be delegated to independent entities.", "(Underlining is mine) The above noted judgement unmistakably shows that even through the Railways was in a preferential position viz. a viz. private parties availing the services for movement of containers, keeping in view the relevant market, the requirement of movement of certain commodities on priority basis, the allegation of abuse of dominance was not sustained.", "It is unfortunate that, while deciding the present case, the Commission did not even bother to refer to an important decision of its own.", "Reference may also be made to order dated 02.04.2014 passed by the Tribunal in Appeal Number 91 of 2012, Schott Glass India Pvt.", "Limited (Schott Glass India) Vs.", "Competition Commission of India and another.", "In that case, the Commission had held the appellant guilty of acting in contravention of Section 4 of the Act and imposed penalty of Rs. 5.66 Crores.", "While setting aside the finding recorded by the Commission that the appellant was in a dominant position in the relevant market, the Tribunal relied upon the minority opinion and approved the same.", "Paragraphs 47 to 51 of the Tribunals order which contain discussion on issues involving violation of various clauses of Section 4 of the Act are extracted below: In paragraph 9.45 the CCI had observed that the continuation of functional discount of Schott Glass India was contingent upon the Converters signing the Trade Mark Licence Agreement (TMLA) which according to the Appellant was to deal with the problem of mixing risk or of its products with the inferior quality Chinese imports.", "This observation is only partly correct because this situation started only after April, 2010 and was not in prevalence before that date.", "It must be realized here that the concerned provisions of sections 3 and 4 of the Competition Act came into anvil on 20.5.2009.", "The CCI, therefore, would have done better if it had considered the discount pattern which continued between 20.5.2009 to April 2010 i.e. for nearly a period of 11 months.", "We have no hesitation in confirming the finding of the minority judgment to the effect that at least until April 2010 there was no dis-similar or favourable treatment given to Schott Kaisha in comparison to the other converter companies in so far as target discount was concerned.", "We, therefore, endorse the observation in the minority order in Paragraph 7.4.1.19 to the effect that, offer of target discount continued upto 31.03.2010 and thereafter by April 2010 began the regime of TMLA.", "This functional discount was on the following conditions as per the Sale Purchase Agreement:- That Converters will promote Schott tubing by purchasing the agreed quantity in the particular year of agreement.", "ii) That the Converters will not use or convert inferior quality Chinese tubing and will provide all information and proof in this regard.", " (Page 107 of 114)  iii) That the Converters will maintain Fair Pricing of ampoules and vials for Schott tubing.", "It is to be seen that from April 2010 the Converters companies were required to sign TMLA and MSA in order to be eligible for availing functional discount.", "The learned Member Smt.", "Geeta Gouri in the minority order has observed that this functional discount policy has been applied uniformly to all the Converters at the same flat rate since its inception and was non- discriminatory.", "We endorse the finding.", "It is also relevant to take note of the fact that at the time of the hearing on 22nd August, 2012 of the interim application for stay, it was very fairly contended by the learned senior counsel for the Appellant that he will have no difficulty in complying with the condition of not making the discount on both Amber and Clear tubes contingent upon sale of each other.", "In this view of the matter, we find no merit in the allegation of functional discount policy upto April, 2010 being discriminatory.", "It was only the computation of discount that was based on the total quantum of sales of both Amber and Clear tubes and not the sale of one kind of tube contingent upon sale of the other.", "The main attack on the TMLA appeared to be on the basis of its unfairness.", "We have carefully seen the discussion further in the Minority order.", "The learned Member in the paragraphs from para 7.4.1.21 upto para 7.4.1.29 has painstakingly analyzed the implications of TMLA.", "It is not as if the functional discount was not available prior to April, 2010.", "It was indeed there but was subject to the earlier three conditions mentioned above.", "It is only after April 2010 that the Converters were required to sign the TMLA.", "The situation prior to April 2010 included both target discount as well as functional discount.", "While the target discount depended upon the purchases made by the Converters from the Appellant, functional discount on the other hand depended on the three conditions mentioned above.", "That is the only difference.", "This functional discount was only 8 in comparison to the target discount which essentially depended upon the stocks purchased by the Converters from the manufacturer and the slabs were between 2 to 12 in various degrees which have earlier come in the judgment.", "That is the only difference between the target discount and the functional discount.", "The situation changed after the TMLA was assailed for its alleged unfairness to the Converter companies.", "In our opinion, the clauses of TMLA should not have been confused and mixed with the functional discount and the target discount which error appears to have been committed in the impugned majority order.", "The learned Member Smt.", "Geeta Gouri while analyzing the TMLA has correctly observed that it was assailed on the ground of its unilateral language and which spelt out unfair and restrictive clauses in that agreement.", "According to the Informant (or that at least appears to be in this case) the clauses spelling out the right of the Appellant to enter any part of the factory or the premises where the manufacture of the relevant products is carried on, unilateral determination of breach by the Appellant, and penalty amount of Rupees Seventy lakhs in case a sample was found to be sub-standard, were the example of such unfair and restrictive clauses.", "In fact the oral statements which remained untested by cross-examination and which came from essentially interested witnesses also spelt out these complaints.", "We have  (Page 108 of 114)  already deprecated that practice of accepting the statements of the interested witnesses without any opportunity of cross-examination as the gospel truth.", "Be that as it may, the learned Member in the minority order has then painstakingly analyzed these clauses and has also considered the contentions raised by the Appellant that the TMLA was brought to mitigate the mixing risk of the products with inferior tubes such as Chinese tubes.", "The defence of the Appellant was that there was increasing pressure from the low price manufacturers from China and therefore it was felt that it was necessary to promote its brand and as such it introduced TMLA and also the MSA which was basically an agreement to co-promote its brand and products with the Converters to the pharmaceutical companies.", "The TMLA was also to authorise Converters to use the logo of the Appellant for its own benefit as admittedly the product of the Appellant was far too better as compared to the imported Chinese tubes.", "That aspect has already been covered in the earlier part of the judgment that there was a preference to the tubes manufactured by the Appellant and in fact the pharma companies were also complaining about the use of the Chinese tubes.", "We have in the earlier part of the judgment also referred to the fraud played by the Informant of getting fake logos printed in order to pass of its product under that logo to the pharma companies who insisted on the tubes manufactured by the Appellant company alone.", "(Underlining is mine) The last ground of challenge relates to the penalty imposed by the Commission.", "In paragraph 36 of the impugned order, the Commission took cognisance of the fact that vide Circular dated 20.05.2013, the time gap restriction was substantially reduced and 3 days time gap does not appear to have any adverse effect in the market.", "Notwithstanding this, the Commission arbitrarily imposed penalty 2 of the average income receipt turnover of the appellant for the last three preceding financial years.", "In this context, it is apposite to note that the proviso to Section 27(b) (unamended) was couched in a language, which made it mandatory for the Commission to impose on each producer, seller, distributor, trader or service provider included in a cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or 10 of the average of the turnover of the cartel for the last preceding three financial years, whichever was higher.", "It is thus clear that if the proviso to Section 27(b) had not been amended, then the Commission had no option but to impose penalty on each producer, seller, distributor, trader or service provider in cases involving formation of cartel.", "However, in its wisdom, Parliament amended the proviso and substituted the word shall with the word may.", "This amendment was done to bring the proviso in tune with the main Section 27, which uses the expression it may pass all or any of the following order and clause (b), which confers discretion upon the Commission to impose penalty as it may deem fit, subject to the rider that it shall not be more than 10 of the average of the total turnover for the last three preceding financial years.", "Clauses (c) and (d) also uses the word may, which signifies that the Commission has the discretion to pass the particular order, which it may deem proper in the facts and circumstances of the case.", "Since the legislature has not laid down any criteria for imposing penalty, the Commission is duty bound to consider all the relevant factors like - nature of industry, the age of industry, the nature of goods manufactured by it, the availability  (Page 109 of 114)  of competitors in the market and the financial health of the industry etc.", "and also take note of the law laid down by the Supreme Court, the High Courts and the Tribunal.", "In Dilip N. Shroff v. Joint CIT  : 2007 ITR 519, the Court considered the scope of Section 271(1)(c) of the Income Tax Act, 1960 and observed: The legal history of section 271(1)(c) of the Act traced from the 1922 Act prima facie shows that the Explanations were applicable to both the parts.", "However, each case must be considered on its own facts.", "The role of the Explanation having regard to the principle of statutory interpretation must be borne in mind before interpreting the aforementioned provisions.", "Clause (c) of sub-section (1) of section 271 categorically states that the penalty would be leviable if the assessee conceals the particulars of his income or furnishes inaccurate particulars thereof.", "By reason of such concealment or furnishing of inaccurate particulars alone, the assessee does not ipso facto become liable for penalty.", "Imposition of penalty is not automatic.", "Levy of penalty is not only discretionary in nature but such discretion is required to be exercised on the part of the Assessing Officer keeping the relevant factors in mind.", "Some of those factors apart from being inherent in the nature of penalty proceedings as has been noticed in some of the decisions of this court, inheres on the face of the statutory provisions.", "Penalty proceedings are not to be initiated, as has been noticed by the Wanchoo Committee, only to harass the assessee.", "The approach of the Assessing Officer in this behalf must be fair and objective.", "Emphasis supplied 9 2 .", "In Hindustan Steel Limited vs State of Orissa  : 1970 SC 253, the Supreme Court made the following important observations on the issue of imposing penalty: An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi criminal proceedings and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation.", "Penalty will not also be imposed merely because it is lawful to do so.", "Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances.", "Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute.", "Emphasis supplied What needs to be emphasised that being an adjudicatory body, the Commission exercises quasi judicial function.", "The orders passed by it can have great adverse impact on the rights of the parties.", "Therefore, it is bound to act in consonance with the provisions of the Statute and the rules of natural justice, which are required to be followed by every quasi judicial authority functioning under our Constitution.", "To put it differently, no quasi judicial body has the right to trample over the fundamentals of the rule of law, which constitute an integral part of democracy in our country.", "One of  (Page 110 of 114)  the facets of the rules of natural justice is that every quasi judicial authority must record reasons in support of its order and such reasons reflect and demonstrate the application of mind by the quasi judicial authority.", "An order which is bereft of reasons is just like inscrutable face of a sphinx.", "An extremely lucid exposition of law on the requirement of recording of reasons has been made by the Full Bench of Gujrat High Court in Testeels Limited Vs.", "N.M. Desai and Another  : AIR 1970 Guj. 1.", "In the judgement authored by him on behalf of the Full Bench, P.N. Bhagwati, C.J. (as he then was) examined the issue whether the administrative officer discharging quasi judicial functions is bound to give reasons in support of his order he makes.", "That question arose in the backdrop of challenge of an order made by the Conciliation Officer under Section 33(2)(b) of the Industrial Disputes Act, 1947.", "After examining the various facets of the question, the Full Bench observed: There are two strong and cogent reasons why we must insist that every quasi-judicial order must disclose reasons in support of it.", "The necessity of giving reasons flows as a necessary corollary from the rule of law which constitutes one of the basic principles of our constitutional set up.", "Our Constitution posts a welfare State in which every citizen must have justice - social, economic and political and in order to achieve the ideal of welfare State, the State has to perform several functions involving acts of interferences with the free and unrestricted exercise of private rights.", "The State is called upon to regulate and control the social and economic life of the citizen in order to establish socio-economic justice and remove the existing imbalance in the socio-economic structure.", "The State has, therefore, necessarily to entrust diverse functions to administrative authorities which involve making of orders and decisions and performance of acts affecting the rights of individual members of the public.", "In exercise of some of these functions, the administrative authorities are required to act judicially.", "Now what is involved in a judicial process is well settled and as pointed out by Shah J., in Jaswant Sugar Millss case,  : AIR 1963 SC 677 (supra), a quasi-judicial decision involves the following three elements: It is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules: It declares rights or imposes upon parties obligations affecting their civil rights and (3) the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of material if a dispute be on question of facts, and if the dispute be on question of law, on the presentation, of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact.", "The administrative authorities having a duty to act judicially cannot therefore decide on considerations of policy or expediency.", "They must decide the matter solely on the facts of the particular case solely on the material before them and apart from any extraneous considerations by applying pre-  (Page 111 of 114)  existing legal norms to factual situations.", "The duty to act judicially excludes arbitrary exercise of power and it is, therefore, essential to the rule of law that the duty to act judicially is strictly observed by the administrative authorities upon whom it is laid.", "If any departure from the observance of the duty to act judicially could pass unnoticed, it would open the door to arbitrariness and make a serious inroad on the rule of law.", "To quote the words of the Supreme Court in section G. Jaisinghani v. Union of India,  : AIR 1967 SC 1427: .", "the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based.", "In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.", "The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is.", "If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.", "Now the necessity of giving reasons is one of the most important safeguards to ensure observance of the duty to act judicially.", "If the administrative officers can make orders without giving reasons, such power in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuse of power.", "But if reasons are required to be given for an order, it will be an effective restraint on such abuse as the order, if it discloses extraneous or irrelevant considerations or is arbitrary, will be subject to judicial scrutiny and correction.", "As observed by Subba Rao J., as he then was, in Madhya Pradesh Industries Limited, v. Union of India,  : AIR 1966 SC 671, A speaking order will at its best be a reasonable and at its worst at least a plausible one.", "The condition to give reasons introduces clarity, checks the introduction of extraneous or, at any rate, minimises arbitrariness in the decision making process and it gives satisfaction to the party against whom the order is made and guarantees consideration of all relevant factors and discharge of his functions by the officer in accordance with the requirement of law.", "We may in this connection usefully quote the following passage from American Administrative Law by Bernard Schwartz at page 163: The value of reasoned decisions as a check upon the arbitrary use of administrative power seems clear The right to know the reasons for a decision which adversely affects ones person or property is a basic right of every litigant (and that whether the forum be judicial or administrative).", "But the requirement that reasons be given does more than merely vindicate the right of the individual to know why a decision injurious to him has been rendered.", "For the obligation to give a reasoned decision is a substantial check upon the misuse of power.", "The giving of reasons serves both to convince those subject to decisions that they are not arbitrary and to ensure that they are not, in fact, arbitrary.", "The need to publicly articulate the reasoning process upon which a decision is based, more than anything else, requires the Magistrate (judicial or administrative) to work out in his own mind all the factors which are present in a case.", "A decision supported by specific findings and reasons is much less likely to rest on caprice or careless consideration.", "As Judges Jerome Frank well put it in language as  (Page 112 of 114)  applicable to decision-making by administrators as by trial judges, the requirement of reasons has the primary purpose of evoking care on the part of the decider If the administrative officers having a duty to act judicially are required to set forth in writing the mental processes of reasoning which have led them to the decision, it would to a large extent help to ensure performance of the duty to act judicially and exclude arbitrariness and caprice in the discharge of their functions.", "The public should not be deprived of this only safeguard.", "Another reason of equal cogency which weighs with us in spelling out the necessity for giving reasons is based on the power of judicial review which is possessed by the High Court under Article 226 and the Supreme Court under Article 32.", "The High Court under Article 226 and the Supreme Court under Article 32 have the power to quash by certiorari a quasi-judicial order made by an administrative officer and this power of review exercisable by issue of certiorari can be effectively exercised only if the order is a speaking order and reasons are given in support of it.", "If no reasons are given, it would not be possible for the High court or the Supreme Court exercising its power of judicial review to examine whether the administrative officer has made any error of law in making the order.", "It would be the easiest thing for an administrative officer to avoid judicial scrutiny and correction by omitting to give reasons in support of his order.", "The High Court and the Supreme Court would be powerless to interfere so as to keep the administrative officer within the limits of the law.", "The result would be that the power of judicial review would be stultified and no redress being available to the citizen, there would be insidious encouragement to arbitrariness and caprice.", "The power of judicial review is a necessary concomitant of the rule of law and if judicial review is to be made an effective instrument for maintenance of the rule of law, it is necessary that administrative officers discharging quasi-judicial functions must be required to give reasons in support of their orders so that they can be subject to judicial scrutiny and correction.", "This has always been regarded as a most important reasons in the United States for insisting that quasi-judicial decisions must show reasons on their face.", "To quote from Schwartzs American Administrative Law at page 166: In the United States, perhaps the most prominent reasons advanced for the requirements of reasoned decisions is the role of such decisions in facilitating review by the courts.", "If the bases of administrative decisions are not articulated, it is most difficult for a reviewing court to determine whether the decision is a proper one.", "We must know what a decision means before the duty becomes ours to say whether it is right or wrong, reads an oft-cited statement of Gardozo J., .", "for judicial control to be of practical value, the administrative tribunal or agency, in making its order, should not make it an unspeaking or unintelligible order, but should in some way, state upon the face of the order the element which had led to the decision.", "The words quoted are from a noted judgment of Lord Cairns, L.C., in which he laid down the distinction between speaking and unspeaking orders, which has become of basic importance in present-day English Administrative law.", "When Lord Cairns speaks of an unspeaking or unintelligible order, he obviously means an order  (Page 113 of 114)  which gives no reasons.", "If the administrator does not give reasons, he, in effect, disarms the exercise of the High Courts supervisory jurisdiction.", "In such a case, the Court cannot examine further than the face of the challenged decision, which, in Lord Sumners famous phrase, speaks only with inscrutable face of a sphinx.", "(Underlining is mine) In Excel Corp Care Limited Vs.", "Competition Commission of India-Appeal Number 79 of 2012 and the connected matters, the Tribunal upheld the finding recorded by the Commission on the issue of violation of Section 3(3)(b) and 3(3)(d) read with Section 3(1) of the Act but set aside the penalty.", "Paragraphs 60 and 61, which contain the reasoning on this aspect of the matter are extracted below: The arguments put forward by Shri Ravinder Narain, Shri Ramji Srinivasan as also by Dr. V. K. Aggarwal are more or the less correct when they point out the total absence of reasons as to why the CCI decided to inflict the penalty 9 of the average turn over.", "Time and again we have been reiterating the necessity of the reasons while ordering the penalty.", "We hope that the CCI take serious note of that factor.", "This is particularly true as the CCI is an adjudicatory body as declared by two Supreme Court judgments.", "The role as an adjudicatory body would cover all the aspects of hearing and deciding.", "There can be no dispute that where harsh financial penalties are inflicted the reasons become all the more necessary.", "In Rangi International Limited vs Nova Scotia Bank and others  : (2013) 7 SCC 160, a two-Judge Bench of the Supreme Court considered the question whether the Commission and the Appellate Tribunal should record reasons in support of their orders and observed: The Competition Commission as well as the Competition Appellate Tribunal are exercising very important quasi-judicial functions.", "The orders passed by the Commission and the Appellate Tribunal can have far-reaching consequences.", "Therefore, the minimum that is required of the Commission as well as the Appellate Tribunal is that the orders are supported by reasons, even briefly.", "Since the penalty part of the impugned order is totally bereft of reasons, the same is liable to be quashed.", "It is most unfortunate that while imposing the penalty, the Commission has ignored the law laid down by the Supreme Court, the High Courts and this Tribunal.", "In this case, penalty portion of the impugned order can appropriately be described as inscrutable face of a sphinx and I do not have any option but to set aside the same which I hereby do.", "In the result, the appeal is allowed and the impugned order is set aside.", "The amount deposited by the appellant in compliance of the interim order dated 10.07.2014 passed by the Tribunal shall be refunded to it within three months.", " 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+{"id": "COM_National_Insurance_Company_Ltd_and_Ors_vs_CompetitTA2016211216160439154COM437136", "text": ["These appeals have been filed against a common Order dated 10.7.2015 passed by the Competition Commission of India (for short the Commission) under Section 27 of the Competition Act (for short, the Act).", "The Commission was of the view that National Insurance Company Limited (NIICL), New India Assurance Company Limited (NIACL), Oriental Insurance Company Limited (OICL),United India Insurance Company Limited(UIICL), (henceforth collectively referred as Appellants) had manipulated the bidding process initiated by the Government of Kerala in regard to the Rashtriya Swasthya Bima Yojna RSBY Comprehensive Health Insurance Scheme CHIS, in contravention of the provisions of Section 3(1) read with Section 3(3)(d) of the Act.", "Resultantly, the Commission directed the Appellants to cease and desist from indulging in the practices found anti-competitive and also imposed a penalty on each of the Appellant at the rate of 2 of its average turnover of the last three financial years.", "1 . 1 NIICL was incorporated on 5th December, 1906, NIACL on 23rd July, 1919, UIICL on 18th February, 1938, and OICL on 12th September, 1974.", "Management of all the undertakings engaged in general insurance business, pending nationalisation of such business, was vested with Government of India by virtue of The General Insurance (Emergency Provisions) Ordinance, 1971.", "Thereafter, General Insurance Business (Nationalization) Act, 1972 (hereinafter, GIBNA), nationalized the general insurance business and various companies were merged with the Appellants and the four Appellants became wholly owned subsidiaries of the General Insurance Corporation of India (hereinafter referred to as GIC).", "The Appellants and GIC had the exclusive privilege of carrying on general insurance business in India, which ceased with the commencement of Insurance Regulatory and Development Authority Act, 1999, when Section 24A was inserted in GIBNA.", "The General Insurance Business (Nationalization) Amendment Act of 2002, transferred the shares of the four Appellants held by GIC to the Central Government, and GIC ceased to carry on general insurance business.", "The Commission decided to inquire into the alleged contravention, on its own motion, after it received an anonymous letter in September 2013.", "This letter was addressed to the Chief Minister of Kerala with endorsement to various authorities in Government of Kerala and Government of India as also to the Chairperson, Competition Commission of India.", "The relevant extract from the letter is as follows: Reg: Cartelization of public sector insurance companies in quoting RSBY Premium Please see the attached document.", "It is the clear proof of cheating by four Public Sector Insurance Companies.", "These Insurance Companies have formed a cartel and increased the premium for RSBY every year and thus cheating the Govt.", "of Kerala and BPL people also.", "This type of cartelization is violation of competition Act.", "Violation of any act is punishable offence under IPC.", "The officials who have signed the document presently working in key positions of various public sector insurance companies.", "If you verify the records you will find that the premium is shared with private companies also, that means the cartelization is not only with public sector insurance but also with private companies.", "As citizen of India I request your good self to intervene in the matter and appropriate decision may be taken to desist the companies from this type of cheating.", "Please not that one of the signatories is presently working as CVO of one of the public sector insurance companies.", "By signing the cartelization agreement he has also violated competition Act and thus lost his institutional integrity.", "The Supreme Court in P.J. Thomas case has said the touchstone for the appointment of the CVC is the institutional integrity as well as the personal integrity of the candidate.", "This is applicable to CVOs also.", "The attached document referred to in the anonymous letter is reproduced below: UNITED INDIA INSURANCE COMPANY LIMITED REGIONAL OFFICE:KOCHI Inter Company co-ordination Committee (PSU General Insurance Companies) Minutes of the ICCC Meeting Held at United India Insurance Limited Regional Office, Kochi on 07.12.2009.", "THE MEETING WAS ATTENDED BY FOLLOWING OFFICERS: Sri B.Krishnamurthy, DGM, United India Ins.", "Company Limited RO Kochi Sri Girish Raj.", "CRM, New India Insurance Company Limited RO Kochi Sri Rajasekharan CRM, National Insurance Company Limited, RO Kochi Sri Ramamurthy, Regional manager, Oriental Ins.", "Company Limited Other Officer.", "Re: Tender Notice on RSBY dated 18/11/2009 of Govt.", "of Kerala This ICCC Meeting was held to discuss about sharing of business and submission of quotation for the above business.", "It was decided to share the business among the four PSUs with United India as Leader with 70 and other Companies with 10 each.", "This decision is subject to the approval of Committee of General managers of all four PSU Companies.", "As per the above decision United India will be L1 and other three PSUs will be L2 to L4 in the quotation being submitted on 8th December 2009.", "The Commission decided to consider the matter and in response to a query letter dated 18.10.2013 from the Secretary of the Commission, the Appellants confirmed that the minutes of the ICCC meeting of 7.12.2009 were authentic and that the officers of their respective companies had signed the minutes, and that they had participated in the tender dated 18.11.2009.", "As regards the purpose of the meeting, the response of the Appellants had the same tenor i.e., the ICCC meetings were held when major tenders, with large premium and large foreseen claims, were expected and as the RSBY scheme of the Government of Kerala was a mass health insurance scheme, a local level meeting was organized at the Kochi regional office of United India Insurance Company Limited (UIICL) to build capacity, and co-share business in order to share risks.", "The Commission considered the information and the response of the Appellants and took the view that the Appellants were independent enterprises under Section 2(h) of the Act.", "Commission noted that, the minutes of the ICCC meeting showed discussion regarding submission of quotations for the tender notice for RSBY and prima facie there appeared to be an agreement or arrangement between the OPs as bidders for rigging bid in tenders issued by Government of Kerala for RSBY Scheme in contravention of the provisions of Section 3(3) of the Act.", "The Commission, vide its Order dated February 12, 2014, under Section 26(1) of the Act, directed the Director General (DG) to investigate the matter for violation of the provisions of the Act and also to investigate the role of the persons who at the time of such contravention were in-charge of and responsible for the conduct of the business of the Appellant, if any company was found contravening the provisions of the Act.", "We may note some admitted facts regarding the RSBY (CHIS) scheme and the tenders issued by Government of Kerala inviting competitive bids for implementation of these schemes.", "6.1 Government of India had, in June 2008, launched RSBY for BPL workers in the unorganized sector as defined by the Planning Commission, and their families.", "Government of Kerala (GOK) vide its order dated 4th July 2008, announced the modalities for implementing RSBY and a Comprehensive Health Insurance Scheme (CHIS) which was extended to all the families other than the BPL families covered under the RSBY.", "As per this order - RSBY would provide annual insurance cover for a maximum amount of Rs. 30,000 for a family of five, including the worker, spouse, children and dependent parents (included in the BPL family list), and the annual insurance premium not exceeding Rs. 750/- was to be decided through tender process.", "Under the scheme, the Union Government was to meet 75 percent of the premium (not exceeding Rs. 565), and also the cost of a Smart Card for each family, estimated at Rs. 60 per card.", "The beneficiaries had to pay an annual registration charge of Rs. 30/- per family (which was part of the insurance premium to be paid to the insurance provider), and the State Government was to pay the rest of the premium, together with the administrative cost.", "The scheme was to be implemented in all the 14 districts of the State.", "Non-RSBY population was covered under CHIS and was to be divided into two categories: (a) those belonging to the BPL (Poor) list of the State Government but not in the list as per definition of the Planning Commission and (b) the APL families that belong neither to the State Government list nor to the list prepared as per guidelines of the Planning Commission.", "The beneficiary contribution was to be Rs. 100 per annum per family for families belonging to category (a), with the State Government meeting the balance including for the smart card.", "The entire amount of premium plus the cost of smart card, for families belonging to category (b) was to be met by them.", "Insurance provider companies in both public and private sector were to be considered with the selection through tender process.", "Bulk of insurance premium paid by the Central Government and State Government would flow-back to the public healthcare system itself which was to be used for improving the system.", "For this: (i) each Public Healthcare Institution would be allowed to retain the insurance premium flow-back that it obtained, at least for the first year, after which the matter would be reviewed (ii) a system of bonus for the medical staff and other staff in each public institution, based on the magnitude of flow-back, was to be worked out which provided incentives to the individual members of the institution.", "RSBY CHIS were to be implemented in all the district of State and a separate agency namely Comprehensive Health Insurance Agency of Kerala (CHIAK) was created for implementation of the scheme.", "A high level Committee of various senior officers was constituted to evaluate the technical bids and to negotiate with the insurance companies.", "A High Powered Supervisory Council consisting of Ministers of Labour Excise, Health and Social Welfare and various senior officers of Government of Kerala was also constituted.", "6.2 GOK, in July 2008 invited bids from Insurance companies licensed and registered with the Insurance Regulatory and Development Authority (IRDA) and agencies enabled by any Central legislation to undertake health insurance related activities.", "The tender was awarded to UIICL and an Agreement was entered into between Government of Kerala and UIICL on 2.10.2008 which was to remain in force for one year, but was later extended upto 31.3.2010.", "On 18.11.2009, CHIAK issued a tender for selecting the Insurer for a period of three years commencing from 1.4.2010 under RSBY CHIS schemes and the closing date for submission of the completed bid documents was 8.12.2009.", "6.3 A day before the closing of bid, i.e., 7.12.2009, officers of the Appellants met at Kochi and the minutes of the said meeting have been extracted in paragraph 3 above.", "Seven insurance companies including the four Appellants submitted the tender documents.", "Of the four Appellants, UIICL quoted the lowest price and this was in accordance with the decision taken in the ICCC meeting on 7.12.2009.", "All the bidders were considered as qualifying in the first meeting of the Technical Evaluation Committee (TEC) but in its second meeting on 21.12.2009, the TEC evaluated the bids on the basis of a scoring system and decided that bidders scoring 50 and above would be declared successful in the technical rounds.", "UIICL and OICL were declared successful in the technical rounds and the financial bid of UIICL at Rs. 464 being the lowest was accepted for implementation of RSBY and CHIS scheme in Kerala for a period of three years with effect from 1.4.2010 subject to yearly renewal.", "In September 2010, UIICL wrote to CHIAK for a review of the premium payable under the scheme for the coming years, claiming adverse claim experience during the past year and the current year.", "Vide another letter dated 10.11.2010, UIICL reiterated to re-consider the position on the ground that it would be impossible to continue with the scheme in view of the alarming claims experience which was projected to cause a deficit of nearly Rs. 50 crores over premium income.", "However, since there was no legal provision to allow a premium increase, UIICL exited the scheme under clause 31 (Term and Termination) (ii) (c) of the Agreement dated 11.8.2010.", "6.4 CHIAK issued a fresh tender on 21.11.2010, in response to which it received tender bids of seven insurance companies including the four Appellants.", "The TEC in its first meeting held on 6.12.2010 decided on the parameters to evaluate the bids and in its second meeting of 13.12.2010 evaluated all the seven bids and following the earlier years benchmark of minimum 50 marks or above, UIICL and NIACL were declared technically qualified.", "Since the bids at Rs. 825(with ST) and 827(with ST) were considered high, the matter was referred to the High Powered Supervisory Council (HPSC) which directed that the matter be discussed with UIICL because, though there was no scope for negotiation with reference to premium, there was room for discussion on the additional benefits which could be extended to the beneficiaries.", "UIICL agreed to offer certain additional benefits with maximum amount limited to Rs. 15 per enrolled family.", "HPSC decided that the scheme had to be continued and there was no alternative but to approve the premium which was based on the tender process.", "However, considering the high financial implication it directed that the matter be placed before the Council of Ministers for approval.", "Government sanction was granted vide Order dated 3.1.2011 for accepting the bid of UIICL for 3 years with effect from 2011-2012.", "In March, 2011 an interim Agreement was signed between CHIAK and UIICL providing adjustment of the premium on the basis of claims experience.", "While final Agreement was yet to be signed, UIICL in its Office Note dated 1.12.2011, inter alia, recorded that considering the projected losses and information from CHIAK that, the Government had refused to include the premium adjustment clause in the final Agreement, CHIAK should be informed that unless increased premium was paid, it would exit the scheme under clause 18 of the Interim Agreement.", "This Office Note concludes with the following: If we exit the Scheme, CHIAK may go for re-tendering.", "We may again participate in the process quoting appropriate higher premium jointly with other PSUs.", "In the above circumstances we may seek Head Office approval for our following recommendations: To issue a formal letter to CHIAK asking for increased premium for our continuation in the Scheme for the next year.", "If CHIAK State Government does not agree to the above, to exit the Scheme through the Cancellation Provision of the Agreement.", "6 .5 On 6.12.2011 a final Agreement without the premium adjustment clause was executed.", "UIICL vide letter dated 9.12.2011 gave a termination notice as per clause 21(ii) (c) of the said Agreement on the ground that they were making losses and their request for increase of premium to Rs. 1100 was not accepted.", "6.6 Thereafter, CHIAK issued fresh tender with last date for submission of bids being 30.12.2011.", "An internal Office Note of OICL signed on 28.12.2011, after the fresh tender was published, is reproduced below: OFFICE NOTE RE:RSBY FOR THE YEAR 2012-13 The RSBY Scheme of Kerala Government was insured by United India Insurance company right from 2008.", "In 2010-11, Oriental took a 15 share.", "From the beginning, the scheme was making loss to the insurance companies.", "The ICR for the past three polices is as follows : 2008-2009 -- 116.23 2010-11 -- 189 2011-12 -- 133.80 In view of heavy losses, UIIC demanded increase in premium per family from Rs. 748 to Rs. 1100 and on the government refusing to pay the increased amount.", "UIIC terminated the policy vide their letter dated 09.12.2011.", "Subsequently, CHIAK (the authority designated for running the scheme) called for fresh tenders.", "The last date for submission of tender is 30.12.2011.", "As far as Oriental is concerned, we had a 15 share in 2010-11 and the ICR was 189.", "There were some difficulties in getting the correct claim figures from UIIC anticipating continued losses in 2011-12, we refrained from participating and informed the same to UIICL.", "After the fresh tender was published, UIIC called for a meeting of all the four PSUs and discussed the reason for the past loss makings.", "We participated in the meeting without any commitment to share the premium.", "From our experience, we feel that whatever be the rate charged the scheme will run into losses in view of the increased awareness of the scheme among the public.", "Loss control measures like surprise checks, hospital visit etc.", "undertaken by UIIC for the past three years have not yielded any result.", "In view of the above we may not participate in the tender either as a sole insurer or a co-insurer.", "(emphasis supplied) 6.7 However, all the Appellants bid in response to the tender.", "UIICL was the lowest bidder at Rs. 1274 which it agreed to reduce to Rs. 1100 and GOK accorded sanction to accept UIICL as the insurance provider for 2012-2013.", "At the request of UIICL that incentive to hospital staff be discontinued to eliminate wrong practices, GOK also ordered that incentive share of RSBY fund, received by the hospital from the Insurance provider, would be limited to 5 as demanded by UIICL and 95 be kept in the RSBY fund for infrastructure development.", "6.8 GOK invited fresh tenders for the years 2013-2016.", "The Appellants bid again.", "UIICL was the lowest bidder amongst the Appellants at Rs. 1150 but the bid was won by Reliance General Insurance Company Limited with a quote of Rs. 738.", "We now revert to the proceedings in the Commission.", "Pursuant to the Order of the Commission under Section 26(1) of the Act, the DG conducted investigation into the actions of the Appellants relating to the tenders issued by the GOK for the years 2010-11 to 2012-13.", "DGs findings were as follows: The authenticity of the ICCC document was established.", "The conduct of the Appellants was clearly collusive in nature and as decided in the ICCC meeting, UIICL quoted the lowest bid amount amongst the Appellants for the year 2010-11 to 2012-13 to win the bid and cut the competition among themselves.", "The bid amount quoted for these years and even the increase in the bid amount by the Appellants showed a clear pattern of growth as evident from the table below: 3 .", "In a competitive environment in a tendering process for selection, those who were not placed as L1 would have a tendency to competitively outbid the L1 i.e UIICL, to get the business.", "However, in this case the other Appellants rather increased their quote price at higher percentage in subsequent years, showing a clear pattern of formation of cartel which was in violation of Section 3(3) (d) of the Act.", "The Appellants not only formed a cartel, but also shared the business amongst themselves in the ratio which was decided in the ICCC meeting.", "The argument of co-insurance was not acceptable as the RSBY scheme did not allow for any sharing of business through coinsurance.", "Any sharing of business through co-insurance had to be done, if any, with the express approval of the client (in this case CHIAK).", "However, the Executive Director of CHIAK had specifically stated on Oath that no such communication or approval was taken by the Appellants.", "This was also confirmed by Shri V. Sajan, DGM, UIICL, Kochi in his statement.", "The role of CHIAK was not above board as it adopted certain parameters which were not mentioned in the tender documents to select the insurer and an arbitrary marking system was followed.", "The contravention of competition laws was not only done at regional level but at the Head Office level with proper planning and understanding and the Head Offices, which approved the financial bids, were fully aware of the cartel.", "The complainant had alleged that the private insurance companies were also involved in the cartel, but no evidence for that could be found during investigation.", "For the year 2013-14, CHIAK managed the tender process in a very transparent and competitive way leading to selection of Reliance General Insurance Company Limited at a quote of Rs. 738/- for three years 2013-2016.", "This quote was much below the price quoted by the UIICL in the previous year 2012-13 i.e Rs. 1274 (subsequently reduced to Rs. 1100 on negotiation).", "Reliance General Insurance Company Limited had informed that the scheme was running well at Rs. 738.", "The available e-mails exchanged between key employees of the Appellants and also between key employees and top management of UIICL specifically discussed about the booking of premium for RSBY Scheme and sharing of business among the Appellants.", "However, email dumps were not furnished despite various opportunities and such conduct established the complicity of the Appellants in bid rigging.", "7.1 The DG concluded that, it was a case of contravention of Section 3(3)(a) and Section 3(3)(d) of the Act as the Appellants had discussed the bid price for RSBY scheme, decided that UIICL will be L1 and shared the business among themselves in a predetermined ratio, and thereby rigged the bids, which was explicitly prohibited under the Act.", "In his view, this was a case of per se violation of competition laws, presumed to have an appreciable adverse effect on competition and did not require a test of rule of reason to establish the contravention.", "The Commission after receiving the DGs report considered the same and forwarded electronic copies to the Appellants and they were asked to file their response.", "The Appellants filed preliminary objections challenging the DGs report on the ground that it suffered from a fundamental error of failure to consider that all the Appellants being controlled by the same parent i.e Government of India, through the Department of Financial Services (DFS) were part of a single economic entity and hence there could not be any collusion between them under Section 3(3) of the Act.", "The Commission, however, asked the Appellants to file their objections on the merits of the report also.", "The Appellants filed their objections to the main report and the parties were admittedly heard on 14.5.2015 over various aspects including the issue of single economic entity.", "Copies of letter dated 14.5.2015 which was sent by DFS to the office of the DG in another case of investigation against the Public Sector General Insurance Companies, was also submitted to support the position that the Appellants formed part of a single economic entity.", "The Commission has summarized the arguments of the Appellants regarding they being a single economic entity and rejected those in paragraph 23 to 26 of the impugned Order, reproduced below: The Commission notes that OPs have vehemently opposed the DGs findings on the basis that they constitute a single economic entity.", "OPs have claimed that until 2002, all OPs were owned by General Insurance Company.", "It was also submitted that pursuant to the enactment of the General Insurance Business (Nationalization) Amendment Act, 2002, Government of India holds 100 shares of each of the OPs and controls the management and affairs of the companies through Department of Financial Services (Insurance Division), Ministry of Finance.", "To appreciate the issues projected in the present case, it would be appropriate to notice the regulatory reforms that were introduced in the insurance sector.", "In this regard, a reference may be had to the policy reforms introduced by the Government of India in 1991 which led to the de- regulation of the Indian economy.", "With the commencement of private participation, a need was felt to modify the existing market structure of certain select sectors, including, the insurance sector so as to promote orderly growth of these sectors.", "In this regard, the Government of India established a committee in the year 1993 under the chairmanship of Shri N. Malhotra (former Governor of the Reserve Bank of India) to propose reforms for the insurance sector.", "Pursuant to the recommendations of the Malhotra Committee, two major regulatory changes were introduced, including, ending the monopoly of General Insurance Company in the general insurance business and ending the control exercised by General Insurance Company over its four wholly owned subsidiaries, i.e., the four public sector insurance companies.", "The Commission notes that these regulatory changes were ushered in to allow the public sector insurance companies to act independently and to compete with the private players to offer better services to consumers.", "The Commission notes that although the public sector insurance companies are presently under the overall supervision of the Central Government, each of the OPs placed a separate bid in response to the tenders issued by the Government of Kerala for implementation of RSBY CHIS schemes.", "Further, parties themselves have admitted before the DG that all decisions relating to submission of bids, determination of bid amounts, business sharing arrangements, etc. were taken internally at company level without any ex ante approval directions from Ministry of Finance.", "Even the decisions taken by the companies were not notified ex post to the Ministry.", "Thus, it is apparent that the OPs participated in the impugned tenders independent of Ministry of Finance and the DG also did not come across any contra evidence.", "In view of the above, the Commission notes that the conducts of OPs in relation to the RSBY CHIS tenders issued by the Government of Kerala during the period between 2010-11 and 2012-13 were based on their own volition and the Ministry of Finance had no role to play.", "On this basis, the Commission holds that the ministry of Finance did not exercise any de facto or de jure control over OPs business decision in submitting bids for impugned tenders.", "As such, OPs cannot be said to constitute a single economic unit.", "Accordingly, the Commission rejects OPs claims.", "8.1 Further, the Commission held that decision of the Appellants in the ICCC meeting dated 7.12.2009 at Kochi, which was the basis for initiating the suo moto case was, implemented by the Appellants.", "The reasons adduced by the Commission to support this finding in paragraphs 34 to 38 of the impugned Order, are as follows: In this regard, the Commission notes the financial bids submitted by the participating bidders in response to the 2009 tender.", "A comparison of the financial bids submitted by the OPs is set out below: It is clear from the above OPs quoted price bids in accordance with the decision taken in the ICCC meeting held on 7.12.2009.", "The Commission notes that in line with the decision taken in the ICCC meeting, OP-4 was the L-1 bidder.", "Further, the Commission notes that it is an admitted fact that OP-4 entered into a business sharing arrangement with other OPs in relation to the 2009 RSBY tender in the manners set out below : Details of Business Sharing Arrangement relating to the Tender dated 08.12.2009 The Commission notes that it is abundantly clear that the decision taken in the ICCC meeting held on 7.12.2009 relating to the business sharing arrangement was actually implemented by OPs and as such the submission made by the OPs that the decision taken during the ICCC meeting was not implemented is factually patently false and incorrect.", "In view of the above, the Commission concludes that OPs colluded and rigged bids in response to the tender issued by the Government of Kerala.", "In coming to this conclusion, the Commission relies on (a) minutes of the meeting held by OPs on 7.12.2009 at Kochi (b) the financial bids submitted by OPs prior to finalization of the tender and (c) the business sharing arrangement concluded subsequently after finalization of the tender.", "The Commission notes that the evidence clearly and unequivocally establishes that not only did the OPs meet one day prior to the submission of bids, they also entered into an anti-competitive agreement to manipulate the tendering process initiated by the Government of Kerala for the implementation of RSBY and CHIS schemes.", "8.2 The Commission scrutinized the Appellants conduct relating to tenders issued by the Government of Kerala in the year 2011-12 to 2012-13 also and concluded that a clear bidding pattern was evident and in this context tabulated the rate bids of the Appellants in the following table in paragraph 47 of the impugned Order: Details of OPs rates bids in relation to the tenders of 2011-2012 and 2012- 2013 8.3 The Commission supported its finding of clear bidding pattern by noting that in relation to both the tenders- The Appellants had quoted substantially higher premium and no plausible explanation to explain the rise was forthcoming UIICL repeatedly secured the L1 position and entered into business sharing arrangements with, National Insurance Company Limited and New India Assurance Company Limited While the contracts were awarded for a period of three years but UIICL repeatedly invoked the exit clause of the contracts, thereby, forcing the Government of Kerala to initiate re-tendering after completion of the first year of the contract.", "8.4 The Commission analyzed two internal documents i.e. internal Office Note dated 1.12.2011 of UIICL and internal office note dated 28.12.2011 of OICL in order to examine whether the bidding pattern was an outcome of an anticompetitive agreement.", "Based on these documents, the Commissions findings were as follow: The Commission is of the opinion that OP-4s office note dated 01.12.2011 clearly demonstrates the public sector insurance companies, i.e., OPs were cartelizing to fix higher insurance premium rates.", "Relevant extract from the aforementioned office note is set out below : If we exit the scheme CHIAK may go for re-tendering.", "We may again participate in the process quoting appropriate higher premium jointly with other PSUs.", "From OP-3s office note dated 28.12.2011, the Commission notes that collective action of the public sector insurance companies is clearly and unequivocally established.", "For ready reference, the relevant excerpts therefrom are quoted below: After the fresh tender was published, UIICL called for a meeting of all the four PSUs and discussed the reason for the past lossmaking.", "We participated in the meeting without any commitment to share the premium.", "In view of the above, the Commission holds that it is clearly borne out from the case records that the OPs were holding meetings prior to submission of bids in response to the tenders issued by the Government of Kerala for the implementation of RSBY and CHIS schemes.", "This, when viewed together with the past practice in relation to the RSBY CHIS tender dated 08.12.2009 and the bidding pattern exhibited by OPs in relation to the subsequent tenders, singularly point to the only conclusion that the bidders were acting pursuant to an anticompetitive agreement to manipulate the tendering process initiated by the Government of Kerala.", "8.5 The explanations given by the Appellants to explain the alleged agreement based on losses incurred by them as the quantum of claims disbursed outnumbered the quantum of premiums received and the flawed incentive scheme (for hospital staff), were rejected by the Commission in paragraph 55 of the impugned Order with the following findings : 55a reference may be had to the statement made by the representatives of Reliance General Insurance Company Limited, the insurer under the RSBY CHIS tender of 2013-14.", "The Commission notes that this tender was awarded to Reliance General Insurance Company Limited at an annual premium of Rs. 738/- per family for a period of three years and this contract was renewed for the year 2014-15 at the same price.", "The Commission also notes that representatives of Reliance General Insurance Company Limited have confirmed that the company is not incurring any losses for providing health insurance services under the RSBY CHIS schemes.", "On this basis, the Commission holds that the explanations offered by OPs are false assertions.", "Thus, the agreement amongst OPs to manipulate the tendering process initiated by the Government of Kerala CHIAK for implementation of RSBY and CHIS for the years 2010-11, 2011-12, 2012-13 in accordance with the provisions of Section 2(b) of the Act is clearly and unequivocally established.", "8.6 The Commission also held that, The entire modus operandi resorted to by OP-4 in concert with the other PSUs to exit from the tender year after year forcing re- tendering and consequent quotation of higher quotation of premium in collusion is a virtual fraud perpetrated upon the State of Kerala with regard to a social welfare scheme which was directed at BPL families.", "8.7 The Commission concluded that, the conduct of the Appellants had resulted in manipulation of the bidding process, initiated by the Government of Kerala, in contravention of the provision of Section 3(1) read with Section 3(3)(d) of the Act.", "It held that in the case of agreements listed in Section 3(3) of the Act, it was presumed that the agreement had an appreciable adverse effect on competition and the Appellant could not rebut this presumption as they could not show as to how the impugned conduct resulted into accrual of benefits to consumers or made improvements in production of distribution of services or did not foreclose competition.", "The Commission, accordingly, ordered the Appellants to cease desist from indulging in anti-competitive practices.", "Further, the Commission found the case fit for imposition of penalty.", "It considered the collective, anti-competitive conduct of the Appellant affecting the State of Kerala and the beneficiaries of the RSBY CHIS scheme i.e. BPL and other poor families to be the aggravating circumstances.", "The peculiarities of the insurance sector which include importance of insurers insolvency for the consumers were considered as mitigating circumstances and a penalty of 2 of the average turnover of the last three financial years was imposed on the Appellants which worked out to Rs. 162.80 crore on NICL, Rs. 251.07 crore on NIACL, Rs. 100.56 crore on OICL and Rs. 156.62 crore on UIICL.", "Aggrieved by the Order of the Commission, the Appellants have filed separate appeals.", "Arguments were individually made by the counsels for the four Appellants and though they had different shades in certain aspects, the essential theme was the same.", "On conclusion of the oral arguments, we had permitted the parties to file short written notes vide our Order dated 8.11.2016, which were filed by all the Appellants and the Respondent on 15.11.2016.", "The issues which require determination are as follows: Whether the Appellants were a single economic entity and hence there could not be any agreement in terms of Section 3 of the Act, amongst the companies which were part of the same enterprise, causing appreciable adverse effect on competition 2 .", "Whether the meeting of 7.12.2009 and the conduct of the Appellants in regard to various tenders, evidenced bid rigging in terms of Section 3 of the Act or a co- insurance arrangement 3 .", "Whether the Appellants have any escape from the presumption of bid rigging having appreciable adverse effect on competition 4 .", "Whether Investigation by the DG and the impugned Order of the Commission went beyond the period covered by the Order under Section 26(1) of the Act passed by the Commission 5 .", "Whether the principles of natural justice were violated, vitiating the impugned Order, by non-signing of the order by the Chairman who was present during the deliberation in the Commission Whether finding of the Commission of virtual fraud is valid Whether the penalty was leviable and if so whether the quantum was to be calculated with reference to the total turnover or with reference to the turnover of the transactions relating to bid rigging.", "The provisions of the Act and the General Insurance Business (Nationalization) Act, 1972,(GIBNA) which are relevant for adjudicating the aforesaid issues, are extracted below: The Competition Act, 2002 Section 2 Definitions - In this Act, unless the context otherwise requires, - (b) agreement includes any arrangement or understanding or action in concert, - whether or not, such arrangement, understanding or action is formal or in writing or whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings (h) enterprise means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "Explanation - For the purposes of this clause, - a) activity includes profession or occupation b) article includes a new article and service includes a new service c) unit or division, in relation to an enterprise, includes - a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods any branch or office established for the provision of any service (l) person includes- an individual a Hindu undivided family a company a firm an association of persons or a body of individuals, whether incorporated or not, in India or outside India any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) any body corporate incorporated by or under the laws of a country outside India a co-operative society registered under any law relating to cooperative societies a local authority every artificial juridical person, not falling within any of the preceding sub-clauses (z) words and expressions used but not defined in this Act and defined in the Companies Act, 1956 (1 of 1956) shall have the same meanings respectively assigned to them in that Act.", "Section 3 Anti-competitive agreements - No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.", "Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void.", "Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which- (a) directly or indirectly determines purchase or sale prices (b) limits or controls production, supply, markets, technical development, investment or provision of services (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.", "Explanation - For the purposes of this sub-section, bid rigging means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding Section 4 Abuse of dominant position - No enterprise or group shall abuse its dominant position.", "General Insurance Business (Nationalisation) Act, 1972 Section 18 - Functions of Corporation.", "The functions of the Corporation shall include (a) the carrying on of any part of the general insurance business, if it thinks it desirable to do so (b) aiding, assisting and advising the acquiring companies in the matter of setting up of standards of conduct and sound practice in general insurance business and in the matter of rendering efficient service to holders of policies of general insurance (c) advising the acquiring companies in the matter of controlling their expenses including the payment of commission and other expenses (d) advising the acquiring companies in the matter of the investment of their funds (e) issuing directions to acquiring companies in relation to the conduct of general insurance business: Provided that all the functions of the Corporation specified in this sub-section, on and from the commencement of the General Insurance Business (Nationalisation) Amendment Act, 2002, shall be performed by the Central Government.", "In issuing any directions under sub-section (1), Central Government shall keep in mind the desirability of encouraging competition amongst the acquiring companies as far as possible in order to render their services more efficient.", "Section 19 - Functions of acquiring companies.", "Subject to the rules, if any, made by the Central Government in this behalf and to its memorandum and articles of association, it shall be the duty of every acquiring company to carry on general insurance business.", "Each acquiring company shall so function under this Act as to secure that general insurance business is developed to the best advantage of the community.", "In the discharge of any of its functions, each acquiring company shall act so far as may be on business principles and where any directions have been issued by the Central Government or the Insurance Regulatory and Development Authority established under sub-section (1) of Section 3 of the Insurance Regulatory and Development Authority Act, 1999 41 of 199 shall be guided by such directions.", "For the removal of doubt it is hereby declared that the Corporation and any acquiring company may, subject to the rules, if any, made by the Central Government in this behalf, enter into such contracts of re-insurance or reinsurance treaties as it may think fit for the protection of its interests.", "Section 10A - Transfer to Central Government of shares vested in Corporation- All the shares in the capital of the acquiring companies, being - (a) the National Insurance Company Limited (b) the New India Assurance Company Limited (c) the Oriental Insurance Company Limited (d) the United India Insurance Company Limited, and vested in the Corporation before the commencement of the General Insurance Business (Nationalisation) Amendment Act, 2002 shall, on such commencement, stand transferred to the Central Government.", "Section 24A - Exclusive privilege of Corporation and acquiring companies to cease.", "Notwithstanding anything contained in this Act, the exclusive privilege of the Corporation and the acquiring companies of carrying on general insurance business in India shall cease on and from the commencement of the Insurance Regulatory and Development Authority Act, 1999 and the Corporation and the acquiring companies shall, thereafter, carry on general insurance business in India in accordance with the provisions of the Insurance Act, 1938 (4 of 1938).", "Provided that the Corporation shall, on and from the commencement of the General Insurance Business (Nationalisation) Amendment Act, 2002, cease to carry on general insurance business.", "The issues listed in paragraph 10 above are adjudicated in seriatim in the following paragraphs.", "12.1 The crux of the defense of the Appellants in regard to issue at no (i) is that they constituted a single economic entity, and because bid rigging under Section 3 of the Act required agreement between enterprises, any agreement between parts of the same enterprise would not be an anti-competitive agreement.", "The premise canvassed was that, the statutory scheme governing the Appellant established that they constituted a single economic entity, operated and controlled by the Insurance Division of DFS, Government of India, and the following arguments were made in support thereof : The Central Government held 100 of the shares of the Appellants and, therefore, had decisive control over them.", "The Central Government under Article 77 of the Constitution of India allocates business to various ministries.", "Ministries in turn allocate work to their various departments which execute business either directly or through their instrumentalities like the Appellants in the present case.", "Various provisions of GIBNA make it clear that apart from the corporate control, the Government of India, has statutory control over the Appellants and therefore there can be no dispute that they constituted a single economic enterprise.", "GIBNA was enacted for securing the development of general insurance business for the best interest of the community and to ensure that the operation of the economic system did not result in concentration of wealth to the common detriment, as postulated in Article 39(c) of the Constitution of India.", "This intention was reflected in the Preamble and the declaration of the policy under Section 2 of GIBNA.", "Section 2 of the GIBNA makes it clear that the Appellants were actually carrying out the obligation of the State for serving a social welfare scheme, and no penalty could be levied upon the Government Companies for implementing the scheme of the Government to carry out obligations cast on the State under Article 39 of the Constitution of India.", "Sections 4, 9,10 and 10A of GIBNA describe how 107 insurance companies were merged together to form the present day four Appellants.", "100 shares were taken over first by the Government of India and then they were vested in General Insurance Corporation (GIC) and later by an Amendment Act of 2002, the said shares were re-vested in the Government of India.", "Section 10A was added to the GIBNA for the aforesaid purpose.", "Since Government of India stepped into the shoes of GIC, the superintending, controlling and carrying on the business of general insurance referred to in Section 9(1) of the GIBNA was then carried out by the Government of India through DFS.", "Section 18(1) and 18(2) are further illustrative of the fact that functions of GIC were taken over by the Government of India, which through DFS now issues directions to Appellants in relation to the conduct of general insurance business.", "Government issued instructions towards business strategies and in fact forbade Appellants from entering into unhealthy competition or to undercut each other, as was evident from various circulars and letters listed below:- The minutes of the meeting taken by the Secretary, Financial Services on 25th January, 2010 regarding the review of the performance of the Appellants particularly in para 3, as extracted below, prove the decisive influence :- Secretary (FS) felt that the performance of the companies is worrisome and underwriting losses are mounting.", "He observed that the companies are bitterly competing among themselves and are drifting from their aims.", "There are problems in the banking industry also but the problems in the working of general insurance companies are graver and the Ministry is worried about this.", "He called upon the companies to continuously devise and launch new products to match the demands of the insuring community on one hand and, on the other hand, formulate new strategies to compete with private players.", "He also exhorted the Companies to give requisite impetus to IT implementation plans.", "Especially relevant in this regard were strategy direction dated 24.5.12 with the following statements: At a time, when there is a financial strain on these Companies on account of abolition of motor pool shifting to declined motor pool and other factors, the Public Sector Insurance Companies to be incurring losses to an extent of Rs. 1500 crores and above every year on Group Health Insurance policies is totally unacceptable.", "This is especially when the total dividend declared by these Companies during 2010-11 was only Rs. 30 crores.", "A closer examination of these losses and a relative comparison with the private sector, it is clear that that these losses are due to the lack of prudent underwriting and a very unhealthy and self-destructive inter-company competition among these four Companies.", "Heavy discounts are being offered on premiums, so as to snatch the business from the other Public Sector Undertaking Companies.", "Such unhealthy competition has led to a state where premiums for Group Health Insurance policies are settling down to a very low level and such policies become loss making the very moment they are underwritten.", "Health insurance is one of the most important upcoming segment in the non- life sector and the business in Health Insurance is only going to grow up in coming years.", "While the desire to increase the GDPI by underwriting new premium policies including those in the Health Insurance business is understandable, this cannot be done by seriously compromising the bottom line.", "Growth in premiums portfolio cannot be at the expense of the bottom line and would make the entire Health Insurance Sector unviable in the long run.", "It is, therefore, necessary that a proper mechanism be put in place whereby an appropriate pricing mechanism for pricing Group Health Insurance is adopted which takes into consideration the existing ICR, management expenses, medical inflation, commissions, likely increase in the quantum of claims due to ageing of the covered group, cost of underwriting the business and other such associated factors.", "All such instructions were issued with a warning that deviation would be viewed seriously.", "Government of India acted as a single parent head and had control over the activities of the Appellants.", "Minutes of the Review dated 10.1.2007 of performance of the Appellants by the Finance Minister reproduced below evidenced the influence of the Government Ministry of Finance Sub: Performance of Public Sector Insurance Companies and GIC On the basis of the performance review done on 10th January, 2007, I set down below some thoughts and points for action.", "Overall, I am disappointed with the performance of the Public Sector Insurance Companies (PSICs) as well as GIC.", "Because they have been monopolies for nearly 30 years, they have been under no pressure to perform.", "As a result, total business, insurance penetration, premium as a percentage of GDP, per capita premium and all other parameters are extremely low compared to international bench mark standards.", "My overall impression is that PSICs have not reflected on any plan for growth, for example, none of them seems to have Vision 2020 or Vision 2025 statement or a similar ambitious goal programme.", "The first thing each PSIC should do is to get the top management together for a two-day brain storming session and work on Vision 2020 or a Vision 2025 statement programme.", "They have not focused on insurance penetration measured by the number of policies issued.", "Homes, properties, motor vehicles, factories, machinery etc.", "deserve to be insured.", "The spread of health insurance is a significant pointer to development.", "Therefore, the number of policies issued by each PSIC is indeed a measure of performance.", "This must be suitably reflected in the new SOI from 2007-2008 onwards.", "The employee strength of PSICs is extremely high.", "This is a legacy issue.", "Because of huge recruitment in the mid 1980s the present date of attrition is low.", "Issue that needs to be addressed by the PSICs.", "There is a huge backlog in suit claims and non-suit claims.", "Every year, a larger number of suit claims and non- suit claims are filed.", "The number of claims settled in each year should be more than the new claims filed each year, otherwise, they backlog will never be liquidated.", "So far as suit claims are concerned, PSICS must review their panels of lawyers, the performance of each lawyer measured by the number of cases disposed of and put in place a system where more suits are heard and decided by the Tribunals.", "In addition, they must examine the possibility of settling up Adalats to dispose of these claims.", "If they approach the Chief Justice of the High Court concerned, he she would direct the Judge Incharge of the Lok Adalats and Adalats could be held in every district and a large number of MACT cases could be disposed of.", "As regards non-suit claims, perhaps there is reluctance on the part of the individual manager to settle these claims.", "An alternative course would be to constitute 2/3 member teams which will go around the districts, fix dates for settlement, hear the parties and settle as many claims as possible on the spot.", "In conclusion, I would advise them to make a determined effort to liquidate the backlog and work out a time frame for doing so.", "There are huge disparities in the technologies employed in the four PSICs.", "The main indicators of technology adoption may be listed and the progress made by each of the four PSICs against each indicator may be graded on a scale of 0 to 10 (zero means no beginning and 10 means full achievement).", "Thereafter, each PSIC must work out a timeframe by which it will achieve 10 points against each technology indicator parameter.", "PSICs must begin work on dematerializing insurance policies.", "A suitable date may be fixed in the financial year 2007-08 (say, 1st October, 2007) with effect from which only dematerialized policies will be issued.", "All old (material) policies should be dematerialized over a period of time.", "Treasury management of PSICs is extremely poor.", "It is possible that the PSICs are extremely conservative.", "It is also possible that they do not have adequate expertise in this behalf.", "Treasury management must be strengthened, experts must be appointed and treasury management should aim to maximize profits.", "On health insurance, I take a very strong view on the non-performance of three of the four PSICs.", "There is no reason why one PSIC should be able to show good progress while the remaining three PSICs are non-starters.", "Within four weeks from today, each of them should submit a time frame on how they will show progress on the matter of issuing more policies under universal health insurance scheme.", "As regards, GSIC, there are several issues.", "It is over manned, it has survived on mandatory ceded insurance and is under no pressure to perform.", "GSIC should also present Vision 2020 or a Vision 2025 plan as soon as possible.", "Sd - Chidambaram) Finance Minister 11.01.2007 SECRETARY (FS) Control has to be seen from 100 shareholding and from facts and circumstances and instruction for each transaction to flow from the parent, was not required.", "Letter of DFS dated 14.5.15 confirmed the factual position of instruction being issued by the Government.", "Transfer and postings of the officers inter se among the Appellants took place routinely under the directions of DFS, in terms of Section 22 of the GIBNA.", "The Appellants were State under Article 12 of the Constitution and participation in health insurance scheme, irrespective of the losses suffered, was in discharge of mandatory obligations under the Constitution and could not be considered as a conspiracy.", "The fact of Appellants implementing the social sector schemes of the Government was noted in all the Annual Reports tabled by the Ministry of Finance in Parliament and special reference be made to Annual Report for the year 2008-2009 which recorded participation by the Appellants in Universal Health Insurance Schemes.", "Annual Report for the year 2012-2013 took a stock of operational losses in general by the Appellants and noted that the Government had issued advisory to the companies to formulate strategy to be adopted by the companies in order to improve upon the pricing of these products viz. Health, Fire and Motor insurance It was, therefore evident that as a single parent head the Department of Financial Services, Ministry of Finance was very much in control over the operational aspects of the companies and it reviewed their performance from time to time.", "It took note of the losses, it informed the Parliament about the same and also issued advisories for improving the said positions.", "Finding of the Tribunal in the case of Wing Cdr.", "(Retd.) Dr. Biswanath Prasad Singh v. Director General of Health Services (DGHS) (Appeal Number 63 of 2014), as extracted below was equally applicable to the case of the Appellant.", "CGHS is clearly an enterprise which provides healthcare services to the target group and in order to do so, in view of the constraints on its capacity, it laterally complements its resources by empaneling hospitals which include private hospitals as well The European Commission in its Guidelines on the applicability of Article 101 of the Treaty on the functioning of the European Union to horizontal co- operation agreements (Ref.", "Number 2011/C11/01) has laid down that: Companies that form part of the same undertaking within the meaning of Article 101(1) are not considered to be competitors for the purposes of these guidelines.", "Article 101 only applies to agreements between independent undertakings.", "When a company exercises decisive influence over another company they form a single economic entity and, hence, are part of the same undertaking.", "The same is true for sister companies, that is to say, companies over which decisive influence is exercised by the same parent company.", "They are consequently not considered to be competitors even if they are both active on the same relevant product and geographic markets.", "The Appellants, under the decisive influence of DFS, were single economic entity.", "The concept of single economic entity as applied to the private players in the order of the Competition Appellate Tribunal in the case of Exclusive Motors Pvt.", "Limited v. Automobile Lamborgini, SPA Ors.", " should also be applied to the Appellants as they were under the shadow of their 100 shareholder which controlled all aspects of their functioning.", "DFS held an all pervasive decisive influence over the functioning of the PSGICs and therefore they were part of the same enterprise.", "The rationale applied to confirm single economic entity in international jurisprudence viz American Needle Inc. v. National Football League  : 560 U.S. 183 (2010, Case Number COMP M.6113-DSM SINOCHEM JV.", "of the European Union, Consten and Grundig Case 56 1966 ECR 299, of the European Court of Justice, Case T- 102/92, Viho Europe BV v. Commission 1995 ECR II-117, Case C-73/95 P, Viho Europe BV v. Commission 1996 ECR 1-5457,S V v. Commission 1992 ECR-II 1403, UAB Milsa and UAB Torita of the Lithuanian Competition Council, supported the case of the Appellant.", "1 2 . 2 Another facet of a single economic entity presented by Shri Krishnan Venugopal, Learned Senior Counsel for the Oriental Insurance company was that DFS was engaged in providing general insurance services through the Appellants, and DFS together with the Appellants formed a single enterprise and therefore, the Commission was bereft of jurisdiction under Section 3 of the Act because there could not be a prohibited agreement between persons who were part of a single enterprise.", "Following arguments were advanced in support of this proposition: Article 39(c) of the Constitution read together with GIBNA and the Articles of Association of the Appellants clearly established that the Central Government through the DFS was providing general insurance services through the Appellants.", "The term subsidiary in Section 2(h) of the Act had to be construed as including companies that were wholly owned and controlled by the Central Government.", "GIBNA nationalized the entire general insurance business and vested it with the Central Government.", "Section 2 of GIBNA expressly declared that it was for giving effect to the policy of the State towards securing the principles specified in Article 39(c) of the Constitution i.e The State shall, in particular, direct its policy towards securingthat the operation of the economic system does not result in the concentration of wealth and the means of production to the common detriment It was, therefore, that the Central Government, as the State for the purposes of the Directive Principles of State Policy in part IV of the Constitution had been entrusted with the provision of general insurance services throughout India through its instrumentalities, namely, the Appellants.", "The Appellants were State under Article 12 of the Constitution as held in the case of United Insurance Company Limited v. Manubhaidharamsinhbhai Gajera  : (2008)10 SCC 404 and also State under Article 36 of the Constitution for the purposes of the Directive Principles of State Policy.", "Various provisions of GIBNA confirmed the conclusion that the Central Government which provided general insurance services through the Appellants : section 16(2) provided that only four companies would remain and that they would be so situated as to render their combined services effective across India Under section 18(1), as amended in 2002, the Central Government could not only directly carry on any part of the general insurance as it considered desirable, its functions in relation to the Appellants included: aid, advise and assistance to the acquiring companies in setting up standards of conduct and sound practice in general insurance business and in rendering efficient services to holders advice in controlling expenses advice in investing funds and issuing directions in relation to the conduct of general insurance business.", "Under Section 17A, the Central Government could regulate the terms and conditions of service of officers of the GIC and of all acquiring companies Under Section 22, the Central Government had the power to transfer employees among the Appellant Insurance Companies as it chooses The Articles of Association of the four Appellants further reinforced the conclusion that the Central Government wholly owned and controlled the Appellants.", "Not only does the Central Government appoint the Directors and the Chairmen and Managing Directors of the Appellant Insurance Companies, it can also remove them, fill vacancies, etc.", "Section 18(2) of GIBNA is for the Central Government to keep in view, but that cannot vest Commission with jurisdiction under Section 3 of the Act because there could not be a prohibited agreement between persons who were part of a single enterprise.", "Section 2 of the Act must be read by applying principles of statutory interpretation such as (a) purposive interpretation in light of the mischief rule (b) an interpretation to make a provision effective and operative.", "The interpretation of the term enterprise in section 2(h) of the Act, by the Commission would result in (a) fastening a charge of cartelization on Government companies or corporations involved in producing the same goods or providing the same services where they were under the control of the same department of Government, (b) immunizing departments of the Government that control multiple companies in producing the same product or providing the same service, from allegations of abuse of dominance under Section 4 of the Act because these would not be considered as enterprise for the purposes of section 4 of the Act, thereby frustrating the intent of the Act, of, inter alia, countering the mischief of dominance of the public sector.", "3 Shri Rajshekhar Rao, Advocate for the Commission made the following arguments to rebut the contention of a single economic entity: Statement of objects and reasons to the GIBNA clearly stated the intent in regard to creation of the Appellants being as only four companies, so situated as to promote competition between them so that effective services in the field of general insurance may be rendered by them in all parts of India.", "(emphasis supplied) Section 18(2) of GIBNA statutorily mandates the encouragement of competition to the extent possible and if the four Appellants were part of a single economic entity, then even the possibility of competition could not exist.", "Section 19(3) of GIBNA in mandating the Appellants to act so far as may be on business principles makes it even more untenable to assert that the Appellants could be exempted from the rigors of Section 3 of the Act, particularly when there were no governmental directions to this effect.", "An inevitable extension of accepting the arguments of single economic entity would be the removal of the entire public sector from the reach of Section 3 of the Act, a result incompatible with the fundamental scheme of the Act, particularly when viewed in the light of legislative history under the Monopolies Restrictive Trade Practices Act, 1969.", "In order to consider the arguments of the Appellants and the Respondent in regard to the single economic entity, it is necessary to first note the legal structure of the Appellants and the statutory framework in the form of GIBNA impacting their operations.", "Its an admitted position that the Appellants are Companies, with each of them having separate Memorandum and Articles of Association.", "Appellants were in existence when the nationalisation of general insurance business was effected through GIBNA in 1972.", "The Preamble to GIBNA reads as follows: An Act to provide for the acquisition and transfer of shares of Indian insurance companies and undertakings of other existing insurers in order to serve better the needs of the economy by securing the development of general insurance business in the best interests of the community and to ensure that the operation of the economic system does not result in the concentration of wealth to the common detriment, for the regulation and control of such business and for matters connected therewith or incidental thereto.", "13.1 Intent of GIBNA as stated in the Preamble is reiterated in Section 2 of the said Act which declares that the said Act is to give effect to the policy of the State towards securing the principles specified in clause (c) of Article 39 of the Constitution.", "Article 39(c) which figures under Chapter IV titled Directive Principles of State Policy directs that the State shall, in particular, direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and the means of production to the common detriment.", "So the GIBNA targeted concentration of wealth, and in terms of the Preamble aimed to get the insurers serve better the need of the economy and develop general insurance business in the best interests of the community.", "In terms of Section 4 of GIBNA the shares of every existing Insurance company were transferred to the Central Government and Section 10 of GIBNA provided the transfer of these shares to GIC on its formation under the Companies Act.", "Section 16(1) of GIBNA, vested the Central Government with the power to frame one or more schemes for merger of existing companies with a rider under Section 16(2) of GIBNA, that In framing schemes under sub-section (1), the object of the Central Government shall be to ensure that ultimately there are only four companies (excluding the Corporation) in existence and that they are so situate as to render their combined services effective in all parts of India.", "In terms of Section 18(1) of GIBNA, GIC could carry on general insurance business, and its functions included aiding, assisting, advising and issuing directions to the acquiring companies i.e the Appellants, in the matters listed in clauses (b) to (e) of the said Section.", "13.2 This signified that the legislative intent was that the Central Government was not to engage in insurance business itself and such business was to be carried on by GIC and its four subsidiaries i.e the Appellants.", "No Department of the Central Government was authorized to engage in insurance business.", "The General Insurance Business(Nationalisation) Amendment Act, 2002, divested GIC of its shareholding of the Appellants and transferred that to the Central Government through insertion of Section 10A in GIBNA and also inserted a Proviso to Section 18(1) of GIBNA whereby functions of GIC as enumerated under Section 18(1) of GIBNA were to be performed by the Central Government.", "Therefore, by virtue of this amendment, Central Government could if it so desire, carry on general insurance business in terms of Section 18(1)(a) of GIBNA and also had to perform the functions of aiding, assisting, advising and issuing directions to the acquiring companies i.e the Appellants in terms of Section 18(1) (b) to 18(1)(e) of GIBNA.", "1 3 .3 So in terms of Section 18(1) of GIBNA, the Central Government and the Appellants are distinct and separate entities.", "Central Government can independently do insurance business and the Appellants have a separate right to do insurance business.", "This is further reinforced by Section 18(2) of GIBNA, which circumscribes the powers of Central Government to issue directions and Section 19 of GIBNA, which lists functions of the Appellants and requires the Appellants to be guided by the directions issued by the Central Government or the IRDA and Section 23 of GIBNA, which vests Central Government to issue directions in matters of policy involving public interest.", "Therefore, DFS which is the part of the Ministry of Finance discharging functions of the Central Government, is separated by a statutory wall from the Appellants.", "13.4 The statutory scheme also enunciates the applicability of business principles in the operations of the Appellants, including the need of competition among the Appellants, demolishing their claim of a single economic entity.", "As pointed out by the counsel for the Commission, the Statement of Objects and Reasons of the GIBNA, inter alia, stated that only four companies, so situated as to promote competition between them so that effective services in the field of general insurance may be rendered by them in all parts of India.", "(emphasis supplied).", "13.5 The reason for creating four companies by the process of mergers, as indicated above was to encourage competition, which was reinforced in Section 18(2) of GIBNA which mandated Central Government to keep in mind the desirability of encouraging competition amongst the Appellants, while issuing directions in order to render their services more efficient.", "This is a statutory recognition of the principle that competition among the Appellants would promote efficiency and is in sync with the Statement of Objects and Reasons of GIBNA (ibid).", "Further, Section 19(2) and 19(3) of the GIBNA, directs the Appellants to secure that general insurance business is developed to the best advantage of the community and to act so far as may be on business principles.", "Business principles include competition, and confirm the legislative intent to stimulate efficiency in public interest, through competition amongst the Appellants.", "The acknowledgment of need for competition is manifest in the very fact that instead of merging all the companies under one entity with various units or divisions, the legislature created a structure of 4 companies.", "13.6 The argument that Appellants would constitute economically a single entity since DFS exercised control over each of the Appellants, through issue of letters regarding operational matters, review of their performance, transfer and posting of officers, appointment of Directors etc.", "has no force.", "DFS is not engaged in the business of insurance, though as stated earlier, the GIBNA authorized Central Government after the 2002 amendment to carry on insurance business.", "The Appellants, therefore, cannot economically form a single entity with DFS, which is not engaged in any commercial activity.", "They are not under each others influence and do not hold any management or shareholder position in each other.", "The influence, if any, of the DFS does not detract from the independent, commercially and economically separate status of each of the Appellant, who as per GIBNA owe their separate existence to the need to compete in interest of efficiency.", "In fact, the letter of DFS dated 14.5.2015 on which strong reliance was placed to assert the confirmation by the Government of exercising decisive influence and hence supporting single economic entity proposition, specifically apprised the Commission that the advisories were not to undermine competition, in the following words: Therefore, although the advisories referred to in your aforementioned letter are towards regulating the operational activities of the four Public Sector General Insurance Companies (PSGICs) the same were sent out with a view to protect and safeguard them against any imprudent business action, and achieving the above objective of the Government.", "It is also pertinent to mention here that these advisories are consistent with regulations issued by the Sector Regulator (IRDAI) from time to time in the area of health insurance and are not intended to undermine and do not undermine the healthy, fair and competitive functioning of the sector.", "The advisories issued by this Department vide letter dated 24.05.2012 to the four PSGICs are a part of our efforts as discussed in the preceding paragraphs.", "The said advisories do not affect competition in the market in any manner, which the Government of India, through its own legislation, wishes to protect and promote amongst business enterprises.", "(emphasis supplied) 13.7 Further, the definition of enterprise under Section 2(h) of the Act, which is an exhaustive definition, stipulates that enterprise is a person or a department of Government engaged in the stated activities either directly or through one or more of its units, or divisions or subsidiaries.", "Each of the Appellant is directly engaged in the activities of providing insurance services.", "It is not the argument that they are each others unit, division or subsidiary.", "So every Appellant is an enterprise under Section 2(h) of the Act, and an aggregation of persons operating independently of each other, cannot be characterized as an enterprise.", "Therefore, any agreement between them is an agreement between enterprises.", "13.8 We have in paragraph 13.3 of this Order given reasons as to why DFS, in view of the provisions of GIBNA cannot be considered as directly engaged in providing insurance services.", "We also see no force in the argument of Sh.", "Krishnan Venugopal, Learned Senior Counsel for the Oriental Insurance Company Limited that DFS was engaged in providing insurance services, through its subsidiaries and hence was an enterprise, for the purposes of Section 2(h) of the Act.", "The definition of enterprise in Section 2(h) of the Act does not support his claim because DFS which is a department of the Government is neither engaged in insurance business directly nor can it engage in such activities through subsidiaries.", "Appellants cannot be considered as subsidiaries of DFS as the expression subsidiaries not having been defined in the Act, has to take its meaning from the Companies Act because Section 2(z) of the Act, requires that the words and expressions used but not defined in the Act and defined in the Companies Act, shall have the same meaning as assigned in that Act.", "The definition of subsidiary in the Companies Act, 1956 (which was applicable for the period of tenders) is as follows: MEANING OF HOLDING COMPANY AND SUBSIDIARY For the purposes of this Act, a company shall, subject to the provisions of sub-section (3), be deemed to be a subsidiary of another if, but only if, - (a) that other controls the composition of its Board of directors or (b) that other - where the first-mentioned company is an existing company in respect of which the holders of preference shares issued before the commencement of this Act have the same voting rights in all respects as the holders of equity shares, exercises or controls more than half of the total voting power of such company where the first-mentioned company is any other company, holds more than half in nominal value of its equity share capital or (c) the first-mentioned company is a subsidiary of any company which is that others subsidiary.", "ILLUSTRATION For the purposes of sub-section (1), the composition of a companys Board of directors shall be deemed to be controlled by another company if, but only if, that other company by the exercise of some power exercisable by it at its discretion without the consent or concurrence of any other person, can appoint or remove the holders of all or a majority of the directorships but for the purposes of this provision that other company shall be deemed to have power to appoint to a directorship with respect to which any of the following conditions is satisfied, that is to say - (a) that a person cannot be appointed thereto without the exercise in his favour by that other company of such a power as aforesaid (b) that a persons appointment thereto follows necessarily from his appointment as director or manager of, or to any other office or employment in, that other company or (c) that the directorship is held by an individual nominated by that other company or a subsidiary thereof.", "In determining whether one company is a subsidiary of another - (a) any shares held or power exercisable by that other company in a fiduciary capacity shall be treated as not held or exercisable by it (b) subject to the provisions of clauses (c) and (d), any shares held or power exercisable - by any person as a nominee for that other company (except where that other is concerned only in a fiduciary capacity) or by, or by a nominee for, a subsidiary of that other company, not being a subsidiary which is concerned only in a fiduciary capacity, shall be treated as held or exercisable by that other company (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first- mentioned company or of a trust deed for securing any issue of such debentures shall be disregarded (d) any shares held or power exercisable by, or by a nominee for, that other or its subsidiary not being held or exercisable as mentioned in clause (c) shall be treated as not held or exercisable by that other, if the ordinary business of that other or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that business.", "For the purposes of this Act, a company shall be deemed to be the holding company of another if, but only if, that other is its subsidiary.", "In this section, the expression company includes anybody corporate, and the expression equity share capital has the same meaning as in sub- section (2) of section 85.", "In the case of a body corporate which is incorporated in a country outside India, a subsidiary or holding company of the body corporate under the law of such country shall be deemed to be a subsidiary or holding company of the body corporate within the meaning and for the purposes of this Act also, whether the requirements of this section are fulfilled or not.", "A private company, being a subsidiary of a body corporate incorporated outside India, which, if incorporated in India, would be a public company within the meaning of this Act, shall be deemed for the purposes of this Act to be a subsidiary of a public company if the entire share capital in that private company is not held by that body corporate whether alone or together with one or more other bodies corporate incorporated outside India.", "9 Subsidiary status is available only to companies or a body corporate.", "A department of the Government is neither a company nor a body corporate, and by its very nature cannot have subsidiaries.", "Any extended or altered meaning of the term subsidiary will mean a departure from the clear language of law under Section 2(h) read with Section 2(z) of the Act.", "Purposive rule and Mischief rule of interpretation cited by the counsel are not applicable in this case as these aids to interpretation of a statute are deployed where the language is unclear, ambiguous and the interpretation canvassed would support intent of the legislature and curb the mischief that was sought to be corrected through the new legislation replacing an earlier legislation.", "In the present case, the legislative history in relation to the MRTP Act and the background in which the Competition Act replaced the MRTP Act validate the proposition that except for the activities of the Government relatable to sovereign functions and activities of the departments of the Central Government specifically listed in Section 2(h) of the Act, activities of public sector will be subjected to the discipline of competition law.", "We do not agree that a literal interpretation of the word Subsidiaries be discarded in favour of an interpretation which would make public sector undertakings immune from the charge of cartelization.", "Further, we find no force in the argument that if the term enterprise in not to include the department aggregated with the public sector enterprise that it controls, then Section 4 of the Act has no force.", "Section 4 of the Act prohibits abuse of dominant position by enterprise or group.", "An enterprise as defined in Section 2(h) of the Act means a person or a department of the Government and person as defined in Section 2 of the Act (l) includes individuals, HUFs, Companies etc.", "So every company, even a public sector company, comes within the purview of Section 4 of the Act.", "13.10 The proposition that the Appellants were a single economic entity because they were driven by a common objective of carrying out obligations of State and were State in implementing the health insurance schemes and other social obligations under Directive Principles of the Constitution, is based on an incorrect premise.", "There is no constitutional obligation on the Appellants under the Directive Principles to provide health insurance to all.", "The following paragraphs from the Supreme Court Judgement in the case of Manubhaidharamsinhbhai Gajera (ibid) clarify as to what are the obligations of the Appellants when acting as State: There is no escape from the fact that the appellant is a State within the meaning of Article 12 of the Constitution.", "It has been created under the 1972 Act.", "The said Act, as the preamble shows, was enacted for achieving certain purposes, economic benefit of the people and or group of people, being one of it.", "At the point of time when the 1972 Act was enacted the insurance companies enjoyed a monopoly status.", "But would it mean that only because it ceases to enjoy the same by itself is sufficient to hold that it is not required to follow the constitutional or statutory norms? If it is a State its action must be fair and reasonable.", "It has been so held in a catena of decisions of the Court as for example Peacock Plywood Plywood Ltd. v. Oriental Insurance Company Limited  : (2006) 12 SCC 673 paragraphs 57 at page 691 and Life Insurance Corporation of India v. Consumer Education and Research Centre  : (1995) 5 SCC 482.", "There cannot be any doubt that Directive Principles of State policy by themselves per se are not enforceable in a court of law.", "See Kesavananda Bharati v. State of Kerala  : (1974) 3 SCC 225.", "We would assume that it is one thing to say that the State is to make all endeavours to improve the public health but the same by itself would not mean that a contract of insurance governed by statute must receive construction in terms of the said provision or otherwise, the endeavour of the State should have been to direct compulsory insurance for all its citizens.", "Improvement of public health has been held to mean an obligation on the part of the State to put forth its policy to ecological balance and hygienic environment, the later being an indirect facet of the right to healthy life.", "Virinder Gaur and others v. State of Haryana and others  : (1995) 2 SCC 577.", "See also Kirloskar Brothers Ltd.s.", "v. Employees State Insurance Corporation  : (1996) 2 SCC 682.", "Even otherwise the term health may be given a wider meaning in the context of insurance.", "It may mean sound health.", "Collins English Dictionary defines health as :- Health: the state of being bodily and mentally vigorous and free from disease, the general condition of body and mind: in poor health, the condition of any unit, society, etc.", ": the economic health of a nation, a toast to a person, wishing him or her good health, happiness, etc., (modifier) of or relating to food or other goods reputed to be beneficial to the health: health food a health store.", ", (modifier) of or relating to health, esp.", "to the administration of health: a health committee health resort health service., an exclamation wishing someone good health as part of a toast (in the phrases your health, good health, etc.).", "The functions of the insurance companies are governed by statute.", "A contract of insurance, therefore, must subserve the statutory provisions.", "It must indisputably be construed having regard to the larger public policy and public interest guiding nationalization of the insurance companies.", "Insurance Sector is regulated.", "The provisions of the Insurance Act are applicable to all insurance companies irrespective of the fact as to whether they are in public sector or private sector.", "When a business is regulated, all concerned would be governed thereby.", "It is one thing to say that the terms and conditions of a contract are statutory in nature but is another thing to say that the statute governs or controls the business itself.", "It is the latter which is applicable to the fact of the case.", "Two things are apparent.", "One, the Central Government has come out with a new economic policy.", "The monopoly status has been taken away from the General Insurance Corporation of India and its subsidiaries.", "The insurance companies are required to compete with others in the field, but the same may not necessarily mean that despite the statutory interdicts the public sectors insurance companies must have a level playing field with the private insurance companies.", "We have, despite the new economic policy of the Central Government, no option but to proceed on the assumption that the public sector insurance companies being a State have a different role to play.", "It is not to say that as a matter of policy statutory or otherwise the insurance companies are bound to regulate all contracts of insurance having the statement of Directive Principles in mind but there cannot be any doubt whatsoever that fairness or reasonableness on the part of the insurance companies must appear in all of its dealings.", "(emphasis supplied) 13.11 Thus while acting as State, the only obligation of the Appellants in regard to insurance contracts was to be fair and reasonable and to be governed by the larger public policy but that did not mean that they were to necessarily provide health insurance by bidding for the GOK tenders or were in terms of GIBNA read with Article 39(c) of the Constitution mandated to participate in the health insurance schemes.", "It is also important to note that Article 39(c) of the Constitution provides that the State shall direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.", "Nationalisation of general insurance business, as specifically stated in Section 2 of GIBNA was for giving effect to the policy of the State under Article 39(c) of the Constitution.", "GIBNA does not make any reference to Article 39(e) of the Constitution which provides that the State should direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.", "13.12 Various international cases cited by the Appellants were based on legal provisions applicable in those jurisdictions.", "Further, the concept of single economic entity was confirmed in those cases as also in Lamborgni case (ibid), as the subsidiaries did not enjoy real autonomy in their operational decisions, and along with their parent represented a single aggregation of economic power.", "In the present case, the Appellants are Board managed companies, with autonomy in operational matters and cannot be aggregated with DFS, which is not engaged in any activities relating to good or services.", "Besides, the fact that the Appellants were competing inter se, was acknowledged in the letter of DFS dated 24.05.12, cited by the Appellants to support their case of control and influence of DFS and extracted in paragraph 12.1 (v) of this Order, though the competition was described as very unhealthy and self-destructive inter-company competition among these four Companies.", "13.13 Our decision in the case of Wing Cdr.", "(Retd.) Dr. Biswanath Prasad Singh v. Director General of Health Services (DGHS) (Appeal Number 63 of 2014), cited by the Appellants to support their claim of DFS being an enterprise, is premised on different facts.", "In that case, the finding of fact was that DGHS was not just a facilitator for its target group to seek healthcare in empanelled hospitals but itself provided healthcare in its 273 allopathic dispensaries, 19 polyclinics, 73 labs and 85 Ayush hospitals.", "In the present case, DFS is not providing insurance services.", "13.14 We do not agree that the Appellants are a single economic entity or that DFS was an enterprise in terms of Section 2(h) of the Act, engaged in providing general insurance services through its subsidiaries i.e the Appellants.", "Once we hold that the Appellants are not a single economic entity, we have to assess their conduct in the tender process and analyze the agreement recorded in the minutes dated 7.12.2009 extracted in paragraph 2 of this Order, to determine whether there was a contravention of Section 3 of the Act on account of bid rigging.", "The admitted facts reveal that, senior officials of the Appellants held a meeting on 7.12.2009 wherein it was agreed that UIICL would be L1 with respect to the tender floated by the Government of Kerala for the year 2010-11.", "UIICL did in fact emerge as the lowest qualifying bidder in terms of the aforesaid Agreement for subsequent tenders too, where all the four Appellants bid.", "The contention of the Appellants is that, UIICL had incurred huge losses from the first year of the scheme and having already suffered losses in the previous years, the sister companies discussed about the capacity building, risk improvement measures and sharing of burden of losses while serving a social sector scheme.", "It was submitted that, since UIICL had a strong presence and large infrastructure in South, the minutes actually presented the decision to serve the social sector scheme by UIICL and for other sister companies to provide support as co-insurers in the loss making scheme.", "A chart was handed over to us during the arguments to show that in the year 2008-2010, UIICL had suffered losses of Rs. 7.88 crores which got enhanced to Rs. 70 crores in the year 2010-11 and Rs. 42.63 crores in 2011-12 and it was in the year 2012-13 that UIICL could make profit of Rs. 92.05 crores.", "This profit was stated to be on account of restriction imposed by the Government on the complaint of UIICL on staff incentives.", "It was emphasized that the real result of the Agreement was that, UIICL had reduced share of losses due to cooperation of sister Appellant companies.", "It was impressed upon us that, the Appellants were not the only bidders as private sector companies were also eligible to bid and actually did bid, and hence bid manipulation to ensure success of UIICL was not possible.", "It was urged that, there was no intention to make supernormal profit and the exit from the Agreements was for valid reason of losses.", "14.1 According to the counsel of the respondent, the uncontroverted fact of the Agreement followed by repeated success of UIICL in various tenders was sufficient to establish bid-rigging on the part of the Appellants.", "He submitted that, it was entirely irrelevant in law that there were other bidders not party to the said Agreement, or that the Agreement did not ultimately result in abnormal profit (or, for that matter, any profit) for the participating Companies.", "The argument that the Appellants intended to engage in co-insurance was stated to be entirely untenable, since such an arrangement ought to have been disclosed to the Government of Kerala, and only one Company should have entered a bid in the tender process.", "It was stressed that even the coinsurance Agreement which was placed on record by the Appellant demonstrated that, Co-insurance necessarily required participation as a Consortium with pre-determined shares being disclosed to the Client and a lead Consortium Partner being identified to take on day-to-day responsibility for the transaction.", "It was underlined that, no such common bid was tendered and the four purportedly independent bids were entered which created an illusion of competition which would have convinced the Government of Kerala that a robust market mechanism had determined the correct price, although this was far from the truth.", "14.2 We agree with the conclusion of the Commission that, the Appellants did enter into an Agreement as defined in Section 2(b) of the Act, in contravention of Section 3 of the Act, which resulted in bid rigging.", "The minutes of the meeting which caused the initiation of inquiry by the Commission are a contemporaneous record of the intent of the meeting and decisions taken.", "There is no mention of co-insurance.", "The Office Notes quoted in paragraph 52 and 53 of the impugned order confirm the continuation of the Agreement recorded in the said minutes.", "Besides, a co-insurance Agreement dated 20.2.2009, which was entered into between the existing IRDA- licensed non-life insurers operating in the Indian market including the Appellants, inter alia included the following under the title system of co-insurance: The term of coinsurers shall contain a lead insurer and coinsurers who will be name by the insured according to their choice at the time of placing their proposal with the lead insurer.", "The client shall name the percentage of the risk allotted to the lead insurer and Coinsurer, at the time of placing the business with the lead insurer.", "In writing, clearly specifying the share of business amongst them.", "This agreement which governed the co-insurance arrangement required that GOK should have been apprised of the said arrangement and only one of the Appellants should have bid, which admittedly is not the position.", "So the plea of co-insurance is not tenable.", "14.3 An argument was made that, the Agreement of 7.12.2009 was not implemented because ratio of business share differed from the ratio recorded in the Minutes and all the Appellants actually incurred losses, except in 2012-2013.", "However, this variation and incurring of losses will not undermine the anti-competitive nature of the Agreement.", "The fact is that, all the Appellants bid for the tenders, though OICL, did not share the business after 2010-2011 and sharing ratio deviated from the ratio agreed at in the minutes.", "Bid rigging as defined in Explanation to sub-section (3) of Section 3 of the Act, inter alia, means manipulating the process of bidding.", "Such manipulation does not require sharing of business and there is no assumption that bid rigging is for making profits.", "Anti-competitive Agreement resulting in bid rigging is a per se contravention.", "14.4 The bid rigging arrangement executed by the Appellants was in the nature of cover bidding whereby three of them agreed to submit bids which were higher than the bid of UIICL.", "The bidding pattern has been appropriately analyzed by the Commission in the impugned order and the relevant table and findings have been noted in paragraphs 8.2 and 8.3 of this Order.", "The Appellants, through their separate bids created an impression of genuine competition.", "This misleading facade resulted in UIICL not ending up as a lone qualifying bidder.", "It is relevant to note that the Kerala High Court, which was the jurisdictional court, had in its judgement in WA Number 3332 of 2001 dated 29.10.2001, held that when there was only one bidder and the contract was awarded to that bidder, there was demonstrable prejudice to public interest.", "On the facts of this case for the tender for the year 2010-2011, there were only 2 qualifying bidders i.e UIICL and OICL and for the year 2011-2012 also there were only two qualifying bidders i.e NIACL and UIICL.", "If OICL or NIACL had not bid, this would have been an instance of lone qualifying bidder.", "Viewed from this perspective, cartelization ensured success of UIICL.", "14.5 The Appellants, if they wanted to share risks could have bid as a consortium without contravening Section 3 of the Act.", "There is no bar on their forming a consortium and as per information in public domain they did form a consortium under the lead of NIACL and won a bid for insuring the fleet of Air India.", "14.6 We are of the view that, there was no constitutional or statutory requirement for the Appellants to participate in each tender regarding the health insurance.", "There was no direction or even advice from DFS to participate in the tenders issued by GOK.", "Further, if they wanted to spread their risks, they had an option to either enter into a formal co-insurance arrangement or to bid as a consortium.", "Statutorily, as brought out by us in earlier part of this Order, they were expected to compete and operate on business principles.", "On the facts of this case, we have no hesitation in concluding that anti-competitive agreement was entered into by the Appellants in contravention of Section 3(1) of the Act, which constituted bid rigging in terms of Section 3(3) of the Act.", "The next issue is as to whether the Appellant can escape the presumption of appreciable adverse effect on competition on account of bid rigging.", "The Appellants argued that agreement, if any between the Appellants could not have had any appreciable adverse effect on competition in the market, which is the sine qua non for the contravention under Section 3(3) of the Act, for the following reasons: It was an Agreement between sister concerns controlled by a single parent head or the common shareholder.", "Not all the Appellants qualified for the financial evaluation of the bids each year.", "Factors enumerated in Section 19(3) of the Act were sufficient to establish that this was not the case where there was any appreciable adverse effect on the competition in the market.", "On the contrary, there was substantial benefit to the consumers and there was also increase in efficiency as a result of the Agreement of co-insurance entered into between the parties.", "The fact that the Appellants suffered heavy losses was indicative of there being no appreciable adverse effect on the competition.", "The fact that prices were increased by the Appellants while quoting for tender each year was of no consequence since the prices were increased even by the private players.", "DG after investigation had found no evidence of any collusion between private and public sector companies.", "Therefore, since prices were not increased for bids by any collusive activities, there was no appreciable adverse effect on the competition in the market.", "15.1 Sub-section 3 of Section 3 of the Act creates a presumption that any agreement which results in bid rigging, has an appreciable adverse effect on competition.", "The Proviso to this sub-section carves out an exception by stipulating that any agreement entered into by way of joint venture which increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services, is not covered by such presumption.", "The Appellants have not established as to how they constituted a joint venture or how even on the presupposition of a joint venture, they delivered the benefits as enumerated in the said Proviso.", "15.2 The presumption under Section 3(3) of the Act takes away the applicability of rule of reason.", "Bid rigging has been statutorily determined to be anticompetitive.", "Presumption in a substantive law is irrefutable and conclusive.", "Once a conclusion of bid rigging is reached, contravention of Section 3(1) of the Act is also established.", "We see no reason to interfere in the conclusion of the Commission that the Appellants entered into an Anti-competitive Agreement, resulting in bid rigging which had an appreciable adverse effect on competition.", "The next issue pertains to the claim of the Appellants that the DG exceeded his mandate of investigation by including tenders for the years 2011-12 and 2012-13 when the order to investigate the matter under Section 26(1) of the Act dated 12.2.2014, mentioned only bid rigging of tender dated 18.11.2009 based on the photocopy of the minutes of the meeting dated 7.12.2009.", "It was argued that the Commission too went beyond the mandate contained in its prima facie order under Section 26(1) of the Act.", "1 6 .1 We do not agree with the Appellants.", "The minutes of the meeting dated 7.12.2009 which were admittedly authentic and based on which the Commission took up the matter suo moto under Section 19(1) of the Act, were annexed to a letter, which has been reproduced in paragraph 2 of this Order.", "This letter specifically alleged that the Insurance Companies have formed a cartel and increased the premium for RSBY every year.", "(emphasis supplied).", "The minutes of the meeting dated 7.12.2009 were attached as a documentary proof.", "In the Order under Section 26(1) of the Act, in para 9, the Commission held as follows: In view of the above, prima facie there appears to be an agreement or arrangement between the OPs as bidders for rigging bid in tenders issued by the Government of Kerala for RSBY Scheme in contravention of the provisions of Section 3(3) of the Act.", "The Commission considers it appropriate that this matter be sent to the DG for thorough investigation under Section 26(1) of the Act.", "(emphasis supplied).", "2 Therefore, the allegation was in regard to the conduct of the insurance companies for increase of premium through cartelization every year and the order of the Commission was in regard to rigging bid in regard to tenders.", "Accordingly, the DG and the Commission validily examined the tender process for the years 2010- 11, 2011-12 and 2012-13.", "The Appellants have sought quashing of the impugned order on the ground of violation of the principles of natural justice.", "It was stated that, all the members of the Commission and the Chairman were present for the hearing dated 07.04.15, wherein counsel for the Appellants was heard for some time on the preliminary objection regarding the maintainability of the proceedings under Section 3(3) of the Act against companies forming a Single Economic Entity.", "Further, it was submitted that a specific question was raised by the Chairman as to whether the Government of India supported the argument advanced by the Appellants that they were a Single Economic Entity and the matter was adjourned for a final hearing on 14.05.15, on which date the Appellants filed a letter dated 14.05.15 issued by the DFS, responding to the Chairmans query, but a quorum of four members without the Chairman, heard the arguments and reserved the order.", "The Appellants asserted that on inspection, they had found that the Chairman participated in the internal deliberations of the Commission on 10.06.15 when submissions of the parties were considered and a decision to call for financial details was taken, which in effect meant a decision to impose penalty.", "Therefore, their stand is that the Chairman was part of deliberations and the decision making of the case but chose not to sign the final order.", "The contention was that, the entire order was vitiated on account of Quorum Non Judice and on account of the violation of the important principle of one who hears must decide without any influence.", "Reliance was placed on our decision in the case of Lafarge v. CCI (Case Number 103 of 2012), which, inter alia, referred to the Supreme Court judgement in the case of A.K. Kraipak v. Union of India  : (1969) 2 SCC 262, to claim that this violation was a fatal irregularity.", "Further, it was stated that in a case of similar irregularity, the Kings Bench Division in the case of R V Sussex 1924 1 KB 256, had also set-aside the order under challenge with the following observation: The answer to that question depends not upon what actually was done but upon what might appear to be done.", "Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.", "1 7 .1 In the course of the oral arguments, it was repeatedly asserted that the Chairman of the Commission had earlier functioned as Finance Secretary in the Government of India and held the additional charge of DFS for some time and was well aware of the relationship of DFS with the Appellants.", "The suggestion was that, the participation of such a person in deliberations and his not signing the final Order fatally vitiated the Order.", "17.2 We see no merit in the arguments of the Appellants.", "Vitiation of an Order on account of influence, based on the principle that one who hears must decide without any influence, requires possibility of influence by an interested person to the prejudice of the party challenging the Order.", "The Appellants in the present case have failed to establish any personal interest of the Chairman in the proceedings or how his presence in some deliberations and not being party to the impugned Order, caused any prejudice to their case.", "Reference to the judgment of the Supreme Court in the case of A.K. Kraipak(ibid), referred by us in the Lafarge case (ibid) is misplaced as in that case a person who was himself a candidate for selection from the State Service to an All India Service, was a member of the Selection Committee.", "The Supreme Court was of the view that, though such an interested person may not have participated in the deliberation when his own case was being considered, his bias could have operated in a subtle manner in selection of other persons, including his competitors.", "Similarly, in the Kings Bench decision (ibid), the court was considering challenge to an order convicting a person involved in a collision, of driving in a manner dangerous to public.", "The presence of Justices clerk, who was interested in the proceedings, being member of the firm of solicitors representing a client in a civil suit for damages in respect of the same collision, while the justices were considering their decision, led to quashing of the conviction.", "In the present case, there is no material to indicate personal interest of the Chairman or how his presence in some of the meetings vitiated arriving at a just decision by the Members, or the kind of influence he allegedly exercised.", "The impugned Order is by the Members of the Commission, who heard the Appellants and the Chairman was rightly not party to the Order, as admittedly he was not present during all the proceedings when the Appellants were heard.", "The Appellants have contested the observations of the Commission in paragraph 60 of the impugned Order that, the entire modus operandi resorted to by UIICL in concert with the other Appellants to exit from the tender year after year forcing re- tendering and consequent quotation of higher quotation of premium in collusion, was a virtual fraud perpetrated upon the State of Kerala with regard to a social welfare scheme directed at BPL families.", "The counsel for the Respondent defended these observations as being warranted and appropriate.", "He pointed out that, the word fraud was qualified by the word virtual, thereby nuancing the finding to that extent and that the conduct had to be viewed more seriously when the Appellants were public sector enterprises.", "18.1 We have examined this finding of virtual fraud emanating from UIICL exiting twice from contracts and seeking increased premium in re-tender bids, in the context of admitted facts.", "The Appellants had submitted before us that, UIICL did not exit from the contract relating to the year 2012-2013 in which it made profits but the GOK decided to re-tender and this submission was not controverted by the counsel for the Respondent.", "Every contract that UIICL exited, was causing losses as the claim amount exceeded the premium receipt, a fact not disputed by the Respondent.", "The internal correspondence of GOK in regard to re-tendering and request of UIICL for premium adjustment show that the GOK found the losses to be genuine.", "It is also a fact that, when UIICL decided to terminate the contract after having provided the service for 1 year in regard to the contracts for the years 2010-11, 2011-12, by exercising the option of termination, which was available to it in terms of the contract itself, GOK did not question the bona-fide of UIICL.", "UIICL was allowed to bid again without being blacklisted and contracts were awarded to it at a higher premium with due consideration at the highest level in the State, which proves that the raising of premium rates was considered justified by GOK, in view of the claims being higher than the premium.", "In these circumstances we hold that, the finding of virtual fraud was unjustified and set aside the same.", "That brings us to the last question of validity of penalty imposed.", "The Appellants questioned imposition of penalty on the ground that, the agreement was necessary to serve the needs of the society better and it was not a case of contumacious disregard of law and no malafide could be attributed to the Appellants.", "Our attention was drawn to various internal communications of GOK wherein the concerns of UIICL regarding increased losses in view of non-availability of premium adjustment clause were acknowledged as genuine by the State government while approving the re-tendering.", "It was submitted that there was no impact on competition in the State and consumers benefited and only because there was a power to impose penalty, it did not mean that a penalty must be imposed.", "Reliance was placed on judgement of the Supreme Court in the case of Hindustan Steel Limited v. State of Orissa,  : (1970) AIR 253 and our observations in the case of A.R. Polymers Private Limited v. Competition Commission of India and Anr.(Appeal Number 34/2013).", "Another argument was that, the Commission failed to give a show-cause notice regarding the penalty to be imposed, which should have been given after the Appellants had seen the impugned Order on the merits of the case.", "Further, it was pointed out by the counsel for OICL that the Commission did not even take into account the mitigating factor in the case of OICL which did not share business with UIICL after 2010-11 on the ground of losses being too heavy.", "19.1 The quantum of penalty imposed was challenged on the ground of it being totally disproportionate to the turnover under the RSBY Scheme in Kerala.", "It was contended that, the Commission had ignored the principle of relevant turnover upheld in a series of judgment viz.-(a) Excel Crop Care Limited v Competition Commission of India and Ors, (Appeal Number 79/2012, Order dated 29.10.2013) (b) ECP Industries Limited v. Competition Commission of India Anr.", ", (Appeal Number 47/2015, Order dated 1 March 2016) at paras 22-23 (c)Dr.", "L.H. Hiranandani Hospital v. Competition Commission of India Anr, (Appeal Number 19/2014, Order dated 18 December 2015) at para 38 and (d) Escorts Limited v. Competition Commission of India Anr, (Appeal Number 13/2014, Order dated 18 December 2015) at para.", "27(ii).", "19.2 The counsel for the Respondent justified the penalty as being appropriate and not warranting any judicial interference by us.", "His argument was that, there was serious cartelization and bid rigging indulged in by the Appellants, which from the factual perspective had gone virtually unchallenged before the Commission and also the Tribunal.", "He stated that, the Commission had appropriately analyzed the mitigating and aggravating circumstances.", "It was further argued that, the penalty may seem large but the total turnover of the Appellant could not be ignored if the penalty was to serve the purpose of effectively deterring the wrong-doer in question as well as other potential offenders which might be tempted to act in similar fashion.", "His stance was that, penalty must bear a reasonable relationship to the turnover (and therefore financial power) of such wrongdoer.", "19.3 We, as discussed in this Order, have no hesitation in confirming that bid rigging constituting contravention of Section 3 of the Act did take place, and on the facts of the case and the legal position, we agree that the Appellants should suffer the penal consequences.", "Law was breached and the legal conclusive presumption is that there was an appreciable adverse effect on competition.", "We have perused the record of the Commission and its Order dated 14.5.2015 records that, the Appellants were heard with regard to the merits of the case and also on penalty.", "Therefore, the Appellants were afforded an opportunity to present their case with regard to penalty.", "19.4 The only issue requiring our consideration is the quantum of penalty imposed and the basis on which it was calculated.", "The Commission has calculated the penalty at the rate of 2 against the maximum of 10 on the average turnover of the Appellants for the years 2010-2011, 2011-2012 and 2012-2013.", "19.5 We have in a number of cases interpreted the term turnover for the purposes of Section 27(b) of the Act to mean value of goods and services which are made subject matter of investigation under Section 26 of the Act and hence liable for punishment under Section 27 of the Act.", "Some of such cases have been cited by the Appellants as mentioned in paragraph 19.1 above and we see no reason to take a different view in this case.", "Penalty has to be calculated with reference to the gross premium received by UIICL as insurance provider under RSBY CHIS scheme and penalty for each of the Appellants will be a proportion of their share in such premium.", "19.6 In determining the rate of penalty at 2, the Commission has considered the peculiarities of the insurance sector and the importance of insurer solvency for the consumer, as a mitigating circumstance.", "Bid rigging in public procurement for a social welfare scheme was treated to be an aggravating circumstance.", "While we agree with the conclusion of the Commission in regard to the mitigating circumstance, we are of the view that the aggravating circumstance identified by the Commission does not apply to the facts of this case.", "It cannot be denied, and the Commission had taken cognizance of the internal note of OICL(reproduced in paragraph 6.6 of this Order) indicating that the Appellants were aware of the likelihood of incurring losses and OICL actually refused to share business, but despite that, UIICL proceeded to bid for the tender.", "From such conduct, it is evident that the Appellants who were Public Sector Companies, in their zeal to participate in a Government sponsored Health Insurance Scheme benefiting the poor, ignored prudence and the restraints of the competition law.", "Such conduct cannot constitute an aggravating circumstance.", "We also recognize that the burden of penalty will ultimately be transferred to public, as the Appellants are owned by the Government.", "We, therefore consider it 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+{"id": "COM_National_Stock_Exchange_of_India_Ltd_vs_CompetitioTA120037COM501601", "text": ["Mr. Justice V.S. Sirpurkar, Chairman This is an application for impleadment filed by the Financial Technologies (India) Ltd. (FTIL for short hereinafter).", "This appeal is filed by the National Stock Exchange of India Limited (appellant-NSE for short hereinafter) challenging the order dated 23rd June, 2011 wherein the Competition Commission of India (CCI for short hereinafter) has held that the appellant-NSE has engaged in the exclusionary conduct in the aftermarket for exchange related software in the Currency Derivative Segments (CD Segment for short).", "It is also found that the appellant-NSE has denied the Application Programming Interface Code (APIC for short hereinafter) for the CD segment to the Open Dealer Integrated Network (ODIN) software of the FTIL.", "It is also found that the appellant-NSE has put ODIN software on a watch-list.", "Lastly, it has been found that appellant-NSE has adopted a zero pricing policy for the competing NEAT on the Web (NOW for short) software owned by Omnesys Technologies Limited in which the appellant-NSE had acquired 28 shareholding through its wholly owned subsidiary Dot EX.", "The above mentioned three findings have ultimately resulted in holding appellant guilty of exclusionary conduct on the part of the appellant-NSE.", "In the appeal, the appellant-NSE has challenged all these findings of the respondent-CCI on the ground that it had acted bona fide and was justified in denying APIC and putting ODIN software on the watch list as there were bugs and defects in the ODIN software.", "It is the further stand of the appellant-NSE that the zero pricing policy and NOW software is for the benefit of the consumer.", "In its application for impleadment, the FTIL has contended that there are some allegations contentions raised by the appellant-NSE in the appeal memo and the said allegations are directly against the applicant-FTIL and as such it is entitled to be impleaded at least to refute the said allegations contentions and also to show that the same are incorrect and false.", "The short factual background will not be out of place to mention.", "As per the contentions raised in the application the applicant is a public limited company and is listed on the Bombay Stock Exchange (BSE) and the National Stock Exchange (NSE) i.e. the appellant herein, the Ahmedabad Stock Exchange (ASE) and the Madras Stock Exchange Limited (MSE).", "The applicant claims to have its presence in Luxembourg Stock Exchange and Singapore Stock Exchange.", "As is apparent from the application, the applicant is engaged in the business of developing and supplying software to various stock exchange and commodity exchanges.", "It also provides software solutions for brokers and other market intermediaries for use in their front office, middle office and back office for the purpose of dealing on the respective exchanges.", "According to the applicant, such software is of vital importance to the members of the stock exchanges because the trading on the stock exchanges is now almost completely electronic through the use of trading terminals spread across the country.", "These trading terminals of brokers are connected to the stock exchange through the software provided by the applicant.", "Further claim of the applicant is that it is one of the earliest empanelled vendors with the appellant for front office solutions and it was also the first empanelled vendor for the BSE and Multi Commodity Exchange of India Limited (MCX).", "Therefore, it is a software vendor to the BSE, MCX, National Commodity and Derivatives Exchange (NCDEX).", "The applicant has stated the traced history of its relationship with the appellant-NSE.", "The applicant further stated that the appellant-NSE addressed a letter dated 18.6.1997 whereby the applicant was empanelled as a front office software vendor.", "The applicant has also stated about its flagship product ODIN which is described as complete front office solution for the members of the exchanges with built-in order routing, risk management and display engine with real time connectivity to the back office system.", "It is pointed out that ODIN which is popularly known as FT software and ODIN has enabled the brokers to extend their trading network to the persons who were not able to reach the market earlier and further enables the rural masses to access the markets.", "It is stated that the applicant had issued six lakh licenses of ODIN to various computer terminals across India through which they receive regulatory updates.", "It is then pointed out that NSE formed 100 subsidiary by the name NSE.", "IT Limited for the purpose of developing and offering from office software solutions.", "It is also asserted that the products of NSE.", "IT fared very poorly in the market even though they were priced much lower than the ODIN software.", "The applicant then goes on to describe role of API in which the applicant has described and explained operating system (OS) and application software.", "The applicant then explains a function and utility of APIC and goes on to state that all trades of appellant NSE occur on the electronic platforms established for different trading segments.", "They are closed server systems which can be accessed either through exchange provided terminals or through approved front office software used by brokers.", "It is then pointed out that the appellant-NSE follows empanelment procedure for approving software vendors and once vendors are approved, the APICs respective trading segments are shared only with the vendors empanelled for that segment.", "It is, therefore, pointed out that such empanelment vendors who have access to the APIC of the relevant segment alone can develop front office solutions that could run on the appellant-NSEs server and thus APIC is the essential and crucial indispensable communication link between the empanelled vendors front office software and the appellants server system.", "The applicant then goes on to explain formulation of MCX a company promoted by the applicant and a new company promoted by the applicant and MCX together being MCX Stock Exchange Limited (MCX-SX).", "It is then pointed out that on August 29, 2008, NSE launched CD segment and became the first trading platform in India for exchange traded currency feature and that the SEBI granted recognition to respondent Number 2-MCX-SX as the stock exchange for CD segment on 18.09.2008.", "It is then pointed out that the appellant-NSE through Dot EX International Limited which is a wholly owned subsidiary of the appellant acquired ownership stake of 28 in Omnesys and started distributing front-end software solution NOW (NEAT on Web) free of cost to its members to eliminate ODIN from the market.", "It is pointed out that NOW is the front office software developed by Omnesys.", "The applicant points out that NSE struck a deal with Omnesys whereby it offered NOW free of cost to its trading members and simultaneously invested 28 stake in Omnesys through Dot Ex which was and is wholly owned subsidiary.", "It is then complained that after stake acquisition in Omnesys, the appellant-NSE took various anti-competitive measures promoting Omnesys business with intent to injure the applicants business.", "In short, the following anti-competitive actions are complained in the application.", "They being :- Refusal to grant access to the APIC of the appellants CD segment and refusal to empanel the applicant as a software vendor in the CD segment, though the same was sought through the correspondence by the applicant.", "Refusal to approve improved version of the applicants product.", "It is stated that in spite of repeated requests from the applicant and its client, the applicant has deliberately not responded to the applications seeking approvals of the above mentioned facilities.", "According to the applicant, again on the part of the appellant-NSE was essentially a message signal to its members not to use the applicants products as their front office solution.", "It is then contended that the officials of the appellant have informed their trading members off the record that they should consider using software of alternative vendors.", "Then the applicant refers to a Civil Suit Number 1 of 2009 filed on 15.12.2008 against the appellant before the High Court of Bombay wherein an interim order was passed on February 13, 2009.", "That the appellant has put the applicants product on a watch-list.", "It is reiterated that the applicant has been an empanelled vendor of the appellants segments for more than a decade and the appellant had no issues with the applicants performance only till such time as the applicants interest to enter the stock exchange business.", "A reference is then made to the letter sent by the appellant to the applicant alleging that the appellant had received two complaints consequent to which the applicant was put under watch list and hence the appellant was unable to consider the applicants application for the APIC of its CD segment.", "There is a reference to the correspondence whereby various queries were made by the applicant.", "It is then complained that appellant-NSE offering NOW for free of cost to Omnesys.", "NOW being the front end solution of Omnesys and a competing substitute product of ODIN.", "This was clearly an exclusionary technique on the part of the NSE.", "The applicant thereafter refers to the suit filed on 15.12.2008 and a reference has also made to the order passed by Single Judge of the Honble High Court of Bombay appointing Court Commissioners to submit their report on the applicants product.", "A reference is then made to the order of the Division Bench.", "Further a reference is made to the impugned order in appeal where the appellant NSE was found guilty to exclusionary behavior and also the order passed under Section 27 of the Competition Act, 2002 (in short the Act).", "Then a reference is made to the negotiations and resultant consent decree entered into between the appellant and the applicant on 3.8.2011 that is clearly after the order passed by the CCI against the appellant-NSE.", "The following are quoted as the Consent terms :- The Appellant will audit the Applicants software ODIN through Price Waterhouse Coopers (PWC) an independent Auditor to identify any bugs, defects or similar issues The applicant has agreed that, in the event any bugs, defects or similar issues are found, the Appellant shall give the Applicant reasonable opportunity to rectify such bugs, errors or similar issues.", "The Appellant has agreed to remove the Applicant from the watch list with immediate effect on the filing of the consent terms In relation to certain identified products and services, the Appellant has agreed to provide the APIC for the CD Segment with immediate effect, however, final empanelment shall be subject to successful completion of the audit In relation to certain other identified products and services, the APIC shall be provided by the Appellant only after successful completion of the audit The Applicant shall at all times abide by the terms of the undertaking provided earlier to the Appellant and co-operate in the inspection and testing of its software and that the Appellant shall not seek any source code or any IPR related documents or information from the Applicant.", "It is pointed out that immediately after the Consent Decree the appellant has removed the applicant from its watch list and the APIC was also provided.", "Thus, practically all the grievances of FTIL were removed.", "It must be shown here that this Consent Decree is dated 3.8.2011 which is after the order passed by the CCI, which was passed on 23.6.2011.", "It is then contended that though all the disputes between the parties were put at rest with the Consent Decree yet in order to assail the order passed by the CCI, the appellant has raised the stand that its position is vindicated because of the Consent Decree.", "In that the applicant submits that the settlement does not vindicate the position of the appellant but shows that the parties have put an end to the litigation without prejudice to their stand.", "The applicant, therefore, apprehends that the appellant may raise the issue in the appeal before us and complain about the applicants product and thereby substantiate the necessity of the applicant being put on the watch list.", "According to the applicant, it may also justify the refusal to provide APIC to the applicant on the ground that everything with ODIN was not alright and that it was done out of fair justification and thus the applicant would remain unheard if not joined as a party could not answer the contentions raised by the appellant.", "This application was replied to by the appellant wherein the applicant refers to the prayer clauses of the impleadment application, which was as follows :- (a) to allow the applicant to be impleaded as party Respondent Number 3 and to be heard (b) alternatively direct the appellant to remove any references arguments regarding the already compromised matter between the applicant and the appellant and or (c) pass any such further order(s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.", "In paragraph 3 the appellant has specifically given an undertaking not to place reliance on the Consent Decree passed by the High Court of Bombay in Suit Number 1 of 2009 to demonstrate that it was justified in denying the APIC for the CD Segment to FTIL and to put FTIL on a watch list in other segments.", "In view of this undertaking, according to the applicant, nothing survives in the impleadment application.", "In its preliminary submissions, it is suggested that even if the FTIL is aggrieved by any reliance placed by the appellant on the Consent Decree to justify its actions, there would be no grievance in view of the undertaking given and that there was no cause of action in favour of FTIL.", "It was then reiterated that the dispute between the FTIL and the appellant was fully settled and that it was neither a necessary nor a proper party.", "Appellant in paragraph 9 clarifies that the reference to the Consent Decree is limited to showing that it did not have any mala fide or anticompetitive intent in denying the APIC to FTIL or putting it under a watch list.", "It is specified that the appellant does not intend to challenge the Consent Decree through the present proceedings nor does it seek to imply that there has been any admission of liability by FTIL pursuant thereto.", "It is further pointed out that FTIL itself had not filed any information or a complaint before the CCI and in fact the issues raised therein were subjudice before the High Court of Bombay and such pendency was not reported to the CCI.", "It is further pointed out that FTIL did not seek to be impleaded to the original proceedings before CCI and was therefore not entitled to join before the Appellate Tribunal such as a party.", "It was, therefore prayed that the application for impleadment should be dismissed.", "Not content with the undertaking offered by the appellant, the FTIL filed a rejoinder to the reply but even before that an amendment application was moved wherein the prayer (b) to the application for amendment was sought to be amended.", "The amended clause as suggested in the amendment application was to the following effect :- 33(b) alternatively direct the Appellant to remove any and all references arguments regarding the already compromised matter between the Applicant and the Appellant before the High Court of Bombay in Suit Number 1 of 2009 and all other facts in issue and questions of law raised in the Appeal pertaining to the Applicant.", "underlined portion signifies the amendment 1 0 .", "It was suggested that in spite of such undertaking the facts in issue and questions of law raised in appeal pertaining to the applicant would still remain on record and would be open to the appellant to address its arguments pertaining thereto.", "The further contents of the rejoinder show that the applicant was not able to raise the facts in issue and questions of law in appeal pertaining to the applicant.", "It is further contended in the rejoinder in paragraph 11 in the following manner :- The Applicant further submits that it did not implead itself in the proceedings before Respondent Number 1, as the applicant has filed Suit Number 1 of 2009 dated December 15, 2008 before the Honble High Court of Bombay against the Appellant on the same issues and the same would have led to duplicity of proceedings.", "As submitted by the Applicant above, even if the Appellant gives an undertaking before this Honble Tribunal to the effect that the Appellant does not wish to rely on the Consent Decree, the Fact in Issue and Question of Law raised in the Appeal pertaining to the Applicant still survive and therefore the Honble Tribunal may be pleased to allow the Application for Impleadment in the interests of justice and to protect the rights and interests of the Applicant herein.", "It was further reiterated in paragraph 13 that though the appellant had agreed not to rely on paragraphs 3.5(a), 8.18, 55 and 145 of the Appeal in the undertaking to be provided by the appellant and also on the statement that the Consent Decree has vindicated its position.", "The Appellant further submits that such undertaking shall not preclude it from raising Fact in Issue and questions of Law and in that view it was necessary to allow the impleadment.", "Law of natural justice was also relied upon and it was suggested that the undertaking would be of no consequences as the appellant would get a chance to call the names to applicants system and the product of the applicant and the applicant would be left without any opportunity to rebut the same.", "In paragraph 16 of the rejoinder, it is again reiterated that applicant had filed no information or complaint as the applicant had filed Suit Number 1 of 2009 on December 15, 2008 before the High Court of Bombay.", "It is also suggested in the same paragraph that the applicant chose not to implead itself to the proceedings before Respondent Number 1 as the matter under dispute was already sub judice before the High Court of Bombay.", "Since we have already made a reference to the main features of the amendment of the impleadment application, we refrain from repeating its contents in their amendment application.", "The appellant had filed a huge reply to the said amendment application opposing the same.", "It was reiterated in the amendment application that FTIL was an attempting to curtail the appellants statutory right to appeal against the findings of respondent.", "Lengthy arguments were addressed by Shri Krishnan Venugopal on behalf of the appellant and Shri Amit Sibal opposing the same.", "Huge written submissions were also filed after the arguments.", "We have now to see as to whether impleadment application should be allowed or not.", "The substance of the argument of Shri Venugopal was mainly on the denial of natural justice to him in case the applicant is not joined as a party.", "The learned counsel suggests that though the undertaking has been given by the appellant not to rely upon the particular contentions raised in the appeal and also the facts regarding the compromise decree still there were some facts in issue and the law points in the appeal which needed intervention on the part of the applicant at least to meet and to contradict the argument on the part of the appellant which was bound to raise the issues regarding the demerits of the applicant and its system ODIN.", "It is reiterated by him that if the grounds of appeal raised by the appellant-NSE are accepted that would have a serious adverse impact on the reputation and business of the applicant-FTIL.", "As against this, Shri Sibal argues that such apprehension is absolutely out of place as the appellant has given an undertaking.", "Not to reiterate the contentions raised in paragraph 3.5(a), 8.18, 55 and 145 which deal with the demerits of the appellant system.", "We have earlier indicated a clear undertaking given in their reply by the appellant whereby the appellant had specifically reiterated not to rely on the contentions relating to the merits and demerits of the system.", "Shri Sibal argues that all that he would venture to argue before this Tribunal is that the action on the part of the appellant firstly in not providing APIC and secondly putting ODIN system on watch list was not a mala fide action and the same was not done with any anti- competitive intent.", "We have gone through the applications, its reply and the rejoinders filed before us by the parties.", "We are of the clear opinion that in view of this undertaking, there would be no question of allowing the applicant as a party.", "After all if no contentions are raised as to the demerits of the system of the applicant, there would be nothing for the applicant to rebut.", "In fact, at this juncture, we must point out that presently there are no issues to that effect in between the appellant and the applicant particularly in view of the consent decree in between the appellant and the applicant.", "The terms of the consent decree specifically provide that all the disputes have been put to rest.", "If that is so, there would be no question of the applicant suffering in any manner.", "After all grievance of the applicant remains no more and the applicant have now been armed with APIC which has been provided by the appellant.", "So also the appellant has in pursuance of the consent decree removed the applicant from the watch list.", "Once this position is obtained, there would be no question for this Tribunal to consider merits and demerits of the system of the applicant and eventually therefore there would be no question of allowing applicant to join as a party to this appeal.", "A reference was made to the reported decision in  : (1975) 1 SCC 70 M section Erusian Equipment Chemicals Vs.", "State of West Bengal.", "We have absolutely no quarrel with the principles in that ruling.", "However, that ruling is entirely on the different set of facts and hence not applicable.", "Shri Venugopal then contended before us that the conduct of the Appellant-NSE in the aftermarket for the exchange related software in the CD segment had certainly violated Section 4(2)(b)(i) (ii) and Section 4(2)(c) and 4(2)(d) of the Act.", "The learned counsel then urged that unless the applicant was the party it could not justify this finding against the appellant by the CCI.", "The learned counsel says that if such finding is negated then it would have adverse impact on the applicant in so far as Section 53N of the Act is concerned.", "In our opinion, the contention is completely unwarranted as Section 53N stands completely on different footing.", "The language clearly shows that independent of any provisions in the Act, any person could make an application to the Tribunal to adjudicate on claim for compensation which may arise from the findings of the Commission or the orders of the Appellate Tribunal in an appeal against any finding of the Commission.", "No such application has been made before us.", "Therefore, the argument is pre-mature.", "At any rate, it will be a vexed question as to whether such application would lie at the behest of the applicant who has compromised its disputes in respect of the very same actions on the part of the appellant for which the appellant stands indicted by the CCI.", "We do not wish to go into the question, at this juncture, in the absence of any application.", "The learned counsel very heavily relied on Section 36(1) of the Act where the Commission is to be guided by the principles of natural justice.", "The learned counsel, therefore, says that in appeals also this Tribunal should follow the same principles.", "We have absolutely no dispute with the proposition that this Appellate Tribunal would be guided by the principles of natural justice.", "However, in the wake of the facts of this case we are completely at a loss to follow as to how the lofty principles of natural justice would apply to the present situation where on the identical issues there is a complete understanding between the applicant and the appellant and whereby all the disputed questions have been put to rest, not only this, but as a result of which the grievances of applicant are also put to rest.", "Under such circumstances, there would be no question of relying on the provisions of Section 53N as is sought to be done nor would there be any question of denial of principles of natural justice by not allowing the applicant to join as a party to this appeal.", "We have absolutely no quarrel with the proposition led by the Honble Supreme Court in paragraph 103 of  : (2010) 10 SCC 744 in the matter of CCI vs Steel Authority of India Limited that the concept of necessary party must be interpreted liberally at the relevant stage.", "However, in the present circumstances and in view of the peculiar facts, we cannot pursue ourselves to allow applicant to join as a party to this appeal.", "If we allow that, the applicant would be allowed to reap the benefit of the consent decree and also tend it to exploit the provision of Section 53N of the Act when admittedly the dispute is on the identical issue both in the civil suit as well as before the CCI.", "We must take note of the fact the even before the CCI, the applicant did not venture to join itself as a party or to address the CCI.", "A very convenient explanation was sought to be given that it did not know of the Director Generals report.", "We have noted that the enquiry was made from the applicant-FTIL by the Director General and we refuse to believe that when MCX-SX was being actively engaged in its battle versus NSE, its friendly party the FTIL would not be in a position to know about the same.", "At any rate we must note that FTIL-applicant cannot now seek to join for the fear of the findings recorded by the CCI being negatived.", "We must visualize here that even in the wake of such situation that the findings of the CCI against the appellant are negatived there is no question of FTIL suffering in any manner, for the simple reason that there is a consent decree in between FTIL and the appellant wherein all the disputes have been completely taken care of.", "Further in pursuance of that FTIL has also been benefited in the sense that it has now acquired APIC and would stand to lose nothing even if the findings are negatived.", "The contentions raised by the learned counsel that it would suffer in its reputation etc.", "have no place because of the undertaking given by the appellant that it is not going to press the issues about demerits of the system of the applicant.", "Under the circumstances, we do not see any justification for the applicants joining as a party.", "It was argued on the basis of the reported decision in  : (1975) 1 SCC 70 - M section Erusian Equipment and Chemicals vs State of West Bengal that by black listing the applicant herein, the applicant had suffered a great prejudice and the injustice and would be perpetuated by not hearing the applicant at the appellate stage.", "In the first place, the ruling does not apply on facts at all where the Honble Supreme Court was explaining the principles and effects of black listing a contractor.", "Such is not the position here.", "There is no black listing at all.", "The applicant was merely put on the watch list and that grievance has also now been put to rest.", "The other three rulings cited namely  : (2009) 2 SCC 703 - Asit Kumar Kar vs State of West Bengal  : (2010) 10 SCC 408 - State of Assam vs Union of India and  : AIR 1963 SC 786 - Udit Narain Singh Malpaharia vs Additional Member, Board of Revenue, Bihar are totally irrelevant for the purposes of present controversy.", "In our opinion, in the first place the applicant has not been able to establish that it can be an affected party at all.", "Nothing is stated before us as to in what manner it could suffer and indeed the applicant cannot suffer in view of the compromise decree.", "It is then argued that if the appellant-NSE chooses to pursue its appeal then the applicant-FTIL stands to be adversely affected and as such would be a necessary party.", "We do not agree.", "The decisions cited are not apposite to this contention and are entirely different on facts.", "It was tried to be suggested that from the scheme of the Act, it was clear that the applicant must be impleaded as a necessary party irrespective of whether it was a party before Respondent Number 1 - CCI in the proceedings.", "We do not agree.", "On the back drop of peculiar facts of this case we are of the clear opinion that the applicant suffers from serious lack of bona fides in firstly compromising all the issues with the appellant and thereafter seeking to challenge that very compromise with a view to reap benefits via Section 53N. The claim on the part of the applicant that it did not have the opportunity to see the report of the DG and therefore it did not have occasion to seek the impleadment of R-1-CCI is only mentioned to be rejected in fact we have already dealt with this contention in the earlier part of the order.", "Further, argument that had the findings of the CCI been adverse to the applicant it could have filed an appeal has nothing to do with the present controversy about the impleadment of the FTIL in the present appeal.", "It was again and again repeated that the FTIL would be an affected party, we do not agree with this contention in view of what has already been stated about the compromise between the appellant and the applicant.", "It was complained that the facts regarding the compromise were brought before this Tribunal for the first time.", "We fail to understand the implication of this argument particularly in view of the fact that the date of compromise is later to the date of the impugned order passed by the CCI.", "The argument is, therefore, rejected.", "The principles of Order-1 Rule 10 relied upon by the applicant to press its application clearly speak against the applicant for the simple reason that the applicant suffers from severe lack of bona fides.", "Much was argued on the doctrine of election and it was contended that the doctrine of election did not apply to the proceedings under the Act.", "We are not rejecting the application relying on doctrine of election.", "In our opinion, the application is not bona fide at all for the reasons stated by us in the earlier part of the order.", "It was tried to be suggested that the cause of action in the Civil Suit before the Bombay High Court was based on the contractual breach and was a separate cause of action from the proceedings before the respondent Number 1 CCI.", "In our view, this contention has no basis in view of the admissions by the applicant in its reply to the effect that the controversy was identical in both before the High Court as also the CCI.", "In view of what has been stated before us, we do not find any merits whatsoever in the contentions raised before us in support of the application for impleadment.", "We, therefore, dismiss the same.", "Under the circumstances there will be no orders as to costs.", "Pronounced in the open Court today i.e. 5th day of October, 2012."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "None", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentPetitioner", 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+{"id": "COM_Shib_Sankar_Nag_Sarkar_and_Ors_vs_Competition_CommTA2016190516162649138COM987107", "text": ["This is an appeal by Shib Sankar Nag Sarkar and Angshuman De for setting aside the penalty imposed on them by the Competition Commission of India (for short, the Commission) under Section 27 of the Competition Act, 2002 (for short, the Act) in Suo-Moto Case Number 2 of 2012 and Reference Case Number 1 of 2013.", "One Shri Arun Kumar Singh claiming himself to be a member and an office-bearer of the All India Drug Action Network sent an e-mail dated 28.08.2012 to the Commission alleging that the Bengal Chemist and Druggists Association (BCDA) is engaged in anti-competitive practices inasmuch as it has been directly or indirectly determining the sale price of the drugs and controlling the supply of drugs in a concerted manner in violation of Sections 3(3)(a) and 3(3)(b) of the Act.", "The Commission suo-moto took cognizance of the allegations and passed an order dated 11.10.2012 under Section 26(1) of the Act whereby the Director General (DG) was directed to cause an investigation to be made into the matter.", "The Additional Director General (for short Addl.", "DG), to whom the case appears to have been entrusted, issued notices under Section 41(2) read with Section 36(2) of the Act to BCDA, Director, Directorate of Drugs Control, West Bengal and 12 retailers of drugs who were opposing the directives given by BCDA on the issue of discounts to elicit their response qua the allegations of anticompetitive activities of BCDA.", "The Addl.", "DG also recorded the statements of eight persons including Honorary General Secretary of BCDA and submitted report dated 29.05.2013.", "In paragraphs 16 and 17 of the report, the Addl.", "DG extensively referred to the stand taken by BCDA, the minutes of various meetings of the Executive Committee held between 2011 and 2013.", "The Addl.", "DG then referred to the statements of Shri Tushar Chakraborti and the representatives of various suppliers retailers and recorded the following conclusions: 23.4 Be as it may, the activities of trade association, inter alia, to direct its members to sell drugs only at their MRP is a palpable anti competitive conduct which cannot be justified on the ground that most of the members of the BCDA, would be ruined if competitive forces are allowed to operate in the market.", "Further, the attempt to justify sale of drugs only on MRP on the basis that the margins have been fixed under the DPCO and accepted in the market is untenable as the issue is not the reasonability or the quantum of trade margins but the concerted action to fix uniform trade margin by an agreement amongst the members of the trade association.", "The activities of the BCDA are in conflict with the objects of the competition law as they cause restraint of trade, stifle competition and harm the consumers.", "23.5 In view of the above, it is stated that the BCDA and its District and Zonal Committees were engaged in anti competitive practices of directly or indirectly determining the sale prices of drugs and controlling or limiting the supply of drugs through concerted and restrictive practices, in violation of the provisions of clause (a) and (b) of sub-section (3) read with sub-section (1) of section 3 of the Act.", "The report of the Addl.", "DG was considered by the Commission in its ordinary meeting held on 18.06.2013 and it was decided to direct an investigation into the role of the individual office-bearers of the Managing Committee Executive Committee of BCDA in decision-making in terms of Section 48(2) of the Act.", "The decision taken by the Commission reads as under: COMPETITION COMMISSION OF INDIA 18th June, 2013 In Re : Bengal Chemist Druggist Association Suo-Moto Case Number 02/2012 ORDER The matter was taken up by the Commission.", "It is observed that DG has not investigated the role of individual office bearers of the Managing Committee Executive Body of the Association in decision making in terms of Section 48(2) of the Competition Act.", "DG is directed to issue notices to the office bearer of the Managing Committee Executive Committee of Bengal Chemists and Druggists Association and give them a hearing to ascertain the role of the office bearers in the decision making in respect of practices circulars directions etc.", "which were found anti-competitive.", "DG shall submit his report within 30 days.", "The notice to the informant be sent for hearing on his appeal against dismissal of confidentiality application by DG.", "The matter be listed for hearing on 4th July, 2013 on confidentiality issue.", "In compliance of the direction given by the Commission, the Joint Director General (Jt. DG), to whom the matter appears to have been transferred, issued notices to the appellants, the office-bearers and other members of the Managing Committee and the Executive Committee of BCDA under Section 41(2) read with Section 36(2) of the Act requiring them to produce evidence to prove that the contravention of the provisions of the Act had been committed by BCDA without their knowledge or that they had exercised due diligence to prevent the commission of such contravention.", "For the sake of reference, notice dated 03.07.2013 issued to Appellant Number 1 is reproduced below: Office of the Director General Competition Commission of India B Wing, HUDCO Vishala, 14 Bhikaji Cama Place, New Delhi - 110 066.", "No. DG CCI IW/1/12/2012 Dated : 03.07.2013 By Speed Post To, Shri Shibshankar Nag Sarkar/2537 C. Member C o Nag Pharmacy 53/2, T.D. Banerjee Road, Saktinagar, Nadia - 741102.", ": Notice under Section 41(2) read with Section 36(2) of the Competition Act, 2002.", "Ref.: Order dated 18.06.2013 of the Competition Commission of India (Copy enclosed).", "Whereas this office was assigned investigation of Suo-moto Case Number 02 of 2012 and Case Number 01 of 2012 (Filed by the Directorate of Drugs Control, West Bengal) having identical issues, both against the Bengal Chemists and Druggists Association (BCDA), and Whereas, after investigation, this office has come to the conclusion that Bengal Chemists and Druggists Association, Kolkata, was guilty of violation of the provisions of Clauses (a) and (b) of sub-section (3), read with sub- section (1), of Section 3 of the Competition Act, 2002, by indulging in concerted decision of restraining sale of drugs and medicines below MRP and by enforcing compliance of the above anti competitive decisions, and Whereas the Commission, on examination of the Investigation Report, vide its order dated 18.06.2013, has directed the Director General to investigate the role of individual office bearers of the Managing Committee Executive Committee of the Bengal Chemists Druggists Association in decision making in terms of Section 48(2) of the Competition Act, and Whereas being a member of the Executive Committee of BCDA, you were ostensibly a party to the decisions of BCDA resulting into anti competitive conduct.", "Now, therefore, in compliance with the provisions of the proviso to Section 48(1), you are hereby given an opportunity to give evidence to prove that the contravention by BCDA was committed without your knowledge or that you had exercised all due diligence to prevent the commission of such contravention.", "Your reply to this notice on affidavit and the documents evidences witnesses you intend to examine, if any, should reach this office by 19.07.2013.", "In case you wish to be heard in person in the matter, you may intimate this office by 15.07.2013 alongwith your contract telephone fax mobile number.", "(Manoj Saksena) Joint Director General Emphasis supplied 6 .", "On receipt of the aforesaid notices, the appellants submitted applications dated 19.07.2013 with the request that copy of the investigation report be supplied to them for the purpose of filing their response.", "The request of the appellants and others was placed before the Commission which decided not to entertain the same at that stage.", "The decision of the Commission was communicated to the appellants and others by the Jt.", "DG vide letters dated 07.08.2013.", "The one addressed to Appellant Number 2 is reproduced below: Office of the Director General Competition Commission of India B Wing, HUDCO Vishala, 14 Bhikaji Cama Place, New Delhi - 110 066.", "No. DG CCI IW/1/12/2012 Dated : 07.08.2013 By Speed Post To, Shri Angshuman Dey/2753 C. Member C o Jnananda Pharmacy 34-N, H. Birpur More Bethuadahari Nadia - 741126.", "Ref. : Your letter dated 19.07.2013, in response to this office Notice dated 03.07.2013 issued under Section 41(2) read with Section 36(2) of the Competition Act, 2002.", "In paragraph 1 of your above mentioned letter, in reference to Case Number 01 of 2012, it may be noted that the Case No may be read as 01 of 2013 instead of 01 of 2012, as appearing in the notice.", "In so far as providing a copy of the complaint and other details of the said case filed by the Directorate of Drug Control, West Bengal, you may obtain the same by making an application to the Secretary, Competition Commission of India, Hindustan Times House, 18-20, Kasturba Gandhi Marg, New Delhi - 110001.", "As regards your request for copy of the Investigation Report in Suo Moto Case Number 02/2012, your request has been considered by the Commission and this is to inform you that the said Report cannot be provided to you at this stage.", "As such, you are hereby directed to file reply to the aforementioned notice, in compliance of the provisions of the Act.", "With regard to the instances of violation contravention of the Competition Act, being an office bearer Executive Committee member of BCDA, and being present in the various meetings of the Executive Committee of BCDA, you were a party to the decisions of BCDA as reflected in the Minutes of the said meetings held from time to time wherein concerted decisions were taken for restraining sale of drugs and medicines below MRP in contravention of Section 3(3)(a) read with section 3(1) of the Act.", "Further, enforcing compliance of the above anti competitive decisions, has led to limiting and controlling the supply of drugs medicines, thereby contravening the provisions of Section 3(3)(b) read with section 3(1) of the Act.", "Minutes of the meetings held on 24.03.2011, 21.04.2011, 26.05.2011, 08.11.2011, 10.12.2011, 11.01.2012, 17.02.2012, 17.03.2012, 10.04.2012, 19.05.2012, 23.06.2012, 31.07.2012, 18.08.2012, 25.08.2012, 24.11.2012 and 21.12.2012, may be referred to as some of the instances.", "In view of the above, you are once again directed to file your reply to this office notice dated 03.07.2013 at the earliest but not later than 20.08.2013 failing which it will be presumed that you have nothing to say in the matter.", "(Manoj Saksena) Joint Director General 7 .", "One Shri Swapan Kumar Karak, who was one of the Directors of BCDA but had resigned from that position on 25.09.2011, submitted reply dated 15.07.2013 stating that he was not a party to the decisions taken by BCDA to fix the price of drugs and impose restriction on retailers against the sale of drugs at a price lower than the Maximum Retail Price (MRP).", "However, without taking cognisance of his reply and the fact that he had not even asked for copy of the main investigation report, the Jt.", "DG sent communication dated 07.08.2013 to him conveying that his request for supply of copy of the main investigation report was declined by the Commission.", "After completing the exercise of issuing notices letters to the office-bearers of BCDA and members of the Executive Committee, the Jt.", "DG submitted supplementary investigation report dated 27.09.2013.", "He reproduced the resolutions passed by the Executive Committee in its meetings held on 24.03.2011, 21.04.2011, 26.05.2011, 08.11.2011, 10.12.2011, 11.01.2012, 17.02.2012, 17.03.2012, 10.04.2012, 19.05.2012, 23.06.2012, 21.12.2012, 23.02.2013, 20.04.2013 and concluded that the anti-competitive decisions were taken ratified by the office-bearers and members of the Executive Committee in the meetings held from time to time.", "The relevant portions of the supplementary investigation report are extracted below: In response to the Notices sent to the aforementioned Office Bearers Executive Committee members, responses were received from 78 out of the 81 members on different dates.", "As per the responses received, the Office Bearers Executive Committee members stated that in the absence of the Investigation Report and details regarding the specific instances of violation found, it was not possible for them to respond to the notice and requested that a copy of the Report may be provided to them in order to enable them to file their reply.", "It was further requested that copy of the complaint other relevant details with respect to the other identical Case Number 1/2013 may also be provided to them.", "One of the Office Bearers has in his reply claimed that he had resigned from the Executive Committee on 25.09.2011 and requested that he may be exempted from further proceedings.", "In view of the above, directions of the Commission were sought in the matter and as per the directions received vide Order dated 25.07.2013 of the Commission, it was informed to the parties that Investigation Report cannot be provided to them at the present stage of investigations and the parties were directed to file reply to the notices sent to them as per the provisions of the Act.", "In so far as the request of the parties for being apprised about the specific instances of violation contravention of the Competition Act, their attention was drawn to the Minutes of the various Executive Committee meetings attended by them alongwith the specific dates of the said Meetings wherein anti competitive decisions were taken deliberations were held.", "Notices sent to the parties in response to their replies are enclosed as Annexure III (Colly.).", "Regarding the request for being provided copy of the information Complaint filed against the Association in the other identical Case Number 1/2013, the parties were informed that the same could be obtained by them by making an Applicant to the Secretary, CCI.", "In response to the said Notices sent to the Office Bearers and Executive Committee members directing them to file their replies, responses have been received from 61 Office Bearers and Executive Committee members till filing of this report while one Notice has been returned undelivered.", "The parties who have responded have reiterated their earlier request for being provided with the Investigation Report to enable them to file their replies and contended that denial of the same would amount to violation of the principles of natural justice.", "One of the parties has reiterated its earlier contention of having resigned from the Executive Committee of BCDA on 25/09/2011.", "The parties have also sought clarification as to whether the investigation regarding determination of their role was being undertaken in terms of Section 48(2) of the Act as had been directed by the Commission, or, in terms of Section 48(1) since the opportunity to give evidence to prove that the contravention by Bengal Chemists Druggists Association, was committed without their knowledge or that they had exercised all due diligence to prevent the commission of such contravention was being granted to them in terms of the proviso to Section 48(1) of the Act.", "Copies of the responses received from the parties are enclosed as Annexure IV (Colly.).", "In view of the above, and the inability expressed by the Office Bearers Executive Committee Members to file their replies in the absence of the Investigation Report inspite of having been intimated the specific dates of the Executive Committee Meetings attended by them wherein anti competitive deliberations were held and decisions were taken, investigation has determined the role of the Office Bearers and Executive Committee members with respect to the anti competitive conduct of Bengal Chemists and Druggists Association based on documentary evidences in the form of Minutes of the Executive Committee meetings held from time to time which had been attended by the Office Bearers and Executive Committee members of the said Association.", "Further, considering that the provisions of Section 48(1) 48(2) of the Act are with reference to the Penalty proceedings under Chapter VI of the Act, investigation is of the view that only after the Commission has concurred with the findings of the investigation and concluded that contravention of the Act has been committed by Bengal Chemists and Druggists Association, an opportunity in terms of the proviso to Section 48(1) of the Act can be granted to the Office Bearers Executive Committee members whose complicity in the anti competitive conduct of the said Association has been established during the course of investigation proceedings.", "In the matter of contravention of the provisions of the Act by Bengal Chemists and Druggists Association, investigation has in its Report dated 29.05.2013 deliberated in detail about the proceedings of the various Executive Committee meetings of Bengal Chemists and Druggists Association attended by its various Office Bearers Executive Committee members wherein anti competitive decisions were taken ratified by the members present in the meetings.", "The relevant extracts of the Investigation Report dated 29th May 2013 with respect to each of the said meetings wherein decisions were taken deliberations were held resulting in anti competitive practices being carried on by Bengal Chemists and Druggists Association, are reproduced hereunder: Executive Committee meeting held on 24.03.2011 xxx xxx Executive Committee meeting held on 21.04.2011 xxx xxx Executive Committee meeting held on 26.05.2011 xxx xxx Executive Committee meeting held on 08.11.2011 xxx xxx Executive Committee meeting held on 10.12.2011 xxx xxx Executive Committee meeting held on 11.01.2012 xxx xxx Executive Committee meeting held on 17.02.2012 The Agenda Number 5 for the meeting dated 17.02.2012 of the Executive Committee, was To discuss about uniformity of retail prices and the role of the Organization in this regard.", "In this meeting, the Organizing Secretary proposed the formation of Action Committee in order to arrest under cut in retail level.", "It has also been mentioned that a meeting was held with Life and Metro and it was observed that they were very audacious as to give more discount.", "It has been mentioned that Metro Pharma and Life has been giving exorbitant discount which, in turn, is damaging the discipline of the trade.", "It was also assured that North Calcutta District Committee would participate organizational programmes as decided by the State Executive Committee.", "The General Secretary has appreciated the endeavour of North Calcutta District Committee in keeping a close vigil on M section Life.", "He has proposed taking strong decision not only against M section Life but also against Frank Ross, Dhanwantary, Medplus etc.", "It was further stated that launching of organizational movement at any Zone District is to be intimated to the State Committee.", "It was also mentioned that the undercut problem is centered in Kolkata and its surrounding Districts only.", "Executive Committee meeting held on 17.03.2012 Under Agenda Number 4, the Organizing Secretary has reported that the undercut problem has been concentrated upon in the two meetings of the Action Committee and another meeting with the District Organizing Secretaries.", "He has also proposed about the programme of 1st April 2012 to sell medicines from the retail outlet on MRP basis, and on 18th April 2012, to organize a protest profession against entry of big national proposal.", "The Organizing Secretary also stated that the state leadership is very rigid to prevent undercut.", "He has stated as follows : We should move forward to prevent under cut.", "The Organizational Vigilance committee will keep close watch.", "Organizational movement against a few non cooperative members must be initiated.", "We will move from 1st April 2012.", "One member stated that supplies to non cooperating members are to be restricted while another member urged for concrete decision and stressed organizational movement against non cooperating members and that the District Committees must take drive against under cut.", "Similarly, a member proposed to identify the members in the Zone who are giving discount.", "Another member stated that on 10th March meeting.", "20 Districts representatives have agreed to prevent the undercut and that against under cut a clear directive is necessary from the State Committee.", "It was further stated that if any stockiest supplies to any non cooperative member from South Calcutta.", "Action Committee can take any action as they like.", "Thereafter, the President announced that from 1st April 2012, sale of medicine on MRP would be implemented and Organizational Vigilance Committee would be formed at Zone level at the earliest to ensure is proper implementation and that the State Organizing Secretary will oversee the entire process.", "The House unanimously approved this programme.", "Executive Committee meeting held on 10.04.2012 Under Agenda Number 5, the Organizing Secretary has reported that on the basis of the information available, the activities for the programme on 18th are in progress.", "He has further mentioned about the movement against under cut from 1st April 2012.", "He has also stated that a meeting with the vigilance committee members will be held to get them acquainted with the Zone District areas and that efforts should be made on postering, distribution of leaflets and propaganda etc.", "The Organizing Secretary has also stated that the suppliers to M section Life and Medplus would be called for a meeting.", "In this meeting, the General Secretary has proposed for organizational movement against M section Life with immediate effect and to talk to Metro Pharma and launch protest against them for giving discount.", "The Office Bearers were empowered to take decision regarding withdrawal of organizational movement.", "The House approved the proposal.", "Executive Committee meeting held on 19.05.2012 Under Agenda Number 5, the Organizing Secretary stated that as per the recommendation of East Calcutta District Committee, organizational movement should be implemented against M section Charu Medical Stores and M section Charu Marketing Agency for giving discount.", "One member also reported that by vigilance drive both Charus have been caught.", "Another member has stated that both the Charus have been told not to give discount.", "The Organizing Secretary has mentioned that 1st April 2012 programme is on undercut and that their policy is faced with a problem created by M section Life Line, Medplus, Dhanwantary.", "He has also stated that this problem is mainly centered in Kolkata Districts.", "The General Secretary also requested the members to strictly follow the organizational movement on Life Line and others.", "One member stated that they should collect the information as to who purchase medicines from M section Life and who are supplying medicines to Medplus.", "Another member stated that when chain stores are giving discount what will they reply to other retailers.", "The said member also stated that Dhanwantary has taken the Hospital supply with discount and proposed for organizational movement against Dhanwantary.", "It was also proposed by a member that the State committee should call the chain stores representatives and sit with them to persuade them to stop undercut.", "Vigilance teams were also proposed to be detailed in front of SSKM Hospital and CMRI.", "The Organizing Secretary proposed to write a letter to Medplus and other chain stores to honour the guideline of BCDA.", "He also proposed to call the Calcutta Wholesale EC body in BCDA.", "The General Secretary proposed the Organizing Secretary to call all the EC members of Calcutta Wholesale in BCDA within a short time.", "He further proposed that the vigilance activities in Districts will be organized.", "The House approved the above proposals.", "Executive Committee meeting held on 23.06.2012 The Agenda Number 3 for the meeting dated 23.06.2012 of the Executive Committee was To discuss about the action plan on Trade Policy.", "In this meeting, the General Secretary has referred about State Committees programme to stop discount from 1st April, 2012.", "It has also been mentioned that in the meeting with Life Line on 12.06.2012, the company has agreed to stop discount with immediate effect and as a result, the organizational movement has been withdrawn against Life Line.", "The Organizing Secretary has reported that Kolkata and other District Committees have stopped the discount.", "Life Line has stopped discount and that some members have been cautioned by BCDA Vigilance.", "He has also mentioned that Shyambazar Zone under North Calcutta is still giving discount and that M section Jitendra Mohan should be penalized.", "One member has stated that discount is going to start again which is very painful to BCDA members.", "He emphasized that discount in Shyambazar Zone must be stopped for which he proposed to call the members of Shyambazar Zone on 25th June 2012 in State Office to persuade them to stop the discount.", "One member has stated that they have been activating the Zone Vigilance Committee continuously and are in constant touch with the Zone Vigilance Committee to implement the BCDA directive.", "Another member has stated that they have been able to convince the retailer members against discount and has noted that East Calcutta is very rigid.", "One member has stated that Canning Zone is very adamant and anti-propaganda against BCDA has been made.", "He has also mentioned that the State Vigilance Committee has been asked to intervene in the case of Mandai Pharmacy.", "He has however observed that the overall picture of the District Vigilance is good.", "One of the member has said that during a visit to the Shyambazar 5-Point crossing, it has been found that 3-4 shops have given discount including Frank Ross.", "He proposed that the State Committee should sit with the shop owners of Shyambazar Zone and persuade them to stop discount.", "Thereafter, the President directed that, as proposed, the retail shop owners of Shyambazar Zone would be called for a meeting on Monday the 25th June, 2012 in BCDA Office.", "One member complained that the root cause of undercut problem in South Calcutta is Dhanwantary and has sought the intervention of the State Committee in the matter.", "Another member has stated that undercut is prevailing at Baranagar and Dum Dum Zone and that the 24 Parganas North District Committee has been in constant touch with them.", "Another member has complained that North Calcutta is not taking any fine from the shops who are giving discount.", "The Organizing Secretary has mentioned that they have taken necessary steps for implementation of trade policy.", "He also stated that discount is going on in Kolkata and surrounding Districts and recommended to continue vigilance operation in very rigid manner.", "He also reported that the Calcutta Wholesale EC Committee has assured to stop under cut.", "One member stated that Dhanwantary, Chemist Corner, Medplus etc. were the first to introduce discount system in the trade and that they are to be caught through vigilance operation.", "Another member stated that the new traders coming in this trade are giving discount and suggested to sit with them.", "He also proposed that the supply point to Medplus and others is to be detected first and to take extreme measures against those who are caught.", "He also proposed that M section Jatindra Mohan is to be caught.", "General Secretary concluded the agenda stating that based on the discussions held, Calcutta Coordination Committee and Action Committee will decide the names of the firm against whom action is to be taken and that the interests of wholesalers and sub- wholesalers are to be safeguarded.", "Executive Committee meeting held on 31.07.2012 xxx xxx Executive Committee meeting held on 25.08.2012 xxx xxx Executive Committee meeting held on 24.11.2012 xxx xxx Executive Committee meeting held on 21.12.2012 xxx xxx Executive Committee meeting held on 23.02.2013 xxx xxx Executive Committee meeting held on 20.04.2013 In the minutes of the Executive Committee meeting dated 20.04.2013, under Agenda Number 5, it has been resolved that Bengal Chemists Druggists Association shall not initiate any organizational movement, like in earlier times also, against any wholesaler retailer offering discounts below the MRP.", "As can be seen from the above, anti competitive decisions were taken ratified by the Office Bearers Executive Committee members of Bengal Chemists and Druggists Association in the Executive Committee meetings of the Association held from time to time and the Minutes of the meeting held on 20.04.2013 is an admission of the complicity of the members in the anticompetitive conduct of the Association.", "xxx xxx CONCLUSION In view of the above, it is concluded that besides the Bengal Chemists and Druggists Association, its Office Bearers Executive Committee members listed above at Serial Numbers 1 to 80 have, by taking decisions and perpetuating practices of the Association that have been found to be anti- competitive, are equally complicit in the said decisions and practices.", "(Underlining is ours) 9 .", "It is borne out from the record that Shri Arun Kumar Singh had made similar complaints to the Director, Directorate of Drug Control, West Bengal vide e-mails dated 24.06.2012 and 27.06.2012.", "Thereupon, Respondent Number 3, who was then holding the post of the Director, constituted a team for verifying the allegations contained in the e-mails.", "The team visited the medical shops in Chinsurah and Serampur on 18.10.2012 and Howrah and Kolkata on 08.11.2012 and submitted report with the finding that the allegations were correct.", "Thereafter, Respondent Number 3 made a reference under Section 19(1)(b) of the Act with the allegation that BCDA is involved in anti-competitive practices and issued circulars directing the retailers not to give any discount to the consumers and in this manner it had acted in contravention of the provisions of Section 3 of the Act.", "The same was registered as Case Number 1 of 2013.", "The Commission issued order dated 27.05.2013 and directed the DG to conduct an investigation into the reference along with Suo-moto Case Number 2 of 2012.", "On receipt of that order, the DG sent communication dated 30.09.2013 to the Commission stating therein that he had already submitted reports dated 29.05.2013 and 24.09.2013 in Suo-moto Case Number 2 of 2012.", "Subsequently, he informed the Commission that the investigation reports already submitted can also be read for the purpose of Reference Case Number 01 of 2013.", "The supplementary investigation report submitted by the Jt.", "DG was considered by the Commission in its meeting held on 17.12.2013 and it was decided to send copies of the main as well as supplementary investigation reports (non-confidential version) to the parties to enable them to file their reply objections along with their profit and loss accounts, balance sheets and turnover for the last three financial years.", "The Commission also directed the parties to appear on 26.11.2013 for final hearing.", "In response to the notice issued by the Commission, Shri Tushar Chakraborti (Honorary General Secretary of BCDA), filed reply on behalf of the Association in the form of his own affidavit dated 21.12.2013 to contest the findings recorded by the Addl.", "DG and the Jt.", "He claimed that the investigation was conducted in violation of the principles of natural justice and the findings were recorded without considering the relevant facts and documents.", "Some members of the Executive Committee also filed their replies to contest the findings and conclusion recorded by the Jt.", "DG in the supplementary report that they were responsible for the decisions taken by BCDA to impose restriction on the sale of drugs below the MRP and actions taken for enforcing those decisions.", "The Commission considered the two investigation reports and formulated the following issues: Whether BCDA and its District and Zonal Committees were engaged in anti-competitive practices in violation of the provisions of section 3 of the Act? If finding on the issue Number (i) is in the affirmative, whether the members office bearers of the Executive Committee of BCDA and its District and Zonal Committees are also liable for the violation of section 3 of the Act? 1 3 .", "The Commission first considered the record of the main investigation report, analysed the findings recorded by the Addl.", "DG and held: In the aforesaid circumstances, the Commission holds that the BCDA and its District and Zonal Committees were engaged in anti-competitive practices of directly or indirectly determining the sale prices of drugs and controlling or limiting the supply of drugs through concerted and restrictive practices, in violation of the provisions of Section 3(3)(a) and (b) read with Section 3(1) of the Act.", "After recording the aforesaid conclusion, the Commission referred to the supplementary investigation report and held that the office-bearers and the members of the Executive Committee of BCDA are guilty of contravention of the provisions of the Act.", "The discussion on this aspect of the case is contained in paragraphs 69 to 71 and 73 of the impugned order, which are reproduced below: The office bearers in their common reply to the DG report have taken the plea regarding non application of the provisions of Section 48 of the Act upon the office bearers and executive members of BCDA as their liability is limited as per the Memorandum of Association of BCDA, being a non-profit company registered under Section 25 of the Companies Act, 1956.", "As held by the Commission in Case Number 60/2012 (in the matter of M section Arora Medical Hall, Ferozpur Against Chemist Druggist Association, Ferozpur Ors.), the Commission reiterates that the provisions of Section 27 of the Act are sufficient to make office bearers liable for contravention without the aid and assistance of the provisions of Section 48 of the Act.", "Additionally, the Commission notes from the records that BCDA is a company registered under Section 25 of the Companies Act, 1956 and provisions of Section 48 of the Act are undoubtedly applicable to the BCDA.", "Thus, there seems to be no occasion to draw any distinction on the count.", "Therefore, the Commission is of the view that the office bearers and executive members of the BCDA are guilty of the contravention and are liable to be punished.", "On the aspect of penalty under Section 27 of the Act, the Commission is of the view that the said anticompetitive acts and conducts require to be penalized to cause deterrence in future among the erring entities engaged in such actions.", "Accordingly, it is requested that the degree of punishment is scaled to the severity of the violation.", "On this count, the position of BCDA to control the market of drugs and medicines in its area of operation is undoubted.", "It has come clear during the investigation that BCDA and its District and Zonal committees are engaged in anticompetitive practices of directly and indirectly determining the sale price of drugs and controlling or limiting the supply of drugs through concerted and restricted practices in violation of Section 3(3)(a) and (b) read with Section 3(1) of the Act.", "Therefore, the conduct of BCDA and its office bearers executive committee members requires to be sternly dealt with.", "Further, no mitigating factor is shown by the parties and none is borne out from the records.", "The Commission notes that one of the then office bearers Shri Niranjan Saha has since deceased and another office bearer Shri Dinesh Parolia has not submitted his financial statements.", "Further, one more executive committee member mentioned by the DG namely Shri Pradeep Kumar Paul vide letter dated 29.11.2013 has submitted to the Commission that he is not in the business since 2010 and has requested exemption from submitting the financial statements.", "A decision on the quantum of penalty with respect to Shri Parolia and or further view on non submission of financial statements by Shri Parolia and Shri Paul shall be taken separately.", "Finally, the Commission imposed penalty on BCDA and its office bearers 10 of the average turnover income and on the members of the Executive Committee 7 of their respective income receipts.", "The relevant extract of the operative part of the impugned order is reproduced below: Having given due consideration on the issue of quantum of penalty as well as the totality of facts and circumstances, the Commission decided to impose a penalty on the BCDA its those office bearers who are directly responsible for running its affairs and play lead role in decision making 10 and on the executive committee members 7, of their respective turnover income receipts based on the financial statements filed by them as follows: The appellants have questioned the penalty imposed on them on the ground of violation of the principles of natural justice.", "It is the appellants case that due to non- supply of the copy of the main investigation report, they were deprived of an effective opportunity to controvert the allegation that they were incharge of and responsible for the anti-competitive decisions taken by BCDA.", "Another ground taken by the appellants is that the Jt.", "DG could not have called upon them to lead evidence in the context of proviso to Section 48(1) because no evidence had been produced collected during the investigation, which could prove that they were incharge of and responsible to BCDA for the conduct of its business.", "They have also pleaded that while imposing penalty, the Commission altogether overlooked the decision taken by BCDA as early as in April, 2013 not to enforce the ban on reduction in MRP by the retailers.", "We have heard learned counsel for the parties and carefully perused the record.", "In our view, penalty imposed on the appellants is legally unsustainable and is liable to be quashed on the ground of violation of the principles of natural justice and also on the ground that the same is ultra vires the provisions of Section 48 of the Act.", "It is not in dispute that after receiving notices issued by the Jt.", "DG under Section 41(2) read with Section 36(2) of the Act, the appellants made applications for supply of copy of the investigation report dated 29.05.2013 but their request was rejected by the Commission.", "As a result, the appellants could not know the basis of the findings recorded by the Addl.", "DG that BCDA had indulged in anti-competitive practices and thereby contravened Sections 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act.", "The decision taken by the Commission in its meeting held on 18.06.2013 for ordering an investigation into the role of the office-bearers and the members of the Executive Committee of BCDA was entirely based on the findings and conclusions recorded in the main investigation report.", "Therefore, the appellants were entitled to know the contents of the main investigation report for the purpose of preparing their defence in the context of notices dated 03.07.2013 issued by the Jt.", "The Commissions refusal to make available copies of the investigation report to the appellants definitely caused serious prejudice to them because they were deprived of an effective opportunity to contest the allegations about their role in the decision-making by BCDA.", "Therefore, the penalty imposed on the appellants is liable to be quashed.", "The other reason for setting aside the penalty imposed by the Commission is violation of the scheme of Sections 27 and 48 of the Act, which read as under: Sec.", "Orders by Commission after inquiry into agreements or abuse of dominant position.--Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:- (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be (b) impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher.", "(d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any (g) pass such other order or issue such directions as it may deem fit: Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.", "Contravention by companies- Where a person committing contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: PROVIDED that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.", "Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that contravention and shall be liable to be proceeded against and punished accordingly.", "Explanation.--For the purposes of this section,-- (a) company means a body corporate and includes a firm or other association of individuals and (b) director, in relation to a firm, means a partner in the firm.", "Section 27 is a part of Chapter IV of the Act, which contains provisions relating to duties, powers and functions of the Commission.", "Under this section, the Commission is empowered to pass any of the orders enumerated in Clauses (a) to (g) if after inquiry it finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position is in contravention of Section 3 or Section 4 of the Act.", "Under Clause (a), the Commission can direct any enterprise or association of enterprises or person or association of persons involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position.", "Under Clause (b), the Commission can impose penalty upto of 10 of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to the agreements referred to in Section 3 or abuse referred to in Section 4.", "Proviso to this clause lays down that if any agreement referred to in section 3 has been entered into by a cartel than the Commission can impose penalty of upto three times of profit for each year of continuance of an agreement or 10 of the turnover for each of the year of the continuance of such agreement, whichever is higher on every producer, seller, distributor, trader or service provider who is a party to an agreement entered into by a cartel.", "In terms of Clause (d), the Commission can direct that the agreements found to be in contravention of Section 3 shall stand modified to the extent and in the manner as may be specified in the order.", "Clause (e) lays down that the Commission can direct the enterprises concerned to abide by such other orders as the Commission may pass and mandate compliance thereof including payment of costs.", "Clause (g) confers an omnibus power upon the Commission to pass such other order or issue such directions as it may deem fit.", "Section 48 finds place in Chapter VI of the Act, which contains various provisions relating to penalties that can be imposed by the Commission.", "Section 42 confers power upon the Commission to penalize any person, who, without reasonable cause, fails to comply with the orders or directions issued by it under Sections 27, 28, 31, 32, 33, 42A and 43A of the Act.", "Under Section 42(2), the Commission can impose fine to the extent of rupees one lakh for each day during which such non-compliance occurs, subject to a maximum of rupees ten crore.", "Sub-section 3 of Section 42 declares that if any person does not comply with the orders or directions issued, or fails to pay the fine imposed under sub-section 2 then he shall be punishable with imprisonment for a period which may extend to three years or with fine which may extend to rupees twenty-five crore, or with both, as the Chief Metropolitan Magistrate, Delhi may deem fit.", "Section 42A provides for making any application by any person for recovery of compensation from any enterprise for any loss or damage suffered by him it as a result of violation of the directions issued by the Commission or contravention of any decision or order of the Commission issued under Sections 27, 28, 31, 32 and 33 or any condition or restriction subject to which any approval, sanction, direction or exemption in relation to any matter has been accorded, given, made or granted under the Act or delaying in carrying out the orders or directions of the Commission.", "Section 43 lays down that if any person fails to comply, without reasonable cause, with a direction given by the Commission under Section 36(2) and (4) or the Director-General while exercising powers under Section 41(2), then he shall be punishable with fine which may extend to rupees one lakh for each day during which such failure continues subject to a maximum of rupees one crore.", "Section 43(A) which was inserted with effect from 01.06.2011 provides for imposition of penalty if any person or enterprise fails to give notice under Section 6(2).", "The extent of penalty which can be imposed under that section extend to one percent of the total turnover or the assets, whichever is higher, of such a combination.", "Section 44 provides for imposition of penalty on a person, who is a party to a combination and makes false statement in any material particular, or knowing it to be false, or omits to state any material particular knowing it to be material.", "The extent of penalty which can be imposed under this section is rupees fifty lakh to one crore.", "Section 45 empowers the Commission to punish any person who fails to provide necessary information or documents, omits to state any material fact knowing it to be material, or willfully alters, suppresses or destroys any document which is required to be furnished.", "Section 46 confers power upon the Commission to impose lesser penalty than the one specified in the preceding sections.", "Section 48(1) lays down that where a person committing contravention of any of the provisions of the Act or of any rule, regulations, order made or direction issued thereunder is a company, every person who, at the time of contravention was incharge of and was responsible to the company for the conduct of its business as well as the company shall be deemed to be guilty of contravention and shall be liable to be proceeded against and punished accordingly.", "Proviso to Section 48(1) contains a non-obstante clause and lays down that a person referred to in sub-section (1) shall not be liable to be punished if he proves that the contravention by the company was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such contravention.", "Section 48(2) contains a similar provision qua any director, manager, secretary or other officer of the company.", "However, this sub-section does not have proviso similar to the one contained in Section 48(1).", "The explanation appended to Section 48 makes it clear that for the purpose of Section 48, the term Company means a body corporate and includes a firm or other association of individuals and the term Director in relation to a firm, means a partner in the firm.", "Since the provision contained in Section 48(1) raises a presumption of guilty against every person, who, at the time of contravention of the provisions of the Act by the company, was incharge of, and was responsible for the conduct of its business and visits him with penalty, the same deserves to be construed strictly and in our view, the deeming provisions contained in the two sub-sections of Section 48 can be invoked only after it is found that the company has contravened the provisions of the Act or any rule, regulation, order made and direction issued thereunder.", "The use of the word committed in the two sub-sections necessarily implies that before any person incharge of and responsible to the company or director, manager etc.", "of the company can be proceeded against and punished by invoking the deeming provisions contained in Section 48(1) and or (2), there must exist an affirmative finding by some competent authority that the company has contravened the provisions of the Act or any rule, regulation etc.", "Under the scheme of the Act, final determination on the issue of contravention of the provisions of the Act or any rule, regulation etc.", "can be made only by the Commission and not by the Director General or any other authority.", "Even the determination made by the Commission is subject to the right of the aggrieved person to challenge the same by filing an appeal under Section 53B(2) of the Act.", "To put it differently, in the absence of a determination by the Commission that the company has committed contravention of any of the provisions of the Act or any rule, regulation etc., the deeming clause contained in Section 48(1) cannot be invoked for punishing the person incharge of and responsible to the company for the conduct of its business.", "Similarly, the deeming provision contain in Section 48(2) cannot be invoked for penalising any director, manager, secretary or other officer of the company whose consent or connivance or negligence may have resulted in contravention of the provisions of the Act or of any rule, regulation or order made or direction issued thereunder by the company unless a finding is recorded by the competent authority that the company has in fact contravened the provisions of the Act.", "The material placed on record which include the main as well as supplementary investigation reports do not show that the appellants were incharge of and responsible to BCDA for the conduct of its business at the time of contravention of Sections 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act.", "The supplementary investigation report does mention that the appellants were members of the Executive Committee and in that capacity, they had participated in various meetings where anti- competitive decisions were taken but that by itself cannot make the appellants liable under Section 48(1) because it has not been proved that they were incharge of the affairs of the company i.e. BCDA.", "In other words, the mere fact that the appellants were members of the Executive Committee of BCDA and in that capacity, they were party to the decisions taken by BCDA to fix the prices of drugs and control the supply thereof cannot give rise to an inference that they were incharge of BCDA.", "The primary burden to prove that the appellants case fell within the ambit of Section 48 of the Act was on the informant and or the investigating officer.", "However, except summoning various resolutions passed by the Executive Committee and recording the statements of some persons including the retailers, no evidence was collected by the Addl.", "DG or the Jt.", "DG to prove that the appellants were incharge of BCDA or that their case falls within the ambit of Section 48(2).", "In the absence of such evidence, the appellants could not have been punished with the aid of Section 48 of the Act.", "At this stage, it will be apposite to observe that vide order dated 18.06.2013, the Commission had directed the DG to investigate the role of the individual office bearers of the Managing Committee Executive Committee in the decision-making in terms of Section 48(2) but the Jt.", "DG issued notices to the appellants and straightaway called upon them to prove that the contravention was committed by BCDA without their knowledge or that they had exercised due diligence to prevent the commission of such contravention.", "This was clearly contrary to the plain language of Section 48(1).", "In Tamil Nadu Electricity Board Vs.", "Rasipuram Textile (P) Limited and Others -  : (2008) 17 SCC 285, the Supreme Court interpreted Section 49-A of the Electricity Act, 2010 which is pari materia to Section 48 of the Act and held that the burden to prove that the particular person was incharge of and was responsible to the company for the conduct of business of the company is primarily on the complainant and the same shifts on the other party only if it is established by evidence that the particular person was, in fact, incharge of and was responsible to the company for its business.", "Paragraphs 11 to 14 of that judgment which notices the relevant provision and contains analysis thereof read as under: Section 49-A which was inserted by Act 32 of 1959 provides for offence by companies.", "It reads as under: 49A Offence by companies.--(1) If the person committing an offence under this Act is a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.", "Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.", "Explanation.", "-- For the purposes of this section.--(a) company means any body corporate and includes a firm or other association of individuals and (b) director, in relation to a firm, means a partner in the firm.", "In terms of the aforesaid provision, therefore, it was obligatory on the part of the complainant not only to make requisite averments in the complaint petition but also to prove that any of the Directors who had been prosecuted for alleged commission of the aforementioned offence was incharge of and was otherwise responsible for the conduct or the affairs of the Company.", "We have noticed hereinbefore that how the learned trial Judge has dealt with the entire aspect.", "Learned trial Judge has misconstrued and misinterpreted the provisions of Section 49A of the Act.", "In terms of sub-section (1) of Section 49-A, it is for the complainant to prove that the Director of the Company at the time when the theft was committed was in charge of and or was responsible for the conduct of its business.", "Only in the event such an averment is made and sufficient and cogent evidence is brought on record to prove the said allegations, the proviso appended to Section 49-A would be attracted meaning thereby only in the event it is proved that a Director or a Group of Directors of the Company were in charge of and or were responsible for the conduct of the business of the company, the burden would shift on the accused to establish the ingredients contained in the proviso appended to Section 49-A of the Act.", "Emphasis supplied The ratio of the above noted judgment is that the primary burden to prove that the particular person was, at the time of contravention incharge of and was also responsible to the company for the conduct of its business is on the one who makes such allegation and only after evidence has been led to prove that the particular person was, in fact, at the time of commission of contravention, incharge of and was responsible to the company for the conduct of its business, the burden shifts on such person.", "In the absence of any evidence having been adduced collected during the main investigation to show that the appellants were incharge of and responsible to BCDA for the conduct of its business, the Jt.", "DG did not have the jurisdiction to issue notices to the appellants under proviso to Section 48(1) of the Act and call upon them to produce evidence to prove that the contravention of Sections 3(3)(a) and 3(3)(b) read with Section 3(1) was committed by BCDA without their knowledge or that they had exercised due diligence to prevent the commission of such contravention.", "As a corollary to the above discussion, it must be held that the very edifice of the further investigation conducted by the Jt.", "DG was founded on a wholly erroneous assumption that the appellants were responsible for the contraventions of Section 3(3)(a) and 3(3)(b) read with Section 3(1) of the Act by BCDA and the burden to prove the negative was upon them and on this ground, the impugned order is liable to be set aside.", "In Appeal Number 09 of 2016 - M section Alkem Laboratories Limited Vs.", "Competition Commission of India and Others decided today, an issue substantially similar to the one raised in this appeal was considered.", "In that case, the Commission had held Shri K. Haridas, who was Branch Manager and Shri Johnson Mathew, who was DGM-ACE of M section Alkem Laboratories Limited were liable to be punished with the aid of Section 48(1) of the Act.", "The Tribunal set-aside the penalty imposed on all the appellants including Shri T.K. Haridas and Shri Johnson Mathew.", "While dealing with the cases of the two individuals, the Tribunal analysed the provisions of Sections 27 and 48 of the Act, referred to the judgment of the Supreme Court in Tamil Nadu Electricity Board Vs.", "Rasipuram Textile (P) Limited and Others -  : (2008) 17 SCC 285 and held that unless it is proved that the particular individual was incharge of and was responsible to the company for the conduct of its business, penalty cannot be imposed by invoking Section 48 of the Act.", "The view taken by the Commission that the appellants could have been penalised under Section 27 without the help of Section 48 is ex-facie erroneous.", "Section 27 deals with the cases in which an agreement referred to in Section 3 or action of an enterprise in a dominant position is found to be in contravention of Section 3 or Section 4.", "In such an eventuality, the Commission can pass any of the orders enumerated in Clauses (a) to (g).", "That section does not deal with role of individual office-bearers of an enterprise or association, which may be found guilty of having acted in contravention of Section 3 or Section 4 of the Act.", "That subject is squarely dealt with in Section 48(1).", "Therefore, if the ingredients of Section 48 are not satisfied, the Commission cannot fall back upon Section 27 to justify the imposition of penalty on the office-bearers of the Association, who are not shown to be incharge of and responsible to the company for the conduct of its business.", "If the Legislature had intended to clothe the Commission with the power to impose penalty under Section 27 of the Act on each and every member of the association or officer of the organisation, then there was no necessity of separately enacting Section 48 which specifically deals with the issue relating to the liability of the persons incharge of and responsible to the company for the conduct of its business or a director, manager, secretary or other officer of the company where a contravention of any of the provisions of the Act or of any rule, regulation, order made or direction issued thereunder has been committed by a company and it is proved that such contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of such director etc.", "The very fact that the Legislature has chosen to enact a specific provision for making the person incharge of and responsible to the company for the conduct of its business as also director etc.", "liable for the contravention committed by the company, shows that Section 27 cannot be relied upon for penalising the office-bearers or the members of an association, unless the ingredients of Section 48(1) or (2) are proved.", "Before concluding, we may also take cognizance of order dated 07.12.2015 passed in Appeal Number 42 of 2014 - Mr. Swapan Kumar Karak Vs.", "Competition Commission of India and Others.", "The facts of the case show that even though appellant, Swapan Kumar Karak had resigned from the position of the Director of the Managing Committee Executive Committee, the Commission penalised him by relying upon Section 27 read with Section 48 of the Act, totally ignoring the reply filed by him in response to notice dated 18.06.2013 issued by the Commission.", "In that case, the Tribunal referred to Sections 27 and 48 of the Act and observed: An analysis of Section 27 shows that if the Commission finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position is in contravention of Section 3 of Section 4, then it can direct the enterprise association of enterprises or person or association of persons involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position.", "The Commission can also imposed penalty, which shall not be more than 10 of the average of the turnover for the last three preceding financial years upon each of such person or enterprise, which are parties to such agreement or abuse.", "If the finding of the Commission is that the agreement has been entered into by a cartel then it can impose upon each producer, seller, distributor, trader or service provider included in the cartel, a penalty upto three times of his profit for each year of continuance of such agreement or 10 of its turnover for each year of continuance of such agreement, whichever is higher.", "The Commission can also ordain modification of the agreement to the extent in the manner specified in the order of the Commission or direct the enterprises concerned to abide by such other orders as it may pass and comply with the directions, including the payment of costs.", "By virtue of Section 48(1), every person, who was incharge of, and was responsible to the company for conduct of its business at the time of commission of contravention is deemed to be guilty of contravention and is liable to be proceeded against and punished accordingly.", "Section 48(2), which contains a non-obstante clause further provides that wherever contravention has taken place with the consent or connivance of, or attributable to any negligence on the part of any director, manager and secretary or other officer, then he shall also be deemed to be guilty of contravention and shall be liable to be proceeded against and punished accordingly.", "In our considered view, Section 48(1) can be invoked only if the person against whom the proceedings are drawn was incharge of and was responsible to the company for the conduct of its business.", "Sub-section (2) of Section 48 can be invoked if it is proved that contravention has taken place with the consent or connivance of or is attributable to any director, manager, secretary or other officer of the company.", "Therefore, what is to be seen is whether Section 48 could have been invoked for holding the appellant guilty and imposing penalty on him.", "It is neither the pleaded case of the respondent nor it has been argued by learned counsel for the Commission that the minutes recorded by the Organizing Secretary of BCDA had been signed by each of the members who were present in the particular meeting.", "Therefore, the mere recording of presence of the appellant in the minutes of various meetings cannot be made basis for presuming that he had, in fact, participated in the meetings of the Executive Committee held after 25.09.2011 and was associated with the decision taken to impose ban on discounts by the retailers.", "What is most surprising is that while imposing penalty, the Commission did make a note of the fact that the appellant had resigned from the Executive Committee (this inference is being drawn from the entry at Item Number 59 at the title box indicating the quantum of penalty), but did not bother to find out as to how the appellants name could appear in the records of the BCDA including the minutes of the meetings held after 25.09.2011.", "On the basis of 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+{"id": "HC_Hemant_Sharma_and_Ors_vs_Union_of_India_and_Ors_04DE114300COM195582", "text": ["Vipin Sanghi, J. By this petition, the petitioner seeks the issuance of a writ of mandamus to direct respondent number 1 i.e. UOI to the Secretary, Ministry of Youth Affairs Sports, to take appropriate steps so that respondent number 2 i.e. All India Chess Federation does not ban threaten to ban chess players, associating themselves with other chess associations.", "Respondent number 2 is the National Federation for the sport of chess, recognized by respondent number 1.", "Respondent number 2 also is the body recognized by the concerned international federation i.e. Federation Internationale Des Echess (FIDE).", "The petitioners claim to be chess players.", "In the past, they have registered themselves with respondent number 2 on an annual basis.", "They have been participating in chess tournaments organized by respondent number 2, and those which respondent number 2 has authorized or approved.", "The case of the petitioners is that the petitioners being amateurs, like to play chess whenever an opportunity presents itself, even in those tournaments not organized by respondent number 2 or which may not have the blessings of respondent number 2. 3 .", "The submission of the petitioner is that respondent number 1 has issued the revised guidelines for assistance to National Sports Federation (NSF).", "Under these guidelines, it is provided that National Sports Federations shall be fully responsible and accountable for the overall management, direction, control, regulation, promotion, development and sponsorship of the discipline for which they are recognized by the concerned International Federation.", "They are expected to discharge their responsibilities in consonance with the principles laid down in the OIympic Charter, or in the charter of the Indian Olympic Association, or the relevant International Federation as the case may be.", "These guidelines further provide that the NSFs should maintain certain basic standards, norms and procedures with regard to their internal functioning, which conform to the high principles and objectives laid down by the concerned international federation, and which are also in complete consonance with the principles laid down in the Olympic Charter or in the constitution of the Indian Olympic Association.", "The sports federations seeking recognition as NSFs are required to apply as per the guidelines contained in Annexure P-II to the said guidelines contained in Memorandum number F.6-6/94-SP-III.", "The considerations which the Ministry of Youth Affairs Sports shall take into account and be guided by, inter alia, are that the sports federation is recognized by the international federation and the Asian federation, the role played and contribution made by the association in promoting and developing sports in India, and the role played by the association in protection and promotion of players interest and welfare.", "Ms. Palli, learned counsel for the petitioner points out that the FIDE has laid down the moral principles of FIDE which are applicable to FIDE for non-FIDE chess competitions.", "The second principle laid down is that FIDE reaffirms its commitment to the right to play chess and opposes all actions that would hinder that right.", "Ms. Palli further submits that under the guidelines issued by the Ministry of Youth Affairs Sports, it is the obligation of respondent number 2 to protect the right of the players to play chess and to oppose all organized actions which would hinder that right of the petitioners to play chess.", "Ms. Palli further submits, by reference to the aforesaid guidelines that the NSFs are primarily responsible for judicious selection of sports persons for participation in major international events based on merit and with the object of enhancing national prestige and bringing glory to the country.", "The NSFs are expected to introduce seeding and ranking systems which would provide an automatic and transparent system of selection.", "The NSFs are also required to introduce machinery for the redressal of players grievances.", "Such federations are also expected to evolve a system of extensive local competitions.", "The procedure for suspension withdrawal of recommendation is contained in Annexure III of the said guidelines.", "One of the reasons for which the recommendation may be withdrawn by respondent number 1, in respect of NSF, is that where in the judgment of the Government of India, the federation is not functioning in the best interest of development of sports for which the federation was granted recognition.", "The grievance of the petitioners is that respondent number 2 prohibits chess players who are registered with it from playing in any tournament, or participating in any competition of chess, if such a tournament competition is organized by an association federation or other body which does not have the approval of respondent No. 2.", "Ms. Palli submits that the said conduct of respondent number 2 is highly monopolistic and anti-competitive.", "Respondent number 2 being the internationally recognized sports federation is exploiting its dominant position to impose such unreasonable restrictions on the rights of the players, by issuing caution notices and by claiming that such conduct of the players is detrimental to the interest of respondent number 2.", "In this respect, Ms. Palli has drawn my attention to the caution notice displayed by respondent number 2 on its website.", "The said caution notice reads:- Caution This is to inform all chess players organizers officials that any chess event organized under the banner of Chess Association of India is not recognized by the All India Chess Federation.", "A reminder of our earlier circular CAUTION A set of disgruntled elements have announced that they have formed a Chess Association as rivals to the All India Chess Federation.", "In their mails the Chess Association of India has announced that, with the permission of World Chess Federation Inc ( a rival to FIDE) they will organize an open tournament at Delhi from 23rd Dec with a Prize fund of Rs.15 lakhs.", "All India Chess Federation cautions all chess players affiliated to us not to participate in these tournaments or any other tournament to be organized by Chess Association of India in future as their events are not recognized by All India Chess Federation and as such not authorized by AICF.", "This is to further remind all AICF registered players that you have signed a declaration in the players registration form, which we quote for your ready reference.", "I also declare that I will not participate in any unauthorized tournament championship.", "By playing in the tournaments conducted by Chess Association of India, the registered players of AICF will attract disciplinary action and hence are cautioned against playing in the tournaments to be organized by the rival body.", "- Published on 09th December, 2009.", "Ms. Palli submits that one of the petitioners made an enquiry under the Right to Information Act on respondent number 2.", "The first query was whether respondent number 2 had removed or recommended the FIDE to remove the rating of some chess players of India.", "The said query was answered in the affirmative by respondent number 2.", "The second query was that on what charges and under which clause of the byelaws of Federation such recommendation was made? The answer to the said query given by respondent number 2 reads as follows:- Ans: Action was taken under the following Sections Clause of the bye laws of All India Chess Federation, Section 9(n) : To take disciplinary action against its members, the office bearers, officials and players recognized by the federation or of any recongised Members.", "Section 16(b)(XV) : To take disciplinary action against Officials and Players concerning the charges leveled.", "Section 27.", "Rules and Regulations: All Rules and Regulations framed for relevant purposes or on any matters and adopted by the Central Council and the General Body shall have the same force as this Constitution.", "Rule II of Annexure to the Bye Laws: Players shall desist from indulging in any act detrimental to the interests of Federation.", "Players shall not fraudulently participate in events.", "Any other act which is against the aim and objects of the Federation and detrimental to its interests.", "Players shall strictly abide by the Constitution, Rules Regulations and Orders Instructions of the Federations in force from time to time and also abide by the instructions of the Arbiters and AICF Office Bearers.", "As per players Registration form DECLARATION I also declare that I shall abide by the rules and regulations and the latest amendments and decisions of the State District Chess Association Federation as the case may be and cooperate with the officials in participating in State and National Tournaments Championships.", "I also declare that I will not participate in any unauthorized tournament championship.", "Ms. Palli submits that the Railway Sports Promotion Board, which is also affiliated to respondent number 2 federation issued a circular dated 24.6.2011 to the effect that some railway chess players had participated in chess tournaments which were not authorized by respondent number 2.", "Respondent number 2 had relied upon its rule that a player who is registered with respondent number 2 cannot play in any unauthorized tournament and if he does so, he shall attract disciplinary action.", "The Railway Sports Promotion Board has, therefore, directed that chess players who have participated in any chess tournament which does not figure in the tournament calendar of respondent number 2 and is not recognized by respondent number 2 should not be allowed to participate in the tournament organized by Railway Sports Promotion Board.", "Ms. Palli submits that when the petitioner made a representation to respondent number 1 against the aforesaid conduct of respondent number 2, respondent number 1 has merely forwarded the petitioners grievance to respondent number 2 and obtained its response without examining the position itself.", "Respondent number 2 in its communication dated 10.05.2011 has, inter alia, stated as follows:- The players who are registered with All India Chess Federation are bound by the Rules and Regulations of the Federation.", "Those players who want to be part of the Federation have to follow these rules.", "As per the Rules of the Federation no player can participate in unauthorized illegal tournaments which are not recognized or approved by the Federation.", "This fact is known to all the players and the same is posted on our website.", "Some former office bearers of the Federation who have been expelled suspended for their acts of omissions and commissions have floated a new body called the Chess Association of India claiming themselves to be a parallel body to the All India Chess Federation.", "They are organizing tournaments and also naming some of these tournaments as National Championships.", "This according to us is a criminal act as the players are duped that the certificates issued by them is valid for employment opportunities in government and public sector undertakings.", "We have prominently displayed on our website that players participating in such tournaments are liable for disciplinary proceedings and cautioned them against participating.", "Despite this some players have participated in unauthorized tournaments and as such they seized to become our members.", "The Federation is not duty bound to offer secretarial services to these players.", "Moreover, the Federation pays a fee to each of our members to the FIDE annually.", "Our Central Council has decided to inform FIDE about the players who are no longer our members and to withdraw their ratings.", "They are free to play in tournaments not approved by us.", "We cannot stop them in playing unapproved illegal tournaments.", "But they cannot continue to be our members.", "So it is wrong to say that our actions are undemocratic or illegal.", "We enclose the players registration form wherein the players have to sign a declaration stating that they will not play in unauthorized tournaments, is highlighted for your immediate reference.", "We are also enclosing a copy of our notification on our website cautioning the players against participating in unauthorized illegal tournaments.", "The aforesaid conduct or stand of respondent number 2 is not denied by learned counsel for respondent number 2 In fact, she has drawn my attention to the declaration that chess players make at the time of seeking registration.", "The said declaration, inter alia reads as follows:- I also declare that I shall abide by the rules and regulations and the latest amendments and decisions of the State District Chess Association Federation as the case may be and cooperate with the officials in participating in State and National Tournaments Championships.", "She has also drawn my attention to the annexure to the constitution and byelaws of respondent number 2 which, inter alia provides in clause(z) as follows:- No player shall participate in any tournament not authorized by All India Chess Federation or by its affiliate members or District Associations and units affiliated to them.", "The above violation shall attract disciplinary proceedings including cash penalties apart from debarring from participating in any tournaments in future.", "Learned counsel for respondent number 2 submits that there is no challenge by the petitioner to the constitutional byelaws of respondent number 2 in the present petition and even if such a challenge were to be raised, this is not the right forum.", "She also submits that respondent number 1 does not retain any supervisory jurisdiction over respondent number 2.", "Consequently, this Court cannot issue any direction to respondent No. 1, as prayed for in this petition.", "She further submits that respondent number 2 is not even located within the jurisdiction of this Court and, even according to the petitioner, no relief is directed against respondent number 2 directly.", "The prayer made in the petition is directed only against respondent number 1, though it affects respondent No. 2 as well.", "The petitioner indeed has not been able to point out any statutory obligation on the part of respondent number 1 to issue the directions as sought for in this petition pertaining to respondent number 2 In the absence of such authority and responsibility vested in respondent number 1, this Court is not inclined to entertain the present writ petition and grant the relief as sought for in this petition.", "However, in my view, the matter does not end there.", "Prima facie, it appears to me that the endeavour of respondent number 2 appears to be to exercise its monopolistic and dominant position to stifle the growth of any other association of chess players, by threatening the chess players registered with it, with disciplinary action expulsion and a virtual boycott in case they participate in tournaments organized by such other associations.", "The policy and conduct of respondent number 2 may, therefore, call for examination by the Competition Commission constituted under the Competition Act, 2002.", "Learned counsel for the petitioner has relied upon the decision of the Supreme Court in State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others,  : AIR 2010 SC 1476.", "The issue considered by the Supreme Court in this decision was whether the High Court, in exercise of this jurisdiction under Article 226 of the Constitution has the power to direct the CBI to investigate a case within its territorial jurisdiction without the concurrence of the State Government, as is required under Section 6 of the Delhi Special Police Establishment Act, 1946 under which the CBI has been constituted.", "The Supreme Court has held that, in deserving and exceptional cases, the Court may direct the CBI to cause an investigation to be made in such like cases.", "Learned counsel for respondent number 2 has sought to explain that under the scheme of things, as it exists not only in this country, but internationally, only one federation is recognized at the district, state and national level- which also obtains recognition from the international body pertaining to the discipline of sport in question.", "By reference to the guidelines, she submits that only that sports federation, which is recognized by the concerned international sports council, is granted national recognition by the Government of India.", "The issue is not about the recognition of respondent number 2 as the NSF.", "The issue is with regard to the right of the players of chess to form another association and to organize tournaments in the country without the involvement of or the blessings of respondent number 2.", "The issue is with regard to the right of the players to freely participate in tournaments so organized, without the fear of being hounded by respondent number 2 and without the fear of the Sword of Damocles falling on their heads, if they participate in such so-called illegal or unauthorized tournaments.", "Respondent number 2 has been given the mandate to select the players who would eventually be entitled to participate in international tournaments.", "Respondent number 2 also flexes its muscles by instructing FIDE to remove the ranking of the chess players who participate in unauthorized or illegal tournaments.", "Therefore the dependence of all players on respondent number 2 for registration cannot be overemphasized.", "I have put it to learned counsel for respondent number 2 as to why this Court should not refer the constitutional provisions, rules and regulations and the aforesaid conduct and practice of respondent number 2 for investigation and inquiry by the Competition Commission constituted under the Competition Act, 2002, as I am inclined to do so.", "Learned counsel for respondent number 2 submits, by reference to the Statement of Objects and Reasons, and the preamble of the Competition Act, that the said Act has been enacted to deal with commercial matters only.", "The Statement of Objects and Reasons of the said Act shows that the said Act has been enacted by the Parliament as a result of the opening up of the economy, in pursuit of globalization.", "The purpose is to gear up the Indian market to face competition from within, and outside.", "The Preamble of the Act provides that the Act is enacted in view of the economic development of the country, to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried out by other participants and markets in India.", "She also refers to the judgment of the Supreme Court in Competition Commission v. Steel Authority of India Limited and Another,  : (2010) 10 SCC 744, wherein the Supreme Court sets out the background in which the Competition Act has been enacted and the purpose for which it has been enacted.", "Ms. Manmeet Arora, submits that respondent number 2 NSF is not covered by the Competition Act.", "She further submits that the power to make a reference under Section 19(1)(b) of the Competition Act is vested with the Central Government, or the State Government or the statutory authority.", "She submits that the expression statutory authority is defined in Section 2(w) of the Act to mean any authority, board, corporation, council, institute, university or any other body corporate established by or under any Central, State or Provincial Act for the purposes of regulating production or supply of goods or provision of any services or markets therefore or any matter connected therewith or incidental thereto.", "She submits that this Court is not a statutory authority as it is constituted under the Constitution of India.", "She further submits that the reference can be made by a statutory authority under Section 21 of the Act.", "This Section postulates that where the statutory authority, during the course of any proceedings before it, is inclined to make any decision which would be contrary to the provisions of the Competition Act, such authority may make a reference to the Competition Commission.", "Upon receipt of such reference, the Competition Commission is required to give its opinion and to send the same to the statutory authority.", "She submits that this Court is in the process of disposing of this petition and the situation contemplated by Section 21 of the Act does not exist in the facts of this case.", "She submits that the opinion of the Competition commission is not binding on this Court.", "In fact, the decisions of the Competition Commission are subject to judicial review before this Court.", "She also submits that this Court is not exercising territorial jurisdiction over respondent number 2 and, therefore, this Court has no jurisdiction to refer the case of respondent number 2 for examination by the Competition Commission.", "Learned counsel for the respondent submits that the decision in State of West Bengal (supra) is of no avail to the petitioner for the reason that the issuance of the direction by the High Court for the conduct of investigation by the CBI was upheld in the peculiar circumstances of that case.", "It was found, as a matter of fact, that the local police was not investigating the case which involved the death of eleven persons while few others were missing The allegation in that case was that the ruling party in the State was not interested in the conduct of fair and local investigation.", "She submits that it is open to the petitioner to approach the Competition Commission on its own and this Court should not, therefore, make a reference to the Commission under Article 226 of the Constitution.", "She also relies on T.C.Thangaraj P.Suganthi Anr v. V. Engammal Ors.,  : 2011(8) Scale 120, wherein the Supreme Court reversed the decision of the High Court directing investigation by the CBI in a case where the allegation was that, since one of the accused was a police officer, the local police was not conducting the investigation properly.", "The Supreme Court held that if the High Court found that the investigation was not being completed because one of the accused was an Inspector of Police, the High Court could have directed the Superintendent of Police to entrust the investigation to an officer, senior in rank to the Inspector of Police under Section 154(3) Cr.", "P.C and not to the CBI.", "The Supreme Court also referred to Section 156(3) of the Cr.", "P.C which provides a check on the performance by the police of their duties, and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the Police to carry out the investigation properly, and can monitor the same.", "In her rejoinder, learned counsel has drawn my attention to Section 2(h) of the Competition Act, which defines the expression enterprise to mean a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "The expression activity has been defined to include profession or occupation.", "Respondent number 2, admittedly, charges a registration fee on an annual basis.", "She submits that respondent number 2 also charges fee from players to participate in tournaments organised by it.", "Section 2(f) defines the expression consumer to, inter alia, mean, any person who (i)-------------------------------------------------------------- hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use It is argued that when the departments of the government, engaged in, inter alia, provision of services of any kind are covered by the expression enterprise, certainly respondent number 2 cannot escape from the scope of that expression.", "It is argued that respondent number 2 itself claims to be rendering service to the players registered with it for a charge, and the petitioners are the consumers of the said services.", "Respondent No. 2, admittedly, charges a registration fee on an annual basis.", "She submits that respondent number 2 also charges fee from players to participate in tournaments organized by it.", "It is, therefore, argued that respondent number 2 is covered under the Competition Commission Act, 2002.", "She further submits that the caution that the High Court needs to exercise, in exercise of its jurisdiction under Article 226, while referring a case for investigation to the Competition Commission is not comparable to the situation where the High Court seeks to substitute the CBI as the investigating agency.", "This is because the said direction of the Court seeks to substitute the normal investigating agency i.e the local police concerned with the CBI, and that too without the concurrence of the State Government.", "She submits that under Section 19 of the Competition Act, the power of the Commission to cause an investigation can be exercised suo moto or upon information being received from any person, consumer or their association or trade association.", "When any person or consumer can seek investigation of a case by the CCI, certainly this Court, in appropriate cases, can ask the CCI to look into a case.", "Having heard learned counsel for the parties, prima facie, it appears to me that respondent number 2 is rendering services to the petitioners and to all others who are registered with it as chess players.", "The responsibilities of respondent number 2 as an NSF are set out in the guidelines issued by respondent number 1, some of which have already been referred to earlier.", "Admittedly, respondent number 2 organises chess tournaments and provides technical support and expertise for conduct of such chess tournaments.", "That, in my prima facie view, would constitute service rendered by respondent number 2 to the players who are registered with it.", "Such service is being rendered for a consideration received from the players, as is evident from the registration form, a copy whereof has been filed on record by respondent number 2.", "It is also borne by respondent number 1 for the benefit of all chess players who provides grants to respondent number 2.", "Respondent number 2, prima facie, would also fall within the expression enterprise as used in the Act which is very widely worded to even include a person or a department of the government rendering services of any kind and excludes only those activities of the government which are relatable to sovereign functions of the government and all activities carried out by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "Respondent No. 2 does not fall in any of the said exceptions.", "As aforesaid, it is engaged in rendering services of a kind.", "The reference to the Statement of Objects and Reasons only shows that the Competition Act came to be enacted in the wake of globalization and opening up of Indias economy.", "However, the said Act was also enacted to replace the obsolete Monopolies and Restrictive Trade Practices Act, 1969 which empowered the MRTP commission to enquire into monopolistic and unfair trade practices.", "The reliance on the Statements and Objects and Reasons of the Competition Act by respondent number 2 is also of no avail in view of the express provisions contained in the said Act which do not show that the provisions of the said Act are applicable only to commercial establishments who provide goods or render services.", "In Tribhuban Parkash v. Union of India,  : AIR 1970 SC 540, the Supreme Court held that only when there is a doubt as to the meaning of a provision, recourse may be made had to the preamble to ascertain the reasons for the enactment and hence the intention of the Parliament.", "If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble.", "In other words, Preamble may assist in ascertaining the meaning but it does not affect clear words in a statute.", "The courts are thus not expected to start with the preamble for construing a statutory provision nor does the mere fact that a clear and unambiguous statutory provision goes beyond the preamble give rise by itself to a doubt on its meaning.", "Since the meaning of the expression enterprise, service and consumer as used in the Competition Act is very clear, I am not inclined to accept the submission of respondent number 2 founded upon a reading of the Statement of Object and Reasons and Preamble to the Competition Act, 2002.", "The Preamble of the Competition Act, when closely read, shows that the said Act has been enacted to provide, keeping in view the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.", "(emphasis supplied).", "Therefore, one of the purposes of the said Act is to prevent practices having adverse effect on competition.", "The said practice need not necessarily be related to trade or commerce.", "The definition of the expression enterprise as used in the Competition Act read with the definition of service thereof, in my view, clearly shows that the respondent No. 2 is an enterprise which is covered by the said provisions.", "The allegation against respondent number 2 is that respondent number 2, by virtue of its agreement with the petitioners, is seeking to control the provision of services which is causing adverse effect on competition within India, in asmuch, as, the chess players registered with respondent number 2 are not free to form another association or to organize tournaments and participate therein, without facing the consequence of losing their registration with respondent number 2 which is the nationally recognized sports federation for the sports of chess.", "The allegation also is that respondent number 2 is abusing its dominant position as the NSF.", "The submission of learned counsel for respondent number 2 is that, in terms of its mandate, respondent number 2 is regulating the sport of chess by preventing players registered with it from participating in chess tournaments organized with other chess associations and organizations which are not recognized by respondent number 2.", "she submits this is done to protect the interest of the players from being exploited by such other associations organizations.", "Whether or not the said activity of respondent No. 2 falls foul of the Competition Act would be an issue to be determined by the Competition Commission, and I am not required to go into the said issue.", "The power of this Court under Article 226 of the Constitution of India extends to the issuance of appropriate directions, orders or writs for enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose.", "Since in the present case the petitioner has brought to this Courts notice the aforesaid state of affairs in relation to respondent number 2, this Court is of the opinion that the said aspects need thorough investigation under the provisions of the Competition Act by the Competition Commission.", "There could be breach of the petitioners fundamental rights to freedom, resulting from the policies and practices of respondent number 2, as guaranteed under Article 19(1)(c) and 19(1)(g) of the Constitution of India.", "The Supreme Court in State of West Bengal (supra) has recognized the power of the High Court, in appropriate cases, to require the CBI to cause an investigation in relation to a case falling within its territorial jurisdiction.", "If the High Court can direct the investigation to be made by the CBI in appropriate cases, whereby the provision of Section 6 of the Delhi Special Police Establishment Act, 1946 is over ridden, certainly the High Court can direct the making of a reference to the Competition Commission under Section 19 of the Competition Act, particularly when the Competition Commission can cause the investigation to be made not only suo motu, but on receipt of intimation from any person.", "In fact, in State of West Bengal (supra), the Supreme Court in paragraph 45 observed that being the protectors of civil liberties of the citizens, the Supreme Court and the High Courts have not only the power and jurisdiction, but also an obligation to protect the fundamental rights, guaranteed by Part III in general, and under Article 21 of the Constitution in particular, zealously and vigilantly.", "The judgment in the case of T.C.Thangaraj (supra) has no application in the light of the aforesaid discussion and the substantially different positions of the Competition Act, 2002 and the Delhi Police Establishment Act whereunder CBI is constituted.", "I, therefore, direct the Competition Commission to enquire into the alleged contravention of the provisions of Section 3 and Section 4 by respondent number 2 by its aforesaid constitutional provisions and conduct under Section 26 of the Competition Commission Act, 2002.", "The petitioner may appear before the Commission on 28.11.2011.", "The petitioner shall present before the Commission a memorandum containing its grievances in this respect on the said date.", "It is made clear that observations made by me 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+{"id": "HC_Hyundai_Motor_India_Limited_and_Ors_vs_CompetitionTN2015030415195912187COM109861", "text": ["Ramasubramanian, J. 1 .", "One Shamsher Kataria of New Delhi lodged a complaint on 17.01.2011 with the Competition Commission of India, under Sections 3 and 4 read with Section 19(1)(a) of the Competition Act, 2002, alleging abuse of dominant position and the practice of anti-competitive activities by three Automobile Manufacturers namely: (1) Honda Siel Cars India Limited (2) Volkswagen India Private Limited and (3) Fiat India Automobiles Limited.", "In the said complaint, the complainant Mr. Shamsher Kataria sought the reliefs of (1) an enquiry into the trade practices of the respondents and or any other vehicle manufacturer (2) a restraint order against the respondents to cease and desist from restrictive, unfair and monopolistic trade practices and (iii) other appropriate directions.", "The complainant also filed supplementary information on 27.01.2011.", "The complaint was taken on file by the Competition Commission in Case Number 03/2011 and an order was passed under Section 26(1) of the Competition Act, 2002, on 24.02.2011 directing the Director General of Investigation to conduct an investigation into the matter and submit a report within sixty days.", "Accordingly, the Director General of the Competition Commission appears to have initiated an investigation and issued notice to the three respondents, named in the complaint.", "Thereafter, the Additional Director General filed a report before the Competition Commission on 19.04.2011 stating that the investigation made by him revealed that similar practices are adopted by other car manufacturers in India in the areas of after sales service and procurement of spare parts.", "Therefore, the Additional Director General sought the approval of the Competition Commission to expand the scope of the investigation to cover other car manufacturers.", "On the note submitted by the Additional Director General on 19.04.2011, the Competition Commission passed an order on 26.04.2011, approving the request for expansion of the scope of the investigation.", "It was actually indicated in the said order of the Competition Commission that whenever an investigation is ordered, it need not be confined to the parties mentioned in the information.", "Therefore, based upon the order of the Competition Commission dated 26.04.2011, the Director General ordered a notice dated 04.05.2011, to Hyundai Motor India Limited, under Section 36(2) read with Section 41(2) of the Competition Act, 2002.", "Immediately, the company appears to have submitted a request for inspection of the records.", "After the office of the Competition Commission gave a Compact Disk containing soft copies of the investigation report of the Director General, the petitioner sought copies of the note placed by the Additional Director General on 19.04.2011 and the order passed by the Competition Commission on 26.04.2011.", "After getting the copies of those documents, the company namely Hyundai Motor India Limited, came up with two writ petitions in W.P. Numbers 31808 and 31809 of 2012, challenging respectively: (i) the order of the Competition Commission dated 26.04.2011 and (ii) the notice issued by the Director General on 04.05.2011.", "These writ petitions were admitted on 28.11.2012.", "Subsequently, there was yet another writ petition in W.P. Number 26488 of 2013 filed by yet another car manufacturer by name Nissan Motors India Private Limited, challenging the very same order of the Competition Commission dated 26.04.2011 passed in the very same Case Number 03/2011, allowing the request of the Director General to expand the scope of the investigation.", "Therefore, the said writ petition was also tagged along with the two writ petitions filed by Hyundai Motor India Limited. 6 .", "Ultimately, by a final order dated 30.06.2014, all the three writ petitions were dismissed by a learned Judge, holding that the petitioners have an effective alternative remedy of approaching the Competition Appellate Tribunal.", "However, as against the said order of the learned Judge, one of the parties namely Nissan Motors India Private Limited filed an Intra Court Appeal in W.A. Number 1021 of 2014.", "The said appeal was allowed by a Division Bench of this Court by an order dated 06.08.2014, on the short ground that as against the order expanding the scope of investigation passed by the Competition Commission, no appeal would lie to the Appellate Tribunal under Section 53B of the Competition Act, 2002.", "Therefore, the Division Bench remitted the matter back to the single Judge for disposal of the writ petitions on merits.", "After the order of remand dated 06.08.2014 passed by the Division Bench, but before the writ petitions could be taken up for disposal, the Competition Commission passed a final order dated 25.08.2014 as against 14 car manufacturers including Nissan Motors India Private Limited.", "Therefore, the writ petition W.P. Number 26488 of 2013 filed by Nissan Motors India Private Limited became infructuous and hence the same was dismissed by me with liberty to the company to challenge the final order of the Competition Commission dated 25.08.2014 before the Competition Appellate Tribunal.", "However, three car manufacturers namely (1) Maruti Suzuki India Limited (2) BMW India Private Limited and (3) Mercedes Benz India Private Limited appear to have filed writ petitions, instead of the statutory appeals, before the High Court of Delhi in W.P. (Civil) Numbers 5145, 6359 and 6560 of 2014.", "The writ petition filed by BMW India Private Limited in W.P. (Civil) Number 6359 of 2014 was dismissed by the Delhi High Court by an order dated 22.09.2014 on the short ground that it would be appropriate for them to approach this Court (Madras High Court) in view of the heavy reliance placed by them upon the interim order passed by the Madras High Court on 24.09.2013.", "Therefore, in pursuance of the order dated 22.09.2014, passed by the Delhi High Court, BMW India Private Limited has come up with a fresh writ petition in WP.", "Number 26986 of 2014 before this Court, challenging the order of the Competition Commission dated 26.04.2011, permitting the Director General to include all car manufacturers within the scope of the enquiry conducted by them.", "On this writ petition notice was ordered on 10.10.2014.", "Thereafter, the same was tagged along with the two writ petitions filed by Hyundai Motor India Limited in W.P. Number 31808 and 31809 of 2012.", "I have heard Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioners and Mr. G. Rajagopalan, learned Additional Solicitor General appearing for the respondents, assisted by Mr. P. Mahadevan, learned Senior Central Government Standing Counsel.", "As we have seen earlier, all the three writ petitions challenge either the order of the Competition Commission dated 26.04.2011 permitting the Director General to expand the scope of the investigation undertaken by him or the notice issued by the Director General pursuant thereto.", "Out of the 3 writ petitions on hand, 2 are by Hyundai against whom no final order has yet been passed.", "The third writ is by BMW which has actually suffered a final order, but it has chosen to challenge the very initiation of the proceedings, instead of challenging the final order.", "The challenge in all these writ petitions, is primarily on three grounds namely: that the Director General of the Competition Commission has no suo motu power to initiate an investigation that even for the Commission to order an investigation, the formation of an opinion regarding the prima facie case is a sine quo non and that the Director General has overstepped the jurisdiction vested in him by law.", "Contention Number (i): The first contention of the learned Senior Counsel for the petitioners is that the Director General does not have the power to initiate investigation suo motu.", "The Competition Act, 2002 was enacted on the basis of the S.V.S. Raghavan Committee Report.", "The said report of the High Level Committee on Competition Policy and Law indicated clearly in para 6.1.8 that the Director General will not have suo motu powers on investigation.", "Even the Standing Committee, which examined the Draft Bill, made it clear in its report tabled in the Lok Sabha on 21.11.2002 that the Director General would not have suo motu power of investigation, though under The Monopolies and Restrictive Trade Practices Act, 1969, he had such a power.", "Consequently the Preamble as well as the Statements of Objects and Reasons of the Competition Act, 2002 made it clear that the Director General can conduct an investigation only as per the directives of the Commission and not suo motu.", "Therefore, on the basis of the contents of the S.V.S. Raghavan Committee Report, the report of the Standing Committee and the Statements of Objects and Reasons, it is contended by Mr. Vijay Narayan, learned Senior Counsel for the petitioners that the Director General erred in initiating an investigation suo motu against all the car manufacturers, when the complaint of Shamsher Kataria was only against three car manufactures.", "The learned Senior Counsel relies upon a decision of the Delhi High Court in Grasim Industries Limited v. Competition Commission of India  : 2014 (124) SCL 79 (Delhi) : LNIND 2013 DEL 1717 : 2014) 41 Taxman (on 333), wherein it was held that the Director General is obliged to confine his report only to the allegations made in the information or the reference received by the Commission and that he is not entitled to travel outside the scope of the same.", "Drawing my attention to Section 19 of the Competition Act, 2002, the learned Senior Counsel for the petitioners contended that the Director General can collect information only from three sources of information indicated in Section 19.", "But, by making a request to the Competition Commission to widen the scope of the investigation, the Director General became an informant, which is prohibited by Object Number 5 of the Preamble to the Act.", "I have carefully considered the above submissions.", "I have no doubt in my mind that the Director General cannot initiate an investigation suo motu.", "This is very clear from paragraph 4.4.7 of the Ninety-Third Report of the Department Related Parliamentary Standing Committee on Home Affairs submitted to the Chairman of the Rajya Sabha in August 2002.", "The Report of the Standing Committee was actually in tune with the report of the S.V.S. Raghavan Committee.", "Therefore, the Act does not enable the Director General to initiate an investigation suo motu.", "But, the question is as to whether in the case on hand, what was done by the Director General would tantamount to suo motu initiation of investigation or not.", "As pointed out earlier, one Mr. Shamsher Kataria filed a complaint on 17.01.2011, followed by a supplementary complaint on 27.01.2011, before the Competition Commission, only as against three care manufacturers namely (1) Honda Volkswagen and (3) Fiat.", "After taking note of the information provided by the complainant and the materials supplied by him, the Commission passed an order on 24.02.2011, directing the Director General to conduct an investigation.", "In the course of investigation, the Director General allegedly found that the practices adopted by the three respondents before the Competition Commission, were just the same as those carried on by the other car manufacturers.", "Therefore, the Director General placed a report on 19.04.2011, seeking the views of the Competition Commission.", "On the said report, the Competition Commission passed the order dated 26.04.2011 permitting the Director General to include within the scope of the investigation, the other car manufacturers also.", "Keeping the above sequence of events in mind, if we now look at the records, the validity of the first contention raised by the petitioners can be tested.", "In paragraph 28 of the complaint dated 17.01.2011 lodged by Mr. Shamsher Kataria, he had listed out the reliefs sought by him.", "The reliefs mentioned in column Numbers (a), (c) and (d) read as follows:- (a) hold an enquiry into the trade practices of the Respondents and or any other vehicle manufacturer and their authorised dealers service centers indulging in similar activities as detailed herein and give a finding that such parties have committed restrictive and or unfair trade practices in contravention of the Act.", "(c) pass appropriate orders directing the Respondent Number 1-3 and other contravening vehicle manufacturers and their authorised dealers service centers to provide spare parts, technical information, diagnostic tools, software and any other information and goods required for the repair, maintenance and servicing of the vehicles to independent repair workshops and also make the same freely available in the open Indian automotive after market (d) pass appropriate orders directing the Respondents and other contravening vehicle manufacturers to provide the relevant spare parts, diagnostic tools, technological information, technical training and equipment for repair, maintenance and service of the vehicles manufactured by them at the same time as it is made available to their authorised dealers service centers.", "From the very prayers made by the complainant before the Competition Commission, it will be clear that he wanted an investigation into the monopolistic, restrictive or unfair trade practices or anti corruption competitive practices adopted by all car manufacturers.", "Though he named only three car manufacturers, against whom, he had an immediate cause of action, the prayers in his complaint made it clear that he wanted the scope of the investigation to cover any other vehicle manufacturer.", "Therefore, the contention that the main complaint was only against three car manufacturers and that the Director General suo motu roped in other car manufacturers may not be correct.", "Keeping this factual aspect in mind, let me now go back to the provisions of the Act.", "The preamble of the Act makes it clear that the Commission was established with a view to prevent practices having adverse effect on competition and to protect the interests of consumers.", "The Act is consumer-centric.", "By denouncing anti competitive practices, the Act intends to promote the interests of consumers.", "The Act seeks to achieve its objects by establishing a commission known as the Competition Commission of India.", "Chapter III of the Act lays down the procedure for establishment of the Competition Commission, its composition and the method of appointment and conditions of service of its Chairperson and the Members.", "Chapter IV of the Act deals with the duties, powers and functions of the Commission.", "Section 18 makes it the fundamental duty of the Commission to eliminate practices having adverse effect on competition and to promote and sustain competition and to protect the interests of consumers.", "These duties are to be discharged by the Commission by various methods, one of which is by making an inquiry into allegations of contravention of the provisions of the Act.", "Section 19(1) of the Act prescribes as to how the Commission may inquire into the alleged contravention of the provisions of the Act.", "It reads as follows: The Commission may inquire into any alleged contravention of the provisions contained in Sub-Section (1) of Section 3 or Sub-Section (1) of Section 4 either on its own motion or on-- (a) receipt of any information, in such manner and accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association or (b) a reference made to it by the Central Government or a State Government or a statutory authority.", "A careful reading of Section 19(1) would show that an inquiry by the Commission may be carried out by three different methods.", "They are (i) an inquiry suo motu (ii) an inquiry upon receipt of information from any person, consumer or their association or trade association and (iii) an inquiry upon a reference made to it by the Central Government or a State Government or a Statutory Authority.", "The methodology to be adopted for initiating an enquiry on its own motion, is not stipulated in Section 19(1).", "Similarly, the methodology to be adopted for initiating an inquiry, upon a reference made to it by the Central Government or State Government or a Statutory Authority, is also not spelt out in Section 19(1)(b).", "It is only in cases falling under Section 19(1)(a) where an inquiry is initiated on receipt of any information that two requirements are to be satisfied.", "One relates to the person from whom such information was received and the other relates to the manner in which such information should have been received.", "The expression receipt of information appearing in Section 19(1)(a) is regulated by what follows.", "The information should have been received in such a manner and should be accompanied by such fee as may be prescribed by the Regulations.", "Additionally, the information should have been received from any person, consumer or their association or trade association.", "If both these requirements are not satisfied, an inquiry under Section 19(1)(a) cannot be initiated.", "This is on account of the fact that the Act defines even the expressions consumer and person.", "Section 2(f) defines a consumer to mean a person, who buys any goods for a consideration or hires or avails of any service for a consideration.", "The definition of the word consumer in Section 2(f) is in pari materia with the definition of the same expression in the Consumer Protection Act, 1986.", "The expression person is defined in Section 2(1) to include (i) an individual a Hindu undivided family (iii) a company (iv) a firm (v) an association of persons or a body of individuals whether incorporated or not in India or outside India (vi) any corporation established by or under any Central or State Government or Provincial Act or by a Government company as defined in Section 617 of the Companies Act, 1956 (vii) any body corporate incorporated by or under the laws of a country outside India (viii) a cooperative society registered under any law relating to cooperative societies (ix) a local authority (x) every artificial juridical person not falling within any of the preceding sub-clauses.", "On the basis of the definition of the expression consumer and person appearing in Sections 2(f) and 2(1), it is contended by Mr. Vijay Narayan, learned Senior Counsel appearing for the petitioners that the Director General, who sought permission to expand the scope of the investigation, will not fall within the purview of any one of these two expressions.", "Therefore, the information furnished by the Director General in the note submitted to the Competition Commission on 19.4.2011 does not qualify as information within the meaning of Section 19(1)(a), as it was not received either from a person as defined in Section 2(1) or from a consumer as defined in Section 2(f).", "It is the further contention of Mr. Vijay Narayan, learned Senior Counsel that the Competition Commission did not suo motu order the expansion of the scope of the enquiry.", "Therefore, the impugned order will not also come within the purview of suo motu initiation of enquiry by the Commission.", "Hence, the only possibility for the respondents, according to the learned Senior Counsel for the petitioners, is to fall back upon Section 19(1)(a).", "But, to come within the purview of Section 19(1)(b), the reference should have been made either by the Central Government or by the State Government or by a Statutory Authority.", "In this case, no reference was made to the Competition Commission either by the Central Government or by the State Government.", "According to the learned Senior Counsel for the petitioners, the Director General, who sought the permission of the Competition Commission to expand the scope of the enquiry, would not even fall under the category of Statutory Authority.", "The expression Statutory Authority is defined in Section 2(w) as follows : Statutory authority-means any authority, board, corporation, council, institute, university or any other body corporate, established by or under any Central, State or Provincial Act for the purposes of regulating production or supply of goods or provision of any services or markets there for or any matter connected therewith or incidental thereto.", "To come within the definition of the expression Statutory Authority, the following criteria should be fulfilled: the Authority should be a Board, Corporation, Council, Institute, University or any other body corporate It should have been established by or under any State or Central or Provincial Act It should have been so established for the purpose of regulating production or supply of goods or provision of any services or markets therefor and It should have been established at least for any matter indicated therewith or incidental thereto.", "According to the learned Senior Counsel for the petitioners, the Director General is not an Authority established for the purpose of regulating the production or supply of any goods or services and therefore, he is not a Statutory Authority within the meaning of Section 19(1)(b) read with Section 2(w).", "To test whether or not the above contention of the learned Senior Counsel for the petitioners is correct, let us now look at the provisions that deal with the post of Director General.", "The Director General is actually appointed under Section 16(1) of the Act by the Central Government by Notification in the Gazette.", "Section 16(1) indicates that the purpose of his appointment is to render assistance to the Commission in conducting inquiry into the contravention of any of the provisions of the Act and for performing such other functions as may be provided by or under the Act.", "The duties of the Director General are enumerated in Chapter V of the Competition Act, 2002.", "Section 41(1) obliges the Director General, to assist the Commission in investigating into any contravention of the provisions of the Act or any Rules or Regulations made thereunder.", "But, he shall do so only when so directed by the Commission.", "But, Sub-Section (2) of Section 41 confers upon the Director General, the same powers as are vested upon the Commission under Section In other words, the Director General has powers to summon and enforce the attendance of any person to examine him, to order the discovery and production of documents, to receive evidence on affidavit, to issue Commissions for the examination of witnesses or documents and to requisition the production of any public record or document.", "The provisions of Sections 240 and 240A of the Companies Act, 1956 are made applicable to an investigation made by the Director General, as they would apply to an Inspector appointed under the Companies Act.", "As a matter of fact, if a person fails to comply, without reasonable cause, with a direction given by the Director General in terms of Section 41(2), such a person is liable to be punished with fine.", "Therefore, it is clear that the role of the Director General is actually to assist the Competition Commission in the effective discharge of its duties.", "Interestingly, there are four places in the Act where a reference is made to a Statutory Authority.", "Section 2(w) defines the expression Statutory Authority.", "Section 19(1)(b) speaks about the initiation of inquiry pursuant to a reference made to the Commission by a Statutory Authority.", "Apart from these two places, Section 21 of the Act also refers to Statutory Authority.", "Under Section 21(1), any Statutory Authority may make a reference of an issue to the Commission, when, in the course of a proceeding before it, a issue is raised by any party that any decision, which such Statutory Authority proposes to take, would be contrary to any of the provisions of the Act.", "Section 21 reads as follows : 21.(1) Where in the course of a proceeding before any statutory authority an issue is raised by any party that any decision which such statutory authority has taken or proposes to take is or would be, contrary to any of the provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission: Provided that any statutory authority, may, suo motu, make such a reference to the Commission.", "On receipt of a reference under sub-section (1), the Commission shall give its opinion, within sixty days of receipt of such reference, to such statutory authority which shall consider the opinion of the Commission and thereafter, give its findings recording reasons therefore on the issues referred to in the said opinion.", "The fourth place, in which, a reference is made to a Statutory Authority is Section 21A inserted by the Competition (Amendment) Act, 2007.", "A careful look at Sections 21 and 21A would show that one is the mirror image of the other.", "I have already extracted Section 21 in the preceding paragraph.", "Section 21A reads as follows: 21A.(1) Where in the course of a proceeding before the Commission an issue is raised by any party that any decision which, the Commission has taken during such proceeding or proposes to take, is or would be contrary to any provision of this Act whose implementation is entrusted to a statutory authority, then the Commission may make a reference in respect of such issue to the statutory authority: Provided that the Commission, may, suo motu, make such a reference to the statutory authority.", "On receipt of a reference under sub-section (1), the statutory authority shall give its opinion, within sixty days of receipt of such reference, to the Commission which shall consider the opinion of the statutory authority, and thereafter give its findings recording reasons therefore on the issues referred to in the said opinion.", "The Statutory Authorities referred to in Sections 21 and 21A should naturally be those other than the Authorities functioning under the Competition Act, 2002.", "Otherwise, Sub-Section (2) of Sections 21 and 21A cannot be given a meaningful interpretation.", "If we have a careful look at Section 21(2), it will be clear that the Statutory Authority referred to in Section 21, is a Statutory Authority which is vested with a power to record findings on the basis of the opinion of the Commission.", "If the expression Statutory Authority appearing in Section 21 includes the Director General also, then the Director General should have the authority to give findings.", "But that is not a scope of the Act.", "The Director General is an authority constituted to assist the Commission.", "But the Statutory Authority referred to in Section 21 is one which can derive assistance from the Competition Commission.", "Similarly, the Statutory Authority contemplated in Section 21A is one from whom the Commission itself can seek an opinion.", "The Director General under the Act is not competent to give any opinion except conducting an investigation and assisting the Commission in the enquiry initiated under Section 19.", "Therefore, Section 19(1)(b) may have to be read and understood in the context of Section 21 and 21A of the Competition Act, 2002.", "If so done, it will be very clear that the word Statutory Authority found in Section 19(1)(b), Section 21 and Section 21A cannot include the Director General.", "There is yet another reason for my conclusion.", "The Proviso to Section 21(1) empowers a Statutory Authority to make a reference suo motu to the Commission.", "But the Director General is not empowered to initiate an investigation suo motu.", "Therefore, the Director General cannot come within the definition of the expression Statutory Authority.", "Therefore, I have no difficulty in accepting the contention of the learned Senior Counsel for the petitioner that the case on hand will not come within the four corners of Section 19(1)(b).", "The expansion of the scope of the enquiry to include all car manufactures has not been done by the Competition Commission suo motu, so as to fall within the main part of Section 19(1).", "Therefore, the order of the Competition Commission permitting the Director General to expand the scope of the enquiry, should either fall within Section 19(1)(a) or should be held to be invalid.", "Hence, let me again go back to Section 19(1)(a).", "Under Section 19(1)(a), an enquiry can be ordered on receipt of any information, in such manner and accompanied by such fee as may be determined by Regulations from any person, consumer or their association or Trade Association.", "But the argument of the learned Senior Counsel for the petitioner is that the case cannot fall under Section 19(1)(a), in view of the fact (i) that the receipt of information was not in a manner prescribed by Regulations and accompanied by the fee prescribed in the Regulations and (b) that the receipt of information was not from any person or consumer or their association or Trade Association.", "It is true that the Commission was in receipt of some information from the Director General, when the Director General filed a memo seeking permission to rope in other car manufactures.", "But the contention that it was not in such manner and accompanied by such fees as may be determined by Regulations, may not really tilt the balance.", "If the Commission has to receive information from the list of persons indicated in Section 19(1)(a), a procedure is prescribed by the Regulations.", "But the Regulations do not prescribe any fee or method of sending information to the Commission by the Director General.", "Moreover, the manner in which information is to be furnished, as stipulated in the Regulations, is merely procedural in nature.", "The form in which information is to be provided, cannot belittle the substance of the information.", "Therefore, merely because the information furnished by the Director General was not presented in such manner and accompanied by such fee as prescribed by the Regulations, it cannot be contended that the case will not fall under Section 19(1)(a).", "In so far as the other requirements is concerned, it is true that the information should have been received from (1) any person (2) consumer (3) their association and (4) Trade Association.", "The Director General cannot come within the definition of consumer, their association or Trade Association.", "But I failed to understand why the Director General will not even come within the definition of the expression person.", "The definition of the expression person as found in Section 2(1) is very exhaustive.", "As per Section 2(1)(x), every artificial juridical person not falling within any of the sub-clauses, may fall within the definition of the expression person.", "To hold that the Director General will not come within the purview of the expression person, would be to render the entire scheme of the Act very brittle and ductile.", "Therefore, I hold on the first contention that the permission to expand the scope of the enquiry cannot be construed as the initiation of investigation suo motu by the Director General.", "So long as the Competition Commission has the power to initiate an enquiry suo motu and take the assistance of the Director General in the conduct of such enquiry and so long as there is no bar for the Director General to provide information under Section 19(1)(a) of the Act, the petitioner cannot find fault either with the Director General or with the Commission.", "In this case the Director General did not rope in other car manufactures, of his own accord.", "The Director General, by filing a memo, merely brought to the notice of the Commission that there are other car manufactures who follow the very same practices, as followed by the three Respondents named by Mr. Kataria.", "The Commission directed the Director General to include the others also within the purview of the initiation of investigation suo motu by the Director General.", "Hence, the first contention is rejected.", "Contention Number (ii): The second contention of the petitioner is that even if the Commission is to order an investigation, there must be the formation of an opinion regarding the existence of a prima facie case.", "This contention stems out of the express provisions of Section 26(1) of the Act.", "Section 26(1) reads as follows:- 26(1) On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under Section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information.", "Since Section 26(1) requires to the Commission to direct the Director General to investigate into the matter, if it is of the opinion that there exists a prima facie case, it is contented by the petitioner that the formation of opinion is a sine qua non. 4 5 .", "In Competition Commission of India v. Steel Authority of India Limited  : (2010) 10 SCC 744 : LNIND 2010 SC 850 : (2011) 2 ML J 271, the Supreme Court held that the Commission must record its reasons for forming a prima facie opinion with reference to the information furnished to the Commission.", "After pointing out in para 93 of its decision that the functions performed by the Commission are in the nature of preparatory measures in contrast to the decision making process, the Supreme court nevertheless held in para 97 that at the stage of forming a prima facie view under section 26(1), the Commission should record minimum reasons for formation of a prima facie opinion.", "Therefore, it is contended by the petitioner that since the order dated 26.04.2011 does not contain any reason and does not reflect the formation of a prima facie opinion, the impugned proceedings are vitiated.", "It is also contended by the petitioner that though the original complaint made by Mr. Kataria was against 3 named car manufactures, the Director General converted the complaint from party-centric to issue-centric.", "But if it is actually issue-centric, the Commission or the Director General ought not to have left out 12 other car manufactures.", "Since the Commission as well as the Director General did not include within the purview of the investigation, 12 other car manufactures as well as the manufactures of two-wheelers, three-wheelers etc.", ", it is contended that the investigation was not really issue-centric.", "Therefore, it is contended that the impugned order dated 26.04.2011 is not in accordance with the procedure prescribed by Section 26(1).", "The learned Senior Counsel for the petitioners also relies upon the decision of the Delhi High Court in Grasim Industries Limited v. Competition Commission (supra), wherein it was held in paragraph 10 that the Director General would have no power to undertake an investigation in respect of the complaint which the Commission did not consider while forming an opinion and directing investigation by the Director General.", "But it appears that the Delhi High court lost sight of the Proviso to sub-section (1) of Section 26.", "Though sub-section (1) mandates the Commission to form an opinion that there exists a prima facie case, before directing the Director General to cause an investigation, the Proviso makes it clear that if the subject matter of an information received by the Commission is substantially the same as has already been received, then the Commission may club both information together.", "The Proviso is of great significance.", "As a matter of fact, the Proviso was inserted under sub-section (1) of Section 26 only by the Competition (Amendment) Act, 2007.", "Prior to the Amendment under Competition (Amendment) Act, 2007, there was no Proviso under sub-section (1) of Section 26.", "Moreover, in paragraph 11 of its decision, the Delhi High Court itself gave a small leverage by pointing out that it was permissible for the Commission to come to additional conclusions on the basis of the available information.", "Therefore, the decision of the Delhi High Court does not support the petitioner in full.", "Keeping the insertion of the Proviso to Section 26(1) in mind, if we look at the facts of the present case, what had really happened was that on the original complaint as lodged by Mr. Kataria on 17.07.2011 and the supplementary complaint lodged on 27.01.2011, the Commission applied its mind and formed an opinion as required under Section 26(1) that there exists a prima facie case.", "Therefore, the Commission passed an order on 24.02.2011.", "This order is not assailed as not being in accordance with Section 26(1).", "After the Commission passed the order dated 24.02.2011, taking note of the information furnished by Mr. Kataria, the Director General gave an information by filing a memo on 19.04.2011.", "This information is treated as an additional information, as per the Proviso to Section 26(1).", "When a case falls under the Proviso to sub-section (1) of Section 26, there is no necessity to record reasons all over again for the formation of an opinion.", "The formation of an opinion on the first information itself is sufficient.", "As a matter of fact, one significant amendment made under the Competition (Amendment) Act, 2007 was that the expression complaint as found in Section 19(1)(a) was actually modified as information.", "This is why Section 26(1) which did not talk about complaint but talked only about knowledge and information was also amended to incorporate the Proviso under sub-section (1).", "The Statement of Objects and Reasons for the Competition (Amendment) Bill, 2007 shows that it was intended to enlarge the powers of the Competition Commission.", "Therefore, the second contention of the petitioner cannot also be accepted.", "Contention Number (iii): 5 4 .", "The third contention of the petitioner is that the Director General has overstepped the jurisdiction vested in him in law.", "Section 41(3) of the Competition Act, 2002 circumscribes the duties of the Director General.", "His duties are akin to that of an Inspector under Sections 240 and 240A of the Companies Act, 1956.", "The Inspector performs only a fact finding role under those provisions of the Companies Act, as held by the Supreme Court in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry  : AIR 1961 SC 29 : LNIND 1960 SC 186 : (1961) 1 ML J (Crl) 208 : (1961) 1 ML J 73.", "In other words, the contention of the petitioner is that the Director General being a subordinate to the Commission, is obliged only to do what he is told to do by the Commission.", "But in this case by filing a memo on 19.04.2011, the Director General exceeded the jurisdiction that was conferred upon him by the order of the Commission dated 24.02.2011 read with Section 41(3).", "I have carefully considered the above submissions.", "Section 41(3) of the Act merely states that the provisions of Sections 200 and 200A of the Companies Act, 1956 shall apply to an investigation made by the Director General, as they apply to an Inspector appointed under the Companies Act, 1956.", "The petitioner has lost sight of the fact that Section 41(3) is not the source of power of the Director General.", "The Director General derives his powers in terms of Section 41(2), the moment the Commission directs him to investigate into a matter under sub-section (1) of Section 41.", "He has all the powers that are conferred by the Commission under Section 36(2), by virtue of sub-section (2) of Section 41.", "In this case all that the Director General did, was to simply place an additional information before the Commission.", "The Commission then passed an order on 26.04.2011.", "Thereafter, the Director General issued a notice to the writ petitioner on 04.05.2011, only in compliance of the directions issued under Section 41(1).", "The moment the Commission passed an order directing him to expand the scope of the investigation, Section 41(1) came into play.", "Therefore, I do not think that the Director General did anything in excess of what he was directed to do by the Commission.", "As a matter of fact, sub-section (3) of Section 41 begins with a non-obstante Clause.", "Therefore, it is subject to sub-section (2) of Section 41.", "The powers conferred upon an Inspector under Section 240 and 240A of the Companies Act, 1956 are just procedural in nature.", "The power conferred under these provisions include the power (i) to require any body corporate to furnish information or to produce such books and papers as he may consider necessary (ii) to keep in his custody any books and papers (3) to examine someone on oath and (4) to seize documents.", "All that sub-section (3) of Section 41 says is that these powers can be exercised by the Director General, subject to the powers conferred by the Commission under sub-section (2) of Section 41 read with sub-section (2) of Section 36.", "Therefore, the Director General merely placed an additional information before the Commission by his memo dated 19.04.2011.", "If the Commission had not issued a direction on 26.04.2011, the Director General could not have proceeded against all other car manufactures.", "The direction issued by the Commission on 26.04.2011 would tantamount to a directions under Section 41(1).", "Therefore, the question of overstepping of jurisdiction did not arise.", "The contention that other car manufacturers and automobile manufactures have not been roped in, is actually a contention based upon Article 14.", "It is interesting to note that it is this very same contention that lead the Director General to make a request to expand the scope of the investigation.", "Therefore, this contention can always be raised by the petitioner before the Competition Commission.", "I have no problem and I suppose neither the Competition Commission nor the Director General would have any problem in a further expansion of the scope of the investigation to cover even other car manufactures and other automobile manufacturers.", "Therefore, in fine, the third contention of the petitioner is also liable to be rejected.", "The learned Senior Counsel for the petitioner placed heavy reliance upon the decision of the Delhi High Court in Grasim Industries Limited v. Competition Commission of India (supra).", "In this case, an information was received by the Competition Commission about certain practices adopted by the manufactures of man made fibres.", "The Commission formed a prima facie opinion about the existence of material to order an investigation and hence passed an order on 22.06.2011 directing the Director General to cause an investigation.", "The Director General, after investigation, filed a report that though there was no violation of Section 3(3)(a), (b) and (c), he opined that the enterprise abused its dominant position.", "The Industry filed an application for setting aside the report of the Director General, primarily on the ground that it was beyond the scope of the powers conferred upon the Director General.", "The application to set aside the report was dismissed by the Commission.", "It was that order that was challenged before the Delhi High Court.", "In other words, the petitioner before the Delhi High Court allowed the investigation to be completed and thereafter approached the Competition Commission against the findings recorded by the Director General.", "Therefore, the Court had the benefit of the report of the Director General and hence the Court observed in para 10 as follows: The scheme of the Act thus, does not permit investigation by Director General into any information which was not considered by the Commission, while forming opinion under sub-section (1) of Section 26 of the Act.", "The formation of opinion by the Commission and direction to cause an investigation to be made by the Director General being a pre-requisite condition for initiation of investigation, the Director General would have no power to undertake investigation in respect of the complaint which the Commission did not consider while forming an opinion and directing investigation by the Director General.", "If the Director General investigates an information which the Commission did not consider in the first instance, while forming opinion with respect to existence of a prima facie case, such an act on his part shall be ultra vires his power under the Act and, therefore, clearly illegal.", "It is settled legal proposition that when the provisions of a Statute requires an act to be done in a particular manner, such an act can be done only in the prescribed manner and not otherwise.", "Since the Act requires the Director General to investigate only such information which was considered by the Commission, while forming its opinion with respect to existence of a prima facie case, it cannot, of its own carry out investigation based upon an information which was not available to the Commission.", "It would be appropriate to note here that though MRTP Act, 1969 empowered the Director General to exercise suo motu power of investigation, the said power has been expressly denied to him under the Competition Act.", "In clause (5) of the State of Objects and Reasons for enacting the Competition Act, it is clearly stated that the Director General would be able to act only if so directed by the Commission, but will not have any suo motu power for initiating investigation.", "If the Director General, is directed by the Commission to cause an investigation to be made into information X and he, besides investigating information X also investigates information Y. which was not considered by the Commission, while directing investigation by him, that would amount to conferring suo motu , power of investigation upon the Director General which would clearly contravene the scheme of the Act, as far as investigation into complaint Y is concerned.", "The learned Senior Counsel for the petitioners relies upon decisions of the Supreme Court in: State of Uttar Pradesh v. Singhara Sinh  : AIR 1964 SC 358 : LNIND 1963 SC 192 Rukumanand Bairoliya v. State of Bihar  : (1971) 3 SCC 167 and Hussein Ghadially v. State of Gujarat  : 2014 (8) SCALE 598 : (2014) 8 SCC 425 : LNIND 2014 SC 676, in support of his contention that when a statute provides for a thing to be done in a particular manner, it shall be done only in that manner and not otherwise.", "But I do not think that the Commission or the Director General had done anything in a manner otherwise than what is prescribed in the Act and the Regulations.", "As stated earlier, the Director General did not suo motu initiate any investigation.", "He merely placed before the Commission, an information already available in the complaint lodged by the individual.", "It was an additional information that could be taken note of under the Proviso to Section 26(1).", "The Commission had already formed a prima facie opinion and recorded its reasons in respect of the three named car manufacturers.", "Therefore, it was not necessary for the Commission to again and again record reasons.", "The Commission did not come to any conclusion with regard to the 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+{"id": "HC_Inox_Leisure_Limited_vs_Competition_Commission_of_DE2017271117162815102COM307750", "text": ["Vibhu Bakhru, J. The petitioner has filed the present petition, inter alia, praying as under:- (a) issue an appropriate direction, order or writ in the nature of certiorari calling for the records of the case bearing Combination Registration Number C- 2015/07/288 from the Respondent and thereafter quashing the impugned Order dated 2 May 2017 bearing Combination Registration Number C- 2015/07/288/6446 passed by the Respondent and (b) issue an appropriate direction, order or writ in the nature of mandamus directing the Respondent to conduct an investigation under the Act in regard to the breach of commitments by PVR Limited of the Order dated 4 May 2016 passed by CCI in Combination Registration Number C-2015/07/288 and other actions and or 2 .", "The petitioner is engaged in the business of exhibition of cinematographic films and is, apparently, aggrieved by the alleged anticompetitive conduct of M section PVR Limited (hereafter PVR).", "It is the petitioners case that PVR has violated the undertaking provided to the Competition Commission of India (hereafter the CCI), which formed the part of the order dated 04.05.2016 passed by the CCI.", "The petitioners complaint that PVR had violated the order dated 04.05.2016 was rejected by the CCI, by an order dated 02.05.2017 (hereafter the impugned order).", "Aggrieved by the same the petitioner has filed the present petition.", "Briefly stated, the facts necessary to address the controversy are as under: 3 .1 PVR is a listed company and is also engaged in the business of developing, operating and managing cinema theatres across India.", "Undisputedly, PVR has a significant market share of the business of exhibiting films in theatres.", "3.2 PVR entered into an agreement dated 09.06.2015 to acquire the film exhibition business of M section DLF Utilities Limited The said acquisition would significantly increase PVRs share in the business of exhibition of films.", "Accordingly, it issued a notice under Section 6 of the Competition Act, 2002 (hereafter the Act) seeking approval of its agreement to acquire the film exhibition business of DLF Utilities Limited (the Combination).", "3 After receipt of the aforesaid notice, CCI conducted an enquiry, which also entailed seeking responses from other entities (including the petitioner) engaged in the said business.", "3 . 4 The CCI after considering the submissions of various concerned parties concluded that the relevant geographic markets for the purposes of competition assessment of the Combination were (a) Gurgaon (b) South Delhi (c) North, West and Central Delhi (d) NOIDA and (e) Chandigarh and the relevant markets were as under:- Relevant market for exhibition of films in multiplex theatres in Gurgaon ii.", "Relevant market for exhibition of films in multiplex theatres and high-end single screen theatres in South Delhi iii.", "Relevant market for exhibition of films in multiplex theatres and high-end single screen theatres in North, West Central Delhi iv.", "Relevant market for exhibition of films in multiplex theatres in NOIDA and Relevant market for exhibition of films in multiplex theatres in Chandigarh.", "3.5 The CCI also concluded that the Combination was likely to have an appreciable adverse effect on competition in the relevant markets for (i) exhibition of films in multiplex theatres in Noida (ii) exhibition of films in multiplex theatres in Gurgaon and (iii) for exhibition of films in multiplex theatres in high end single screen theatres in South Delhi.", "3.6 After considering the same, the CCI, by its order dated 04.05.2016, approved the proposed Combination under Section 31(7) of the Act subject to certain conditions.", "The operative part of the said order is set out below:- Pursuant to the above, the Commission hereby approves the Proposed Combination under sub-section (7) of Section 31 of the Act, subject to the Parties complying with commitments in relation to (a) relevant market for exhibition of films in multiplex theatres in NOIDA (b) relevant market for exhibition of films in multiplex theatres in Gurgaon (c) Co-operation Agreement and (d) Non-Compete Agreement as detailed Annexure A and carrying out the Modification to the Proposed Combination as detailed in Annexure B. It is however to be noted, that the Commission is granting the present approval, under sub-section (7) of Section 31 of the Act, and that such approval is being granted, pursuant to the underlying competition assessment, based upon the information details provided by the Parties, in the notice given under sub-section (2) of Section 6 of the Act.", "This approval should not be construed as immunity in any manner from subsequent proceedings before the Commission for violations of other provisions of the act.", "It is incumbent upon the Parties to ensure that this ex-ante approval does not lead to ex-post violation of the provisions of the Act.", "The petitioner alleges that PVR has violated its commitment pertaining to exhibition of films in multiplex theatres in the relevant market in NOIDA and in Gurgaon.", "This allegation is based on the fact that PVR has entered into letters of intents (LOI) deals in respect of properties located in NOIDA and in Gurgaon for acquiring further screens in those areas.", "The petitioner filed an application dated 09.11.2016 before the CCI alleging that PVR had violated its commitments forming a part of the CCIs order dated 04.05.2016.", "The petitioner alleged that with the PVR acquiring further properties screens, its market concentration would increase and accordingly, requested the CCI to carry out a thorough investigation and to direct PVR to terminate the letters of intent (LOIs) in respect of sites located in NOIDA and Gurgaon, which were specified in the application.", "The petitioners complaint (application) that PVR had violated its commitments, was rejected by the impugned order the CCI concluded that PVR had not breached the commitments given in the order dated 04.05.2016 passed under Section 31(7) of the Act.", "The limited controversy that falls for consideration of this Court in this petition is whether the decision of the CCI that PVR had not violated its undertaking is erroneous and unsustainable.", "Before proceeding to address the aforesaid controversy, it would be relevant to set out the relevant commitments made by PVR, which formed the part of the order dated 04.05.2016.", "The relevant extract of Annexure A to the said order is set out below:- Commitments pertaining to Relevant Market for Exhibition of films in Multiplex Theatres in NOIDA The Commission accepts the commitments offered by the Acquirer regarding the relevant market for exhibition of films in multiplex theatres in NOIDA subject to the Acquire complying with the following: The Acquirer shall, within thirty (30) days from the date of issue of the Order (Effective Date), submit a letter confirming that it has terminated its lease agreement dated 31st March, 2015, entered into with International Recreational Parks (P) Limited for development of a multiplex in Garden Galleria, along with a copy of the termination notice issued by the Acquirer.", "The said letter will be co-signed by the authorized signatory of International Recreational Parks (P) Limited The Parties shall not consummate the Proposed Combination till this requirement is complied with.", "For a period of three (3) years from the date on which the Proposed Combination, as modified by the Order is consummated (Date of Completion), the Acquirer shall, within fifteen (15) days of end of each financial year, submit a certificate issued by its statutory auditor to the effect that, During the preceding financial year, PVR has not expanded its presence in business of exhibition of films through multiplex theatres in NOIDA, i.e., it did not open through organic expansion or takeover through inorganic acquisition, any new screens (either single screen or multiplex).", "For a period of five (5) years from the date of completion of the Proposed Combination, the Acquirer shall, within fifteen (15) days of end of each financial year, submit a certificate issued by its statutory auditor to the effect that, During the preceding financial year, PVR has not acquired any direct or indirect influence or ownership or interest in Garden Galleria.", "PVR is in compliance with the commitments offered by it to the Commission regarding the relevant market for exhibition of films in multiplex theatres in NOIDA.", "Commitments pertaining to Relevant Market for Exhibition of films in Multiplex theatres in Gurgaon The Commission accepts the commitments offered by the Acquirer regarding the relevant market for exhibition of films in multiplex theatres in Gurgaon subject to the Acquirer complying with the following: The Acquirer shall, within thirty (30) days from the Effective Date, submit a letter confirming that it has terminated its agreement dated 18 September 2015, entered into with Reach Promoters Private Limited for the development of a multiplex in Airia Mall, along with a copy of the termination notice issued by the Acquirer.", "The said letter will be co-signed by the authorized signatory of Reach Promoters Private Limited.", "The Parties shall not consummate the Proposed Combination till this requirement is complied with.", "For a period of three (3) years from the Date of Completion of the Proposed Combination, the Acquirer shall, within fifteen (15) days of end of each financial year, submit a certificate issued by its statutory auditor to the effect that: During the preceding financial year, PVR has not expanded its presence in business of exhibition of films in multiplex theatres in Gurgaon, i.e., it did not open through organic expansion or takeover through inorganic acquisition, any new screens (either single screen or multiplex).", "For a period of five (5) years from the Date of Completion of the Proposed Combination, the Acquirer shall, within fifteen (15) days of end of each financial year, submit a certificate issued by its statutory auditor to the effect that: During the preceding financial year, PVR has not acquired any direct or indirect influence or ownership or interest in Airia Mall.", "PVR is in compliance with the commitments offered by it to the Commission regarding the relevant market for exhibition of films in multiplex theatres in Gurgaon.", "Mr. Nayar, learned Senior Counsel appearing for the petitioner had contended that admittedly PVR had entered into transactions to acquire multiplex screens at various sites located in Gurgaon and NOIDA and, therefore, there could be no doubt that PVR had breached its undertaking.", "He also drew the attention of this Court to the order wherein the CCI had assessed the market share of various entities engaged in the film exhibition business.", "He submitted that the action of PVR in acquiring further sites would materially reduce the market share of other entities in the relevant markets and, therefore, there could be no dispute that PVR had acted contrary to the CCIs order dated 04.05.2016.", "Lastly, he submitted that the petitioner had also pointed out that PVR had entered into an arrangement with another entity, namely, MMR and this itself would have an appreciable adverse effect on the competition.", "There is no dispute that PVR has entered into MOUs letters of intents in respect of screens located at various sites in NOIDA, Greater Noida and Gurgaon.", "However, PVR claims that it has not violated its commitment as it has not opened any new screen and has no intention of violating any of its commitments.", "In view of the above, the controversy revolves around to the question whether PVR had committed undertaken not to enter into LOIs for opening new screens in future.", "Plainly, the answer to the above must be in negative.", "A plain reading of the commitment offered by PVR indicates that it agreed to furnish a certificate by its statutory auditor to the effect that it had not expanded its presence in business of exhibition of films through multiplex theatres in Noida (Gurgaon), i.e., it did not open through organic expansion or takeover through inorganic acquisition, any new screens (either single screens or multiplex).", "There is no ambiguity that PVRs commitment was not to open new screens in the relevant markets for a period of three years from the date on which the Combination as modified by the CCIs order is consummated PVRs commitment did not extend to refraining from entering into any transactions from opening the screens after the period of three years, as specified in the undertaking order, was over.", "The contention that PVRs stand would run contrary to the CCIs assessment of PVRs market share as indicated in its order dated 04.05.2016 is not material as the only question to be examined is whether PVR had contravened the order or had fallen short of performing its commitments.", "The contention that the acts of PVR amounts to effectively overreaching the CCIs order dated 04.05.2016 is also unpersuasive.", "The embargo of not opening new screens for a period of three years in NOIDA and Gurgaon is by itself a significant restriction and this Court finds no reason to interpret the CCIs order or PVRs commitment in an expansive manner.", "More importantly, any violation of the CCIs order passed under section 31 of the Act has penal consequences.", "In terms of section 42(2) of the Act any person who fails to comply with the orders or directions of the CCI is punishable by fine which may extent to rupees one lakh for each day subject to maximum of rupees ten crores.", "In terms of section 42(3) of the Act failure to pay the fine imposed is liable to be visited with punishment of imprisonment for a term which may extend to a period of three years.", "It is well settled that a statute imposing penalty must be strictly construed, and therefore there is little scope of expanding the scope of commitments that are not expressly clear from the plain language of Annexure A to the order dated 04.05.2016.", "In Tolaram vs State of Bombay:  : AIR 1954 SC 496, the Supreme Court had held that it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty.", "It is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature.", "Thus unless, the court is satisfied that the offence is within the plain meaning of the words used, no penal action can be taken against the person accused of such violation.", "In view of the above, this Court finds no infirmity with the impugned order rejecting the petitioners contention that PVR had violated its commitment.", "It is clarified that this Court has not examined the issue whether further developments as reported by the petitioner, that is, PVR entering into deals transactions and arrangements with other entities including MMR falls foul of the Act as the same does not arise for consideration in this petition.", "It 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+{"id": "HC_Interglobe_Aviation_Limited_vs_The_Secretary_CompeDE102644COM440521", "text": ["Muralidhar, J. 1 .", "Both writ petitions challenge an order dated 16th June 2010 passed by the Competition Commission of India (CCI) under Section 26(1) of the Competition Act, 2002 (CA).", "The background to the present petitions is that by an order dated 13th February 2009, the Monopolies and Restrictive Trade Practices Commission (MRTP Commission) took cognizance, under Section 11(1) of the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act), of reports in the print and visual media that airline operators, including the Petitioners herein, had collectively increased air fares and withdrawn the promotional fares as a result of which additional costs were imposed on the consumer and competition in the industry was reduced.", "The MRTP Commission formed a prima facie opinion that the alleged practice was a restrictive trade practice as defined under Section 33(1)(d) and 33(1)(j) of the MRTP Act.", "Consequently in exercise of its powers under Regulation 18 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1991 (MRTP Regulations), the MRTP Commission ordered a preliminary investigation into the matter by the Director General (Investigation Registration) DG(IR) and further directed that the copy of the information material collected should be submitted to the Commission within sixty days thereafter.", "The case was registered as Restrictive Trade Practices Enquiry No. 5 of 2009 (RTPE).", "On 27th April 2009 the Office of the DG(IR) sent letters to the Petitioners asking them to furnish information and documents to enable the DG(IR) to undertake the necessary investigation.", "The subject matter of the said communication was Restrictive Trade Practices - Investigation under Section 11(1) of the MRTP Act, 1969.", "The Petitioner Inter Globe Aviation Limited (IAL) replied to the said letter on 29th May 2009 providing certain information.", "Likewise some of the other Petitioners also replied to the said notice.", "On 28th August 2009 a notification was issued by the Ministry of Corporate Affairs, Government of India repealing the MRTP Act with effect from 1st September 2009.", "On 14th October 2009 the President promulgated the Competition (Amendment) Ordinance, 2009 amending Sections 66(1), 66(3), 66(4) and 66(5) of the CA.", "This later was enacted as the Competition (Amendment) Act, 1999 (CAA 1999).", "On 4th March 2010 the RTPE Case Number 5 of 2009 was transferred by the DG(IR) to the CCI under Section 66(6) of the CA.", "Thereafter on 10th June 2010 the CCI passed the impugned order under Section 26(1) of the CA stating that the case had been received on transfer under Section 66(6) of the CA from the Office of the DG(IR), MRTP Commission.", "The order recorded a summary of some of the responses received to the notice dated 24th April 2009.", "In para 26 of the impugned order it was observed that at this stage the matter was transferred to the Commission under Section 66(6) CA and was considered by the CCI at its meeting on 10th June 2010.", "The CCI then stated in its impugned order that there exists a prima-facie case for making reference to DG to make an investigation into the matter.", "After completing the investigation, the DG shall submit his report within 90 days of the communication of the Commissions order.", "On 19th July 2010, a notice was sent by the DG(IR) under Section 41 read with Section 36(2) CA to the Petitioner seeking information.", "On 20th August 2010 the Petitioner IAL wrote to the Secretary, CCI requesting for copies of the information documents as also the order passed by the CCI on the basis of which investigations were initiated.", "On 30th August 2010 the Petitioner IAL inspected the file of RTPE Number 5 of 2009 and requested the Secretary, CCI to provide copies of the inspected information documents.", "This was provided on 6th September 2010 by the DG(IR) stating that a reply must be filed by 10th September 2010.", "Further time was granted by the CCI to the Petitioners on 13th September 2010 to file a reply failing which the Petitioners would face penal action under Section 43 read with Section 45 CA.", "On 15th September 2010 the IAL obtained a copy of the impugned order dated 16th June 2010 of the CCI.", "A further seven days time to file a reply was given by the CCI on 22nd September 2010.", "On 1st October 2010 the present petitions were filed in this Court.", "The Court has heard the submissions of Mr. N.K. Kaul, the learned Senior Counsel as well as Mr. Amit Kapur, learned Counsel appearing for the Petitioners.", "The first submission is that the CCI had no jurisdiction whatsoever to deal with RTPE Number 05 of 2009 because this was a matter pending before the erstwhile MRTP Commission.", "It is submitted that under Section 66(3) CA all matters which were pending before the MRTP Commission have to be transferred to the Competition Appellate Tribunal (CAT) whereas in the instant case the matter was erroneously transferred by the DG(IR) to the CCI under Section 66(6) CA.", "The submission is that since the MRTP Commission had suo motu taken cognizance of the alleged restrictive trade practice under Section 11(1) of the MRTP Act, and further directed the DG(IR) to investigate and submit a report to it, this was a matter pending before the MRTP Commission.", "Therefore, even if the investigation by the DG(IR) was incomplete on the date of the repeal of the MRTP Act followed by the notification of the amended Section 66 of the CA, the matter had to be necessarily placed before the CAT for further directions to the DG(IR).", "In order to appreciate the above submission, a reference may be made to Section 11 of the MRTP Act as well as Section 66 of the CA.", "These provisions read as under: Section 11 MRTP Act 1 1 .", "Investigation by Director General before issue of process in certain cases.", "The Commission may, before issuing any process requiring the attendance of the person against whom an inquiry (other than an inquiry upon an application by the Director General) may be made under Section 10, by an order, require the Director General to make, or cause to be made, a preliminary investigation in such manner as it may direct and submit a report to the Commission to enable it to satisfy itself as to whether or not the matter requires to be inquired into.", "The Director General may, upon his own knowledge or information or on a complaint made to him, make, or cause to be made, a preliminary investigation in such manner as he may think fit to enable him to satisfy himself as to whether or not an application should be made by him to the Commission under Section 10.", "For the purpose of conducting the preliminary investigation under Sub-section (1), or Sub-section (2), as the case may be, the Director General or any other person making the investigation shall have the same powers as may be exercised by an Inspector under Sub-section (2) of Section 44.", "Any order or requisition made by a person making an investigation under Sub-section (1), or Sub-section (2), shall be enforced in the same manner as if it were an order or requisition made by an Inspector appointed under Section 240 or Section 240A of the Companies Act, 1956 (1 of 1956), and any contravention of such order or requisition shall be punishable in the same manner as if it were an order or requisition made by an Inspector appointed under the said Section 240 or Section 240.", "Section 66 CA 6 6 .", "Repeal and saving.", "(1) The Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) is hereby repealed and the Monopolies and Restrictive Trade Practices Commission established under Sub-section (1) of Section 5 of the said Act (hereafter referred to as the repealed Act) shall stand dissolved: (1A) The repeal of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) shall, however, not affect,- (a) the previous operation of the Act so repealed or anything duly done or suffered thereunder or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed or (c) any penalty, confiscation or punishment incurred in respect of any contravention under the Act so repealed or (d) any proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, confiscation or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty, confiscation or punishment may be imposed or made as if that Act had not been repealed.", "On the dissolution of the Monopolies and Restrictive Trade Practices Commission, the person appointed as the Chairman of the Monopolies and Restrictive Trade Practices Commission and every other, person appointed as Member and Director General of Investigation and Registration, Additional, Joint, Deputy, or Assistant Directors General of Investigation and Registration and any officer and other employee of that Commission and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not entitled to claim compensation not exceeding three months pay and allowances for the premature termination of term of their office or of any contract of service: Provided that the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission appointed on deputation basis to the Monopolies and Restrictive Trade Practices Commission, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be: Provided further that the Director-General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors-General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission employed on regular basis by the Monopolies and Restrictive Trade Practices Commission, shall become, on and from such dissolution, the officer and employee, respectively, of the Competition Commission of India or the Appellate Tribunal, in such manner as may be specified by the Central Government, with the same rights and privileges as to pension, gratuity and other like matters as would have been admissible to him if the rights in relation to such Monopolies and Restrictive Trade Practices Commission had not been transferred to, and vested in, the Competition Commission of India or the Appellate Tribunal, as the case may be, and shall continue to do so unless and until his employment in the Competition Commission of India or the Appellate Tribunal, as the case may be, is duly terminated or until his remuneration, terms and conditions of employment are duly altered by the Competition Commission of India or the Appellate Tribunal, as the case may be: Provided also that notwithstanding anything contained in the Industrial Disputes Act, 1947 (14 of 1947), or in any other law for the time being in force, the transfer of the services of any Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee, employed in the Monopolies and Restrictive Trade Practices Commission, to the Competition Commission of India or the Appellate Tribunal, as the case may be shall not entitle such Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee any compensation under this Act or any other law for the time being in force and no such claim shall be entertained by any court, tribunal or other authority: Provided also that where the Monopolies and Restrictive Trade Practices Commission has established a provident fund, superannuation, welfare or other fund for the benefit of the Director General of Investigation and Registration, Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or the officers and other employees employed in the Monopolies and Restrictive Trade Practices Commission, the monies relatable to the officers and other employees whose services have been transferred by or under this Act to the Competition Commission of India or the Appellate Tribunal, as the case may be, shall, out of the monies standing, on the dissolution of the Monopolies and Restrictive Trade Practices Commission to the credit of such provident fund, superannuation, welfare or other fund, stand transferred to, and vest in, the Competition Commission of India or the Appellate Tribunal, as the case may be, and such monies which stand so transferred shall be dealt with by the said Commission or the Tribunal, as the case may be, in such manner as may be prescribed.", "All cases pertaining to monopolistic trade practices or restrictive trade practices pending (including such cases, in which any unfair trade practice has also been alleged), before the Monopolies and Restrictive Trade Practices Commission shall, on the commencement of the Competition (Amendment) Act, 2009, stand transferred to the Appellate Tribunal and shall be adjudicated by the Appellate Tribunal in accordance with the provisions of the repealed Act as if that Act had not been repealed.", "Explanation.- For the removal of doubts, it is hereby declared that all cases referred to in this sub-section, Sub-section (4) and Sub- section (5) shall be deemed to include all applications made for the losses or damages under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) as it stood before its repeal Subject to the provisions of Sub-section (3), all cases pertaining to unfair trade practices other than those referred to in Clause (x) of Sub-section (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission immediately before the commencement of the Competition (Amendment) Act, 2009, shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission shall dispose of such cases as if they were cases filed under that Act: Provided that the National Commission may, if it considers appropriate, transfer any case transferred to it under this sub-section, to the concerned State Commission established under Section 9 of the Consumer Protection Act, 1986 (68 of 1986) and that State Commission shall dispose of such case as if it was filed under that Act.", "Provided further that all the cases relating to the unfair trade practices pending, before the National Commission under this sub-section, on or before the date on which the Competition (Amendment) Bill, 2009 receives the assent of the President, shall, on and from that date, stand transferred to the Appellate Tribunal and be adjudicated by the Appellate Tribunal in accordance with the provisions of the repealed Act as if that Act had not been repealed.", "All cases pertaining to unfair trade practices referred to in Clause of Sub-section (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission shall, on the commencement of the Competition (Amendment) Act, 2009, stand transferred to the Appellate Tribunal and the Appellate Tribunal shall dispose of such cases as if they were cases filed under that Act.", "All investigations or proceedings, other than those relating to unfair trade practices, pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.", "All investigations or proceedings, relating to unfair trade practices, other than those referred to in Clause (x) of Sub-section (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.", "Provided that all investigations or proceedings, relating to unfair trade practices pending before the National Commission, on or before the date on which the Competition (Amendment) Bill, 2009 receives the assent of the President shall, on and from that date, stand transferred to the Appellate Tribunal and the Appellate Tribunal may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit.", "All investigations or proceedings relating to unfair trade practices referred to in Clause (x) of Sub-section (1) of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969), and pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India and the Competition Commission of India may conduct or order for conduct of such investigation in the manner as it deems fit.", "Save as otherwise provided under Sub-sections (3) to (8), all cases or proceedings pending before the Monopolies and Restrictive Trade Practices Commission shall abate.", "The mention of the particular matters referred to in Sub- sections (3) to (8) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.", "The order dated 30th August 2009 passed by the MRTP Commission is traceable to Section 11(1) of the MRTP Act.", "Indeed the MRTP Commission took notice of the reports and directed the DG(IR) to make a preliminary investigation and submit a report.", "To that extent, the learned Counsel for the Petitioners are right that in the impugned order dated 16th June 2010 the CCI has erroneously observed that the DG(IR) MRTP Commission undertook the investigation under Section 11(2) of the MRTP Act.", "Nothing much however turns on this.", "Once the MRTP Commission directed the DG(IR) to undertake investigations, the matter could no longer be said to be pending before the MRTP Commission.", "The investigation undertaken by the DG(IR) was obviously incomplete and there was no occasion for the DG(IR) to place any report of investigation before the MRTP Commission in terms of Section 11(1) of the MRTP Act.", "Turning to Section 66 of the CA, which is a repeal and savings clause, it appears that the opening words of Section 66(3) is all cases pending before the MRTP Commission shall, on the commencement of the CAA 2009 stand transferred to the CAT, and shall be adjudicated by the Appellate Tribunal in accordance with the provisions of the repealed Act as if that Act had not been repealed.", "It is plain that only cases which were pending before the MRTP Commission for adjudication as on the date of the repeal of the MRTP Act and the commencement of the CAA 2009 would stand transferred to the CAT for adjudication.", "The word cases and the word adjudication are indicative of the types of matters pending before the MRTP Commission which were meant to be transferred to the CAT. 1 2 .", "Under the MRTP Act, the MRTP Commission combined in itself both the inquisitorial as well as adversarial adjudicatory functions.", "In its inquisitorial role, the MRTP Commission was empowered to refer matters of investigation to the DG(IR) which was, in a sense, its extended arm.", "At this stage it was meant to be a fact or information gathering exercise.", "If on the basis of such information gathered and placed before it by the DG(IR), the MRTP Commission came to a prima facie view that there was restrictive trade practice or unfair trade practice, as the case may be, then it can proceed further in the matter.", "It was at that stage, after forming the prima facie view, that the matter can proceed to get crystallized into a case it is possible that on the report of the DG(IR), the MRTP Commission forms an opinion that there is no need to proceed further.", "In that event there will be no case.", "In the considered view of this Court, as far as the present Petitioners are concerned, the investigations against them by the DG(IR) remained incomplete and the matter did not crystallize into a case before the MRTP Commission, which could be stated to be pending as on the date of the CAA.", "Consequently there is no merit in the contention that as far as the Petitioners are concerned, it was incumbent on the DG(IR) of the CCI to transfer the cases straight to the CAT and not to the CCI.", "A comparison of Section 66(3) CA with Section 66(6) CA shows the contrast between the kinds of matters before the MRTP Commission and the DG(IR).", "While Section 66(3) CA talks of cases pending before the MRTP Commission, Section 66(6) CA talks of all investigations or proceedings pending before the DG(IR).", "The expression all investigations or proceedings is meant to encompass even investigations and proceedings before the DG(IR) which remained incomplete as of the date of the CAA 1999.", "It was sought to be urged by Mr. Kaul that Section 66(6) CA was meant to cover only such cases where the DG(IR) took suo motu notice under Section 11(2) of the MRTP Act and investigations were incomplete at the time of the CAA 2009.", "There is nothing in the language of Section 66(6) CA to suggest this.", "The resultant position is that all investigations and proceedings which were pending before the DG(IR), MRTP Commission as on the date of CAA 2009, whether by way of a reference made to it by the MRTP Commission under Section 11(1) or taken up by the DG(IR) suo motu under Section 11(2) of the MRTP Act, would stand transferred to the CCI in terms of Section 66(6) of the CA.", "That is what has happened in the present case.", "There is, therefore, no illegality in the action of the DG, CCI in transferring the investigation pending before the DG(IR), MRTP Commission to the CCI.", "Before concluding this part, it may be observed that the organizational structure which was envisaged under the MRTP Act with the MRTP Commission combining in itself both the inquisitorial and adversarial functions has undergone a significant change in the CA.", "There is now a two-tier structure with the CCI performing a partly inquisitorial function and a partly quasi-adjudicatory function.", "The CAT, however, performs an appellate adjudicatory function.", "The interpretation placed on the provisions by this Court is in light of this altered structure under the CA.", "It was urged that the CCI was acting unreasonably in declining to provide the Petitioners with the information sought for the purposes of filing replies.", "A reference was made to a communication dated 1st October 2010 received from the Assistant Director General of CCI by the IAL stating that IALs insistence on obtaining complete information documents from the CCI for responding to the queries raised was not justified and that it should file its reply within five days failing which penal action would be initiated.", "This Court only wishes to observe that it will be open to the Petitioners to file replies before the CCI, within the time granted by the CCI, on the basis of whatever information is available with them.", "If any of the Petitioners suffer any prejudice on account of the non-furnishing of any information to them by the CCI, they could well raise such a contention before the CCI which will then deal with such contention and pass orders thereon before proceeding to take any action in terms of Section 43 read with Section 45 CA.", "In any event, for any alleged violation of the procedure by the CCI it is not as if the Petitioners would be without a remedy.", "Such a situation is taken care of within the four corners of the CA itself.", "It was finally urged that the Petitioners should be granted some more time to file replies to the show cause notice of the CCI.", "It is for the Petitioners to make that request to the CCI which will consider such request on its merits before proceeding to take any further action under Sections 43 read with Section 45 CA. 2 0 .", "This Court finds no ground having been made out by the Petitioners for interdicting the proceedings before the CCI.", "The writ petitions are dismissed with the above observations but in the circumstances with no orders as to costs."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", 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+{"id": "HC_Jyoti_Sawroop_Arora_vs_The_Competition_Commission_DE201624061615224486COM296697", "text": ["Rajiv Sahai Endlaw, J. 1 .", "This petition under Article 226 of the Constitution of India impugns the order dated 3rd February, 2015 of the respondent Number 1 Competition Commission of India (CCI) in case Number 59/2011 holding no violation of the provisions of the Competition Act, 2002 having been committed, inspite of the Director General (DG) of the CCI in its Report having recommended that there is contravention of the provisions of the Act.", "The petition was entertained and notice thereof issued.", "After notice, when the petition was listed before this Court on 12th February, 2016, I had of my own enquired from the counsels whether not such an order was appealable before the Competition Appellate Tribunal (COMPAT).", "The counsels drew attention to Section 53A(1)(a) of the Competition Act which empowers COMPAT to hear and dispose of appeals against any direction issued or decision made or order passed by the Commission under Sub-sections (2) and (6) of Section 26 It was further pointed out that Sub-section (2) of Section 26 provides for CCI, on receipt a reference from the Central Government or a State Government or a Statutory Authority or information received under Section 19, closing the matter forthwith if of the opinion that there exists no prima facie case.", "It was stated that CCI in the present case did not so close the matter but rather was of the opinion that there existed a prima facie case and in exercise of powers under Sub-section (1) of Section 26 had directed the DG to cause an investigation to be made in the matter.", "It was further pointed out that DG submitted its Report recommending that there was contravention as averred in the information however CCI, after consideration of the objections and suggestions of the parties concerned has vide the impugned order dated 3rd February, 2015 differed from the findings of the DG on issue of contravention of provisions of Sections 3(3)(a) (b) of the Competition Act and held that sufficient evidence is not available on record which warrants a finding of contravention of the provisions of the Act and accordingly closed the matter.", "It is argued that Sub-section (6) of Section 26 against a direction, decision or order whereunder the remedy of appeal to COMPAT has been provided is as under:-- If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "i.e. provides for a contingency where the CCI agrees with the recommendation of the DG and closes the matter and not the contingency where CCI has disagreed with the recommendation of the DG, as has happened in the present case.", "It was argued that since the remedy of appeal is not provided, the petition under Article 226 of the Constitution would be maintainable against such an order.", "Though the counsel for the petitioner on 12th February, 2016 also contended that the said question is no longer res integra in view of the judgment of the Supreme Court in Competition Commission of India v. Steel Authority of India Limited  : (2010) 10 SCC 744 but to me it prima facie did not appear so.", "I had on 12th February, 2016 itself drawn the attention of the counsels to Vinod Kumar Chowdhry v. Narain Devi Taneja  : (1980) 2 SCC 120 where the Supreme Court, though in the context of Section 25B(8) of the Delhi Rent Control Act, 1958 held that the words order for recovery of possession of premises have to be construed as an order deciding the application for recovery of possession of premises because there can be no discrimination between the remedies available to the two parties to a litigation and which will render the provision unconstitutional and because of the overall scheme of the Act.", "Attention of the counsels was also invited to State of Maharashtra v. Marwanjee P. Desai  : (2002) 2 SCC 318 on the interpretation of Section 7 of the Bombay Government Premises (Eviction) Act, 1955.", "Finding that there is no specific sub-section in Section 26 dealing with contingency of the CCI disagreeing with the Report of the DG and closing the case as has happened in the present case and being of the prima facie view that by the reasoning in the two judgments aforesaid of the Supreme Court and further citing V.C. Shukla State  : (1980) Supp.", "SCC 92 holding that right of appeal has to be liberally construed, I had on 12th February, 2016 expressed prima facie opinion that even against an order where CCI disagrees with the report of the DG and closes the case, an appeal to COMPAT lies and the writ petition would thus not be maintainable.", "The counsels who were not prepared on the said aspect were asked to address this Court first thereon.", "In the light of the aforesaid turn of events which the hearing took, the occasion for any of the respondents filing counter affidavits or calling for the same did not arise.", "However the respondent Number 1 CCI only even before the hearing on 12th February, 2016 had filed a counter affidavit.", "On 28th March, 2016, the counsel for the petitioner and the senior counsel for the respondent Number 15 M section Oberoi Realty Limited also contending that appeal does not lie to COMPAT were heard and the matter adjourned to 21st April, 2016 for arguments of other counsels for the respondents supporting the contention of the petitioner that against the impugned order no appeal lies before COMPAT.", "On 21st April, 2016 it was pointed out by some of the counsels that with the coming into force on 26th March, 2016 of the Real Estate (Regulation and Development) Act, 2016 (RERD Act), the remedy of the petitioner in any case was not before the CCI but before the Real Estate Regulatory Authority (RERA) constituted under the said Act.", "The counsel for the petitioner sought time to consider the said aspect.", "Accordingly, the matter was adjourned to today to enable the counsel for the petitioner to consider.", "It was also the contention of the senior counsel for the respondent Number 18 M section Puravankara Project Limited on that date that irrespective of the legal question, there was no prima facie merit in the challenge by the petitioner to the impugned order of CCI and for this reason also this Court should not go into the legal question.", "It was yet further contended that the legal question, as I had raised, was also pending before the Supreme Court.", "Today, the counsel for the petitioner has stated that according to him the jurisdiction for the grievance with which the petitioner had submitted the information to CCI and finding prima facie merit wherein CCI had ordered investigation lies exclusively with the CCI under the Competition Act and RERD Act is prospective in nature and the petitioner presses this petition.", "Per contra, the senior counsel for the respondent Number 18 has contended that even if this Court were to hold that this petition is maintainable, in any case on facts there is no merit in the petition.", "It was contended that since there are as many as 25 respondents in this petition, all represented through Advocates and wanting to address this Court on the legal question aforesaid of availability of appeal against the impugned order to COMPAT, this Court rather than spending time on hearing on the said aspect may first hear the counsels on the factual merit if any of the petition and only if convinced therewith should proceed to go into the said aspect.", "Being agreeable with the last of the aforesaid contention of the senior counsel for the respondent Number 18, the counsels for the petitioner and the senior counsel for the respondent Number 18 have been heard on the factual merits of the petition.", "The petitioner, alleging contravention by the respondent Number 2 M section Tulip Infratech Pvt.", "Limited (Tulip) and by respondents Number 3 4 namely Director, Town Country Planning, Chandigarh and Haryana Urban Development Authority (HUDA) of the provisions of Section 3 of the Act, lodged information under Section 19(1)(a) of the Competition Act with the CCI.", "It was the case of the petitioner that various enterprises engaged in real estate development business including the respondent No. 2 Tulip, by an arrangement understanding amongst themselves, adopt a anti- competitive modus operandi practices.", "Reliance in this regard was placed on a statement of the Chairman of the respondent Number 5 Confederation of Real Estate Developers Association of India (CREDAI) as reported in the newspaper of its members signing a code of conduct including qua the actual usage area to the buyers, compensation in case of project delays and other clauses of buyers agreements.", "It was further the case of the petitioner that various enterprises engaged in real estate development have agreements understanding amongst themselves resulting in the flat buyers agreement which the purchasers of real estate from the said developers are compelled to sign being one sided and containing arbitrary clauses which were exploitative of the buyers.", "As aforesaid, CCI passed an order under Section 26(1) directing DG to investigate the conduct of residential apartment complex builders including of respondent Number 2 Tulip and respondent Number 5 CREDAI.", "The senior counsel for the respondent Number 18 has handed over a copy of the separate opinion of the Member, Technical of CCI not finding a prima facie merit within the meaning of Section 26(1) of the Act in the complaint information submitted by the petitioner inter alia observing that the intention of the Competition Act is not to put each and every commonly prevailing business practice detrimental to consumers under the Competition Act scanner citing the example of practice followed by shops, of goods once sold will not be returned, it was observed that every practise is not capable of being treated as a practice carried on if there is no indication of meeting of the minds and it was held that if neither the prices are getting jointly fixed nor outcome is getting jointly controlled nor market is being consciously shared nor any bid being rigged through practice then even that conscious and jointly decided practice cannot come in the purview of Section 3(3).", "In accordance with the order under Section 26(1) of majority of the members of CCI, as aforesaid, DG submitted a Report of certain practices being commonly carried on by the builders developers of residential apartments by way of tacit agreement understanding informal co-operation and having caused implications for consumers and resultantly impacting determining the final prices of apartments in contravention of Section 3(3)(a) of the Competition Act and controlling the provisions of services in contravention of Section 3(3)(b) of the Act.", "However DG did not find any contravention of the provisions of the Competition Act by the respondent Number 5 CREDAI.", "CCI, vide its order dated 15th April, 2015 ordered impleadment of 20 builders who were selected by DG as a representative sample for the purpose of investigation in the matter, i.e. the respondents 5 to 25 herein and after considering the replies, objections and submissions of the respondents and the rejoinder of the petitioner informant thereto, has found observed held:-- That the petitioner informant, prior to the information (Case Number 59/2011) on which investigation by DG was ordered also, had filed information being Case Number 07 to 2011 against the respondents Number 2 to 4 namely Tulip, Director, Town Country Planning, Chandigarh and HUDA on similar facts, alleging abuse of dominant position.", "CCI had vide order dated 29th April, 2011 closed that case observing that there was no prima facie indication of dominance by the respondent Number 2 Tulip in the relevant market and that there was no allegation of any agreement between the respondent Number 2 Tulip and other enterprises engaged in similar or identical business and therefore none of the clauses of Section 3(1) read with Sections 3(3) or 3(4) of the Competition Act was found to be applicable.", "The subject information (Case Number 59/2011) however alleged anti- competitive agreements arrangements understanding amongst various real estate enterprises including respondent Number 2 Tulip and tacit understanding amongst all the real estate players in the market according to the petitioner informant the Code of Conduct adopted by the respondent Number 5 CREDAI also indicated collusion amongst its members.", "That as far as the alleged anti-competitive conduct arising out of the agreement between the petitioner informant and the respondent Number 2 Tulip was concerned, the same did not fall within the discipline of Section 3(3) read with Section 3(1) of the Competition Act as the petitioner informant and the respondent Number 2 Tulip are not operating at the same level the agreement also does not come within the purview of Section 3(4) as an end- consumer is not part of any production chain in the market as envisaged thereunder.", "Similarly with respect to the alleged conduct of the respondent No. 2 Tulip in terms of the provisions of Section 4 of the Act, CCI in the previous case filed by the petitioner informant had ruled out applicability of Section 4 as dominance of the respondent Number 2 Tulip was not established the petitioner informant had neither filed any fresh material to establish contra nor did the DG come across any material which could be reflective of any change in the market dynamics.", "That there was no specific allegations of anti-competitive conduct in terms of provisions of Sections 3 and 4 of the Competition Act against the respondents Number 3 4 namely Director, Town Country Planning, Chandigarh and HUDA and the prayer of the petitioner informant seeking examination of their functioning did not merit consideration.", "That the common practices carried on by the builders developers found by the DG to be emanating out of a tacit agreement were as follows:-- Non-disclosure of calculation of total common area and its proportionate apportionment on the apartments being sold on Super Area basis and, reserving the right to increase or decrease the flat area.", "Non expressly disclosing the applicable laws, rules and regulation etc.", "with respect to the projects being developed.", "Reserving the right of further construction on any portion of the project land or terrace or building and to take advantage of any increase in FAR FSI being available in the future.", "Charging high interest from the apartment owners on delayed payments as against payment of significantly lower interest inadequate compensation on account of delay on the part of the builder in implementation of the project.", "Restricting the rights, title and interests of apartment allottees to the apartments being sold, and retaining the right to allot, sale or transfer any interests in the common areas and facilities as per their discretion.", "Fastening the liability for defaults, violations or breaches of any laws, bye laws, rules and regulations upon the apartment owners without admitting corresponding liability on the part of builder developer.", "Non-disclosure of all the terms and conditions of sale to the prospective buyers at the stage of booking of apartments and taking booking amount from interested buyers without disclosing the terms and conditions of the Sale Agreement to be executed at a later stage.", "That DG, to arrive at the aforesaid finding conducted a comparative study of the flat buyers agreements executed by such builders with their respective buyers and based on the commonalities aforesaid it was concluded that the same reinforces the presumption of one follows the other phenomenon the DG further observed that though the various clauses of the agreements conveying same or similar intent were differently worded, the same could not be reached through independent actions of the various builders and thus concluded that contravention of the provisions of Sections 3(3)(a) and 3(3)(b) of the Act was made out.", "That for establishing contravention of Section 3(3) read with Section 3(1) of the Act, some evidence of practice carried on or decision taken by the CREDAI which further results into price fixing, limiting and controlling provision of services etc.", "has to be shown in the present case the DG did not find any evidence which is suggestive or indicative of any role played by CREDAI in providing its platform to the members for anticompetitive practices.", "In such a scenario, it was incumbent upon the DG to have gathered sufficient evidence in the light of the thresholds laid down in the Act.", "The DG, de hors the platform of CREDAI for conducting the impugned practices, did not find any material other than the agreements executed between the builders and the buyers containing the common clauses to a varying degree.", "Such commonality, in the absence of any evidence to establish role of CREDAI or understanding, arrangement or action in concert between the individual enterprises which are arrayed as opposite parties, cannot be held to be in contravention of the provisions of Section 3(3) read with Section 3(1) of the Act.", "CCI itself after looking into the matter in great depth found no evidence to corroborate that CREDAI has provided any platform, directly or indirectly to its members for indulging in any anti-competitive practices.", "CREDAI had over 9000 members there were other players in the real estate development market who were not associated with CREDAI.", "Since DG had not produced sufficient material on record wherefrom any concert amongst the players can be gleaned, it would be futile to examine the common practices to ascertain the contravention of the relevant provisions of the law.", "Though CREDAI does provide platform to real estate enterprises to meet and discuss issues of common interest and find common solutions to their problems to further the commercial interest of its members who are all builders developers but DG did not find any evidence of any role played by CREDAI in providing its platform to the members for anti-competitive practices.", "That a perusal of the Code of Conduct including the clauses relating to booking, agreement to sell and forfeiture also did not make out a case of contravention of the provisions of the Act.", "Resultantly, CCI differed from the finding of the DG on issue of contravention of provisions of Sections 3(3)(a) and (b) of the Act and held that no sufficient evidence was available on record warranting a finding of contravention.", "The senior counsel for the respondent Number 18 on the basis of findings reasons aforesaid of CCI contends that there is no scope of interference therewith under Article 226 of the Constitution of India.", "During the hearing, a copy of the order dated 29th April, 2011 of the CCI of dismissal of the earlier information submitted by the petitioner (Case Number 7/2011) is also handed over.", "The senior counsel for the respondent Number 18 also draws attention to the prayer paragraph of the petition inter alia seeking restoration of the allotment of a flat in a project Tulip White in Sector-69, Gurgaon of the respondent Number 2 Tulip and contends that the petitioner has been litigating in that respect before foras courts and the present petition is yet another steps in the said direction.", "A summary of the common practices found by the DG and the conclusion of the DG thereon is also handed over to show that even DG has found variations from builder to builder and project to project and some of the practices being followed by only a few of the builders.", "I tend to agree with the senior counsel for the respondent Number 18 that irrespective of the legal question on which the hearing was commenced, there is no merit in the petition on the merits of its own facts.", "I have in fact asked the counsel for the petitioner that when several enterprises are carrying on the same business enterprise, whether not owing to the peculiar features factors of that business enterprise common to all, there is bound to be a commonality in certain respect in the clauses of the contracts which such businesses enterprises enter into with all those with whom they enter into contracts and whether such commonality which is inherent owing to the nature of business enterprise can be called violation of the provisions of the Competition Act.", "Instance of vendors of fruits and vegetables is given and it is enquired, whether not all are bound to call their goods fresh irrespective of whether in fact they are fresh or stale and whether by their said conduct they can be said to be in violation of the Act.", "No proper reply to the said query is forthcoming save that the counsel for the petitioner draws attention to the paragraphs of the impugned order of CCI, after the paragraph where the CCI concludes that a finding of contravention of the Competition Act is not warranted.", "In the said paragraph, CCI has clarified that its finding should not be taken as ignoring the hardships which the consumers of real estate face at the hands of developers of real estate and comments on the absence of a regulatory mechanism for the said sector and the need for redressal thereof by the policy makers and expresses hope of the Parliament bringing a suitable legislation therefor (and which has now been brought in the form of RERD Act).", "I am unable to agree.", "Merely because CCI has made such observations, would not dilute the findings of CCI of there being no evidence of any agreement between the developers of real estate or of formation of cartels resulting directly or indirectly in determining the purchase or sale price or any anti-competitive practice.", "The counsel for the petitioner, from the report of DG has not been able to show any evidence which the CCI in the impugned order has ignored or which can be said to be showing anything contrary to the reasoning adopted by CCI in the impugned order.", "The challenge in this petition is thus to the application by CCI of Section 3 of the Act to the facts of the case and the scope of this petition has to be confined to see whether the said application is in accordance with settled principles of law and interpretation of statutes and if it is found to be so, cannot be extended to judge the correctness of the conclusions drawn by CCI, an expert body comprising of members from several fields and which is the domain of an appeal and not exercise of jurisdiction under Article 226.", "Section 3(1) to (3) of the Competition Act, relevant for our purpose are as under: Anti-competitive agreements.--(1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.", "Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void.", "Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which- (a) directly or indirectly determines purchase or sale prices (b) limits or controls production, supply, markets, technical development, investment or provision of services (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.", "Explanation.--For the purposes of this sub-section, bid rigging means any agreement, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding.", "In my analysis, Section 3 Prohibits i) an enterprise ii) an association of enterprises iii) a person and, iv) an association of persons from entering into any agreement as specified in sub-section (1) thereof.", "B. declares such an agreement to be void.", "C. presumes i) such an agreement or ii) practice carried on or iii) decision taken by such associations engaged in identical or similar trade of goods or provision of services, if it a) determines price or b) limits or controls or c) divides allocates areas or types or customers or d) results in price rigging to have an adverse effect on competition.", "An agreement, in law, may be oral or in writing but requires a meeting of minds of the parties entering into agreement on all the essentials of the subject qua which they are entering into agreement so as to bind each other thereto and compel performance or to measure damages in lieu of performance.", "Such meeting of the minds, in the absence of a writing, has to be proved as a fact and without it being so proved, there cannot be said to be contravention of Section 3(1).", "However, rarely is evidence available, even if applying test of preponderance of probabilities, to establish prove that an agreement which is prohibited by law has taken place.", "Agreements prohibited by law are always shrouded in secrecy.", "To take care of such an eventuality, Section 2(b) of the Act while defining agreement, takes within its ambit any arrangement or understanding or action in concert, even if arrived at informally and even if not intended to be enforceable.", "Thus, an agreement within the meaning of Section 3(1) will be found if the action of parties are found to be in pursuance to some common intention, even if not in pursuance to an agreement within the definition of Contract Act, 1872, but in pursuance to an understanding or arrangement.", "Conversely it follows that merely because two or more persons are doing similar or identical thing, will not find an agreement within the meaning of Section 3(1) unless some, if not all the way, meeting of their minds or common intention to do so is established.", "Further, Section 3(1) does not prohibit association or agreement per se, as indeed it cannot.", "The agreements which are prohibited are those i) in respect of production, supply, distribution, storage, acquisition or control of goods and provision of services and, ii) which causes or is likely to cause an appreciable adverse effect on competition.", "Appreciable adverse effect on competition, vide Section 3(3) is presumed from such agreement i) determining price and, broadly, ii) limiting or controlling availability of goods or services.", "Though the word or is found to be missing from between categories (a) to (d) of sub-section (3) of Section 3 but in the context thereof, in my opinion has to be necessarily read.", "It is thus not as if only when all the clauses (a) to (d) are applicable, has the presumption to be drawn.", "However Section 3(3) while providing so, besides to agreement refers also to practice carried on or decision taken.", "The word decision again connotes meeting of minds of those engaged in identical or similar trade of goods or provision of services.", "The question which arises is, whether the words practice carried on refers to a situation resulting even without meeting of minds.", "If that were to be so, then the second question which would arise is, whether a practice carried on by those engaged in same trade even without any meeting of minds to carry on such a practice would be covered.", "Section 2(m) defines a practice as including relating to the carrying on of any trade.", "However what is peculiar is that Section 3(3) which contains the words practice carried on is only raising a presumption as to what the same words in Section 3(1) mean.", "Section 3(3) by itself is neither prohibitory nor a voiding provision as Sections 3(1) and 3(2) respectively are.", "Thus, the words practice carried on have to be understood as a practice of trade in pursuance to meeting of minds.", "Seen in this light, in the absence of any evidence of meeting of minds between any two or more developers of real estate with an intention of causing an appreciable adverse effect on competition, there could be no violation of Section 3 as was complained informed of by the petitioner informer.", "Mere formation of an association i.e. the respondent Number 5 CREDAI, is not violation of Section 3, without it being further established that such an association was to or has resulted in appreciable adverse effect on competition.", "DG, which is an investigative agency of CCI and with whose findings recommendations CCI, which has adjudicatory role is not bound, found such violations because of finding certain common practices followed by all the developers of real estate surveyed examined by DG.", "CCI has however found such practices to be not a result of any common intention.", "CCI has further found such practices to be not having any appreciable adverse effect on competition.", "I find no error in such reasoning logic approach of CCI.", "The seven common practices found by DG and as have been listed out hereinabove are found by me to be such which are inherent to the business enterprise of real estate and or real estate development.", "The transactions in real estate are governed by the Transfer of Property Act, 1882 and the Apartment Acts of different States besides by the other laws which vary from state to state and within the state vary qua different type category of real estate.", "The principle of caveat emptor i.e. buyer alone is responsible for checking the quality and suitability and title of the property also applies to real estate transactions.", "The development construction of real estate is governed by separate set of state and municipal laws, besides the Master Plan, and norms whereof keep on changing from time to time enabling further construction expansion of construction on the land.", "In fact during the hearing I have drawn the attention of the counsel for the petitioner to the decision of HUDA in the recent past of increasing the FAR and which has resulted in the land, of which development was complete, also becoming capable of being built on further and enquired whether not owing to such happenings, there is bound to be a clause in the agreement reserving the right of further development construction.", "Merely because all carrying on the same business are following certain practices, cannot label the said practices which are inherent to the nature and needs and contingency of the trade enterprise, a violation of the Act and if it were to be held so, I wonder as to how the various developers of real estate would draft the contracts of sale of real estate without providing for the various eventualities which are common to sale and purchase of real estate.", "In fact when individuals not in the business enterprise of real estate also develop their own properties and sell part of the development, they also are known to have same clauses as found by DG, in their agreements.", "From my law practice of over 25 years, largely in the field of real estate also, I can say that a large number of developers of real estate, to save legal cost, merely copy paste either the agreements of their earlier real estate projects or the agreements as in vogue in the market.", "This is not to say that the Advisors in the field of real estate do not themselves follow the practice of cut and paste and which in my practical experience, is responsible to a large extent for the commonality found by the DG and from which commonality DG presumed contravention of the provisions of the Act.", "Moreover, the counsel for the petitioner has been unable to tell how the seven practices determine price or limit or control availability of real estate.", "No error is thus found in the impugned order of the CCI.", "The petition is dismissed.", "In this view of the matter, need to render finding on the maintainability of appeal against the order or on the exclusive jurisdiction of RERA established under the RERD Act over the subject matter of the grievance is not felt.", "No costs."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Statute", "Fact", "Fact", "Statute", "Fact", "Fact", "None", "None", "None", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "ArgumentRespondent", "ArgumentRespondent", "ArgumentPetitioner", "ArgumentRespondent", "ArgumentRespondent", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", 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+{"id": "HC_Mahindra_Electric_Mobility_Limited_and_Ors_vs_CompDE201901051916442526COM475775", "text": ["Ravindra Bhat, J. 1 .", "In all these proceedings, under Article 226 of the Constitution of India, the petitioners challenge various provisions of the Competition Act, 2002 (hereafter the Act).", "The specific challenge is to provisions of Sections 22(3), 27(b), 53A, 53B, 53C, 53D, 53E, 53F and 61 (the impugned provisions hereafter) of the Act and the notification dated 31.03.2011 amending Regulation 48 (1) of the Competition Commission of India (General) Regulations, 2009 (hereafter the Regulations and the impugned amending regulation) and in relation to the appellate remedies to the Competition Appellate Tribunal (COMPAT).", "Now those functions have been taken over by the National Company Law Appellate Tribunal (hereafter NCLAT) due to provisions of the Finance Act, 2017.", "Though by amendments, the petitioners have impugned provisions of the Finance Act nevertheless, they do not press it, in view of the order of the Supreme Court in a pending proceeding before it, in respect of the general challenge to the Finance Act, 2017.", "The genesis to these disputes arose on account of a complaint by one Mr. Shamsher Kataria who filed information under Section 19 (1)(a) of the Act against M section Honda Siel Cars India Ltd Volkswagen India Pvt.", "Limited and Fiat India Automobiles Limited on 18.01.2011 alleging that these auto producers were indulging in abusive behavior in regard to the spare parts market.", "He later filed a supplementary information against Toyota, Skoda, General Motors, Ford, Nissan Motors, Mercedes Benz, BMW, Audi etc.", ", on 27.01.2011.", "On the basis of these materials, the Competition Commission of India (hereafter CCI) recorded its prima facie opinion that the complaints needed investigation by its order of 24.02.2011.", "Subsequently, on 19.04.2011, the Director General (DG hereafter) in pursuance of the directions of the CCI conducted investigation into the allegations made by the Informant and submitted his investigation report.", "The DG by that report requested for permission to expand the scope of the investigation to include other car manufacturers.", "By its order of 26.04.2011, CCI expanded the scope of investigation being conducted by the DG to include the petitioner herein and certain other car manufacturers operating in India.", "The DG thereafter issued notice to the other car manufacturers, on 04.05.2011 under Section 36 (2) read with Section 41(2) of the Act, seeking detailed information and documents from them with reference to an investigation being conducted into certain anti-competitive practice alleged to be prevalent in the sale, maintenance, service and repair market of the cars manufactured in India in Case Number 03/2011.", "Proceedings in this case were stayed by the Madras High Court in WP 31808/2012 filed by M section Hyundai Motors India Limited, inter alia, challenging the order dated 26.04.2011 passed by the CCI.", "This led to some of the petitioners seeking stay of proceedings through orders of the CCI in the meanwhile, this court in W.P.(C) 2734/2013 filed by M section Maruti Suzuki India Ltd, directed that CCI could continue with the proceedings before it, but not give effect to its final order for 10 days.", "One of the petitioners, i.e. Mahindra Mahindra (W.P.(C) 6610/2014) filed an application dated 10.07.2013 which requested CCI to ensure that the varying quorum of its Members who have heard the matter would not result in any injustice to or adversely impact the outcome of the judgment in Case Number 03/2011.", "Consequently, CCI by its order dated 24.07.2013 while dismissing that application held that only those (of its) members who had heard the matter and were present at the time of arguments, shall decide the case in question.", "In the meanwhile, the writ petition before this court and the Madras High Court led to orders of stay in some cases, and notice (in the other case).", "Eventually, on 25.08.2014, the CCI made its final order in Case Number 03/2011.", "By this Final Order, the CCI held that all the car manufacturers including the petitioner have contravened the provisions of Sections 3(4)(b), 3(4)(c), 3(4)(d), 4(2)(a)(i) and (ii), 4(2)(c) and 4(2)(e) of the Act.", "Tracing the origin of competition laws in India, the petitioners refer to the Mahalnobis Committee which flagged income disparity as one of the major challenges to social development.", "Such inequality in income was viewed as contrary to the constitutional ideals of Justice-Social, Economic and Political as well as the provisions contained in the Directive Principles of State Policy read with reasonable restrictions on fundamental rights and constitutional freedom relating to trade and commerce.", "This led to the constitution of a high-powered Monopolies Inquiry Commission (hereafter MIC) in 1964.", "The Central Government appointed a five-member Commission under the Chairmanship of Mr. K.C. Dasgupta in April, 1964 to enquire into the concentration of economic power and suggest measures to regulate and control monopolistic and restrictive trade practices in the country.", "The Commission submitted its report in October, 1965.", "It suggested the introduction of Monopolies and Restrictive Trade Practices Act to check concentration of economic power and to control monopolistic and restrictive trade practices.", "The report of the MIC highlighted the opinion that restrictive practices need a. judicial determination and finding.", "The report of the MIC clearly stated that the success of the proposed MRTP Commission to curb the restrictive practices would largely depend on fair and quick investigations of all complaints.", "The MIC considered it essential in their view that the question whether a restrictive practice is the common detriment or not should be decided judicially by those at the head of the permanent body.", "The MIC considered it essential that the Commission should judicially decide the questions to be determined by it.", "The MIC stated in its report that where the judicial examination results in a finding that no restrictive practice is being pursued or that though such a practice is being pursued, it is in the interest of the general public, then no further action be taken.", "Where, however, the decision is otherwise, the most fruitful line of action would be for the Commission to issue an order.", "It is submitted that based on the recommendations of the MIC, the Monopolies and Restrictive Trade Practices Act, 1969 (hereafter the MRTP Act) was enacted by the Parliament.", "It is stated that the MIC was aware that there had to be positive statute by the Parliament and it should be enforced only by substantive due process.", "This, necessarily needed a judicial body.", "Next, the Raghavan Committee Report, 2000 (hereafter the Raghavan Report) was referred to.", "It was urged that the MRTP Act, which came into effect on 01.06.1970, was the first enactment to deal with competition issues.", "In the wake of economic reforms since 1991, it was felt that this Act had become obsolete in the light of international economic developments which relate more particularly to competition laws and thus, there was a need to shift the focus from curbing monopolies to promoting competition.", "Therefore, a High-Level Committee on Competition Policy and Law (Raghavan Committee) was formed.", "The following extracts of the Raghavan report are relied upon: 4.8.4.", "Competition Law and Competition Law Authority For implementing the Competition Policy Law, it is necessary to establish a Competition Law Authority (Competition Commission of India) with adequate powers for advocacy of competition policy, adjudication, and effective enforcement of the Law and for implementation of its decisions.", "The following principles are desirable in designing and implementation of Competition Law.", "The Competition Law should provide a system of checks and balances by ensuring due process of law with provisions for appeal and review.", "The Competition Law Authority should be a multi-member body comprised of eminent and erudite persons of integrity from the fields of Judiciary, Economics, Law, International Trade, Commerce, Industry, Accountancy, Public Affairs and Administration.", "Having an appropriate provision for their removal only with the concurrence of the Apex Court may ensure their independent functioning.", "The Competition Law Authority should be independent and insulated from political and budgetary controls of the Government.", "Competition Law should separate the investigative, prosecutorial and adjudicative functions.", "Competition Law should have punitive provisions for punishing the offenders besides other remedial methods (reformatory).", "The proceedings of the Competition Law Authority should be transparent, non - discriminatory and rule-bound.", "The Competition Law Authority should have a positive advocacy role in shaping policies affecting Competition.", "Adjudication 6.2.2.", "Central to effective implementation and enforcement of Competition Policy and Competition Law is an appropriate competent and effective adjudicative body, in the instant case, the Competition Commission of India.", "CCI will have to be a quasi-judicial body with autonomy and administrative power.", "It would be an independent statutory body without any political or budgetary control of the Government.", "Like the Supreme Court of India the CCI should be free to control its budget, after the Parliament votes its budgetary subvention.", "The remuneration of the Chairperson and Members of the CCI and all other expenditure should be a charge on the Consolidated Fund of India.", "6.2.3.", "CCI will be a multi-member body with its Chairperson and Members chosen for their expertise, knowledge and experience in Judiciary Economics Law International Trade, Commerce, Industry, Accountancy, Public Affairs and Administration.", "It is imperative that those selected have a record of unimpeachable probity, integrity and solvency.", "6.2.4.", "The number of Members of CCI is obviously relatable to its work load.", "It needs to be kept in view that the Mergers Commission (See below) will be a part of 1 and at least two Members will have to be detailed to deal with cases of mergers, amalgamation, acquisitions and takeovers.", "It is suggested that the Headquarters may have two Benches of two members each, of which one will be the Mergers Commission Bench.", "The Headquarters of the CCI may be located at a Metropolitan Centre outside Delhi.", "6.2.5.", "There will be three Benches, in addition to the Headquarters Bench and the may be located at Delhi, Calcutta, Mumbai and Chennai.", "Later depending upon the workload and experience more Benches may be created at other places.", "This means that CCI (including Mergers Commission) should have not less than ten Members including the Chairperson.", "The Headquarters will have one Bench of two members as Mergers Commission.", "It will also have another Bench of two members to deal with the competition matters.", "All the other three metropolitan cities will have one Bench of two members each to d al with the competition matters, in addition to the Headquarters Bench.", "6.2.6.", "Each Bench must have a judicial member, as it will have the power of imposing sentences of imprisonment, in addition to levying fines.", "A judicial member will be one who is a sitting or retired Supreme High Court judge or one who is qualified to be a Supreme High Court judge.", "It was submitted that the Competition Bill was referred to the Standing Committee which, through the Rajya Sabhas Ninety Third Report on the Bill, stated, inter alia, that: The Bill describes the CCI as a body corporate (clause 7(2) and a quasi-judicial body (Statement of Objects and Reasons whereas it has pre-requisites of a full-fledged judicial body clause 36(2).", "The Committee wanted 10 know the exact status of the CCI.", "The Ministry in their written submission has clarified that the Bill describes the CCI as a body corporate for certain specific purposes like having perpetual succession, a common seal and power to acquire hold and dispose of movable and immovable properties although normally body corporate connotes accompany.", "As to the status of the CCI being a quasi-judicial or judicial body, the four prerequisites of a judicial body as enumerated in a decision laid down by Kings Bench in Cooper v. Wilson (C 1937 2 KB 309), were brought to the notice of the Department for their comments.", "The Ministry has admitted in their written submission that the Bill (clauses 36 read with clause 40) makes it closer to a judicial body.", "The CCI has specific adjudicatory function in relation to abuse of dominance and anti-competitive agreement and on combinations under clause 27 and 31, respectively.", "The decision of CCI has extraterritorial reach under clause 32.", "Clause 36(3) says that the proceedings before the CCI would be judicial proceedings.", "The CCI can detain a person in civil prison for specific purposes.", "Thus, the Ministry is of the opinion that it is a judicial body.", "In contradistinction to the Statement of Objects and Reasons which describes CCI as a quasi-judicial body, the Department has now submitted that it is adjudicatory.", "Besides, the Department, having admitted the apparent contradiction, has also submitted that CCI can sue or be sued.", "Here, the Committee wishes to point out that a judicial body never needs to sue anybody but it can issue orders for compliance.", "Suing means filing litigation against an opposite party before another judicial body to ventilate grievances.", "Admittedly a judicial body shall not require to sue anyone because that is not permissible in law.", "Hence it can also not be sued.", "The Committee notes that there is a difference between the Chairperson and Members of the CCI insofar as their status and remuneration are concerned whereas there is no difference between them in relation to their qualifications.", "In this context, the Committee wanted to know why the age cap of 70 years and status of a Supreme Court Judge is stipulated for Chairperson in the Bill in the light of the fact that the age of retirement of Supreme COUlI Judge including the Chief Justice of India is 65 years.", "The Ministry has submitted in their written submission that conferment of status of a Supreme court Judge on the Chairperson is designed to attract eminent persons including from sitting retired Judges from Supreme Court High Court.", "Further the age cap of 70 years for Chairperson and 65 years for Members is in line with some of the extant Tribunals like the National Human Rights Commission and National Consumer Disputes Redressal Commission (NCDRC) although MRTP Act has the age cap of 65 years for the Chairman and Members.", "The higher age cap is meant for inviting eminent persons with experience to the CCI.", "The Competition Law is a socio-economic legislation and it may not be necessary to have the Chairperson, only from the judiciary.", "In UK for instance an industrialist is the Chairperson of the Competition Law Authority.", "The high judiciary, namely, the Supreme Court and the High Courts may be expected to countenance a Chairperson not from the judiciary, as the election Committee for selecting the Chairperson consists of the Chief Justice of the Supreme Court or his her nominee.", "All the petitioners then refer to the notification of the first Chairman of the CCI after the Act was brought into force, and the challenge to appointment, as well as provisions of the Act, before the Madras High Court and the Supreme Court (which culminated in the decision in Braham Dutt v. Union of India  : 2005 (2) SCC 431).", "The essential challenge in those writ petitions was that the CCI envisaged by the Act was more of a judicial body having adjudicatory powers and that in the background of the doctrine of separation of powers recognized by the Constitution of India, the Chairman of the CCI had necessarily to be a retired Chief Justice or Judge of the Supreme Court or of a High Court, to be nominated by the Chief Justice of India or by a Committee presided over by the Chief Justice of India and further the right to appoint the Judicial Members of the CCI should also rest with the Chief Justice of India or his nominee.", "The Supreme Court in its interim order dated 31.10.2003 stayed the judicial functioning of the CCI and the operation of Rule 3 of the Competition Commission of India (Selection of Chairperson and other Members of the Commission) Rules, 2003.", "It is stated that the Central Government then submitted before the Supreme Court that it intended to bring about certain changes in the Act, in light of the issues raised in the Writ Petition.", "The Supreme Court delivered its judgment in the matter on 20.01.2005.", "It disposed of the writ petition leaving open all questions regarding the validity of the enactment, including the validity of Rule 3 of the Rules to be decided after the amendment of the Act and declined to pronounce on the matters argued before it in a theoretical context and based only on general pleadings.", "The relevant portions of the case decided by the Supreme Court of India is as follows: We find that the amendments which the Union of India proposes to introduce in Parliament would have a clear bearing on the question raised for decision in the Writ Petition essentially based on the separation of powers recognized by the Constitution.", "The challenge that there is usurpation of judicial power and conferment of the same on a non- judicial body is sought to be met by taking the stand that an Appellate Authority would be constituted and that body would essentially be a judicial body conforming to the concept of separation of judicial powers as recognized by this Court.", "In the Writ Petition the challenge is essentially general in nature and how far that general challenge would be met by the proposed amendments is a question that has to be considered later, if and when, the amendments are made to the enactment.", "In fact, what is contended by learned counsel for the petitioner is that the prospect of an amendment or the proposal for an amendment cannot be taken note of at this stage.", "Since, we feel that it will be appropriate to consider the validity of the relevant provisions of the Act with particular reference to Rule 3 of the Rules and Section 8 (2) of the Act, after the enactment is amended as sought to be held out by the Union of India in its counter affidavits, we are satisfied that it will not be proper to pronounce on the question at this stage.", "On the whole, we feel that it will be appropriate to postpone a decision on the question after the amendments, if any, to the Act are carried out and without prejudice to the rights of the petitioner to approach this Court again with specific averments in support of the challenge with reference to the various sections of the Act on the basis of the arguments that were raised before us at the time of hearing.", "Therefore, we decline to answer at this stage, the challenge raised by the petitioner and leave open all questions to be decided in an appropriate Writ Petition, in the context of the submission in the counter affidavits filed on behalf of the Union of India that certain amendments to the enactment are proposed and a bill in that behalf would be introduced in Parliament.", "We may observe that if an expert body is to be created as submitted on behalf of the Union of India consistent with what is said to be the international practice, it might be appropriate for the respondents to consider the creation of two separate bodies, one with expertise that is advisory and regulatory and the other adjudicatory.", "This followed up by an appellate body as contemplated by the proposed amendment, can go a long way, in meeting the challenge sought to be raised in this Writ Petition based on the doctrine of separation of powers recognized by the Constitution.", "Any way, it is for those who are concerned with the process of amendment to consider that aspect.", "It cannot be gainsaid that the Commission as now contemplated, has a number of adjudicatory functions as well.", "The petitioners then refer to portions of the Standing Committee Report of 2006 on the Bill to amend the Act, so far as it related to the Central Governments views on the need to ensure transparency and fairness in selection of members, through a provision by which the Chief Justice of India or his nominee was to chair the selection committee and its views on the expression information substituting the then existing term complaint.", "The common thread of arguments of all the writ petitioners is that the CCI is essentially an adjudicatory body, given its mandate to investigate into allegations that fall within its watch (abusive behaviour due to market dominance, cartelization etc.), adjudicate the rights of parties and entities, and where necessary, impose penalties.", "The petitioners submit that composition of the CCI (in terms of its membership), manner of their appointment, their qualifications, the procedure adopted by it, violate principles of separation of powers and independence of the judiciary, which are essential bulwarks upon which the Constitution rests and which are assured to the people of India, in regard to adjudication of disputes.", "The petitioners contest the position of the UOI that CCI is basically a regulatory body, invested with certain adjudicatory attributes and that the objective of setting it up was to regulate market behaviour to ensure a level playing field.", "It is argued by Mr. Amit Sibal, learned senior counsel appearing in the lead matter W.P.(C) 6610/2014- the Mahindra case, that the Constitution of India guarantees adjudication by an independent body with a judicially trained mind.", "The CCI carries out adjudicatory and essential judicial functions.", "Therefore, procedure under the Act must conform to the judicial approach.", "However, procedure under the Act is ultra vires Article 14 of the C Constitution of India and anathema to judicial decision making.", "Elaborating, it is submitted that both CCI and COMPAT have all the trappings of a court and are hence tribunals.", "Therefore (i) the composition (ii) manner of appointment (iii) term of office and (iv) executive control over the CCI and COMPAT must be aligned to that of a judicial body and should be in consonance with the doctrine of separation of powers and principles of preserving the independence of the judiciary.", "It is submitted that the penalty under Section 27 of the Act is vague, discriminatory, arbitrary and violative of Article 14 of the Constitution of India.", "Further, Regulation 48 of the General Regulations which dispenses with the requirement of a separate hearing prior to imposition of penalty is also bad in law.", "Turning to the principal argument, it is stated that in Braham Dutt (supra), the Supreme Court observed that it would be appropriate for the Union of India to consider the creation of two separate bodies: one advisory and regulatory, and the other adjudicatory and an appellate body following up the adjudicatory body.", "The Competition Amendment Act, 2007 was passed on a complete misreading of Braham Dutt (supra).", "The adjudicatory function of the CCI remained unchanged, but several amendments with respect to its procedure were a mismatch to its adjudicatory functions and were more suited to a corporate body.", "Mr. Sibal urges that CCIs functions are overwhelmingly adjudicatory (to substantiate this, reference is made to Sections 3, 4, 26, 27 and 28 of the Act).", "It is argued that the CCI perceives itself to be a judicial body and in this regard, he placed reliance on Regulations 24, 26, 27, 29, 31, 32, and 35 of the General Regulations.", "Learned senior counsel submitted that the CCI clearly passed the impugned order while exercising adjudicatory judicial functions.", "It was also contended that Section 22(3) of the Act is ex facie unconstitutional.", "He said that the terms used, i.e. meetings, voting, second or casting vote and quorum are anathema to adjudicatory functions.", "According to the learned senior counsel, Section 22(3) particularly, which enables the Chairperson to rely on a casting vote is anathema to a judicial body.", "It is submitted that the Union of India (UOI hereafter) and the CCI failed to point out a single instance of judicial functions, in any other statute, where there is a provision for a casting vote or where a subset of those who hear and deliberate are permitted to pass the order.", "Learned counsel relied on Punjab University v. Vijay Singh Lamba  : (1976) 3 SCC 344, especially the observations of the court that: A court is not a committee and if by law any matter is required to be heard, say by a bench of three judges, there is no power in those three judges to resolve that only two of them will form a quorum.", "In fact quorum is fixed for meetings of committees and not for the sittings of courts.", "It was submitted that the Security Exchange Board of India Act (SEBI), no doubt, contains provision for a casting vote.", "However, that power applies only when SEBI functions as a regulatory board, and does not apply to the power of the Adjudicating Officer.", "Unlike the CCI, there is a wall between the regulatory and adjudicatory functions of the SEBI.", "It is argued that the proviso to Section 22(3) of the Act, which allows a quorum of three to pass an order is plainly contrary to the main provision, which requires a decision to be made by majority with the CCI having up to seven members, the majority being four members.", "In every determination that affects the rights of a citizen or leads to any civil consequences, the said body is bound to adopt a judicial approach.", "Section 22(3) militates against a judicial approach and is, therefore, ultra vires the Constitution.", "The impugned order is characterized as per se illegal as it was passed by 3 members of the CCI taking refuge of the unconstitutional proviso to Section 22(3), despite the fact that final arguments on behalf of the Petitioners were heard by seven members.", "It was argued that the four members who shaped the course of the final hearings, posed questions to parties, requesting additional information, and participated in deliberations, did not participate in the final decision.", "The instance of one member, Mr. Bunker, who heard the final arguments of the informant on 05.03.2013, and thereafter participated in substantive hearings and deliberations leading to the impugned order, and his not signing the impugned order is cited as incurably illegal and not merely procedurally improper.", "The petitioners argue that the CCIs hearing procedure ingrains the concept of the revolving door whereby members of the body participate in any proceeding at any given point of time, without any principle or pre-determined manner, essentially destroying the guarantee of fair hearing: this is enabled by Section 22(3) of the Act and violates the basic principle that one who hears must decide.", "It is submitted that the revolving door is a death knell to collegiality and collective decision making which is essential to all judicial decision making, as a collegium has a personality that exceeds its members.", "This is an unconstitutional aspect embedded in Section 22(3) in unambiguous and definite terms.", "Therefore, it cannot be read down nor be saved by the manner in which it is administered.", "The learned senior counsel relied on Surendra Singh v. State of UP  : AIR 1954 SC 194 to underline that the essence of a tribunals functioning is the ability of a judge sitting on it, to effectively participate and bring her mind to the final decision, till the making of that decision or judgment.", "Particularly, the following observations were relied on: In our opinion, a judgment within the meaning of these sections is the final decision of the court intimated to the parties and to the world at large by formal pronouncement or delivery in open court.", "It is a judicial act which must be performed in a judicial way.", "Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there: that can neither be blurred nor left to inference and conjecture nor can it be vague.", "All the rest - the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter - can be cured but not the hard core, namely, the formal intimation of the decision and its contents formally declared in a judicial way in open court.", "The exact way in which this is done does not matter.", "In some courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.", "An important point therefore arises.", "It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the court as it is at the time of pronouncement.", "We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that ill rust be done in a judicial way in open court.", "But however it is done it must be an expression of the mind of the court at the time of delivery.", "We say this because that is the first judicial act touching the judgment which the court performs after the hearing.", "Everything else up till then is done out of court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion.", "Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion.", "That is not their judgment.", "They may write and exchange drafts.", "Those are not the judgments either, however heavily and often they may have been signed.", "The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court.", "That is what constitutes the judgment.", "Now up to the moment the judgment is delivered Judges have the right to change their mind.", "There is a sort of locus poenitentiae, and indeed last-minute alterations often do occur.", "Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the court.", "Only then does it crystallise into a full-fledged judgment and become operative.", "It follows that the Judge who delivers the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind.", "There is no need for him to be physically present in court but he must be in existence as a member of the court and be in a position to stop delivery and effect an alteration should there be any last-minute change of mind on his part.", "If he hands in a draft and signs it and indicates that he intends that to be the final expository of his views it can be assumed that those are still his views at the moment of delivery if he is alive and, in a position, to change his mind but takes no steps to arrest delivery.", "But one cannot assume that he would not have changed his mind if he is no longer in a position to do so.", "A Judges responsibility is heavy and when a mans life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture also, a question of public policy is involved.", "As we have indicated, it is frequently the practice to send a draft, sometimes a signed draft, to a brother Judge who also heard the case.", "This may he merely for his information, or for consideration and criticism.", "The mere signing of the draft does not necessarily indicate a closed mind.", "We feel it would be against public policy to leave the door open for an investigation whether a draft sent by a judge was intended to embody his final and unalterable opinion or was only intended to be a tentative draft sent with an unwritten understanding that he is free to change his mind should fresh light dawn upon him before the delivery of judgment.", "It is argued that the CCIs reliance on the decision of the COMPATs decision in Nissan Motor India Pvt.", "Limited v. Competition Commission of India (Civil Appeal Number 951/2017) is unfounded, as the constitutionality of Section 22(3) was not and could not have been challenged before the COMPAT.", "The decision of the COMPAT does not bind this court, and has been stayed by the Supreme Court of India.", "Next, the proviso to Section 22(3) of the Act, which invests the CCIs President with the power of a casting vote (in case of an even member tribunal, where the plurality of its opinions is equally differing) is challenged.", "It is submitted that no judicial tribunal with a multiplicity of members, that decides a lis or adjudicates a dispute over which it has jurisdiction, can, in India, permit greater weight to the decision of one or some of its members.", "The concept of a casting vote, say the petitioners, is an appropriate concept for corporate board rooms and not in a judicial tribunal that have plurality of members, who and exercise the same jurisdiction and powers.", "Mr. Sibal relied on Shobhana Shankar Patil v. Mrs. Ramachandra Shirodkar and Ors.", " : AIR 1996 Bom 217, where the court held that a rule that allowed the chief judge of an appellate bench to rely on a casting vote, was arbitrary.", "The court observed, then, as follows: The rule postulates that the opinion rendered by the senior Judge should prevail when there is conflict between two Judges.", "We really fail to understand as to how the seniority of the Judge can be said to be a relevant criterion for deciding an appeal under the Act.", "The rule appears to have been based on assumption that opinion given by the Chief Judge or a Judge having precedence in rank or seniority, more experienced is always right and preferable to the opinion of a junior Judge.", "In our view, this assumption is totally illogical and irrational.", "The seniority or a rank of a Judge may be relevant consideration in the internal administration of the Court.", "It may also be relevant for further promotion to the higher Court, but merely because the Judge happens to be the Chief Judge or he happens to be a senior Judge cannot be a ground for accepting his decision as correct decision by completely disregarding the decision given by the junior Judge.", "Needless to mention that the Judges, who are equal in rank, enjoy equal powers and jurisdiction as far as judicial work is concerned.", "The irrationality of the rule can be further demonstrated by a simple illustration where both the Judges are appointed on the same day and out of whom, one Judge will be necessarily senior and simply because seniority has been given to him at the time of his appointment, his opinion will always supersede the opinion of the junior Judge (who was also appointed on the same day).", "We do not see any rational or logic in giving a preference to the opinion rendered by the senior Judge in this fashion.", "Therefore, in our opinion, the impugned rule suffers from vice of arbitrariness and unreasonableness and on that count also, it is liable to be struck down.", "It is submitted, next, that the Act violates the doctrine of separation of powers and the independence of the judiciary.", "Counsel submitted that the CCI is a tribunal and satisfies the test highlighted in the case of Cooper v. Wilson 1937 2 K.B. 309 relied in the Bharat Bank v. Employees of Bharat Bank Limited  : AIR 1950 SC 188 Harinagar Sugar Mills v. Shy am Sundar Jhunjhunwala  : AIR 1961 SC 1669 and Jaswant Sugar Mills Limited v. Lakshmi Chand Ors.", " : AIR 1963 SC 677.", "In Harinagar Sugar Mills (supra), it was observed that a tribunal is a body which is required to act judicially and which exercises judicial power of the State does not cease to be one exercising judicial or quasi-judicial functions merely because it is not expressly required to be guided by any recognised substantive law in deciding the disputes which come before it.", "The other decision cited was Indian National Congress v. Institute of Social Welfare Ors.", " : 2002 (5) SCC 685, where the court held that the Election Commission did perform adjudicatory functions while exercising some of its powers.", "It was observed in that case that What distinguishes an administrative act from a quasi-judicial act is that in the case of quasi- judicial functions under the relevant law be statutory authority is required to act judicially.", "In other words where law requires that an authority before arriving at a decision must make an enquiry such a requirement of law makes the authority a quasi-judicial authority.", "Another test which distinguishes administrative function from quasi-judicial function is that the authority which acts quasi-judicially is required to act according to the rules, whereas the authority which acts administratively is dictated by policy and expediency.", "Mr. Sibal relied extensively on the observations in Union of India v. R. Gandhi  : 2010 (11) SCC 1 and submitted that separation of powers is part of the basic structure and provides that the legislature and executive shall not, in discharge of their functions, transgress constitutional limitations.", "This relates to the principle of the independence of the judiciary, which provides that judicial functions shall be independent of executive influence.", "Separation of powers equally applies to all legislations, but is violated in the Act.", "It is submitted that separation of powers prohibits one branch of the State taking over an essential function of another branch (in the present case, the Executive exercising both direct and indirect control and influencing over adjudication by the CCI).", "The following passage from R. Gandhi (supra) was highlighted: Impartiality, independence, fairness and reasonableness in decision making are the hallmarks of the judiciary.", "If impartiality is the soul of the judiciary, independence is the lifeblood of the judiciary.", "Without independence, impartiality cannot.", "Independence is the not freedom for judges to do what they like.", "It is independence of judicial thought.", "It is the freedom from interference and pressure which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values.", "It is also the discipline in life, habits and outlook that enables a judge to be impartial.", "Its existence depends however not only philosophical, ethical or moral aspects but also upon several mundane things -security in tenure, freedom from ordinary monetary worries, freedom from influence and pressures from within (from others in the judiciary) and without (from the executive).", "It was argued that provisions for members re-appointment Sections 10 (1) and 53F, selection by a committee with majority members from the Executive (Sections 9 and 53E), and directions and supersession by the Central Government (Sections 55 and 56) clearly violate separation of powers and independence of the judiciary.", "Similar provisions have also been struck down in Madras Bar Association Union of India  : (2014) 10 SCC 1.", "It is argued that this principle has significant relevance, because the Government and its instrumentalities are commonly informants or opposite parties in proceedings before the CCI.", "The Ld.", "Senior Counsel argues that Section 18 of the Act shows that the regulatory and adjudicatory functions are discharged by adjudicatory function under Section 3 and 4 of the Act by eliminating practices having an appreciable adverse effect on competition.", "Stressing that the CCls functions are predominantly reactive, unlike sectoral regulators which are proactive.", "The CCI, cannot be equated with bodies like SEBI, TRAI (Telecom Regulatory Authority of India), RERA (Real Estate Regulatory Authority of India), IRDA (Telecom Regulatory Authority of India) or SERC CERC whose primary function is proactive, i.e. setting tariffs, laying down substantive guidelines, etc.", "Further, the CCIs power to frame regulations is extremely narrow, as can be seen from Section 64 of the Act.", "CCI is closer to purely adjudicatory bodies: CAT, NIT, NCLT, etc.", "Therefore, on the spectrum of bodies that carry out both adjudicatory and regulatory functions, the CCI tilts heavily towards the adjudicatory side.", "It was next argued that the absence of predominance of judicial members or those with experience in law, in the CCI is anathema to the judicial approach and renders the Act void.", "It was urged that since the CCI primarily performs adjudicatory functions, it must be predominantly staffed by persons of law.", "Though there may be a mix of judicial members and technical members, there should nevertheless be a predominance of judicial members.", "In this context, it is stated that Section 19 of the Act, does not derogate from the requirement of a predominance of judicial members.", "Minority of technical members, along with the power to call upon experts under Section 36(3) would satisfy the requirement of Section Judges experienced in these fields can be appointed.", "On the other hand, that final arguments in the present case were heard in part by seven members, but finally signed by three non-judicial members which illustrates the perils of proceeding without judicial legal members.", "The argument advanced by Mr. Gopal Subramanian, learned senior counsel was that CCI adjudicates a lis whereas the COMPAT, is primarily appellate and has limited original jurisdiction.", "This is in contrast to the TRAI-TDS AT model, where the TDSAT discharges adjudicatory functions with a very wide original jurisdiction, while the TRAI is a regulatory body.", "Reliance was placed upon State of Gujarat v. Utility Users Welfare Association  : 2018 (6) SCC 21 where the Supreme Court held that it is mandatory that a person of law to be a member of a primarily regulatory body performing some judicial function and further that the presence of a judge in an appellate body cannot cure the defect of not having a judicial member in original adjudicatory proceedings.", "Mr. Subramanian argued that there is no provision stipulating any qualification for a member of the Election Commission of India (hereafter ECI), which is a constitutional body under Article 324 of the Constitution.", "The ECI primarily conducts elections, and its adjudicatory aspect is only a fraction of its functions.", "Even the ECI, in its adjudicatory functions, as per Kailash Gahlot Ors.", "v. Election Commission of India Ors.", " : (2018) 250 DLT 193 (DB) must follow the principle that one who hears must decide, and cannot follow a revolving door policy.", "The fact that the ECI does not have any judicial member has not been tested in a court of law and therefore cannot be relied on.", "It was submitted that justice through an independent tribunal, comprised entirely or mainly of legally trained professionals, is a manifest guarantee held out by the Constitution of India.", "Therefore, a body, such as CCI, with no guarantee of any judicial composition (of legally trained and experienced minds) but which clearly performs judicial tasks leading to re-defining of legal rights and creating binding disabilities in the course of carrying on trade and commerce, is unreasonable and arbitrary.", "Learned counsel relied on passages from the decision in Madras Bar Association v. Union of India Anr.", " : (2014) 10 SCC 1 (hereafter NTT Case) to say that separation of powers and independence of the judiciary are inalienable and non-derogable guarantees to the citizens of India.", "Observations to the effect that independent judicial tribunals for determination of the rights of citizens, are necessary are relied on.", "It was held that: for adjudication of the disputes and complaints of the citizens, is a necessary concomitant of the rule of law.", "The rule of law has several facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial and that disputes as to legality of acts of the Government will he decided by Judges who are independent of the executive.", "Another facet of the rule of law is equality before law.", "The essence of the equality is that it must be capable of being enforced and adjudicated by an independent judicial forum.", "Judicial independence and separation of judicial power from the executive are part of the common law traditions implicit in a Constitution like ours which is based on the Westminster model.", "Counsel stressed that the right to equality envisions the right to have adjudication of disputes of citizens adjudicated by a forum which exercises judicial power in an impartial and independent manner, consistent with the recognized principles of adjudication and that wherever access to courts to enforce such rights is sought to be abridged, altered, modified or substituted by directing him to approach an alternative forum such legislative Act is open to challenge if it violates the right to adjudication by an independent forum.", "Reliance was also placed on the observations that the personnel who man such tribunal should be sufficiently qualified and should possess relevant experience in law or judicial office, so as to discharge the functions entrusted impartially and furthermore, the predominance of any individuals attached to or associated with the government or the executive would undermine the rule of law and separation of powers.", "It was further argued that adjudicatory responsibilities do not involve technical expertise of any kind, or knowledge and that consequently, provisions enabling appointment of non-judicial members is unconstitutional.", "It was urged that the predominantly judicial nature and function of the CCI is evident from the various provisions of the Act which show that its proceedings are akin to civil court proceedings a tabular chart was presented to the court, which is extracted below: RELEVANT SECTIONDETAILS OF THE ACT Section 35 States that the parties can present the case before CCI Regulation 29 Provides the manner of making submissions or arguments by parties before the Tribunal.", "Section 36(2) While discharging its functions has the s ame powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit.", "Section 19 Determines adjudicates the issue of contraventi on of the provisions of Section 3 or Section 4 of the Act.", "Section 26 (2) The CCI can also dispose of the matter / cl o se the matter in case it is of the opinion that there exists no prima facie case Section 27(b) The CCI can impose penalty with unfettered powers.", "Mr. Subramanian also emphasized that CCIs adjudicatory nature was underlined in Competition Commission of India v. SAIL  : (2010) 10 SCC 744 (the SAIL judgment or SAIL hereafter), particularly the following passage: The powers conferred by the Legislature upon the Commission under Sections 27(d) and 31(3) are of wide magnitude and of serious ramifications.", "The Commission has the jurisdiction even to direct that an agreement entered into between the parties shall stand modified to the extent and in the manner, as may be specified.", "Similarly, where it is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, the Commission is empowered to direct such modification.", "These powers of the Commission, read with provisions mentioned earlier, certainly require issuance of certain directions in order to achieve the object of the Act and to ensure its proper implementation.", "The power to restructure the agreement can be brought into service and matters dealt with expeditiously, rather than passing of ad interim orders in relation to such agreements, which may continue for indefinite periods.", "To avoid this mischief, it is necessary that wherever the Commission exercises its jurisdiction to pass ad interim restraint orders, it must do so by issuing notices for a short date and deal with such applications expeditiously.", "Order XXXIX, Rules 3 and 3A of the Code of Civil Procedure also have similar provisions.", "Certain procedural directions will help in avoiding prejudicial consequences, against any of the parties to the proceedings and the possibility of abuse of jurisdiction by the parties can be eliminated by proper exercise of discretion and for valid reasons.", "Courts have been issuing directions in appropriate cases and wherever the situation has demanded so.", "Administration of justice does not depend on individuals, but it has to be a collective effort at all levels of the judicial hierarchy, i.e. the hierarchy of the Courts or the fora before whom the matters are sub-judice, so that the persons awaiting justice can receive the same in a most expeditious and effective manner.", "The approach of the Commission even in its procedural matters, therefore, should be macro level rather than micro level.", "It must deal with all such references or applications expeditiously in accordance with law and by giving appropriate reasons.", "Thus, we find it necessary to issue some directions which shall remain in force till appropriate regulations in that regard are framed by the competent authority.", "It is argued that Section 19 of the Act is a provision for the CCIs enquiry into any alleged contravention of the provision of Sections 3 or 4 of the Act Section 35 of the Act read with Regulation 29(1) of the regulations provides for making of submission or arguments by parties before the CCI Section 27 of the Act read with Regulation 32 of the regulations gives the power to the Commission to pass various orders after enquiry into agreements or abuse of dominant position Section 26(2) further empowers the CCI to close the matter forthwith and pass such orders as it deems fit in case it is of the opinion that there exists no prima facie case Section 35 of the Act enables a person or an enterprise to appear in person or through any other person authorized by it to present his or its case before the CCI.", "All these forms the core of that bodys functioning, which is essentially judicial.", "It is urged that assuming without conceding that the CCI is not predominantly performing adjudicatory functions, it has certain definite adjudicatory functions.", "These need to be dealt with in accordance with the NTT case.", "On the issue of whether there is adjudication, the material question ought to be one of substance not form.", "If one sees the impact of CCIs decisions, they are significant and no different from consequences that flow from adjudicative decisions.", "Here, the Ld.", "Senior counsel relied on the observations of the Supreme Court in A.K. Kraipak v. Union of India  : (1969) 2 SCC 262 that: The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated.", "For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised.", "Under our Constitution the rule of law pervades over the entire field of administration.", "Every organ of the State under our Constitution is regulated and controlled by the rule of law.", "In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate.", "The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner.", "The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously.", "The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.", "It is submitted that the Supreme Court underpinned that it is impossible to delineate watertight categories of what are administrative and quasi- judicial functions.", "Therefore, in this event, slotting the CCI into one or other of these watertight categories is inappropriate in deciding the instant case.", "This is because firstly, irrespective of whether CCI is a judicial body, all statutory decision makers are delegates of state power.", "So, they must be independent of influence, and have duty to act justly and fairly to uphold the rule of law.", "Secondly, CCI has the power to alter freely formed agreements.", "Whenever freedom of contract is at issue, the substance and impact of the action is material, not the form in which it is performed.", "Furthermore, the counsel submitted, various forms of state action are changing and merging, so the standard adopted to distinguish different forms of state action must focus on purpose of the protection and not the mechanics of it.", "The State is increasingly delegating its functions to new forms of entities.", "The Supreme Court, through its decisions, has been ensuring that the force of the Constitution is maintained through both the form and means by which power is exercised.", "Two notable instances of this approach are the following- first, the Supreme Courts shift towards a function-based test for interpreting other authorities under Article 12 and secondly, its adoption of purposive interpretation of the Constitution, through the living constitution approach.", "It is submitted that existing tribunals are incomplete and not appropriate examples for building a constitutionally compatible regulator.", "Counsel argued that the Securities and Exchange Board of India (SEBI) and other new generation tribunals are not appropriate examples.", "Reliance was placed on a five Judge Bench decision of the Supreme Court in R. Gandhi (supra) which observed that many tribunals are not independent, and ought to be reformed.", "It was argued that preponderance of judicial members, transparent procedure, are the best possible version of a constitutional regulator.", "For these reasons, it is submitted that CCI does not even meet the minimum standard for constitutionality.", "Characterizing the CCI as a bureaucratic board and not an independent decision maker, counsel submitted that this conclusion emerges from (a) the manner of selection of members of the CCI (b) composition of the CCI (c) lack of fixed process -as admitted by CCI in relation to the limited scope of its transaction of business rules.", "In fact, the Supreme Court in R Gandhi (supra) stated that: (i) tribunals must resemble courts not bureaucratic boards (ii) Civil servants, or those selected by a panel constituted heavily of employees in the executive cannot select an independent entity.", "It is further submitted that even the SEBIs structure includes certain safeguards that are not present in the CCI, such as the fact that SEBI separates the judicial and regulatory function by providing for a dedicated adjudicatory officer (Section 15 of the SEBI Act and other similar provisions) the concept of a casting vote (as in Section 22 of the Act) does not come into play during adjudication by the SEBI.", "Counsel submits that though superficially, CCI and ECI perform adjudicatory functions with no judicial input in the latter body, a deeper analysis of the ECIs functions show that adjudication is confined to registration of parties and recommending findings on qualification or disqualification it lacks any power of review or imposition of penalty.", "On the other hand, even with such limited adjudicatory functions, it has greater functional independence the appointment of its Commissioners (and Chief Election Commissioner) is not by a government dominated body, but rather by an independent collegium its members have an assured age of retirement and constitutionally protected tenure of office and protected conditions of service.", "Despite performing judicial functions, CCIs members lack both protections and are chosen by a selection body dominated by members of the government.", "It was argued that Sections 55 and 56 show that CCI inherently lacks independence.", "These provisions are so sweeping in scope that they cast the shadow of the central government over all activities of the CCI.", "This creates a high likelihood of bias, and fatally undermines CCIs independence from the executive.", "Therefore, it is not necessary that these sections be directly at issue in the lis in this case.", "It is therefore, submitted that Sections 55 and 56 are so fundamentally unconstitutional that they must be struck down even though these are not directly in issue in the present case.", "It was submitted that an overemphasis on the technical expertise or qualification of members of the CCI, cannot obscure its role as an adjudicatory body or a judicial tribunal, deciding serious and important question, which directly and adversely implicate those subject to its jurisdiction.", "It was argued that the eventual provision of appeal to a body comprising of a retired judge (even of the Supreme Court) would not take away the fact that rule of law would be subverted at the forum of first instance, if judicially trained and experienced members are not mandated to judge the dispute.", "Counsel submitted that the jurisdiction to decide violation of Section 3 or indulge in deleterious practise which can result potentially in a bar to the manner of carrying on of ones trade, had grave civil consequences, which the Indian Constitution permits, only if it is adjudicated by a court or a tribunal comprised of personnel with proven judicial experience.", "Without that prerequisite, the guarantee of equality before law, and equal protection of law is violated.", "Counsel submitted that the bar to jurisdiction under Section 61 of the Act underscores the fact that the task performed by CCI is essentially judicial, ordinarily performed by civil courts: Section 9 of the Civil Procedure Code envisions jurisdiction over disputes of the kind that the CCI exercises, but for the bar or jurisdiction under Section 61.", "Learned counsel submitted that the bar of jurisdiction, which resulted in deprivation of the regular course of established courts that had traditional experience in adjudication, resulted in deprivation of the rule of law and violated Article 14 of the Constitution of India.", "Counsel also impugned the appeal provided by the Act (Section 53T) to the Supreme Court, stating that a direct appeal to the Supreme Court, which tended to exclude scrutiny through judicial review under Article 226 of the Constitution of India, was anathema to the rule of law.", "Appearing on behalf of Tata Motors, Dr. A.M. Singhvi and Mr. Arvind Nigam, learned senior counsel submitted that Section 27 (b) of the Act is void and arbitrary, because CCI has unfettered discretion on WHEN to impose penalty Section 27(b) provides no guidance on when CCI should impose penalty, i.e. whether circumstances warrant the imposition of penalty.", "It also has unfettered discretion as to quantum of penalty: it has unfettered discretion to pick an arbitrary percentage figure from 0 - 10 of turnover or 0 times to 3 times of profits of an enterprise for imposing penalty.", "The Act provides no guidelines.", "Learned senior counsel stated that the Act contains no provisions engrafting the factors to be taken into consideration CCI must consider for imposing a penalty.", "The separate opinion of N. V. Ramana, J in Excel Crop Care India v. Competition Commission of India  : 2017 (8) SCC 47 highlighted the need for guidelines while imposing penalties.", "It is argued that non-judicial bodies in and outside India, set out elaborate guidelines for imposing penalties.", "It is submitted that reliance on fiscal statutes, like the Customs Act or Excise Act is inapt, because those enactments provide upper penalty limits.", "There is no upper absolute limit under Section 27(b) of the Act.", "Section 27(b) only sets a maximum penalty percentage of 10 or profit multiple of 3.", "Ultimate penalty may vary from INR 0 to 1346.46 Crores (as in this case).", "Therefore, the absence of an upper limit in Section 27(b) allows for the exercise of unfettered powers.", "It is stated that CCIs reliance on Organo Chemical Industries v. Union of India  : (1979) 4 SCC 573 is also incorrect, because unlike Organo (supra) the petitioners in the instant case (a) were not provided an opportunity to present arguments and (b) imposition of blanket penalty of 2 of the total turnover itself shows that the CCI did not apply its mind to individual cases of each original equipment manufacturer (OEM) hereafter before imposing penalty.", "Further, CCIs reliance on Presolite India v. Regional Director  : 1994 Supp (3), SCC 690 is disputed.", "It is urged that in the present cases, CCI failed to consider individual mitigating circumstances of each petitioner and imposed a blanket penalty on all OEMs.", "It is argued that Section 27(b) is void as it does not provide for opportunity of hearing.", "The Act read with Regulation 48(1) specifically excludes an opportunity of hearing to parties at the time of imposing penalties for contravention under Sections 3 and 4 of the Act.", "Counsel disputed the CCIs position that a composite hearing for both presenting arguments against contravention and penalty is provided, and urge that it is not sufficient to uphold its vires under the Indian Constitution.", "An opportunity of hearing, must be given before imposing penalty and the person proceeded against must know that he is required to meet certain allegations, which might lead to a certain, action being taken against him-reliance is placed on S.L. Kapoor v. Jagmohan  : 1980 (4) SCC 379.", "It is stated, further, that the DGs report only contains findings of an investigation.", "The Act contemplates and the NCLAT has held in Hyundai Motor India Limited v. CCI Ors.", "Competition Appeal (AT) Number 06 of 2017, decided on 19.09.2018 that the CCI must carry out an independent inquiry further to the DGs report.", "Therefore, the only time parties are provided with an opportunity of hearing, they do not know the CCIs charge against them.", "As a sequitur, parties do not know what arguments to make on penalty.", "Had the petitioners known that the CCI was going to pass a blanket penalty on total turnover of the OEMs, they could have used the opportunity to distinguish the cases and highlight that penalty on turnover from outside India should be excluded.", "Unlike the Act, the Competition and Markets Authority, UK provides a draft penalty statement, which sets out key aspects for penalty calculation, post which parties are able to present arguments.", "It was contended that there is discrimination in the manner for imposing penalty: Regulation 48(1) of the General Regulation- specifically denies enterprises an opportunity of hearing to present arguments on penalty if CCI finds a case of contravention of Sections 3 and 4.", "By amendment to Regulation 48 (1) of General Regulations in 2011, CCI amended its own regulations to take away the right of parties to benefit from (a) a show cause notice and (b) reasonable opportunity to represent his case before CCI.", "Counsel highlighted that in contrast, opportunity of hearing is provided before imposing penalties in cartel cases under Section 46 of the Act, read with lesser Penalty Regulations, but not under Section 3 of the Act.", "Hearing on penalty is extended to all other cases under Chapter VI of the Act including for non-cooperation and gun-jumping, but not for penalties in respect of contraventions under Sections 3 and 4.", "The contrasting and differential treatment is per se discriminatory and not based on any rationale.", "Further, submitted counsel, the Act envisions multiplicity of wide-ranging and extensive orders under Section 27(b), which further demonstrates the requirement for a hearing in this case, a finding of contravention did not only lead to penalties, but also burdensome directions on the Petitioners business.", "An opportunity of hearing would have allowed the Petitioner to present its case on why the directions of the CCI were not commercially sound and would have resulted in overhauling the automotive parts industry in India.", "Turning next to the challenge to Section 26(1) of the Act, counsel point out that the previous decision of a Division Bench was not concerned with challenge to vires in Cadila Healthcare Limited v. Competition Commission of India .", "The court there was concerned with a fact- based challenge.", "CCI had allowed DG to investigate role of parties engaged in similar conduct.", "In the present case, stressed the counsel, CCI did not apply its mind as required by the Supreme Court in SAIL (supra) and merely held that the DG need not approach it to investigate the role of 14 other parties in an abuse of dominance allegation.", "Further, unlike in Cadila (supra), no information in respect of individual petitioners, including Tata Motors was provided.", "It is urged, therefore, that if Section 26(1) is interpreted as a carte blanche to the DG to investigate parties, absent application of mind by CCI, it would be in contempt of Supreme Court decision in SAIL (supra) would also be contrary to the objective of the Act, (which differs from MRTP Act by expressly granting the power to initiate investigation against parties to CCI only and not DG, thereby amounting to excessive delegation and amount to a fishing expedition.", "Mr. V. Lakshmikumaran, learned counsel appearing on behalf of M section Honda Cars India Limited dwelt in length on the role of regulatory bodies in India and that of the CCI in particular.", "He emphasized that a regulator is a governing or independent body setting standards or striving at a fair balance between the interests of consumer and that of the service provider - by relying on P. Ramanatha Aiyars, Lhe Major Law Lexicon, (Vol. 5, 4th Edn.", "2010 P. 5804).", "It is submitted that in India, regulators were set up in different sectors to ensure that the interests of consumers and the interest of the various players in the market are balanced.", "Such bodies dealt in different sectors where previously the government was operating exclusively and has since liberalized or privatized the sector.", "It was contended that this was thought to be expedient to bring in independent bodies balancing the competing interests of the stakeholders in the field.", "Mr. Lakshmikumaran, argued that regulators principally performed the functions which are regulatory, advisory or recommendatory, executive and in certain cases adjudicatory (the latter is incidental to regulatory framework in order to maintain the balance in the principal sector or industry concerned).", "In the process, the regulator is concerned mainly with issuing rules or regulations which forms the framework governing the sector and ensuring compliance by issuing directions it advices in certain cases while also discharging adjudicatory functions.", "The learned counsel dealt with the provisions of the SEBI Act (Section 11 delineating the regulatory functions of SEBI Section 15A to 15JA empowering adjudication and levy of penalties, etc.) the Telecom Regulatory Authority of India Act Section 11(1)(b) granting regulatory powers and section 11(1)(a) providing for recommendatory powers the Airports Authority of India Act (Section 12 dealing with regulatory functions to its standards for development, construction and maintenance of runway airports, etc.", "Section 28B - Officers empowered to evict unauthorized persons and consequentially Section 28E - power to remove unauthorized construction Section 29B and 28E) The Reserve Bank of India Act, 1934 (Section 17 being regulatory enabling the RBI to regulate banking in India and power to issue notice, Section 25 to 27 relating to legal tender and bank notes Section 45JA - power of RBI to determine policy and issue directions etc.) other enactments such as Airports Economic Regulatory Authority of India, 2008 The Electricity Act, 2003 (Section 79 and various sub-sections enabling determination of policy, the Tariff, Regulations of Tariffs, facilitation of inter-State transmission of electricity, licensing etc Section 79(1) (f) - adjudication of disputes between the licensees and generating companies and advisory functions under Section 79(2) with respect for formation of National Electricity Policy, Promotion of Competition, efficiency and economy).", "Mr. Lakshmikumaran submitted that there is a basic difference between Courts and Tribunals on the one hand and regulatory bodies on the other.", "Former are essentially an authority which reacts to given situations which is brought to its notice whereas the regulatory is of proactive bodies empowered to frame statutory rules and regulations.", "The regulatory mechanism pre-supposes upon discussion before participation and circulation of the draft papers inviting suggestions.", "Learned counsel relied upon Lafarge Umiam Mining Pvt.", "Limited, T.N. Godavarman Thirumulpad v. Union of India and Others  : (2011) 7 SCC 338.", "It is submitted that the regulators are not involved in adjudicatory functions but involved rather in regulating a market or an industry and in the process independently under certain circumstances undertake functions requiring it to act in a judicial manner.", "The reliance was placed upon PTC India Limited vs Central Electricity Regulatory Commissioner,  : (2010) 4 SCC 603, which held that regulatory functions fall in between legislative and administrative functions and that they partake legislative character as well as administrative (in the nature of directions licensing, etc.).", "The regulatory functions are predominantly legislative.", "On the other hand, authorities which are required to adjudicate are either quasi judicial statutory bodies or tribunals.", "Counsel relied upon provisions of Customs Act, which creates adjudicating officials and bodies to undertake specific functions but without trapping of courts.", "The Appellate Tribunal under Section 129 has power of Civil Court and its proceedings are considered judicial proceedings.", "If one keeps this functions and rules in mind, it is clear that the Competition Commission of India is not a regulator and it is a principal authority which exercises a judicial functions conferred by the Statute.", "It has all the trapping of courts and is a Tribunal.", "It in fact determines the rights and liabilities of the parties before it.", "It is urged by Mr. Lakshmikumaran who supplemented the submission of the previous counsel that a body which is a Tribunal and performs judicial functions as opposed to one which predominantly advices or regulates or discharges its executive functions that independently adjudicatory functions, its composition has to be of judicial members.", "Reliance was placed upon Jaswant Sugar Mills vs Lakshmi Chand,  : AIR 1963 SC 677 Harinagar Sugar Mills vs Shyam Sunder  : AIR 1961 SC 1669 and Associated Cement Companies Limited vs P.N. Sharma,  : AIR 1965 SC 1595.", "In this context, it was urged that the CCI in exercise of its powers under Section 3 and 4 is conferred with judicial power of the state and, therefore, discharges the judicial functions.", "This is demonstrable from its powers and functions, having regard to Sections 27, 28, 33, 36 and 61 and Regulations 10, 12(2), 15, 24-28, 31, 32, 39, 41-43 and 45.", "These are essentially judicial functions which can be performed by a court.", "Its power is conclusive and also it is empowered to impose penalty.", "Highlighting Section 61 of the Act, it is submitted that the jurisdiction of the Civil Courts (which otherwise are possessed with the authority to adjudicate upon all disputes of civil nature) is expressly barred.", "The corollary is, therefore, that the role and functions of the Competition Commission of India are that of a court and not a regulatory body.", "Counsel compared the powers conferred under Section 3 and 4 with Sections 1 and 2 of the U.S. Sherman Anti-Trust Act, 1891 and submitted that those disputes are decided in courts.", "It is, therefore, urged that the Act is unconstitutional as it does not mandate judicial membership under Sections 8(2), 22(2) and (3).", "These are also arbitrary because they trench upon the rights of an individual who is denied access to the courts and right to be heard by a judicial body, comprised of judicially competent and qualified personnel which is the standard required of by the Constitution of India.", "Learned counsel also submitted that Section 22(2) and (3) as far as it adopts the concepts of members present and voting, casting vote and a quorum of 3 members is opposed to recognized principles of justice, adjudication in India and in complete deviation of standards which constitutes the rule of law.", "It was submitted that it is the only judges or adjudicatory personnel who hear the case finally and throughout the final hearing, who are competent and empowered to decide the final order.", "The participation of others at intermittence stages and absence of one or many of them in the final decision vitiates it.", "Learned counsel relied upon the judgment of the Calcutta High Court in Mahomed AMI vs Asadunnisa Bibee, 9WR 1 (FB) and the judgment in State of Punjab vs Khan Chand  : (1974) 1 SCC 549.", "Mr. Gurukrishnakumar, learned senior counsel appearing for Skoda Auto India Pvt.", "Limited argued that the Act sought to replace the forum dealing with anticompetitive behaviour.", "Both under the MRTP Act as well as the Act, the investigation is conducted by Director General (Investigation) DG(I) or DG under the supervision of the Commission.", "Further, under both the Acts, the DG submits the report to the respective Commission on the basis of which the Commission decides to enquire.", "The procedure for enquiry of a restrictive unfair monopolistic trade enquiry under the MRTP Act was that the MRTP Commission followed an adjudicatory process which involved hearings, recording of evidence, cross- examination and proper adjudication.", "Under the Act, this step stage of adjudication under Section 26 of the Act is done by the CCI which is also evident from Section 36(2) of the Act.", "Therefore, the determination of existence of anti-competitive behaviour and consequential passing of an order, which was done by following a proper judicial process under the MRTP Act, cannot be taken away under the new law, i.e., Competition Act.", "Reliance was placed on Union of India vs R. Gandhi, President, Madras Bar Association  : (2010) 11 SCC 1 Madras Bar Association vs Union of India Anr.", " : (2014) 10 SCC 1.", "Mr. Neeraj Kishan Kaul, learned senior counsel for Daimler Benz, adopted the submissions of the previous counsel who argued before him he also urged that in the case of Benz, the findings rendered by CCI were perverse and arbitrary, because despite submissions and reliance on materials that the company does not have a policy of spares sales by third parties, the CCI ignored these facts and proceeded to render similar findings and also impose penalty, in an utterly unwarranted manner.", "Mr. Sanjay Jain, who appeared for the CCI, argued that the body was established to address the need for an expert regulation in the field of economic activities in the backdrop of growing complexities in the global and domestic commercial regimes.", "CCI and COMPAT were set up pursuant to the enactment to eliminate inequalities in opportunities in the field of trade and commerce since the erstwhile Monopolies and Restrictive Trade Practices Act, 1969 (hereafter MRTP Act) was inadequate.", "It fulfilled the need for a new law eliminating practices having adverse effect on competition, to protect the interests of consumers, to ensure freedom of trade and to bring about healthy competition in the market.", "CCI, underlined counsel, owes its origin not to Article 323B of the Constitution of India but to Articles 38 and 39 of the Constitution of India and its character can be judged only on the touchstone of Article 38(2) of the Constitution read with the statement of objects and reasons in the amending Act and preamble of the Act.", "It was submitted that a regulatory body or agency can be defined as a public authority or an agency responsible for exercising autonomous authority over some area of human activity in a regulatory or supervisory capacity.", "The CCI, as evident from the Preamble and the Statement of Objects and Reason of the Act, was conceptualized as a pro-active administrative machinery armed with the requisite expertise to actively engage with the complex and ever-evolving economic landscape of the country.", "Economic liberalisation in the 1990s necessitated the introduction of the CCI which discharges a wide array of functions in order to achieve its administrative policy, i.e. to promote competition and protect the interest of consumers.", "Mr. Jain argued that it is a well settled principle of law that the executive is bound to implement its policies in accordance with the Constitution, thus by necessary implication the CCI is an executive body.", "Furthermore, it is also no longer res Integra that if a function is not performed by the legislature or the judiciary it is a function which is performed by the executive.", "CCI regulates the economic landscape by performing a wide array of functions under the various provisions of the Act.", "The CCI under Section 6 of the Act is entrusted with the function of approving combinations, which are defined in Section 5 of the Act.", "In the process of approving combinations, the enterprises approach the CCI with the terms of proposed combination, to which CCI can make changes to, before approving the proposed combination.", "For it to do so CCI has to conduct an in-depth analysis of various economic factors and adjudicate determine whether the proposed combination could cause an appreciate adverse effect on competition.", "It is also called upon to promote competition advocacy which includes creating awareness and imparting training on various economic issues and also giving opinion to the Central Government on policies.", "Furthermore, CCI is required to and has in fact entered into various Memoranda Arrangements with agencies of foreign countries for discharging its duties and bringing about mutual cooperation.", "In its regulatory role, it has to adjudicate - executively- issues of appreciable Adverse Effect on Competition and Abuse of Dominance under Sections 3 and 4 of the Act.", "It is submitted that Executive adjudication is a well-recognized concept within the Indian Constitutional framework and every executive authority is necessarily required to engage itself in some form or manner of adjudication for discharging its duties.", "The CCI, while passing orders under Section 3 and 4 of the ACT also regulates conduct of the enterprises by passing regulations and orders.", "The fact that CCI adjudicates does not mean that it is a judicial body rather the species of adjudication performed by CCI is in stark contrast to that performed by Courts judicial tribunals.", "The law is well settled by a catena of judgments of the Supreme Court that merely because a body in discharging its primary objective incidentally performs a functions of another branch that does not take in any way dilute or change the character of the body.", "It is contended that an expert regulatory body such as CCI cannot be castled in the watertight compartments of separation of powers, which in the quasi federal framework of Indian Constitution are inherently overlapping.", "In the context of CCI, notwithstanding the multiple hats it wears, the legislature has taken care to provide for an appellate mechanism which is apart from the power of Judicial Review by the Constitutional Courts.", "Counsel urged that under the amended Act, post Braham Dutt (supra), CCI is structured and set up as an expert regulatory body performing the role of independent regulator watchdog for the economy in the same mould as Securities and Exchange Board of India (hereinafter referred to as SEBI) performs qua the Securities market.", "In the course of its functioning CCI undertakes executive adjudication in juxtaposition to judicial adjudication in respect of all aspects entrusted under the Competition Act.", "Therefore merely because CCI also performs adjudicatory functions it does not acquire the character of judicial tribunal or Court.", "According to Blacks Law Dictionary, Seventh Edition, Administrative Adjudication is defined as the process used by an administrative agency to issue regulations through an adversary proceeding.", "The same definition has been reiterated in Whartons Law Lexicon, Fifteenth Edition.", "It is emphasized that CCI was not set up to substitute any court or tribunal or to adjudicate upon matters which earlier belonged to the domain of an Adjudicatory body akin to a Court or Tribunal.", "The observations in S.P. Gupta v. Union of India,  : AIR 1982 SC 149 are relied on to show that such functions could never be performed by courts.", "The court held: The Court does not decide issues in the abstract.", "It undertakes determination of a controversy provided it is necessary in order to give relief to a party and if not relief can be given because none is sought, the Court cannot take upon itself a theoretical exercise merely for the purpose of deciding academic issues, howsoever important they may be.", "The Court cannot embark upon an inquiry whether there was any misuse or abuse of power in a particular case, unless relief is sought by the person who is said to have been wronged by such misuse or a bust of power.", "The Court cannot take upon itself the role of a commission of inquiry - a knight errant roaming at will with a view to destroying evil wherever it is found Thus, CCI is a commission of inquiry performing regulatory functions and adjudicating even if no relief is sought from it it is clearly not a substitute for a Court nor is it performing a function which was hitherto performed by a Court.", "In its primary role as a regulator, entrusted with the tasks envisaged in Section 18 of the Act (Duties of the Commission), the primary focus in selection of its members is bound to be the confluence of persons who possess expertise in the fields contemplated in Section 8(Composition of the Commission) of the Act, which does not contemplate the indispensable presence of a retired Judge or a person eligible to be a Judge.", "Mr. Jain submitted that by virtue of the Amending Act of 2007, all such adjudications which had the trapping of judicial adjudication have now been divested from CCI and entrusted to a new body headed by a retired Supreme Court Judge, thus substantially meeting the spirit of observations in Braham Dutt (supra).", "It is urged that adequate parameters are duly incorporated to guide CCI to carry out its functions under Sections 19(3)-19(7) of the Act.", "These parameters act as guidelines for the CCI to determine vital concepts such as appreciable adverse effect of competition, enquiry into the aspects of dominant position, relevant market, relevant geographic market and relevant product market.", "Even in imposition of penalties, under Section 27 of the Act is a task hedged with sufficient safeguards.", "Moreover, the maximum limits of penalties are provided in the Act and discretion is vested with the CCI to impose lesser or no penalty in certain cases.", "All orders imposing penalty under Section 27 of the Act are appealable with no precondition of a pre-deposit.", "Under the amended Act the order passed under Section 27 of the Act are not treated as Decrees of the Court.", "The COMPAT on its part can reduce or even completely waive the requirement of depositing the penalty at the hearing stage or for that matter setting aside the order to this effect.", "Therefore, it is not an unbridled or unfettered power.", "It is argued that administrative adjudication is not an alien concept but rather its importance has been recognized in various judgments in India and internationally.", "Fundacio Privida Intervida vs Additional Commissioner, Pune Division Anr.", " : 2005 (2) ALL Mr. 48 that under the Indian Constitution, quasi-judicial or administrative adjudication is a known feature the observations of the Bombay High Court in this context, were relied on, that Sometimes, the task of adjudication is merely an incidental administration sometimes, it is more than incidental and it begins to assume a very close resemblance with the work usually assigned to the judiciary.", "This practice of vesting adjudicatory functions in person, bodies or institutions outside the ordinary hierarchy or regular law courts is becoming increasingly pronounced with the passage of time.", "It is urged that the CCI must impose penalty in a quasi-judicial manner.", "The expression quasi- judicial is an expression where an executive body exercises discretion by adopting certain judicial procedures to ensure fairness.", "This is described in Gullapalli Nageswara Rao v. State of Andhra  : AIR 1959 SC 1376 as follows: The concept of a quasi-judicial act implies that the act is not wholly judicially it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive powers.", "Furthermore, the observations of the Supreme Court in Clariant International Limited v. SEBI  : AIR 2004 SC 4236, which held that administrative adjudication has become a necessary concomitant of a welfare state and finds home in many statutes, is relied on: The modern sociological condition as also the needs of the time have necessitated growth of administrative law and administrative tribunal.", "Executive functions of the State calls for exercise of discretion.", "The executive also, thus, performs quasi judicial and quasi legislative functions and, in this view of the matter, the administrative adjudication has become an indispensable part of the modern state activity.", "CCI also relies upon the authority of the Supreme Courts decision in Satyapal Anand v. State of Madhya Pradesh Anr.", " : (2014) 7 SCC 244.", "The court had rejected the argument of violation of separation of powers in the context of adjudication by the Registrar of Co-operative Societies in a state enactment and held that: We have already taken note of the scheme of the Act and the role and functioning of the office of the Registrar under the said scheme.", "Most of the powers of the Registrar are administrative in nature.", "While exercising those powers the Registrar is not deciding any lis.", "He is one of the main administrative functionaries for the purposes of carrying out the objectives of the said Act.", "At the same time, the Registrar is also given some quasi-judicial powers.", "He, as also for that matter the Additional Joint Deputy Assistant Registrar are, therefore, wearing two hats, with predominant role of the administrators.", "It is not the case of the petitioner that the judicial function should be taken away from the Registrar and assigned to some other authority.", "The petitioner has pleaded for appointment of a person with legal background as Registrar, etc.", "to enable him to decide the dispute between the parties more effectively, as according to him, any person with no legal judicial background is incapable of deciding those cases.", "However, same arguments can be pressed by other side in a reverse situation.", "If a person with legal background is appointed to any of these posts, then his appointment can be challenged on the ground that such a person though would be fit to discharge the quasi- judicial duties, but totally unfit to discharge other administrative duties which are the primary and day-to-day duties attached to the said office.", "We would have still given some weightage to the argument of the petitioner, had it been a case where the order of the Registrar, deciding the dispute, was made final.", "That is not so 6 0 .", "Learned counsel also relied on the observations in Ujjam Bai v. State of Uttar Pradesh  : AIR 1962 SC 1621, to advance CCIs argument in this context, especially the following passage: In this case a further attempt is made on behalf of the State to restrict the scope of the Courts jurisdiction.", "Uninfluenced by judicial decisions, let us approach the question on principle.", "An illustration arising on the facts of the present case will highlight the point to be decided.", "A citizen of India is doing business in bidis.", "He has fundamental right to carry on that business.", "The State Legislature enacts the Sales Tax Act imposing a tax on the turnover and on the sales of various goods, but gives certain exemptions.", "It expressly declares that no tax shall be levied on the exempted goods.", "The said law is a reasonable restriction on the petitioners fundamental right to carry on the business in bidis.", "Now on a true construction of the relevant provisions of the Act, no tax is leviable on bids.", "But on a wrong construction of the relevant provisions of the Act, the Sales-tax Officer imposes a tax on the turnover of the petitioner relating to the said bidis.", "He files successive statutory appeals to the hierarchy of tribunals but without success.", "The result is that he is asked to pay tax in respect of the business of bidies exempted under the Act.", "The imposition of the said illegal tax on the turnover of bidis is certainly an infringement of his fundamental right.", "He comes to this Court and prays that his fundamental right may be enforced against the Sales-tax Officer.", "The Officer says, It may be true that my order is wrong it may also be that the Supreme Court may hold that my construction of the section as accepted by the highest tribunal is perverse still, as under the Act I have got the power to decide rightly or wrongly, my order though illegal operates as a reasonable restriction on the petitioners fundamental right to carry on business.", "This argument, in my view, if accepted, would in effect make the wrong order of the Sales-tax Officer binding on the Supreme Court, or to state it differently, a fundamental right can be defeated by a wrong order of an executive officer, and this Court would become a helpless spectator abdicating its functions in favour of the subordinate officer in the Sales-tax Department.", "The Constitution says in effect that neither the Parliament nor the Executive can infringe the fundamental rights of the citizens, and if they do, the person affected has a guaranteed right to approach this Court, and this Court has a duty to enforce it but the Executive authority says, I have a right to decide wrongly and, therefore the Supreme Court cannot enforce the fundamental right.", "There is nothing in the Constitution which permits such an extraordinary position.", "It cannot be a correct interpretation of the provisions of the Constitution if it enables any authority to subvert the paramount power conferred on the Supreme Court.", "It is conceded that if the law is invalid, or if the officer acts with inherent want of jurisdiction, the petitioners fundamental right can be enforced.", "It is said that if a valid law confers jurisdiction on the officer to decide rightly or wrongly, the petitioner has no fundamental right.", "What is the basis for this principle? None is discernible in the provisions of the Constitution.", "There is no provision which enables the Legislature to make an order of an executive authority final so as to deprive the Supreme Court of its jurisdiction under Article 32 of the Constitution.", "But the finality of the order is sought to be sustained on the principle of res judicata.", "It is argued that the Sales-tax Tribunals are judicial tribunals in the sense they are courts, and, therefore their final decisions would operate as res judicata on the principle enunciated by this Court in Daryaos case  : 1962 1 SCR 574.", "Can it be said that Sales-tax authorities under the Act are judicial tribunals in the sense they are courts ? In a Welfare State the Governments is called upon to discharge multifarious duties affecting every aspect of human activity.", "This extension of the governmental activity necessitated the entrusting of many executive authorities with power to decide rights of parties.", "They are really instrumentalities of the executive designed to function in the discharge of their duties adopting, as far as possible, the principles of judicial procedure.", "Nonetheless, they are only executive bodies.", "They may have the trappings of a court, but the officers manning the same have neither the training nor the institutional conditions of a judicial officer.", "Every Act designed to further the social and economic progress of our country or to raise taxes, constituted some tribunal for deciding disputes arising thereunder, such as income-tax authorities, Sales-tax authorities, town planning authorities, regional transport authorities, etc.", "A scrutiny of the provisions of the U.P. Sales-tax Act with which we are now concerned, shows that the authorities constituted thereunder are only such administrative tribunals as mentioned above.", "The preamble to the Act shows that it was enacted to provide for the levy of tax on the sale of goods in Uttar-Pradesh.", "The Act imposes a tax on the turnover of sales of certain commodities and provides a machinery for the levy, assessment and collection of the said tax.", "Under the Act the State Government is authorized to appoint certain assessing authorities.", "It provides for an appeal against the order of the assessing authority and for a revision in some cases and a reference to the High Courts in others.", "The State Government is also authorized to appoint a hierarchy of authorities or tribunals for deciding the appeals or revisions.", "The assessing authorities are admittedly the officer of the Sales-tax Department and there is nothing in the Act to indicate that either the assessing authority or the appellate authority need possess any legal qualification.", "It is true that legal qualification is prescribed for the revising authority, but that does not make him a court or make the inferior tribunals courts.", "The said authorities have to follow certain principles of natural justice, but that does not make them courts.", "The scheme of the Act clearly shows that the sales-tax authorities appointed under the Act, following the principles of natural justice, ascertain the turnover of an assessee and impose the tax.", "The hierarchy of tribunals are intended to safeguard the interest of the assessees as well as the State by correcting wrong orders.", "The fact that, following the analogy of the Income-tax Act, at the instance of the party aggrieved a reference can be made by the reviewing authority to the High Court on a question of law shows only that the help of the High Court can be requisitioned only to elucidate questions of law, but the High Court has no power to make final orders, but on receipt of the judgments of the High Court, the revising authority shall make an order in conformity with such judgment.", "Mr. Jain argued that it is clear that a body charged with performing multiple functions can adjudicate and it is not necessary that the person(s) manning the body must have a legal background.", "The only aspect that emerges is that the body while adjudicating performs in a quasi-judicial manner, which mandates that the executive must adopt judicial procedures and not that the person performing a quasi-judicial function must have a judicial background.", "Furthermore, if a body decides between an individual and public interest at large there is no lis per se, which further ratifies the fact that the CCI does not perform a judicial function.", "CCIs adjudication is also used to regulate and monitor conduct of various companies.", "According to Blacks Law Dictionary, Seventh Edition, Administrative Adjudication is defined as the process used by an administrative agency to issue regulations through an adversary proceeding.", "The same definition has been reiterated in Whartons Law Lexicon, Fifteenth Edition.", "The method of regulating through adjudication is a well-recognized practice globally, for instance, in Securities and Exchange Commission v. Chenery Corporation 332 US 194.", "The relevant extract of the judgment has been reproduced below: Not every principle essential to the effective administration of a statute can or should be cast immediately into the mould of a general rule.", "Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations.", "In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order.", "To insist upon one form of action to the exclusion of the other is to exalt form over necessity.", "In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule.", "Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule.", "Or the problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule.", "In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective.", "There is thus a very definite place for the case-by-case evolution of statutory standards.", "And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.", "See Columbia Broadcasting System v. United States,  : 316 U.S. 407, 316 U.S. 421.", "Hence we refuse to say that the Commission, which had not previously been confronted with the problem of management trading during reorganization, was forbidden from utilizing this particular proceeding for announcing and applying a new standard of conduct 6 2 .", "Distinguishing the judgments cited by the petitioners, CCI urges that in those judgments the Supreme Court was only concerned with the issue whether a particular body was a tribunal for the purposes of Article 136 of the Constitution of India, i.e. if an appeal would lie to the Supreme Court from the decision of such a body and not whether tribunals required judicial members.", "The fallacy of the said argument can be seen from these judgments itself wherein the Central Government State Governments have been held to be a tribunal, therefore these purely executive bodies have been held to be tribunals.", "Therefore, the reliance placed by the petitioner on these judgments to show that the tribunals must be manned by judicial members is completely misplaced.", "Mr. Jain argued that the doctrine of separation of powers does not apply in its strict rigor in India and highlighted observations in several judgments of the Supreme Court, which said so: Bhim Singh v. Union of India  : 2010 (5) SCC 538 Indira Nehru Gandhi v. Raj Narain  : AIR 1975 SC 2299 and Jayantilal Amritlal Shodhan v. F.N. Rana  : 1964 (5) SCR 294.", "It is submitted, therefore, that the incidental performance of quasi judicial functions by a regulatory authority, under law, cannot militate against that doctrine so as to be called arbitrary or vitiate the setting up of the agency.", "Counsel distinguished the decision in Amriksingh Lyallpuri v. Union of India  : 2011 (6) SCC 535, (cited by the petitioners in support of their proposition that composition of COMPAT was not compatible with the decisions of the Supreme Court, as it was not a judicial tribunal) he submitted that in Amriksingh (supra), the provision of appeal to an administrative body against a quasi-judicial order was held unconstitutional.", "It was submitted that the COMPAT does not, however, suffer from any such fatal infirmity.", "It was submitted that CCI is not the only executive non-judicial body, that adjudicates and imposes penalties.", "Apart from regulatory body like SEBI there are several Governmental departments such as the Customs, Excise, Income Tax, Service Tax etc.", "which are empowered under their respective special Acts to adjudicate upon and impose penalties, without being bestowed with the tag of Court or a Tribunal.", "Taking away power to impose penalty from regulatory bodies will make them toothless tigers, destroying the very purpose of them being set up in the first place.", "Learned senior counsel then submitted that the observations in Madras Bar Association (supra) could not be relied upon in the present case.", "According to him, the Supreme Court had to deal with a tribunal that fundamentally differed from the CCI on several aspects: firstly, the NTT was not a regulatory agency, but a pure second appellate tribunal secondly, NTT ousted existing High Court jurisdiction whereas CCI was created by a new law thirdly, NTT dealt with appellate disputes, whereby factual aspects were largely tested and decided by lower tax authorities unlike CCI which had regulatory overview and dealt with factual matters fourthly, an entire range of legal issues- corporate law, family and personal law, taxation, finance, intellectual licensing telecom, etc.", "were involved for which knowledge of law was essential, whereas such intensive legal knowledge is inessential in deciding issues of competition fifthly, NTT decided a lis that invariably involved the government as a litigant before the tribunal, unlike CCI which did not decide a lis, and in which the government was not necessarily or always a party.", "Dealing with the petitioners contentions as regards R. Gandhi (supra), Mr. Jain highlighted that the long-established jurisdiction of existing tribunals and the High Court as regards interpretation of company law and allied enactments was sought to be ousted and replaced by a tribunal.", "This attempt was similar to the creation of NTT, which sought to do away with over five decades old tribunals and High Courts jurisdiction, which was held to be unconstitutional inasmuch as judicial power was sought to be tribunalized thus undermining the doctrine of separation of power, leading to arbitrariness.", "It was next argued-in the context of Section 27 that there is no need to give a separate hearing for the purpose of determination of quantum of penalty, for the reason that (a) the opposite parties are at liberty to address them compositely while making submissions on merits and (b) the COMPAT is empowered to reduce or stay the penalty even without insisting on full or partial pre-deposit unlike several other appellate regimes.", "It was submitted that as to the concept of relevant turnover, merely because the CCI has in a particular order, taken the total turnover or a company rather than the product specific turnover, it does not given rise to challenge being mounted for constitutional validity of the provision.", "In fact the COMPAT itself has interpreted the expression turnover as the relevant turnover which in turn would consider the data confined to the product in question.", "The matter is presently pending adjudication in the Supreme Court and hence need not be addressed in these proceedings.", "Suffice to state, the terms turnover, enterprise etc have been clearly defined under the Act and there is neither any vagueness nor any unconstitutionality qua the same.", "Turning next to the manner of appointment of members of CCI it was urged that the composition of the selection committee is in conformity with the established legislative norms and do not require any judicial review merely on the basis of speculative presumptions, particularly when the Chief Justice of India is the Chairperson of the Selection Committee and amongst other members two are Expert Members.", "Such a high powered and well represented Selection Committee has inherent capacity to ensure fair selection in keeping with the qualifications set out in Section 8(1) of the Act.", "The composition of such selection committees cannot be questioned on the basis of cynicism.", "In a democratic body polity, trust must be reposed on a committee which comprises of the Chief Justice of India.", "Further, the challenge to constitutionality of the selection committee has been mounted- in these cases- on the presumption that the CCI is a judicial body, which the respondents submit to the contrary.", "It is contended that Sections 54-56 of the Act, in fact establish and clarify the character of the CCI as an executive body and the provisions are meant to ensure that CCI functions within the broad policy framework of the Central Government.", "On the question of validity of Section 22 (3), it was argued that since CCI is contemplated as a regulatory body which carries out its functions in the meetings as distinct from court hearings, there is nothing irrational in providing for a minimum quorum of 3 members particularly in the light of Section 22(3) of the Act.", "In a regulatory mechanism where decisions are taken in a meeting, the casting vote contemplated under Section 22(3) is an effective and logical working tool.", "This is the only viable option in a scenario, where in a particular meeting, there are only 4 or 6 members present and the meeting results in a deadlock.", "In such situations the provision of casting vote enables achievability of a majority decision.", "Mr. Jain refuted that the enactment was void as it permitted the revolving door procedure.", "It was submitted that the allegation is unfounded and misconceived since it is a settled proposition of law that validity of a law cannot be determined on the assumption that the concerned authority is likely to act in an arbitrary or irregular manner.", "It was further submitted that the revolving door allegation is based on the premise that certain members who heard the final arguments of the case, chose not to sign the final order.", "This is disputed as incorrect since apart from the three members who signed the final order, all the other members who had heard the final arguments of the petitioners before the CCI had retired.", "Further, the cases cited by the petitioners relate to the proposition that only one who hears must decide, i.e. someone who has not heard the parties should not decide and thats the reason that even when new members were appointed, since they had not heard the petitioners on the final arguments, they did not sign or pass the final order.", "It is argued that the petitioners are seeking to take benefit of their own doings inasmuch as on the one hand they enjoyed a stay of proceedings before the CCI pursuant to their final arguments having been heard on the basis of a stay granted by the Madras High Court in WP Number 26488/2013, on the other they are seeking to challenge the order on the so called revolving door policy even though a majority of the members had retired in the interregnum and could not pass the orders while they were in service due to the operation of the stay.", "The car makers also had committed to change its practices pursuant to the order passed by CCI, and that was taken as one of the mitigating circumstances in the impugned order.", "Contrary to them changing their anti- competitive practices, the petitioners have chosen to challenge the said order itself.", "M section Super Cassettes has been involved in various rounds of litigations and has filed petitions to try and derail the process.", "This is the third round of writ petitions filed by Super Cassettes.", "Earlier ones being W.P. (C) Number 2037 of 2013 and W.P. (C) Number 1119 of 2012.", "It was next urged that Section 61 does not call for invalidation nor justifies mandatory inclusion of a retired Judge or a person eligible to be Judge being selected as a member of CCI.", "Section 9 of the CPC holds the field as a general law that unless barred, a civil court has unfettered powers to adjudicate upon almost every dispute which is of a civil nature.", "Nonetheless, Section 9 of the CPC for its invocation would need two basic prerequisites, (a) there must be a bilateral dispute between two parties and (b) the dispute must be of a civil nature not otherwise covered under any Special Act.", "It is the above provision of CPC which has necessitated pre-emptory inclusion of a provision akin to Section 61 of the Act in all special enactments.", "The purpose is to implement the legislative intent of avoiding exercise of overlapping jurisdictions, if any.", "Though in the context of the Act, the matters which are incidentally adjudicated by CCI in exercise of its regulatory functions are not in the nature of bilateral dispute between two parties, still, the same being of a civil nature (as well), as a matter of abundant caution, the legislature wanted to rule out a possibility where under a mistaken belief, a Civil Court would end up entertaining such a matter.", "Section 61 only compliments the objectives of the Act and does not militate against it.", "Counsel submitted that CCI is considered to be an expert regulatory body.", "While culling out the market share, relevant geographical, relevant product market there are various economic formulae, economic tools, accounting principles, understanding of socio-economic factors and algorithms which are required to be pressed into service and are used by the CCI, thus there is a need for experts.", "An example of one of such formulas is the Herfindahl index (also known as Herfindahl-Hirschman Index, or HHI) -a measure based on the total number and size distribution of firms in the industry which is important for determining the level of concentration in a sector.", "It is computed as the sum of the squares of relative size of all firms in the industry.", "Mr. Jain concluded his submissions, urging that the grounds in support of the petitioners case that the doctrine of separation of powers or independence of the judiciary, being violated resulting in the invalidation of the Act are insubstantial.", "He submitted that even if arguendo, any particular procedure in a given case or group of cases is found to be irregular, that cannot lead to the declaration by the court, that the legislation is unconstitutional.", "Provisions of the Act The present case concerns the constitutionality of Section 8, 9, 15, 17, 22, 26, 17, 36, 53C, 53D, 55, 56 and 61 of the Competition Act, 2002 and Regulations 37, 41, 44, 45 and 48 of the Competition Commission of India (General Regulations, 2009).", "They are extracted below: Section 8: Composition of Commission: The Commission shall consist of a Chairperson and not less than two and not more than six other Members to be appointed by the Central Government.", "The Chairperson and every other Member shall be a person of ability, integrity and standing and who has special knowledge of, and such professional experience of not less than fifteen years in, international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs or competition matters, including competition law and policy, which in the opinion of the Central Government, may be useful to the Commission.", "The Chairperson and other Members shall be whole-time Members.", "Section 9: Selection Committee for Chairperson and Members of Commission The Chairperson and other Members of the Commission shall be appointed by the Central Government from a panel of names recommended by a Selection Committee consisting of (a) the Chief Justice of India or his nomineeChairperson (b) the Secretary in the Ministry of Corporate AffairsMember (c) the Secretary in the Ministry of Law and JusticeMember (d) two experts of repute who have special knowledge of, and professional experience in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs or competition matters including competition law and policyMembers.", "The term of the Selection Committee and the manner of selection of panel of names shall be such as may be prescribed Section 15: Vacancy, etc.", "not to invalidate proceedings of Commission No act or proceeding of the Commission shall be invalid merely by reason of (a) any vacancy in, or any defect in the constitution of, the Commission or (b) any defect in the appointment of a person acting as a Chairperson or as a Member or (c) any irregularity in the procedure of the Commission not affecting the merits of the case.", "Section 22: Meetings of Commission The Commission shall meet at such times and such places, and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be provided by regulations.", "The Chairperson, if for any reason, is unable to attend a meeting of the Commission, the senior-most Member present at the meeting, shall preside at the meeting.", "All questions which come up before any meeting of the Commission shall be decided by a majority of the Members present and voting, and in the event of an equality of votes, the Chairperson or in his absence, the Member presiding, shall have a second or casting vote: Provided that the quorum for such meeting shall be three Members.", "Section 26: Procedure for inquiry on complaints under section 19 On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information.", "Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "The Director General shall, on receipt of direction under subsection (1), submit a report on his findings within such period as may be specified by the Commission.", "The Commission may forward a copy of the report referred to in sub-section (3) to the parties concerned: Provided that in case the investigation is caused to be made based on a reference received from the Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-section (3) to the Central Government or the State Government or the statutory authority, as the case may be.", "If the report of the Director General referred to in sub-section (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the Director General.", "If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission is of the opinion that further investigation is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act.", "If the report of the Director General referred to in sub-section (3) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.", "Section 27: Orders by Commission after inquiry into agreements or abuse of dominant position Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely: (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be (b) impose such penalty, as it may deem fit which shall be not more than ten per cent, of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: 1 Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent, of its turnover for each year of the continuance of such agreement, whichever is higher.", "2 (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any 3 (g) pass such other 4order or issue such directions as it may deem fit.", "5Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.", "Section 36: Power of Commission to regulate its own procedure.", "In the discharge of its functions, the Commission shall be guided by the principles of natural justice and, subject to the other pro visions of this Act and of any rules made by the Central Government, the Commission shall have the powers to regulate its own procedure.", "The Commission shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath (b) requiring the discovery and production of documents (c) receiving evidence on affidavit (d) issuing commissions for the examination of witnesses or documents (e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office.", "(3) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary to assist the Commission in the conduct of any inquiry by it.", "(4) The Commission may direct any person: (a) to produce before the Director General or the Secretary or an officer authorized by it, such books, or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of which may be required for the purposes of this Act (b) to furnish to the Director General or the Secretary or any other officer authorized by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such person, as may be required for the purposes of this Act.", "Section 53C. Composition of Appellate Tribunal- (Omitted by the Finance Act, 2017) The Appellate Tribunal shall consist of a Chairperson and not more than two other Members to be appointed by the Central Government.", "Section 53D. Qualifications for appointment of Chairperson and Members of Appellate Tribunal.(Omitted by the Finance Act, 2017) The Chairperson of the Appellate Tribunal shall be a person, who is, or has been a Judge of the Supreme Court or the Chief Justice of a High Court.", "A Member of the Appellate Tribunal shall be a person of ability, integrity and standing having special knowledge of, and professional experience of not less than twenty-five years in, competition matters, including competition law and policy, international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which in the opinion of the Central Government, may be useful to the Appellate Tribunal.", "Section 55: Power of Central Government to issue directions Without prejudice to the foregoing provisions of this Act, the Commission shall, in exercise of its powers or the performance of its functions under this Act, be bound by such directions on questions of policy, other than those relating to technical and administrative matters, as the Central Government may give in writing to it from time to time: Provided that the Commission shall, as far as practicable, be given an opportunity to express its views before any direction is given under this sub- section.", "The decision of the Central Government whether a question is one of policy or not shall be final.", "Section 56: Power of Central Government to supersede Commission If at any time the Central Government is of the opinion (a) that on account of circumstances beyond the control of the Commission, it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act or (b) that the Commission has persistently made default in complying with any direction given by the Central Government under this Act or in the discharge of the functions or performance of the duties imposed on it by or under the provisions of this Act and as a result of such default the financial position of the Commission or the administration of the Commission has suffered or (c) that circumstances exist which render it necessary in the public interest so to do, the Central Government may, by notification and for reasons to be specified therein, supersede the Commission for such period, not exceeding six months, as may be specified in the notification: Provided that before issuing any such notification, the Central Government shall give a reasonable opportunity to the Commission to make representations against the proposed supersession and shall consider representations, if any, of the Commission.", "Upon the publication of a notification under sub-section (1) superseding the Commission, (a) the Chairperson and other Members shall as from the date of supersession, vacate their offices as such (b) all the powers, functions and duties which may, by or under the provisions of this Act, be exercised or discharged by or on behalf of the Commission shall, until the Commission is reconstituted under subsection (3), be exercised and discharged by the Central Government or such authority as the Central Government may specify in this behalf (c) all properties owned or controlled by the Commission shall, until the Commission is reconstituted under sub-section (3), vest in the Central Government.", "On or before the expiration of the period of supersession specified in the notification issued under subsection (1), the Central Government shall reconstitute the Commission by a fresh appointment of its Chairperson and other Members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disqualified for re-appointment.", "The Central Government shall cause a notification issued under sub- section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament at the earliest.", "Section 61: Exclusion of jurisdiction of civil courts No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the 89 Commission or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.", "The Competition Commission of India (General) Regulations, 2009 Inspection and certified copies of documents.", "Subject to the provisions of Section 57 and regulation 35, a party to any proceeding of an ordinary meeting of the Commission may on an application in writing in that behalf addressed to the Secretary, be allowed to inspect or obtain copies of the documents or records submitted during proceedings on payment of fee as specified in regulation 50.", "Provided further that no request for inspection or certified copies of internal documents shall be allowed.", "The Commission may, on an application of a person, who is not a party to the proceedings, on sufficient cause demonstrated, allow such person inspection of documents or records mentioned in sub-regulation (1) on payment of fee as specified in regulation 50.", "An inspection shall be allowed only in the presence of an officer so authorized by the Secretary: Provided that the inspection of documents or copying thereof as per sub-regulation (1) or sub-regulation (2) shall be allowed under the supervision of and subject to the time limits to be specified by the Secretary or an officer authorized by him in this behalf.", "An officer of the Central or State Government or the Director General or a statutory authority shall be allowed inspection and obtain copies of documents or records mentioned in sub-regulation (1) on making written request to the Secretary for the purpose.", "Taking of evidence.- Subject to the provisions of the Act, the Commission or the Director General, as the case may be, may determine the manner in which evidence may be adduced in the proceedings before them.", "Without prejudice to sub-regulation (1), the Commission or the Director General, for the purpose of inquiry or investigation, as the case may be, may - (a) admit evidence taken in the form of verifiable transcripts of tape recordings, unedited versions of video recording, electronic mail, telephone records including authenticated mobile telephone records, written signed unsworn statements of individuals or signed responses to written questionnaires or interviews or comments or opinions or analyses of experts based upon market surveys or economic studies or other authoritative texts or otherwise, as material evidence (b) admit on record every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact provided it is duly certified by a gazetted officer of the Central Government or by a State Government or a statutory authority, as the case may be or a Magistrate or a Notary appointed under the Notaries Act, 1952 (53 of 1952) or the Secretary of the Commission (c) admit the entries in the books of account, including those maintained in an electronic form, regularly kept in the course of business, including entries in any public or other official book, register or record or an electronic record, made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, as documentary evidence (d) admit the opinion of any person acquainted with the handwriting of the person by whom a document is supposed to have been written or signed, as relevant fact to prove the handwriting of the person by whom the document was written or signed (e) admit the opinion of the handwriting experts or the experts in identifying finger impressions or the persons specially skilled in interpretation of foreign law or of science or art (f) take notice of the facts of which notice can be taken by a court of law under section 57 of the Indian Evidence Act, 1872 (1 of 1872) (g) accept the facts, which parties to the proceedings admit or agree in writing as proved (h) presume that any document purporting to be a certified copy of any record of any authority, court or government of any country not forming part of India as genuine and accurate, if the document purports to be certified in any manner which Is certified by any representative of the National Government of such country to be the manner commonly in use in that country for the certification of copies of such records, including certification by the Embassy or the High Commission of that country in India.", "admit such documents including electronic records in evidence as may be considered relevant and material for the proceedings.", "Subject to the provision of sub-regulation (2), the following sections of the Indian Evidence Act, 1872 (1 of 1872), in so far as they are applicable to the matters relating to, - (a) section 22-A -when oral admission as to contents of electronic records are relevant (b) section 47-A - opinion as to digital signature when relevant (c) section 65-B - admissibility of electronic records (d) section 67-A - proof as to digital signature (e) section 73-A - proof as to verification of digital signature (f) section 81-A -presumption as to Gazettes in electronic forms (g) section 85-A - presumption as to electronic agreements (h) section 85-B - presumption as to electronic records and electronic signatures section 85-C - presumption as to digital signature certificates (j) section 88-A - presumption as to electronic messages (k) section 89 -presumption as to due execution etc.", ", of documents not produced (1) section 90-A - presumption as to electronic records five years old may be applicable for the purpose of inquiry or investigation, by the Commission or the Director General, as the case may be.", "The Commission or the Director General, as the case may be, may call for the parties to lead evidence by way of affidavit or lead oral evidence in the matter.", "If the Commission or the Director General, as the case may be, directs evidence by a party to be led by way of oral submission, the Commission or the Director General, as the case may be, if considered necessary or expedient, grant an opportunity to the other party or parties, as the case may be, to cross examine the person giving the evidence.", "The Commission or the Director General, as the case may be, may, if considered necessary or expedient, direct that the evidence of any of the parties to be recorded by an officer or person designated for the said purpose.", "The Commission may direct the parties to file written note of arguments or submissions in the matter.", "Power of Commission to call for information etc.", "The Commission may, at any time before passing orders in a proceeding, require any of the parties or any other person whom the Commission considers appropriate, to produce such documents or other material objects as evidence as the Commission may consider necessary for the purpose of enabling it to pass orders.", "The Commission or the Director General, as the case may be, may direct the summoning of the witnesses, discovery and production of any document or other material objects producible in evidence, requisition of any public record from any office, examination by an officer of the Commission the books, accounts or other documents or information in the custody or control of any person which the Commission considers relevant for the purpose.", "The Commission or the Director General, as the case may be, at any time, summon and enforce the attendance of any person and examine him, or cause him to be examined on oath.", "Power of Commission or Director General to issue commissions for examination of witnesses or documents.- Subject to the provisions of clause (d) of sub-section (2) of section 36 and subsection (2) of section 41 of the Act, the Commission or the Director General, as the case may be, either on its or his own motion or on an application made by a party to any proceeding before the Commission or the Director General, may issue a commission for the examination on questionnaires or otherwise of the specified witness (es), - (a) residing within India (b) who is about to leave India before the date on which he or she is required to be examined as a witness Who, being in the service of the Central Government, a State Government or a statutory authority, cannot, in the opinion of the Commission or the Director General, as the case may be, attend without detriment to the public service (d) who is unable to attend due to sickness or infirmity (e) who resides at a place which is more than five hundred kilometres distance from the office of the Commission or the Director General, as the case may be, and whose attendance, in the opinion of the Commission or the Director General, as the case may be, cannot be procured without incurring unnecessary expense within the stipulated time (f) not being covered under any of the situations mentioned in clauses (a) to (e), if his or her evidence is considered necessary in the interest of justice.", "Subject to the provisions of sub-regulation (1), the Commission or the Director General, as the case may be, either on its or his own motion or on an application made by a party to any proceeding before the Commission or the Director General, may also issue a commission for the examination on questionnaires or otherwise of any witness residing at any place not within India if satisfied that the evidence of such witness is necessary and may issue a letter of request to the Indian High Commission or the Indian Embassy to facilitate the execution of the commission, under this regulation.", "Subject to the provisions of sub-regulations (1) and (2), the Commission or the Director General, as the case may be, either on its or his own motion or on an application made by a party to any proceeding before the Commission or the Director General, may also issue a commission for the examination of specific document(s) whether available in any place situated within or without India and whether or not held in the custody of any witness being examined on questionnaires as per sub-regulations (1) and (2).", "A commission for the examination of a witness on questionnaires or otherwise or for examination of a document issued under sub-regulation (1) or (2) or (3) may be issued to any public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860) or a counsel and such public servant or the counsel, as the case may be, shall be appointed as the commissioner only for the purposes of executing the commission.", "Every public servant or the counsel, referred to in sub-regulation (4), upon receiving a commission under sub-regulation (4) shall examine the witness or the document, as the case may be, or cause the witness or the document to be examined pursuant thereto and on due execution, shall return the commission together with the evidence taken under it to the Commission or the Director General, as the case may be.", "The Commission or the Director General, as the case may be, shall furnish the commissioner appointed under sub-regulation (4) with such part of record of the proceedings and such instructions as appear necessary and the instructions shall distinctly specify that the commission is restricted to finding the facts through the examination as directed and the Commissioner is merely required to transmit the record of the proceedings to the Commission on completion of the examination.", "Any Commissioner appointed under this regulation may, unless otherwise directed by the order of appointment - (a) examine the witness himself, (b) call for and examine the documents and other things relevant to the subject of inquiry.", "The Commission or the Director General, as the case may be, issuing a commission under this regulation shall fix a date on or before which the commission shall be returned after execution, and the date so fixed shall not be extended except, for reasons to be recorded, the Commission or the Director General, as the case may be, is satisfied that there is sufficient cause for extending the date.", "Procedure for imposition of penalty under the Act.", "Notwithstanding anything to the contrary contained in any regulations framed under the Act, no order or direction imposing a penalty under Chapter VI of the Act shall be made unless the person or the enterprise or a party to the proceeding, during an ordinary meeting of the Commission, has been given a show cause notice and reasonable opportunity to represent his case before the Commission.", "In case the Commission decides to issue show cause notice to any person or enterprise or a party to the proceedings, as the case may be, under sub- regulation (1), the Secretary shall issue a show cause notice giving not less than fifteen days asking for submission of the explanation in writing within the period stipulated in the notice.", "The Commission shall, on receipt of the explanation, and after oral hearing if granted, proceed to decide the matter of imposition of penalty on the facts and circumstances of the case.", "The Issues needing determination.", "This court is of the view that the issues involved in these batch of petitions are the following: Is the CCI a tribunal exercising judicial functions, or is it performing administrative and investigative functions and also adjudicating issues before it Is the CCI unconstitutional inasmuch as it violates the separation of powers principle, which underlies the Constitution - and is now recognized as a basic or essential feature of the Constitution of India.", "Is Section 22 (3) unconstitutional for the reasons urged by the petitioners Does the revolving door practise vitiate any provision of the Act or the decisions rendered by the CCI Was the power exercised by the CCI to expand the scope of inquiry and notice under Section 26 (1) in an illegal and in an overboard manner Is Section 27 (b) of the Act and the provision for penalties unconstitutional or the orders impugned arbitrary, for the reason that no separate hearing is provided, and the statute provides no guideline for exercise of discretion.", "Analysis and Conclusions Re Point Number 1: Is the CCI a tribunal exercising judicial functions, or does it perform administrative and investigative functions as well as adjudicates issues before it.", "On this aspect, there can be little scope for debate the SAIL (supra) judgment of the Supreme Court, which considered the effect of orders made under Section 26 (1), analysed Sections 3, 4, 19, 26 and various regulations, and ruled on the effect of the enactment: Under the scheme of the Act, this Commission is vested with inquisitorial, investigative, regulatory, adjudicatory and to a limited extent even advisory jurisdiction.", "Vast powers have been given to the Commission to deal with the complaints or information leading to invocation of the provisions of Sections 3 and 4 read with Section 19 of the Act.", "This enunciation of the law binds the courts furthermore, there can be no other view, given that SAIL (supra) delineated the role of CCI, which decides whether to commence an inquiry or investigation, under Section 26 (1).", "The court unambiguously ruled that at that stage, the function was administrative: Now, let us examine what kind of function the Commission is called upon to discharge while forming an opinion under Section 26 (1) of the Act.", "At the face of it, this is an inquisitorial and regulatory power.", "A Constitution Bench of this Court in the case of Krishna Swami v. Union of India  : (1992) 4 SCC 605 explained the expression inquisitorial.", "The Court held that the investigating power granted to the administrative agencies normally is inquisitorial in nature.", "The scope of such investigation has to be examined with reference to the statutory powers.", "In that case the Court found that the proceedings, before the High-Power Judicial Committee constituted, were neither civil nor criminal but sui generis.", "Characterizing the proceeding before CCI as one akin to the preliminary stages of a departmental proceeding, the court, in SAIL (supra), held that prima facie opinion formation was merely an administrative function and that inquiry into the information or complaint (received by CCI) commences after such opinion was formed, for which notice to the opposite party is not a pre-requisite, though it may seek information in that regard, in view of Regulation 17: The jurisdiction of the Commission, to act under this provision, does not contemplate any adjudicatory function.", "The Commission is not expected to give notice to the parties, i. e. the informant or the affected parties and hear them at length, before forming its opinion.", "The function is of a very preliminary nature and in fact, in common parlance, it is a departmental function.", "At that stage, it does not condemn any person and therefore, application of audi alteram partem is not called for.", "Formation of a prima facie opinion departmentally (Director General, being appointed by the Central Government to assist the Commission, is one of the wings of the Commission itself) does not amount to an adjudicatory function but is merely of administrative nature.", "At best, it can direct the investigation to be conducted and report to be submitted to the Commission itself or close the case in terms of Section 26 (2) of the Act, which order itself is appealable before the Tribunal and only after this stage, there is a specific right of notice and hearing available to the aggrieved affected party.", "Thus, keeping in mind the nature of the functions required to be performed by the Commission in terms of Section 26 (1), we are of the considered view that the right of notice of hearing is not contemplated under the provisions of Section 26 (1) of the Act.", "However, Regulation 17(2) gives right to Commission for seeking information, or in other words, the Commission is vested with the power of inviting such persons, as it may deem necessary, to render required assistance or produce requisite information or documents as per the direction of the Commission.", "This discretion is exclusively vested in the Commission by the legislature.", "The investigation is directed with dual purpose (a) to collect material and verify the information, as may be, directed by the Commission, (b) to enable the Commission to examine the report upon its submission by the Director General and to pass appropriate orders after hearing the parties concerned.", "No inquiry commences prior to the direction issued to the Director General for conducting the investigation.", "Therefore, even from the practical point of view, it will be required that undue time is not spent at the preliminary stage of formation of prima facie opinion and the matters are dealt with effectively and expeditiously.", "We may also usefully note that the functions performed by the Commission under Section 26 (1) of the Act are in the nature of preparatory measures in contrast to the decision-making process.", "That is the precise reason that the legislature has used the word direction to be issued to the Director General for investigation in that provision and not that the Commission shall take a decision or pass an order directing inquiry into the allegations made in the reference to the Commission.", "It is therefore, clear that though information or complaint which may trigger an inquiry, (but not necessarily so, in all cases) is received by the CCI, the initial steps it takes are not always towards, or in aid of adjudication.", "They are to ascertain fuller details and inquire into the veracity (or perhaps) seriousness of the contents of the information, to discern whether such investigation and further steps towards adjudication are necessary.", "It is important to flag this function, because a court or tribunal, which has adjudicatory functions, is seized of the lis or the dispute, when the suitor or litigant approaches it.", "The issuance of notice or summons, by the court, in exercise of compulsive jurisdiction (like in a suit, or civil proceeding, or by a tribunal, in an appeal before it) or in discretionary jurisdiction (like in writ proceedings) are judicial acts, necessarily in furtherance of the adjudicatory function which the court or tribunal performs.", "At the stage when CCI entertains and directs an inquiry, it does not perform any adjudicatory function the function is merely administrative.", "This position has been reiterated in Competition Commission of India v. Bharat Sanchar Nigam Limited  : 2019 (2) SCC 521.", "At the next stage, after CCI directs investigation, the Director General (DG), after investigation, has to report to it Section 26 (2).", "If the recommendation of the DG is that no case exists, the CCI is nevertheless obliged to forward a report to the informant complainant, receive its or his comments and afford a hearing Section 26 (5).", "After the hearing, it may dismiss the complaint Section 26 (6) or direct further inquiry Section 26 (7).", "If, on the other hand, the DGs report recommends that there exists some contravention of provisions of the Act, the CCI has to proceed further, and inquire into that Section 26 (3) read with Section 26 (8).", "The CCI has limited powers of the civil court Section 36 (2) in matters such as (a) summoning and enforcing the attendance of any person and examining him on oath (b) requiring the discovery and production of documents (c) receiving evidence on affidavit (d) issuing commissions for the examination of witnesses or documents (e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office.", "The CCI can also require the opinion of experts Section 36 (3).", "Significantly, CCI has no power to review its orders: previously, Section 37 permitted review however, the 2007 amendment repealed that provision it has limited rectification power, under Section 38.", "In case of imposition of penalty, one mode of recovery is through reference to the concerned income tax authority Section 39 (2) such officer or income tax authority can then recover the penalty as if the party concerned were an assessee in default under provisions of the Income tax Act Section 39 (3).", "These investigative powers are also conferred concurrently upon the DG Section 41 (2).", "The powers of the CCI and duties cast upon it include an advisory role, whereby the Central or any State Government can seek its opinion on any aspect of its competition policy and make any reference to its impact the CCI has to give its opinion within 60 days of receipt of such a reference Section 49 (1).", "The opinion, however, is not binding.", "CCI is also invested with the duty of competition advocacy (Section 49 (3)) in the discharge of which, it has to take suitable measures for the promotion of competition advocacy, creating awareness and imparting training about competition issues.", "In the discharge of investigative functions under the Act and regulations, a striking feature which can be noticed is that the bodies constituted under it (the CCI and the DG) are not concerned with any lis, in the sense of a dispute between two parties over a legal relationship, status or private property it is rather, having regard to the peculiar remit of the Act, is as stated in Excel Crop Care (supra): to ensure that there is a healthy competition in the market, as it brings about various benefits for the public at large as well as economy of the nation.", "In fact, the ultimate goal of competition policy (or for that matter, even the consumer policies) is to enhance consumer well-being.", "These policies are directed at ensuring that markets function effectively.", "Competition policy towards the supply side of the market aims to ensure that consumers have adequate and affordable choices.", "Another purpose in curbing anti-competitive agreements is to ensure level playing field for all market players that helps markets to be competitive.", "It sets rules of the game that protect the competition process itself, rather than competitors in the market.", "In this way, the pursuit of fair and effective competition can contribute to improvements in economic efficiency, economic growth and development of consumer welfare.", "The Director General appointed under Section 16(1) of the Act is a specialised investigating wing of the CCI.", "In Excel Crop Care (supra), the Supreme Court underlined the crux of the CCIs role, through investigation: and that it should not merely examine the informants grievance, but consider whether there is anything systemic: For this purpose, no doubt, the starting point of inquiry would be the allegations contained in the complaint.", "However, while carrying out this investigation, if other facts also get revealed and are brought to light, revealing that the persons or enterprises had entered into an agreement that is prohibited by Section 3 which had appreciable adverse effect on the competition, the DG would be well within his powers to include those as well in his report.", "Even when the CCI forms prima facie opinion on receipt of a complaint which is recorded in the order passed Under Section 26(1) of the Act and directs the DG to conduct the investigation, at the said initial stage, it cannot foresee and predict whether any violation of the Act would be found upon investigation and what would be the nature of the violation revealed through investigation.", "If the investigation process is to be restricted in the manner projected by the Appellants, it would defeat the very purpose of the Act which is to prevent practices having appreciable adverse effect on the competition.", "We, therefore, reject this argument of the Appellants as well touching upon the jurisdiction of the DG In view of these specific functions, this court is of opinion that there can be no manner of doubt that the CCI does not perform exclusive adjudicatory functions to be called a tribunal.", "A tribunal - and one entrusted solely with the judicial power of the state (the touchstone on which L. Chandra Kumar v. Union of India and Ors.", " : 1995 (1) SCC 400, R. Gandhi (supra) and Madras Bar Association (supra) are premised) is seen as a substitute for courts.", "However, the creation of CCI and investing it with a multifarious functions, which extend to directing (and overseeing) investigation and fact gathering, advising the government on policy (as an expert body) and advocating competition, in addition to issuing directions or orders against specific entities or companies with the aim of eliminating a practice found pernicious or one which constitutes a barrier to competition and fair dealing in the marketplace.", "However, the above finding that the CCI is not a tribunal exercising exclusive judicial power, does not lead to the conclusion that its orders are any less quasi-judicial- at the stage when they attain finality.", "They are, for the simple reason that the consequences are far reaching, to those entities and companies which are subjected to directions (cease and desist orders, directions to alter agreements, etc).", "The right to freedom of trade, to the extent that it impinges on the right of the entity to exercise free choice about contractual terms, or whom to associate with (in regard to association and merger) are undeniably implicated.", "These orders, however, are subject to appeal, to a tribunal (COMPAT).", "CCI is also amenable to judicial review under Article 226 of the Constitution of India as regards the directions it makes procedurally.", "For instance, if it can be shown that investigation has been launched without a reasoned prima facie expression of its opinion, under Section 26 (2), the CCIs orders can be corrected in writ proceedings.", "Similarly, in regard to conduct of proceedings during investigation (i.e. the fact gathering exercise) the jurisdiction of the High Courts to ensure fair procedure and compliance with natural justice is assured Ref. Competition Commission of India and Anr.", "v. Oriental Rubber Industries Pvt Limited  : 2018 (251) DLT 137 and Cadila Healthcare Limited and Anr.", "v. Competition Commission of India and Ors.", " : 2018 (252) DLT 647.", "In view of the above discussion, it is held that CCI does not perform only or purely adjudicatory functions so as to be characterized as a tribunal solely discharging judicial powers of the state it is rather, a body that is in parts administrative, expert (having regard to its advisory and advocacy roles) and quasi-judicial -when it proceeds to issue final orders, directions and (or) penalties.", "Point Number 2 Is the CCI unconstitutional inasmuch as it violates the separation of powers principle, which underlies the Constitution - and is now recognized as a basic or essential feature of the Constitution of India.", "The recurring theme of the petitioners attack on CCI was that it exercises powers that have wide ramifications that potentially implicate the right to carry on trade, and occupation and that the exercise of such powers must necessarily be entrusted with a tribunal that is judicial- in turn, implying that its personnel should be either exclusively or substantially, judges or persons trained in law.", "Various counsel took pains to contrast the CCI with the regulatory models and legislations in the country TRAI and TDSAT, the APTEL in the electricity energy sector SEBI and Securities Appellate Tribunal, for the securities market and the Reserve Bank of India (RBI).", "The observations in Braham Dutt (supra) and the observations of the Dasgupta Commission report (which led to enactment of the MRTP Act and formation of the MRTP Commission as well as the Parliamentary committee report prepared in anticipation of the Act) too were relied on.", "There can be no two opinions that CCI performs important regulatory tasks.", "No doubt, it has no subordinate legislative power over the aspect of market behaviour, which its task is to regulate, but that places no limitation in the manner of its regulating entities, markets, contractual relationships and associations once it determines, with respect to the undesirable effect upon competition in the relevant market of a particular product or service.", "The term regulation is broad, and has many hues.", "Reference in this connection can also be made to the judgment in U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association and Ors.", " : (2004) 5 SCC 430 where the court interpreted the word regulation in the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and observed that: 20.", "Regulate means to control or to adjust by Rule or to subject to governing principles.", "It is a word of broad impact having wide meaning comprehending all facets not only specifically enumerated in the Act, but also embraces within its fold the pow ers incidental to the Regulation envisaged in good faith and its meaning has to be ascertained in the context in which it has been used and the purpose of the statute.", "It is hence plain that the expression regulate is adaptable enough to include the power to issue directions.", "Also see Star India Private Limited v. Department of Industrial Policy and Promotion Ors.", " : 2019 (2) SCC 104.", "Interestingly, in an article entitled Rulemaking versus Adjudication: a Psychological perspective Jeffrey J. Rachlinski 32 FLA.", "U.L. REV. 529 (2005) this very aspect, i.e statutory bodies regulating through adjudication, was discussed: Federal administrative agencies in the United States have long had wide discretion to choose between rulemaking and adjudication as their tool for adopting a particular regulatory policy.", "Even when rulemaking seems sensible, courts will permit agencies to adopt policy through case-by-case adjudication.", "Most agencies also possess congressionally delegated authority to adopt substantive rules through administrative rulemaking procedures that will have the full force of law behind them.", "With few exceptions, neither the courts nor Congress have placed any meaningful restrictions on a federal agencys power to choose between rulemaking and adjudication.", "Furthermore, the standard of review of agency decisions is essentially identical, whether the agency has used either the rulemaking or adjudication process.", "Federal agencies have made full use of this discretion to choose among policymaking instruments.", "Some agencies, notably the National Labor Relations Board (NLRB), make policy largely through the adjudication process, while others, notably the Environmental Protection Agency (EPA), proceed largely through the rulemaking through adjudication and others through rulemaking.", "Implicit in the deference that both Congress and the courts have shown to agencies as to the choice between rulemaking and adjudication is faith that the agency itself is in the best position to identify the appropriate means of proceeding.", "An agencys choice of policy- making instruments, however, probably does not reflect a straight- forward effort to identify the method that will produce the best substantive decision.", "The agency will be primarily concerned with choosing a policymaking method that will allow it to be efficient and yet survive judicial review.", "Each technique also has advantages and disadvantages for the agency.", "Policies adopted through rulemaking cannot be applied retroactively hence an agency that believes that it cannot easily predict the problems it will encounter might choose to proceed by adjudication.", "Policies adopted through adjudication, however, are often less definitive, thereby making it harder for the targets of the agencys regulatory effort to conform their conduct to the policy that the agency is attempting to adopt.", "A change in agency policy adopted through adjudication can also come as quite a surprise to the first party to whom it is applied.", "Courts sometimes deem it unacceptable for the agency to penalize the first entity that violates a new policy announced through adjudication.", "The Administrative Procedure Act (APA) also creates differences between the two processes.", "The APA explicitly insists that an independent administrative law judge pre- sides over an adjudicationa requirement not duplicated by the rulemaking processes.", "This requirement, however, applies largely to the trial-level decision maker in an adjudication.", "The appeals process will eventually allow the agency itself to interject its policy concerns into the process.", "Likewise, even though ex-parte contact and influence by political entities is thought to be less appropriate in an adjudicatory proceeding than in rulemaking, once again, this applies largely to the initial trial-level determination and not to the appeals process.", "Each state devices its legislation and policies to suit the peculiar needs of its populace, its constitutional ethos and the felt necessities of the times its society exists in.", "There is no one size fits all approach, likewise, in the manner a state or a particular society is expected to, or can behave the dynamics of a rapidly changing economy, with the imperatives of global trade and its interface with technology invariably dictate the choices that governments make in response to any need for laws, or institutions- including regulatory institutions.", "Therefore, there is no one magic formula, or a tipping point, where regulatory models are considered ideal.", "The standards for the kind of regulation and the model of institutions created by legislatures and executive governments, must necessarily respond to the need of the times they cannot be static and answering to an unwavering or immutable perfect form or formula.", "So too, the various regulatory legislations of the Union (the Securities Exchange Board of India Act, 1992 (SEBI Act) the Telecom Regulatory Authority of India Act, 1997 (TRAI Act, governing the telecom sector) the Electricity Act, 2003 (regulating the electricity sector) and the Airports Economic Regulatory Authority of India Act, 2008 (regulating the airports segment) have followed different evolutionary paths.", "These laws have also been amended, to cater to changing circumstances.", "This court proposes to briefly discuss each of them.", "The securities market regulatory model: SEBI The SEBI Act envisages two kinds of adjudication.", "The first is a civil adjudicatory process.", "The second is a criminal proceeding.", "In civil adjudication, adjudicatory powers are deployed.", "A decision rendered by the Adjudicating Officer is, in interim cases, subject to an appeal before the Securities Appellate Tribunal (Section 15K) followed by a statutory appeal before the Supreme Court (Section 15Z).", "SEBIs powers include the power to suspend the trading of any security in a recognized stock- exchange to restrain (a trader, etc) from accessing the securities market and prohibit any person associated with the securities market from buying, selling or dealing in securities the power to suspend any office-bearer of any stock-exchange or self-regulatory organization from holding such position the power to impound and retain the proceeds or securities in respect of any transaction which is under investigation the power to attach after passing of an order on an application made for approval (by the Judicial Magistrate of First Class having jurisdiction) for a period not exceeding one month, one or more bank account(s) of any intermediary or any person associated with the securities market in any manner involved in violation of any of the provisions of the SEBI Act, or the rules regulations framed thereunder and the power to direct any intermediary or any person associated with the securities market in any manner not to dispose of or alienate an asset forming part of any transaction which is under investigation.", "If SEBI, after due investigation, discerns that a person has violated (or is likely to violate) any provision of the SEBI Act, or any rules regulations made thereunder, it is authorized under Section 1 ID of the SEBI Act, to pass an order requiring the person concerned, to cease and desist from committing or causing such violation.", "Chapter VIA of the SEBI Act provides for penalties and adjudication.", "Under it, a penalty can be levied, for failure to furnish information, return or report to the Board (Section 15A inserted with retrospective effect from 25.01.1995) a penalty can be imposed for failure by any person to enter into such agreement, under Section 15B by Section 15C, penalty can be inflicted for failure to redress investors grievances by Section 15D penalty can be imposed for certain defaults in case of mutual funds.", "Penalty can be levied for failure to observe rules and regulations by an asset management company (by Section 15E) a penalty can be imposed for default in case of stock brokers - by Section 15F. Penalty can also be imposed for insider trading - by Section 15G. Section 15-1 (1) of the SEBI Act empowers the SEBI to appoint any officer not below the rank of a Division Chief to be an adjudicating officer for holding an inquiry The enquiry and orders which ensue from that proceeding can be penalties- most of these penalties have an upper ceiling limit of Rs. One Crore.", "SEBI also possesses powers, after ascertaining through investigation and appropriate proceedings, under Sections 11, 11B and 11(4) of the SEBI Act (and Regulation 11 of Regulations), to pass orders that have wide ranging repercussions, including prohibiting individuals and entities (i.e directors, companies etc) for specified periods from buying, selling or dealing in securities in any manner whatsoever or accessing the securities market directly or indirectly, or not dealing in mutual funds, etc.", "The behaviour that is proscribed, is elaborately dealt with in provisions of the SEBI Act and Regulations (Sections 12A and 12B), etc.", "Section 4 of the SEBI Act deals with its composition its power consists of Chairman, two Members (from amongst officers of the Union Government and Finance Ministry dealing with administration of the Companies Act.), one member from the Reserve Bank of India (RBI) and five other members (of whom at least three are to be whole time members) to be appointed by the Central Government.", "The Chairman of SEBI has the powers of superintendence and direction of its affairs subject to express regulations.", "Notably, the Chairman and all members are to be appointed by the Central Government and the member from the RBI is to be nominated by the RBI Central Government in turn has the power to nominate five members under Section 4(1)(b).", "Section 5 of the SEBI Act does not prescribe a specific term of office and conditions of service and leaves it to the Regulations to do so.", "Section 7(3) mandates that all issues which are to be considered by SEBI are to be decided by majority of votes and in the event of equality of votes, the Chairperson would have a casting vote.", "Speaking about the powers of the SEBI, the Supreme Court, in Clariant International Limited and Anr.", "vs Securities Exchange Board of India  : 2004 (8) SCC 524, had remarked that: The Board exercises its legislative power by making regulations, executive power by administering the regulations framed by it and taking action against any entity violating these regulations and judicial power by adjudicating disputes in the implementation thereof.", "The only check upon exercise of such wide ranging power is that it must comply with the Constitution and the Act.", "In that view of the matter, where an expert Tribunal has been constituted, the scrutiny at its end must be held to be of wide import.", "The Tribunal, another expert body, must, thus, be allowed to exercise its own jurisdiction conferred on it by the statute without any limitation.", "Later, in National Securities Depository Limited v. Securities and Exchange Board of India  : 2017 (5) SCC 517 the court again said, about SEBI that The Board is indisputably an expert body.", "But when it exercises its quasi-judicial functions its decisions are subject to appeal.", "The Appellate Tribunal is also an expert Tribunal.", "The Telecom Regulatory model: TRAI and TDSAT The telecom sector witnessed a two-stage evolution the first, with creation of the TRAI, which performed regulatory (including quasi legislative functions- it continues to do so, even till this date) and adjudicatory functions.", "However, the rulings given by it in the performance of its functions are appealable to the Telecom Disputes Settlement and Appellate Tribunal (TDSAT).", "The TRAI is the primary regulatory authority, whose statutory remit includes making recommendations in regard to matters enumerated in Section 11(1)(a) and in the course of its regulatory functioning Sections 11(1) (d) read with Section 12 (4) and 13 issue directions to licensees and service providers over whom it exercises jurisdiction.", "The regulation making authority of the TRAI is derived from Section 36 its powers to frame such subordinate regulation are in respect of matters enumerated in Section 11(1)(b).", "The TRAI is comprised of a Chairman and other members.", "Section 4 of the TRAI Act merely prescribes that its members shall be appointed by the Central Government from amongst members who have special knowledge of, and professional experience in telecommunication, industry, finance, accountancy, law, management or consumer affairs.", "Proviso to Section 4 states that no one who has or holds any position in the Central Government can be appointed as a member unless she or he acted as Secretary or Additional Secretary or any equivalent post in the Central Government or the State Government for not less than three years.", "Under Section 5(2), the Chairperson and members of TRAI hold office for a term not exceeding three years or until they attain the age of 65 years, whichever is earlier.", "Section 8(3) mandates that all decisions of the TRAI are to be decided by majority of its members and in the event of equality of votes, the Chairperson would have a casting vote.", "The TDSAT is a creation of the Act, through an amendment (that introduced Chapter IV in the TRAI Act) with effect from 24.01.2000.", "It is created by Section 14 its jurisdiction is to inter alia, adjudicate inter se disputes between service providers, licensees and licensors also between a service provider and a group of consumers.", "Every direction, decision or order by the TRAI- made, in the course of its regulatory power, is subject to appeal to TDSAT (Section 14A (2)).", "The composition of TDSAT is dealt with Section 14B. The Tribunal comprises of a Chairman and not more than two members - to be appointed by the Central Government.", "These are to be selected by the Central Government in consultation with the Chief Justice of India Section 14B(2) Section 14B(3) confers the option of Bench formation of the TDSAT and the distribution of work.", "Section 14(c) of the TRAI Act states that the Chairperson should have been a former Judge of the Supreme Court or the Chief Justice of the High Court Section 14C (a).", "As far as members are concerned, the essential qualification and experience is that the individual concerned should have held the post of Secretary to the State Government or any equivalent post of State Government for a period not less than two years or one well-versed in the field of technology, telecommunication, industry, commerce or administration.", "The term of office of TDSAT member is provided in Section 14D. For Chairperson, the tenure is not exceeding three years and the outer limit for Chairperson tenure is attainment of 70 years and in the case of members - 65 years.", "The Electricity sector: provisions of the Electricity Act, 2003 In the Electricity Sector, at the primary level, a dual regulatory regime has been provided for.", "The Central Electricity Regulatory Commission is created by Section 76.", "Its Chairperson and members have to possess adequate knowledge and experience in or have shown capacity in dealing with problems relating to engineering, law, economic, commerce, finance or management.", "One of the members should have qualification and experience in the field of engineering with specification of generation, transmission or electricity distribution Section 77(a) One has to possess qualification and experience in the field of Finance Section 77(b) two persons should have experience and qualification in the field of Economics, Commerce, Law or Management.", "The Central Government has the option of appointing a Chairperson from amongst the former Judges of the Supreme Court or Chief Justice of a High Court under Section 77(2) after consultation with the Chief Justice of India.", "Section 78 provides for constitution of Selection Committee to recommend members.", "The functions of the Central Commission include regulations of tariff of generating companies under or controlled by Central Government tariff of generating companies other than those under or controlled by Central Government, if they enter into or otherwise for a composite segment of generation and sale of electricity in more than one State Regulation of Interstate transmission of electricity determination of tariff for inter-state transmission of electricity issuance of licenses for functioning as transmission licensee and electricity trader with respect to inter-state operations and adjudication of disputes involving generating companies or transmission licensees in regard to matter enumerated in Section 79(1)(a) to (d) levy of fees specifying the Grid Code with Grid standards specification and enforcement of standards fixing of trading margin wherever deemed necessary, etc.", "The Central Commission also composition with advisory powers under Section 79(2) with respect to formation of National Electricity Policy, promotion of competition, investment, Electricity Segments, etc.", "State Commissions: The other body at the primary level is constituted in the States - The State Electricity Regulatory Commissions, under Section 82(1).", "The Chairperson and members of the State Commissions are to be appointed by the concerned State Government on the recommendations of a Selection Committee under Section 85 - by virtue of Section 82(5).", "Like in the case of the Central Commission, Section 89 follows the similar pattern.", "The tenure of Chairperson or members shall be for five years.", "The qualification of Chairperson and Members of the State Commission is provided under Section 84.", "They should be from amongst persons of integrity and standing with adequate knowledge and having shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management.", "The Chairperson can, however, be appointed from amongst those who were Judges of High Courts Section 84(2) subject to previous consultation with the concerned Chief Justice of that High Court.", "1 0 2 .", "The functions of the State Commission are outlined under Section 86 and they include determination of tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, within the State regulating electricity purchase and procurement process of distribution licensees including the price at which electricity should be procured from generating companies facilitation of intra-state transmission and wheeling of electricity promote co-generation and generation of electricity from renewable sources of energy specify the grid code with what is provided for under Section 79(1)(h) fixation of trading margins in intra-state trading of electricity, enforcement of standards with respect to quality, continuity and reliability of service by licensees.", "1 0 3 .", "By Part XI (of the Electricity Act), Section 110, the Appellate Tribunal for Electricity stands established.", "Its jurisdiction is to decide appeals against orders made by Adjudicating Officers under the Act or any order of an appropriate Commission which is defined by Section 2(4) as the Central Regulatory Commission or the State Regulatory Commission or wherever two or more States have a Single Commission, the Joint Commission under Section 83).", "The Electricity Appellate Tribunal comprises of a Chairperson and three members under Section 112(2) option of constituting benches has been prescribed Section 113 stipulates qualification for appointment of Chairperson.", "A Chairperson Section 113(1)(a) has to be a Judge of the Supreme Court or a Former Chief Justice of a High Court in the case of a member of the Tribunal, one qualified to be a Judge of a High Court or has been a Secretary of the Central Government dealing with the Economic Affairs or the matters of infrastructure or a person of ability and standing of adequate knowledge or experience in dealing with the matters relating to electricity generation, transmission and distribution and regulations or economic, commerce, law or management.", "The term of office under Section 114 is three years the Chairperson and members can be considered for re-appointment for a second term of three years.", "The outer age limit after which appointments are impermissible - in the case of Chairperson is 70 years of age and in case of members - till 65 years.", "Decisions of the Tribunal are to be taken by majority and in case of difference by two members panel, a reference is to be made to the Chairperson, who has to hear the point herself or refer the case for hearing to another member or members.", "By Section 120(3), the order of the Tribunal is executable as a decree of a Civil Court.", "Such powers to execute the decree are conferred upon the Tribunal itself.", "The Tribunals decision and orders are appealable to the Supreme Court under Section 125, on the grounds specified under Section 100 of the CPC.", "Airports regulation: the Airports Authority of India Act and the Airports Economic Regulatory Authority Act, 2008 1 0 6 .", "The first regulation in the field of airport regulation is the Airports Authority Act, 1994 it establishes the Airports Authority of India (AAI), whose functions-under Section 12 to manage civil airports, civil enclaves and aeronautical communications.", "By Section 12 (2) and (3), the AAI is invested with manifold regulatory duties including providing for air traffic and air transport service in every airport.", "It has the overarching duty to plan, conceive and establish airports and provide every kind of regulatory direction in that regard also provide technical services such as navigational aids, etc.", "Section 3 provides for constitution of the AAI Section 3 (3) prescribes that the AAI shall be comprised of a Chairperson and eight members- all to be appointed by the Central Government.", "One of them is the Director General of Civil Aviation, ex-officio.", "Furthermore, per Section 3 (5), the members and chairperson shall be chosen amongst those having special knowledge in air transport or any other transport services, financial, commercial fields or administration.", "Every whole time member has a tenure of 5 years part time members have a tenure of three years (Section 5).", "Chapter VA of the AAI Act provides for adjudication of disputes relating to eviction, levy of damages for unauthorized occupation, etc.", "AAI can appoint eviction officers (Section 28B) these officers, after following the procedure prescribed, i.e. prior notice and hearing, etc, have the power to evict those in occupation without authorization, of the AAIs premises (Section 28D) direct removal of unauthorized structures from the AAIs properties (Section 28F) direct payment of rent and damages after determining the amounts, (Section 28G).", "Eviction officers have powers of civil courts, in regard to summoning witnesses, recording evidence etc.", "Section 281 of the Act provides for an Airport Appellate Tribunal consisting of a Chairperson, to be appointed by the Central Government the qualification of such person is that she or he should have been a judge of a High Court the appointment is to be after prior consultation with the Chief Justice of India.", "The tenure of office of the chairperson is three years.", "Section 28K confers appellate jurisdiction to the tribunal any person aggrieved by the order of an eviction officer, can appeal to the Airport Appellate Tribunal, which can pass appropriate orders.", "These orders have the force of a civil courts decree.", "Airports Economic regulation: the Airports Economic Regulatory Authority Act 1 0 9 .", "The second regulator in the airport segment is the Airports Economic Regulatory Authority, established through the Airports Economic Regulatory Authority Act (AERA Act), in 2008.", "By virtue of Section 4, the AERA has a Chairperson and two other members, appointed by the Central Government.", "They are to be from amongst persons of ability and integrity having adequate knowledge of, and professional experience in, aviation, economics, law, commerce or consumer affairs.", "A person who is or has been in the service of Government shall not be appointed as a Member unless such person has held the post of Secretary or Additional Secretary to the Government of India or any equivalent post in the Central or State Government for a total period of not less than three years.", "Selection of individuals to these positions is by a committee, under Section 5, comprised of high ranking officers of the Central Government, including the Cabinet Secretary.", "Section 6 prescribes that the term of the Chairman and others is to be five years the outer age limit for the chairperson is 65 years and the members is 62 years.", "The functions of AERA include, under Section 13, determination of tariff for the aeronautical services, in all major airports, taking into consideration several factors, i.e. the capital expenditure incurred and timely investment in improvement of airport facilities the service provided, its quality and other relevant factors the cost for improving efficiency economic and viable operation of major airports revenue received from services other than the aeronautical services the concession offered by the Central Government in any agreement or memorandum of understanding or otherwise any other factor which may be relevant for the purposes of this Act.", "Different tariff structures may be determined for different airports having regard to all or any of the above considerations specified.", "AERA also has to determine the amount of the development fees in respect of major airports determine the amount of the passengers service fee levied under rule 88 of the Aircraft Rules, 1937 made under the Aircraft Act, 1934 monitor the set performance standards relating to quality, continuity and reliability of service as may be specified by the Central Government or any authority authorised by it in this behalf.", "In the exercise of its powers, the AERA can issue directions to the service providers, under Section 15.", "Section 17 of the AERA Act stipulates the establishment of the Airports Economic Regulatory Authority Tribunal (AERAT), which can adjudicate disputes between two or more service providers or between a service provider and a group of consumer.", "Appeals against orders of eviction under Section 28K by eviction officers, under the AAI Act, are also available furthermore, appeals against directions and orders by AERA (Section 15) lie to AERAT.", "By Section 19, the tribunal is to consist of a Chairperson and not more than two Members to be appointed, by notification in the Official Gazette, by the Central Government.", "The Chairperson or a member holding a post as such in any other tribunal, established under any law for the time being in force, in addition to his being the Chairperson or a Member of that Tribunal, may be appointed as the Chairperson or a Member, as the case may be, of the Appellate Tribunal under the Act.", "By Section 19 (2) the selection of Chairperson and Members of the Appellate Tribunal shall be made by the Central Government in consultation with the Chief Justice of India or his nominee.", "In the case of Chairperson of AERA, the qualification is that she or he is, or should have been, a Judge of the Supreme Court or the Chief Justice of a High Court.", "In the case of a Member, has held the post of Secretary to the Government of India or any equivalent post in the Central Government or the State Government for a total period of not less than two years in the Ministries or Departments dealing with aviation or economics or law or a person who is well-versed in the field of aviation or economics or law.", "The term of office of the chairperson, and members, per Section 21, is a term not exceeding three years from the date on which he enters upon his office .", "The age limit for Chairperson is 70 years for member it is sixty-five years.", "Petroleum Regulation The Petroleum and Natural Gas Regulatory Board Act, 2006 (hereafter as the PNGRB Act) was framed to promote competitive markets and protect the interests of consumers by ensuring fair trade and competition among the entities.", "The Board under Section 11 of the PNGRB Act has to protect the interest of consumers by passing fair trade and competition among entities and through its regulations enable access to common carriers or contract carriers.", "To achieve those objectives, the Board has tariff framing authority: through regulations under Section 22(1).", "By virtue of Section 28, the PNGRB Board is empowered to entertain complaints or upon its satisfaction upon information, that anyone contravenes provisions of the Act or its directions or authorize the terms and conditions subject to which authorization is guaranteed to carriers and other service providers (under Section 15 and 19) or retail service obligations etc.", "It can entertain such complaints.", "These complaints and information can be the subject matter of an enquiry during the course of which opportunity should be given to the concerned allegedly erring authority.", "If the Board determines that the concerned service providers or entity has acted in violation provisions of the Act or the Boards directions, it can impose civil penalty for an amount up to 1 crore for each contravention and in case of continuing failure with additional penalty up to 10 lakhs for every day.", "The Board is set up under Section 3 of the PNGRB Act and consists of Chairperson, Member (Legal) and three other members all of whom are to be appointed by the Central Government.", "The Chairperson has to be from amongst persons from of eminence in the fields of petroleum and natural gas industry, management, finance, law, administration or consumer affairs -as in the case of the members too.", "However, in the case of Member (Legal), the individual should be qualified to be the Judge of the High Court or should have been Member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years.", "The Selection Committee under Section 4(2) of the Act is to comprise of Member of the Planning Commission, in-charge of the energy sector and four Secretaries to the Government of India.", "The term of office of the Chairperson and other members is for five years or till they attained the age of 65 years whichever is earlier.", "Meeting of the Board have to be through a majority and in case of equality of votes, by Section 8(3), the Chairperson would have the casting vote.", "By Section 24 of the PNGRB Act, the Board has powers to settle disputes between two entities or between the entity or any other person.", "Section 26 outlines the power of investigation to aid the dispute settlement jurisdiction.", "The Appellate Tribunal - by virtue of Section 30 is the appellate tribunal constituted under Section 110-111 of the Electricity Act 2003.", "By Section 30(2), the Central Government can, in addition to the other members of the Electricity Tribunal, appoint technical Member (Petroleum and Natural Gas) in the Appellate Tribunal for electricity or designated technical member of that Tribunal having the concerned qualifications.", "The qualifications for a Technical Member (Petroleum and Natural Gas) are spelt out by Section 31(2) i.e. the individual should have been a Secretary for at least one year in the Ministry or Department of the Central Government having adequate experience in the energy sector especially in the matters relating to the Petroleum and Natural Gas or should be a person of an ability and standing, having adequate knowledge of or experience in dealing with matters relating to exploration, production, transmission pipelines, marketing or regulation of petroleum, petroleum products or natural gas, economics, commerce, law or management.", "The jurisdiction of the Appellate Tribunal as is spelt out by Section 33 any order or decision of the Board is appealable by any person aggrieved to the Tribunal.", "The appeal against any order of the Appellate Tribunal shall lie with the Supreme Court (Section 37) on grounds specified in Section 100 of the CPC.", "It is evident from the above enumeration of powers conferred upon the TRAI, the SEBI, the Electricity Commissions, the AAI, the AERA the PNGRB, that a two stage pattern has evolved in regulation of various sectors of the economy: the telecom, the securities, the power, airports and petroleum sectors.", "At the first stage the legislation provides for a primary regulator: in most cases, apart from regulatory duties, the concerned body also possesses regulation framing powers and power to issue directions, - after consulting or issuing notices to the concerned parties (and hearing them).", "These orders or directions are then appealable to tribunals (Securities Appellate Tribunal or SAT against orders of SEBI, TDSAT in the case of orders of TRAI the Electricity Appellate Tribunal in respect of various orders, including tariff fixation orders of the concerned commissions, such as the state or central commissions, the Airport Appellate Tribunal against orders of the AAI and lastly, AERAT, against orders of AERA).", "In all these cases, composition of the primary authority - which have sweeping powers in the concerned segment, is not amongst members who are predominantly from the judicial or legal field.", "Expertise in law is one amongst the many fields prescribed as eligible qualification, in the case of membership of these authorities or statutory regulatory bodies.", "Likewise, the predominant membership of the appellate tribunals (TDSAT, Electricity appellate Tribunal, SAT, AERA) is not from the judicial or legal field.", "Undoubtedly, the chairperson of such tribunals should have possessed judicial experience as Judges of Supreme Court, or Chief Justice of any High Court, or judge of High Court.", "But in all these tribunals (barring one) the other members are not necessarily from the judicial and legal field.", "The plurality and multifarious tasks conferred upon each regulatory body and the plenitude of their powers and authority in the respective fields occupied by them leaves no manner of doubt to this Court, that the functions of each of them have lasting impact on those it seeks to regulate.", "The impact can be diverse- as it may operate as a direction in rem against a class of service providers, (terms of licensing, grant of licensing, permitting interconnection in the telecom segment) or operate in rem against both service providers and consumers (as in the case of tariff fixation).", "In the case of SEBI, the directions can be drastic (as for instance, when for any violation or infraction of the enactment or the prescribed regulations, the trader or stockbroker, fund house, etc. can be prohibited from operating for specific duration).", "Such action can result in deprivation of the right to trade or carry on business or profession it may be a monetary sanction as in the case of penalty, or damages, etc.", "Yet, these drastic actions may have the effect of decrees (when the directions or orders are made by appellate bodies).", "But the primary determinations are made by regulatory bodies.", "This model or pattern inures under the Competition Act, as well.", "In the United States of America, courts- notably the US Supreme Court- have grappled with problems arising from regulatory adjudication.", "The clearest statement of the scope of such decision making- which resembles an adjudicatory outcome by courts- was made in Securities Exchange Commission v. Chenery Corp., 332 U.S. 194 (1947) arose from an order of the commission (SEC) refusing to approve a utility companys bankruptcy reorganization plan, due to that plans favourable treatment of managements stock purchases during the reorganization period.", "The Commission originally had based its disapproval on its understanding of general corporation law principles.", "The Supreme Court initially struck down that decision as a misreading of the principles.", "On remand, the SEC reaffirmed its rejection of the reorganization plan.", "But this time SEC relied on its interpretation of the standards of the Public Utility Holding Company Act of 1935.When the Supreme Court decided the appeal for the second time, it affirmed SECs order.", "The court clarified that SEC would be allowed to establish such an interpretation by means of a particularized order rather than a general regulation and observed that: Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule.", "Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations.", "In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order.", "To insist upon one form of action to the exclusion of the other is to exalt form over necessity.", "In other words, problems may arise in a case which the administrative agency could not reasonably foresee, problems which must be solved despite the absence of a relevant general rule.", "Or the agency may not have had sufficient experience with a particular problem to warrant rigidifying its tentative judgment into a hard and fast rule.", "Or the problem maybe so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule.", "In those situations, the agency must retain power to deal with the problems on a case-to-case basis if the administrative process is to be effective.", "There is thus a very definite place for the case by case evolution of statutory standards.", "And the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primary in the informed discretion of the administrative agency.", "1 1 9 .", "Somewhat similar observations were made by the Supreme Court in PTC India v. Central Electricity Regulatory Commission  : 2010 (4) SCC 603.", "The court stated as follows, after analysing provisions of the Electricity Act: On the above analysis of various sections of the 2003 Act, we find that the decision- making and regulation-making functions are both assigned to CERC Law comes into existence not only through legislation but also by regulation and litigation.", "Laws from all three sources are binding.", "According to Professor Wade, between legislative and administrative functions we have regulatory functions.", "A statutory instrument, such as a rule or regulation, emanates from the exercise of delegated legislative power which is a part of administrative process resembling enactment of law by the legislature whereas a quasi-judicial order comes from adjudication which is also a part of administrative process resembling a judicial decision by a court of law.", "Applying the above test, price fixation exercise is really legislative in character, unless by the terms of a particular statute it is made quasi-judicial as in the case of tariff fixation under Section 62 made appealable under Section 111 of the 2003 Act, though Section 61 is an enabling provision for the framing of regulations by CERC.", "If one takes tariff as a subject- matter, one finds that under Part VII of the 2003 Act actual determination fixation of tariff is done by the appropriate Commission under Section 62 whereas Section 61 is the enabling provision for framing of regulations containing generic propositions in accordance with which the appropriate Commission has to fix the tariff This basic scheme equally applies to the subject-matter trading margin in a different statutory context as will be demonstrated by discussion hereinbelow.", "PTC India, (a Constitution Bench decision) as well as the decision of the Supreme Court in Bharat Sanchar Nigam Limited v. Telecom Regulatory Authority of India  : 2014 (3) SCC 222 have unequivocally ruled that the appellate bodies (i.e. the Electricity Appellate Tribunal, per Sections 110-111 of the Electricity Act and the TDSAT (per Section 14(d) of the TRAI Act) do not possess the power of judicial review, to decide upon the validity of regulations framed by the primary regulator (i.e. the TRAI and the Appropriate commissions).", "In Cellular Operators Association of India v. Telecom Regulatory Authority of India  : 2016 (7) SCC 703, the Supreme Court observed as follows: We have seen that the 2000 Amendment has taken away adjudicatory functions from the TRAI, leaving it with administrative and legislative functions.", "By Section 14 of the Act, adjudicatory functions have been vested in an Appellate Tribunal, where disputes between a group of consumers and the service providers are to be adjudicated by the Appellate Tribunal.", "In stark contrast, under the scheme of the Electricity Act, 2003, the Central Electricity Regulatory Commission and the various State Electricity Regulatory Commissions have to discharge legislative, administrative, and quasi-judicial functions.", "This is clear on a reading of Section 79 (1)(f) and Section 86 (1) (f) of the Electricity Act The question then is, whether conferment of power on the CCI, whose orders and decisions have a lasting impact on the economic ability and freedom of business, trade and commerce (in the course of which business relationships are ordered and contracts of long duration are entered) are the result of an adjudicatory process which does not meet the standards required of by the Constitution in respect of decision of disputes by courts.", "The petitioners relied on two kinds of decisions: on the one hand, the first line of decisions Bharat Bank (supra) Harinagar Sugar Mills (supra) Jaswant Sugar Mills Limited (supra) etc In Bharat Bank (supra).", "the Supreme Court held that the term tribunal used in Article 136 does not mean the same thing as court but includes, within its ambit, all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions.", "In Harinagar Sugar Mills (supra), the court held that under Section 111(3) of the Companies Act, the Central Government, while acting as an Appellate Authority, had to act judicially and was entrusted with the judicial powers of the State to adjudicate upon rights of the parties in civil matters when there was a lis between the contesting parties, and so, the conclusion was that it acts as a tribunal and not as an executive body.", "Jaswant Sugar Mills (supra) held that the Conciliation Officer acting under clause 29 of a statutory order promulgated in 1954 under the U.P. Industrial Disputes Act, 1947, has to act judicially in granting or refusing permission to alter the terms of employment of workmen at the instance of the employer, but even so, he was not a tribunal, because he was not invested with the judicial power of the State, as he was empowered merely to lift the ban statutorily imposed on the employers rights, and was not authorized to make a final order or binding decision in any dispute.", "Engineering Mazdoor Sabha representing Workmen employed under the Hind Cycles Limited Hind Cycles Limited, Bombay  : (1963) Suppl (1) SCR 625, referred to the trappings of a court and it was observed that sometimes a rough and ready test is applied in determining the status of an adjudicating body by enquiring whether the said body or authority is clothed with the trappings of a court.", "In that connection, it was stated that the presence of the said trappings does not necessarily make the tribunal a court.", "The arbitrator appointed under Section 10-A was, held to be not a tribunal.", "1 2 3 .", "In Associated Cement (supra), the court revisited the issue as to what body would be characterized as a tribunal, exercising the judicial power of the state.", "The court analyzed the provisions of the Constitution and contrasted it with the provisions of other constitutions, which insisted upon the separation of powers of various organs or departments of government and held as follows: The use of the expression judicial power in the context, cannot be characterised as constitutionally impermissible or inappropriate, because our Constitution does not provide, as does Chapter III of the Australian Constitution, that judicial power can be conferred only on courts properly so-called.", "If such a consideration was relevant and material, then it would no doubt, be inappropriate to say that certain authorities or bodies which are given the power to deal with disputes between parties and finally determine them, are tribunals because the judicial power of the State has been statutorily transferred to them.", "In that case, the more appropriate expression to use would be that the powers which they exercise are quasi-judicial in character, and tribunals appointed under such a scheme of rigid separation of powers cannot be held to discharge the same judicial function as the courts.", "However, these considerations are, strictly speaking, in-applicable to the Indian Constitution, because though it is based on a broad separation of powers, there is no rigidity or exclusiveness involved in it as under Section 71 as well as other provisions of Chapter III of the Australian Constitution and so, it would not be inappropriate to say that the main test in determining the status of any authority in the context of Article 136(1) is whether or not inherent judicial power of the State has been transferred to it.", "In R. Gandhi (supra), the Supreme Court had to deal with provisions of the National Company Law Tribunal, which sought to replace the jurisdiction and powers of the Company Law Board and the appellate tribunal, which sought to supplant the jurisdiction of the High Court, which had existed for a long time.", "The court held that: The Constitution contemplates judicial power being exercised by both courts and Tribunals.", "Except the powers and jurisdictions vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by Legislative enactments.", "High Courts are vested with the jurisdiction to entertain and hear appeals, revisions and references in pursuance of provisions contained in several specific legislative enactments.", "If jurisdiction of High Courts can be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisions or references.", "It also follows that the legislature has the power to create Tribunals with reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments.", "Therefore it cannot be said that legislature has no power to transfer judicial functions traditionally performed by courts to Tribunals.", "The argument that there cannot be whole-sale transfer of powers is misconceived.", "It is nobodys case that the entire functioning of courts in the country is transferred to Tribunals.", "The competence of the Parliament to make a law creating Tribunals to deal with disputes arising under or relating to a particular statute or statutes cannot be disputed.", "When a Tribunal is constituted under the Companies Act, empowered to deal with disputes arising under the said Act and the statute substitutes the word Tribunal in place of High Court necessarily there will be whole-sale transfer of company law matters to the Tribunals.", "It is an inevitable consequence of creation of Tribunal, for such disputes, and will no way affect the validity of the law creating the Tribunal.", "We may summarize the position as follows: A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal.", "All courts are tribunals.", "Any tribunal to which any existing jurisdiction of courts is transferred should also be a Judicial Tribunal.", "This means that such Tribunal should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters and the members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.", "Whenever there is need for Tribunals, there is no presumption that there should be technical members in the Tribunals.", "When any jurisdiction is shifted from courts to Tribunals, on the ground of pendency and delay in courts, and the jurisdiction so transferred does not involve any technical aspects requiring the assistance of experts, the Tribunals should normally have only judicial members.", "Only where the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, where presence of technical members will be useful and necessary, Tribunals should have technical members.", "Indiscriminate appointment of technical members in all Tribunals will dilute and adversely affect the independence of the Judiciary.", "The Legislature can re-organize the jurisdictions of Judicial Tribunals.", "For example, it can provide that a specified category of cases tried by a higher court can be tried by a lower court or vice versa (A standard example is the variation of pecuniary limits of courts).", "Similarly while constituting Tribunals, the Legislature can prescribe the qualifications eligibility criteria.", "The same is however subject to Judicial Review.", "If the court in exercise of judicial review is of the view that such tribunalisation would adversely affect the independence of judiciary or the standards of judiciary, the court may interfere to preserve the independence and standards of judiciary.", "Such an exercise will be part of the checks and balances measures to maintain the separation of powers and to prevent any encroachment, intentional or unintentional, by either the legislature or by the executive The leading authority relied upon by the Petitioners was the Madras Bar Association (supra) judgment.", "It would be essential to extract some of the observations and findings of the Supreme Court in that judgment, dealing with the transfer of judicial powers to tribunals.", "They are reproduced as under: 108 The position that Parliament had the power to amend the Constitution, and to create a court tribunal to discharge functions which the High Court was discharging, was reiterated, in Union of India v. Madras Bar Association case (supra).", "It was concluded, that the Parliament was competent to enact a law, transferring the jurisdiction exercised by High Courts, in regard to any specified subject, to any court tribunal.", "But it was clarified, that Parliament could not transfer power vested in the High Courts, by the Constitution itself.", "We therefore have no hesitation in concluding, that appellate powers vested in the High Court under different statutory provisions, can definitely be transferred from the High Court to other courts tribunals, subject to the satisfaction of norms declared by this Court.", "Herein the jurisdiction transferred by the NTT Act was with regard to specified subjects under tax related statutes.", "That, in our opinion, would be permissible in terms of the position expressed above.", "Has the NTT Act transferred any power vested in courts by the Constitution? The answer is in the negative.", "The power of judicial review vested in the High Court under Articles 226 and 227 of the Constitution, has remained intact.", "This aspect of the matter, has a substantial bearing, to the issue in hand.", "And will also lead to some important inferences.", "Therefore, it must never be overlooked, that since the power of judicial review exercised by the High Court under Articles 226 and 227 of the Constitution has remained unaltered, the power vested in High Courts to exercise judicial superintendence over the benches of the NTT within their respective jurisdiction, has been consciously preserved.", "This position was confirmed by the learned Attorney General for India, during the course of hearing.", "Since the above jurisdiction of the High Court has not been ousted, the NTT will be deemed to be discharging a supplemental role, rather than a substitutional role.", "In the above view of the matter, the submission that the NTT Act violates the basic structure of the Constitution, cannot be acquiesced to.", "1 1 2 .", "Before we proceed with the matter further, it is necessary to keep in mind the composition of the adjudicatory authorities which have historically dealt with the matters arising out of tax laws.", "First, we shall deal with the composition of the Appellate Tribunals.", "All Appellate Tribunals which are relevant for the present controversy were essentially comprised of Judicial Members, besides Accountant or Technical Members.", "To qualify for appointment as a Judicial Member, it was essential that the incumbent had held a judicial office in India for a period of 10 years, or had practiced as an Advocate for a similar period.", "It is the above qualification, which enabled the enactments to provide, by a fiction of law, that all the said Appellate Tribunals were discharging judicial proceedings.", "The next stage of appellate determination, has been traditionally vested with the High Courts.", "The income-tax legislation, the customs legislation, as well as, the central excise legislation uniformly provided, that in exercise of its appellate jurisdiction, the jurisdictional High Court would adjudicate appeals arising out of orders passed by the respective Appellate Tribunals.", "The said appeals were by a legislative determination, to be heard by benches comprising of at least two judges of the High Court.", "Adjudication at the hands of a bench consisting of at least two judges, by itself is indicative of the legal complications, insofar as the appellate adjudicatory role, of the jurisdictional High Court was concerned.", "It would, therefore, not be incorrect to conclude, by accepting the submissions advanced at the hands of the learned counsel for the petitioners, that before and after promulgation of the Constitution, till the enactment of the NTT Act, all legislative provisions vested the appellate power of adjudication, arising out of the Income Tax Act, the Customs Act and the Excise Act, on questions of law, with the jurisdictional High Courts.", "Having recorded the above conclusion, the next issue to be determined is whether the adjudication of the disputes arising out of the provisions under reference, must remain within the realm of the jurisdictional High Courts? The instant proposition has two perspectives.", "Firstly, whether constitutional interpretation in the manner accepted the world over (details whereof have been narrated by us under the heading - The Issues canvassed on behalf of the petitioners , under the sub-title - The second contention ), would be a constitutional mandate, for the appellate jurisdiction pertaining to tax matters, to remain with the High Court? Secondly, whether the express provisions of the Constitution mandate, that tax issues should be decided by the concerned jurisdictional High Court concerned? One needs to also examine sub-sections (2), (3), (4) and (5) of Section 5 of the NTT Act, with pointed reference to the role of the Central Government in determining the sitting of benches of the NTT.", "The Central Government has been authorized to notify the area in relation to which each bench would exercise jurisdiction, to determine the constitution of the benches, and finally, to exercise the power of transfer of Members of one bench to another bench.", "One cannot lose sight of the fact, that the Central Government will be a stakeholder in each and every appeal case, which would be filed before the NTT.", "It cannot, therefore, be appropriate to allow the Central Government to play any role, with reference to the places where the benches would be set up, the areas over which the benches would exercise jurisdiction, the composition and the constitution of the benches, as also, the transfer of the Members from one bench to another.", "It would be inappropriate for the Central Government, to have any administrative dealings with the NTT or its Members.", "In the jurisdictional High Courts, such power is exercised exclusively by the Chief Justice, in the best interest of the administration of justice.", "Allowing the Central Government to participate in the aforestated administrative functioning of the NTT, in our view, would impinge upon the independence and fairness of the Members of the NTT.", "For the NTT Act to be valid, the Chairperson and Members of the NTT should be possessed of the same independence and security, as the fudges of the jurisdictional High Courts (which the NTT is mandated to substitute).", "Vesting of the power of determining the jurisdiction, and the postings of different Members, with the Central Government, in our considered view, would undermine the independence and fairness of the Chairperson and the Members of the NTT, as they would always be worried to preserve their jurisdiction based on their preferences inclinations in terms of work, and conveniences in terms of place of posting.", "An unsuitable disadvantageous Chairperson or Member could be easily moved to an insignificant jurisdiction, or to an inconvenient posting.", "This could be done to chastise him, to accept a position he would not voluntarily accede to.", "We are, therefore of the considered view, that Section 5 of the NTT Act is not sustainable in law, as it does not ensure that the alternative adjudicatory authority, is totally insulated from all forms of interference, pressure or influence from co-ordinate branches of Government.", "There is therefore no alternative, but to hold that subsections (2), (3), (4) and (5) of Section 5 of the NTT Act are unconstitutional.", "There seems to be no doubt, whatsoever, that the Members of a court tribunal to which adjudicatory functions are transferred, must be manned by judges members whose stature and qualifications are commensurate to the court from which the adjudicatory process has been transferred.", "This position is recognized the world over.", "Constitutional conventions in respect of Jamaica, Ceylon, Australia and Canada, on this aspect of the matter have been delineated above.", "The opinion of the Privy Council expressed by Lord Diplock in Hind case (supra), has been shown as being followed in countries which have constitutions on the Westminster model.", "The Indian Constitution is one such Constitution.", "The position has been clearly recorded while interpreting constitutions framed on the above model, namely, that even though the legislature can transfer judicial power from a traditional court, to an analogous court tribunal with a different name, the court tribunal to which such power is transferred, should be possessed of the same salient characteristics, standards and parameters, as the court the power whereof was being transferred.", "It is not possible for us to accept, that Accountant Members and Technical Members have the stature and qualification possessed by judges of High Courts.", "It was not disputed, that the NTT has been created to handle matters which were earlier within the appellate purview of the jurisdictional High Courts.", "We are accordingly satisfied, that the appointment of Accountant Members and Technical Members of the Appellate Tribunals to the NTT, would be in clear violation of the constitutional conventions recognized by courts, the world over.", "References on questions of law (under the three legislative enactments in question), were by a legislative mandate, required to be adjudicated by a bench of at least two judges of the jurisdictional High Court.", "When the remedy of reference (before the High Court) was converted into an appellate remedy (under the three legislative enactments in question), again by a legislative mandate, the appeal was to be heard by a bench of at least two judges, of the jurisdictional High Court.", "One cannot lose sight of the fact, that hitherto before, the issues which will vest in the jurisdiction of the NTT, were being decided by a bench of at least two judges of the High Court.", "The onerous and complicated nature of the adjudicatory process is clear.", "We may also simultaneously notice, that the power of judicial review vested in the High Courts under Articles 226 and 227 of the Constitution has not been expressly taken away by the NTT Act.", "During the course of hearing, we had expressed our opinion in respect of the power of judicial review vested in the High Courts under Articles 226 and 227 of the Constitution.", "In our view, the power stood denuded, on account of the fact that, Section 24 of the NTT Act vested with an aggrieved party, a remedy of appeal against an order passed by the NTT, directly to the Supreme Court.", "Section 24 aforementioned is being extracted hereunder: Appeal to Supreme Court- Any person including any department of the Government aggrieved by any decision or order of the National Tax Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the National Tax Tribunal to him: Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within such time as it may deem fit.", "In view of the aforestated appellate remedy, from an order passed by the NTT directly to the Supreme Court, there would hardly be any occasion, to raise a challenge on a tax matter, arising out of the provisions of the Income Tax Act, the Customs Act and the Excise Act before a jurisdictional High Court.", "Even though the learned Attorney General pointed out, that the power of judicial review under Articles 226 and 227 of the Constitution had not been taken away, yet he acknowledged, that there would be implicit limitations where such power would be exercisable.", "Therefore, all the more, the composition of the NTT would have to be on the same parameters as judges of the High Courts.", "Since the appointments of the Chairperson Members of the NTT are not on the parameters expressed hereinabove, the same are unsustainable under the declared law.", "A perusal of Section 6 of the NTT Act leaves no room for any doubt, that none of the above parameters is satisfied insofar as the appointment of Chairperson and other Members of the NTT is concerned.", "In the above view of the matter, Section 6(2) (b) of the NTT Act is liable to be declared unconstitutional.", "We declare it to be so.", "Conclusions: 134.", "(i) The Parliament has the power to enact legislation, and to vest adjudicatory functions, earlier vested in the High Court, with an alternative court tribunal.", "Exercise of such power by the Parliament would not per se violate the basic structure of the Constitution.", "(ii) Recognized constitutional conventions pertaining to the Westminster model, do not debar the legislating authority from enacting legislation to vest adjudicatory functions, earlier vested in a superior court, with an alternative court tribunal.", "Exercise of such power by the Parliament would per se not violate any constitutional convention.", "1 3 6 .", "(iii) The basic structure of the Constitution will stand violated, if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure, that the newly created court tribunal, conforms with the salient characteristics and standards, of the court sought to be substituted.", "(iv) Constitutional conventions, pertaining to constitutions styled on the Westminster model, will also stand breached, if while enacting legislation, pertaining to transfer of judicial power, conventions and salient characteristics of the court sought to be replaced, are not incorporated in the court tribunal sought to be created.", "1 3 8 .", "(v) The prayer made in Writ Petition (C) Number 621 of 2007 is declined.", "Company Secretaries are held ineligible, for representing a party to an appeal before the NTT.", "139.(vi) Examined on the touchstone of conclusions (iii) and (iv) above, Sections 5, 6, 7, 8 and 13 of the NTT Act (to the extent indicated hereinabove), are held to be unconstitutional.", "Since the aforesaid provisions, constitute the edifice of the NTT Act, and without these provisions the remaining provisions are rendered ineffective and inconsequential, the entire enactment is declared unconstitutional In Madras Bar Association (supra) and R. Gandhi (supra), therefore, the common ground was whether Parliament could transfer jurisdiction vested in courts to specially created tribunals.", "This principle finds clearest enunciation in Madras Bar Association (supra), where the court also spoke of the ratio in R. Gandhi (supra) to that effect.", "The relevant observations are that It was concluded, that the Parliament was competent to enact a law, transferring the jurisdiction exercised by High Courts, in regard to any specified subject, to any court tribunal.", "But it was clarified, that Parliament could not transfer power vested in the High Courts, by the Constitution itself.", "We therefore have no hesitation in concluding, that appellate powers vested in the High Court under different statutory provisions, can definitely be transferred from the High Court to other courts tribunals, subject to the satisfaction of norms declared by this Court.", "Earlier, this Court noticed the seminal judgments of the Supreme Court in Bharat Bank (supra), Harinagar Sugar Mills (supra), Jaswant Sugar Mills (supra), Associated Cement (supra) etc.", "Each of those decisions were rendered in the context of a dispute whether orders made by statutory bodies were appealable by special leave to the Supreme Court, under Article 136 of the Constitution, as orders made by judicial tribunals.", "These decisions held - having regard to the peculiarities of the statute concerned that as long as an order was a judicial order, and made in exercise of undoubted judicial power, it was amenable to special leave to appeal, under Article 136 of the Constitution.", "In one of the decisions, i.e. Associated Cement (supra), the court juxtaposed provisions of the Indian Constitution with provisions in other constitutions and held that the rigid doctrine of separation of powers was inapplicable to India.", "It would be necessary to trace the development of law on the question of creation of tribunals, in the backdrop of the debate whether such bodies can be invested with powers and jurisdiction hitherto exercised by courts of law and not tribunals.", "The first decision on this aspect is the Constitution Bench ruling in S.P. Sampath Kumar v. Union of India  : 1987 (1) SCC 124.", "The court had to decide whether the enactment of the Administrative Tribunals Act, 1985, and the divestment of all jurisdiction of all courts- including the judicial review power under Article 226- in the wake of enactment of Article 324A (inserted by the forty second amendment to the Constitution) was permissible.", "The court held as follows: Though judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution, but if any constitutional amendment made by Parliament takes away from the High Court the power of judicial review in any particular area and vests it in any other institutional mechanism or authority, it would not be violative of the basic structure doctrine, so long as the essential condition is fulfilled, namely, that the alternative institutional mechanism or authority set is no less effective than the High Court.", "The problems felt when the Administrative Tribunals were set up, i.e. complete exclusion of judicial review under Article 226 of the Constitution by virtue of Article 323A (2) (b) and 323B (3) (b) resulted in a reference to a larger bench of (seven judges) this led to the decision in L. Chandra Kumar (supra).", "The court, in L. Chandra Kumar (supra), held, inter alia, that: In the years that have passed since the Report of the Malimath Committee was delivered, the pendency in the High Courts has substantially increased and we are of the view that its recommendation is not suited to our present context.", "That the various Tribunals have not performed upto expectations is a self-evident and widely acknowledged truth.", "However, to draw an inference that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct.", "The reasons for which the Tribunals were constituted still persist indeed, those reasons have become even more pronounced in our times.", "We have already indicated that our constitutional scheme permits the setting up of such Tribunals.", "However, drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand up to constitutional scrutiny in the discharge of the power of judicial review conferred upon them.", "We may first address the issue of exclusion of the power of judicial review of the High Courts.", "We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot wholly be excluded.", "It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised.", "We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay.", "If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals.", "Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution.", "To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted.", "On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes.", "While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal.", "The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.", "It has also been contended before us that even in dealing with cases which are properly before the Tribunals, the manner in which justice is dispensed by them leaves much to be desired.", "Moreover, the remedy provided in the parent statutes, by way of an appeal by special leave under Article 136 of the Constitution, is too costly and inaccessible for it to be real and effective.", "Furthermore, the result of providing such a remedy is that the docket of the Supreme Court is crowded with decisions of Tribunals that are challenged on relatively trivial grounds and it is forced to perform the role of a First Appellate Court.", "We have already emphasised the necessity for ensuring that the High Courts are able to exercise judicial superintendence over the decisions of Tribunals under Article 227 of the Constitution.", "In R.K. Jains case, after taking note of these facts, it was suggested that the possibility of an appeal from the Tribunals on questions of law to a Division Bench of a High Court within whose territorial jurisdiction the Tribunal falls, be pursued.", "It appears that no follow-up action has been taken pursuant to the suggestion.", "Such a measure would have improved matters considerably.", "Having regard to both the afore-stated contentions, we hold that all decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of the Constitution, will be subject to the High Courts writ jurisdiction under Articles 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls.", "We may add here that under the existing system, direct appeals have been provided from the decisions of all Tribunals to the Supreme Court under Article 136 of the Constitution.", "In view of our above-mentioned observations, this situation will also stand modified.", "In the view that we have taken, no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution.", "Before moving on to other aspects, we may summarise our conclusions on the jurisdictional powers of these Tribunals.", "The Tribunals are competent to hear matters where the vires of statutory provisions are questioned.", "However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation.", "Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts.", "The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules.", "However, this power of the Tribunals will be subject to one important exception.", "The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional.", "In such cases alone, the concerned High Court may be approached directly.", "All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Courts.", "We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted.", "By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.", "We are also required to address the issue of the competence of those who man the Tribunals and the question of who is to exercise administrative supervision over them.", "It has been urged that only those who have had judicial experience should be appointed to such Tribunals.", "In the case of Administrative Tribunals, it has been pointed out that the administrative members who have been appointed have little or no experience in adjudicating such disputes the Malimath Committee has noted that at times, IPS Officers have been appointed to these Tribunals.", "It is stated that in the short tenures that these Administrative Members are on the Tribunal, they are unable to attain enough experience in adjudication and in cases where they do acquire the ability, it is invariably on the eve of the expiry of their tenures.", "For these reasons, it has been urged that the appointment of Administrative Members to Administrative Tribunals be stopped.", "We find it difficult to accept such a contention.", "It must be remembered that the setting-up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice.", "It was expected that a judicious mix of judicial members and those with grass- roots experience would best serve this purpose.", "To hold that the Tribunal should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted.", "Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that administrative members are chosen from amongst those who have some background to deal with such cases.", "In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.", "Section 28 of the Act and the exclusion of jurisdiction clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional.", "The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution.", "While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution.", "It is thus clear that in Sampath Kumar (supra) and L. Chandra Kumar (supra), the issue which confronted the court was complete exclusion of judicial review the High Courts jurisdiction in service matters, under Article 226 of the Constitution was completely ousted.", "The Administrative tribunals were created under the Act, and by reason of Article 323 A (2)(d) and Article 323B (3) (d), such jurisdiction of the courts was ousted.", "L. Chandra Kumar (supra) declared that the amendment which introduced those provisions was violative of the basic structure or essential features, inasmuch as the entire exclusion of such judicial review from the High Court, and its conferment on a body which was not an effective substitute, was impermissible.", "Resultantly, the amendments were declared unconstitutional as a consequence, on the one hand, the tribunals jurisdiction to determine the vires of rules (barring rules and subordinate legislation under the parent statute, i.e. the Administrative Tribunals Act) was upheld at the same time, judicial review jurisdiction over its orders, and the power of the High Court of superintendence over those tribunals, was reinstated.", "The court emphatically declined the argument that all, or predominant membership of those tribunals should be from the judiciary or trained lawyers, or those possessing qualifications to be judges.", "If one keeps the background of Sampath Kumar (supra) and L. Chandra Kumar (supra) and what was held in them- especially the latter and juxtaposes the later decisions (R. Gandhi (supra) and Madras Bar Association), the Supreme Court was concerned in preserving the powers of the High Courts.", "In the first two decisions, the issue was ousting judicial review jurisdiction altogether and conferring it on a body, which while a tribunal, no doubt, but was found to be inefficacious or ineffective (in its membership etc.).", "Therefore, judicial review over such tribunals decisions was reinstated in L. Chandra Kumar (supra).", "In the later decisions R. Gandhi (supra) and Madras Bar Association (supra), the tribunals created by new statutes supplanted established jurisdiction and powers of High Courts, in regard to important matters concerning administration of law and justice: i.e. income tax law, company law jurisdiction, etc.", "(and its interface with securities law).", "The courts overarching concern was that the steady erosion of judicial power, - inch by inch, as it were, insidiously, meant that the important judicial functions reserved by the Constitution were sought to be taken away.", "Inevitably, what would then be left (if the statutes had been left alone) would have been a rump of the courts jurisdiction, a pale shadow of courts judicial authority.", "This concern- at the effect of such steady erosion of judicial power from the court, in essence led to the court holding that in each case, the statute was unconstitutional.", "The separation of powers discussion- in both R. Gandhi (supra) and Madras Bar Association (supra) was in the context of the divestment of courts jurisdiction and their conferment upon bodies which had the trappings of tribunals, but were found not to be as effective.", "Even in R. Gandhi (supra) there are observations that the principle of separation of powers does not strictosensu apply to the Indian Constitution.", "Such observations can be found in Associated Cement (supra) and also in Bhim Singh (supra).", "In the latter, after noticing Indira Nehru Gandhi v. Raj Narain  : 1975 Suppl SCC 1 and observations in Kesavananda Bharti v. State of Kerala 1975 Supp.", "SCR 1, the court held that: This court has previously held that the taking away of the judicial function through legislation would be violative of separation of powers.", "As Chandrachud, J. noted in Indira Nehru Gandhi case (supra), the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.", "689 This is because such legislation upsets the balance between the various organs of the State thus harming the system of accountability in the Constitution.", "Thus, the test for the violation of separation of powers must be precisely this.", "A law would be violative of separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability.", "It is through this test that we must analyze the present Scheme.", "Thus, in considering the complaint that a law violates the separation of powers feature of the constitution (which is a part of the basic structure) what is necessary for the court to examine is whether the executive or any other branch takes over an essential function.", "These ideas find resonance in the earliest decision of the court in Rai Sahib Ram Jawaya Kapur v. State of Punjab  : AIR 1955 SC 549, when the Supreme Court held that: it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.", "The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature.", "It can also, when so empowered, exercise judicial functions in a limited way.", "The executive Government, however, can never go against the provisions of the Constitution or of any law.", "If these observations are kept in mind, the fact that some powers under an enactment, which clothe the authorities with a broad range of powers (and jurisdiction) - such as administrative, quasi legislative and quasi-judicial per se would not make that body a judicial or purely administrative one.", "Previously, this Court noticed various decisions which held that the bodies created under the TRAI Act and the Electricity Act are acknowledged to be regulatory ones in the case of TRAI, one of the rulings of the Supreme Court stated that regulation can take shape through subordinate legislation (i.e. rule making, regulation framing) or through litigation i.e. quasi-judicial determination in the course of decisions, directions and orders, after fact gathering i.e. granting opportunity to the parties concerned.", "In the case of the Electricity Commissions, it was held that they do perform quasi-judicial functions.", "As regards primary authorities under SEBI (i.e. the Board and the adjudicatory officers) there is no question that they do perform adjudicatory functions.", "The consequence of these functions (i.e. quasi- judicial determinations leading to orders and directions) is serious and parties concerned or service providers as a class are potentially impacted, sometimes gravely.", "In the case of SEBI, the Boards decisions can in fact lead to commercial shut down for specified periods, if the direction to stop trading is given.", "Undoubtedly, these result in serious civil consequences.", "In all these cases- as in the case of the Act, the remedy of appeal is available as a right the appellate tribunals uniformly are chaired by a judicially trained person (former High Court Chief Justice or former Supreme Court judge) in a couple of tribunals, in addition, other members drawn from the legal field are necessary.", "However, as regards the primary regulator, i.e. the bodies such as TRAI, SEBI, Electricity Commissions, AAI, AERA, PNGRB the statutes do not mandate that the members concerned (including adjudicating officers under Section 151 of SEBI Act) should be legally qualified or possess judicial experience.", "Gullapalli Nageswara Rao (supra) recognized the broad functionality test to determine whether a body or tribunal has a duty to act judicially it held that: whether an Administrative Tribunal has a duty to act judicially should be gathered from the provisions of the particular statute and the rules made thereunder, and they clearly express the view that if an authority is called upon to decide respective rights of contesting parties or, to put it in other words, if there is a lis, ordinarily there will be a duty on the part of the said authority to act judicially.", "Now, to deal with the provisions of the Competition Act.", "As noticed before, the CCI - upon receiving complaints, is not bound to launch an action.", "The information is not in the nature of a lis.", "This is quite unlike a dispute which courts adjudicate or disputes which statutory tribunals (i.e. the Income Tax Appellate Tribunal or the Customs, Excise Service Tax or the Goods and Service Tax Tribunal) decide.", "They are disputes in the course of dealings by individuals or entities, and in the nature of lis.", "Furthermore, another important distinguishing feature is that the CCIs powers to scrutinize the information compel it to first form a prima facie opinion.", "At that stage, there is no dispute even the informant is not heard.", "SAIL (supra) and subsequent decisions of the Supreme Court have iterated that this function is administrative and not quasi-judicial.", "There is no parallel to this procedure amongst any other tribunal which exercises judicial power of the state.", "Every judicial tribunal has to issue notice to the disputant parties and is obliged to hear them in accordance with the prescribed procedure, and render a reasoned decision.", "The CCI, even at the stage of forming a prima facie opinion acts within jurisdiction if it determines that no case is made out.", "1 3 7 .", "The second important feature is that unlike judicial tribunals, which depend entirely on the records of the lower statutory authorities and also what is produced before them, regulatory bodies (SEBI and CCI) have independent investigative mechanisms, which act as fact gathering statutory authorities.", "Depending upon the particular sectoral needs, these investigative bodies might be given powers to take depositions on oath, etc.", "(as in the case of DG under the Competition Act)- the DG has powers that are concurrent to the CCI.", "This is another unique feature, which sets apart such regulatory bodies from pure judicial tribunals which are charged with deciding the subject matter over which they exercise jurisdiction.", "Upon the completion of the record, and the submission of report, such regulators (both SEBI, under Section 11 of the SEBI Act and CCI, under Section 26 of the Competition Act) have to hear the parties in the case of CCI, it might have to record further evidence in any case, it has to hear the parties on the report submitted to it.", "It is thereafter that the CCI or the SEBI issues directions or orders.", "1 3 8 .", "The overall and comprehensive picture which unfolds on a reading of the various relevant provisions of the Competition Act is that not all of the CCIs powers are quasi-judicial or judicial when it considers a complaint or information and records a prima facie opinion, it acts administratively.", "It does not issue notice, but rather orders investigation, in the course of which the DG collects materials, including calling for records, statements, documents, etc.", "and also wherever needed, recording evidence on oath.", "At that stage, it is possible that one party or the other might seek cross-examination.", "Nevertheless, the stage is only one of investigation.", "The report furnished by the DG does not decide any lis, nor results in any adverse consequence.", "The report has to be considered by the CCI, after hearing the parties concerned (before which they are furnished with copies of the report).", "It is only after the report is submitted and a hearing given, that an order (a quasi-judicial one) is made it could result in closure of information or some directions (with a fully reasoned order dealing with all contentions) to the entity or entities concerned - or imposition of penalty.", "The Raghavan Committee, whose report led to the enactment of the Act and setting up of CCI, stated that: The Competition Law Authority should be a multi-member body comprised of eminent and erudite persons of integrity from the fields of Judiciary, Economics, Law, International Trade, Commerce, Industry, Accountancy, Public Affairs and Administration.", "Having an appropriate provision for their removal only with the concurrence of the Apex Court may ensure their independent functioning.", "The Competition Law Authority should be independent and insulated from political and budgetary controls of the Government.", "Competition Law should separate the investigative, prosecutorial and adjudicative functions ------ -------- ------ ----- 6.1.3.", "In many developed countries and economies in transition, the judiciary therein may be inexperienced in dealing with free market problems.", "Such problems relating to free and fair trade and relating to restrictive and other prohibited trade practices like abuse of dominance require a certain level of specialised knowledge in economics, trade and the relevant law for adjudication.", "Even if the judiciary has the reputation and exposure to commerce and market related matters, the Competition Law administration will be better handled if a specialized agency is set up for the purpose.", "With due respect to the judiciary around the world and in particular India, it needs to be underscored that in the era of specialisation Competition Law would be better administered and consumer welfare better sub-served, if placed in the hands of a specialised agency.", "6.1.4.", "It is therefore recommended that for the administration and enforcement of Competition Law in India, a Specialised Court Tribunal which can be christened COMPETITION COMMISSION OF INDIA may be established.", "The Competition Commission of India CCI will hear competition cases and also play the role of competition advocacy.", "The composition of the CCI needs to be tailored to the requirements of the competition policy and the Competition Law.", "CCI should be empowered to adopt procedures and rule of evidence specifically suited to competition cases.", "6.1.5.", "Principles Governing Competition Law And Authority, CCI should be a multi-member body comprised of eminent and erudite persons of integrity and objectivity in the fields of Judiciary, Economics, Law, International Trade, Commerce, Industry, Accountancy, Public Affairs and Administration.", "CCI should be independent and insulated from political and budgetary controls of the Government.", "The independent functioning of the CCI member need to be ensured by having appropriate provision for their removal only with the concurrence of the Supreme Court.", "CCI should separate the investigative, prosecutorial and adjudicative functions.", "The proceedings of CCI should be transparent, non-discriminatory and rule-bound.", "CCI should have a positive advocacy role in shaping policies affecting competition.", "To ensure the above, Competition Law should: provide a system of checks and balances by ensuring due process of law with provisions for appeal and review.", "have extra-territorial reach.", "have punitive provisions for punishing the offenders besides other remedial methods.", "(reformatory).", "6.1.6.", "Competition Commission - A Framework of the Administrative Structure It may be noted that in the view of the Committee, the Competition Commission of India should be the sole recipient of all complaints regarding infringement of the Competition Act from whatsoever sources it may be an individual, a firm or an entity or the Central or State Governments.", "The Competition Commission will also have suo motu powers for initiating action against any perceived infringement.", "6.1.7.", "Keeping in view the above principles, a suggested framework of CCI is described below.", "Under the extant MRTP Act, there is a requirement for registration of agreements leading to restrictive trade practices.", "It is not clear from experience as to what purpose the registration serves, apart from adding to unnecessary paper work.", "The new Competition Law should scrap the registration requirements altogether.", "6.1.8.", "Investigation, Prosecution, Adjudication, Mergers Commission And Competition Advocacy.", "All the petitioners had urged that given the nature of tasks conferred upon the CCI, i.e. to probe into the allegations of anti-competitive agreements, which under Section 3(3) directly or indirectly (a) determines purchase or sale prices (b) limits or controls production, supply, markets, technical development, investment or provision of services (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market which is the consequence of anti-competitive arrangement directly or indirectly results in bid rigging or collusive bidding, and also investigate into the matters provided in Section 3(4), i.e. agreements at different stages or levels of production generally in different markets, including by any arrangement, exclusive of supply arrangement, distribution arrangement, refusal to deal or resale price maintenance, the implications of exercise of jurisdiction by CCI have a far reaching effect.", "It was urged that by Section 27, the CCI can direct any association or enterprise etc.", "involved in the agreement or possession of dominant position, to discontinue or not to enter into such agreements which results in the direct restriction or even prohibition of the right to trade and enter into contracts.", "The CCIs jurisdiction to direct modification of agreements in the manner specified by it or to abide by other orders, such as payment of costs etc.", "are equally important implications.", "Furthermore, the power to issue penalty after adjudication under Section 27(b) only reinforces the essential judicial nature and content of the powers outlined in Sections 3 and 4.", "It was submitted, in the same vein that given the nature of adjudicatory functions for which the Act was conceived and brought into force, unlike other regulators, the CCI does not decide and apply pre-existing norms that dictate behaviour of an enterprise but rather adjudicates through regulation.", "In the submissions of one of the learned counsel, Mr. Lakshmikumaran, the CCI, in effect, regulates and does not apply existing norms - because there are no existing norms and that the norms that do exist are of a general character.", "Necessarily, therefore, the task of the CCI is closer or rather even identical to those of adjudicating bodies, Tribunals or Courts.", "As a corollary, the personnel who man the CCI should be drawn predominantly from the legal field with legal expertise or judicial experience.", "Section 8 was attacked on the ground that it only provides an option of a member with legal or judicial experience and does not compel it.", "Learned counsel seriously questioned certain other provisions, such as the terms of office of the Chairman and other Members (5 years) and the proviso to Section 12 (permitting employment under the State Central Government, of Members or Chairman who cease to hold office).", "It was also pointed out that the power to issue interim orders, and execute orders of imposing monetary penalty etc., are which that have a judicial flavour.", "Serious objection was taken to the powers under Sections 55 and 56 conferred upon the Central Government - to issue directions to the CCI on questions of policy and the power to supersede the Commission on its perceived inability to discharge the functions conferred upon it.", "This Court has already, for reasons elaborated in the preceding section of this judgment, held that the CCI does not perform purely adjudicatory functions like in the case of deciding a list between two competing parties.", "It is tasked with investigating into complaints received and information provided to it by individual entities and those aggrieved by patterns of behaviour perceived to be barriers in the course of trade and business, which would have the undesirable effect of injecting anti- competitive elements.", "Now, this task is not a straight forward adjudicatory one.", "The Commission has to, through an administrative process, sift the complaint or information and arrive at an opinion which the Supreme Court has characterized in SAIL (supra) to be of administrative nature.", "With that, the CCI directs investigation into the complaint or information, by the DG.", "In the course of this investigation and inquiry, again not an adjudicatory function, as no rights of any party are decided or determined, the representatives of the parties as well as the officials and employees of the concerned entities which are allegedly involved in the anticompetitive practices, are examined, and wherever necessary, depositions under oath are recorded.", "By virtue of decisions of the courts, in this fact- gathering exercise, wherever adverse evidence or deposition is collected, the opportunity of cross- examination is provided.", "The DG then analyses the material and evidence and prepares a report, stating whether the complaint is made out fully or in part.", "It is thereafter that the adjudicatory mode is launched, as it were.", "Even at this stage, the CCI may not proceed further and close the matter after hearing the parties.", "Conversely, if the DG in a given case reports that no further action or order is warranted after hearing the individual or the applicant as well as the parties who are alleged to be involved in the objectionable behaviour, the CCI can direct a further enquiry and thereafter proceed further in the matter with the hearing.", "It is only at this stage after the culmination of the investigation that the CCI enters into an adjudicatory phase.", "Undoubtedly, at this final stage, it decides the rights and liabilities of the parties.", "Given these overall realities, the question is, can it be said that the CCIs composition ought to be substantially or predominantly drawn from those possessing legal expertise or judicial experience as is urged.", "In the previous segment of this section, this Court had juxtaposed powers conferred by the Parliament upon the CCI with the role discharged by various regulatory authorities - SEBI, Electricity Commissions, AAI, AERA, PNGRB etc.", "In some cases, the primary regulatory body such as the SEBI and even the electricity commission are conferred with adjudicatory powers.", "In the case of SEBI, the powers conferred are akin to CCI as it too investigates into complaints and after giving the kind of opportunity which the statute mandates, imposes sanctions and, wherever necessary, issue appropriate directions.", "These directions are as consequential and substantive in seriousness as in the case of CCIs directions.", "For instance, SEBIs direction to cease and desist with a particular kind of practice in the securities market or barring fully or in part the activities of a stockholder, fund house or any other individual dealing in securities, can virtually spell a civil death for the time that such sanction or injunctive direction prevails.", "Undoubtedly, in both the cases, the right to carry on trade practice provision guaranteed under Article 19(1)(g) is restricted.", "Per se that it is done after following such a procedure without the aid of a court or without the intervention of a judicial tribunal, in the opinion of this Court, does not result in the restriction being an unreasonable one.", "If one sees in sequence, the three decisions - L. Chandra Kumar (supra), R. Gandhi (supra) and Madras Bar Association (supra) - as noticed previously, the courts overarching concern was the judicial power, whenever parcelled away from the mainstream adjudicatory bodies (courts) or established tribunals, such as the ITAT, and in the case of the High Court, dealt with by the Madras Bar Association (supra) or the jurisdiction of the CLB and the High Court conferred upon the then established NCLT - dealt with by R. Gandhi (supra) was frowned upon and contrary to the doctrine of separation of powers as the alternative mechanisms were inefficacious and ineffective.", "The Competition Act does not take away or supplant the jurisdiction of the preexisting jurisdiction of any court or tribunal.", "The decision of the Seven Judges in L. Chandra Kumar (supra) is authority for the proposition that in the case of service matters, the Administrative Tribunal (which had replaced the HC) is the primary adjudicatory body, then also the court did not accede to the proposition that all particulars ought to be drawn from the judicial branch or should be so qualified.", "Given the multiple tasks that the Act requires CCI to discharge (advisory, advocacy, investigation and adjudication), it cannot be held that the CCI must necessarily comprise of lawyers or those possessing judicial experience or those entitled to hold office as judges, to conform with the provisions of the Constitution.", "CCIs task as the primary regulator of marketplace and watchdog in regard to anti- competitive practices was conceived by the Parliament to be as a composite regulator and expert body which is also undoubtedly required to adjudicate at a stage.", "That stage, however, cannot be given such primacy as to hold that the CCI is per se or purely a judicial tribunal.", "As an adjudicatory body, there can be, no doubt, of course, that its orders are quasi-judicial and must be preceded by adherence to a fair procedure.", "As to what is a fair procedure has been elaborately dealt with by Section 26 and various regulations that mandate the kind of opportunity that various interested parties are to be given.", "Equally, in the course of such proceedings, the CCI is required to make procedural orders -which, a line of decisions require- are to be based on reasons.", "The final adjudicatory order, of course, has to contain elaborate reasoning.", "In that sense, the CCI is, no doubt, a Tribunal.", "But it is emphasized again that it is not purely a judicial Tribunal but discharges multifarious functions, one of which is adjudicatory.", "As regards the challenge to Sections 61 of the Act, this Court notices that such provisions are not alien to the body of law.", "Similar provisions exist in the Income Tax Act (Section 293) Goods and Services Tax Act, 2017 (Section 162) Securities and Exchange Board of India Act (Section 20A) Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (Section 18) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Section 34) Telecom Regulatory Authority of India Act, 1997 (Section 15) etc.", "This Court notices that firstly, the Act creates new rights and casts new obligations.", "The decision which is to be taken by the CCI is preconditioned upon a detailed fact gathering and fact analysis carried out by a body specially designated with the task, i.e. the DG.", "That officials powers are circumscribed by the Act and regulations.", "Furthermore, the conduct of proceedings and the application of principles by the CCI after the report of the DG- with assistance of parties counsel or their representatives, is not only factual and legal, but substantially depends upon analysis of a complex matrix of economic impact on competition of the particular entities behaviour.", "As such, CCI does not decide a traditional lis which is premised on an adversarial proceeding, which the courts are wont to, in their regular course of work.", "This court notices, in this context, the observations of the Supreme Court, in Union of India v. Delhi High Court Bar Association,  : 2002 (4) SCC 275, when it decided and upheld the bar to jurisdiction of civil courts enacted by Section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.", "The court held that: The manner in which a dispute is to be adjudicated upon is decided by the procedural laws which are enacted from time to time.", "It is because of the enactment of the Code of Civil Procedure that normally all disputes between the parties of a civil nature would be adjudicated upon by the civil courts.", "There is no absolute right in anyone to demand that his dispute is to be adjudicated upon only by a civil court.", "The decision of the Delhi High Court proceeds on the assumption that there is such a right.", "As we have already observed, it is by reason of the provisions of the Code of Civil Procedure that the civil courts had the right, prior to the enactment of the Debt Recovery Act, to decide the suits for recovery filed by the banks and financial institutions.", "This forum, namely, that of a civil court, now stands replaced by a banking tribunal in respect of the debts due to the bank.", "When in the Constitution Articles 323A and 323B contemplate establishment of a tribunal and that does not erode the independence of the judiciary, there is no reason to presume that the banking tribunals and the appellate tribunals so constituted would not be independent, or that justice would be denied to the defendants or that the independence of the judiciary would stand eroded.", "Significantly, similar considerations prevailed in Jagdish Singh v. Heeralal  : 2014 (1) SCC 479, when the Supreme Court held that the civil courts jurisdiction is barred in cases arising under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.", "For these reasons, the challenge to the bar to jurisdiction of civil courts, contained in Section 61 fails.", "The next challenge addressed was with respect to Section 53T, which provides for an appeal to the Supreme Court.", "The submission here was that this tends to exclude scrutiny by the High Court altogether and places a heavy burden on parties adversely affected by the COMPATs orders.", "This court is of opinion that given the fact that no citizen can claim a vested right to an appeal- according to the consistent line of authorities (Anant Mills v. State of Gujarat  : AIR 1975 SC 1234 Ganga Bai v. Vijay Kumar  : AIR 1974 SC 1126).", "The right once conferred, can be taken away only by law.", "However, no one can complain that the lack of a further appeal, or that provision of further appeal, is not to their convenience- as is being done, in this case.", "There may be of course some merit in the thought that if an appeal is provided to the High Court, jurisprudence can develop in the regulatory field, thus generating a body of regulatory law and standards that is available to the regulatory field.", "However, that can hardly be a ground for holding a law unconstitutional the policy choice in that regard is to be made by Parliament, not the courts.", "Therefore, it is held that Section 53T is valid- similar provisions have been made in the TRAI Act, SEBI Act, Electricity Act, etc.", "As far as the argument that the CCIs membership (i.e. the Chairman and members) qualification and experience are concerned, the Act visualizes that individuals with qualifications and expertise in diverse fields can be appointed these include persons from the legal field.", "This statutory provision ipso facto, however, does not satisfy the test of constitutionality, in view of the decisions of the Supreme Court in Utility Users Welfare Association (supra).", "In that decision, the Supreme Court dealt with a challenge to Section 113 on the ground that appointment of a judicial member was not mandated, which rendered the functioning of the State Commission (under the Electricity Act) questionable in law.", "The previous ruling in Tamil Nadu Generation and Distribution Corporation Limited PPN Power Generating Company Private Limited  : (2014) 11 SCC 53 was cited.", "In Tamil Nadu Generation (supra) the court had made observations indicating that the chairman of such commission had to be necessarily a person with judicial experience.", "In Utility Users Welfare Association (supra), resolving the issue, the court clarified that the appointment of such judicial personnel was optional.", "However, the court further held that: In Madras Bar Association 28 (MJ-II), the Constitution Bench, referring to the decision in Madras Bar Association 29 (MJ-I) observed that members of tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law and competent to discharge judicial functions.", "We are conscious of the fact that the case (MJ-I) dealt with a factual matrix where the powers vested in courts were sought to be transferred to the tribunal, but what is relevant is the aspect of judicial functions with all the trappings of the court and exercise of judicial power, at least, in respect of same part of the functioning of the State Commission.", "Thus, if the Chairman of the Commission is not a man of law, there should, at least, be a member who is drawn from the legal field.", "The observations of the Constitution Bench in Madras Bar Association 30 (MJ-II) constitutes a declaration on the concept of basic structure with reference to the concepts of separation of powers , rule of law and judicial review .", "The first question raised before the Constitution Bench as to whether judicial review was part of the basic structure of the Constitution was, thus, answered in the affirmative.", "We are, thus, of the view that it is mandatory to have a person of law, as a member of the State Commission.", "When we say so, it does not imply that any person from the field of law can be picked up.", "It has to be a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge.", "In Brahm Dutt v. Union of India, it has been observed that if there are advisory and regulatory functions as well as adjudicatory functions to be performed, it may be appropriate to create two separate bodies for the same.", "That is, however, an aspect, which is in the wisdom of the legislature and that course is certainly open for the future if the legislature deems it so.", "However, at present there is a single Commission, which inter alia performs adjudicatory functions and, thus, the presence of a man of law as a member is a necessity in order to sustain the provision, as otherwise, it would fall foul of the principles of separation of powers and judicial review, which have been read to be apart of the basic structure of the Constitution.", "We are also not in a position to accept the plea advanced by the learned Attorney General that since there is a presence of a Judge in the Appellate Tribunal that would obviate the need of a man of law as a member of the State Commission.", "The original proceedings cannot be cured of its defect merely by providing a right of appeal.", "We are, thus, of the unequivocal view that for all adjudicatory functions, the Bench must necessarily have at least one member, who is or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law and who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge.", "1 5 1 .", "It follows, therefore, that in line with the above declaration of law, at all times, when adjudicatory orders (especially final orders) are made by CCI, the presence and participation of the judicial member is necessary.", "The related aspect is the selection procedure.", "Objection was taken to Section 53D stating that whereas it envisages the Chairperson of a tribunal as a retired judge, there is no obligation that at least one of the other members ought to be a trained judicial personnel.", "The court is undoubtedly of the opinion that the Appellate Tribunal performs judicial functions it hears and decides appeals from orders of CCI.", "However, the mandate that the Chairman should have been a Supreme Court judge or a Chief Justice of a High Court, in the opinion of this court, sufficiently guarantees the application of a judicial mind and, more importantly, application of judicial principles to the issues brought agitated before that tribunal.", "This Court notices that the appellate tribunal provisions contained in regulatory enactments in various sectors (telecom, electricity, petroleum and natural gas, airports, securities etc.) follow an identical pattern.", "With respect to the selection procedure contained in Section 8 (for members of CCI) the court perceives no infirmity in the impugned provision, having regard to the view taken previously, mandatorily, the CCI should have a judicial member, in keeping with the dicta in Madras Bar Association (supra), as reiterated in R. Gandhi (supra) and the recent ruling in Utility Users Welfare Association (supra).", "This would consequently mean that the provision of Section 8 has to be resorted to for selection at all times.", "This, in the opinion of the court is sufficient safeguard to ensure that executive domination in the selection process (of the panel, shortlisting the names for appointment) does not prevail.", "The structure of the provision (Section 9 of the Act) is that five members -including the Chief Justice of India (or his nominee) as the chair, man it.", "At the same time, the composition also ensures the participation of two outside independent experts.", "As far as the selection to the appellate tribunal (COMPAT) goes (Section 53E), the court notices that the recent decision in Swiss Ribbons Pvt.", "Limited v. Union of India 2019 SCC Online SC 73, has outlined the correct perspective, having regard to the decisions in R. Gandhi (supra) and Madras Bar Association (supra).", "The court had observed as follows: Shri Rohatgi has argued that contrary to the judgments in Madras Bar Association (I) (supra) and Madras Bar Association (III) (supra), Section 412(2) of the Companies Act, 2013 continued on the statute book, as a result of which, the two Judicial Members of the Selection Committee get outweighed by three bureaucrats.", "On 03.01.2018, the Companies Amendment Act, 2017 was brought into force by which Section 412 of the Companies Act, 2013 was amended as follows: Selection of Members of Tribunal and Appellate Tribunal -- xxx xxxxxx The Members of the Tribunal and the Technical Members of the Appellate Tribunal shall be appointed on the recommendation of a Selection Committee consisting of Chief Justice of India or his nominee Chairperson (b) a senior Judge of the Supreme Court or Chief Justice of High CourtMember Secretary in the Ministry of Corporate AffairsMember and Secretary in the Ministry of Law and JusticeMember.", "(2-A) Where in a meeting of the Selection Committee, there is equality of votes on any matter, the Chairperson shall have a casting vote.", "This was brought into force by a notification dated 09.02.2018.", "However, an additional affidavit has been filed during the course of these proceedings by the Union of India.", "This affidavit is filed by one Dr. Raj Singh, Regional Director (Northern Region) of the Ministry of Corporate Affairs.", "This affidavit makes it clear that, acting in compliance with the directions of the Supreme Court in the aforesaid judgments, a Selection Committee was constituted to make appointments of Members of the NCLT in the year 2015 itself.", "Thus, by an Order dated 27.07.2015, (i) Justice Gogoi (as he then was), Justice Ramana, (iii) Secretary, Department of Legal Affairs, Ministry of Law and Justice, and (iv) Secretary, Corporate Affairs, were constituted as the Selection Committee.", "This Selection Committee was reconstituted on 22.02.2017 to make further appointments.", "In compliance of the directions of this Court, advertisements dated 10.08.2015 were issued inviting applications for Judicial and Technical Members as a result of which, all the present Members of the NCLT and NCLAT have been appointed.", "This being the case, we need not detain ourselves any further with regard to the first submission of Shri Rohatgi.", "In this context, it is significant that the Constitution Bench judgment in the second case of Madras Bar Association v. Union of India  : 2015 (8) SCC 583 hereafter the Madras Bar Association-II dealt with the issue concerning the composition of Selection Committees for the National Company Appellate Tribunal.", "There too, Section 412 of the Companies Act 2013, was in issue.", "Before the amendment noticed in Swiss Ribbons (supra), the Committee comprised of five members, including the Chief Justice of India or his nominee as Chairperson and a senior judge of the Supreme Court or the Chief Justice of the High Court and three other Secretary level members.", "In Madras Bar Association-II (supra) it was held as follows: This issue pertains to the constitution of Selection Committee for selecting the Members of NCLT and NCLAT.", "Provision in this respect is contained in Section 412 of the Act, 2013.", "Sub- section (2) thereof provides for the Selection Committee consisting of: Chief Justice of India or his nominee-Chairperson (b) a senior Judge of the Supreme Court or a Chief Justice of High CourtMember Secretary in the Ministry of Corporate AffairsMember Secretary in the Ministry of Law and JusticeMember and (e) Secretary in the Department of Financial Services in the Ministry of FinanceMember.", "Provision in this behalf which was contained in Section 10FX, validity thereof was questioned in 2010 judgment, was to the following effect: 10FX.", "Selection Committee: (1) The Chairperson and Members of the Appellate Tribunal and President and Members of the Tribunal shall be appointed by the Central Government on the recommendations of a Selection Committee consisting of: Chief Justice of India or his nominee Chairperson Secretary in the Ministry of Finance and Member Company Affairs Secretary in the Ministry of Labour Member Secretary in the Ministry of Law and Justice (Department of Legal Affairs or Legislative Department) Member Secretary in the Ministry of Finance and Company Affairs (Department of Company Affairs) Member.", "The Joint Secretary in the Ministry or Department of the Central Government dealing with this Act shall be the Convenor of the Selection Committee.", "The aforesaid structure of the Selection Committee was found fault with by the Constitution Bench in 2010 judgment.", "The Court specifically remarked that instead of 5 members Selection Committee, it should be 4 members Selection Committee and even the composition of such a Selection Committee was mandated in Direction Number (viii) of para 120 and this sub-para we reproduce once again hereinbelow: Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in Section 10FX, the Selection Committee should broadly be on the following lines: Chief Justice of India or his nominee-Chairperson (with a casting vote) A senior Judge of the Supreme Court or Chief Justice of High Court-Member Secretary in the Ministry of Finance and Company Affairs-Member and Secretary in the Ministry of Law and Justice-Member.", "Notwithstanding the above, there is a deviation in the composition of Selection Committee that is prescribed Under Section 412(2) of the Act, 2013.", "The deviations are as under: Though the Chief Justice of India or his nominee is to act as Chairperson, he is not given the power of a casting vote.", "It is because of the reason that instead of four member Committee, the composition of Committee in the impugned provision is that of five members.", "This Court had suggested one Member who could be either Secretary in the Ministry of Finance or in Company Affairs (we may point out that the word and contained in Clause (c) of sub-para (viii) of para 120 seems to be typographical mistake and has to be read as or, as otherwise it wont make any sense).", "Now, from both the Ministries, namely from the Ministry of Corporate Affairs as well as Ministry of Finance, one Member each is included.", "Effect of this composition is to make it a five members Selection Committee which was not found to be valid in 2010 judgment.", "Reason is simple, out of these five Members, three are from the administrative branch bureaucracy as against two from judiciary which will result in predominant say of the members belonging to the administrative branch, is situation that was specifically diverted from.", "The composition of Selection Committee contained in Section 412(2) of the Act, 2013 is sought to be justified by the Respondents by arguing that the recommended composition in the 2010 judgment was in broad terms.", "It is argued that in view of subsuming of BIFR andAAIFR which are in the administrative jurisdiction of Department of Financial Services, Secretary DFS has been included.", "No casting vote has been provided for the Chairman as over the period of time the selection processes in such committees have crystallized in a manner that the recommendations have been unanimous and there is no instance of voting in such committees in Ministry of Corporate Affairs.", "Moreover other similar statutory bodies tribunals also do not provide for casting vote to Chairperson of Selection Committee.", "Further, the Committee will be deciding its own modalities as provided in the Act.", "The following argument is also raised to justify this provision: (i) Robust and healthy practices have evolved in deliberations of Selection Committees.", "Till now there is no known case of any material disagreement in such committees, (ii) The intention is to man the Selection Committee with persons of relevant experience and knowledge.", "We are of the opinion that this again does not constitute any valid or legal justification having regard to the fact that this very issue stands concluded by the 2010 judgment which is now a binding precedent and, thus, binds the Respondent equally.", "The prime consideration in the mind of the Bench was that it is the Chairperson, viz. Chief Justice of India, or his nominee who is to be given the final say in the matter of selection with right to have a casting vote.", "That is the ratio of the judgment and reasons for providing such a composition are not far to seek.", "In the face of the all pervading prescript available on this very issue in the form of a binding precedent, there is no scope for any relaxation as sought to be achieved through the impugned provision and we find it to be incompatible with the mandatory dicta of 2010 judgment.", "Therefore, we hold that provisions of Section 412(2) of the Act, 2013 are not valid and direction is issued to remove the defect by bringing this provision in accord with sub-para of para 120 of 2010 judgment.", "Having regard to the above discussion, it is, therefore, held that necessarily, the composition of the Committee, which selects from amongst names to fill the position of Chairperson and members of the Company Appellate Tribunal has to conform to the dicta in Madras Bar Association-I (supra) and Madras Bar Association-II (supra).", "Swiss Ribbons (supra) too is an authority on this aspect the amended provisions of the Companies Act which was faulted in Madras Bar Association-II (supra) was approved.", "Consequently, Section 53E, as it stood, before the amendment by the Finance Act, 2017, is exposed to the vice of unconstitutionality.", "The court notices that unlike a mere appellate tribunal, COMPAT also possesses special jurisdiction to award damages through adjudication of claims under Section 53N. This power, in addition to the appellate power makes it imperative that the personnel chosen for the task assigned to the COMPAT, (from whose orders, appeals lie to the Supreme Court directly under Section 53T) are with the approval of the Chief Justice, and at least a judge of the Supreme Court, following the pattern indicated in Madras Bar Association-II and reiterated in Swiss Ribbons (supra).", "Consequently, Section 53E- as it stood prior to amendment, cannot be sustained.", "The above observations are, however, not determinative or seem to be dispositive of the issue entirely- that the validity of Section 53E which was repealed by Sections 171(d) of the Finance Act, 2017 and instead replaced by the provisions in Section 184 of the Finance Act, 2017 are pending consideration before the Supreme Court.", "As regards the objections with respect to the tenure and term of office and the potentiality of the Central Government to supersede CCI as well as its powers to issue directions, this Court notices, that in all the regulatory enactments creating bodies, which the Parliament hitherto enacted, (SEBI, AAI, Electricity Act, PNG etc.) similar provisions have been made.", "For instance, under Sections 39 and 40 of the AAI Act and Sections 49 and 42 of the AERA Act, the Central Government is empowered to issue directions to AAI and AERA and supersede the authorities under certain conditions.", "Likewise, under Section 25 of the TRAI Act, the Central Government has powers to issue directions to TRAI the Central Government has also powers under Section 7 of the RBI Act, to issue directions.", "By Sections106 to 109, likewise, directions can be issued by the concerned government - State or Central to the Central Commission, State Commission or Joint Commission respectively.", "Given the pattern of all these regulatory legislations, these provisions, in the opinion of the court, do not in any manner detract from or undermine the express authority conferred upon the CCI.", "As a matter of fact, by virtue of Section 11 of the Act, the tenure of its members is assured and protected.", "The procedure for removal of members or Chairman is spelt out in Section 11(3)(3) the safeguard provided is that in the event of a member acquiring official or other interest, likely to affect prejudicially her functions as a member or abusing her position, is rendered prejudicial to public interest, are matters exclusively to be decided by a reference made to the Supreme Court by the Central Government.", "This provision, in the opinion of the court, sufficiently entrenches the office of the Chairman and the members of the CCI and insulates them from arbitrary inroads by the executive.", "Point Number 3 - Section 22(3) unconstitutional for the reasons urged by the petitioners.", "Point Number 4 - Revolving door policy vitiating any law, policy or practice rendered by the CCI.", "Both these points are taken up together because common arguments were addressed by all counsels on this aspect.", "Section 22(1) provides that the CCI would meet at such times and places and observe such procedure as is provided by the regulations.", "Section 22(2) enacts that in the event of Chairpersons inability to attend a meeting of the Commission, the senior most person present would preside over it.", "Section 22(3) stipulates that all questions which come up for consideration in a meeting would be decided by majority of members present and voting and that in the event of equality of votes, the Chairperson or the Member presiding would have a second or casting vote.", "The proviso to Section 22 (3) stipulates a minimum quorum of at least three members for any meeting.", "The petitioners argument was that Section 22(3), to the extent it enables the Chairperson or the senior member presiding a board meeting to vote twice, i.e. have a casting vote is anathema to judicial functioning.", "It is submitted that the concept of casting vote is relatable to board meeting in private environs such as company board meetings etc.", "and cannot have any place where the duty to act judicially and give reasons for such decisions are mandated.", "It was urged consequently that having regard to the stipulation of a minimum quorum (3 members) wherever there is a difference of opinion, in the CCI where the quorum is of even members - 4 or 6 invariably, the Chairperson or the member presiding would have his say because, he would necessarily vote twice.", "On behalf of the CCI, it was further urged that such provision for a casting vote is not anathema to all statutory bodies and finds place and mention in several statutes, such as SEBI, TRAI etc.", "Further, under Section 81(1)(A)(b) of the old Companies Act, 1956 - deals with further issue of capital Section 149(2B), - deals with restrictions on commencement of business and Section 189(1), which prescribed for ordinary and special resolutions, the law envisioned a casting vote by the Chairman of the meeting in the case of equality of votes.", "The concept of a casting vote, in the opinion of this Court, is better confined to the realm of meetings where decision to run a body or even select personnel or in regard to decisions with respect to day-today functioning of a body or entity, including the choice of selection of personnel etc.", "are decided.", "On the other hand, an adjudicatory function presupposes a fair procedure whereby the tribunal comprised of an impartial member or members hearing the parties render their decisions objectively on the given facts and apply a pre-existing norm.", "This in turn means that each member of the tribunal (where plurality of members exist) applies her (or his) mind independently and arrive at decisions which could be common.", "In this broad spectrum, various permutations are possible.", "For example, in a 3 member tribunal, it is likely that each member may express a different opinion but all may agree on a common conclusion.", "On the other hand, two may agree upon a common opinion and express in it in one opinion and the third may differ for stated reasons.", "Equally, it is possible that there is complete unanimity on all aspects resulting in one common opinion or decision.", "Each potential decision is premised upon application of mind by every member who participated in the tribunal.", "Furthermore, a strong element of collegiality is necessary either in all stages of functioning and at least, at the stage of the decision making.", "This collegiality or collaborative process and requirement of application mind is entirely subverted if one member, Chairperson, senior member or any member characterized by any appellation is conferred a second or casting vote.", "The principle of each members opinion and view carrying the same weight is destroyed in such instance.", "In the considered opinion of this Court, there can be no two opinions that a casting vote, which potentially can lead to as adjudicatory result or consequence, is anathema to and destroys the Rule of Law in the context of Indian Constitution.", "In this regard, the petitioners had relied upon the Division Bench decision of the Bombay High Court in Shobhana Shankar Patil (supra) where the Court was of the opinion that seniority of a judge - either as the Chief Judge or a presiding member, resulting in the entrustment upon him or her, the extra or casting vote would be entirely irrational the court demonstrated, this irrationality, by illustrating that where both judges are appointed on the same day, one of whom is designated as senior merely because such status is conferred upon him at the time of appointment.", "That would not in any manner explain why a casting vote is conferred on such individual member.", "The court further is of the opinion that the principle of equal weight for the decisions of each participant of a quasi-judicial tribunal is undoubtedly destroyed by Section 22(3) and further that the provision is incapable of compartmentalization or reading down.", "This can be shown by an illustration whereby the decision taken by a majority of four members might be to question a complaint and record that there is no prima facie opinion.", "The potential mischief which the casting vote provision can result in is that the Chairperson may well take recourse to the second or casting vote and tip the balance the other way and direct that a prima facie case exists in order to investigate into the matter further.", "There can be several such illustrations where the potential repercussions can be felt in the ultimate adjudicatory result.", "Consequently, the provision of Section 22(3) is incapable of a clear or neat segregation and has to be declared void in entirety.", "As a consequence, the only provision which would survive then is the proviso which mandates a minimum quorum of three members (including the Chairman).", "The proviso then would stand on its own and act as a norm since per se it is harmonious and caters to situations and contingencies where the entire Commission of seven members may be unable to sit and composition larger than 3 may not be able to function for several reasons.", "As regards point Number 4, the most serious objection to Section 22(3) as a whole was that it places or permits the revolving door policy that enables members to participate in one or the other proceedings or desist from participation at their will.", "To better appreciate this practice, the court would rely upon a tabular chart prepared by one of the parties in that regard with respect to participation of one or the other members in the course of the hearing, which culminated in its final hearings: 166.", "There can be no two opinions about the impropriety of a decision which is contrary to the principle that a tribunal or adjudicatory body is bound to render its decision, after hearing the parties if the body comprises of one or several members, it is a necessary corollary that only those who hear should decide.", "The decisions of the Supreme Court in Gullapalli Nageswara Rao (supra) Union of India Shiv Raj Others  : (2014) 6 SCC 564 establish this rule.", "The ratio of these judgments is that one who hears must decide and violation of this rule will render the final order void.", "The question here is, did anyone who did not hear the complaints decide it? The record and the tabular chart, listing the members who heard the matters on 05.02.2013 to 08.02.2013, shows that those who participated were Mr. HC Gupta, Anurag Goel, M L Tayal, Ashok Chawla, R Prasad, Justice N. Dhingra (Retd) and Ms. Geeta Gouri.", "On 05.03.2013, when CCI requested for additional information from the informant and the other OEMs, the same members - except Mr. R. Prasad participated he had retired, in the meanwhile.", "On 09.05.2013, the same combination (Mr. HC Gupta, Anurag Goel, M L Tayal, Ashok Chawla, Justice S.N. Dhingra (Retd) and Ms. Geeta Gouri) were present.", "Instead of R Prasad, Mr. Bunker, was present at this meeting.", "He was not present during the oral submissions and he joined the CCI on 25 March 2013.", "On 08.08.2013, five equipment manufacturers (OEMs) made submissions on this date, Mr. Anurag Goel, M L Tayal, Ashok Chawla, Justice S.N. Dhingra (Retd) and Ms. Geeta Gouri (from the original combination who heard the matter consecutively on 5th-8th February, 2013) were present two (R. Prasad, who had retired and H.C. Gupta) were not present Mr. Bunker was present like in the previous hearing.", "The final order was made on 25.08.2014 it was by three members, i.e. Mr. Anurag Goel, Ashok Chawla and M.L. Tayal.", "It is evident that Mr. Bunker, who was not present in the initial hearings on 05.02.2013 to 08.02.2013 and 05.03.2013, joined the hearings of 09.05.2013 and 08.08.2013.", "Those who had initially heard, but retired, in the meanwhile, before the final order was made, were Mr. R. Prasad, Justice S.N. Dhingra (Retd) Mr. H.C. Gupta and Ms. Geeta Gouri.", "The petitioners had urged that the hearings in which Mr. Bunker participated (i.e. on two dates) tainted the procedure and furthermore, that the retirement (or end of tenure) of four members resulted in violation of law and rules of natural justice.", "Their submission was, firstly that a tribunal acts as one body the quoram rule (per proviso to Section 22 (3)) cannot be stretched to such levels as to render access to justice, an illusion, whereby a larger body comprising of several members hears the matter and the ultimate decision is rendered by a minority of such body or tribunal, for whatever reasons.", "In Bharat Bank (supra), the fact situation was that the chairman of the tribunal was unable to attend the proceedings, since he was entrusted with another assignment.", "The argument made was two- fold, that the remaining two members had to be formally constituted as the tribunal more crucially, it was contended that the award that was made included the participation of the chairman, who then returned.", "The Supreme Court held that the award was vitiated.", "In Automotive Tyre Manufacturers Association v. The Designated Authority Ors.", " : (2011) 2 SCC 258, the issue was that one Designated Authority under the Customs Tariff Act heard the parties he was transferred another official took charge.", "He issued notice to the parties and asked them to provide written submissions.", "The Supreme Court considered the submission that the parties were given notice to appear, and did not do so it however, rejected it as unsubstantiated.", "In the light of these facts, it was held that the decision was vitiated because one who heard did not decide the matter.", "In Ossein and Gelatine Manufacturers Association of India v. Modi Alkalies Chemicals Limited Ors.", " : 1989 (4) SCC 264, the court held as follows: On the issue of natural justice, we are satisfied that no prejudice has been caused to the assessee by any of the circumstances pointed out by the appellant.", "It is the true that the order has been passed by an officer different from the one who heard the parties.", "However, the proceedings were not in the nature of formal judicial hearings.", "They were in the nature of meetings and full minutes were recorded of all the points discussed at each meeting.", "It has not been brought to our notice that any salient point urged by the petitioners has been missed.", "On the contrary, the order itself summarises and deals with all the important objections of the petitioners.", "This circumstance has not, therefore, caused any prejudice to the petitioners.", "The delay in the passing of the order also does not, in the above circumstances, vitiate the order in the absence of any suggestion that there has been a change of circumstances in the interregnum brought to the notice of the authorities or that the authority passing the order has forgotten to deal with any particular aspect by reason of such delay.", "The argument that the application of the Modis had referred to bonemeal as the raw material used and this was later changed to crushed bones is pointless because it is not disputed that all along the petitioners were aware that the reference to bonemeal was incorrect and that the Modis were going to use crushed bones in their project.", "The last contention that some documents were produced at the hearing by the Modis which the petitioners could not deal with effectively is also without force as, admittedly, the assessees representatives were shown those documents but did not seek any time for considering them and countering their effect.", "There has, therefore, been, in fact, no prejudice the petitioners.", "They have had a fair hearing and the Governments decision has been reached after considering all the pros and cons.", "We are unable to find any ground to interfere therewith.", "There was some discussion before us on a larger question as to whether the requirements of natural justice can be said to have been complied with where the objections of parties heard by one officer but the order of passed by another.", "Sri Salve, referring to certain passages in Local Government Board v. Alridge 1915 A.C. 120, Ridge v. Baldwin 1964 A.C. 40, Regina v. Race Relations Board.", "Ex parte Selvarajan  : 1975 1 WIR 1686 and in de Smiths Judicial Review of Administrative Action (Fourth Adn.", "p. 219-220) submitted that this was not necessarily so and that the contents of natural justice will vary with the nature of the enquiry, the object of the proceeding and whether the decision involved is an institutional decision or one taken by an officer specially empowered to do it.", "Sri Divan, on the other hand pointed out that the majority judgment in Gullappalli Nageswara Rao v. ASRTC  : (1959) Supp.", "1 S.C.R. 319 has disapproved of Alridges case and that natural justice demands that the hearing and order should be by the same officer.", "This is a very interesting question and Alridges case has been dealt with by wade (Administrative Law, 6th Edition) at pp.", "507 et.", ") We are of opinion that it is unnecessary to enter into a decision of this issue for the purposes of the present case.", "Here the issue is one of grant of approval by the Government and not any particular officer statutorily designated.", "It is also perfectly clear on the records that the officer who passed the order has taken full note of all the objections put forward by the petitioners.", "We are fully satisfied, therefore, that the requirements of natural justice have been fulfilled in the present case.", "In Tan Boon Chee David v. Medical Council of Singapore 1980 2 ML J 116, the Singapore High Court expressed disapproval at the manner the Singapore Medical Council had conducted an inquiry casually, and passed strictures upon the council for committing a glaring breach of natural justice.", "The appellant was held guilty of misconduct and suspended from medical practice.", "The inquiry had been held over two days the record however, disclosed that the attendance of members of the Council were erratic and furthermore, members walked in and out of the inquiry as and when they liked when evidence of the witnesses was recorded.", "The High Court held the inquiry to be vitiated, stating that: a person who has not seen and heard a witness is as a rule incapable of estimating the value of his evidence.", "It was therefore improper for members of the Council to walk in and out of the Inquiry while evidence was being recorded or to be absent altogether such conduct is not only improper and unfair to the practitioner but it also tends to destroy confidence in the fairness of the Councils decision It is clear that on the question whether in a particular case, a suitor or litigant can justly complain of violation of principles of natural justice- on the aspect that a tribunal of varied composition rendered decision through only some members, when at earlier stages, all members had participated and heard, is not capable of any one answer.", "Much depends on the factual context.", "Here, the three members who did finally decide the complaints (Mr. Anurag Goel, Ashok Chawla and M.L. Tayal) were present throughout all the dates of final hearing.", "No doubt, as time passed, four original members (Mr. R. Prasad, H.C. Gupta, Justice S.N. Dhingra (Retd), and Ms. Geeta Gouri) retired or completed their tenure.", "That fact is not disputed in these circumstances, in the opinion of the court, the mere fact that Mr. Bunker participated in two intervening hearings, but was not a party to the final decision, per se does not amount to violation of principles of natural justice.", "That proviso to Section 22(3) permits the possibility of the revolving door in the opinion of the court, does not result in its invalidity.", "It is well settled that the possibility of abuse of power is not a ground to hold the law, or provision of a law, arbitrary.", "In Sushil Kumar Sharma v. Union of India and Ors.", " : (2005) 6 SCC 281 it was observed as follows: It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation.", "It must be presumed, unless contrary is proved, that administration and application of a particular law would be done not with an evil eye and unequal hand (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and Anr.)  : (1956) 29 ITR 349 (SC).", "Again, in Budhan Choudhary Ors.", "v. State of Bihar  : 1955 Cri.", "L.J. 374, the Supreme Court repelled the contention holding that on the possibility of abuse of a provision by the authority, the legislation may not be held arbitrary or discriminatory and violative of Article 14 of the Constitution: From the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional.", "In such cases, action and not the section may be vulnerable.", "If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.", "Likewise, it was said, in State of Rajasthan v. Union of India  : (1978) 1 SCR 1 it was observed that: it must be remembered that merely because power may sometimes be abused, it is no ground for denying the existence of power.", "The wisdom of man has not yet been able to conceive of a Government with power sufficient to answer all its legitimate needs and at the same time incapable of mischief.", "In view of the above discussion, it is held that the mere circumstance that in a given case or group of cases, the practise of revolving door hearing is resorted to, would not ipso facto, constitute a valid ground to declare Section 22 invalid or arbitrary.", "Whether in a particular case, the concerned party has been prejudiced would have to therefore, be examined, in the light of the facts and circumstances of that case.", "Only three parties, Nissan Motors, BMW and Mahindra Mahindra had raised an issue with regard to the varying composition of the members who heard the matter.", "The relevant extract of the application dated 19.10.2012 filed by Mahindra Mahindra is as follows: This Respondent requests this Honble Commission to ensure that the varying quorum of honourable members who have heard the matter would not result in any injustice to the Respondents or adversely impact the outcome of the Honble Commissions judgment in the Case Number 3 of 2011.", "1 7 8 .", "These contentions were dealt with by the Commission in its order dated 24.07.2013 in the following manner: Nissan Motor India Pvt.", "Limited and BMW filed applications under Section 36(1) seeking fresh oral hearing in this matter by the Commission on the ground that there was a change in the constitution of quorum of the Commission.", "Mahindra Mahindra filed application dated 10th July, 2013 requesting to ensure that the varying quorum of members who have heard the matter would not result in any injustice to the Respondents or adversely impact the outcome of the Honble Commission in the matter.", "After the matter was heard, one new Member had joined the Commission, however, only those Members of the Commission who heard the matter and were present at the time of arguments, shall decide the matter in question.", "The application is, therefore, dismissed.", "It appears that the parties who had raised this issue were satisfied that no prejudice would be caused to them in view of this order of the CCI.", "As far as the other parties are concerned, they did not raise the issue at all and were evidently not apprehensive about the consequences of the procedure adopted in this regard.", "Having so concluded, this Court is nevertheless of the opinion that a hearing by a larger body and decision by a smaller number (for compelling reasons or otherwise) does lead to undesirable and perhaps at times avoidable situations.", "To address this, the court hereby directs that when all evidence (i.e. report, its objections affidavits etc.) are completed, the CCI should set down the case for final hearing.", "At the next stage, when hearing commences, the membership of the CCI should be constant (i.e. if 3 or 5 members commence hearing, they should continue to hear and participate in all proceedings on all hearing dates) the same number of members (of the CCI) should write the final order (or orders, as the case may be).", "This procedure should be assimilated in the form of regulations, and followed by the CCI and all its members in all the final hearings it would impart a certain formality to the procedure.", "Furthermore, the court hereby directs that no member of the CCI should take a recess individually, during the course of hearing, or take a break to rejoin the proceeding later.", "Such walk out and walk in practise is deleterious to principles of natural justice, and gravely undermines public confidence in the CCIs functioning.", "Once the hearing commences, all members (who hear the case, be they in quorums of 3 or 5 or seven) should continue to be part of the proceeding, and all hearings, en banc.", "An analogy may also be drawn to the hearings in courts before benches of more than one member.", "Hearings may take place from time to time before benches of varying composition, but once the final hearing has commenced, the matter is heard and decided only by the same bench.", "There is no addition, deletion or substitution in the composition of the bench during the course of final hearing.", "If at all, it becomes impossible to continue the hearing before the same bench (for example, due to one of the judges having demitted office), the matter is heard afresh by the new bench even if the composition is partly common with the previous bench.", "A similar example may be given of hearings in the Supreme Court - if a matter is heard in part by a bench of two judges, further hearings are held only before that bench, and not before the bench of three judges even if both the original members of the bench are also part of the three judge bench.", "The invariable practice of the courts, which also ought to be followed by the CCI, is that the bench which hears the matter decides it, and that every member who participates in the hearing, is also party to the final decision.", "Furthermore, the court is of the opinion that the CCI should be manned fully with all nine members.", "This will enable the Chairman to ensure that substantial numbers (of at least five) are present at every substantial hearing and final hearing.", "Furthermore, the Central Government should seriously consider recruiting legal practitioners who regularly practise in the field of company law, competition, securities and other related fields, with sufficient experience (of over 7 years, as in the case of District Judges, under the Constitution) as technical members.", "This will eventually promote wider participation in CCIs decision making process and result in these lawyers grooming for responsible positions in their later years: this can foster expertise which will be valuable to the legal and judicial system.", "Was the power exercised by the CCI to expand the scope of inquiry and notice under Section 26 (1) in an illegal and overbroad manner.", "The petitioners had impugned the expansion of scope of the initial inquiry.", "The facts here are that based on the complaint by the informant and supplementary materials, the CCI recorded its prima facie opinion that the complaints needed investigation by its order of 24.02.2011.", "On 19.04.2011, the DG conducted investigation into the allegations made by the informant and submitted his investigation report.", "That DG Report requested for permission to expand the scope of its investigation to include other car manufacturers.", "By its order of 26.04.2011, CCI expanded the scope of investigation being conducted by the DG to include the petitioners herein and certain other car manufacturers operating in India.", "The DG thereafter issued notice to the other car manufacturers, i.e. the petitioners on 04.05.2011 under Section 36 (2) read with Section 41 (2) of the Act, seeking detailed information and documents from them with reference to an investigation being conducted into certain anti-competitive practices alleged to be prevalent in the sale, maintenance, service and repair market of the cars manufactured in India in Case Number 03/2011.", "The DGs request for expansion reads as follows: In terms of CGI Order 03/2011 dated February 24, 2011, the Honble Commission has directed the office of DG to investigate the captioned case against HSIL, VIPL and FIAL.", "The informant has inter-alia alleged anti- competitive practices by these entities such as: a. genuine spare parts, diagnostic tools, technological information etc.", "are not made available to independent repair workshops b. restrictions are imposed on original equipment suppliers (OESs) forcing them not to supply spare parts in the open market.", "Dealers are prohibited from taking dealership of other car manufactures.", "However, in view of the fact that these practices may not be confined to these entities, the case involves larger issue related to prevalent conduct of the players in the automobile sector and its implication on the consumers at large it is suggested that the investigation may not be restricted to the opposite parties mentioned in the order.", "Accordingly, it is proposed that the scope of the investigation may be expanded to examine the practices, in the areas under consideration, of all the car manufacturers in India.", "A list of car manufacturers in India, as obtained from SIAM (Society of Indian Automobile Manufacturers) is placed at Annexure I. Submitted for consideration and approval please.", "The note of the investigating officer (which was before the CCI), records that: the scope of investigation needs to be widened in this case, considering the fact that restrictive trade practices on sale of spare parts, dealership etc.", "are also resorted by other car manufacturers.", "There appears a prima facie case, against the other car manufacturer as per list obtained from Society of Indian automobile manufacturer (SIAM) therefore requires investigation for verification in the larger interest of the consumers.", "It is therefore required that CCI may kindly issue necessary direction to initiate investigation against other car manufacturers.", "The Commission in its order dated 26.04.2011 recorded as follows: ORDER The information was referred to DG on 08.03.2011 for investigation and submission of report within 60 days.", "The DG vie not dated 19.04.2011 has requested for directions to initiate investigation against other car manufacturers, inter alia starting that the scope of investigation needs to widened in this case.", "The Commission considered the DCs note in the ordinary meeting-held on 26.04.2011 and approved the request to initiate investigation against other car manufacturers also as mentioned in the note of DG dated 19.04.2011.", "Commission further observed that whenever Commission orders of investigation in any case it need not be confined to the parties mentioned in the information.", "The investigation is ordered on certain issue and all the parties which are covered by that issue should be investigated.", "There is no need to obtain the orders of Commission on each individual case.", "The final order of the CCI further records the following findings - while dealing with the issue of validity of the expansion of hearing by a separate order under Section 26 (1): The direction of the Commission was with respect to alleged anticompetitive conduct by the said industry in general and not specifically qua the car manufacturers named in the information.", "This is apparent from the order of the Commission dated April 26, 2011 which was passed after considering the request of the DG when he found, at that stage that alleged anticompetitive conduct was not confined to the named entities in the information but was prevalent across the industry.", "Further, while directing the DG to investigate against those car manufacturers also who were not specifically named in the information, the Commission treated the almost similar conduct of all car manufacturers equally and gave mandate to the DG that he can investigate the matter against not only the named car manufacturers but against other car manufacturers as well.", "20.3.7.", "In the present case the DG brought the matter to the Commission and thereafter exercising its power under the Act, the Commission allowed the request in order to achieve the objectives of the Act, as mentioned in the preamble an discharge of its functions under section 18 of the Act.", "The Commission, therefore, cannot be said to have committed any irregularity by allowing the request of DG for doing thorough and complete investigation as mandated under the Act for achieving its objectives.", "It is also noted that all OPs were given ample opportunity by the DG to present their case and without exception all of them have indeed taken that opportunity to make detailed submissions.", "Further, all OPs have not only submitted their detailed objections to the report of the DG but they have been heard at length by the Commission and they were further allowed to submit written arguments.", "All these facts demonstrate that principles of natural justice were followed by the Commission at every stage of inquiry and none of the OPs has claimed that DG has drawn findings against it without affording sufficient opportunity of hearing.", "20.3.8.", "The Commission is of the opinion that the objections taken by the Ops regarding jurisdiction of the Commission are not only contrary to the scheme of that but also do not capture the factual position in the correct perspective.", "Based on above discussion the contention raised by the OPs has no force and is liable to be rejected.", "This Court is of the opinion that the argument with respect to illegality of the CCIs procedure, in expanding the scope of inquiry under Section 26 (1) is insubstantial.", "At the stage the CCI decides to act on a complaint, and directs investigation, it does not always have all information or material in respect of the general pattern or method adopted by parties that vitiates the marketplace.", "It is only the information given to it.", "Premised on that information, the DG is tasked to look into the matter.", "During the course of that inquiry, based on that solitary complaint or information, facts leading to pervasive practises that amount to abuse of dominant position on the part of one or more individuals or entities may be possibly unearthed.", "At that stage, the investigation is quasi inquisitorial, to the extent that the report given is inconclusive of the rights of the parties however, to the extent that evidence is gathered, the material can be final.", "Neither is the DGs power limited by a remand or restricted to the matters that fall within the complaint and nothing else.", "The Excel Crop Care (supra) case has explained the DGs powers in broad terms: (if other facts also get revealed and are brought to light, revealing that the persons or enterprises had entered into an agreement that is prohibited by Section 3 which had appreciable adverse effect on the competition, the DG would be well within his powers to include those as well in his report If the investigation process is to be restricted in the manner projected by the Appellants, it would defeat the very purpose of the Act which is to prevent practices having appreciable adverse effect on the competition).", "The assumption of jurisdiction of the CCI, then is upon receipt of complaint or information, when the Commission is of the opinion that there exists a prima facie case as per Section 26 (1).", "The following order is administrative as per SAIL (supra) however, that order should disclose application of mind and should be reasoned as per SAIL (supra).", "Till that time, with the enunciation of law confined to SAIL (supra), it could arguably have been said that in the absence of a specific order as regards its role, by CCI, the DG could not have inquired into a particular partys conduct.", "However, with Excel Crop Care (supra) specifically dealing with the question of alleged subject matter expansion (in the absence of any specific order under Section 26 (1)) and the Supreme Court clarifying that the subject matter included not only the one alleged, but other allied and unenumerated ones, involving others (i.e. third parties), the issue is no longer untouched the petitioners are precluded from stating that a specific order authorizing transactions by it, was a necessary condition for the DGs inquiry into its conduct.", "This Court is further reinforced in its conclusion in this regard by the express terms of the statute: Section 26 (1) talks of action by CCI directing the DG to inquire into the matter.", "At this stage, there is no individual the scope of inquiry is the tendency of market behaviour, of the kind frowned upon in Sections 3 and 4.", "The stage at which CCI can call upon parties to react is when it receives a report from DG stating that there is no material calling for action, it has to issue notice to the concerned parties (i.e. the complainant) before it proceeds to close the case Sections 26 (5) and (6).", "On the other hand, if the DGs report recommends otherwise, it is obliged to proceed and investigate further Sections 26 (7) and (8).", "Again Section 27 talks of different parties enterprise or association of enterprises or person or association of persons- per Section 27 (a).", "Likewise, the steps outlined in Section 26 are amplified in the procedure mandated by Regulation 20 and 21, which requires participation by the parties, in the event a report after DGs inquiry, which is likely to result in an adverse order, under Sections 27-34 of the Act.", "Consequently, the argument that a specific order by CCI applying its mind into the role played by each of them was essential before the DG could have proceeded with the inquiry, is unmerited and, therefore, rejected.", "Re Point Number 6 Is Section 27 (b) of the Act and the provision for penalties unconstitutional or the orders impugned arbitrary, for the reason that no separate hearing is provided, and the statute provides no guideline for exercise of discretion.", "This issue is an important one during the hearing, counsel had highlighted that in the absence of a statutorily mandated notice and hearing procedure preceding penalty, Section 27 (b) is arbitrary and unreasonable.", "Section 27 reads as follows: Orders by Commission after inquiry into agreements or abuse of dominant position Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely: (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be (b) impose such penalty, as it may deem fit which shall be not more than ten percent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten percent of its turnover for each year of the continuance of such agreement, whichever is higher.", "Omitted by Competition (Amendment) Act, 2007 (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any Omitted by Competition (Amendment) Act, 2007 (g) pass such other order or issue such directions as it may deem fit.", "Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.", "It is evident- from the scheme of the Act, that after carrying out the investigation, the DG files the report before the CCI which is shared with the opposite parties.", "In the present case, the DG made his report.", "This report formed the basis of further proceedings before the CCI which held proceedings and hearings on various dates.", "The final order in this case was made after a series of final hearing, on 25.08.2014.", "The final order dealt with 14 opposite parties, and made a detailed analysis with respect to prevalent anti-competitive prices and also dealt with the arguments of the equipment manufacturers, such as the petitioners.", "There is a discussion with respect to the justification for imposition of penalty and the quantum.", "Having regard to these facts, it is now essential to consider whether the absence of a mandatory provision, which precedes the imposition of penalty under Section 27(b) renders it unconstitutional and arbitrary.", "The common refrain of all petitioners on this aspect is that sans a mandated pre-penalty notice and hearing, an adverse action by way of monetary penalty cannot be imposed and that the provision which enables such penalty without hearing is void.", "In this respect, the learned counsel has relied upon the judgments reported as S.L. Kapoor v. Jagmohan and Ors.", " : 1980 (4) SCC 379 Swadeshi Cotton Mills v. Union of India  : 1981 (1) SCC 664 and Canara Bank vs V.K. Awasthy  : 2005 (6) SCC 321.", "The other allied aspect with respect to Section 27(b) is that it provides no guidance or guidelines as to how penalty is to be imposed and what would be the quantum of penalty.", "The further complaint is that in the present case, the CCI has taken a uniform and arbitrary rate of 2 without differentiating between individual facts of the other case and moreover departed from its own prescribed foundation of the relevant market.", "The CCI, had, on the other hand, distinguished the rulings relied upon by the petitioners and relied upon certain other decisions to say that providing a statutorily mandated prior hearing as condition precedent for imposition of penalty is inessential.", "In this regard, Sh.", "Sanjay Jain relied upon F.N. Roy (supra) Organic Chemicals (supra) and Prestolite India Limited  : 1994 (Suppl) (3) SCC CCIs previous decision in Indian Foundation of Transport Research and Training Case Number 61/2012 dated 16.02.2015 M section Rohit Medical Store v. Macleods Pharmaceutical Limited Case Number 78/2012 dated 29.01.2015 M section Swastik Stevedoves Pvt.", "Limited v. M section Dumper Owners Association Case Number 42/2012 dated 21.01.2015.", "This Court notices that the Act envisions that the Statement of Objects and Reasons of the Act underlines that Parliament intended CCI to be a regulatory body.", "Its uniqueness perhaps is in the manner it interprets various facets and dimensions of anti-competitive behaviour, outlined in Sections 3 and 4 of the Act, on a case-by-case basis.", "This case-by-case enshrining of principles is not unknown.", "As noted in a previous part of this judgment in Chenery Corporation (supra), the US Supreme Court held that formulation of regulations through an adjudicatory mode is not anathema to law.", "PTC India (supra) - a Constitution Bench judgment of the Supreme Court too underlined that law can come into existence through litigation as well.", "If these principles are kept in mind, the CCIs determinations are not only declaratory of what constitutes anti-competitive or impermissible dominant behaviour in the marketplace, but also ensure that such behaviour is appropriately sanctioned.", "In this regard, the court notices that Section 46 of the Act embodies a very salient principle, i.e. that at the initial stage, if an entity or an entity trader, manufacturer or dealer etc.", "makes full disclosure, it can be imposed with lesser penalty in the ultimate analysis of a finding with respect to objectionable behaviour either under Sections 3 or 4.", "Section 46 of the Act reads as follows: Power to impose lesser penalty.", "- The Commission may, if it is satisfied that any producer, seller, distributor, trader or service provider included in any cartel, which is alleged to have violated section 3, has made a full and true disclosure in respect of the alleged violations and such disclosure is vital, impose upon such producer, seller, distributor, trader or service provider a lesser penalty as it may deem fit, than leviable under this Act or the rules or the regulations: Provided that lesser penalty shall not be imposed by the Commission in cases where proceedings for the violation of any of the provisions of this Act or the rules or the regulations have been instituted or any investigation has been directed to be made under section 26 before making of such disclosure: Provided further that lesser penalty shall be imposed by the Commission only in respect of a producer, seller, distributor, trader or service provider included in the cartel, who first made the full, true and vital disclosures under this section: Provided also that the Commission may, if it is satisfied that such producer, seller, distributor, trader or service provider included in the cartel had in the course of proceedings, (a) not complied with the condition on which the lesser penalty was imposed by the Commission or (b) had given false evidence or (c) the disclosure made is not vital, and thereupon such producer, seller, distributor, trader or service provider may be tried for the offence with respect to which the lesser penalty was imposed and shall also be liable to the imposition of penalty to which such person have been liable, had lesser penalty not been imposed.", "It is quite evident from a bare reading of the provision that if a full and necessary disclosure is made at the outset of the investigation and before the report is submitted to the CCI, a lesser penalty under Section 46 can be issued.", "Chapter VI of the Act deals with various kinds of penalties, such as contravention of the CCIs order (Section 42) compensation in the case of contravention of CCIs order (Section 42A) penalty for failure to comply with Commission or DG (Section 43) not furnishing information (Section 43A) false statement or omission to furnish material information (Section 45) offences in relation to furnishing of information etc.", "Each one - barring Section 46, this Court notices, deals with the consequence of orders made by the Commission, either substantive or during the course of the proceeding.", "In one sense, these are ensuring the enforcement of the CCIs authority to conduct its proceedings.", "The only provision, i.e. Section 46, which deals with lesser penalty occurs in this Chapter.", "Now this aspect assumes significance under Regulation 48 as amended, the imposition of common penalty under Chapter 6 is to be preceded by a Show Cause Notice and reasonable opportunity of hearing.", "The petitioners had strongly argued that the imposition of these penalties - which are in one sense lower in the scale, require a Show Cause Notice, whereas the determination of penalty under Section 27(b) is not necessarily preceded by separate Show Cause Notice.", "A recent decision-albeit in the context of a case that concerned imposition of a penalty for not complying with the CCIs orders (under Section 43A) underscored the point that such penalties are not conditioned upon existence of a mental condition or mens rea they are civil in nature.", "Therefore, in Competition Commission of India v. Thomas Cook (India) Limited and Ors.", " : 2018 SCC 549 it was held that: There was no requirement of mens rea Under Section 43A or intentional breach as an essential element for levy of penalty.", "Section 43A of the Act does not use the expression the failure has to be willful or mala fide for the purpose of imposition of penalty.", "The breach of the provision is punishable and considering the nature of the breach, it is open to impose the penalty.", "The Supreme Court quoted with approval its previous decision in Hindustan Steel Limited v. State of Orissa  : AIR 1970 SC 253, that held that breach of a civil obligation which attracts penalty under the provisions of an Act would immediately attract the levy of penalty irrespective of the fact whether the contravention was made by the defaulter with any guilty intention or not.", "In the present case, what is important is that the petitioners complaint is not that they were not given any opportunity rather it is that they ought to have been given a separate opportunity of hearing.", "Ordinarily, the court would have concurred with such an argument.", "However, a deeper analysis of the nature of the proceeding before the CCI would reveal that the procedure it adopts- and is required to adopt gives sufficient safeguard to parties likely to be affected adversely, both as regards findings and the sanctions.", "The first step, of course, is to decide whether to issue notice.", "Excel Crop Care (supra) and the later decisions have now held conclusively that this step is administrative and does not contemplate any prior notice or hearing to the opposite parties.", "The next stage is investigation by the DG.", "At this stage, the parties - whenever needed - receive notice and opportunity if it is denied, they can seek directions to the DG from the CCI.", "This stage incudes evidence gathering and wherever necessary, cross-examination on behalf of one or more individuals, before the DG- and later, before the CCI, if the complaint is that cross-examination is not granted.", "The next stage is the report of the DG, which is shared by the parties, who then make their comments, and are granted full opportunity of hearing.", "This step is very significant, because when the parties do address the CCI and submit their contentions, they have foreknowledge of all the materials, including adverse materials and comments made in the DGs report.", "This stage is a full blown hearing, when the parties know and have a fair awareness of the range of options available with the CCI in terms of both findings and the sanctions (such as orders enjoining some activity, or requiring positive steps to be taken).", "This forewarning, as it were, and the statutory cap (of not more than 10 percent) is a broad guideline within which both CCI and the parties before it, operate.", "Fiscal enactments indicate different approaches.", "The Customs Act, 1962 (i.e. by Sections 28 and 124), require separate show cause notices.", "However, it is not necessary that the show cause notices have to be issued after adjudication of duty liability a composite show cause notice for both is usually issued.", "Under the Central Excise Act, 1944, a composite show cause notice for duty and penalty is issued (by Sections 11A and other related provisions).", "In other enactments, such as for instance, Section 13 of the Foreign Exchange Management Act, 1999, any contravention of the Act, rules, regulations or directions (under the Act) attract serious penal consequences.", "The adjudicating officer can impose penalties equal to three times the amount involved in the contravention yet the parent statute is silent about the procedure and the nature of hearing.", "Rule 4 (1) of the Rules requires the Adjudicating Authority to issue a notice to any person believed to have committed any contravention of Section 13 of FEMA, Rule 4 (2) requires the show-cause notice to indicate the nature of contravention alleged to have been committed.", "Rule 4 (3) provides that if the Adjudicating Authority is of the opinion that an enquiry should be held, it shall issue a notice, fixing a date for the appearance of that person either personally or through his legal practitioner.", "The pattern or structure of the statute and its object, in every such case, defines the nature of hearing provided for.", "In some cases, the opportunity of hearing is preceded by a composite one in other cases, however, of necessity, a show cause notice is to be issued separately.", "In the Income Tax Act, 1961, for instance, every person or entity who earns taxable income has a duty to file returns those returns then can be merely framed without adjudication (under Section 143(1)) or assessed, after due notice of scrutiny, under Section 143 (2) culminating in an assessment order.", "Necessarily, therefore, before the assessment order is made, the Assessing officer (i.e. the primary adjudicating authority) has no occasion to consider and apply his mind, if the assessee has under-reported income or claimed an obviously unjustified deduction or tax benefit.", "It is during the course of assessment that such behaviour, in the form of a claim, is noticed the assessment order, which is adverse on that point, then becomes the occasion for imposition of penalty.", "Therefore, at that stage only would the adjudicating authority have the cause to issue show cause notice.", "If these considerations are kept in mind, the fact that certain types of penalties (which are pre- determined quantum for specific violations of the Act) elicit show cause notice as prelude to penalty on the one hand, and absence of any compulsion to issue a separate show cause notice preceding a penalty under Section 27 (b) (although a show cause notice and full hearing is provided with opportunity to submit against the report of DG) does not in the opinion of this Court, render that provision arbitrary.", "The court is cognizant of the fact that there are several adjudications- quasi judicial and by judicial tribunals, which envision a rolled up hearing which visualizes only one show cause notice- that can culminate in both an adverse finding and a consequential penalty.", "The most obvious example of this is Union of India v. Tulsiram Patel  : 1985 Supp (2) SCR 131.", "The court then had upheld the Unions contention that the Constitution, by Article 311(2) (after its amendment by the forty second amendment) no longer required a second show cause notice as a prerequisite for imposition of penalty against a delinquent public servant.", "The court held as follows: In the case of Suresh Koshy George v. the University of Kerala Ors.", "(at page 326-7) are pertinent: There seems to be an erroneous impression in certain quarters evidently influenced by the provisions in Article 311 of the Constitution particularly as they stood before the amendment of that article that every disciplinary proceeding must consist of two inquiries, one before issuing the show cause notice to be followed by another inquiry thereafter.", "Such is not the requirement of the principles of natural justice.", "Law may or may not prescribe such a course.", "In Associated Cement Companies Limited v. T.C. Shrivastava Ors.", " : 1984 3 S.C.R. 361, 369 this Court held that neither under the ordinary law of the land nor under industrial law a second opportunity to show cause against the proposed punishment is necessary Now, coming to the decisions cited by the petitioners.", "In S.L. Kapoor (supra), the issue was whether the authority was obliged to give opportunity of hearing by issuing a show cause notice, before superseding the municipal committee.", "The Supreme Court held that the silence of the statute did not preclude the obligation to follow a fair procedure of granting opportunity to the party likely to be affected, by the adverse action in doing so, it followed its previous rulings in Mohinder Singh Gill v. Chief Election Commissioner  : 1978 (2) SCR 272 that (t)he silence of a statute has no exclusionary effect except where it flows from necessary implication.", "and State of Orissa v. Dr. Binapani Dei  : AIR 1967 SC 1269 that an administrative order which involves civil consequences must be made consistently with the rules of natural justice.", "Furthermore, the court also is aware that these decisions crystallized into a rule best spelt out by the seminal decision in Swadeshi Cotton Mills (supra), where the court enunciated the guiding principle, (since considered an aphorism, and axiomatic in public law) as follows: If the statute conferring the power is silent with regard to the giving of pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature and no full review or appeal on merits against that decision is provided courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless viewed pragmatically it would paralyse the administrative process or frustrate the need for utmost promptitude.", "This Court is of the opinion that the Supreme Court felt compelled to say what it did, in each of those decisions, and the long line of successive authorities, because the action taken by the executive government or the public agency was not preceded by fair procedure, that encapsulated any opportunity of hearing.", "Here, however, the CCI followed all the steps indicated in the statute the DG held an inquiry, during which the petitioners were permitted participation the consequent report and documents were shared with them, or they were given access to the record.", "After these, each petitioner was given full hearing which included submissions on potential orders under Section 27.", "It is undeniable that the petitioners also furnished written submissions.", "The DGs report contains an elaborate analysis of the materials found and inquired into the CCIs order analyses the report, in the light of the petitioners submissions.", "The penalty order is reasoned.", "Having regard to these circumstances, it cannot be said that the CCI was compelled by the statute to adopt an unfair procedure (i.e. the absence of a second specific hearing before imposition of penalty) exposing Section 27 to the vice of arbitrariness and unconstitutionality.", "Having concluded that Section 27 is not arbitrary or unreasonable, the court now proceeds to deal with the second submission of the learned counsel, which is that the provision lacks guidelines with respect to the scale of penalty that is to be imposed in any given case and that this very omission renders it vague and clothes CCI with uncanalized power.", "At the outset, this Court would quote and extract the relevant discussion in the concurring judgment of N.V. Ramana, J in Excel Crop.", "Care (supra), to the following effect: It is well settled that the Competition Act, 2002 is a regulatory legislation enacted to maintain free market so that the Adam Smiths concept of invincible hands operate unhindered in the background.", "5 Further it is clear from the Statement of objects and reason that this law was foreseen as a tool against concentration of unjust monopolistic powers at the hands of private individuals which might be detrimental for freedom of trade.", "Competition law in India aims to achieve highest sustainable levels of economic growth, entrepreneurs hip, employment, higher standards of living for citizens, protect economic rights for just, equitable, inclusive and sustainable economic and social development, promote economic democracy, and support good governance by restricting rent seeking practices.", "Therefore an interpretation should be provided which is in consonance with the aforesaid objectives.", "At this point, I would like to emphasize on the usage of the phrase as it may deem fit as occurring Under Section 27 of the Act.", "At the outset this phrase is indicative of the discretionary power provided for the fining authority under the Act.", "As the law abhors absolute power and arbitrary discretion, this discretion provided Under Section 27 needs to be regulated and guided so that there is uniformity and stability with respect to imposition of penalty.", "This discretion should be governed by Rule of law and not by arbitrary, vague or fanciful considerations.", "Here we may deal with two judgments which may be helpful in deciding the concerned issue.", "In Dilip N. Shroff v. Joint Commissioner of Income Tax  : (2007) 6 SCC 329, this Court while dealing with the imposition of the penalty has observed that- The legal history of Section 271(1) (c) of the Act traced from the 1922 Act prima facie shows that the Explanations were applicable to both the parts.", "However, each case must be considered on its own facts.", "The role of the Explanation having regard to the principle of statutory interpretation must be borne in mind before interpreting the aforementioned provisions.", "Clause (c) of Sub-section (1) of Section 271 categorically states that the penalty would be leviable if the Assessee conceals the particulars of his income or furnishes inaccurate particulars thereof.", "By reason of such concealment or furnishing of inaccurate particulars alone, the Assessee does not ipso facto become liable for penalty.", "Imposition of penalty is not automatic.", "Levy of penalty is not only discretionary in nature but such discretion is required to be exercised on the part of the Assessing Officer keeping the relevant factors in mind.", "Some of those factors apart from being inherent in the nature of penalty proceedings as has been noticed in some of the decisions of this Court, inheres on the face of the statutory provisions.", "Penalty proceedings are not to be initiated, as has been noticed by the Wanchoo Committee, only to harass the Assessee.", "The approach of the Assessing Officer in this behalf must be fair and objective.", "(Emphasis supplied) Moreover in the case of Hindustan Steel Limited v. State of Orissa  : AIR 1970 SC 253 this Court made following observations- An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi criminal proceedings and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation.", "Penalty will not also be imposed merely because it is lawful to do so.", "Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the Authority to be exercised judicially and on a consideration of all the relevant circumstances.", "Even if a minimum penalty is prescribed, the Authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute.", "(Emphasis supplied) It should be noted that any penal law imposing punishment is made for general good of the society.", "As apart of equitable consideration, we should strive to only punish those who deserve it and to the extent of their guilt.", "Further it is well established by this Court that the principle of proportionality requires the fine imposed must not exceed what is appropriate and necessary for attaining the object pursued.", "In Coimbatore District Central Co-operative Bank v. Coimbatore District Central Co-operative Bank Employees Assn.", " : (2007) 4 SCC 699 this Court has explained the concept of proportionality in the following manner- proportionality is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision.", "The very essence of the decision-making consists in the attribution of relative importance to the factors and considerations in the case.", "The doctrine of proportionality thus steps in focus true nature of exercise-the elaboration of a Rule of permissible priorities.", "De Smith states that proportionality involves balancing test and necessity test.", "Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity teat) requires infringement of human rights to the least restrictive alternative.", "In consonance of established jurisprudence, the principle of proportionality needs to be imbibed into any penalty imposed Under Section 27 of the Act.", "Otherwise excessively high fines may over-deter, by discouraging potential investors, which is not the intention of the Act.", "Therefore the fine Under Section 27(b) of the Act should be determined on the basis of the relevant turnover.", "In light of the above discussion a two step calculation has to be followed while imposing the penalty Under Section 27 of the Act.", "STEP 1: DETERMINATION of RELEVANT TURNOVER.", "At this point of time it needs to be clarified that relevant turnover is the entitys turnover pertaining to products and services that have been affected by such contravention.", "The aforesaid definition is not exhaustive.", "The authority should have regard to the entitys audited financial statements.", "Where audited financial statements are not available, the Commission may consider any other reliable records reflecting the entitys relevant turnover or estimate the relevant turnover based on available information.", "However the Tribunal is free to consider facts and circumstances of a particular case to calculate relevant turnover as and when it is seized with such matter.", "STEP 2: DETERMINATION of APPROPRIATE PERCENTAGE of PENALTY BASED ON AGGRAVATING AND MITIGATING CIRCUMSTANCES.", "After such initial determination of relevant turnover, commission may consider appropriate percentage, as the case may be, by taking into consideration nature, gravity, extent of the contravention, role played by the infringer (ringleader or Follower), the duration of participation, the intensity of participation, loss or damage suffered as a result of such contravention, market circumstances in which the contravention took place, nature of the product, market share of the entity, barriers to entry in the market, nature of involvement of the company, bona fides of the company, profit derived from the contravention etc.", "These factors are only illustrative for the tribunal to take into consideration while imposing appropriate percentage of penalty.", "At the cost of repetition it should be noted that starting point of determination of appropriate penalty should be to determine relevant turnover and thereafter the tribunal should calculate appropriate percentage of penalty based on facts and circumstances of the case taking into consideration various factors while determining the quantum.", "But such penalty should not be more than the overall cap of 10 of the entitys relevant turnover.", "Such interpretation of Section 27 (b) of the Act, wherein the discretion of the commission is guided by principles established by law would sub-serve the intention of the enactment.", "In the opinion of this Court, the enunciation of the above principles as the guiding norm which CCI has to follow, in each case, when it determines deviant behaviour that invite adverse findings and appropriate sanctions, are a sufficient answer to the charge of unconstitutionality levelled against Section 27.", "It is a recognized and sound principle of constitutional interpretation that courts will, while considering the vires or validity of a law, lean in favour of its constitutionality, if it is so capable of construction, rather than to hold it void.", "In Namit Sharma v. Union of India  : (2013) 1 SCC 745therefore, it was held that: (the) most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality.", "The courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional.", "Declaring the law unconstitutional is one of the last resorts taken by the courts.", "The courts would preferably put into service the principle ofreading down or reading into the provision to make it effective, workable and ensure the attainment of the object of the Act.", "These are the principles which clearly emerge from the consistent view taken by this Court in its various pronouncements.", "Long ago in Kedar Nath Singh v. State of Bihar  : AIR 1962 SC 955, the Supreme Court held that: It is well settled that if certain provisions of law, construed in one way, would make them consistent with the Constitution and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.", "Again, later in Rt.", "Rev. Msgr.", "Mark Netto v. State of Kerala  : (1979) 1 SCC 23 held that the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving strained construction or narrowing down its scope.", "In Bharat Petroleum Corporation Limited v. Maddula Ratnavalli and Ors.", "in  : 2007 (6) SCC 81 it was held as follows: Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the Constitution.", "If the provisions of a law or the rule is construed in such a way as would make it consistent with the Constitution and Another interpretation would render the provision or the rule unconstitutional, the Court would lean in favour of the former construction.", "Following the salutary principle of constitutional interpretation, this Court is of the opinion that the soundness of discretion and the method adopted by the CCI having regard to the objectives of the Act and regulations framed under it should be the paramount guiding factors, apart from the principle of proportionality which Excel Crop Care (supra) talked about.", "Given that the Supreme Court has indicated the path and course that guides CCI, and the relevant considerations, this Court is of the opinion that the objection to the unconstitutionality of Section 27 (b) cannot survive.", "The last aspect on the issue of Section 27 is that the common refrain of learned counsel (for the petitioners) was that the CCI misapplied the relevant market principle which should have been considered.", "Tata Motors, particularly complained that the CCIs impugned order was inconsistent, and, therefore, arbitrary, inasmuch as it faltered in the application of that principle- in its (i.e. Tata Motors) case, despite outlining the relevant market as the domestic market, the turnover (based on which penalty was imposed) was expanded to include the global turnover.", "The objection of Mercedes Benz (articulated by its senior counsel Mr. Neeraj Kishan Kaul) was that the manufacturer sold an entire system that left no room for a separate spare parts market and, consequently, the finding of anti- competitive behaviour was unjustified and illegal.", "A plain reading of the order impugned would show that the CCI has considered Benzs submissions, and given several reasons why it proceeded to record adverse findings and impose penalties.", "In the view that, this Court is ultimately taking, which is to address itself only with the constitutionality and vires of the statute, it is held that a further discussion on the merits of the order- vis-a-vis- each aggrieved petitioner would not be essential.", "The court prefers to leave these submissions open for decision on merits, by the Appellate Tribunal.", "In S.N. Mukherjee v. Union of India  : (1990) 4 SCC 594, adverting to the practice adopted and insistence placed by the courts in United States, which is to emphasize the importance of recording of reasons for decisions by the administrative authorities and tribunals, it said administrative process will best be vindicated by clarity in its exercise.", "The exercise of power of review- appellate or public law review, is to be in consonance with settled principles, which means that those affected are informed of considerations that impelled the action.", "The Supreme Court stated as follows: the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.", "xxx xxxxxxxxx At the cost of repetition, we may notice, that this Court has consistently taken the view that recording of reasons is an essential feature of dispensation of justice.", "A litigant who approaches the Court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer.", "Reasons are the soul of orders.", "Non-recording of reasons could lead to dual infirmities firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice.", "These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements.", "A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment The principle of natural justice has twin ingredients firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind.", "Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself.", "Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with higher degree of satisfaction.", "The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality.", "The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders Several subsequent authorities have reiterated the necessity of furnishing reasons in support of conclusions.", "Therefore, this Court concludes that to decide whether to, and to what extent impose penalty are in the domain of the CCIs discretion, which it is bound to exercise, keeping in mind the factors (deemed not exhaustive) in Excel Crop Care (supra) and also general objects and purposes of the Act.", "The challenge to Section 27(b) and Regulation 48, therefore, fails.", "It goes without saying that the exercise of such power can be interfered by COMPAT on appeal, on its merits.", "All these are inbuilt safeguards which if transgressed by the CCI in any given case, are capable of correction within the framework of the Act.", "Conclusions and Directions This Court notes in conclusion, that the Competition Act is an attempt by Parliament to improve - in the light of experience gained from a modern liberalized economy and corresponding state retreat in key areas of economic activities, the prevalent laws governing concentration of market power.", "The MRTP Act, 1969 was its first attempt (in a closed economy) to control monopolies and restrictive practices.", "In the light of experience gained and the felt necessities of the changed times - and having seen the experience gained by other nations, in the course of their legislation with competition, the Act was introduced, with due deliberation.", "Recent decisions have emphasized the importance of the CCI in imbuing the market place with the culture of competition, and even underlined that sectoral regulators decisions or regulations (within the frame works of their parent legislations) cannot foreclose enquiry and consequential action by the CCI in its overarching concerns with respect to market domination and anti-competitive behaviour of erring entities.", "In Competition Commission of India v. Bharat Sanchar Nigam Limited 2018 SCC OnLine SC 2678 this was emphasized and underlined in the following manner: Obviously, all the aforesaid functions not only come within the domain of the CCI, TRAI is not at all equipped to deal with the same.", "Even if TRAI also returns a finding that a particular activity was anticompetitive, its powers would be limited to the action that can be taken under the TRAI Act alone.", "It is only the CCI which is empowered to deal with the same anti-competitive act from the lens of the Competition Act.", "If such activities offend the provisions of the Competition Act as well, the consequences under that Act would also follow.", "Therefore, contention of the IDOs that the jurisdiction of the CCI stands totally ousted cannot be accepted.", "Insofar as the nuanced exercise from the stand point of Competition Act is concerned, the CCI is the experienced body in conducting competition analysis.", "Further, the CCI is more likely to opt for structural remedies which would lead the sector to evolve a point where sufficient new entry is induced thereby promoting genuine competition.", "This specific and important role assigned to the CCI cannot be completely wished away and the comity between the sectoral regulator (i.e TRAI) and the market regulator (i.e the CCI) is to be maintained.", "The conclusion of the aforesaid discussion is to give primacy to the respective objections of the two regulators under the two Acts.", "At the same time, since the matter pertains to the telecom sector which is specifically regulated by the TRAI Act, balance is maintained by permitting TRAI in the first instance to deal with and decide the jurisdictional aspects which can be more competently handled by it.", "Once that exercise is done and there are findings returned by the TRAI which lead to the prima facie conclusion that the IDOs have indulged in anti-competitive practices, the CCI can be activated to investigate the matter going by the criteria laid down in the relevant provisions of the Competition Act and take it to its logical conclusion.", "This balanced approach in construing the two Acts would take care of Section 60 of the Competition Act as well.", "We, thus, do not agree with the appellants that CCI could have dealt with this matter at this stage itself without availing the inquiry by TRAI.", "We also do not agree with the respondents that insofar as the telecom sector is concerned, jurisdiction of the CCI under the Competition Act is totally ousted.", "In nutshell, that leads to the conclusion that the view taken by the High Court is perfectly justified.", "Even the argument of the learned ASG is that the exercise of jurisdiction by the CCI to investigate an alleged cartel does not impinge upon TRAIs jurisdiction to regulate the industry in any way.", "It was submitted that the promotion of competition and prevention of competitive behaviour may not be high on the change of sectoral regulator which makes it prone to regulatory capture and, therefore, the CCI is competent to exercise its jurisdiction from the stand point of the Competition Act.", "However, having taken note of the skillful exercise which the TRAI is supposed to carry out, such a comment vis-a-vis TRAI may not be appropriate.", "No doubt, as commented by the Planning Commission in its report of February, 2007, a sectoral regulator, may not have an overall view of the economy as a whole, which the CCI is able to fathom.", "Fherefore, our analysis does not bar the jurisdiction of CCI altogether but only pushes it to a later stage, after the FRAI has undertaken necessary exercise in the first place, which it is more suitable to carry out.", "Parliamentary effort to innovate and legislate new market regulations, gained in the light of previous experience and teaching gained from the experience in other countries, led it to enact the Competition Act.", "The raison detre of such laws is its objective of promoting competition, - and eliminating disparities that would ensue in the event of market dominance by a few, resulting in concentration of resources of the nation (which Article 39 of the Constitution of India, enjoins the State to avoid).", "Speaking of the Sherman Anti-Trust Act, in Essential Communications Sys, Inc. v. AmTel Tel Co  : 610 F 2d 1114, 1117 (3d Cir 1979) the third Federal Circuit Appellate Court held: The Sherman Act, embodying as it does a preference for competition, has been since its enactment almost an economic constitution for our complex national economy.", "A fair approach in the accommodation between the seemingly disparate goals of regulation and competition should be to assume that competition, and thus antitrust law, does operate unless clearly displaced.", "The need to experiment and bring in new legislation to face the challenges of the changing times and the legislature duty to do so- as well as the correct approach that courts should adopt was outlined as follows in New State Ice Company v. Fiebman,  : 285 U.S. 262 (1932), where Justice Brandeis stated as follows: There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs.", "I cannot believe that the framers of the Fourteenth Amendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity which have attended progress in the useful articles To stay experimentation in things social and economic is a grave responsibility.", "Denial of the right to experiment may be fraught with serious consequences to the Nation.", "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.", "This Court has the power to prevent an experiment.", "We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable.", "We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure.", "But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles.", "If we would guide by the light of reason, we must let our minds be bold.", "Resonance can be found in almost identical views echoed by the Supreme court in India, in R.K. Garg Union of India,  : (1981) 4 SCC 675 where it was held that: The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaption of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience.", "Every legislation, particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses.", "There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.", "The courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Roig Refining Company  : 94 L Ed 381 : 338 US 604 (1950) be converted into tribunals for relief from such crudities and inequities.", "There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses.", "Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity.", "The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions.", "If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation.", "That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues.", "2 1 3 .", "Similar views were expressed in Director General of Foreign Trade v. Kanak Exports,  : (2016) 2 SCC 226, and Swiss Ribbons (supra).", "In the former (Kanak Exports) the court stated that: in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call trial and error method and therefore, its validity cannot be tested on any rigid prior considerations or on the application of any straitjacket formula.", "In Balco Employees Union v. Union of India Balco Employees Union v. Union of India,  : (2002) 2 SCC 333, the Supreme Court held that laws, including executive action relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc.", "that the legislature should be allowed some play in the joints because it has to deal with complex problems which do not admit of solution through any doctrine or straitjacket formula and this is particularly true in case of legislation dealing with economic matters, where having regard to the nature of the problems greater latitude require to be allowed to the legislature In view of the findings of this Court, in the previous parts of this judgment, the following conclusions are recorded and directions issued: Section 22(3) of the Competition Act (except the proviso thereto) is declared unconstitutional and void Section 53E (prior to the amendment in 2017) is declared unconstitutional and void: however, this is subject to the final decision of the Supreme Court in the writ petitions challenging the Finance Act, 2017 All other provisions of the Competition Act are held to be valid subject to the following orders: The CCI shall frame guidelines with respect to the directions contained in para 179 of this judgment, i.e. to ensure that one who hears decides is embodied in letter and spirit in all cases where final hearings are undertaken and concluded.", "In other words, once final hearings in any complaint or batch of complaints begin, the membership should not vary- it should preferably be heard by a substantial number of 7 or at least, 5 members.", "The Central Government shall take expeditious steps to fill all existing vacancies in the CCI, within 6 months The CCI shall ensure that at all times, during the final hearing, the judicial member (in line with the declaration of law in Utility Users Welfare Association, (supra) is present and participates in the hearing The parties should in all cases, at the final hearing stage, address arguments, taking into consideration the factors indicated in Excel Crop Care (supra) and any other relevant factors they may also indicate in their written submissions, or separate note, of submissions, to the CCI, why penalty should not be awarded, and if awarded, what should be the mitigating factors and the quantum- without prejudice to their other submissions.", "Since the petitioners had not availed the remedy of appeal (and had approached this Court) it is open to such of them who wish to do so, to approach the Appellate Tribunal, within 6 weeks in such eventuality, the Appellate Tribunal shall entertain their appeals and decide them on their merits in accordance with law, unhindered by the question of limitation.", "The writ petitions are partly allowed in the above terms.", "There shall be no order on costs."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", 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+{"id": "HC_Pankaj_Rai_vs_Union_of_India_and_Ors_14022018__HYHAP201803041815593823COM196341", "text": ["Akula Venkata Sesha Sai, J. Since these two writ petitions are similar and arise out of a common order passed by the Competition Commission of India and as the contentions are also the same, this Court deems it appropriate and apposite to dispose of these two writ petitions by way of this common order.", "Challenge in these two writ petitions is to the order dated 28.11.2017 passed by the Competition Commission of India second respondent herein in Case Number 47 and 48 of 2017 under sub-Section (2) of Section 26 of the Competition Act, 2002 (hereinafter called the Act.) Petitioners herein, alleging contravention of the provisions of Sections 3 and 4 of the Act on the part of the National Institute of Indian Technology Limited third respondent herein, approached the second respondent-Competition Commission of India, by way of filing the above said cases under Section 19 of the Act.", "When the matters are taken up, a preliminary objection as to the maintainability of the writ petitions is taken by Sri C.V. Mohan Reddy, learned Senior Counsel, appearing for Sri M. Srikanth, learned counsel for the third respondent and Smt.", "Sundari, appearing for the respondent Number 2, by contending that in view of effective and efficacious alternative remedy available to the petitioners under Sections 53-A and 53-B of the Act, the present writ petitions are liable to be dismissed.", "Emphatically, resisting the said submissions, it is maintained by Sri Major Pankaj Roy, petitioner in W.P. Number 42223 of 2017, who is appearing as party-in-person and Sri P. Ravi Kiran, learned counsel for the petitioner in W.P. Number 43744 of 2017 that despite the availability of the said alternative remedy, the present writ petitions are maintainable before this Court under Article 226 of the Constitution of India as the impugned orders are violative of the principles of natural justice and completely bereft of fair play and they directly effect the fundamental rights of the petitioners herein and that the alternative remedy is not a bar for this Court to entertain the writ petitions under Article 226 of the Constitution of India.", "Elaborating the said contention, it is submitted that the learned counsel who appeared for the opposite party is a Managing Associate of Competition Law at TT A Advocates and Solicitors and have their office at 1114-1115, DLF Tower B, Jasola, New Delhi - 110 025 that TT A works in collaboration with Mr. Vinod Dhall, who worked as First Chairman of the second respondent Competition Commission of India till 2008 that he set up the framework of policies, draft regulations, analytical models and organized initial training that Mr. Dhall by virtue of his background has an insider knowledge of respondent Number 2 that Mr. Dhall had represented Fx Enterprise Solutions India Private Limited, one of the winning parties in Hyundai case that the third respondent submitted its response through Mr. Dhall before the second respondent on 10.10.2017.", "It is further submitted that after hearing the cases on 12.10.2017, but before the second respondent Commission passed the impugned orders on 28.11.2017, petitioner received a letter from the Office of M section K.K. Sharma, Law Offices, who was the first Director General of the second respondent Commission and built a successful practice, representing clients before the second respondent and that the petitioner got astonished at first as to how Mr. K.K. Sharma obtained his address, but quickly realized that he would have got the petitioners address from the second respondent because of his influence and that the said letter was received by the petitioner in W.P. Number 42223 of 2017 on 25.10.12017 that by way of exhibit P.16 Emails the said aspects were brought to the notice of the second respondent, but no reply was received that response submitted by the third respondent through Mr. Dhall had vital information and that certain information contained therein was not furnished to the petitioners and that the said information would have established that the third respondent is a dominant player in view of Section 19(4)(b) of the Act that the second respondent should have specified the date till when the information would be kept confidential which was not done that Mr. Dhall and Sharma appeared before the second respondent and Mr. Dhall won case Numbers 19/2016 and 20/2016 and Sharma represented St. Anthonys Cars Private Limited in a matter before the second respondent and it was decided in favour of Mr. Sharma that the impugned order is contrary to the order in Case Numbers 36 and 82 of 2014 passed in identical circumstances and that the winning parties were represented by Mr. Sharma and Mr. Dhall in Case Numbers 36 and 82 of 2014 dated 14.06.2014.", "To bolster their submissions and contentions, petitioner in W.P. Number 42223 of 2017, who is appearing as a party-in-person and Sri P. Ravi Kiran, learned counsel for the petitioner in W.P. Number 43744 of 2017 place reliance on the judgments of the Honble Apex Court in HARBANSLAR SAHNIA AND ANOTHER v. INDIAN OIL CORPORATION LIMITED AND ORS.", " : AIR 2003 SC 2120, SURYA DEVI RAI v. RAM CHANDER RAI AND OTHERS  : (2003) 6 SCC 675, RADHEY SHYAM AND ANOTHER v. CHHABI NATH AND OTHERS  : (2009) 5 SCC 616, M section GUJAAT POTTLING CO.", "v. THE COCA COLA CO.", "( : AIR 1995 2372) and N.L. BAJPAI v. UNIOIN OF INDIA  : (2012) 4 SCC 653 and the judgment of the Delhi High Court in V.K. AGGARWAL v. UNION OF INDIA AND ANOTHER 1 and the judgment of the Bombay High Court in CELLUR OPERATOR ASSOCIATION v. COMPETITION COMMISSION OF INDIA 2 and the judgment of this Court in MEGACITY BUILDERS v. P. STATE CONSUMER DISPUTE.", " : AIR 2004 AP 49.", "Sri C.V. Mohan Reddy, learned Senior Counsel, appearing for the counsel on record for the third respondent, contends that the present writ petitions, filed under Article 226 of the Constitution of India are not maintainable in view of the availability of effective and efficacious alternative remedy of appeal under Section 53-A and 53-B of the Competition Act, 2002 that the said Appellate Tribunal is headed by Honble Supreme Court Judge and consists of two other retired judges of the High Court that there is no violation of the principles of natural justice nor it can be contended that the orders of the Commission are a violation of the fundamental rights that neither Mr. Dhall nor Mr. K.K. Sharma appeared before the second respondent nor they are arrayed as respondents in the present cases, as such, it is not open for the petitioners herein to make any allegations against the said persons before this Court that the appellate Tribunal has power and jurisdiction to go into such aspects also that Competition Commission is a Multi-Member Body and it cannot be argued that all the members of the second respondent were biased and influenced that the counter field by the third respondent was served on the petitioners on 10.10.2017 and the matter was heard on 12.10.2017, but before the Commission on the said date petitioner herein did not take any plea about Mr. Dhall and K.K. Sharma, as such, the petitioners are estopped and precluded from taking the said plea now before this Court for the first time that as per Regulation 35 of the Competition Commission of India (General) Regulations, 2009, the third respondent is entitled for confidentiality and the third respondent availed the same in accordance with the Regulations and the petitioners herein did not avail the opportunity as provided under Regulation 37 of the said Regulations and that all these aspects are afterthoughts of the petitioners herein, invented for the purpose of filing the present writ petitions.", "Learned Senior Counsel in support of his submissions and contentions, takes the support of the judgments of the Honble Apex Court in TITAGHUR PAPER MILLS CO.", "LTD., AND ANR.", "v. STATE OF ORISSA AND ORS.", " : (1983) 2 SCC 433), MADHYA PRADESH SPECIAL POLICE ESTABLISHMENT v. STATE OF MADHYA PRADESH AND ORS.", " : (2004) 8 SCC 788), COMPETITION COMMISSION OF INDIA v. STEEL AUTHORITY OF INDIA LIMITED AND ANOTHER  : (2010) 10 SCC 744), the Judgment of this Court in DR.", "S.A.HAKEEM AND OTHERS v. N.T.R. UNIVERSITY OF HEALTH SCIENCES, VIJAYAWADA AND OTHERS ( : 2000 (5) ALD 733, judgment of the Madras High Court in NISSAN MOTORS INDIA PRIVATE LIMITED (NMIPL) v. THE COMPETITION COMMISSION OF INDIA (CCI)  : 2014 Comp LR 187 (Madras), Judgment of the Delhi High Court in SOMI CONVEYOR BELTINGS LTD.", "v. UNION OF INDIA ORS 3 and the Judgment of Bombay High Court in VODAFONE INDIA LIMITED AND ORS.", "V. THE COMPETITION COMMISSION OF INDIA AND ORS4.", "Sundari, learned counsel representing the Competition Commission of India contends that the order impugned in these writ petitions is appealable under Section 53-A and 53-B of the Act, as such, the writ petitions are not maintainable.", "It is further contended that adequate and sufficient opportunity was given to the petitioners before passing the impugned order by the second respondent Commission that except requesting for disposal of the cases before the second respondent, no allegation of bias was made in the earlier W.P. Number 36397 of 2017.", "It is further submitted that initially on 21.10.2003 Mr. Dhall was appointed as a Member (Admn) and held office till 18.07.2008 and the members functioning before the Competition Commission of India now have been appointed much later to such dates, as such, no bias can be attributed.", "It is further submitted that Mr. Dhall did not appear in the cases on hand and Mr. Ram Kumar is an associate of the firm in which Mr. Dhall was only a partner and Mr. K.K. Sharma has nothing to do with the present cases.", "In support of her submissions contentions, learned counsel places reliance on the judgments of the Honble Apex Court in COMMISSIONER OF INCOME TAX AND ORS.", "CHHABIL DASS AGARWAL  : (2014) 1 SCC 603, STATE OF PUNJAB v. DAVINDER PAL SINGH BHULLAR AND ORS.", " : (2011) 14 SCC 770, COMPETITION COMMISSION OF INDIA  : (2010) 10 SCC 744) (supra), FLEMINGO (DFS) PRIVATE LIMITED v. THE COMMISSIONER OF CUSTOMS 5 , SCHWING STETTER INDIA PRIVATE LIMITED v. THE COMMERCIAL TAX OFFICER6.", "In view of the objection taken by the learned counsel for the respondents as to the maintainability of the writ petition and as the petitioners in W.P. Number 42223 of 2017 who has appeared as party-in-person and Sri P. Ravi Kiran, learned counsel for the petitioner in W.P. Number 43744 of 2017 have argued extensively on the said issue of maintainability, this Court deems it appropriate and apposite to decide the said issue of maintainability as a preliminary issue as the further process of going into other aspects depends on the outcome of the said preliminary issue.", "In order to consider and resolve the issue of maintainability of the writ petitions under Article 226 of the Constitution of India, this Court feels it appropriate and apposite to refer to certain important and relevant provisions of Competition Act, 2002.", "The object of this central legislation is to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets in our country and for matters connected therewith or incidental thereto.", "Section 2(e) of the Competition Act, 2002 defines Commission which means the Competition Commission of India established under sub-Section (1) of Section 7.", "According to Section 2(b)(a) which came into effect with effect from 12.10.2007, the Appellate Tribunal means the Competition Appellate Tribunal established under sub- Section (1) of Section 53-A. As per Section 2(h) enterprise means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space.", "As per Section 2(p) public financial institution means a public financial institution specified under Section 4A of the Companies Act, 1956 (1 of 1956) and includes a state Financial, Industrial or Investment Corporation.", "As per Section 2(q) regulations means the regulation made by the Commissioner under Section 64.", "According to Section 3(1) no enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India and any agreement entered into in contravention of the provisions contained in sub-Section (1) of Section 3 shall be void.", "As per Section 4 of the Act, there shall be no abuse of dominant position by any enterprise or group.", "Section 7 of the Act deals with establishment of Commission.", "Sub-Section (1) of Section 7 enables the Central Government to constitute a Competition Commission by way of a notification.", "As per sub-Section (2) of Section 7, the Commission shall be a body corporate.", "Section 8 deals with the composition of the Commission and according to which the Commission shall consist of a Chairperson and not less than two and not more than six other Members to be appointed by the Central Government.", "Section 12 imposes restriction on employment of Chairperson or members for a period of two years after cessation from the Commission.", "Chapter IV of the Act deals with the duties and powers and functions of the Commission.", "Section 18 imposes duty on the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India.", "Section 19 deals with the enquiry into alleged contraventions.", "Section 22 deals with the meetings of the Commission.", "As per sub-Section (3) of Section 22 all questions which come up before any meeting of the Commission shall be decided by a majority of the Members present and voting, and in the event of an equality of votes, the Chairperson or in his absence, the Member presiding shall have a second or casting vote.", "Another important, relevant and crucial provision of law, which is essential for determination of the issues in these writ petitions is Section 26 of the Act, which reads as follows: Procedure for inquiry under section 19 26.(1) On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information.", "(2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under Section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.", "The Commission may forward a copy of the report referred to in sub- section(3) to the parties concerned: Provided that in case the investigation is caused to be made based on reference received from the Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-section (3) to the Central Government or the State Government or the statutory authority, as the case may be.", "If the report of the Director General referred to in sub-section (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the Director General.", "If, after consideration of the objections and suggestion referred to in sub-section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.", "If, after consideration of the objections or suggestions referred to in sub- section (5), if any, the Commission is of the opinion that further investigations is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made by in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act.", "If the report of the Director General referred to sub-section (3) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.", "Chapter VIII-A, which deals with Competition Appellate Tribunal, came into being effect by virtue of Act 39 of 2007.", "Section 53-A of the Act deals with the establishment of Appellate Tribunal by the Central Government by way of a notification.", "Section 53-B provides for filing of appeal before the appellate Tribunal against the orders of the Commission.", "In the instant writ petitions, filed against the orders of the Competition Commission of India under sub-Section 2 of Section 26 of the Act, without admittedly availing the above mentioned statutory alternative remedy of appeal before the appellate Tribunal under Sections 53-A and 53-B, it is the contention of the writ petitioners that the said alternative remedy of appeal is not a bar on invocation of the jurisdiction of this Court under Article 226 of the Constitution of India in view of factual scenario and the violation of the principles of natural justice and fair play.", "On the contrary, it is the categorical contention of the learned Advocates appearing for the respondents that the writ petitions are liable to be dismissed on the ground of maintainability in view of the availability of efficacious alternative remedy of appeal to the appellate Tribunal under Sections 53-A and 53-B of the Act.", "It is also their submission that despite the absence of any provision for affording opportunity of hearing at the time of consideration of the issue under Section 26(2) of the Act, the second respondent Competition Commission obviously keeping in view the principles of natural justice, afforded the opportunity to the petitioners herein, as such, it is not open for the petitioners herein to make a complaint as to the violation of the principles of natural justice against the second respondent Commission.", "On the confidentiality, it is their submission that the third respondent acted strictly in accordance with the provisions of 2009 Regulations.", "The above said contentions are required to be considered and examined in the light of the provisions of the Act and the Judgments cited by both the sides in order to come to a just and reasonable conclusions in these matters.", "The second respondent Competition Commission of India, on receipt of information under Section 19 of the Act, passed the impugned order under Sub- Section 2 of Section 26 of the Act.", "The said provision of law empowers the Competition Commission to close the matter if the Commission finds no prima facie case.", "Sections 53-A and 53-B, which came into being by virtue of Act 39/2007 provide for statutory appeal against the orders passed by the Competition Commission under sub-Section (2) of Section 26 of the Act.", "Section 53-O and 53-P deals with the procedure and powers of the appellate Tribunal and execution of the orders of the Appellate Tribunal and 53-Q deals with the consequences and the contravention of the orders of the appellate Tribunal.", "Section 53-T provides for further appeal to the Honble Supreme Court and Section 53-U confers contempt jurisdiction also on the appellate Tribunal.", "While pointing out the above said provisions of law, it is the submission of the learned Advocates for the respondents that in view of complete mechanism created under the statute, it is incumbent on the part of the petitioners herein to avail the remedy of appeal under the Act.", "The petitioners herein relied upon the following judgments in order to sustain their arguments in favour of maintainability of the writ petitions: 2 4 .", "In HARBANSLAR SAHNIA AND ANOTHER  : AIR 2003 SC 2120 (supra), the Honble Apex Court while dealing with the case of termination of petroleum dealership on irrelevant grounds, at paragraph 7 held as under: So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion.", "In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors.,  : (1998) 8 SCC 11.", "The present case attracts applicability of first two contingencies.", "Moreover, as noted, the petitioners dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause.", "In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.", "In SURYA DEVI RAI  : (2003) 6 SCC 675 (supra), the Honble Apex Court at paragraph 38, held as under: Such like matters frequently arise before the High Courts.", "We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:- Amendment by Act Number 46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.", "Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act Number 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.", "Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.", "Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction.", "When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.", "Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.", "A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning.", "Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.", "The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion.", "Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and or early disposal of the suit or proceedings.", "The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.", "The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.", "In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions.", "While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof.", "In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.", "The contingencies as set out at sub-paragraphs 3, 5, 7 and 8 of paragraph 38 of the above said Judgment do not find place in the present writ petitions, as such, the said judgment would not be helpful to the petitioners.", "In RADHEY SHYAM AND ANOTHER  : (2009) 5 SCC 616 (supra), the Honble Apex Court at paragraphs 31 and 32, held as under: Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari.", "Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority.", "Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned.", "Such power, however, is not to be exercised to correct a mistake of fact and of law.", "The essential distinctions in the exercise of power between Articles 226 and 227 are well known and pointed out in Surya Dev Rai and with that we have no disagreement.", "But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a civil court can be examined and then corrected reversed by the writ court under Article 226 in exercise of its power under a writ of certiorari.", "We are of the view that the aforesaid proposition laid down in Surya Dev Rai, is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra  : 2002 (4) SCC 388.", "The above said judgment obviously dealt with the scope of Articles 226 and 227 of the Constitution of India and in the considered opinion of this Court, the said Judgment also would not render any assistance to the petitioners herein.", "The judgment of the Honble Apex Court in M section GUJAAT POTTLING CO.", "( : AIR 1995 2372) (supra), in the considered opinion of this Court, has no relevance to the facts of the present case.", "Therefore, this judgment is also not helpful to the petitioners herein.", "In N.L. BAJPAI  : (2012) 4 SCC 653 (supra), the Honble Apex Court at paragraphs 28 and 32, held as under: Rule 7 of Chapter III of the said Rules is quite in pari materia with Section 129(6) of the Act and it reads as under: An officer after his retirement or otherwise ceasing to be in service for any reasons, if enrolled as an Advocate shall not practice in any of the Judicial, Administrative Courts Tribunals Authorities, which are presided over by an officer equivalent or lower to the post which such officer last held.", "For two different reasons, we are unable to hold that the restriction imposed under Section 129(6) of the Act is unreasonable or ultra vires.", "Firstly, it is not an absolute restriction.", "It is a partial restriction to the extent that the persons who have held the office of the President, Vice--President or other Members of the Tribunal cannot appear, act or plead before that Tribunal.", "In modern times, there are so many courts and tribunals in the country and in every State, so that this restriction would hardly jeopardize the interests of any hardworking and upright advocate.", "The right of such advocate to practice in the High Courts, District Courts and other Tribunals established by the State or the Central Government other than the CESTAT remains unaffected.", "Thus, the field of practice is wide open, in which there is no prohibition upon the practice by a person covered under the provisions of Section 129(6) of the Customs Act.", "Secondly, such a restriction is intended to serve a larger public interest and to uplift the professional values and standards of advocacy in the country.", "In fact, it would add further to public confidence in the administration of justice by the Tribunal, in discharge of its functions.", "Thus, it cannot be held that the restriction has been introduced without any purpose or object.", "In fact, one finds a clear nexus between the mischief sought to be avoided and the object aimed to be achieved.", "In the instant case, Mr. Dhall and Mr. K.K. Sharma never appeared in these cases on hand nor they are shown as parties to the present writ petitions, as such, the said judgment also would not render any assistance to the petitioners herein.", "In V.K. AGGARWAL1 (supra), the High Court of Delhi at paragraphs 22, 23, 27, 29 to 32, held as under: This submission, according to us, fails to take into account the common law principle, now well entrenched in our jurisprudence which to borrow the words of Lord Hewart compel us to ensure that in all fundamental matters justice should not only be done but the manifestly and undoubtedly be seen to be done.", "R vs Sussex JJ, exhibit P. McCarthy (1924) 1 K.B. 256 at page 259.", "This principle finds echo in the other well settled principle i.e., real likelihood of bias or a reasonable suspicion of bias.", "In respect of pecuniary interest the bias is apparent and needs no further scrutiny.", "It is when there is a bias which has no pecuniary dimension that this rule is invoked.", "One would often wonder as to why such a rule is invoked which is based on nebulous premise of suspicion.", "The answer lies perhaps in the following in the statement of law encapsulated by Paul Jackson in his book on Natural Justice (2nd edition), which according to us, appropriately enunciates the raison detre for invoking the Rule of Bias to strike down a decision without actual proof of such bias:- The courts do not, normally, inquire whether a tribunal was, in fact, biased.", "In the case of a pecuniary interest disqualification is automatic the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest per Bowen L.J., Lesson v. General Medical Council (1989) 43 Ch.", "D. 336, Such an attitude can be represented as revealing of the materialistic view of human nature taken by the common law and contrasts with allegations of bias arising from non-financial factors where it is necessary to satisfy a test which has been variously described as involving a real likelihood of bias or a reasonable suspicion of bias.", "The explanation of this approach is two-fold.", "First, the efficacy of the rule against bias would be greatly reduced if the complainant had to prove actual bias.", "Secondly, the law is concerned with public confidence in the administration of justice and the need to ensure that individuals feel that they have been given a fair hearing (emphasis is ours) In our view, therefore, for the petitioners to contend that there should have been some kind of empirical data to suggest that there had been instances of misdemeanour which would have propelled the respondents to insert such a provision in the enactment is based on a misappreciation of a fundamental premises that a courts authority is based on the public perception especially that of the litigants appearing before it, that the process of administration of justice is far removed, from even the remotest possibility of bias creeping into the decision making process.", "Therefore, to contend otherwise is to ignore the very edifice on which the administration of justice is built.", "The submission of the learned counsel for the petitioners that the restriction contained in the impugned provision is unreasonable and not in the interest of general public as contemplated under Article 19(6) of the Constitution, on account of the fact that petitioners who are experts in their respective fields would enhance public interest by making themselves available not only to further the cause of the assessees but also that of the Revenue.", "In our view this submission misses the wood from the trees.", "The predominant rationale for introduction of this provision is to strengthen the cause of administration of justice.", "To remove what the legislature in its wisdom feels is a perceived class bias.", "If that be so, then the restriction cannot be said to be unreasonable.", "It would pass the test of Article 19(6) of the Constitution.", "There is no gainsaying that the petitioners have acquired expertise in the field of law pertaining to customs, excise and service tax.", "That being said the impugned provision does not completely prohibit them from practicing their profession.", "The prohibition is with respect to a forum.", "The petitioners expertise can and ought to be applied in superior forums, such as, the High Courts and also the Supreme Court.", "It would in our opinion help develop and foster entry of fresh blood and talent at the level of the tribunals and at the same time make available much needed expertise in the superior forums.", "There is no denying that there is paucity of lawyers who are experts in fields such as, customs, excise and service tax in superior courts.", "The amendment, according to us, meets various facets of public interests and hence cannot be dubbed as one which is unreasonably restrictive or one which completely forecloses all opportunities available to the petitioners to exercise their profession calling.", "The submission of the petitioners that impugned provision violates Article 21 of the Constitution is also untenable.", "As stated above, there is no deprivation of right to livelihood as contended by the petitioners.", "There are admittedly several avenues open to the petitioners to earn their livelihood.", "This submission is deserves to be rejected at the very threshold.", "The other submission of the petitioners which is that the reading of sub- section (6) of Section 129 of the Customs Act when compared with Article 220 and 124(7) of the Act would show that the impugned provision could not possibly apply to the petitioners as the expression found in sub-section (6) of Section 129 of the Customs Act is on ceasing to hold office, which, according to the petitioners can only imply that the said provision is prospective.", "In our view such a submission is without merit.", "We agree with the submissions of the learned ASG that prohibition applies to the petitioners and all such like persons who have demitted their office both before the date of insertion of the impugned provision and thereafter as the prohibition is attached to the right to appear before the CESTAT.", "To this extent the argument that it seeks to take away a vested right is untenable.", "In any event as indicated by us above the right to practice before a forum is not an unbridled right which cannot be regulated.", "The other submission of the petitioners that the impugned provision is incongruous, in as much as, the amendment has only been made in section 129 of the Customs Act by virtue of the Finance Act, 2007 with no corresponding amendments in Section 2(aa) of the Excise Act and Section 65(5) of the Finance Act, 1994, as on the date of the amendment brought about by Finance Act, 2007, the said provisions, that is, Section 2(aa) of the Excise Act and Section 65(5) of the Finance Act 1994 were already on the statute book.", "In our view this argument, in the first instance seems to be attractive, but on a closer scrutiny, does not lend credence to case of the petitioners.", "There is no denial of the fact that there is a single tribunal, that is, CESTAT which adjudicates upon matters which pertain to customs, excise and service tax.", "There is also no dispute that the members, vice-president and president are the same persons who hear and adjudicate upon the matter involving the aforementioned three streams of law.", "That being the position, the prohibition contained in the impugned provision gets attracted no sooner the person who has held the office of the president vice-president or a member of the Appellate Tribunal which is a common tribunal, that is, the CESTAT seeks to appear, act or plead before the CESTAT.", "It makes no difference that corresponding amendments have not been brought about in the Excise Act or the Finance Act, 1994, because the prohibition is not attached to the stream of law which is practiced before CESTAT.", "The prohibition or the bar on appearance is vis- -vis.", "the forum and the trigger for invoking the bar is that the person concerned should have held the office of a member, vice-president or president of the said forum.", "Once the right to appear, act or plead is taken away and since the same forum hears and adjudicates upon matters concerning the three streams of law, the person concerned is automatically de-barred from acting, appearing or pleading before the said forum, that is, CESTAT.", "In this context, it would be important to also take note of the fact that the petitioners have laid stress on the parliamentary debates whereby amendment was brought in Article 220 of the Constitution of India limiting prohibition on the right of a permanent Judge of a High Court to plead or act to the courts of which he has been a permanent judge or the Courts tribunals authorities over which the said High Court exercised supervisory jurisdiction.", "Even though it is trite law that parliamentary debates by themselves cannot be used to decide the interpretation, that is to be placed on the provisions of a Act, we considered the debates closely.", "The sense which was conveyed through the debates was that a complete bar on practice by permanent Judges of the High Court as it had been obtained prior to the 7th Amendment Act, 1956 could be put in place, if the incumbent was compensated adequately in pecuniary terms by making the pension equivalent to salary last drawn and increasing the retirement age to 65 years.", "The rationale supplied for bringing about the amendment was, that the appointment to the Bench of the High Court was brought about at a relatively late age and then to deprive a judge completely, a right to practice, in any High Court would act as a disincentive for getting the best talent to accept judgeship.", "The Judgment of the Bombay High court in CELLUR OPERATOR ASSOCIATION 2 (supra) dealt with the provisions of Section 26(1) of the Act, as such, the same is also not helpful to the petitioners.", "In MEGACITY BUILDERS  : AIR 2004 AP 49 (supra), this Court at paragraph 45 of the judgment, held as under: In Managing Director, Hindustan Aeronautics Limited, Hyderabad v. Ajit Prasad Tarway, the Supreme Court once again reiterated the said principle and observed that the High Court in exercise of its jurisdiction under Section 115 CPC may interfere with the order passed by the subordinate Court only when the subordinate Court exercised its jurisdiction either illegally or with material irregularity.", "The order of the subordinate Court may be right or wrong may be in accordance with law or may not be in accordance with law the High Court cannot interfere unless it comes to the conclusion that the Subordinate Court exercised its jurisdiction either illegally or with material irregularity.", "In the above said Judgment on the ground that the order passed under the Consumer Protection Act suffered from inherent lack of jurisdiction, this Court interfered with the impugned order in the said judgment.", "In the instant case, there is no such contingency.", "Therefore, the said judgment would not render any assistance to the petitioners herein.", "Coming to the judgments cited by the learned Senior Counsel Sri C.V. Mohan Reddy the Honble Apex Court in TITAGHUR PAPER MILLS CO.", "LTD., AND ANR.", " : (1983) 2 SCC 433) (supra), at paragraph 12, held as follows: Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of.", "The petitioners have the right to prefer an appeal before the prescribed authority under sub-s.", "(1) of section 23 of the Act.", "If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-s.", "(3) of section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act.", "The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution.", "It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.", "This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Company v. Hawkesford (1) in the following passage: There are three classes of cases in which a liability may be established founded upon statute.", "But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class.", "The form given by the statute must be adopted and adhered to.", "In MADHYA PRADESH SPECIAL POLICE ESTABLISHMENT  : (2004) 8 SCC 788) (supra), the Honble Apex Court at paragraphs 28 and 29, held as follows: Mr. Soli J. Sorabjee has not placed any material to show as to how the Council of Ministers collectively or the members of the Council individually were in any manner whatsoever biased.", "There is also no authority for the proposition that a bias can be presumed in such a situation.", "The real doctrine of likelihood of bias would also not be applicable in such a case.", "The decision was taken collectively by a responsible body in terms of its constitutional functions.", "To repeat only in a case of apparent bias, the exception to the general rule would apply.", "On the same analogy in absence of any material brought on records, it may not be possible to hold that the action on the part of the Council of Ministers was actuated by any malice.", "So far as plea of malice is concerned, the same must be attributed personally against the person concerned and not collectively.", "Even in such a case the persons against whom malice on fact is alleged must be impleaded as parties.", "In COMPETITION COMMISSION OF INDIA  : (2010) 10 SCC 744) (supra), the Honble Apex Court at paragraph 69, held thus: The jurisdiction of the Commission, to act under this provision, does not contemplate any adjudicatory function.", "The Commission is not expected to give notice to the parties, i.e. the informant or the affected parties and hear them at length, before forming its opinion.", "The function is of a very preliminary nature and in fact, in common parlance, it is a departmental function.", "At that stage, it does not condemn any person and therefore, application of audi alteram partem is not called for.", "Formation of a prima facie opinion departmentally (Director General, being appointed by the Central Government to assist the Commission, is one of the wings of the Commission itself) does not amount to an adjudicatory function but is merely of administrative nature.", "At best, it can direct the investigation to be conducted and report to be submitted to the Commission itself or close the case in terms of Section 26(2) of the Act, which order itself is appealable before the Tribunal and only after this stage, there is a specific right of notice and hearing available to the aggrieved affected party.", "Thus, keeping in mind the nature of the functions required to be performed by the Commission in terms of Section 26(1), we are of the considered view that the right of notice of hearing is not contemplated under the provisions of Section 26(1) of the Act.", "However, Regulation 17(2) gives right to Commission for seeking information, or in other words, the Commission is vested with the power of inviting such persons, as it may deem necessary, to render required assistance or produce requisite information or documents as per the direction of the Commission.", "This discretion is exclusively vested in the Commission by the legislature.", "The investigation is directed with dual purpose (a) to collect material and verify the information, as may be, directed by the Commission, (b) to enable the Commission to examine the report upon its submission by the Director General and to pass appropriate orders after hearing the parties concerned.", "No inquiry commences prior to the direction issued to the Director General for conducting the investigation.", "Therefore, even from the practical point of view, it will be required that undue time is not spent at the preliminary stage of formation of prima facie opinion and the matters are dealt with effectively and expeditiously.", "In DR.", "S.A. HAKEEM AND OTHERS ( : 2000 (5) ALD 733 (supra), this Court, at paragraphs 7, 8 and 9, held as under: To appreciate the submission of the learned Counsel for the petitioners one need to, at the outset, seek answer to the question while conducting examination at the end of educational course and awarding degrees diplomas in proof of successful completion of the course whether the university performs judicial function, quasi-judicial function or administrative function.", "The examining body or board of examiners or an individual examiner evaluator certainly does not perform judicial functions.", "It is doubtful whether the Board of Examiners performs quasi-judicial function while evaluating the examination papers and declaring the results.", "Thus, when the knowledge of a student after completion of the course is tested by the examiners which results in awarding of pass certificate the function is akin to that of a selection committee selecting an eligible, suitable and meritorious candidate for being appointed to a job.", "The Board of Examiners, therefore, performs an administrative function leading to an administrative decision.", "The fact that the examiners are not under legal obligation to give reasons as to how they evaluated the papers in certain manner lends support to such view.", "It is settled that administrative authority is under no legal obligation to record reasons in support of its division and that the only requirement is that the administrative authority should follow Fairness or fair procedure.", "(See National Institute of Menial Health v. Kalyana Roman,), Therefore, it there is a lone examiner and he acts with proven malice or bias in a given case the same can be challenged before appropriate university authority.", "But, in my considered opinion when a body of persons takes a decision resulting in collectively of opinion, the aggrieved person cannot complain bias or malice.", "That is to say ordinarily it cannot be heard that the Board of Examiners acted with bias or malice.", "Another aspect of judicial review on the ground of bias is that bias resulting from malice in fact can be waived.", "A person, who waives bias, is estopped from challenging the action in a Court of law.", "In service jurisprudence it is well settled that a prospective selectee who knowingly appears before the selection committee is seldom permitted to complain that one of the members of the selection committee is biased and hence selection is vitiated.", "In my considered opinion, there cannot be any objection to import the same principles in the case of evaluation of answer scripts by a board of examiners.", "In G. Sarana v. Lucknow University, AIR 1992 SC 1886 after referring to Manaklal v. Prem Chand, A.K. Kraipak v. Union of India, and section Parthasarathi v. State of Andhra Pradesh, the Supreme Court held that a candidate, who knowingly voluntarily appears before the selection board cannot be heard to complain against the selection board.", "The observations and the law declared by the Supreme Court, which are apt for the purpose, are as under: In a group deliberation and decision like that of a Selection Board, the members do not function as computers.", "Each member of the group or board is bound to influence the others, more so if the member concerned is a person with special knowledge.", "His bias is likely to operate in a subtle manner We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real like hood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee.", "He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it.", "Having done so, it is not now open to him to turn round and question the constitution of the Committee.", "The petitioners admittedly knew that the fifth respondent is the Chief- Examiner.", "They did not object though before that date they had already gone on agitation against the fifth respondent.", "They voluntarily appeared in practical and viva voce before the Board of Examiners, which included two external examiners including the Chief-Examiner.", "The decision resulting in the declaration of results is collective decision, which cannot be challenged on the ground of bias.", "Be that as it may, having appeared before the Board of Examiners, including the fifth examiner without demur, the petitioners cannot be allowed to complain bias and malice in MS DLO examinations.", "In NISSAN MOTORS INDIA PRIVATE LIMITED (NMIPL)  : 2014 CompLR 187 (Madras) (supra), the Madras High Court at paragraphs 37 and 38 held as under: A writ petition under article 226 of the constitution of india should not be entertained when the statute itself provides for efficacious alternative remedy under the Act, unless exceptional circumstances, such as, violation of fundamental rights, violation of principles of natural justice and ultra vires the rule of law, are made out.", "In other words, the powers conferred upon the High Court under Article 226 are discretionary in nature, which can be invoked very sparingly, for the enforcement of any fundamental right or legal right, but not for any other rights, in view of the existence of efficacious alternative remedy.", "The Constitutional Court should insist upon the party to avail the same, instead of invoking the extraordinary writ jurisdiction of the High Court.", "This does not, however, debar the High Court from granting the appropriate relief to a citizen under peculiar and special facts, notwithstanding the existence of alternative remedy and the existence of special circumstances are required to be noticed before issuance of the direction by the High Court, while invoking the jurisdiction under Article 226.", "Also, when the issue relates to enforcement of a right or obligation under the statute and specific remedy is provided under the statute, the High Court should not normally entertain a writ petition and interfere with the decision made by the authorities.", "Similarly, if a statute confers a right and in the same breath provides for a remedy for enforcement of such right, the remedy provided by the statute is an exclusive one.", "Therefore, if a statute imposes a duty on one party to do a certain thing, it creates a right in such persons, who would be injured by its contravention.", "In the instant case, in the absence of any infringement of the fundamental rights or the principles of natural justice or the rule of law, the questions raised by the petitioners on merits, as to locus standi of the first respondent in passing the order impugned, dated 26.04.2011 unexplained delay by the second respondent in conducting the investigation and competency of the quorum of the first respondent, are all matters, to be looked into by the Competition Appellate Tribunal under Section 53B of the Act, in the manner as contemplated.", "In SOMI CONVEYOR BELTINGS LTD.", "ANR 3 (supra), a Division Bench of Delhi High Court, at paragraph 18 of the Judgment, held as under: It may also be added that Section 26 of the Act provides for the procedure for inquiry by CCI under Section 19 i.e., inquiry into anti competitive agreements and abuse of an enterprise of its dominant position.", "Section 36 further empowers CCI to regulate its own procedure for the purpose of discharging its functions under the Act however, CCI shall be guided by the principles of natural justice and in respect of the matters specified in sub-section 2 of Section 36 relating to recording evidence, CCI is conferred with the same powers as are vested in a Civil Court under CPC, 1908 while trying a Suit.", "However, Section 57 of the Act makes it clear that no information relating to any enterprise being information which has been obtained by CCI for the purpose of the Act shall be disclosed otherwise than in compliance with or for the purposes of the Act or any other law for the time being in force.", "Further, Regulation 35 of General Regulations 2009 expressly provides that the commission shall maintain confidentiality of the identity of an informant, a document or documents or a part thereof on a request made by the informant.", "Such confidential treatment may be given by the CCI or DG, on being satisfied, to any other information or document or part thereof also in respect of which no request has been made by the informant or the party which has furnished such information or document.", "Though Regulation 37 enables a party to the proceedings to inspect the documents or records submitted during proceedings or to obtain copies of the same by making an application accompanied with the specified fees, the same is subject to the restriction on disclosure of information as provided under Section 57 of the Act.", "Thus, it is clear that the entitlement of a party to the proceedings to inspect the documents or to obtain copies of the same is not absolute and it is always open to CCI to reject permission for inspection or furnishing copies if it is of the view that the documents information require confidential treatment.", "In VODAFONE INDIA LIMITED AND ORS.", "4 (supra), the High Court of Bombay, at paragraph 14, held as under: If the Commission is of the opinion that no prima facie case exists, it may close the case as contemplated under Section 26(2) of the Competition Act.", "The aggrieved person and or parties, including informant may invoke the provisions of Appeal under Section 53(A) of the Competition Act.", "The Appeal, against the directions so issued under Section 26(1) on the basis of prima facie opinion by the Commission is not maintainable.", "However, the aggrieved party cannot be remediless.", "Therefore, the Writ Petition, as an alternative and effective remedy is only available.", "Coming to the judgments cited by the learned counsel for the second respondent Commission-in COMMISSIONER OF INCOME TAX AND ORS.", " : (2014) 1 SCC 603 (supra) the Honble Apex Court at paragraphs 19 and 20, held as under: Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field.", "Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.", "In the instant case, the Act provides complete machinery for the assessment re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals).", "The remedy under the statute, however, must be effective and not a mere formality with no substantial relief.", "In Ram and Shyam Company vs State of Haryana,  : (1985) 3 SCC 267 this Court has noticed that if an appeal is from Caesar to Caesars wife the existence of alternative remedy would be a mirage and an exercise in futility.", "In the instant case, neither has the assessee-writ petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case.", "In STATE OF PUNJAB v. DAVINDER PAL SINGH BHULLAR AND ORS.", " : (2011) 14 SCC 770 (supra), the Honble Apex Court while dealing with the aspect of bias, at paragraphs 21 to 25, held as follows: In Manak Lal (Supra), this Court held that alleged bias of a Judge official Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official.", "The Court further observed that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection.", "Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.", "Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him.", "In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias.", "The issue of bias must be raised by the party at the earliest.", "(See: M section Pannalal Binjraj Ors.", "v. Union of India Ors.,  : AIR 1957 SC 397 and Justice P.D. Dinakaran (Supra)) In M section Power Control Appliances Ors.", "v. Sumeet Machines Pvt.", "Limited,  : (1994) 2 SCC 448 this Court held as under:- Acquiescence is sitting by, when another is invading the rights It is a course of conduct inconsistent with the claim It implies positive acts not merely silence or inaction such as involved in laches.", "The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant Inaction in every case does not lead to an inference of implied consent or acquiescence as has been held by this Court in P. John Chandy Company (P) Limited John P. Thomas,  : AIR 2002 SC 2057.", "Thus, the Court has to examine the facts and circumstances in an individual case.", "Waiver is an intentional relinquishment of a right.", "It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed.", "In fact, it is an agreement not to assert a right.", "There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them.", "(Vide: Dawsons Bank Limited v. Nippon Menkwa Kabushihi Kaish,  : AIR 1935 PC 79 Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan Anr.,  : AIR 1959 SC 149 Mademsetty Satyanarayana v. G. Yelloji Rao Ors.,  : AIR 1965 SC 1405 Associated Hotels of India Limited v. S.B. Sardar Ranjit Singh,  : AIR 1968 SC 933 Jaswantsingh Mathurasingh Anr.", "v. Ahmedabad Municipal Corporation Ors.", ", (1992) Suppl 1 SCC 5 M section Sikkim Subba Associates v. State of Sikkim,  : AIR 2001 SC 2062 and Krishna Bahadur v. M section Purna Theatre Ors.,  : AIR 2004 SC 4282).", "This Court in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association Ors.,  : AIR 1988 SC 233 considered the issue of waiver acquiescence by the non-parties to the proceedings and held: In order to constitute waiver, there must be voluntary and intentional relinquishment of a right.", "The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver.", "Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case There is no question of estoppel, waiver or abandonment.", "There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right.", "That apart, the question of waiver really does not arise in the case.", "Admittedly, the tenants were not parties to the earlier proceedings.", "There is, therefore, no question of waiver of rights, by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition.", "Thus, from the above, it is apparent that the issue of bias should be raised by the party at the earliest, if it is aware of it and knows its right to raise the issue at the earliest, otherwise it would be deemed to have been waived.", "However, it is to be kept in mind that acquiescence, being a principle of equity must be made applicable where a party knowing all the facts of bias etc., surrenders to the authority of the Court Tribunal without raising any objection.", "Acquiescence, in fact, is sitting by, when another is invading the rights.", "The acquiescence must be such as to lead to the inference of a licence sufficient to create rights in other party.", "Needless to say that question of waiver acquiescence would arise in a case provided the person apprehending the bias prejudice is a party to the case.", "The question of waiver would not arise against a person who is not a party to the case as such person has no opportunity to raise the issue of bias.", "In COMPETITION COMMISSION OF INDIA  : (2010) 10 SCC 744) (supra), the Honble Apex Court at paragraph 21, held as follows: We would prefer to state our answers to the points of law argued before us at the very threshold.", "Upon pervasive analysis of the submissions made before us by the learned counsel appearing for the parties, we would provide our conclusions on the points noticed supra as follows: In terms of Section 53A(1)(a) of the Act appeal shall lie only against such directions, decisions or orders passed by the Commission before the Tribunal which have been specifically stated under the provisions of Section 53A(1)(a).", "The orders, which have not been specifically made appealable, cannot be treated appealable by implication.", "For example taking a prima facie view and issuing a direction to the Director General for investigation would not be an order appealable under Section 53A. Neither any statutory duty is cast on the Commission to issue notice or grant hearing, nor any party can claim, as a matter of right, notice and or hearing at the stage of formation of opinion by the Commission, in terms of Section 26(1) of the Act that a prima facie case exists for issuance of a direction to the Director General to cause an investigation to be made into the matter.", "In FLEMINGO (DFS) PRIVATE LIMITED 5 (supra), this Court at paragraphs 7, 8, 10, 21, 26, 28 and 29, held as follows: The question of maintainability of the writ petition, having regard to Section 129A of the Customs Act and the question of violative of principles of natural justice, are interconnected.", "Therefore, both the issues need to be considered together.", "Articles 226 and 227 of Constitution confer power of judicial review on the High Courts.", "The power includes issuing writs in the nature of certiorari, habeas corpus, mandamus, prohibition and quo warranto, as well as directions and orders.", "These are writs, which were issued at the discretion of the Kings Courts in England to check excesses in the exercise of power by servants of the kingdom.", "The issue of writs nay the exercise of judicial review power is subject to certain limitations, some imposed by the constitution or the statutes and others certain self-imposed limitations.", "One of these is the existence of alternative remedies.", "When the power conferred by the Constitution under Articles 226 and 227 of Constitution is exhaustive and wide enough, what is the justification for denying constitutional remedy? Clive Lewis Judicial Remedies in Public Law Sweet Maxwell 2004, at pp.", "410, explains the rationale for exhaustion of alternative remedies as follows.", "A two-fold justification has been put forward.", "First, that where Parliament has provided for a statutory appeals procedure, it is not for the courts to usurp the functions of the appellate body.", "The principle applies equally to bodies not created by statute which have their own appellate system.", "Secondly, the public interest dictates that judicial review should be exercised speedily, and to that end it is necessary to limit the number of cases in which judicial review is used.", "More generally, the courts now encourage parties to resolve disputes without resorting to the expense of litigation.", "To these reasons can be added the additional expertise that the appellate bodies possess.", "In tax cases, for example, the appellate body, the General or Special Commissioners, have wide experience of the complex and detailed tax legislation.", "In employment cases, for example, the system of employment and Employment Appeal tribunals may be better equipped to deal with industrial issues than the High Court.", "In the financial services field, specialist procedures and a specialist tribunal have been established to deal with certain matters.", "Similarly, where there is a further appeal to the courts, this may be to a division of the High Court particularly familiar with the area in question, as in tax cases, where the appeal is heard in the Chancery Division not the Queens Bench Division.", "(emphasis supplied) The decisions of Supreme Court of India and other High Courts are galore in this regard.", "The principle is well established that no writ would ordinarily lie if there is an effective and efficacious alternative remedy provided by the statute itself.", "This rule, however, has mainly four exceptions.", "These are When Constitutional validity of the statute is challenged (K.S. Venkataraman and Company (P) Limited v. State of Madras 1 and Dhulabhai v. State of Madhya Pradesh 2) Where the impugned action is in violation of fundamental right especially under Articles 14 and 19(1)(a) or (g) of Constitution Where the impugned order action is in breach of natural justice and When challenge is to the action which is patently and ex facie without jurisdiction.", "In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai 3, the Supreme Court clarified this position.", "If a matter requires technical knowledge, which is available in the statutory appellate forum, ordinarily, the High Court would not be inclined to exercise discretion under Article 226 of Constitution of India.", "These principles are well settled.", "Further, in tax matters, ordinarily Courts have declined to exercise writ jurisdiction.", "In C.A. Abraham v. I.T. Officer 4, the appellant along with another was partner in M section M.P. Thomas and Company engaged in food grains business.", "The firm submitted Returns to Income Tax Officer (ITO).", "On the ground that the firm was carrying transactions in fictitious names, and had suppressed income for AY 1948-1949, show cause notice was issued for imposing penalty under Section 28 of Income Tax Act, 1922.", "Explanation was submitted.", "ITO passed orders imposing penalty for AYs 1950-1951 and 1951- 1952.", "Appeals were dismissed by the appellate authority.", "The same was assailed in Certiorari proceedings before the Kerala High Court.", "The Court rejected relying on a Judgment of the A.P. High Court in Mareddi Krishna Reddy v. Income Tax Officer, Tenali 5.", "In Appeal with Certificate of High Court, the Supreme Court considered two questions, namely, whether High Court could have entertained a writ petition ignoring alternative remedy provided by the Act and whether the provisions imposing penalty can be interpreted by pointing out deficiencies.", "On the first question, it was held that, assessee cannot abandon to resort to machinery provided under the Act and directly invoke remedy under Article 226 of Constitution of India.", "The observations are as follows (para 3).", "In our view, the petition filed by the appellant should not have been entertained.", "The Income Tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the Income Tax authorities, and the appellant could not be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Tribunal.", "In Champalal Binani v. The Commissioner of Income Tax, West Bengal 6 the Commissioner of Income Tax issued a notice to the appellant under Section 33-B of the Income Tax Act, 1922 to show cause as to why the orders of assessment for AYs 1953-1954 to 1960-1961 should not be revised.", "Copies of the notices were sent to the addresses disclosed in the IT Returns.", "On the date of hearing, none appeared for the assessee.", "The Commissioner set aside the orders and directed the ITO to make fresh assessment after enquiry and the investigation.", "Against the said order, the appellant moved the High Court of Calcutta by filing a writ petition.", "Holding that the notice under Section 33-B was not served on the assessee, the learned single Judge set aside the order of the Commissioner.", "The Division Bench reversed the order holding that notice was served.", "The Supreme Court dismissed the appeal and reiterated that when the Income Tax Act provides a complete and self-contained machinery for redressal of grievances, no party can be allowed to invoke the extraordinary remedy under Article 226 of Constitution of India.", "The relevant observations are as follows (para 5).", "We deem it necessary once more to emphasize that the Income Tax Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities, and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action.", "A writ of certiorari is discretionary it is not issued merely because it is lawful to do so.", "Where the party feeling aggrieved by an order of an Authority under the Income Tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ.", "Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority, which is ex facie with jurisdiction.", "A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner.", "(emphasis supplied) Chanan Singh and Sons v. Collector Central Excise 7 was a case where a writ petition was filed before the P H High Court challenging the order of the CEGAT (now CESTAT) allowing the departments appeal.", "The High Court dismissed the writ petition holding that there is a statutory alternative remedy available.", "Aggrieved by the same, appeal was carried to the Supreme Court.", "Confirming the order of the High Court, the Supreme Court observed (para 2) as under.", "Unfortunately, the high Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions.", "In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc.", "the High Court must keep in mind that the legislations enacted by Parliament and State legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person.", "Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.", "(emphasis supplied) The position in English Courts is also well accepted.", "In R v. IRC Ex parte Preston 13, Lord Scarman summed up the position in English Administrative Law, thus: Therefore, the rule that whenever natural justice is violated, the judicial review Court should ignore the statutorily provided remedy of appeal or revision and entertain the writ petition is not acceptable absolutely.", "In all tax cases - judicial notice may be taken that the endeavour of the tax payer is to gain as much time as possible, and postpone payment probably to maintain financial liquidity in business operations.", "The Court, therefore, must strictly scrutinize in proceeding under Article 226 of Constitution with respect to the availability of remedy under the Statute.", "Further, there cannot be any doubt that all issues in tax matters are not simple questions of fact and law.", "The expert consideration by specialist tribunals may be necessary at the first instance before the judicial remedy is made available as provided in the statute.", "All the direct and indirect tax laws provide the remedy of appeal or revision to the High Court against specialist tribunals established under the law made under Article 323B of the Constitution of India.", "Ignoring the legislative intention behind creating such elaborate tax dispute resolution mechanisms the High Court may not ordinarily interfere with the show cause notices which are themselves issued in compliance with the statute and or assessment orders passed after detailed consideration.", "No doubt, alternative remedy is not an absolute bar to the filing of writ petitions, but at the same time it is well settled that writ jurisdiction is discretionary jurisdiction and when there is an alternative remedy, ordinarily a party must resort to that remedy first before approaching this court.", "Entertaining writ petitions straight away without insisting that a party should first avail of the alternative remedy is an over liberal approach which has caused immense difficulties to the High Courts in the country because they have added to the huge arrears.", "The Courts have already become overburdened by this over liberal approach instead of following the settled legal principle that a writ petition should ordinarily be dismissed if there is an alternative remedy.", "The High Courts in India are already tottering and reeling under the burden of massive arrears which have flooded the dockets of the Court, and such kind of over liberal approach has only multiplied this problem manifold.", "If this approach is further continued a time will surly come when the High Courts will find it impossible to function.", "All this has happened because unfortunately some Courts have departed from well- settled legal principles.", "(emphasis supplied) Even in cases where there is demonstrable breach of natural justice, as of right a petition for judicial review would not lie.", "The aggrieved can appear before a specialist agency, be it a departmental authority or a quasi-judicial tribunal - and agitate in matters like taxes, social security, distribution of benefits to poor wherein elaborate background facts need to be evaluated.", "The issue of natural justice can always be considered even by the appellate authority tribunal.", "We may refer to two English cases viz., Banin v. Mackinlay (Inspector of Taxes) 32 and R. v. Brentford General Commissioners Ex p. Chan 33.", "In SCHWING STETTER INDIA PRIVATE LIMITED 6 (supra 19), a Division Bench of this Court, at paragraphs 12, 14 to 17, held as under: Chanan Singh and Sons v. Collector Central Excise  : (1999) 9 SCC 17 was a case where a writ petition was filed before the P H High Court challenging the order of the CEGAT (now CESTAT) allowing the departments appeal.", "The High Court dismissed holding that there is a statutory alternative remedy available.", "Aggrieved by the same, appeal was carried to Supreme Court.", "Confirming the High Court, Supreme Court observed (para 2) as under: The appellant challenged before the High Court an order of the Tribunal allowing the appeal of the Revenue.", "The High Court simply said that the appellant had a statutory alternative remedy and the appellant had to avail that statutory remedy instead of filing writ petition.", "Accordingly, the High Court dismissed the writ petition.", "The appellant instead of challenging the order of the Tribunal by availing the statutory alternative remedy, has filed this appeal by special leave challenging the order of the High Court.", "We are of the view that the High Court was right in dismissing the writ petition directing the appellant to avail the statutory alternative remedy.", "In view of the principles laid down in the above judgments, when an effective efficacious alternative remedy is available, this Court cannot exercise its power of judicial review under Article 226 of Constitution of India.", "In a recent judgment of the Apex Court in Commissioner of Income Tax and others v. Chhabil Das Agarwal , it was held as follows: Non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation.", "It is essentially a rule of policy, convenience and discretion rather than a rule of law.", "Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy.", "However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226.", "However, when a statutory forum is created by law for the assessment respondents-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue authorities, and the assessee could not be permitted to invoke the writ jurisdiction when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals).", "Assessee in the instance case neither described the available alternative remedy under the Act as ineffectual and non-efficacious nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case.", "Writ Court accordingly, as held, should not have entertained the Writ petition.", "In view of the principle laid down in the above judgment, the bar not to entertain a petition exercising power under Article 226 of Constitution of India is a self-imposed limitation to minimize burden.", "However, if extraordinary circumstance or statutory violation is shown, jurisdiction under Article 226 of Constitution of India can be exercised, if there is a material to show that the points which are urged before this Court cannot be urged in the appeal and that the remedy is non-efficacious and ineffective.", "In the instant case on hand, no extraordinary circumstances are pleaded and brought to the notice of this Court in the entire affidavit and there is absolutely no pleading that alternative remedy by way of appeal under Section 31 is non-efficacious and ineffective that this ground regarding variation of percentage () of tax levyable on concrete mixers (transit mixers) cannot be urged before appellate authority.", "In the absence of any such allegation, in view of self-imposed limitation as observed by the Apex Court, we are not inclined to exercise our extraordinary power of judicial review under Article 226 of Constitution of India to grant relief.", "Therefore, on this ground the writ petition is not maintainable.", "Accordingly, point Number 1 is held.", "In the instant cases, admittedly, the third respondent served counters on the petitioners on 10.10.2017 and the matter was heard by the Commissioner on 12.10.2017 and reserved for judgment.", "Admittedly, the petitioner in W.P. Number 42223 of 2017 earlier filed W.P. Number 36397/2017 on 30.10.2017 for the following relief: To issue writ, order, direction more particularly one in the nature of writ of mandamus declaring the action of Respondent Number 2 in not conducting the enquiry investigation into the information furnished by the Petitioner within the time frame as enunciated under Competition Act, 2002 as being illegal, unjust and improper and in violation of Article 21 of the Constitution and further directing Respondent Number 2 to enquire and investigate into the information provided by the Petitioner about Respondent Number 3 within the time frame as prescribed under Competition Act, 2002.", "In the said writ petition, as evident from the relief portion set out supra, the petitioner sought enquiry investigation into the information within the time frame.", "A copy of the petition and the affidavit filed in the said writ petition are placed on record by the learned counsel for the second respondent.", "A reading of the affidavit filed in support of the said writ petition clearly discloses that the petitioner in W.P. No. 42223 of 2017 did not mention any aspects of bias and violation of the principles of natural justice which he seeks to make the foundation for the present writ petition.", "The fact remains that on 12.10.2017 matters were reserved.", "It is a fact that by way of e-mails dated 21.11.2017 and 29.11.2017 the petitioners herein objected the appearance of Mr. Dhall before the Commission.", "It is also the fact that in the e-mail dated 21.11.2017 he expressed concern about information received from K.K. Sharma.", "As mentioned supra, neither at the time of hearing before the Commission nor before this Court in the earlier W.P. 36397 of 2017, the petitioner in W.P. Number 42223 of 2017 raised such objection.", "On the other hand, as noted above, the petitioner in W.P. Number 42223 of 2017 sought completion of the proceedings in an expeditious manner.", "Therefore, for the purpose of maintaining the present writ petitions the grounds taken in the writ petitions cannot form the foundation in view of the principles laid down in the judgments cited supra by the learned counsel for the third respondent and as referred to above.", "It is also significant to note that the appellate Tribunal is headed by the Chair- person who is Honble retired Judge of the Honble Supreme Court.", "It is also required to be noted that there is an effective and alternative mechanism under the present legislation as observed in the preceding paragraphs.", "It is also to be noted that the contention of the petitioners about the confidentiality under Section 35 of the 2009 Regulations falls to the ground as they failed to avail the opportunity under Regulation 37 of the said Regulations.", "By any stretch of imagination, it cannot be said that the orders passed by the Competition Commission are violative of the principles of natural justice and suffer from unfairness.", "Therefore, this Court is of the opinion that necessarily the petitioners herein need to avail the alternative remedy of appeal to the appellate Tribunal under Sections 53-A and 53-B of the Competition Act, 2002.", "In view of the law laid down in the Judgments cited by the learned counsel for the respondents and having regard to the complete mechanism created under the provisions of Competition Commission Act, 2002 and in view of the effective, efficacious and alternative remedy provided under Section 53-A and 53-B, this Court is not inclined to entertain the present writ petitions and exercise jurisdiction under Article 226 of the Constitution of India.", "This Court has absolutely no scintilla of hesitation nor any traces of doubt to hold that the present writ petitions are liable to be rejected on the ground of availability of the alternative remedy.", "For the aforesaid reasons, the writ petitions are dismissed, keeping it open for the petitioners herein to avail the alternative remedy and to raise all the grounds before the appellate Tribunal.", "As a sequel, the miscellaneous petitions, if any, shall stand disposed of.", "There shall be no order as to costs.", "1 W.P.(C) Number 6710 of 2007, dated 13.04.2009 (Delhi High Court).", "2 W.P. Number 8594 of 2017, dated 21.09.2017 (Bombay High Court).", "3 (W.P.(C) 1416/2016 dated 11.04.2017, Delhi High Court).", "4 (W.P. Numbers 8594 of 2017 and Batch dated 21.09.2017, Bombay High Court).", "5 (W.P. Number 26968 of 2010, dated 30.12.2010).", "6 (W.P. 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+{"id": "HC_Rajasthan_Cylinders_and_Containers_Ltd_and_Ors_vs_DE201909041916593781COM717784", "text": ["K. Gauba, J. 1 .", "The Competition Commission of India (the Commission, for short), a statutory body established by the Central Government in exercise of its power under Section 7 of the Competition Act, 2002 (the Competition Act, for short), the respondent herein, has instituted, through its authorized representative, criminal complaints against the petitioners on which the Chief Metropolitan Magistrate (CMM) Delhi has taken cognizance of the offences allegedly committed under Section 42(3) of the Competition Act and issued process.", "These petitions preferred under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C., for short) bring a challenge to the said summoning orders.", "Since the question of law, in almost similar factual matrix, raised in these petitions is identical, they have been heard together and are being disposed of by this common order.", "THE FACTS It will be appropriate to look at the background facts, to the extent necessary, in the three cases at the outset.", "M.C. 4363/2018 3 .", "The petitioner M section Rajasthan Cylinders and Containers Limited (RCCL) is a company based in Jaipur, engaged in manufacture of LPG cylinders.", "In 2014, it had entered into a contract with another company (HPCL) procuring certain supplies through two tenders which were perceived by the Commission to be anti- competitive.", "The Commission initiated suo-motu proceedings under Section 19(1) of the Competition Act against RCCL, directing by order dated 02.02.2014 the Director General of the Commission to cause an investigation.", "The Director General issued summons dated 24.06.2016 followed by another on 13.07.2016 to RCCL, which were not complied with.", "On the report of Director General regarding non-compliance with the said processes, the Commission through Secretary issued show cause notices on 22.09.2016 and 02.12.2016.", "There being no response to such notices, the Commission imposed penalty of Rs. 5,00,000/- by order dated 09.02.2017 under Section 43 of the Competition Act.", "The RCCL sent a reply on 28.04.2017, the Commission issuing a notice of demand on 21.07.2017 requiring penalty amount to be deposited within thirty days.", "On 19.04.2018, the Commission by its order decided to initiate criminal complaint under Section 42(3) of the Competition Act, the complaint (CC Number 11151/2018) being submitted in its wake.", "The CMM issued the process by the impugned order on 30.05.2018.", "The petitioner deposited the penalty on 13.08.2018 and 20.08.2018.", "M.C. 5324/2018 A company named Cinemax India Limited (the informant) is engaged in business of exhibition of films at its cinema halls in Kerala.", "On 21.09.2012, the said company gave information under Section 19(1) (a) of the Competition Act to the Commission alleging contravention of Sections 3 and 4 of the Competition Act by Films Distributors Association (FDA) of Kerala in which the petitioner was then the honourary General Secretary.", "The Commission acting on the said complaint (case Number 32/2013), by its order dated 17.05.2013, after forming an opinion under Section 26(1), directed the Director General for carrying out an investigation.", "The Director General sent a notice on 13.06.2013 to the petitioner calling him upon to furnish certain information documents, this being followed by another notice on 17.06.2013 which was eventually served through the District Collector on 13.09.2013, there being no response or compliance.", "The Director General made a report to the Commission on 16.01.2014 seeking imposition of penalty under Section 43 of the Competition Act.", "In the wake of decision of the Commission rendered on 28.01.2014, show cause notices were sent on 12.02.2014, inter alia, to the petitioner, he having failed to send any reply, the notice addressed to him having returned undelivered.", "It may be mentioned here that it is his case that he had ceased to be an office bearer of FDA, his term having ended on 30.10.2013.", "It also must be noted that even as per the averments of the Commission (in the criminal complaint) the FDA had sent a reply on 01.03.2014 informing that newly elected committee had taken charge on 01.11.2013.", "Be that as it may, the Commission, by its decision dated 26.03.2014, directed fresh notice to be sent to the petitioner, also calling upon the Director General to confirm whether FDA had complied with the notices.", "On 07.06.2014, the petitioner sent a letter to the Commission, received by it on 09.06.2014, stating that he had not received the earlier notices of June, 2013, reiterating that his tenure having ended, he was not aware regarding compliance by FDA.", "The Director General submitted a report to the Commission pointing out default in compliance or submission of reply by FDA in response to notices of June, 2013 attributing full knowledge to the petitioner, recommending action under Section 43 of the Competition Act.", "Show cause notices were issued under directions of the Commission on 12.02.2014 to FDA and to the petitioner (in his capacity as General Secretary of FDA) respecting proposed action under Section 43 of the Competition Act.", "The Commission rejected the contention of FDA about newly elected office bearers (who had taken over w.e.f. 31.10.2013) not being aware of the directions of the Director General and forming an opinion that no reasonable cause had been shown by FDA or the petitioner for non-compliance, imposed by order dated 11.12.2014 penalty on FDA in the sum of Rs. 14,60,000/- at Rs. 10,000/- per day for the period of non-compliance, i.e., 13.09.2013 to 06.02.2014, also taking note of similar non-compliance by FDA in another matter (case Number 62/2012) it showing the said entity to be one indulging in habitual non-cooperation .", "Further, by the same order, the Commission also imposed penalty of Rs. 4,80,000/- against the petitioner, inter alia, observing that his reply dated 07.06.2014 demonstrated that he was fully aware of the notice which had been affixed outside his office on 13.09.2013 and yet had failed to comply or adduce any evidence to show that non-compliance was without his knowledge or despite due diligence on his part.", "The copy of order dated 11.12.2014 was statedly served on the petitioner on 20.12.2014.", "He failed to deposit the penalty within stipulated period of sixty days.", "A demand notice was issued by the Commission on 26.03.2015, it statedly having been served on 10.04.2015.", "Since no deposit was made, a recovery certificate was issued by the Commission on 22.05.2015.", "The penalty not having been deposited, the Commission, by its order dated 16.03.2016, decided to initiate criminal action under Section 42(3) of the Competition Act, the criminal complaint (No. 48345/2016) being instituted on 22.08.2016 before the CMM.", "It is the petitioners case that he had sent replies to the Commission, inter alia, informing cessation of his responsibility qua the office of Hony.", "Secretary to FDA w.e.f. 30.10.2013, new office bearers having taken over.", "He also refers to appeal (No. 55/2015) having been preferred by him against similar order (dated 31.10.2014) passed in the other case (No. 62/2012) before Competition Appellate Tribunal (the appellate tribunal, for short), the said appeal having been dismissed on 17.08.2015, the SLP moved before the Supreme Court also having been declined.", "M.C. 5379/2018 9 .", "The petitioner in this case is same as in the previous matter, he being held responsible on account of the position of Hony.", "Secretary held by him in FDA against similar backdrop.", "On the information received on 21.09.2012, as earlier stated, the Commission by its order dated 18.10.2012, under Section 26(1), had directed the Director General to conduct investigation, this being subject matter of a separate case (No. 62/2012).", "Notices sent by the Director General, inter alia, to the petitioner and FDA, on 19.11.2012, 01.01.2013, 18.02.2013, 20.03.2013 and 12.06.2013 did not yield any response.", "The Director General got the notice dated 12.06.2013 served through the District Collector, by communication dated 10.07.2013, the service having been effected on the petitioner by affixation, there being no response.", "Eventually, on the report of the Director General, the Commission by its decision in the meeting of 28.01.2014 initiated action for imposition of penalty under Section 43 of the Competition Act.", "Show cause notices were issued in the wake of such decision, a reply being filed by FDA.", "On 09.06.2014 the Commission received letter dated 07.06.2014 of the petitioner.", "His contentions on same lines, as noted in the context of previous case, were rejected, the process eventually leading to imposition of penalty by the Commission by its order dated 31.10.2014, in the sum of Rs. 35,20,000/- against FDA and Rs. 19,25,000/- against the petitioner at Rs. 25,000/- per day for the period of default, i.e., 14.08.2013 to 30.10.2013.", "The copy of the order imposing penalty was statedly served on the petitioner on 22.11.2014.", "He did not make the payment.", "This led to demand notice dated 18.02.2015 being issued and statedly served on 26.02.2015, followed by recovery certificate issued by the Commission on 01.04.2015.", "The penalty not having been deposited, the Commission, by its order dated 16.03.2016, decided to initiate criminal action against the petitioner under section 42(3) of the Competition Act, the criminal complaint (No. 48346/2016) having been filed before CMM in its wake.", "As mentioned in the context of the previous matter, the challenge of the petitioner to the imposition of penalty by the Commission before the Appellate Tribunal (by appeal Number 55/2015) and before the Supreme Court (by SLP) have concededly been unsuccessful.", "THE CONTENTIONS It is the argument of the petitioners that the offence proved by Section 42(3) of the Competition Act cannot be invoked on the basis of allegation that the penalty imposed by the Commission under section 43 has not been paid, the penal clause leading to such criminal action in the court of CMM being intended to cover non- compliances of different nature.", "It is also the argument of the petitioners that criminal action under Section 42(3), in such circumstances as noted above, would lead to double jeopardy which is unfair, unjust and impermissible.", "The petitioner in the second and third matters also raises the grievances that the Commission while initiating the impugned criminal complaints against him has failed to bear in mind that he did not have any personal interest or stake, his responsibilities having come to an end w.e.f. 30.10.2013, he having been unfairly proceeded against even thereafter, despite the fact of change in the office bearers having been brought to the notice of the Commission by the FDA and the new committee, it being primarily the responsibility of the latter to provide the requisite information and documents.", "The Commission, per contra, seeks to justify the initiation of criminal action arguing that the penal clause contained in Section 42(3) covers the event of non- compliance with all kinds of orders or directions of the Commission, including those specified in sub-section (2) of Section 42, besides failure to pay the fine as additionally imposed under the last said clause.", "The Commission justifies the criminal complaint against the petitioner in the second and third matters, despite cessation of his connection with FDA w.e.f. 30.10.2013, referring in this context to the default despite knowledge on his part during the period preceding the said date, its submissions being that the issues raised by the said petitioner on this score are at best his defences giving rise to questions of fact which ought to be left for determination at the trial rather than being addressed in the jurisdiction under Section 482 Cr.", "P.C. where, it is argued, such inquiry may not be feasible.", "JURISDICTION AND POWERS OF THE COMMISSION 1 6 .", "The Competition Act, 2002 (the Competition Act) came on the statute book w.e.f. 13.01.2003 for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets in India, and for matters connected therewith or incidental thereto.", "With this legislation, the then existing Monopolies and Restrictive Trade Practices Act, 1969 stood repealed and Monopolies and Restrictive Trade Practices Commission (MRTPC) established under the said repealed Act was dissolved.", "The Competition Act has established, by virtue of Section 7, the Commission (called Competition Commission of India).", "The law also provides for an investigative machinery which aids and assists the Commission, it being headed by a functionary styled as Director General, as envisaged in Section 41.", "The Competition Act prohibits anti-competitive agreements (Section 3) and abuse of dominant position (Section 4).", "The prime duty of the Commission, as indicated by Section 18, is besides promoting and sustaining competition and the interest of the consumers ensuring freedom of trade.", "The Commission is vested with the power to inquire into allegations of anti-competitive agreements or acts of commission or omission constituting abuse of dominant position or combinations violative of the prescription of law, by detailed provisions contained in Sections 19 and 20, such power to be exercised upon receipt of information, or complaint, or on its own motion, or upon reference.", "For its aid and assistance, the Director General (appointed under Section 16) is vested with the duty to investigate , when so directed by the Commission.", "The duties, powers and functions of the Commission are spelt out by the legislation (in the Chapter IV), the same including the authority to issue orders of certain nature viz., orders by Commission after inquiry into agreements or abuse of dominant position (Section 27) division of enterprise enjoying dominant position (Section 28) orders of Commission on certain combinations (Section 31) acts taking place outside India but having an effect on competition in India (Section 32) power to issue interim orders (Section 33) compensation in case of contravention of orders of Commission (Section 42-A) power to impose penalty for non-furnishing of information on combinations (Section 43-A).", "The Commission also has the jurisdiction to impose monetary penalty in certain other situations including penalty for failure to comply with directions of the Commission and Director-General penalty for making false statement or omission to furnish material information (Section 44) besides penalty for offences in relation to furnishing of information (Section 45).", "The Commission has been vested with the jurisdiction for execution of its orders imposing monetary penalty and, for this, the procedure is indicated in Section 39.", "The failure to comply with the directions, or orders, of the Commission under Sections 27, 28, 31, 32, 33, 42-A and 43-A is made punishable with fine to be determined by the Commission, in terms of Section 42(2).", "The provision contained in Section 42(3) renders noncompliance with the orders or directions issued, or failure to pay fine imposed under Section 42(2), a penal offence which is triable by the court of Chief Metropolitan Magistrate, Delhi (CMM), cognizance thereof be taken on a complaint.", "The Commission is conferred, by Section 36(2), for purposes of its inquiry , with the powers of the civil court under the Code of Civil Procedure, 1908 in certain matters including summoning or enforcing attendance of any person, requiring discovery and production of documents, requisitioning any public record or document, receiving evidence on affidavit or on commission, etc.", "These powers of the Commission are also extended to and conferred upon the Director General by Section 41(2) for purposes of its investigation .", "It is in the above context that the failure to comply with the processes, orders or directions of the commissions or of the Director General are likely to be visited by penalty as envisaged by Section 43 which reads thus:- Penalty for failure to comply with directions of Commission and Director-General.", "- If any person fails to comply, without reasonable cause, with a direction given by- The Commission under sub-sections (2) and (4) of section 36 or The Director-General while exercising powers referred to in sub- section (2) of section 41, such person shall be punishable with fine which may extend to rupees one lakh for each day during which such failure continues subject to a maximum of rupees one crore, as may be determined by the Commission.", "The clause contained in sub-Section (3) of Section 42 is the only offence prescribed by the Competition Act, the jurisdiction to deal with which is conferred on the Chief Metropolitan Magistrate of Delhi, the pre-requisite being a complaint made by the Commission or any of its officers on its behalf.", "This offence is provided, with punishment thereby attracted indicated, (in Chapter-VI), under the heading of penalties.", "Noticeably, the power to impose penalties that can be levied under the law in various fact-situations is conferred on the Commission itself.", "Section 42 needs to be quoted verbatim:- Contravention of orders of Commission.- The Commission may cause an inquiry to be made into compliance of its orders or directions made in exercise of its powers under the Act.", "If any person, without reasonable cause, fails to comply with the orders or directions of the Commission issued under Sections 27, 28, 31, 32, 33, 42A and 43A of the Act, he shall be punishable with fine which may extent to rupees one lakh for each day during which such non-compliance occurs, subject to a maximum of rupees ten crore, as the Commission may determine.", "If any person does not comply with the orders or directions issued, or fails to pay the fine imposed under sub-section (2), he shall, without prejudice to any proceeding under section 39, be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to rupees twenty-five crore, or with both, as the Chief Metropolitan Magistrate, Delhi may deem fit: Provided that the Chief Metropolitan Magistrate, Delhi shall not take cognizance of any offence under this section save on a complaint filed by the Commission or any of its officers authorised by it.", "OPINION OF COURT It is the argument of the petitioners that the penal offence under Section 42(3), triable by a criminal court, has to be construed in light of the clause immediately preceding it that is to say sub-section (2) of Section 42 which, in turn, refers to the failure in compliance with the orders or directions of the Commission under specified provisions of the Competition Act, such provisions not including the one for penalty imposed under Section 43.", "It is argued that since failure to pay penalty under Section 43 is not failure to comply with the orders or directions within the meaning of Section 42(2), such failure cannot lead to prosecution for the offence under Section 42(3).", "It is also the argument of the petitioners that the provision contained in Section 42 is to deal with the situations arising out of contravention of orders of Commission (as is the marginal heading) and, therefore, the failure to comply with the processes issued by the Director General during investigation, in exercise of his power under Section 41(2) cannot be equated with failure to comply with the orders of the Commission within the meaning of Section 42(3).", "It is further the submission of the petitioners that the failure to comply with processes of the Commission under Section 36 or of the Director General under Section 41 attracts penalty in terms of Section 43, as has been imposed in the present cases, prosecution for the offence under Section 42(3) would be in the nature of double jeopardy prohibited by Article 20(2) of the Constitution of India.", "The above arguments do not impress this court.", "The reasons may be set out hereinafter.", "It is well settled that use of a comma and word or between two parts of a clause makes the two parts disjunctive.", "In Union of India vs Rabinder Singh,  : (2012) 12 SCC 787, while construing similarly placed clause appearing in Section 42(f) of the Army Act, 1950, it was observed thus:- We accept the submission of Shri Tripathi that the two parts of Section 52(f) are disjunctive, which can also be seen from the fact that there is a comma and the conjunction or between the two parts of this clause (f) viz. does any other thing with intent to defraud, and (ii) to cause wrongful gain to one person or wrongful loss to another person.", "If the legislature wanted both these parts to be read together, it would have used the conjunction and.", "As we have noted earlier in Vimla  : AIR 1963 SC 1572 it was held that the term fraudulently is wider than the term dishonestly which however, requires a wrongful gain and a wrongful loss.", "The appellants had charged the respondent for acting with intent to defraud, and therefore it was not necessary for the appellants to refer to the second part of Section 52(f) in the charge.", "The reliance by the Division Bench on the judgment in section Harnam Singh  : (1976) 2 SCC 819 to justify the conclusions drawn by it was clearly erroneous.", "Similarly, in A.K. Gopalan vs State of Madras,  : AIR 1950 SC 27, while interpreting Article 22(7) of the Constitution of India, it was held thus:- Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of Article 22(7).", "It is argued that Article 22(7) permits preventive detention beyond three months, when Parliament prescribes the circumstances in which, and the class or classes of cases in which , a person may be detained.", "It was argued that both these conditions must be fulfilled.", "In my opinion, this argument is unsound, because the words used in Article 22(7) themselves are against such interpretation.", "The use of the word which twice in the first part of the sub-clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive.", "Such argument might have been possible (though not necessarily accepted) if the article in the Constitution was the circumstances and the class or classes of cases in which .", "I have no doubt that by the clause, as worded, the legislature intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section.", "This contention therefore fails.", "The view taken in Sambhu Nath Sarkar vs State of West Bengal, : (1973) 1 SCC 856, is similar.", "Noticeably, in the clause defining the offence punishable under Section 42(3), the failure to pay the fine imposed under sub-section (2) of Section 42 is included as one of the possible reasons leading to such criminal action, it being provided by a disjunctive clause, the words or fails to pay the fine imposed under sub-section (2) being preceded and followed by a comma.", "The comma (,) appearing prior to the said words separates it from the words if any person does not comply with the orders or directions issued.", "The use of comma (,) is with a purpose.", "It indicates that a cause of action for criminal complaint to be filed in the court of CMM arises in two possible situations, viz., (1) there has been a failure on the part of a person to comply with the orders or directions issued to him under the law or (2) on account of failure to pay fine imposed for non-compliance with orders or directions of the Commission under specified provisions (i.e., Sections 27, 28, 31, 32, 33, 42A and 43A), the Commission, after inquiry, having found absence of reasonable cause.", "This court does not accept the argument that the words orders and directions in the first limb of section 42(3) are to be read as qualified by reference to the failure to pay the fine imposed under Section 42(2) as appearing in the second limb of Section 42(3).", "It may be that the marginal heading of Section 42 refers to contravention of orders of the Commission.", "But, noticeably, only the first two sub-sections of Section 42 refer to the Commission, such words being conspicuously missing in sub-section (3), the clause which provides for the offence.", "It is clear that the legislature intended the offence thus provided to have a larger sweep, covering failure to comply with the orders or directions issued under the law, irrespective of whether they had been issued by the Commission or by its functionaries, like Director General.", "For the above reasons, the suggested interpretation of Section 42(3) of the Competition Act does not commend itself to this court.", "As regards the argument of double jeopardy, the same can be rejected by pointing out that the penalty under Section 43 is civil in nature imposed by the statutory authority (the Commission) in exercise of the powers conferred on it by the law, the criminal complaint alleging offence under Section 42(3) carrying the additional element of failure to comply further with the said direction, the criminal action even otherwise being not violative of Article 20(2), this view finding strength from the following observations of the Supreme Court in Union of India Anr.", "vs Purushottam,  : (2015) 3 SCC 779:- The Constitution of India charters a contrasting course in the context of incorporation of the doctrine of double jeopardy in that Article 20(2) postulates that: 20.", "(2) No person shall be prosecuted and punished for the same offence more than once.", "This variance from constitutional protections given in other countries has prompted us to sift through the Debates of the Constituent Assembly so as to ascertain whether autrefois convict in preference to the more preponderant autrefois acquit, was the position intended to be ordained by the drafters of our Constitution.", "These Debates bear witness to the fact that it was indeed meditated and intended.", "The original proposal was -- No person shall be punished for the same offence more than once.", "A proposed amendment whereby the words otherwise than as proposed by the Code of Criminal Procedure, 1898, was sought to be added, but was roundly rejected.", "The suggestion made by Shri Naziruddin Ahmad was that the principle should be that a man cannot be tried again, tried twice, if he is acquitted or convicted by a court of competent jurisdiction, while the conviction or acquittal stands effective A man acquitted shall also not be liable to be tried again.", "(2- 12-1948).", "On the next day, the extracted intervention of Shri T.T. Krishnamachari was accepted, sounding the death knell for autrefois acquit and leading to Article 20(2) as it stands today.", "Shri T.T. Krishnamachari (Madras: General): Mr. Vice-President, Sir, the point I have to place before the House happens to be a comparatively narrow one.", "In this Article 14, clause (2) reads thus: No person shall be punished for the same offence more than once.", "It has been pointed out to me by more Members of this House that this might probably affect cases where, as in the case of an official of Government who has been dealt with departmentally and punishment has been inflicted, he cannot again be prosecuted and punished if he had committed a criminal offence or, per contra, if a government official had been prosecuted and sentenced to imprisonment or fine by a court, it might preclude the Government from taking disciplinary action against him.", "Though the point is a narrow one and one which is capable of interpretation whether this provision in this particular clause in the fundamental rights will affect the discretion of Government acting under the rules of conduct and discipline in regard to its own officers, I think, when we are putting a ban on a particular type of action, it is better to make the point more clear.", "I recognise that I am rather late now to move an amendment.", "What I would like to do is to word the clause thus: No person shall be prosecuted and punished for the same offence more than once.", "If my Honble Friend Dr Ambedkar will accept the addition of the words prosecuted and before the word punished and if you, Sir, and the House will give him permission to do so, it will not merely be a wise thing to do but it will save a lot of trouble for the Governments of the future.", "That is the suggestion I venture to place before the House.", "It is for the House to deal with it in whatever manner it deems fit.", "It would be relevant to mention that modern jurisprudence is presently partial to the perusal of Parliamentary Debates in the context of interpreting statutory provisions, although earlier this exercise was looked upon askance.", "Suffice it to mention the analysis of the Constitution Bench in R.S. Nayak v. R. Antulay  : (1984) 2 SCC 183 and in Haldiram Bhujiawala v. Anand Kumar Deepak Kumar  : (2000) 3 SCC 250 and particularly Samatha v. State of A.P. : (1997) 8 SCC 191, where Parliamentary Debates were studied by this Court.", "It appears to be beyond debate that the Framers of our Constitution were fully alive to the differing and disparate concepts of autrefois acquit and autrefois convict and consciously chose to circumscribe the doctrine of double jeopardy only to prosecution culminating in a conviction.", "This facet of the law has already been carefully considered by the Constitution Bench in Maqbool Hussain v. State of Bombay,  : AIR 1953 SC 325, and we cannot do better than extract the relevant portions therefrom: (AIR pp.", "328-29, paras 7 11-12) The fundamental right which is guaranteed in Article 20(2) enunciates the principle of autrefois convict or double jeopardy.", "The roots of that principle are to be found in the well-established rule of the common law of England that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence.", "(Per Charles, J. in R. v. Miles (1890) LR 24 QBD 423: (1886-90) All ER Rep 715 (CCR).", "To the same effect is the ancient maxim Nimo Bis Debet Puniri Pro Uno Delicto, that is to say that no one ought to be twice punished for one offence or as it is sometimes written Pro Eadem Causa, that is, for the same cause.", "These were the materials which formed the background of the guarantee of fundamental right given in Article 20(2).", "It incorporated within its scope the plea of autrefois convict as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.", "The words before a court of law or judicial tribunal are not to be found in Article 20(2).", "But if regard be had to the whole background indicated above it is clear that in order that the protection of Article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath.", "The very wording of Article 20 and the words used therein--convicted, commission of the act charged as an offence, be subjected to a penalty, commission of the offence, prosecuted, and punished, accused of any offence, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.", "Keeping in perspective this exposition of double jeopardy as postulated in our Constitution, the obiter dicta in State of Bihar v. Murad Ali Khan  : (1988) 4 SCC 655: 1989 SCC (Cri.) 27, expressed on passant by the two-Judge Bench does not correctly clarify the law, as this view is contrary to the dictum of the Constitution Bench Maqbool Hussain v. State of Bombay,  : AIR 1953 SC 325 : 1953 Cri.", "L.J. 1432: 1953 SCR 730, which was not brought to the notice of the Bench.", "The US Supreme Court has extensively excogitated over the conundrum as to what constitutes a successive punishment for the purposes of attracting constitutional protection against double jeopardy, under the Fifth Amendment.", "The Court, in Hudson v. United States Hudson v. United States, 139 L Ed 2d 450:  : 522 US 93(1997), affirmed the distinction between civil punishment and proceedings and criminal punishment and prosecution, and held that the Fifth Amendment proscribes two (or more) successive punishments or prosecutions of a criminal nature only, and permits civil punishment or proceedings either preceding or succeeding a criminal prosecution or punishment.", "In the case before the US Supreme Court, John Hudson was the Chairman of the First National Bank of Tipton and the First National Bank of Hammon, and used his position to regain bank stock he had used as collateral on defaulted loans through a series of bank loans to other parties.", "Upon investigation the Office of the Comptroller of Currency (OCC) found that the loans were made in violation of several banking statutes and regulations.", "The OCC fined and debarred Hudson for the violations.", "Later, he faced criminal indictment in the Federal District Court for violations tied to those same events.", "Hudson objected, arguing that the indictment violated the double jeopardy clause of the Fifth Amendment.", "Overruling United States v. Halper  : 104 L Ed 2d 487: 490 US 435(1989), wherein the Court had ruled as unconstitutional successive proceedings taking place in similar circumstances to Hudsons case, the Court in Hudson Hudson v. United States,  : 139 L Ed 2d 450: 522 US 93(1997) reaffirmed the distinction established between the civil and criminal nature of the particular successive punishment, in United States v. Ward 65 L Ed 2d 742: 448 US 242 (1980).", "The US Supreme Court thus held in Hudson case Hudson v. United States,  : 139 L Ed 2d 450: 522 US 93 (1997) that the double jeopardy clause did not preclude his subsequent criminal prosecution, because the OCC administrative proceedings were civil, not criminal.", "Inter alia, the civil nature of the punishment was ascertained with reference to the money penalties statutes express designation of their sanctions as civil.", "This reference indubitably eases the resolution of the double jeopardy question in the present appeal.", "As has been detailed earlier, Article 20(2) does not within it imbibe the principle of autrefois acquit.", "The Fifth Amendment safeguards, inasmuch as it postulates both autrefois acquit and autrefois convict, could have been interpreted to prohibit civil punishment even in the wake of an acquittal in prosecution, but was not found by the US Supreme Court to do so.", "A fortiori Article 20(2), which contemplates prosecuted and punished thus evincing the conscious exclusion of autrefois acquit, palpably postulates that the prescribed successive punishment must be of a criminal character.", "It irresistibly follows that departmental or disciplinary proceedings, even if punitive in amplitude, would not be outlawed by Article 20(2).", "The petitioner in the second and third captioned matters has raised questions of fact about extent of his responsibilities, his ignorance, non-service of some of the notices or processes, generally referring to cessation of his role as the Honorary Secretary of FDA after 30.10.2013.", "These questions of fact would need inquiry and scrutiny of evidence.", "The forum of Section 482 Cr.", "P.C. is not the correct one to embark upon such inquiry Rajiv Thapar and Ors.", "Madan Lal Kapoor,  : (2013) 3 SCC 330.", "For the foregoing reasons, these petitions cannot be accepted.", "There are no good grounds as to why the criminal action initiated in the court of Chief Metropolitan Magistrate should be interfered with by this court at this stage.", "The petitions are 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+{"id": "HC_Rajkumar_Dyeing_and_Printing_Works_Private_LimitedD142987COM899109", "text": ["Vibhu Bakhru, J. 1 .", "These petitions call into question the penalties imposed by the Competition Commission of India (hereafter CCI) for non-filing of undertakings to cease and desist from anti-competitive conduct, within the time period as directed by CCI.", "As the petitions impugn a common order, the same have been taken up together.", "The petition, W.P.(C) Number 6260/2014 has been filed by M section R S Industries (hereafter RSI) and the petition, W.P.(C) Number 5947/2014 has been filed by M section Rajkumar Dyeing Printing Works Pvt.", "Limited (hereafter Rajkumar Dyeing) inter alia seeking quashing of a common order dated 06.08.2014 (hereafter the impugned order) passed by CCI in Ref.", "Case Number 1/2012 whereby CCI imposed a penalty of a sum of 5000/- per day on each of the petitioners, which works out to 14,10,000/- in the case of RSI and 13,65,000/- in case of Rajkumar Dyeing.", "The said penalties were imposed under Section 42 of the Competition Act, 2002 (hereafter the Act) for failure on part of the petitioners to comply with the direction to file an undertaking to cease and desist from anti-competitive conduct in future, as ordered by CCI in its order of 06.08.2013 passed under section 27 of the Act.", "Briefly stated, the relevant facts necessary for addressing the controversy are as under:- 3.1 The Directorate General of Supplies Disposals (DGSD) issued parallel Rate Contract tenders for supply of Polyster Blended Duck Ankle Boot with Rubber Sole (hereafter the product) for the period 01.12.2011 to 30.11.2012.", "Amongst others, both the petitioners also participated in the tender which was opened on 29.07.2011.", "2 DGSD noticed that the difference in the prices quoted by different bidders was in a very narrow range and all the bidders, barring one, had restricted the quantity to be supplied by it during the Rate Contract period.", "This led DGSD to file a reference (Ref. Case Number 1/2012) before CCI under Section 19(1)(b) of the Act, against all the bidders including the petitioners, inter alia, alleging bid rigging and market allocation.", "It was alleged that the participation in the tender was pre-determined, collusive and the bidding pattern was restrictive, indicating formation of a cartel by the bidders in violation to the provisions of the Act.", "3.3 On 08.05.2012, CCI recorded a prima facie opinion, under Section 26(1) of the Act, that a case of contravention of the provisions of the Act was made out and referred the matter to Director General (DG) to conduct an investigation and submit its report.", "DG submitted its report to CCI on 26.12.2012.", "Thereafter, on 06.08.2013, CCI passed an order under Section 27 of the Act, inter alia, directing the bidders to cease and desist from anticompetitive conduct in future and also file an undertaking to that effect within a period of 30 days from the date of receipt of the order.", "3.4 The petitioners and others bidders filed appeals against CCIs order of 06.08.2013, under Section 53B of the Act before the Competition Appellate Tribunal (hereafter COMPAT).", "By a common order dated 22.04.2014, COMPAT allowed the interim applications by directing the appellants (other than RSI), to deposit 5 of the penalty imposed by CCI.", "In the case of RSI, COMPAT granted a complete stay of penalty.", "However, CCIs direction to cease and desist from anti-competitive conduct was not interfered with.", "5 CCI, thereafter, issued show cause notices dated 30.05.2014, under Section 42 of the Act read with Regulation 48 of the Competition Commission of India (General) Regulation, 2009, (hereafter the Regulations 2009) to the petitioners who had failed to file the undertakings to cease and desist from anti-competitive conduct.", "After receipt of the notices, the petitioners filed the requisite undertakings.", "3.6 By the impugned order, CCI observed that the petitioners had failed to file the undertakings as directed because Rajkumar Dyeing and RSI were required to file their respective undertakings on 20.09.2013 and 15.09.2013 and the same were filed on 20.06.2014 and 24.06.2014 respectively.", "In the circumstances, CCI passed the impugned order imposing penalty for noncompliance of its order.", "The learned counsel appearing for the petitioners submitted that the non-filing of the undertaking within the prescribed time was neither intentional nor deliberate and there were reasonable causes which CCI failed to examine and consider.", "Therefore, CCI had acted de hors its powers under Section 42 of the Act in passing the impugned order.", "It was submitted that, in the alternative, the penalty of 5,000/- per day was grossly disproportionate in facts and circumstances of the case as CCI failed to take into account various factors that were relevant for determining the quantum of penalty.", "It was submitted that CCI failed to take into account that the petitioners are small scale industries and had not willfully acted in defiance of CCIs order.", "The learned counsel for RSI drew the attention of this court to the fact that RSI had been de-registered as a small scale industry with DGSD on 21.12.2011 and had neither supplied any products under the Rate Contract in question nor could possibly participate in any other DGSD tender on account of its de-registration.", "The learned counsel for Rajkumar Dyeing pointed out that Rajkumar Dyeing and other bidders were blacklisted by DGSD after the CCIs order dated 06.08.2013 and thus were disabled from participating in future tenders with regard to the product.", "In the circumstances, there was no question of the bidders indulging in any anti-competitive conduct.", "Further, the petitioners did not benefit in any manner from not filing the undertaking in question.", "It was also contended on behalf of the petitioners that the show cause notices were defective and invalid as the period for which the purported penalty was sought to be imposed was not mentioned in the notice.", "Consequently, the proceedings emanating therefrom were also contended to be invalid.", "It was further submitted that the impugned order is violative of Article 14, Article 19(1)(g) and Article 300-A of the Constitution of the India.", "The learned counsel for CCI submitted that the petitioners have not challenged the order dated 22.04.2014 of COMPAT and the relief of stay of direction of CCI to file undertakings to cease and desist from anticompetitive conduct was rejected.", "It was submitted that the show cause notice was issued to the petitioners for not complying with the directions of CCI and the penalty was imposed by CCI in view of the admissions made by the petitioners.", "The learned counsel for CCI referred to Regulation 36 of the Regulations 2009 and stressed that the levy of penalty for non- filing of the undertaking as directed was within the powers of CCI.", "It was submitted that the pendency of appeal before COMPAT or the interim stay of penalty granted by COMPAT would not inhibit CCI from passing an order under Section 42 of the Act, particularly as COMPAT had declined to stay CCIs direction to file an undertaking to cease and desist from anti-competitive conduct.", "In the aforesaid backdrop, the controversy that needs to be addressed is whether the levy of penalty of 13,65,000/- in case of Rajkumar Dyeing and 14,10,000/- in case of RSI is arbitrary and or unreasonable.", "CCI by its order dated 06.08.2013 had found that the petitioners had indulged in bid rigging collusive bidding and had contravened the provisions of Section 3(1) read with Section 3(3)(a) and 3(3)(d) of the Act.", "Further, CCI also held that the petitioners had controlled limited the supply of the product in question and shared the market of the product under an agreement arrangement and thus, acted in contravention of the provisions of Section 3(1) read with Section 3(3)(b), (c) (d) of the Act.", "In view of the above findings, CCI imposed a penalty at the rate of 5 of the average annual turnover of the delinquent entities for the preceding three years.", "In addition, the entities including the petitioners were directed to cease and desist from indulging in such anti-competitive conduct in future.", "CCI also directed the parties to file an undertaking by way of compliance.", "The findings of CCI with respect to anti-competitive conduct of the petitioners, the imposition of penalty and the direction to cease and desist from anti-competitive conduct as ordered by CCI in its order of 06.08.2013 under Section 27 of the Act, are not subject matter of dispute in the present petition an appeal has been preferred by the petitioners against the said order before COMPAT.", "However, the directions issued by CCI to cease and desist from anti-competitive conduct and for filing an undertaking to the said effect are relevant for the present proceedings and the relevant extract from CCIs order dated 06.08.2013 is quoted below:- In view of the above discussion, the Commission directs the opposite parties to cease and desist from indulging in such anti-competitive conduct in future.", "xxxx xxxx xxxx xxxx xxxx 5 0 .", "The directions contained in para 48 above, should be complied with immediate effect and the opposite parties are also directed to file an undertaking to this effect within a period of 30 days from the date of receipt of this order.", "The petitioners had also sought interim relief from COMPAT and although the imposition of penalty was stayed in the case of RSI, other entities including Rajkumar Dyeing were directed to deposit 5 of the penalty imposed by CCI.", "However, COMPAT did not stay the cease and desist order of CCI.", "The relevant extract of COMPATs order of 22.04.2014 is as under:- Be that as it may.", "We find that there is a prima facie case for grant of interim orders.", "While considering the fact as to whether the appellants are entitled to absolute stay of the impugned order, the learned counsel for the appellants urged that they are already facing a dire financial calamity on account of the impugned order and there is every likelihood that the industry would come to a grinding halt.", "That of course does not seem to be such a possibility at least in the near future.", "The fact of the matter is that all these manufacturers are small scale industries and there should be at least encouragement to such industries to grow.", "However, the absolute stay is not possible in view of the proved allegations against these appellants.", "We, therefore, direct the stay of the operation of the order passed by the CCI in so far as it pertains to the penalty aspect subject to the condition that these appellants shall deposit 5 of the penalty imposed by the CCI within two months from today.", "It is made clear that if the penalty is not paid as has been ordered above, the appeal itself shall be treated to be dismissed without further reference to this Tribunal.", "However, in I.A. Number 80/2013 in Appeal Number 43/2013, the situation is slightly different.", "The learned counsel for the appellant makes a statement which is not controverted by the other side that the concerned manufacturer has not made any supplies under the present Rate Contract as no order was sent to him perhaps on account of the fact that the appellant concern has lost its registration as a small scale industry with the DGSD because of the internal family disputes.", "In that case, the appellant is justified in praying for an absolute stay of the penalty.", "We, therefore, order accordingly.", "In all the matters, the Tribunal does not see any necessity of staying the cease desist order of the CCI.", "Thus this order shall continue.", "It is important to note that COMPAT had stayed the deposit of 95 of the penalty in all cases and granted a complete stay in the case of RSI for the reason that all entities were small scale industries and small scale industries required encouragement to grow.", "COMPAT also noted the submission that the appellants were facing hardships on account of blacklisting pursuant to the orders passed by CCI.", "In the case of RSI, COMPAT also noted that the manufacturer had not made any supplies under the Rate Contract and had further lost its registration with DGSD.", "Before proceeding further, it would be apposite to consider the provisions of Section 27 of the Act which provides for the orders that can be passed by CCI after it has found contravention of Section 3 or 4 of the Act.", "Section 27 is quoted below:- Orders by Commission after inquiry into agreements or abuse of dominant position. - Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:- (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be (b) impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher. (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any (g) pass such other order or issue such directions as it may deem fit: Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.", "It is apparent from the plain reading of Section 27 of the Act that CCI has the power to impose such penalty as it deems fit, which is not more than 10 of the average annual turnover of the delinquent entities for the preceding three financial years.", "This is a substantive provision which circumscribes the power of CCI to impose penalty.", "In addition, CCI also has the power to direct that the parties involved in an offending agreement arrangement, discontinue the same and not enter into such agreement in future.", "The directions passed by CCI in its order of 06.08.2013, imposing penalty and directing the opposite parties (i.e. all bidders including the petitioners) to cease and desist from indulging in anticompetitive conduct in future, are clearly covered within the provisions of Section 27 of the Act the direction to file an undertaking to cease and desist from anti-competitive conduct, was only to aid and ensure compliance of the cease and desist direction as contained in paragraph 48 of the said order.", "It is, thus, apparent that, in substance, the order passed under Section 27 of the Act by CCI was one of imposing penalty and directing the parties to cease and desist from anti-competitive conduct in future.", "In this perspective, the direction to file an undertaking was not a part of the substantive measures taken by CCI.", "It was necessary for CCI to bear this aspect in mind while considering imposition of penalty under Section 42 of the Act.", "At this stage, it is necessary to refer to Section 42 of the Act which reads as under:- Contravention of orders of Commission.- (1) The Commission may cause an inquiry to be made into compliance of its orders or directions made in exercise of its powers under the Act.", "If any person, without reasonable cause, fails to comply with the orders or directions of the Commission issued under sections 27, 28, 31, 32, 33, 42A and 43A of the Act, he shall be punishable with fine which may extend to rupees one lakh for each day during which such non-compliance occurs, subject to a maximum of rupees ten crore, as the Commission may determine.", "If any person does not comply with the orders or directions issued, or fails to pay the fine imposed under subsection (2), he shall, without prejudice to any proceeding under section 39, be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to rupees twenty-five crore, or with both, as the Chief Metropolitan Magistrate, Delhi may deem fit: Provided that the Chief Metropolitan Magistrate, Delhi shall not take cognizance of any offence under this section save on a complaint filed by the Commission or any of its officers authorised by it.", "It is apparent from the above that penalties as contemplated under Section 42(2) of the Act are levied as a punitive measure for noncompliance of orders including orders under Section 27 of the Act.", "Given the nature of penalties and the wide discretion vested with CCI, the same are to be considered keeping in view several relevant factors including the nature of directions that have remained uncomplied - whether they are substantive or merely formal, the effect of such non-compliance, the intention of the parties accused of non-compliance, the benefit derived by such parties, causes for non-compliance.", "Penalties by their very nature are punitive measures and thus, have to be considered in light of the gravity of the offence in respect of which they are imposed.", "In the present case, there is no allegation that the petitioners had indulged in any anti-competitive conduct or had failed to comply with the directions to cease and desist from anti-competitive conduct as directed by CCI.", "In the case of R.S. Industries, W.P.(C) 6260/2014, the petitioner (RSI) had lost its registration with DGSD on 21.12.2011.", "Thus even prior to the information being filed with CCI and CCI recording its prima facie opinion, the petitioner had ceased to be a DGSD Rate Contractor.", "Consequently, the petitioner had neither participated in the Rate Contract nor was capable of doing so.", "In the circumstances, the question of the petitioner entering into any arrangement or bid rigging or indulging in anticompetitive conduct proscribed by CCI, did not arise.", "In W.P.(C) 5947/2014, the petitioner - Rajkumar Dyeing was blacklisted and debarred from participating in Rate Contract by the DGSD after CCIs order of 06.08.2013 and so were other bidders.", "In the given circumstances, it is amply clear there was neither any allegation that the petitioners had failed to comply with the cease and desist order nor in fact the petitioners could have indulged in an anti competitive conduct after CCIs order of 06.08.2013.", "Thus, in the present case, CCI has imposed penalty even though CCIs cease and desist order was not violated and had been fully complied with.", "Essentially, the petitioners have been faulted for not filing an undertaking, which direction - as stated earlier - was only in aid of the substantive cease and desist order.", "The learned counsel appearing for CCI argued that CCI had acted fully within its jurisdiction in directing an undertaking to be filed in exercise of its powers under Regulation 36 of the Regulations 2009.", "The said Regulation 36 reads as under:- Compliance of orders of Commission.-The Commission shall have power to direct the parties concerned to file an affidavit of compliance of its order or such other documents in the manner specified in its order.", "The plain language of Regulation 36 of the Regulations 2009 clearly supports the view that the direction to file an undertaking was, in substance, a direction seeking compliance of the substantive orders passed under Section 27 of the Act, namely, the directions to cease and desist from anticompetitive conduct.", "It was contended on behalf of CCI that COMPAT had rejected the interim prayer for stay of the direction for filing an undertaking to cease and desist from anti- competitive conduct as directed by CCI.", "However, this is not entirely accurate.", "COMPAT had not found the necessity to interfere with CCIs direction to cease and desist and had declined to stay the same the question of filing the undertaking was not commented upon by COMPAT as the same was merely in aid to ensure compliance to the cease and desist order COMPAT did not in any manner either enhance or dilute the substantive direction to cease and desist from anti-competitive conduct as issued by CCI.", "In the aforesaid view, I find the penalty imposed by CCI to be shockingly disproportionate, as it has been imposed only on account of non-filing of a document in aid of compliance of a substantive direction that was, undisputedly, complied with.", "The doctrine of proportionately is well established in our jurisprudence and is a recognised facet of Article 14 of the Constitution of India.", "Article 14 of the Constitution of India strikes at arbitrariness, as the same is opposed to the rule of law.", "The Supreme Court in the case of A.P. Dairy Development Corpn.", "Federation v. Narasimha Reddy:  : (2011) 9 SCC 286 has held as under:- It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality.", "This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature.", "Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone.", "In recent years, in matters relating to punitive measures, the emphasis has shifted from the wednesbury principle of unreasonableness to one of proportionality.", "A disproportionate punitive measure, which is not commensurate with the offence, would fall foul of Article 14 of the Constitution of India.", "The Supreme Court in Coimbatore District Central Coop.", "Bank v. Employees Assn.", ":  : (2007) 4 SCC 669 observed as under:- Doctrine of proportionality So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay.", "With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts.", "If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review.", "One of such modes of exercising power, known to law is the doctrine of proportionality.", "Proportionality is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision.", "The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case.", "The doctrine of proportionality thus steps in focus true nature of exercise-the elaboration of a rule of permissible priorities.", "de Smith states that proportionality involves balancing test and necessity test.", "Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative.", "Judicial Review of Administrative Action (1995), pp.", "601-05, para 13.085 see also Wade Forsyth: Administrative Law (2005), p. 366.", "xxxx xxxx xxxx xxxx xxxx Applying the doctrine of proportionality and following CCSU (1984) 3 All ER 935 (HL), Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25) The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial.", "But the sentence has to suit the offence and the offender.", "It should not be vindictive or unduly harsh.", "It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.", "The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.", "Irrationality and perversity are recognised grounds of judicial review.", "(emphasis supplied) Applying the aforesaid principles to the facts of the present case, it is clear that CCI has imposed a punitive measure which has little co-relation with the gravity of the offending acts.", "In my view, the impugned order even fails the Wednesbury test of unreasonableness, which was explained by Lord Diplok in Council of Civil Service Unions v Minister for Civil Service: (1984) 3 All ER 935 as So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.", "The learned counsel for CCI sought to draw the attention of this court to various provisions of the Act and contended that CCI has wide discretion and extensive powers.", "Undoubtedly so.", "But, greater the powers, larger the responsibility on the authority vested with it to exercise the same judicially and in public interest.", "The question involved in the present case is not one of width of CCIs power but the exercise of it.", "The discretion vested with CCI has to be exercised in a reasonable manner and after considering the relevant factors.", "In Associated Provincial Picture Houses v. Wednesbury Corporation: 1948 1 KB 223 Lord Greene, M.R had explained acting unreasonably as under:- It is true the discretion must be exercised reasonably.", "Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word unreasonable in a rather comprehensive sense.", "It has frequently been used and is frequently used as a general description of the things that must not be done.", "For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law.", "He must call his own attention to the matters which he is bound to consider.", "He must exclude from his consideration matters which are irrelevant to what he has to consider.", "If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably.", "The Supreme Court in the case Indian Rly.", "Construction Company Limited v. Ajay Kumar:  : (2003) 4 SCC 579 also considered and noted the decision of Wednesbury Corporation (supra) and held has under:- Therefore, to arrive at a decision on reasonableness the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors.", "The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one.", "It is well settled that discretion with the public authority must be applied after taking into account relevant considerations.", "In the present case, CCI failed to apply its mind to most of the relevant considerations.", "First of all, CCI has not taken into account that its substantive direction to cease and desist from anti-competitive conduct had not been violated.", "Secondly, CCI has not considered any element of public interest, warranting an imposition of such penalty.", "Undisputedly, in absence of violation of the cease and desist order, the failure on the part of the petitioners to file an undertaking did not have any adverse effect on public interest.", "CCI seemed to have completely ignored this aspect.", "It is also clear that the petitioners did not benefit from non-filing of the undertaking and there was no reason why the petitioners contention that there failure to file undertaking was untentional, should not have been accepted.", "I find it also strange that CCI did not consider fit to be guided by the order dated 22.02.2014 passed by COMPAT which had considered the mitigating circumstances and stayed the deposit of penalty to the extent of 95 in case of Rajkumar Dyeing and entirety in the case of RSI.", "COMPAT had stayed the penalty on account of the petitioners being small scale industries.", "This consideration was completely ignored by CCI.", "It is relevant to note that CCI in impugned order observed as under:- It is also observed that OP 6 and OP 9 did not file the undertaking even after the COMPAT order dated 22nd April 2014, wherein, it was clearly stated by COMPAT that there is no stay against the Commissions direction to the OPs to file cease and desist undertaking as required by the Commissions order dated 6th August 2013.", "This observation made by CCI is also erroneous and misquotes the order passed by COMPAT.", "COMPAT had not commented on the cease and desist undertaking in its order of 22.04.2014 but had expressed that it does not see any necessity of staying the cease desist order of the CCI.", "Thus, not only CCI has overlooked the reasons of COMPAT for staying the penalty imposed by CCI, it has also sought to justify the levy of penalty by misquoting the operative part of COMPATs order of 22.04.2014.", "In view of the aforesaid, the impugned order is, clearly, without application of mind and has been passed in wanton exercise of powers, ignoring the relevant factors and the 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+{"id": "HC_Union_of_India_vs_Sarathi_Enterprises_20042015__BOMH201522041523282861COM510907", "text": ["D. Dhanuka, J. By this petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short the said Arbitration Act), the petitioner has impugned the arbitral award dated 6th March 2013 allowing some of the claims made by the respondent and rejecting the counter claims made by the petitioner.", "Some of the relevant facts for the purpose of deciding this petition are as under : The respondent was the original claimant in the arbitral proceedings whereas the petitioner herein was the original respondent.", "Pursuant to a notice inviting tenders issued by the petitioner, the respondent submitted its bid for providing and fixing vitrified tiles flooring over existing flooring from ground to sixth floor at Aayakar Bhavan, Mumbai.", "On 22nd July 2010, the petitioner issued a letter of acceptance in favour of the respondent in respect of the said work.", "The petitioner requested the respondent to arrange to start the work at once as 12 months time was given for completing the same.", "The bid of the respondent was the lowest bid.", "The respondent had quoted an amount of Rs.1,62,44,100/-which was 6.22 below the estimated cost of Rs.1,73,21,362/-.", "The parties, thereafter, signed the contract agreement.", "Special Condition Number 8 of the contract provided that unless otherwise specified, the brand make of the material, as specified in the item, nomenclature shall be used in the work.", "In case of non availability of the brand specified in the contract, the contractor shall be allowed to use alternate equivalent brand of material subject to submission of documentary evidence of non availability of the specified brand.", "It is the case of the petitioner that the respondent had considered all the aspects in the tendered documents and had quoted its rates keeping in view the prevailing market rates for various items inclusive of vitrified tiles of size 60x60 cm manufactured by M s.", "H R Johnson (India) Limited having the brand known as NUVOLTA DC OBERON DC.", "It is the case of the petitioner that only in case of non availability of the brand specified in the contract, the respondent could be allowed to use alternate equivalent brand of material after submission of documentary evidence of non availability of the specified brand.", "Since the respondent was not providing and fixing vitrified tiles as per the terms of the agreement, the petitioner issued a show cause notice on 7th October 2010 calling upon the respondent to show cause as to why an action against the respondent be not taken against the respondent on account of the breach of the contract.", "The respondent replied to the said show cause notice vide letter dated 27th October 2010.", "By a letter dated 16th November 2010, the petitioner issued a letter thereby determining the contract and informing the respondent that the earnest money deposit and the security deposit were already recovered and the performance guarantee stood absolutely forfeited to the government and should be absolutely at the disposal of the government.", "The respondent was further informed that the petitioner would take out such part of the work out of hand of the respondent as remained unexecuted for giving it to another contractor to complete the work and then the respondent shall have no claim for compensation for any loss sustained by the respondent by reasons of the respondent having purchased or procured any materials or entered into any engagements or made any advances on account of or with a view to the execution of work or performance of the contract.", "The said letter was without prejudice to the rights of the petitioner to take action under any other clauses or sub-clauses of the agreement and to realize government dues and losses and damages whatsoever under those provisions of the contract.", "The respondent by its advocates letter dated 26th November 2010 responded to the said letter dated 16th November 2010 and alleged that the repeated pressurizing tactics for the use of Johnson tiles despite the fact that the contract provided otherwise was a clear abuse of dominant position.", "The respondent placed reliance on Section 4 of the Competition Act, 2002 in support of this contention.", "In the said letter, the respondent alleged that the respondent had always shown inclination towards performance on its part of contract and had always shown willingness to use equivalent brand for executing the work, however, the petitioner never approved the equivalent brand though the contract provided for supply of the equivalent brand.", "By the said letter, the respondent conveyed that the respondent was still ready and willing to execute the said work subject to approval of equivalent brand.", "The respondent conveyed that if the petitioner was insisting on execution of work with H R Johnson, the respondent will request the petitioner to foreclose the contract and refund the performance guarantee amount without liability on either side.", "The respondent reserved its right to claim damages, if the said proposal was not acceptable to the petitioner.", "By a letter dated 7th December 2010, the petitioner replied to the legal notice dated 26th November 2010 and conveyed the respondent that sufficient time was given from the date of the award of the contract till the issuance of final notice as per the contract but the respondent had failed to start the work.", "It was also conveyed that all the bidders were made clear to have the fair competition amongst them and at no stage of tendering the process, the respondent was prohibited from participating fair competition.", "It was further stated that thus it was merely a breach of contract from the respondent and hence the final notice.", "The dispute arose between the parties.", "The matter was referred to arbitration.", "The petitioner also made enquiry with manufacturing company i.e. M s.", "H R. Johnson (India) Limited In response to the said enquiry made by the petitioner, the said M section H Johnson (India) Limited informed the petitioner that the requirement of the petitioner for DC design 600x600 Marbonite Nuvolta tiles for Income Tax Building Project at Mumbai was regular and fast moving design of their make.", "Before the learned arbitrator, the respondent made various claims.", "The said claims were resisted by the petitioner on various grounds by filing written statement.", "The petitioner also made counter claim before the learned arbitrator.", "By an arbitral award dated 6th March 2013, the learned arbitrator allowed the claim number 1 made by the respondent towards refund of earnest money deposit and performance guarantee and directed the petitioner to pay a sum of Rs.11,58,632/-to the respondent.", "In so far as the claim number 3 i.e. loss of profit demanded by the respondent is concerned, the learned arbitrator rejected the said claim.", "The learned arbitrator awarded simple interest 10 p.a. on the claim number 1 in favour of the respondent.", "The learned arbitrator directed both the parties to bear the arbitration cost.", "In so far as the counter claim made by the petitioner is concerned, the learned arbitrator rejected the same.", "This arbitral award is impugned by the petitioner on various grounds.", "Mr. Sharma, learned counsel for the petitioner invited my attention to various terms and conditions of the contract including condition number 8 of the special condition of the contract and submits that the respondent after evaluating the terms and conditions of the tender, had submitted the documents of competitive grade keeping in mind its obligation to supply various items including vitrified tiles of required size manufacturing of H R Johnson (India) Limited having a particular brand or equivalent.", "He submits that only if the said particular brand was not available as specified in the contract, the respondent could have been allowed to use the specified brand or material only after the respondent submitting the documentary evidence for non availability of the specific or equivalent brand.", "It is submitted that in response to the petitioners enquiry, the said company informed the petitioner that the requirement of the petitioner was regular brand and was available.", "He submits that the respondent thus committed breaches of the terms and conditions of the contract by not providing the particular brand specified in the contract though the same was available.", "The respondent, in any event, did not submit any documentary evidence of non- availability of the said specified brand and thus there was no question of the petitioner permitting the respondent to supply any alternate equivalent brand in view of the breach of the terms of the contract.", "Learned counsel submits that since the respondent committed a breach by not supplying the requisite brand of the material, the petitioner after giving show cause notice to the respondent and after considering reply of the respondent which was not satisfactory, the petitioner was justified in terminating the contract awarded to the respondent and in forfeiting the security deposit including performance guarantee.", "He submits that difference between the 1st lowest and the 2nd lowest bidders was more than Rs.30 lacs in the tender of estimated cost Rs.173 lacs.", "He submits that the respondent thus by quoting lower rate obtained the contract and thereafter, refused to supply material as provided in the contract in breach thereof.", "The petitioner was thus justified in forfeiting the security deposit and the performance guarantee.", "Learned counsel appearing for the petitioner then submits that the learned arbitrator has rendered a contradictory and inconsistent finding in the impugned award.", "The learned arbitrator has also held that in the absence of list of equivalent brands in the contract, the interpretation of the respondent herein was not acceptable.", "It is held that the respondent did not succeed on the basis of the contract conditions.", "He submits that on one hand, it is held by the learned arbitrator that he was inclined to agree with the petitioner herein that only M section H R. Johnson (India) Limited was to be used and in case of non-availability of M section H R. Johnson (India) Limited, equivalent brand as an alternative could have been utilized and on the other hand, the learned arbitrator after rendering such findings in favour of the petitioner has held that Special Condition Number 8 was in violation of section 23 of the Indian Contract Act, 1872 and section 3 of Competition Act, 2002 and the contract should be considered void in view of the said alleged violation.", "He submits that the provisions of Competition Act, 2002 were not applicable to the parties at all.", "The impugned award applying the provisions of Competition Act, 2002 to the parties is patently illegal.", "He submits that in the contract, the petitioner had already provided that if M section H R. Johnson Vitrified Tiles was not available, then the contractor was permitted to use alternative to the said tiles.", "Therefore the petitioner was not put on dominant position and thus question of applicability of provisions of the said Competition Act, 2002 did not arise.", "Learned counsel also invited my attention to the findings of the learned arbitrator that Income Tax Department had not specifically mentioned disregarding the statement of Department that the Income Tax Department wanted tiles as per the sample and description supplied by it.", "He submits that the said samples were answering the description of Johnson Vitrified tiles and thus it could not be said that Income Tax Department had not given its choice for the said Johnson vitrified tiles.", "He submits that the parties are always free to invite in the terms and conditions of the contract a particular quality and brand and the same would not attract the provisions of the Competition Act, 2002.", "Learned counsel for the petitioner submits that there was no prayer in the statement of claim for declaration of the Condition Number 8 of Special Conditions as void or contrary to section 23 of the Indian Contract Act.", "Learned arbitrator exceeded his jurisdiction by declaring the contract as void.", "Learned counsel for the respondent on the other hand submits that since the petitioner had given final notice on 7th December, 2010, the notice dated 16th November, 2010 issued by the petitioner was not a termination notice.", "The petitioner thus could not have forfeited the security deposit and could not have encashed the performance guarantee.", "It is submitted by the learned counsel that since the manufacturers of the said Johnson Vitrified tiles were demanding exorbitant rate, the respondent had offered to supply the equivalent tile, which the petitioner refused to accept.", "The respondent has thus not committed any default in offering the alternative brand.", "She submits that the learned arbitrator has rendered a finding which is not perverse and thus this court cannot interfere with this finding of fact.", "Learned counsel for the respondent submits that the petitioner could not have insisted for a use of a particular brand and thus imposing such condition in the contract was in violation of sections 3 and 4 of the Competition Act, and thus contrary to section 23 of the Indian Contract Act, 1872.", "She submits that the contract was immoral and oppose to public policy and thus the learned arbitrator was justifying in holding such condition of contract as void.", "It is submitted by the learned counsel that the learned arbitrator has only granted refund of earnest money deposit and security deposit in favour of the respondent and has not awarded claim for loss of profit.", "The award rendered by the learned arbitrator is fair and reasonable and shall not be interfered with by this court.", "Learned counsel for the respondent placed reliance on Delhi Schedule Rates for the year 2007 and would submits that even in the said schedule rates, the brand name of the product prescribed therein stood deleted.", "She submits that it is thus clear that the petitioner could not have insisted for a particular brand or tiles contrary to sections 3 and 4 of the Competition Act, 2002.", "She submits that the Income Tax Department never insisted for supply of Johnson Vitrified tiles.", "The learned arbitrator has thus rightly rendered a finding to that effect.", "Learned counsel for the respondent placed reliance on the judgment of Supreme Court in case of K.V. Mohammed Zakir vs Regional Sports Centre  : 2010 (1) Supreme Court Journal 4 and in particular paragraph 6 and would submits that this court should not substitute its own view for the view taken by the arbitrator while dealing with the proceedings for setting aside an award.", "Paragraph 6 of the said judgment read thus :- We have heard counsel for the parties and we have perused the award.", "The award runs into considerable detail as it is a speaking award.", "While dealing with this part of the claim, the arbitrator in paragraph 5.11, 5.12 and 5.13 of the award has given detailed reasons.", "We are of the view that the settled position in law is that Court should not substitute its own view for the view taken by the arbitrator while dealing with the proceedings for setting aside an award.", "It is equally well settled, where the arbitrator acts within jurisdiction, the reasonableness of the reasons given by the arbitrator is not open to scrutiny by Courts.", "However, if the reasons are such as no person of ordinary prudence can ever approve of them or if the reasons are so outrageous in their defiance of logic that they shock the conscience of the Court, then it is a different situation.", "And in an appropriate case the Court may interfere.", "However, the degree of such unreasonableness must be greater than the standard in a certiorari proceeding.", "We find that the arbitrator in this case has reached a finding of fact on the materials on record about the delay on the part of the respondent and it has also been held by the arbitrator that because of such delay the claimant was put in great difficulty in completing the work in time.", "It is nobodys case that by doing so the arbitrator has acted beyond his jurisdiction or committed any legal misconduct.", "Learned counsel for the respondent placed reliance on the judgment of Supreme Court in case of Reva Electric Car Company Private Limited vs Green Mobil  : (2012) 2 SCC 93 and in particular paragraph 54 and it is submitted that the arbitral tribunal can declare a provision of the agreement as void.", "Paragraph 54 of the said judgment of the Supreme Court in case of Reva Electric Car Company Private Limited (supra) reads thus :- Under Section 16(1), the legislature makes it clear that while considering any objection with respect to the existence or validity of the arbitration agreement, the arbitration clause which formed part of the contract, has to be treated as an agreement independent of the other terms of the contract.", "To ensure that there is no misunderstanding, Section 16(1) (b) further provides that even if the Arbitral Tribunal concludes that the contract is null and void, it should not result, as a matter of law, in an automatic invalidation of the arbitration clause.", "Section 16(1)(a) presumes the existence of a valid arbitration clause and mandates the same to be treated as an agreement independent of the other terms of the contract.", "By virtue of Section 16(1)(b), it continues to be enforceable notwithstanding a declaration of the contract being null and void.", "In view of the provisions contained in Section 16(1) of the Arbitration and Conciliation Act, 1996, it would not be possible to accept the submission of Ms Ahmadi that with the termination of the MoU on , the arbitration clause would also cease to exist.", "Learned counsel for the respondent also placed reliance on the judgment of Supreme Court in case of World Sport Group (Mauritius) Limited vs MSM Satellite (Singapore) Pte.", "Limited  : (2014) 11 SCC 639 and in particular paragraphs 30 and 42.", "She submits that there was no provision in the contract that the arbitrator cannot declare a provision of the contract void.", "In rejoinder, Mr. Sharma, learned counsel for the petitioner submits that the notice dated 7th December, 2010 was not a final notice but a notice dated 16th November, 2010 was a final notice.", "He submits that the respondent was bound by the terms of the contract.", "The respondent deliberately chose to quote reduced rates and below the estimated bid and after obtaining the contract from the petitioner failed and neglected to supply the material to the petitioner on the false pretext.", "The petitioner was thus justified in forfeiting the security deposit and money by exercising right under the provisions of the contract.", "He submits that Income Tax Department was the end user.", "The Competition Act 2002 was not applicable to the contract entered into between the parties.", "He submits that the award shows patent illegality on the face of the award.", "The findings rendered by the learned arbitrator are totally perverse and this court shall interfere with such perverse finding and shall set aside the same.", "REASONS AND CONCLUSIONS :- A perusal of the contract entered into between the parties clearly indicates that the respondent was under obligation to use the brand make of the material as specified in the nomenclature unless it was specified.", "Only in the case of the non- availability of the brand specified in the contract, the contractor was permitted to use alternative equivalent brand of the material subject to submission of documentary evidence of non-availability of specified brand.", "The relevant clause of the contract is extracted as under :- Size of tile 60 x 60 cm, make NUVOLTA DC of H R Johnson (India) Limited or equivalent Unless otherwise specified, the brand make of the material as specified in the item nomenclature shall be used in the work.", "In case of non availability of the brand specified in the contract the contractor shall be allowed to use alternate equivalent brand of the material subject to submission of documentary evidence of non availability of specified brand.", "The necessary cost adjustment on account of above change shall be made for the material with wastage and contractors profit.", "The petitioner had produced before the learned arbitrator a letter issued by M section H R. Johnson (India) Limited informing the petitioner that the said brand of vitrified tiles which was described in the contract was a regular item and was available.", "The respondent did not bring it to the notice of the petitioner that the said brand was not available.", "The only case of the respondent was that the manufacturer of the said brand was demanding exorbitant price.", "The respondent did not produce any documentary evidence of non-availability of the said specified brand to the petitioner.", "A perusal of the record indicates that the rate quoted by the respondent was after considering the terms and conditions of the contract.", "The rates quoted by the respondent was 6 below the estimated price.", "The difference between the first lowest price and the second lowest bidder was more than Rs.30 lacs.", "It is thus clear that the respondent deliberately quoted the rates which were found the lowest with a view to obtain the said contract and thereafter not to supply the particular brand in terms of the contract.", "The petitioner was thus not bound to permit the respondent to supply any other brand when the brand mentioned in the contract was available in the market.", "A perusal of the impugned award clearly indicates that the learned arbitrator has rendered a finding in favour of the petitioner that the respondent was liable to use the only H R. Johnson Vitrified Tiles and in case of non-availability of the said tiles, equivalent brand as an alternative could have been utilised.", "Learned arbitrator also held that in the absence of equivalent brand, the interpretation of the contractor shall not acceptable and thus the contractor did not succeed on the basis of the contract condition.", "It is not in dispute that the respondent has not challenged the said finding and the same has achieved finality.", "Learned arbitrator however has declared the Special Condition Number 8 as violative of Section 23 of the Indian Contract Act, 1872 and Section 3 of the Competition Act, 2002 without giving any reason.", "A perusal of the statement of claim clearly indicates that it was not the prayer of the respondent that any part of the condition of contract shall be declared as void by the learned arbitrator.", "The learned arbitrator in my view has exceeded his jurisdiction by declaring condition of contract as void allegedly to be in violation of section 23 of the Indian Contract Act and section 3 of the Competition Act, 2002.", "Be that as it may, it is not in dispute that in the contract entered into between the parties, the petitioner had provided that if the brand NUVOLTA DC of H R Johnson was not available, the respondent was permitted to use alternative equivalent brand however on the condition that the contractor would submit a certificate of non-availability of the specified brand.", "On perusal of the definition of Enterprise defined under section 2(h) of the Competition Act, 2002 it is clear that the petitioner would not satisfy the definition of the Enterprise since the petitioner was not engaged in any activity relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate.", "It is thus clear that sections 3 and 4 of the Competition Act, 2002 which was relied upon by the learned arbitrator in the impugned award would not even apply to the petitioner.", "The provisions of the Competition Act, 2002 extended to the petitioner by the learned arbitrator shows patent illegality on the face of the award.", "The entire award allowing claim numbers 1 and 2 in favour of the respondent is based on such patently illegal findings rendered by the learned arbitrator.", "Insofar as the findings of the learned arbitrator that the Income Tax Department had never mentioned use of H R Johnson in correspondence is also perverse.", "A perusal of the record indicates that Income Tax Department had provided a sample to the petitioner showing their requirement of the brand to be used in the work awarded to the petitioner which was matching with the H R Johnson brand.", "Be that as it may, it is not in dispute that the contract had provided for a particular brand.", "The learned arbitrator though rendered a finding of fact that the interpretation of the contractor was not acceptable in the absence of equivalent brand in the contract, the learned arbitrator has rendered a perverse finding that the Income Tax Department had not mentioned the use of the H R Johnson in the correspondence.", "The award shows total perversity and deserves to be set aside.", "Insofar as judgment of Supreme Court in case of K.V. Mohammed Zakir(supra) relied upon by the learned counsel for the respondent in support of the submission that interpretation of the learned arbitrator shall not be substituted by the court is concerned, in my view since the interpretation of the provisions of the contract and declaring the contract as void is patently illegal and without jurisdiction, and is impossible interpretation which shocks the conscience of the court, this court can interfere with such interpretation.", "Supreme Court in the said judgment has held that if the reasons rendered by the arbitrator are such as no person or ordinary prudence can ever approve of them or if the reasons are so outrageous in their defiance of logic that they shock the conscience of the court, then it is a different situation and the court in appropriate court may interfere with such award.", "This court has ample power to interfere with such award and set aside the same under section 34 of the Arbitration Act.", "Insofar as judgment of Supreme Court in case of Reva Electric Car Company Private Limited (supra) relied upon by the learned counsel for the respondent in support of the contention that the arbitrator can declare the contract as void is concerned, Supreme Court in the said judgment has held that if the arbitral tribunal concludes that the contract is null and void, it should not result, as a matter of law, in an automatic invalidation of the arbitration clause.", "In my view the said judgment does not assist the petitioner.", "Even otherwise there was no prayer for declaring the contract as void in the statement of claim filed by the respondent.", "The learned arbitrator thus could not have declared the said contract or any part thereof as void.", "The said judgment of Supreme Court in case of Reva Electric Car Company Private Limited (supra) thus does not assist the case of the respondent.", "Insofar as judgment of Supreme Court in case of World Sport Group (Mauritius) Limited (supra) relied upon by the respondent is concerned, the said judgment is not at all applicable to the facts of this case and the reliance placed thereon is totally misplaced.", "Learned counsel for the respondent could not dispute that such provisions giving right to the petitioner to forfeit the security deposit and retention money existed in the contract.", "Learned counsel for the respondent did not challenge the said rights exercised by the petitioner on any other ground.", "In my view the findings rendered by the learned arbitrator is inconsistent and contradictory and shows patent illegality on the face of the award.", "The findings rendered by the learned arbitrator are perverse while declaring the contract entered into between the parties as void and deserves to be set aside.", "In my view the award is totally unsustainable being in conflict with public policy and deserves to be set aside.", "Arbitration Petition is made absolute in terms of prayer clause (a) in so far as claim numbers1 and 2 allowed by 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+{"id": "SC_B Himmatlal Agrawal vs Competition Commission of India and Ors 18052018 SC", "text": ["K. Sikri, J. A neat question of law which arises for consideration in this appeal is as to whether the order of the National Company Law Appellate Tribunal (hereinafter referred to as the Appellate Tribunal) dismissing the main appeal itself of the Appellant herein for non-compliance of the direction to deposit the amount as a condition for grant of stay, is justified and legal.", "In order to decide this question, it is not necessary to take stock of the factual matrix in detail.", "Narration of the following facts, which are germane for deciding this appeal, would suffice.", "The Appellant herein is a partnership firm, engaged in the business of transportation of coal and sand since 1981.", "In June, 2014, the Appellant firm participated in two tenders, bearing numbers 03/2014-15 and 06/2014-15 floated by the Respondent Number 2 herein i.e. M section Western Coalfields Limited.", "The Appellant firm was L-II and not the lowest bidder for allotment of the tenders.", "In June, 2015, the Appellant firm received a notice from the Competition Commission of India, New Delhi (hereinafter referred to as CCI) asking to show cause Under Section 19(1)(a) read with Section 3 of the Competition Act, 2002 (hereinafter referred to as the Act).", "In the said notice, it was alleged that the Appellant firm was involved in anti-competitive and unfair trade practices in collusion with nine other firms.", "The Appellant firm filed its reply.", "The CCI after considering the same passed orders Under Section 26 of the Act and directed the inquiry to be conducted by the Director General (DG) of the CCI.", "DG submitted its report after the inquiry giving his findings to the effect that the Appellant had indulged in anti-competitive and unfair trade practices in collusion with the other firms.", "The Appellant was given a chance to file its objections thereto.", "After considering those objections, the CCI passed orders dated September 14, 2017 affirming the findings of the DG and imposed penalties on the Appellant firm as well as nine parties.", "Insofar as Appellant is concerned, penalty of Rs. 3.61 crores has been imposed.", "The Appellant filed the statutory appeal there against before the Appellate Tribunal which was registered as Competition Appeal (AT) Number 24/2017.", "The Appellant also prayed for interim stay of the penalty order.", "Arguments were heard on admission as well as on stay.", "Vide orders dated November 20, 2017, Appellate Tribunal admitted the appeal.", "It also granted stay on the orders of the CCI with the condition of depositing 10 of the total penalty (i.e. a sum of Rs. 36,12,222/-) imposed by CCI, to be paid by the Appellant, within two weeks i.e. by December 4, 2017.", "The Appellant could not fulfill the said condition of deposit.", "When the matter was taken up on December 4, 2017, the Appellant pleaded before the Appellate Tribunal that non-compliance because of financial crunch which the Appellant was facing.", "The Appellate Tribunal, however, passed orders dated December 4, 2017 to the following effect: By way of last opportunity, the Appellant is given time till 20th December, 2017 to deposit 10 of the penalty amount, failing which, the appeal stands disposed without referring further to the bench.", "As per the Appellant, since it was in deep financial trouble, it could not deposit the amount by December 20, 2017 in spite of all bona fide intentions.", "The Appellant accordingly filed I.A. Number 84 of 2017 on December 18, 2017 seeking modification of orders dated December 4, 2017.", "It was stated in the said application that it had incurred net loss of Rs. 3,72,45,393.94 for the Financial Year 2016-17 and, therefore, was not in a position to deposit the said amount.", "The request of the Appellant was, however, not acceded to and vide orders dated December 21, 2017, the Appellate Tribunal has dismissed I.A. Number 84 of 2017.", "At the same time, it has dismissed the appeal of the Appellant as well for non-compliance of its order dated December 4, 2017.", "The order dated December 21, 2017 reads as under: 21.12.2017 - We find no ground made out to modify our interim order dated 20th November, 2017.", "In fact, the stay order was passed on the request of the learned Counsel for the Appellant and the amount having not deposited within the time, last opportunity was given on 4th December, 2017 to deposit the amount.", "In terms of the order dated 4th December, 2017 the appeal now stands disposed off without further reference to the Bench.", "In view of the order aforesaid dated 4th December, 2017, both the IA Number 84/2017 and Competition Appeal (AT) Number 24/2017 stands disposed off for non-compliance of the Appellate Tribunal.", "A pure legal submission which is advanced by the learned Counsel for the Appellant is that even if the Appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the Appellant to deposit 10 of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself.", "This submission of the Appellant commends acceptance, having due force and substance in law.", "From the facts narrated above, it is apparent that order of the CCI was challenged by filing appeal Under Section 53B of the Act.", "Along with this appeal, the Appellant had also filed application for stay of the operation of the order of the CCI during the pendency of the appeal.", "Appeal was admitted insofar as stay is concerned, which was granted subject to the condition that the Appellant deposits 10 of the amount of penalty imposed by the CCI.", "It needs to be understood, in this context, that the condition of deposit was attached to the order of stay.", "In case of non-compliance of the said condition, the consequence would be that stay has ceased to operate as the condition for stay is not fulfilled.", "However, non-compliance of the conditional order of stay would have no bearing insofar as the main appeal is concerned.", "Right to appeal is statutorily provided Under Section 53B of the Act, which reads as under: 53B. Appeal to Appellate Tribunal.", "The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in Clause (a) of Section 53A may prefer an appeal to the Appellate Tribunal.", "Every appeal Under Sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that Sub-section and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.", "On receipt of an appeal Under Sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against.", "The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal.", "The appeal filed before the Appellate Tribunal Under Sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal.", "The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal.", "This statutory provision does not impose any condition of pre-deposit for entertaining the appeal.", "Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied.", "Position would have been different if the provision of appeal itself contained a condition of pre-deposit of certain amount.", "That is not so.", "Sub-section (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against.", "It is to be done after giving an opportunity of hearing to the parties to the appeal.", "It, thus, clearly implies that appeal has to be decided on merits.", "The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law statutory provision.", "This provision nowhere stipulates that the Appellate Tribunal can direct the Appellant to deposit a certain amount as a condition precedent for hearing the appeal.", "In fact, that was not even done in the instant case.", "It is stated at the cost of repetition that the condition of deposit of 10 of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned.", "Therefore, at the most, stay could have been vacated.", "The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.", "We may mention that the learned Counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Limited v. Competition Commission of India and Ors.1 Said judgment has no application to the facts of this case.", "That was a case where the Appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10 of the penalty as a condition for grant of stay.", "It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay.", "This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order.", "No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with.", "Accordingly, we allow this appeal and set aside that part of the impugned order whereby the appeal of the Appellant is dismissed and restore the appeal which shall be decided by the Appellate Tribunal on merits.", "We, however, make it clear that as far as stay of the penalty order is concerned, that stood vacated for non-compliance of the condition of deposit of 10 of the penalty and, thus, there is no stay of the CCI order in favour of the Appellant.", "No cost.", "1 Civil Appeal Numbers 4766-4767 of 2013 with Ors.", "decided on June 12, 2013"], "expert_1": {"primary": ["Issue", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RulingByLowerCourt", "Fact", "Fact", "Fact", "Fact", "Fact", "RulingByLowerCourt", "RulingByLowerCourt", "RulingByLowerCourt", "RulingByLowerCourt", "ArgumentPetitioner", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "Statute", "Statute", "Statute", "Statute", "Statute", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", 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+{"id": "SC_Brahm Dutt vs Union of India UOI 20012005 SC", "text": ["K. Balasubramanyan, J. The Competition Act, 2002 received assent of the President of India on 13.1.2003 and was published in the Gazette of India dated 14.1.2003.", "It is an Act to provide for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith.", "The statement of objects and reasons indicates that the Monopolies and Restrictive Trade Practices Act, 1969 had become obsolete in certain respects in the light of international economic developments relating more particularly to competition laws and there is a need to shift the countrys focus from curbing the monopolies to promoting competition.", "Section 1(3) of the Act provides that the Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and provided that different dates may be appointed for different provisions of the Act.", "Pursuant to this, some of the sections of the Act were brought into force on 31.", "3.2003 vide S.O. 340 (E) and published in the Gazette of India dated 31.3.2003 and majority of the other sections by notification S.O. 715 (E) dated 19.", "6.2003.", "In view of bringing into force Sections 7 and 8 of the Act, the Central Government had to make prescription for the appointment of a Chairman and the members as composing the Commission in terms of Section 9 of the Act.", "In exercise of the Rule making power under Section 63(2)(a) read with Section 9 of the Act, the Central Government made The Competition Commission of India (Selection of Chairperson and Other Members of the Commission) Rules, 2003 and published the same in the Gazette of India on 4.4.2003.", "Section 9 of the Act provides for the selection of the Chairperson and the other members as may be prescribed.", "The Rules above referred to was that prescription.", "Under Rule 3, the Central Government was to constitute a Committee consisting of a person who has been retired Judge of the Supreme Court or a High Court or a retired Chairperson of a Tribunal established under an Act of Parliament or a distinguished jurist or a Senior Advocate for five years or more, a person who had special knowledge of and professional experience of 25 years or more in international trade, economics, business, commerce or industry, a person who had special knowledge of and professional experience of 25 years or more in accountancy, management, finance, public affairs or administration to be nominated by the Central Government.", "The Central Government was also to nominate one of the members of the Committee to act as the Chairperson of the Committee.", "The function of the Committee was to fill up the vacancies as and when vacancies of Chairperson or a member of the Commission exits or arises or is likely to arise and the reference in that behalf had been made to the Committee by the Central Government.", "It is said that the Committee so constituted made a recommendation in terms of Rule 4(3) of the Rules and a Chairman and a member were appointed.", "Though, the member claims to have taken charge immediately after being appointed, the person appointed as Chairman, has taken the stand that he had not taken charge since he was content to await the orders of this Court in view of the filing of this Writ Petition.", "The present Writ Petition was filed in this Court by a practicing Advocate essentially praying for the relief of striking down Rule 3 of the Competition Commission of India (Selection of Chairperson and Other Members of the Commission) Rules, 2003 (hereinafter referred to as the Rules) and for other consequential reliefs including the issue of a writ of mandamus directing the Union of India to appoint a person who is or has been a Chief Justice of a High Court or a senior Judge of a High Court in India in terms of the directions contained in the decision in S.P. Sampath Kumar v. Union of India and Ors.", " : (1987)ILLJ128SC .", "The essential challenge was on the basis that the Competition Commission envisaged by the Act was more of a judicial body having adjudicatory powers on questions of importance and legalistic in nature and in the background of the doctrine of separation of powers recognized by the Indian Constitution, the right to appoint the judicial members of the Commission should rest with the Chief Justice of India or his nominee and further the Chairman of the Commission had necessarily to be a retired Chief Justice or Judge of the Supreme Court or of the High Court, to be nominated by the Chief Justice of India or by a Committee presided over by the Chief Justice of India.", "In other words, the contention is that the Chairman of the Commission had to be a person connected with the judiciary picked for the job by the head of the judiciary and it should not be a bureaucrat or other person appointed by the executive without reference to the head of the judiciary.", "The arguments in that behalf are met by the Union of India essentially on the ground that the Competition Commission was more of a regulatory body and it is a body that requires expertise in the field and such expertise cannot be supplied by members of the judiciary who can, of course, adjudicate upon matters in dispute.", "It is further contended that so long as the power of judicial review of the High Courts and the Supreme Court is not taken away or impeded, the right of the Government to appoint the Commission in terms of the statute could not be successfully challenged on the principle of separation of powers recognized by the Constitution.", "It was also contended that the Competition Commission was an expert body and it is not as if India was the first country which appointed such a Commission presided over by persons qualified in the relevant disciplines other than judges or judicial officers.", "Since the main functions of the expert body were regulatory in nature, there was no merit in the challenge raised in the Writ Petition.", "During the pendency of the Writ Petition, two additional counter affidavits were filed on behalf of the Union of India, in which it was submitted that the Government was proposing to make certain amendments to the Act and also Rule 3 of the Rules so as to enable the Chairman and the members to be selected by a Committee presided over by the Chief Justice of India or his nominee.", "This position was reiterated at the time of arguments.", "Of course, it was also pointed out that the question of amendment had ultimately to rest with the Parliament and the Government was only in a position to propose the amendments as indicated in the additional affidavits.", "But it was reiterated that the Chairman of the Commission should be an expert in the field and need not necessarily be a Judge or a retired Judge of the High Court or the Supreme Court.", "We find that the amendments which the Union of India proposes to introduce in Parliament would have a clear bearing on the question raised for decision in the Writ Petition essentially based on the separation of powers recognized by the Constitution.", "The challenge that there is usurpation of judicial power and conferment of the same on a non- judicial body is sought to be met by taking the stand that an Appellate Authority would be constituted and that body would essentially be a judicial body conforming to the concept of separation of judicial powers as recognized by this Court.", "In the Writ Petition the challenge is essentially general in nature and how far that general challenge would be met by the proposed amendments is a question that has to be considered later, if and when, the amendments are made to the enactment.", "In fact, what is contended by learned counsel for the petitioner is that the prospect of an amendment or the proposal for an amendment cannot be taken note of at this stage.", "Since, we feel that it will be appropriate to consider the validity of the relevant provisions of the Act with particular reference to Rule 3 of the Rules and Section 8(2) of the Act, after the enactment is amended as sought to be held out by the Union of India in its counter affidavits, we are satisfied that it will not be proper to pronounce on the question at this stage.", "On the whole, we feel that it will be appropriate to postpone a decision on the question after the amendments, if any, to the Act are carried out and without prejudice to the rights of the petitioner to approach this Court again with specific averments in support of the challenge with reference to the various sections of the Act on the basis of the arguments that were raised before us at the time of hearing.", "Therefore, we decline to answer at this stage, the challenge raised by the petitioner and leave open all questions to be decided in an appropriate Writ Petition, in the context of the submission in the counter affidavits filed on behalf of the Union of India that certain amendments to the enactment are proposed and a bill in that behalf would be introduced in Parliament.", "We may observe that if an expert body is to be created as submitted on behalf of the Union of India consistent with what is said to be the international practice, it might be appropriate for the respondents to consider the creation of two separate bodies, one with expertise that is advisory and regulatory and the other adjudicatory.", "This followed up by an appellate body as contemplated by the proposed amendment, can go a long way, in meeting the challenge sought to be raised in this Writ Petition based on the doctrine of separation of powers recognized by the Constitution.", "Any way, it is for those who are concerned with the process of amendment to consider that aspect.", "It cannot be gainsaid that the Commission as now contemplated, has a number of adjudicatory functions as well.", "Thus, leaving open all questions regarding the validity of the enactment including the validity of Rule 3 of the Rules to be decided after the amendment of the Act as held out is made or attempted, we close this Writ Petition declining to pronounce on the matters argued before us in a theoretical context and based only on general pleadings on the effect of the various provisions to support the challenge based on the doctrine of separation of powers.", "The Writ Petition is thus disposed of leaving open all the relevant questions."], "expert_1": {"primary": ["Fact", "Fact", "Fact", "None", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "ArgumentPetitioner", "ArgumentPetitioner", "ArgumentRespondent", "ArgumentRespondent", "ArgumentRespondent", "ArgumentRespondent", "Fact", "Fact", "Fact", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", 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+{"id": "SC_Competition Commission of India vs Fast Way Transmission Pvt Ltd and Ors 24012018 SC", "text": ["Rohinton Fali Nariman, J. The present appeal by the Competition Commission of India raises several interesting questions relating to its functions under the Competition Act, 2002.", "The brief facts necessary to appreciate the controversy which arises in the present case are as follows: An agreement dated 1st August, 2010 was entered into between Respondent Number 5, who was the broadcaster of a News Channel called Day Night News, and Respondent Number 1 to 4 who are Multi System Operators (hereinafter referred to as MSOs) who carried the aforesaid channel to persons who watch Cable T.V. A channel placement agreement was entered into, on the same day, between the broadcaster and the MSOs, all of which are stated to belong to the Fast Away Group.", "By notices of termination dated 19th January, 2011, the aforesaid agreements were terminated by relying on a Clause of the said agreements which entitled them to do so on the mere giving of a thirty day notice.", "This being the case, Respondent Number 5 complained about the aforesaid termination.", "The Director General of Investigation looked into the complaint of the broadcaster, investigated the matter, and ultimately delivered its report to the Competition Commission, in which it found that the said MSOs indulged in practices which were violative of Sections 3 and 4 of the Competition Commission Act, 2002.", "Going by this report, and after hearing the parties to the dispute, the Competition Commission, by its detailed order dated 3rd July, 2012, first held that according to it, the relevant market to be looked at for the purpose of Sections 3 and 4 would be the State of Punjab and Chandigarh.", "Having regard to this market, so far as Cable TV was concerned, a finding was entered stating that the MSO group had 85 of the subscriber share in that market, and was therefore, in a dominant position which could be misused.", "Ultimately, it found on facts that the group had never terminated any such similar agreement before the due date except in the instant case, and also found that this could not be said to be due to low TRP ratings, inasmuch as the complainants TRP rating was almost equal to that of some other channels.", "The Commission then went on to find as follows: 6.4.9 The evidences as above confirm that there were disruptions in the telecast of the channel.", "The Commission further observes that the OP has argued that as per TRAI Regulations it is not bound by must carry, as against the informant who is bound by a must provide provision.", "However, the argument of the OP group does not take away the fact that the informant is dependent on it for transmission of its channel and if it is denied that, it cannot get access to the market.", "It is not that the informant was not paying the placement fee charged by the OP group.", "There was no dispute on non-payment of placement or carriage charges.", "An agreement was duly executed between the informant and the OP group for transmission of the channels of the former.", "6.4.10 However, due to the fact that the subscriber base of the OPs is in excess of 40 lacs, every broadcaster including the informant dependent upon their network.", "In such a situation, the Commission observes that the OP is in position to affect the market in its favour.", "Due to its market power, the OP group has denied the opportunity for transmission of channel of the informant.", "The group has no justification for termination of the agreement and its argument for justifying its conduct is not based on any sound footings.", "Its argument regarding shortage of spectrum for non-transmission of the informants channel in face of the fact that the spectrum constraint might have been considered at the time of entering into agreement with the informant upon charge of premium from the broadcaster.", "Once that was considered, the question of shortage of spectrum during the period of the agreement does not arise.", "Similarly, the argument of low TRP is also not justified since in past there has been no practice of review of any agreement on the basis of TRP ratings in the middle of an agreement.", "The Commission observes that the argument of spectrum shortage and low TRP is merely an afterthought to justify its conduct.", "6.4.11 The conduct of OP has resulted in loss to the informant-broadcaster as well as denial of services to the consumers who want to watch the channel of the informant.", "As on date the Informant has access to only 56,000 households on the cable TV in the state of Punjab Chandigarh, where about 45 lacs households are connected on cable network.", "Thus, the informant has been effectively wiped out from the entire relevant market by the conduct of OPs.", "6.4.12 In the light of the facts and circumstances of this case the Commission observes that due to the acts of the OP group the informant has been denied the market access and opportunity to compete and holds that violation of the provisions of Section 4(2)(c) of the Act gets established.", "Given the aforesaid finding, the Commission thereafter imposed a penalty in exercise of its power Under Section 27 of the Act of Rs. 8,40,01,141/-.", "The appeal by the MSOs group to the Appellate Tribunal found favour with the aforesaid Tribunal.", "Essentially, the Tribunals finding was that the denial of market access Under Section 4(2)(c) can only be by one competitor against another, and that as a broadcaster cannot be said to compete with MSOs, there would be no violation of either Section 3 or Section 4 of the Act.", "On this short ground the appeal stood allowed.", "Shri P.S. Narsimha, learned Additional Solicitor General, appearing on behalf of the Competition Commission, who is the sole Appellant before us, has argued that the role of the Competition Commission is delineated in the preamble read with certain provisions of the Act, as a positive one.", "The Commission has to prevent practices having an adverse effect on competition, to promote and sustain competition in markets, as also to protect the interest of consumers, so that freedom of trade is ensured which in turn leads to healthy economic development of the nation as a whole.", "Viewed in this light, and after referring to certain other provisions of the Act, the learned Additional Solicitor General argued that the Appellate Tribunal has construed the Act in a constricted manner which would impede the Commissions functioning in future cases.", "With his usual fairness, he has left it to the court to decide the amount of penalty that ought to be imposed on the facts of the case.", "Learned senior Counsel appearing on behalf of the Respondent MSOs has been equally fair to the Court, and has brought to our notice the judgment of the Telecom Disputes and Settlement Appellate Tribunal (TDSAT) dated 25th April, 2012 in which this very termination by the MSOs in the present case was held to be unlawful, in that Regulation 4.2 of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 was breached.", "Clause 4.2 of the aforesaid Regulation, which overrides agreements between the parties, specifically speaks about a three week notice to the broadcaster clearly giving reasons for the proposed action of effacing transmission of a TV channel by the aforesaid MSOs.", "The notices of termination dated 19th January, 2011 do not conform to the aforesaid Regulation as reasons for the proposed termination have not been given.", "He further argues that no case for penalty has been made out against his clients for the reason that, at the relevant time, the analogue platform was used, and the operational capacity of such platform was only for 80 channels as against the existing channels of about 550.", "He went on to add that the TRP ratings of the broadcaster, namely, Respondent Number 5, was the lowest by far among all other news channels, getting a rating of only 3.8 as against the lowest rated news channel, which was MH Channel, of 7.", "This, according to him, was because of an experiment conducted by Respondent Number 5 which failed, because it broadcast news in three different languages, and since most of the viewers were not familiar with each of these languages, the channel failed and Respondent Number 5 was no longer in business.", "Therefore, according to him, even though technically speaking, Regulation 4.2 was breached, yet a notice of termination could have been given stating the aforesaid reasons as to why the agreement between the MSOs and the broadcaster was terminated.", "This being the case it is clear that the termination of the agreement did not take place because of the MSOs dominant position in the market, but because of the factors aforestated.", "In his view, therefore, this is not a case in which penalty should have been imposed.", "We have heard learned Counsel for the parties.", "It is important to advert first to the provisions of the Act.", "The Preamble to the Act reads as under: An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.", "Section 2 Definitions- In this Act, unless the context otherwise requires,- (b) agreement includes any arrangement or understanding or action in concert,- whether or not, such arrangement, understanding or action is formal or in writing or whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings (f) consumer means any person who- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use (m) practice includes any practice relating to the carrying on of any trade by a person or an enterprise (r) relevant market means the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets Section 4 Abuse of dominant position- No enterprise or group shall abuse its dominant position.", "There shall be an abuse of dominant position Under Sub-section (1), if an enterprise or a group- (a) directly or indirectly, imposes unfair or discriminatory- condition in purchase or sale of goods or service or price in purchase or sale (including predatory price) of goods or service.", "Explanation-For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or services referred to in Sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in Sub-clause (ii) shall not include such discriminatory conditions or prices which may be adopted to meet the competition or (b) limits or restricts- production of goods or provision of services or market therefor or technical or scientific development relating to goods or services to the prejudice of consumers or (c) indulges in practice or practices resulting in denial of market access in any manner or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts or (e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.", "Explanation-For the purposes of this section, the expression- (a) dominant position means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to-- operate independently of competitive forces prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour (b) predatory price means the sale of goods or provision of services, at a price which is below the cost, as may be determined by Regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.", "(c) group shall have the same meaning as assigned to it in Clause (b) of the Explanation to Section 5.", "Section 18 Duties of Commission- Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country.", "Section 19 Inquiry into certain agreements and dominant position of enterprise- The Commission may inquire into any alleged contravention of the provisions contained in Sub-section (1) of Section 3 or Sub-section (1) of Section 4 either on its own motion or on-- xxxxxxxxxxxx The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not Under Section 4, have due regard to all or any of the following factors, namely: (a) market share of the enterprise (b) size and resources of the enterprise (c) size and importance of the competitors (d) economic power of the enterprise including commercial advantages over competitors (e) vertical integration of the enterprises or sale or service network of such enterprises (f) dependence of consumers on the enterprise (g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise (h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers countervailing buying power (j) market structure and size of market (k) social obligations and social costs (l) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition (m) any other factor which the Commission may consider relevant for the inquiry.", "Section 27 Orders by Commission after inquiry into agreements or abuse of dominant position- Where after inquiry the Commission finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position, is in contravention of Section 3 or Section 4, as the case may be, it may pass all or any of the following orders, namely: (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be (b) impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in Section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher.", "(d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any (g) pass such other order or issue such directions as it may deem fit: Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to Section 3 or Section 4 of the Act is a member of a group as defined in Clause (b) of the Explanation to Section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.", "Section 41 Director General to investigate contravention- The Director General shall, when so directed by the Commission, assist the Commission in investigating into any contravention of the provisions of this Act or any Rules or Regulations made thereunder.", "The Director General shall have all the powers as are conferred upon the Commission Under Sub-section (2) of Section 36.", "Without prejudice to the provisions of Sub-section (2), Sections 240 and 240A of the Companies Act, 1956 (1 of 1956), so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority, as they apply to an inspector appointed under that Act.", "Explanation-For the purposes of this section,- (a) the words the Central Government Under Section 240 of the Companies Act, 1956 (1 of 1956) shall be construed as the Commission (b) the word Magistrate Under Section 240A of the Companies Act, 1956 (1 of 1956) shall be construed as the Chief Metropolitan Magistrate, Delhi.", "Section 53B Appeal to Appellate Tribunal- The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in Clause (a) of Section 53A may prefer an appeal to the Appellate Tribunal.", "Every appeal Under Sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that Sub-section and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.", "On receipt of an appeal Under Sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against.", "The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal.", "The appeal filed before the Appellate Tribunal Under Sub-section (1) shall be dealt with by it as expeditiously as possible and endeavor shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal.", "Section 53T Appeal to Supreme Court- The Central Government or any State Government or the Commission or any statutory authority or any local authority or any enterprise or any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to them: Provided that the Supreme Court may, if it is satisfied that the applicant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed after the expiry of the said period of sixty days.", "Section 60 Act to have overriding effect- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.", "The Preamble of the Act, read with the aforesaid provisions, would show that the Commission set up by the Competition Act certainly has a positive role to play.", "A perusal of Sections 18 and 19 would show that it is a positive duty of the Commission to eliminate all practices which have an adverse effect on competition.", "Further the Commission should promote and sustain competition, apart from protecting the interest of consumers, so as to ensure freedom of trade carried on by all participants in markets all over India.", "Also, a positive role is given to the Commission to inquire, suo motu, into the dominant position of enterprises, and to prohibit anti competitive agreements.", "Section 60 then gives the Act overriding effect over other statutes in case of a clash between the Act and such statues to effectuate the policy of the Act, keeping in view the economic development of the country as a whole.", "On the facts of the present case, it is clear that dominant position is clearly made out.", "The Explanation to Section 4 specifically refers to a position of strength that is enjoyed by an enterprise or group thereof in the relevant market, which, as is stated hereinbefore, is Punjab and Chandigarh, in the Cable TV market, which enables Respondents Number 1-4 to operate independently of competitive forces prevailing in the relevant market.", "The Commission has found, on facts, that since the aforesaid MSOs group has 85 of the subscribers share in the aforesaid cable TV market in the State of Punjab and Chandigarh, and that they are able to operate independently of competitive forces prevailing in the aforesaid market.", "This finding has not been set aside by the Appellate Tribunal.", "Also, the Respondent would fall within Explanation (a)(ii) as well, though it is enough that it would fall within Sub-section a(i) of the Explanation.", "Sub-section (ii) refers to a position of strength as enjoyed by the Respondents which enables them to affect consumers in its favour.", "Replying upon the definition in Section 2(f)(ii), Shri Narsimha, learned ASG has, in our view, correctly argued that a broadcaster would certainly fall within the wide language contained in the aforesaid Sub-section.", "We may also add that in all fairness the learned Counsel for the Respondent has agreed with the same.", "This being the case, it is clear that as both Sub-sections (i) and (ii) of Clause (a) of the Explanation apply, the Respondent could be said to be in a dominant position, for the purpose of Section 4, in the facts of the present case.", "The question which now arises is whether there is an abuse of such dominant position Under Section 4(2)(c) where the Respondent could be stated to have indulged in a practice resulting in denial of market access in any manner.", "It can be seen that in the facts of the case, the broadcaster, namely Respondent Number 5, had a broadcast agreement which was entered into for a period of one year from 1st August, 2010.", "This was sought to be terminated within the aforesaid period by the Respondent by notices dated 19th January, 2011.", "The TDSAT has, by its order dated 25th April, 2012, adverted to Regulation 4.2 of the relevant Telecom Regulations, and has found that the Respondents have not followed the aforesaid Regulations, inasmuch as no reasons for termination have been given in the notices of termination.", "This being the case, it is clear that, on the present facts, there is an abuse of the dominant position enjoyed by the Respondents 1-4 only for the reason that the broadcaster was denied market access on and after 19th February, 2011 until 1st August, 2011.", "The words in any manner are words of wide import and must be given their natural meaning.", "This being the case, it is difficult to appreciate the reasoning of the Appellate Tribunal that, as the broadcaster and MSOs are not in competition with one another, the provisions of Sections 3 and 4 do not get attracted.", "As has been held by us, the dominant position held by the Respondent MSOs is clearly established for the purpose of Section 4 in the present case, and the Commission finding in that behalf is also not set aside by the Appellate Tribunal.", "If this be so, then once a dominant position is made out on facts, whether a broadcaster is in competition with MSOs is a factor that is irrelevant for the purpose of application of Section 4(2)(c) which, as has been found by us, becomes applicable for the simple reason that the broadcaster is denied market access due to an unlawful termination of the agreement between the said broadcaster and the Respondents 1-4.", "Having said this, however, we are of the view that no penalty ought to have been imposed on the facts of the present case.", "The finding of the Competition Commission that the TRP rating of the broadcaster was not so low as it was almost equal to that of other channels, is not correct.", "In the counter affidavit filed before us by the Respondent, they have specifically stated the TAM ratings of the Respondent channel, as opposed to other news channels, from the month of September 2010 to January 2011, which were as follows: A perusal of the aforesaid chart would show that the GRP given to the news channel Day and Night is much lower than that given to any other channel, and that learned senior Counsel for the Respondent was correct in stating that this was the reason for terminating the agreement with the broadcaster in mid-stream.", "Though we find that, on the facts of this case, Section 4(2)(c) has been breached, yet the reason given by Respondents 1 to 4 for termination being otherwise justifiable, we feel that no penalty should be levied on the 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+{"id": "SC_Competition Commission of India vs Jcb India Ltd and Ors 15012019 SC Order", "text": ["Leave granted in the special leave petitions.", "The appeals arise from an ad interim order of the learned Single Judge of the Delhi High Court dated 2 June 2016.", "On a petition instituted under Article 136 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the High Court has issued the following direction: In my opinion, prima facie, the impugned order did not in any manner, authorize respondent Number 1 to seize the said material for which a search warrant had been issued.", "In view of the foregoing, the respondent Number 1, who have seized the subject material, are restrained from utilizing the same for any purpose whatsoever, till the next date of hearing.", "On 11 March 2014, the Competition Commission of India passed an order under Section 26(1) of the Competition Act, 2002 directing the Director General to make an investigation into certain allegations against the first and second respondent on the basis of information which disclosed a prima facie case of the abuse of dominance.", "The first respondent filed a writ petition before the Delhi High Court1 .", "In an interim order dated 4 April 2014, the High Court directed that while the appellant may require the first and second respondents to furnish the information called by the Director General of the Competition Commission, no final order report shall be passed either by the Commission or by its Director General.", "During the pendency of the writ petition, the Additional Director General filed an application before the Chief Metropolitan Magistrate under Section 41(3) read with Section 240A of the Companies Act, 1956 seeking authorisation to conduct a search in the premises of the first respondent.", "The relief which was sought in the application was in the following terms: It is prayed before this Honble Court that search warrants as per the provisions of subsection 3 of section 41(3) of the Competition Act, 2002 read with section 240A of the Companies Act, 1956 may please be issued for conducting searches at the aforesaid premises for recovering incriminating documents and papers related with the case.", "1 Writ Petition (Civil) Number 2244/2014 The Chief Metropolitan Magistrate allowed the application on 17 September 2014.", "The search operation was carried out on 19 September 2014.", "An interim application2 was filed before the Delhi High Court in the pending writ petition for quashing the search and seizure and for the return of all documents, hard drives and laptops seized during the course of the search and seizure operation and for a stay on the investigation.", "The Delhi High Court, by its order dated 26 September 2014, stayed further proceedings before the Director General of Investigation.", "In appeal, the Division Bench by an order dated 2 December 2014 directed that the parties would be at liberty to raise their contentions before the learned Single judge and left it open to the Competition Commission or, as the case may be, the Director General to apply for vacating the order dated 26 September 2014.", "Pursuant to the above direction, the appellant applied for vacating the interim order before the learned Single Judge.", "In the meantime, the first and the second respondent had filed another writ petition3 before the High Court praying for setting aside of the search and seizure.", "It is in that writ petition that the impugned order has been passed by the learned Single Judge on 2 June 2016 2 C.M. Number 15787 of 2014 3 W.P. (Crl.) Number 1823 of 2016 restraining the appellant from utilising the seized material for any purpose whatsoever till the next date of hearing.", "The learned Single Judge has observed that prima facie, a reading of the order passed by the Chief Metropolitan Magistrate does not indicate any authorisation to the Director General to carry out any other exercise other than searching for relevant material.", "The ad interim order has been assailed in these proceedings.", "P.S. Narasimha, learned senior counsel appearing on behalf of the appellants submitted that Section 41(3) of the Competition Act, 2002 stipulates that the provisions of Section 240 and 240A of the Companies Act, 1956 so far as may be, shall apply to an investigation made by the Director General or any other person investigating under his authority.", "The submission is that Section 240A specifically provides that an authorisation may be obtained from the Magistrate of the First Class for an order to seize books and papers which, it is apprehended, may be destroyed, mutilated, altered, falsified or secreted.", "Moreover, it has been submitted that sub-section (2) of Section 240A specifically authorises the Magistrate to pass an order allowing for the seizure of books and papers which he considers necessary for the investigation, apart from authorising a person to enter upon and search premises.", "Hence, it has been urged that the ad interim order passed by the learned Single Judge effectively obstructs the investigation by the Director General.", "Mr. Narasimha, learned senior counsel urged that the Competition Commission has been constrained to approach this Court in view of the interference which has resulted in a matter of investigation.", "On the other hand, Mr. Kapil Sibal and Mr. Shyam Divan, learned senior counsel appearing for the first and the second respondents have urged that substantive questions in regard to the jurisdiction of the Competition Commission have been raised before the Delhi High Court in the first of the two writ petitions.", "Learned senior counsel submitted that the case of the first and the second respondents is that they have taken recourse to their remedies in a civil suit against a third party which infringed their rights to design and other forms of intellectual property.", "Hence, the recourse taken by them to their rights and to the due process of law cannot be construed as an abuse of a dominant position.", "Learned senior counsel urged that the jurisdiction of the Competition Commission has been questioned.", "In the circumstances, the impugned order of the learned Single Judge restraining the Competition Commission from utilising the seized material cannot be faulted.", "Moreover it has been submitted that the pre-condition under Section 240A has not been fulfilled.", "Section 240A of the Companies Act, 1956 reads as follows:- 240A. Seizure of documents by inspector.", "(1) Where in the course of investigation under section 235 or section 237 or section 239 or section 247, the inspector has reasonable ground to believe that the books and papers of, or relating to, any company or other body corporate or any managing agent or secretaries and treasurers or managing director or manager of such company or other body corporate, or any associate of such managing agent or secretaries and treasurers may be destroyed, mutilated, altered, falsified or secreted, the inspector may make an application to the Magistrate of the First Class or, as the case may be, the Presidency Magistrate, having jurisdiction for an order for the seizure of such books and papers.", "(2) After considering the application and hearing the inspector, if necessary, the Magistrate may by order authorise the inspector (a) to enter, with such assistance, as may be required, the place or places where such books and papers are kept (b) to search that place or those places in the manner specified in the order and (c) to seize books and papers he considers necessary for the purposes of his investigation.", "(3) The inspector shall keep in his custody the books and papers seized under this section for such period not later than the conclusion of the investigation as he considers necessary and thereafter shall return the same to the company or the other body corporate, or, as the case may be, to the managing agent, or the secretaries and treasurers or the associate of such managing agent or secretaries and treasurers or the managing director or the manager or any other person, from whose custody or power they were seized and inform the Magistrate of such return Provided that the inspector may, before returning such books and papers as aforesaid, place identification marks on them or any part thereof.", "(4) Save as otherwise provided in this section, every search or seizure made under this section shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898 ), relating to searches or seizures made under that Code.", "Section 41(3) specifically incorporates a reference to Section 240A in its application to an investigation by the Director General under the provisions of the Competition Act 2002.", "Under Section 240A, an Inspector who has reasonable ground to believe that books and papers of, or relating to, any company may be destroyed, mutilated, altered, falsified or secreted may apply to the Magistrate to secure an authorisation for the seizure of the books and papers.", "The provisions of Section 240A do not merely relate to an authorisation for a search but extend to the authorisation of a seizure as well.", "Unless the seizure were to be authorised, a mere search by itself will not be sufficient for the purposes of investigation.", "Having due regard to the provisions of Section 240A and the underlying purpose of Section 41(3), we are of the view that the blanket restraint which has been imposed by the learned Single Judge on the appellants utilising the seized material for any purpose whatsoever was not warranted.", "The High Court has blocked the investigation on an erroneous construction of the powers of the Director General.", "The High Court should, in our view, be more circumspect before it restrains an investigation under the statutory authority of the Director General.", "Having said this, we are of the view that since the writ proceedings before the High Court are pending, the ultimate order that we pass would be such as would protect the interests of the appellants in a fair investigation and would not prejudice the case of the respondents on the issue of jurisdiction which has been raised before the Delhi High Court.", "Accordingly, we vacate the order of injunction which has been granted by the learned Single Judge on 2 June 2016.", "While vacating the injunction, we leave it open to the Delhi High Court, at the hearing of the writ petitions to determine whether and if so to what extent a reference to the seized material should be permitted to be made for the purposes of testing the issue of jurisdiction.", "The writ petitions were transferred to this Court by an ad interim direction dated 19 September 2016.", "We have been apprised of the issues in these writ petitions and we are of the opinion that it would be appropriate if the petitions are remitted back to the Delhi High Court for determination by a Division Bench of the High Court.", "We order accordingly.", "Transferred Case (C) 44 of 2016 and Transferred Case (Crl.) 4 of 2016 are accordingly remitted back to the Delhi High Court.", "All the rights and contentions of the parties are kept open, to be decided in the pending writ petitions.", "The appeals and transferred cases are, accordingly, disposed of.", "No costs.", "Pending application(s), if any, shall also stand disposed of."], "expert_1": {"primary": ["Fact", "Fact", "RulingByLowerCourt", 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+{"id": "SC_Competition Commission of India vs Thomas Cook India Ltd and Ors 17042018 SC", "text": ["The Competition Commission of India (in short, the Commission) is in appeal aggrieved by the order passed by the Competition Appellate Tribunal (in short, the Tribunal) setting aside the order passed by the Competition Commission Under Section 43A of the Competition Act, 2002 (in short, referred to as the Act) whereby penalty of Rupees One Crore was imposed on the Respondents on the ground of non-compliance of provisions contained in Section 6(2) of the Act.", "The Thomas Cook India Limited (for short, the TCIL) - Respondent Number 1, Thomas Cook Insurance Services India Limited, (for short, the TCISIL) - Respondent Number 2 and Sterling Holiday and Resorts India Limited (for short, the SHRIL) - Respondent Number 3 is the companies registered under the Companies Act, 1956.", "The TCIL is engaged in travel and travel related services.", "The TCISIL is also engaged in travel and travel related services and is a subsidiary of the TCIL and is also a registered corporate agent of Bajaj Allianz General Insurance Company Limited, which is engaged in the business of selling insurance to outbound travelers, as well as health insurance, motor insurance, personal accident insurance etc.", "SHRIL is engaged in the business of providing premium hotel services, vacation ownership services, normal hotel services like renting of rooms, restaurants, holiday activities etc.", "It also arranges meetings, incentives, conference and events for its corporate clients.", "The Board of Directors of the aforesaid three companies on 7.2.2014 approved a Scheme for demerger amalgamation, (referred to as the Scheme).", "The said Scheme contemplated the following: Demerger: i.e. Resorts and timeshare business of SHRIL were to be transferred by way of demerger from SHRIL to TCISIL in lieu of which equity shares of TCIL would be issued to shareholders of SHRIL as per the ratio in the Scheme and Amalgamation: SHRIL with its residual business would be amalgamated into TCIL in lieu of equity shares to be issued to the shareholders of SHRIL as per the ratio in the Scheme.", "For the purpose of implementing the above transactions, the Respondents entered into a Merger Cooperation Agreement (for short, the MCA) on the same day i.e. on 07.2.2014.", "On the very same day i.e. 07.2.2014, by another resolution of the Boards of Directors of the Respondents, the following transactions were approved and executed - Share Subscription Agreement (SSA): TCISIL was to subscribe 2,06,50,000 shares of SHRIL pursuant to a preferential allotment (amounting to 22.86 of SHRIL of equity share capital of SHRIL on fully diluted basis) Share Purchase Agreement (SPA): TCISIL was to acquire 19.94 of equity share capital of SHRIL on the fully diluted basis from certain existing shareholders and promoters of SHRIL.", "Open Offer by TCIL and TCISIL to purchase 26 of the equity share capital from public shareholders of SHRIL, in terms of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (in short, the SEBIs Regulations).", "In addition to the above, TCISIL acquired 90,26,794 equity shares of SHRIL through purchase on the Bombay Stock Exchange.", "These purchases (hereinafter referred to as market purchases) amounted to 9.93 of the equity share capital of SHRIL on the fully diluted basis.", "The market purchases were made between 10.2.2014 and 12.2.2014.", "On 14.2.2014, the Respondents sent a notice Under Section 6(2) of the Act to the Appellant - Commission, notifying only the Demerger and Amalgamation.", "Other transactions were, however, disclosed, while claiming exemption from Section 5 of the Act.", "On 20.02.2014, the Commission asked the Respondents to remove certain defects in their application and provide further information, inter alia on, whether the notified and non-notified transactions were interrelated.", "On 5.3.2014, the Commission passed an approval order Under Section 31(1) of the Act.", "However, it observed that the same would not affect the action proposed Under Section 43(A) of the Act for imposition of penalty in separate proceedings.", "On 10.3.2014, the Commission issued a show cause notice asking the Respondents as to why they should not be penalized Under Section 43A for failing in notifying the market purchase Under Section 6(2) of the Act.", "On 25.3.2014, the Respondents filed their reply to the show cause.", "After hearing the Respondents, on 21.5.2014, the Commission imposed a penalty of Rupees One crore Under Section 43A of the Act.", "As against the same the appeal was preferred.", "The Tribunal has allowed the appeal filed Under Section 53B of the Act and has set aside the order passed by the Commission.", "Aggrieved thereby, the appeal has been preferred by the Commission Under Section 53B of the Act.", "It was urged by the learned senior Counsel appearing on behalf of Appellants that on 7.2.2014, the Board of Directors of the three Respondent companies have decided about the de-merger amalgamation, Share Subscription Agreement (SSA), Share Purchase Agreement (SPA), Open Offer by TCIL and the TCISIL to purchase 26 of the equity shares capital from the public shareholders of SHRIL in terms of the SEBIs Regulations and market purchases were also part of the same transaction.", "TCISIL acquired 90,26,794 equity shares of SHRIL through purchase on Bombay Stock Exchange between 10.2.2014 and 12.2.2014.", "These market purchases amounted to 9.93 of the equity share capital of SHRIL on the fully diluted basis.", "Out of the aforesaid transactions, the Respondent notified only the De-merger and Amalgamation in terms of Section 6(2) of the Act.", "The Share Subscription Agreement (SSA), Share Purchase agreement (SPA), Open Offer and Market Purchases were not notified and the exemption was claimed under notification S.O. 482 (E), dated 4.3.2011, on the premise that turnover of the company of which shares have been acquired i.e. SHRIL did not have turn over in excess of Rs. 750/- crores whereas the other transactions were at the proposal agreement stage only.", "The transaction 6 (Market Purchases) has already been consummated prior to filing of the notice Under Section 6(2) of the Act on 14.2.2014.", "As such the Commission has rightly taken the view that all the above transaction being interconnected transactions or steps with the same ultimate effect were part of the single composite combination, therefore, non-notification of the part of the said combination, particularly, the consummation of market purchases was a violation of the Act.", "Thus, a penalty of Rupees One crore was rightly imposed by the Commission Under Section 43A of the Act.", "It was further urged that the Tribunal erred in holding that said transactions were not inter-dependent on each other.", "Tribunal also erred in holding that market purchases fell within the ambit of exemption notification i.e. S.O. 482 (E).", "The Tribunal has committed a gross error while not correctly identifying the issue as to combination.", "The combination was clearly a composite one, comprised of entire series of transaction steps and not any one transaction on a stand-alone basis.", "The penalty was rightly levied on the Respondents for their failure to notify the entire combination and avoiding regulatory scrutiny by notifying only a part thereof.", "Even if the market purchases could be said to be exempted, if taken in isolation, the entire composite combination could never be stated to be exempted, as the whole of it had to be notified in terms of Section 6(2).", "The violations were not purely technical, thus, the order passed by the tribunal be set aside.", "Per contra, on behalf of the Respondents learned senior Counsel contended that Section 5 of the Act defines the combination especially in terms of providing asset and turnover thresholds, is to ensure that the only transaction between enterprises or groups of enterprise above a specified critical size are scrutinized by the Commission, as these transactions are more likely to have a measurable market effect or an AAEC factors in the relevant market, therefore, may be required to be preempted and corrected by the Commission.", "It was further contended that a target based exemptions exempt certain transactions from the purview of the term combination as defined Under Section 5 of the Act.", "Under the Ministry of Corporate Affairs Notification S.O. 482 (E) dated 4.3.2011, certain transactions (in the nature of acquisition) are exempted from a requirement to mandatorily notify to the Commission.", "If the value of the assets or turnover of the target enterprise does not exceed a specified de minimis threshold, the transaction which qualifies under the Target Based Exemption are exempt from the purview of the combination Under Section 5 of the Act.", "Therefore, the Share Subscription Agreement (SSA), Share Purchase Agreement (SPA) and open offer are exempted under the Target Based Exemption on account of being acquisition of shares, are also eligible for the Target Based Exemption as admittedly the turnover of SHRIL was below the de minimis threshold.", "It was also contended that market purchases of 9.94 by TCISIL on the stock exchange were not interdependent on the main Merger Scheme.", "Merely because they were contemplated contemporaneously, did not mean that all the transactions were interdependent.", "The said market purchase finds no mention in either the merger scheme or the joint press release issued by Respondent Number 7 on 7.2.2014.", "The reference to part equity, part merger deal means the reference to merger scheme and acquisition of shares by way of Share Subscription Agreement, Share Purchase Agreement and open offer and not market purchases which were completely a separate and distinct acquisition.", "The Commission in the case of Vedanta Aluminium Limited held that transactions in a series of transactions which are inter-related and inter-dependent shall be considered as a composite whole if the ultimate objective can be achieved only on the successful completion of all such transactions in a series of transactions which are interrelated or interdependent.", "In the instant case, the Market Purchases do not satisfy this fundamental tenet established by the Commission as the Merger Scheme was in no way dependent upon the market purchases and would have been implemented irrespective of the market purchases.", "The learned Counsel further pointed out that there is a subsequent change in law with effect from March 28, 2014, after show cause notice but before passing the penalty order, the Commission introduced a new provision in the Combination Regulations.", "Regulation 9(5) which provides that requirement of filing notice shall be determined with respect to the substance of the transactions and any structure of the transaction(s) comprising a combination that has the effect of avoiding notice in respect of whole or part of the combination shall be disregarded.", "Thus, it was incumbent upon the Commission to look into the substance of the transaction.", "Lastly, it was contended that there were no malafides on the part of the Respondents.", "Notification to the Commission filed by the Respondents on 14.2.2014, did contain information about the market purchases under the heading Exempt Transactions on the basis that the Target Based Exemptions covered the market purchases.", "Thus, imposing a penalty on the Respondents for not having specifically identified the market purchases has been part of Notifiable Transaction is nothing more than a mere technicality.", "The Respondent was under a bona fide and genuine belief that market purchases were unconnected and moreover, exempt.", "Further, no malafides have been attributed to the Respondents even in the penalty order passed by the Commission on 21.05.2014 and when Commission had passed the Approval Order on 6.5.2014 and observed that market purchases would not result in an appreciable adverse effect on competition in the market, penalty ought not to have been imposed by the Commission.", "The Tribunal has rightly set it aside.", "Before proceeding to deal with the rival submissions, it is necessary to note the statutory framework of the Act.", "Section 5 of the Act defines the combination for the purposes of Act.", "Section 5 is extracted hereunder.", "The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if-- (a) any acquisition where-- the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have,-- (A) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India or the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have,-- (A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores or (B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen hundred crores in India or (b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if-- the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,-- (A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India or the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,-- (A) either in India, the assets of the value of more than rupees four thousand crores or turnover more than rupees twelve thousand crores or (B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen hundred crores in India or (c) any merger or amalgamation in which-- the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, as the case may be, have,-- (A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores or (B) in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India or the group, to which the enterprise remaining after the merger or the enterprise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,-- (A) either in India, the assets of the value of more than rupees four-thousand crores or turnover more than rupees twelve thousand crores or (B) in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees Fifteen Hundred Crores in India Under Section 5(a), a combination is formed if the acquisition by one person or enterprise of control, shares, voting rights or assets of another person or enterprise subject to certain threshold requirement that is minimum asset valuation or turn over within or outside India.", "Under Section 5(b) of the Act the combination is formed if the acquisition of control by a person over enterprise when such person has already acquired direct or indirect control over another enterprise engaged in the production, distribution or payment of a similar or identical or substitutable good provided that the exigencies provided in Section 5(b) in terms of asset or turnover are met.", "Under Section 5(c) merger and amalgamation are also within the ambit of combination.", "The enterprise remaining after merger or amalgamation subject to a minimum threshold requirement in terms of assets or turnover is covered within the purview of Section 5(c).", "Once a particular transaction or a series of transactions falls within the purview of combination, it is obligatory to report the same to the Commission Under Section 6 of the Act.", "Section 6(1) prohibits combinations which cause or likely to cause an adverse effect on the competition and such a combination shall be void.", "Section 6(2) of the Act requires that advance notice has to be given of the proposal to enter into a combination and that has to be given within 30 days of approval of the proposal relating to merger or amalgamation, execution of any agreement or other document or acquisition referred to in Section 5(a).", "Section 6(2) makes it clear that no combination shall come into effect until 210 days have elapsed from the date on which notice has been given to the Commission Under Section 6(2) and the Commission has passed orders Under Section 30(1), whichever is earlier.", "And once mandatory notice is given Under Section 6(2), the Commission has to deal with the same in accordance with the provisions contained in Sections 29, 30 and 31.", "Certain exceptions are carved out as to Public Financial Institutions, Foreign Investment Institutions, Banks or Public Venture Funds etc.", "funds Under Section 6(4) of the Act.", "On 4.3.2011, Central Government in the exercise of its powers Under Section 54(a) of the Act issued notification Number SO.", "482 E dated 4.3.2011, commonly known as target-based exemptions, which reads as under: In exercise of the powers conferred by Clause (a) of Section 54 of the Competition Act, 2002 (12 of 2003) the Central Government, in public interest hereby exempt an enterprise, whose control, shares, voting rights or assets are being acquired has assets of the value of not more than INR 250 crores in India or turnover of not more than INR 750 crores in India from the provisions of Section 5 of the said Act for a period of 5 years.", "Section 64 of the Act confers upon the Commission power to make Regulations.", "Under Section 64(3), the Regulations are to be placed before the Houses of Parliament.", "On 11.5.2011, the Commission framed the Competition Commission of India (Procedure in Regard to the Transaction of Business Relating to Combinations) Regulations, 2011 (for short, the Regulations, 2011).", "Regulation 9(4) as it stood at the relevant time, is as under: 9(4).", "Where the ultimate intended effect of a business transaction is achieved by way of a series of a steps or smaller individual transactions which are inter-connected or interdependent on each other, one or more of which may amount to a combination, a single notice, covering all these transactions, may be filed by the parties to the combination.", "It is relevant to note here that the Act and Regulations, 2011 clearly envisage that a combination can consist of one or more transactions.", "Under Regulation 9(4) of the Regulations, 2011, the parties have an option of giving either a single notice or multiple notices in respect of all the transactions.", "On 30.5.2011, Sections 5 and 6 of the Act were brought into force.", "It is apparent that between the three Respondent companies demerger of the resort of SHRIL on time-share basis took place.", "It was to be transferred to TCISIL in view of the equity shares of TCIL were to be issued to shareholders of SHRIL as per the ratio provided in the scheme.", "There was an amalgamation of SHRIL with its residual business into TCIL.", "There was shares subsequent transfer agreement.", "The TCISIL was to subscribe 2,06,50,000 shares of SHRIL to preferential allotment amounting to 22.86 of the equity share capital.", "TCISIL was to acquire 19.94 of equity share capital of SHRIL.", "Open Offer by TCIL and TCISIL was to purchase 26 of the equity share capital from public shareholders of SHRIL in terms of SEBIs Regulations and market purchases.", "TCISIL acquired 90,26,794 equity shares of SHRIL through purchase in Bombay Stock Exchange amount to 9.93 of equity share capital on the fully diluted basis.", "Public notice was published to the following effect: Sterling Holiday Resort (India) Limited Thomas Cook (India) Limited Sterling Holiday Resort (India) Limited, announce merger Merger focused on synergies and jointly leveraging growing Domestic Inbound travel, Vacation Ownership Hospitality opportunities.", "Post-merger, Sterling Holiday Resorts to continue operations under the leadership of Ramesh Ramanathan with an independent Board Based on equity investments and merger ratios the aggregate value of the two companies is approximately Rs. 3000 Cr.", "Mumbai, February 7, 2014 Thomas Cook (India) Limited (TCIL) - Indias leading integrated travel and travel related financial services company, and the 27-year-old vacation ownership pioneer, Sterling Holiday Resorts India Limited announced a merger between the companies today.", "The transaction is expected to close by the fourth quarter of 2014, subject to customary closing conditions and regulatory approval as required.", "The part equity, part merger deal-estimated to be valued at Rs. 870 Cr., is structured as a multi-stage process: TCIL Group will make a Preferential Allotment Investment for approximately 23.24 of approximately Rs. 190 Cr.", "into Sterling.", "TCIL Group purchases 23.63 stake from Sterling shareholders for Rs. 207 Cr.", "TCIL Group will make a mandatory open offer for buying up to 26 stake in Sterling for Rs. 230 Cr.", "TCIL Group has an option to buy an additional 7.22 stake from shareholders for Rs. 63 Cr.", "The merger will involve shares of TCIL being issued to Sterling shareholders at a defined swap ratio or 120:100 The merger brings significant synergies to both partners-with Thomas Cook India gaining access to Sterling Resorts network of 19 resorts in 16-holiday destinations across India.", "The company also has 15 additional sites where it plans to add new resorts in the coming years.", "Serlings affiliation with Resort Condominiums International (RCI)- the global expert in exchange vacations, also allows its members to vacation in over 4000 RCI affiliated resorts all over the world.", "The resolution passed by the Board of Director of TCIL on 7.02.2014.", "Share Subscription Agreement etc.", "and similar resolutions were passed by TCISIL and SHRIL.", "It is apparent that in the notification made Under Section 6(2) on 14.2.2014 notifiable transactions were shown regarding merger and amalgamation.", "It was also mentioned that parties have also contemplated certain other transactions in view of the notifiable transactions, they were the subscription of equity shares, SPA, open offer and market purchase.", "It is crystal clear from the aforesaid application itself that all these transactions were part of the same transactions and even before notifying the transactions of purchase from the market on 14.2.2014, it was consummated between 10.2.2014 to 12.2.2014.", "It is crystal clear that market purchases being a part of the composite combination was consummated before giving notice to the Commission.", "Joint Press Release dated 7.2.2014 clearly indicated SPA as an open offer.", "The Board of Directors of the respective parties authorized market purchases on the same day.", "All the said transactions are intrinsically connected and interdependent with each other and form part of one viable business transaction.", "Though market purchases have no references in MCA, SA, SPA and the scheme, the facts, and circumstances of the case, as the scheme was prepared on the same day and the three companies passed the resolution on the same day.", "All other acquisitions were made on the same day.", "Market purchases having been consummated between 10.2.2014 to 12.2.2014, which is almost after finalizing the composite combination clearly suggested that market purchases would not have taken place in the absence of scheme and the other acquisitions.", "In case they were not part of the same scheme that would not have been referred to in the notice filed by them with the Commission on 14.2.2014.", "Thus, in our considered opinion market purchases were not independent and were intrinsically related to the scheme and other acquisitions.", "Coming to the question of the exemption that was claimed, the market purchases do not qualify as a combination in view of the target exemption notification which exempts an enterprise if assets are of the value not more than INR Rs. 250 crores in India or turnover of not more than INR Rs. 750 crores in India.", "When series of transactions is envisaged to accomplish a combination, all the transactions have to be taken into consideration by the Commission, not an isolated transaction.", "While it is open for the parties to structure their transactions in a particular way the substance of the transactions would be more relevant to assess the effect on competition irrespective of whether such transactions are pursued through one or more step transactions.", "Structuring of transactions cannot be permitted in such a manner so as to avoid compliance with the mandatory provisions of the Act.", "For ensuring the compliance with the requirements of the Act it is open to considering whether the particular step was an individual transaction or part of the whole of the transaction.", "It was evident in the facts and circumstances of the case as TCISIL would not have made market purchase in the absence of any one transaction.", "Thus, market purchases could not have been termed to be independent transaction.", "Coming to the submission with respect to the effect of Regulation 9(4) of the combination Regulation.", "It is apparent that there is power under the Regulation 9(4) to consider the ultimate intended effect of transaction achieved by series of steps which are interconnected or interdependent on each other, it would depend upon the facts and circumstances of the case and a single notice may be filed by the parties to a combination.", "The Regulation envisages the possibility of a business transaction may be achieved by a combination by way of interconnected or interdependent steps transactions.", "Enabling provision to file single notice would not mean that in what particular manner transaction has taken place, same is to be determined on the facts and circumstances.", "The market purchases were not independent could not have been viewed in isolation for the purpose of the exemption.", "The provision of Regulation 9(4) clearly acknowledges the possibility of the business transaction being interconnected or interdependent steps of such transactions.", "Technical interpretation to isolate two different steps of transactions of a composite combination would be against the spirit and provision of the Act.", "Market purchases were not independent and could not be used in isolation for the purpose of any exemption.", "Regulation 9(4) cannot be interpreted to enable consummation by a composite combination before giving notice to the Commission.", "That would be defeating the intent and purpose of the Act and in particular Sections 5 and 6 thereof.", "If the ultimate objective test is applied, it is apparent that market purchases were within view of the scheme that was framed.", "As such the subsequent change of law also did not come to the rescue of the Respondents considering the substance of the transaction.", "The market purchases were part of the same transaction of the combination.", "Lastly, the submission raised that there were no malafides on the part of the Respondent as such penalty could not have been imposed.", "We are unable to accept the submission.", "The mens rea assumes importance in case of criminal and quasi criminal liability.", "For the imposition of penalty Under Section 43A, the action may not be mala fide in case there is a breach of the statutory provisions of the civil law, penalty is attracted simpliciter on its violation.", "The imposition of penalty was permissible and it was rightly imposed.", "There was no requirement of mens rea Under Section 43A or intentional breach as an essential element for levy of penalty.", "Section 43A of the Act does not use the expression the failure has to be willful or mala fide for the purpose of imposition of penalty.", "The breach of the provision is punishable and considering the nature of the breach, it is open to impose the penalty.", "In Hindustan Steel Limited v. State of Orissa  : AIR 1970 SC 253, with respect to imposition of penalty on failure to comply with the civil obligation this Court has laid down thus: In our opinion, mens rea is not an essential ingredient for contravention of the provision of a civil act.", "In our view, the penalty is attracted as soon as the contravention of the statutory obligations as contemplated by the Act is established and, therefore, the intention of the parties committing such violation becomes immaterial.", "In other words, the breach of a civil obligation which attracts penalty under the provisions of an Act would immediately attract the levy of penalty irrespective of the fact whether the contravention was made by the defaulter with any guilty intention or not.", "This apart that unless the language of the statute indicates the need to establish the element of mens rea.", "It is generally sufficient to prove that a default in complying with the statute has occurred.", "The penalty has to follow and only the quantum of penalty is discretionary.", "x x x In our considered opinion, a penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulation is established and hence intention of the parties committing such violation becomes wholly irrelevant.", "x x x We also further hold that unless the language of the statute indicates the need to establish the presence of mens rea, it is wholly unnecessary to ascertain whether such a violation was intentional or not.", "On a careful perusal of Section 15(D) (b) and Section 15-E of the Act, there is nothing which requires that mens rea must be proved before a penalty can be imposed under these provisions.", "Hence once the contravention is established then the penalty is to follow.", "The imposition of penalty Under Section 43A is on account of breach of a civil obligation, and the proceedings are neither criminal nor quasi-criminal the penalty has to follow.", "Only discretion in the 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+{"id": "SC_Excel Crop Care Limited vs Competition Commission of India and Ors 08052017 SC(1)", "text": ["K. Sikri, J. All these Civil Appeals arise out of the common judgment and order dated October 29, 2013 passed by the Competition Appellate Tribunal (for short, COMPAT).", "These proceedings have their origin in the letter dated February 04, 2011 written by the Food Corporation of India (for short, FCI) to the Competition Commission of India (for short, CCI) complaining of an anti-competitive agreement purportedly arrived at between M section Excel Crop Care Limited, M section United Phosphorous Limited (for short, UPL), M section Sandhya Organics Chemicals (P) Limited respectively (the Appellants in CA Numbers 2480, 2874 and 2922 of 2014 and hereinafter referred to as the Appellants) and Agrosynth Chemicals Limited, in relation to tenders issued by the FCI for Aluminium Phosphide Tablets (for short, APT) of 3 gms.", "between the years 2007 and 2009.", "The CCI entrusted the matter to the Director General (DG) for investigation, who submitted his report on October 14, 2011 giving his prima facie findings affirming the allegations of the FCI that the Appellants had entered into an anti-competitive agreement, which was violative of Section 3(3) of the Competition Act, 2002 (hereinafter referred to as the Act).", "On receipt of this complaint, the CCI issued notices to the Appellants who filed their objections.", "After hearing the parties, the CCI passed the order dated April 23, 2012 whereby it concluded that the Appellants had entered into the anti-competitive agreement in a concerted manner thereby offending the provisions of Section 3 of the Act.", "As a consequence, it imposed penalty 9 on the average total turnover of these establishments for last three years.", "Appeals were filed by the Appellants before the COMPAT Under Section 53-B of the Act.", "In these appeals, the issue on merits has been decided against the Appellants by COMPAT in its judgment dated October 29, 2013.", "These appeals question the validity of the order of the COMPAT on the aforesaid aspect.", "Now the facts in detail: An Inquiry in this case was initiated by the CCI on the basis of letter complaint dated February 04, 2011 written by the Chairman and Managing Director of the FCI to the CCI.", "It was alleged in this complaint that four manufacturers of APT had formed a cartel by entering into an anti-competitive agreement amongst themselves and on that basis they had been submitting their bids for last eight years by quoting identical rates in the tenders invited by the FCI for the purchase of APT.", "It was alleged that the requirement for APT was almost got doubled during the period 2007-2009 and was likely to rise further in view of the requirement of large quantity of these tablets by the FCI, Central Warehousing Corporation and other State agencies for preservation of food grains, which these agencies were storing in their godowns.", "The CCI assigned the complaint to the DG for investigation.", "The DG collected required information from the FCI and other Government agencies dealing in warehousing and storage of food grains and also from Central Insecticides Board and Registration Committee, Faridabad.", "Representatives of FCI were also examined.", "After collecting the aforesaid information, the DG submitted his report with the following findings: The main market of APT in India was that of the institutional sales and a majority of buyers were Government agencies.", "The number of private buyers was insignificant.", "APT is sold in the box of 3 gms.", "tablets, 12 gms.", "tablets, and a sachet of 10 gms.", "in powder.", "Out of this, 3 gms.", "tablets constitute 56 of the total sale.", "Sale of these 3 gms.", "tablets was restricted to the Government agencies and approved pest control operators, which could not be sold in the open market.", "These Government agencies were procuring APT tablets of 40 crores annually.", "There were only four manufacturers of APT, namely, M section Excel Crop Care Limited, M section UPL, M section Sandhya Organics Chemicals (P) Limited (which are the three Appellants herein) and Agrosynth Chemicals Limited.", "It was noted that the FCI had adopted the process of tender, which is normally a global tender.", "The concerned tender had two-bid system, that is first techno commercial and then the financial bid.", "On the basis of the bids, the rate running contracts are executed with successful bidders.", "The DG found that there was also a Committee comprising of responsible officers for evaluation of technical and price bids.", "As per the practice, the lowest bidder is invited by the Committee for negotiations and after negotiations, the Committee submits the report giving its recommendations and the contracts are awarded and after that the payment for the purchased tablets is released by the concerned regional offices.", "It was found that right from the year 2002, up to the year 2009, all the four parties used to quote identical rates, excepting for the year 2007.", "In 2002, Rs. 245/- was the rate quoted by these four parties and in the year 2005 it was 310 (though the tender was scrapped in this year and the material was purchased from Central Ware Housing Corporation 290).", "In November 2005, though the tenders were invited, all the parties had abstained from quoting.", "In 2007, M section UPL had quoted the price which was much below the price of other competitors.", "In 2008, all the parties abstained from quoting, while in 2009 only the three Appellants, barring Agrosynth Chemicals Limited, participated and quoted uniform rate of 388, which was ultimately brought down to 386 after negotiations.", "It was also found that the tender documents were usually submitted in-person and the rates were normally filled with hand.", "In respect of the tender floated in the year 2009 for procurement of fixed quantity of 600 MT with a provision of 10, the three Appellants had quoted identical rates of 388.", "It was found that the tender documents were to be submitted by 2:00 p.m. on May 08, 2009 and bid was to be opened at 3:00 p.m. on the same day.", "For submitting the bids, representatives of the three Appellants made common entries in the Visitors Register.", "In fact, one Shri S.K. Bose of M section Excel Crop Care Limited made these entries on behalf of the representatives of other competitors as well.", "By analysing the aforesaid bids carefully and taking into consideration the total number of 16 tenders, including tenders dated May 08, 2009, the DG recorded that: pricing pattern definitely showed the practice of quoting identical pricing by all the three Appellants or at some other times by two Appellants, including M section Agrosynth Chemicals Limited the explanation given by the Appellants was unconvincing.", "Though, the Appellants had stated that rise in price was mostly attributed to increase in price by China during the Beijing Olympics, but it was noticed that even during the period when the Phosphorous prices had fallen, no reflection thereof was seen in the high prices quoted by the Appellants examination of the cost structure of each company reflected that there was nothing common between the Appellants as far as the said cost structure was concerned and, therefore, quoting of identical prices by all the Appellants was unnatural and joint boycotting by the Appellants, at times, showed their concerted action, which happened again in March 2011 when the FCI had issued e-tender, which was closed on July 25, 2011.", "According to the DG, explanation given by the Appellants and M section Agrosynth Chemicals Limited for boycotting the said tender to the effect that tender conditions were very stringent, was an afterthought and did not inspire any confidence.", "As per the DG, even if the conditions were stringent, the Appellants could discuss the same with the FCI as there was sufficient time between March 2011 and July 25, 2011, but it was not done.", "On the basis of the aforesaid findings, the DG framed an opinion that the Appellants had contravened the provisions of Sections 3(3)(a), 3(3)(b) and 3(3)(d) read with Section 3(1) of the Act.", "The CCI took up the report of the DG for consideration and for this purpose sent a copy thereof to all the four manufacturers inviting their objections, if any, thereupon.", "Since M section Agrosynth Chemicals Limited was ultimately exonerated and spared by the CCI, it may not be necessary to deal with the objections of the said party.", "The three Appellants contested the report on facts as well as in law.", "Identical legal submissions were made, which are pointed out, in capsulated form, as under: Since Sections 3 and 4 of the Act were activated and brought into force only with effect from May 20, 2009, tenders prior to this date could not be the subject matter of inquiry for ascertaining whether there was any violation of Section 3 of the Act or not.", "Qua March 2009 tender, it was contended that last date of submission of tender was May 08, 2009 and the bids were submitted by the Appellants on that date, i.e., before the enforcement of Section 3, which came into operation on May 20, 2009.", "No doubt, the tender was evaluated and awarded only after May 20, 2009, but insofar as role of the Appellants is concerned, that came to an end on the submission of the tender and, therefore, tender of March, 2009 could not be the subject matter of enquiry.", "Insofar as tender of 2011 is concerned, it was contended that inquiry in respect of boycotting the said tender by the Appellants was without jurisdiction inasmuch as the FCI in its complaint dated February 04, 2011 did not mention about the said tender.", "On merits, increase in the price over a period of time, particularly between years 2009 and 2011, was sought to be justified on the ground that the price of yellow phosphorous, which was to be procured from China, had increased.", "It was further submitted that merely because there was identity of prices quoted by the Appellants, it would not mean that there was any bid rigging or formation of cartel by the Appellants.", "Submission in this behalf was that the market forces brought the situation where the prices became so competitive and it had led to the aforesaid trend.", "According to them, as a practice, the Central Warehousing Corporation finalised the tender in the beginning of a particular year which used to be considered as the benchmark for other tenders for that year resulting in likelihood of identical pricing.", "As far as common entry having been made by Mr. S.K. Bose of M section Excel Crop Care Limited on May 08, 2009 on behalf of the representatives of the other competitors as well in the Visitors Register is concerned, it was stated that since the representatives knew each other well and had entered the premises of FCI at the same time, Mr. Bose mentioned the names of others as well which was neither unnatural nor abnormal and no inference of cartel formation could be drawn therefrom.", "Boycotting of tender of May 2011 was tried to be justified on the ground that there were unreasonable conditions prescribed in the tender making it impossible to submit the bid, particularly, the condition of depositing 30 lakhs as Earnest Money Deposit (EMD), whereas in the earlier tenders the EMD was only 10 lakhs and 8.25 lakhs.", "It was further submitted that, notwithstanding the same price quoted by the Appellants, each time the tender was evaluated by a Committee of Officers of the FCI and no such suspicion was raised by the Committee.", "On the contrary, this aspect was specifically gone into and the Committee was satisfied that quoting of identical price was not due to any cartelisation.", "M section Sandhya Organics Chemicals (P) Limited raised an additional plea qua non-participation in the 2011 tender by submitting that it did not have the capacity to supply 75 MT per month, which was the requirement in the said tender and, therefore, it chose not to participate.", "The CCI passed the order discussing all the aforesaid aspects in detail and rejecting each and every contention of the Appellants, and, thereby concluding that the Appellants had entered into an agreement or understanding, and indulged in anti-competitive activities while submitting their bids in response to the tenders issued by the FCI.", "For indulging in anti-competitive practices in violation of the provisions of Section 3 of the Act, the CCI imposed penalties upon all the three Appellants at 9 of average 3 years turnover of these Appellants Under Section 27(b) of the Act.", "Quantifying the same, penalty to the tune of 63.90 crores was imposed upon M section Excel Crop Care Limited, 1.57 crores upon M section Sandhya Organics Chemicals (P) Limited, and UPL was fastened with the penalty of 252.44 crores.", "The Appellants filed three separate appeals before the COMPAT.", "The legal and factual arguments remained the same before COMPAT as well.", "In addition, argument was raised on the quantum of penalty.", "The COMPAT has, vide common judgment dated October 29, 2013, rejected all the contentions, except qua penalty, of the Appellants.", "Insofar as imposition of penalty is concerned, COMPAT has held that though penalty 9 of three years average turnover was not unreasonable, the penalty cannot be on the total turnover of these establishments, and has to be restricted to 9 of the relevant turnover, i.e. the turnover in respect of the quantum of supplies made qua the product for which cartel was formed and supplies made.", "In other words, it had to relate to the goods in question, namely, APT and turnover of other products manufactured and sold by the establishments, which were without blemish, could not be included for calculating the penalty.", "As noted above, before us, three appeals are filed by these manufacturers suppliers against the findings of the COMPAT holding that there was violation of Sections 3(3)(a), 3(3)(b) and 3(3)(d) of the Act on the part of the Appellants.", "On that basis, it is pleaded that those findings be declared as untenable and penalty imposed be set aside.", "On the other hand, the CCI has also preferred Civil Appeal Numbers 53-55 of 2014 against that part of the impugned order whereby penalty imposed upon these suppliers is restricted to relevant turnover instead of total turnover.", "Since submissions before us remain substantially the same, we are not pointing out the reasons given by the COMPAT which weighed with it after taking the aforesaid course of action, inasmuch as, while discussing the submissions of the parties, we shall be referring to the reasons adopted by the COMPAT.", "Having painted the canvas with seminal and essential facts, it becomes manifest that following issues arise for consideration in these appeals: Whether the dispute regarding violation of Section 3 of the Act by the Appellants could not be gone into in respect of tender of March, 2009, as Section 3 was operationalised only by notification dated 20th May, 2009? Whether CCI was barred from investigating the matter pertaining to the tender floated by FCI in March, 2011 because of the reason that FCI in its complaint dated 4th February, 2011 given to the CCI had not complained about this tender? Whether, on the facts of the case, conclusion of CCI that the Appellants had entered into an agreement arrangement and pursuant thereto indulged in collusive bidding by forming a cartel, resulting into contravention of Section 3(3)(a), 3(3)(b) and 3(3)(d) read with Section 3(1) of the Act, is justified? Whether penalty Under Section 27(b) of the Act has to be on total entire turnover of the offending company or it can be only on relevant turnover, i.e., relating to the product in question? First two issues are in the nature of preliminary objections that were raised by the Appellants, which are jurisdictional issues as the attempt of the Appellants is to show that CCI was not even empowered to look into the merits of the case because of those objections.", "Therefore, in the first instance, we deal with these issues.", "Issue Number 1 Re: Applicability of Section 3 of the Act in respect of Notice Inviting Tender (NIT) dated 28th March, 2009 Section 3 is the first provision in Chapter II of the Act.", "Chapter II is titled as Prohibition of certain agreements, abuse of dominant position and Regulation of combinations.", "It starts by specifying those agreements which are prohibited under this Chapter and Section 3 enumerates such prohibitive agreements.", "It reads as under: 3. (1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.", "Any agreement entered into in contravention of the provisions contained in Sub-section (1) shall be void.", "Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which- (a) directly or indirectly determines purchase or sale prices (b) limits or controls production, supply, markets, technical development, investment or provision of services (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this Sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.", "Explanation.-For the purposes of this Sub-section, bid rigging means any agreement, between enterprises or persons referred to in Sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including- (a) tie-in arrangement (b) exclusive supply agreement (c) exclusive distribution agreement (d) refusal to deal (e) resale price maintenance, shall be an agreement in contravention of Sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India.", "Explanation.-For the purposes of this Sub-section,- (a) tie-in arrangement includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods (b) exclusive supply agreement includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person (c) exclusive distribution agreement includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods (d) refusal to deal includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought (e) resale price maintenance includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged.", "Nothing contained in this Section shall restrict- the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under- (a) the Copyright Act, 1957 (14 of 1957) (b) the Patents Act, 1970 (39 of 1970) (c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999) (d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999) (e) the Designs Act, 2000 (16 of 2000) (f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export.", "At this juncture, it is the applicability of this Section which is dealt with.", "Though, the Competition Act is of the year 2002 and was passed by the Legislature on 13th January, 2003, as per the provisions of Section 1(3), the Act was to come into force from the date to be notified by the Central Government in the Official Gazette.", "Notification was issued by the Central Government wherein 31st March, 2003 was specified as the appointed date.", "However, vide this notification, some of the provisions of the Act, and not all the provisions, were enforced.", "Many other provisions came into force vide notification dated 19th June, 2003 and thereafter by notification dated 20th December, 2007 some more provisions were notified.", "Insofar as Section 3 of the Act is concerned, this provision along with many other provisions came into force on 20th May, 2009 vide S.O. 1241(E) dated 15th May, 2009 on which date the said notification was published in the Gazette of India as well.", "Remaining provisions were notified by subsequent notifications.", "It is, thus, a unique example where the entire Act was not enforced by one single notification but different provisions of the Act were enforced in bits and pieces by issuing various notifications over a span of time.", "NIT in question was issued by FCI on 28th March, 2009.", "Last date for submission of bids was 8th May, 2009.", "Few days thereafter, i.e., on 20th May, 2009, Section 3 of the Act was notified.", "It is on these facts, the argument constructed by the Appellants is that as on 8th May, 2009 when the Appellants had submitted their bids, Section 3 of the Act was not in operation and, therefore, tender of March, 2009 could not be the subject matter of inquiry by the CCI.", "According to the Appellants, if this is allowed, it would amount to introducing the provisions of Section 3 of the Act retrospectively though the provision was introduced only prospectively that is from the date of the notification.", "The answer to the aforesaid argument given by Mr. Neeraj Kaul, learned Additional Solicitor General appearing for the CCI, was that the NIT in question did not come to an end with the submission of bid on May 08, 2009.", "He pointed out that this bid was opened only on June 01, 2009, on which date Section 3 of the Act had already been activated.", "Not only this, bidders, that is all the Appellants, were called for negotiations on June 17, 2009 and thereafter the award of work was given by placing requisite orders.", "He, thus, submitted that principle of retroactivity is to be applied as the process of finalisation of the tender was still on.", "For the applicability of doctrine of retroactivity, Mr. Kaul referred to Section 18 of the Act which casts duty upon the CCI to examine adverse effect on the competition and enumerated following factors for the applicability of this principle: Continuing effect of agreements arrangement arrived at by the Appellants.", "Negotiations with the Appellants were held after the promulgation of Section 3 of the Act.", "From 2007 to 2011, the rates quoted by the Appellants tenderers were identical and in order to find out whether there was cartelisation or not, studying of this entire trend became relevant.", "In this continuing arrangement of cartelisation, period of 2009 and even thereafter gets included.", "Even boycott of 2011 tender by all the Appellants depicted their common intention which was the result of arrangement agreement between them.", "It is not in dispute that against this tender of 2009, all the Appellants had offered price of 388, even though their cost of production differed.", "The COMPAT, in the impugned order, has held that merely because 8th May, 2009 was the last date for submitting the tender, that would not be the end of the matter as that is not the relevant date for the purpose of applicability of Section 3 when the tendering process continued, as the Appellants had participated in the said tender process on 1st June, 2009 when the price bids were opened and offered the negotiated price on 17th June, 2009.", "This would mean that process of bidding was still on which went well beyond the date of notifying provisions of Section 3 of the Act.", "Relevant discussion in this behalf of the COMPAT is as under: In this behalf the CCI has also recorded a finding in paragraph 7.13 that 8.5.2009 is not the crucial date but even 1.6.2009 and 17.6.2009 are equally crucial.", "This discussion would mean that the illegality of collusive bidding or rigging the bidding which commenced on 8.5.2009 was continued thereafter on 1.6.2009 and 17.6.2009 also.", "The negotiation of prices with the lowest bidder, and in this case all the three Appellants were the lowest bidders, undoubtedly forms the part of the process of bid rigging and cannot be seen separately from the process of bidding.", "For that matter the process of bidding cannot be restricted to only one date i.e. on 8.5.2009.", "We have seen in this behalf the investigation report by the D.G. as also the finding arrived at by the CCI which in our opinion is a correct finding.", "In this behalf it cannot be ignored that all the three Appellants were informed by identical letters by the FCI one of which is found in Appeal Number 80/2012 more particularly on pages 361-362.", "The letter is in the following terms: Sub: Tender Enquiry Number Pur-15(4)/2008 dated 28.3.2009 for supply of 600 MTs 10 Al.", "Phosphide conforming to BIS Specification Number IS: 6438-1980 with up to date amendments, Technical Bid opened on 08.05.09 Price Bid opened on 01.06.2009 and negotiation held on 17.06.09.", "Gentlemen, Please refer to your offer letter Number UPLD:FCI:HQ:ALP:VKJ:09 dated 07.05.2009 and letter of negotiated offer dated 17.06.2009 against the above mentioned tender enquiry.", "Your offer for supply ALP 386000/- per MT i.e. Rs. 386/- per 18 kg net is hereby accepted for a quantity of 200 MT 10 strictly as per the terms and conditions as contained in the tender for including detailed NIT.", "This letter thus clarifies and proves that all the three Appellants had given the offer at Rs. 386/- per kg.", "which was identical offer for all the three Appellants.", "It is thus clear that the anti-competitive agreement which commenced on 8.5.209 continued thereafter also and manifested itself in the post date, negotiations which was the direct fall out of the original identical offer and at which the offer was reduced by the identical amounts.", "Each of the Appellant had the option of reducing the offer by a different amount or not reducing the offer or not reducing the offer at all and instead the three Appellants chose to continue their anti-competitive agreement right up to that date.", "The term process for bidding used in the explanation in Section 3(3) would thus cover every stage from notice inviting tender till the award of the contract and would also include all the intermediate stages such as pre-bid clarification and bid notifications also.", "Once this inference is reached on the basis of the interpretation of Section 3(3) explanation there would be no question of dearth of jurisdiction on the part of the CCI to firstly order the investigation into the matter and also to inquire itself into the complained illegality.", "The COMPAT has also noted that the anti-competitive conduct of the Appellants was not limited to the 2009 tender alone.", "It had considered tender dated November 03, 2009 floated by the U.P. State Warehousing Corporation, tender dated July 13, 2010 of the Central Warehousing Corporation, tender dated July 15, 2010 of the M.P. State Warehousing Corporation, and tender dated February 14, 2011 of the Punjab State Cooperative SS Marketing Federation and found that even against these tenders the Appellants had quoted identical prices.", "Keeping in view the said pattern of quotation, the COMPAT opined that notwithstanding any objection of the Appellants premised on retrospective application of Section 3, the anti-competitive conduct of APT manufacturers, i.e. the Appellants, continued right up to the year 2011, much after Section 3 of the Act had come into force.", "Therefore, even if 2009 tender was to be completely ignored, the provisions of the Act would nevertheless be attracted in the instant case.", "We are in complete agreement with the aforesaid view taken by the COMPAT.", "We are also of the firm view that provisions of Section 3 are applicable to 2009 tender as well.", "Chapter II of the Act deals with three kinds of practices which are treated as anti-competitive and prohibited.", "These are: (a) where agreements are entered into by certain persons with a view to cause an appreciable adverse effect on competition (b) where any enterprise or group of enterprises, which enjoys dominant position, abuses the said dominant position and (c) regulating the combination of enterprises by means of mergers or amalgamations to ensure that such mergers or amalgamations do not become anti-competitive or abuse the dominant position which they can attain.", "In the instant case, we are concerned with the first type of practices, namely, anti-competitive agreements.", "The Act, which prohibits anti-competitive agreements, has a laudable purpose behind it.", "It is to ensure that there is a healthy competition in the market, as it brings about various benefits for the public at large as well as economy of the nation.", "In fact, the ultimate goal of competition policy (or for that matter, even the consumer policies) is to enhance consumer well-being.", "These policies are directed at ensuring that markets function effectively.", "Competition policy towards the supply side of the market aims to ensure that consumers have adequate and affordable choices.", "Another purpose in curbing anti-competitive agreements is to ensure level playing field for all market players that helps markets to be competitive.", "It sets rules of the game that protect the competition process itself, rather than competitors in the market.", "In this way, the pursuit of fair and effective competition can contribute to improvements in economic efficiency, economic growth and development of consumer welfare.", "How these benefits accrue is explained in ASEAN Regional Guidelines on Competition Policy, in the following manner: 2.2 Main Objectives and Benefits of Competition Policy 2.2.1.1 Economic efficiency: Economic efficiency refers to the effective use and allocation of the economys resources.", "Competition tends to bring about enhanced efficiency, in both a static and a dynamic sense, by disciplining firms to produce at the lowest possible cost and pass these cost savings on to consumers, and motivating firms to undertake research and development to meet customer needs.", "2.2.1.2 Economic growth and development: Economic growth-the increase in the value of goods and services produced by an economy - is a key indicator of economic development.", "Economic development refers to a broader definition of an economys well-being, including employment growth, literacy and mortality rates and other measures of quality of life.", "Competition may bring about greater economic growth and development through improvements in economic efficiency and the reduction of wastage in the production of goods and services.", "The market is therefore able to more rapidly reallocate resources, improve productivity and attain a higher level of economic growth.", "Over time, sustained economic growth tends to lead to an enhanced quality of life and greater economic development.", "2.2.1.3 Consumer Welfare: Competition policy contributes to economic growth to the ultimate benefit of consumers, in terms of better choice (new products), better quality and lower prices.", "Consumer welfare protection may be required in order to redress a perceived imbalance between the market power of consumers and producers.", "The imbalance between consumers and producers may stem from market failures such as information asymmetries, the lack of bargaining position towards producers and high transaction costs.", "Competition policy may serve as a complement to consumer protection policies to address such market failures.", "The aforesaid guidelines also spell out few more benefits of such laws incorporating competition policies by highlighting the following advantages: 2.2.2 In addition, competition policy is also beneficial to developing countries.", "Due to worldwide deRegulation, privatisation and liberalisation of markets, developing countries need a competition policy, in order to monitor and control the growing role of the private sector in the economy so as to ensure that public monopolies are not simply replaced by private monopolies.", "2.2.3 Besides contributing to trade and investment policies, competition policy can accommodate other policy objectives (both economic and social) such as the integration of national markets and promotion of regional integration, the promotion or protection of small businesses, the promotion of technological advancement, the promotion of product and process innovation, the promotion of industrial diversification, environment protection, fighting inflation, job creation, equal treatment of workers according to race and gender or the promotion of welfare of particular consumer groups.", "In particular, competition policy may have a positive impact on employment policies, reducing redundant employment (which often results from inefficiencies generated by large incumbents and from the fact that more dynamic enterprises are prevented from entering the market) and favouring jobs creation by new efficient competitors.", "2.2.4 Competition policy complements trade policy, industrial policy and regulatory reform.", "Competition policy targets business conduct that limits market access and which reduces actual and potential competition, while trade and industrial policies encourage adjustment to the trade and industrial structures in order to promote productivity-based growth and regulatory reform eliminates domestic Regulation that restricts entry and exit in the markets.", "Effective competition policy can also increase investor confidence and prevent the benefits of trade from being lost through anticompetitive practices.", "In this way, competition policy can be an important factor in enhancing the attractiveness of an economy to foreign direct investment, and in maximizing the benefits of foreign investment.", "In fact, there is broad empirical evidence supporting the proposition that competition is beneficial for the economy.", "Economists agree that it has an important role to play in improving productivity and, therefore, the growth prospects of an economy.", "It is achieved in the following manner: International Competition Network-Economic Growth and Productivity: Competition contributes to increased productivity through: Pressure on firms to control costs.", "In a competitive environment, firms must constantly strive to lower their production costs so that they can charge competitive prices, and they must also improve their goods and services so that they correspond to consumer demands.", "Easy market entry and exit.", "Entry and exit of firms reallocates resources from less to more efficient firms.", "Overall productivity increases when an entrant is more efficient than the average incumbent and when an existing firm is less efficient than the average incumbent.", "Entry - and the threat of entry -incentivizes firms to continuously improve in order not to lose market share to or be forced out of the market by new entrants.", "Encouraging innovation.", "Innovation acts as a strong driver of economic growth through the introduction of new or substantially improved products or services and the development of new and improved processes that lower the cost and increase the efficiency of production.", "Incentives to innovate are affected by the degree and type of competition in a market.", "Pressure to Improve Infrastructure.", "Competition puts pressure on communities to keep local producers competitive by improving roads, bridges, docks, airports, and communications, as well as improving educational opportunities.", "Benchmarking.", "Competition also can contribute to increased productivity by creating the possibility of benchmarking.", "The productivity of a monopolist cannot be measured against rivals in the same geographic market, but a dose of competition quickly will expose inferior performance.", "A monopolist may be content with mediocre productivity but a firm battling in a competitive market cannot afford to fall behind, especially if the investment community is benchmarking it against its rivals.", "Productivity is increased through competition by putting pressure on firms to control costs as the producers strive to lower their production costs so that they can charge competitive prices.", "It also improves the quality of their goods and services so that they correspond to consumers demands.", "Competition law enforcement deals with anti-competitive practices arising from the acquisition or exercise of undue market power by firms that result in consumer harm in the forms of higher prices, lower quality, limited choices and lack of innovation.", "Enforcement provides remedies to avoid situations that will lead to decreased competition in markets.", "Effective enforcement is important not only to sanction anti-competitive conduct but also to deter future anti-competitive practices.", "When we recognise that competition has number of benefits, it clearly follows that cartels or anti-competitive agreements cause harm to consumers by fixing prices, limiting outputs or allocating markets.", "Effective enforcement against such practices has direct visible effects in terms of reduced prices in the market and this is also supported by various empirical studies.", "Keeping in view the aforesaid objectives that need to be achieved, Indian Parliament enacted Competition Act, 2002.", "Need to have such a law became all the more important in the wake of liberalisation and privatisation as it was found that the law prevailing at that time, namely, Monopolistic Restrictive Trade Practices Act, 1969 was not equipped adequately enough to tackle the competition aspects of the Indian economy.", "The law enforcement agencies, which include CCI and COMPAT, have to ensure that these objectives are fulfilled by curbing anti-competitive agreements.", "Once the aforesaid purpose sought to be achieved is kept in mind, and the same is applied to the facts of this case after finding that the anti-competitive conduct of the Appellants continued after coming into force of provisions of Section 3 of the Act as well, the argument predicated on retrospectivity pales into insignificance.", "One has to keep in mind the aforesaid objective which the legislation in question attempts to sub-serve and the mischief which it seeks to remedy.", "As pointed out above, Section 18 of the Act casts an obligation on the CCI to eliminate anti-competitive practices and promote competition, interests of the consumers and free trade.", "It was rightly pointed out by Mr. Neeraj Kishan Kaul, the learned Additional Solicitor General, that the Act is clearly aimed at addressing the evils affecting the economic landscape of the country in which interest of the society and consumers at large is directly involved.", "This is so eloquently emphasised by this Court in Competition Commission of India v. Steel Authority of India Limited and Anr.", " : (2010) 10 SCC 744 in the following manner: As far as the objectives of competition laws are concerned, they vary from country to country and even within a country they seem to change and evolve over the time.", "However, it will be useful to refer to some of the common objectives of competition law.", "The main objective of competition law is to promote economic efficiency using competition as one of the means of assisting the creation of market responsive to consumer preferences.", "The advantages of perfect competition are threefold: allocative efficiency, which ensures the effective allocation of resources, productive efficiency, which ensures that costs of production are kept at a minimum and dynamic efficiency, which promotes innovative practices.", "These factors by and large have been accepted all over the world as the guiding principles for effective implementation of competition law.", "xx xx xx The Bill sought to ensure fair competition in India by prohibiting trade practices which cause appreciable adverse effect on the competition in market within India and for this purpose establishment of a quasi-judicial body was considered essential.", "The other object was to curb the negative aspects of competition through such a body, namely, the Competition Commission of India (for short the Commission) which has the power to perform different kinds of functions, including passing of interim orders and even awarding compensation and imposing penalty.", "The Director General appointed Under Section 16(1) of the Act is a specialised investigating wing of the Commission.", "In short, the establishment of the Commission and enactment of the Act was aimed at preventing practices having adverse effect on competition, to protect the interest of the consumer and to ensure fair trade carried out by other participants in the market in India and for matters connected therewith or incidental thereto.", "The various provisions of the Act deal with the establishment, powers and functions as well as discharge of adjudicatory functions by the Commission.", "Under the scheme of the Act, this Commission is vested with inquisitorial, investigative, regulatory, adjudicatory and to a limited extent even advisory jurisdiction.", "Vast powers have been given to the Commission to deal with the complaints or information leading to invocation of the provisions of Sections 3 and 4 read with Section 19 of the Act.", "In exercise of the powers vested in it Under Section 64, the Commission has framed Regulations called the Competition Commission of India (General) Regulations, 2009 (for short the Regulations).", "The Act and the Regulations framed thereunder clearly indicate the legislative intent of dealing with the matters related to contravention of the Act, expeditiously and even in a time-bound programme.", "Keeping in view the nature of the controversies arising under the provisions of the Act and larger public interest, the matters should be dealt with and taken to the logical end of pronouncement of final orders without any undue delay.", "In the event of delay, the very purpose and object of the Act is likely to be frustrated and the possibility of great damage to the open market and resultantly, countrys economy cannot be ruled out.", "xx xx xx We have already noticed that the principal objects of the Act, in terms of its Preamble and the Statement of Objects and Reasons, are to eliminate practices having adverse effect on the competition, to promote and sustain competition in the market, to protect the interest of the consumers and ensure freedom of trade carried on by the participants in the market, in view of the economic developments in the country.", "In other words, the Act requires not only protection of free trade but also protection of consumer interest.", "The delay in disposal of cases, as well as undue continuation of interim restraint orders, can adversely and prejudicially affect the free economy of the country.", "Efforts to liberalise the Indian economy to bring it on a par with the best of the economies in this era of globalisation would be jeopardised if time-bound Schedule and, in any case, expeditious disposal by the Commission is not adhered to.", "The scheme of various provisions of the Act which we have already referred to including Sections 26, 29, 30, 31, 53-B(5) and 53-T and Regulations 12, 15, 16, 22, 32, 48 and 31 clearly show the legislative intent to ensure time-bound disposal of such matters.", "Having regard to the aforesaid objective, we are of the opinion that merely because the purported agreement between the Appellants was entered into and bids submitted before May 20, 2009 are no yardstick to put an end to the matter.", "No doubt, after the agreement, first sting was inflicted on May 8, 2009 when the bids were submitted and there was no provision like Section 3 on that date.", "However, the effect of the arrangement continued even after May 20, 2009, with more stings, as a result of which the Appellants bagged the contracts and fruits thereof reaped by the Appellants when Section 3 had come into force which frowns upon such kinds of agreements.", "We are, thus, of the opinion that inquiry into the tender of March 2009 by the CCI is covered by Section 3 of the Act inasmuch as the tender process, though initiated prior to the date when Section 3 became operation, continued much beyond May 20, 2009, the date on which the provisions of Section 3 of the Act were enforced.", "We agree with the COMPAT that the role of the Appellants did not come to an end with the submission of bid on May 08, 2009.", "In this behalf, it is to be emphasised again that merely by submitting the tenders, role of the Appellants as tenderers had not come to an end.", "As already pointed out, the DG in its report noted that FCI resorted to global tender which had two-bid systems: techno-commercial bid and financial bid.", "Those who qualified in techno-commercial process, their financial bids were to be opened.", "The Appellants had submitted their bids on May 08, 2009, which was the last date for this purpose.", "Bids were to be submitted by 2.00 pm on that day and were to be opened at 3.00 pm on the same day.", "The committee of responsible officers for evaluating the technical price bids was constituted.", "As per the practice, the lowest bidder is invited by the committee for negotiations.", "And after negotiations, the committee submits the report giving its recommendations on the basis of which contract is awarded.", "If there was variation in the prices quoted by the Appellants in their bids, things would have been different.", "Then L-I could have been called for negotiations.", "However, all the three Appellants quoted identical rates of Rs. 388/-.", "Because of this reason all the Appellants were LI and had to be called for negotiations.", "Therefore, bidding process did not come to an end on May 08, 2009 as argued by the Appellants.", "It continued even thereafter when the Appellants appeared before the committee for negotiations, much beyond May 20, 2009 the date on which provisions of Section 3 of the Act were enforced.", "In the aforesaid conspectus, principle of retroactivity would definitely apply.", "For this, we may usefully refer to the judgment of this Court in R. Rajagopal Reddy (dead) by L.Rs. and Ors.", "v. Padmini Chandrasekharan (dead) by L.Rs.", " : (1995) 2 SCC 630 wherein it was held that merely because an agreement relating to benami transaction was entered into prior to the coming into force of the Benami Transactions (Prohibition) Act, 1988, it would not mean that the provisions of the said Act would not apply retroactively to such an agreement and render it void.", "Likewise, in Zile Singh v. State of Haryana and Ors.", " : (2004) 8 SCC 1, this Court held that Rule against retrospectivity may not apply to a declaratory statute.", "Following these judgments, the Bombay High Court has described this very statute, with which we are dealing, to be retroactive in operation in Kingfisher Airlines v. Competition Commission of India  : (2010) 4 Comp.", "LJ 557 (Bom).", "Following discussion from that judgment needs to be reproduced: Shri Seervai, the learned Senior Counsel, submits that the very wording of Section 3 of the Act would make it clear that the Act is prospective in nature.", "He submits that even a plain reading of the provisions would go to show that.", "He contends that the legislature in its wisdom has not added any words in the Section to say that it would affect the agreement already entered into.", "He submits that if it wanted to bring the agreement, prior to coming into force of the Act, into its sweep, it would have and could have said so in very many words xx xx xx The Act nowhere declares the agreement already entered into as void.", "If the Section is read, it says that after coming into force of the Act, no person shall enter into an agreement in contravention of the provisions of the Act and if entered into, same shall be void.", "This, to our mind, at the most, would mean that the Act does not render the agreement entered into, prior to coming into force of the Act, void ab initio.", "Had the Act been retrospective in operation, it would render the agreement void ab initio.", "The agreement prior to coming into force of the new act was, therefore, certainly valid, for it was not in breach of any law or affected any law then existing.", "The question here is whether this agreement, which was valid until coming into force of the Act, would continue to be so valid even after the operation of the law.", "The parties as on today certain propose to act upon that agreement.", "All acts done in pursuance of the agreement before the Act came into force would be valid and cannot be questioned.", "But if the parties want to perform certain things in pursuance of the agreement, which are now prohibited by law, would certainly be an illegality and such an agreement by its nature, therefore, would, from that time, be opposed to the public policy.", "We would say that the Act could have been treated as operating retrospectively, had the Act rendered the agreement void ab initio and would render anything done pursuant to it as invalid.", "The Act does not say so.", "It is because the parties still want to act upon the agreement even after coming into force of the Act that difficulty arises.", "If the parties treat the agreement as still continuing and subsisting even after coming into force of the Act, which prohibits an agreement of such nature, such an agreement cannot be said to be valid from the date of the coming into force of the Act.", "If the law cannot be applied to the existing agreement, the very purpose of the implementation of the public policy would be defeated.", "Any and every person may set up an agreement said to be entered into prior to the coming into force of the Act and then claim immunity from the application of the Act.", "Such thing would be absurd, illogical and illegal.", "The moment the Act comes into force, it brings into its sweep all existing agreements.", "This can be explained further by quoting the following example: A and B enter into agreement of sale of land on 2/1/2008.", "It is agreed between them that sale-deed would be executed on or before 2/1/2009.", "Meanwhile, i.e. on 10/8/2008, the Government decides to impose a ban on transfer of the land and declares that any such transfer, if effected, shall be void.", "The question is, could the parties say that since their agreement being prior to Government putting a ban on transfer, their case is not covered by the ban? The answer has to be in the negative, as on the day the contract is sought to be completed, it is prohibited.", "Similar would be the result in the instant case.", "We approve the aforesaid view taken by the Bombay High Court.", "It may be added that had the anti-competitive agreement between the Appellants been executed and completed in its entirety prior to May 20, 2009, i.e. nothing further was left to be done and all actions as contemplated by the agreement had already been accomplished, it could perhaps be argued that the Act was not applicable to such an agreement or actions taken pursuant to the agreement.", "However, that is not the factual position in the instant case as the purported arrangement entered into by the Appellants continued to be acted upon even after May 20, 2009.", "The COMPAT has referred to the explanation to Section 3(3)(d) also while arriving at the conclusion that May 08, 2009 cannot be the determinative date on which the bid was submitted, as manipulating the process of bidding is also covered by virtue of the said explanation and this process of bidding continued even after May 20, 2009.", "Learned Counsel for the Appellants submitted that this explanation has no application as it referred only to bid rigging which is different from collusive bidding.", "In an attempt to distinguish the two expressions, it was argued that although the terms bid rigging or collusive bidding may, in certain contexts, overlap or even may be referred to as synonyms, in certain context they may cover activities which are not identical.", "Bid rigging may cover larger and more varied activities than collusive bidding.", "It was submitted that in view of the specific exclusion of collusive bidding from the Explanation, an activity which squarely falls within the scope of collusive bidding would not be covered by the Explanation and would be excluded from it.", "Submission is that since the allegation in the present case relating to identical pricing or identical reduction in price squarely falls within the term collusive pricing, the Explanation has no relevance to the present case.", "Mr. Neeraj Kishan Kaul, learned Additional Solicitor General, refuted the aforesaid submission with vehemence by urging that bid rigging and collusive bidding are not mutually exclusive and these are overlapping concepts.", "Illustratively, he referred to the findings of the CCI, as approved by the COMPAT, in the instant case itself to the effect that the Appellants herein had manipulated the process of bidding on the ground that bids were submitted on May 08, 2009 collusively, which was only the beginning of the anti-competitive agreement between the parties and this continued through the opening of the price bids on June 01, 2009 and thereafter negotiations on June 17, 2009 when all the parties reduced their bids by same figure of 2 to bring their bid down to 386 per kg.", "from 388 per kg.", "From this example, he submitted that on May 08, 2009 there was a collusive bidding but with concerted negotiations on June 17, 2009, in the continued process, it was rigging of the bid that was practiced by the Appellants.", "We are inclined to agree with this pellucid submission of the learned Additional Solicitor General.", "Richard Whish and David Bailey1, in their book, have given illustrations of various forms of collusive bidding bid rigging, which include: Level tendering bidding (i.e. bidding at same price - as in the present case).", "Cover bidding courtesy bidding.", "Bid rotation.", "Bid Allocation.", "Even internationally, collusive bidding is not understood as being different from bid rigging.", "These two expressions have been used interchangeably in the following international commentaries glossaries and websites of competition authorities: UNCTAD Competition Glossary dated June 22, 2016 Bid Rigging or Collusive Tendering is a manner in which conspiring competitors may effectively raise prices where business contracts are awarded by means of soliciting competitive bids.", "Essentially, it relates to a situation where competitors agree in advance who will win the bid and at what price, undermining the very purpose of inviting tenders which is to procure goods or services on the most favourable prices and conditions.", "OECD Glossary of Industrial Organisation Economics Competition Law.", "Bid rigging is a particular form of collusive price-fixing behaviour by which firms coordinate their bids on procurement or project contracts.", "There are two common forms of bid rigging.", "In the first, firms agree to submit common bids, thus eliminating price competition.", "In the second, firms agree on which firm will be the lowest bidder and rotate in such a way that each firm wins an agreed upon number or value of contracts.", "Since most (but not all) contracts open to bidding involve governments, it is they who are most often the target of bid rigging.", "Bid rigging is one of the most widely prosecuted forms of collusion.", "Collusive bidding (tendering) - See Bid Rigging This shows collusive bidding and bid rigging are treated as one and the same OECD Guidelines for fighting bid rigging Bid rigging (or collusive tendering) occurs when businesses, that would otherwise be expected to compete, secretly conspire to raise prices or lower the quality of goods or services for purchasers who wish to acquire products or services through a bidding process.", "United States Office of the Inspector General, Investigations (Fraud Indicators Handbook) Collusive bidding, price fixing or bid rigging, are commonly used interchangeable terms which describe many forms of an illegal anti-competitive activity.", "The common thread throughout all these activities is that they involve any agreements or informal arrangements among independent competitors, which limit competition.", "Agreements among competitors which violate the law include but are not limited to: Agreements to adhere to published price lists.", "Agreements to raise prices by a specified increment.", "Agreements to establish, adhere to, or eliminate discounts.", "Agreements not to advertise prices.", "Agreements to maintain specified price differentials based on quantity, type or size of product.", "Australian Competition Consumer Commission Bid rigging, also referred to as collusive tendering, occurs when two or more competitors agree they will not compete genuinely with each other for tenders, allowing one of the cartel members to win the tender.", "Participants in a bid rigging cartel may take turns to be the winner by agreeing about the way they submit tenders, including some competitors agreeing not to tender.", "As the Leigman of the law, it is our task, nay a duty, to give proper meaning and effect to the aforesaid Explanation: it can easily be discussed that the Legislature had in mind that the two expressions are inter-changeably used.", "It is also necessary to keep in mind the purport behind Section 3 and the objective it seeks to achieve.", "Sub-section (1) of Section 3 is couched in the negative terms which mandates that no enterprise or association of enterprises or person or association of persons shall enter into any agreement, when such agreement is in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services and it causes or is likely to cause an appreciable adverse effect on competition within India.", "It can be discerned that first part relates to the parties which are prohibited from entering into such an agreement and embraces within it persons as well as enterprises thereby signifying its very wide coverage.", "This becomes manifest from the reading of the definition of enterprise in Section 2(h) and that of person in Section 2(1) of the Act.", "Second part relates to the subject matter of the agreement.", "Again it is very wide in its ambit and scope as it covers production, supply, distribution, storage, acquisition or control of goods or provision of services.", "Third part pertains to the effect of such an agreement, namely, appreciable adverse effect on competition, and if this is the effect, purpose behind this provision is not to allow that.", "Obvious purpose is to thwart any such agreements which are anti-competitive in nature and this salubrious provision aims at ensuring healthy competition.", "Sub-section (2) of Section 3 specifically makes such agreements as void.", "Sub-section (3) mentions certain kinds of agreements which would be treated as ipso facto causing appreciable adverse effect on competition.", "It is in this backdrop and context that Explanation beneath Sub-section (3), which uses the expression bid rigging, has to be understood and given an appropriate meaning.", "It could never be the intention of the Legislature to exclude collusive bidding by construing the expression bid rigging narrowly.", "No doubt, Clause (d) of Sub-section (3) of Section 3 uses both the expressions bid rigging and collusive bidding, but the Explanation thereto refers to bid rigging only.", "However, it cannot be said that the intention was to exclude collusive bidding.", "Even if the Explanation does contain the expression collusive bidding specifically, while interpreting Clause (d), it can be inferred that collusive bidding relates to the process of bidding as well.", "Keeping in mind the principle of purposive interpretation, we are inclined to give this meaning to collusive bidding.", "It is more so when the expressions bid rigging and collusive bidding would be overlapping, under certain circumstances which was conceded by the learned Counsel for the Appellants as well.", "We are, therefore, of the opinion that the two expressions are to be interpreted using the principle of noscitur a sociis, i.e. when two or more words which are susceptible to analogous meanings are coupled together, the words can take colour from each other See - Leelabai Gajanan Pansare and Ors.", "v. Oriental Insurance Company Limited and Ors.", " : (2008) 9 SCC 720, Thakorlal D. Vadgama v. State of Gujarat  : (1973) 2 SCC 413, and M.K. Ranganathan v. Government of Madras and Ors.", " : (1955) 2 SCR 374.", "We, thus, answer Issue Number 1 in the negative by holding that the CCI was well within its jurisdiction to hold an enquiry Under Section 3 of the Act in respect of tender of March, 2009.", "ISSUE Number 2 Re.: Jurisdiction of DG CCI to investigate into the boycott of 2011 FCIs tender The CCI had entrusted the task to DG after it received representation complaint from the FCI vide its communication dated February 04, 2011.", "Argument of the Appellants is that since this communication did not mention about the 2011 tender of the FCI, which was in fact even floated after the aforesaid communication, there could not be any investigation in respect of this tender.", "It is more so when there was no specific direction in the CCIs order dated February 24, 2011 passed Under Section 26(1) of the Act and, therefore, the 2011 tender could not be the subject matter of inquiry when it was not referred to in the communication of the FCI or order of the CCI.", "The COMPAT has rejected this contention holding that Section 26(1) is wide enough to cover the investigation by the DG, with the following discussion: As per the Sub-section (1) of Section 26, there can be no doubt that the DG has the power to investigate only on the basis of the order passed by the Commission Under Section 26(1).", "Our attention was also invited to Sub-section (3) of Section 26 under which the Director-General, on receipt of direction under Sub-section (1) is to submit a report of its findings within such period as may be specified by the Commission.", "The argument of the parties is that if on the relevant date when the Commission passed the order, even the tender notice was not floated, then there was no question of Direction General going into the investigation of that tender.", "It must be noted at this juncture that Under Section 18, the Commission has the duty to eliminate practices having adverse effect on competition and to promote and sustain competition.", "It is also required to protect the interests of the consumers.", "There can be no dispute about the proposition that the Director General on his own cannot act and unlike the Commission, the Director General has no suo-moto power to investigate.", "That is clear from the language of Section 41 also, 28 which suggests that when directed by the Commission, the Director General is to assist the Commission in investigating into any contravention of the provisions of the Act.", "Our attention was also invited to the Regulations and more particularly to Regulation 20, which pertains to the investigation by the Director General.", "Sub-Regulation (4) of Section 20 was pressed into service by all the learned Counsel, which is in the following term: The report of the Director-General shall contain his findings on each of the allegations made in the information or reference, as the case may be, together with all evidences or documents or statements or analyses collected during the investigation: (proviso not necessary) From this, the learned Counsel argued that the Director General could have seen into the tender floated on 08.05.2009 only, and no other tender as the information did not contain any allegation about the tender floated in 2011.", "Therefore, the investigation made into the tender floated in 2011 was outside the jurisdiction of the Director General.", "This argument was more particularly pressed into service, as the Director General as well as the Competition Commission of India have found that all the Appellants had entered into an agreement to boycott the tender floated in 2011 and thereby had rigged the bids.", "We have absolutely no quarrel with the proposition that the Director General must investigate according to the directions given by the CCI Under Section 26(1).", "There is also no quarrel with the proposition that the Director General shall record his findings on each of the allegations made 29 in the information.", "However, it does not mean that if the information is made by the FCI on the basis of tender notice dated 08.05.2009, the investigation shall be limited only to that tender.", "Everything would depend upon the language of the order passed by the CCI on the basis of information and the directions issued therein.", "If the language of the order of Section 26(1) is considered, it is broad enough.", "At this juncture, we must refer to the letter written by Chairman and Managing Director of FCI, providing information to the CCI.", "The language of the letter is clear enough to show that the complaint was not in respect of a particular event or a particular tender.", "It was generally complained that Appellants had engaged themselves in carteling.", "The learned Counsel Shri Virmani as well as Shri Balaji Subramanian are undoubtedly correct in putting forth the argument that this information did not pertain to a particular tender, but it was generally complained that the Appellants had engaged in the anticompetitive behaviour.", "When we consider the language of the order passed by the CCI Under Section 26(1) dated 23.04.2012 the things becomes all the more clear to us.", "The language of that order is clearly broad enough to hold, that the Director General was empowered and duty bound to look into all the facts till the investigation was completed.", "If in the course of investigation, it came to the light that the parties had boycotted the tender in 2011 with pre-concerted agreement, there was no question of the DG not going into it.", "We must view this on the background that when the information was led, the Commission had material only to form a prima facie view.", "The said prima-facie view could not restrict the Director General, if he was duty bound to carry out a comprehensive investigation in keeping with the direction by CCI.", "In fact the DG has also taken into 30 account the tenders by some other corporations floated in 2010 and 2011 and we have already held that the DG did nothing wrong in that.", "In our opinion, therefore, the argument fails and must be rejected.", "We entirely agree with the aforesaid view taken by the COMPAT.", "If the contention of the Appellants is accepted, it would render the entire purpose of investigation nugatory.", "The entire purpose of such an investigation is to cover all necessary facts and evidence in order to see as to whether there are any anti-competitive practices adopted by the persons complained against.", "For this purpose, no doubt, the starting point of inquiry would be the allegations contained in the complaint.", "However, while carrying out this investigation, if other facts also get revealed and are brought to light, revealing that the persons or enterprises had entered into an agreement that is prohibited by Section 3 which had appreciable adverse effect on the competition, the DG would be well within his powers to include those as well in his report.", "Even when the CCI forms prima facie opinion on receipt of a complaint which is recorded in the order passed Under Section 26(1) of the Act and directs the DG to conduct the investigation, at the said initial stage, it cannot foresee and predict whether any violation of the Act would be found upon investigation and what would be the nature of the violation revealed through investigation.", "If the investigation process is to be restricted in the manner projected by the Appellants, it would defeat the very purpose of the Act which is to prevent practices having appreciable adverse effect on the competition.", "We, therefore, reject this argument of the Appellants as well touching upon the jurisdiction of the DG.", "ISSUE Number 3: RE.", ": MERITS It is not in dispute that in respect of 2009 tender of the FCI, all the three Appellants had quoted the same price, i.e. 388 per kg.", "for the APT.", "The Appellants have attempted to give their explanations and have contended that it cannot be presumed that it was the result of any prior agreement or arrangement between them.", "This aspect shall be taken note of and dealt with in detail later at the appropriate stage.", "Before that, it needs to be highlighted that it is not only 2009 FCI tender in respect of which DG found the violation.", "Pertinently, the investigation of DG revealed that the Appellants had been quoting such identical rates much prior to and even after May 20, 2009.", "No doubt, in relation to tenders prior to 2009, it cannot be said that there was any violation of law by the Appellants.", "However, prior practice definitely throws light on the formation of cartelisation by the Appellants, thereby making it easier to understand the events of 2009 tender.", "Therefore, to take a holistic view of the matter, it would be essential to point out that the DG in his report had tabulated this tendency of quoting identical rates by these parties in respect of various tenders issued by even other Government bodies before and after 2009.", "The statistics in this behalf, given in tabulated form by the DG, are reproduced below: The aforesaid table shows identical pricing by these parties even in respect of tenders floated by the U.P. State Warehousing Corporation and Punjab State Civil Supplies Corporation.", "It was repeated in respect of 2008 tender floated by the Central Warehousing Corporation.", "Tenders up to section Number 7 above, no doubt, relate to the period which is earlier to coming into force of the provisions of Section 3.", "At section Number 8 is the tender of the FCI of March, 2009, which is held to be covered on the principle of retroactivity, as already held above.", "However, insofar as tenders mentioned at section Numbers 9 to 16 are concerned, they all pertain to the period after Section 3 became operational.", "These are clear cut examples of identical pricing by the three Appellants.", "No doubt, the Appellants cannot be penalised in respect of tenders mentioned at section Numbers 1 to 7 as there was no provision like Section 3 at that time.", "However, such illustrations become important in finding out the mens rea of the Appellants, i.e. arriving at an agreement to enter into collusive bidding which continued with impunity right up to 2011.", "Further, this trend of quoting identical price in respect of so many tenders, not only of FCI but other Government bodies as well, is sufficient to negate all explanations given by the Appellants taking the pretext of coincidence or economic forces.", "We may record here the submission of Mr. Krishnan Venugopal, learned senior Counsel appearing for M section Excel Crop Care Limited, that the APT pesticide is needed only by the FCI and the Central Warehousing Corporation or the Central and State Warehousing Corporations and it creates a monopoly situation where buyer is in a dominant position.", "There are only four suppliers who are given MFN status, but since the supply is only to the aforesaid Government agencies, the supplier is entirely dependent upon these parties for supplies.", "It creates oligopoly market.", "It was argued that since dominant position is enjoyed by the buyer, it leads to parallel pricing and this conscious parallelism takes place leading to quoting the same price by the suppliers.", "The explanation, thus, given for quoting identical price was the aforesaid economic forces and not because of any agreement or arrangement between the parties.", "It was submitted that merely because same price was quoted by the Appellants in respect of the 2009 FCI tender, one could not jump to the conclusion that there was some agreement as well between these parties, in the absence of any other evidence corroborating the said factum of quoting identical price.", "In respect of this submission, Mr. Venugopal had also referred few judgments.", "The aforesaid argument is highly misconceived.", "A neat and pellucid reply of Mr. Kaul, which commands acceptance, is that argument of parallelism is not applicable in bid cases and it fits in the realm of market economy.", "It is for this reason the entire history of quoting identical price before coming into operation of Section 3 and which continued much after Section 3 of the Act was enforced has been highlighted.", "There cannot be coincidence to such an extent that almost on all occasions price quoted by the three Appellants is identical, not even few paisa more or less from each other.", "That too, when the cost structure, i.e. cost of production of this product, of the three Appellants sharply varies with each other.", "Following factors in this behalf need to be highlighted: (a) there is a 10 years history of quoting identical prices (b) there are only four suppliers of the product in the market out of which three are the Appellants (c) even when the cost of production is different, they have quoted identical price (d) even when the geographical location of the three suppliers is different, strange coincidence of identical pricing is found, that too repeatedly (e) profit margins would be different, still quotations are same and (f) to different parties in respect of different tenders, different rates are quoted.", "Still whatever price is quoted in respect of one particular tender, that is identical.", "It would be too much of a coincidence, difficult to believe.", "Thus, onus was on the Appellants in view of Section 3 of the Act, and that too heavy onus, to justify the above trend, but they have failed to discharge this burden.", "We are, therefore, of the opinion that ingredients of Section 3 stand satisfied and the CCI rightly held that provisions of Section 3(3)(a), 3(3)(b) and 3(3)(d) have been contravened by the Appellants.", "It needs to be emphasised that collusive tendering is a practice whereby firms agree amongst themselves to collaborate over their response to invitations to tender.", "Main purpose for such collusive tendering is the need to concert their bargaining power, though, such a collusive tendering has other benefits apart from the fact that it can lead to higher prices.", "Motive may be that fewer contractors actually bother to price any particular deal so that overheads are kept lower.", "It may also be for the reason that a contractor can make a tender which it knows will not be accepted (because it has been agreed that another firm will tender at a lower price) and yet it indicates that the said contractor is still interested in doing business, so that it will not be deleted from the tenderees list.", "It may also mean that a contractor can retain the business of its established, favoured customers without worrying that they will be poached by its competitors.", "Collusive tendering takes many forms.", "Simplest form is to agree to quote identical prices with the hope that all will receive their fair share of orders.", "That is what has happened in the present case.", "However, since such a conduct becomes suspicious and would easily attract the attention of the competition authorities, more subtle arrangements of different forms are also made between colluding parties.", "One system which has been noticed by certain competition authorities in other countries is to notify intended quotes to each other, or more likely to a central secretariat, which will then cost the order and eliminate those quotes that it considers would result in a loss to some or all members of the cartel.", "Another system, which has come to light, is to rotate orders.", "In such a case, the firm whose turn is to receive an order will ensure that its quote is lower than the quotes of others.", "We are here concerned with parallel behaviour.", "We are conscious of the argument put forth by Mr. Venugopal that in an oligopoly situation parallel behaviour may not, by itself, amount to a concerted practice.", "It would be apposite to take note of the following observations made by U.K. Court of Justice in Dyestuffs (1972) ECR 619 By its very nature, then, the concerted practice does not have all the elements of a contract but may inter alia arise out of coordination which becomes apparent from the behaviour of the participants.", "Although parallel behaviour may not itself if identified with a concerted practice, it may however amount to strong evidence of such a practice if it leads to conditions of competition which do not respond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market.", "Such is the case especially where the parallel behaviour is such as to permit the parties to seek price equilibrium at a different level from that which would have resulted from competition, and to crystallise the status quo to the detriment of effective freedom of movement of the products in the internal market and free choice by consumers of their suppliers (Emphasis added) At the same time, the Court also added that the existence of a concerted practice could be appraised correctly by keeping in mind the following test: If the evidence upon which the contested decision is based is considered, not in isolation, but as a whole, account being taken of the specific features of the products in question.", "It would be significant to note that in Dyestuffs judgment, the Court rejected the argument predicated on Oligopolistic market structure, after finding that the market is not a pure oligopoly: rather it was one in which firms could realistically be expected to adopt their own pricing strategies, particularly, in view of the compartmentalisation of the markets along national boundaries.", "In the instant case, argument of oligopoly market was not even raised either before the CCI or COMPAT.", "Moreover, with the eloquent facts, mentioned above, staring at the Appellants, we do not agree with the arguments put forth by Mr. Venugopal.", "At this juncture, we would advert to tender of May, 2011.", "It is not in dispute that all the three Appellants, as well as M section Agrosynth Chemicals Limited did not participate in the said tender.", "These are the four manufacturers in all.", "When this fact is not in dispute, the only question is as to whether it was a concerted action on the part of the Appellants herein.", "According to all the Appellants, their decision not to participate in the aforesaid bid was the onerous, unreasonable, arbitrary and unquestionable conditions that were put in the said tender.", "As these were not acceptable to them, they individually decided not to take part in the tender, which was a valid business decision and not result of pre-concerted agreement of the Appellants.", "The conditions which are perceived as onerous by these Appellants are the following: Earnest money deposit was raised from 10 lakhs to 30 lakhs.", "Supply required as per this standard was 75 MT per month which was too high a demand requirement and it was difficult to effect supplies of this magnitude every month.", "M section Sandhya Organics Chemicals (P) Limited additionally submitted that they had placed on record that their production capacity was much less and supplying 75 MT of APT every month was beyond their means.", "Therefore, they were unable to tender against the said NIT.", "Before the COMPAT, M section Excel Crop Care Limited attempted to project their bona fides by showing that they had even written letter dated May 26, 2011 to the FCI conveying their inability to take part in that tender.", "The COMPAT, after discussing the matter, arrived at the conclusion that it was clearly an after-thought move, inasmuch as the tender was published on April 28, 2011 and the last date for submitting the price bids was May 27, 2011, but only a day before i.e. on May 26, 2011, such a letter was sent by M section Excel Crop Care Limited to the FCI.", "Insofar as M section UPL is concerned, it did not even bother to give any representation.", "Likewise, M section Sandhya Organics did not approach the FCI at all with the representation that the quantities to be supplied were huge and the tender conditions be suitably modified.", "We feel that COMPAT has examined the matter in right perspective.", "After examining the record, one finds that important fundamental conditions were the same which used to be in the earlier tenders.", "In 2009 tender, a specific quantity of 600 MT was prescribed.", "At that time, all the three Appellants participated and did not object to the same.", "As against this in 2011 tender, the tentative annual requirement of APT was stated to be 400 MT and not 75 MT per month.", "The condition referred to by the Appellants was not for supply of 75 MT per month.", "It only stated that in a given month the tenderer should have capacity to supply 75 MT.", "It was nowhere stated that 75 MT will have to be supplied by the successful tenderer every month.", "In any case, from the conduct of the three Appellants, it becomes manifest that reason to boycott the May 2011 tender was not the purported onerous conditions, but it was a concerted action.", "Otherwise, if the Appellants were genuinely interested in participating in the said tender and were aggrieved by the aforesaid conditions, they could have taken up the matter with the FCI well in time.", "They, therefore, could request the FCI to drop the same (in fact FCI dropped these conditions afterwards when the matter was brought to their notice).", "However, no such effort was made.", "As pointed out above, M section Excel Crop Care wrote the letter only a day before, just to create the record which cannot be termed as a bona fide move on its part.", "UPL did not even make any such representation in writing.", "Likewise, M section Sandhya Organics Chemicals (P) Limited would not have liked itself to be rendered disqualified and silently swallowed this situation.", "After all, it would have liked to remain a supplier of APT to FCI having regard to the fact that the said product is consumed by handful of Government sector undertakings.", "Therefore, not making any sincere effort in this behalf by any of the Appellants clearly shows that they were in hand in glove in taking a decision not to bid against this tender.", "This conclusion gets strengthened by the fact that these are the only four suppliers (including three Appellants) in the market for this product.", "Reaction of not participating in the said tender by four suppliers could have been perceived otherwise, had there been a number of manufacturers in the market and four out of them abstaining.", "Abstention by hundred percent (who are only four) makes the things quite obvious.", "Events get quite apparent when examined along with past history of quoting identical prices, an aspect already commented above.", "Since collusion stands proved by the aforesaid conduct of the Appellants in abstaining from the bidding in respect of May 2011 tender, requirement of Section 3(3)(d) of the Act read with explanation thereto stands satisfied, viz., concerted action based on an agreement arrangement between the Appellants, resulted in restricting or manipulating competition or process of bidding, since the said act was collusive in nature.", "We, therefore, agree with the conclusions of the COMPAT on this aspect as well.", "Issue Number 4 Re: Penalty After giving its finding that there was a contravention of the provisions of Section 3 of the Act by the Appellants, the CCI imposed the following penalties on the three entities Appellants: Under Section 27(b) of the Act, penalty of 10 of the turnover is prescribed as the maximum penalty with no provision for minimum penalty.", "CCI had chosen to impose 9 of the average turnover keeping in view the serious nature of the breach on the part of these Appellants.", "The COMPAT has maintained the rate of penalty i.e. 9 of the three years average turnover.", "However, it has not agreed with the CCI that turnover mentioned in Section 27 would be total turnover of the offending company.", "In its opinion it has to be relevant turnover i.e. turnover of the product in question.", "Since, M section Excel Crop Care and UPL were multi-product companies, products other than APT could not have been included for the purpose of imposing the penalty.", "It, therefore, held that penalty of 9 would be limited to the product service in question - in this case, the APT - which was the relevant product for the enquiry.", "The penalty, thus, stands substantially reduced in the cases of M section Excel Crop Care and UPL as can be seen from the following chart: Insofar as M section Sandhya Organics Chemicals (P) Limited is concerned, the relevant turnover and total turnover is the same as this company produced only APT tablets.", "CCI had imposed penalty of 1.57 crores on the basis of their turnover of this product.", "However, in its case also, penalty is reduced on the ground that it is relatively a small enterprise.", "Moreover, in respect of May 2011 tender, it could not have taken part since its production capacity was only 25 MT a month.", "Though, the aforesaid plea was not accepted while discussing the merits of the case, the COMPAT deemed it proper to take this aspect into consideration when it came to imposition of penalty.", "On the aforesaid basis, COMPAT reduced the penalty to 1/10th of penalty awarded by CCI i.e. 15.70 lakhs.", "The CCI is not happy with the aforesaid outcome whereby penalty imposed by it is sharply reduced by the COMPAT.", "Against this part of the impugned judgment, CCI is in appeal.", "In the aforesaid backdrop, the moot question is as to whether penalty Under Section 27(b) of the Act has to be on total entire turnover of the company covering all the products or it is relatable to relevant turnover, viz., relating to the product in question in respect whereof provisions of the Act are contravened.", "Section 27 of the Act stipulates nature of the orders which the CCI can pass after enquiry into agreements or abuse of dominant position.", "This Section empowers CCI to pass various kinds of orders the nature whereof is spelt out in Clauses (a), (b), (d) and (g) (clauses (c) and (f) stand omitted).", "As per Clause (b), CCI is empowered to inflict monetary penalties, the upper limit whereof is 10 of the average of turnover for the last three preceding financial years.", "Operative portion of Section 27 of the Act is reproduced below: Orders by Commission after inquiry into agreements or abuse of dominant position.", "- Where after inquiry the Commission finds that any agreement referred to in Section 3 or action of an enterprise in a dominant position, is in contravention of Section 3 or Section 4, as the case may be, it may pass all or any of the following orders, namely: xxx xxx xxx (b) impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: provided that in case any agreement referred to in Section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher.", "Extensive as well as intensive argument of Mr. Kaul, learned Additional Solicitor General, was that in Section 27(b) of the Act, there is no reference to relevant turnover.", "On the contrary, Clause (b) of Section 27 in clear terms, stipulates penalty on the turnover i.e. average of the turnover for the last three preceding financial years and it plainly suggests that this turnover has to be of the enterprise which had contravened the provisions of Section 3 or Section 4.", "He submitted that clear intention of the Legislature was to take into consideration entire turnover of the enterprise.", "Reading the word relevant thereto would be doing violence to the plain language of the statute, by adding the word which is not there.", "According to him, the expression turnover is not limited or restricted in any manner and introduction of concept of relevant turnover amounts to adding words to the statute.", "He premised his submission on well-settled principle of statutory interpretation that where the language of a statute is plain and clear, the Court ought not to add words to limit or alter the meaning of the statute and cited the following judgments in support: Prabhudas Damodar Kotecha and Ors.", "v. Manhabala Jeram Damodar and Anr.", " : (2013) 15 SCC 358 Raghunath Rai Bareja and Anr.", "v. Punjab National Bank and Ors.", " : (2007) 2 SCC 230 V.L.S. Finance Limited v. Union of India and Ors.", " : (2013) 6 SCC 278 and Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc.  : (2012) 9 SCC 552.", "Mr. Kaul also placed heavy reliance on the following discussion in the case of Steel Authority of India Limited2 in the context of the Competition Act: A statute is stated to be the edict of legislature.", "It expresses the will of legislature and the function of the court is to interpret the document according to the intent of those who made it.", "It is a settled Rule of construction of statute that the provisions should be interpreted by applying plain Rule of construction xx xx xx Thus, the court can safely apply Rule of plain construction and legislative intent in light of the object sought to be achieved by the enactment.", "While interpreting the provisions of the Act, it is not necessary for the court to implant, or to exclude the words, or overemphasize language of the provision where it is plain and simple.", "The provisions of the Act should be permitted to have their full operation rather than causing any impediment in their application by unnecessarily expanding the scope of the provisions by implication.", "According to him, a plain reading of Section 27 as a whole, which includes Section 27(a) as well, also makes it clear that the target of the penalty is the person or enterprise that has acted in violation of the Act, and not the product or the service alone which is made the subject of the violation.", "As such, the expression turnover must necessarily mean the turnover of the person or the enterprise which is party to the anti-competitive agreement or abuse of dominance.", "Critiquing the approach of the COMPAT, he submitted that it has introduced the concept of relevant turnover in Section 27 despite the absence of the word relevant, failing to notice that wherever the Act wanted to introduce the concept of relevance the word relevant has, in fact, been used in the appropriate sections.", "In this regard, he referred to Sections 2(r), 2(s), 2(t), 4(2)(e), 6, 19(6), 19(7), etc.", "where the expression relevant is specifically used.", "He also referred to the definition of turnover as contained in Section 2(y) of the Act, which includes value of goods or services, and submitted that it is the aforesaid definition of turnover which has to be applied wherever this expression occurs in the Act and it cannot be read to have different criteria for determining penalty and the thresholds applicable for Regulation of combinations.", "He also sought to highlight that where the expression is used in the same section, it should generally be given the same meaning, as held in Suresh Chand v. Gulam Chisti  : (1990) 1 SCC 593 and Raghubans Narain Singh v. Uttar Pradesh Government through Collector of Bijnor  : (1967) 1 SCR 489.", "Taking this very argument further, he submitted that interpretation given by the COMPAT would render the proviso after Section 27 redundant, as the said proviso specifically provides for situations where more than one member of a group (each may be producing different products services) is part of the anti-competitive conduct.", "Mr. Kaul went to the extent of arguing that even if purposive interpretation is to be given to the provisions of Section 27(b) of the Act, main purpose which cannot be lost sight of and ignored is that it is a deterrent provision.", "The purpose behind such a provision is to give a message that the persons or enterprises should not indulge in such anti-competitive activities, as otherwise they will be inflicted with heavy penalties.", "According to him, the kind of cartelisation formed by the Appellants in this case is a clear example of hardcore cartel behaviour which is deprecated by even the OECD as such hardcore cartels benefit only the cartel members and are extremely injurious to the interest of all others, with extraordinary adverse affect on the market and the consumers.", "He further submitted that formation of cartels reduces social welfare and the COMPAT has ignored these factors as well while giving restricted interpretation to turnover by making it product specific and not person enterprise specific.", "Advancing this very argument further, he even drew parallel with the laws in other jurisdictions by stating the comparative legal position in European Union, United Kingdom, Australia, etc.", "and submitted that it could be discerned from the law enacted in those jurisdictions that everywhere overall cap is of 10 of worldwide turnover and is not restricted to relevant turnover.", "He further submitted that the aforesaid provision imposed a cap on the penalty by stipulating that it shall not be more than 10.", "Thus, the CCI had the discretion to impose the penalty from 0 to 10 and this was sufficient safeguard to take care of the proportionality aspects of the penalty wherever penalty on total turnover is found to bring unreasonable results.", "In other words, in respect of multi-product companies where the turnover covering non-offending products, is quite high, the CCI can always impose much lesser rate of penalty so that the penalty does not sound to be excessive and unconscionable and remains proportionate to the nature of contravention.", "However, it is not permissible to tinker the language of a statute.", "Adverting to the specific case of M section Sandhya Organics Chemicals (P) Limited, submission of Mr. Kaul was that the reason given by COMPAT in reducing the penalty was self-contradictory inasmuch as contention of this Appellant that it did not bid in May 2011 tender of FCI was because of the reason that its production capacity was mere 25 MT per month was specifically rejected by the COMPAT, but this very rejected contention formed the basis of reducing the penalty.", "It was also submitted that in any case there was no justification in reducing the penalty to 1/10th of the penalty imposed by the CCI, i.e. from 9 to 0.9, when the COMPAT itself observed that the nature of breach committed by the Appellants was very serious and going by this consideration, the COMPAT maintained the penalty 9 in the case of the other two Appellants.", "Learned Counsel appearing for the three Appellants attempted to put an astute and sagacious answer to the aforesaid arguments of the Learned Additional Solicitor General.", "Justifying the approach of the COMPAT in this behalf, it was argued that even the plain language of Section 27(b) leads to the interpretation that is given by the COMPAT.", "They also stressed that this provision being a penal provision, has to be strictly construed.", "No wider meaning can be given to it.", "The learned Counsel quoted the illustration in cases where identical infringement is alleged in respect of several enterprises, some of which may be single product companies and Ors.", "may be multi-product companies (which was the position in the instant case itself), and submitted that there would be no justification for prescribing the maximum penalty based on the total turnover of the enterprise, as it would result in prescribing a higher maximum penalty for multi-product companies, as against the single product companies, thereby bringing very inequitable results.", "For identical infringement, there would be no justification for prescribing such differential maximum limits.", "Keeping this aspect into consideration, it is all the more reason for interpreting Section 27(b) on the basis of its plain language as the word total was also not prefixed with relevant by the Legislature.", "Since it was a provision relating to penalty, which was to be imposed on turnover, the said turnover was necessarily relatable to the offending product only and Legislature never intended to punish any person or enterprise even in respect of unblemished product.", "It was also emphasized that penalty Under Section 27(b) is to be levied for contravention of Section 3 in respect of any agreement resulting in appreciable adverse effect on competition.", "Therefore, it would not relate to all the products of the company included in the total turnover of the enterprise.", "As such, when penalty is being imposed in respect of any infringing product, the turnover of that product would be relevant.", "The learned Counsel criticised the approach of the CCI in imposing penalties by taking the maximum penalty as the starting point of determination and then purporting to reduce it suitably, as totally incorrect approach.", "It was argued that the quantum of appropriate amount of penalty has to be first determined after taking into consideration the relevant factors.", "The relevance of the maximum penalty is only for the limited purpose to ensure that the quantum so determined, does not exceed the maximum penalty.", "Learned Counsel for the Appellants also advocated for applying the doctrine of proportionality which has universal application and lays down that the broad principles that the punishment must be proportioned to the offence is or ought to be of universal application as held in Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors.", " : (1974) 4 SCC 222 Attention of the Court was also drawn to another judgment of this Court in State of Haryana and Ors.", "v. Sant Lal and Anr.", " : (1993) 4 SCC 380 where penalty for evasion of tax sought to be levied on the basis of 20 of the value of the tax was held to be ultra vires.", "Likewise, application of this doctrine of proportionality applied in Bhagat Ram v. State of Himachal Pradesh and Ors.", " : (1983) 2 SCC 442 was emphasized by referring to the following passage therein: 16It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution Countering the argument of the learned Additional Solicitor General predicated on the parallel drawn with the law in the other countries, it was submitted that in other jurisdictions specific guidelines were issued which formed the basis of exercising the discretion in an objective manner.", "In contra-distinction, no guidelines are prescribed under the Act in India and it was submitted that a perusal of the guidelines issued by the European Union as well as the Office of Fair Trading in the United Kingdom would show that for determining the appropriate quantum of penalty, the relevant turnover, i.e. the turnover of the infringing product, is taken into consideration.", "This assumes great importance in cases where an enterprise is a multi-product company.", "In addition to the aforesaid arguments, learned Counsel appearing for UPL submitted that since it was a multi-product company, its average of the total turnover of three years was 2804.95 crores.", "By imposing penalty of 9 on the total turnover, the CCI had levied penalty of 252.44 crores, which was highly disproportionate as even the total production and sale of APT tablets, for the three years, was much less than the aforesaid penalty.", "It was pointed out that the average total turnover of the APT tablets comes to 77.14 crores only, which is hardly 3 of the total turnover.", "On that basis it was argued that by taking total turnover for the purpose of penalty clearly amounted to disproportionate penalty as it was more than 300 of the total turnover of APT tablets.", "This, according to the learned Counsel, itself provided full justification in the approach of the COMPAT by reading the concept of relevant turnover while interpreting Section 27(b) of the Act.", "We have given our serious thought to this question of penalty with reference to turnover of the person or enterprise.", "At the outset, it may be mentioned that Section 2(y) which defines turnover does not provide any clarity to the aforesaid issue.", "It only mentions that turnover includes value of goods or services.", "There is, thus, absence of certainty as to what precise meaning should be ascribed to the expression turnover.", "Somewhat similar position appears in EU statute and in order to provide some clear directions, EU guidelines on the subject have been issued.", "These guidelines do refer to the concept of relevant turnover.", "Grappling with the same very issue, the judgment of the Competition Appeal Court of South Africa in the case of Southern Pipeline Contractors Conrite Walls (Pty) Limited v. The Competition Commission3 provides the answer in the following manner: The concept of turnover is not defined in the Act and is only referred to in Section 59(2), being annual turnover.", "There is thus some uncertainty as to the precise meaning of turnover.", "However, Section 59(3) refers on more than one occasion to the contravention, in particular, in dealing with the nature, duration, gravity and extent of the contravention, the loss or damage suffered as a result of the contravention the market circumstances in which the contravention the market circumstances in which the contravention took place and the level of profit derived from the contravention.", "Thus there is a legislative link between the damage caused and the profits which accrue from the cartel activity.", "The inquiry, in terms of Section 59(20), appears to envisage that consideration be given to the benefits which accrue from the contravention: that is to amount to affected turnover.", "By using the baseline of affected turnover the implications of the doctrine of proportionality that is between the nature of the offence and benefit derived therefrom, the interests of the consumer community and the legitimate interests of the offender can be taken more carefully into account and appropriately calibrated.", "(Emphasis supplied) Judgment in the case of Southern Pipeline Contractors Conrite Walls (Pty) Limited reveals that the Court therein was concerned with the provisions of Section 59 of the Competition Act, 1998 of South Africa which also provides for maximum penalty of 10 of the annual turnover.", "The Court held that the appropriate amount of penalty had to be determined keeping into consideration the damage caused and the profits which accrue from the cartel activity.", "The Appeal Court used the words affected turnover.", "It determined the amount of penalty on the basis of these guidelines issued by the European Union (EU) and the Office of Fair Trade (OFT).", "In that case the concerned company Southern Pipeline Contractors was a multi-product company and the affected turnover was comparatively small.", "It is interesting to note that the parties on either side are resting their cases on the same principle of statutory interpretations.", "Pertinently, Section 27(b) of the Act while prescribing the penalty on the turnover, neither uses the prefix total nor relevant.", "It is in this context, taking aid of the applicable and well-recognised principle of statutory interpretations we have to determine the issue.", "In the absence of specific provision as to whether such turnover has to be product specific or entire turnover of the offending company, we find that adopting the criteria of relevant turnover for the purpose of imposition of penalty will be more in tune with ethos of the Act and the legal principles which surround matters pertaining to imposition of penalties.", "For arriving at this conclusion, we are influenced by the following reasons: Under Section 27(b) of the Act, penalty can be imposed under two contingencies, namely, where an agreement referred to in Section 3 is anti-competitive or where an enterprise which enjoys a dominant position misuses the said dominant position thereby contravening the provisions of Section 4.", "In case where the violation or contravention is of Section 3 of the Act it has to be pursuant to an agreement.", "Such an agreement may relate to a particular product between persons or enterprises even when such persons or enterprises are having production in more than one product.", "There may be a situation, which is precisely in the instant case, that some of such enterprises may be multi-product companies and some may be single product in respect of which the agreement is arrived at.", "If the concept of total turnover is introduced it may bring out very inequitable results.", "This precisely happened in this case when CCI imposed the penalty of 9 on the total turnover which has already been demonstrated above.", "Interpretation which brings out such inequitable or absurd results has to be eschewed.", "This fundamental principle of interpretation has been repeatedly made use of to avoid inequitable outcomes.", "The Canadian Supreme Court in Ontario v. Canadian Pacific Limited  : (1995) 2 SCR 1031 wherein the expression use occurring in Environment Protection Act was given restricted meaning.", "The principle that absurdity should be avoided was explained in the following manner: The expression for any use that can be made of the natural environment has an identifiable literal or plain meaning when viewed in the context of the EPA as a whole, particularly the other paragraphs of Section 13(1).", "When the terms of the other paragraphs are taken into account, it can be concluded that the literal meaning of the expression for any use that can be made of the natural environment is any use that can conceivably be made of the natural environment by any person or other living creature.", "In ordinary circumstances, once the plain meaning of the words in a statue have been identified there is no need for further interpretation.", "Different considerations can apply, however, in cases where a statute would be unconstitutional if interpreted literally.", "This is one of those exception cases, in that a literal interpretation of Section 13(1)(a) would fail to meet the test for overbreadth established in Heywood.", "The state objective underlying Section 13(1)(a) EPA is, as Section 2 of the Act declares, the protection and conservation of the natural environment.", "This legislative purpose, while broad, is not without limits.", "In particular, the legislative interest in safeguarding the environment for uses requires only that it be preserved for those uses that are normal and typical, or that are likely to become normal or typical in the future.", "Interpreted literally, Section 13(1)(a) would capture a wide range of activities that fall outside the scope of the legislative purpose underlying it, and would fail to meet Section 7 overbreadth scrutiny.", "There is, however, an alternative interpretation of Section 13(1)(a) that renders it constitutional.", "Section 13(1)(a) can be read as expressing the general intention of Section 13(1) as a whole, and paras.", "13(1)(b) through (h) can be treated as setting out specific examples of impairment(s) of the quality of the natural environment for any use that can be made of it.", "When viewed in this way, the restrictions place on the word use in paras.", "(b) through (h) can be seen as imported into (a) through a variant of the ejusdem generis principle.", "Interpreted in this manner, Section 13(1)(a) is no longer unconstitutionally overbroad, since the types of harms captured by paras.", "(b) through (h) fall squarely within the legislative intent underlying the section.", "In light of the presumption that the legislature intended to act in accordance with the constitution, it is appropriate to adopt this interpretation of Section 13(1)(a).", "Thus, the Sub-section should be understood as covering the situations captured by paras.", "13(1)(b) through (h), and any analogous situations that might arise.", "We would also like to quote the following observations from State of Jharkhand and Anr.", "v. Govind Singh  : (2005) 10 SCC 437: While interpreting a provision the court only interprets the law and cannot legislate it.", "If a provision of law is misused and subjected to the abuse deemed necessary.", "See CST v. Popular Trading C.:  : (2000) 5 SCC 511 : AIR 2000 SC 1578.", "The legislative casus omissus cannot be supplied by judicial interpretative process.", "Likewise, following passages from the judgment of this Court in Commissioner of Income Tax, Bangalore v. J.H. Yadagiri  : (1985) 4 SCC 343 shed light of similar nature.", "In the case of K.P. Varghese v. ITO  : (1981) 4 SCC 173 : 1981 SCC (Tax) 293: (1981) 131 ITR 597 this Court emphasised that a statutory provision must be so construed, if possible, that absurdity and mischief may be avoided.", "Where the plain literal interpretation of a statutory provision produces a manifestly unjust result which could never have been intended by the Legislature, the Court might modify the language used by the Legislature so as to achieve the intention of the Legislature and produce a rational construction.", "The task of interpretation of a statutory provision is an attempt to discover the intention of the Legislature from the language used.", "It is necessary to remember that language is at best an imperfect instrument for the expression of human intention.", "It is well to remember the warning administered by Judge Learned Hand that one should not make a fortress out of dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning.", "We have noted the object of Section 16(3) of the Act which has to be read in conjunction with Section 24(2) in this case for the present purpose.", "If the purpose of a particular provision is easily discernible from the whole scheme of the Act which in this case is, to counteract the effect of the transfer of assets so far as computation of income of the Assessee is concerned then bearing that purpose in mind, we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction.", "Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction.", "Furthermore, in the instant case we are dealing with an artificial liability created for counteracting the effect only of attempts by the Assessee to reduce tax liability by transfer.", "It has also been noted how for various purposes the business from which profit is included or loss is set off is treated in various situations as Assessees income.", "The scheme of the Act as worked out has been noted before.", "In Southern Motors v. State of Karnataka and Ors.", " : AIR 2017 SC 476, the Court explained the task that is to be undertaken by a Court while interpreting such statutes: The following excerpts from Tata Steel Limited (supra), being of formidable significance are also extracted as hereunder.", "Xxx xxx xxx In Oxford University Press v. Commissioner of Income Tax  : (2001) 3 SCC 359, Mohapatra, J. has opined that interpretation should serve the intent and purpose of the statutory provision.", "In that context, the learned Judge has referred to the authority in State of T.N. v. Kodaikanal Motor Union (P) Limited  : (1986) 3 SCC 91 wherein this Court after referring to K.P. Varghese v. ITO  : (1981) 4 SCC 173 and Luke v. IRC (1964) 54 ITR 692 has observed: The courts must always seek to find out the intention of the legislature.", "Though the courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought.", "As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity.", "As Judge learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship.", "We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result.", "We should not make a mockery of legislation.", "To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye some violence to language is permissible.", "Sabharwal, J. (as His Lordship then was) has observed thus: It is well-recognised Rule of construction that a statutory provision must be so construed, if possible, that absurdity and mischief may be avoided.", "It was held that construction suggested on behalf of the Revenue would lead to a wholly unreasonable result which could never have been intended by the legislature.", "It was said that the literalness in the interpretation of Section 52(2) must be eschewed and the court should try to arrive at an interpretation which avoids the absurdity and the mischief and makes the provision rational, sensible, unless of course, the hands of the court are tied and it cannot find any escape from the tyranny of literal interpretation.", "It is said that it is now well-settled Rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even do some violence to it, so as to achieve the obvious intention of the legislature and produce a rational construction.", "In such a case the court may read into the statutory provision a condition which, though not expressed, is implicit in construing the basic assumption underlying the statutory provision As would be overwhelmingly pellucid from hereinabove, though words in a statute must, to start with, be extended their ordinary meanings, but if the literal construction thereof results in anomaly or absurdity, the courts must seek to find out the underlying intention of the legislature and in the said pursuit, can within permissible limits strain the language so as to avoid such unintended mischief.", "The principle of strict interpretation of a penal statute would support and supplement the aforesaid conclusion arrived at by us.", "In a recent Constitution Bench judgment in the case of Abhiram Singh and Ors.", "v. C.D. Commachen (dead) by L.Rs.", "and Ors.", " : AIR 2017 SC 401, this Court scanned through the relevant case law on the subject and applied this principle even while construing corrupt practice in elections which is of a quasi criminal nature.", "We would like to reproduce following discussion from the said judgment: Election petitions alleging corrupt practices have a quasi-criminal character.", "Where a statutory provision implicates penal consequences or consequences of a quasi-criminal character, a strict construction of the words used by the legislature must be adopted.", "The Rule of strict interpretation in regard to penal statutes was enunciated in a judgment of a Constitution Bench of this Court in Tolaram Relumal v. State of Bombay  : (1951) 1 SCR 158 : AIR 1954 SC 496 where it was held as follows: It may be here observed that the provisions of Section 18(1) are penal in nature and it is a well settled Rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty.", "It is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature.", "As pointed out by Lord Macmillan in London and North Eastern Railway Company v. Berriman, where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language.", "This principle has been consistently applied by this Court while construing the ambit of the expression corrupt practices.", "The Rule of strict interpretation has been adopted in Amolakchand Chhazed v. Bhagwandas  : (1977) 3 SCC 566.", "A Bench of three Judges of this Court held thus: 12Election petitions alleging corrupt practices are proceedings of a quasi-criminal nature and the onus is on the person who challenges the election to prove the allegations beyond reasonable doubt.", "In such a situation even if two interpretations are possible, one that leans in favour of infringer has to be adopted, on the principle of strict interpretation that needs to be given to such statutes.", "When the agreement leading to contravention of Section 3 involves one product, there seems to be no justification for including other products of an enterprise for the purpose of imposing penalty.", "This is also clear from the opening words of Section 27 read with Section 3 which relate to one or more specified products.", "It also defies common sense that though penalty would be imposed in respect of the infringing product, the maximum penalty imposed in all cases be prescribed on the basis of all the products and the total turnover of the enterprise.", "It would be more so when total turnover of an enterprise may involve activities besides production and sale of products, like rendering of services etc.", "It, therefore, leads to the conclusion that the turnover has to be of the infringing products and when that is the proper yardstick, it brings home the concept of relevant turnover.", "Even the doctrine of proportionality would suggest that the Court should lean in favour of relevant turnover.", "No doubt the objective contained in the Act, viz., to discourage and stop anti-competitive practices has to be achieved and those who are perpetrators of such practices need to be indicted and suitably punished.", "It is for this reason that the Act contains penal provisions for penalising such offenders.", "At the same time, the penalty cannot be disproportionate and it should not lead to shocking results.", "That is the implication of the doctrine of proportionality which is based on equity and rationality.", "It is, in fact, a constitutionally protected right which can be traced to Article 14 as well as Article 21 of the Constitution.", "The doctrine of proportionality is aimed at bringing out proportional result or proportionality stricto sensu.", "It is a result oriented test as it examines the result of the law in fact the proportionality achieves balancing between two competing interests: harm caused to the society by the infringer which gives justification for penalising the infringer on the one hand and the right of the infringer in not suffering the punishment which may be disproportionate to the seriousness of the Act.", "No doubt, the aim of the penal provision is also to ensure that it acts as deterrent for others.", "At the same time, such a position cannot be countenanced which would deviate from teaching a lesson to the violators and lead to the death of the entity itself.", "If we adopt the criteria of total turnover of a company by including within its sweep the other products manufactured by the company, which were in no way connected with anti-competitive activity, it would bring about shocking results not comprehended in a country governed by Rule of Law.", "Cases at hand itself amply demonstrate that the CCIs contention, if accepted, would bring about anomalous results.", "In the case of M section Excel Crop Care Limited, average of three years turnover in respect of APT, in respect whereof anti-competitive agreement was entered into by the Appellants, was only 32.41 crores.", "However, as against this, the CCI imposed penalty of Rs. 63.90 crores by adopting the criteria of total turnover of the said company with the inclusion of turnover of the other products as well.", "Likewise, UPL was imposed penalty of 252.44 crores by the CCI as against average of the three years turnover of APT of Rs. 77.14 crores.", "Thus, even when the matter is looked into from this angle, we arrive at a conclusion that it is the relevant turnover, i.e., turnover of the particular product which is to be taken into consideration and not total turnover of the violator.", "The doctrine of purposive interpretation may again lean in favour of relevant turnover as the appropriate yardstick for imposition of penalties.", "It is for this reason the judgment of Competition Appeal Court of South Africa in the Southern Pipeline Contractors Conrite Walls, as quoted above, becomes relevant in Indian context as well inasmuch as this Court has also repeatedly used same principle of interpretation.", "It needs to be repeated that there is a legislative link between the damage caused and the profits which accrue from the cartel activity.", "There has to be a relationship between the nature of offence and the benefit derived therefrom and once this co-relation is kept in mind, while imposing the penalty, it is the affected turnover, i.e., relevant turnover that becomes the yardstick for imposing such a penalty.", "In this hue, doctrine of purposive interpretation as well as that of proportionality overlaps.", "In fact, some justifications have already appeared in this behalf while discussing the matter on the application of doctrine of proportionality.", "What needs to be repeated is only that the purpose and objective behind the Act is to discourage and stop anti-competitive practice.", "Penal provision contained in Section 27 of the Act serves this purpose as it is aimed at achieving the objective of punishing the offender and acts as deterrent to others.", "Such a purpose can adequately be served by taking into consideration the relevant turnover.", "It is in the public interest as well as in the interest of national economy that industries thrive in this country leading to maximum production.", "Therefore, it cannot be said that purpose of the Act is to finish those industries altogether by imposing those kinds of penalties which are beyond their means.", "It is also the purpose of the Act not to punish the violator even in respect of which there are no anti-competitive practices and the provisions of the Act are not attracted.", "We may mention that Mr. Kaul, learned Additional Solicitor General had referred to the statutory regimes in various other countries in his endeavour to demonstrate that it is the concept of total turnover which was recognised in other jurisdictions as well.", "The attempt was to show that the principle of total turnover was prevalent across the globe wherever such laws are enforced.", "On the contrary, the learned Counsel for the Appellants pointed out the provision contained in similar statutes of some countries where the concept of relevant turnover had been adopted.", "South Africa is one such example and, in fact, COMPAT has referred to the judgment of Southern African Competition Appeal Court in this behalf, i.e., Southern Pipeline Contractors Conrite Walls (Pty) Limited case.", "In such a scenario, it may not be necessary to deal with the statutory provisions contained in different countries.", "In view of interpretation that is given by us to the provision at hand, we would, however, like to comment that in some of the jurisdictions cited by Mr. Kaul, learned Additional Solicitor General, the guidelines are also framed which ensure that the penalty does not become disproportionate, for example, in the UK, the Office of Fair Trade (OFT) has guidelines as to the appropriate amount of penalty.", "In contrast, there are no similar guidelines issued as far as India is concerned and in the absence thereof imposition of penalty, taking into consideration total turnover, may bring about disastrous results which happened in the instant case itself with the imposition of penalty by the CCI.", "Thus, we do not find any error in the approach of the order of the COMPAT interpreting Section 27(b).", "The upshot of the aforesaid discussion would be to dismiss the appeals of the Appellants as well as the appeals filed by the CCI.", "There shall, however, be no order as to costs.", "V. Ramana, J. I have had the privilege of going through the erudite and well considered judgment of my learned brother.", "In view of well considered judgment, in the usual course, it may not have warranted another concurring judgment.", "But when the issue at hand is being grappled by jurisdictions across the globe, a concurring judgment cannot be treated as a repetitive exercise.", "Although I accept the conclusions reached by my learned brother, there was a need felt by me to pen down my own thoughts on a small aspect concerning imposition of penalty Under Section 27(b) of the Competition Act, 2002 hereafter Act for brevity.", "Though my opinion is only limited to the legal question involved in this case, a brief reference to facts might be necessary.", "On a complaint being instituted by the Food Corporation of India hereinafter FCI for brevity, Director General for Investigation (Competition Commission of India) (DG) investigated into the matter and found that four companies namely Excel Corporation Care Limited hereinafter ECCL for brevity, United Phosphorus Limited hereinafter UPL for brevity, Sandhya Organics Chemicals (Pvt.) Limited hereinafter SOCL for brevity (three Appellants herein) and Agrosynth Chemicals Limited hereinafter ACL for brevity were involved in collusive bidding in relation to tenders issued by FCI for Aluminium Phosphide Tablets hereinafter APT for brevity.", "Following chart would indicate the pattern of bidding undertaken by the aforesaid companies- TABLE 1.1 - pattern of bidding After considering the report of DG, CCI exonerated ACL but found the three Appellant companies had indulged in anti-competitive practices in violation of Section 3 of the Act and imposed 9 of average 3 years of total turnover Under Section 27(b) of the Act in the following manner- TABLE 1.2 - penalty as imposed by the CCI Aggrieved by the order of the CCI, Appellants approached COMPAT by way of separate appeals.", "By a common order, dated 29.10.2013, COMPAT held that in case of multi-product companies, only relevant turnover of the product service in question should be taken into consideration while imposing penalty in the following manner- TABLE 1.3 - penalty as imposed by the COMPAT Being aggrieved by the order of the COMPAT, CCI as well as the companies are in appeal before us.", "With respect to other issues, my learned brother has dealt exhaustively, which does not require any more consideration.", "The only issue which in my opinion requires further consideration is the issue of quantum of penalty Under Section 27 of the Act.", "Therefore the limited question which I will be dealing is Whether turnover as occurring Under Section 27 of the Act means relevant turnover or total turnover? At the outset it would be useful to reproduce Section 27 (b) of the Act as a starting point before we delve into discussions in this case- SECTION 27 (b) impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in Section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement whichever is higher A plain reading of this Section elucidates that the commission is empowered to impose penalty and to the extent as it deems fit but not exceeding ten percent of the turnover.", "Section 27 (b) emphasize that penalty is to be levied on person or enterprise who have contravened Section 3 or Section 4 of the Act.", "It is to be noted that proviso to Section 27(b), before it was amended, was couched in following terms- provided that in case any agreement referred to in Section 3 has been entered into by any cartel, the commission shall impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or ten per cent of the average of the turnover of the cartel for the last preceding three financial years.", "After the amendment Central Act 39 of 2007 the proviso as it stands today has been quoted above.", "The change which was brought about by the aforesaid amendment is that the mandatory nature of the Proviso was made discretionary by substitution of shall with may.", "This amendment was done to bring the proviso in tune with the rest of Section 27, which uses the expression it may pass all or any of the following order and main part of Clause (b), which confers discretion upon the Commission to impose penalty as it may deem ft, subject to the rider that it shall not be more than 10 of the average of the turnover for the last three preceding financial years.", "It is important to note that Clauses (c) and (d) of Section 27 also uses the word may, which signifies that the Commission has the discretion to pass a particular order, which it may deem proper in the facts and circumstances of the case.", "Two interpretations were canvassed before us, wherein either the turnover, as occurring Under Section 27(b), is equivalent to the relevant turnover or is equivalent to the total turnover.", "In order to strengthen their arguments, respective Counsel have drawn our attention to various interpretations of turnover applied across the globe, such as the judgment of Bundesgerichtshof (German Supreme Court) on 26th February 2013, BCN Aduanas y Transportes, SA v. Attorney General, Judgment of the Supreme Court of Spain, Number 112/2015, Case 2872/2013, OCL 183 (ES 2015) dated 29th January 2015 and Southern Pipeline Contractors Conrite Walls (Pty) Limited and the Competition Commission, 105/CAC Dec10 (South Africa).", "Further we have perused Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation 1/2003 (2006/C 210/02) issued by the European Commission and Guidance as to the appropriate amount of penalty (September 2012) issued by the Office of fair Trading (OFT), United Kingdom.", "It is my considered opinion that the interpretation to Section 27(b) of the Act requires fresh indigenous consideration rather than relying on foreign jurisprudence.", "First a word on interpretation, before we indulge ourselves in the legal discussion.", "As the interpretative exercise, as this case, involves various equitable facets4, literal interpretation might not be conclusive.", "It should be noted that an interpretation should sub-serve the intent and purpose of the statutory provision.", "Therefore we would have to look beyond the plain and simple meaning, to extract the intention of the Act and rationalize the fining policy Under Section 27 (b) of the Act.", "It is well settled that the Competition Act, 2002 is a regulatory legislation enacted to maintain free market so that the Adam Smiths concept of invincible hands operate unhindered in the background.5 Further it is clear from the Statement of objects and reason that this law was foreseen as a tool against concentration of unjust monopolistic powers at the hands of private individuals which might be detrimental for freedom of trade.", "Competition law in India aims to achieve highest sustainable levels of economic growth, entrepreneurship, employment, higher standards of living for citizens, protect economic rights for just, equitable, inclusive and sustainable economic and social development, promote economic democracy, and support good governance by restricting rent seeking practices.", "Therefore an interpretation should be provided which is in consonance with the aforesaid objectives.", "At this point, I would like to emphasize on the usage of the phrase as it may deem fit as occurring Under Section 27 of the Act.", "At the outset this phrase is indicative of the discretionary power provided for the fining authority under the Act.", "As the law abhors absolute power and arbitrary discretion, this discretion provided Under Section 27 needs to be regulated and guided so that there is uniformity and stability with respect to imposition of penalty.", "This discretion should be governed by Rule of law and not by arbitrary, vague or fanciful considerations.", "Here we may deal with two judgments which may be helpful in deciding the concerned issue.", "In Dilip N. Shroff v. Joint CIT  : (2007) 6 SCC 329, this Court while dealing with the imposition of the penalty has observed that- The legal history of Section 271(1)(c) of the Act traced from the 1922 Act prima facie shows that the Explanations were applicable to both the parts.", "However, each case must be considered on its own facts.", "The role of the Explanation having regard to the principle of statutory interpretation must be borne in mind before interpreting the aforementioned provisions.", "Clause (c) of Sub-section (1) of Section 271 categorically states that the penalty would be leviable if the Assessee conceals the particulars of his income or furnishes inaccurate particulars thereof.", "By reason of such concealment or furnishing of inaccurate particulars alone, the Assessee does not ipso facto become liable for penalty.", "Imposition of penalty is not automatic.", "Levy of penalty is not only discretionary in nature but such discretion is required to be exercised on the part of the Assessing Officer keeping the relevant factors in mind.", "Some of those factors apart from being inherent in the nature of penalty proceedings as has been noticed in some of the decisions of this Court, inheres on the face of the statutory provisions.", "Penalty proceedings are not to be initiated, as has been noticed by the Wanchoo Committee, only to harass the Assessee.", "The approach of the Assessing Officer in this behalf must be fair and objective.", "(Emphasis supplied) Moreover in the case of Hindustan Steel Limited v. State of Orissa  : AIR 1970 SC 253 this Court made following observations- An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi criminal proceedings and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation.", "Penalty will not also be imposed merely because it is lawful to do so.", "Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the Authority to be exercised judicially and on a consideration of all the relevant circumstances.", "Even if a minimum penalty is prescribed, the Authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute.", "(Emphasis supplied) It should be noted that any penal law imposing punishment is made for general good of the society.", "As a part of equitable consideration, we should strive to only punish those who deserve it and to the extent of their guilt.", "Further it is well established by this Court that the principle of proportionality requires the fine imposed must not exceed what is appropriate and necessary for attaining the object pursued.", "In Coimbatore District Central Co-operative Bank v. Coimbatore District Central Co-operative Bank Employees Assn.", " : (2007) 4 SCC 699 this Court has explained the concept of proportionality in the following manner- proportionality is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision.", "The very essence of the decision-making consists in the attribution of relative importance to the factors and considerations in the case.", "The doctrine of proportionality thus steps in focus true nature of exercise-the elaboration of a Rule of permissible priorities.", "De Smith states that proportionality involves balancing test and necessity test.", "Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity teat) requires infringement of human rights to the least restrictive alternative In consonance of established jurisprudence, the principle of proportionality needs to be imbibed into any penalty imposed Under Section 27 of the Act.", "Otherwise excessively high fines may over-deter, by discouraging potential investors, which is not the intention of the Act.", "Therefore the fine Under Section 27(b) of the Act should be determined on the basis of the relevant turnover.", "In light of the above discussion a two step calculation has to be followed while imposing the penalty Under Section 27 of the Act.", "STEP 1: DETERMINATION of RELEVANT TURNOVER.", "At this point of time it needs to be clarified that relevant turnover is the entitys turnover pertaining to products and services that have been affected by such contravention.", "The aforesaid definition is not exhaustive.", "The authority should have regard to the entitys audited financial statements.", "Where audited financial statements are not available, the Commission may consider any other reliable records reflecting the entitys relevant turnover or estimate the relevant turnover based on available information.", "However the Tribunal is free to consider facts and circumstances of a particular case to calculate relevant turnover as and when it is seized with such matter.", "STEP 2: DETERMINATION of APPROPRIATE PERCENTAGE of PENALTY BASED ON AGGRAVATING AND MITIGATING CIRCUMSTANCES.", "After such initial determination of relevant turnover, commission may consider appropriate percentage, as the case may be, by taking into consideration nature, gravity, extent of the contravention, role played by the infringer (ringleader? Follower?), the duration of participation, the intensity of participation, loss or damage suffered as a result of such contravention, market circumstances in which the contravention took place, nature of the product, market share of the entity, barriers to entry in the market, nature of involvement of the company, bona fides of the company, profit derived from the contravention etc.", "These factors are only illustrative for the tribunal to take into consideration while imposing appropriate percentage of penalty.", "At the cost of repetition it should be noted that starting point of determination of appropriate penalty should be to determine relevant turnover and thereafter the tribunal should calculate appropriate percentage of penalty based on facts and circumstances of the case taking into consideration various factors while determining the quantum.", "But such penalty should not be more than the overall cap of 10 of the entitys relevant turnover.", "Such interpretation of Section 27 (b) of the Act, wherein the discretion of the commission is guided by principles established by law would sub-serve the intention of the enactment.", "Lastly, I am of the opinion that the penalty imposed by COMPAT is appropriate in this case at hand and requires no further interference.", "These appeals are, accordingly, disposed of in the above terms.", "1 Competition Law, 7th Edition, page 536 2 Footnote 1 3 Case Number 105/CAC Dec 10) (106/CAC Dec 10) 4 Such as proportionality.", "5 CCI v. 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+{"id": "SC_Rajasthan Cylinders and Containers Limited vs Union of India UOI and Ors 01102018 SC(1)", "text": ["K. Sikri, J. All these appeals are filed against the orders dated 20th December, 2013 passed by the Competition Appellate Tribunal (hereinafter referred to as COMPAT).", "The COMPAT by the said judgment has upheld the findings of the Competition Commission of India (for short, CCI) that the Appellants suppliers of Liquefied Petroleum Gas (LPG) Cylinders to the Indian Oil Corporation Limited (for short, IOCL) had indulged in cartelisation, thereby influencing and rigging the prices, thus, violating the provisions of Section 3(3)(d) of the Competition Act, 2002 (for short, the Act).", "The CCI, as a result, imposed severe penalties in the form of fines Under Section 27 of the Act.", "While maintaining the order of the CCI insofar as it found the Appellants guilty of contravention of Section 3(3)(d) and also Under Section 3(3)(a) of the Act, the COMPAT has reduced the amount of penalty.", "These suppliers have filed the instant appeals on the ground that there was no cartelisation and they have not contravened the provisions of the Act.", "On the other hand, CCI has also come up in appeal challenging latter part of the order whereby penalties inflicted on the suppliers stand reduced.", "For the sake of convenience these suppliers will be referred to as the Appellants hereinafter.", "We may point out at the outset that all these Appellants are manufacturing gas cylinders of a particular specification having capacity of 14.2 kg which are needed for use by the three oil companies in India, namely, IOCL, Bharat Petroleum Corporation Limited (BPCL) and Hindustan Petroleum Corporation Limited (HPCL) all public sector companies.", "It is also a matter of record that apart from the aforesaid three companies there are no other buyers for these cylinders manufactured by the Appellants.", "Insofar as IOCL is concerned, it is a leading market player in LPG as its market share is 48.", "Thus, in case a particular manufacturer is not able to supply its cylinders to the aforesaid three companies, there is no other market for these cylinders and it may force that company to exit from its operations.", "We may also point out at this stage itself that inquiry was started against 47 companies.", "The CCI exonerated two companies and found that 45 companies had entered into an arrangement agreement insofar as statements of bids pursuant to tenders issued by IOCL are concerned.", "Out of these 45 companies one did not challenge the orders before the COMPAT and other 44 had filed appeals which have been decided by the COMPAT.", "The manner in which the inquiry was undertaken by the CCI, culminating into the finding of guilt and imposition of penalty, is succinctly and sequelly recorded by the COMPAT in its impugned order.", "As there is no dispute about the said factual narration, it would be convenient to borrow the said discussion as recorded by the COMPAT.", "The suo-motu proceedings were started by the CCI on the basis of the information received by it in Case Number 10 of 2010 titled M section Pankaj Gas Cylinders Limited v. Indian Oil Corporation Limited in that case a complaint was made by M section Pankaj Gas Cylinders before the CCI complaining about unfair conditions in the tender floated by IOCL for the supply of 105 lakh 14.2 Kg.", "capacity LPG Cylinders with SC valves in the year 2010-11, the tender Number being LPG-O M PT-03/09-10.", "While considering the Director Generals investigation report in Case Number 10 of 2010, the CCI in pursuance of its duties Under Section 18 felt that investigation was necessary in the case of all bidders who were the suppliers of 14.2 kg.", "LPG cylinders in that tender.", "In the investigation report in the said case, the Director General had noted that out of 63 bidders who participated in the tender, 50 bidders were qualified for opening of price bids, while 12 bidders were qualified as new vendors who were not required to submit price bids and one bidder was not qualified for the opening of the price bid.", "The technical bid of the subject tender was opened on 3.3.2010 and the price bids of 50 qualified bidders were opened on 23.3.2010.", "According to the Director General, there was a similar pattern in the bids by all the 50 bidders who submitted price bids for various States.", "The bids of a large number of parties were exactly identical or near to identical for different States.", "The Director General had observed that there were strong indications of some sort of agreement and understanding amongst the bidders to manipulate the process of bidding.", "It was on this basis the CCI directed further investigation in the matter.", "The Director General after careful consideration submitted a detailed investigation report to the CCI.", "After the CCI considered the freshly ordered investigation report, it directed that a copy of the report be sent to the parties seeking their objections.", "In all, 44 opposite parties submitted their objections.", "After giving them the opportunity to be heard, the CCI passed the order in question.", "As per the Director Generals report, the process of bidding followed by the IOCL in the tender was as under: The bidders would submit their quotations with the bid documents.", "ii) The existing bidders, who were existing suppliers, were required to submit the price bids and technical bids.", "iii) The bidders were to quote for supplies in different States of India in keeping with their installed capacity.", "iv) After price bids were opened the bidders were arranged according to the rates in the categories of L-1, L-2 and L-3.", "The rates for the supplies in different States were approved after negotiations with L-1 bidder.", "In case the L-1 bidder could not supply a required number of cylinders in a particular State, the orders of supplies went to L-2 and also L-3 bidder or likewise depending upon the requirement in that State as per fixed formula provided in the bid documents.", "vi) Certain bidders were called new parties.", "They were required to submit only technical bids and to supply as per L-1 rates determined after the negotiations.", "vii) One bidder could quote for maximum eight States.", "The Director General after analyzing the bids came to the conclusion that there was not only a similarity of pattern in the price bids submitted by the 50 bidders for making supply to the IOCL but the bids of large number of parties were exactly identical or near to identical in different States.", "It was also found that bidders, who belonged to same group, might have submitted identical rates.", "It was found that not only there was identical pricing in case of group concerns but the rates of other entities not belonging to the group were also found to be identical.", "The D.G. painstakingly noted the names of group companies as well as non-group companies.", "He came to the conclusion that in all 37 entities could not be said to be belonging to any single group and were independently controlled.", "The Director General found it unusual that unrelated firms had quoted identical rates in different States.", "The D.G. had analyzed the bidding pattern for the various parties for all the 25 States.", "He found that: The orders were placed on all the 50 successful bidders.", "The contracts were awarded to the sets of bidders who had quoted identical rates or near to identical rates in a particular pattern in almost all the States.", "There was a common pattern for quotation depending upon the State.", "In case of North East the rates were highest, quoted at Rs. 1240 whereas in case of others rates were Rs. 1100, Rs. 1127 and Rs. 1151.", "It was found that only for Andaman and Nicobar Islands there was a single party who had quoted the L-1 rate and got the formal contract.", "In other States the contracts were bagged in a group on the basis of identical or near to identical rates.", "The similarity of the rates was found even in case of bidders whose factories and offices were not located at one and the same place in the States and where they were required to supply was far off from their factories located in different place.", "The D.G. had found further that though the factors like market conditions and small number of companies were different, there was a large scale collusion amongst the bidding parties.", "He also arrived at a finding to the effect that the LPG Cylinder Manufacturers had formed an Association in the name of Indian LPG Cylinders Manufacturers Association and the members were interacting through this Association and were using the same as a platform.", "The date for submitting the bids in the case of the concerned tender was 3.3.2010 and just two days prior to it, two meetings were held on 1st and 2nd March, 2010 in Hotel Sahara Star in Mumbai.", "As many as 19 parties took part and discussed the tender and, in all probability, prices were fixed there in collusion with each other.", "The D.G. reported that the bidders had agreed for allocation of territories, e.g., the bidders who quoted the bids for Western India had not generally quoted for Eastern India and that largely the bidders who quoted the lowest in the group in Northern India, had not quoted generally in Southern India.", "The D.G. also concluded that this behavior created entry barrier and that there was no accrual of benefits of consumers nor were there any plus factors like improved production or distribution of the goods or the provision of services.", "Ultimately, the D.G. came to the conclusion that there was a cartel like behavior on the part of the bidders and that the factors necessary for the formation of cartel existed in the instant case.", "It was also found that there was certainly a ground to hold concerted action on the part of the bidders.", "The D.G. had also noted that the rates quoted for the year 2009-10 and in years previous to that were also identical in some cases.", "Thus, he came to the conclusion that the bids for the year 2010-11 had been manipulated by 50 participating bidders.", "It was thereafter that the CCI decided to supply the D.G.s investigation report to the concerned parties and invite their objections.", "A common reply came to be filed as also the individual replies.", "After considering the same, the CCI formulated the following issue for determination: Whether there was any collusive agreement between the participating bidders which directly or indirectly resulted in bid rigging of the tender floated by IOCL in March 2010 for procurement of 14.2 kg.", "LPG cylinders in contravention of Section 3(3)(d) read with Section 3(1) of the Act? After considering the oral as well as written submissions, the CCI answered the issue against the Cylinders Manufacturers and inflicted the penalties against the present Appellants.", "In its impugned order, while determining the issue, the CCI, in the first instance, considered the common replies to the DGs report filed by as many as 44 opposite parties.", "It was more or less pleaded that every part of LPG Cylinder is regulated by the Rules through various Notifications and that the price of steel constitutes 50 of the total manufacturing cost, so also the price of the paint, it being an essential raw material.", "All these factors, including the taxes which vary from State to State, determine the overall bidding pattern of the bidders.", "In para-5.2.3 of the common objection, it was added that these 44 parties had nominated six agents for depositing their bids on their behalf and it was a common practice amongst the bidders to direct their agents to keep close watch on the rates offered by their competitors in respect of a particular State and this led to the possibility of copying and matching of the rates quoted in the price bids by many suppliers in a particular State, who may have appointed common agents.", "Due to this reason, cutting and over-writing in the price bids for the tender in question was noticed by the Director General.", "It was further pointed out that there were only 62 qualified tenderers in the whole country, out of whom 12 bidders were classified as new parties, meaning thereby that they had not supplied Cylinders in last three years and were not required to bid in the tender.", "Out of the remaining 50 bidders, there were group companies controlled by single management.", "The CCI in its detailed order began with considering the scope of constructed bid rigging agreement and cartel.", "In that the CCI also considered the 18 famous observations by Lord Denning in case of RRTA v. W.H. Smith Sons Limited regarding the quiet and secret nature of the agreement between the parties.", "The CCI then went on to record its inference holding that there was element of agreement and considered the following factors in coming to the conclusion.", "They being: Market conditions Small number of suppliers Few new entrants Active trade association Repetitive bidding Identical products Few or no substitutes No significant technological changes Meeting of bidders in Mumbai and its agenda.", "Appointing common agents Identical bids despite varying cost.", "After consideration of these factors, the CCI came to the conclusion that it did suggest collusive bidding.", "Thereafter, the CCI analyzed these bids for each States and found that all 50 participating bidders had secured the order that the orders were placed on the said 50 bidders who had quoted identical rates or near to identical rates in a particular pattern common to all the parties.", "CCI also highlighted the facts of absence of business justification.", "According to the CCI, the material revealed that the supplies were effected at the higher cost.", "After discussing the concepts of standards of proof and appreciable adverse effect on competition, the CCI considered the various arguments and repelled those arguments.", "The CCI then went on to consider the case law, and in particular the judgment of this Court in Union of India v. Hindustan Development Corporation  : (1993) 3 SCC 499.", "It also took into consideration the arguments raised by the individual parties and then came to record that cases of M section JBM Industries and Punjab Cylinders, however, were exceptional ones and they could be exonerated.", "After this the CCI went on to decide the penalty factor Under Section 27 of the Act.", "The COMPAT after discussing the findings of the CCI and also taking note of the arguments of the Appellants which were advanced before the CCI, proceeded with its own discussion.", "It started with the admitted facts of the case, and took note of the following such facts: The tender offers were to be made at Mumbai on 03.03.2010.", "Admittedly there were meetings in Hotel Sahara Star, Mumbai on 1st and 2nd March, 2010 which were attended by some of the Appellants.", "The D.G. has held that 19 Appellants were represented by various persons in that meeting.", "The fact of the meeting having been held was not disputed.", "Though some of the Appellants stated that they did not attend the meeting and those who attended the meeting maintained that nothing was discussed about the tender, the same was not believed by the COMPAT and it held that these meetings did relate to the tender offers which were to be submitted on 03.03.2010.", "This finding is premised on the basis that nobody came with the explanation as to what transpired in the meeting or gave any proof that prices were discussed.", "Minutes of the meeting were also not produced.", "There is an association of the cylinder manufacturers.", "All the parties, except few competing with each other, stated that they were not the members of that association.", "A feeble argument was also raised by some Appellants that though they were the members but they were not the active members thereof.", "Some of the Appellants also argued that they had abandoned the membership by not contributing the subscription in the later years.", "However, the Appellants could not deny the position that there was an association called Indian LPG Cylinder Manufacturers Association.", "It was a registered association, its Memorandum of Association provided that one of the objectives was to protect common interest and welfare of LPG cylinder manufacturers.", "According to COMPAT, there was a definite platform available for all cylinder manufacturers and practically all the Appellants appear to be the members of that Association.", "A common written reply was submitted by as many as 44 parties.", "Further, the Appellants had nominated six agents for depositing bids on their behalf.", "These common agents were instructed to keep a close watch on the price quoted by the competitors in a particular State.", "Though some of the Appellants had contended that they had not appointed the common agents, the plea was not accepted by the COMPAT.", "The COMPAT, therefore, proceeded on the admitted grounds that there was an association of cylinder manufactures practically all the Appellants were members of the said association this association was an active association it held meetings on the eve of entry tender obviously for discussing tenders, its conditions etc.", "these meetings were attended by representatives of at least 19 Appellants and these Appellants had six common agents at Mumbai who were instructed to watch the prices offered by the others.", "A dinner meeting as also a lunch were held and one Mr. Chandi Prasad Bhartia of M section Haldia Precision Engineering Private Limited paid the bill for the same.", "Dinner and lunch held in Sahara hotel were attended by about 50 persons in all.", "From this the COMPAT inferred that there was no reason to disbelieve that the parties had an access to each other through their association which was an active association.", "The existence of such an association under the aegis of which meetings took place just before the submission of tender has been noted as a very relevant factor by the COMPAT in affirming the findings of CCI on cartelisation and it summed up the position in the following manner: What is important is not whether a particular Appellant was a member of the association or not.", "The existence of an association is by itself sufficient, as it gives opportunity to the competitors to interact with each other and discuss the trade problems.", "There will be no necessity to prove that any party actually discussed the prices by actively taking part in the meeting.", "If there is a direct evidence to that effect that is certainly a pointer towards the fact that such party had a tacit agreement with its competitors.", "However, the existence of an association and further holding of the meetings just one or two days prior to the last date of making offers and further admission that the parties had appointed common agents with the instructions to keep watch on the prices quoted by the competitors would go a long way in providing plus factors in favour of the agreement between the parties.", "All these factors would form a back drop, in the light of which, the further evidence about agreement would have to be appreciated.", "We have seen the comments of Director General as also the findings of the CCI.", "We are convinced that CCI has not committed any error in considering all these factors as plus factors to come to the conclusion that there was a concerted agreement between the parties on the basis of which the identical or near identical prices came to be quoted in tenders for the supply of cylinders to the 25 States.", "In view of this, we need not dilate on the individual claims by some of the Appellants that they were not the members of the association or that they were only the dormant members or that they had abdicated their membership.", "We also need not go on the claim that while the meeting was attended by the 19 parties as held by the D.G. and confirmed by the CCI, it was not attended by the rest of the Appellants because that would be of no consequence.", "Once there was a meeting, there was every opportunity to discuss or to communicate to each other whatever transpired in the meeting.", "We have seen the order of the CCI and while commenting about the meeting, the CCI has painstakingly noted the details of that meeting.", "The CCI has referred to the evidence of Mr. Dinesh Goyal, who was an active member of the Indian LPG Cylinder Manufacturers Association and noted that he had attended the meeting.", "He has also referred to the statement of Mr. Sandeep Bhartia of Carbac Group though initially he denied to have organized the conference, he later on had confirmed about such a conference having been held along with Mr. Sandeep Bhartia of Carbac Group.", "The CCI also noted that he admitted that in such meetings there were discussions on pre-bid issues.", "He also admitted that though there are about 50 competitors, in fact about 25 persons control the whole affairs.", "From this evidence, the CCI correctly deduced that pre-bid issues were discussed in that meeting.", "The CCI has then referred to the evidence of Mr. Manvinder Singh of Bhiwadi Cylinders Limited, Mr. Chandi Prasad Bhartia of Haldia Precision Engineering P. Limited, Mr. Vijay Kumar Agarwal of SM Sugar Pvt.", "Limited, Mr. section Kulandhaiswamy, MD of Lite Containers Pvt.", "Limited and Secretary of the Association, Mr. Ramesh Kumar Batra, Director of Surya Shakti Vessels Pvt.", "Limited and on that basis came to the correct conclusion that not only was the meetings held on 1st and 2nd March, but thorough discussions went on in those meeting on the pre-bid issue of the concerned tender.", "The CCI has also correctly noted about the agenda of the meeting and has also referred to an admission made by one of the witnesses that the matching of the quotation was a matter of co-incidence and telephonic discussions do take place amongst the parties regarding the trends.", "We are thus thoroughly convinced about holding of the meeting, the discussion held therein and also the discussion regarding the pre-bid issue having been taken place in that meeting.", "The COMPAT thereafter took up for discussion the argument of the Appellants that the CCI should have enquired IOCL also.", "But rejected the same.", "Another significant argument which was canvassed before us also with great emphasis was that it was an oligopolistic market wherein there was a likelihood of each player being aware of actions of the other and in such a situation price parallelism would be a common phenomena.", "Thus, merely because there was a price parallelism, it would not be construed as evidence of collusion.", "The COMPAT rejected this argument as well.", "In the process, it analysed the order of CCI, conclusion whereof was founded on the following factors: The prevailing market conditions were such that there was a constant demand for cylinders not only by IOCL but by other two oil manufacturing companies as well.", "Therefore, there was a constant need for the cylinders which facilitated factor for the collusion.", "There was small number of suppliers.", "Among the 50 participating companies, only 37 companies could be said to be independent bidding companies and there were seven groups consisting of 20 participating companies.", "This small number of suppliers should also be a facilitating factor.", "There were very few new entrants.", "The existence of an active trade association in which all the bidders, except seven companies, were members would be another facilitating factor.", "Few other factors like repetitive bidding, identical products, few or no substitutes and no significant technological changes were the additional factors which persuaded the CCI to arrive at such a conclusion.", "These manufacturing companies had their factories at different places in India, where the costs of the components would differ from State to State.", "Even the taxing structure, the labour conditions and other factors like cost of electricity etc.", "were bound to be different.", "Still the prices quoted were almost identical.", "On the above considerations, the defence of the Appellants was rejected as unconvincing, thereby undergoing the factors considered by the CCI.", "According to the COMPAT all these could not have been possible unless there were internal agreements between the Appellants.", "The COMPAT has approved the finding of the CCI that owing to the collusion, the IOCL could not get lower or the competitive prices.", "The rates quoted in 2010-2011 were higher as compared to the rate quoted in 2009-10.", "From the year 2006-07, the prices had collectively been raised on an average of 30 for making supplies in different states.", "According to the COMPAT, the CCI was right in concluding that it had appreciable adverse effect on competition as the conduct of the LPG cylinder manufacturers in coming together on a common platform and fixing the bid prices ensures that no new player could enter the relevant market and quote the prices independently.", "Thus, these manufacturers would make entry of a new player into the relevant market difficult, because such new player would necessarily have to first negotiate with the existing players to get the business profitably.", "Other factors were driving existing competitors out of the market and foreclosure of competition by hindering entry into the market.", "It negated the argument of the Appellants that when the IOCL was placing orders on the basis of negotiated rates there could be no possibility of incentive to collude.", "According to it, even where the rates are fixed, the bid rigging can still take place to keep the big amounts to a pre-determined level.", "Such pre-determination can be by way of intentional manipulation by members of the bidding group and where the L-1 rates themselves get fixed like in the present case at higher level even if there are negotiations the negotiators would have to take into consideration the benchmark rates.", "There is also a possibility that such benchmark rates could go higher in the subsequent tenders known as rippel effect in long term.", "The COMPAT also took note of the provisions of Section 3, as per which once the agreement is proved there is a presumption about the appreciable adverse effect on competition on the mere proof of the agreement.", "Thus, onus shifts on the other side to prove otherwise which according to the COMPAT was not discharged by the Appellants.", "The COMPAT thereafter took note of some arguments by certain counsel specific to their cases but did not find any substance in them.", "Having examined the relevant provisions whereupon these appeals centre around, we proceed to take note of the arguments that were advanced by various counsel appearing for the Appellants and the manner in which Respondents endeavoured to meet the same.", "Ms. Madhavi Divan, learned Counsel appearing in the appeal filed by Rajasthan Cylinders and Containers Limited, attacked the very basis and foundation on which CCI came to conclusion that there was an agreement or cartelisation by the Appellants aimed at bid rigging.", "She premised her case on the following three propositions: the inherent nature of the market of cylinder manufacturers itself precludes the possibility of competition alternatively, there is no collusive agreement or bid-rigging in the present case and further, in the alternative, even assuming that there is a collusive agreement or bid-rigging in the present case, there is no appreciable adverse effect on competition.", "On the first proposition, argument developed by Ms. Divan was that the Act prohibits anti-competitive practices, which would imply that there has to be a competition in the market, in the first place.", "As a corollary, if there is no such competition, Section 3(1) of the Act does not get triggered.", "According to her, in the instant case, the fact would show that there was a tight control and Regulation by the IOCL and, thus, it did not lead any scope of competition at the very threshold.", "She stressed that the conditions of monopsony oligopsony prevailed.", "For the existence of monopsony oligopsony, she referred to the Glossary of Industrial Organization Economics and Competition Law published by the Organisation for Economic Co-operation and Development (OECD), as per which a monopsony consists of a market with a single buyer.", "When there are only a few buyers, the market is described as an oligopsony.", "In general, when buyers have some influence over the price of their inputs they are said to have monopsony power.", "The ability of a firm to raise prices, even when it is a monopolist, can be reduced or eliminated by monopsony or oligopsony buyers.", "To the extent that input prices can be controlled in this way, consumers may be better off.", "According to her, these conditions were adequately present in the instant case.", "In her attempt to make this proposition good, she highlighted the following features and conditions surrounding the contract: Extremely limited number of buyers and for this particular kind of market-a sole buyer, i.e., IOCL.", "IOCL controls 48 of the market share.", "There are no other purchasers of 14.2 Kg gas cylinders except for HPCL and BPCL, both of whom invite e-tenders, having a market share of 26 and 25 respectively.", "The product is standardized and special to the extent that it is tightly controlled and regulated by the Government and also there are no other takers for it.", "There are entry barriers in the market.", "As per the Tender conditions, only those manufacturers having valid approval from the Chief Controller of Explosives (CCOE) and Bureau of Indian Standards (BIS) license for manufacture of 14.2 kg LPG cylinders as per IS-3196 (Part 1) could submit bids for the tender.", "Even the machinery used to manufacture this product is special and will become obsolete and reducible to scrap if IOCL and the aforesaid two players were to discontinue contracts for supply of 14.2 kg cylinders.", "She pointed out that this was accepted in the Expert Report of Dr. Rughvir K.S. Khemani.", "The tender conditions state that it can be rejected without furnishing reasons.", "Therefore, the lowest price is not sacrosanct (clause 11 of the contract).", "L2 and L3 have also been granted contracts irrespective of the price they have quoted.", "Effective price has no sanctity since not only L2 and L3 also get contracts in addition to or in exclusion of L1 but further, the final negotiated price is determined on the basis of privately conducted negotiations with individual bidders for which the benchmark is not the price quoted by them but the internal estimates arrived on the basis of objective criteria.", "In most States, the final negotiated price was concluded at a rate lower than the internal estimate.", "The internal estimate had absolutely no correlation with the quoted rates by L1 or any other party.", "In this behalf, she pointed out that the IOCL had carried out the exercise of ascertaining the estimated cost of the cylinder through its experts.", "In the report given by the expert, the estimated cost per cylinder was arrived at Rs. 1106.61 paisa per cylinder.", "As against this, the final negotiated price at which the Appellants had supplied cylinders to the IOCL was much lesser.", "According to her, in the whole process the price determination was on the basis of internal estimates by IOCL which could not be influenced by the Appellants at all.", "In fact, even after the tenderers submitted their bids, final price was the price negotiated by IOCL which fact was accepted by Mr. Y. Ramana Rao of IOCL in his deposition recorded by the Director General of CCI.", "This, according to the learned Counsel, clearly proved that there was no adverse effect on competition, in any case.", "The internal estimates were drawn up long after the price bids were made, i.e., on 5th May, 2010.", "Price bids were opened on 23rd March, 2010 and negotiations were held only after the submission of Mott MacDonald Report on 05.05.2010.", "The pattern shows that since L1, L2 and even L3 were awarded the contract and not merely L1, quoting the lowest price did not even determine the identity of the parties who were to get the contract, therefore, the manner in which the process was conducted or controlled by IOCL, completely leaves no scope for either determination of price or the identity of the parties who would get the contract.", "She submitted that in such market conditions where on account of the vertical agreement there is virtually no scope of competitive forces between horizontal players, the question of anti-competitive conduct by virtue of horizontal agreements does not arise.", "There is no competition in the market even before a player enters the fray.", "Therefore, the first premise for the application of Section 3, i.e., the presence of an otherwise competitive market is absent.", "The burden of proof is on the Respondent-- CCI to establish that there is competition in the market before it can justify invoking Section 3.", "There is no automatic presumption Under Section 3 that there is competition in the market.", "From the aforesaid factors, Ms. Divan tried to deduce that price control was entirely in the hands of IOCL and in a situation like this, question of entering into any agreement with the motive of bid rigging or collusive bidding did not arise.", "She also referred to LPG (Regulation of Supply and Distribution) Order, 2000 published vide Notification dated 26th April, 2000 as per which only Government oil companies can supply LPG to domestic consumer of 14.2 kg LPG cylinders with dimensions as specified therein.", "Predicated thereupon, her submission was that the LPG supply in 14.2 kg gas cylinders is an essential commodity the distribution of such cylinders takes place only through Government oil companies the price to the consumer is controlled by the Government and parallel marketers, supplier and distributor of LPG cylinders may do so only for cylinders and specifications other than 14.2 kg cylinders.", "This control of the Government, insofar as supply of 14.2 kg gas cylinders is concerned, would also show tight control over the pricing.", "In such a statutorily tight control price fixing mechanism there could not be bid rigging, was the submission of Ms. Divan.", "She supported this submission by drawing the attention of the Court to the following observations in Ashoka Smokeless Coal India (P) Limited v. Union of India  : (2007) 2 SCC 640: It may be true that prices are required to be fixed having regard to the market forces.", "Demand and supply is a relevant factor as regards fixation of the price.", "In a market governed by free economy where competition is the buzzword, producers may fix their own price.", "It is, however, difficult to give effect to the constitutional obligations of a State and the principles leading to a free economy at the same time.", "A level playing field is the key factor for invoking the new economy.", "Such a level playing field can be achieved when there are a number of suppliers and when there are competitors in the market enabling the consumer to exercise choices for the purpose of procurement of goods.", "If the policy of the open market is to be achieved the benefit of the consumer must be kept uppermost in mind by the State.", "xxx xxx xxx While fixing a fair and reasonable price in terms of the provisions of the Essential Commodities Act (although the price is not dual), it is essential that price is actually fixed.", "Such price fixation is necessary in view of the fact that coal is an essential commodity.", "It is, therefore, vital that price is actually fixed and not kept variable.", "Fixation of price of coal is of utmost necessity as it is a mineral of grave national importance.", "Non-availability of coal and consequently, the other products may lead to hardship to a Section of citizens.", "It may entail closure of factories and other industries which in turn would lead to loss to the State exchequer as they would be deprived of its taxes.", "It will lead to loss of employment of a large number of employees and would be detrimental to the avowed object of the Central Government to encourage small-scale industries.", "She also referred to the following discussion in Excel Crop Care Limited v. Competition Commission of India and Anr.", " : (2017) 8 SCC 47: We are here concerned with parallel behaviour.", "We are conscious of the argument put forth by Mr. Venugopal that in an oligopoly situation parallel behaviour may not, by itself, amount to a concerted practice.", "It would be apposite to take note of the following observations made by European Court of Justice in Dyestuffs Imperial Chemical Industries Limited v. Commission of European Communities, 1972 ECR 619 (ECJ): By its very nature, then, the concerted practice does not have all the elements of a contract but may inter alia arise out of coordination which becomes apparent from the behaviour of the participants.", "Although parallel behaviour may not itself be identified with a concerted practice, it may however amount to strong evidence of such a practice if it leads to conditions of competition which do not respond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market.", "Such is the case especially where the parallel behaviour is such as to permit the parties to seek price equilibrium at a different level from that which would have resulted from competition, and to crystallise the status quo to the detriment of effective freedom of movement of the products in the internal market and free choice by consumers of their suppliers.", "At the same time, the Court also added that the existence of a concerted practice could be appraised correctly by keeping in mind the following test: If the evidence upon which the contested decision is based is considered, not in isolation, but as a whole, account being taken of the specific features of the products in question.", "The learned Counsel also referred to various judgments of other jurisdictions, primarily that of European Commission and the Court of Justice of European Union, which we shall discuss at the appropriate stage.", "Ms. Divan, also highlighted that in this entire scenario, it was necessary to have the views of IOCL.", "However, in a suo motu case, IOCL was not even served with any notice and therefore no evidence was elicited from IOCL on the issue whether there was any autonomy left to the manufacturer in the matter of price determination.", "She, thus, argued that merely because there was price parallelism, it could not have been the reason to arrive at a conclusion that there was a collusive agreement or bid rigging.", "She submitted that in a monopsonistic market where there are few buyers, the price is set by the buyers, and the conditions are such that sellers can predict demand, there is a repetitive bidding process and the products are identical and specialized, the likelihood of price parallelism is natural.", "Further, price parallelism is inevitable where the buyer has a high degree of control and determines price, quantity, and even the identities of the awardees at its discretion.", "Referring to the following discussion in Union of India v. Hindustan Development Corporation  : (1993) 1 SCC 467, she argued that mere identical pricing cannot lead to the conclusion of cartelisation: 7.", "(1) There is not enough of material to conclude that M section H.D.C., Mukand and Bhartiya formed a cartel.", "Because of mere quoting identical tender offers by the said three manufacturers for which there is some basis, the conclusion that the said manufacturers had formed a cartel does not appear to be correct.", "However since the offers of the said three tenderers were identical and the price was somewhat lower, the Tender Committee entertained a suspicion that a cartel had been formed and the same got further strengthened by the post-tender attitude of the said manufacturers which further resulted in entertaining the same suspicion by the other authorities in the hierarchy of decision making body including the Minister of Railways.", "She pointed out that this principle has also been stated in paragraph 17 of the Union of India v. Hindustan Development Corporation  : (1993) 3 SCC 499.", "Her submission was that identical pricing may be further explained by the fact that, given the high degree of predictability of prices, bidders may take a business decision to mirror prices of competitors in certain States, by adjusting or averaging prices in others.", "The learned Counsel pointed out that the CCI arrived at an inference of a collusive agreement based, inter alia, on the presence of circumstances which have acted as facilitating factors for collusion.", "These factors which describe the nature of the industry are: Predictability of demand Small number of suppliers Few new entrants Active trade association Repetitive bidding Identical products Few or no substitutes No significant technological changes, i.e., a standardised product in respect of which there has been no change or alteration in design.", "Her reply was that these are the characteristics which define the industry.", "Yet these very factors are relied upon to come to the conclusion that there is collusion and bid rigging.", "She submitted that if the very nature of the industry is such that there are very small numbers of suppliers, very few new entrants and a standard product being supplied to the same party year after year, such factors are beyond the control of the individual manufacturers and cannot be relied upon as factors to lead to a presumption that there is collusive conduct.", "In other words, the very nature of the industry cannot be used as a factor to presume collusion because collusion itself requires a state of mind or intent whereas in this case, most of these factors are inherent in the nature of the industry as described by the CCI itself.", "Adverting to her 2nd proposition, namely, there was no collusive agreement or bid rigging in the present case, her submission was that CCI has relied on a dinner attended by some manufacturers on 1st March, 2010 and a lunch on 2nd March, 2010 as evidence of a price fixing agreement.", "Her response was that the factum of meetings of an association by itself in any case cannot lead to a conclusion of collusion.", "Likewise, the COMPAT also upheld that inference based on the factum of the meetings of the Association.", "The COMPAT went to the extent of holding that it is irrelevant whether a particular party was a member of the Association or not and the existence of Association is by itself sufficient.", "This approach was attacked as contrary to the fundamental right to form an association Under Article 19(1)(c)(g) of the Constitution of India.", "So far as the meetings over dinner and lunch are concerned, both were hosted by individual members.", "In the case of the dinner meeting on 1st March, 2010, it was hosted by Mr. C.P. Bhartiya, MD of North India Wires.", "The lunch on 2nd March, 2010 was hosted by Mr. Santosh Bhartiya of Haldia Precision.", "It is not as if that the Association paid or the expenses were shared by all members who attended.", "She also submitted that insofar as Appellant-Rajasthan Cylinders and Containers Limited is concerned, no representatives of Appellant attended the said meeting.", "Further, many other members did not attend the meeting.", "Even as per the findings of the Director General, only 12 persons representing 19 parties are said to have attended the meeting.", "Her submission was that as per the allegations, 45 persons had entered into an agreement of cartelisation which should not be established only with the said meeting which was not attended by all and in fact very few members.", "In any case, according to her, it was expressly stated by at least two persons who attended the meeting that price was not discussed.", "These are Mr. Chandi Prasad Bhartia from Haldia Precision and Mr. Manvinder Singh of Bhiwadi Cylinders Limited Her further submission on this aspect was that the inference drawn on the basis of six agents being nominated for depositing 44 bids was also misconceived.", "The CCI holds that this might have held to the possibility of copying and matching of the rates quoted in the price bids by many suppliers in a particular state.", "The test as laid down in the case of Ahlstrom Osakeyhtio v. Commission1 is: Is the concentration the only plausible explanation for the conduct? Following that analysis, it must be stated that, in this case, concentration is not the only plausible explanation for the parallel conduct.", "To begin with, the system of price announcements may be regarded as constituting a rational response to the fact that the pulp market constituted a long-term market and to the need felt by both buyers and sellers to limit commercial risks.", "Further, the similarity in the dates of price announcements may be regarded as a direct result of the high degree of market transparency, which does not have to be described as artificial.", "Finally, the parallelism of prices and the price trends may be satisfactorily explained by the oligopolistic tendencies of the market and by the specific circumstances prevailing in certain period.", "Accordingly, the parallel conduct established by the Commission does not constitute evidence of concentration.", "This test is not met in the present case for reasons that are enumerated.", "Her third proposition was that in any case there was no appreciable adverse effect on competition.", "She tried to make this submission good by contending that when industry is an oligopoly, the price parallel or a finding of identical quoting of price does not by itself lead to the conclusion of a converted price.", "Moreover, in the instant case, number of entrants had increased as 12 new entrants submitted their bid for the year 2010-11.", "Therefore, the finding of the CCI, upheld by the COMPAT, that there has been a creation of barriers for new entrants is without any basis.", "Other counsel who appeared on behalf of the Appellants made their submission almost on the same lines, albeit, with further elaborations on certain aspects, some of which are taken note of hereafter.", "Mr. Jaiveer Shergil, who argued for the Appellant--Om Containers (C.A. Number 6369 of 2014) submitted that in order to attract the presumption contained in Section 3(3) about the appreciable adverse effect on competition, in the first instance, there has to be a finding that there has been an agreement of the kind set out in Section 3(3)(a) to (d).", "Since, the allegation against the Appellants was that the agreement resulted in bid rigging and case is covered Under Section 3(3)(d) of the Act, it was necessary that there is a positive finding to the aforesaid effect, namely, that there was agreement which had resulted in bid rigging.", "According to him, since the definition of bid rigging in Explanation to Section 3(3) uses the words means, the definition is a hard and fast definition and no other meaning can be assigned to the expression than is put down in the definition, as held in Punjab Land Development Reclamation Corporation Limited v. Presiding Officer, Labour Court  : (1990) 3 SCC 682 in the following words: The definition has used the word means.", "When a statute says that a word or phrase shall mean-- not merely that it shall include -- certain things or acts, the definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition (per Esher, M.R., Gough v. Gough (1891) 2 QB 665 : 65 LT 110).", "A definition is an explicit statement of the full connotation of a term.", "Thus, according to him, for it to be a case of bid rigging, the agreement must be such which is defined in the Explanation to Section 3(3)(d) creating the effect of: Eliminating or reducing competition for bids or Adversely affecting the process for bidding or Manipulating the process for bidding.", "He referred to the judgment in section Sundaram Pillai v. V.R. Pattabiraman  : (1985) 1 SCC 591, on the purpose of an Explanation, viz.: We have now to consider as to what is the impact of the Explanation on the proviso which deals with the question of willful default.", "Before, however, we embark on an inquiry into this difficult and delicate question, we must appreciate the intent, purpose and legal effect of an Explanation.", "It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision.", "Sarathi in Interpretation of Statutes while dwelling on the various aspects of an Explanation observes as follows: The object of an Explanation is to understand the Act in the light of the explanation.", "It does not ordinarily enlarge the scope of the original Section which it explains, but only makes the meaning clear beyond dispute.", "He submitted that there is no positive evidence of this nature at all and the CCI as well as COMPAT has proceeded on inferences as regards bid rigging and, therefore, such orders cannot be sustained.", "In the absence thereof, submitted the learned Counsel, doctrine of reverse burden which was put on the Appellants would not apply.", "He referred to the following judgments in support.", "The counsel relied upon the following observations in CCI v. Artistes Technicians of W.B. Film Television: The Competition Act, 2002, as amended in 2007 and 2009, deals with anti-trust issues viz. Regulation of anti-competitive agreements, abuse of dominant position and a combination or acquisition falling within the provisions of the said Act.", "Since the majority view of CCI also accepted that the impugned activities of the Coordination Committee did not amount to abuse of dominant position, and it treated the same as anti-competitive having appreciable adverse effect on competition, our discussion would be focused only on anti-competitive agreements.", "Section 3 of the Act is the relevant Section in this behalf.", "It is intended to curb or prohibit certain agreements.", "Therefore, in the first instance, it is to be found out that there existed an agreement which was entered into by enterprise or association of enterprises or person or association of persons.", "Thereafter, it needs to be determined as to whether such an agreement is anti-competitive agreement within the meaning of the Act.", "Once it is found to be so, other provisions relating to the treatment that needs to be given thereto get attracted.", "Taking aid of the aforesaid legal principle, it was submitted that in the present case it will be seen that the CCI, rather arriving at a finding with focus on the aforesaid factors, proceeded to analyse factors which attach to the general market conditions of the industry to infer the possibility of bid rigging and then concluded that the facilitating factors which may be considered conducive for cartelisation are present.", "The D.G. found that in all the probability, prices were fixed there at the meeting in Bombay in collusion with each other.", "Such an inference and assumption based on higher chances, probability, tendencies or likelihood by the CCI does not meet the requirement of the definition contained in Explanation to Section 3(3) and certainly does not constitute a finding of bid rigging as defined therein.", "The Tribunal has also proceeded on the basis that it is to be deducedthat these meetings did relate to the tender offers.", "There was, thus, not clear-cut, precise and consistent evidence to support that the alleged bid rigging took place.", "Next submission of Mr. Shergil was that apart from the complete absence of a finding of bid rigging, in the present IOCL tender, as a matter of fact there cannot be any bid rigging as defined in Section 3(3).", "To take the first ingredient, i.e., eliminating or reducing competition for bids, the report of D.G. itself finds that out of the 60 bidding parties 37 entities were not belonging to any single group and are independently controlled.", "Hence, straight away there is no case of eliminating or reducing competition for bids which is one of the possible ingredients of bid rigging as there were 37 entities who were free of mind to participate and bid of their own accord in the absence of any control by any cartel.", "As regards the second and third requirement of bid rigging, i.e., adversely effecting or manipulating the bidding process, he argued that the submission of bids by the Appellant (even if identical) can have no effect of adversely effecting or manipulating the bidding process this being on account of the very nature of the present tender process.", "Although, bids are invited from bidders, IOCL has a fixed base procurement price of Rs. 1106.61 per cylinder.", "IOCL then works out an estimated rate per State based on certain factors peculiar to that State such as octroi, freight etc.", "The bid offered by the L1 (lowest bidder) is then subject to further downward negotiations by IOCL as per the tender Clause and a further finalised rate is arrived at.", "Such finalised rate is eventually even lower than the L1 bid amount.", "Thus, factually, logically and in reality any bid submitted by any party can never be one which is said to adversely affect or manipulate the bidding process.", "All of this information is with IOCL as part of its bidding process preparations, estimates and financial workings and could easily have been taken into consideration.", "In support, Mr. Shergil also referred to the terms and conditions of the IOCL tender.", "His further submission was that CCI, or for that matter COMPAT, were wrong in getting influenced by the submissions of identical bids by the Appellants as it could not be, ipso facto, inference of bid rigging.", "Such identical prices could be for various reasons and he shared that the reasons given by Ms. Divan predicated her submissions on oligopsony monopsony.", "In addition, he relied upon the judgment of this Court in Union of India v. Hindustan Development Corporation and, in particular, para 17 thereof, which is as under: Therefore, whether in a given case, there was formation of a cartel by some of the manufacturers which amounts to an unfair trade practice, depends upon the available evidence and the surrounding circumstances.", "In the instant case, initially the Tender Committee formed the opinion that the three big manufacturers formed a cartel on the ground that the price initially quoted by them was identical and was only a cartel price.", "This, in our view, was only a suspicion which of course got strengthened by post-tender attitude of the said manufacturers who quoted a much lesser price.", "As noticed above it cannot positively be concluded on the basis of these two circumstances alone.", "In the past these three big manufacturers also offered their own quotations and they were allotted quantities on the basis of the existing practice.", "However, a mere quotation of identical price and an offer of further reduction by themselves would not entitle them automatically to corner the entire market by way of monopoly since the final allotment of quantities vested in the authorities who in their discretion can distribute the same to all the manufacturers including these three big manufacturers on certain basis.", "No doubt there was an apprehension that if such predatory price has to be accepted the smaller manufacturers will not be in a position to compete and may result in elimination of free competition.", "But there again the authorities reserved a right to reject such lower price.", "Under these circumstances though the attitude of these three big manufacturers gave rise to a suspicion that they formed a cartel but there is not enough of material to conclude that in fact there was such formation of a cartel.", "However, such an opinion entertained by the concerned authorities including the Minister was not malicious nor was actuated by any extraneous considerations.", "They entertained a reasonable suspicion based on the record and other surrounding circumstances and only acted in a bona fide manner in taking the stand that the three big manufacturers formed a cartel.", "Some literature on the theory of oligopolistic interdependence as well as judgments of the European Union and European Commission were also cited.", "Mr. Pradeep Aggarwal, in addition, argued that though there was no positive finding of cartelisation and the conclusion was merely presumptive, even if it is accepted that there was such an agreement of bid rigging or collusive bidding, there was no presumption of appreciable adverse effect on competition.", "In the alternative, he submitted that there was, in fact, no appreciable adverse effect on competition in the present case and the said presumption totally was rebutted by producing sufficient evidence on record.", "Various other counsel also argued on the same lines and in addition referred to facts or their specific cases and it is not necessary to state all those arguments to avoid repetition.", "Per contra, Mr. Salman Khurshid, learned senior Counsel appearing for CCI highlighted the purpose for which the Act is enacted and, in particular, objective behind Section 3 of the Act, which is taken note of by this Court in Excel Crop Care Limited as well as West Bengal Artists Association.", "Insofar as instant case is concerned, his submission was that it is a stark and clear-cut case of bid rigging as a result of anti-competitive agreement amongst LPG manufacturers in respect of a tender (Tender Number LPG-O M PT-03/09-10) floated by IOCL for procurement of approximately 1,05,00,000 (105 lakhs) LPG Cylinders.", "This is a matter of serious public concern because these cylinders were to be used to supply Liquefied Petroleum Gas (LPG) for domestic consumption across 25 States.", "A rise in price resulting from anti-competitive activities would affect the cost of living for the common man, and has serious ramifications for the economy as a whole.", "Mr. Khurshid referred to the findings of the CCI as approved by COMPAT and submitted that there was a strong economic evidence of collusion which is evident from the following aspects: Identical or near-identical bidding by all 50 empaneled LPG vendors resulting in bid rigging.", "Results of the tender revealed that these bids were made in such a way that all the bidders were awarded some portion of the tender and no bidder was left empty handed, i.e., Market Sharing Arrangement.", "Geographical Territorial allocation of market, i.e., the bids were placed in such a way that entities located in the northern parts of the country were awarded the tender in the northern States, entities located in the southern parts were awarded the tender in respect of southern States etc.", "No plausible economic rationale or explanation was forthcoming for the identical bids, despite obvious difference in cost of production, location, input cost etc.", "The overall effect of increase in price of procurement of LPG Cylinders over previous years.", "He also submitted that pattern of identical and near identical bids, which was all pervasive throughout, could not be brushed aside lightly as that was the clear indicator of price bidding as a result of agreement between the parties.", "The analysis of the bids also shows that it had already been decided amongst the LPG Cylinder manufacturers as to who the L1 and L2 bidders were going to be prior to submission of bids.", "For instance, in the State of Punjab, the L1 bidder (Shri Ram Cylinders) bid Rs. 1080 whereas the four L2 bidders placed identical bids at Rs. 1080.50, i.e., a difference of only 50 paise from the L-1 bid.", "Similarly, in Rajasthan, the L-1 bidder (M section Rajasthan Cylinders) quoted Rs. 1130, whereas nine L2 bidders quoted identically by just 50 paise more, at Rs. 1130.50.", "This pattern is repeated across a number of States.", "Not only this, in order to achieve the pre-decided outcome, some of the bidders hastily made corrections to their bid documents.", "One such case is that of M section Jesmajo Industrial Fabrications (Appellant in C.A. Number 4868 of 2014).", "In the bid documents, the bid of Rs. 1103 was cut-corrected to make it Rs. 1103.60 even though the calculation of VAT was done only on the figure of Rs. 1103.", "The Director General has commented on this aspect as follows: 6.13.", "That bids were submitted after mutual discussion is apparent from the tender documents of Jesmajo Industrial Fabricators P. Limited (Exhibit 4P).", "There are cuttings in the tender documents and financial bids of the company.", "Since, there were discussions among all oil companies, the company might have decided to make alterations in the financial bids.", "However, even in the financial bids of the company, it is noted that despite alterations, errors have remained.", "It seems that the company had originally quoted Rs. 1103/- as the rate.", "Subsequently it changed the rates to Rs. 1103.60.", "However, VAT rate in the bid had been calculated on Rs. 1103/- only instead of Rs. 1103.60.", "Thus, while other component of rates has been changed altered, the calculation of VAT has been done on Rs. 1103 (originally quoted) instead of Rs. 1103.60 (altered quote).", "This appears to have been done to match rates with other bidders who have quoted the similar rates in the State of Karnataka and to let Sanghvi group be L-1 in that State.", "Mr. Khurshid also refuted the submission of the Appellants that there was no competition and, therefore, Section 3 was not applicable.", "According to him, if the matters are examined on such basis most of the culprits will get away.", "The purpose of the Act was not only to eliminate cartelisation but also to promote competition.", "His submission was that once the findings of the CCI and COMPAT are accepted that there was an agreement, such an agreement was obviously for the purpose of curbing the competition.", "Answering the argument of price parallelism which according to the Appellants resulted in identical and near identical bids, Mr. Khurshid argued that legal submission in this respect was settled by this Court in Excel Crop Care case wherein such an argument was rejected in the following words: It was argued that since dominant position is enjoyed by the buyer, it leads to parallel pricing and this conscious parallelism takes place leading to quoting the same price by the suppliers.", "The explanation, thus, given for quoting identical price was the aforesaid economic forces and not because of any agreement or arrangement between the parties.", "It was submitted that merely because same price was quoted by the Appellants in respect of the 2009 FCI tender, one could not jump to the conclusion that there was some agreement as well between these parties, in the absence of any other evidence corroborating the said factum of quoting identical price.", "In respect of this submission, Mr. Venugopal had also referred to a few judgments.", "The aforesaid argument is highly misconceived.", "A neat and pellucid reply of Mr. Kaul, which commands acceptance, is that argument of parallelism is not applicable in bid cases and it fits in the realm of market economy.", "It is for this reason that entire history of quoting identical price before coming into operation of Section 3 and which continued much after Section 3 of the Act was enforced, has been highlighted He also referred to the following findings of COMPAT with the submission that finding of facts need to be accepted: We are thoroughly convinced by this analysis that all this could not have been possible unless there were internal agreements between the concerns.", "What shocks us is that the quotations of the price did match to the last decimal and the quotations in some cases were in odd figures like Rs. 1127 in the State of Tamil Nadu.", "The record is replete with such odd figures.", "It was strange that in some of the oral statements of the representatives of these parties, who were examined by the DG, some of them could not even justify these identical prices and tried to say that it was a mere coincidence.", "We cannot accept the argument of coincidence as was rightly rejected by CCI.", "There can be no explanation for this kind of identical or near identical pricing.", "The CCI has rightly considered that the manufacturing cost of per cylinder varies in a wide spectrum ranging from Rs. 870 to Rs. 1095.89.", "If this was the case, the prices had to be different, if they had been offered in a competitive spirit.", "Either before the CCI or before us no material was produced, which would be able to rebut the presumption arising from the identity of rates.", "The CCI, therefore, rightly concluded that this identity of prices was sinister and anti-competitive in nature.", "Another feature which Mr. Salman Khurshid pointed out was that the analysis of bids revealed that there was a market sharing and territorial allocation of bids.", "This, according to him, could be discerned from the following evidence emerging from record: Firstly, the economic evidence indicates that there was an understanding or arrangement or agreement by which each and every bidder would get some part of the allocation under the tender.", "This is clear from the fact that each and every one of the 50 bidders who submitted price bids received some part of the allocation in one or more states, and no one went empty handed.", "In other words, the purpose of quoting identical bids in many instances was to achieve the objective of sharing the market, i.e., the IOCL requirement across 25 states was shared by each of the 50 bidders, through concerted action and pre-decided understanding.", "Mr. Khurshid also highlighted that in spite of there being difference in location of Appellants units and their input cost, the bids submitted by various tenderers were identical and there cannot be any plausible economic rationale for such identical bidding.", "Therefore, the inference drawn by the CCI as well as COMPAT based on the aforesaid features and factors was justified and valid in law.", "He also referred to certain judgments of this Court as well as other jurisdictions, such as, European Commission and the Court of Justice of European Union to which reference would be made at the appropriate stage.", "Before we deal with the arguments advanced by various counsel who appeared for the Appellants and rebuttal thereto by Mr. Salman Khurshid, learned senior Counsel who appeared for CCI as also counsel for IOCL, we would like to reproduce the relevant provisions of the Act in the light of which these appeals are to be decided: Section 2(c) defines cartel and reads as under: Cartel includes an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services Section 3 of the Act deals with and prohibits those agreements which cause and are likely to cause an appreciable adverse effect on competition within india.", "It reads as under: Section 3: Anti-competitive agreements: No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India.", "Any agreement entered into in contravention of the provisions contained in Sub-section (1) shall be void.", "Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which-- (a) directly or indirectly determines purchase or sale prices (b) limits or controls production, supply, markets, technical development, investment or provision of services (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competition: Provided that nothing contained in this Sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services.", "Explanation.--For the purposes of this Sub-section, bid rigging means any agreement, between enterprises or persons referred to in Sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding.", "Certain factors are mentioned in Section 19 of the Act which have to be kept in mind while determining whether an agreement has an appreciable adverse effect on competition Under Section 3.", "We reproduce this Section hereinbelow: Section 19(3) in the Competition Act, 2002: The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition Under Section 3, have due regard to all or any of the following factors, namely: (a) creation of barriers to new entrants in the market (b) driving existing competitors out of the market (c) foreclosure of competition by hindering entry into the market (d) accrual of benefits to consumers (e) improvements in production or distribution of goods or provision of services (f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.", "In Excel Crop Care Limited, scope of Section 3 of the Act which prohibits three kinds of practices as anti-competitive, was taken note of as follows: Chapter II of the Act deals with three kinds of practices which are treated as anti-competitive and prohibited.", "These are: (a) where agreements are entered into by certain persons with a view to cause an appreciable adverse effect on competition (b) where any enterprise or group of enterprises, which enjoys dominant position, abuses the said dominant position and (c) regulating the combination of enterprises by means of mergers or amalgamations to ensure that such mergers or amalgamations do not become anti-competitive or abuse the dominant position which they can attain.", "In that case also the Court was concerned with the 1st category, namely, those cases where certain persons enter into agreements with a view to cause an appreciable adverse effect of competition.", "Purpose behind curbing such anti-competitive practices was mentioned in detail.", "It is not necessary to re-state the same in that expansive manner, however, we would still like to quote certain portions to capture the essence and purpose of the Act: In the instant case, we are concerned with the first type of practices, namely, anti-competitive agreements.", "The Act, which prohibits anti-competitive agreements, has a laudable purpose behind it.", "It is to ensure that there is a healthy competition in the market, as it brings about various benefits for the public at large as well as economy of the nation.", "In fact, the ultimate goal of competition policy (or for that matter, even the consumer policies) is to enhance consumer well-being.", "These policies are directed at ensuring that markets function effectively.", "Competition policy towards the supply side of the market aims to ensure that consumers have adequate and affordable choices.", "Another purpose in curbing anti-competitive agreements is to ensure level playing field for all market players that helps markets to be competitive.", "It sets rules of the game that protect the competition process itself, rather than competitors in the market.", "In this way, the pursuit of fair and effective competition can contribute to improvements in economic efficiency, economic growth and development of consumer welfare xxx xxx xxx In fact, there is broad empirical evidence supporting the proposition that competition is beneficial for the economy.", "Economists agree that it has an important role to play in improving productivity and, therefore, the growth prospects of an economy Productivity is increased through competition by putting pressure on firms to control costs as the producers strive to lower their production costs so that they can charge competitive prices.", "It also improves the quality of their goods and services so that they correspond to consumers demands.", "xxx xxx xxx When we recognise that competition has number of benefits, it clearly follows that cartels or anti-competitive agreements cause harm to consumers by fixing prices, limiting outputs or allocating markets.", "Effective enforcement against such practices has direct visible effects in terms of reduced prices in the market and this is also supported by various empirical studies.", "xxx xxx xxx Keeping in view the aforesaid objectives that need to be achieved, Indian Parliament enacted the Competition Act, 2002.", "Need to have such a law became all the more important in the wake of liberalisation and privatisation as it was found that the law prevailing at that time, namely, Monopolies and Restrictive Trade Practices Act, 1969 was not equipped adequately enough to tackle the competition aspects of the Indian economy.", "The law enforcement agencies, which include CCI and Compat, have to ensure that these objectives are fulfilled by curbing anti-competitive agreements.", "The Court also mentioned, in particular, that competition leads to economic efficiency, economic growth and development as well as consumers welfare.", "The Court also spelled out the manner in which competition contributed to increase economic growth and increased productivity.", "It follows from the above that whereas on the one hand the economic policy of the nation has ushered in the era of liberalisation and globalisation thereby giving freeplay to the private sector in the manner of conducting business, at the same time, in public interest and in the interest of consumers, a regime of regulators has also been brought to ensure certain checks and balances.", "Since competition among the enterprises or businessmen is treated as service for a public purpose and, therefore, there is a need to curb anti-competitive practices, the CCI is given the task (as a regulator) to ensure that no such anti-competitive practices are undertaken.", "In fact, Section 18 of the Act casts a specific and positive obligation on CCI to eliminate anti-competitive practices and promote competition, interest of the consumer and free trade.", "This objective was also emphasised by this Court in Competition Commission of India v. Steel Authority of India Limited and Anr.", "which can be found in the following observations: As far as the objectives of competition laws are concerned, they vary from country to country and even within a country they seem to change and evolve over the time.", "However, it will be useful to refer to some of the common objectives of competition law.", "The main objective of competition law is to promote economic efficiency using competition as one of the means of assisting the creation of market responsive to consumer preferences.", "The advantages of perfect competition are threefold: allocative efficiency, which ensures the effective allocation of resources, productive efficiency, which ensures that costs of production are kept at a minimum and dynamic efficiency, which promotes innovative practices.", "These factors by and large have been accepted all over the world as the guiding principles for effective implementation of competition law.", "As mentioned above, one of the anti-competitive practices is cartelisation, the essential postulate whereof is agreement between enterprises or association of enterprises or persons or associations of persons in respect of production, supply, distribution, storage, acquisition or control of goods or provisions of service, which causes or is likely to cause an appreciable adverse effect on competition within India.", "Such an agreement is treated as void.", "The types of agreement which may fall foul of Section 3 are mentioned in Sub-section (3) thereof.", "These include sharing the market by way of allocation of geographical areas of market clause (c) and the agreements which result in bid-rigging or collusive bidding whether directly or indirectly clause (d).", "There is a presumption that four types of agreements mentioned in Sub-section (3) will have an appreciable adverse effect on competition.", "We may also state at this stage that Section 19(3) of the Act mentions the factors which are to be examined by the CCI while determining whether an agreement has an appreciable adverse effect on competition Under Section 3.", "However, this inquiry would be needed in those cases which are not covered by Clauses (a) to (d) of Sub-section (3) of Section 3.", "Reason is simple.", "As already pointed out above, the agreements of nature mentioned in Sub-section (3) are presumed to have an appreciable effect and, therefore, no further exercise is needed by the CCI once a finding is arrived at that a particular agreement fell in any of the aforesaid four categories.", "We may hasten to add, however, that agreements mentioned in Section 3(3) raise a presumption that such agreements shall have an appreciable adverse effect on competition.", "It follows, as a fortiori, that the presumption is rebuttable as these agreements are not treated as conclusive proof of the fact that it would result in appreciable adverse effect on competition.", "What follows is that once the CCI finds that case is covered by one or more of the clauses mentioned in Sub-section (3) of Section 3, it need not undertake any further enquiry and burden would shift upon such enterprises or persons etc.", "to rebut the said presumption by leading adequate evidence.", "In case such an evidence is led, which dispels the presumption, then the CCI shall take into consideration the factors mentioned in Section 19 of the Act and to see as to whether all or any of these factors are established.", "If the evidence collected by the CCI leads to one or more or all factors mentioned in Section 19(3), it would again be treated as an agreement which may cause or is likely to cause an appreciable adverse effect of competition, thereby compelling the CCI to take further remedial action in this behalf as provided under the Act.", "That, according to us, is the broad scheme when Sections 3 and 19 are to be read in conjunction.", "In these appeals, the Court is concerned with the alleged agreement entered into between the Appellants falling in Clause (d) of Sub-section (3) of Section 3, which talks of bid rigging or collusive bidding.", "Therefore, it would be necessary to understand the meaning of the expression bid rigging and collusive bidding.", "Explanation to Section 3, which is reproduced, assigns meaning to bid rigging and states: Section 3: Explanation.--For the purposes of this Sub-section, bid rigging means any agreement, between enterprises or persons referred to in Sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding.", "The necessary ingredients of bid rigging, thus, are: (a) agreement between the parties (b) these parties are engaged in identical or similar production or trading of goods or provisions of services and (c) the agreement has the effect of eliminating or reducing competition of bids or adversely affect or manipulating the process for bidding.", "Though the expression collusive bidding is not defined in the Act, it appears that both bid rigging and collusive bidding are overlapping concepts.", "This position stands accepted in Excel Crop Care Limited case which should be found from the following discussion therefrom: Mr. Neeraj Kishan Kaul, learned Additional Solicitor General, refuted the aforesaid submission with vehemence by urging that bid rigging and collusive bidding are not mutually exclusive and these are overlapping concepts.", "Illustratively, he referred to the findings of CCI, as approved by Compat, in the instant case itself to the effect that the Appellants herein had manipulated the process of bidding on the ground that bids were submitted on 8-5-2009 collusively, which was only the beginning of the anti-competitive agreement between the parties and this continued through the opening of the price bids on 1-6-2009 and thereafter negotiations on 17-6-2009 when all the parties reduced their bids by same figure of Rs. 2 to bring their bid down to Rs. 386 per kg from Rs. 388 per kg.", "From this example, he submitted that on 8-5-2009 there was a collusive bidding but with concerted negotiations on 17-6-2009, in the continued process, it was rigging of the bid that was practiced by the Appellants.", "We are inclined to agree with this pellucid submission of the learned Additional Solicitor General.", "Richard Whish and David Bailey Competition Law, 7th Edn., p. 536.", ", in their book, have given illustrations of various forms of collusive bidding bid rigging, which include: Level tendering bidding (i.e. bidding at same price -- as in the present case).", "Cover bidding courtesy bidding.", "Bid rotation.", "Bid allocation.", "Even internationally, collusive bidding is not understood as being different from bid rigging.", "These two expressions have been used interchangeably in the following international commentaries glossaries and websites of competition authorities: Unctad Competition Glossary dated 22-6-2016 Bid rigging or collusive tendering is a manner in which conspiring competitors may effectively raise prices where business contracts are awarded by means of soliciting competitive bids.", "Essentially, it relates to a situation where competitors agree in advance who will win the bid and at what price, undermining the very purpose of inviting tenders which is to procure goods or services on the most favourable prices and conditions.", "OECD Glossary of Industrial Organisation Economics and Competition Law Bid rigging is a particular form of collusive price-fixing behaviour by which firms coordinate their bids on procurement or project contracts.", "There are two common forms of bid rigging.", "In the first, firms agree to submit common bids, thus eliminating price competition.", "In the second, firms agree on which firm will be the lowest bidder and rotate in such a way that each firm wins an agreed upon number or value of contracts.", "Since most (but not all) contracts open to bidding involve Governments, it is they who are most often the target of bid rigging.", "Bid rigging is one of the most widely prosecuted forms of collusion.", "Collusive bidding (tendering) -- See bid rigging.", "(This shows collusive bidding and bid rigging are treated as one and the same.) OECD Guidelines for fighting bid rigging Bid rigging (or collusive tendering) occurs when businesses, that would otherwise be expected to compete, secretly conspire to raise prices or lower the quality of goods or services for purchasers who wish to acquire products or services through a bidding process.", "United States Office of the Inspector General, Investigations (Fraud Indicators Handbook) Collusive bidding, price fixing or bid rigging, are commonly used interchangeable terms which describe many forms of an illegal anti-competitive activity.", "The common thread throughout all these activities is that they involve any agreements or informal arrangements among independent competitors, which limit competition.", "Agreements among competitors which violate the law include but are not limited to: Agreements to adhere to published price lists.", "Agreements to raise prices by a specified increment.", "Agreements to establish, adhere to, or eliminate discounts.", "Agreements not to advertise prices.", "Agreements to maintain specified price differentials based on quantity, type or size of product.", "Australian Competition and Consumer Commission Bid rigging, also referred to as collusive tendering, occurs when two or more competitors agree they will not compete genuinely with each other for tenders, allowing one of the cartel members to win the tender.", "Participants in a bid rigging cartel may take turns to be the winner by agreeing about the way they submit tenders, including some competitors agreeing not to tender.", "As the Liegeman of the law, it is our task, nay a duty, to give proper meaning and effect to the aforesaid Explanation.", "It can easily be discussed that the legislature had in mind that the two expressions are interchangeably used.", "It is also necessary to keep in mind the purport behind Section 3 and the objective it seeks to achieve: 41.1.", "Sub-section (1) of Section 3 is couched in the negative terms which mandates that no enterprise or association of enterprises or person or association of persons shall enter into any agreement, when such agreement is in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services and it causes or is likely to cause an appreciable adverse effect on competition within India.", "It can be discerned that first part relates to the parties which are prohibited from entering into such an agreement and embraces within it persons as well as enterprises thereby signifying its very wide coverage.", "This becomes manifest from the reading of the definition of enterprise in Section 2(h) and that of person in Section 2(l) of the Act.", "The second part relates to the subject-matter of the agreement.", "Again it is very wide in its ambit and scope as it covers production, supply, distribution, storage, acquisition or control of goods or provision of services.", "The third part pertains to the effect of such an agreement, namely, appreciable adverse effect on competition, and if this is the effect, purpose behind this provision is not to allow that.", "Obvious purpose is to thwart any such agreements which are anti-competitive in nature and this salubrious provision aims at ensuring healthy competition.", "Sub-section (2) of Section 3 specifically makes such agreements as void.", "Sub-section (3) mentions certain kinds of agreements which would be treated as ipso facto causing appreciable adverse effect on competition.", "It is in this backdrop and context that Explanation beneath Sub-section (3), which uses the expression bid rigging, has to be understood and given an appropriate meaning.", "It could never be the intention of the legislature to exclude collusive bidding by construing the expression bid rigging narrowly.", "No doubt, Clause (d) of Sub-section (3) of Section 3 uses both the expressions bid rigging and collusive bidding, but the Explanation thereto refers to bid rigging only.", "However, it cannot be said that the intention was to exclude collusive bidding.", "Even if the Explanation does contain the expression collusive bidding specifically, while interpreting Clause (d), it can be inferred that collusive bidding relates to the process of bidding as well.", "Keeping in mind the principle of purposive interpretation, we are inclined to give this meaning to collusive bidding.", "It is more so when the expressions bid rigging and collusive bidding would be overlapping, under certain circumstances which was conceded by the learned Counsel for the Appellants as well.", "We are, therefore, of the opinion that the two expressions are to be interpreted using the principle of noscitur a sociis i.e. when two or more words which are susceptible to analogous meanings are coupled together, the words can take colour from each other.", "(See Leelabai Gajanan Pansare v. Oriental Insurance Company Limited Leelabai Gajanan Pansare v. Oriental Insurance Company Limited,  : (2008) 9 SCC 720, Thakorlal D. Vadgama v. State of Gujarat Thakorlal D. Vadgama v. State of Gujarat,  : (1973) 2 SCC 413: 1973 SCC (Cri.) 835 and M.K. Ranganathan v. State of Madras M.K. Ranganathan v. State of Madras,  : (1955) 2 SCR 374: AIR 1955 SC 604.) The first proposition of Ms. Divan, viz. there is no competition, has two facets.", "First, the legal one which concerns the jurisdiction of the CCI to deal with such matters and the other is factual, which is to be examined on the basis of facts in these cases.", "Insofar as the first component is concerned, having regard to the aforesaid scheme of the Act, we are not convinced with the argument of Ms. Madhavi Divan that there is no possibility of a competition in these cases and, therefore, CCI had no jurisdiction to carry out any such investigation.", "The scope and ambit of the provisions of Section 3 have been considered in detail in Excel Crop Care Limited case.", "This Section prohibits anti-competitive agreements and brings about the prime objective of the Competition Act.", "These aspects were noted in Excel Crop Care Limited, relevant portions whereof are already extracted above.", "We may also quote the following portion from the judgment of this Court in Steel Authority of India Limited wherein objective behind the Act was highlighted in the following manner: We have already noticed that the principal objects of the Act, in terms of its Preamble and the Statement of Objects and Reasons, are to eliminate practices having adverse effect on the competition, to promote and sustain competition in the market, to protect the interest of the consumers and ensure freedom of trade carried on by the participants in the market, in view of the economic developments in the country.", "In other words, the Act requires not only protection of free trade but also protection of consumer interest.", "The delay in disposal of cases, as well as undue continuation of interim restraint orders, can adversely and prejudicially affect the free economy of the country.", "Efforts to liberalise the Indian economy to bring it on a par with the best of the economies in this era of globalisation would be jeopardised if time-bound Schedule and, in any case, expeditious disposal by the Commission is not adhered to.", "The scheme of various provisions of the Act which we have already referred to including Sections 26, 29, 30, 31, 53-B(5) and 53-T and Regulations 12, 15, 16, 22, 32, 48 and 31 clearly show the legislative intent to ensure time-bound disposal of such matters.", "We would like to reemphasise that the purpose of the Act is not only to illuminate practices having adverse effect on the competition but also to promote and sustain competition in the market.", "Enforcement provides remedies to avoid situation that will lead to decrease competition in the market.", "Therefore, effective enforcement is important not only to sanction anti-competitive conduct but also to deter future competitive practices.", "In the present case itself, there are sixty suppliers of the product for which there are three buyers.", "After all, each supplier would like to be L-1 or L-2 so that it is able to get order for larger quantities than the other.", "In this sense, there would be a competition among them.", "Further, it would also be in the interest of the buyers like IOCL etc.", "that the elements of healthy competition persists in the market.", "In any case, it is the duty of the CCI to ensure that the conditions which have tendency to kill the competition are to be curbed.", "It is also the function of the CCI to ensure that there is a competition so that benefits of such competition are reaped by the consumers.", "However, insofar as certain factual aspects highlighted by the Appellants are concerned, they would be dealt with while examining the third proposition, as we deem it more appropriate to discuss these two aspects together.", "Second proposition of Ms. Divan was that there was no collusive bidding in the present case.", "The CCI and COMPAT have rejected this argument in view of the fact that there is an active trade association of the suppliers a meeting took place couple of days before the date of bidding common changes were pointed out by these Appellants who submitted bids on their behalf and bids were of identical amounts despite varying cost, which were repetitive in nature.", "The Respondents may be right in their submission that there may not be a direct evidence on the basis of which cartelisation or such agreement between the parties can be proved as these agreements are normally entered into in closed doors.", "The standard of proof which is required is one of probability, which is a principle accepted in Technip SA v. SMS Holding (P) Limited and Ors.", "wherein the Court stated and discussed this aspect in the following manner: The standard of proof required to establish such concert is one of probability and may be established: if having regard to their relation etc., their conduct, and their common interest, that it may be inferred that they must be acting together: evidence of actual concerted acting is normally difficult to obtain, and is not insisted upon CIT v. East Coast Commercial Company Limited,  : (1967) 1 SCR 821: AIR 1967 SC 768.", "(SCR p. 829 H) While deciding whether a company was one in which the public were substantially interested within the meaning of Section 23-A of the Income Tax Act, 1922 this Court said: The test is not whether they have actually acted in concert but whether the circumstances are such that human experience tells us that it can safely be taken that they must be acting together.", "It is not necessary to state the kind of evidence that will prove such concerted actings.", "Each case must necessarily be decided on its own facts.", "CIT v. Jubilee Mills Limited,  : (1963) 48 ITR 9 (SC), p. 20 In Guinness PLC and Distillers Company PLC Guinness PLC and Distillers Company PLC (Panel hearing on 25-8-1987 and 2-9-1987 at p. 10052 -- Reasons for decisions of the Panel.) the question before the Takeover Panel was whether Guinness had acted in concert with Pipetec when Pipetec purchased shares in Distillers Company PLC.", "Various factors were taken into consideration to conclude that Guinness had acted in concert with Pipetec to get control over Distillers Company.", "The Panel said: The nature of acting in concert requires that the definition be drawn in deliberately wide terms.", "It covers an understanding as well as an agreement, and an informal as well as a formal arrangement, which leads to cooperation to purchase shares to acquire control of a company.", "This is necessary, as such arrangements are often informal, and the understanding may arise from a hint.", "The understanding may be tacit, and the definition covers situations where the parties act on the basis of a nod or a wink Unless persons declare this agreement or understanding, there is rarely direct evidence of action in concert, and the Panel must draw on its experience and common sense to determine whether those involved in any dealings have some form of understanding and are acting in cooperation with each other.", "Guinness PLC and Distillers Company PLC (Panel hearing on 25-8-1987 and 2-9-1987 at p. 10052 -- Reasons for decisions of the Panel.) We would also like to reproduce the following discussion in Commissioner of Income Tax, Bombay City I, Bombay v. Jubilee Mills Limited, Bombay: At the hearing a point was raised that it has to be proved as a fact that the persons constituting the group which owns shares carrying more than seventy-five per cent of the voting power, were acting in unison.", "The test is not whether they have actually acted in concert but whether the circumstances are such that human experience tells us that it can safely be taken that they must be acting together.", "It is not necessary to state the kind of evidence that will prove such concerted actings.", "Each case must necessarily be decided on its own facts.", "The exclusion of public in the manner indicated generally from more than 75 of the shares and the concentration of such a holding in a single person or a group acting in concert is what attracts Section 23(A).", "It is also significant to state that Respondents had drawn attention of this Court to OECD Policy Roundtables Prosecuting Cartels without Direct Evidence 2006 which discussed the nature of evidence that is required for proving cartel agreement, relevant portion thereof contained in para 2 of the said Policy is reproduced below: Available evidence for proving cartel agreements 2.1 Categories of evidence Evidence used to prove a cartel agreement can be classified into two types: direct and circumstantial.", "Circumstantial evidence, in turn, consists of communication evidence and economic evidence, which include firm conduct, market structure, and evidence of facilitating practices.", "Common types of direct evidence include: -A document or documents (including email messages) essentially embodying the agreement, or parts of it, and identifying the parties to it.", "-Oral or written statements by co-operative cartel participants describing the operation of the cartel and their participation in it.", "There are different types of circumstantial evidence.", "One is evidence that cartel operators met or otherwise communicated but does not describe the substance of their communications.", "It might be called communication evidence for purposes of this discussion.", "It includes: -Records of telephone conversations between competitors (but not their substance), or of travel to a common destination or of participation in a meeting, for example during a trade conference.", "-other evidence that the parties communicated about the subject e.g., minutes or notes of a meeting showing that prices, demand or capacity utilisation were discussed internal documents evidencing knowledge or understanding of a competitors pricing strategy, such as an awareness of a future price increase by a rival.", "A broader category of circumstantial evidence is often called economic evidence.", "Economic evidence identifies primarily firm conduct that suggests that an agreement was reached, but also conduct of the industry as a whole, elements of market structure which suggest that secret price fixing was feasible, and certain practices that can be used to sustain a cartel agreement.", "Conduct evidence is the single most important type of economic evidence.", "As noted earlier, observation of certain, suspicious conduct frequently triggers an investigation of a possible cartel.", "And as the Section in this paper on economics highlights 11 careful analysis of the conduct of parties is important to identify behaviours that can be characterised as contrary to the parties unilateral self-interest and which therefore supports the inference of an agreement.", "Conduct evidence includes, first and foremost: -Parallel pricing-changes in prices by rivals that are identical, or nearly so, and simultaneous, or nearly so.", "It includes other forms of parallel conduct, such as capacity reductions, adoption of standardised terms of sale, and suspicious bidding patterns, e.g., a predictable rotation of winning bidders.", "Industry performance could also be described as conduct evidence.", "It includes: -abnormally high profits -stable market shares -A history of competition law violations.", "Evidence related to market structure can be used primarily to make the finding of a cartel agreement more plausible, even though market structure factors do not prove the existence of such an agreement.", "Relevant economic evidence relating to market structure includes: -high concentration -low concentration on the opposite side of the market -high barriers to entry -high degree of vertical integration -Standardised or homogeneous product.", "The evidentiary value of structural evidence can be limited, however.", "There can be highly concentrated industries selling homogeneous products in which all parties compete.", "Conversely, the absence of such evidence cannot be used to show that a cartel did not exist.", "Cartels are known to have existed in industries with numerous competitors and differentiated products.", "A specific kind of economic conduct evidence is facilitating practices-practices that can make it easier for competitors to reach or sustain an agreement.", "It is important to note that conduct described as facilitating practices is not necessarily unlawful.", "But where a competition authority has found other circumstantial evidence pointing to the existence of a cartel agreement, the existence of facilitating practices can be an important complement.", "They can explain what kind of arrangements the parties set up to facilitate the formation of a cartel agreement, monitoring, detection of defection, and or punishment, thus supporting the collusion story put together by the competition law enforcer.", "Facilitating practices include: -information exchanges -price signalling -freight equalisation -price protection and most favoured nation policies -Unnecessarily restrictive product standards.", "Thus, even in the absence of proof of concluded formal agreement, when there are indicators that there was practical cooperation between the parties which knowingly substitute the risk of competition, that would amount to anti-competitive practices.", "This has been discussed in Coordination Committee of Artistes and Technicians of West Bengal Film and Television and Ors.", "(see paras 44 and 45).", "Then, there are guidelines on the applicability of Article 101 of the Treaty on the functioning of the E.U. to horizontal cooperation agreements which records as under: Information exchange can only be addressed Under Article 101 if it establishes or is part of an agreement, a concerted practice or a decision by an association of undertakings.", "The existence of an agreement, a concerted practice or decision by an association of undertakings does not prejudge whether the agreement, concerted practice or decision by an association of undertakings gives rise to a restriction of competition within the meaning of Article 101(1).", "In line with the case-law of the Court of Justice of the European Union, the concept of a concerted practice refers to a form of coordination between undertakings by which, without it having reached the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition.", "The criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring an actual plan to have been worked out, are to be understood in the light of the concept inherent in the provisions of the Treaty on competition, according to which each company must determine independently the policy which it intends to adopt on the internal market and the conditions which it intends to offer to its customers.", "This does not deprive companies of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors.", "It does, however, preclude any direct or indirect contact between competitors, the object or effect of which is to create conditions of competition which do not correspond to the normal competitive conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings, and the volume of the said market.", "This precludes any direct or indirect contact between competitors, the object or effect of which is to influence conduct on the market of an actual or potential competitor, or to disclose to such competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market, thereby facilitating a collusive outcome on the market.", "Hence, information exchange can constitute a concerted practice if it reduces strategic uncertainty in the market thereby facilitating collusion, that is to say, if the data exchanged is strategic.", "Consequently, sharing of strategic data between competitors amounts to concentration, because it reduces the independence of competitors conduct on the market and diminishes their incentives to compete.", "A situation where only one undertaking discloses strategic information to its competitor(s) who accept(s) it can also constitute a concerted practice.", "Such disclosure could occur, for example, through contacts via mail, emails, phone calls, meetings etc.", "It is then irrelevant whether only one undertaking unilaterally informs its competitors of its intended market behaviour, or whether all participating undertakings inform each other of the respective deliberations and intentions.", "When one undertaking alone reveals to its competitors strategic information concerning its future commercial policy, that reduces strategic uncertainty as to the future operation of the market for all the competitors involved and increases the risk of limiting competition and of collusive behaviour.", "For example, mere attendance at a meeting where a company disclose its pricing plans to its competitors is likely to be caught by Article 101, even in the absence of an explicit agreement to raise prices.", "When a company receives strategic data from a competitor (be it in a meeting, by mail or electronically), it will be presumed to have accepted the information and adapted its market conduct accordingly unless it responds with a clear statement that it does not wish to receive such data.", "According to us, the real question in the present case is as to whether there was a possibility of such an agreement having regard to market conditions even when we proceed on the basis that meeting did take place.", "Possibility of such an agreement has been inferred by the CCI on the grounds that identical bidding takes place thereafter and various suppliers gave such a bid despite varying cost and also that they have appointed common changes etc.", "as pointed out above.", "The first and foremost issue which needs to be considered is that whether there was a situation of monopsony or oligopsony.", "From the aforesaid discussion, it is clear that as far as CCI is concerned, it has come to the conclusion that there was a cartelisation among the Appellants herein and a concerted decision was taken to rig the bids which were submitted pursuant to the tenders issued by IOCL.", "On the other hand, the Appellants argue that there was no such agreement and even if the bids of many bidders were identical in nature, the bids were driven by market conditions.", "Their plea is that there was a situation of oligopsony and the modus which was adopted by IOCL in floating the tenders and awarding the contracts would show that the determination of price was entirely within the control of the IOCL.", "As per them, the way price was determined for supply of these cylinders, it had become an open secret known to everybody.", "Therefore, there was no question of any competition and no possibility of adversely affecting that competition by entering into any contract.", "The factors which have influenced the authorities below in coming to the conclusion that the Appellants had colluded and formed a cartel which led to bid rigging have already been noted above.", "To recapitulate, the authorities below have been influenced by the following factors: Market conditions Small number of suppliers Few new entrants Active trade association Repetitive bidding Identical products Few or no substitutes No significant technological changes Meeting of bidders in Mumbai and its agenda.", "Appointing common agents Identical bids despite varying cost.", "After deliberating on the aforesaid aspects, the CCI has concluded that there is an active trade association in which many of the Appellants are members.", "That product in question, namely, gas cylinder is of a particular specification which is needed by IOCL in large numbers every year and there are very few manufacturers and suppliers of this product to IOCL and two other buyers.", "For this identical product which is to be supplied by all the suppliers, there is no substitute and no significant technology change.", "Further, there is an active trade association in which most of the Appellants are the members.", "Their interest is to ensure that no new entrants are able to join.", "Further, the trade association also ensures that all the members are able to get some order.", "It is for this reason the bids submitted in various standards which are floated by IOCL at different places are almost identical despite varying cost.", "The authorities below attributed this identical bidding to the concerted action of the Appellants.", "This has been inferred from the fact that 2-3 days before the submission of bids, meeting of the association took place which most of the Appellants attended.", "Not only this, common agents, six in number, were appointed who submitted the bids on behalf of these Appellants.", "We may say at the outset that if these factors are taken into consideration by themselves, they may lead to the inference that there was bid rigging.", "We may, particularly, emphasise the fact that there is an active trade association of the Appellants and a meeting of the bidders was held in Mumbai just before the submission of the tenders.", "Another very important fact is that there were identical bids despite varying cost.", "Further, products are identical and there are small number of suppliers with few new entrants.", "These have become the supporting factors which persuaded the CCI to come to the conclusion that these are suggestive of collusive bidding.", "However, that is only one side of the coin.", "The aforesaid factors are to be analysed keeping in mind the ground realities that were prevailing, which are pointed out by the Appellants.", "These attendant circumstances are argued in detail by the counsel for the Appellants which have already been taken note of.", "We may recapitulate the same in brief hereinbelow: In the present case there are only three buyers.", "Among them, IOCL is the biggest buyer with 48 market share.", "It is also a matter of record that all these Appellants are manufacturers of 14.2 kg gas cylinders to the three buyers who are available in the market, namely, IOCL, HPCL and BPCL.", "If these three buyers do not purchase from any of the Appellants, that particular Appellant would not be in a position to sell those cylinder to any other entity as there are no other buyers.", "There are only three buyers, it may not attract many to enter the field and manufacture these cylinders.", "It is because of limited number of buyers and for some reason if they do not purchase, the manufacturer would be nowhere.", "That may deter the persons to enter the field.", "The manner in which the tenders are floated by IOCL and the rates at which these are awarded, are an indicator that it is the IOCL which calls the shots insofar as price control is concerned.", "It has come in evidence that the IOCL undertakes the exercise of having its internal estimates about the cost of these cylinders.", "Their own expert arrived at a figure of Rs. 1106.61 paisa per cylinder.", "All the tenders which have been accepted are for a price lesser than the aforesaid estimate of IOCL itself.", "That apart, the modus adopted by the IOCL is that that final price is negotiated by it and the contract is not awarded at the rate quoted by bidder who turns out to be L-1.", "Negotiations are held with such a bidder who is L-1 which generally leads to further reduction of price than the one quoted by L-1.", "Thereafter, the other bidders who may be L-2 or L-3 etc. are awarded the contract at the rate at which it is awarded to L-1.", "Thus, ultimately, all the bidders supply the goods at the same rate which is fixed by the IOCL after negotiating with L-1 bidder.", "The only difference is that bidder who is L-1 would be able to receive the order for larger quantity than L-2 and L-2 may get an order of more quantity than L-3.", "It has also come on record that there are very few suppliers.", "For the tender in question, there were 50 parties already in the fray and 12 new entrants were admitted.", "Number of 12, in such a scenario, cannot be treated as less.", "Therefore, the conclusion of CCI that the Appellants ensured that there should not be entry of new entrant may not be correct.", "Since there are not many manufacturers and supplies are needed by the three buyers on regular basis, IOCL ensures that all those manufacturers whose bids are technically viable, are given some order for the supply of specific cylinder.", "For this purpose, it has framed its broad policy as well.", "This also shows that control remains with IOCL.", "Thus, the Appellants appear to be correct when they say that all the participants in the bidding process were awarded contracts in some State or the other which was aimed at ensuring a bigger pool of manufacturers so that the supply of this essential product is always maintained for the benefit of the general public.", "Had IOCL left some manufacturers empty handed, in all likelihood, they would have shut their shops.", "However, IOCL wanted all manufacturers to be in the fray in its own interest.", "Therefore, it was necessary to keep all parties afloat and this explains why all 50 parties obtained order along with 12 new entrants.", "There is another very relevant factor pointed out by the Appellants, viz., the governmental control which is regulated by law.", "As pointed out above, it is not only the three oil companies which can supply LPG to domestic consumers in 14.2 kg LPG cylinders as mandated in the LPG (Regulation and Distribution) Order, 2000 which is issued under the provisions of Essential Commodities Act, 1955, even the price at which the LPG cylinder is to be supplied to the consumer is controlled by the Government.", "Following features of the aforesaid LPG Order, 2000, are significant: The LPG supplied in 14.2 kg gas cylinders is an essential commodity.", "The distribution of LPG in 14.2 kgs.", "cylinders takes place as part of a public distribution system defined under Clause 2(1) of the Order as the system of distribution, marketing or selling of liquified petroleum gas by a Government Oil Company at the Government controlled or declared price through a distribution system approved by the Central or State Government.", "The price to the consumer is controlled by the Government.", "The supply of LPG to domestic consumers shall be made only in 14.2 kg gas cylinders.", "According to clauses 4 and 5 read with Schedule III of the LPG Order, parallel marketers who supply and distribute LPG cylinders, may do so only for cylinders with size and specifications other than those specified in Schedule II.", "The manner in which tendering process takes place would show that in such a competitive scenario, the bid which the different bidder would be submitting becomes obvious.", "It has come on record that just a few days before the tender in question, another tender was floated by BPCL and on opening of the said tender the rates of L-1, L-2 etc. came to be known.", "In a scenario like this, that obviously becomes a guiding factor for the bidders to submit their bids.", "When we keep in mind the aforesaid fact situation on the ground, those very factors on the basis of which the CCI has come to the conclusion that there was cartelization, in fact, become valid explanations to the indicators pointed out by the CCI.", "We have already commented about the market conditions and small number of suppliers.", "We have also mentioned that 12 new entrants cannot be considered as entry of very few new suppliers where the existing suppliers were only 50.", "Identical products along with market conditions for which there would be only three buyers, in fact, would go in favour of the Appellants.", "The factor of repetitive bidding, though appears to be a factor against the Appellants, was also possible in the aforesaid scenario.", "The prevailing conditions in fact Rule out the possibility of much price variations and all the manufacturers are virtually forced to submit their bid with a price that is quite close to each other.", "Therefore, it became necessary to sustain themselves in the market.", "Hence, the factor that these suppliers are from different region having different cost of manufacture would lose its significance.", "It is a situation where prime condition is to quote the price at which a particular manufacturer can bag an order even when its manufacturing cost is more than the manufacturing cost of others.", "The main purpose for such a manufacturing would be to remain in the fray and not to lose out.", "Therefore, it would be ready to accept lesser margin.", "This would answer why there were near identical bids despite varying cost.", "Insofar as meeting of bidders in Mumbai just before the date of submission of tender is concerned, some aspects pointed out by the Appellants are not considered by the CCI or the COMPAT at all.", "No doubt, the meeting took place a couple of days before the date of tender.", "No doubt, the absence of agenda coming on record would not make much difference.", "However, only 19 Appellants had attended that meeting.", "Many others were not even members or did not attend the meeting.", "In spite thereof, even they quoted almost same rates as the one who attended the meeting.", "This would lead us to the inference that reason for quoting similar price was not the meeting but something else.", "The question is what would be the other reason and whether the Appellants have been able to satisfactorily explain that and rebut the presumption against them? The explanation is market conditions leading to the situation of oligopsony that prevailed because of limited buyers and influence of buyers in the fixation of prices was all prevalent.", "This seems to be convincing in the given set of facts.", "The situation of oligopsony can be both ways.", "There may be a situation where the sellers are few and they may control the market and by their concerted action indulge into cartelization.", "It may also be, as in the present case, a situation where buyers are few and that results in the situation of oligopsony with the control of buyers.", "To recapitulate, the two prime factors against the Appellants, which are discussed by the CCI, are that there was a collusive tendering, which is inferred from the parallel behaviour of the Appellants, namely, quoting almost the same rates in their bids.", "The parameters on the basis of which these aspects are to be judged are stated in Excel Crop Care Limited as follows: It needs to be emphasised that collusive tendering is a practice whereby firms agree amongst themselves to collaborate over their response to invitations to tender.", "Main purpose for such collusive tendering is the need to concert their bargaining power, though, such a collusive tendering has other benefits apart from the fact that it can lead to higher prices.", "Motive may be that fewer contractors actually bother to price any particular deal so that overheads are kept lower.", "It may also be for the reason that a contractor can make a tender which it knows will not be accepted (because it has been agreed that another firm will tender at a lower price) and yet it indicates that the said contractor is still interested in doing business, so that it will not be deleted from the tenders list.", "It may also mean that a contractor can retain the business of its established, favoured customers without worrying that they will be poached by its competitors.", "Collusive tendering takes many forms.", "Simplest form is to agree to quote identical prices with the hope that all will receive their fair share of orders.", "That is what has happened in the present case.", "However, since such a conduct becomes suspicious and would easily attract the attention of the competition authorities, more subtle arrangements of different forms are also made between colluding parties.", "One system which has been noticed by certain competition authorities in other countries is to notify intended quotes to each other, or more likely to a Central secretariat, which will then cost the order and eliminate those quotes that it considers would result in a loss to some or all members of the cartel.", "Another system, which has come to light, is to rotate orders.", "In such a case, the firm whose turn is to receive an order will ensure that its quote is lower than the quotes of others.", "We are here concerned with parallel behaviour.", "We are conscious of the argument put forth by Mr. Venugopal that in an oligopoly situation parallel behaviour may not, by itself, amount to a concerted practice.", "It would be apposite to take note of the following observations made by European Court of Justice in Dyestuffs: By its very nature, then, the concerted practice does not have all the elements of a contract but may inter alia arise out of coordination which becomes apparent from the behaviour of the participants.", "Although parallel behaviour may not itself be identified with a concerted practice, it may however amount to strong evidence of such a practice if it leads to conditions of competition which do not respond to the normal conditions of the market, having regard to the nature of the products, the size and number of the undertakings, and the volume of the said market.", "Such is the case especially where the parallel behaviour is such as to permit the parties to seek price equilibrium at a different level from that which would have resulted from competition, and to crystallise the status quo to the detriment of effective freedom of movement of the products in the internal market and free choice by consumers of their suppliers.", "At the same time, the Court also added that the existence of a concerted practice could be appraised correctly by keeping in mind the following test: If the evidence upon which the contested decision is based is considered, not in isolation, but as a whole, account being taken of the specific features of the products in question.", "Having regard to the aforesaid principles in mind, we deal with the argument on oligopsony raised by the Appellants.", "Monopsony consists of a market with a single buyer.", "When there are only few buyers the market is described as an oligopsony.", "What is emphasised is that in such a situation a manufacturer with no buyers will have to exit from the trade.", "Therefore, first condition of oligopsony stands fulfilled.", "The other condition for the existence of oligopsony is whether the buyers have some influence over the price of their inputs.", "It is also to be seen as to whether the seller has any ability to raise prices or it stood reduced eliminated by the aforesaid buyers.", "On a holistic view of the matter, we find that the Appellants have been able to discharge the onus by referring to various indicators which go on to show that parallel behaviour was not the result of any concerted practice.", "In Dyestuffs, the European Court held that parallel behaviour does not, by itself, amount to a concerted practice, though it may provide a strong evidence of such a practice.", "Nevertheless, it is a strong evidence of such a practice.", "However, before such an inference is drawn it has to be seen that this parallel behaviour has led to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, size and volume of the undertaking of the said market.", "Thus, we examine the matter from the stand point of market economy where question of oligopsony assumes relevance.", "Whenever there is a situation of oligopsony, parallel pricing simplicitor would not lead to the conclusion that there was a concerted practice there has to be other credible and corroborative evidence to show that in an oligopoly a reduction in price would swiftly attract the customers of the other two or three rivals, the effect upon whom would be so devastating that they would have to react by matching the cut.", "In Richard Whish David Bailey in Oxfords Competition Law discussed the Theory of Oligopolistic Interdependence as under: In an oligopoly a reduction in price would swiftly attract the customers of the other two or three rivals, the effect upon whom would be so devastating that they would have to react by matching the cut.", "Similarly an oligopolistic could not increase its price unilaterally, because it would be deserted by its customers if it did so.", "Thus the theory runs that in an oligopolistic market rivals are interdependent: they are acutely aware of each others presence and are bound to match one anothers marketing strategy.", "The result is that price competition between them will be minimal or non-existent oligopoly produces non-competitive stability Oligopolistics recognize their interdependence as well as their own self-interest.", "By matching each others conduct they will be able to achieve and charge a profit-maximising price which will be set at a supra-competitive level, without actually communicating with one another.", "There does not need to be any communication: the structure of the market is such that, through interdependence and mutual self-awareness, prices will rise towards the monopolistic level The logical conclusion of the case against oligopoly is that, since it is the market structure itself which produces the problem, structural measures should be taken to remedy it by deconcentrating the market.", "Unless this is done, there will be an area of consciously parallel action in pricing strategies which is beyond the reach of laws against cartels and yet which has serious implications for consumers welfare.", "xxx xxx xxx xxx xxx xxx A regulatory approach A different possibility would be to regulate the prices of undertakings that operate in an oligopolistic environment.", "This, however, would be a counsel of despair.", "As a matter of policy direct Regulation should be a remedy of last resort.", "Competition authorities should not be price regulators they should be the guardians of the competitive process.", "Where markets are oligopolistic and entry is limited, competition authorities should be concerned with the question of whether there are barriers to entry and whether the state itself, for example through restrictive licensing rules, Regulation or legislation, is responsible for a lack of competition.", "In Theatre Enterprises v. Paramount Films, the Supreme Court of United States held as under: 1-3 The crucial question is whether Respondents conduct toward Petitioner stemmed from independent decision or from an agreement, tacit or express.", "To be sure, business behavior is admissible circumstantial evidence from which the fact finder may infer agreement.", "Interstate Circuit.", "But this Court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offence.", "Circumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude toward conspiracy but conscious parallelism has not yet read conspiracy out of the Sherman Act entirely.", "In this regard, the test laid down by the Supreme Court of United States in Monsanto Company v. Spray-Rite Service Corporation is relevant and is reproduced hereunder: The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer and non-terminated distributors were acting independently.", "That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and Ors. had a conscious commitment to a common scheme designed to achieve an unlawful objective.", "This test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corporation: But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case.", "Thus, in Monsanto Company v. Spray-Rite Service Corporation,  : 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy.", "Id., at 764.", "See also Cities Service, supra, at 280.", "To survive a motion for summary judgment or for a directed verdict, a Plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently.", "465 U.S., at 764 Petitioners had no motive to enter into the alleged conspiracy.", "To the contrary, as presumably rational businesses, Petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for Petitioners with no corresponding gains.", "Cities Service, 391 U.S., at 279.", "The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy.", "It focused instead on whether there was direct evidence of concert of action.", "723 F. 2d, at 304.", "The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing xxx xxx xxx Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if Petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, 475 U.S. 574, 597 the conduct does not give rise to an inference of conspiracy.", "See Cities Service, supra, at 278-280.", "Similarly, in Bell Atlantic Corp v. Twombly, the U.S. Supreme Court held as under: 1-3 Because 1 of the Sherman Act does not prohibit all unreasonable restraints of trade but only restraints effected by a contract, combination, or conspiracy, Copperweld Corporation v. Independence Tube Corporation,  : 467 U.S. 752, 775(1984), the crucial question is whether the challenged anticompetitive conduct stems from independent decision or from an agreement, tacit or express, Theatre Enterprises, 346 U.S., at 540.", "While a showing of parallel business behavior is admissible circumstantial evidence from which the fact finder may infer agreement, it falls short of conclusively establishing agreement or itself constituting a Sherman Act offense.", "Id., at 540-541.", "Even conscious parallelism, a common reaction of firms in a concentrated market that recognize their shared economic interests and their interdependence with respect to price and output decisions is not in itself unlawful.", "Brooke Group Limited v. Brown Williamson Tobacco Corporation,  : 509 U.S. 209, 227 (1993) see 6 P. Areeda H. Hovenkamp, Antitrust Law 1433a, p. 236 (2d ed.", "2003) (hereinafter Areeda Hovenkamp) (The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act 1) Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv.", "L. Rev. 655, 672 (1962) (Mere interdependence of basic price decisions is not conspiracy).", "4-6 The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.", "See, e.g., AEI-Brookings Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related Publication 06-08, pp.", "3-4 (2006) (discussing problem of false positives in 1 suits).", "Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence.", "An antitrust conspiracy Plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra proof of a 1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Company v. Spray-Rite Service Corporation,  : 465 U.S. 752 (1984) and at the summary judgment stage a 1 Plaintiffs offer of conspiracy evidence must tend to Rule out the possibility that the Defendants were acting independently, see Matsushita Elec.", "Industrial Company v. Zenith Radio Corporation,  : 475 U.S. 574(1986).", "After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the Appellants and the Appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI.", "However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant case.", "We are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL.", "This would have cleared many aspects which are shrouded in mystery and the dust has not been cleared.", "We, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the Appellants for bid rigging.", "Accordingly, we allow these appeals and set aside the order of the Authorities below.", "As a consequence, since no penalty is payable, appeals of the CCI are rendered infructuous and dismissed as such.", "All the pending applications stand disposed of.", "No orders as to costs.", "131.3.1993, ECJ (paragraph 115, Internal P. 1611) (Woodpulp)"], "expert_1": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "None", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "Fact", 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+{"id": "SC_Uber India Systems Pvt Ltd vs Competition Commission of India and Ors 03092019 SC", "text": ["Rohinton Fali Nariman, J. Having heard lengthy arguments of Shri Dhruv Mehta, learned senior Counsel appearing for the Appellant, and Shri Raju Ramchandran, learned senior Counsel appearing on behalf of the Respondent, we are of the view that interference in these appeals is not called for.", "The only reason we do so is because we were shown, as part of information that was provided, the following statement: Ubers discount and incentive offered to consumer pale in comparison with the fidelity inducing discounts offered to drivers to keep them attached on its network to the exclusion of other market players.", "Uber pays drivers car owners attached on its network unreasonably high incentives over and above and in addition to the trip fare received from the passengers.", "A summary of the incentives provided to one fleet owner attached to Ubers network, having 4 cars, which were driven by 9 drivers is reproduced below.", "Statement period 1st June to 28th June Total Trips 1,135 Billed to Consumer (Ubers Collection from Consumer) Fare 256,187 Surge 18,621 Surcharges tolls 23.499 298,307 Operates Earning Car Owners Earning Operators Share out of Consumer Revenue Service Tax 274,808 Surcharges Tolls Reimbursed 4.94 (12.946) Others Incentives Received from Uber 230,464 Operators net earning 516,343 Ubers Earning Revenue Share (Out of Fare and Surge) Incentives Paid to Drivers (230,464) Other adjustments (518) Net earning (loss) 515,346 Ubers Earning Revenue shares (out of Fare and Surge) Incentives Paid to Drives (230,464) Other adjustments (518) Net earning (Loss) (230,982) Per trip Consumer revenue Per trip Uber Net Loss (204) In light of the abovementioned statement, it can be seen that Uber was losing Rs. 204 per trip in respect of the every trip made by the cars of the fleet owners, which does not make any economic sense other than pointing to Ubers intent to eliminate competition in the market.", "Copies of the statements of aforesaid fleet owners along with a summary for the period June 1 to June 28, 2015 is annexed herewith as Annexure A-15 Colly.", "Based on this information alone, we are of the view that it would be very difficult to say that there is no prima facie case Under Section 26(1) as to infringement of Section 4 of the Competition Act, 2002.", "Section 4 is set out hereinbelow: Abuse of dominant position.-(1) No enterprise or group shall abuse its dominant position.", "There shall be an abuse of dominant position Under Sub-section (1), if an enterprise or a group,-- (a) directly or indirectly, imposes unfair or discriminatory-- condition in purchase or sale of goods or service or price in purchase or sale (including predatory price) of goods or service.", "Explanation.-- For the purposes of this clause, the unfair or discriminatory condition in purchase or sale of goods or service referred to in Sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in Sub-clause (ii) shall not include such discriminatory conditions or prices which may be adopted to meet the competition or (b) limits or restricts-- production of goods or provision of services or market therefor or technical or scientific development relating to goods or services to the prejudice of consumers or (c) indulges in practice or practices resulting in denial of market access in any manner or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts or (e) uses its dominant position in one relevant market to enter into, or protect, other relevant market.", "Explanation.--For the purposes of this section, the expression-- (a) dominant position means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to-- operate independently of competitive forces prevailing in the relevant market or (ii) affect its competitors or consumers or the relevant market in its favour (b) predatory price means the sale of goods or provision of services, at a price which is below the cost, as may be determined by Regulations, of production of the goods or provision of services, with a view to reduce competition or eliminate the competitors.", "(c)group shall have the same meaning as assigned to it in Clause (b) of the Explanation to Section 5.", "There are two important ingredients which Section 4(1) itself refers to if there is to be an abuse of dominant position - (1) the dominant position itself.", "(2) its abuse.", "Dominant position as defined in Explanation (a) refers to a position of strength, enjoyed by an enterprise, in the relevant market, which, in this case is the National Capital Region (NCR), which: (1) enables it to operate independently of the competitive forces prevailing or (2) is something that would affect its competitors or the relevant market in its favour.", "Given the allegation made, as extracted above, it is clear that if, in fact, a loss is made for trips made, Explanation (a) (ii) would prima facie be attracted inasmuch as this would certainly affect the Appellants competitors in the Appellants favour or the relevant market in its favour.", "Insofar as abuse of dominant position is concerned, Under Section 4(2)(a), so long as this dominant position, whether directly or indirectly, imposes an unfair price in purchase or sale including predatory price of services, abuse of dominant position also gets attracted.", "Explanation (b) which defines predatory price means sale of services at a price which is below cost.", "This being the case, on the facts of this case, on this ground alone, we do not think it fit to interfere with the order made by the Appellate Tribunal.", "The appeals are dismissed with no orders as to costs.", "The Director General is requested to complete investigation within a period of six months from today."], "expert_1": {"primary": ["RatioOfTheDecision", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "Statute", "Statute", "Statute", "Statute", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt"], "secondary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "tertiary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "overall": ["RatioOfTheDecision", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "Statute", "Statute", "Statute", "Statute", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt"]}, "expert_2": {"primary": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "Statute", "Statute", "Statute", "Statute", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt"], "secondary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "tertiary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "overall": ["Fact", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "Statute", "Statute", "Statute", "Statute", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt"]}, "expert_3": {"primary": ["RatioOfTheDecision", "RatioOfTheDecision", "Fact", "Fact", "Fact", "None", "RatioOfTheDecision", "Statute", "Statute", "Statute", "Statute", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "Statute", "RatioOfTheDecision", "RulingByPresentCourt", "RatioOfTheDecision"], "secondary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "tertiary": ["None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None", "None"], "overall": ["RatioOfTheDecision", "RatioOfTheDecision", "Fact", "Fact", "Fact", "None", "RatioOfTheDecision", "Statute", "Statute", "Statute", "Statute", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "Statute", "RatioOfTheDecision", "RulingByPresentCourt", "RatioOfTheDecision"]}, "labels": ["RatioOfTheDecision", "Fact", "Fact", "Fact", "Fact", "Fact", "RatioOfTheDecision", "Statute", "Statute", "Statute", "Statute", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "Statute", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RatioOfTheDecision", "RulingByPresentCourt", "RulingByPresentCourt"]}
+{"id": "SC_Sudha Gupta vs DLF Ltd 07032019 SC", "text": ["Sanjiv Khanna, J. Appellant Sudha Gupta, who appears in-person in the present appeal Under Section 53T of the Competition Act, 2002 read with Section 55 of the repealed Monopolies and Restrictive Trade Practices Act, 1969 impugns order dated 8th March, 2013 passed by the Competition Appellate Tribunal (Appellate Tribunal for short) in Unfair Trade Practices Enquiry Number 117 of 1996.", "M section DLF Universal Limited, sometimes also described as M section DLF Limited, is the first Respondent and has contested the appeal.", "Kamlesh Bali and Manish Bali who were 2nd and 3rd Respondents before the Appellate Tribunal and in this appeal as originally filed, were later deleted from the array of parties on an application filed by the Appellant which was allowed vide the order in chamber on 8th March, 2016.", "By the impugned order dated 8th March, 2013, the Appellate Tribunal has directed the first Respondent to refund Rs. 3,34,695/- (Rupees three lakhs thirty-four thousand six hundred ninety-five) along with interest 9 per annum, inter alia, accepting the plea of the first Respondent that they were entitled to forfeit Rs. 1,55,105/- (Rupees one lakh fifty-five thousand one hundred five) from Rs. 4,89,800/- (Rupees four lakhs eighty-nine thousand eight hundred) paid by the Appellant towards the price of the plot.", "The Appellant is aggrieved as the Appellate Tribunal has rejected her prayers for (a) possession and registration of the sale deed of Plot Number 1225, DLF Qutab Enclave, Phase IV, Gurgaon (the plot for short) on the payment of balance sale price and (b) compensation of Rs. 1,00,000/- (Rupees one lakh) for pecuniary loss and immense mental agony suffered by her.", "Prayer in the nature of specific performance was rejected by the Appellate Tribunal relying upon the judgment of this Court in Ghaziabad Development Authority v. Ved Prakash Aggarwal  : (2008) 7 SCC 686.", "In terms of this decision, prayer for specific performance, i.e. possession and registration of the sale deed cannot be granted under the repealed Monopolies and Restrictive Trade Practices Act, with the Appellate Tribunal assuming the powers of a civil court.", "We would now discuss the facts of the present case in brief.", "The Appellant had paid Rs. 1,00,800/- (Rupees one lakh eight hundred) with the application for allotment of the plot on 3rd October, 1991 to the first Respondent.", "Subsequently, the Plot Buyers Agreement dated 7th January, 1992 was executed for the plot admeasuring 298.98 sq.", "meters at the rate of Rs. 2093/- per sq.", "meter.", "As per the agreement, the Appellant was also liable to pay External Development Charges of Rs. 46,464/- (Rupees forty-six thousand four hundred sixty-four) at the rate of Rs. 155.40 per sq.", "meter.", ", Rs. 71,516/- (Rupees seventy-one thousand five hundred sixteen) towards Preferential Location Charges, Contingency Deposit of Rs. 7,176/- (Rupees seven thousand one hundred seventy-six), Interest Free Refundable Service Maintenance Security of Rs. 18,000/- (Rupees eighteen thousand) in addition to the interest of Rs. 14,195/- (Rupees fourteen thousand one-hundred ninety-five) under the two years and six months instalment plan opted by her.", "The total amount, therefore, payable by the Appellant was Rs. 8,83,916.14/- (Rupees eight lakhs eighty-three thousand nine hundred sixteen and fourteen paisa).", "As per the Appellant, the total amount payable was Rs. 8,11,600/- (Rupees eight lakhs eleven-thousand six hundred).", "The Appellant had disputed the liability to pay Rs. 71,516/- (Rupees seventy-one thousand five hundred sixteen) on account of Preferential Location Charges, though the mandate to make this payment was specified in the Plot Buyers Agreement.", "Appellant had paid Rs. 4,89,800/- (Rupees four lakhs eighty-nine thousand eight hundred) in all, with first payment of Rs. 1,00,800/- (Rupees one lakh eight hundred) on 3rd December, 1991 when she had made an application for allotment of plot.", "The balance payment of Rs. 3,89,000/- (Rupees three lakhs eighty-nine thousand) was as per the following details: Subsequently, the Appellant had defaulted in making payment of the instalments.", "The defaults were accepted by the Appellant in her communications dated 17th August, 1992, 27th August, 1992 and 21st December, 1992.", "Even her letter dated 14th January, 1993 accepts defaults in payment.", "The allotment was cancelled by the first Respondent vide its letter dated 25th August, 1992 which cancellation was recalled and the allotment was restored on payment of Rs. 75,000/- (Rupees seventy-five thousand) by the first Respondent on 4th September, 1992 by way of a bank draft.", "The Appellant, thereafter, had sent a cheque dated 15th January, 1993 for Rs. 66,279/- (Rupees sixty-six thousand two-hundred seventy-nine), which cheque on representation had bounced.", "The Appellant had vide her letter dated 14th January, 1993 taken a false plea that the plot had not been demarcated and the cheque of Rs. 66,279/- (Rupees sixty-six thousand two-hundred seventy-nine) should not be presented.", "Notwithstanding the defaults, the first Respondent vide its letter dated 18th January 1993 as a special case had extended the time of payment upto 30th January, 1993 subject to payment of interest.", "This letter is elaborate and negates the assertions of the Appellant and highlights her defaults.", "In spite of indulgence shown, the Appellant had defaulted and did not pay the overdue amounts.", "The first Respondent had by the letter dated 2nd June 1993 cancelled the allotment.", "The letter had also stated that the amount due and payable by the Appellant including interest in January 1993 was Rs. 1,28,796/- (Rupees one lakh twenty-eight thousand seven-hundred ninety-six).", "The letter had enclosed refund cheque of Rs. 3,34,695/- (Rupees three lakhs thirty-four thousand six-hundred ninety-five) after deducting earnest money of Rs. 1,55,105/- (Rupees one lakh fifty-five thousand one-hundred five) which was forfeited in terms of Clause 10 of the agreement.", "The aforesaid letter with the cheque addressed to the Appellant was received back unserved with the remark unclaimed.", "The first Respondent had, thereafter, sent the said letter without the cheque, under certificate of posting on 24th June, 1993.", "Another letter dated 29th June, 1993 along with the cheque sent as Registered A.D. post was also received back with the remark unclaimed.", "Yet another letter under certificate of posting was issued by the first Respondent on 19th July, 1993 informing that the refund cheque issued to her had returned back and the same could be collected from the office of the first Respondent.", "The first Respondent has placed on record these and other communications which were sent under the registered post as well as certificate of posting and vide telegrams on different dates between 2nd June, 1993 till 2nd April, 1994.", "The Appellant had thereupon on 3rd January, 1994 written a letter to the first Respondent enclosing therewith a cheque of Rs. 54,636/- (Rupees fifty-four thousand six-hundred thirty-six) to which response was sent by the first Respondent on 5th January, 1994 stating that the allotment had already been cancelled due to non-payment of the outstanding amount and the earnest money had been forfeited and the cheque of Rs. 54,636/- (Rupees fifty-four thousand six-hundred thirty-six) sent by her was returned.", "Subsequently, the Appellant had prayed for withdrawal of cancellation of plot and restoration of the allotment.", "By letter dated 22nd June, 1994, the first Respondent informed the Appellant that they had already transferred the plot to another customer.", "Thereupon, the Appellant vide her letter dated 27th June, 1994 conceded to the transfer of the plot but had protested against forfeiture of Rs. 1,55,105/- (Rupees one lakh fifty-five thousand one-hundred five) and had demanded that the entire payment of Rs. 4,89,800/- (Rupees four lakhs eighty-nine thousand eight hundred) along with interest should be refunded.", "The claim for mesne profits in case the plot was transferred and re-sold to another person was also made.", "This letter by the Appellant indicates that she had withdrawn and given up her claim for allotment of the plot and had pressed for refund of the amount deposited with interest and mesne profits.", "Pursuant to cancellation of the allotment by the first Respondent vide its letter dated 2nd June, 1993, the first Respondent had entered into an agreement dated 23rd September, 1993 to sell the plot to the deleted 2nd and 3rd Respondents.", "The Appellant had raised an issue and questioned the genuineness and authenticity of the application for allotment made by the deleted Respondents pointing out the cuttings and corrections in the application form.", "It was highlighted that initially the plot number mentioned in the application was 1218 and not the plot in dispute, i.e. plot Number 1225 and there were also a number of corrections and over-writings including the correction at serial Number 8 in the box for office use only and that the two dates i.e. 14.7.1993 and 20.7.1993 stand recorded in the box.", "We are not impressed with the argument.", "Deleted Respondent Numbers 2 and 3 had paid Rs. 1,50,000/- (Rupees one lakh fifty thousand) and Rs. 50,000/- (Rupees fifty thousand) as booking amount vide bank drafts dated 14th July, 1993 and 19th July, 1993.", "The first Respondent had explained that the deleted 2nd and 3rd Respondents had initially opted for plot Number 1218 but had subsequently opted for an Executive Home constructed on the plot.", "This statement of the first Respondent is palpably and ex facie correct for the change of plot was to the detriment of the deleted 2nd and 3rd Respondent as the Appellate Tribunal had passed an interim order thereby staying the creation of any third-party interest in the plot.", "In view of the interim order, inspite of substantial payments by the deleted Respondent Numbers 2 3 nearing to 95 of the agreed price of Rs. 17,73,616/- (Rupees seventeen lakhs seventy-three thousand six-hundred sixteen), they could not be given physical possession of the property i.e. the constructed house.", "After about 20 years and upon the impugned order on 8th March, 2013 being passed, the sale conveyance deed in their favour was registered on 17th May, 2013.", "The Appellant has also challenged the sale conveyance deed on the ground that the deleted 2nd and 3rd Respondents were not present in India on the date when the document was registered.", "The first Respondent has submitted that the deleted Respondent Numbers 2 and 3 were non-residents and had executed the documents in April, 2013 and that the sale deed was presented for registration by the vendor i.e. the first Respondent through its duly authorised representative.", "The vendor i.e. the first Respondent through its duly authorised representative and the two witnesses were present on the date of registration.", "The deleted 2nd Respondent had signed the sale conveyance deed for self and as attorney of the deleted 3rd Respondent.", "Photographs of the deleted 2nd and 3rd Respondents were affixed.", "Even otherwise the law requires acceptance by the vendee.", "Signature of the vendee on the sale conveyance deed is not mandatory (see Aloka Bose v. Parmatma Devi,  : (2009) 2 SCC 582).", "Signature of the vendor(s) and witnesses are admitted by the Appellant.", "Acceptance is apparent.", "Thus, the plot stood transferred to the deleted Respondent Numbers 2 3.", "Further, 2nd and 3rd Respondents who had acquired ownership of the plot pursuant to sale deed executed by the first Respondent on 17th May, 2013 are not parties to the present appeal having been deleted from the array of parties.", "In this backdrop, we are unable to grant the Appellant relief in the nature of possession and registration of the sale deed of the plot.", "It would be relevant here to state that after the impugned order, the Appellant had also filed a complaint Under Section 11 and 12 of the Consumer Protection Act, 1986, which complaint was dismissed by Consumer Disputes Redressal Forum vide its order dated 14th September, 2017 for various grounds and reasons including limitation and the order passed by Appellate Tribunal.", "Apparently, the Appellant has made criminal complaints pursuant to which FIRs have been registered all pertaining to the transaction.", "To deal with the question of refund of money, interest and mesne profits and forfeiture of Rs. 1,55,105/- (Rupees one lakh fifty-five thousand one hundred five), it would have been pertinent to peruse the instalment plan schedule as agreed between the Appellant and the first Respondent, which was supposedly and annexure to the Plot Buyers agreement dated 7th January, 1992.", "Neither the Appellant nor the first Respondent have placed on record the instalment Schedule inspite of the direction given by this Court Coram: Arun Mishra and Mohan M. Shantanagoudar, JJ.", "vide order dated 24th October, 2017 to the first Respondent to place all the documents on record.", "The Appellant states that she does not have a copy as the same was not furnished to her.", "This is disputed by the first Respondent, who however should have placed the details schedule of payment of instalments as was directed.", "We have no hesitation in observing that the first Respondent was anxious to cancel the allotment as the prices had substantially increased which is apparent from the agreement between the first Respondent and the deleted 2nd and 3rd Respondent of over Rs. 17,00,000/- (Rupees seventeen lakhs).", "No doubt this figure includes cost of construction, albeit the first Respondent could have produced better details breakup or similar plot buyers agreements with third parties to establish the market price of the plot on the date of cancellation.", "This evidence and material has been withheld and adverse inference has accordingly been drawn by us.", "Therefore, we would hold that the forfeiture of Rs. 1,55,105/- (Rupees one lakh fifty-five thousand one hundred five) by the first Respondent was not correct and in accordance with the law laid down by this Court in Kailash Nath Associates v. DDA and Anr.", " : (2015) 4 SCC 136.", "Having examined the above aspects, it is clear to us that there had been faults and lapses by both sides.", "On one hand, the Appellant was a persistent defaulter who had failed to make overdue payments in spite of written communication(s) for nearly 9 months after the last payment was made on 4th September, 1992 till the allotment was cancelled on 2nd June, 1993.", "Further, Cheque for Rs. 66,279/- (Rupee sixty-six thousand two-hundred seventy-nine) issued by her in January, 1993 had bounced.", "She had clearly failed to respond to the letters written to her in June, 1993.", "Per contra, the agreement entered into between the first Respondent and the deleted 2nd and 3rd Respondents in September 1993 for the same plot with construction over it was for a substantially higher amount than the amount which was agreed by the first Respondent with the Appellant.", "Yet the amount of Rs. 1,55,105/- (Rupees one lakh fifty-five thousand one hundred five) was forfeited.", "It is beyond doubt that the first Respondent had not suffered any loss or damage.", "Moreover, the issues which would arise in the present case related to unfair trade practices and whether the terms and conditions in the agreement to sell allotment agreement were valid and good.", "These aspects were not gone into and examined primarily because the Appellant did not have proper legal guidance and assistance.", "For deciding the rate of interest, we have noticed that the Appellant was liable to pay interest 18 per annum on reducing balance of the price of the plot and External Development Charges along with each instalment.", "Further, interest 20 per annum was liable to be paid on the delayed payments.", "The first Respondent had pointed out to us that they had sought to refund and repay Rs. 3,34,695/- (Rupees three lakhs thirty-four thousand six-hundred ninety-five) along with interest 9 after the impugned order was passed but the Appellant had refused to accept the said payment.", "As noticed above, the first Respondent had also sent a cheque along with a cancellation letter dated 2nd June, 1993 and had written letters to the Appellant to collect it.", "However, Rs. 1,55,105/- (Rupee one lakh fifty-five thousand one hundred five) was forfeited and has remained with the first Respondent for more than 25 years from June, 1993 till today.", "Keeping in view the aforesaid facts and circumstances, we deem that it would be just, fair and appropriate that the first Respondent is directed to pay an amount of Rs. 30 lakhs (Rupees thirty lakhs) to the Appellant within a period of six weeks from today and in case of failure, pay interest 12 per annum from the date of this order till the payment is made.", "In order to avoid any controversy, the said amount would be deposited by the first Respondent in the Registry of this Court within the time as mentioned above and the Appellant would then be entitled to withdraw the same.", "The appeal is accordingly 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\ No newline at end of file