TaxTMI 
TaxTMI 
2023 (4) TMI 649
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....on the quantum of penalty that may be levied in the event, the petitioner is held to have acted in contravention of the Competition Act, 2002 (for short, hereinafter referred to as `the Act'). (2) Investigation Report dated 7.2.2019 prepared by the Office of the Director General, CCI in case No.30 of 2014 and case No.85 of 2015. (3) Order dated 4.7.2019 rejecting the request of the petitioner to cross examine the informant of case No.30 of 2014 and informant in case No.85 of 2015. (4) Orders dated 1.8.2014 and 17.11.2015 by the CCI under Section 26(1) of the Act by which the CCI has directed the Director General to file a joint investigation report in respect to the violations of the provisions of the Act in context of information case Nos.30 of 2014 and 85 of 2015. 3. The facts in brief are as under: * The petitioner is a Public Limited Company engaged in the manufacture of paper and paper products such as Maplitho, Coated Paper / Art Paper, Virgin Fiber based packaging, Copier Paper and Specialty Paper MICR / Ledger / Parchment. * It is the case of the petitioner that the respondent no.3, the Sivakasi Master Printers Association fil....
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....ion has to inquire into any alleged contravention of the provisions contained in Sub Section (1) of Section 3 of the Act. Reading Sub Section (3) of the Act, Mr. Thakore would submit that the provision has to be read in light of the "Relevant Market" which is defined under Section 2(r) of the Act and with reference to the "Relevant Product Market" or the "Geographic Market" or both. Emphasizing the definition of the term "Relevant Product Market" Mr. Thakore would further submit that the CCI could not have ordered investigation on the Information Petitions filed by the respondent Nos.3 and 4 when the Information Petitioners were only concerned with writing and printing paper such as Maplitho and Art Paper. Admittedly, the nature of inquiry was not in context of copier paper and therefore while ordering such investigation the CCI lost sight of the principles of interchangeability and / or sustainability by the consumer by reason of characteristics of the product, their prices and intended use. He would submit that no determination as to whether the agreements had appreciable adverse effect on competition would be done by the CCI without determining what is the relevant market. He wo....
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.... copier paper is directly used by consumers and therefore the end-use as well as the consumers for both the products are distinct and different. * Mr. Thakore would submit that both respondent Nos.3 and 4 are in the field of printing and using papers as raw materials such as Cream Wove Paper, Art Paper and Maplitho, hence, copier paper could not be the subject matter of their concern or relevance. The inquiry therefore could not go beyond the scope of the Information Petitions. * Mr. Thakore would submit that from the impugned report and analysis it is an admitted fact that the petitioner is a minuscule player in the market for Maplitho paper as recorded in para 6.3.4 of the report. * The petitioner company was not manufacturing Maplitho paper from 2011 to 2013 and thereafter it was doing so in a negligible quantity. This aspect was completely ignored by respondent No.2. Mr. Thakore would submit that on the analysis of email dumps of JK Paper and the Statements of its Officers it is clearly established that the prices that were discussed in the meeting were of Maplitho. There is nothing to indicate that any agreement was entered into directly or indirectl....
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.... could be drawn on the aspect of interchangeability without there being any economic analysis thereto. * Mr. Thakore would submit that the reliance placed by the respondents on the decisions in the case of Competition Commission of India v. Grasim Industries Limited reported in 2019 SCC, Online DEL, 10017 & Excel Crop Care Limited v. Competition Commission of India reported in 2017(8) SCC, 47 is misconceived. * Mr. Thakore would submit that there was no delay in approaching the Court. The petitioner has been denied the most crucial right of cross examination of the informants which was the root cause of the inquiry. The very basis of investigation / inquiry culminating into an investigation report is based on a prima facie opinion. The very basis of the investigation was perverse and therefore the petitioner was well within its right to challenge the method and the manner investigation is undertaken. The delay of 4 years as contended by the respondents is misconceived as no details were provided and, therefore, unless and until it was made out by subsequent communications that the inquiry was proceeding on a stage different than it ought to take, the petitioner ha....
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....hat after having voluntarily furnished the information even for Copier Paper on affidavit, made statements on oath before the DG, the Petitioner cannot be allowed to contend before this Hon'ble Court that Copier paper was not part of the investigation. * Mr. Devang Vyas would submit that the proceedings under Section 26(1) are administrative in nature and do not entail any civil consequences. Further, the Competition Commission only forms a prima facie opinion of existence of the violations of the provisions of the Act and as such the proceedings at the stage of Section 26(1) of the Act are not adjudicatory in nature and hence the same cannot be assailed at this stage in any event and the Impugned Order is therefore not subject to judicial review at this stage. He has further submitted that the Hon'ble Supreme Court of India in CCI vs SAIL (Supra) has observed that an order passed under Section 26(1) of the Act is an administrative order and the Competition Commission has to form a prima facie opinion without entering into adjudicative or determinative process. The Hon'ble Apex Court further held that formation of the prima facie opinion under Section 26(1) of the Act is a....
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.... dated 02.05.2019 which has frivolously been challenged by the Petitioner. Parties are also afforded a fair and reasonable opportunity of a personal hearing before the Commission for consideration of the said objections or suggestions to the Investigation report which has also been done so to the Petitioner as reflected in the Order dated 02.05.2019. Moreover, the Petitioners herein cannot be allowed to circumvent this procedure and abuse the process of law by invoking writ jurisdiction of this Hon'ble Court and raising grounds of objecting to the correctness of the information or the merits and demerits of the DG's report, which can be espoused at the stage of filing its objections or suggestions to the DG's report and in a personal hearing before the CCI in case the DG's report brings out contraventions of provisions of the Act on part of the Petitioners. Mr. Vyas further submitted that after having participated in the investigation for 6 years, since the investigation report brought to the fore contraventions on part of the petitioner, the petitioner does not want to participate in the inquiry now to be initiated before the CCI and hence by way of the instant petition, the petit....
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....igh Court will ordinarily not interfere with an on-going inquiry while exercising its inherent powers under Article 226 of the Constitution of India. As such, it is evident that the Petitioners by way of the present Writ Petition are attempting to shackle the inquiry before CCI. * Mr. Devang Vyas would submit that the clinching evidence of cartelization between the Petitioner and other Paper Mills for increase of prices in different varieties of paper including Copier Paper has come to fore during investigation. 6. Having considered the submissions made by the learned advocates for the respective parties, it will be necessary to reproduce the relevant dates and events preceding the passing of the impugned orders. The relevant dates and events are as under: DATE EVENTS Year 2014 Information filed by M/s Sivakasi Master Printers as per provisions of Section 19(1)(1) of the Competition act, 2002 ("the Act") against eight Opposite Parties including the Petitioner herein alleging that the Paper Mills have formed a cartel to increase the prices of the paper simultaneously in different varieties of paper in contravention of the provisions of Section 3 of the act. T....
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.... company deposed before the DG on oath where their statements were recorded by the DG. [Refer the date wise table of participation details by the Petitioner before the DG @ Pg 112 - 115] - Petitioner provided the details regarding all types of paper including copier paper on Affidavit - Sr. 5, 10 and 11 at Page 115]. - Officers of the Petitioner Company - Mr. Saikat Basu (Chief General Manager - Sales-Paper) and Mr. Santosh Wankhoo (Vice President - Marketing and Sale) were deposed on Oath before DG on 14.11.2017 and 12.12.2017 respectively [Refer Sr. 13 and 14 @Pg 129 read with para 8.36.1 @Pg 316 to Para 8.38 2Pg 324]. - Email dumps exchanged by the Petitioner with the other Paper manufacturers were shared by Petitioner [Refer Para 5.6 @Pg 130 - Relv @Pg 131 read with Para 8.35.2 @Pg 311 to Para 8.35.11 @Pg 316]. Year 2015 to Year 2018 Officers of various other Opposite Parties to Case No. 30 of 2014 and Case No. 85 of 2015 were deposed and email dumps also received from the Opposite Parties to the Cases. 14.11.2017 12.12.2017 Officers of the Petitioner Company - Mr. Saikat Basu (Chief General Manager - Sales-Paper) and Mr. Santosh Wankhoo (Vice President - M....
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.... read with Regulation 21(7) of the Competition Commission of India (General Regulations), 2009 the CCI forwarded a copy of the Director General's report to the opposite parties in the respective cases, one of them being the petitioner. The report was so forwarded so that the petitioner is given an opportunity to file its objections / suggestions to the report. The order also indicates that an opportunity of oral hearing was to be provided. These investigation reports dated 17.2.2019 and the order accompanying the report dated 2.5.2019 are on record. These reports preceded an investigation carried out by the Director General into the information provided by the Information Petitioners. Reading Section 26 of the Act indicates that on a receipt of a Reference from the Central Government or a State Government or an information received u/S. 19, if the Commission is of the opinion that their exists a prima facie case it shall direct investigation to be made in the matter. 8. The impugned orders dated 1.8.2014 and 17.11.2015 only recorded a prima facie opinion that the parties have colluded and formed a cartel for increase of prices in different varieties of paper and thereby warranti....
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....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. (3) 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. (4) 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....
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....tigation Report on record. At pages 112 to 115 when the report is examined the following dates indicate that the petitioner responded to all the notices of the DG, provided all types of details including copier paper on affidavit and Officers of the petitioner Company deposed on oath before the DG on 14.11.2017 and 12.12.2017, email dumped were exchanged by the petitioner with other paper manufactures. The relevant details are as under: (1) 28.5.2015 - Notice alongwith questionnaire sent seeking information. (2) 15.6.2015 - The petitioner submitted details about their Company in their submissions. (3) On an additional questionnaire handed over on the same, on 30.6.2016 the petitioner furnished details. (4) 30.6.2015 / 20.7.2015 and 3.12.2015, pursuant to the request of the CCI the petitioner submitted brief on trade discount, additional discount, month wise domestic sales, annual reports for 2014-15. (5) 28.12.2015, 7.4.2016, 26.4.2016, 18.8.2017, 21.8.2017, 4.9.2017 pursuant to notices and questionnaire seeking certain details, ledger accounts, pan details, copies of bills and invoices etc. were submitted. (6) 25.1.2018, 5.2.20....
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....ly 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. 2) 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. However, the Commission, being a statutory body exercising, inter alia, regulatory jurisdiction, even at that stage, in its discretion and in appropriate cases may call upon the concerned party(s) to render required assistance or produce requisite information, as per its directive. The Commission is expected to form such prima facie view without entering upon any adjudicatory or determinative process. The Commission is entitled to form its opinion without any assistance from any qu....
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....age of this provision read with Regulation 18(2) of the Regulations. 5) In consonance with the settled principles of administrative jurisprudence, the Commission is expected to record at least some reason even while forming a prima facie view. However, while passing directions and orders dealing with the rights of the parties in its adjudicatory and determinative capacity, it is required of the Commission to pass speaking orders, upon due application of mind, responding to all the contentions raised before it by the rival parties. 38. In contradistinction, the direction under Section 26(1) after formation of a prima facie opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis. Closure of the case causes determination of rights and affects a party, i.e. the informant; resultantly, the said party has a right to appeal against such closure of case under Section 26(2) of the Act. On the other....
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....under the provisions of Section 26(1) of the Act. 93. 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." Though the learned counsel for the petitioner too had relied on paragraph No.97 of the said decision in context of his submission that the view should be recorded by the Commission in reference to the information furnished, reading the said decision would indicate that once a prima facie opinion is found by the Commission, no interference can be made by this Court. 14. Even otherwise, what has been held by the Supreme Court is that exercise of powers by the CCI u/S.26(1) of the Act are not adjudicatory in nature and the formation of prima facie opinion is only an administrative process which does not entail civil consequences. ....
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....a letter/complaint dated 4th February, 2011 sent by the Chairman and Managing Director of FCI to the CCI to the effect that four manufacturers of Aluminium Phosphide Tablets („APT‟) had formed a cartel by entering into anti-competitive agreements amongst themselves and on that basis had been submitting bids for the previous eight years by quoting identical rates in the tenders invited by the FCI for the purchase of APT. 29.2 In the report of the DG, issued pursuant to the directions issued by the CCI under Section 26 (1) of the Act, it was inter alia found that right from the year 2002 up to 2009, all the four parties used to quote identical rates, except in the year 2007. In 2008, all parties abstained from quoting, while in 2009, only three of them participated. For the tender floated in 2009, the three Appellants had quoted identical rates. On that basis, the DG formed an opinion that the Appellants had contravened Section 3(3) (a) (b) and (d) read with Section 3 (1) of the Act. 29.3 The Appellant there inter alia contended that since Sections 3 and 4 of the Act were brought into force only with effect from 20 th May, 2009, the tenders prior to that....
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....tition. 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: 20(4). 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 ....
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....al 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. 45. 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 wh....
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....ime, the learned Single Judge would not have taken the view that he has taken in the impugned judgment. 32.1 The Division Bench of this Court in Cadila Healthcare Limited v. Competition Commission of India (supra) was called upon likewise to examine whether the DG in that case had exceeded its powers in finding a violation of the Act by Cadila which was not even named in the original complaint filed by the CCI. 32.2 There, the CCI took cognizance of information filed by the Reliance Medical Agency ("RMA‟) complaining of denial of supply of medicines by certain pharmaceutical companies. Cadila‟s case was that there had to be separate orders under Sections 26 (1) of the Act by the CCI authorizing the DG to investigate Cadila, and that, in the absence of such order, the DG could not have proceeded against Cadila on the strength of a general order passed by the CCI on 17th November, 2015 where it stated as under: "in the course of investigation, if involvement of any other party is found, the DG shall investigate the conduct of such other parties who may have indulged in such contravention". 32.3 After the DG‟s report was submitted ....
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...., 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 trigger for assumption of jurisdiction of the CCI is receipt of complaint or information, (when the Commission is of the opinion that there exists a prima facie case exists (per Section 26 (1)). The succeeding order is administrative (per SAIL); however, that order should disclose application of mind and should be reasoned (per SAIL). Up to this stage, with that enunciation of law, no doubt arguably Cadila could have said that absent a specific order as regards its role, by CCI, the DG could not have inquired into its conduct. However, with Excel Crop Care 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 unremunerated ones, involving others (i.e. third parties), the issue is no long....
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....), the validity of the DG‟s report which pointed to the existence of a cartel in relation to a tender which was not even mentioned in the first complaint was upheld by the Supreme Court. Likewise, a party which was not even named in the complaint could be investigated into by the DG, as held by this Court in Cadila Healthcare Limited v. Competition Commission of India (supra). 34. The aforementioned decisions clarify that an order of the CCI under Section 26 (1) of the Act „triggers‟ investigation by the DG, and that the powers of the DG are not necessarily circumscribed to examine only such matters that formed the subject matter of the original complaint. No doubt, the language of the order passed by the CCI issuing directions to the DG will also have a bearing on the scope of such investigation by the DG. In the present case, however, the language of the order passed by the CCI on 26 th February, 2011, is broad enough to cover an investigation by the DG into what appeared to be prima facie violation of Section 4 of the Act by GIL." The Court had considered the decisions of Barium Chemicals Limited (Supra) and Rohtas Industries Limited (Supra). In the....
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....nts, it would defeat the very purpose of the Act, which is to prevent practices having appreciable adverse effect on the competition. Therefore, at this stage, in the considered opinion of this Court, the issues and grounds raised in respect of anti- competitive practices as argued by the learned counsel for the appellants does not arise. The appellants are certainly entitled for opportunity of hearing as provided under the Statute and the present petitions/appeals are certainly premature. 20. The Hon'ble Supreme Court in the same case of Excel Crop Care Ltd.,(supra), in paragraph 108 has held as under; "108. It is well settled that the Competition Act, 2002 is a regulatory legislation enacted to maintain free market so that the Adam Smith's concept of invincible hands operate 1nhindered in the background. [CCI v. SAIL, (2010) 10 SCC 744] Further, it is clear from the Statement of Objects and Reasons 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....
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....y a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. 22. The Hon'ble Supreme Court in the aforesaid case has held that unless and until the show cause notice is vague or has been issu....
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.... is expected to form such prima facie view without entering upon any adjudicatory or determinative process. The Commission is entitled to form its opinion without any assistance from any quarter or even with assistance of experts or others. The Commission has the power in terms of Regulation 17(2) of the Regulations to invite not only the information provider but even "such other person" which would include all persons, even the affected parties, as it may deem necessary. In that event it shall be "preliminary conference", for whose conduct of business the Commission is entitled to evolve its own procedure. (3) The Commission, in cases where the inquiry has been initiated by the Commission suo motu, shall be a necessary party and in all other cases the Commission shall be a proper party in the proceedings before the Competition Tribunal. The presence of the Commission before the Tribunal would help in complete adjudication and effective and expeditious disposal of matters. Being an expert body, its views would be of appropriate assistance to the Tribunal. Thus, the Commission in the proceedings before the Tribunal would be a necessary or a proper party, as the case may be.....
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....re of the case causes determination of rights and affects a party i.e. the informant; resultantly, the said party has a right to appeal against such closure of case under Section 26(2) of the Act. On the other hand, mere direction for investigation to one of the wings of the Commission is akin to a departmental proceeding which does not entail civil consequences for any person, particularly, in light of the strict confidentiality that is expected to be maintained by the Commission in terms of Section 57 of the Act and Regulation 35 of the Regulations. 87. 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 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 Judici....
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....rector General after conducting an enquiry recommended closure by submitting an investigation report and the same was accepted by the CCI. Therefore, the appellants should not feel shy in participating in the enquiry, which is yet to commence by the Director general and all the grounds raised by the appellants shall be available before the Director General as well as before the CCI. The order passed under Section 26(1) is only the starting point of the process and the appellants want to crush the process at the threshold and the CCI is not being permitted by the appellants to proceed ahead in the matter. 40. We are dealing with a limited issue relating to an order passed under Section 26(1) of the Act of 2002 by the CCI setting the machinery in motion for conducting an enquiry by the Director General and therefore, as the enquiry is yet to commence, wherein all grounds raised in the present petitions/appeals can be looked into, hence, the present petitions/appeals are premature. 45. It is also contended by the learned Senior counsel appearing for the appellants that the harm is going to be caused to the business reputation of the appellants and before passing an o....
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....tion 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'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926 Ch 66] gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another." 59. In G. Veerappa Pillai, Proprietor, Sathi Vilas Bus Service, Porayar, Tanjore District, Madras Vs. Raman and Raman Limited, Kumbakonam, Tanjore District and Three Others.24, it is held that writs referred to in Article 226 are intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or ....
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....cited only by its nickname) in administrative law. It explains how 'unreasonableness', in its classic formulation, covers a multitude of sins. These various errors commonly result from paying too much attention to the mere words of the Act and too little to its general scheme and purpose, and from the fallacy that unrestricted language naturally confers unfettered discretion. 26 (1991)3 SCC 91 (at para 44) W.P No.3363/2020 C/W W.P No.4334/2020 Unreasonableness has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as 'irrelevant considerations', and mistakes and misunderstandings which can be classed as selfmisdirection, or addressing oneself to the wrong question ...." Further, following observations of Lord Scarman in Nottinghamshire County Council Vs. Secretary of State for Environment have also been quoted and they aptly apply to these cases. "... But I cannot accept that it is constitutionally appropriate, save in very exceptional circumstances, for the courts to intervene on the ground of "unreasonableness" to quash gui....
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....lso called upon the informant to file a Certificate under Section 65B of the Indian Evidence Act and the penalty for incorrect information is upto Rs. One Crore under Section 44 of the Competition Act. 64. It is expected that an order directing investigation be supported by 'some reasoning' (CCI Vs. SAIL para 97), which the Commission has fulfilled. Therefore, it would be unwise to prejudge the issues raised by the petitioners in these writ petitions at this stage and scuttle the investigation. Therefore, the impugned order does not call for any interference. Accordingly, point (c) is answered." 21. The order u/S.26(1) merely directs an investigation. It does not effects the rights and liabilities of the petitioner. The CCI is to examine the validity of the allegations as to whether the petitioner's conduct is anti-competitive. The petitioner has been provided an opportunity to file its objections and suggestions to the DG report and the petition therefore is certainly misconceived. 22. In the case of Samir Agrawal v. Competition Commission of India reported in 2021(3) SCC, 136, Hon'ble Supreme Court in paragraph Nos.14 to 15, 17, 19, 20 and 23 held as under:....
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....gulation 25 shows that public interest must be foremost in the consideration of the CCI when an application is made to it in writing that a person or enterprise has substantial interest in the outcome of the proceedings, and such person may therefore be allowed to take part in the proceedings. What is also extremely important is regulation 35, by which the CCI must maintain confidentiality of the identity of an informant on a request made to it in writing, so that such informant be free from harassment by persons involved in contravening the Act. 19. With the question of the Informant's locus standi out of the way, one more important aspect needs to be decided, and that is the submission of Shri Rao, that in any case, a person like the Informant 25 cannot be said to be a "person aggrieved" for the purpose of Sections 53B and 53T of the Act. Shri Rao relies heavily upon Adi Pherozshah Gandhi (supra), in which Section 37 of the Advocates Act, 1961 came up for consideration, which spoke of the right of appeal of "any person aggrieved" by an order of the disciplinary committee of a State Bar Council. It was held that since the Advocate General could not be said to be a person ....
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....fered by the complainant. Section 494 does not restrict the right of filing complaint to the first wife and there is no reason to read the said Section in a restricted manner as is suggested by the learned counsel for the appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by the wife living and not by the woman with whom the subsequent marriage takes place during the lifetime of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom the second marriage takes place which is void by reason of its taking place during the life of the first wife." (page 628) 23. Obviously, when the CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the appellate authority, i.e., the NCLAT, must be kept wide open in public interest, so as to sub-serve the high public purpose of the Act." 23. In the case of Excel Crop Care Limited v. CCI reported in 2017(8) SCC, 47, paragraph Nos.44 and 45 read as under: "44) The CCI had entrusted the task to DG after it receive....
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....ector-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. 29. 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....
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....e 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 up....
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....on is: 'What is the relevant market in which competition is effect?" In the present application filed by the Competition Commission of India it is contended that an impression is given that the question of relevant market has to be determined in all types of cases under Section 3 of the Competition Act, which may not be the correct position. We find that our judgment dated 07.03.2017 needs some clarification in this behalf, which we hereby give in the following manner: In paragraph 8 of the judgment, it is noted that sub-section (3) of Section 3 of the Act creates a legal presumption as to the appreciable adverse affect of competition whenever there exists agreements of the type enumerated in the said sub-section. It is also noted in paragraph 13 that the appreciable adverse affect on the competition is to be seen in the context of 'relevant market' as defined in Section 2(r) of the Act. Thereafter, question as to what would constitute 'relevant market' for the purpose of enquiry into the impugned activity of Coordination Committee has been formulated and answered. As mentioned above, the submission of the applicant is that though paragraph 8 o....