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2023 (4) TMI 1187
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...."a) Hold that the CCI can validly invoke doctrine of necessity in this case for initiating non-compliance proceedings against Google and issue an appropriate order/ direction in the nature of writ of mandamus to Respondent no. 1 for timely adjudication of the interim relief application and the application under Section 42 of the Competition Act, 2002, as filed by the Petitioner; regarding non-effective compliance by Google of the CCI's final order dated 25.10.2022 and to keep UCB's implementation in abeyance till the adjudication by the CCI, and/or; b) Issue an appropriate order/ direction providing interim relief to the Petitioner, directing the Respondent No. 2 to 5 to keep the implementation of Google's UCB in abeyance, pending adjudication by the CCI on Petitioners application and maintain the status quo (i.e no commission is to be charged when transaction happen via other payment processors mode (non GPBS mode) as it exists now" 2. The following facts shorn of all unnecessary details and germane and relevant to decide the dispute are as under:- 2.1 On 20.02.2020, an anonymous informant filed an information before the Competition Commission of India (hereinafter referred t....
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.... the other, under Section 42 of the Act, before the CCI, mainly for causing an inquiry into the compliance report filed by Google alongwith certain other prayers. That all such applications filed before CCI on 31.01.2023, 06.03.2023, 28.03.2023 under Section 42 of the Act are still impending adjudication till date. FACTS AS PER THE PETITIONER GIVING RISE TO APPLICATIONS UNDER SECTION 42 OF THE ACT: 3. The petitioner has approached this Court on the ground that the applications filed by the petitioner under Section 42 of the Act allegedly aggrieved by the non-compliance/violation of the Final Order dated 25.10.2022 passed by learned CCI, have not been adjudicated despite the urgent nature of reliefs sought. 4. The petitioner states that the applications under Section 42 of the Act have been necessitated since the directions passed by the CCI vide the Final Order dated 25.10.2022 have been contravened in a veiled manner, in that, the directions of the CCI to respondent nos. 2 to 5 to not create and launch an alternate billing system to the already existing billing system i.e. Google Pay, so as to ensure that the consumers and digital app developers like the petitioners have altern....
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....directions and in fact, violated the directions passed by the CCI. Learned counsel submits that it was on the basis of such violations that the necessity of filing of applications under Section 42 of the Act arose and was preferred by the petitioner before the CCI. 11. Learned counsel submits that though the applications were filed, till date the same are pending and not adjudicated upon by the CCI despite the extreme urgency in the nature of such applications. Learned counsel submits that the urgency for which the petitioner has preferred the present petition is that respondent nos. 2 to 5 are about to launch the UCB system on 26.04.2023 whereafter the applications under Section 42 of the Act, may well become infructuous. 12. Learned counsel further submits that keeping in view the aforesaid urgency and given the nature of violations/non-compliance of clear and unambiguous directions by the CCI, as also keeping in view that the said applications are not being adjudicated by the CCI, that the present petition, claiming the aforesaid relief of either directing the CCI to hear the applications and decide them expeditiously or in the alternative, restrain the respondent nos. 2 to 5 ....
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....as possible, preferably before 26.04.2023. 19. Mr. Roy, learned counsel also relied heavily upon the judgment of the Coordinate Bench of this Court in Mylan Laboratories Limited vs. Union of India reported in 2019 SCC OnLine Del 9070 to submit that the learned Single Judge had applied the Doctrine of Necessity keeping in view the judgment of the Hon'ble Supreme Court in Election Commission of India vs. Dr Subramaniam Swamy reported in (1996) 4 SCC 104 holding that the Doctrine of Necessity has to be applied in such circumstances where the only way is to promote decision making rather than interdicting a judicial dispensation. 20. Learned counsel relies upon Paras 26,38,39 of the judgment of learned Single Judge in Mylan Laboratories (supra) and fairly submits that the judgment in Mylan Laboratories (supra) was rendered in respect of Intellectual Properties Appellate Board particularly Section 84(2) of the Trade Marks Act, 1999, regarding the constitution of its bench. 21. Learned counsel has also placed on record a compilation of judgments which have also been considered. ARGUMENTS OF RESPONDENT NOS. 4 AND 5 22. Mr. Sandeep Sethi, learned senior counsel appears on behalf of re....
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....embers only, would be deemed to be mandatory and any quorum comprising less than three members would be invalid. 26. Learned senior counsel further submits that reading of Sections 8, 15 and 22 harmoniously, would bring to fore that the quorum of the CCI, even in adjudicatory process, has to be not less than three members. Learned senior counsel further submits that the legislative intent is clear and cannot be interpreted in any manner other than to uphold that the minimum quorum for a valid constitution of the Commission has to be necessarily three members, including the Chairperson. 27. Learned senior counsel further submits that this mandate would be across the board, whether in respect of any act or proceeding of the Commission as stipulated under Section 15 of the Act. 28. In aid of the aforesaid submissions, learned senior counsel also submits that the regulations to provide for such procedure is conspicuous by the absence of any provision in respect of the quorum to be constituted. Therefore, in his submission, if a statute provides for it, the Court need not look for any rule or regulation to provide for such quorum. 29. So far as Section 15 is concerned, Mr. Sethi sub....
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....ent lack of jurisdiction when the quorum is not complete. 32. Relying upon the aforesaid judgments, Mr. Sethi, learned senior counsel submits as under:- (a) If the quorum is not complete, in that, comprising of three members, the rationale of decision is lost. (b) The lack of quorum, i.e., less than three members would tantamount to lack of jurisdiction of the CCI to decide the dispute. (c) If the CCI is not properly constituted, it yet again has no jurisdiction to decide any issue. 33. So far as the Doctrine of Necessity is concerned, learned senior counsel submits that such doctrine was not developed and propagated to violate the specific provisions of law, in that, as per the mandate of Section 8 read with Section 22 of the Act, a minimum quorum of three members, including the Chairperson, to conduct its business as per the Act. Clarifying further, learned senior counsel submits that the Doctrine of Necessity cannot be a Rule of Law nor can be used as an answer to the lack of quorum as legislated by the Act. According to Mr. Sethi, Doctrine of Necessity would arise only in a situation where the quorum though complete, yet is found to be defective due to a member's disqua....
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....tate what was not only final but actually rejected by the CCI in its Final Order. 40. Referring to paragraphs 326 and 327 as also paragraphs 395.1 of the Final Order dated 25.10.2022, Mr. Sethi submits that so far as such directions were concerned, respondent no.2 to 5 have already implemented and complied the same by virtue of the intending launch of UCB Pilot System on 26.04.2023. 41. Learned senior counsel also submits that having said that, the respondents have challenged the directions contained in the Final Order dated 25.10.2022 before the NCLAT. 42. On an overall conspectus, Mr. Sethi submits that the present petition is devoid of any merit, is an abuse of the process of law and ought to be dismissed in limine with exemplary cost. ARGUMENTS OF RESPONDENT NOS.2 AND 3 43. Mr. Sajan Poovayya, learned senior counsel appears on behalf of respondent Nos. 2 & 3. At the outset, learned senior counsel draws attention of this Court to the prayer made in the writ petition to submit that:- (a) The doctrine of necessity is invoked against an institution and not in respect of a particular case. (b) There is no material on record placed by the petitioner which would lead this Cou....
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....g to Section 22 of the Act, that the Members as stipulated to be a minimum of three, cannot be reduced to a number below three to constitute a valid Commission. For the same reason, learned senior counsel also relied upon the judgment rendered by the Supreme Court in the case of J. Mohapatra and Co. and Another vs. State of Orissa and Another, reported in (1984) 4 SCC 103, particularly to paragraph 12 in respect of the ratio laid down regarding what would constitute doctrine of necessity. 49. According to Mr. Poovayya, the doctrine of necessity cannot be stretched to also mean that a defective quorum can hear and decide disputes. Learned senior counsel submits that a defect in the constitution would go to the root of the jurisdiction and such lack of jurisdiction cannot be adequately covered by attempting to invoke the doctrine of necessity. 50. Learned senior counsel submits that petitioner is not remediless, in that, in case the petitioner was aggrieved by any finding of facts by the CCI, a statutory appeal could have been availed of, which the petitioner failed to do. Learned senior counsel, though without admitting, stressed on the fact that the petitioner had a remedy availa....
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....tion or even a mandate in the Act which specifies the minimum number of Members who would constitute a Bench, coupled with the plain language of Section 15 of the Act, the Bench consisting of two Members would be a valid Bench under the Act. Based thereon, Mr. Mehta, learned senior counsel submits that the question of referring to the applicability of doctrine of necessity does not arise at all. 55. Mr. Mehta, learned senior counsel then referred to Article 227 of the Constitution of India to submit that as per the provisions of Article 227 (2) (b), it is clear that under this provision, the overall superintendence and control of the subordinate courts and the tribunals in the Territory of Delhi are directly under this Court. In other words, Mr. Mehta, learned senior counsel submits that this Court can and ought to, in the facts of the present case, direct CCI to take up and consider the applications under Section 42 of the Act filed by the petitioner. He submits that the overall power of general superintendence cannot be circumscribed or curtailed by doctrine of necessity. 56. Mr. Mehta, learned senior counsel further proceeded to differentiate the judgments which were relied up....
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.... be interpreted to mean that sub-section (3) or for that matter, its proviso, would control all the other Sections of the Act; (c) In case sub-section (3) along with the proviso therein to Section 22 is deemed to be a pre-condition to the provisions of the Act, then sub-section (2)(a) to Section 6 would be impossible to comply with and would be rendered nugatory. It is trite that sections/provisions in an enactment are to be interpreted harmoniously and any meaning repugnant thereto ought to be repelled. This is in context of the timeline as prescribed in sub-section (2)(a) of Section 6 of the Act. The thrust being on the flexibility of the Commission to give effect to the provisions of Section 6 of the Act. (d) In so far as the arguments in respect of Section 15 are concerned, the interpretation by Mr. Sandeep Sethi, learned senior counsel that the word 'vacancy' used in Section 15 of the Act would imply a vacancy only beyond three Members cannot be read into Section 15 keeping in view the provisions of Section 8 of the Act, particularly, sub-section (1) to Section 8 of the Act. (e) The case of Dr. Manbodh Pandey (supra) relied upon by the respondents is not identical and di....
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....questions (a) and (b) framed above are interrelated, this Court would first deal with them. 67. In order to appreciate and consider the aforesaid two questions, it would be apposite to extract Section 15 of the Act which is as under:- "15. 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." A plain reading of the aforesaid provision brings to fore that it contemplates two different functions of CCI which would be governed by the said Section, namely an "act" or "proceeding". It is manifest that the "act" contemplated, would obviously be distinguishable from the "proceeding", in that, a "proceeding" would be relatable to adjudicatory powers exercised by the CCI and anything other than an adjudicatory process would be covered by the word "act" which could mean regulatory or administrative powers of the CCI. Moreover, it is trite that when an enactment uses the word "or", it clearly indicate....
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....he constitution of the CCI, the CCI cannot be considered as a statutory authority not having jurisdiction to adjudicate the complaints or other proceedings pending before it. Any interpretation, other than the aforesaid, would render the provisions of Section 15 otiose and which could not possibly be the intention of the Legislature either. 70. It is also necessary to consider that the provisions of Section 15 are clearly enabling and as such ought to be given the correct impetus to reach a logical conclusion while interpreting the powers of CCI in respect of its powers of adjudication. It is trite that an enabling provision is engrafted by the Legislature to overcome any inability which may accrue to statutory authorities like the CCI, while acting in furtherance of the aims and objects of the Act. In other words, it is to obviate the difficulties which may arise accruing on account of vacancy or defect in the constitution of the CCI, that such enabling sections are engrafted. 71. It would also be apposite to extract the provisions of Section 8 which are as under:- "8. Composition of Commission (1) The Commission shall consist of a Chairperson and not less than two and not ....
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....ates any enactment. It is well settled that the Doctrine of Cassus Omissus cannot be applied to fill any apprehended lacuna in an enactment. 73. It is also clear from the plain reading of Section 8 that what is contemplated is the composition of the commission and not quorum, meaning thereby the composition of the commission would consist of the Chairperson and not less than two and not more than six other members who are to be appointed by the Central Government. It would be apposite to extract Section 22 of the Act, which is as under:- "22. Meetings of Commission (1) The Commission shall meet at such times and places, and shall observe such rules and procedure in regard to the transaction of business at its meetings as may be provided by regulations. (2) 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. (3) 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/ca....
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....ction to decide any issue. The said submission, ostensibly, was predicated on the fact that the minimum quorum of CCI is three members relying upon the proviso to sub-section 3 to Section 22 of the Act. The aforesaid argument in the opinion of this Court would be untenable for the reason that this Court has already concluded that the word "quorum" employed in proviso to sub-section 3 to Section 22 has no nexus with the adjudicatory process of the CCI and is limited only to its administrative acts. Considering the aforesaid, the submission that the constitution of CCI less than three members would create lack of jurisdiction of CCI as an adjudicatory authority, would fail. 76. In view of the aforesaid analysis, this Court is of the considered opinion that the provisions of Section 15 act as a saving clause in regard to a situation where a vacancy or a defect in constitution of the CCI would arise and any such vacancy or defect in the constitution would not invalidate any proceedings so far as the adjudicatory powers of the CCI is concerned. Accordingly, the aforesaid two questions (a) and (b) as framed by this Court, are answered in the affirmative. 77. Now to deal with question (....
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....ms of the ratio laid down by the Hon'ble Supreme Court, that the doctrine of necessity could be invoked. The upshot being that the doctrine of necessity would clearly not be invocable in a case where the CCI comprises of members less than three. 82. So far as the submissions of Mr. Sajan Poovayya, learned senior counsel in regard to touching upon the merit and findings of the CCI in respect of monetization model of respondent nos. 2 to 5 in context of maintainability of applications under Section 42 is concerned, the same are left for consideration of the CCI leaving the rights of the parties reserved. 83. This Court is in agreement with the submissions of Mr. Sajan Poovayya, learned senior counsel that the doctrine of necessity is in respect of an institution and not a particular case. However, since this Court has answered questions (a) and (b) in the affirmative, no useful purpose would be served in addressing the arguments urged on behalf of respondent nos. 2 and 3. 84. The reliance of Mr. Poovayya, learned senior counsel on the judgments of The Punjab University (supra) and J. Mohapatra (supra) have already been considered above. 85. The next submission of Mr. Poovayya, le....