TaxTMI 
TaxTMI 
2023 (6) TMI 707
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.... Mr. M. A. Venkata Subramanian, Adv., Mr. Ranjit Kumar, Sr. Adv., Ms. Sheena Taqvi, Adv., Ms. Akansha Saini, Adv., Mrs. Bina Gupta, AOR, Mr. Nagarkatti Kartik Uday, AOR, Mr. G. Saikumar, Adv., Mr. Samir Malik, Adv., Ms. Nikita Choukse, Adv., Mr. Akash Lamba, Adv., Ms. Ekssha, Adv., MS. D.S.K. Legal, AOR JUDGMENT K.M. JOSEPH, J. 1. The Civil Appeal is directed against the Order passed by the Competition Appellate Tribunal, New Delhi (hereinafter referred to as 'Tribunal'), by which Order, the Tribunal affirmed the findings and conclusion recorded by the Competition Commission of India (hereinafter referred to as 'CCI') on various facets of abuse of dominant position. The abuse of dominant position was ascribed to the appellants. The appeal was dismissed. 2. The second respondent had provided information to the CCI which the CCI proceeded to consider and it found the abuse of dominant position by the appellants. 3. The appellants have filed Interlocutory Application, viz., I.A. No. 66587 of 2017 being an application seeking permission to take additional grounds. Parties exchanged pleadings in the interlocutory application. We have allowed the application seeking permis....
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....sions of the Coal Mines (Nationalization) Act, 1973 (hereinafter referred to as the 'Nationalisation Act') would be wholly outside the purview of the Act. This is for the reason that the very purpose and policy underlying the Nationalization Act, was to monopolise the operation of the coal mines and coal mining in the hands of the Central Government and its agencies such as the appellants. It is not an ordinary monopoly. It is a monopoly created by the Nationalization Act; it is, having regard to the need to immunize it from challenge, that it was accorded protection of Article 31B of the Constitution of India; it has been inserted in the Ninth Schedule to the Constitution; Article 39(b) of the Constitution of India takes it out of the category of ordinary monopoly; this is for the reason that the State has been charged with the duty to bear in mind the principles of 'common good' being secured by the 'distribution of scarce resources'; coal, with which mineral we are concerned with, is, indeed, a mineral of the highest importance in the economic life of the nation; its equitable distribution in the manner so as to secure the common good which is the directive contained in Article ....
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.... 39(c) cannot be impugned on the ground that it is inconsistent with Articles 14 and 19 of the Constitution. Such a law is to be treated as reasonable. On the other hand, if an action is inconsistent or runs counter to the Directive Principles, it may, prima facie, be brushed with the tarnish of it being unreasonable. (See Kasturi Lal Lakshmi Reddy and Others v. State of Jammu and Kashmir and Another (1980) 4 SCC 1). It is further pointed out by the appellants that on a conspectus of the Nationalisation Act and on placing it side-by-side with the provisions of the Act, the divergence and the consequent anomalous results of bringing the appellant under the Act, would clearly emerge. Our attention is drawn to the long title of the Act. It is pointed out that the object of the Act is to ensure freedom of trade. This is contrasted with a long title of the Nationalisation Act which indicates that the Law-Giver intended to vest ownership and control of the coal mines in the State so that the said resource is so distributed as to best serve the common good. It is contended that CIL does not operate in the commercial sphere. Great emphasis is laid on the fact that out of 462 mines operated....
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....nconsistent with the appellants pursuing welfare policy in relation to pricing and distribution of coal. Under Section 32 of the Nationalisation Act, the mining companies cannot be wound up. This stands in contrast to Section 28 of the Act which empowers the CCI to divide enterprises abusing dominant position including adjustment of contracts, formation of winding up of enterprises among other things. 13. Next, it is pointed out that Section 28 of the Nationalisation Act declares that the provisions of the said Act would prevail notwithstanding anything inconsistent therewith contained in any other law in force, inter alia. (Reliance is placed on the Judgments of this Court in Employees Provident Fund Commissioner v. Official Liquidator of Esskay Pharmaceuticals Limited (2011) 10 SCC 727 as also Sanwarmal Kejriwal v. Vishwa Coop. Housing Society Ltd. and Others (1990) 2 SCC 288). Section 60 of the Act, which declares that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, may not assist the second respondent or the CCI in the stand that a Nationalisation Act must make way for the ope....
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....te monopolies must fall in line and operate in the midst of forces of competition. He would point out that the Court should keep in mind that an examination of the merits of the case would clearly indicate that the attempt of the appellants is to wriggle out of the situation when its actions have been found to be violative of the Act and the fine questions which have been raised do not actually even arise on the defense actually set up before the CCI. He poses the question as to whether the appellants could justify the supply of substandard goods and justify it on the high pedestal of a Constitutional goal being imperiled if the same is questioned under the Act. 16. He would point out that there is no challenge mounted to the vires of the Act. There is no scope for reading down the law in the absence of the challenge. He also relied upon the Judgment of this Court in the New Delhi Municipal Council v. State of Punjab & others 1997) 7 SCC 339 to contend that when the instrumentality of the State proceeds to enter the commercial field and is carrying on a business activity, it cannot claim immunity from the laws of the land. Though the said case was delivered in the context of Art....
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....nt position. This being the scheme of the Act, he contends that there may be no merit in the attempt of the appellants to extricate themselves from a well thought out law provided by the same Law-Giver. 18. He would point out that initially coal was an essential commodity under the Essential Commodities Act, 1955. When this Court delivered the Judgment relied upon by the appellants as well, viz., Ashoka Smokeless Coal India (P) Ltd. and Others v. Union of India and Others (2007) 2 SCC 640, coal was an essential commodity. The Court proceeded on the said basis as well. However, in February, 2007, coal ceased to be an essential commodity. Next, it is pointed out that the Nationalisation Act itself, which is projected as the sheet anchor of the appellants entire case was itself taken out from the Ninth Schedule in the year 2017. The Nationalisation Act itself stands repealed. Therefore, he would point out that the Court is being invited to pronounce on the basis of the 'hallowed' position that the Nationalisation Act occupied, which itself is no longer the case. (We must notice here that even in his opening submissions Shri K. K. Venugopal, learned Senior Counsel, pointed out these....
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....bution companies (represented, in fact, before us incidentally by the Maharashtra State Agency), who, in turn, would finally supply power to the end consumer. The continual supply of coal and prompt performance of the contracts and the reasonableness of the rates and quality of coal, in other words, according to the second respondent, are related to the very common good, which is emphasized by the appellants. He would further point out that the Nationalisation Act was an expropriatory legislation. 22. Next, he would point out that the predecessor enactment, viz., the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as MRTP Act), which stood repealed by the Act, may be borne in mind. In the said Act, Section 3 clearly declared that, unless it was otherwise notified, the MRTP Act would not apply to Government Agencies, as indicated therein. There is no such provision in the Act. He drew our attention to Section 21A of the MRTP Act. Drawing inspiration from the preamble to the Act, he emphasizes that the center stage of attention in the Act is occupied by the consumer. Common good in other words, must be associated with the good of the consumer. He drew....
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....pellants that Writ Courts can go into the question, it is pointed out that the cases may involve facts, which are best dealt with by a Body like the CCI. He drew our attention to the Judgment of this Court in Hasan Murtza v. State of Haryana (2002) 3 SCC 1 and also Employees Provident Fund Commissioner v. Official Liquidator (2011) 10 SCC 727. Similar contention in support of the CCI and the second respondent has been voiced by the other respondents in the Transferred Cases. 24. In response to the submissions, Shri K.K Venugopal would point out that it is not the case of the appellants that the appellant is immune from all laws. He would further point out that the deletion of the Nationalisation Act from the Ninth Schedule may not affect his contentions as the contracts in question relate to the period when the Nationalisation Act was very much in the 9th Schedule. He would submit that as held in Ashoka Smokeless Coal India (P) Ltd. and Others v. Union of India and Others (2007) 2 SCC 640, it is not as if the actions of the appellants are immune from judicial review under Article 14. He would reiterate that an affected party could seek redress in other forums. He would emphasize....
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....est public interest. He would submit that if a defense is set up that bonafide adherence to Presidential Directives is being made under the Act, it would be a matter which may have to engage the CCI. ANALYSIS 26. As we have noticed the question, we are called upon to decide is whether the Act applies to the appellants or not. It is necessary that we tread carefully so that we skirt an incursion into the merits, which can be undertaken only when the Appeal is heard on merits. 27. Before we pass on to the Act, it may be necessary to look at the law, which it repealed. The MRTP Act was enacted in the year 1969. It was intended to deal with monopolistic and restrictive trade practices as the very long title suggests. It held sway till the Act repealed it in the year 2002. However, the Act itself was actually brought into force in the year 2009. What is relevant is to notice some of the provisions of the MRTP Act. 28. Section 2(d) of the Act, as substituted by Act 30 of 1982, provided for definition of the words 'dominant undertaking'. The definition itself appears to be fairly convoluted. The word 'goods' was, indeed, defined as goods as defined in the Sale of Goods Act, 19....
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....) any undertaking engaged in an industry, the management of which has been taken over by any person or body of persons in pursuance of any authorisation made by the Central Government under any law for the time being in force, (f) any undertaking owned by a co-operative society formed and registered under any Central, Provincial or State Act relating to co-operative societies, (g) any financial institution. Explanation.-In determining, for the purpose of clause (c), whether or not any undertaking is owned or controlled by a corporation, the shares held by financial institutions shall not be taken into account." 30. In other words, inter alia, the provisions of the said Act did not apply to an undertaking owned or controlled by a government company or any undertaking owned or controlled by a corporation (not being a company established by or under a central, provisional or State Act) unless it was expressly made applicable by a notification. It also did not apply to any undertaking, the management of which was taken over by any person or body of persons in pursuance of any authorization made by the Central Government under any law enforced for the time ....
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....se (c), has been granted by any such Government, company or corporation, or (iii) a company engaged in- (1) the production of iron and steel, (2) generation of power, (3) washing of coal obtained from a mine, or (4) such other end use as the Central Government may, by notification, specify, shall carry on coal mining operation, in India, in any form; (b) excepting the mining leases granted before such commencement in favour of the Government, company or corporation, referred to in clause (a), and any sub-lease granted by any such Government, company or corporation, all other mining leases and sub-leases in force immediately before such commencement, shall, in so far as they relate to the winning or mining of coal, stand terminated; (c) no lease for winning or mining coal shall be granted in favour of any person other than the Government, company or corporation, referred to in clause (a): Provided that the Government, company or corporation to whom a lease for winning or mining coal has been granted may grant a sub-lease to any person in any area on such terms and conditions as may be specified in the instrument granting the sub-lease, if....
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....1) The general superintendence, direction, control and management of the affairs and business of a coal mine, the right, title and interest of an owner in relation to which have vested in the Central Government under section 3, shall,- (a) in the case of a coal mine in relation to which a direction has been made by the Central Government under sub-section (1) of section 5, vest in the Government company specified in such direction, or (b) in the case of a coal mine in relation to which no such direction has been made by the Central Government, vest in one or more Custodians appointed by the Central Government under sub-section (2), and thereupon the Government company so specified or the Custodian so appointed, as the case may be, shall be entitled to exercise all such powers and do all such things as the owner of the coal mine is authorised to exercise and do. (2) The Central Government may appoint an individual or a Government company as the Custodian of a coal mine in relation to which no direction has been made by it under sub-section (1) of section 5." 37. Suffice it for the purpose of this case that we notice next Section 28: "28. Effect of this Act on other laws.....
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.... law, having been reserved for the consideration of the President, has received his assent Right to Constitutional Remedies." 42. The working of the MRTP Act was found to be inadequate particularly in the context of changes which happened not only in the country but also on a larger scale. 43. A high-level Committee known as Raghavan Committee delved into the issues. It is, inter alia, stated in the Report as follows: "the object of competition policy is to promote efficiency and maximize welfare. In this context, the appropriate definition of welfare is the sum of consumer surplus and producer's surplus and also includes any taxes collected by the Government."(See paragraph-2.1.1) We notice the following observations as well: "2.1.1 Competition policy is defined as "those Government measures that directly affect the behaviour of enterprises and the structure of industry" (Khemani, R.S. and Mark A. Dutz, 1996). The objective of competition policy is to promote efficiency and maximize welfare. In this context the appropriate definition of welfare is the sum of consumers' surplus and producers' surplus and also includes any taxes collected by the Government.....
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.... India have played a vital role in its developing process, have engineered growth in critical core areas and have performed social obligations. Nonetheless, there is also a recognition, consequent on the adverse financial results and the resultant pumping of budgetary oxygen from the Government treasury to those enterprises, that there is not only scope for their reformation but also for structural and operational improvements. This recognition has led to the trend towards privatising some of them. This is also a part of the general process of liberalisation and deregulation. Privatisation involves not only divestiture and sale of Government assets but also a gradual decline in the interventionist role played by them. 3.4.6 State monopolies may lead to certain harmful effects, anti-thetical to the scheme of a modern Competition Policy. They are : A. The dominant power enjoyed by State monopolies may be abused because of Government patronage and support. B. Because of the said patronage, State monopolies may adopt policies which tantamount to restrictive trade practices. For example, preference to public sector units in tenders and bids, insistence on usin....
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.... to the rigours of Competition Law." (Emphasis supplied) 50. In paragraph-4.4.7, we notice the following: "4.4.7. Before assessing whether an undertaking is dominant, it is important, as in the case of horizontal agreement, to determine what the relevant market is. There are two dimensions to this - the product market and the geographical market. On the demand side, the relevant product market includes all such substitutes that the consumer would switch to, if the price of the product relevant to the investigation were to increase. From the supply side, this would include all producers who could, with their existing facilities, switch to the production of such substitute goods. The geographical boundaries of the relevant market can be similarly defined. Geographic dimension involves identification of the geographical area within which competition takes place. Relevant geographic markets could be local, national, international or occasionally even global, depending upon the facts in each case. Some factors relevant to geographic dimension are consumption and shipment patterns, transportation costs, perishability and existence of barriers to the shipment of produ....
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....t by taking note of the following provisions. 54. Section 2(h) defines the word 'enterprise': "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. Explanation.-For the purposes of this clause,- (a) "activity" includes profession or occupation; (b) "article" includes a new article and "service" includes a ....
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....ded use;" 58. Section 3 prohibits anti-competitive agreements. They are declared void. 59. We are, in the main, concerned in this case, with Section 4. Section 4 prohibits abuse of dominant position. Section 4 reads as follows: "4. (1) No enterprise or group shall abuse its dominant position. (2) 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- (i) condition in purchase or sale of goods or service; or (ii) 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- (i) production of goods or provision of services or market therefor; or (ii) technical or scientific development ....
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....on of the Central Government, may be useful to the Commission." 63. Section 17 reads as follows: "17. (1) The Commission may appoint a Secretary and such officers and other employees as it considers necessary for the efficient performance of its functions under this Act. (2) The salaries and allowances payable to and other terms and conditions of service of the Secretary and officers and other employees of the Commission and the number of such officers and other employees shall be such as may be prescribed. (3) The Commission may engage, in accordance with the procedure specified by regulations, such number of experts and professionals of integrity and outstanding ability, who have special knowledge of, and experience in, economics, law, business or such other disciplines related to competition, as it deems necessary to assist the Commission in the discharge of its functions under this Act." 64. The duties of the CCI are spelt out in Section 18. It reads as follows: "18. 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, ....
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.... the CCI shall have due regard to the relevant geographic market and relevant product market. 68. Section 19(6) deals with the factors which are relevant for determining the relevant geographic market. 69. Section 19(7) deals with matters which are relevant for determining the relevant product market. 70. Section 27 provides for orders which the CCI may pass after inquiring into agreement or abuse of dominant position: "27. 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....
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....ment arising out of and in accordance with any obligation assumed by India under any treaty, agreement or convention with any other country or countries; (c) any enterprise which performs a sovereign function on behalf of the Central Government or a State Government: Provided that in case an enterprise is engaged in any activity including the activity relatable to the sovereign functions of the Government, the Central Government may grant exemption only in respect of activity relatable to the sovereign functions." 73. Section 60 reads as follows: "60. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 74. We must proceed on the basis that there is no challenge to the Act. This means that we must take the Act as it is and place an interpretation on it as would be most suitable in accordance with well-established principles. In other words, this is not a case where the Court has been invited to pronounce on the vires of the Act. 75. Coal continues to be an important and scarce natural resource. Nothing more is required to establish the same than the v....
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....s of Act 67 of 1976, by which the Nationalisation Act was amended, indicated that after the nationalisation took place, persons holding mining leases took to unauthorized mining and in a most reckless and unscientific manner. This was noted to be without bearing in mind considerations of conservation, safety and the welfare of the workers. A valuable national asset was being destroyed. There were safety concerns. Large profits were being reaped but by paying very low wages to the workers. All privately held coal leases were brought under the umbrella of the Nationalisation Act except those held by privately owned steel companies. The Nationalisation Act came to be again amended by Act 22 of 1978. Thereafter, again it was amended by Act 57 of 1986 and finally by Act 47 of 1993. Suffice it to notice that with the commencement of the Coal Mines Nationalisation (Amendment) Act, 1976 on 29.04.1976, carrying on a coal mining operation or leasing for mining coal by any private party, was prohibited. 77. Section 11 of the Nationalisation Act contemplates that the general superintendence, direction, control and management of the affairs and business of a coal mine, where the right of an ....
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.... is taken by the appellants to the applicability of the Act. This objection is founded upon the inconsistencies and consequent anomalous results, which would arise from the Act being applied to the appellants. We have already captured the various perceived inconsistencies in paragraphs-10-12. 79. Before we proceed to deal with the grievances of the appellants, we must undertake a survey of the Act to ascertain, whether the Act, in any manner, advances the case of the appellants. The Act has been made in the year 2002 and it was not a pre-existing Statute. When the National Act was made, central to the scheme of the Act, is the expression 'enterprise', as defined in Section 2(h) of the Act. Let us decode it. An 'enterprise' is defined as a person or a Department of the Government. Let us pause here for a moment. The word 'person' has been defined in Section 2(l) as including a company, a corporation established by or under any Central, State or Provincial or a Government Company, as defined in Section 617 of the Companies Act, 1956. We need not probe further. The appellant is a Government Company within the meaning of Section 617 of the Companies Act, 1956. Therefore, the appella....
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....ation, be described as a sovereign function. There is nothing in the definition which excludes a State monopoly which is even set up to achieve the goals in Article 39(b) of the Constitution. 82. As mentioned earlier, the Act aims at tabooing anti-competitive agreements and thereby promoting competition. It also prohibits abuse of dominant position. What is prohibited is, however, abuse of dominant position by an enterprise or a group. A group has been defined in the context of Section 5 which deals with regulation of combination. We find that the appellant answers the description of an enterprise as defined. 83. When it comes to Section 3, dealing with anti-competitive agreements, it encompasses a prohibition of such agreements by not merely enterprises or association of enterprises but by any person or association of persons. 84. Dealing with abuse of dominant position being the theme of the lis, Section 4(1) declares that no enterprise or group shall abuse 'its' dominant position. What is dominant position? The second explanation in Section 4(2) defines that dominant position for the purposes of Section 4 to be 'a position of strength enjoyed by an enterprise in the rel....
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.... be in the affirmative. Closer home in the facts we find that Section 19(4)(g) declares that "monopoly" or "dominant position", whether acquired as a result of the Statute or by virtue of being a Government Company or a Public Sector Undertaking or otherwise, is to be a relevant factor. We will at once notice that this is a clear indication that far from excluding governmental bodies like a government company, a public sector undertaking or a body under a Statute from the purview of the Act, the lawgiver has evinced its intention to include government companies, public sector companies and bodies acquired under a Statute within the ambit of the Act. Now, we proceed on the basis that the appellant is a monopoly. Further that it is a government company within the meaning of Section 5 of the Nationalisation Act. The interplay of Sections 3, 5 and 11 of the Nationalisation Act has the said inevitable effect. A monopoly position under Section 19 (4)(g) is treated essentially as being in the league of a dominant position. 87. But does the inquiry end on an enterprise answering the description of a monopoly or having a dominant position pertinent to Section 19(4)(g)? In a given case, i....
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....e CCI may thereafter decide to close the matter after considering the objections or it may order further investigation or further inquiry by the Director General. The CCI may itself proceed with the further inquiry. Under Section 26(8), if the recommendation by the Director General points to contravention of any of the provisions of the Act, and the CCI is of the opinion that further inquiry is to be held, it must hold an inquiry. Section 27 speaks about the orders that may be passed in the case of anti-competitive agreements and abuse of dominant position. The orders which may be passed include a direction to discontinue abuse of dominant position as found in the case of abuse of dominant position. The CCI may impose penalty as provided therein. It can direct modification of the agreement. It can also direct the enterprise to abide by the orders that the CCI may pass. It has a residuary power to pass any other order as is deemed fit. Section 28, no doubt, contemplates a division. Section 31 deals with orders that may be passed on certain combinations. Chapter V deals with the duty of the Director General. The Director General is provided with powers available to the CCI under Sect....
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.... question as to whether Section 4(2), which declares that there shall be an abuse of dominant position, if the facts attract Clauses (a) to (e), is a species of a genus, which genus is contained in Section 4(1). In other words, is Section 4(2) exhaustive of abuse of dominant position prohibited under Section 4(1) or is it only illustrative of what can constitute abuse of dominant position? The learned Additional Solicitor General would submit that this question may not be gone into in the facts of this case. We agree with his request. 92. Dealing with what would indeed constitute abuse of dominant position as declared imperatively in Section 4(2), if we take Section 4(2)(a), it forbids imposing of unfair or discriminatory condition in purchase or sale of goods and services either directly or indirectly. It further likewise forbids an imposition of an unfair or discriminatory price in purchase or sale including a predatory price of goods or service. The explanation indicates that discriminatory conditions or prices, which may be adopted to meet competition, is not within the scope of the mischief. Next, under Section 4(2)(b), the Law-Giver has proclaimed that there will be abuse ....
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....pellant company which is the product of the Nationalisation Act, a monopoly under the same and obliged to observe the mandate of Article 39(b) achieve its undoubted goal or perform its unquestionable duty under law. The answer of the respondents is that questions are being raised in the abstract. The Act overrides all laws to the extent of their inconsistency with the Act. It is also contended that as far as the question relating to compliance with Presidential Directives is concerned, if there is a bona fide adherence to Presidential Directives, it may pass muster. In fact, Shri Matrugupta Mishra, learned Counsel, would point out that it is his complaint that the appellant is not even following the Presidential Directives. The respondents would point out that questions are being raised in the air without there being foundation on facts. Next, coming to the placing of restrictions or limits on the production of a mineral like coal, there may be Doctrines like Public Trust and Intergenerational Equity. 94. The State and its agencies may have to put a cap on production of vital resources if they are not inexhaustible. A question may be raised if a bona fide decision is taken by th....
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.... of people. The meaning of the words 'common good' may depend upon the times, the felt necessities, the direction that the Nation wishes to take in the future, the socio-economic condition of the different classes, the legal and Fundamental Rights and also the Directive Principles themselves. As far as the time dictated content of common good goes, it simply means that 'economics' itself not being bound in chains, but it is a dynamic concept. The attainment of common good would be dependent on the appreciation and understanding of a generation as to how economic common good is best achieved. The debate between the advantages and disadvantages of pursuing the policy of State intervention in economic policy which emasculates private enterprise and competition has almost reached its end. The advantages of a fearlessly competitive economy have been realized by the Nation. There is a backdrop to it. In the year 1991, the Nation was in a manner of speaking compelled to revisit its economic policy having regard to the precarious condition of its foreign exchange reserves. The permit raj, which involved acute regulation of economic activity by the State with all its attendant evils, cried ....
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....expressly covered within the expression 'enterprise' under the Act. No doubt, Departments discharging sovereign functions are excluded but save those Government departments which are excluded, the Government Departments being State, are equally obliged to bear in mind the Directive Principles. The radical nature of the law contained in the Act has made a perceptible departure from the erstwhile law contained in the MRTP Act. We have noticed Section 3 of the MRTP Act, which sought to protect Government entities, as provided therein, from the reach of the MRTP Act. The fact that Government Departments, which follow policies of the Government, are expected to comply with the Act, has a deep impact on the contentions of the appellant that they are outside of the purview of the Act. It would involve elevating the appellants to a status above that of a Government Department to approve of the argument that Article 39(b), would allow the appellants to resist action under the Act, when it does not allow the Government Department, under which, in fact, the appellants operate to do so. 99. What actually Article 31B and Article 31C purport to provide for is constitutional immunity for the l....
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.... other debts including debts due to a Bank which was found to be falling under the category of a secured creditor. It is in the context of the statutes and the object sought to be achieved that this Court held that a non-obstante clause contained in the later Act, viz., the Companies Act, 1956, would not prevail. This Court held, in paragraphs-42 and 44, as follows: "42. The argument of Shri Gaurav Agrawal that the non obstante clause contained in the subsequent legislation i.e. Section 529-A(1) of the Companies Act should prevail over similar clause contained in an earlier legislation i.e. Section 11(2) of the EPF Act sounds attractive, but if the two provisions are read in the light of the objects sought to be achieved by the legislature by enacting the same, it is not possible to agree with the learned counsel. As noted earlier, the object of the amendment made in the EPF Act by Act 40 of 1973 was to treat the dues payable by the employer as first charge on the assets of the establishment and to ensure that the same are recovered in priority to other debts. As against this, the amendments made in the Companies Act in 1985 are intended to create a charge pari passu in fa....
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....rective principles of State policy provide for a guidance to interpretation of fundamental rights of a citizen as also the statutory rights. 109. 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." 106. In paragraph-111, the Court, inter alia, held as follows: "111. The State when it exercises its power of price fixation in relation to an essential commodity, has a different role to play. Object of such pric....
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....re should not be taken to lay down a law that the Central Government and for that matter the coal companies cannot change their policy decision. They evidently can; but therefor there should be a public interest as contradistinguished from a mere profit motive. Any change in the policy decision for cogent and valid reasons is acceptable in law; but such a change must take place only when it is necessary, and upon undertaking of an exercise of separating the genuine consumers of coal from the rest. If the coal companies intend to take any measure they may be free to do so. But the same must satisfy the requirements of constitutional as also the statutory schemes; even in relation to an existing scheme e.g. Open Sales Schemes, indisputably the coal companies would be at liberty to formulate the new policy which would meet the changed situation. E-advertisement or e-tender would be welcome but then therefor a greater transparency should be maintained. 113. The appellants rely upon the judgment of this Court in State of Tamil Nadu and Others v. L. Abu Kavur Bai and Others (1984) 1 SCC 515 for the proposition that the scheme of monopoly or nationalisation subserves public good. In th....
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....edly, succeeded in subserving. We see no reason to hold that a State Monopoly being run through the medium of a Government Company, even for attaining the goals in the Directive Principles, will go outside the purview of the Act. 118. We have projected some of the concerns of the appellants in the matter of the appellants being disabled to put up a justifiable defense under Section 4 of the Act. 119. It is true that the actions of the appellants can be challenged in proceedings in judicial review as contended by the appellants. Equally, the appellants are justified in pointing out as a matter of fact that there may be forums other than the CCI such as the Controller of Coal whereunder redress may be sought against action of the appellants. But that by itself, cannot result in denial of access to a party complaining of contravention of a law which is otherwise applicable. It must also be remembered that action can also be taken by the CCI suo motu. Such is the width of the power vouchsafed for the authority under the Act. 120. We would only clarify that it will be open to the appellant as the State monopoly to take up all contentions to demonstrate that there is no abuse of....
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....(Amendment) Act, 2007] (e) the formation or winding up of an enterprise or the amendment of the memorandum of association or articles of association or any other instruments regulating the business of any enterprise; (f) the extent to which, and the circumstances in which, provisions of the order affecting an enterprise may be altered by the enterprise and the registration thereof; (g) any other matter which may be necessary to give effect to the division of the enterprise. (3) Notwithstanding anything contained in any other law for the time being in force or in any contract or in any memorandum or articles of association, an officer of a company who ceases to hold office as such in consequence of the division of an enterprise shall not be entitled to claim any compensation for such cesser." 122. It is, undoubtedly, true that there has been a vesting of rights in regard to the mines under the Nationalisation Act. Still further, there has been a vesting under Section 5 of the Nationalisation Act of the rights of the lessee in the first appellant. Under Section 11 of the Nationalisation Act, the power of general superintendence, direction, control and management of the vested mind....