TaxTMI 
TaxTMI 
2023 (10) TMI 485
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....sion of India & Anr. Indian Sugar Mills Association Versus Competition Commission of India & Ors. The Seksaria Biswan Sugar Factory Ltd. Versus Competition Commission of India & Anr. Simbhaoli Sugar Ltd. Versus Competition Commission of India & Ors. Shree Kamrej Vibhag Sahakari Khand Udoyg Mandali Ltd. Versus Competition Commission of India & Ors. Sahakari Khand Udoyg Mandal Ltd. Versus Competition Commission of India & Ors. Shree Ganesh Khand Udoyg Sahakari Mandli Ltd. Versus Competition Commission of India & Ors. Shree Mahuva Pradesh Sahakari Khand Udoyg Mandali Ltd. Versus Competition Commission of India & Ors. Sri Sarvaraya Sugars Ltd. & Ors. Versus Competition Commission of India & Ors. ( Justice Rakesh Kumar ] Member ( Judicial ) And [ Dr. Alok Srivastava ] Member ( Technical ) For the Appellant: Mr. Gautam Shahi , Mr. Narinder Kr. Verma , Advocates For the Respondents : Mr. Udayan Jain , Mr. Raj Surana, Advocates for R-1/CCI Mr. Sridhar Potaraju, Ms. Ankita Sharma, Mr. Aayush, Mr. Rajat Srivastava, Ms. Zeba Zoariah, Advocates Ms. Shama Nargis, Dy Director (Law) CCI JUDGMENT [ Per : Dr. Alok Srivastava , Member ( Technical ) ] 1. The ....
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.... for ready reference:- "In the aforesaid batch of appeals hearing has already commenced. In one of the Competition Appeal (AT) No.91/2018. Mr. Dabol Banerjee, learned senior counsel has concluded his arguments on 12.05.2023 and batch of appeals were directed to be listed today (15.5.2023). Mr. M.M. Sharma, learned counsel appearing on behalf of appellant in Competition Appeal (AT) No.93 & 98 of 2018 submitted that the order impugned is liable to be set aside and remitted back to CCI in view of the fact that the CCI had heard the cases by five Members, however, judgement was delivered by only three Members. In such situation it would be necessary to ask Mr. Udayan Jain, learned counsel appearing on behalf of CCI to produce the original record particularly the original order sheet maintained by the CCI to verify whether the contention raised by Mr. Sharma is correct or not. As requested by learned counsel for the parties list this case under the same caption on 1st August, 2023 on top of the list. In the meanwhile, learned counsel for the parties are permitted to file Notes of Written submissions only on aforesaid point alongwith compilation of jud....
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....petition Appeal (AT) No.7/2019 and Competition Appeal (AT) No.8/2019 was heard in reply. Finally, the learned senior counsel/counsels of the Appellants as mentioned above were heard in rejoinder. 7. We are of the view that if the contention of the Appellants regarding non-adherence to the principle of natural justice in the hearings and passing of the Impugned Order is held to be correct, it would render the Impugned Order infirm, and therefore null and void, and it may not then be necessary to hear the case on merits. 8. In brief, the case leading up to these appeals is as follows:- An order dated 18.9.2018 was passed by the Learned Competition Commission of India under section 27 of the Competition Act, 2002 imposing penalties on some ethanol producers after finding them guilty of allegations of bid-rigging and cartelization, which was done without defining the 'relevant market' and on the basis of sketchy evidence. As a result, the appellants filed appeals under selection 53(B) of the competition Act challenging the common order dated 18.9.2018, whereby they have been found guilty in indulging in rigging and cartelization and imposed penalties on the Appellants individu....
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....ing Interim Order) and Regulation 32 (regarding Final Order). He has laid special emphasis on Regulation 32, which stipulates that every order of the Commission shall be signed and dated by the members, which may include a dissent note by the dissenting member, if such a situation arises, and also that the Commission, insofar as it is practicable should pass the final order within 21 working days from the date of conclusion of final arguments. He has also submitted that once the CCI, in its meeting held on 30.10.2017, decided to direct the DG to furnish a 'Supplementary Investigation Report' with regard to tender process and the analysis for the State of Maharashtra, and when such a report was submitted and considered by the CCI in its meeting held on 7.6.2018, the CCI should have provided an opportunity for oral hearing to the parties, and since such opportunity was not provided to the parties, it has resulted in denial of natural justice to the Appellants, which made the order so passed non est in law. 12. Mr. M.M. Sharma, Learned Counsel for Appellant has referred to the judgment of the Hon'ble Delhi High Court in the matter of Mahindra Electric Mobility Limited and Anr. V. C....
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....ly with reference to depots in Uttar Pradesh only, directed the DG to submit a supplementary investigation report in respect of the depots in the State of Maharashtra too. He has further submitted that the CCI, in order dated 7.6.2018, considered the 'Supplementary Investigation Report' and after careful consideration decided to furnish an electronic copy of the Supplementary Investigation Report to the parties to file their objections/suggestions thereon. 15. Mr. M.M. Sharma has argued that after submission of the Supplementary Investigation Report and supply of its copy to the parties concerned, it was incumbent on the CCI to have provided an opportunity of oral hearing to the parties as the Supplementary Investigation Report was like an extension of the preliminary investigation, and at the stage of submission and consideration of first investigation report the parties had been afforded an opportunity to present oral arguments. He has thus contended that CCI failed to adhere to the principle of natural justice as is required under section 36 of the Competition Act, 2002 while considering the Supplementary Investigation Report and therefore, the procedure followed while passin....
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....ote should also be added under her/his signature. Further, he has argued that sub-regulation (2) of regulation 32 requires that every order or decision of the Commission to be made within 21 working days from the date of conclusion of final arguments and in the present case, Regulation 32 has not been followed. Furthermore, the Impugned Order was passed by the Commission on 18.9.2018, after almost 13 months from 28.2.2017, when the hearing in the case was concluded and it was reserved for order. Such an inordinate delay in passing the order made it inform as the members would not be able to recall all the oral arguments from their memory and further due to passage of time some members retired which meant that the order was passed by only three members as against five members who heard the case on all the dates, which made the order non est due to such basic infirmities. 18. Mr. Anil Kumar Mishra, Learned Counsel for the Appellant Sir Shadi Lal Enterprises in Competition Appeal (AT) No. 101/2018 has argued that section 36 of the Competition Act requires that the CCI, in discharge of its functions, shall be guided by the principle of natural justice and therefore, each and every p....
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....red to the judgment of the Hon'ble Appellate Tribunal for Electricity (APTEL) in the matter of Damodar Valley Corporation vs. Central Electricity Regulatory Commission through the Secretary & Ors.[2019 SCC Online APTEL 40) to point out that in a matter under consideration, the Impugned Order passed after a lapse of two years and three months which was signed by only three members out of four who had heard and considered the entire matter, made such an order unsustainable in the eyes of law. He has pointed out that Hon'ble APTEL has held that in doing so, the Central Electricity Regulatory Commission had violated Regulation 62 Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 and, therefore, its order was found to be non est in law. 20. The Learned Counsel Mr. Potaraju has also cited the judgment of the Hon'ble Supreme Court in the matter of Dakshin Haryana Bijli Vitran Nigam Limited vs. Navigant Technologies Private Limited [(2021) 7 Supreme Court Cases 657], wherein the importance and necessity of recording dissenting opinion in a case has been recognized in case there is a dissenting opinion. He has thus contended that if all the members, who he....
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....ompetition Appeal (AT) No.99 of 2018 has adverted to Regulation 3-A, which was included in the CCI (Meeting for Transaction of Business) Regulations, 2009 vide notification dated 2.3.2021, to agree that it is clarificatory in nature and it will, therefore, have retrospective application and effect. Expanding on this argument, he has pointed out that clause (e) of sub regulation (5) of the Regulation 3 of the CCI (Meeting for Transaction of Business) Regulations, 2009 has been merely clarified through Regulation 3-A. He has referred to the judgment of the Hon'ble Supreme Court in the matter of Zile Singh vs. State of Haryana and Ors. [(2004) 8 Supreme Court Cases 1], wherein it is held that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. He has also referred to the judgment of the Hon'ble Supreme Court in the matter of Commissioner of Income-Tax (Central)-I, New Delhi vs. Vatika Township Private Limited, wherein it is held that unless a contrary intention is apparent, a legislation is presumed to not have retrospective operation, and also the dictum that where a law is enacted for the benefit of community as a whole,....
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....when the Impugned Order was passed on 18.9.2018, only three members, namely, Mr. Sudhir Mital, Chairperson, Mr. U.C. Nahta, Member and Mr. Augustine Peter, Member were present and available to sign, authenticate and pronounce the final Order. 26. The Learned Counsel Mr. Udayan Jain has cited the judgment of Hon'ble Supreme Court in the matter of Competition Commission of India v. Steel Authority of India Ltd & Anr. [(2010) 10 SC 744] to contend that there is no straightjacket formula that can be applied while examining whether the principle of natural justice has been followed and in case no prejudice has been caused to the delinquent party, the principle of natural justice is understood to be complied with. He has also cited the judgment of Hon'ble Supreme Court in the matter of State of U.P. vs. Sudhir Kumar Singh & Ors, [2020 SCC OnLine 847], wherein the Hon'ble Supreme Court has held that regarding the doctrine of audi alteram partem, a clear distinction has been made between cases where there was no hearing at all and those where there was mere technical infringement of the principle of natural justice. He has contended that the application of principle of natural justice i....
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....ep and intensive appreciation of facts would require time in formulating the judgment. 30. Mr. Udayan Jain, Learned Counsel for Respondent CCI has also referred to the judgment of Hon'ble Delhi High Court in the matter of Mahindra Electric Mobility Limited and Anr. V. Competition Commission of India and Anr., 2019 SCC OnLine Del 8032, wherein after noticing the 'coram' of bench hearing the case, the Hon'ble Delhi High Court has held that if the body comprises of one or several members, it is a necessary corollary that only those who hear should decide. Taking cue from this judgment, Mr. Udayan Jain has argued that when some members who heard the case of sugar mills had retired, the order could only be passed and signed by the members who continued in office and on this account the Impugned Order cannot be said to be invalid. 31. Mr. Udayan Jain, Learned Counsel for Respondents has also cited the judgment of the Hon'ble COMPAT in the matter of Lafarge India Limited, Crescenzo Bldg v. Competition Commission of India and Another, 2015 SCC Online Comp AT 1120 to argue that the principle of 'one who hears must decide' was considered in the judgment and after adverting to the Hon'b....
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....(Meeting for Transaction of Business) Regulations, 2009 and, therefore, it cannot be taken as clarificatory and may not be applied retrospectively. 35. The learned Counsel for CCI Mr. Udayan Jain has referred to the procedure for inquiry set out in section 26 of the Competition Act to point out that under sub-section 5, the Competition Commission on a finding in the report of DG that there is no contravention of the provisions of the Competition Act, shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the DG and after consideration of the objections or suggestions obtained in accordance with sub-section 5, if it agrees with the recommendations of the DG, it shall close the matter and pass necessary orders. He has also pointed out that sub-section 7 of section 26 provides power to the Competition Commission to call for further investigation by the DG, if it forms an opinion that further investigation is required. He has further referred to Regulation 21 of the CCI (General) Regulations, 2009 to expand the procedure for enquiry under section 26 of the C....
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....sed to the Appellants by alleged non-adherence to the principle of natural justice in oral hearings and claimed that in the appeals under consideration, no prejudice is apparently caused to the Appellants, even if there was a technical deficiency in the pronouncement of judgment by a body of members consisting of fewer members than the number that heard the case. He has further pointed to Regulation 3(5) (c) of the CCI (Meeting for Transaction of Business) Regulations, 2009 to claim that the CCI may grant an opportunity to the parties to present their case, but it is not obligatory to do so. He has further contended that the judgment in the matter of Mahindra Electric Mobility Ltd. vs. CCI (supra) has held that "revolving door" policy is a valid policy, and therefore, absence of some members in certain hearings by the Competition Commission or in the signing or pronouncement of order will not invalidate the proceedings or the order. He has further argued that in the same judgment, Hon'ble Delhi High Court has held that the absence of some members in certain hearings, and the issue of hearing by a larger body but decision by a similar number may lead to an undesirable situation, but....
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....he Chairperson cannot claim to authenticate an order on behalf of all the members by merely putting his signature on every page of the order. 40. Mr. Gautam Shahi, Advocate for the Appellant Balrampur Chini Mills Ltd. has cited judgments in the matters of Global Energy Pvt. Ltd. vs. Karnataka Electricity Regulatory Commission (2016 SCC Online APTEL 118), Damodar Valley Corporation vs. Central Electricity Regulatory Commission through the Secretary & Ors. (supra) and Mahanagar Gas Limited vs. Petroleum and Natural Gas Regulatory Board (Appeal No. 110 of 2020 in the Appellate Tribunal for Electricity) to contend that all these judgments of Hon'ble APTEL are very clear that when a larger body heard a case, but the order was either passed by a smaller body or a member did not sign the order, the order stood vitiated. 41. Mr. Anil Kumar Mishra, Learned Counsel for Appellant Sir Shadi Lal Enterprises (in Competition Appeal (AT) No. 101 of 2018) has reiterated in rejoinder when a procedure has been prescribed explicitly in the statute, it should have been followed and further that Mahanagar Gas Limited vs. Petroleum and Natural Gas Regulatory Board (supra) judgment does not support ....
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....n Commission should have provided an opportunity of oral hearing to the parties while considering the Supplementary Investigation Report of the DG, and also at the stage of imposition of penalty under section 27 of the Competition Act the Competition Commission was required to provide an opportunity of oral hearing to the Opposite Parties regarding the quantum of penalty. 45. For better appreciation of the issues in the light of legal provisions, pleadings, and oral arguments, we reproduce the following provisions of the Competition Act and Regulations made therein hereunder:- THE COMPETITION ACT, 2002 "7. Establishment of Commission (1) With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called the "Competition Commission of India". (2) The Commission shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued. (3) ....
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....r any of the following factors, namely:- (a) market share of the enterprise; (b) size and resources of the enterprise; (c) size and importance of the competitors; (d) economic power of the enterprise including commercial advantages over competitors; (e) vertical integration of the enterprises or sale or service network of such enterprises; (f) dependence of consumers on the enterprise; (g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise; (h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers; (i) countervailing buying power; (j) market structure and size of market; (k)social obligations and social costs; (l) relative advantage, by way of contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition; (m) any other factor which the Commission may consider relevant for the inquiry. (5) F....
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....y, the Commission shall forward a copy of the report referred to in sub- section (3) to the Central Government or the State Government or the statutory authority, as the case may be. (5) If the report of the Director General referred to in sub-section (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the Director General. (6) If, after consideration of the objections and suggestions referred to in sub section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (7) If, after consideration of the objections or suggestions referred to in sub section (5), if any, the Commission is of the opinion that further investigations is called for, it may direct further investigation in the matter by ....
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.... obtained a certificate of practice under sub- section (1) of section 6 of that Act; (d) "legal practitioner" means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice. 36. Power of Commission to regulate its own procedure - (1) In the discharge of its functions, the Commission shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Commission shall have the powers to regulate its own procedure. (2) The Commission shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses or documents; (e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian E....
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....h the provisions of section 35 of the Act. xx xx xx xx 29. Manner of making submissions or arguments by parties before Commission. (1) Without prejudice to sub-section (1) of section 36 of the Act, the parties to the proceedings or their authorized representatives, as the case may be, shall declare to the Commission at the earliest opportunity whether they would make oral submissions or file written arguments during the course of an inquiry under section 26 of the Act: (2) Subject to sub-regulation (1), the Commission may fix or limit the time during which the oral submissions or written arguments shall be addressed or filed by the parties or their authorized representatives, as the case may be, before it and may proceed to decide a matter in the absence of the party which does not abide by such timings as per regulation 30. xx xx xx xx 32. Final order. - (1) Every order of the Commission shall be signed and dated by the Members including a dissenting note by the dissenting Member, if that be the case. (2) Every order or decision of the Commission shall, as far as practicable, be made within twenty-one working days from....
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....thereto of the other parties to the proceeding. The Commission may also grant oral hearing to any party if it deems necessary; (d) the Commission may, for reasons to be recorded in writing, adjourn the meeting; (e) any Member unable to be present in a meeting for any reason, may if feasible, choose to participate in the said meeting, through video conferencing and this shall be considered as attendance by the Member for the purpose of casting vote during the meeting; (f) subject to sub-regulation (4), the Commission shall hold, as far as practicable, an ordinary meeting once every month to review compliance of its orders and the Secretary shall report all matters of non-compliance for information or for further orders of the Commission, as the case may be; (g) the proceedings of each ordinary meeting of the Commission shall be recorded under the superintendence and guidance of the Secretary or by any other officer authorized by the Chairperson. The minutes of each matter taken up during an ordinary meeting shall be given continuous serial number for a particular financial year. 3-A. Coram for meetings of Commission- (1) Subject to the pr....
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.... justice. The principle of natural justice is embedded in clauses (c) and (e) of sub-regulation (5) of Regulation 3 of the CCI (Meeting for Transaction of Business) Regulations, 2009 whereby the opportunity of filing written submission and presenting oral arguments may be afforded to the parties. 48. The Learned Counsels for Appellants have referred to Regulation 3-A of the CCI (Meeting for Transaction of Business) Regulations, 2009 to claim that once the Competition Commission sets down a case for final hearing after completion of pleadings, then during hearings, 'coram' of the Commission should remain constant and such 'coram' alone would continue to hear the arguments and take part in the proceedings on all hearing dates, and would write, sign and deliver the final order. They have argued that in the light of the provision of Regulation 3-A, which though inserted in the Regulations by virtue of notification no. R-40007/6/Reg-meeting/noti./2021-CCI dated 2.3.2021 which became effective from 3.3.2021, has retrospective operation, and therefore, the Impugned Judgment suffers from the lacuna that the same 'coram' did not hear the matter on all the dates and the final order was no....
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....8.. ...In our opinion the position here clearly is that the responsibility to work and decide being the joint responsibility of all the three Members, if proceedings are conducted and discussions on several general issues took place in the presence of only two, followed by an award made by three, the question goes to the root of the jurisdiction of the Tribunal and is not a matter of irregularity in the conduct of those proceedings. The absence of a condition necessary to found the jurisdiction to make the award or give a decision deprives the award or decision of any conclusive effect ..." "32. On the admitted principle that the work of the Tribunal, which is of a quasi-judicial nature, is one of joint responsibility of all its Members, ..." [ Emphasis Supplied ] 51. Further, the judgment in the matter of Gullapali Nageswara Rao etc. v. State of Andhra Pradesh and Others (supra) has also been cited where Hon'ble Supreme Court has ruled that 'a person who hears must decide' and that divided responsibility is destructive of the concept of judicial hearing. 52. In the matter of Mahindra Electric Mobility Limited and Anr. V. Competition Commission of India and ....
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....ings are held only before that bench, and not before the bench of three judges even if both the original members of the bench are also part of the three judge bench. The invariable practice of the courts, which also ought to be followed by the CCI, is that the bench which hears the matter decides it, and that every member who participates in the hearing, is also party to the final decision." [Emphasis Supplied] 53. We also take note of the following two judgments of Hon'ble Appellate Tribunal for Electricity ("APTEL"), wherein on similar set of facts, the following conclusions were drawn by Hon'ble APTEL:- a. In Global Energy Private Limited v. Karnataka Electricity Regulatory Commission & Ors; 2016 SCC OnLine APTEL 118, while three (3) members of the State Electricity Commission heard the matter, the final order was signed only by two (2) members. The Hon'ble APTEL held as under: "22... the work of the Commission which is of a quasi-judicial nature is one of joint responsibility of all Members. The Commission as a body should sit together and the order of the Commission has to be the result of the joint deliberations of all Members of the Commission act....
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....l sign the order which is mandatory in nature. There is no saving clause as such to the fact that what is sufficed to sign the Impugned Orders. Therefore, we are of the considered view that there is substance in the submissions made by the learned senior counsel appearing for the Appellant and we do not find substance in the submissions made by the learned senior counsel for the Respondents." 54. It is correct that when the final judgment/order in the present matter was passed by the Competition Commission on 18.9.2018, Mr. S.L. Bunker, Member and Mr. D.K. Sikri (Chairperson) had retired and therefore, it was not possible for them to sign and authenticate the Impugned Order, and in such a situation, only Mr. Sudhir Mital, Chairperson, Mr. U.C. Nahta, Member and Mr. Augustine Peter, Member signed the Impugned Order. It is noted that Justice G.P. Mittal, who was a member on 18.9.2018 (the date of the Impugned Order), did not sign and authenticate the Impugned Order. It is noted that Justice G.P. Mittal did not hear the case from 2.8.2017 onwards, and so we may assume that since he did not hear the case in full, he did not participate in decision making and sign and authenticate th....
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....f would go against the principle of natural justice because 'justice must not only be done, but also appear to have been done.' 59. The understanding of the Learned Counsel of Respondent that Mahindra Electric Mobility Limited & Anr. V CCI & Anr. (supra) judgement accepts the validity of a situation when some member may have participated in some hearings, but not signed the final judgment would lend support to his contention about the legality of the order in the present case, in our opinion is not the correct understanding. In this connection, for better appreciation we reproduce the relevant paragraphs of this judgment as below:- "163. There can be no two opinions about the impropriety of a decision which is contrary to the principle that a tribunal or adjudicatory body is bound to render its decision, after hearing the parties; if the body comprises of one or several members, it is a necessary corollary that only those who hear should decide. The decisions of the Supreme Court in Guttapalli Nageswara Rao (supra); Union of India v. Shiv Raj (2014) 6 SCC 564 establish this rule. The ratio of these judgments is that one who hears must decide and violation of this rule w....
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....ion 22(3) permits the possibility of the "revolving door" in the opinion of the court, does not result in its invalidity. It is well settled that the possibility of abuse of power is not a ground to hold the law, or provision of a law, arbitrary. In Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281 it was observed as follows: "11. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done "not with an evil eye and unequal hand" (see: A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer) (1956) 29 ITR 349 (SC). 177. Having so concluded, this Court is nevertheless of the opinion that a hearing by a larger body and decision by a smaller number (for compelling reasons or otherwise) does lead to undesirable and perhaps at times avoidable situations. To address this, the court hereby directs that when all evidence (ie. report, its objections/affidavits etc.) are completed, the CCI should set down the case for final hearing. At the next stage, when heari....
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....f ratio Mahindra Electric Mobility Limited & Anr. V CCI & Anr. judgment. 61. We note that Hon'ble Supreme Court has held in the matter of Ram Bali v. State of U.P., [(2004) 10 SCC 598] regarding the desirability of timely delivery of judgments. The relevant part of the judgment is reproduced hereunder:- "18. We also find that the plea of delayed delivery of judgment and the same rendering it vulnerable is without any substance. In Anil Rai case this Court has only stressed upon the desirability of early delivery of judgments. In fact, the judgment impugned before this Court in the said case was not set aside on the ground of delayed delivery of judgment and was dealt on merits. In paras 10 and 45 of the judgment this Court had indicated options to a party in case judgment is not delivered for a considerably long time. We are unable to appreciate that any detriment as such was caused to the appellant on that account alone, on the peculiar facts of the case, as well." 62. We further note that the Hon'ble Supreme court has held in the matter of the Anil Rai vs. State of Bihar (supra) the guiding principles regarding timely pronouncement of judgment, which is as hereunde....
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....dgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays. (v) If the judgment, for any reason, is not pronounced within a period of six months, any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances. (Emphasis Supplied) 63. From the above-stated two judgments in matters of Anil Rai vs. State of Bihar (supra) and Ram Bali v. State of U.P. (supra), it is quite clear that the issue of delayed delivery/pronouncement of judgment is a serious issue on which Hon'ble Supreme Court had occasion to apply is mind. Regulation No. 32 of the CCI (Meeting for Transaction of Business) Regulations, 2009 also stipulates that the Competition Commission may deliver final judgment within 21 days from the date the Competition Commission reserved the matter for final judgment. Therefore, it is trite to infer that the matter....
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.... No. 103 of 2012), which, inter alia, referred to the Supreme Court judgment in the case of 'A.K. Kraipak v. Union of India' [(1969) 2 SCC 262], to claim that this violation was a fatal irregularity. Further, it was stated that in a case of similar irregularity, the King's Bench Division in the case of RV Sussex, [1924] 1 K.B. 256, had also set-aside the order under challenge with the following observation: "The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice." xx xx xx xx 17.2 We see no merit in the arguments of the Appellants. Vitiation of an Order on account of influence, based on the principle that 'one who hears must decide without any influence', requires possibility of influence by an interested person to the prejudice of the party challenging the Order. The Appellants in the present case have failed to establish any personal interest of the Chairman in the proceedings or how his presence in some deliberations and not being party to the Impugned Order,....
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.... "17. This Court in Gullapalli Nageswara Rao, held: (AIR p. 327, para 31) "31. ...Personal hearing enables the authority concerned to watch the demeanor of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes and empty formality. We therefore, hold that the said procedure followed in this case also offends another basic principle of judicial procedure." 18. This Court in Rasid Javed v. State of U.P. following the judgment in Gullapalli Nageswara Rao, held that : (Rasid Javed case, SCC p. 796 para 51): "51. "...a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing is too fundamental a proposition to be doubted." 19. A similar view has been reiterated by this Court in Automative Tyre Manufacturers Assn. v. Designated Authority, wherein this Court dealt with a case wherein the designated authority (DA) under the relevant statute passed the final order on the material collected by his predecessor-in-....
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....cannot sign on behalf of other members and while exercising judicial power, since all the members and the Chairperson act as "coordinates". 68. The judgment in Competition Commission of India v. Steel Authority of India Ltd & Anr. (supra), whose relevant portion is reproduced below, lays down that the right to notice and hearing may not be mandatory requirement:- "79. It is difficult to state as an absolute proposition of law that in all cases, at all stages and in all events the right to notice and hearing is a mandatory requirement of principles of natural justice. Furthermore, that non-compliance therewith, would always result in violation of fundamental requirements vitiating the entire proceedings. Different taws have provided for exclusion of principles of natural justice at different stages, particularly, at the initial stage of the proceedings and such laws have been upheld by this Court. Wherever, such exclusion is founded on larger public interest and is for compelling and valid reasons, the courts have declined to entertain such a challenge. It will always depend upon the nature of the proceedings, the grounds for invocation of such law and the requirement of....
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....refore, the ratio of the judgment in Cadd Systems & Services Private Ltd. v. Competition Commission of India (supra) would not be applicable in the facts of the present case when the smaller body of members signing the judgment was not due to any vacancy in the CCI from the very instant when the case was heard, but due to the following of a flawed procedure in hearings. 72. We are, therefore, of the view that the delay of about 13 months in the pronouncement of the Impugned Order so that only three members could sign and authenticate it instead of five members who heard the case on all the dates leads to two infirmities in the Impugned Order. The first infirmity that the same "coram" of members, who heard the matter, did not sign the order was a major infirmity. It was compounded by the fact that there was inordinate delay in the pronouncement of the final order. In such a situation, we are inclined to hold the opinion that the Impugned Order was not pronounced by following the spirit of the principle of natural justice as was required by section 36 of the Competition Act, 2002. 73. Another important issue raised by the Appellant is that when the Competition Commission consid....
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....matter by the DG, as was done by order dated 30.10.2017 of the Competition Commission. 75. In view of sub-section (5) of section 26, once supplementary investigation was ordered by the Competition Commission vide its order dated 30.10.2017, this Supplementary Investigation Report should have been examined and acted upon by following the procedure laid down in sub-section 5 of section 26. We further note that the procedure for inquiry under section 26 of the Act is etched out in Regulation 21 of the CCI(General) Regulations, 2009, wherein objections/suggestions from the opposite parties have to be invited in accordance with sub-regulations (2) and (4). On receipt of further investigation report, the Competition Commission shall invite further objections/suggestions from the relevant parties including the opposite parties. We further note that the manner of making submissions or arguments is laid down in Regulation 29 of the CCI (General) Regulations, whereby the requirement of providing opportunity for making oral submissions on written arguments is laid down. The requirement of adherence to the principle of natural justice as envisaged in section 36 of the Competition Act would ....
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....ng; (d) The parties should in all cases, at the final hearing stage, address arguments, taking into consideration the factors indicated in Excel Crop Care (supra) and any other relevant factors; they may also indicate in their written submissions, or separate note, of submissions, to the CCI, why penalty should not be awarded, and if awarded, what should be the mitigating factors and the quantum-without prejudice to their other submission." 77. Thus, Regulation 3-A was included in the CCI (Meeting for Transaction of Business) Regulations, 2009 after Hon'ble Delhi High Court had given a direction as above, where it had directed that "once final hearings in any complaint or batch of complaints begin, the membership should not vary-it should preferably be heard by a substantial number of 7 or at least, 5 members". We also note that this judgment of Hon'ble Delhi High Court was delivered in petition under Article 226 of the Constitution of India, whereby the petitioners had challenged the vires of some provisions of the Competition Act, 2002. We are of the opinion that it is not necessary to look at the issue of retrospective operation of Regulation 3-A, since in the presen....