TaxTMI 
TaxTMI 
2024 (9) TMI 709
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....Haryana/R6 under Section 19(1)(b) of the Competition Act, 2002 (in short 'Act') as against JK Tyres & Industries Limited (in short 'JK Tyres'). An order came to be passed on 01.11.2019 by the Competition Commission of India (in short 'R1) directing investigation to be made into the matter and for submission of an investigation report within a period of 60 days from date of receipt of that order. 3. It is notable that only JK Tyres was arrayed as opposite party in that reference. The reference was made based on the following factual pattern. R6 had invited online tenders on 21.09.2018 for purchase of new steel radial tyres of different sizes and specifications. The tyre sets were required at 25 different destinations to replace worn-out tyres on the buses run by Haryana Roadways. There was only one bidder, i.e., JK Tyres. Technical and financial scrutiny was conducted and the matter was thereafter referred to the High Power Purchase Committee (in short, HPPC) since the procurement value exceeded a sum of Rs.1.00 crore. 4. In the meeting held on 13.11.2018, it was felt that the rates quoted by JK Tyres were considerably higher than the last purchase rates. The ensuing negotiations ....
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....s as a third party. The petitioner states specifically that a request had been made seeking a copy of order dated 01.11.2019 which had been rejected by the authority on the ground that the petitioner was not entitled to the same as it its status in the proceedings was only as a third party. This has not been denied either in subsequent communications from the respondents or before me. 11. The authority has itself drawn a categoric distinction between a 'party' to the proceedings and a mere participant, being a 'third party' and this distinction thus, assumes relevance. The clear and apparent inference that I draw is that the two are not to be treated on par with each other. A participant/third party is treated on a far lower threashold when compared with a 'party' to the proceedings, as can be seen from the rejection of the petitioner's request for a copy of the order of reference stating that it is not entitled to the same. 12. Thereafter, communications were exchanged inter se the parties, culminating in order dated 26.08.2020, impugned in W.P.No.6502 of 2024. That order reads thus: 'ORDER 1. In this matter, the Commission vide order dated 01.11.2019 passed under Section 26(....
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.... Mr. AL.Somayaji, learned Senior Counsel appearing for M/s.King & Patridge, learned counsel on record for the petitioner and Mr. N.Venkatraman, learned Additional Solicitor General, assisted by Mr. R.Thirunavukkarasu, learned Central Government Standing Counsel for R1 to R5. No notice has been issued to R6. 17. The first issue that arises for consideration is as to whether the challenge to orders dated 01.11.2019 and 26.08.2020 are belated and whether the Writ Petitions suffer from laches. 18. I am of the view that there is no delay in filing of these Writ Petitions, since one of the impugned orders have been provided to the petitioner only very proximate to the filing of the Writ Petitions. A copy of order dated 01.11.2019 was supplied to the petitioner under cover of letter dated 14.09.2020. At that juncture, the stand of the respondents had been that the role of the petitioner as a participant was only in the capacity of a 'third party'. 19. Since a copy of order dated 26.08.2020 has been supplied only on 01.03.2024, the petitioner was unaware that the furnishing of order dated 01.11.2019 was on account of the upgradation of its status. Thus, the participation of the peti....
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.... as to the measures available to it under the law. 25. Section 2 of the Act defines various terms. When notified on 31.03.2003, there was no definition for the term 'party', despite the term finding place in Sections 4, 5 and 26 dealing with 'abuse of dominant position', 'combination' and 'procedure for inquiry'. 26. The Competition Commission of India (General) Regulations, 2009 (in short 'General Regulations'), notified on 21.05.2009 define the term 'party' as including a consumer or an enterprise or a person defined in clauses (f), (h) and (l) of section 2 of the Act respectively, or an information provider, or a consumer association or a trade association or the Director General de- fined in clause (g) of section 2 of the Act, or the Central Government or any State Government or any statutory authority, as the case may be, and shall in- clude an enterprise against whom any inquiry or proceeding is instituted and shall also include any person permitted to join the proceedings or an inter-vener. 27. The Competition Law Review Committee had been constituted to review the Competition Law framework and in its report submitted on 26.07.2019 suggested that the term 'party' be defin....
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....rasim Industries 3265 2019 DLT 535. The judgements are prior to the amendment in 2023 inserting a specific definition for the word 'party'. That apart, the impact that such upgradation has on a party must also be considered. 31. There are serious consequences to an order passed by the Commission under Section 27 of the Act whereunder it may direct any enterprise found guilty of abuse of dominant position, to discontinue from, and not re-enter such agreement. It may also impose penalties as it may deem fit, upto 10% of the average turnover or income for the last three preceding financial years when the entity is found to have abused its dominant position. 32. There are several provisions in the Act that use the term 'party' or 'parties' that ought not to stand attracted in the case of a mere participant. The Act addresses violations by a 'party'/'opposite party' only, and nowhere is there any indication that the consequences for violations would stand attracted in the case of an entity other than a party to the proceedings. 33. The Act is divided into nine Chapters. Chapter II entitled 'Prohibition of Certain Agreements, Abuse of Dominant Position and Regulation of Combinations' ....
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.... the report u/s 26(3) has not been furnished to the petitioner, it is clear that it is still being treated on par with a third party to the proceedings. This is despite the updation in status exparte to contesting party, under order dated 26.08.2020 furnished to the petitioner in 2024. 40. Neither Section 41 nor Section 26(4) elaborate on the procedure to be followed when a third party is escalated to the position of contesting/opposite party. However it is clear that this escalation is triggered by virtue of the reports of the DG under Section (3) and (3B). 41. If the reports under Section (3) and (3B) contain recommendations that there is no contravention of the statutory provision, the Commission, under sub-section(5), shall invite objections or suggestions from the concerned Government. On consideration of the objections as well as suggestions of the concerned Government, the Commission could close the matter if it agrees with the recommendations of the DG. 42. If the objections/suggestions of the Government are contrary to the reports of the DG and if the Commission concurs, it may direct further investigation into the matter. If on the other hand, the reports under sub-sec....