2025 (6) TMI 601

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..... Geetika Vyas, Adv. Mr. Mukul Rohatgi, Sr. Adv. Mr. Huzefa Ahmadi, Sr. Adv. Mr. Vaibhav Gaggar, Sr. Adv. Mr. Sanjeev Sharma, Adv. Mr. Akshay Nanda, Adv. Ms. Sanya Sud, AOR Ms. Vaishali Goyal, Adv. Ms. Praniti Ganjoo, Adv. Mr. Aditye Arora, Adv. Mr. Keshav Sehgal, Adv. Ms. Monika Lakhanpal Gaggar, Adv. Mr. Mohit Rai, Adv. Ms. Hunar Malik, Adv. Mr. Ashray Chopra, Adv. Mr. Rohan Sharma, Adv. Ms. Rashmi Singh, Adv. Mr. Kanishka Pandey, Adv. For the Respondent : Dr. Abhishek Manu Singhvi, Sr. Adv. Mr. Mahesh Jethmalani, Sr. Adv. Mr. Ritin Rai, Sr. Adv. Mr. Abhimanyu Bhandari, Sr. Adv. Mr. Utsav Trivedi, Adv. Mr. Avishkar Singhvi, Adv. Ms. Unnati Agarwal, Adv. Ms. Manini Roy, Adv. Ms. Nandini Acharya, Adv. Mr. Piyush Tiwari, Adv. Mr. Siddharth Seem, Adv. Ms. Mugdha Pande, Adv. Mr. Daksh Kadian, Adv. Mr. Mridul Godha, Adv. Mr. Swapnil Singh, Adv. Mr. Dakshesh Vyas, Adv. Ms. Dhanakshi Gandhi, Adv. Ms. Kiran Sharma, Adv. Ms. Pooja Chakraborthy, Adv. Ms. Rooh-e-hina Dua, AOR Mr. S. Niranjan Reddy, Sr. Adv. Mr. Raghenth Basant, Sr. Adv. Ms. Sonali Jain, AOR Mr. Mudit Gupta, Adv. Ms. Hima Bharadwaj, Adv. Mr. Rahul Jajoo, Adv. Mr. Vinayak Sharda, Adv. Mr. Dushyant Dave, Sr. Adv. Mr. Devadat....

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.... a prima facie opinion that the combination in question warrants investigation, the statutory obligations in the form of Sections 29(2) to 29(6) outline the consequential steps(...)". "The statutory obligations in the form of Sections 29(2) to 29(6) outline the consequential steps, aimed at gathering comprehensive data from not just the acquirer and the target company, but also from other stakeholders, potentially impacted by the combination." "Refers to 'Statutory obligations' under S.29(2)-(6)". Paragraph 130: Contrasts "investigation" under Section 29 with "inquiry" under Section 26. "Such an investigation, as per the mandate of Section 29(1A), is to be executed under the aegis of the Director-General, thereby reaffirming the seriousness of the scrutiny, envisaged in cases of combinations." "Refers to the 'mandate of Section 29(1A)' for DG investigation". Paragraph 131: "In the present matter, the procedural sanctity prescribed under the scheme has been regrettably disregarded, with the Commission failing to solicit inputs from public, affected stakeholders and those likely to be affected by such combination under Section 29(2)." Paragra....

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....with voluntary modifications offered under Regulation 25(1A), if the suggested modifications sufficiently address the concerns pointed out in the SCN on AAEC. iii. May call for a DG report under Section 29(1A) at its discretion on the AAEC from the proposed combination. iv. If concerns notwithstanding, response to SCN persists, form a prima facie opinion under Section 29(2) to proceed to Phase II. b. Phase II: Involves a detailed inquiry under Section 29(2) to 29(6) of the Competition Act. 3. The paragraphs under review allegedly conflate these phases, depriving parties of an opportunity to avoid Phase II and impacting CCI's discretion in approving the combination. 4. Regulation 25(1A) explicitly allows parties to offer voluntary modifications in response to an SCN, potentially leading to approval under Section 31(1) without a full-fledged investigation under Section 29(1A) and 29(2) to 29(6). The interpretation given by the majority view could render this provision unworkable. IMPACT ON JURISDICTIONAL PRACTICE AND DISCRETIONARY POWERS 5. The CCI contends that the judgment could disrupt its established jurisdictional practices under its combination ....

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....e DG. 3. Consequential Nature of Section 29(2)to(6 ): The finding that the statutory obligations outlined in Section 29(2) to (6) of the Act are merely consequential steps following the issuance of an SCN under Section 29(1). 4. Absence of Robust Monitoring Mechanism : The finding regarding the absence of a robust and comprehensive monitoring mechanism for modifications, which the CCI contends was detailed in its order dated 15.03.2023." 10. Section 29 of the Act has already been excerpted, and the construction, in our unanimous opinion, has not differentiated the scrutiny of combination under the Competition Act in a two-phase mechanism. The expression used in Sections 29(1) and 29(1A) of the Competition Act needs to be appreciated. In Section 29(1), the word "shall" is used, and in Section 29(1A), the word "may" is used. The literal construction of the particular expressions or words gives sufficient discretion to the Commission, i.e., after receiving the response to the SCN issued under Section 29(1) of the Act. The majority Judgment lays emphasis on literal interpretation of a provision of law as the first option for ascertaining the scope and meaning of a ....

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....reafter. On the basis of direction issued by the competent authority in relation to an application filed for inclusion of a voter's name, a nomination can be filed. The person concerned, therefore, would not be inconvenienced or in any way be prejudiced only because the revised electoral roll in Form 16 is published a few hours later. The result of filing of such nomination would become known to the parties concerned also after 3.00 p.m. 48. Furthermore, even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is a well-settled principle of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory. 49. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall" may not be held to be mandatory if thereby no prejudice is caused. 50. The Court cannot, it is trite, supply casus omissus. Reference in this regard may be made to Baliram Waman Hiray (Dr) v. Justice B. Lentin [(1988) 4 SCC 41....

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....ice S.V.N. Bhatti) is accepted as being correct interpretation of Section 29(1) and 29(1A) of the Competition Act. The consideration in Paragraph Nos. 128 to 131 in the Judgment dated 29.01.2025 is reviewed and substituted by Paragraph No(s). 10 and 11 of this order. 14. The Review Petition is allowed as indicated above. REVIEW PETITION NO. 657 OF 2025 IN CIVIL APPEAL NO. 6071 OF 2023 AGI GREENPAC LIMITED VERSUS INDEPENDENT SUGAR CORPORATION LIMITED AND OTHERS ORDER 15. Review Petitioner-AGI Greenpac Limited (AGI) filed an application bearing I.A. No. 38385 of 2025 praying for hearing in open court, the Review Petition(s) filed against the Majority Judgement dated 29.01.2025 in Civil Appeal No. 4924 of 2023 and connected matters. On 03.04.2025, the prayer for hearing the review petition in the open court was allowed. The Review Petition(s) have been listed for hearing on 15.05.2025 and 16.05.2025. 16. We have heard the learned senior counsel appearing for the parties, perused the grounds of review, and the impugned judgment, together with the record. This Court is of the view that the grounds under review, do not fall within the purview of an error app....