AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 817
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....ng-aside of the orders dated 1st July 2025, firstly uploaded on the website of the Respondent No. 1-Competition Commission of India ('the CCI') on 1st July 2025 and thereafter allegedly/purportedly replaced by the second order of the same date uploaded on the website of the said Authority on 2nd July 2025, passed by the CCI in Case No.32/2024. The Petitioner also seeks a direction to the CCI to re-examine the purported information/allegations submitted against it, in Case No.32/2024 afresh in exercise of its powers under Section 19(1) read with Section 26(2-A) of the Competition Act of 2002 ('the Act'). 3. Facts in brief are as under: The Petitioner is a company incorporated under the Companies Act inter alia engaged in the manufacture, sale and distribution of paints, coatings, home decor products, bath fittings and providing related services. The Respondent No. 1-Competition Commission of India (for the sake of brevity, hereinafter referred to as 'CCI') is an Authority established under Section 7 of the Competition Act, 2002 (as amended). The Respondent No. 2 is a company incorporated under the Companies Act, engaged in the manufacture of man-made fibers, chemicals an....
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.... General ("DG") of the CCI to cause an investigation into the matter and submit an investigation report within a period of 90 days from the receipt of the said order. It was made clear that at this prima facie stage, the CCI, in the light of the material available on record, found no reason to hear the Petitioner before passing the said order. According to the Petitioner, the first order dated 1st July 2025 was allegedly pulled down from the website of the CCI and replaced with another order of the same date. It is the Petitioner's case that there were substantial differences in both the orders, although, the end result in both the orders was the same i.e. the 2nd order reiterated the same directions issued by the CCI to the DG. Both these orders, dated 1st July 2025, first order and the second order alleging replacing the first on the CCI's website, are impugned in the present petition. 8. Mr. Darius Khambata, learned senior counsel appeared for the Petitioner. Mr. Mustafa Doctor, learned senior counsel represented the CCI and Mr. Aspi Chinoy, learned senior counsel represented the Respondent No. 2. Submissions advanced by the learned Senior Counsel appearing for the respect....
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....ction 26(2-A) of the Act, arguing that it was mandatory on the part of the CCI in the impugned order to specifically deal with the said provision which operated as a jurisdictional bar on it to re-inquire complaints based on same or substantially same facts and issues which had already been decided by CCI in its previous order. He further contended that the CCI ought to have expressly recorded reasons to justify a re-inquiry into the information received by it from the Respondent No. 2, which according to him, was already dealt with in the JSW/Balaji case. Mr. Khambata further explained the legislative intent behind the Competition (Amendment) Act, 2023 which inserted Section 26(2-A) in the interest of expedience and to avoid repetition of effort. 12. Mr. Khambata, learned senior counsel placed reliance on the following decisions to buttress his submissions: i. Competition Commission of India v. Steel Authority of India Limited and Anr. (2010) 10 SCC 744 ('SAIL') ii. Star India Private Limited v. Competition Commission of India and Ors. 2019 SCC Online Bom 3038 iii. Alliance of Digital India Foundation v. Google Case No. 23(2) of 2024 order dated 1st A....
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....e or substantially similar facts and issues had already been decided in the earlier orders passed by the CCI in the JSW/Balaji cases. He submitted that such a contention reflects a misconceived understanding and erroneous interpretation by the Petitioner of Section 26(2-A) of the Act and the scheme underlying the said provision. 15. Mr. Doctor, learned senior counsel, took us through the scheme of the Act wherein Section 19(1)(a) of the Act empowered the Commission to inquire into any alleged contravention of the provisions of the Act, either on its own motion or on receipt of information from any person. He submitted that keeping in mind the scheme of the Act, there is no requirement of any hearing to be given to the Petitioner as the DG is merely directed to cause an investigation. 16. Mr. Doctor has drawn a distinction between the earlier JSW complaint relating to violation of Section 4(2)(c) and Section 3(4)(b) and 3(4)(d) of the Act, whereas, in the present case, the CCI has formed an opinion that prima facie there exists a contravention of Sections 4(2)(a)(i), 4(2)(c) and 4(2)(d) of the Act. Learned senior counsel submitted that the earlier complaint was dismissed, as t....
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....nd stated in Section 26(2-A). 18. Mr. Chinoy further submitted that the information on which the impugned order was passed, was made by a different party, pertained to a different context, invoked different sections, and referred to different material and as such no fault can be found in the same. 19. Having heard the learned counsel for the respective parties, and for the reasons set out hereinafter, we are of the opinion that the petition is devoid of merits and as such, ought to be dismissed. 20. As far as the first relief sought by the Petitioner is concerned, i.e. quashing and setting aside of the orders dated 1st July 2025 (firstly uploaded on the website of Respondent No. 1- CCI on 1st July 2025 and thereafter purportedly replaced by a second order of the same date uploaded on 2nd July 2025), we find no merit therein. 21. According to Mr. Khambata, learned senior counsel, there were certain variance/deviations in both the orders, which have been set out in a tabular form in para 20 of the petition. It is not in dispute that, although there were some deviations in the orders, the end result in both the orders is identical/same. 22. Mr. Doctor, learned senior co....
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....y into the information received from Respondent No. 2, particularly when similar complaints had been dealt with by CCI in the JSW/Balaji cases, 24. Before we proceed to consider the aforesaid, it would be necessary to place the scheme of the provisions with which we are concerned. Section 19(1)(a) of the Act empowers the Commission to inquire into any alleged contravention of provisions of Sections 3(1) and 4(1), either on its own motion or inter alia upon receipt of information from any person, consumer, or trade association. The procedure to be followed for an inquiry under Section 19 is laid down in Section 26 of the Act. Section 26 of the Act reads thus: "26. Procedure for inquiry under Section 19.- (1) On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under Section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject-matter of an information received is, in the opinion of the Commission, substantially the sa....
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....r 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 or 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 investigation is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act. (8) If the report of the Director General referred to in sub-Sections (3) and (3-B) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall ....
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....ara 38]; (iii) that the Petitioner has no right to hearing prior to passing of an order under Section 26(1) [SAIL (Supra) - Paras 78 & 83]; and (iv) since the order under Section 26(1) is administrative in nature and prima facie, the High Court is not competent to adjudicate the validity of such an order [CCI v. Bharti Airtel Ltd. & Ors. (2019) 2 SCC 521 - Paras 116 & 121]. 27. In the present petition, we are concerned essentially with Section 26(2-A), which is inserted by an amendment to the Act, and which came into effect from 18th May 2023. By the said amendment, the Commission has the discretion to decide not to inquire into any agreement if the same or substantially same issues are raised in the information received under Section 19, which issues have already been decided by the Commission in its previous order. The legislative intent behind this amendment, as noted in the Committee Report, was to avoid duplication of effort and to ensure expedition in disposal of matters. 28. The Committee in its report issued in July 2019, in para 2.4 has noted as under: "2.4 The Committee discussed if the Competition Act should be amended to expressly empowe....
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....s, including suppliers of essential raw materials, from providing goods and services to the Informant; (v) Coercing landlords, Clearing and Forwarding ('C&F') Agents and transporters to refrain from engaging with the Informant, restricting logistics and transportation of goods; and (vi) Subjecting the Informant to a fake smear campaign etc." 31. It appears that the CCI was dealing with the Respondent No. 2's representation for contravention of Sections 4(2)(a)(i), 4(2)(c) and 4(2)(d) of the Act and after going through the same, had formed an opinion that there exists a prima facie case against the Petitioner. It is pertinent to note that earlier on a representation made by JSW in 2019 relating to violation of Sections 4(2)(c) and Section 3(4)(b) and 3(4)(d), the CCI had directed investigation by the DG vide order dated 14th January 2020 and later on receipt of the DG's report vide order dated 8th September 2022 had dismissed the said complaint as no case of contravention of Sections 3 and 4 had been made out. It is thus evident from the aforesaid that the sections under which the Respondent No. 2 filed its complaint i.e. the sections invoked were not the same a....
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....lready implied in Section 26(2) and the use of the term 'enable' establishes that the intent and object was to expressly introduce Section 26(2-A) as an enabling provision. Thus, CCI would be required to deal with the same i.e. Section 26(2-A), in its order only in cases where it decides to close the case by acting under Section 26(2) or Section 26(2-A) i.e. the CCI is of the view that 'the same or substantially same facts and information raised in the information under Section 19 or reference from the Central Government or a State Government or a statutory authority, has already been decided by the CCI in its earlier order. Conversely, where CCI decides not to close the case under Section 26(2) or 26(2-A) and decides to direct the DG to cause an investigation to be made, the CCI is not required to give reasons why Section 26(2-A) is not applicable. 34. A perusal of the impugned order indicates that Respondent No. 1, despite being aware of the JSW representation and its dismissal, found substance in the representation of Respondent No. 2 and, after recording a prima facie observation, directed the DG to investigate the same. The object of Section 26(2-A) is not to create an emba....
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.... Based on the reply dated 21.06.2024 submitted by Google, it is noted that the said Pilot has been extended indefinitely beyond 30.06.2024 as no date has been set for its termination. Therefore, the second issue for consideration is whether such long duration Pilot has resulted or is likely to result in any distortion in the competitive process in the RMG market. 30. In relation to first issue, Google has submitted that it has selected DFS and Rummy for the pilot primarily based on their popularity, with the aim of maximising learnings from the RMG Pilot. It has been further averred that the Hon'ble Supreme Court of India (as well as other courts) have recognised DFS and Rummy as predominantly games of skill. The higher degree of legal certainty attached to DFS and Rummy is stated to provide Google with additional comfort from a risk assessment perspective. 31. The Informant on the other hand has averred that Google has failed to provide a valid justification for selectively allowing only two categories of RMG apps while excluding the rest of the RMG market and its responses for the same have been inconsistent, unsubstantiated, based on assumptions and unverified ....