Jyoti Sawroop Arora v. The Competition Commission of India & Ors

RAJIV SAHAI ENDLAW, J.

MAY 16, 2016 "pp" (corrected & released on 21st June, 2016)

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 16th May, 2016 + W.P.(C) No.6262/2015 JYOTI SAWROOP ARORA ..... Petitioner Through: Mr. Vikas Goel and Mr. Abhishek Kumar, R.V. Prabhat and Mr. J.S. Arora, Advs. Versus THE COMPETITION COMMISSION OF INDIA & ORS ..... Respondents Through: Mr. D.P. Singh, Ms. Snuchita Shrivastava and Mr. Devansh Arya, Advs. for R-1. Mr. Avinash Sharma, Adv. for R-2. Mr. Rahul Malhotra, Adv. for R- 5&17. Mr. Rakesh Kumar, Mr. Navin Kumar and Mr. Bipin Kumar, Advs. for R-6. Mr. Amir Singh Pasrich and Ms. Vinita Chhatwal, Advs. for R-7. Mr. Dhruv Rajain, Adv. for R-8&19. Mr. G. Ramakrishna Prasad, Ms. Tatini Basu and Ms. Lovely Kumari Singh, Advs. for R-10. Mr. Preshit Surshe, Adv. for R-11. Ms. Chandni Mehra, Adv for R-12. Mr. Himanshu Tyagi, Adv. for R-13. Mrs. Aayushi S. Khazanchi and Mr. Karan Luthra, Advs. for R-14. Mr. A.S. Chandhiok, Sr. Adv. with Ms. Kalyani Singh, Ms. Ambika Soni, Ms. Sweta Kakad, Ms. Monika tyagi and Mr. Anukrit Gupta, Advs. for R- 15. Mr. M.M. Sharma, Ms. Deepika Rajpal and Mr. Danish Khan, Advs. for R-16. Mr. Krishnan Venugopal, Sr. Adv. with Mr. Rahul Goel, Ms. Anu Monga, Mr. Nitish Sharma and Mr. Neeraj Lalwani, Advs. for R-18. Ms. Neelambera Sandeepan and Mr. Sammith S., Advs. for R-20. Ms. Anindita Barman and Mr. Keshav Mohan, Advs. for R-22. Mr. Devashish Bharuka and Mr. Abraham C. Mathews, Advs. for R- 23. Mr. Subodh Prasad Deo and Ms. Radhika Seth, Advs. for R-24. Mr. H.S. Chandhoke, Ms. Deeksha Manchanda and Mr. Arjun Nihal Singh, Advs. for R-25. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This petition under Article 226 of the Constitution of India impugns the order dated 3rd February, 2015 of the respondent no.1 Competition Commission of India (CCI) in case No.59/2011 holding no violation of the provisions of the Competition Act, 2002 having been committed, inspite of the Director General (DG) of the CCI in its Report having recommended that there is contravention of the provisions of the Act. The petition was entertained and notice thereof issued. 2. After notice, when the petition was listed before this Court on 12th February, 2016, I had of my own enquired from the counsels whether not such an order was appealable before the Competition Appellate Tribunal (COMPAT). 3. The counsels drew attention to Section 53A(1)(a) of the Competition Act which empowers COMPAT "to hear and dispose of appeals against any direction issued or decision made or order passed by the Commission under Sub-Sections (2) and (6) of Section 26…….". It was further pointed out that Sub-Section (2) of Section 26 provides for CCI, on receipt a reference from the Central Government or a State Government or a Statutory Authority or information received under Section 19, closing the matter forthwith if of the opinion that there exists no prima facie case. It was stated that CCI in the present case did not so close the matter but rather was of the opinion that there existed a prima facie case and in exercise of powers under Sub-Section (1) of Section 26 had directed the DG to cause an investigation to be made in the matter. It was further pointed out that DG submitted its Report recommending that there was contravention as averred in the information; however CCI, after consideration of the objections and suggestions of the parties concerned has vide the impugned order dated 3rd February, 2015 differed from the findings of the DG on issue of contravention of provisions of Sections 3(3)(a) & (b) of the Competition Act and held that sufficient evidence is not available on record which warrants a finding of contravention of the provisions of the Act and accordingly closed the matter. It is argued that Sub-Section (6) of Section 26 against a direction, decision or order whereunder the remedy of appeal to COMPAT has been provided is as under:- "(6) If, after consideration of the objections or suggestions referred to in sub-section (5), if any, the Commission agrees with the recommenda