SAMIR AGRAWAL versus COMPETITION COMMISSION OF INDIA & ORS. on 15 December 2020

SUPREME COURT REPORTS[2020] 13 S.C.R. 1044

[2020] 13 S.C.R.

SAMIR AGRAWAL

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v.

COMPETITION COMMISSION OF INDIA & ORS.

(Civil Appeal No. 3100 of 2020)

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DECEMBER 15, 2020

[ROHINTON FALI NARIMAN, K. M. JOSEPHAND KRISHNA MURARI, JJ.]

Competition Act, 2002:

Css. 3, 19 and 26 – Application u/s. 26(2) – Seeking initiationof inquiry – Alleging violation of s. 3 – Competition Commission ofIndia (CCI) dismissed the case holding that no case of contraventionof provisions of s. 3 were made out – Appellate Tribunal held thatthe informant had no locus standi to move the CCI – Appeal toSupreme Court – Held: When CCI performs inquisitorial functions,Dthe doors of approaching the CCI and the appellate authority mustbe kept wide open in public interest, so as to subserve the highpublic purpose of the Act – The provisions of the Act andCompetition Commission Regulations show that ‘Any person’ mayprovide information to CCI irrespective of whether such person isEpersonally affected or not – Hence, the informant was competent tomove the CCI – However, no case of contravention of provision ins. 3 is made out – Competition Commission Regulations, 2009 –Regulations 10, 25 and 35.

Words and Phrases:

F‘Person’ – Definition of – In the context of s. 2(l) ofCompetition Act, 2002.

Disposing of the appeal, the Court

HELD: 1. A reading of the provisions of the CompetitionGAct, 2002 and the Competition Commission of India (General)Regulations, 2009 would show that “any person” may provideinformation to the Competition Commission of India (CCI), whichmay then act upon it in accordance with the provisions of the Act.In this regard, the definition of “person” in section 2(l) of theAct, is an inclusive one and is extremely wide, includingH

individuals of all kinds and every artificial juridical person. Thismay be contrasted with the definition of “consumer” in section2(f) of the Act, which makes it clear that only persons who buygoods for consideration, or hire or avail of services for aconsideration, are recognised as consumers. [Para 13][1066-E-F]

1.2 A look at section 19(1) of the Act would show that theAct originally provided for the “receipt of a complaint” from anyperson, consumer or their association, or trade association. Thisexpression was then substituted with the expression “receipt ofany information in such manner and” by the 2007 Amendment.This substitution is not without significance. Whereas, a complaintcould be filed only from a person who was aggrieved by a particularaction, information may be received from any person, obviouslywhether such person is or is not personally affected. This is forthe reason that the proceedings under the Act are proceedingsin rem which affect the public interest. That the CCI may inquireinto any alleged contravention of the provisions of the Act on itsown motion, is also laid down in section 19(1) of the Act. Further,even while exercising suo motu powers, the CCI may receiveinformation from any person and not merely from a person who isaggrieved by the conduct that is alleged to have occurred. Thisalso follows from a reading of section 35 of the Act, in which theearlier expression “complainant or defendant” has beensubstituted by the expression, “person or an enterprise,” settingout that the informant may appear either in person, or throughone or more agents, before the CCI to present the informationthat he has gathered. [Para 14][1066-G-H; 1067-A-C]

1.3 Section 45 of the Act is a deterrent against personswho provide information to the CCI, mala fide or recklessly,inasmuch as false statements and omissions of material facts arepunishable with a penalty which may extend to the hefty amountof rupees one crore, with the CCI being empowered to pass othersuch orders as it deems fit. This, and the judicious use of heavycosts being imposed when the information supplied is eitherfrivolous or mala fide, can keep in check what is described asthe growing tendency of persons being “set up” by rivals in thetrade. [Para 15][1067-C-E]

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A1.4 The 2009 Regulations also point in the same direction,inasmuch as Regulation 10, does not require the informant tostate how he is personally aggrieved by the contravention of theAct, but only requires a statement of facts and details of the allegedcontravention to be set out in the information filed. Also,Regulation 25 shows that public interest must be foremost in theBconsideration of the CCI when an application is made to it inwriting that a person or enterprise has substantial interest in theoutcome of the proceedings, and such person may therefore beallowed to take part in the proceedings. What is also extremelyimportant is Regulation 35, by which the CCI must maintainCconfidentiality of the identity of an informant on a request madeto it in writing, so that such informant be free from harassmentby persons involved in contravening the Act. [Para 16][1067-E-G]

1.5 Given the context of the Act in which the CCI and theDNCLAT deal with practices which have an adverse effect oncompetition in derogation of the interest of consumers, it is clearthat the Act vests powers in the CCI and enables it to act in rem,in public interest. This would make it clear that a “personaggrieved” must, in the context of the Act, be understood widelyand not be constructed narrowly. Further, it is not withoutEsignificance that the expressions used in Sections 53B and 53Tof the Act are “any person”, thereby signifying that all personswho bring to the CCI information of practices that are contraryto the provisions of the Act, could be said to be aggrieved by anadverse order of the CCI in case it refuses to act upon theFinformation supplied. By way of contrast, Section 53N(3) speaksof making payment to an applicant as compensation for the lossor damage caused to the applicantas a result of any contraventionof the provisions of Chapter II of the Act, having been committedby an enterprise. By this sub-section, clearly, therefore, “any person” who makes an application for compensation, under sub-Gsection (1) of Section 53N of the Act, would refer only to personswho have suffered loss or damage, thereby, qualifying theexpression “any person” as being a person who has suffered lossor damage. Thus, the preliminary objections against theInformant/Appellant filing Information before the CCI and filingHan appeal before the NCLAT are rejected. [Para 20][1069-E-H;1070-A-B]

SAMIR AGRAWAL v. COMPETITION COMMISSION OF INDIA& ORS.

A

1.6 When the CCI performs inquisitorial, as opposed toadjudicatory functions, the doors of approaching the CCI and theappellate authority, i.e., the NCLAT, must be kept wide open inpublic interest, so as to subserve the high public purpose of theAct. [Para 22][1073-D-E]

A. Subash Babu v. State of A.P. (2011) 7 SCC 616 :[2011] 9 SCR 453; Competition Commission of India v.Steel Authority of India (2010) 10 SCC 744 : [2010] 11SCR 112 – relied on.

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Adi Pherozshah Gandhi v. H.M. Seervai, AdvocateGeneral of Maharashtra (1970) 2 SCC 484 : [1971] 1SCR 863 – distinguished.

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2. In the concurrent findings of fact of the CCI and theNCLAT, it has been found that Ola and Uber do not facilitatecartelization or anti-competitive practices between drivers, whoare independent individuals, who act independently of each other,so as to attract the application of Section 3 of the Act, as has beenheld by both the CCI and the NCLAT. There is no reason tointerfere with these findings. [Para 23][1073-E-F]

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3100of 2020.

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From the Judgment and Order dated 29.05.2020 of the NationalCompany Law Appellate Tribunal in Competition Appeal (AT) No. 11 of2019.

Balbir Singh, ASG Dr. Abhishek Manu Singhvi, Amit Sibal, Sr.Advs., Naval Chopra, Anuj Berry, Rohan Arora, Aman Singh Sethi, PSSBhargava, Ms. Anjali Kumar, Devarsh Kotak, Shardul S Shroff, ArjunKrishnan, Shyam Gopal, Ms. Khushboo Mittal, Rajshekhar Rao,Ms. Nisha Kaur Uberoi, Gautam Chawla, Akshay Nanda, Ms. AnkitaDhawan, Sonal Sarda, Karthik Sundar, Avneesh Arputham, Advs. forthe appearing parties.

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APetitioner-in-person.

The Judgment of the Court was delivered by

R. F. NARIMAN, J.

1. The present appeal is at the instance of an Informant whoBdescribes himself as an independent practitioner of the law. The Appellant/Informant, by an Information filed on 13.08.2018 [“the Information”],sought that the Competition Commission of India [“CCI”] initiate aninquiry, under section 26(2) of the Competition Act, 2002 [“the Act”],into the alleged anti-competitive conduct of ANI Technologies Pvt. Ltd.[“Ola”], and Uber India Systems Pvt. Ltd., Uber B.V. and UberCTechnologies Inc. [together referred to as “Uber”], alleging that theyentered into price-fixing agreements in contravention of section 3(1)read with section 3(3)(a) of the Act, and engaged in resale pricemaintenance in contravention of section 3(1) read with section 3(4)(e)of the Act. According to the Informant, Uber and Ola provide radio taxiDservices and essentially operate as platforms through mobile applications[“apps”] which allow riders and drivers, that is, two sides of the platform,to interact. A trip’s fare is calculated by an algorithm based on manyfactors. The apps that are downloaded facilitate payment of the fare byvarious modes.

E2. The Informant alleged that due to algorithmic pricing, neitherare riders able to negotiate fares with individual drivers for rides that arebooked through the apps, nor are the drivers able to offer any discounts.Thus, the pricing algorithm takes away the freedom of riders and driversto choose the best price on the basis of competition, as both have toaccept the price set by the pricing algorithm. As per the terms andFconditions agreed upon between Ola and Uber with their respectivedrivers, despite the fact that the drivers are independent entities who arenot employees or agents of Ola or Uber, the driver is bound to acceptthe trip fare reflected in the app at the end of the trip, without having anydiscretion insofar as the same is concerned. The drivers receive theirGshare of the fare only after the deduction of a commission by Ola andUber for the services offered to the rider. Therefore, the Informantalleged that the pricing algorithm used by Ola and Uber artificiallymanipulates supply and demand, guaranteeing higher fares to driverswho would otherwise compete against one and another. Cooperationbetween drivers, through the Ola and Uber apps, results in concertedH

action under section 3(3)(a) read with section 3(1) of the Act. Thus, theInformant submitted that the Ola and Uber apps function akin to a tradeassociation, facilitating the operation of a cartel. Further, since Ola andUber have greater bargaining power than riders in the determination ofprice, they are able to implement price discrimination, whereby ridersare charged on the basis of their willingness to pay and as a result,artificially inflated fares are paid. Various other averments qua resaleprice maintenance were also made, alleging a contravention of section3(4)(e) of the Act.

3. The CCI by its Order dated 06.11.2018, under section 26(2) ofthe Act, discussed the Information provided by the Appellant/Informantand held:

“13. At the outset, it is highlighted that though the Commissionhas dealt with few cases in this sector, the allegations in the presentcase are different from those earlier cases. The present casealleges that Cab Aggregators have used their respective algorithmsto facilitate price-fixing between drivers. The Informant has notalleged collusion between the Cab Aggregators i.e. Ola and Uberthrough their algorithms; rather collusion has been alleged on thepart of drivers through the platform of these Cab Aggregators,who purportedly use algorithms to fix prices which the drivers arebound to accept.

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15. In the conventional sense, hub and spoke arrangement refersto exchange of sensitive information between competitors througha third party that facilitates the cartelistic behaviour of suchcompetitors. The same does not seem to apply to the facts of thepresent case. In case of Cab Aggregators model, the estimationof fare through App is done by the algorithm on the basis of largedata sets, popularly referred to as ‘big data’. Such algorithmseemingly takes into account personalised information of ridersalong with other factors e.g. time of the day, traffic situation, specialconditions/events, festival, weekday/weekend which all determinethe demand-supply situation etc. Resultantly, the algorithmicallydetermined pricing for each rider and each trip tends to be differentowing to the interplay of large data sets. Such pricing does notappear to be similar to the ‘hub and spoke’ arrangement as A

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understood in the traditional competition parlance. A hub and spokearrangement generally requires the spokes to use a third partyplatform (hub) for exchange of sensitive information, includinginformation on prices which can facilitate price fixing. For a cartelto operate as a hub and spoke, there needs to be a conspiracy tofix prices, which requires existence of collusion in the first place.In the present case, the drivers may have acceded to thealgorithmically determined prices by the platform (Ola/Uber), thiscannot be said to be amounting to collusion between the drivers.In the case of ride-sourcing and ride-sharing services, a hub-and-spoke cartel would require an agreement between all drivers toset prices through the platform, or an agreement for the platformto coordinate prices between them. There does not appear to beany such agreement between drivers inter-se to delegate this pricingpower to the platform/Cab Aggregators. Thus, the Commissionfinds no substance in the first allegation raised by the Informant.

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17. …In case of app-based taxi services, the dynamic pricingcan and does on many occasions drive the prices to levels muchlower than the fares that would have been charged by independenttaxi drivers. Thus, there does not seem to be any fixed floor pricethat is set and maintained by the aggregators for all drivers andthe centralized pricing mechanism cannot be viewed as a verticalinstrument employed to orchestrate price-fixing cartel amongstthe drivers…

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18. Based on the foregoing discussion, the allegations raised bythe Informant with regard to price fixing under section 3(3)(a)read with section 3(1), resale price maintenance agreement undersection 3(4)(e) read with section 3(1). Moreover, the Commissionobserves that existence of an agreement, understanding orarrangement, demonstrating/indicating meeting of minds, is a sinequa non for establishing a contravention under Section 3 of theAct. In the present case neither there appears to be any suchagreement or meeting of minds between the Cab Aggregatorsand their respective drivers nor between the drivers inter-se. Inresult thereof, no contravention of the provisions of Section 3 of G

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the Act appears to be made out given the facts of the presentcase.

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the Act appears to be made out given the facts of the presentcase.

19. Further, the allegation as regards price discrimination alsoseems to be misplaced and unsupported by any evidence on record.Price discrimination can perhaps be scrutinised under Section 4of the Act, which has not been alleged by the Informant. Impositionof discriminatory price is prohibited under Section 4(2)(a)(ii) ofthe Act only when indulged in by a dominant enterprise. It is notthe Informant’s case that any of the OPs is dominant in the app-based taxi services market. Given this, the Commission does notfind it appropriate to delve into such analysis given that the marketin question features two players, Ola as well as Uber, none ofwhich is alleged to be dominant. Further, the provisions of the Actclearly stipulate dominant position by only one enterprise or onegroup and does not recognise collective dominance. This positionwas amply made clear in Case Nos. 6 & 74 of 2015 and laterreiterated in Case Nos. 25, 26, 27 & 28 of 2017, both matterspertaining to the Cab Aggregators market. Thus, given these factsand legal position, the Commission rejects the allegation of theInformant with regard to price discrimination.

20. …The situation of cement manufacturers colluding through atrade association is different from an App providing taxi/cabservices. If drivers were colluding using an App as a platform, thesaid arrangement would have amounted to cartelisation; however,this cannot be equated with the facts of the present cases asdemanded by the Informant. Ola and Uber are not an associationof drivers, rather they act as separate entities from their respectivedrivers. In the present situation, a rider books his/her ride at anygiven time which is accepted by an anonymous driver available inthe area, and there is no opportunity for such driver to coordinateits action with other drivers. This cannot be termed as a cartelactivity/conduct through Ola/Uber’s platform. Thus, the presentcase is different from the Cement case, not only with regard toadoption of digital App but also with regard to other relevantaspects as elucidated hereinbefore.

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23. Based on the foregoing, the Commission is of the view thatno case of contravention of the provisions of Section 3 has been

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[2020] 13 S.C.R.

Amade out and the matter is accordingly closed herewith underSection 26(2) of the Act.”

4. The Appellant/Informant, being aggrieved by the Order of theCCI, filed an appeal before the National Company Law Appellate Tribunal[“NCLAT”] which resulted in the impugned judgment dated 29.05.2020.BThis judgment recorded that the point as to resale price maintenancewas not pressed before it, after which it delved into the locus standi ofthe Appellant to move the CCI. After setting out section 19 of the Act,the NCLAT held:

“16. It is true that the concept of locus standi has beenCdiluted to some extent by allowing public interest litigation,class action and actions initiated at the hands of consumerand trade associations. Even the whistle blowers have beenclothed with the right to seek redressal of grievancesaffecting public interest by enacting a proper legalframework. However, the fact remains that when a statuteDlike the Competition Act specifically provides for the modeof taking cognizance of allegations regarding contraventionof provisions relating to certain anti-competitive agreementand abuse of dominant position by an enterprise in aparticular manner and at the instance of a person apart fromEother modes viz. suo motu or upon a reference from thecompetitive government or authority, reference to receiptof any information from any person in section 19(1) (a) ofthe Act has necessarily to be construed as a reference to aperson who has suffered invasion of his legal rights as aconsumer or beneficiary of healthy competitive practices.FAny other interpretation would make room for unscrupulouspeople to rake issues of anti-competitive agreements orabuse of dominant position targeting some enterprises withoblique motives. In the instant case, the Informant claims to bean Independent Law-Practitioner. There is nothing on the recordGto show that he has suffered a legal injury at the hands of Ola andUber as a consumer or as a member of any consumer or tradeassociation. Not even a solitary event of the Informant of being avictim of unfair price fixation mechanism at the hands of Ola andUber or having suffered on account of abuse of dominant positionof either of the two enterprises have been brought to the notice of H

this Appellate Tribunal. We are, therefore, constrained to holdthat the Informant has no locus standi to maintain an action quathe alleged contravention of Act.”

(emphasis in original)

5. Despite having held that the Informant had no locus standi tomove the CCI, the NCLAT went into the merits of the case and held:

“17. Assuming though not accepting the proposition that theInformant has locus to lodge information qua alleged contraventionof the Act and appeal at his instance is maintainable, on meritsalso we are of the considered opinion that business model of Olaand Uber does not support the allegation of Informant as regardsprice discrimination. According to Informant, the Cab Aggregatorsused their respective algorithms to facilitate price fixing betweendrivers. It is significant to notice that there is no allegation ofcollusion between the Cab Aggregators through their algorithmswhich necessarily implies an admission on the part of Informantthat the two taxi service providers are operating independent ofeach other. It is also not disputed that besides Ola and Uber thereare other players also in the field who offer their services tocommuters/ riders in lieu of consideration. It emerges from therecord that both Ola and Uber provide radio taxi services ondemand. A consumer is required to download the app before he isable to avail the services of the Cab Aggregators. A cab is bookedby a rider using the respective App of the Cab Aggregators whichconnects the rider with the driver and provides an estimate offare using an algorithm. The allegation of Informant that the driversattached to Cab Aggregators are independent third party serviceprovider and not in their employment, thereby price determinationby Cab Aggregators amounts to price fixing on behalf of drivers,has to be outrightly rejected as no collusion inter se the CabAggregators has been forthcoming from the Informant. Theconcept of hub and spoke cartel stated to be applicable tothe business model of Ola and Uber as a hub with theirplatforms acting as a hub for collusion inter se the spokesi.e. drivers resting upon US Class Action Suit titled“Spencer Meyer v. Travis Kalanick” has no application asthe business model of Ola and Uber (as it operates in India)does not manifest in restricting price competition among ABC

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drivers to the detriment of its riders. The matter relates toforeign antitrust jurisdiction with different connotation andcannot be imported to operate within the ambit and scopeof the mechanism dealing with redressal of competitionconcerns under the Act. It is significant to note that the Informantin the instant case has alleged collusion on the part of driversthrough the platform of the Cab Aggregators who are stated to beusing their algorithms to fix prices which are imposed on thedrivers. In view of allegation of collusion inter se the drivers throughthe platform of Ola and Uber, it is ridiculous on the part of Informantto harp on the tune of hub and spoke raised on the basis of lawoperating in a foreign jurisdiction which cannot be countenanced.The argument in this core is repelled.

Admittedly, under the business model of Ola, there is noexchange of information amongst the drivers and Ola. The taxidrivers connected with Ola platform have no inter se connectivityand lack the possibility of sharing information with regard to thecommuters and the earnings they make out of the rides provided.This excludes the probability of collusion inter se the drivers throughthe platform of Ola. In so far as Uber is concerned, it provides atechnology service to its driver partners and riders through theUber App and assist them in finding a potential ride and alsorecommends a fare for the same. However, the driver partnersas also the riders are free to accept such ride or choose the Appof competing service, including choosing alternative modes oftransport. Even with regard to fare though Uber App wouldrecommend a fare, the driver partners have liberty to negotiate alower fare. It is, therefore, evident that the Cab Aggregators donot function as an association of its driver partners. Thus, theallegation of their facilitating a cartel defies the logic and has tobe repelled.

18. Now coming to the issue of abuse of dominant position, be itseen that the Commission, having been equipped with thenecessary wherewithal and having dealt with allegations of similarnature in a number of cases as also based on information in publicdomain found that there are other players offering taxi service/transportation service/ service providers in transport sector andthe Cab Aggregators in the instant case distinctly do not hold dominant position in the relevant market. Admittedly, these twoCab Aggregators are not operating as a joint venture or a group,thus both enterprises taken together cannot be deemed to be holdinga dominant position within the ambit of Section 4 of the Act. Evenotherwise, none of the two enterprises is independently alleged tobe holding a dominant position in the relevant market of providingservices. This proposition of fact being an admitted position in thecase, question of abuse of dominant position has to be outrightlyrejected.”

(emphasis in original)

Based on these findings, the appeal was accordingly dismissed.

6. The Appellant/Informant, who appeared in person before thisCourt, referred to a Services Agreement between Uber and its drivers,updated on 08.09.2015, and an Agreement between Ola and its transportservice providers, dated 01.11.2016. He reiterated the submissions madebefore the CCI and the NCLAT. In particular, he attacked the finding ofthe NCLAT as to locus standi and referred us to various provisions ofthe Act, including, in particular, sections 19 and 35, arguing that theamendments made in the sections would show that any person can bean informant who can approach the CCI, as one does not have to be a“consumer” or a “complainant”, which was the position before theCompetition (Amendment) Act, 2007 [“2007 Amendment”]. Hecontrasted these provisions with sections 53B and 53T of the Act, wherethe expression used is “person aggrieved”, but hastened to add that oncean informant had moved the CCI, for the purposes of filing an appeal,such informant would certainly be a “person aggrieved”, howsoeverrestricted the expression “person aggrieved” may be in law.

7. The Appellant then argued substantially what was submittedbefore the CCI and NCLAT on the merits, stating that the arrangementsin the present case amounted to “hub and spoke” arrangements andreferred us to a particular diagram depicting Ola and Uber as the “hub”and drivers as “spokes” (at page 263 of the paper book of the CivilAppeal), which indicated that the provisions of section 3 of the Act hadclearly been violated.

8. As against this, Dr. Abhishek Manu Singhvi, learned senioradvocate appearing on behalf of Uber, took us through the concurrentfindings of fact of the CCI and the NCLAT, and stated that they could

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Anot be said to be, in any sense, even remotely perverse and wouldtherefore have to be upheld. He was at pains to stress that every driverof a taxi cab, who uses the Ola or Uber app, can have several such appsincluding both Ola, Uber and the apps of some of their competitors, andcan take private rides de hors these apps as well. There is, therefore,complete discretion with the drivers to negotiate fares with riders, notBonly insofar as Ola and Uber are concerned, but also otherwise, therebeing nothing in either the agreements or practice, which prevents themfrom doing so. Furthermore, there would be no question of any anti-competitive practice in the form of cartelization, as there are thousandsof drivers, none of whom have anything to do with each other, thereCbeing no common meeting of minds as far as they are concerned. Onthe contrary, the apps allow drivers to negotiate fares that are belowwhat is quoted in the app, thereby increasing competition and givingriders greater flexibility to take rides with those drivers who offer themost competitive fares.

D9. Shri Rajshekhar Rao, learned advocate appearing on behalf ofOla, also supported Dr. Singhvi’s submissions on merits, but went on toadd that even if the Appellant could be said to be an informant for thepurposes of section 19 of the Act, he could not be said to be a “person,aggrieved” for the purposes of filing an appeal under section 53B underthe Act, and referred to the judgment in Adi Pherozshah Gandhi v.EH.M. Seervai, Advocate General of Maharashtra, (1970) 2 SCC484, [“Adi Pherozshah Gandhi”]. He also went on to argue thatinformation can be provided by persons like the Appellant at the behestof competitors, which will have a deleterious effect on persons like Olaand Uber, as the value of their shares in the share market would instantly Fdrop the moment the factum of the filing of such information before theCCI would be advertised. In any event, he exhorted us to lay down thatin such cases heavy costs should be imposed to deter such persons fromapproaching the CCI with frivolous and/or mala fide information, filedat the behest of competitors.G10. The learned ASG, Shri Balbir Singh, appearing on behalf ofthe CCI, took us through the provisions of the Act together with theregulations made under it, and stated that though he would support theCCI’s Order closing the case, he would also support the right of theAppellant to approach the CCI with information.

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11. Having heard the learned counsel appearing on behalf of thevarious parties, it is necessary to first set out the sections of the Actwhich have a bearing on the matter before us:

“Definitions

2. In this Act, unless the context otherwise requires,—

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(c) “cartel” includes an association of producers, sellers,distributors, traders or service providers who, by agreementamongst themselves, limit, control or attempt to control theproduction, distribution, sale or price of, or, trade in goods orprovision of services; xxx xxx xxx (f) “consumer” means any person who—

(i) buys any goods for a consideration which has been paid orpromised or partly paid and partly promised, or under any systemof deferred payment and includes any user of such goods otherthan the person who buys such goods for consideration paid orpromised or partly paid or partly promised, or under any systemof deferred payment when such use is made with the approvalof such person, whether such purchase of goods is for resaleor for any commercial purpose or for personal use;

(ii) hires or avails of any services for a consideration whichhas been paid or promised or partly paid and partly promised,or under any system of deferred payment and includes anybeneficiary of such services other than the person who hiresor avails of the services for consideration paid or promised, orpartly paid and partly promised, or under any system of deferredpayment, when such services are availed of with the approvalof the first-mentioned person whether such hiring or availingof services is for any commercial purpose or for personal use; xxx xxx xxx

(l) “person” includes—

(i) an individual;

(ii) a Hindu undivided family;

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SUPREME COURT REPORTS

(iii) a company;

(iv) a firm;

(v) an association of persons or a body of individuals, whetherincorporated or not, in India or outside India;

(vi) any corporation established by or under any Central, Stateor Provincial Act or a Government company as defined insection 617 of the Companies Act, 1956 (1 of 1956);

(vii) any body corporate incorporated by or under the laws ofa country outside India;

(viii) a co-operative society registered under any law relatingto co-operative societies;

(ix) a local authority;

(x) every artificial juridical person, not falling within any of thepreceding sub-clauses;”

“Anti-competitive agreements

3. (1) No enterprise or association of enterprises or person orassociation of persons shall enter into any agreement in respectof production, supply, distribution, storage, acquisition or controlof goods or provision of services, which causes or is likely tocause an appreciable adverse effect on competition within India.

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(3) Any agreement entered into between enterprises or associationsof enterprises or persons or associations of persons or betweenany person and enterprise or practice carried on, or decision takenby, any association of enterprises or association of persons,including cartels, engaged in identical or similar trade of goods orprovision of services, which—

(a) directly or indirectly determines purchase or sale prices;...

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(4) Any agreement amongst enterprises or persons at differentstages or levels of the production chain in different markets, inrespect of production, supply, distribution, storage, sale or priceof, or trade in goods or provision of services, including—

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(e) resale price maintenance”

“Duties of Commission

18. Subject to the provisions of this Act, it shall be the duty of theCommission to eliminate practices having adverse effect oncompetition, promote and sustain competition, protect the interestsof consumers and ensure freedom of trade carried on by otherparticipants, in markets in India:

Provided that the Commission may, for the purpose of dischargingits duties or performing its functions under this Act, enter into anymemorandum or arrangement with the prior approval of the CentralGovernment, with any agency of any foreign country.”

“Inquiry into certain agreements and dominant position ofenterprise

19. (1) The Commission may inquire into any alleged contraventionof the provisions contained in subsection (1) of section 3 or sub-section (1) of section 4 either on its own motion or on—

(a) receipt of any information, in such manner and accompaniedby such fee as may be determined by regulations, from anyperson, consumer or their association or trade association; or

(b) a reference made to it by the Central Government or aState Government or a statutory authority…’’

“Procedure for inquiry under section 19

26. (1) On receipt of a reference from the Central Governmentor a State Government or a statutory authority or on its ownknowledge or information received under section 19, if theCommission is of the opinion that there exists a prima facie case,it shall direct the Director General to cause an investigation to bemade into the matter:

Provided that if the subject matter of an information received is,in the opinion of the Commission, substantially the same as or hasbeen covered by any previous information received, then the newinformation may be clubbed with the previous information.

(2) Where on receipt of a reference from the Central Governmentor a State Government or a statutory authority or information

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received under section 19, the Commission is of the opinion thatthere exists no prima facie case, it shall close the matter forthwithand pass such orders as it deems fit and send a copy of its orderto the Central Government or the State Government or thestatutory authority or the parties concerned, as the case maybe….”

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“Appearance before Commission

35. A person or an enterprise or the Director General may eitherappear in person or authorise one or more chartered accountantsor company secretaries or cost accountants or legal practitionersor any of his or its officers to present his or its case before theCommission.

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Explanation.—For the purposes of this section,—

(a) “chartered accountant” means a chartered accountant asdefined in clause (b) of sub-section (1) of section 2 of theChartered Accountants Act, 1949 (38 of 1949) and who hasobtained a certificate of practice under sub-section (1) ofsection 6 of that Act; D

(b) “company secretary” means a company secretary asdefined in clause (c) of sub-section (1) of section 2 of theCompany Secretaries Act, 1980 (56 of 1980) and who hasobtained a certificate of practice under sub-section (1) ofsection 6 of that Act; E

(c) “cost accountant” means a cost accountant as defined inclause (b) of sub section (1) of section 2 of the Cost and WorksAccountants Act, 1959 (23 of 1959) and who has obtained acertificate of practice under sub- section (1) of section 6 ofthat Act; F

(d) “legal practitioner” means an advocate, vakil or an attorneyof any High Court, and includes a pleader in practice.”

G“Penalty for offences in relation to furnishing of information

45. (1) Without prejudice to the provisions of section 44, if a person,who furnishes or is required to furnish under this Act any particulars,documents or any information,—

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(a) makes any statement or furnishes any document which heknows or has reason to believe to be false in any materialparticular; or (b) omits to state any material fact knowing it to be material;or

(c) wilfully alters, suppresses or destroys any document whichis required to be furnished as aforesaid, such person shall bepunishable with fine which may extend to rupees one crore asmay be determined by the Commission.

(2) Without prejudice to the provisions of sub-section (1), theCommission may also pass such other order as it deems fit.”

“Appeal to Appellate Tribunal

53B. (1) The Central Government or the State Government or alocal authority or enterprise or any person, aggrieved by anydirection, decision or order referred to in clause (a) of section53A may prefer an appeal to the Appellate Tribunal.

(2) Every appeal under sub-section (1) shall be filed within a periodof sixty days from the date on which a copy of the direction ordecision or order made by the Commission is received by theCentral Government or the State Government or a local authorityor enterprise or any person referred to in that sub-section and itshall be in such form and be accompanied by such fee as may beprescribed:

Provided that the Appellate Tribunal may entertain an appealafter the expiry of the said period of sixty days if it is satisfied thatthere was sufficient cause for not filing it within that period.

(3) On receipt of an appeal under sub-section (1), the AppellateTribunal may, after giving the parties to the appeal, an opportunityof being heard, pass such orders thereon as it thinks fit, confirming,modifying or setting aside the direction, decision or order appealedagainst.

(4) The Appellate Tribunal shall send a copy of every order madeby it to the Commission and the parties to the appeal.

(5) The appeal filed before the Appellate Tribunal under sub-section(1) shall be dealt with by it as expeditiously as possible and

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endeavour shall be made by it to dispose of the appeal within sixmonths from the date of receipt of the appeal.”

“Awarding compensation

53N. (1) Without prejudice to any other provisions contained inthis Act, the Central Government or a State Government or alocal authority or any enterprise or any person may make anapplication to the Appellate Tribunal to adjudicate on claim forcompensation that may arise from the findings of the Commissionor the orders of the Appellate Tribunal in an appeal against anyfindings of the Commission or under section 42A or under sub-section (2) of section 53Q of the Act, and to pass an order for therecovery of compensation from any enterprise for any loss ordamage shown to have been suffered, by the Central Governmentor a State Government or a local authority or any enterprise orany person as a result of any contravention of the provisions ofChapter II, having been committed by enterprise.

(2) Every application made under sub-section (1) shall beaccompanied by the findings of the Commission, if any, and alsobe accompanied with such fees as may be prescribed.

(3) The Appellate Tribunal may, after an inquiry made into theallegations mentioned in the application made under sub-section(1), pass an order directing the enterprise to make payment to theapplicant, of the amount determined by it as realisable from theenterprise as compensation for the loss or damage caused to theapplicant as a result of any contravention of the provisions ofChapter II having been committed by such enterprise: Providedthat the Appellate Tribunal may obtain the recommendations ofthe Commission before passing an order of compensation.

(4) Where any loss or damage referred to in sub-section (1) iscaused to numerous persons having the same interest, one or moreof such persons may, with the permission of the Appellate Tribunal,make an application under that sub-section for and on behalf of,or for the benefit of, the persons so interested, and thereupon, theprovisions of rule 8 of Order 1 of the First Schedule to the Codeof Civil Procedure, 1908 (5 of 1908), shall apply subject to themodification that every reference therein to a suit or decree shallbe construed as a reference to the application before the AppellateTribunal and the order of the Appellate Tribunal thereon.

Explanation.—For the removal of doubts, it is hereby declaredthat—

(a) an application may be made for compensation before theAppellate Tribunal only after either the Commission or the AppellateTribunal on appeal under clause (a) of sub-section (1) of section53A of the Act, has determined in a proceeding before it thatviolation of the provisions of the Act has taken place, or if provisionsof section 42A or sub-section (2) of section 53Q of the Act areattracted.

(b) enquiry to be conducted under sub-section(3) shall be for thepurpose of determining the eligibility and quantum of compensationdue to a person applying for the same, and not for examiningafresh the findings of the Commission or the Appellate Tribunalon whether any violation of the Act has taken place.”

“Right to legal representation

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(3) The Commission may authorize one or more charteredaccountants or company secretaries or cost accountants or legalpractitioners or any of its officers to act as presenting officersand every person so authorized may present the case with respectto any appeal before the Appellate Tribunal.

Explanation – The expressions “chartered accountant” or“company secretary” or “cost accountant” or “legal practitioner”shall have the meanings respectively assigned to them in theExplanation to section 35.

Appeal to Supreme Court

53T. The Central Government or any State Government or theCommission or any statutory authority or any local authority orany enterprise or any person aggrieved by any decision or orderof the Appellate Tribunal may file an appeal to the Supreme Courtwithin sixty days from the date of communication of the decisionor order of the Appellate Tribunal to them; Provided that the Supreme court may, if it is satisfied that theapplicant was prevented by sufficient cause from filing the appeal

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within the said period, allow it to be filed after the expiry of thesaid period of sixty days.”

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12. The relevant regulations that are contained in the CompetitionCommission of India (General) Regulations, 2009 [“2009 Regulations”]are set out as under:

B“2. Definitions. –

(1) In these regulations, unless the context otherwise requires, –

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(i) “Party” includes a consumer or an enterprise or a personCdefined in clauses (f), (h) and (l) of section 2 of the Actrespectively, or an information provider, or a consumerassociation or a trade association or the Director Generaldefined in clause (g) of section 2 of the Act, or the CentralGovernment or any State Government or any statutory authority,Das the case may be, and shall include an enterprise againstwhom any inquiry or proceeding is instituted and shall alsoinclude any person permitted to join the proceedings or anintervener;...”

“10. Contents of information or the reference. –

(1) The information or reference (except a reference under sub-section (1) of section 49 of the Act) shall, inter alia, separatelyand categorically state the following seriatum- E

(a) legal name of the person or the enterprise giving theinformation or the reference; F

(b) complete postal address in India for delivery of summonsor notice by the Commission, with Postal Index Number (PIN)code;

(c) telephone number, fax number and also electronic mailaddress, if available; G

(d) mode of service of notice or documents preferred; (e) legal name and address(es) of the enterprise(s) alleged tohave contravened the provisions of the Act; and (f) legal name and address of the counsel or other authorizedHrepresentative, if any;

(2) The information or reference referred to in sub-regulation (1)shall contain –

(a) a statement of facts;

(b) details of the alleged contraventions of the Act togetherwith a list enlisting all documents, affidavits and evidence, asthe case may be, in support of each of the allegedcontraventions;

(c) a succinct narrative in support of the alleged contraventions; (d) relief sought, if any; (da) Details of litigation or dispute pending between theinformant and parties before any court, tribunal, statutoryauthority or arbitrator in respect of the subject matter ofinformation; (e) Such other particulars as may be required by theCommission.

(3) The contents of the information or the reference mentionedunder sub- regulations (1) and (2), alongwith the appendices andattachments thereto, shall be complete and duly verified by theperson submitting it.”

“14. Powers and functions of the Secretary. –

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(4) The Commission may sue or be sued in the name of theSecretary and the Commission shall be represented in the nameof the Secretary in all legal proceedings, including appeals beforethe Tribunal.”

“25. Power of Commission to permit a person or enterpriseto take part in proceedings.

(1) While considering a matter in an ordinary meeting, theCommission, on an application made to it in writing, if satisfied,that a person or enterprise has substantial interest in the outcomeof proceedings and that it is necessary in the public interest toallow such person or enterprise to present his or its opinion onthat matter, may permit that person or enterprise to present suchopinion and to take part in further proceedings of the matter, asthe Commission may specify….”

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A“35. Confidentiality. –

(1) The Commission shall maintain confidentiality of the identityof an informant on a request made to it in writing.

Provided that where it is expedient to disclose the identity of theinformant for the purposes of the Act, the Commission shall do soBafter giving an opportunity to the informant of being heard….”

“51. Empanelment of special counsel by Commission.–

(1) The Commission may draw up a panel of legal practitioners orchartered accountants or company secretaries or cost accountantsCto assist in proceedings before the Competition Appellate Tribunalor any other quasi-judicial body or Court.

(2) The Director General may call upon the legal practitioners orchartered accountants or company secretaries or cost accountantsfrom the panel for assistance in the proceedings before theDCommission, if so required.

(3) The remuneration payable and other allowances andcompensation admissible to counsel shall be specified in consultationwith the Commission.”

13. A reading of the provisions of the Act and the 2009 RegulationsEwould show that “any person” may provide information to the CCI, whichmay then act upon it in accordance with the provisions of the Act. In thisregard, the definition of “person” in section 2(l) of the Act, set outhereinabove, is an inclusive one and is extremely wide, includingindividuals of all kinds and every artificial juridical person. This may becontrasted with the definition of “consumer” in section 2(f) of the Act,Fwhich makes it clear that only persons who buy goods for consideration,or hire or avail of services for a consideration, are recognised asconsumers.

14. A look at section 19(1) of the Act would show that the Actoriginally provided for the “receipt of a complaint” from any person,Gconsumer or their association, or trade association. This expression wasthen substituted with the expression “receipt of any information in suchmanner and” by the 2007 Amendment. This substitution is not withoutsignificance. Whereas, a complaint could be filed only from a personwho was aggrieved by a particular action, information may be receivedHfrom any person, obviously whether such person is or is not personally affected. This is for the reason that the proceedings under the Act areproceedings in rem which affect the public interest. That the CCI mayinquire into any alleged contravention of the provisions of the Act on itsown motion, is also laid down in section 19(1) of the Act. Further, evenwhile exercising suo motu powers, the CCI may receive informationfrom any person and not merely from a person who is aggrieved by theconduct that is alleged to have occurred. This also follows from a readingof section 35 of the Act, in which the earlier expression “complainant ordefendant” has been substituted by the expression, “person or anenterprise,” setting out that the informant may appear either in person,or through one or more agents, before the CCI to present the informationthat he has gathered.

15. Section 45 of the Act is a deterrent against persons who provideinformation to the CCI, mala fide or recklessly, inasmuch as falsestatements and omissions of material facts are punishable with a penaltywhich may extend to the hefty amount of rupees one crore, with theCCI being empowered to pass other such orders as it deems fit. This,and the judicious use of heavy costs being imposed when the informationsupplied is either frivolous or mala fide, can keep in check what isdescribed as the growing tendency of persons being “set up” by rivals inthe trade.

16. The 2009 Regulations also point in the same direction inasmuchas regulation 10, which has been set out hereinabove, does not requirethe informant to state how he is personally aggrieved by the contraventionof the Act, but only requires a statement of facts and details of thealleged contravention to be set out in the information filed. Also, regulation25 shows that public interest must be foremost in the consideration ofthe CCI when an application is made to it in writing that a person orenterprise has substantial interest in the outcome of the proceedings,and such person may therefore be allowed to take part in the proceedings.What is also extremely important is regulation 35, by which the CCImust maintain confidentiality of the identity of an informant on a requestmade to it in writing, so that such informant be free from harassment bypersons involved in contravening the Act.

17. This being the case, it is difficult to agree with the impugnedjudgment of the NCLAT in its narrow construction of section 19 of theAct, which therefore stands set aside.

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A18. With the question of the Informant’s locus standi out of theway, one more important aspect needs to be decided, and that is thesubmission of Shri Rao, that in any case, a person like the Informantcannot be said to be a “person aggrieved” for the purpose of sections53B and 53T of the Act. Shri Rao relies heavily upon Adi PherozshahGandhi (supra), in which section 37 of the Advocates Act, 1961 cameBup for consideration, which spoke of the right of appeal of “any personaggrieved” by an order of the disciplinary committee of a State BarCouncil. It was held that since the Advocate General could not be saidto be a person aggrieved by an order made by the disciplinary committeeof the State Bar Council against a particular advocate, he would have noClocus standi to appeal to the Bar Council of India. In so saying, theCourt held:

“11. From these cases it is apparent that any person who feelsdisappointed with the result of the case is not a “person aggrieved”.He must be disappointed of a benefit which he would have receivedDif the order had gone the other way. The order must cause him alegal grievance by wrongfully depriving him of something. It is nodoubt a legal grievance and not a grievance about material mattersbut his legal grievance must be a tendency to injure him. That theorder is wrong or that it acquits some one who he thinks ought tobe convicted does not by itself give rise to a legal grievance….”E

(page 491)

19. It must immediately be pointed out that this provision of theAdvocates Act, 1961 is in the context of a particular advocate beingpenalized for professional or other misconduct, which concerned itselfFwith an action in personam, unlike the present case, which is concernedwith an action in rem. In this context, it is useful to refer to the judgmentin A. Subash Babu v. State of A.P., (2011) 7 SCC 616, in which theexpression “person aggrieved” in section 198(1)(c) of the Code ofCriminal Procedure, 1973, when it came to an offence punishable undersection 494 of the Indian Penal Code, 1860 (being the offence of bigamy),Gwas under consideration. It was held that a “person aggrieved” need notonly be the first wife, but can also include a second “wife” who maycomplain of the same. In so saying, the Court held:

“25. Even otherwise, as explained earlier, the second wife suffersseveral legal wrongs and/or legal injuries when the secondHmarriage is treated as a nullity by the husband arbitrarily, without recourse to the court or where a declaration sought is granted bya competent court. The expression “aggrieved person” denotesan elastic and an elusive concept. It cannot be confined within thebounds of a rigid, exact and comprehensive definition. Its scopeand meaning depends on diverse, variable factors such as thecontent and intent of the statute of which the contravention isalleged, the specific circumstances of the case, the nature andextent of complainant’s interest and the nature and the extent ofthe prejudice or injury suffered by the complainant. Section 494does not restrict the right of filing complaint to the first wife andthere is no reason to read the said section in a restricted manneras is suggested by the learned counsel for the appellant. Section494 does not say that the complaint for commission of offenceunder the said section can be filed only by the wife living and notby the woman with whom the subsequent marriage takes placeduring the lifetime of the wife living and which marriage is void byreason of its taking place during the life of such wife. The complaintcan also be filed by the person with whom the second marriagetakes place which is void by reason of its taking place during thelife of the first wife.”

(page 628)

(page 628)

20. Clearly, therefore, given the context of the Act in which theCCI and the NCLAT deal with practices which have an adverse effecton competition in derogation of the interest of consumers, it is clear thatthe Act vests powers in the CCI and enables it to act in rem, in publicinterest. This would make it clear that a “person aggrieved” must, in thecontext of the Act, be understood widely and not be constructed narrowly,as was done in Adi Pherozshah Gandhi (supra). Further, it is not withoutsignificance that the expressions used in sections 53B and 53T of theAct are “any person”, thereby signifying that all persons who bring tothe CCI information of practices that are contrary to the provisions ofthe Act, could be said to be aggrieved by an adverse order of the CCI incase it refuses to act upon the information supplied. By way of contrast,section 53N(3) speaks of making payment to an applicant ascompensation for the loss or damage caused to the applicantas a resultof any contravention of the provisions of Chapter II of the Act, havingbeen committed by an enterprise. By this sub-section, clearly, therefore,“any person” who makes an application for compensation, under sub-

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Asection (1) of section 53N of the Act, would refer only to persons whohave suffered loss or damage, thereby, qualifying the expression “anyperson” as being a person who has suffered loss or damage. Thus, thepreliminary objections against the Informant/Appellant filing Informationbefore the CCI and filing an appeal before the NCLAT are rejected.

21. An instructive judgment of this Court reported as CompetitionCommission of India v. Steel Authority of India, (2010) 10 SCC744 dealt with the provisions of the Act in some detail and held:

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“37. As already noticed, in exercise of its powers, the Commissionis expected to form its opinion as to the existence of a prima facieCcase for contravention of certain provisions of the Act and thenpass a direction to the Director General to cause an investigationinto the matter. These proceedings are initiated by the intimationor reference received by the Commission in any of the mannersspecified under Section 19 of the Act. At the very threshold, theCommission is to exercise its powers in passing the direction forDinvestigation; or where it finds that there exists no prima faciecase justifying passing of such a direction to the Director General,it can close the matter and/or pass such orders as it may deem fitand proper. In other words, the order passed by the Commissionunder Section 26(2) is a final order as it puts an end to theEproceedings initiated upon receiving the information in one of thespecified modes. This order has been specifically made appealableunder Section 53-A of the Act.

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38. In contradistinction, the direction under Section 26(1) afterformation of a prima facie opinion is a direction simpliciter to causean investigation into the matter. Issuance of such a direction, atthe face of it, is an administrative direction to one of its own wingsdepartmentally and is without entering upon any adjudicatoryprocess. It does not effectively determine any right or obligationof the parties to the lis. Closure of the case causes determinationof rights and affects a party i.e. the informant; resultantly, thesaid party has a right to appeal against such closure of case underSection 26(2) of the Act. On the other hand, mere direction forinvestigation to one of the wings of the Commission is akin to adepartmental proceeding which does not entail civil consequencesfor any person, particularly, in light of the strict confidentiality that F

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is expected to be maintained by the Commission in terms of Section57 of the Act and Regulation 35 of the Regulations.”

(page 768)

“101. The right to prefer an appeal is available to the CentralGovernment, the State Government or a local authority orenterprise or any person aggrieved by any direction, decision ororder referred to in clause (a) of Section 53-A [ought to be printedas 53-A(1)(a)]. The appeal is to be filed within the period specifiedand Section 53-B(3) further requires that the Tribunal, after givingthe parties to appeal an opportunity of being heard, to pass suchorders, as it thinks fit, and send a copy of such order to theCommission and the parties to the appeal.

102. Section 53-S contemplates that before the Tribunal a personmay either appear “in person” or authorise one or more charteredaccountants or company secretaries, cost accountants or legalpractitioners or any of its officers to present its case before theTribunal. However, the Commission’s right to legal representationin any appeal before the Tribunal has been specifically mentionedunder Section 53-S(3). It provides that the Commission mayauthorise one or more of chartered accountants or companysecretaries or cost accountants or legal practitioners or any of itsofficers to act as presenting officers before the Tribunal. Section53-T grants a right in specific terms to the Commission to preferan appeal before the Supreme Court within 60 days from the dateof communication of the decision or order of the Tribunal to them.

103. The expression “any person” appearing in Section 53-B hasto be construed liberally as the provision first mentions specificgovernment bodies then local authorities and enterprises, whichterm, in any case, is of generic nature and then lastly mentions“any person”. Obviously, it is intended that expanded meaning begiven to the term “persons” i.e. persons or bodies who are entitledto appeal. The right of hearing is also available to the parties toappeal.

104. The above stated provisions clearly indicate that theCommission, a body corporate, is expected to be party in theproceedings before the Tribunal as it has a legal right ofrepresentation. Absence of the Commission before the Tribunal A

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will deprive it of presenting its views in the proceedings. Thus, itmay not be able to effectively exercise its right to appeal in termsof Section 53 of the Act.

105. Furthermore, Regulations 14(4) and 51 support the view thatthe Commission can be a necessary or a proper party in theproceedings before the Tribunal. The Commission, in terms ofSection 19 read with Section 26 of the Act, is entitled to commenceproceedings suo motu and adopt its own procedure for completionof such proceedings. Thus, the principle of fairness would demandthat such party should be heard by the Tribunal before any ordersadverse to it are passed in such cases. The Tribunal has takenthis view and we have no hesitation in accepting that in caseswhere proceedings initiated suo motu by the Commission, theCommission is a necessary party.

106. However, we are also of the view that in other cases theCommission would be a proper party. It would not only help inexpeditious disposal, but the Commission, as an expert body, inany case, is entitled to participate in its proceedings in terms ofRegulation 51. Thus, the assistance rendered by the Commissionto the Tribunal could be useful in complete and effectiveadjudication of the issue before it.”

(page 788)

“125. We have already noticed that the principal objects of theAct, in terms of its Preamble and the Statement of Objects andReasons, are to eliminate practices having adverse effect on thecompetition, to promote and sustain competition in the market, toprotect the interest of the consumers and ensure freedom of tradecarried on by the participants in the market, in view of the economicdevelopments in the country. In other words, the Act requires notonly protection of free trade but also protection of consumerinterest. The delay in disposal of cases, as well as unduecontinuation of interim restraint orders, can adversely andprejudicially affect the free economy of the country. Efforts toliberalise the Indian economy to bring it on a par with the best ofthe economies in this era of globalisation would be jeopardised iftime-bound schedule and, in any case, expeditious disposal by theCommission is not adhered to. The scheme of various provisions of the Act which we have already referred to including Sections26, 29, 30, 31, 53-B(5) and 53-T and Regulations 12, 15, 16, 22,32, 48 and 31 clearly show the legislative intent to ensure time-bound disposal of such matters.

126. The Commission performs various functions includingregulatory, inquisitorial and adjudicatory. The powers conferredby the legislature upon the Commission under Sections 27(d) and31(3) are of wide magnitude and of serious ramifications. TheCommission has the jurisdiction even to direct that an agreemententered into between the parties shall stand modified to the extentand in the manner, as may be specified. Similarly, where it is ofthe opinion that the combination has, or is likely to have, anappreciable adverse effect on competition but such adverse effectcan be eliminated by suitable modification to such combination,the Commission is empowered to direct such modification.”

22. Obviously, when the CCI performs inquisitorial, as opposed toadjudicatory functions, the doors of approaching the CCI and the appellateauthority, i.e., the NCLAT, must be kept wide open in public interest, soas to subserve the high public purpose of the Act.

23. Coming now to the merits, we have already set out theconcurrent findings of fact of the CCI and the NCLAT, wherein it hasbeen found that Ola and Uber do not facilitate cartelization or anti-competitive practices between drivers, who are independent individuals,who act independently of each other, so as to attract the application ofsection 3 of the Act, as has been held by both the CCI and the NCLAT.We, therefore, see no reason to interfere with these findings. Resultantly,the appeal is disposed of in terms of this judgment.

Kalpana K. Tripathy

Appeal disposed of.

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