-Report by Mehul Jain
It was held by the Delhi High Court in the case of Alliance of Digital India Foundation Vs Competition Commission of India & Ors that on April 24, It is made clear that the observations made herein are only to the extent of deciding the present law before this Court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all the parties, to be taken at an appropriate proceeding. It is the conclusion of the Delhi High Court.
The judgment is made by the learned Single Judge bench “Hon’ble Mr JusticeTushar Rao Gedela” On 24 April 2023.
The petitioner has filed the instant writ petition that the following facts shorn of all unnecessary details and germane and relevant to decide the dispute are as under: -1. On 20.02.2020, an anonymous informant filed an information before the Competition Commission of India (hereinafter referred to as “CCI”) under Section 19 of the Competition Act, 2002 (hereinafter referred to as “Act”) against Respondent No. 2 – 5 (collectively referred to as ‘Google’) (First Information). The CCI registered the First Information as Case No. 07 of 2020. 2. Thereafter, on 09.11.2020, the CCI issued a prima facie order under Section 26(1) of the Act in Case No. 7 of 2020 directing the Office of the Director General (DG) to investigate Google. 3. Subsequently, on 29.06.2021, a second informant (Match Group Inc.) (Respondent No. 6 herein) filed information before the CCI against Google under Section 19 of the Act (Second Information). The Commission registered the Second Information as Case No. 14 of 2021. The same was followed by an application for interim relief filed by Alliance of Digital India Foundation (Petitioner) against Google on 06.10.2021 (First IRA) in Case No. 07 of 2020 and Case No. 14 of 2021, seeking ad-interim relief restraining Google from implementing its Payments Policy under Section 33 of the Act. 4. That thereafter, on 18.10.2021, Petitioner filed a piece of information against Google under Section 19 of the Act (Third Information). The CCI registered the Third Information as Case No. 35 of 2021, which was finally clubbed by Case Nos. 07 of 2020, 14 of 2021 vide its Order dated 02.11.2021. 5. Consequently, from 16.03.2022 till 01.09.2022, the proceedings of these cases moved in full swing by the filing of an investigation report by the DG, which was subsequently followed by its response filed by Google, and the detailed hearings conducted thereafter by the CCI. All such proceedings reached their conclusion by CCI and the matters were reserved for orders. 6. After the conclusion of CCI oral hearings and when the final order was reserved, Google swiftly announced a user choice billing (UCB) pilot program for non-gaming app developers in India on 01.09.2022. 7. The CCI passed the final order in Case No. 07 of 2020, 14 of 2021 and 35 of 2021, which was challenged by Respondent Nos. 2 to 5 by filing a statutory appeal before the National Company Law Appellate Tribunal (NCLAT). 8. Therein, Google, on 25.01.2023, submitted its Compliance Report on its supposed implementation of the eight remedial directions given by the CCI. 9. To the said Compliance Report filed by Google, Petitioner filed three applications, one after the other, under Section 42 of the Act, before the CCI, mainly for causing an inquiry into the compliance report filed by Google along with certain other prayers. That all such applications filed before CCI on 31.01.2023, 06.03.2023, and 28.03.2023 under Section 42 of the Act are still impending adjudication to date.
At the outset, Mr Roy, learned counsel for the petitioner submits that the interpretation of Section 15 of the Act, insofar as the CCI is concerned, is no more res integra since this Court in Cadd Systems and Services Private Limited vs. Competition Commission of India reported in AIR 2019 Del 194, categorically has, after examining the decision in Mahindra and Mahindra Ltd. vs. Competition Commission of India reported in 2019 SCC OnLine Del 8032 is also the judgment rendered by the Hon’ble Supreme Court in B.K. Srinivasan and Others vs. the State of Karnataka and Others reported in (1987) 1 SCC 658and State of Gujarat vs. Utility Users Welfare Association reported in (2018) 6 SCC 21, concluded, after examining the provisions of Section 15 of the Act, that the said provisions amply make it clear that no act or proceedings of CCI would be invalid because of any vacancy or defect in its Constitution. Learned counsel submits that as a result of the aforesaid observation, the Coordinate Bench of this Court in Cadd Systems (supra) concluded that notwithstanding that a judicial member is required to be appointed at CCI, the order passed by CCI cannot be called into question. Learned counsel relies upon Paras 26,38,39 of the judgment of learned Single Judge in Mylan Laboratories (supra) and fairly submits that the judgment in Mylan Laboratories (supra) was rendered in respect of Intellectual Properties Appellate Board Particularly Section 84(2) of the Trade Marks Act, 1999, regarding the constitution of its bench. Learned counsel has also placed on record a compilation of judgments which have also been considered.
Learned senior counsel submits that the petitioner is aware that on merits, so far as the charges are concerned, the CCI had given a finding in favour of respondent nos. 2 and 3 and the same was never challenged by the petitioner by filing a statutory appeal thereagainst. He submits that having not challenged the said finding, now to challenge the same by way of the present writ petition or even the application under Section 42 of the Act would amount to the re-agitation of an issue which has been decided by the CCI. On that basis, the learned senior counsel submits that the observations and findings reached by the CCI are final and binding upon the petitioner. Thus, neither the application under Section 42 of the Act nor the present petition is maintainable either on facts or on the law.
Mr Sandeep Sethi learned senior counsel appears on behalf of respondents nos. 4 and 5 and vehemently opposes the submissions made by the petitioner. According to Mr Sethi, learned senior counsel, Section 8 of the Act decides the composition of the Commission. Referring to sub-Section 1 of Section 8 of the Act, Mr Sethi submits that by the usage of the word “shall”, the legislative intent is to ensure that the Commission would necessarily consist of a Chairperson and not less than two and not more than six other members makes it clear that the minimum quorum for the composition of a competent commission would be minimum of three Members, including the Chairperson.
Learned senior counsel also submits that having said that, the respondents have challenged the directions contained in the Final Order dated 25.10.2022 before the NCLAT. On an overall conspectus, Mr Sethi submits that the present petition is devoid of any merit, is an abuse of the process of law and ought to be dismissed in limine with exemplary cost.
This Court has heard the submissions made on behalf of the respective parties and considered the ratio laid down in various judgments passed by the Hon’ble Supreme Court as well as the judgments delivered by the Division Bench of this Court as well as other High Courts.
Moreover, according to Mr N. Venkataraman, learned ASG, the CCI is constituted following the provisions of the Competition Act, 2002 and is very much functional and also simultaneously carrying out adjudicatory functions. Because of the above, there is no impediment, legal or otherwise, in directing the CCI to take up the applications under Section 42 of the Act, as filed by the petitioner, for hearing and considering the same following law on or before 26.04.2023. Accordingly, the petition stands disposed of in the above terms. It is made clear that the observations made herein are only to the extent of deciding the present is before this Court and shall not tantamount to any expression on the merits of the case and the same is therefore, without prejudice to the rights and contentions of all the parties, to be taken at an appropriate proceeding.
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