Manmohan, J. 1 .

Present writ petition has been filed, challenging the notice dated 26th February, 2016 and respondent Number 1s order dated 18th February, 2016 whereby the respondent-CCI has directed the opposite parties in Reference Case Number 8/2013 to file their suggestions objections to the report of Director General (for short DG) and furnish their audited balance sheet, profit and loss account, turnover for the last three financial years.

The CCI has further directed individuals who have been identified in the DGs investigation report as key persons of the parties to appear before the CCI for oral hearing on the investigation report of DG.

It is pertinent to mention that the DG had found five leading tyre manufacturing companies under aegis of their association being Automotive Tyre Manufacturers Association (ATMA) who have indulged indirectly in cartelization by determining sale price of tyres in the domestic market.

Mr. Rajshekhar Rao, learned Counsel for the petitioner submits that the respondent No. 1 is acting contrary to Section 48 of the Competition Act, 2002 (for short Act, 2002) inasmuch as the respondent Number 1 has not yet arrived at a final and conclusive determination of contravention of the provisions of the Act, 2002 by the company of which the petitioner is an officer.

He submits that such final determination of contravention under Section 27 of the Act, 2002 against a company is a necessary and essential pre-requisite for commencement of any proceedings against the petitioner under Section 48 of the Act, 2002.

Mr. Rao further submits that since petitioner does not fall under Section 48(1) of Act, 2002, the impugned order is contrary to the CCIs own initial order dated 24th June, 2014 whereby DG had been mandated to investigate the role of the persons who at the time of such contravention were in charge of and responsible for conduct of the business of the opposite parties.

He further states that Section 48 of the Act, 2002 is not attracted per se to the present proceedings.

Mr. Rao lastly states that over the course of investigation, the DG called the petitioner for deposition, but never informed the petitioner that he was being investigated in his individual capacity.

In the opinion of this Court, pleas raised by the petitioner in the present petition can be raised before the CCI itself.

This Court in Shree Cement Limited Anr.

v. Competition Commission of India Anr.,  : 210 (2014) DLT 605 : W.P. (C) 3008/2014 has held as under-- In the opinion of this Court, the issue of maintainability of the writ petition is no longer res Integra.

In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai,  : (1998) 8 SCC 1, the Supreme Court has held, But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged Consequently, a writ petition challenging an order of COMPAT is maintainable on limited grounds.

However, this Court is of the opinion that the petitioners argument of lack of jurisdiction is misplaced as neither CCI nor COMPAT lack inherent jurisdiction to decide the petitioners first submission as to whether Act, 2002 applies to the proceedings or not.

This Court is of the view that issues of applicability of Act, 2002 or Monopolies and Restrictive Trade Practices Act, 1969 and levy of penalty are not equivalent to lack of inherent jurisdiction to decide the case.

Consequently, in the opinion of this Court, it is only the CCI and COMPAT which have the jurisdiction to decide the issue of applicability of Act, 2002 as well as the issue of levy of penalty thereunder.

(Emphasis supplied) Consequently, present writ petition and applications are dismissed with liberty to the petitioner to file within two weeks an application seeking recall of the impugned order and notice.

In the event, such an application is filed, it would be decided first by the CCI before proceeding any further against the petitioner in the present case.

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This appeal is directed against order dated 05.04.2016 passed by the Competition Commission of India (for short, the Commission), which has been termed by the appellant as an order passed under Section 26 of the Competition Act, 2002 (for short, the Act) and by which the Commission declined to entertain the appellants challenge to the order passed by the Director General (DG) under Regulation 35(8) of the Competition Commission of India (General) Regulations, 2009 (for short, the Regulations).

During the pendency of an investigation ordered by the Commission in relation to the alleged cartelization of price by the domestic tyre manufacturing companies, namely, M section Apollo Tyres Limited, M section MRF Limited, M section CEAT Limited, M section J.K. Tyre Industries Limited, Birla Tyres and their Association - Automotive Tyre Manufacturers Association, who are said to be supported by All India Tyre Dealers Federation, the DG sent notice dated 21.07.2015 to the appellant under Section 41 of the Act, requiring it to furnish the following information documents: A brief note on the activities undertaken by your company.

Details of agreement understanding, if any, entered into by your company with tyre manufacturing companies in respect of obtaining production sales exports data or any other information from such companies.

Copy of all information obtained by your company from the tyre companies since 2009 pursuant to the aforesaid agreements(s) understanding(s).

Copy of agreement, if any, entered into by your company with Automobile Tyre Manufacturers Association (ATMA) regarding sharing of information in respect of production sales exports any other information pertaining to tyre manufacturing companies.

Copy of all information shared by you with ATMA since 2009.

Whether the information obtaining by you from the tyre manufacturing companies is shared by you with any other party agency in any form whatsoever.

Whether the data collected by you from the tyre manufacturing companies is shared with ATMA other party agency in raw form or it is complied processed by you for sharing.

Whether any agreement has been entered by you with the tyre manufacturing companies and or ATMA to maintain the confidentiality of the data obtained provided to them.

In compliance of the direction contained in the aforesaid order, the appellant filed confidential as well as non-confidential version of the affidavit of its Managing Director, Shri A.K. Gupta along with four documents marked as Annexures A to D. Simultaneously, it requested that the documents should be treated as confidential in terms of Regulation 35 of the Regulations.

The response filed by the appellant to the notice of the DG reads as under: K. Gupta TPM Consultants K-3/A, Saket, New Delhi-110017, India Tel: 2200 (4 lines) Fax: 9341, www.tmp.in 7th August, 2015 Office of the Director General Competition Commission of India B wing, HUDCO Vishala, 14 Bhikaji Cama Place, New Delhi - 110 066 Tel: 011-26712920, Fax 26107428 Kind Attn: Mr. Ansuman Pattanaik, Addl.

Director General Sub: Investigation under the provisions of the Section 41 of the Competition Act, 2002 in Ref Case Number 08/2013 Dear Sir, Please refer your F. Number DG CCI IW/1/8/2014/191/7758 letter dated 21st July, 2015.

We are filing the instant Affidavit pursuant to your notice under reference with following: Confidential version of the affidavit of Mr. AK Gupta along with the Annexures, in hard and softcopy.

Non-confidential version of the Affidavit of Mr. AK Gupta along with the Annexure, in hard and softcopy We hereby request that the following documents to be kept strictly confidential: It is humbly requested that the documents identified above should be treated as confidential at all times, and should not be placed in any file or annexed with any reports, decisions, directions or orders made by the Office of the Director General, Competition Commission of India.

The Office of Deputy Director General, Competition Commission of India will appreciate that due to the very nature of the information requested, there cannot be any reasonable date on which the confidential nature of the identified documents will expire.

In terms of Regulation 35 of the Competition Commission of India (General) Regulation, 2009, we request you to kindly ensure that the documents identified above, which are being supplied in compliance with your requisitions set out in the Notice, are kept strictly confidential for the entire duration of the case and even thereafter.

Yours sincerely, With Warm Regards, K. Gupta TPM Consultant The request made by the appellant was disposed of by the DG vide order dated 04.12.2015.

He took cognisance of Regulation 35(3) and 35(9) of the Regulations and granted confidentiality qua Annexure A, B and C till the completion of proceedings before the Commission, but refused to grant confidentiality qua Annexure D by observing that the aggregate data on production, import, export, estimates of supply and trend analyses etc.

pertaining to tyre-industry cannot be considered to have any commercial value and disclosure of the same is not expected to cause any injury to the parties.

This is evident from paragraphs 3 and 4 of order dated 04.12.2015, which are reproduced below: I have gone through the replies submissions as well as the reasons submitted by TPM Consultants, for seeking confidentiality.

The claim of confidentiality over the information has been considered in view of the provisions of Regulations 35(3) and 35(9) of the CCI (General) Regulations, 2009, and it is ordered as below: 4 .

It is further ordered that the period of treatment of confidentiality shall be till completion of the proceedings before the CCI.

On receipt of the DGs order, the appellant sent request dated 16.03.2016 to the Commission for grant of six weeks time to file detailed submissions against the same.

The Commission did not accept the request made by the appellant and fixed the matter for hearing on 05.04.2016. 6 .

After hearing the representatives of the appellant, the Commission passed order dated 05.04.2016, paragraphs 3 to 6 of which are reproduced below: Vide the application, TPM has requested the Commission to grant confidentiality to the aforesaid information documents for all times to come.

The Commission considered the application in its ordinary meeting on 23rd March, 2016 and decided to hear TPM on 5th April, 2016.

Today, the Commission heard TPM on its application at length.

As regards Annexure A and C, TPM has submitted that these are agreements entered into by it with tyre manufacturers and ATMA.

Under these agreements, TPM receives various information from tyre manufacturers and passes on consolidated information to ATMA.

These agreements are not available in public domain and therefore, these should remain confidential for ever.

When TPM was confronted with the requirements seeking confidentiality under Regulation 35 of the CCI General Regulations, 2009, it withdrew its request for confidentiality and admitted that these do not need confidentiality.

As regards Annexure B, TPM submitted that these are the segregated data relating to productions, export, costs, etc.

of individual tyre companies.

The disclosure of these would cause substantial injury to those tyre companies and, therefore, these need to remain confidential for ever.

The Commission observed that the DG has granted confidentiality to these information, vide order dated 4th December, 2015, till the disposal of the proceedings before the Commission.

It found that the duration of confidentiality granted by the DG is reasonable and there is no reason to extend the same.

Accordingly, the application dated 16th March, 2016 of TPM is disposed of.

We have heard learned counsel for the appellant and perused the record.

At the threshold, we asked the learned counsel to show as to how an appeal like the present one is maintainable under Section 53A of the Act.

It was pointed out to the learned counsel that the Tribunal has the jurisdiction to hear and decide appeals only against any direction issued or decision made or order passed by the Commission under various sections enumerated in sub-section (1)(a) of Section 53A and Regulation 35(8) or (10) do not find mention therein.

In reply, learned counsel submitted that the impugned order should be treated as one made under Section 26 because denial of total confidentiality to the documents would seriously prejudice the appellant because it had already entered into an agreement with the tyre companies not to share the information with any party.

In our opinion, there is no merit in the submission of the learned counsel that the impugned order should be treated to have been made under Section 26 of the Act.

Section 26 on which reliance has been placed by learned counsel and Section 53A, which confers power upon the Tribunal to hear and dispose of appeals against any direction issued or decisions made or order passed by the Commission under the specified sections of the Act read as under: Section 26 2 6 .

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 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 in to the matter: Provided that if the subject-matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information.

Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under section 19, the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be.

The Director-General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission.

The Commission may forward a copy of the report referred to in sub-section (3) to the parties concerned: Provided that in case the investigation is caused to be made based on a reference received from the Central Government or the State government or the statutory authority, the Commission shall forward a copy of the report referred to in sub-section (3) to the Central Government or the State Government or the statutory authority, as the case may be.

If the report of the Director-General referred to in sub-section (3) recommends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State government or the statutory authority or the parties concerned, as the case may be, on such report of the Director-General.

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.

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.

If the report of the Director-General referred to in sub-section (3) 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 inquire into such contravention in accordance with the provisions of the Act.

Section 53A 53A. Establishment of Appellate Tribunal.--(1) The Central Government shall, by notification, establish an Appellate Tribunal to be known as Competition Appellate Tribunal - (a) 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, section 27, section 28, section 31, section 32, section 33, section 38, section 39, section 43, section 43A, section 44, section 45 or section 46 of the Act (b) to adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Appellate Tribunal in an appeal against any finding of the Commission or under section 42A or under sub- section (2) of section 53Q of this Act, and pass orders for the recovery of compensation under section 53N of this Act.

The Headquarter of the Appellate Tribunal shall be at such place as the Central Government may, by notification, specify.

Regulation 35(2), (8) and (10) of the Regulations, to which reference has been made in the orders passed by the DG and the Commission respectively also read as under: 35(2) Any party may submit a request in writing to the Commission or the Director-General, as the case may be, that a document or documents, or a part or parts thereof, be treated confidential.

On receipt of a request under sub-regulation (2), the Commission or the Director-General, as the case may be, if satisfied, shall direct that the document or documents or a part or parts thereof shall be kept confidential for the time period to be specified.

In case the Director-General has rejected the request of the party made under sub-regulation (2), the party may approach the Commission for a decision regarding confidential treatment.

A reading of the plain language of various sub-sections of Section 26 makes it clear that the same relate to the investigation required to be conducted by the DG and consideration of the investigation report by the Commission and further inquiry, if any, by the latter.

These provisions have no bearing on the issue of confidentiality, which is governed by various clauses of Regulation 35 of the Regulations.

Section 53A(1) lays down that the Central Government shall establish an Appellate Tribunal to hear and dispose of appeals against any direction or decision made or order passed by the Commission under various sections specified therein.

Regulation 35 does not find mention in Section 53A(1).

Therefore, an order passed by the DG under Regulation 35(8) or by the Commission under Regulation 35(10) cannot be the subject-matter of appeal under Section 53A of the Act.

Section 53A was interpreted by a three-Judge Bench of the Supreme Court in the Competition Commission of India v. Steel Authority of India Limited and another  : (2010) 10 SCC 744 and it was held that an appeal filed against an order made by the Commission under Section 26(1) directing the DG to conduct investigation is not maintainable.

The facts of that case are contained in paragraph 8 and 9 of the judgment, which are extracted below: Jindal Steel Powers Limited (for short the informant) invoked the provisions of Section 19 read with Section 26(1) of the Act by providing information to the Commission alleging that M section Steel Authority of India Limited (for short SAIL) had, inter alia, entered into an exclusive supply agreement with Indian Railways for supply of rails.

The SAIL, thus, was alleged to have abused its dominant position in the market and deprived others of fair competition and therefore, acted contrary to Section 3(4) (Anti-competitive Agreements) and Section 4(1) (Abuse of dominant position) of the Act.

This information was registered by the Commission and was considered in its meeting held on 27th October, 2008 on which date the matter was deferred at the request of the informant for furnishing additional information.

During the course of hearing, it was also brought to the notice of the Commission that a petition being Writ Petition (C) Number 8531 of 2009, filed by the informant against the Ministry of Railways, was also pending in the High Court of Delhi at New Delhi.

Vide order dated 10th November, 2009 the Commission directed the informant to file an affidavit with respect to the information furnished by it.

The Commission also directed SAIL to submit its comments in respect of the information received by the Commission within two weeks from the date of the said meeting and the matter was adjourned till 8th December, 2009.

On 19th November, 2009 a notice was issued to SAIL enclosing all information submitted by the informant.

When the matter was taken up for consideration by the Commission on 8th December, 2009, the Commission took on record the affidavit filed by the informant on 30th November, 2009 in terms of the earlier order of the Commission, but SAIL requested extension of six weeks time to file its comments.

Finding no justification in the request of the SAIL, the Commission, vide its order dated 8th December, 2009, declined the prayer for extension of time.

In this order, it also formed the opinion that prima facie case existed against SAIL, and resultantly, directed the Director General, appointed under Section 16(1) of the Act, to make investigation into the matter in terms of Section 26(1) of the Act.

It also granted liberty to SAIL to file its views and comments before the Director General during the course of investigation.

Despite these orders, SAIL filed an interim reply before the Commission along with an application that it may be heard before any interim order is passed by the Commission in the proceedings.

On 22nd December, 2009 the Commission only reiterated its earlier directions made to the Director General for investigation and granted liberty to SAIL to file its reply before the Director General.

The correctness of the directions contained in the order dated 8th December, 2009 was challenged by SAIL before the Competition Appellate Tribunal (for short, the Tribunal).

The Commission filed an application on 28th January, 2010 before the Tribunal seeking impleadment in the appeal filed by SAIL.

It also filed an application for vacation of interim orders which had been issued by the Tribunal on 11th January, 2010, staying further proceedings before the Director General in furtherance of the directions of the Commission dated 8th December, 2009.

It will be useful to refer to the order passed by the Commission on 8th December, 2009 at this stage itself which reads as under: The meeting was held under the chairmanship of Sh.

H.C. Gupta, Member.

The case was earlier considered by the Commission in its meetings held on 4.11.2009 and 10.11.2009.

In the meeting of the Commission held on 10.11.2009, Mr. Suman Kr.

Dey, VP and Head Legal and Mrs. Pallavi Shroff, Advocate (along with their fellow advocates) appeared before the Commission on behalf of the informant and made detailed admissions.

As per decision taken during the meeting held on 10.11.2009, informant his counsel was directed to file an affidavit regarding the current status of the writ petition filed in the Delhi high Court, particular indicating its admission or otherwise and as to whether any other order has been passed by the Honble High Court, in the matter so far.

SAIL was also requested to furnish their views comments in the matter within 2 weeks time.

In the meeting of the Commission held on 08.12.2009, the Commission took on record the affidavit filed by the informant on 30.11.2009 regarding the current status of the writ petition filed in the Delhi High Court and certified copies of all the orders passed by the Honble High Court, in the matter, till date.

However, SAIL did not file its reply within the stipulated time and requested to allow extension of time from 3.12.2009 for a further period of six weeks.

The Commission considered the above request of SAIL.

However, the Commission did not allow any further extension.

The case was discussed in detail.

After considering the details filed by the informant with the information and the entire relevant material record available in this context as well as detailed submission made by the advocates of the informant before the Commission on 10.11.2009.

Commission is of the opinion that there exists a prima facie case.

Therefore, the Commission decided that the case be referred to Director General for investigation in the matter.

Secretary was accordingly directed to refer the case to DG for investigation and submission of the report within 45 days of the receipt of orders of the Commission.

SAIL informed that they may furnish their views comments in the matter to the DG.

As already noticed, the legality of this order was questioned before the Tribunal by SAIL on one hand, while, on the other hand the Commission had pressed its application for impleadment.

In the application for impleadment it was averred by the Commission that it is a necessary and proper party for adjudication of the matter before the Tribunal and therefore, it should be impleaded as a party and be heard in accordance with law.

Emphasis was also placed on Section 18 of the Act to contend that powers, functions and duties of the Commission were such that it would always be appropriate for the Commission to be impleaded as a party in appeals filed before the Tribunal.

It was also averred in the application that intervention of the Commission at the appellate proceedings would not prejudice anybody.

The very maintainability of the appeal before the Tribunal was also questioned by the Commission on the ground that the order under appeal before the Tribunal was a direction simpliciter to conduct investigation and thus was not an order appealable within the meaning of Section 53A of the Act.

The Tribunal in its order dated 15th February, 2010, inter alia, but significantly held as under: The application of the Commission for impleadment was dismissed, as in the opinion of the Tribunal the Commission was neither a necessary nor a proper party in the appellate proceedings before the Tribunal.

Resultantly, the application for vacation of stay also came to be dismissed.

It was held that giving of reasons is an essential element of administration of justice.

A right to reason is, therefore, an indispensable part of sound system of judicial review.

Thus, the Commission is directed to give reasons while passing any order, direction or taking any decision.

The appeal against the order dated 8th December, 2009 was held to be maintainable in terms of Section 53A of the Act.

While setting aside the said order of the Commission and recording a finding that there was violation of principles of natural justice, the Tribunal granted further time to SAIL to file reply by 22nd February, 2010 in addition to the reply already filed by SAIL.

The Commission challenged the aforesaid order of the Tribunal by filing appeal under Section 53T of the Act on the ground that an appeal filed against order passed under Section 26(1) was not maintainable and the Tribunal did not have the jurisdiction to entertain the one filed by the Steel Authority of India.

After noticing the rival contentions, the Supreme Court framed the following questions: Whether the directions passed by the Commission in exercise of its powers under Section 26(1) of the Act forming a prima facie opinion would be appealable in terms of Section 53A(1) of the Act? What is the ambit and scope of power vested with the Commission under Section 26(1) of the Act and whether the parties, including the informant or the affected party, are entitled to notice or hearing, as a matter of right, at the preliminary stage of formulating an opinion as to the existence of the prima facie case? Whether the Commission would be a necessary, or at least a proper, party in the proceedings before the Tribunal in an appeal preferred by any party? At what stage and in what manner the Commission can exercise powers vested in it under Section 33 of the Act to pass temporary restraint orders? Whether it is obligatory for the Commission to record reasons for formation of a prima facie opinion in terms of Section 26(1) of the Act? What directions, if any, need to be issued by the Court to ensure proper compliance in regard to procedural requirements while keeping in mind the scheme of the Act and the legislative intent? Also to ensure that the procedural intricacies do not hamper in achieving the object of the Act, i.e., free market and competition.

The Supreme Court then answered Question Number (1) in the affirmative.

The discussion on this aspect of the matter is contained in paragraphs 21 to 25, which are reproduced below: We would prefer to state our answers to the points of law argued before us at the very threshold.

Upon pervasive analysis of the submissions made before us by the learned Counsel appearing for the parties, we would provide our conclusions on the points noticed supra as follows: In terms of Section 53A(1)(a) of the Act appeal shall lie only against such directions, decisions or orders passed by the Commission before the Tribunal which have been specifically stated under the provisions of Section 53A(1)(a).

The orders, which have not been specifically made appealable, cannot be treated appealable by implication.

For example taking a prima facie view and issuing a direction to the Director General for investigation would not be an order appealable under Section 53A. Neither any statutory duty is cast on the Commission to issue notice or grant hearing, nor any party can claim, as a matter of right, notice and or hearing at the stage of formation of opinion by the Commission, in terms of Section 26(1) of the Act that a prima facie case exists for issuance of a direction to the Director General to cause an investigation to be made into the matter.

However, the Commission, being a statutory body exercising, inter alia, regulatory jurisdiction, even at that stage, in its discretion and in appropriate cases may call upon the concerned party(s) to render required assistance or produce requisite information, as per its directive.

The Commission is expected to form such prima facie view without entering upon any adjudicatory or determinative process.

The Commission is entitled to form its opinion without any assistance from any quarter or even with assistance of experts or others.

The Commission has the power in terms of Regulation 17(2) of the Regulations to invite not only the information provider but even such other person which would include all persons, even the affected parties, as it may deem necessary.

In that event it shall be preliminary conference, for whose conduct of business the Commission is entitled to evolve its own procedure.

The Commission, in cases where the inquiry has been initiated by the Commission suo moto, shall be a necessary party and in all other cases the Commission shall be a proper party in the proceedings before the Competition Tribunal.

The presence of the Commission before the Tribunal would help in complete adjudication and effective and expeditious disposal of matters.

Being an expert body, its views would be of appropriate assistance to the Tribunal.

Thus, the Commission in the proceedings before the Tribunal would be a necessary or a proper party, as the case may be.

During an inquiry and where the Commission is satisfied that the act is in contravention of the provisions stated in Section 33 of the Act, it may issue an order temporarily restraining the party from carrying on such act, until the conclusion of such inquiry or until further orders without giving notice to such party, where it deems it necessary.

This power has to be exercised by the Commission sparingly and under compelling and exceptional circumstances.

The Commission, while recording a reasoned order inter alia should: (a) record its satisfaction (which has to be of much higher degree than formation of a prima facie view under Section 26(1) of the Act) in clear terms that an act in contravention of the stated provisions has been committed and continues to be committed or is about to be committed (b) It is necessary to issue order of restraint and (c) from the record before the Commission, it is apparent that there is every likelihood of the party to the lis, suffering irreparable and irretrievable damage or there is definite apprehension that it would have adverse effect on competition in the market.

The power under Section 33 of the Act to pass temporary restraint order can only be exercised by the Commission when it has formed prima facie opinion and directed investigation in terms of Section 26(1) of the Act, as is evident from the language of this provision read with Regulation 18(2) of the Regulations.

In consonance with the settled principles of administrative jurisprudence, the Commission is expected to record at least some reason even while forming a prima facie view.

However, while passing directions and orders dealing with the rights of the parties in its adjudicatory and determinative capacity, it is required of the Commission to pass speaking orders, upon due application of mind, responding to all the contentions raised before it by the rival parties.

Submissions made and findings in relation to Point Number 1 If we examine the relevant provisions of the Act, the legislature, in its wisdom, has used different expressions in regard to exercise of jurisdiction by the Commission.

The Commission may issue directions, pass orders or take decisions, as required, under the various provisions of the Act.

The object of the Act is demonstrated by the prohibitions contained in Sections 3 and 4 of the Act.

Where prohibition under Section 3 relates to anti-competition agreements there Section 4 relates to the abuse of dominant position.

The regulations and control in relation to combinations is dealt with in Section 6 of the Act.

The power of the Commission to make inquiry into such agreements and the dominant position of an entrepreneur, is set into motion by providing information to the Commission in accordance with the provisions of Section 19 of the Act and such inquiry is to be conducted by the Commission as per the procedure evolved by the legislature under Section 26 of the Act.

In other words, the provisions of Sections 19 and 26 are of great relevance and the discussion on the controversies involved in the present case would revolve on the interpretation given by the Court to these provisions.

The Supreme Court then noticed the provisions of Sections 19, 26 and 53A of the Act and observed: The provisions of Sections 26 and 53A of the Act clearly depict the legislative intent that the framers never desired that all orders, directions and decisions should be appealable to the Tribunal.

Once the legislature has opted to specifically state the order, direction and decision, which would be appealable by using clear and unambiguous language, then the normal result would be that all other directions, orders etc.

are not only intended to be excluded but, in fact, have been excluded from the operation of that provision.

The presumption is in favour of the legislation.

The legislature is deemed to be aware of all the laws in existence and the consequences of the laws enacted by it.

When other orders have been excluded from the scope of appellate jurisdiction, it will not be permissible to include such directions or orders by implication or with reference to other provisions which hardly have any bearing on the matter in issue and thus make non-appealable orders appealable.

The provisions of Section 53A(1)(a) use the expression any direction issued or decision made or order passed by the Commission.

There is no occasion for the Court to read and interpret the word or in any different form as that would completely defeat the intention of the legislature.

The contention raised before us is that the word or is normally disjunctive and and is normally conjunctive, but at the same time they can be read vice versa.

The respondent argued that the expression any direction issued should be read disjunctive and that gives a complete right to a party to prefer an appeal under Section 53A, against a direction for investigation, as that itself is an appealable right independent of any decision or order which may be made or passed by the Commission.

It is a settled principle of law that the words or and and may be read as vice versa but not normally.

You do sometimes read or as and in a statute.

But you do not do it unless you are obliged because or does not generally mean and and and does not generally mean or Green v. Premier Glynrhonwy State Company (1928) 1 KB 561.

As pointed out by Lord Halsbury, the reading of or as and is not to be resorted to, unless some other part of the same statute or the clear intention of it requires that to be done.

Mersey Docks and Harbour Board v. Henderson Bros. (1888) 13 AC 603.

The Court adopted with approval Lord Halsburys principle and in fact went further by cautioning against substitution of conjunctions in the case of Municipal Corporation of Delhi v. Tek Chand Bhatia  : (1980) 1 SCC 158, where the Court held as under:-- As Lord Halsbury L.C. observed in Mersey Docks Harbour Board v. Henderson LR (1888) 13 AC 603, the reading of or as and is not to be resorted to unless some other part of the same statute or the clear intention of it requires that to be done.

The substitution of conjunctions, however, has been sometimes made without sufficient reasons, and it has been doubted whether some of the cases of turning or into and and vice versa have not gone to the extreme limit of interpretation.

To us, the language of the Section is clear and the statute does not demand that we should substitute or or read this word interchangeably for achieving the object of the Act.

On the contrary, the objective of the Act is more than clear that the legislature intended to provide a very limited right to appeal.

The orders which can be appealed against have been specifically stipulated by unambiguously excluding the provisions which the legislature did not intend to make appealable under the provisions of the Act.

It is always expected of the Court to apply plain rule of construction rather than trying to read the words into the statute which have been specifically omitted by the legislature.

We may usefully refer to similar interpretation given by this Court in the case of Super Cassettes Industries Limited v. State of U.P.  : (2009)10 SCC 531, wherein the Court was dealing with cancellation of a notice issued under Section 9(2) of the U.P. Imposition of Ceiling of Land Holdings Act, 1960, requiring submission of a statement by the tenure holder for determination of surplus land in accordance with law.

Sub-section (1) of Section 13 of the said Act read as under: Appeals--(1) Any party aggrieved by an order under Sub-section (2) of Section 11 or Section 12, may, within thirty days of the date of the order, prefer an appeal to the Commissioner within whose jurisdiction the land or any part thereof is situate.

The State of UP through its Collector had preferred an appeal under Section 13 of the Act against an order passed by the authority cancelling the notice which had been issued under Section 9(2) of the Act.

The contention raised was that the said order amounted to an order being passed under Section 11(2) of the Act.

An order passed under Section 11(2) of the Act in furtherance of the statement prepared by the tenure holder was final and conclusive and could not be called in question in any court of law.

The Court while interpreting the provisions of Section 13(1) held that it is only the specific order passed under Section 11(2) and Section 12 of the Act which could be appealed against and while applying its rule held as under: It is well known that right of appeal is not a natural or inherent right.

It cannot be assumed to exist unless expressly provided for by statute.

Being a creature of statute, remedy of appeal must be legitimately traceable to the statutory provisions xxxx Section 13 provides a right of appeal to a party aggrieved by an order under Sub- section (2) of Section 11 or Section 12 and no other.

In other words, any order passed by the Prescribed Authority other than the order under-Section (2) of Section 11 or Section 12 is not appealable.

From any reckoning, the order dated December 17, 2003 is neither an order under Sub-section (2) of Section 11 nor an order under Section 12.

Act 1960 does not make the order of the Prescribed Authority cancelling the notice issued under Section 9(2) amenable to appeal.

Such order does not fall within the ambit of Section 13.

We find that the view taken by the Court in this case squarely applies to the case in hand as well.

Right to appeal is a creation of statute and it does require application of rule of plain construction.

Such provision should neither be construed too strictly nor too liberally, if given either of these extreme interpretations, it is bound to adversely affect the legislative object as well as hamper the proceedings before the appropriate forum.

The principle of appeal being a statutory right and no party having a right to file appeal except in accordance with the prescribed procedure is now well settled.

The right of appeal may be lost to a party in face of relevant provisions of law in appropriate cases.

It being creation of a statute, legislature has to decide whether the right to appeal should be unconditional or conditional.

Such law does not violate Article 14 of the Constitution.

An appeal to be maintainable must have its genesis in the authority of law.

Reference may be made to M. Ramnarain Private Limited v. State Trading Corporation of India Limited  : (1983) 3 SCC 75 and Gujarat Agro Industries Company Limited v. Municipal Corporation of the City of Ahmedabad  : (1999) 4 SCC 468.

Right of appeal is neither a natural nor inherent right vested in a party.

It is substantive statutory right regulated by the statute creating it.

The cases of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar  : (1999) 3 SCC 722 and Kashmir Singh v. Harnam Singh  : AIR 2008 SC 1749 may be referred to on this point.

Thus, it is evident that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction.

It essentially should be provided by the law in force.

In absence of any specific provision creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party.

38 to 41 We are unable to persuade ourselves to agree with the reasoning given and view taken by the Tribunal in this regard, in the impugned order.

Even though the Tribunal referred to the dictum of the Court in the case of Tek Chand Bhatia (supra), it still concluded that the use of the words any and or were the expressions of wide magnitude and that any being an adjective qualifies the nouns under the relevant provisions, i.e. directions, decisions and orders, all were appealable without exception.

The expression any, in fact, qualifies each of the three expressions direction issued or decision made or order passed.

It cannot be said that it signifies any one of them and, particularly, only direction issued.

All these words have been used by the legislature consciously and with a purpose.

It has provided for complete mechanism ensuring their implementation under the provisions of the Act, for example, under Section 26(1) the Commission is expected to make a decision by formation of a prima facie opinion and issue a direction to cause an investigation to be made by the Director General and after receiving the report has to take a final view in terms of Section 26(6) and even otherwise, it has the discretion to form an opinion and even close a case under Section 26(2).

Having enacted these provisions, the legislature in its wisdom, made only the order under Section 26(2) and 26(6) appealable under Section 53A of the Act.

Thus, it specifically excludes the opinion decision of the authority under Section 26(1) and even an order passed under Section 26(7) directing further inquiry, from being appealable before the Tribunal.

Therefore, it would neither be permissible nor advisable to make these provisions appealable against the legislative mandate.

The existence of such excluding provisions, in fact, exists in different statutes.

Reference can even be made to the provisions of Section 100A of the Code of Civil Procedure, where an order, which even may be a judgment, under the provisions of the Letters Patent of different High Courts and are appealable within that law, are now excluded from the scope of the appealable orders.

In other words, instead of enlarging the scope of appealable orders under that provision, the Courts have applied the rule of plain construction and held that no appeal would lie in conflict with the provisions of Section 100A of the Code of Civil Procedure.

Expressum facit cessare tacitum - Express mention of one thing implies the exclusion of other.

(Expression precludes implication).

This doctrine has been applied by this Court in various cases to enunciate the principle that expression precludes implication.

Union of India v. Tulsiram Patel  : AIR 1985 SC 1416.

It is always safer to apply plain and primary rule of construction.

The first and primary rule of construction is that intention of the legislature is to be found in the words used by the legislature itself.

The true or legal meaning of an enactment is derived by construing the meaning of the word in the light of the discernible purpose or object which comprehends the mischief and its remedy to which an enactment is directed.

State of Himachal Pradesh v. Kailash Chand Mahajan  : AIR 1992 SC 1277 and Padma Sundara Rao v. State of T.N.  : AIR 2002 SC 1334.

It is always important for the Court to keep in mind the purpose which lies behind the statute while interpreting the statutory provisions.

This was stated by this Court in Padma Sundara Raos case (supra) as under:-- The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself.

The question is not what may be supposed and has been intended but what has been said.

Statutes should be construed, not as theorems of Euclid, Judge Learned Hand said, but words must be construed with some imagination of the purposes which lie behind them.

(See Lehigh Valley Coal Company v. Yensavage 218 FR 547.

The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama  : AIR 1990 SC 981.

Applying these principles to the provisions of Section 53A(1)(a), we are of the considered view that the appropriate interpretation of this provision would be that no other direction, decision or order of the Commission is appealable except those expressly stated in Section 53A(1)(a).

The maxim est boni judicis ampliare justitiam, non- jurisdictionem finds application here.

Right to appeal, being a statutory right, is controlled strictly by the provision and the procedure prescribing such a right.

To read into the language of Section 53A that every direction, order or decision of the Commission would be appealable will amount to unreasonable expansion of the provision, when the language of Section 53A is clear and unambiguous.

Section 53B(1) itself is an indicator of the restricted scope of appeals that shall be maintainable before the Tribunal it provides that the aggrieved party has a right of appeal against any direction, decision or order referred to in Section 53A(1)(a).

If the legislature intended to enlarge the scope and make orders, other than those, specified in Section 53A(1)(a), then the language of Section 53B(1) ought to have been quite distinct from the one used by the legislature.

Emphasis supplied In view of the law laid down by the Supreme Court in the aforementioned judgment, it must be held that the appeal filed by the appellant against the rejection of its prayer for total and indefinite confidentiality to the documents furnished by it to the DG is not maintainable under Section 53A. We may also mention that after the judgment of the Supreme Court, the Steel Authority of India had challenged the order passed by the Commission refusing its request for cross-examination of the witness, who had provided information to the DG and access to certain documents filed by the informant in W.P. (C) 2691/2011 before the Delhi High Court, which was dismissed by the learned Single Judge by recording the following observation: Having considered the above submissions, this Court is of the view that the impugned order of the CCI on the issue of cross-examination of witnesses by SAIL does not call for interference.

Indeed, the certificate was given by the chartered accountants to JSPL and not to the CCI.

No witness as such has been examined to prove the certificate.

The question of cross-examination of any witness in regard to such certificate does not arise.

It is always open to SAIL to challenge the certificate of the chartered accountants by filing affidavits of its witnesses.

In any event, in the impugned order the CCI had provided SAIL an opportunity to adduce witnesses by way of rebuttal of the report of the DG by filing affidavits or other material as it deems appropriate.

On the aspect of disclosure of the information concerning the buyers of long rails of JSPL, Mr. Tripathi urged that in terms of the CCI Regulations 2009, the DG or the CCI as the case may be, had to be satisfied that the claim of confidentiality in respect of any document was justified.

It is submitted that there was no determination to that effect by either the DG or the CCI on this aspect.

Mr. Chandhiok on the other hand points out that this aspect has already been adverted to by the Supreme Court in CCI v. SAIL.

Ms. Shroff pointed out that cogent reasons had been given by JSPL as to why the information provided by it to the CCI should be kept confidential.

On the aspect of confidentiality of the information provided to the CCI by JSPL, the conclusion of the CCI again does not call for interference.

It is for the CCI to be satisfied about the reasons furnished by JSPL for treating the information concerning its buyers as confidential.

The CCI has to form an opinion whether the data concerning the buyers substantiates the plea of JSPL.

For the reasons stated above, the appeal is dismissed.

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SC_Ultra Tech Cement Ltd vs Competition Commission of India and Ors 12062013 SC

All these appeals preferred by the Appellants are statutory in nature as they have been filed Under Section 53T of the Competition Act, 2002 and arise out of a consolidated order passed by the Competition Appellate Tribunal (hereinafter referred to as the Tribunal) dated 17.5.2013 holding therein that there is a prima facie case for granting stay in respect of the penalty which has been imposed on the Appellants in view of the allegation that the Appellants who are cement manufacturing companies had indulged in the offence of cartelisation by creating artificial scarcity of cement in the market in spite of their gross production in the years spanning between 2009 to 2011, giving rise to artificial increase of price with a sole intention to gain undue profit which is known as cartelisation in corporate jargon and is admittedly an offence, liable to imposition of monetary penalty which has been saddled on the Appellants by the Competition Commission.

The Appellants challenged the same by way of appeals before the Competition Appellate Tribunal where the appeals are subjudice the Tribunal while granting stay of payment of penalty imposed a condition that the Appellants shall pay 10 of the penalty to be deposited in the Consolidated Fund of India in the event of non-payment by any Appellant, the appeal of such Appellants shall stand dismissed.

Since the controversy in these appeals is confined to the question as to whether the order of the Tribunal is justified while issuing a direction to the Appellants to deposit 10 of the amount of the penalty imposed by the Competition Commission of India (CCI), it is not quite essential to go into the merits of the appeal which is subjudice before the Tribunal.

At this stage, the limited question is whether the Tribunal was justified in directing the Appellants to deposit even 10 of the penalty imposed on the Appellants by the CCI against which they have preferred an appeal before the Tribunal as already indicated hereinbefore.

The Tribunal although has admitted the appeal, it has passed an order to the effect that the Appellants should pay 10 of the penalty imposed by the CCI in the nature of a pre-deposit which is normally provided under several Acts, which are statutory in nature under the relevant Acts but is not provided in the Act applicable to these matters.

However, insofar as the nature of the allegation that has been levelled against the Appellants, it is in regard to the charge allegation that they have indulged in cartelisation of the commodity which they were manufacturing-which is cement and they increased their margin of profit by increasing the prices artificially and unreasonably in the year spanning between 2009 to 2011.

Since the Tribunal thought it proper to direct the Appellant companies to deposit the 10 of the penalty, the Tribunal thought it appropriate to assign reasons in this regard and, therefore, passed a detailed order which is under challenge in these appeals, holding therein finally that 10 payment of penalty imposed would be justified in the facts and circumstances of the case.

As already stated earlier, all the Appellants have assailed that order stating that even 10 payment by way of penalty would result into huge amount running into several crores of rupees which will be an unnecessary and a grave financial burden on the companies turnover as the Tribunal itself has recorded a finding that they have a strong prima facie case in their favour against the allegation of cartelisation.

In this view of the matter, all these appeals have been filed where the prayer essentially is to the effect that this Court should stay the order of imposition of even 10 of the penalty in view of the fact that the appeals are listed for hearing on 21.08.2013 and in view of the said fact, there was no necessity of directing the Appellants to deposit this 10 by way of the penalty, the justification of which is yet to be gone into by the Tribunal.

Learned Counsels representing the Appellants have sincerely made an endeavour to impress upon this Court that the imposition of 10 penalty is neither in pursuance of any provision under the Competition Act, 2002 as there is no provision of pre-deposit under the Competition Act, 2002 in order to entertain appeal nor the Tribunal was justified in imposing this rider directing the parties to deposit 10 by way of penalty as it is yet to examine the reasonableness and justification of the order under appeal.

In addition, it was submitted that in view of the observation of the Tribunal to the effect that there is a strong prima facie case in their favour against the allegation of cartelisation, it was absolutely not essential to saddle the Appellants with this huge financial liability.

In response to the show cause notice, counsel for the CCI and the Builders Association of India are also present before us, who obviously supported the order passed by the Tribunal imposing the penalty of 10 but the counsel for the Appellants assailed the order for the reasons referred to hereinabove.

Having heard them at some length, we are of the view that it would not be appropriate for us to make any observation or express any opinion insofar as the merit of the allegation levelled against the Appellants are concerned as the same is subjudice before the Tribunal.

But we are surely concerned with the order of penalty imposed on the Appellants by the CCI which, for the time being, has been limited for payment to the extent of 10 of the amount which has been determined by the CCI.

Having heard them we are further of the view that if the penalty order made by the CCI is not given effect to in a blanket way by exempting the Appellants from making the payment, it might practically amount to allowing their appeals by the Tribunal.

Besides this, it is common practice in the legal arena that a decree, penalty or any order which is in the nature of payment in terms of money, the same is rarely interfered with and obviously so as in case of setting aside such order, the affected party can always be adequately compensated.

At this stage, therefore, if the Tribunal thought it proper to take an equitable view of the matter by directing the Appellants to pay only 10 of the amount to be paid by them, the same in our view is not fit to be interfered with by way of an interim measure.

The concern of this Court, however, is if the appeal is finally allowed by the Tribunal then what exactly would be the way out to pass on the amount of penalty to the benefit of the consumers, if the same is transferred to the State exchequer through the Consolidated Fund of India.

Therefore, we deem it appropriate to modify the order of the Tribunal to the extent that 10 amount towards penalty be deposited with the Tribunal by each company and the Tribunal will ensure that a separate account is opened in a nationalised bank with a provision that the said amount is kept in a short term fixed deposit in the name of a company which will be initially for a period of six months renewable after the end of its expiry, if necessary.

It goes without saying that the principal amount and the interest which is fetched by the account holders will be dealt with in the manner which would be considered appropriate by the Tribunal at the relevant stage of disposal of the appeals pending before it.

At one stage it did strike us that in the wake of allegations levelled against the Appellants alleging cartelisation at their instance and in the event the allegation being proved, why the profit should not be passed on to the consumers who in fact would have benefited in case the cartelisation had not been done and we also thought it appropriate to direct the Appellant companies to make arrangements for depositing the penalty or passing on the benefit so that it can pass to the consumers but in view of the practical fall out and implication of such a move which could give rise to some confusion or even chaos while implementing it, we have restrained ourselves from taking recourse to such remedy.

But surely we leave it open to the affected parties including the contesting Respondent to raise this aspect of the matter before the Tribunal which obviously would arise only in the event of the Tribunal holding that the penalty was justified.

In case the penalties were not justified, this question would not arise at all.

However, before we close this order, we deem it appropriate to address the plea raised by Mr. Ranjit Kumar, learned senior Counsel appearing on behalf of the Appellant, Jai Prakash Associates in C.A. Number 4768 of 2013, who submitted that the penalty calculated by the Tribunal Commission is based on the profit generated by several companies owned by the Appellant company.

What is sought to be impressed upon is that even if the 10 penalty is to be paid by the Appellant, the same should be based only on the profit generated out of the cement manufacturing company as the other companies owned by the Appellant would not be liable to pay this penalty.

For this purpose, we leave it open to the Appellant in C.A. Number 4768 of 2013 to move an application before the Tribunal for rectification clarification on this issue and the amount of 10 penalty shall be based on the said calculation.

However, it should not be construed that the Appellant at this stage will be exempted from making the payment of 10 penalty.

The payment of 10 towards penalty shall have to be made by the Appellant in this appeal as calculated in the impugned order of the Tribunal.

However, if the Appellant succeeds at any stage, that 10 penalty determined by the Tribunal is based on the profit of all the companies and not calculated on the basis of the profit of the cement manufacturing company, the amount after its rectification shall be refunded to the Appellant.

Similarly, all the Appellants who might have any issue in regard to the wrong determination of 10 penalty calculated by the Tribunal, will be at liberty to approach the Tribunal in this regard and the issue will be taken care of by the Tribunal at the appropriate stage.

Insofar as the present stage is concerned, 10 penalty shall be deposited on the basis of the amount which has been calculated by the Tribunal Commission and rectification refund, if any, will be made at a later stage.

Learned Counsels for the Appellants have finally requested that the time to deposit the penalty was fixed by the Tribunal up till 16th June, 2013 but in view of the fact that this Court entertained the appeals, the time fixed by the Tribunal be extended by a further period of one week.

In view of the request which appears to be reasonable, all the Appellants shall deposit the 10 penalty by June 24, 2013.

It goes without saying that if the deposit is made by June 24, 2013 by the Appellants, the appeals before the Tribunal shall survive and should not be dismissed.

In view of the aforesaid treatment of these appeals and directions, these appeals stand disposed of.

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